Bargaining in the Shadow of God’s Law

For those who care about such things, I have a new paper up on SSRN entitled “Bargaining in the Shadow of God’s Law: Islamic Mahr Contracts and the Perils of Legal Specialization.” This one looks at the treatment of Islamic marriage contracts by American courts, and was written for Wake Forrest’s recent symposium on context and contract law. Enjoy! (The abstract is after the jump)

For a century, the general law of contracts has lost ground to specialized, transaction-specific bodies of law such as employment or labor law. Contracts scholars have generally lauded this development as an improvement over the formalistic rules of classical contract doctrine. This Essay takes a more ambivalent stance, arguing that legal specialization creates two dangers. First, specialized law necessarily rests on strong assumptions about how particular transactions unfold. The script implicit in the law, however, can encourage judges to misinterpret transactions that differ from that script. Second, when transactions differ from the implied narrative assumed by specialized law, the rules created by that law to deal with particular transactional forms may cease to serve a useful function, creating the danger of random, unjustified, or needlessly complex resolution of disputes. Both problems are on display in the application premarital agreement law to Islamic marriage contracts, which are increasing common in American courts. In this case, the law of premarital agreements is in part responsible for the courts’ consistent mischaracterization of Islamic marriage contracts as antenuptial agreements, which has potentially perverse consequences. Furthermore, because that specialized rules for premarital agreements were created for a different context, they allow parties to Islamic marriage contracts to escape liability where we have no reason to suppose that the contracts are otherwise suspect. Ironically, the much maligned general law of contracts provides better tools for policing abuse in such contracts than does the supposedly more nuanced law of premarital agreements.

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