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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