1 At some points in history, and among some classes, the dower could represent more than a husband's total available wealth. See discussions by the classical Jurists on the issues of receiving loans for dower payments in the classic Shafi'I text by Naqib Misri, Reliance of the Traveller (trans. Shaykh Nuh Keller, 1997) also; The Distinguished Jurist's Primer: Volume II 71–120 (trans. Imran Ahsan Kahn Nyazee, 1996,) also; Chapters on Marriage and Divorce; Responses of Ibn Hanbal and Ibn Rahwayh 27–37 (trans. Susan A. Spectorsky 1993).Google Scholar

2 While it is relatively unimportant for the purposes of this paper, it should be noted that the separate property nature of the dower system creates potential incentive for women to marry and divorce men as frequently as possible in order to enrich themselves. See In re Marriage of Noghrey, 169 Cal. App. 3d 326, 215 Cal. Rptr. 153 (1985)Google Scholar

3 Alami, Dawoud S. El, The Marriage Contract in Islamic Law at 101 (1992); See also, David Pearl and Werner Menski, Muslim Family Law at 176 (1998)Google Scholar

4 Obviously, these traditions provided benefits to women by allowing them to garner specific compensation for activities that have traditionally been financially unrewarded and costly for women in both the Muslim world and in the West. As pointed out by a number of scholars, the opportunity, time and financial sacrifices made by women who engaged in activities such as household work, child-rearing and procreation were traditionally unrewarded at divorce in the American Common law system. This occurred despite the fact that these sacrifices would be expected to generate significant financial and economic gains for husbands by allowing them to specialize further in their own market-based skills. See Lloyd Cohen, I Gave Him the Best Years of My Life, 16 J. Legal Stud. 267, 278 (1987); Mincer & Polachek, Family Investments in Human Capital: Earnings of Women, Economics of the Family (T. Shultz ed. 1974); Gary Becker, A Treatise on the Family (1981).Google Scholar

5 “Permanence” is relative though, as he can remarry her, but only if she's been married and divorced by someone else in the meantime.Google Scholar

6 It should be noted that there are a number of different forms of divorce of which “talaq” is just one. Additionally, there is an “instant” form of divorce as well, called “zihar”, but that's generally frowned upon in the Quran. Also, in both practice and in the Quran, women can divorce men (generally by disgorging the value of their dower). However, these other forms of divorce are extremely complicated and relatively irrelevant to the specific issues of this paper.Google Scholar

7 Examples include: predicting responses to changes in price, voting behavior, criminal activity etc. See, Richard A. Posner, Rational Choice, Behavioral Economics, and the Law, 50 Stanford L. Rev. 1551 (1998).Google Scholar

8 Coase, R.H., The Problem of Social Cost, 3 J.L. & Econ. 1 (1960)Google Scholar

9 17 Law & Hum. Behav. 439–50 (1993).Google Scholar

10 Id.Google Scholar

11 See, e.g., Jolls, Christine, Behavioral Economcis Analysis of Redistributive Legal Rules, 51 Van. L. Rev. 1653, 1659 & n.22 (1998) (almost two hundred studies support the existence of overconfidence bias in a variety of contexts).Google Scholar

12 Korobkin, Russell B. and Ulen, Thomas S., Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics, 88 CA L. Rev. 1091 (2000).Google Scholar

13 See, Flyvbjerg, and Bent, , Delusions of Success: Comment on Dan Lovallo and Daniel Kahneman, Harvard Business Review 121–122 (December Issue, 2003,) also; Rosenthal and Jacobson, Teacher's Expectancies: Determinates of Pupils IQ gains, 19 Psych. Rep. 115–118 (1966).Google Scholar

14 American Law Institute, Reporter's Note to Comment a, Principles of the Law of Family Dissolution: Analysis and Recommendations 4.12.Google Scholar

15 There are a number of possible reasons to explain this ignorance towards the nature of the default rules. Under traditional economics, this behavior would be attributed to the presence of high information costs (i.e. the cost of discovering the nature of these, frequently complex, legal rules for most couples) and a rational choice amongst most individuals to avoid them. Some behavioral economics and law scholars have proposed that this ignorance is yet another example of the overconfidence bias and that individuals do not learn about the rules, as pointed out by Ira Ellman; “because they do not expect to divorce.” However, a third possibility may be that individuals do not learn about the default rules out of a rational desire to establish trust in their relationship; see footnote 19 infra.Google Scholar

