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:
 
   
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.
  
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.
	
 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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