Oman on Islamic Marriage Contracts and the Common Law

Nate Oman has posted a thoughtful piece, How to Judge Shari’a Contracts: A Guide to Islamic Marriage Agreements in American Courts.  The abstract follows.

This Article thus has two goals. The first is to show how the Muslim conception of marriage diverges from the Christian-influenced norms that dominate American law and society. Understanding this divergence provides a necessary background to Islamic mahr contracts. The second goal is to provide lawyers and judges with a doctrinal framework within our current law for analyzing these contracts and reaching sensible results in concrete cases.

The remainder of this Article will proceed as follows: Part II provides an introduction to Islamic law in general, and the law of marriage and divorce in particular, as well as some discussion of how these rules function in practice. Part III summarizes the way in which American courts have dealt with mahr contracts, showing how both husbands and wives seek to deploy arguments based on contract law, the law of premarital agreements, and constitutional law. Part IV provides a framework for analyzing mahr contracts. It argues that such contracts are best dealt with using traditional contract doctrines. Indeed, once the meaning of mahr contracts are properly understood, this Article argues that the common law of contracts is capable of dealing with potential problems presented by mahr contracts without any dramatic legal innovations.

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