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Do you really want your Supreme Court Justices citing foreign law?
Posted by: McQ on Thursday, March 22, 2007

A shocking ruling in a German court. Got that? German. Not Saudi. Not Iranian. German.

The set up. The couple is of Morrocan origin living in Germany. He allegedly beats her and threatens her life routinely. She files for divorce, and asks that it be expedited (apparently there is a one year waiting period in Germany). Judge rejected the expedited divorce:
In January, though, a letter arrived from the judge adjudicating the case. The judge rejected the application for a speedy divorce by referring to a passage in the Koran that some have controversially interpreted to mean that a husband can beat his wife. It's a supposed right which is the subject of intense debate among Muslim scholars and clerics alike."The exercise of the right to castigate does not fulfill the hardship criteria as defined by Paragraph 1565 (of German federal law)," the daily Frankfurter Rundschau quoted the judge's letter as saying. It must be taken into account, the judge argued, that both man and wife have Moroccan backgrounds.
As the woman's lawyer said:
"The right to castigate means for me: the husband can beat his wife," Becker-Rojczyk said, interpreting the judge's verdict.
Now this has caused an uproar in Germany, thank goodness. However, this isn't the first time something of this sort has happened:
This isn't the first time that German courts have used cultural background to inform their verdicts. Christa Stolle of the women's rights organization Terre des Femmes said that in cases of marital violence, there have been a number of cases where the perpetrator's culture of origin has been considered as a mitigating circumstance — although such verdicts have become seldom in recent years.

But there remains quite a bit of work to do. "In my work educating sexist and short-sighted Muslim men," asked Michaela Sulaika Kaiser of the Network for Muslim Women, "do I now have to convince German courts that women are also people on the same level with men and that they, like any other human, have the right to be protected from physical and psychological violence?"
She does have to convince the courts? Apparently. What century is this again? And in enlightened Europe no less.
 
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Achtung Today Germany, Tomorrow the World.

This relativistic idiocy is creeping into Americas Judicial system. While it may be reasonable to look at foreign law in trade cases, expanding it into the internal jurisprudence of American Justice is a violation of our sovereignty. Unfortunately under the present court that has already happened. Since the Supreme court is the final arbitrator of the Constitution there seems little we can do about it.

Can you spell I M P E A C H M E N T.
 
Written By: James E. Fish
URL: http://
did you have a link McQ, I would like to read the whole story (if it’s not in german)
 
Written By: Ugh
URL: http://
What is psychological violence? There is no voice of reason anywhere anymore. People just randomly end up on the right side of things sometimes, but no one ever knows what they’re doing.
 
Written By: Luke
URL: http://
I saw this on my Google homepage, and was hoping it was just a gag...

Here’s you’re link, my friend...

Germany Cites Koran in Rejecting Divorce
 
Written By: Scott
URL: http://
Its not foreign law - its Gods law, you Islamophobe.
 
Written By: Jimmy the Dhimmi
URL: http://www.warning1938alert.ytmnd.com
did you have a link McQ, I would like to read the whole story (if it’s not in german)
Sorry about that ... it’s linked in the post now.
 
Written By: McQ
URL: http://www.qando.net/blog
Jimmy, if it isn’t the law native to that country (The US, Germany, what have you), then it’s foreign.

And to call it "God’s Law" is to invalidate every other religion, and it’s laws. Should people be stoned for working on the Sabbath? Torah/Old Testament says they should. Maybe next time you cut the grass on a sunday (or saturday, depends on who you’re talking to) we should lob a couple chunks of granite your way...

No? Then don’t stand there and say "god’s law", ok? Germany’s free to toss that lil "keep the pimp hand strong" rule into their legal code, but until they do, it’s foreign.
 
Written By: Scott
URL: http://
This is pretty disturbing.
 
Written By: glasnost
URL: http://
Scott...your sarcasm/irony meter is broken isn’t it? Or were just born humourless?
 
Written By: Joe
URL: http://
And in enlightened Europe no less.
Well no. The underpinnings of the Enlightenment and many of it’s specifics were abandoned long ago, and not for improvements.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
Sarcasm, Scott. I was thinking of putting my name as "Ibraham Hooper@CAIR.org" but that would have made it to obvious =P
 
Written By: Jimmy the Dhimmi
URL: http://www.warning1938alert.ytmnd.com
oops... Yeah, my bad...