16 Lynn A. Stout and Margaret M. Blair, Trust, Trustworthiness, and the Behavioral Foundations of Corporate Law, 149 Univ. Penn. L. Rev. 1735 (2001).Google Scholar

17 Id.Google Scholar

18 Camerer, Colin et al, Getting to Know You: Reputation and Trust in a Two-Party Economic Exchange, 308 Science Magazine 78 (2005,) also; Eric A. Posner, Symbols, Signals, and Social Norms in Politics and the Law, 27 J. Legal Stud. 765, 768–795 (1998).Google Scholar

19 Zak, Paul J., Kurzban, Robert, and Matzner, William T., The Neurobiology of Trust, 1032 Ann. N.Y. Acad. Sci. 224–227 (2004).Google Scholar

20 Stout, Lynn A. and Blair, Margaret M., Trust, Trustworthiness, and the Behavioral Foundations of Corporate Law, 149 Univ. Penn. L. Rev. 1735 (2001).Google Scholar

21 Id. (This hypothetical first appeared in Prof. Stout's paper on close corporations, but in a slightly different form.)Google Scholar

22 Moreover, trustworthy individuals may also even actively avoid learning about the default rules to further signal the existence of a trustworthy character to potential partners. This is noteworthy since it may help to explain Baker and Emery's datum that most individuals are unlikely to be aware of the nature or content of the default rules regarding marriage. If two individuals wished to signal to each other the existence of a trustworthy character, they may attempt to avoid learning about the default rules to demonstrate their willingness to place themselves in a relative position of vulnerability. This suggests that the default rules surrounding marriage would be even more difficult for trustworthy individuals to contract around since even being aware of these rules would deprive them of a possible signaling strategy. This is separate from the issue of the overconfidence bias; individuals may very well realize that there is a good chance that they will divorce, but they simply may not choose to engage in the superficially rational behavior of learning about the default rules as to do so would signal the existence of an untrustworthy character and potentially deprive them of a trustworthy mate. This idea, that individuals may rationally place themselves in a position of vulnerability as a means of establishing trust, is extremely similar to Carl Bergstrom's theory of “time-wasting” seen in the mating behavior amongst birds, see, e.g., Carl Bergstrom, et. al., Building Trust by Wasting Time, Working Paper (2007).Google Scholar

23 Stout, Lynn A. and Blair, Margaret M., Trust, Trustworthiness, and the Behavioral Foundations of Corporate Law, 149 Univ. Penn. L. Rev. 1735 (2001).Google Scholar

24 Id.Google Scholar

25 Id.Google Scholar

26 Id.Google Scholar

27 Singer, Jana, The Privatization of Family Law, 1443 Wis. L. Rev. 1557 (1992).Google Scholar

28 See Borelli v. Brusseau, 12 Cal. App. 4th 647, 16 Cal. Rptr. 2d (1993). (Husband was gravely ill and wished to avoid going to a nursing home. He and his wife agreed that, in exchange for 24-hour nursing care, he would leave her a specified property at his death. The court of appeal found that the wife had a pre-existing duty to care for the husband and that a “spouse is not entitled to compensation for support, aside from rights to community property and the like that arise from the marital relation itself).Google Scholar

29 Id.Google Scholar

30 Stout, Lynn A. and Blair, Margaret M., Trust, Trustworthiness, and the Behavioral Foundations of Corporate Law, 149 Univ. Penn. L. Rev. 1735 (2001).Google Scholar

31 Posner, Richard A., Rational Choice, Behavioral Economics, and the Law, 50 Stanford L. Rev. 1551 (1998).Google Scholar

32 Though, as previously discussed, failure to take the trustworthy-untrustworthy aspect of human nature into the rationality assumption may lead to incentives benefiting untrustworthy individuals.Google Scholar

