2019

Jan 2019
Jan 2019

New Paper by Will Smiley :: State Legislation Against Islamic Law (Forthcoming)  In the Program in Islamic Law’s first Occasional Paper, Will Smiley of the University of New Hampshire takes a close look at state legislative bans on Islamic law, or sharī ͑a , as foreign law. His paper identifies and critiques the range of state bans on Islamic law by reviewing the cases presented by the Center for Security Policy (CSP)’s report on them. In a close analysis of the case law, Smiley challenges the CSP claims that U.S. courts apply foreign law, rather than—as the analysis shows—ordinary state and federal laws, state public policy, and principles of comity when in accord with the latter two. "In none of these cases would the various forms of proposed legislation have been likely to alter the result," writes Smiley. He concludes then that the bans are both ineffective, unnecessary, and possibly in violation of the U.S. constitution, as the Tenth Circuit Court of Appeals concluded with the one state ban to mention Islamic law explicitly in the Awad v. Ziriax case in 2012. He further argues that, even if the bans are not unconstitutionally discriminatory in their effect, they nevertheless fail to achieve their claimed purpose. For the full article, read the Occasional Paper —also to be published as the lead article for our new journal, forthcoming in Spring 2019. Image credit: Southern Poverty Law Center

 

CASE :: Awad v. Ziriax (10th Cir. 2012): Federal Court Enjoins State Ban on “Sharīʿa Law” In the single case of explicit state bans to go up to a federal appeals court, Petitioner Muneer Awad sued defendant members of the Oklahoma Election Board. He sought to prevent certification of the election results of a proposed state constitutional amendment that would have prevented Oklahoma state courts from considering "Sharia Law." The Petitioner argued that the ban would have violated his federal constitutional First Amendment rights and sought an injunction against it. The Tenth Circuit Court of Appeals agreed, stating that Awad "will suffer such a condemnation injury [government condemnation of one’s religion] in violation of constitutional rights." It therefore determined that the Petitioner asserted the kind of direct injury-in-fact necessary to create First Amendment Establishment Clause standing, and that he had a likelihood of success on the merits of having the ban declared unconstitutional. It therefore confirmed the District Court’s injunction, making it permanent. Read more. Image credit: United States Court of Appeals for the Tenth Circuit/Wikimedia

 

PODCAST :: Islam: An American Religion : Interview with Nadia MarzoukiIn a new podcast series, the Program in Islamic law features Nadia Marzouki of CNRS Paris, discussing her book Islam: An American Religion(2013). SHARIAsource Deputy Editor Sharon Taiinterviewed her about the social-legal implications of Islamic law in the United States. This podcast is the first in a series of conversations that we will have and share with scholars in Islamic legal studies, writ large. Listen to the interview and read the transcript. Image credit: Columbia University Press

 

 

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Feb 2019
Feb 2019

Eid al-Ad ḥ a -- The Islamic Holiday of Sacrifice: A Temporal Difficulty? Student editor Sheza Alqera Atiq analyzes the EU Court of Justice decision on a preliminary ruling first issued by a court in Belgium in 2017 governing the regulation of animal slaughter, of the type in which Muslims engage once a year. As a part of the religious ritual practices surrounding the Ḥajj pilgrimage and to commemorate Abraham’s sacrifice of a ram in lieu of his son, each Muslim household sacrifices an animal that they then give part of in alms. The regulation essentially barred the “temporary slaughterhouses” that Muslims set up for this purpose and which previously had been approved by the Belgian government until 2015, and required all animal slaughter to take place in approved slaughterhouses. The Atiq explains that Eid, “with its accompanying sacrificial rites,” has “raised questions as to the neutrality of Regulation 1099/2009, and whether it constitutes an infringement upon religious freedom.” On her analysis of the Advocate-General’s remarks, Atiq writes "the preliminary ruling was not neutral” as claimed. They justified the decision on grounds that “temporal difficulties,” meaning that the yearly surges in demand for animal slaughter created shortages in the capacity of existing slaughterhouses, and raised questions about who should bear the increased costs. In Atiq’s view, the distinction between ‘temporal difficulties’ and regular practices “seems to be a false dichotomy; what appears to be a temporal problem of temporary slaughterhouses for the government arising from the specific occasion of ‘īd ul-aḍḥa still remains an essential religious feature for Muslims in Belgium, and across the EU .. and disproportionately discriminates against Muslims” The Muslim communities objected, leading to the EU Court of Justice review. Atiq reviewed the arguments on both sides, with an aim of offering alternative solutions to the problem. Read the full commentary. Image credit: Arab News

 

CASE ::  Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others, C-426/16 (Court of Justice of the European Union, 2017) This EU Court of Justice ruling, delivered by Advocate General Wahl on 30 November 2017, addresses the controversy surrounding the Eid al-Adḥā ritual sacrifice case initially brought in Belgium. The AG heard the case upon a request for a preliminary ruling from Nederlandstalige rechtbank van eerste aanleg Brussel. The decision addresses Regulation (EC) No 1099/2009’s ban on slaughter in temporary slaughterhouses, which raised questions as to the neutrality of the Regulation, and whether it infringes on Muslims’ religious freedom. Read more . Image credit: United States Court of Appeals for the Tenth Circuit/Wikimedia

 

EU PROFILE :: The Court of Justice of the European Union The SHARIAsource Portal provides context for the status of Islamic law for every country and major region in the world, including the EU. For background on the legal and governmental structure, relevant cases, and constitutions of member nations, see the set of cases from the Court of Justice of the European Union, as well as the various constitutions and laws of EU member nations, such as Belgium, where the case of Eid al- Adḥā first arose . Image credit: Wikipedia

 

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Mar 2019
Mar 2019

SPECIAL COLLECTION :: Muftī Opinions on Family Law from 20th-Century Thrace (Komotini/Gumulcine)The SHARIAsource Portal collects and houses primary sources on Islamic law from all over the world. One such collection that we recently published on the Portal is a set of muftī fatwā s   from 20th-century Thrace. Ilker Tsavousoglou,  scholar of Islamic law in the region, collected this set of ten colorful documents that shed light on various aspects of family law in the religiously semi-autonomous region of Thrace, Greece (in Komotini/Gumulcine). Written in parallel Greek-Ottoman Turkish texts between 1946 and 1992, the documents are a peek into the daily operation of Islamic law in the region. Student editor Cem Tecimer  has provided summaries for each of the documents from the Ottoman Turkish of the opinions—which range from resolution of disputes over inheritance distribution , division of property between a woman's son and daughter , and Christian adoption of a child whose parents are Muslim. The documents also include notices granting  power of attorney , commenting on the position of  mu'adhdhin,and the duties of khatīb (who delivers Friday sermons). Read the opinions and their summaries here. Image credit: SHARIAsource Portal

 

CASE:: Molla Sali v. Greece (ECHR 2018): The European Court of Human Rights Rules Against Forcing Greek Muslim Minority to Follow Islamic Law In December 2018, the European Court of Human Rights (ECHR) considered the question whether Muslim citizens who lived in the Greek province of Thrace could be required to submit to the jurisdiction of Islamic law, as detailed by local experts called muftīs. In Greek law, Islamic law usually governs matters of family law—such as marriage, divorce, and inheritance—in cases involving the Muslims in Thrace. In this case, the ECHR examined a Muslim man's will, which left all his property to his wife to the exclusion of his sisters, who challenged the testator on the grounds that muftīs’ authority in the region had been improperly circumvented. The Court determined that Muslims could not be forced to follow that authority. Read the full summary by Marzieh Tofighi Darian.  Image credit: Wikipedia

 

SOURCES :: Islamic Law in GreeceSHARIAsource’s Special Collections aim to facilitate research for Islamic law and comparative law scholars. In addition to primary sources that contextualize Islamic law's contemporary history in Thrace, the Greek region from which Molla Sali v. Greece emerged, the Portal provides sources on the larger context of the Greek legal system. See the Greece Country Profile (in the Country Profiles Special Collection) to see  proposed legislation " designed to prioritize Greek civil law over religious (namely Islamic) family law," the Greek constitution , and the fuller profile of Greece and its legal system. Image credit: Wikipedia

 

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Apr 2019
Apr 2019

Sports Law Conference Keynote Event :: Fireside Chat with Mahmoud Abdul-Rauf on Civil Rights, Social Justice, and the First Amendment  As the keynote address to the 2019 Harvard Sports Law Symposium on Apr 1, former NBA player and civil rights activist Mahmoud Abdul-Rauf spoke about his childhood, basketball career and experience advocating for social justice in the United States. Professor Intisar Rabb initiated the conversation in a “fireside chat” with questions about Abdul-Rauf’s inspiration for playing basketball, desire to become a legend in the league, and 1996 decision to not stand for the national anthem. This had been his way of bringing attention to hidden injustice, which he felt was his obligation, because “you can’t be for God and oppression.” Full details. Image credit: SHARIAsource

 

Spotlight on Andalusian Legal History :: The 11th-Century Toledan Heresy Trial and the Right of the Accused to Challenge Witnesses Maribel Fierro  examines 11th-century  reports   of a  case in which "a Toledan man named Ibn Ḥātim was accused of being a heretic by sixty witnesses on the initiative of a fellow Toledan called Ibn Labīd al-Murābiṭ."  At the time, Muslim-ruled  petty  kingdoms (mulūk al-ṭawāʼif )  were still reverberating from the shock of Barbastro's fall into Christian hands , and felt anxious about  a Christians’ military threat.   When the accusation came before him, the judge consulted with local jurists and eventually sentenced  the accused to death —but not without ensuring some legal process before the sentence could be carried out. The case proceeded as follows: The judge “ granted the accused the right to challenge the witnesses ( iʿdhār ). Ibn Ḥātim escaped from Toledo and found refuge in the neighboring kingdom of Badajoz. Ibn Labīd went after him, carrying a copy of the judge’s sentence ( tasjīl ) along with the legal opinions of a number of non-Toledan jurists. In Badajoz, the ruler withdrew his support from Ibn Ḥātim, who fled again, this time to Cordoba. While in Cordoba, the 'moral' police arrested Ibn Ḥātim, and the judge imprisoned him, giving him two months to prove his innocence. Unable to do so, Ibn Ḥātim was crucified alive." Fierro supposes  that the arguments against Ibn Ḥātim — a man whose reputation was once so excellent  that  he himself  was asked to testify about the reliability of  other  witnesses ( tazkiya ) — were influenced by the fraught political climate. "Disagreements between [scholarly Toledan] factions may have extended beyond the acceptance or rejection of the non-Islamic sciences to include disputes over social, economic, and political issues, especially concerning the relationship with nearby Christian powers."  The proceedings of this politically-tinged case raises  several questions of law:  should the right to challenge witnesses accrue to those accused of heresy? Should others grant refuge to those so accused? How should officials dispose of the estate or inheritance of someone executed for heresy? Can  one  judge vacate or reverse a sentence  handed down  by another judge?  For discussion of these and other questions, read the full analysis. Image credits: Google Earth/Luis Molina and Víctor de Castro 

 

SOURCE :: Two Fatāwā on Ibn Ḥātim's Charge of Heresy In his case against  Ibn Ḥātim, Ibn Labīd asked the resident jurists of five towns  in medieval al-Andalus  their opinions on Ibn Ḥātim's  heresy charge .  The five questions were as follows:  "1) Should the judge grant Ibn Ḥātim the option to challenge the witnesses ( iʿdhār )? 2) Might Ibn Ḥātim challenge the witnesses on the grounds that there was a prolonged time-gap between his alleged heretical expression and their testimony against him in court? 3) Who could inherit Ibn Ḥātimʼs property [were he convicted for heresy]? 4) Did Ibn Ḥātimʼs flight from Toledo legitimate the confiscation of his inheritance for the public treasury ( bayt al-māl ) prior to his execution? 5) Was it legal to provide Ibn Ḥātim refuge?"  Maribel Fierro  provides an overview of two opinions (fatāwā) : those of  Ibn ʿAttāb and Ibn al-Qaṭṭān , alongside discussion of the related judicial procedures in Córdoba. Read the fatāwā and proceedings. Image credit: Fanack.com

 

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May 2019
May 2019

Roundtable :: Tunisian Inheritance Law Reform Katarzyna Sidło  (Center for Social and Economic Research) organized an online roundtable on Tunisian president Beji Caid Essebsi's 2017 proposal to amend inheritance laws. She introduces the Roundtable by noting that, under the country’s current Personal Status Code – passed in 1956 – Tunisian citizens may not “allocate their inheritance freely and must follow” the inheritance divisions elaborated by Muslims jurists based on the Qurʾān (4:11-14) and  sunna  (reports of the prophetic example). The proposed amendment, if passed by parliament, will allow Tunisians choice: equal shares of inheritance between male and female heirs would become the default rule, from which those wishing to follow traditional Islamic legal rulings could opt out. In her own analysis for the proposed amendment, Sidło examines the issue with an economic lens . The common argument defending the traditional rules and upholding this type of legal gender discrimination in Tunisia is an interpretation of a Qurʾānic verse stipulating that men spend money to support women (Qurʾān 4:34) and thus require more inheritance money. Sidło disagrees, underscoring the contemporary realities of a large female labor force and wages in the MENA region. Mohammad Fadel  (University of Toronto) takes a pragmatic approach that helps explain why this proposal has raised so much controversy: "While the new law, if implemented, may not make a substantial tangible difference in people’s lives – especially given the ease with which ordinary Tunisians can continue to adhere to the previous inheritance law, regardless of the final form of the legislation – it does raise thorny theoretical questions about the nature of the Tunisian state, and the meaning of Islamic law in the modern world."  Request access to the full symposium to read and respond. Image credit: Nawaat

 

Country Profile on Tunisia The SHARIAsource Portal’s Country Profiles aim to facilitate research for Islamic law and comparative law scholars by detailing the history, role, and source of Islamic and other state laws in each country. The Tunisian Country Profile provides sources on the larger context of the Tunisian legal system, along with expert analyses on the religion-state divide in the MENA region. See the Tunisia Country Profile (in the Country Profiles Special Collection). Image credit: AliExpress

 

female labor force participation 2017Spotlight :: Gender and InheritanceSHARIAsource houses a number of primary sources and expert analysis on laws concerning gender and inheritance in the Muslim world, outside of Tunisia. A search of laws on gender and inheritance shows that each manifests in legal structures and proceedings differently. For some examples, see Pakistan's 2006 Protection of Women Act , various court cases from Indonesia, and an earlier symposium presenting perspectives from Chinese Muslim legal scholars on female clerics. Image credit: Our World in Data. Image credit: Our World in Data

 

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Jun 2019
Jun 2019

FEATURE :: Islamic Law Lecture Series The  Program in Islamic Law hosted a stellar set of scholars and public figures in the course of this year’s Islamic Law Lectures. If you missed them, you have not missed out. The  lectures are now available online! Just visit our Vimeo page. Our featured events include: Marion Katz on Wives, Housework, and the Changing Boundary between Islamic Law and Ethics, Mohammad Fadel on Spousal Abuse and Islamic Law Reform, and a fireside chat with Mahmoud Abdul-Rauf hosted by Professor Intisar Rabb as the keynote event of the 2019 HLS Sports Law Symposium. Image credit: Program in Islamic Law

 

Commentary :: Right to Counsel and the Problem of Distrust Student editor Marzieh Tofighi Darian traces the evolution of the right to counsel in criminal investigations in Iran, as highlighted in the process of drafting the country’s new Criminal Procedure Code in 2014 (amended in 2015). She argues that "the legislature missed a unique chance to make up for its long-time practice of ignoring this right," and thus "exacerbated the tenuous relationship between the judiciary and bar associations." Read more. Image credit: Geology.com

 

Spotlight :: Islamic Criminal Law The SHARIAsource Portal’s collections include criminal procedure codes from different regions that use interpretations of Islamic law as a source of legislation. For example, Iran recently enacted parliamentary revisions to its code . Indonesian-Aceh criminal laws came into force around the same time, including the procedures at the sharīʿa court of first instance . Fifteen years earlier, state councils in Northern Nigeria passed criminal procedure codes as well–now analyzed by a team of Nigerian and international scholars. Together, these new codes suggest a growing appeal of sharīʿa in criminal law. Image credit: The Conversation/Shutterstock

 

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July 2019
July 2019

NEW :: Islamic Law Blog The Program in Islamic Law is pleased to announce a new and improved Islamic Law Blog . Building on an old SHARIAsource blog, this new blog features roundups of scholarship and recent developments in Islamic law, and it welcomes contributions from scholars and students in the field. The new design makes it easy for both the novice and the adept to navigate content and get all the latest updates on Islamic law: from discussions on key issues of the day, roundtable-style debates on important cases, and reflections on historical and historiographical methods to a series of podcasts, reviews of scholarship “in plain English,” and a global calendar of all known events and opportunities related to Islamic law and history. With easy links to related projects, you can also easily search for sources on the SHARIAsource portal, check out the projects and events at the Program in Islamic Law, and soon read cutting-edge scholarship in the soon-to launch Journal in Islamic law. With thanks to the efforts of our new lead blog editor, Mariam Sheibani, we are especially excited to announce that this Fall will feature guest bloggers Mohammad Fadel, Ahmad Atif Ahmad, Marion Katz, and more!  Image credit: Program in Islamic Law

