Document Type
Article
Publication
University of Colorado Law Review
Year
2023
Citation Information
Rabea N. Benhalim, Oppression in American, Islamic, and Jewish Private Law, 94 U. Colo. L. Rev. 149 (2023), available at https://scholar.law.colorado.edu/faculty-articles/1588.
Abstract
American, Islamic, and Jewish law all limit the enforcement of private law agreements incases of oppression and exploitation. But each system uses a different justification. The common thread among the three legal systems is the opposition from jurists to enforce contracts with a fundamental aspect of oppression. The reasoning for preventing oppression within the law is distinct to each legal system. The American legal system roots the justification in preserving free will and ensuring actual consent to contract. Islamic l provides justifications based on the divine vision for an equitable and just society articulated in the Quran. Jewish law argues for such protections based on the halachic duties of caret hat everyone is obligated to uphold toward their fellow humans.
While each system seeks to protect vulnerable parties from oppression and exploitation, they all have weaknesses. This Article, for the first time, puts these legal traditions into conversation with each other to identify how the strengths of each system can create more robust protections within the other legal traditions. Specifically, this Article identifies the development of economic duress in American law, the subjective standard of Islamic law, and the societal duties of Jewish law as providing rich elements of how legal systems can develop to ensure private law is not used as a means of oppression. The Article concludes by applying each doctrine to demonstrate the way in which the "juristic chemistry" of comparative legal application can lead to a more just society for all.
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