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Law and Society Association: Islamic Law and Society in Contemporary and Hybrid Legal Contexts

May 30, 2019 @ 10:00 - 11:35

This panel brings together a number of papers that examine the legal, political, and social dynamics surrounding the invocation or engagement of the Islamic legal tradition in the contemporary world. Papers explore contexts ranging from Iraqi Kurdistan, to Jordan, to England and the United States.

Session Organizer
Steven Boutcher, UMass Amherst

Nurfadzilah Yahaya, National University of Singapore

Nurfadzilah Yahaya, National University of Singapore


Men’s Speech Gone Awry: Husbands, Jurists, and Fatwas on Divorce in Iraqi Kurdistan
J. Andrew Bush, New York University Abu Dhabi

Scholars have shown how highlighting the voices and experiences of women engaging shari’a (“Islamic law”) sheds crucial light on how shari’a constructs gender categories in different social and historical settings. This paper argues that more detailed attention to the specifically gendered ways that men address one another can further clarify the workings of gender and power in shari’a. Based on observations of hundreds of consultations conducted at a Fatwa Council in the Kurdistan Region of Iraq (KRI) between 2014 and 2018, my larger research project links microscopic attention to the details of men’s speech at the Fatwa Council to the wider context of legal pluralism in KRI stretching across shari’a, federal civil codes and civil provisions local to the Kurdistan region. This paper focuses on the conversation between husbands and male jurists that occur when husbands have carelessly pronounced a divorce and seek to restore their marriage. It analyzes the appearance, recognition, and adjudication of moral shortcomings in men’s speech. In doing so, it shows how distinctively gendered notions of dignity, honor, and authority intertwine in the effort to restore men’s authority through legal processes that sit in precarious but productive relation to secular civil courts.

Violence Against Women in the Name of Honor: The Case of Jordan
Ghufran Alqahtani, Washington College of Law-American University

Honor crimes are forms of gendered violence that occur against women under the hand of the family, in which the “family home” become a common place for violence and murder. It mainly involves a male relative that kills a female member within the family to protect a notion that is called “honor,” or the protection of sharaf because of ird violation that is the responsibility of females only. “Purification of shame,” “restoring dignity,” “preserving family honor,” all are used inside the courtrooms to justify such murder that takes the lives of almost twenty women annually in Jordan. This particular form of gender-based violence against women is the product of the existing laws within the Jordanian Penal Code that entitle and encourage any male the right to kill his female relative in front of their family in a defense of sharaf and receive a reduced punishment. Articles 340, 98, and 99 of the Jordanian Penal Code altogether reflect the failure of the legal system in Jordan in protecting women from honor crimes. Even when the law recently witnessed minor changes, the male-based right to protect family honor through the use of lethal violence against women survived scrutiny. The purpose of this paper is to highlight the legal injustice that is directed against women in Jordan. Highlighting the influence of legal pluralism and patriarchy, this study argues that this form of defense in its contemporary setting that is used solely to murder women is highly supported by tribal customs and religion making it an integral part of the modern legal system in Jordan.

Human Dignity and the Problem of a Universal Abolition of Slavery in Islamic Law
Havva Guney-Rubenacker, Harvard Law School

It has long been assumed that Islamic law tacitly permitted slavery. Mainstream Muslim jurists today continue to argue that slavery cannot be universally abolished in Islamic law, but only temporarily suspended due to changing circumstances. A coherent reformist Islamic theory of abolition of slavery is yet to develop. By combining both an external examination of the genealogy of the classical Islamic theory of legitimization of slavery in its contemporary Greek/Roman world and also its internal examination based on primary Islamic legal sources, namely the Qur’an and the Sunna (the actual practice of the Prophet), and the Qur’anic notion of inherent human dignity as discussed by classical Islamic jurist themselves, this paper challenges, for the first time, the alleged Islamic legitimacy of slavery from its very roots. It also shows how the legal and moral dilemma around the question of the legitimacy of slavery faced by today’s Muslim jurists is similar to the one faced by American jurists around the landmark Supreme Court cases Plessy v. Ferguson (1896) and Brown v. Board of Education (1954) on the question of whether racial segregation in public schools is inherently unequal. This comparative analysis shows how seemingly different legal systems in fact experience similar core legal and moral challenges around major legal issues such as slavery, discrimination and human dignity.

Foreign beliefs: Political discourse and the role of law in the exclusion of religious minorities in England
Catherine Warrick, Villanova University

The status of religious minorities in England has shifted over a span of centuries from formal discrimination and exclusion to legal equality today. This shift is not merely a function of social attitudes, but of political decisions by the state; the law has been a prominent tool for defining, enforcing, and later remedying the exclusion of religious minorities. The civil disabilities of Catholics and Jews, for example, were rooted in the fear that these minorities were a source of risk to society through their presumed loyalty to foreign interests. Religious foreignness (of identity, of belief, of the locus of religious authority) was a bar to civil Englishness, either in part or fully. The expansion of political equality and civil liberties protections gradually ended these legal disabilities and achieved the full citizenship of minorities, at least as a matter of equality before the law. However, concern over the “foreignness” of religious minorities is again highly visible in public discourse, expressed as fears that Muslims in Britain are a danger to both national security and national identity. Both right-wing activists and mainstream media direct public attention to shari’a, grooming gangs, and forced marriage, portraying them as dangers of Islam in the United Kingdom. This paper investigates the relationship between public discourse and law in three aspects. First, I demonstrate that the current public discourse on Britain’s Muslim minority is strikingly similar to earlier debates about the nationality of Jews. Second, I examine the extent to which current political discourse about Muslims is cast in terms of claims about the law and national identity. Finally I argue that this framing has identifiable effects on public opinion and on parliamentary and governmental action. This trend suggests that, while religious liberty seems a settled question, minority inclusion could still be eroded via claims about threats to national identity and security.

The Case for American Muslim Arbitration
Rabea Benhalim, University of Wisconsin Law School

This Article will advocate for the creation of Muslim arbitral tribunals in the United States. These tribunals would better meet the needs of American Muslims, who currently bring their religious disputes to informal forums that lack transparency. Particularly problematic, these existing forums often apply legal precedent developed in majority-Muslim nations, without taking into consideration the changed circumstances of Muslim living as minorities in the United States. These interpretations of Islamic law can have especially negative impacts on women. American Muslim arbitration tribunals offer the potential to correct these inadequacies. Furthermore, a new arbitral system could better meet the needs of sophisticated parties, like commercial entities, by supplying arbitrators able to navigate the intricacies of both Islamic and American law. To be sure, a new arbitral system would not be a perfect solution. Like other forms of religious arbitration, and like commercial arbitration, the new system would provide benefits, but also create potential drawbacks. The benefits would include promoting freedom of contract and subject matter specialization and reducing the burden on civil courts. The potential drawbacks include imbalances of power between contracting parties, adhesion contracts, and disenfranchisement of vulnerable populations. Taking these benefits and concerns into consideration, American Muslim arbitration needs to be structured with various internal safeguards to protect vulnerable populations and ensure the decision to arbitrate is voluntary, especially in family law cases. The Article will makes one further claim: Muslim arbitration in the United States would provide a positive influence on the development of Islamic law. By moderating precedents developed in other, more unequal cultural settings, the new tribunals could aid the development of 21st century Islamic law.


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