 

SHARIAsource Partners at UMD & OpenITI Receive $800k Mellon Grant to Create Arabic OCR Tool The Mellon Foundation recently announced it is awarding SHARIAsource partners at UMD &OpenITI an $800,000 grant to build out “Corpus Builder”—the first Arabic OCR tool for historical texts, and an integral tool for research on Islamic law and history. The team at SHARIAsource provided the platform and other significant support in building the initial infrastructure forCorpusBuilder 1.0 and will play a lead role in creating CorpusBuilder 2.0 together with in collaboration with the OpenITI team. Read more .Image credit: Open Islamicate Texts Initiative (OpenITI)

 

SPOTLIGHT: Digital Islamic Law Lab (DILL) The Mellon Foundation recently announced it is awarding SHARIAsource partners at UMD &OpenITI an $800,000 grant to build out “Corpus Builder”—the first Arabic OCR tool for historical texts, and an integral tool for research on Islamic law and history. The team at SHARIAsource provided the platform and other significant support in building the initial infrastructure forCorpusBuilder 1.0 and will play a lead role in creating CorpusBuilder 2.0 together with in collaboration with the OpenITI team. Read more .Image credit: Open Islamicate Texts Initiative (OpenITI)

 

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Aug 2019
Aug 2019

SPOTLIGHT :: India’s Criminalization of Extrajudicial Divorce The Indian legislature recently passed a legislative response to the country’s Supreme Court decision two years ago condemning a form of extrajudicial divorce in India, by which Muslim men pronounce the Arabic word for divorce three times (“triple ṭalāq“) and claim the practice to be authorized by classical Islamic law. The judges in the 2017 Shayara Bano case called their claim into question, and asked Parliament to intervene . In reviewing the case, LUMS Professor and SHARIAsource editor Zubair Abbasi in Pakistan noted that the Court had outlawed the practice of triple  ṭalāq   because it violated Muslim women’s constitutional rights. The Court gave the legislature six months to pass legislation that would address the problem. The legislature took up the charge but only passed legislation two years later, earlier this summer in 2019. Reviewing that legislation, Abbasi now assesses whether the law can protect women through criminalizing the practice among the men: "The Act, as its name suggests, is to protect the rights of married Muslim women by safeguarding them from being instantly divorced by their husbands. The Act does so by declaring triple  ṭalāq  to be 'void and illegal' and subjecting the offender husbands to imprisonment of three years and an unspecified fine."  Critics of the law raise concerns that it will prosecute Muslim men but has not taken affirmative measures to protect women. Abbasi's concedes to the critics' concerns and underscores the importance of focusing on how the law might protect Muslim women. Read more . Image credit: BBC

 

New Legislation :: Muslim Women Act of 2019 [India] In  Shayara Bano v. Union of India  (2017), the Supreme Court of India declared the practice of triple  ṭalāq  (instant divorce) to be an unconstitutional violation of Muslim women’s rights. Recently passed legislation, the Muslim Women (Protection of Rights on Marriage) Act of 2019 is the legislative response to that judgment . It criminalizes the practice of extrajudicial divorce through triple  ṭalāq with the aim of protecting Muslim women subjected to it. Read more . Image credit: India Today

 

CNEWS: New PIL Website We are happy to announce the launch of our new program website. Here, you can meet the evolving group of dynamic professors, fellows, and students working in the field, find out about our events at Harvard, and discover the range of global events and opportunities through a constantly updated clearinghouse of  jobs, conferences/CFPs, and grants in Islamic legal studies and related fields around the world. Scholars may be especially interested in our fellowship announcementspublications, and projects. Students can learn about relevant courses at Harvard and area schools, opportunities for travel grants, and an annual paper prize sponsored by the dean’s office at HLS.  A one-stop shop for all things related to the academic study of Islamic law and history.  Image credit: PIL

 

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Sep 2019
Sep 2019

Is Islamic Purposivism (Maqāṣid Al-Sharīʿa) a Thinly-Disguised Form of Utilitarianism? We are happy to welcome Mohammad Fadel (University of Toronto) as the ISLAMICLAWblog 's first guest blogger. His first piece grapples with academic critics of maqāṣid al-sharīʿa (translated by Fadel as "purposivism"), who "have latched on to the inherent connection between purposivism and the idea of maṣlaḥa (often translated as “benefit,” “interest,” or “public interest”) to argue that much of modern Islamic reform is little more than utilitarianism in an Islamic garb, with concepts such as “need ( ḥāja )” and “necessity ( ḍarūra )” displacing the rigorous moral and legal reasoning of prior Muslim jurists." Fadel argues that while some "appeals to purposivism" should indeed be treated with a healthy dose of skepticism, the absolute conflation of purposivism and subjective utilitarianism is misguided. Fadel turns to historical jurists, including Abū Isḥāq al-Shāṭibī, to distinguish between the two and argue for the consideration of the former in Islamic legal reform. Read more . Image credit: McGeddon/Wikimedia/Creative Commons

 

Recognition and Regulation of Muslim Marriages in South Africa In 2018, the Western Cape High Court in South Africa ordered the South African government to legislatively recognize Muslim marriages within 24 months. Waheeda Amien (University of Cape Town) considers the ramifications and efficacy of the order. "I have repeatedly argued," Amien writes, "that recognition of Muslim marriages, while necessary, is not sufficient to afford adequate protection for women’s rights. Regulation of the features of a Muslim marriage and divorce is also required." She goes on to say, "It is therefore fortifying to see that the language of 'recognition and regulation' of Muslim marriages ...is peppered across the judgment." Read more . Image credit: Creative Commons/Wikimedia

 

New Trends in Regulating Risk in Islamic Finance Innovation occurs as well in ways less tangible than what is traditionally defined as 'technology,' as UAE editor Paul Lee's piece on Islamic finance suggests. Lee details how U.S. and U.K. courts have attempted to marry Western and Islamic finance without compromising the principle of fair competition. Unlike patents or licenses, however, financial contracts must prioritize uncertain results, acknowledged by Islamic legal systems as ghararand Western court systems' approaches to regulation. Partly due to this uncertainty, and different strategies in accounting for it, an optimal compromise between Islamic and Western finance remains to be created. As of yet, such regulatory inventions occur on an ad hoc basis. Read more. Image credit: Blog: Brave Organization Never Dies

 

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Oct 2019
Oct 2019

Does Islamic Law Support Human Cloning? As a part of the 2019 Digital Islamic Law Lab (now published on the Islamic Law Blog), student editor Nicholas Kellum examines Resolution 100/2/10 on Human Cloning, issued in 1997 by the International Islamic Fiqh Academy (IIFA), located in Jeddah, Saudi Arabia. Kellum's analysis discerns how one group of jurists makes arguments for and against cloning in Islamic law. In stark contrast from the reasoning used in Iran (and Shīʿī law) to get at similar outcomes, the Academy's resolution prohibits human cloning but permits other forms of cloning. The Saudi jurists questioning human cloning concluded from a syllogism based on two premises that human cloning was impermissible. But they left open the question of whether a prohibition on cloning would apply to complex forms of cloning that might help reduce human disease. In such cases, suggests Kellum, "the legal canons ‘harm must be eliminated’ and ‘acts are judged by their goals and purposes’ might permit greater human intervention." How jurists will address looming cloning questions remains to be seen; this case and these canons provide a starting place. Read more. Image credit: Wikimedia/Creative Commons

 

SOURCE SPOTLIGHT: Saudi Islamic Fiqh Academy Resolution on Cloning International Islamic Fiqh Academy Resolution 100/2/10 on Human Cloning (“Resolution”) cites a mixture of Islamic texts and scientific facts to determine the permissibility of cloning. Specifically, the Resolution cites the Qurʾān and ḥadīth, as well as a range of general scientific definitions and experiments. From the texts, the Resolution provides an overview of Qur’anic excerpts describing the purity of God’s creation of man and proscribing manipulations and interventions in it. The Resolution then defines ‘cloning’ as either cloning by division or nuclear transfer—both of which depend on intervention in the divine process of creation. Juxtaposing the two, the Resolution concludes that “[i]t is prohibited to clone human being[s] … by any [] method that results in the multiplication of human specie[s].” Read more. Image credit: International Islamic Law Academy 

 

NEWS: Program in Islamic Law Awarded Harvard Library's S.T. Lee Innovation Grant The Program in Islamic Law has received an S.T. Lee Innovation Grant, awarded to a collaborative effort led by Professor Intisar Rabb and Harvard Law School Library Associate Director Kevin Garewal. The grant "funds creative partnerships between Harvard faculty and Harvard Library staff that improve access to information and the experience of using library resources at Harvard University." PIL received the grant to work on StackLife: a tool designed for SHARIAsource to digitally aggregate disparate sources on Islamic law around the world and throughout history, permitting new possibilities for search, filtering, and visualization of key collections—filling a major gap in the current library cataloging systems. Image credit: Harvard Library

 

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2018

Jan 2018
Jan 2018

Islamic Early International Law: An 18th Century Ottoman Declaration of War with Russia Guest contributor Michael Talbot delineates the way a beyānnāme (declaration) sent in 1768 by the Ottoman reʾīsül-kuttāb (chief scribe) to Britain's ambassador to the Ottoman Empire sought to justify the Ottoman declaration of war on Russia in an Islamic law framework. The beyānnāme cast Russia's actions as a violation of treaty obligations by uses of the term naḳẓ-ı ʿahd G (breaking the treaty), which in turn has its origins from the Qurʾān. Through use of these and other related concepts, the document thus gives insight into eighteenth-century Ottoman attitudes to international law and its relationship with Islamic law.  Image credit: Wikimedia Commons

 

An Ottoman-Islamic Declaration of War against Russia, 1768 This document is a beyānnāme , or declaration, sent by Recāī Efendi, the Ottoman reʾīsül-kuttāb (chief scribe), to Britain's ambassador to the Ottoman Empire. It justifies the Ottoman declaration of war on Russia by casting Russia's actions as a violation of treaty obligations, giving insight into eighteenth-century Ottoman attitudes to international law and its relationship with Islamic law. Image credit: Wikimedia Commons

 

Webb v. City of Philadelphia (3d Cir. 2009): Ḥijāb with Police Uniform In recent developments in law and religion in U.S. law, female Muslim police officer Kimberlie Webb sued the City of Philadelphia under Title VII and the Pennsylvania Religious Freedom Protection Act. Alleging religion- and gender-based discrimination, she objected to the City barring her from wearing a headscarf ( ḥijāb ) with her police uniform, and argued that the prohibition amounted to a failure to accommodate her right to free exercise of religion under the First Amendment. The City argued that the bar was consistent with Philadelphia Police Directive 78 and that allowing her to wear religious garb would cause an undue burden on the City and the Police Department, in that it would compromise a look of cohesiveness and uniformity among officers. Find out how the Courts decided the case. Read more. Image credit: Wikimedia

 

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Feb 2018
Feb 2018

Should State Law limit the Scope of Speech about Islamic Law? On Egypt's Decision to Vet Fatwas Egypt’s Supreme Media Regulatory Council ( al-Majlis al-Aʿlā li-Tanẓīm al-Iʿlām ) recently decided to allow only fifty select individuals to issues opinions on Islamic law ( fatwā s). Professor Mohammad Fadel considers the implications of that decision, as well as any Islamic law or historical precedents for it. He observes that " classical Islamic law gave the ruler a substantial role to play in the public regulation of Islam." Fadel also emphasizes, however, that "it is important to note that the Islamic Middle Ages and early modernity were characterized not only by a normative pluralism in law...but effective toleration of religious dissenters, not only non-Muslims but also Muslims who dissented from theological orthodoxy." Egypt's move to centrally control the dissemination of dangerously incorrect ideas may depart from this historical practice and may undermine the very goal of countering extremism that is behind the decision in the first place. Image credit: Reuters/Darren Staples

 

Expanding the Jurisdiction of Pakistan's Federal Shariat Court Renowned Pakistani human rights lawyer Asma Jehangir passed away this month. Noor Zafar 's commentary examines one of her landmark cases,Abdul Waheed v. Asma Jehangir , which, she argues   expanded Pakistan's Federal Shariat Court's (FSC) jurisdiction. At the core of this conflict was whether the Lahore High Court must consider as binding precedent the FSC's judgment that the consent of a male guardian ( wali) is not required for a young Muslim girl to legally get married. The Supreme Court decided in favor of what it termed a "harmonious interpretation," ruling that "the interests of uniformity and notice dictate that the FSC be granted the authority to bind lower courts on certain issues implicating Islamic law, even if this authority transcends constitutional bounds." Read more. Image credit: The Express Tribune

 

The Muslim Family Laws Ordinance [Ordinance No. VIII of 1961] This regulation was issued to give effect to certain recommendations of the commission on marriage and Family Laws in Pakistan . The ordinance is crucial to the Pakistani Supreme Court case Abdul Waheed v. Asma Jehangir , which examined whether the Lahore High Court was bound to a decision of the Federal Shariat Court regarding Muslim Personal Law (MPL) in Pakistan. The relevant provision makes no mention of a requirement that a wali (male guardian) be present for a young Muslim girl to legally marry. Read more. Image credit: Dunya News TV

 

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Mar 2018
Mar 2018

SYMPOSIUM :: Does Islamic Family Law in the UK Need State Regulation? Last month, the British Home Office published a report   on the operation of Islamic family law in the UK: " The Independent Review of Sharia Law in England and Wales. " The UK Home Office produced the report as an official part of the British government's counter-terrorism efforts. Report authors sought to assess whether the UK's sharīʿa councils--groups formed of Muslim religious officials who mediate matters of family and personal law--discriminate against women and whether they should be brought within the purview of the British legal system. In a new symposium that assesses these developments, SHARIAsource invited academic experts in Islamic law in the UK to comment.  Professor Shaheen Sardar Ali   of the University of Warwick and  Professor Ralph Grillo   of the University of Sussex give their takes on the report. They critically assess and comment on the report and query whether its objectives are relevant to Islamic family law practices (e.g.,  nikāḥ religious marriage contracts, divorce) as they intersect with state civil marriage requirements (e.g., registration, solemnization) in the UK. Image credit : Kirsty O’Connor/PA

 

CASE :: The Prosecution of an Unregistered Married Couple in Aceh, Indonesia The distinction between state law and religious law remains administratively murky in many countries, including in the Muslim world. Student editor Waskito Jati  illustrates how a current case in Aceh, Indonesia, exemplifies the problems that result from poorly defined laws. In this case, a couple's marriage was deemed illegitimate because it had not been registered with the civil were accused of "committing  khalwat  (Ar. khalwa , the act of being in a secluded place between unmarried man and woman)"--a new crime specified by the Islamic Criminal Code in Aceh. Aceh still uses the secular Indonesian Marriage Law of 1974 in determining the legitimacy of a marriage, under which the couple would not have been subject to criminal charges even if their marriage was not registered, which was the basis for the conclusion of illegitimacy. This case exemplifies the dangers of new Islamic criminal law codes, especially where they attach criminal consequences to family matter. Image credit: Wikimedia Commons

 

IJMES Roundtable:: Digital Islamic Law: Purpose and Prospects SHARIAsource founding editor Intisar Rabb and deputy editor Sharon Tai write in the February 2018 issue of the International Journal of Middle East Studies on the main principles driving SHARIAsource's development. As it grows, SHARIAsource continues to integrate collaboration, accessibility, and usability within its approach to digital Islamic law, comparative law, and humanities. Read more. Image credit: International Journal of Middle East Studies/Cambridge University Press

 

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Apr 2018
Apr 2018

Avoiding Execution in a Medieval Andalusian Court: Religious Belief versus Judicial Procedure Cases of religious dissent in courts in the Andalusian Umayyad Caliphate provide insight into how one Islamic judicial system established procedures protecting non-Muslim constituents without undermining the sovereignty of the Islamic government.  Dr. Maribel Fierro of the Consejo Superior de Investigaciones Científicas (The Spanish National Research Council) examines one such case as related by tenth-century biographer Ibn Ḥārith al-Khushanī, in which a Cordovan judge, Aslam b. ʿAbd al-ʿAzīz, is asked to decide the case of a Christian man who wished to be executed, even though he had committed no crime. He wished to die in imitation of Jesus. The Christian man claimed that, like Jesus, his true self, his spiritual self, would not feel pain if violently treated, and that only his earthly self would die. The judge ordered the Christian flogged in order to disprove that claim. This move "emphasizes the necessity of a ‘common sense’ approach to dispensing justice, given the probability that the claimants will act in folly." Furthermore, "the narrative presents violent penalties as a tool employable at the judge’s discretion," which, in this case, enabled the judge to acknowledge the desire of the Christian without acceding to his beliefs in court as a matter of law. Read more. Image credit : Abd-ar-Rahman III and his court in Medina Azahara receiving the Monk Juan de Gorza in 959 AD, by Dionisio Baixeras Verdaguer/Qatar Foundation

 