*hides the heavy rocks*
 
Written By: Scott
URL: http://
This is pretty disturbing.
No dude, it’s funny.

We will really be ready to ight back when all the females on American Idol are wearing burkas. That will get everyone’s attention.
 
Written By: Don
URL: http://
We will really be ready to ight back when all the females on American Idol are wearing burkas.
Not Paula, I LOVE Paula Abdul.....
 
Written By: Joe
URL: http://
You know, I thought Mark Steyn was using was hyperbole...damn.
 
Written By: Harun
URL: http://
Note: both the SPD (left) and CDU (right) are highly critical of this. The real thing to notice is that Germans across the political spectrum are upset about this particular judge. So this judge clearly doesn’t represent German opinion.
 
Written By: Scott Erb
URL: http://faculty.umf.maine.edu/~erb/blog.htm
Can you spell I M P E A C H M E N T.
I don’t see Congress manning up and doing it if it ever came to that
So this judge clearly doesn’t represent German opinion
But he represents German law........
 
Written By: shark
URL: http://
Do you really want your Supreme Court Justices citing foreign law?
This is not the only area where foreign law poses a threat to traditional American rights. We also face a threat from the International Criminal Court, which ironically is enthusiastically supported by the same people who think that the Patriot Act turned the US into a totalitarian dictatorship.

Cato Policy Analysis No. 311:
[I]t appears that many of the legal safeguards American citizens enjoy under the U.S. Constitution would be suspended if they were brought before the [International Criminal] court. Endangered constitutional protections include the prohibition against double jeopardy, the right to trial by an impartial jury, and the right of the accused to confront the witnesses against him.
 
Written By: Aldo
URL: http://
[I]t appears that many of the legal safeguards American citizens enjoy under the U.S. Constitution would be suspended if they were brought before the [International Criminal] court.
I believe much of Europe is still operating under the Napoleonic Code. This replaces trial by jury with an investigating Judge. There is no presumption of innocence. The Judge, the prosecutor and your attorney all work together in the investigation. Your lawyer is essentially not representing you. He is part of the investigation and will help dig up evidence that can be used against you. You are presumed guilty untill proven otherwise.

Under European Union law the bill of rights would not exist. Government can forbid publishing of material they don’t like. And jail those violating this censorship.

If the American system of justice is replaced by either the EU rules or the World Court, you can kiss your freedoms good by.
 
Written By: James E. Fish
URL: http://
Can someone remind me again why we are in NATO, spending billions of dollars, an occasional life, and risking war to help the Germans from keep their freedom?
 
Written By: timactual
URL: http://
One (purely unnecessary) legal point: it should be noted that Germany is governed by Civil Law (as opposed to "Common Law"). The primary difference is that judicial decisions really have no legal weight — i.e. the doctrine of stare decisis is not recognized under such systems. In other words, each judge is considered his own jurisdiction, who is not bound by even his own prior decisions. Common Law coountries such as the UK, Canada and Australia do provide persuasive legal precedent in some cases because most states adopted the entire body of English common law by state statute when forming their courts. Indeed, there are some old cases (e.g. Hadley v. Baxendale) which still hold binding precendential value for common law countries.

However, in civil law jurisdictions each case is a unique set of facts which must be applied to the only true source of law, legislative law. The facts of the case are compared to the legal doctrines and legislative pronouncements, and a decision is reached as to how the law demands that the case be decided. In civil law systems, there is often more emphasis placed on the doctrinal values of a case rather than on the facts. Wikipedia offers a fairly succinct explanation:
Stare decisis is not usually a doctrine used in civil law systems, because it violates the principle that only the legislature may make law. In theory therefore, lower courts are generally not bound to precedents established by higher courts. In practice, the need to have predictability means that lower courts generally defer to precedents by higher courts and in a sense, the highest courts in civil law jurisdictions, such as the Cour de cassation and the Conseil d’État in France are recognized as being bodies of a quasi-legislative nature.

[...]

In other civil law jurisdictions, such as the German-speaking countries, court opinions tend to be much longer than in France, and courts will frequently cite previous cases and academic writing. However, some courts (such as German courts) put less emphasis of the particular facts of the case than common law courts, but put more emphasis on the discussion of various doctrinal arguments and on finding what the correct interpretation of the law is.
Accordingly, when foreign law from civil law jurisdictions is cited in this country (most notably by the SCOTUS), it is usually foreign legislation as opposed to judicial decisions. The German court opinion cited in this post wouldn’t have (much) precedential value in Germany, much less here.
 