33 Pearl, David and Menski, Werner, Muslim Family Law at 176 (1998).Google Scholar

34 Additional evidence that the IMDS is based in a form of RCT can be ascertained from other areas of Islamic jurisprudence that indicate a heavy influence of RCT in the development of Islamic law in general. General canons of Islamic Law dictate that the majority of rules in Islamic Law are default rules, not immutable ones. And, even then, the number of default rules should be heavily limited in favor of individual contractual autonomy. This idea was furthered during the classical period when most of the classical jurists were in a struggle with the Ummayid dynasty. For instance, the authoritative Shafi'I text “Reliance of the Traveler” contains particularly scathing passages about the authority of central government (particularly in regards to taxes). Even the Quran initially refers to itself as an “Umma,” or “Guidebook,” suggesting that the majority of its text should be viewed as default rules and not immutable ones. Moreover, as pointed out by Islamic law scholar, Ali Khan, the constitution at Medina (the first state governed by Mohammed), was not based in a concept of “sovereignty” surrounding an individual King, or a natural law concept involving the “general will” of the people, but was a pure social contract between the different groups of people living there. This trend was continued even past the classical period when, despite the emergence of monarchy as the dominant form of governance in the Muslim world, the monarchs would still begin every reign with an issuance of a formal contract signed by the different tribal leaders in the state. In short, the ability of individuals to contract with one another was not just seen by early Muslims as being an important component of an orderly society, it was seen as the basis for the state itself. This ideology is heavily reflected in the IMDS.Google Scholar

35 While precise details regarding marriage and divorce during the Early and Classical Islamic period are difficult to determine precisely, it is probably telling that, of the Prophet's 11 or 13 wives, only A'isha had not been married previously. See also Leila Ahmed, Women and Gender in Islam (1992) (citing the extremely high frequency of remarriage and divorce for women in Mamluk society in addition to the presence of a relatively high-degree of female affluence compared to other societies at the time). Additionally, contemporary evidence also seems to indicate a high rate of divorce in many Muslim societies – one study of the divorce rate in Djbouti in the 1960's found divorces to be 50% as common as marriages. See Abdullahi A. An-Na'im, Islamic Family Law in a Changing World 70–73 (1992).Google Scholar

36 While the IMDS seeks to encourage parties to draft more complete contracts by refusing to provide a set of clear default rules –some SOF do so more than others. The subsequent lack of clear default rules would mean that parties would take much longer to negotiate and form a marital contract, since they would be unable to rely on an automatic list of defaults. Empirical evidence demonstrates that this may be the case. Saudi Arabia—which relies on the Hanbali system where the parties are given the most amount of autonomy in drafting their contracts—has the fourth lowest marriage rate in the world (“The Pocket World in Figures,” The Economist Magazine, 2006 edition). Though admittedly, it is likely that this is only one of several contributing factors. For instance, Saudi law also prohibits women from condition-by-condition negotiation of their marital contract (i.e. the Saudi Arabian marriage-contract is a “take-it-or-leave-it” contract of adhesion). This would also contribute to Saudi Arabia's low marriage rates since it would make contractual negotiation much more difficult than it would be otherwise. Additionally, the relative inability of most Saudi women to pursue a divorce (Saudi Arabia is one of the more difficult countries for women to obtain a divorce in) may also play a role in Saudi Arabia's low marriage rates as women would be less inclined to leap into a marriage that they would be unable to escape if it turned out poorly. Other obstacles to marriage, such as extensive veiling (covering a woman from head to toe) and seclusion practices, may also make it a great deal more difficult for women to pursue potential mates and vice versa. Obviously, all of these factors may contribute to low marriage rates in varying degrees. However, it seems probable that a lack of default rules regarding marriage in the Hanbali system itself may also play a partial role.Google Scholar

37 Riegg, Ryan M., Clitoridectomy and the Economics of Islamic Marriage and Divorce Law, UCLA Journal of Islamic and Near Eastern Law (2007). (The frequency and severity of customs used against women in certain Muslim societies—including; clitorectomies, seclusion practices, veiling and consanguineous marriage—strongly correlates with the degree of economic risk men face under the IMDS and the influence of the IMDS in that society, suggesting that men use these customs in reaction to their perceived risk of exploitation by women.)Google Scholar

38 Blumberg, Rachel Ganz, Community Property in California 26–43 (4^th Ed., 2003).Google Scholar