CASE :: The Case of the Christian Who Wanted to be Executed Maribel Fierro   translates Ibn Ḥārith al-Khushanī's report of a case from the Umayyad West, in which a Christian man appeared before the judge Aslam b. ʿAbd al-ʿAzīz, petitioning to be executed. The judge rebuked the man because he had committed no crime. The Christian contested that he wished to die as an act of virtue, as had Jesus, and further claimed that he would feel no pain because only his earthly body would perish. The judge ordered him flogged to disprove the Christian man's claims and avoid execution. Read more. Image credit: Ken Welsh/Getty Images

 

A Petition to the Ottoman Sultan from Egypt, 1155 AH (1742-3)s James Baldwin   of the University of London examines the close links between the Ottoman Empire's two methods of dispute resolution in two different venues: the sharīʿa courts and the Dīvān-i Hümāyūn (The Imperial Council). While the former was more procedural, the latter is understood to have been more patrimonial by virtue of the Sultan's magnanimity. However, in the resolution of this dispute between a Muslim and a Christian, it is clear that "petitioning was not a vehicle for the imposition of arbitrary justice based on the discretion of the Sultan or Grand Vizier ... the Dīvān-i Hümāyūn recognized the limitations imposed by the lack of a full adjudicatory process, and so often declined to make a definitive judgment, instead deferring to local authorities who were in a position to investigate a petitioner’s claim." Read more. Image credit: Jean Baptiste Vanmour - The Yorck Project/Public Domain

 

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May 2018
May 2018

SHARIAsource Special Collections :: The Nigeria Papers: Sharīʿa Implementation in Northern Nigeria SHARIAsource has launched a new set of Special Collections ! These Special Collections are curated resources in Islamic law compiled by staff and editors working in collaboration with SHARIAsource at Harvard Law School. Each is designed to focus on resources that facilitate research and teaching in historical, contemporary, and digital Islamic law. The first collaborative Collection is now available: The Nigeria Papers. Compiled and curated by independent scholar  Philip Ostien, and edited for the Collection by SJD student editor Rabiat Akande , The Nigeria Papers provide  a comprehensive collection of documentary materials and scholarly analysis on the programs of “sharīʿa implementation” undertaken by twelve northern Nigerian states beginning in 1999 and continuing today. The materials include various Northern Nigerian state statutes establishing Sharia Courts and other institutions, Northern Nigerian Islamic Criminal Law and Criminal Procedure Codes; and select court cases that have been widely publicized and criticized; and analysis of how Northern Nigerian officials are applying the new laws. Read more. Image credit : SHARIAsource

 

The Nigeria Papers:: A Sourcebook Volume I: Historical Background The first part of The Nigeria Papers Special Collection is the a Sourcebook that contains five volumes. Each volume covers a different topic regarding the implementation of a Northern Nigerian version of Islamic law. For example, Volume I provides historical background. It documents Nigeria’s “Settlement of 1960”, under which, as part of the run-up to Nigerian Independence, important changes were made to the laws and legal institutions of the Northern Region. These changes included abrogation of the previous Islamic criminal laws (as well of all varieties of “ethnic” criminal laws and custom that were formerly applied), and adoption of new Criminal Law and Criminal Procedure Codes that Northern Nigerian officials determine to be applicable in all courts in that region. In addition to the Sourcebook, with an additional set of materials, Phil Ostien provides a qualitative and quantitative overview of civil procedure in the new courts, of jurisdiction and judges, of the court caseloads, and of judgments imposed by the courts between 2011 and 2015.  Read more.  Image credit: Panos/BBC

 

SHARIAsource Selects 2018-2019 Visiting Fellow ILSP: SHARIAsource is very pleased to announce that  Mariam Sheibani will be joining us for the 2018-2019 academic year as a Visiting Fellow. We are excited to support her project  Islamic Law in an Age of Crisis and Consolidation: ‘Izz al-Dīn Ibn ‘Abd al-Salām and the Ethical Turn in Medieval Islamic Law . While this year’s pool was competitive, Mariam’s work stood out for its relevance and clarity of thinking. We are very much looking forward to having her here this fall after she receives her PhD from the University of Chicago and begins her career as a young scholar. Read more.  Image credit: Mariam Sheibani

 

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Jun 2018
Jun 2018

Today: Islamic Law in SCOTUS Senior Scholar Noah Feldman commented today in Bloomberg News on the U.S. Supreme Court “travel ban” case,  Trump v. Hawaii , calling the Court’s 5-4 decision to uphold the Executive Order restricting immigration to the U.S. of citizens from seven countries—most of which are predominantly Muslim— "a decision that will live in infamy." He had previously suggested  that " Justice Elena Kagan has a plan to end Trump’s travel ban. " But Feldman noted today that Justice Kagan " joined [pragmatist Justice Stephen Breyer ] in a more cautious dissent focused on the system of exemptions that the executive order permits ... [which, if used] would lend some credence to the idea that the ban was actually motivated by national security. " Feldman took issue with this approach: "Unfortunately, the wrongness of the travel ban lies as much in its symbolic effect as in its exclusion of people from five Muslim-majority countries. This wasn’t the right case for Breyer and Kagan to be quite so pragmatic." Related to Islamic law, the Executive Order bans immigrants from mostly Muslim-majority countries on grounds that falsely conflate Islam and Muslims with notions of sharīʿa or jihād as inherently violent. For example— as noted by counsel, lower-court judges, and the Justices who did not prevail— the presidential campaign statement initially calling for the ban falsely proclaimed that “Shariah authorizes such atrocities as murder against non believers who won’t convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women.” Chief Justice John Roberts wrote the  majority opinion upholding the Order . In it, he focused on the "broad" and "ample" scope of presidential authority to regulate matters of national security and foreign affairs under the Constitution and under the Immigration and Nationality Act.  But the Court did not reach the Establishment Clause claim. Image credit: Wikipedia

 

Spotlight on Ismāʿīlī Law: A Case Study of Family Law Jurisdiction in Kenya This month, student editor Aleema Jamal places the spotlight on otherwise often elusive Ismāʿīlī law as it operates in modern courts. The Aga Khan, leader of the Ismā ͑īlī community— who refer to themselves in full as Shī ͑ī Imāmī Ismāʿīlī Muslims— sought to unify his followers under an Ismāʿīlī Constitution in 1986. The Constitution laid out a dispute resolution system that was meant to create a sense of community identity and ethos for a group dispersed across different states, even though it did not preclude the practice of state law on citizens of those various states. Two divorce cases in Kenya, Nurani v. Nurani in 1982 and TSJ v. SHSR in 2014 illuminated whether and how that goal operated in practice. According to Jamal, for the dispute resolution system to be effective internally, it had to be “subservient to, and reliant upon its relationship with the modern nation-state." Initially, the Nairobi Court of Appeal recognized and legitimized the Ismāʿīlī Constitution’s dispute resolution systems by providing a high degree of deference to the Ismāʿīlī Arbitration Council in the country's Kadhi courts. But by 2014, the Nairobi High Court determined that the Ismāʿīlī Council could only deal with matters 'not within the exclusive jurisdiction of either the ordinary courts or the Kadhis’ …courts.'"   Read more. Image credit: Wikipedia

 

Nurani v. Nurani (Nairobi Court of Appeal): Kenyan Ismāʿīlī Divorce Case of 1982 The Nairobi Court of Appeal adjudicated Nurani v. Nurani in 1982, a divorce case involving Ismāʿīlī parties seeking to separate. The Court held that it had concurrent jurisdiction with the Ismaili Conciliation and Arbitration Board for Kenya—deemed a “sectarian tribunal”— when, as here, both husband and wife submitted to its jurisdiction. Accordingly, the Court issued a decision on issues arising from the couple's divorce. The Court also clarified the role of the sectarian tribunal as a part of Kenya's pluralist legal system. Read more. Image credit: Wikipedia

 

TSJ v. SHSR (Nairobi High Court): Kenyan Ismāʿīlī Divorce Case of 2014 In TSJ v. SHSR , the Nairobi High Court concluded that the Ismaili Conciliation and Arbitration Board for Kenya lacked the jurisdiction to adjudicate a matter of divorce despite the fact that both husband and wife had initially submitted to its jurisdiction. Reversing a 1982 precedent laid out in Nurani v. Nurani , the Court rolled back the jurisdiction of “sectarian tribunals” and determined that only either ordinary courts or Kadhi Courts could have exclusive jurisdiction on such matters. Read more.  Image credit: Capital News of Kenya  

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Jul 2018
Jul 2018

Faith and Inheritance: A Case of a Vizier and Public Officials in 9th-Century Spain This month, Maribel Fierro examines a case concerning an accusation of apostasy during the reign of the Cordoban Umayyad emir Muḥammad (r. 238–273/852–886) from Ibn Ḥārith al-Khushanī’s collection of judicial anecdotes from al-Andalus. A jealous vizier, Hāshim b. ʿAbd al-ʿAzīz, "conspired to confiscate [the] fortune" of the emir's secretary Qūmis b. Antunyān al-Naṣrānī after his death by accusing him of apostasy. Qūmis had converted to Islam from Christianity, but the vizier sought to prove in court that Qūmis had never converted. To do so, he "acted clandestinely through two different channels. On one end, Hāshim b. ʿAbd al-ʿAzīz got a muḥtasib (a layperson who served as a market inspector) to collect attestations of the deceased secretary’s apostasy and bring the case before the Cordoban judge, Sulaymān b. Aswad al-Ghāfiqī. At the same time, Hāshim b. ʿAbd al-ʿAzīz brought the case to the emir’s attention, advising the emir that he might have rights to the inheritance of Qūmis b. Antunyān, if it could be proven that Qūmis died a Christian." The case was eventually brought to court, where the judge Sulaymān b. al-Aswad presided. The judge would not accept Hāshim’s attempt to manipulate the testimony and instead informed the emir that "the accusations against Qūmis were not verified and that those who had provided testimony against Qūmis could not be accepted as witnesses." Hāshim's fortune was thus distributed to his heirs. Fierro's analysis of the case takes into consideration the role of witness selection and procedure in accusations pertaining to faith and the legal consequences that follow in medieval Islamic law.   Read more. Image credit: Wikipedia

 

The Case of Asia Bibi : Apostasy, Public Opinion, and the Law The Asia Bibi case is one of the recent manifestations of blasphemy laws in Pakistan. The Applicant, Asia Bibi, a Christian woman, was sentenced to death by the trial court after allegedly uttering blasphemous statements against the Prophet Mohamed to fellow Muslim field workers. Student editor Aleema Jamal argues that Pakistan’s blasphemy laws and the public opinion that surrounds them creates a situation that makes it very difficult for those facing accusations to have a just legal proceeding.   Read more.  Image credit: Wikipedia

 

Spotlight:: Asia Bibi v. The State & Another (Lahore High Court of Pakistan): A Blasphemy Conviction In a recent manifestation of Pakistani blasphemy laws and the miscarriages of justice that can result, Asia Bibi was a Christian woman, sentenced to death by a trial court in Pakistan after allegedly uttering blasphemous statements against the Prophet Muḥammad to her fellow Muslim workers. Despite serious questions about the quality of her defense and the truthfulness of the allegations against her, her conviction stood as the Lahore High Court dismissed her appeal.  Read more.  Image credit: Times of Islamabad

 

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Aug 2018
Aug 2018

Dispute Resolution in Islamic Legal History: Mediation in Late Seventeenth-Century Cairo This month, Ottoman editor James Baldwin examines a court case, Shukr ibn ʿĀmir v. Shaʿbān ibn Nāfiʿ, from Cairo, dated 3 August 1667. In this case, the two parties bring charges against each other, Shukr accusing Shaʿbān of theft and Shaʿbān accusing Shukr of assault. Shaʿbān is able to produce evidence to substantiate his accusations, but Shukr cannot. Yet in the end, Shukr would receive thirty silver  coins, and "the two would declare that neither had any claim against the other, and [they would declare] a general, complete absence of debts," with no mention of compensation for Shaʿbān as victim of an alleged assault. Though each party started off presenting a serious grievance against the other,Baldwin notes that " it seems likely that the mediator sympathized with Shukr, " likely on the basis of class biases, even though Shukr failed to substantiate his claim. Followers of contemporary US and European law may recognize something familiar in this case : the decision to use ṣulḥ (mediation) yielded a different outcome than litigation, and the appearance of class status seemed to have something to do with the outcome.   Read more. Image credit: Ottoman History Podcast

 

Shukr b. ʿĀmir v. Shaʿbān b. Nāfiʿ: (Ottoman Cairo 1667) In this court record from Ottoman Cairo, dated 3 August 1667, two connected disputes are resolved by ṣulḥ (mediation) rather than litigation. Shukr b. ʿĀmir accuses Shaʿbān b. Nāfiʿ of theft, while Shaʿbān accuses Shukr of assault. Shukr fails to provide evidence to substantiate his claim, while Shaʿbān provides two witnesses for his claim. If the dispute had been adjudicated, the judge would have dismissed Shukr's claim of theft and held him liable for the assault. However, the litigants chose to enter mediation, which resulted in a very different settlement: Shaʿbān was ordered to make a modest payment to compensate Shukr for the alleged theft but dropped his claim of assault.  Read more.  Image credit: Encylopedia Britannica

 

SHARIAsource New Feature :: Special Collection: Country Profiles Under the direction of Library Editor Aslihan Bulut, SHARIAsource has rolled out a new resource that presents Islamic law profiles of every country of the world. Each Country Profile provides a basic overview of the legal history, institutional structures, and role (or lack thereof) of Islamic law in each country: divided according to member countries of the  Organisation of Islamic Cooperation, which includes some non-Muslim-majority countries,  and non-members. This collection of Country Profiles was developed in collaboration with or draw s in substantial part on research produced by the  Library of Congress , GlobaLex  at NYU, and  The Constitute Project  at the University of Chicago.   Read more.  Image credit: The Indian Express

 

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Sep 2018
Sep 2018

Roundtable of Scholars Weigh in on Major UK Islamic Family Law Case: Akhter v. Khan (July 2018) At the tail end of last month, a UK court decided a case of family law that has reverberated in legal-academic and media circles alike: what is the status of Islamic law in UK courts? Should state courts recognize Islamic marriages that have not been registered? Does religious law stand in the place of state law? Mr. Justice William touched on these questions in Akhter v. Khan (July 2018), his  decision issued from the High Court  of Justice of England and Wales. We provide a summary of the lengthy case in the SHARIAsource Case Brief   — outlining the facts and presenting excerpts from the original case, which may be found  here . We then rounded up six scholars of Islamic family law and related areas to weigh in and debate the implications of the case. Ralph Grillo (University of Sussex) provides an anthropological perspective ; Ralf Michaels (Duke Law School) discusses the ambiguous nature of the decision , while Rebecca Probert (University of Exeter Law School) critiques the decision's "failure to engage with the actual terms of the Marriage Act of 1949." Intisar Rabb (Harvard Law School) notes that the decision renders the union "something akin to what classical Islamic law would label a 'defective marriage.'" Hadeer Soliman , a practicing attorney, and Vishal Vora (Max Planck Institute) assess the practical repercussions of the decision , and discuss what it may signal about the direction of Islamic marriage and marriage as a whole within the UK. Read more. Image credit: Getty Images

 

Commentary :: DNA Tests in Morocco: Marking a Historic Turn in Islamic Law Guest writer Zaynab El Bernoussi (Al Akhwayn University in Ifrane) underscores the October 2017 decision of the Tangiers First Instance Court in which DNA tests were admitted as evidence in a family law case. The plaintiff was a mother who wanted to prove the paternity ( bunuwwa ) and lineage ( nasab ) of her daughter born out of wedlock. This historic move led the Moroccan court to "recognize paternity outside of wedlock," which was "was relatively unheard of due to the common practice of considering kinship [or paternity] claims in conjunction with lineage and the associated rights to title, names, and surnames." El Bernoussi explains the domestic and international law implications of this decision.  Read more.  Image credit: Wired

 

Case:: Moroccan Courts Recognize Then Reverse Paternity Recognition of Children Born out of Wedlock (Court of Appeals of Tangiers) A child born out of wedlock is typically not entitled to paternity recognition in Morocco. In an unprecedented move , the First Instance Family Court in Tangiers recognized the familial relationship connecting a father to his biological daughter. The Court also required the man to pay 100,000 MAD (10,500 USD) to the child through her mother for the material and moral harms caused to the child from denial of paternity or familial relations. The defendant appealed the judgment. On October 9, 2017, the Tangiers Court of Appeals overturned the First Instance Court decision, rejecting the DNA tests and any recognition of familial relations. The Court also invalidated the lower court’s use of international conventions, explaining that the child is so “foreign” to or removed from her father that the possibility of their future marriage would not be overruled. Read more. Image credit: Lucid Chart

 

