November 28, 2003. ר Islamic Law in the United States.

The Volokh Conspiracy had a couple of posts today on the application of Islamic law in Canada, based on a WorldnetDaily article. Jacob Levy and Eugene Volokh note that it is nothing special, or unjust, to allow private parties to incorporate by reference any legal code they want into their private contracts. I noticed this because Jeffrey Stake and I came across some examples of this in American courts, where it is nothing new, even in connection with marriage (so long as the marriage included a prenuptial agreement). From Eric Rasmusen and Jeffrey Stake, "Lifting the Veil of Ignorance: Personalizing the Marriage Contract," Indiana Law Journal (Spring 1998) 73: 454-502, footnote 163:

One case in which a court upheld such a payment is Akileh v. Elchahal, 666 So.2d 246, District Court of Appeal of Florida, Second District. Jan. 12, 1996. In that case, the wife's father granted the husband a sadaq consisting of $1 paid immediately and a deferred payment of $50,000. (A sadaq is a postponed dowry which protects the woman from divorce in Islam.) The wife left the husband, and the husband sued for the money and lost. Florida law supported the husband's right to the sadaq payment in general, but the court ruled that he had no right in this case because, under Islamic law, the wife would forfeit the payment to the husband only for fault such as adultery.

Another example of Islamic contracts of this kind, though a case in which fault was not relevant, is Aziz v. Aziz, 127 Misc.2d 1013, 488 N.Y.S.2d 123 (Sup.Ct.1985). In Aziz, the parties entered into a mahr, a type of antenuptial agreement which required a payment of $5,032, with $32 advanced, and $5,000 deferred until divorce. The court held that the mahr conformed to New York contract requirements and "its secular terms are enforceable as a contractual obligation, notwithstanding that it was entered into as part of a religious ceremony." Aziz, 488 N.Y.S.2d at 124.

There is nothing wrong with this. Of course, private parties are not allowed to put just any kind of enforceable clause in a contract, which prevents the kind of situation that no doubt is what alarms some people. Under the common law, a contract can't ask for "a pound of flesh", and it can't require an adulterous wife to be stoned to death.

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