{"title":"迷失在翻译中","authors":"Tobias Scheunchen","doi":"10.53484/jil.v2.scheunchen","DOIUrl":null,"url":null,"abstract":"As a reciprocal contract, Islamic marriage (nikāḥ) furnishes rights and obligations for both spouses. Usually split into two portions, the deferred part of the bridal dower (mahr muʾakhkhar)—a one-time financial liability that both spouses agree on during the wedding proceedings—is customarily received by the Muslim wife where her husband seeks to divorce her unilaterally (ṭalāq). However, US courts faced with construing mahr-agreements have been reluctant to enforce the financial promises stipulated in such agreements. Based on evidence gathered from case law, this article argues that a combination of several factors, most importantly, the judicial anxiety to get involved in religious doctrinal interpretation, as well as the misinformed analogizing of bridal dowers to prenuptial agreements, adversely affects Muslim women as courts increasingly adhere to the presumption that mahr-agreements are non-enforceable, squarely placing the burden of proof to the contrary on women. Moreover, women's financial hardship is often the immediate result of the court's refusal to uphold a husband's commitment to pay dower. As a critical feature of Islamic marriage, the agreed-on dower payment assures financial stability after divorce, predictability, and women's bargaining power throughout a marital relationship. Since 2013, state legislators' partially successful endeavors to bar state courts from applying Islamic law under comity function as a compounding factor that has created dire prospects for the future of mahr-agreements in the US, posing a substantial risk not only to the institution of Islamic marriage, but also the parties’ freedom of contract.","PeriodicalId":340573,"journal":{"name":"Journal of Islamic Law","volume":"18 1","pages":"0"},"PeriodicalIF":0.0000,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":"{\"title\":\"Lost in Translation\",\"authors\":\"Tobias Scheunchen\",\"doi\":\"10.53484/jil.v2.scheunchen\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"As a reciprocal contract, Islamic marriage (nikāḥ) furnishes rights and obligations for both spouses. Usually split into two portions, the deferred part of the bridal dower (mahr muʾakhkhar)—a one-time financial liability that both spouses agree on during the wedding proceedings—is customarily received by the Muslim wife where her husband seeks to divorce her unilaterally (ṭalāq). However, US courts faced with construing mahr-agreements have been reluctant to enforce the financial promises stipulated in such agreements. Based on evidence gathered from case law, this article argues that a combination of several factors, most importantly, the judicial anxiety to get involved in religious doctrinal interpretation, as well as the misinformed analogizing of bridal dowers to prenuptial agreements, adversely affects Muslim women as courts increasingly adhere to the presumption that mahr-agreements are non-enforceable, squarely placing the burden of proof to the contrary on women. Moreover, women's financial hardship is often the immediate result of the court's refusal to uphold a husband's commitment to pay dower. As a critical feature of Islamic marriage, the agreed-on dower payment assures financial stability after divorce, predictability, and women's bargaining power throughout a marital relationship. Since 2013, state legislators' partially successful endeavors to bar state courts from applying Islamic law under comity function as a compounding factor that has created dire prospects for the future of mahr-agreements in the US, posing a substantial risk not only to the institution of Islamic marriage, but also the parties’ freedom of contract.\",\"PeriodicalId\":340573,\"journal\":{\"name\":\"Journal of Islamic Law\",\"volume\":\"18 1\",\"pages\":\"0\"},\"PeriodicalIF\":0.0000,\"publicationDate\":\"1900-01-01\",\"publicationTypes\":\"Journal Article\",\"fieldsOfStudy\":null,\"isOpenAccess\":false,\"openAccessPdf\":\"\",\"citationCount\":\"0\",\"resultStr\":null,\"platform\":\"Semanticscholar\",\"paperid\":null,\"PeriodicalName\":\"Journal of Islamic Law\",\"FirstCategoryId\":\"1085\",\"ListUrlMain\":\"https://doi.org/10.53484/jil.v2.scheunchen\",\"RegionNum\":0,\"RegionCategory\":null,\"ArticlePicture\":[],\"TitleCN\":null,\"AbstractTextCN\":null,\"PMCID\":null,\"EPubDate\":\"\",\"PubModel\":\"\",\"JCR\":\"\",\"JCRName\":\"\",\"Score\":null,\"Total\":0}","platform":"Semanticscholar","paperid":null,"PeriodicalName":"Journal of Islamic Law","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.53484/jil.v2.scheunchen","RegionNum":0,"RegionCategory":null,"ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"","JCRName":"","Score":null,"Total":0}
引用次数: 0
摘要
作为一种互惠契约,伊斯兰婚姻(nikāḥ)为夫妻双方提供了权利和义务。通常分成两部分,新娘嫁妆的延期部分(mahr mu mu akhkhar)——一种夫妻双方在婚礼过程中同意的一次性经济责任——通常由穆斯林妻子在丈夫寻求单方面离婚时接受(ṭalāq)。然而,在解释金融协议时,美国法院一直不愿执行此类协议中规定的财务承诺。基于从判例法中收集的证据,本文认为,几个因素的结合,最重要的是,涉及宗教教义解释的司法焦虑,以及对婚前协议的错误类比,对穆斯林妇女产生了不利影响,因为法院越来越多地坚持认为婚前协议是不可执行的,直接将相反的举证责任放在了妇女身上。此外,妇女的经济困难往往是法院拒绝维持丈夫支付嫁妆的承诺的直接结果。作为伊斯兰婚姻的一个重要特征,商定的嫁妆确保了离婚后的经济稳定、可预测性和女性在整个婚姻关系中的议价能力。自2013年以来,州议员阻止州法院在礼让功能下适用伊斯兰法律的努力部分成功,这是一个复杂的因素,为美国婚姻协议的未来创造了可怕的前景,不仅对伊斯兰婚姻制度构成了重大风险,而且对双方的合同自由构成了重大风险。
As a reciprocal contract, Islamic marriage (nikāḥ) furnishes rights and obligations for both spouses. Usually split into two portions, the deferred part of the bridal dower (mahr muʾakhkhar)—a one-time financial liability that both spouses agree on during the wedding proceedings—is customarily received by the Muslim wife where her husband seeks to divorce her unilaterally (ṭalāq). However, US courts faced with construing mahr-agreements have been reluctant to enforce the financial promises stipulated in such agreements. Based on evidence gathered from case law, this article argues that a combination of several factors, most importantly, the judicial anxiety to get involved in religious doctrinal interpretation, as well as the misinformed analogizing of bridal dowers to prenuptial agreements, adversely affects Muslim women as courts increasingly adhere to the presumption that mahr-agreements are non-enforceable, squarely placing the burden of proof to the contrary on women. Moreover, women's financial hardship is often the immediate result of the court's refusal to uphold a husband's commitment to pay dower. As a critical feature of Islamic marriage, the agreed-on dower payment assures financial stability after divorce, predictability, and women's bargaining power throughout a marital relationship. Since 2013, state legislators' partially successful endeavors to bar state courts from applying Islamic law under comity function as a compounding factor that has created dire prospects for the future of mahr-agreements in the US, posing a substantial risk not only to the institution of Islamic marriage, but also the parties’ freedom of contract.