Is "contract law" shorthand? Or should we spell out all provisions of the UCC and common law contract of the particular state? Or can we just say "law of the state of North Carolina"?
If we can say "law of North Carolina" will govern, we can also say "law of France" or "law of Saudi Arabia" or "law of the Vatican". And if one or more of those happen to be religious law, that is just what is going on and the court must interpret that law, whatever its source or external characterization just as it would any other law. Most legal systems do not require that ridiculous thing called "consideration" as part of the contract formation process. So what? From within any legal system one can determine the existence of non-existence of a contract (or judicially enforceable agreement if you prefer). It doesn't matter whether that is the sharia or civil law or any other legal system. There remain many points of contention about what the law is in the common law and even more about how to apply it in a given setting -- even in a mature area like contracts. Same is true in other legal systems. No big deal. For the commercial contract, the court can figure out what the law is and apply it --even if it includes principles analogous to unconscionability as part of the understanding of the contract law. It is not establishment. It is not interpreting doctrinal disputes among churches with legal consequences -- it is resolving a contract dispute using the choice of law of the parties. End of line. This is no more establishment than is applying any choice of law provision. Like all choice of law provisions, however, the forum state will always be able to ignore particular bits of the foreign law that are against public policy in the forum state. that is a universal part of choice of law standards, howsoever varied choice of law rules themselves are. Steve On Jan 4, 2011, at 9:04 AM, hamilto...@aol.com wrote: > t least under existing Establishment Clause doctrine, contracts that require > religious interpretation (all contracts require interpretation) present > special problems not present in any other contract. I think Jones v. Wolf is > very helpful on these points. In that case, the Court says that neutral > principles of law can apply in disputes between believers over property, but > the Court warns religious organizations to enter into contracts that reflect > their intent using those neutral principles. If the courts must be arbiters > of belief, they may not resolve the property dispute. Same principles apply > here. By keeping courts out of the business of interpreting (i.e., > determining) religious doctrine, the ends you mention are not necessarily > disserved. Rather, commercial contractors are required to translate their > religious beliefs into neutral rules that are then incorporated into the > contract. The interpretation of doctrine is therefore done by the > individuals, not the courts, and the courts are enforcing neutral principles. > The use of "Sharia law" is a shorthand, not a necessity. The defense that > having to spell out the principles of Sharia law that the parties intend to > incorporate requires more words or paper is hardly persuasive. -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ "Our scientific power has outrun our spiritual power. We have guided missiles and misguided man." - Martin Luther King Jr., "Strength to Love", 1963
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