It has become something of an instinctive reaction on the part of conservatives to reject any application of Muslim (Sharia) law within the judicial system of the United States, and I share that instinct to the degree that foreign (not just Sharia) law may be used to govern or override the constitutional principles that are embedded in our judicial tradition.
However, it is highly impractical to harden that view into an outright ban, particularly when the ban targets Muslim law. In my view, no one has explained why this is so better than UCLA law professor Eugene Volokh. For readers interested in the subject, Professor Volokh has two new articles up, one short and one long. Here is an excerpt from the short article:
I’m skeptical of some of the internationalist impulses that often come from the left, in particular when it comes to using foreign law to influence how the U.S. Constitution is understood. But I also think the criticism of the use of foreign law in the American legal system misses some important matters — matters involved in much less glamorous but more frequent cases, whether having to do with contracts, torts, judgments, family law, or other things. And the proposed solutions to a real but relatively minor problem may cause much more serious problems instead.
And the problems that these proposals would cause should concern most Americans, without regard to ideology. They would be practical problems for American businesses and individuals, affecting the everyday functioning of our legal and economic systems.
We shouldn’t embrace every attempt to introduce foreign law into the American legal system, but neither should we rush to reject foreign law generally. There are times when American law does, and rightly should, call for reference to foreign law, and there are times when it should not.