A Message to State Court Judges – Bury Your Heads in the Sand: The Unconstitutionality of State Legislative Proposals Which Prohibit Judges from Considering International or Foreign Law When Deciding Cases

2012 ◽  
Author(s):  
Robert Scavone Jr.
Keyword(s):  
State Court ◽  
Foreign Law ◽  
Legislative Proposals ◽  
State Legislative

The Other Muslim Bans

2020 ◽  
Vol 1 (1) ◽  
pp. 2-38
Author(s):  
Will Smiley
Keyword(s):  
Security Policy ◽  
Islamic Law ◽  
State Level ◽  
The State ◽  
The Other ◽  
State Court ◽  
Court Cases ◽  
State Laws ◽  
Foreign Law ◽  
Muslim Majority

This Article addresses and critiques the case for state-level legislative bans on courts citing “Islamic law” or the law of Muslim-majority countries. In particular, the Article reviews the most substantive evidence adduced by the bans’ supporters, in the form of a set of state court cases published by the Center for Security Policy (CSP). Very few of these cases, in fact, show courts actually applying Islamic or foreign law, and in none of these cases would the various forms of proposed legislation have been likely to alter the result. Thus even this report does not suggest a need for the state laws purporting to ban sharīʿa. The Article thus argues that even if these bans are not unconstitutionally discriminatory in their effect, they are ineffective at achieving their claimed purpose. This Article was originally published as an Occasional Paper in the Harvard Papers in Islamic Law series in 2018.

The Proportionality Principle and the Kable Doctrine: A New Test of Constitutional Invalidity?

2012 ◽  
Vol 1 (2) ◽  
pp. 163-193
Author(s):  
Roshan Chaile
Keyword(s):  
Separation Of Powers ◽  
State Level ◽  
State Legislature ◽  
Prima Facie ◽  
State Courts ◽  
State Court ◽  
Institutional Integrity ◽  
Principle Of Proportionality ◽  
High Court Of Australia ◽  
State Legislative

In Kable v Director of Public Prosecutions (NSW) the High Court of Australia declared that the requirements of Chapter III of the Australian Constitution prohibited a State legislature from conferring powers on a State court that were repugnant or incompatible with their status as repositories of federal judicial power. This was a significant constitutional watershed; it had never previously been suggested that the protections contained in Chapter III applied to State courts. Recent applications of Kable, however, have given rise to concerns that the principles to be derived from that case are unclear. This is a serious deficiency given that State legislatures, not bound by a separation of powers doctrine at a State level, may choose to confer important decision-making functions on non-judicial bodies. This article explores whether a bipartite inquiry, such as that employed in the rights jurisprudence in both England and Strasbourg, may clarify the meaning and scope of the principle enunciated in Kable. It commences by formulating a mode of inquiry which is intended to assist courts in determining whether a legislative act impairs the institutional integrity of a State court. It then argues that the principle of proportionality should be employed to determine whether a prima facie impairment may nonetheless be excusable. Such a conclusion would be reached where it can established that the legislative act is necessary in a democratic society, in the sense that it addresses a pressing social need. The introduction of this limited ground of justification promotes greater clarity and ensures that an appropriate balance is maintained between State legislative autonomy and the institutional integrity of State courts.

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