Abstract
The dominant paradigms for thinking about the relationship between law and religion in American jurisprudence are drawn from the Christian tradition. Increasingly, however, America is home to Muslim immigrants and citizens. As they bring their religious practices to American courts, judges will struggle to understand their meaning and police their possible abuse. Islamic mahr contracts present perhaps the most common issue of Islamic law and practice with which American courts have struggled. Islamic marriage contracts should be understood on their own terms, rather than as an idiosyncratic version of the more familiar premarital agreement. The move to conceptualize mahr contracts as premarital agreements ultimately rests on a set of analogies to norms about marriage and contract that have their origins in a very different religious tradition, namely Christianity. Treating mahr contracts as premarital agreements is not simply a misunderstanding; it can also have perverse results. Most seriously, courts may use the contract to limit a spouse’s claims to equitable distribution of marital assets when those rights have not been bargained away. Less seriously, parties can opportunistically invoke the additional formation requirements for premarital contracts, despite the fact that the concerns that motivate such additional requirements are not present in the case of Islamic marriage contracts. When courts sensitively analyze mahr contracts under current doctrine, on the other hand, courts can reach sensible results that treat Islamic law—and by extension Muslim citizens—with respect, vindicate the contractual intentions of the parties, and avoid overreaching and abuse.
Recommended Citation
Oman, Nathan B.
(2011)
"How to Judge Shari’a Contracts:
A Guide to Islamic Marriage Agreements
in American Courts,"
Utah Law Review: Vol. 2011:
No.
1, Article 11.
Available at:
https://dc.law.utah.edu/ulr/vol2011/iss1/11