Written By: MichaelW
URL: http://asecondhandconjecture.com
Can you spell I M P E A C H M E N T.
I don’t see Congress manning up and doing it if it ever came to that
With Congress under Democratic control impeachment is highly unlikely. After all Democrats seem to favor the use of foreign legal doctrine in interpreting the Constitution. Even if this were not the case, Congress has never showed the intestinal fortitude to do something so bold.
 
Written By: James E. Fish
URL: http://
The following is from the proposed constitution for the European Union. Even if this constitution never gets ratified, the presumption of innocence has become a standard for the EU:

Article II-108 Presumption of innocence and right of defence

1. Everyone who has been charged shall be presumed innocent until proved guilty according to law.

2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed.


Part II
of the proposed EU constitution lays out individual rights and freedoms in a variety of areas for EU citizens. These guarantees are similar to the US bill of rights, and in some cases goes beyond rights guaranteed by the US constitution.

Right now Great Britain has parliamentary sovereignty, meaning that parliament can indeed do anything it wants to censor or prohibit speech and publication. Most countries have limits on what the government can do. Germany, for instance, has strict limits on Nazi and Neo-Nazi activities. This is a result of their historical experience, but as time passes many in Germany think this should be liberalized as well. The Germans can also ban political movements dangerous to the Republic, but they’ve refrained from doing so, believing that a stable, functioning state should do this naturally.

In general, an EU constitution won’t pass unless there are guarantees of individual rights. In many cases this will force states to give up some powers they have to limit individual freedom. And, though this version of the constitution is languishing, I suspect that within five or six years a new version will be adopted which can gain approval from the citizens. It won’t have a chance without guarantees of individual rights.
 
Written By: Scott Erb
URL: http://faculty.umf.maine.edu/~erb/blog.htm
The ICC is distinct from the EU Constitution. Read the CATO analysis.
 
Written By: Aldo
URL: http://
This is not the only area where foreign law poses a threat to traditional American rights. We also face a threat from the International Criminal Court, which ironically is enthusiastically supported by the same people who think that the Patriot Act turned the US into a totalitarian dictatorship.
The ICC focuses on war crimes, and only has jurisdiction if the state of the accused cannot or will not prosecute. Most of its work so far has been cases referred to it by states who cannot prosecute rebel leaders acting against the government of that state. There are numerous safeguards built into the ICC, I don’t think it’s a threat to us if we take our own military laws about conduct in warfare seriously, and prosecute ourselves those who violate it.

However, the treaty seems to violate the constitution since the rights guaranteed to citizens under the ICC procedure, which is extensive, is not the same set of rights guaranteed to American citizens. Thus if the US signed and ratified the ICC, and if there were ever action against an American citizen, the Court would probably consider the ICC Treaty unconstitutional. In that case the US would need to make a constitutional amendment for participation.

The ICC can claim jurisdiction for crimes by foreigners within states who have joined the ICC. This has lead to America seeking bilateral and UN agreements exempting Americans from potential claims of jurisdiction in that country. Many states in Latin America and Africa have sacrificed American aid by refusing to sign such agreements (not so much because they think they’ll ever need to arrest Americans, but on the principle of not giving the world’s biggest superpower a free pass on rules others are to be held accountable to). Other major powers like Russia and China have also refused to join the ICC.

 
Written By: Scott Erb
URL: http://faculty.umf.maine.edu/~erb/blog.htm
Erb:
The ICC focuses on war crimes, and only has jurisdiction if the state of the accused cannot or will not prosecute.
Cato:
Already some supporters of the proposed court want to give it the authority to prosecute drug trafficking as well as such vague offenses as "serious threats to the environment" and "committing outrages on personal dignity." Even if such expansive authority is not given to the ICC initially, the potential for jurisdictional creep is considerable and worrisome.
 
Written By: Aldo
URL: http://
Erb:
...the rights guaranteed to citizens under the ICC procedure, which is extensive, is not the same set of rights guaranteed to American citizens.
Cato:
Endangered constitutional protections include the prohibition against double jeopardy, the right to trial by an impartial jury, and the right of the accused to confront the witnesses against him.
 