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Oct 2018
Oct 2018

Sharī ʿa vs. the Constitution: Ex Ante Judicial Review of Iran’s New Criminal Procedure Code Student editor Marzeh Tofighi Darian considers the recent jurisprudence of Iran’s Guardian Council – the legislative-cum-judicial body in Iran tasked with assessing the compliance of state law with Islamic law and with the constitution. Iran’s parliament recently adopted a Criminal Procedure Code 2014 (amended in 2015). Tofighi Darian examines the Guardian Council's ex ante review of Iran’s 2014/2015 draft Criminal Procedure Code to illuminate the scope of the Council's jurisdiction and its role in Iran's legislative process. She outlines the range of strategies that the Guardian Council takes upon objections to proposed articles: (1) declaring draft articles generally invalid, (2) declaring draft articles to be “in violation of the Constitution," and (3) declaring draft articles to be “in violation of  sharīʿa .” Upon review, it turns out that, in most instances, the Guardian Council issues its rulings without citing  sources—neither those “of Islamic law or  sharīʿa , nor the Iranian Constitution as justification.” Moreover, most objections fall into category 3 – violations that it understands “to be against sharīʿa ." Arguably, there are negative long-term implications for Iranian legislation and legitimacy if the Guardian Council continues to invalidate parliamentary-drafted laws on the basis of sharīʿa but without a state rationale. The practice enlarges the role of Muslim jurists beyond the revolutionary constitutional mandate, and it raises serious questions for the institutional legitimacy of both parliament and the Council. Read more.  Image credit: Wikipedia

 

Iranian Criminal Procedure Code (2014) After several revisions made to the original Criminal Procedure Bill in answer to rulings by the Guardian Council, the Iranian Criminal Procedure Code became final and entered into force in 2014, with amendments in 2015. Read more. Image credit: Iranian Parliament/SHARIAsource

 

Professor Khaled Abou El Fadl on "Islamic Law in an Age of Fear" On October 1st, 2018, Professor Khaled Abou El Fadl spoke to a gathering of around 40 students and scholars at Harvard Law School for a SHARIAsource lunch talk entitled "Islamic Law in an Age of Fear." He discussed themes from his most recent book, Reasoning with God , focusing on the widening epistemological gaps between historical practice and modern consciousness. "The more law stops making sense to its audience, the more law has to resort to apologetics to legitimize itself ... inflating its own legitimacy at the expense of social reality [and] the more it moves towards a coercive system," (paraphrased) Abou El Fadl proposed. The event was livetweeted. More is to come when SHARIAsource releases a new podcast series with an episode featuring Professor Abou El Fadl and ILSP Visiting Fellow Mariam Sheibani. Image credit: ILSP: SHARIAsource

 

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Nov 2018
Nov 2018

Roundtable on Blasphemy Law in Pakistan: Asia Bibi v. The State (Nov 2018) Last month the Pakistan Supreme Court acquitted Asia Bibi of blasphemy charges, bringing Asia Bibi v. The State to a judicial conclusion. Asia Bibi's case has drawn international attention since she was sentenced to death for allegedly insulting the Prophet Muhammad in 2010. A controversial case both domestically and abroad, the October 8th decision was not made public until earlier this month. The Pakistan Supreme Court's decision brought forth questions about evidence, judicial independence, procedure, and the state's authority in matters of law and religion. A detailed summary and text of the Supreme Court decision may be found here; the appeal — originally dismissed by the Lahore High Court—may be found here. Three scholars of Islamic constitutionalism and law in Pakistan weighed in on the implications of the decision. Zubair Abbasi (LUMS) underscores how the judgment conveys to the general public that "only the State has the authority to prosecute for the offense of blasphemy through its courts." Imran Ahmed (UNE) points to the procedural problems of prosecuting blasphemy. And Rachel Mazzarella (Georgetown) advises that the Supreme Court judges highlighted several factors that complicate the history of blasphemy law in Pakistan as a result of complex interactions between British colonial rulers and Islamic legal norms. Read the full Roundtable. Image credit: Wikipedia

 

Asia Bibi v. The State (2018) : Pakistan Supreme Court Vacates Blasphemy Conviction of Christian Woman The Pakistan Supreme Court has acquitted Asia Bibi of blasphemy charges, removing her from death row. A Pakistani Christian woman, Asia Bibi, was arrested in 2010 after a dispute with her Muslim co-workers in which they claimed that she insulted the Prophet Muhammad. The state prosecutor charged her with blasphemy and the trial court sentenced her to death. The courts subsequently dismissed her appeal to the Lahore High Court . After a lengthy series of appeals, the Pakistan Supreme Court acquitted Asia Bibi of blasphemy charges, vacating her sentence. The decision navigates between affirming the law and reversing its application to Ms. Bibi. Read more. Image credit: Supreme Court of Pakistan/Wikimedia

 

Asia Bibi v. The State & Another (Lahore High Court) : Trial Court Blasphemy Conviction of a Christian Woman in 2014 The Asia Bibi case presents a recent manifestation Pakistan’s blasphemy laws. At trial, the Court sentenced Asia Bibi, a Christian woman, to death after accusers alleged that she uttered blasphemous statements against the Prophet Muhammad to fellow Muslim field workers. Despite serious questions regarding the quality of her defense and the credibility of the allegations against her, and despite the questionable Islamic legal basis for the decision, the trial court convicted her and the Lahore High Court dismissed the appeal. Read more. Image credit: Lahore High Court/Wikimedia 

 

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Dec 2018
Dec 2018

Vishwa Lochan Madan v. India (2014): The Legal Standing of Non-State Muslim Courts (Dar ul Qaza) and Their Fatwās In India Many governments around the world have grappled with the question of whether and how  to recognize Islamic family law stipulations in the courts. Should state courts recognize the individuals to whom religious communities turn for expertise  on issues of marriage and divorce? The United Kingdom says “no”: it rejects local Muslim Arbitration Tribunal decisions. The United States says “it depends”: courts will only recognize religious or foreign law provisions that accord with U.S. law or do not violate public policy. Editor  Jeffrey A. Redding  (University of Melbourne)   recently examined this question in India. In Vishwa Lochan Madan v. India (2014), the petitioner  asked the  Indian Supreme  Court to ban all non-state  forms of Islamic dispute resolution—including the  issuing  of  fatwās. The Court's decision  would  have been pivotal.  Instead, the Court  punted.  Nine years after the case was first filed, the Court maintained the cloud of  ambiguity  hanging over  the legal standing of   the  relevant piece of legislation that would answer the question. As Redding explains, the All India Muslim Personal Law Board (AIMPLB) is a non-state, private organization that runs Muslim tribunals called dar ul qazas, which can fairly be analogized to performing the role of Alternative Dispute Resolution. For Redding, the Court’s failure to recognize that analogy raised several questions. It leaves confusion about “what precisely differentiates non-state articulations of Muslim Personal Law from other forms of Alternative Dispute Resolution (ADR) in India, or even the informal operations of  lok adalats  ( a secular ADR mechanism in India)." Read more. Image credit: The Hindu

 

When a Fatwā Becomes Law: Examining the Fatwā's Place in the Malaysian Islamic Legal System Student editor Alizeh Ahmad explores recent developments in Malaysia, wherein local courts recognize certain  fatwā s as binding law. She notes that the situation and process of recognition seems rather unique, thus exploring the  "complex system that governs the institutionalization of a fatwā ’s authority." Read more. Image credit: Microsoft

 

LEGISLATION: Malaysian Law on Local Fatwā s as Law In Malaysia, state officials passed The Administration of the Religion of Islam (State of Selangor) Enactment  in  2003,  establishing a fatwā-legalization process. The law also outlines the role of the muftī as chairman of Selangor’s state fatwā committee. As the main piece of legislation governing Selangor's sharīʿa (Bahasa: Syariah) courts, Islamic finance  practices , and conversions  to Islam, the law serves as umbrella legislation for  Islamic  practices that  the state wishes to regulate. Full text and summary, by student editor Alizeh Ahmad. Image credit: Public domain/Selangor government

 

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2017

Jan 2017, no. 1
Jan 2017, no. 1

The Treatment of Women: Applying Islamic Law in Greek Thrace Greek expert Ilker Tsavousoglou (Ghent University) examines developments in Western Thrace, inGreece, to illustrate the complexities of modern legal pluralism where secular states have some jurisdiction for Islamic law. Greece recognizes an Islamic law jurisdiction in Thrace, whereby it accords muftī tribunals – muftīs being expert jurists who typically give advisory opinions in Islamic law – the authority to oversee and enforce Islamic law in the region. To some observers, this system limits Muslim women’s access to equal justice under the laws of Greece, because the Islamic laws governing their lives are uncodified and often permit differential treatment. This arrangement results in a type of “legal disorder”, Tsavousoglou argues, that twists legal pluralism into a “dysfunctional mechanism” for legal regulation. Moreover, the disparities that the different systems operating in a single region create are, he argues, unconstitutional under Greek law. Accordingly, the Commissioner for Human Rights of the Council of Europe and the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW) have paid special attention to Greece on assessing the status of women in the region. Both organizations found “discriminatory treatment of Muslim women as an outcome of an extensive application of Sharia in their family and inheritance relations.” In response, they issued proposals designed to accord equal rights and opportunities to Muslim minority women, including educating legal professionals and religious leaders on the “norms and principles of [CEDAW].”The operation of Islamic law in Greece exemplifies the practical difficulties legal pluralism. Yet overall, the proposed solutions may “enhance the notions of legal pluralism and multiculturalism and effect the improvement of the levels of legal culture in Greece.” Read more.  Image credit: Library of Congress

 

REPORT: National Commission on Human Rights Decisions on Marriages by Proxy (Greece, 2003) Greece's National Commission on Human Rights has been taking a close look at Muslim women's access to justice in Thrace, Greece. Although the Greek government has carved out an Islamic law jurisdiction in Thrace, the state continues to question the legality of marriage by proxy and marriage of minors—two modes of marriage that the local practice of Islamic law permits. This document outlines the Greek government's analysis of whether marriages by proxy are compatible with "the national public order" and Greece's "obligations to international conventions." Read more. Image credit: Public Domain/Flickr

 

LEGISLATION: Introductory Report to the Bill, ‘Amendment of Provisions of Family Law’ (2010) Greek parliamentarians have signaled that they are concerned about the rights of Muslim women, especially young women in Thrace–which permits the operation of Islamic law to certain areas. A group of parliamentarians recently drafted a bill designed to prioritize Greek civil law over religious (namely Islamic) family law. One intent shared by the sponsors of the bill was to abolish sharīʿa altogether. However, the bill was never brought before Parliament. Read more. Image credit: The Worldly

 

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Jan 2017, no. 2
Jan 2017, no. 2

The Need for an Islamic Bankruptcy Code Student editor Esther Agbaje (HLS 17) suggests that sukuk (commonly called Islamic bonds) are insufficient to handle bankruptcy in financial systems operating with respect to Islamic law, or sharīʿa compliance. Banks and other financial institutions or municipalities that issue sukuk intend for these instrument to organize debt and therefore to be insulated from default. This idea seeks to implement the Islamic law financial principle of profit/loss sharing, designed to limit exposure to default by making both parties invested in the success of the venture. Thus, the Accounting and Auditing Organization for Islamic Financial Institutions – the premier regulatory authority in the Gulf for financial institutions engaged in Islamic finance – defines sukuk as “not debts from the issuer,” but as “fractional proportional interests in underlying assets, usufructs, services, projects or investment activities.” Usingsukuk for sharīʿa-compliant financing, the East Cameron Gas Company defaulted in 2008.With this example, Agbaje argues that sukuk offer an imperfect means of organizing debt or debt-organization schemes, the latter of which can often fail. In short, the East Cameron Company failed to pay its sukuk holders, investors that had loaned money to the company. In the end, a Chapter 11 (U.S. Bankruptcy Code) reorganization reset things by “transform[ing] the sukuk holdings into preferred stock options,” leaving the sukuk scheme Islamic in name only. If sukuk is not protected from default, then it stands to reason that other debt structures within Islamic finance are likely to be susceptible to failure using sukuk. The logical conclusion, Agbaje argues, is that countries that want to rely on Islamic financial instruments still need to develop (or borrow) bankruptcy codes to both support Islamic finance principles and to standardized regulations for handling loan defaults in cases of insolvency. Read more. Image Credit: SHARIAsource

 

REPORT :: East Cameron Gas: A New Frontier in Sukuk? This report assesses the attempts of a major oil company, East Cameron, to operate a large oil and gas company with respect to Islamic finance principles (so-called sharīʿa compliance). The bankruptcy proceeding that follows hints at the difficulty and potential conflicts of interest in creating sharīʿa-compliant financial instruments that permit company independence without sufficient mechanisms to avoid default. Read more. Image credit: Public Domain/Flickr

 

STANDARDS:: Auditing and Accounting Organisation for Islamic Financial Institutions' (AAOIFI) Sharīʿa Standards for Financial Institutions (2010) In 2007, the Auditing and Accounting Organisation for Islamic Financial Institutions (AAOIFI) considered about 85% of sukuk (commonly called Islamic bonds) to be non-sharīʿa-compliant. In 2010 they released these comprehensive guidelines on Islamic finance, including a section on sukuk (pg. 303), which outlines factors to consider when creating Islamic bonds. One such factor is industry, which affects how the terms of the sukuk should be decided. Read more. 

 

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Jan 2017, no. 3
Jan 2017, no. 3

The Danial Latifi Case and the Indian Supreme Court’s Balancing Act Islamic law is before the Supreme Court of India again, with the question of whether triple-ṭalāq is a valid way of dissolving a marriage: by a man simply pronouncing that his wife is divorced by saying that word three times. To understand where the Court might be going requires a bit of background. Following the 1985 Shah Bano case in India, the Indian Supreme Court was faced with protests from the Indian Muslim community over its perceived interference in Islamic personal law. This response revealed the political complexity of executing the Supreme Court's dedication to defending the constitutional rights of all its citizens. India editor Akhila Kolisetty uses the passage of the 1986 Muslim Women (Protection of Rights on Divorce) Act in 1986 and the Danial Latifi v. Union of India (2001) that followed to explicate the Indian Supreme Court's unenviable position of balancing gender and religious equity. The Muslim Women Act of 1986 limited maintenance payments to the iddat period (the three-month waiting period for divorce in Islamic law), leading to negative responses from women's rights organizations. Danial Latifi, Shah Bano's lawyer, challenged the constitutionality of the Act, calling it discrimination against Muslim women on the basis of their religion. Under the Act, women were excluded from the protections of the Indian Constitution's Articles 14, 15, and 21. The Court resolved this constitutionality quagmire by finding that a Muslim husband must pay the "reasonable and fair amount needed to maintain his ex-wife for the rest of her life...in total during the iddat period." This type of understated but sufficient solution "exemplifies a pattern within the Supreme Court’s approach to Muslim personal law: claims that "promote Muslim women’s gender equity while also limiting [the Court's] intervention into Islamic personal law to avoid potential backlash." Read more. Image credit: Wikipedia

 

LEGISLATION:: Muslim Women Protection Act of 1986 The Muslim Women Protection of Divorce Rights for Muslim Women Act was passed in 1986 in response to the Muslim Indian community's outcry against the Indian Supreme Court's decision in the Shah Bano case (1985). The Court held that a Muslim husband must pay maintenance amounts to his ex-wife for life-maintenance during the divorce waiting period. But many Muslim leaders considered this to be an intrusion onto their practice and perspectives on traditional Islamic personal law. The Act in effect overrode the Court's decision of 1985, limiting maintenance provisions to those that would be due during the divorce-waiting period alone (traditionally three months). Read more. Image credit: India Times

 

TRENDING: When Is a Texas "Poll" about Sharīʿa Not Really a Poll and Not Really about Sharīʿa? A Texas state legislator, Representative Kyle Biedermann, recently sent out what he called a poll to mosques across the state. It was a seven-page series of documents that selectively drew on false notions of Islamic law (i.e. sharīʿa) that are uninformed by fact, history, or sociological practice.  Sharīʿa , in fact, is the Arabic word for an ideal of justice, and often is used to refer to  fiqh  -- manmade constructions of that ideal. To refer to either is to refer to a broad and diverse legal system that is informed by different cultural contexts, scholarly interpretations, and community discussions over time and space. These facts' absence from the poll underscore the need for more informed discussion about Islamic law, or sharīʿa, especially as it becomes more and more a matter of  local  and  national  debate in our legislatures and  courts. Image Credit: SHARIAsource

 

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Jan 2017, no. 4
Jan 2017, no. 4

Women’s Right to Divorce under Islamic Law in Pakistan and India Indian Muslim women's rights are once again manifesting as debates over talaq (divorce). Shayara Bano, who holds an advanced degree in sociology, petitioned the Indian Supreme Court last year to rule on the constitutionalism of triple-talaq, in which a Muslim husband may divorce his wife by simply saying "talaq" three times with our without her consent. After she suffered fifteen years of mental and emotional abuse from her husband, he surprised her with a divorce, leaving her with little recourse for arguing terms. Shayara Bano v Union of IndiaWrit Petition (Civil) 118 of 2016 continues the pattern of using divorce cases as proxies for progressing women's rights. Pakistan editor Zubair Abbasi notes that this is not unique to India; Pakistani judges have also "tried to ensure gender equality under Islamic divorce law, but adopted entirely different approaches." Different judgments on various landmark cases inform these approaches. Citing the Qur'an, the Indian Supreme Court ruled in Shamim Ara v. State of U.P. (2002) that a Muslim man may not divorce his wife without reasonable cause, in effect limiting a Muslim husband's prerogative to divorce. In comparison, the Lahore High Court in Pakistan chose an opposite approach in the 1959 Balqis Fatima case by expanding Pakistani Muslim women's judicial right to khul' (a woman's limited right to divorce). The Supreme Court of Pakistan agreed with this reasoning nearly a decade later in the Khurshid Bibi case, citing the Qur'an to emphasize a husband and wife's mutual rights and obligations. Both approaches theoretically advance the cause of gender equality, but Abbasi emphasizes the unequal results. For women such as Shayara Bano who live in fear of surprise divorces, the Pakistani approach would have provided her with the agency to declare a definite divorce, an arguably more effective and desirable outcome than the possibility of forced reconciliation. Read more. Image credit: Newsgram

