Court sets back Oklahoma's proposed ban on Islamic law

[pegwinn]

The stated premise is wrong. The First Amendment says that "Congress shall make no law..." etc etc. Thus, you cannot favor a religion. The problem with this law is that it specifically sets the state against a specific religion.

So, to make it judgement proof all they need to do is reword it to read that the State will not consider any religious rules, judgement, law, rituals, etc in any matter brought before the court. After all, we don't allow Rastafarian's to smoke dope and call it religion.


(Reuters) - An Oklahoma initiative (http://www.reuters.com/article/2012/01/10/us-oklahoma-sharia-court-idUSTRE8092F920120110) that would prevent its courts from considering Islamic law in deciding cases likely discriminates against religion, a federal appeals court ruled on Tuesday, upholding an injunction against it.

[ConHog]

The stated premise is wrong. The First Amendment says that "Congress shall make no law..." etc etc. Thus, you cannot favor a religion. The problem with this law is that it specifically sets the state against a specific religion.

So, to make it judgement proof all they need to do is reword it to read that the State will not consider any religious rules, judgement, law, rituals, etc in any matter brought before the court. After all, we don't allow Rastafarian's to smoke dope and call it religion.

You're right, if it didn't single out a religion it would be legal.

Which brings up another point, if idiots like Missileman are right and the first amendment demands a separation of church and state, why would a law stating that religious traditions can't be considered in a court of law be necessary? Couldn't Oklahoma just say "the first amendment says you can't do that?"

Oh, that's right. They could IF that was what the First said.

[pegwinn]

You're right, if it didn't single out a religion it would be legal.

Which brings up another point, if idiots like Missileman are right and the first amendment demands a separation of church and state, why would a law stating that religious traditions can't be considered in a court of law be necessary? Couldn't Oklahoma just say "the first amendment says you can't do that?"

Oh, that's right. They could IF that was what the First said.

I can neither confirm nor deny the idiot status of Missileman since I am not familiar with his posts.

You'll have to expand and clarify the bolded part since I am not sure where you are going with it.

[ConHog]

I can neither confirm nor deny the idiot status of Missileman since I am not familiar with his posts.

You'll have to expand and clarify the bolded part since I am not sure where you are going with it.

Simple. The need for this law in and of itself proves that the First Amendment itself does not bar religion from being involved with government.

[pegwinn]

Simple. The need for this law in and of itself proves that the First Amendment itself does not bar religion from being involved with government.

Uh, did we schedule an argument over the first amendment? So far I don't see an area to disagree in.

Look I am really busy tonight. A couple of weaklings on a board that rhymes with USMB are trying to start shit. I find that really entertaining since they have all the brain cells of a crack head on a bad day.

Anyhow, the wall of separation is a myth for reasons I have already expounded upon elsewhere. Any court decisions in that realm are likely wrong. In this case, it needs a rewrite and reissue. Nothing more.

[ConHog]

Uh, did we schedule an argument over the first amendment? So far I don't see an area to disagree in.

Look I am really busy tonight. A couple of weaklings on a board that rhymes with USMB are trying to start shit. I find that really entertaining since they have all the brain cells of a crack head on a bad day.

Anyhow, the wall of separation is a myth for reasons I have already expounded upon elsewhere. Any court decisions in that realm are likely wrong. In this case, it needs a rewrite and reissue. Nothing more.

I am in agreement with you, was merely using your thread as proof that Missileman is wrong in another thread.

Enjoy the scow pinheads.

[Gunny]

The stated premise is wrong. The First Amendment says that "Congress shall make no law..." etc etc. Thus, you cannot favor a religion. The problem with this law is that it specifically sets the state against a specific religion.

So, to make it judgement proof all they need to do is reword it to read that the State will not consider any religious rules, judgement, law, rituals, etc in any matter brought before the court. After all, we don't allow Rastafarian's to smoke dope and call it religion.

Screw the courts. They lost touch with the law years ago.

[darin]

Point of order, Missileman is one of the most-intelligent members of this board. While I disagree with a few aspects of his truths, labeling him an idiot is wronger than two-boys-in-a-bath-tub. He really is a smart guy - read what he writes; follow his logic - regardless if you agree. He makes solid, thought-provoking points.

