How Should Courts Deal with Foreign Law?

Recently, the Florida Senate passed a bill restricting the choice and applicability of foreign law in a certain set of cases. According to this bill, a court would not apply foreign law that contravened Florida strong public policy. Such “foreign law bans” have raised severe criticism or at least strong skepticism. In fact, the scope of the bill is limited to family law cases and intends to clarify existing case law. Most critics see the bill as an affront against foreign law in general, and Sharia law in particular.

Now, as a lawyer that has also studied conflict of laws in civil law countries, I am familiar with the ordre public exception. In cases, where conflict of laws rules lead to the applicability of foreign law, a court has to examine whether such foreign law violates the ordre public (public order). In Germany, my native country, the ordre public exception is applied to inheritance cases that involve Sharia law and would discriminate against a woman’s fundamental right of economic equality (gender discrimination). It is, however, important to note that here the ordre public exception is case-specific and not a general exclusion of, say, Sharia inheritance law. Also, when a law has been deemed inapplicable because it was contrary to German law, it does not mean that German law automatically applies to the case. Instead, a judge has to create a new legal norm that no longer discriminates, but that also takes into consideration the legal philosophy of the law that would normally be applicable (i.e. Sharia law).

Well, this is a complicated procedure and requires a German judge to have quite some cultural finesse. Thus, in Great Britain, the legal community has taken a different approach. There, the Law Society, which represents solicitors in England and Wales, has published guidelines that are aimed at clarifying Sharia succession rules for British courts. Of course, such a step has also raised quite some criticism.

So here we have three different approaches to a similar problem. A problem that will become more and more common as people from different cultural backgrounds interact with each other and legal cultures clash or converge. It would be interesting to know – not only from a standpoint of comity – how similar situations, e.g. inheritance cases governed by Western law, are treated in countries where Sharia law usually regulates family law.