 

JUDGMENT :: Fatima vs Qureshi (Pakistan, 1959) Judged by the Lahore High Court in Pakistan, this case advanced Muslim wives' divorce rights in Pakistan.Three judges ruled that Islamic law -- that is, according to the Hanafi School prevalent in Pakistan -- requires a harmonious marriage. Should this not be possible, a woman is within her rights to obtain a khul' (divorce declared by the wife) as long as she is willing to return any benefits received from her husband.The Supreme Court of Pakistan would go on to uphold this reasoning in later cases. Read more. Image Credit: Wikipedia

 

AALS Leadership Issues Statement: Of Commitments to Academic Freedom, Diversity, and Faculty Safety, including the Section on Islamic Law In a message to member law schools of the Association of American Law Schools (AALS), officers of AALS remarked on ideological attacks against members who are affiliated with Islamic law, either professionally or personally. The Association stated its commitment to the safety of faculty at members schools and reiterated its “core values” of academic freedom and diversity. Should any members witness threats to academic freedom or safety of faculty, AALS will be ready to assist. Read more. Image credit: AALS

 

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Feb 2017, no. 1
Feb 2017, no. 1

The Dubai International Financial Centre and a Systems-Based Model for the Regulation of Islamic Finance UAE editor Paul Lee explains how the Dubai International Financial Centre's systems-based model is one solution for creating a sharīʿa-compliant financial system. "The Dubai International Financial Centre (“DIFC”) is a parallel legal system to the legal systems of the Emirate of Dubai and the UAE as provided for by a series of federal and local laws. The Constitution of the UAE generally confers exclusive authority to the federal government to regulate enumerated areas including, among other matters, 'civil and commercial transactions and company law,' while conferring residual authority to the individual emirates.However, the UAE amended its Constitution in 2004 to allow for legislation governing the establishment of Financial Free Zones, which are 'exempted from having to apply the rules and regulations of the Union.'” Read more. Image Credit: Wikipedia

 

LEGISLATION:: Dubai Law No. 12 of 2004: Judicial Authority in the DIFC This legislation established the Dubai International Financial Centre's court system. Read more. Image credit: Business Dubai

 

CASE: Jihad v. Fabian (D. Minn., USA, 2010) This case examines religious accommodation of Muslim prisoners in Minnesota prisons. The plaintiff claimed that adequate services were not offered for prayer and dietary requirements.  Read more. Image credit: J. Scott Applewhite | Star Tribune

 

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Feb 2017, no. 2
Feb 2017, no. 2

Gender Issues Are a National Problem, Not Just a Muslim Problem: A Response to Baroness Cox’s Statement Guest contributor Hadeer Soliman counters Baroness Cox's statement proposing Amendment 219(C) to the Policing and Crime Bill. "Baroness Cox, a cross-bench member of the UK House of Lords, recently proposed Amendment 219(C) to the Policing and Crime Bill, which would require celebrants of religious marriages to take all reasonable steps to ensure that the marriage complies with the marriage laws of England and Wales. The Amendment attaches criminal sanctions of up to three years of imprisonment for the failure to comply. Although the law does not specify a religious group, Cox said in her statement proposing the Amendment that it has “specific relevance for Muslim women who are adversely affected by the discriminatory rulings of many Sharia councils.” In her statement, Cox said that she was motivated by “deep concern” for women. Despite her claims that the amendment does not subscribe to anti-Muslim or anti-Islam sentiment, Cox’s proposal raises concerns about the way public officials approach and understand Islamic law and customs. Cox’s statement does not address how this amendment would solve the problem of unregistered marriages, given that the current language of the existing Marriage Act of 1949 already recognizes marriages only if they are solemnized by authorized individuals, marriages solemnized under the Church of England, practices of the Quakers or of the Jewish faith, or marriages that take place in a registered building." Read more. Image credit: Getty Images 

 

LEGISLATION :: Arguments on Amendment 219 (C) to the Policing and Crime Bill (UK, 2016) Proposed by MP Baroness Cox, the amendment requires all religious marriages to comply with English and Welsh marriage laws. Read more. Image credit: Creative Commons

 

CASE: Shamin v. Siemens Indus. (N.D.Ill., USA, 2012): Workplace Retaliation Claim In a case of discrimination in the workplace, on the basis of a Muslim plaintiff’s practice of Islamic ritual law, the plaintiff claimed he was unfairly discharged from a hostile work environment a few years ago. He alleged that derogatory comments about his religion and ethnicity were directed at him. These charges were brought against his former employer under Title VII of the Civil Rights Act of 1964. Respondents filed a motion to dismiss, stating the plaintiff's claims were procedurally barred. Read more.  Image credit: J. Scott Applewhite | Star Tribune

 

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Feb 2017, no. 3
Feb 2017, no. 3

Legal History of Religious Accommodation and Muslim Prisoners Guest contributor Bernard Freamon discusses the history of religious accommodation in prisons. "Four Muslim prisoners incarcerated in four prisons in the Michigan prison system just settled a federal lawsuit against prison officials. The lawsuit, Conway v. Purves, No. 13-cv-10271 (E.D. Michigan, 2017) alleged that the prisoners were denied sufficient nutrition when they fasted during Ramadan in 2011 and 2012. Although the Michigan prison system employs dietary policies allowing prisoners to fast during Ramadan, the prisoners claimed that the caloric intake provided to them fell far below national standards, resulting in the deprivation of a healthy diet resulting from their choice to follow Islamic ritual laws mandating a fast during daylight hours during the month of Ramadan. The prisoners alleged that this set of circumstances violated their constitutional right to the free exercise of religion, to be free from cruel and unusual punishment while incarcerated, and to equal protection of the laws, and that the prison officials also violated various federal statutory provisions...This settlement should not surprise anyone familiar with federal law or with the legal history of claims by incarcerated Muslims seeking recognition of their right to appropriately fast during Ramadan, in accordance with the dictates of Islamic law. In point of fact, there is an important history of claims by Muslim prisoners seeking the right to pray, fast, provide and receive charity, name themselves, marry, dress, employ hygienic practices, and engage in other behaviors mandated by Islamic ritual law. Consider the famous episode of Muhammad Ali and his use of Islam to appeal to social justice and to advance U.S. civil rights. Such claims can be traced back to the 1940’s, when Elijah Muhammad and members of the Nation of Islam were incarcerated for refusing to submit to draft board orders to join the U.S. military and fight in World War II, as in Clay v. United States. His fight was a prelude to the fight that these prisoners continue. In that sense, the actions of the Nation of Islam, and its campaign to achieve recognition and protection in America’s prisons, have been described by one author as 'landmarks in American religious and legal history.'" Read more. Image credit: Lucy Nicholson/Reuters

 

CASE: Conway v. Purves (E.D. Mich. 2013): Dietary Accommodations during Ramadan Four Muslim prisoners brought a suit against the Michigan Department of Corrections, claiming that the meals that were provided to them during the month of Ramadan provided inadequate nutritional and caloric value. They cited violations of their First and Eighth Amendment rights. Read more. Image credit: J. Scott Applewhite | Star Tribune

 

EVENT: Khizr Khan Speaks at the Kennedy School Retaliation Claim Khizr Khan spoke at the Harvard Kennedy Schoolon February 15th, discussing the recent election among other topics. HLS professor and SHARIAsource founding editor-in-chief Intisar Rabb moderated the forum, asking Khan to share his personal insights on issues of public policy.  He focused on the Constitution as a guiding force for his moral compass, especially in times of personal conflict. Watch here. Image credit: Harvard Center for Public Leadership

 

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Mar 2017, no. 1
Mar 2017, no. 1

CASE: Aleem v. Aleem (Md. Ct. App. 2008): Barring Unilateral Divorce Abed Awad, U.S. Editor, summarizes one of his recent cases on family law in which the plaintiff claims his maʿzūn-authenticated ṭalāq defers judgment of the divorce to the Family Court in Egypt."The story of Fouad v. Magdy, No. 312366/15, 2017 WL 485798 (N.Y. App. Div., 2017) starts in Egypt. In 2006, Dina and Amr—both Muslim Egyptian citizens—fell in love. They married shortly thereafter in Egypt and had two children. Amr accepted a job in Dubai, where the couple lived until 2012, when Amr was admitted to the MBA program at MIT. After his graduation in 2014, the family moved to New York City when Amr accepted an investment associate position at Deutsche Bank. It seemed like the parties had everything going for them, until Amr admitted he was having an extramarital affair. Amr convinced Dina to return to Egypt temporarily to give them space to work on their marriage. In July 2015, Dina and the children went to Egypt to stay with her parents. Sometime in October of that year, Dina realized that Amr was not interested in salvaging their marriage. On October 9, 2015, Dina filed for divorce in New York. Shortly thereafter she filed a motion seeking temporary financial support while the divorce action was pending. On October 20, 2015, eight days after being served with Dina’s New York divorce complaint, Amr, through a proxy, met with a maʿzūn—a government official similar to a municipal clerk. He asked the official to preside over and memorialize his ṭalāq (a type of divorce in Islamic law initiated by the husband) in an administrative action designed to dissolve his marriage. The law seemed to be on his side in Egypt. In Egyptian law, the maʿzūn possessed the authority to preside over marriages and these types of male-initiated divorces. In addition, Egyptian law, like Islamic law, permits Muslims to marry and divorce by proxy, that is, to have a representative in his or her stead to marry or divorce on his or her behalf. (In Egypt, a marriage is dissolved through either judicial dissolution or administrative dissolution. Amr chose to go the administrative route.). Dina was not present, but she would theoretically thereafter receive a copy of the completed ṭalāq decree notifying her that Amr had divorced her." Read more. Image credit: Billy Hathorn/English Wikipedia

 

CASE: Aleem v. Aleem (Md. Ct. App. 2008): Barring Unilateral Divorce During trial court proceedings in which a Muslim couple was dividing their marital property, the husband, Mr. Irfan Aleem, attempted to perform a “triple ṭalāq” divorce—a form of final, irrevocable dissolution of marriage under Pakistani law, initiated unilaterally by the husband. The Court refused to honor this type of divorce, concluding that it violated due process rights guaranteed by the Fourteenth Amendment by not giving Mrs. Farah Aleem any role or voice in the divorce proceedings. Read the case or see our simplified narrative. Image credit: J. Scott Applewhite | Star Tribune

 

EVENT: Amna Akbar on U.S. Law Enforcement and Counter-Radicalization Efforts SHARIAsource recently hosted noted scholar and civil rights attorney Amna Akbar, Assistant Professor of Law, The Ohio State University. Akbar provided a series of research findings from her study of counter-radicalization efforts by US law enforcement. Using her clinical practice as a source for discussion, Professor Akbar highlighted the impact these efforts have on social cohesion and community building. Read more. Image credit: Darrick Northington/SHARIAsource

 

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Mar 2017, no. 2
Mar 2017, no. 2

Freedom of Religion Under Threat Across Europe After EU Court Rules Employers Can Ban Headscarves Guest contributor Sara Silvestri examines the latest in the recent developments of the European headscarves debate."Employers across Europe have been given the green light to ban staff from wearing religious and political symbols after a ruling by the Court of Justice of the European Union (ECJ). The ruling opens up a Pandora’s box and could disproportionately affect Muslim women facing requests to remove headscarves in some places of work across Europe. But it is also likely to affect other people that display their religious affiliations through their dress, such as Sikh men, Orthodox Jewish women, nuns working in hospitals or schools, or those who overtly display their political affiliations or sympathies. The ECJ ruling related to two cases brought by national courts in France and Belgium, regarding Muslim women who had sued their employers. The women argued that they had been discriminated against at work for being asked to remove their veils – one by the employer and the other by a customer and subsequently by her employer – and were sacked when they refused to do so. Within the EU, national laws about equality and non-discrimination in the workplace are governed by an overarching EU directive from 2000, and the French and Belgian courts wanted clarification from the ECJ around how to interpret the law in these cases. The ruling will not allow employers to systematically ban the hijab and other religious and political symbols in all workplaces, but it does provide ammunition for those who want to ask their staff not to display religious symbols. The ECJ decided that if an employer’s goal is to provide services to customers in a neutral way, it is entitled to request its employees to remove visible religious or political symbols. But this logic around respecting the neutrality of the employer’s goals remains fuzzy, and seems to go against a previous ruling from the European Court of Human Rights, which has upheld the rights of employees to display religious symbols at work as part of their religious freedom." Read more. Image credit: Shutterstock

 

CASE: EEOC v. Abercrombie & Fitch, 575 U.S. __ (2015): "Ḥijāb Case" Facts: Respondent (Abercrombie) refused to hire Samantha Elauf, a practicing Muslim, because the headscarf that she wore pursuant to her religious obligations conflicted with Abercrombie’s employee dress policy. The Equal Employment Opportunity Commission (EEOC) filed suit on Elauf’s behalf, alleging a violation of Title VII of the Civil Rights Act of 1964, which, inter alia, prohibits a prospective employer from refusing to hire an applicant because of the applicant’s religious practice when the practice could be accommodated without undue hardship. Read the case. Image credit: J. Scott Applewhite | Star Tribune

 

The Ongoing Public Debate on Islam in the Netherlands Jan Jaap de Ruiter discusses the public debate on Islam and sharīʿa in the Netherlands shortly before the March 15th parliamentary elections. "The public debate on Islam and sharīʿa in the Netherlands is lively. A danger overshadowing this discussion is the polarizing rhetoric of populist parties. " Read more. Image credit: Daily Mail

 

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Mar 2017, no. 3
Mar 2017, no. 3

Pakistan’s Federal Shariat Court and the Islamization of Prison Laws Judgment of 2009: Continued Expansion of Jurisdiction Student editor Noor Zafar examines how the Federal Shariat Court of Pakistan expanded its jurisdiction through its interpretation of "injunctions of Islam." "In the 'Islamization of Prison Laws' judgment of 2009, the Federal Shariat Court of Pakistan (FSC) expands its original jurisdiction by broadly construing the term 'injunctions of Islam.' It construes the term to both include general Islamic principles and 'the letter and the spirit' of said principles. This latter construction also gives the FSC wide interpretive discretion. In this judgment, the FSC was required to determine whether certain aspects of the Prison Rules of 1978, The Prisons Act of 1894, and the Code of Procedure of 1898 were 'repugnant to the injunctions of Islam' and in violation of the Pakistani Constitution. The petitions were filed by individuals complaining about, among other things: the unequal treatment of prisoners based on social class, the placement of women in the custody of male wardens, and various inequities in criminal procedure of hearing.The FSC is jurisdictionally limited to reviewing only laws that are potentially repugnant to Islam, that is, on constitutional grounds. Before it can proceed to the merits of the case, it engages in a three-part repugnancy test to determine whether the challenged laws fit within its jurisdiction.

  • Step 1: Determine whether the stated injunction of Islam covers the impugned provision of law or both are related.

  • Step 2: Determine whether the provision of law being challenged and the injunction of Islam can be harmonized.