To the subject matter...

I wonder what 'respecting' means, in the constitution. Most folks assume it means as to 'pay/show respect/honor, etc' - I wonder if it means 'in relation to' or 'on the subject of'.

I think a judge MAY want to consider social constructs when deciding cases between members of one group. That is to say, if an Islamic-inspired agreement forms, between two muslims - and one wishes to default, it may make sense to consider the islamic origin and intent behind the agreement.

It's like this, maybe. For instance, if Islam prevents charging interest on loans. I don't know if it does, but work with me.

Muslim 1 says "because islam doesn't let me charge interest I'll loan you this money free! I know the contract says I charge, but I honestly won't because Islam prevents it!"
Muslim 2 "Okay, deal"
Muslim 1 thinks "ah-HA! Now I have the legal backing to charge him interest anyway! That fool!"

In that case, Muslim 2 signed in good faith; the very-strong-influence of his religion was betrayed by Number 1 taking advantage of that. Those circumstances may influence a decision - and must be considered to determine Justice.

[ConHog]

Point of order, Missileman is one of the most-intelligent members of this board. While I disagree with a few aspects of his truths, labeling him an idiot is wronger than two-boys-in-a-bath-tub. He really is a smart guy - read what he writes; follow his logic - regardless if you agree. He makes solid, thought-provoking points.

To the subject matter...

I wonder what 'respecting' means, in the constitution. Most folks assume it means as to 'pay/show respect/honor, etc' - I wonder if it means 'in relation to' or 'on the subject of'.

I think a judge MAY want to consider social constructs when deciding cases between members of one group. That is to say, if an Islamic-inspired agreement forms, between two muslims - and one wishes to default, it may make sense to consider the islamic origin and intent behind the agreement.

It's like this, maybe. For instance, if Islam prevents charging interest on loans. I don't know if it does, but work with me.

Muslim 1 says "because islam doesn't let me charge interest I'll loan you this money free! I know the contract says I charge, but I honestly won't because Islam prevents it!"
Muslim 2 "Okay, deal"
Muslim 1 thinks "ah-HA! Now I have the legal backing to charge him interest anyway! That fool!"

In that case, Muslim 2 signed in good faith; the very-strong-influence of his religion was betrayed by Number 1 taking advantage of that. Those circumstances may influence a decision - and must be considered to determine Justice.

I know he's not an idiot. Just to be clear on that.

[fj1200]

I think a judge MAY want to consider social constructs when deciding cases between members of one group. That is to say, if an Islamic-inspired agreement forms, between two muslims - and one wishes to default, it may make sense to consider the islamic origin and intent behind the agreement.

In that case, Muslim 2 signed in good faith; the very-strong-influence of his religion was betrayed by Number 1 taking advantage of that. Those circumstances may influence a decision - and must be considered to determine Justice.

If an Islamic-inspired agreement forms then an Islamic-inspired contract should form as well. That contract would be the basis for settling any disputes.

[darin]

If an Islamic-inspired agreement forms then an Islamic-inspired contract should form as well. That contract would be the basis for settling any disputes.

And if that contract is based in Islamic Law, not US Law, should not the judge be able to consider that?

[logroller]

..
It's like this, maybe. For instance, if Islam prevents charging interest on loans. I don't know if it does, but work with me.

Muslim 1 says "because islam doesn't let me charge interest I'll loan you this money free! I know the contract says I charge, but I honestly won't because Islam prevents it!"
Muslim 2 "Okay, deal"
Muslim 1 thinks "ah-HA! Now I have the legal backing to charge him interest anyway! That fool!"

In that case, Muslim 2 signed in good faith; the very-strong-influence of his religion was betrayed by Number 1 taking advantage of that. Those circumstances may influence a decision - and must be considered to determine Justice.

Well obviously muslim 1 is really Jewish, hence the strife.:laugh:


And if that contract is based in Islamic Law, not US Law, should not the judge be able to consider that?

