Exceptionalism Unbound: Appraising American Resistance to Foreign Law
63 Catholic University Law Review, Forthcoming
70 Pages Posted: 8 Sep 2015 Last revised: 12 Jul 2016
Date Written: August 21, 2015
There has been a recent trend in several states to consider and adopt state constitutional amendments or statutes that attempt to prohibit state courts from considering or applying foreign law in their judicial decisions. The first effort of this kind occurred in Oklahoma in 2010, and similar laws have been enacted in several other states in ensuing years. One aim of these provisions (which was made explicit in Oklahoma) is to prevent state courts from incorporating “Sharia” (Muslin law) into judicial decisions. Another aim is to assert a broad principle of American exceptionalism that supports exclusion of all foreign law regardless of its source. This article addresses the questions whether such a limitation on state judicial decisions is constitutional, and if so whether it represents a desirable restriction on the judicial process. In Awad v. Ziriax, Oklahoma’s attempt to prevent judicial use of foreign and international law was struck down as a violation of the First Amendment’s Establishment Clause. This result was justified by the law’s explicit attempt to single out Sharia for specific legal disabilities not applicable to law that emanates from any other religious tradition. Other statutes, however, have omitted the specific reference to Sharia that doomed the Oklahoma provision, and the question whether these laws violate the Establishment Clause is much closer.
This article argues that Awad reached the correct decision under the Establishment Clause, and that any statute that is similarly aimed at excluding Sharia law ought also to be unconstitutional, even if it is framed in more neutral language. On the other hand, laws that purport to prohibit any resort to foreign law regardless of its source and that are based on general exceptionalist reasoning rather than antipathy to Islam, are constitutional. Nevertheless, they represent a form of “wholesale” exceptionalism that is contrary to the traditional general jurisdiction of state courts; based on false historical premises; unnecessary in light of longstanding principles of choice of law; inefficient, uncertain and overbroad in application; at least partly unenforceable; and inconsistent with the advancing globalization of society and law.
While wholesale exceptionalism should be rejected for these reasons, the article goes on to consider the alternative of “selective” exceptionalism, which would permit use of foreign law in some instances but preclude it in others. The article argues that the case for such a selective approach is much stronger, provided that exceptionalism is invoked only in circumstances where a unique American legal tradition or perspective can be affirmatively demonstrated. Selective exceptionalism avoids most of the defects of wholesale exceptionalism, chiefly because it depends on active engagement with foreign law in order to determine its potential relevance. The article advances some preliminary criteria for determining the circumstances in which a selective exceptionalism is advisable, and it offers some examples in American law that illustrate circumstances in which the assertion of an exceptional American legal tradition would be justified.
Keywords: foreign law; state courts; conflict of laws; choice of law; jurisdiction; Muslim law; Sharia; establishment of religion; freedom of religion; constitutional law; separation of church and state; exceptionalism; comparative law; globalization
JEL Classification: K10, K19, K33, K41, K49
Suggested Citation: Suggested Citation