  • Step 3: Determine whether the impugned provision of law can be given effect without violating 'the letter or spirit' of the injunction of Islam." Read more. Image credit: Pakistan Supreme Court

     

    Pakistan Penal Code (Act No. XLV of 1860) "This is the original and current Pakistani criminal code, dating from the British Raj. It has been amended and revised over the years." Pakistan's Federal Shariat Court analyzed this code, along with many others, for its 2009 "Islamization of Prison Laws” judgment of whether contemporary penal codes were in violation of Islam.  Read the code. Image credit: The Express Tribune Blog

     

    Islamic Law in U.S. Courts: Husein v. Husein and Husein, WL 842023 (Ohio Ct. App. 2001) This case examines how matters of divorce and inheritance under Islamic law can be decided in U.S. courts when the circumstances have multiple people claiming to be a deceased individual's living spouse. This is part of SHARIAsource's Islamic Law in U.S. Courts series. Read more. Image credit: United States Supreme Court

     

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Apr 2017, no. 1
Apr 2017, no. 1

Review :: Fadel on the Function of the “Interest Ban” in Islamic Finance Student editor Alicia Daniel reviews Mohammad H. Fadel, Ribâ, Efficiency and Prudential Regulation: Preliminary Thoughts, 25 Wisconsin Journal of International Law 655 (2008)"Islamic finance creates financial products specifically aimed at Muslims that are sharīʿa compliant. Many scholars have condemned Islamic finance for condemning ribā (interest) on the one hand, particularly where usurious, but then many others have created workarounds that allow modern big-finance firms to avoid it in name only on the other hand. Those who argue against the workaround argue that nominal interest-avoidance goes against the spirit of the guidelines set forth in Islamic law (sharīʿa). Weighing in on the controversy, University of Toronto Law Professor Mohammad Fadel considers whether ribā might serve a function that goes beyond simple definitions of it as either interest or usury. Historically, the prohibition on interest was a means of regulating medieval financial industries, in ways that have little application to the modern financial instruments. The medieval prohibitions and the modern controversies about Islamic finance then, he argues, are misaligned and need rethinking. This post provides a “plain English” review of the article: Mohammad H. Fadel, Ribâ, Efficiency and Prudential Regulation: Preliminary Thoughts, 25 Wisconsin Journal of International Law 655 (2008)." Read more. Image Credit: SHARIAsource

 

Reconciling the Impermissibility of Conventional Options Contracts with the Bai’ al-Urbun Guest contributor Meagan Froemming counters critics of modern Islamic finance practice by highlighting overlooked innovations of some financial instruments. Read more. Image credit: Raconteur/Russian Council

 

Islamic Law in U.S. Courts: Vinewood Capital v. Dar al-Maal al-Islami Trust (5th Cir. 2008) This case examines a mudaraba agreement signed in Texas, and whether its signatories are subject to its arbitration clause when the signatories have also signed a prior contract.  This is part of SHARIAsource's Islamic Law in U.S. Courts series. Read more. Image credit: United States Supreme Court

 

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Apr 2017, no. 2
Apr 2017, no. 2

What Does it Mean for U.S. Court Decisions to be “Based On” Islamic Law? SHARIAsource editor Will Smiley questions the strength of the arguments behind proposed "anti-sharīʿa" legislation in Montana, including claims of Islamic law undermining American law. "Americans continue to debate, as they have since at least 2010, whether states should ban their courts from considering Islamic law, or “foreign” law more generally, in their decisions. Montana’s pending SB 97, if passed, would be one such ban, preventing courts from “bas[ing] its ruling or decision on a law, legal code, or system that would not grant the parties affected by the ruling or decision the fundamental liberties, rights, and privileges granted under the Montana constitution or the United States constitution.” A recent editorial in the Montana Standard, written by Cindy Sanderson, advocates this bill by citing several cases in which courts, she argues, have cited Islamic law. This list of cases, however, conflates several different things. Some of these decisions involved parties who tried to rely on Islamic beliefs in their arguments; others involved parties who made agreements based on their understanding of Islamic law; and others still involved court decisions from foreign countries whose law is partly inspired by Islamic law. These are all different situations. More importantly, just because all of these cases involved Islamic or foreign law in some way, does not mean that courts followed Islamic law, or based their decisions on Islamic law. That is the critical issue, because only decisions based on foreign law would be banned by Montana’s SB 97. Only a few of the cases Sanderson cites have been based on foreign law, and only after courts considered whether that law met American standards. This is clear by reviewing a few of the cases at issue." Read more. Image credit: KBOW550

 

Country Profile on Bahrain This Country Profile provides a basic overview of the legal history and institutional structures of the Kingdom of Bahrain (Mamlakat al Bahrayn), which is a member state of the Organisation of Islamic Cooperation. This Profile is based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Bahrain’s Constitution, Islamic law (sharīʿa or fiqh) is a principal source for legislation. Read more. Image credit: BBC/Getty

 

Islamic Law in U.S. Courts: Balk v. New York Inst. of Tech (E.D.N.Y. 2013) This case examines whether U.S. Courts are allowed to compel witnesses for violations of U.S. law in Bahrain. The case specifically examines violations of Title VII. This is part of SHARIAsource's Islamic Law in U.S. Courts series. Read more.  Image credit: United States Supreme Court

 

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Apr 2017, no. 3
Apr 2017, no. 3

Islamic Law Lexicon :: Ḥadīth SHARIAsource regularly draws on the work of Senior Scholars to illuminate complex topics in Islamic law “in plain English” and to showcase some of the diversity of thought and legal debates that arise around applications of these concepts in Islamic legal history and practice. This week, Joseph Lowry(University of Pennyslvania) succinctly defines and analyzes the term ḥadīthḤadīth is basically defined as “the corpus of traditions from the Prophet”; the reports of words and sayings attributed to the Prophet Muḥammad (for Sunnīs) as well as to a series of Imāms who succeeded him (for Shīʿa); and the text of the second source of Islamic law. Now for more context: Muhammad is undoubtedly one of the central figures in Islamic law and authority. His legal authority emanates from two primary phenomena. First, he is the transmitter of God’s divine revelation, that is, the Qur’an. Therefore, he is the immediate, although not ultimate, source of divine commands. Second, a complex set of prophetical sayings and teachings is attributed to the Prophet (hadith). Though inspired by divine will, these sayings constitute Muhammad’s direct contribution to Islamic law, consolidating his centrality to Islamic authority. " Read more. Image credit: The Centre for Academic Shi’a Studies

 

CCASE: The State of Bombay v. Narasu Appa Mali In Narasu Appa Mali in 1952the Bombay High Court limited its own ability to address the constitutionality of Muslim personal law in India, holding that personal laws are not “laws in force” within the purview of Article 13 of the Constitution, and thus need not satisfy the fundamental rights test. Read more. Image credit: Local Press Co.

 

EVENT: Shah Waliullah Dehlavi and His Neglected Views on Islamic Law Islamic Legal Studies Program SHARIAsource / Fulbright Fellow Dr. Mubasher Hussainintroduced the work of Shah Waliullah Dehlavi to the Harvard community on 17 April 2017. Hussain discussed Shah Waliullah often-overlooked thoughts on Islamic jurisprudence, focusing on the ways in which he differentiated between scholars of Islamic law labeled “first rank independent muftis” and “first rank affiliated muftis.” Read more.  Image credit: Darrick Northington

 

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May 2017
May 2017

Religion vs. State in the Arab World: Comparing Constitutions Nathan Brown, Professor of Political Science and International Affairs at the Elliot School of International Affairs at George Washington University, asserts that "Arab constitutions are not abnormally religious," even though they legally integrate religion in different ways. "Religion appears in the constitutions of the Arab world, almost all with Muslim majorities, in a variety of ways. But aside from ensuring a public role for religion, most of these states are not theocratic. Instead they show considerable diversity by invoking religion (including clauses religious exercise and religious freedom) in at least six ways. Read more. Image credit: Wikimedia

 

RESOURCES: Country Profiles on Islamic Law SHARIAsource's resources now include country profiles! These profiles outline the contemporary legal landscape, and the status of Islamic law within each, of the countries and major regions of the world. For example, Bahrain's Country Profile  includes its  constitution and other sources in Arabic and English to help users conduct research or contextualize analyses about Islamic law in that country.  Image credit: National Geographic

 

EVENT:: The Transformation of Anglo-Muhammadan Law: Muslims on British Benches On April 25th, SHARIAsource Fellow, Dr. Sohaira Siddiqui, at the Islamic Legal Studies Program used the 1881 case of Fidayat ul-Nissa and others  v. Muhammad Ismail Khan (India) to frame her discussion of the creation of Anglo-Muhammadan law. Like the other five cases that she has researched during her fellowship this year, this case  demonstrates the complexity of this hybrid legal system that combined British law with Islamic law in helping to usher on modern models of Islamic law in nation states today. Image credit: Darrick Northington 

 

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Jun 2017
Jun 2017

Sharīʿa Clauses in Constitutions of the Muslim World: Where Did They Come From? What Do They Mean? This week focuses on the meaning of Islamic constitutionalism -- the practice in some Muslim-majority countries of including Islamic law (or sharī ͑a) as a part of state law, together with rights and structures that borrow from American and European constitutions. Alicia Daniel reviews senior scholar Clark Lombardi's article, “Constitutional Provisions Making Sharīʿa ‘A’ or ‘The’ Chief Source of Legislation: Where Did They Come From? What Do They Mean? Do They Matter?” Called “sharīʿa clauses,” these provisions typically name some undefined version of Islamic law as “a chief source” or “the chief source” of national state law. Although the phrasing of these clauses seems quite similar, aside from the use of "a" or "the," some scholars and government officials have ascribed special significance to the differences between them. But the history and interpretation of these sharīʿa clauses reveals otherwise. Moreover, examination of these clauses historically and in view of court precedents from the constitutional courts interpreting each, suggests important insights into ways in which sharīʿa clauses interact with liberal ideas about governance and about the role of religion in law in Muslim-majority countries that officially recognize some aspect of Islamic law. Read more. Image credit: The National (UAE)

 

Islamic Finance: New Developments in Morocco’s Sharīʿa-Compliant Banking Morocco editor Ari Schriber recently interviewedNour-Eddine Qaouar, a sharīʿa auditor at Dar Assafaa, the Islamic window of Attijariwafa Bank in Morocco. The interview sheds light on Morocco's recent efforts to develop a system of sharīʿa-compliant banking. The interesting feature of Morocco's attempts is that it must confront Issues unique to its preferred school of law, Mālikism, with the other main Islamic finance systems (in SE Asia and in the Gulf), which tend to adopt the interpretations of other Islamic legal schools of how a sharīʿa-compliant financial system should look. Read more. Image credit: Morocco News

 

Circulaire Bank al-Maghrib The shari’a board of the Central Bank of Morocco issued a new memorandum (circulaire) in January 2017 with a diverse set of fatwās and regulations governing Islamic financial instruments in Morocco. This new memorandum follows a recent  practice of The Central Bank, which has been gradually increasing the rate at which it issues such memoranda since the Participatory Finance Law 103.12 was issued in 2015 in favor of Islamic finance industry. See the document. Image credit: Middle East Confidential

 

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Sep 2017
Sep 2017

Response to the Indian Supreme Court’s Recent Decision on Triple Ṭalāq: A Legislative Proposal In a recent blockbuster case, the Indian Supreme Court declared triple ṭalāq unconstitutional, and gave the legislature six months to decide on appropriate reforms. Pakistan editor Zubair Abbasi responds to the decision and outlines considerations the legislature might address if it is open to engaging in comparative analysis by "taking into account the applicable Muslim divorce laws in various countries." Read more.  Image Credit: Wikipedia

 

Indian Supreme Court Judgment Declaring Triple Ṭalāq Unconstitutional In a 3-2 decision, the Supreme Court of India declared triple  ṭalāq  unconstitutional and gave India’s parliament six months “to consider legislation” for revising the practices previously addressed through triple  ṭalāq . In its opinion, the Court cited global advances in Islamic family law (in India, called Muslim personal law), including Islamic law jurisdictions (which India is not) as evidence of the need for legislative reform. Read more.  Image credit: Wikimedia

 

Round-up on Triple Ṭalāq The Indian Supreme Court's recent decision on the constitutionality of triple  ṭalāq is built upon cases from past decades. In this post, we round up some of those cases and commentary about them by editors who work on the region. India editor Akhila Kolisetty addresses the underlying tension between gender equity and a secular state demonstrated in the Danial Latifi case; Pakistan editor Jeffrey A. Redding argues that the crucial 2002 Shamim Ara case telegraphs the judiciary's intention to assert the unique authority of the modern Indian state. Read the full round-up. Image credit: Indian Supreme Court

 

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Oct 2017
Oct 2017

South African High Court Rules the “Wills Act” of 1953 Unconstitutional Citing Discrimination Against Muslim Marriages Contributor  Katherine Gonzalez  considers how the recent decision of the Western Cape High Court in Cape Town, South Africa regarding the term “surviving spouse” applies to Muslim marriages. The High Court reasoned that the 1953 Wills Act was inconsistent with the South African Constitution because it discriminated against Muslims. In her post, she further reviews that ways in which the Court sought to rectify the constitutional violation. Read more. Image Credit: Wikipedia

 

Moosa No. et al. v. Harnaker et al. (Western Cape High Court, South Africa, 2017) In a recent and long-anticipated decision issued in September 2017, a Western Cape High Court in Cape Town, South Africa declared the 1953 Wills Act inconsistent with the South Africa Constitution. The Court reasoned that the statute’s provisions were previously interpreted to recognize only legal marriage (according to civil law) and not Muslim marriages. This, it concluded, was inconsistent with the anti-discrimination provisions of the South African constitution. Read more. Image credit: Alcuin TK Lai/Flickr

 

Country Profile & Constitution: South Africa SHARIAsource has completed a series of Country Profiles outlining the structure, sources of law, and constitutional status of Islamic law in most countries of the world; and we have collected the constitutions of the world through The Constitute Project. This South Africa Country Profile provides a basic overview of the legal history and institutional structures of the Republic of South Africa. Under South Africa's Constitution, Islamic law (sharīʿa  or fiqh) has no legal status. Image credit: Nations Online Project

 

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Nov 2017
Nov 2017

SHARIAsource Book Release: Justice and Leadership in Early Islamic Courts ILSP: SHARIAsource will be releasing the next book in the Harvard Series on Islamic Law this winter. Edited by Intisar A. Rabb and Abigail Krasner Balbale , this book presents an in-depth exploration of the administration of justice during Islam’s founding period, 632–1250 CE. Inspired by the scholarship of Roy Parviz Mottahedeh and composed in his honor, this volume brings together ten leading scholars of Islamic law to examine the history of early Islamic courts. This approach draws attention to both  how and  why  the courts and the people associated with them functioned in early Islamic societies: When a dispute occurred, what happened in the courts? How did judges conceive of justice and their role in it? When and how did they give attention to politics and procedure? Each author draws on diverse sources that illuminate a broader and deeper vision of law and society than traditional legal literature alone can provide, including historical chronicles, biographical dictionaries, legal canons, exegetical works, and mirrors for princes. Altogether, the volume offers both a substantive intervention on early Islamic courts and on methods for studying legal history as social history. It illuminates the varied and dynamic legal landscapes stretching across early Islam, and maps new approaches to interdisciplinary legal history. Image credit: Harvard Law School Library

 

Codifying Polygamy in the 1957 Moroccan Mudawwana Earlier this year, Tunisia lifted the 1973 ban on Muslim women marrying non-Muslim men and is considering equalizing inheritance laws for men and women, on arguments based on the post-Arab Spring 2014 constitution calling for gender equality. This development follows in a line of earlier precedent for personal status code reforms, and the recent actions beg the question about comparative practice based on modern interpretations of Islamic law or Mālikī law. For perspective on both, student editor Ari Schriberdiscusses Morocco's 1957 Personal Status Code as the country's first unified set of family law statutes. Read more. Image Credit: Wikipedia

 

Sharifian Decree of 1957 - The Mudawwana : Law of Personal Status This section of  Morocco’s Official Gazette, al-Jarīda al-Rasmiyya , officially promulgates the first two books of the Moroccan Personal Status Code, the  Mudawwana . The first book presents the stipulations concerning marriage, including issues such as the contract, dowry, and inhibitors (like number of wives). The second book deals with the dissolution of marriage, thus addressing conditions of repudiation, women’s repudiation, and the  ʿidda (the woman’s waiting period until she may remarry).   Read more. Image Credit: Wikipedia

 

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Dec 2017
Dec 2017

Ijāra Financing and Religious Tax Exemption Status of Financed Property U.S. Editor Abed Awad examines the implications of the 6th Circuit's decision in October regarding the financing of an Islamic Center through ijāra. To fund construction for a new building without violating their understanding of an Islamic law prohibition against usury (or interest), the Islamic Center of Nashville (ICN) entered into an ijāra agreement with Devon Bank. Under the agreement, Devon Bank had legal transfer of the building's title until ICN could fully purchase the building's construction, similar to a rent-to-own arrangement. After ICN paid off the building loan, ownership was transferred to ICN from Devon Bank. When ICN applied for a property tax exemption, the state of Tennessee denied the exemption for the period in which Devon owned the building, but granted it for the time after. ICN appealed, seeking a full tax exemption for the entire period. But the court dismissed the appeal on grounds that it lacked subject matter jurisdiction. Abed Awad commented that: "These types of ijāra transactions are common and routine. There is nothing unusual or extraordinary about the Islamic Center’s ijāra financing transaction, except that the Islamic Center of Nashville is a tax-exempt not-for-profit religious organization. Once title to the property was transferred to the Lender, the Nashville tax authorities returned the property on the Tax Rolls. The Islamic Center objected to the taxation, arguing that nothing had changed insomuch as the property continued to be exclusively occupied by the Islamic Center and continued to be utilized exclusively for the Center’s tax-exempt religious purposes." The decisions suggests a need for more deliberation about compliance of Islamic finance agreements with U.S. Laws and regulations in order that the private agreements of the former comply with and benefit from the latter. Read more. Image credit: Islamic Center of Nashville

 

Islamic Center of Nashville v. Tennessee ( M.D. Tenn 2016 & 6th Cir. 2017 ): Tax Status of I jāra -Financed Center When the Islamic Center of Nashville sought to finance its center without paying interest, it entered into an agreement with a local bank that might have complied with Islamic law but been at odds with current understandings of tax exempt law. The state of Tennessee denied the Center's request for tax exemption for the time period in which the local bank owned the building. ICN appealed the decision, but the trial court found that it had no subject matter jurisdiction to hear the case. The U.S. Court of Appeals for the Sixth Circuit affirmed the district court's decision. Read more.  Image credit: Wikipedia

 