Written By: Aldo
URL: http://
Already some supporters of the proposed court want to give it the authority to prosecute drug trafficking as well as such vague offenses as "serious threats to the environment" and "committing outrages on personal dignity." Even if such expansive authority is not given to the ICC initially, the potential for jurisdictional creep is considerable and worrisome.
It’s not a proposed court, and it is limited in jurisdiction. No amendments to its authority can be made until 2009. Some do want expansion, especially to include terrorism, but it will be politically difficult to agree to any such expansion.

As I noted, you are right that while they have extensive protection for the accused, these aren’t the same rights as the US constitution provides. I am convinced that the US would need a constitutional amendment to sign on to this treaty as it is now structured.
 
Written By: Scott Erb
URL: http://faculty.umf.maine.edu/~erb/blog.htm
It’s not a proposed court, and it is limited in jurisdiction. No amendments to its authority can be made until 2009. Some do want expansion, especially to include terrorism, but it will be politically difficult to agree to any such expansion.
This seem to be a violation of the first rule of Bureaucracy, expand at any price. It would be nice to believe the court will not seek vastly expanded powers after 2009. The precedent set by the U.S. Congress in expanding Washington’s authority under interstate commerce laws, will not be lost on the International Court. It gives them a reason to expand their jurisdiction to all crimes that cross international borders.
 
Written By: James E. Fish
URL: http://
This seem to be a violation of the first rule of Bureaucracy, expand at any price. It would be nice to believe the court will not seek vastly expanded powers after 2009. The precedent set by the U.S. Congress in expanding Washington’s authority under interstate commerce laws, will not be lost on the International Court. It gives them a reason to expand their jurisdiction to all crimes that cross international borders.
It’s a different kind of court; sovereign states agree by treaty to particular powers of the court, and the court cannot expand them. They are not above the sovereign states. Only treaty agreement can expand its jurisdiction.
 
Written By: Scott Erb
URL: http://faculty.umf.maine.edu/~erb/blog.htm
It’s a different kind of court; sovereign states agree by treaty to particular powers of the court, and the court cannot expand them. They are not above the sovereign states. Only treaty agreement can expand its jurisdiction.
One of the biggest complaints I have heard about the European union is the bureaucrats propose expansion of their powers, it’s voted down, then the bureaucrats make the same proposal worded different and again it’s voted down. They keep this up until the public is finely worn down and approve the measure. I would expects the bureaucrats of the World Court to follow this model. It’s worked all over the world.

Those with a suspicious mind may look at the World Court as a step towards a one world government. Those proposing these international organizations certainly are of that mind.
 
Written By: James E. Fish
URL: http://
One of the biggest complaints I have heard about the European union is the bureaucrats propose expansion of their powers, it’s voted down, then the bureaucrats make the same proposal worded different and again it’s voted down. They keep this up until the public is finely worn down and approve the measure. I would expects the bureaucrats of the World Court to follow this model. It’s worked all over the world.
The European Union will fail if they don’t truly make the principle of subsidiarity (in the TEU - Treaty of European Union) real. That principle says that government should be at the lowest level possible, with the supranational institutions playing a "subsidiary role." If they try to centralize power for a 500 million person political entity of multiple cultures and economic conditions, they will fail.

I’m not sure what you’re talking about in terms of being voted down. Denmark rejected Maastricht, then got the right to opt out of certain provisions (such as monetary union) and then the voters passed it. Ireland rejected the Treaty of Nice, got some concessions and with a higher turnout next time passed it. A number of states have rejected the current constitution proposal; I’m sure a new one will be crafted, but it will (and should!) have real changes. Up until Maastricht (1992) the people were pretty much on board for everything because all it seemed to mean for them was economic growth and easier border crossings. Since then, the people really feel the changes in their daily lives.

I guess the ICC could go that route if the states who participate choose to sign on to treaty changes. I think that would be much more difficult with a broad global treaty than the ones involved in the process of European integration.
Those with a suspicious mind may look at the World Court as a step towards a one world government. Those proposing these international organizations certainly are of that mind.
I think they really want to hold war criminals accountable after the problems dealing with crimes in Rwanda and Yugoslavia. I don’t know very many people any more who seriously think one world government is feasible or desirable. It would scare the hell out of me!
 
Written By: Scott Erb
URL: http://faculty.umf.maine.edu/~erb/blog.htm

 
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