If I understand you correctly, you're asking if there was some general clause that says "In accordance with all Islamic Law." By itself, no-- too vague. One would have to specify each 'law', a condition or stipulation really, same as any other contract-- it has to be objectively reasonable, universally understood. Otherwise, one could say, "oh, well, I didn't know that's what he meant." You couldn't put 'maintain christian ethics' in a contract either, unless you specified the associated behaviors, inclusive or exclusive. Whether the contract said you have to pray to Allah 20 times day or wear polka dot muscle shirts, doesn't matter where they came up with it and why; so long as it doesn't violate the law of the land, the written conditions of the contract are enforceable as agreed upon.

[fj1200]

And if that contract is based in Islamic Law, not US Law, should not the judge be able to consider that?

Depends what you mean by Islamic law. Your interest example would have the contract spell out an alternate method of providing a return but disputes would still be resolved based on US law. I'd say almost anything in a contract would be acceptable unless a clause is inherently illegal. Further, they could agree that disputes be subject to mediation administered by a Sharia based mediator; that would be interesting to see.

My feeling is that contract issues would be fairly straight forward but the backlash against Sharia law would be those laws trumping criminal laws for example.

[darin]

you guys are too focused on the specifics of the example.

[fj1200]

you guys are too focused on the specifics of the example.

No, there are varying aspects to the law and the issues vary with them. Your example was very narrow, fraud and/or breach of contract.

[darin]

No, there are varying aspects to the law and the issues vary with them. Your example was very narrow, fraud and/or breach of contract.

That's what examples, are...narrow. Specific. You're getting lost in the trees.

If one person signs a document in good faith with another party, and the other party promised execution of the contract would be in conjunction with certain religious parameters which otherwise can't be enforced by US Law, the judge might-want to consider those factors when trying to find JUSTICE. Justice trumps 'Law' every day.

[fj1200]

That's what examples, are...narrow. Specific. You're getting lost in the trees.

If one person signs a document in good faith with another party, and the other party promised execution of the contract would be in conjunction with certain religious parameters which otherwise can't be enforced by US Law, the judge might-want to consider those factors when trying to find JUSTICE. Justice trumps 'Law' every day.

So you bring up a specific example and then complain that we're too specific? You haven't provided an example of something that can't be enforced by US law.

We are a nation of laws, not justices. Your trying to extend a contract argument into the realm of something completely different, legally speaking. I'm not lost in the trees, you're in a completely different forest. :slap:

[darin]

So you bring up a specific example and then complain that we're too specific? You haven't provided an example of something that can't be enforced by US law.

We are a nation of laws, not justices. Your trying to extend a contract argument into the realm of something completely different, legally speaking. I'm not lost in the trees, you're in a completely different forest. :slap:

I bring up an example to ILLUSTRATE a concept or point, and you spend your time nit-picking because you can't successfully defend your point of view? Or is it just for the sake of nit-picking.

A judge looking for Justice for those before his/her bench should consider every aspect possible when seeking to proclaim justice. Is that too specific for you?

Fascists often preach 'law above all else' as they condemn the masses to death. JUSTICE is the very POINT of having Law. Law is there to ensure each person gets their due = which is the definition of justice.

[fj1200]

I bring up an example to ILLUSTRATE a concept or point, and you spend your time nit-picking because you can't successfully defend your point of view? Or is it just for the sake of nit-picking.

A judge looking for Justice for those before his/her bench should consider every aspect possible when seeking to proclaim justice. Is that too specific for you?

Fascists often preach 'law above all else' as they condemn the masses to death. JUSTICE is the very POINT of having Law. Law is there to ensure each person gets their due = which is the definition of justice.

I've defended it just fine, you refuse to accept any answer other than your preconception. Courts adjudicate based on laws, not justice. Laws are created based on societal views of justice. My view of justice vs. your view of justice on a particular issue may be completely different but the law is what determines the punishment/outcome.

Fascism? :facepalm:

[darin]

I've defended it just fine, you refuse to accept any answer other than your preconception. Courts adjudicate based on laws, not justice. Laws are created based on societal views of justice. My view of justice vs. your view of justice on a particular issue may be completely different but the law is what determines the punishment/outcome.

Fascism? :facepalm:

so you agree with me. The purpose of Law is to ensure - promote Justice.

When a "Justice" of the Peace determines the same, that person needs every available tool at his/her disposal.

[fj1200]

so you agree with me. The purpose of Law is to ensure - promote Justice.

When a "Justice" of the Peace determines the same, that person needs every available tool at his/her disposal.