Muslim Cmty. Ass'n of Ann Arbor & Vicinity v. Pittsfield Charter Twp. (E.D. Mich. 2013): Discrimination in Zoning Regulations The Plaintiff, the Muslim Community Association of Ann Arbor, challenged the Pittsfield Charter Township for its refusal to re-zone the area surrounding the Plaintiff so that the Plaintiff could expand and build a school. Although an independent outside planner endorsed the rezoning, the Plaintiff alleged that the Respondents denied rezoning due to concerns stemming largely from an animus to the Islamic faith. The Plaintiff claimed that the Respondents discriminated against the organization in violation of the Religious Land Use and Institutionalized Persons Act, the Fourteenth and Fifth Amendments of the U.S. Constitution, and "state law claims" in the Michigan state constitution. Read more. Image credit: Wikipedia

 

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2016

Jul 2016, no. 1
Jul 2016, no. 1

SHARIAsource Hosts Major Conference on Judicial Procedure As a flagship project of the Islamic Legal Studies Program (ILSP), SHARIAsource hosted a conference on Courts and Judicial Procedure in Early Islamic Law this spring at Harvard Law School. The conference honored Professor Roy Mottahedeh's retirement with an impressive array of scholarship on questions about the actual practice of Islamic law in its founding period. We may know much about the substance of early Islamic law, but even as we contest it, we know little about the procedures that litigants followed when they came to early Islamic courts. Participants from around the globe addressed this theme as a way of gaining insight into the full workings of Islamic law--both its substance and procedure. Read more. Image credit: ILSP at Harvard Law School 

 

SHARIAsource blog is Now LIVE SHARIAsource's blog is now live! We'll be updating regularly with experts' insights into Islamic law and policy. If you have questions or ideas, f eel free to email us with a post or article pitch. Read more. Image credit: SHARIAsource

 

What Kind of Islamic Law Debates Arise after Violent Acts? On our new blog, Iran editor Roozbeh Jabbarizadeh organizes his thoughts about the pressure on Muslims to respond after violent acts. He reflects on how the response demanded is usually one of justification or defense.  Read more.  Image Credit: http://www.factcheck.org/2015/12/dearborns-anti-isis-rally/ 

 

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Jul 2016, no. 2
Jul 2016, no. 2

Paul Beran Joins SHARIAsource as Executive Director Paul Beran joins SHARIAsource as its executive director. Beran joins SHARIAsource from the Radcliffe Institute for Advanced Study, and will be drawing from deep wells of experience in leading academic and policy-oriented projects. ILSP Director and SHARIAsource founding editor-in-chief Intisar Rabb expressed her excitement at Beran’s hire and confidence in his contributions and leadership of the ongoing operations. Echoing the sentiment were Jonathan Zittrain and Chris Bavitz,  both faculty directors at Berkman Klein Center, which supports SHARIAsource. Beran joins at a time where SHARIAsource is needed more than ever, and will help shepherd an array of new activities and initiatives in the months ahead.  Read more. Image credit: ILSP

 

Orlando and the Narrative of Good Muslim/Bad Muslim South Asia/Pakistan editor Jeff Redding parses the violence and motives behind last month's attack in Orlando. Warning against the media and public's tendency to reduce Muslims to "good" or "bad," Redding's piece encourages readers to think about such attacks within more nuanced frameworks.  Read more. Image credit: Gillian Blease, patheos.com 

 

No, Newt: Rhetoric Doesn't Change the Law U.S. editor Abed Awad summarizes the intentional inaccuracy of Newt Gingrich's comments from last Thursday. Like many other current politicians', Gingrich's comments further the mistaken conflation of shari'a and Islamic law. Read more. Image credit: Reuters

 

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Jul 2016, no. 3
Jul 2016, no. 3

When State Legislative Bans on Islamic Law Contravene Federal Constitutional Law Guest blogger Saeed A. Khan argues that “anti-sharia” bills now popular in many states are tools that are often explicitly designed to win elections, but that implicitly infringe on constitutional values ranging from free exercise of religion to women’s access to reproductive health care. On his analysis, “80% of 102 anti-Sharia bills introduced between 2011 and 2013 were sponsored or co-sponsored by a legislator who supported other rights-restricting laws. Most notably these included voter ID and right-to-work laws, measures that impact disproportionately on the rights of other groups including Latinos, African-Americans and women.” His findings are illustrated in an interactive map made by Hassan Jibril at the Institute for Social Policy and Understanding; it charts over 1,600 instances of restrictive legislation in all 50 states. Click on the image above to access it.  Read more. Image Credit: https://www.ispu.org/visualization

 

CASE COMMENTARY: The Shah Bano Case as a Marker of Constitutional Conflict in India’s Muslim Family Law India editor Akhila Kolisetty highlights the Shah Bano Case as a marker of constitutional conflict between the Indian government's civil laws and its Muslim citizens' personal status laws. The Indian government hoped to reconcile the tension through its 1986 Muslim Women (Protection on Divorce) Act, which left open for interpretation the status of Muslim women under the Indian government. Read more. Image credit: India Today 

 

CASE DOCUMENT: Moh'd Ahmed Khan v. Shah Bano Begum et al. (Supreme Court of India, 1985) The Shah Bano case is a landmark and controversial case in India’s Supreme Court that dealt with the question of the length of time a Muslim ex-husband would have to provide his ex-wife with monthly maintenance payments after a divorce, under Muslim personal law and Indian civil law. Much debated in classrooms and casebooks on comparative constitutional law, it is one of the cases featured on SHARIAsource with commentary that helps place it in context.  Read more. Image credit: mediadefence.org 

 

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Aug 2016, no. 1
Aug 2016, no. 1

The Question of Sharīʿa in Denmark Denmark contributor Niels Vinding comments on recent discussions of sharīʿa in Denmark that have arisen on the basis of uninformed media reporting, which has had the consequence of sparking legislation that may have discriminatory effects on Muslims. These developments come in the wake of the Danish documentary Under the Veil of the Mosque, which he labels a misguided attempt to pin the difficulty surrounding Muslim integration into liberal Danish society on the moral preaching of conservative Muslim clerics. He disassembles the documentary and its implicit conclusion that "sharīʿa councils were working towards keeping parallel societies for Muslims within Denmark," which led to calls for limits to be placed on freedom of religion or belief for Muslims, supposedly in the interest of maintaining public order. The documentary depicts an imām’s clerical advice as an active disregard of Danish law, but Vinding argues that it is in fact an exhortation to his followers to refrain from sin; it is not an order, but an entreaty that demonstrates full awareness that his moral discourse based on a theological understanding of sharīʿa has no legal enforcement under Danish law. Read more. Image credit: Reuters/Facebook 

 

Headscarves and the Court of Justice of the European Union: Two Opposing Opinions Guest writer Erica Howard discusses the decision facing the European Court of Justice on two cases concerning headscarves worn by Muslim women at work in Belgium and France, respectively, in accord with their beliefs and practice of Islamic law. Two advocates general heard the cases in a consolidated hearing and came to two different conclusions – albeit citing many of the same articles of the EU law governing religious discrimination and accommodation in the workplace: Directive 78/2000/EC. Howard credits their differences to differing interpretations of 'occupational requirement,' and how liberally this should be defined with respect to religion. The ECJ must now resolve the issue, which could set the tone for how employers regard questions sharīʿa in the EU workplace. Read more. Image credit: NBC 

 

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Aug 2016, no. 2
Aug 2016, no. 2

What is the Right Definition of Sharīʿa: Medieval or Modern? In a recent interview aired on NPR, senior scholar Khaled Abou El Fadl disentangles historically-grounded definitions of sharīʿa from public misunderstandings of it. The problems fueling those popular misunderstanding are twofold. First, there is a conceptual problem. Most of the public does not know what sharīʿa means. On a basic level, he defines it as "the law of goodness," which individuals must struggle to interpret in a way that brings that ideal to reality in their own lives and laws. Second, there is a political fear. The policies that some individuals fear from sharīʿa are artifacts of medieval applications of it that today are simply not feasible or effective, even for Muslims. With that idea in mind, Abou El Fadl separates the conceptual definition of sharīʿa from its violent image, and points out the modern failures of the states and non-state actors that perpetuate certain medieval policies, which sometimes inform this violent conceptualization. In doing so, he illustrates the fallacy of fearing sharīʿa itself and instead invites listeners to learn more about sharīʿaRead more. Image credit: NPR

 

CASE COMMENTARY: Pakistan’s Federal Shariat Court Expands its Jurisdiction through the Protection of Women Act 2006 Guest contributor  Noor Zafar argues that the Federal Shariat Court of Pakistan used Pakistan's Protection of Women Act of 2006 as part of its efforts to broaden its jurisdiction. To do so, it sought to redefine Islamic criminal law in that country: the body of law called hudud crimes. Ostensibly, the Court used a new definition of crime to regain some of the control it had under the Hudud Ordinances of 1979. But the effects were broader. The crime-redefinition created Federal Shariat Court with an expansive jurisdiction over civil and criminal law. Read more. Image credit: The Express Tribune

 

CASE DOCUMENT: Protection of Women Act 2006 (Pakistan) In response to international criticism of the 1979 Hudood Ordinance, which set forth harsh penalties for criminal law violations, the Pakistani parliament enacted the Protection of Women Act ten years ago. That aftermath is relevant once again with the protests against recent legislation called the Punjab Protection of Women against Violence Act. The first Act removed the crimes specified in the Hudood Ordinance from the Federal Shariat Court(FSC)'s exclusive jurisdiction. This move set off a flurry of petitions, one of which claimed that the Act itself was unconstitutional, because Pakistan's constitution deferred to the FSC for judgment of Islamic criminal law in Pakistan. As a result, theFSC expanded its jurisdiction. The question that now arises with the new Act is whether the FSC’s jurisdiction extends to the new Act, and  how it will respond to the protestors claiming that the new legislation is in violation of Islamic law. Read more. Image credit: Dawn

 

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Aug 2016, no. 3
Aug 2016, no. 3

Rational Actors in Sharīʿa?: An Interview with Professor Anver Emon Senior scholar Anver Emon spoke with SHARIAsource Research Editor Sharon Tai about the role of the state and rationality in Islamic law. Speaking as a legal historian, Emon discusses how the misunderstandings of Islam have led American foreign policy to interpret Islam and sharīʿa as an ideology, leading to failures of foreign policy that mimic those of the Cold War. He points out the fallacy of this reduction by calling the idea of "obedience to the divine" found in Islamic law as "not the site of irrationality, but rather the site of creative rationality," one that deals with the "epistemic gap" between knowing that one cannot know the divine law and attempting to create a moral legal system that aims at its ideals nonetheless. To find out how, read more. Image credit: http://www.anveremon.com/

 

Legal Entrepreneurs in the Halal Industry: The Case of Sharīʿa in China China editor Matthew S. Erie assesses the Chinese government’s attempts to legally respond to its Muslim Hui population’s calls for greater regulation of halal food to accommodate this group of over 10 million Chinese citizens who identify as Muslim. In Erie’s estimation, both the call and response counter the original secular intentions of a socialist legal system. As the Muslim concerns grow for regulation in line with Islamic law, the PRC wishes to treat all its citizens the same: as a religious citizens. With that wish becoming untenable, do questions of Muslim minorities in China become one of contemplating legal pluralism and ensuring domestic peace? Read more. Image credit: Xiao Lu Chu, Getty Images

 

The Limits of State Religion and Non-Muslim Minorities: The Moroccan ‘Baha’i Affair’ of 1962 Amidst the tensions raised by Islamic constitutional states as they deal with non-Muslim minorities, worth considering is how Muslim-majority states have resolved the issue in the past. Morocco editor Ari Schriber considers the political ramifications of Islamic laws governing religious minorities in an episode that faced Morocco as it gained independence: Morocco's 1962 Baha'i Affair. Morocco's then-recent independence heralded a progressive government set on both protecting non-Muslims and affording Islam priority as a state religion. Schriber uses the Baha'i Affair to exemplify the tension between these two governmental aspirations, and to discuss how this tension resonated with legal and communal structures in its aftermath.  Read more. Image credit: stock-clip.com

 

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Aug 2016, no. 4
Aug 2016, no. 4

SHARIAsource and the Need for Islamic Digital Humanities: A Response to “A Political History of Digital Humanities” in the LA Review of Books Editor-in-chief Intisar Rabb brings SHARIAsource and the study of Islamic law into the greater discussion of technology and the humanities. She responds to recent arguments made against digital humanities. In a recent article in the LA Review of Books, Daniel Allington and his colleagues suggest that digital platforms may distract from text-based analyses. But those very platforms may remind readers of the difficulties some fields, such as Islamic law, face in accessing these very texts. Scholars and researchers of Islamic law still face a dire need for greater accessibility, and the "digital humanities" projects that aim to give it – like SHARIAsource and Brown University’s Digital Islamic Humanities project – assuage these difficulties by bringing together experts, making way for more comparative research, and helping to facilitate qualitative and quantitative research results. Read more. Image credit: http://www.digitalmeetsculture.net/

 

Intellectual Property for Islamic Law? Deriving Similar Patent Regimes from John Locke and the Qurʾān When it comes to new technology and Islamic law, it turns out that the principles of Western intellectual property law are quite similar to Islamic property and contract law, according to Turkey editor Gizem Orbey. On her analysis, the latter permits the same applications as the former. Consider John Locke's considerations on property in his Second Treatise on Government. They compare closely to the Qurʾān’s proclamation that, although all property belongs to God in its natural state, people may create ownership by making something useful through labor. Because a patent or license can be considered a contract between a state operating as an individual and the inventor, copyright and ownership laws would, she argues, be in line with the Islamic law of property. Read more. Image credit: SlideShare

 

New Trends in Regulating Risk in Islamic Finance Innovation occurs as well in ways less tangible than what is traditionally defined as 'technology,' as UAE editor Paul Lee's piece on Islamic finance suggests. Lee details how U.S. and U.K. courts have attempted to marry Western and Islamic finance without compromising the principle of fair competition. Unlike patents or licenses, however, financial contracts must prioritize uncertain results, acknowledged by Islamic legal systems as ghararand Western court systems' approaches to regulation. Partly due to this uncertainty, and different strategies in accounting for it, an optimal compromise between Islamic and Western finance remains to be created. As of yet, such regulatory inventions occur on an ad hoc basis. Read more. Image credit: Blog: Brave Organization Never Dies

 

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Sep 2016, no. 1
Sep 2016, no. 1

SYMPOSIUM :: ISLAMIC LAW IN CHINA Chinese Muslim Scholars Respond to "Is there an Islamic Law Basis for the Authority of Female Clerics among Chinese Muslims?" China editor Matthew Erie turns to four prominent clerics and scholars in China to address the striking feature of Islamic law’s operation in China: female clerics who have equal standing to male clerics among the Hui Chinese Muslims. Called nü ahong, these female clerics assume the roles of imām (prayer leader), khaṭīb (sermon giver), and mediator. In a secular, state-controlled system such as China's, Muslim clerics have no means of legitimizing their own interpretations of Islamic law (fiqh) through state-sanctions channels. And yet these female clerics have been able to do so, without any sort of government ordinance. Moreover, they act without any explicit Qurʾānic directive. Measured against traditional interpretations of Islamic tradition, it is curious then that Chinese Muslims accept the authority of these female clerics as equal to that of their male counterparts; and the legal basis for the practice remains a point of contention among Chinese scholars of Islamic law. Erie takes up this question. He "examines the question of the legal basis for Hui female clerics through the opinions of leading clerics and scholars—female and male—from China, most of who are themselves Hui." This symposium is meant to "open up a space for reflection on and deliberation about an enduring feature of Muslim life in China and its connections to gender, culture, custom, and Islamic law," and its four opinions hint at the variety of perspectives. As Erie's introduction reveals, Mai Fenlian's necessity argument counters Liu Xueqiang's more traditionalist considerations, while Ge Caixia's historically-based perspective challenges the views influenced by "custom-based, gender relations" held by some of the Hui women interviewed for Man Ke's piece. Each opinion is posted in its original Chinese, with Erie's English summary of it. Image credit: NPR

 

SYMPOSIUM :: The Case for Female Clerics in Islamic Law: Textual Bases,Old and New, Religious and Secular Mai Fenlian (买粉连) is a former cleric who argues that there is a textual basis in Islamic law for female clerics. She suggests that evidence can be found in the Qurʾān and ḥadīth (prophetic reports) supporting "women's equal footing in religious life" and legitimizing "women's activities in social activities, from education to war." To be sure, she hedges the textual argument with an argument about the benefits, commenting that having more knowledgeable Hui women would lead to "more harmonious families and communities." Another scholar, Ge Caixia (葛彩霞), also uses Islamic law texts as the basis for her main argument in favor of female clerics’ authority, citing a ḥadīth relaying that "the Prophet Muhammad’s wife Aisha taught Islamic law, among other topics, to women." She complements the Islamic law texts with an argument from modern Chinese law, which "defines the requirements for an 'Islamic staff member' [to be] gender-blind." Image credit: BBC 

 

