On Mon, Jan 3, 2011 at 8:52 PM, <hamilto...@aol.com> wrote: > Your response requires the agreement to specify which school of Sharia law > is to be employed. So my point that Sharia "law" is not self-defining still > stands. No? >
Yes and no. In the abstract, I think that your point is entirely correct. In principle the meaning of the term "sharia law" necessarily requires a deeply religious act of interpretation. That said, however, words generally are not used in the abstract. They certainly are not used in the abstract within contracts. (Or at least this is the premise of the century-long attack on the plain meaning rule by realist and neoclassical contract law in the 20th century.) Rather, words are always used within the context of a particular transaction and a particular contract. As a matter of ordinary contract interpretation, the term "sharia law" must be construed in light of the context in which it is used. Frankly, in almost any contract involving commercial arbitration it will probably be possible from the context to determine the body of fiqh that the parties expect to apply. The content of that fiqh may then be determined using expert witnesses, just as one would determine the content of UK law. Furthermore, it is extremely unlikely that the parties to such a contract intend for the arbiter to engage in ijtihad rather than taqlid. Ijtihad is the kind of thing that really elite jurists, religious radicals, or semi-mythical geniuses of the past did. It is not the sort of thing that one expects from your run of the mill Islamic arbiter. It would be really weird to suppose that the drafters of the contract understood the terms are requiring a deeply religious act of interpretation. Let me give an example: Suppose that a man enters into a contract with another man in which he promises to pay $10,000 in return for which the other man promises to convey a parcel of land to "the church." Now in the abstract the term "church" is fraught with theological complexities and difficulties. Ecclesialogy varies greatly from Christian sect to Christian sect. On the other hand, if both men have spent their lives attending the 1st Baptist Church of Hendersonville, Kentucky and they engaged in negotiations in which the first man said he wanted to purchase the land from the second man to build an extension to the sanctuary, a court is going to be able to construe the term "church" without theological pyrotechnics and without shaking liberal democracy to its foundations. This is true even though the term "church" standing alone in the contract doesn't contain any kind of explicit gloss. My only point is that rather than exocticizing Islamic law with a few well chosen examples from the popular press, courts ought to understand how it gets used in the context of the contract and transactions they are called on to adjudicate. > > Marci > Sent from my Verizon Wireless BlackBerry > > -----Original Message----- > From: Nathan Oman <nate.o...@gmail.com> > Sender: religionlaw-boun...@lists.ucla.edu > Date: Mon, 3 Jan 2011 20:46:47 > To: Law & Religion issues for Law Academics<religionlaw@lists.ucla.edu> > Reply-To: Law & Religion issues for Law Academics < > religionlaw@lists.ucla.edu> > Subject: Re: May American court appoint only Muslim arbitrators, pursuant > to > an arb... > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