Clearly you agree with my characterization. :poke:

The JOP's job is based on laws. Are you saying that you wish that they would administer "justice" based on Sharia law which has not been passed by a legislative body?

[logroller]

you guys are too focused on the specifics of the example.

Well, in general, laws condemning religious practices violate the first amendment. The issue isn't Sharia law being used to judge the merits of an argument, but whether a judge can consider and enforce articles of a contract derived from it. Subtle difference, so specifics matter. Anybody seen the court's ruling?

[logroller]

That's what examples, are...narrow. Specific. You're getting lost in the trees.

If one person signs a document in good faith with another party, and the other party promised execution of the contract would be in conjunction with certain religious parameters which otherwise can't be enforced by US Law, the judge might-want to consider those factors when trying to find JUSTICE. Justice trumps 'Law' every day.

They can't violate US law--period.

[pegwinn]

In my opinion the judge should consider (in order) the Constitution (fed), the Constitution (state), then specific statutes. AFter that it's TMFB. No consideration of religion or foriegn law or custom should be allowed.

That goes equally for Canon Law, English Common Law, Sharia, yadablahetc.

[ConHog]

They can't violate US law--period.

Correct, ANY contract which violates the law is in fact an invalid contract, whether both parties willingly signed or not and whether either party even knew it violated the law when they signed it.

[darin]

They can't violate US law--period.

I'm not talking about violating law, I'm talking about non-enforceable.

[ConHog]

I'm not talking about violating law, I'm talking about non-enforceable.

Illegal contracts ARE unenforceable.

[darin]

Illegal contracts ARE unenforceable.

I'm not talking about violating LAW, I'm talking about un-enforceable.

And pursuit of justice. :)

[fj1200]

^I'm not sure anyone knows what you're talking about and Islamic law anymore.


YU ESS AY, YU ESS AY, YU ESS AY. :flyflag:

I'm just going to put that last part in my sig.

[darin]

^I'm not sure anyone knows what you're talking about and Islamic law anymore.


YU ESS AY, YU ESS AY, YU ESS AY. :flyflag:

I'm just going to put that last part in my sig.

I'll try to break it down again.

Muslim 1: Here man, sign this contract; it's based on Islamic Law - the only law i follow!
Muslim 2: Okay Haji, yeah - looks fine. You sure you won't take me to Legal court for this?
Muslim 1: No way man, we'll handle this.

2 weeks later

Muslim 1: Okay Haji - here is your summons for violating terms of State Law
Muslim 2: But you said we were going to do this the Islamic way!
Muslim 1: Sucker.

I HOPE the judge would consider the entire, broad-view circumstances before ruling. IF the judge can, it's Justice.

[fj1200]

^That's a ridiculous scenario. It was an illegal contract if you're stating that in two weeks Muslim #2 has violated State Law. If it's a contract between two individuals then there wouldn't be anything to adjudicate unless there's a dispute. If you're being honest about everything else then Muslim #2 should have read the contract. If this was before the judge then he/she would already be considering all circumstances but you describe fraud which is already illegal in the first place.

[ConHog]

I'll try to break it down again.

Muslim 1: Here man, sign this contract; it's based on Islamic Law - the only law i follow!
Muslim 2: Okay Haji, yeah - looks fine. You sure you won't take me to Legal court for this?
Muslim 1: No way man, we'll handle this.

2 weeks later

Muslim 1: Okay Haji - here is your summons for violating terms of State Law
Muslim 2: But you said we were going to do this the Islamic way!
Muslim 1: Sucker.

I HOPE the judge would consider the entire, broad-view circumstances before ruling. IF the judge can, it's Justice.



The judge would NOT consider anything other than is the contract legal. He can by law not do so. I'm not even sure why you'd want otherwise.

[darin]

^That's a ridiculous scenario. It was an illegal contract if you're stating that in two weeks Muslim #2 has violated State Law. If it's a contract between two individuals then there wouldn't be anything to adjudicate unless there's a dispute. If you're being honest about everything else then Muslim #2 should have read the contract. If this was before the judge then he/she would already be considering all circumstances but you describe fraud which is already illegal in the first place.

