The application of Islamic law in the courts of the United States

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2020-06-29

Authors

Rooney, Lee Owen

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Abstract

The issue of how U.S. courts should apply Islamic law is complicated by the various meanings that can be ascribed to the term Islamic law. Generally, it refers to any law that has a foundation in the Islamic religion, but to be more precise, it usually refers to the national laws that apply in any of the Muslim-majority countries. As there are many such countries, there are many different versions of Islamic law. Additionally, it can refer to religious law that governs the relationship between Muslims and God. When a U.S. court is confronted with an issue that requires the application of Islamic law, the court first needs to determine what type of Islamic law is before it. When the Islamic law is that of a nation-state, the court should use the method as described in Federal Rules of Civil Procedure 44.1 to determine the relevant substantive law of the foreign law to be applied and then do so. Even though such a national law is founded on religious precepts, the fact that it is a foreign law allows it to be applied in U.S. courts. If on the other hand, Islamic law refers to religious law that parties have voluntarily agreed to be bound by, then the courts need to approach it similarly to other religious law. The court would need to apply the religious law to the extent that it can do so using the neutral principles of law that do not depend upon making determinations as to doctrinal issues. This report deals with the application of Islamic law while examining contract and tort cases meeting choice-of-law rules as well as Islamic marriage contracts. The use of Islamic law in this country’s forums is inconsistent demonstrating an uneasiness to engage in such cases by the nation’s factfinders. This variability should stabilize as increasing numbers of cases involving Islamic law are heard

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