There’s a reason why it’s called “common law.”
A Florida judge’s recent determination to employ Islamic law (“Sharia law”) in a case before him reveals the further slide away from any consensus among those appearing before United States courts as to what law should be used to decide disputes between us.
This is nothing new. The use of international law and treaties by the U.S. Supreme Court brought it into the limelight when justices suggested that for certain decisions, the precedent of previous Court decisions (the principle of stare decisis) would not govern. What is new is that the favored law of a particular group has been granted privileged status.
To highlight the problem associated with the use of particular religious law, let’s consider a hypothetical example.
For instance, in a state that permits divorce for any reason, or for no reason, suppose that one of the parties suggests to the court that the couple both claim to follow Christ, and did so at the time they were married, and that they accept the Holy Bible as governing the lives of Christ-followers. Suppose also that one of the parties claims that the Bible teaches that a married couple should not separate except in the case of sexual immorality. There is no sexual immorality; therefore, the court should not grant the divorce.
Regardless of the perspective on divorce that any of us reading this take, in our hypothetical example the court handling the divorce — if consistent with the Islamic law decision in Florida — would be required to enter into a theological examination of the Bible for legitimate grounds for divorce. If different than the law enacted by that state’s legislature, the Biblical interpretation would overrule statutory law.
“Common law” (generally, the case law used prior to enacting statutory law) was derived when cases were decided over time using common understandings of the rules and principles that governed a body of citizens. Thus common law — and the statutory law that largely replaced it — become impossible when there are such fundamental differences of opinion about what law should govern the disputes between us.
When I — a Christian businessman — resort to the civil court for the resolution of a commercial dispute, I am yielding to the state’s understanding of right and wrong to decide it, not the biblical rule that a thief must pay restitution plus an additional amount. If a Christian church goes to court to enforce its contract rights as an incorporated entity, it yields to the state’s process for deciding such disputes.
It is legal disaster when a church — Islamic or otherwise — goes to civil court to enforce rights that use different law than that adopted by the state in which it sits. What would happen, under the Florida court’s logic, if an Islamic church went to court with the Christian church down the street? Or if a Muslim sued a Christian?
At this point with the Florida decision, Islamic law has been used to settle an intra-Islamic dispute. The next step is for the court to enforce Islamic law against a non-Muslim.
While the arrival of “all nations” at the shores of the United States makes world missionaries of virtually all Christ-followers, the arrival of multi-national law — “uncommon law” — might portend difficulty for Christian missionaries to freely proselytize those nations.