I didn't know I was debating with somebody who knew every nuance of the "Law" when it comes to agreements between private parties and how the role of Islam shapes those agreements.


The judge would NOT consider anything other than is the contract legal. He can by law not do so. I'm not even sure why you'd want otherwise.

Because we need to empower judges to consider things other than strict black-n-white of the Law. I want Judges to rule for Justice. For doing the Right thing.

[ConHog]

^That's a ridiculous scenario. It was an illegal contract if you're stating that in two weeks Muslim #2 has violated State Law. If it's a contract between two individuals then there wouldn't be anything to adjudicate unless there's a dispute. If you're being honest about everything else then Muslim #2 should have read the contract. If this was before the judge then he/she would already be considering all circumstances but you describe fraud which is already illegal in the first place.

Are you saying that telling someone you only follow religious law when signing a contract and then turning around and citing state law is fraud?

Just wanting a clear picture here.

[fj1200]

I didn't know I was debating with somebody who knew every nuance of the "Law" when it comes to agreements between private parties and how the role of Islam shapes those agreements.

It's your lucky day. :poke:

http://www.qfinance.com/contentFiles/QF02/g1xqynvv/12/1/islamic-law-of-contracts.pdf


Contracts in Islam-derived law fully respect the high moral principles of values expected of all Muslims.
Muslim 1 missed point #1 apparently.


Are you saying that telling someone you only follow religious law when signing a contract and then turning around and citing state law is fraud?

Just wanting a clear picture here.

Misrepresentation as fraud.

[gabosaurus]

Point of order, Missileman is one of the most-intelligent members of this board. While I disagree with a few aspects of his truths, labeling him an idiot is wronger than two-boys-in-a-bath-tub. He really is a smart guy - read what he writes; follow his logic - regardless if you agree. He makes solid, thought-provoking points.


Couldn't agree with you more. I rarely agree with Missileman, but I would never say he lacks intelligence.

Otherwise...

Amendment 1 -

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress (http://www.usconstitution.net/glossary.html#REDRESS) of grievances.

[ConHog]

It's your lucky day. :poke:

http://www.qfinance.com/contentFiles/QF02/g1xqynvv/12/1/islamic-law-of-contracts.pdf


Muslim 1 missed point #1 apparently.



Misrepresentation as fraud.

Not entirely sure that that would stick. In my mind it IS fraud. BUT can you claim fraud on an illegal contract? I mean if we mad a contract to steal DMPs money and split it 50/50 and then I kept your share as well as my own. Would you have a legal claim that I defrauded you? Yes of course I realize that would never see a courtroom, it's just a hypothetical.

[fj1200]

Not entirely sure that that would stick. In my mind it IS fraud. BUT can you claim fraud on an illegal contract? I mean if we mad a contract to steal DMPs money and split it 50/50 and then I kept your share as well as my own. Would you have a legal claim that I defrauded you? Yes of course I realize that would never see a courtroom, it's just a hypothetical.

Fraud, an intentional deception for personal gain; sounds about right for the scenario. The issue D has is proving that it existed. Without additional evidence it's word against word and what's left is a signed contract. I have every expectation that an Islamic based contract CAN be valid so that is a side issue.

Oh, and I'd get my money, the court of Moose and Rocco would grant me justice. :cool:

[ConHog]

Fraud, an intentional deception for personal gain; sounds about right for the scenario. The issue D has is proving that it existed. Without additional evidence it's word against word and what's left is a signed contract. I have every expectation that an Islamic based contract CAN be valid so that is a side issue.

Oh, and I'd get my money, the court of Moose and Rocco would grant me justice. :cool:

Oh, it WOULD be fraud, I'm just saying you would NEVER win a case in court based on an illegal contract.

[fj1200]

Oh, it WOULD be fraud, I'm just saying you would NEVER win a case in court based on an illegal contract.

Of course. Now assume it's legal.

[ConHog]

Of course. Now assume it's legal.

That was the comparison. An illegal contract will not be enforced. A contract based on Islamic law is illegal if that Islamic law counters US law at all. Hence no part of such a contract would be enforced.

[fj1200]

That was the comparison. An illegal contract will not be enforced. A contract based on Islamic law is illegal if that Islamic law counters US law at all. Hence no part of such a contract would be enforced.

