Suffolk Transnational Law Review
islamic law, american courts, Federal Rule 44.1, foreign tort law
Nonetheless, the common law judge remains constrained by his own system of adjudication. Not only does he apply the law, he also states it. Yet, he becomes hesitant when he is asked to apply an asserted principle of Islamic law unless he is certain that it truly represents the accepted view and is not some imaginative interpretation. Thus, in interpreting Islamic law, the American judge is more reluctant than a qadi would be in choosing between opposing casuistical arguments in the same kind of case. Ironically, the American judge is also far more restrained in a case involving Islamic law than he would be in articulating American law subject to differing interpretations. In considering these factors together, viz., the new choice of law rules more favorable to the law of the forum, the less likelihood of recovery under Islamic law, the differing natures of the two legal systems, and the innate caution of the American judge in articulating foreign law, it is fair to conclude that Islamic law will, for the most part, continue to be an entity inaccessible to American courts.
David F. Forte, Islamic Law in American Courts, 7 Suffolk Transnational Law Review 1 (1983)