I agree with what Steven says here, but with some additions. First, generally foreign law is treated as a question of fact rather than a question of law. This means that the courts don't make their own independent judgment about the content of UK law or the like but are supposed to take evidence from experts etc. This means that the question of religious law must be a question of fact not of religious doctrine. To give a concrete example from Islamic law, it is a question of fact whether the Hanbali school of Islamic jurisprudence allows mut'a marriages (temporary marriages for a fixed term). It is NOT a question of fact (or at least a question of fact that a court can inquire into) whether mut'a marriage is truly Islamic. (Shias generally say yes; Sunnis generally say no). It seems to me that courts should be free to pass judgment on the first question but ought to be constitutionally prohibited from passing judgment on the second question. Whether a contract referencing Islamic law is asking the first sort of question or the second sort of question is a matter of interpretation that depends on the facts of the transaction. There are, however, good reasons for supposing that it is pretty unlikely that a commercial contract involving the application of Saudi law is asking the second sort of question rather than the first sort of question. ~~~~~~~~~~~~~~~~~~~~~~~~ Nathan B. Oman Associate Professor William & Mary Law School P.O. Box 8795 Williamsburg, VA 23187 (757) 221-3919
"I beseech you, in the bowels of Christ, think it possible you may be mistaken." -Oliver Cromwell On Tue, Jan 4, 2011 at 9:44 AM, Steven Jamar <stevenja...@gmail.com> wrote: > 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* > > > > > > > > _______________________________________________ > 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. >
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