I'm sure you can write a contract that satisfies both requirements.

[Mr. P]

And if that contract is based in Islamic Law, not US Law, should not the judge be able to consider that?

NO! Unless the two parties live in a country under Islamic rule/Government.

This muti-cultural crap has already severely weakened the fabric of this country IMO. If the day comes we start applying "other" laws in our courts besides US law, we are done for sure.

[ConHog]

I'm sure you can write a contract that satisfies both requirements.

Sure you could , in areas where US law and Islamic law agree, but then you're setting the standard at US law. Not Islamic law, and in that case we get back to Islamic law doesn't matter.

[fj1200]

Sure you could , in areas where US law and Islamic law agree, but then you're setting the standard at US law. Not Islamic law, and in that case we get back to Islamic law doesn't matter.

Not to the parties in question. Islamic law relating to contracts differs even in different Islamic countries. That wouldn't be any different here, two parties need to draw up the contract as they wish as long as there are no conflicts with US law. US and Islamic don't have to agree; US law doesn't say a loan, for example, must pay interest, it just states that it needs to meet the standards of a contract, the two parties are fully able to come up with an arrangement that satisfies their needs.

[ConHog]

Not to the parties in question. Islamic law relating to contracts differs even in different Islamic countries. That wouldn't be any different here, two parties need to draw up the contract as they wish as long as there are no conflicts with US law. US and Islamic don't have to agree; US law doesn't say a loan, for example, must pay interest, it just states that it needs to meet the standards of a contract, the two parties are fully able to come up with an arrangement that satisfies their needs.

I still contend that in THAT instance, the legality of the contract is all that matters. As you point out , the law doesn't require an interest on loans. So except for violations of usury laws two people can contract for any rate they want, including 0%. That has nothing to do with Islamic law. It has to do with a contract not violating US law. Islamic law would come into play only if there were a floor on interest rates and Islam forbid the collection of interest. SInce there is legal floor, only a ceiling, Islamic law matters not.

It still boils down to, does this contract follow US law. If so then the contract is legal and all parts therein are enforceable.

[fj1200]

I still contend that in THAT instance, the legality of the contract is all that matters.

And we've moved past that. If two parties wish to engage in a "Islamic" contract then they draw it up. Then they need to ensure that it doesn't violate the norms of whatever country they are in.

[ConHog]

And we've moved past that. If two parties wish to engage in a "Islamic" contract then they draw it up. Then they need to ensure that it doesn't violate the norms of whatever country they are in.

Great, they can call such a pact anything they want, but in reality it is NOT following Islamic, or British, or Greek law, or what have you, it is following US law. That's the bottom line, ONLY US law is considered in contract law.

[fj1200]

^Like I said. :rolleyes:

[logroller]

Because we need to empower judges to consider things other than strict black-n-white of the Law. I want Judges to rule for Justice. For doing the Right thing.

I'm sure Sharia law proponents feel the same way. However, we have a legal system which operates under objective moral theory, where universality is the core precedent. Moral code, ie whats right or wrong, good or evil, is different for christians than for muslims, which is different than buddists or athiests. The first Amendment, which forbids Congress from establishing a religion, seeks to objectify legal doctrine (make it 'black and white'), rather than subject it to the common sense or prudence of an individual's authority, such as a judge-- doing otherwise would present a functional dilemma, as so eloquently put by Milton Friedman,
... just tell me where in the world you find these angels that are going to organize society for us? Well, I don't even trust you to do that.

[pegwinn]

Because we need to empower judges to consider things other than strict black-n-white of the Law. I want Judges to rule for Justice. For doing the Right thing.

Dude, Duuuuuuuuuuude. No. Please. I know, since I have read a shitload of your posts, that you are much smarter than that.

The judges job is complex to be sure. But, due to judges doing exactly what you advocate we have enough societal insanity. The problem is what you and I and the judge perceive as right, wrong, right thing, wrong thing.

How do you feel about folks smoking dope, or crack? Each of us likely has an idea of how it ought to be. Because of that I think that we absolutly must limit the judge to strict interpretation of the literal statutes all the way up to the Constitution. And to be certain they are doing that and that alone, we need to require written (referenced) explanations of all judicial decision that did not involve a jury.

Just my two cents of course.