Vincent J. Curtis
12 Oct 2015
The piece below I have taken holus-bolus from another source. I contains many of the opinions I have expressed concerning Sharia law and the Canadian Charter of Rights and Freedoms, and to Sharia and the U.S. Constitution.
[Update I: I have streamlined
the following post to be easily readable to the average layman, but informative
enough for a lawyer or law professor to learn a bit more on the similarities
and differences between Sharia and U.S. Law]
Is
Sharia compatible with the U.S. Constitution?
The
simple answer is of course “no”.
But
lets take a look at some aspects of Sharia Law and where it may or may not
conflict with the U.S. Constitution. (For disclosure I am not a lawyer
nor a legal expert in Sharia or U.S. Law.)
First,
what is Sharia?
Wikipedia
states Sharia refers to the sacred law of Islam. All Muslims believe
Sharia is God’s law, but they have differences between themselves as to exactly
what it entails. Which will be difficult to discern what to apply when,
but we’ll labor along for the sake of discussion.
In
Western countries, where Muslim immigration is more recent, Muslim minorities
have introduced Sharia family law, for use in their own disputes. Attempts to
impose Sharia have been accompanied by controversy, violence, and
even warfare (Second Sudanese Civil War).
The
recent incidents at the Arab International Festival have reinforced the
poor image of Sharia inside the United States and its incompatibility with
American culture and law.
The
following is a truncated version with a couple of modifications (eliminating
repetitious ibids and links) of multiple Wikipedia entries [with my comments]:
Legal
and Court Proceedings:
Wikipedia
states that Sharia judicial proceedings have significant differences with other
legal traditions, including those in both common law
and civil law.
1. Sharia courts do not
generally employ lawyers; plaintiffs and defendants represent themselves.
2. Trials are conducted
solely by the judge, and there is no jury system.
3. There is no pre-trial discovery
process, no cross-examination of witnesses, and no penalty of perjury (on
the assumption that no witness would thus endanger his soul) Unlike
common law, judges’ verdicts do not set binding precedents
under the principle of stare
decisis and unlike civil law, Sharia does not utilize formally codified statutes (these were first
introduced only in the late 19th century during the decline of the Ottoman
Empire, cf. mecelle).
4. Instead of precedents and
codes, Sharia relies on medieval jurist’s manuals and collections of
non-binding legal opinions, or fatwas, issued by religious scholars (ulama, particularly a mufti); these can be
made binding for a particular case at the discretion of a judge.
5. Sharia courts’ rules
of evidence also maintain a distinctive custom of prioritizing oral
testimony and excluding written and documentary evidence (including forensic and circumstantial
evidence), on the basis that it could be tampered with or
forged.
6. A confession, an oath, or
the oral testimony of a witness are the only evidence admissible in a Sharia
court, written evidence is only admissible with the attestations of multiple,
witnesses deemed reliable by the judge, i.e. notaries.
7. Testimony must be from at
least two witnesses, and preferably free Muslim male witnesses, who are not
related parties and who are of sound mind and reliable character; testimony to
establish the crime of adultery, or zina must be from four
direct witnesses.
8. Forensic evidence (i.e. fingerprints,
ballistics, blood samples, DNA etc.) and other circumstantial evidence is likewise rejected
in hudud cases in
favor of eyewitnesses, a practice which can cause severe difficulties for women
plaintiffs in rape cases.
9. Testimony from women is
given only half the weight of men [in
most sources outside of Wikipedia Sharia states that a woman’s testimony only
carries the weight of 1/4th of a man’s], and testimony from
non-Muslims may be excluded altogether (if against a Muslim).
10. In lieu of written
evidence, oaths are accorded much greater weight; rather than being used simply
to guarantee the truth of ensuing testimony, they are themselves used as
evidence.
11. Plaintiffs lacking other
evidence to support their claims may demand that defendants take an oath
swearing their innocence, refusal thereof can result in a verdict for the
plaintiff.
12. Sharia courts, with their
tradition of pro se
representation, simple rules of evidence, and absence of appeals courts,
prosecutors, cross examination, complex documentary evidence and discovery
proceedings, juries and voir dire proceedings, circumstantial evidence,
forensics, case law, standardized codes, exclusionary rules, and most of the
other infrastructure of civil and common law court systems, have as a result,
comparatively informal and streamlined proceedings. [that’s one way of putting it]
13. This can provide
significant increases in speed and efficiency (at the cost of the safeguards provided in secular legal systems),
and can be an advantage in jurisdictions where the general court system is slow
or corrupt, and where few litigants can afford lawyers. (end Wikipedia)
This
is not a concise review of the difference nor similarities between U.S. Law and
Sharia. It is only meant to educate us on what Sharia law is in
comparison to our legal system.
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