SYMPOSIUM :: The Case Against Female Clerics in Islamic Law: A Cultural Basis Does Not a Legal Basis Make Cleric Liu Xueqiang (刘学强) examines arguments rooted in cultural norms to find a legal basis for female clerics. He concludes that "female clerics originate[d] in the particular historical-cultural environs of the Central Plains of China," out of the region's "traditions of scriptural education." For him, though, these origins are at odds with fundamental Islamic principles espousing gender complementarity rather than sameness. Professor Man Ke's (满珂) assessments confirm Liu's cultural argument about the origins of the practice. She finds that "custom-based gender relations influence" Salafī women– that is, those who adhere to Saudi Arabia-inspired conservative interpretations of Islamic law that purport to go back to Islam’s founding period – to "consistently" believe that women can only be "female teachers," and never authorized clerics. Image Credit: Wikipedia

 

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Sep 2016, no. 2
Sep 2016, no. 2

Does a Muslim Inmate Have a First Amendment Right to a Halal Meal? U.S. editor Abed Awad contrasts an inmate's right to religious practice with the responsibility of correctional facilities. The American Civil Liberties Union (ACLU) recently filed Gannon Thomas v. Boon County Sheriff on behalf of Gannon Thomas, an inmate in Indiana who claims he has a right to halal meals as a practicing Muslim. Awad considers Gannon's claim of violated religious rights within the narrative of past cases pertaining to religious diets and the American penitentiary system.  Read more. Image credit: Getty Images

 

The Anatomy of SHARIAsource: An Interview with Research Editor Sharon Tai Sharon Tai spoke with journalist Noor Ali for the September/October 2016 issue of Islamic Horizons. Tai summarized the mission of SHARIAsource, which is to make content and context on Islamic law accessible to a wide audience. A central part of this effort is the creation of an online portal of Islamic legal texts and relevant expert commentaries, both historical and contemporary, to facilitate global information-sharing, exchange, and debate. In addition to highlighting the current and future features of the portal, Tai addressed the academic complexities and potential challenges of the project. Read more. Image credit: Islamic Horizons Sept/Oct issue

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Sep 2016, no. 3
Sep 2016, no. 3

A Court by Any Other Name: State 'Courts' and Sharīʿa Councils Southwest Asia/Pakistan editor Jeff Redding compares ongoing debates in Britain about the use of Islamic law in courts with those in India, based on his own research on India's dar ul qazas (so-called sharīʿa courts). In Vishwa Lochan Madan v. Union of India, the Supreme Court of India threatened to dismantle the dar ul qazas in a controversy about whether these forums for dispute resolution, which were not state-associated, count as courts. In that sense, Redding suggests that the controversy became a "nomenclature debate" that should be about more than just words. For Redding, these courts, state-associated or not, function by following some formalized proceedings. On that view, he proposes shifting the debate from one about semantics or definitions to focus on "what we want to see in a proceeding, rather than whether it is a 'court' proceeding per se." Read more. Image credit: Glenn Harvey/The Sun

 

CASE DOCUMENT: Vishwa Locan Madan v. Union of India (Supreme Court of India, 2005) A landmark case that began in 2005, Vishwa Lochan Madan v. Union of India brought to bear the legal status of dar ul qazas, or sharīʿa courts, in India. The Supreme Court of India issued a decision in 2014, stating that non-state sanction courts of Islamic law have "no legal sanctity" in India. Nonetheless, the constitutional entanglements with legal pluralism, secularism, and rule of law that this case illuminated for Indian courts will be occupying legal scholars for years and cases to come. Read more. Image Credit: Wikipedia

 

Islamic Law and Policy: A Brief History of the French Burkini Ban UK/Europe/Southeast Asia editor Rachel Mazzarella chronicles the history of the French burkini ban in the context of French-style secularism, laïcité. She explores the extent to which this system permits or constrains accommodations of Islamic law and practice against the recent history of similar cases. The last ten years saw a litany of French bans on religiously-affiliated attire, which subordinate Muslim individuals' conceptions of 'awra (privacy, which is closely related to rules for modesty) to a government-informed definition of social integration. Read more. Image credit: Vantage

 

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Sep 2016, no. 4
Sep 2016, no. 4

The Construction and Failure of Islamic Laws of Evidence in ISIS's State-Building Project Guest contributor Mara Revkin outlines the legal infrastructure of ISIS. She argues that the movement's barbarism and apparently wanton acts of terrorism belie a self-contained legal system based on Islamic law – including the Islamic law of evidence. Using interviews with eighty-two Syrians and Iraqis, Revkin reconstructs how evidence is used within ISIS's purported borders. However, although ISIS leaders aim to consistently use the evidentiary laws to aid in their state-building endeavors, she argues, they ultimately undermine that very code of evidence and the state-building efforts because of the increasing internal corruption and impunity of actions within their ranks. Read more. Image credit: Mara Revkin/Brookings

 

Does ISIS Really Follow the Salafī Version of Islamic Law and Theology? Guest contributor Jacob Olidort critically examines ISIS's claim of adherence to the doctrine of Salafism, a popular orientation among conservative Muslim clerics who attempt to model their actions on a certain vision of law and theology in the early Muslim community. A scholar of modern Salafī thought himself, Olidort concludes that ISIS's claims are at odds with Salafī doctrine. Contrary to conventional Salafī doctrines, ISIS displays more affinities to politics than theology; many of its state-building activities are at odds with traditionally Salafī teachings, including the very concept of a caliphate. ISIS uses Salafism as a political vehicle, concludes Olidort, to establish credibility for their ambitions. Read more. Image credit: Sudan Tribune 

 

In Summary: SHARIAsource Events ILSP: SHARIAsource hosted the first of its lunch discussions on Sep 16, entitled “From Big Law to Public Service in the White House,” featuring Raheemah Abdulaleem, JD’01, who serves as Associate General Counsel in the Executive Office of the President in the Office of Administration at the White House. Abdulaleem spoke to current HLS students about her first years as a newly minted lawyer in private practice, her later pro bono and civil rights work at the DOJ, and the path that she eventually took to the White House. On Sep 16 - 17, Intisar Rabb and Paul Beran convened with scholars at the workshopActivism, Advocacy, and Scholarship on Islam in the Digital Realm at Boston University’s Pardee School of Global Studies. Hosted by Michael Pregill, the workshop explored new problems and prospects of building out resources in digital Islamic humanities. On Sep 21, SHARIAsource, hosted an open house, where faculty and staff welcomed members of the HLS and University community to the SHARIAsource offices in Austin Hall – which is now open as a research and gathering space for students and scholars working on Islamic law. A full crowd included a mix of JD, LLM, and PhD students, scholars in related fields, law librarians, and members of the wider community with a general interest in Islamic law. Read more. Image Credit: SHARIAsource

 

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Oct 2016, no. 1
Oct 2016, no. 1

CASES TO WATCH: Can a Judge Determine Acceptable Religious Attire in a Quebec, Canada Courtroom? Guest contributor Jennifer Selby uses the recent case of Rania El-Alloul in Quebec, Canada to situate the ongoing debate occurring at the intersection of secularism and religious freedom. Calling her courtroom a "secular space," provincial court judge Eliana Marengo dismissed Rania El-Alloul from her courtroom for wearing a headscarf (ḥijāb). Selby examines the legality of this decision by appealing to both text and precedent. In her estimation, although previous judicial decisions allow women to cover even more, with face veils (niqābs) in the courtroom, those precedents do not bar Marengo's decision. El-Alloul's case, challenging that decision, is significant for determining "whether judges will continue to set these parameters" for what they deem to be an acceptable practice of religion generally, and of Islamic beliefs in particular, within the Canadian courtroom. Read more. Image credit: Steve Rukavina/CBC

 

CASE: 2012 Judgment on Wearing a Niqab in a Canadian Court (Canadian Supreme Court, 2012) In N.S. and the Queen v. Ontario Human Rights Commission et al, the Canadian Supreme Court, 2012 was asked to determine whether a woman was impermissibly barred from wearing a face veil (niqāb) in court during a sexual assault trial. N.S., as she is referenced in court documents to protect her identity, wore a face veil (niqāb) in her daily life. Chief Justice Beverly McLachlin concluded that the answer, in short, depends. While declining a bright line rule against permitting veil removal or barring it, the Court held that a judge must strike a “just and proportionate balance between freedom of religion and trial fairness, based on the particular case before the court.” The case has since proved to be key in the debate between secularism and religious freedom, showing that the two ideals are not dichotomous. Read more. Image credit: Straight Good News,

 

In Summary: SHARIAsource Joins in the Launch of t he Berkman Klein Center for Internet & Society: On Power and Participation in the Networked Public Sphere A stellar line-up of Berkman Klein directors, fellows, former fellows, and project directors formed a panel that discussed avenues for conversation and collaboration on cutting-edge scholarship and technology both within and outside of established distribution mechanisms. Professor Intisar Rabb, SHARIAsource founding editor-in-chief, spoke about her role in and the compelling reasons for forming SHARIAsource, which immediately garnered the support of the Berkman Klein Center in 2014. She pointed to the need for an academic and public understanding of what sharīʿa is and is not. With collaborations facilitated in part by Berkman Klein colleagues, the project has taken up several questions that seek to make academic information on Islamic law accessible and useful to specialists and non-specialists alike: How can we collect sources on Islamic law and organize vast quantities of information in a way that provides a viable research tool on par with U.S. and other legal databases? How can we ensure that the diversity of Islamic law is maintained even as we seek to facilitate scholarly and public engagement about particular pressing problems of the day? How do we help inform academic, policy, and media conversations about Islamic law? Professor Rabb also discussed how a greater understanding of the context and nuance of Islamic law can impact the construction and implementation of law in a diverse number of societies. The event – organized by the Berkman Klein Center to celebrate its renaming with a gift from Michael Klein – attracted approximately 100 people in Wasserstein Hall, including Mr. Klein, and was followed by a reception and dinner at the Harvard Art Museums. Image Credit: SHARIAsource

 

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Oct 2016, no. 2
Oct 2016, no. 2

Heterodoxy Among Muslim Judges: On Attempts at Jokes and Judicial Constraints Incoming Senior Fellow at ILSP: SHARIAsource, Maribel Fierroexamines a scene of heterodoxy in therecently published English translation of The Ultimate Ambition. Translated from Arabic into English for the first time in full by Elias Muhanna of Brown University, The Ultimate Ambition was written in the 14th century by a retired Egyptian bureaucrat named Shihab al-Din al-Nuwayri. Fierro looks at a scene in which the judge Yaḥyā ibn Aktham is asked to explain the meaning of desire. When he gives a humorous answer, the theologian Thumāma expresses displeasure. Fierro portrays the theologian's reproach as an expression of his anxiety about the prevailing attitude of being "relaxed" about codified practice and decorum. But, Fierro observes, the judge's attitude was not unique to his time. She discusses ways in which exchanges like that one continue to this day. Read more. Image credit: Public Domain

 

Book Profile: The Ultimate Ambition in the Arts of Erudition The Ultimate Ambition in the Arts of Erudition by Shihab al-Din al-Nuwayri, edited and translated from Arabic by Elias Muhanna, Manning Assistant Professor of Comparative Literature, Brown University, (New York: Penguin, 2016).

This incredible work provides background for Maribel Fierro’s post on joking judges in early Islamic courts, and shows how the encyclopedic works of Mamlūk times can be a source for Islamic law. The following summary comes from the publisher, Penguin Random House.
 
“For the first time in English, a catalog of the world through fourteenth-century Arab eyes—a kind of Schott’s Miscellany for the Islamic Golden Age. An astonishing record of the knowledge of a civilization, The Ultimate Ambition in the Arts of Erudition catalogs everything known to exist from the perspective of a fourteenth-century Egyptian scholar and litterateur. More than 9,000 pages and thirty volumes—here abridged to one volume, and translated into English for the first time—it contains entries on everything from medieval moon-worshipping cults, sexual aphrodisiacs, and the substance of clouds, to how to get the smell of alcohol off one’s breath, the deliciousness of cheese made from buffalo milk, and the nesting habits of flamingos. Similar works by Western authors, including Pliny’s Natural History, have been available in English for centuries. This groundbreaking translation of a remarkable Arabic text—expertly abridged and annotated—offers a look at the world through the highly literary and impressively knowledgeable societies of the classical Islamic world. Meticulously arranged and delightfully eclectic, it is a compendium to be treasured—a true monument of erudition.”
Image Credit: SHARIAsource


 

In Summary: SHARIAsource Workshop Talk with Osama Siddique The Other Pakistan: Special Laws, Diminished Citizenship, and the Gathering Storm Osama Siddique, the Henry J. Steiner Visiting Professor in Human Rights at Harvard Law School, led a discussion on Friday, September 30th at the International and Comparative Law Workshop on the link between failures in legal institutions and the rise of the Taliban in the Swat region in Pakistan. The discussion was based on research Siddique conducted in the region. Instead of focusing on prescriptive models for solutions, the discussion examined problematic tensions between the region's various interests. Among the conflicting parties were the mainstream Pakistani courts and the traditions of dispute resolution within FATA (Federally Administered Tribal Areas) and PATA (Provincially Administered Tribal Areas), two distinct legal entities in Pakistan. Led by Professor Intisar Rabb and Professor William Alford, the workshop pulled at threads of history, sociology, and economics.  Through the discussion, participants drew parallels between other regions' challenges and considered how different types of research methods can produce more applied findings. Image Credit: SHARIAsource

 

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Oct 2016, no. 3
Oct 2016, no. 3

Iran’s New Islamic Penal Code: Have International Criticisms Been Effective for Children and Juvenile Offenders? Professor Intisar Rabb and Iran editor Marzieh Tofighi Darian analyze changes made to statutes defining juvenile crimes and punishment under Iran's new Islamic Penal Code, passed in 2013. The  Code follows a traditional dichotomy between ḥudūd fixed crimes and qiṣāṣ retaliatory scheme (which are directly incorporated from classical Islamic law interpretations of criminal law into the modern Code) and taʿzīr discretionary (which are acts left to the government to regulate). But the reform has not been balanced to address modern needs and developments in the link between maturity and accountability. The authors see the different means of assessing children's maturity as problematic for reform, especially under the hudūd-qiṣāṣ section of the Code. Because crimes in this category are derived from classical Islamic law interpretations, Iranian officials find little room to legally redefine them or their associated punishments. Through a side-by-side comparison of the hudūd-qiṣāṣ and ta’zir sections of the Code, the authors suggest areas for which new attempts at reform may focus. Read more. Image credit: Tofighi Darian/Rabb

 

NEW LEGISLATION: Iranian Islamic Penal Code of 2013 An example of one of the many contemporary primary sources that will be available when the SHARIAsource portal launches publicly later this year, the new Islamic Penal Code of Iran was adopted in May 2013 and entered into force the same year in the Islamic Consultative Assembly. It consists of four books: General Provisions, Ḥudūd (Crimes), Qiṣāṣ (Penalties), and Diyāt (Monetary Compensation for Homicide and Personal Injury). The reforms outlined in this version were the results of five years of debate both in and outside of parliament, in view of the international community's criticisms of their previous penal code. Read more. (Must have SHARIAsource access)  Image credit: Iranian Penal Code 

 

CASES TO WATCH (UPDATE): Can a Judge Determine Acceptable Religious Attire in a Quebec, Canada Courtroom? Guest contributor Jennifer Selby answered this two weeks ago in her earlier post on the Ranial El-Alloul case in Quebec. There, she concluded that, "for the time being, yes, a Quebecois provincial judge can dictate religious attire in her courtroom. However, we must wait to see how El-Alloul’s case for clarification unfolds to see whether judges will continue to set these parameters or not." In a new development, we get a glimpse into how Quebec Superior Court Justice Wilbrod Décarie's October 3rd ruling may impact future cases. Décarie's ruling had avoided declaring any bright-line rule as to whether religious attire is allowed in the courtroom. Selby's updated post now explores the implications of that ruling. She forecasts that an appeal may result in a "more decisive (and perhaps divisive)" clarification. Read more. Image credit: THE CANADIAN PRESS/Ryan Remiorz 

 

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Oct 2016, no. 4
Oct 2016, no. 4

Islamic Law and Policy: Privacy in Islamic Legal History Utrecht University's Chair of Arabic and Islamic Studies Christian Lange takes a historical view on the question of privacy in Islamic law. On his review of the medieval discussions of privacy, he notes that they arise mainly in the domain of the private sphere of the family and sometimes have trickle-down effects into the criminal law arena. "Norms, attitudes, and concepts implying an "ethos of anti-exhibitionism," including the "inviolability (ḥurma) and dignity (karāma) of the human body," are relaxed for family members. Within criminal law, high standards of evidence protect familial privacy by deterring baseless accusations of criminal misconduct, in part, by excluding evidence obtained from outsiders' prying eyes. [Consider this an early form of the U.S. exclusionary rule, which some Justices believe to be unique to American law!] Nevertheless, Lange concludes that the traditional notion of privacy in Islamic law is a concept that "lack[s] conceptual autonomy." Codified absolutes are uncommon. As a result, "[g]eneralizations are to be avoided, but communal interests seem to play a more important role in Islamic legal regulations of privacy than the protection of the rights of the individual." Read more. Image Credit: SHARIAsource

 

Islamic Law and Policy: Privacy in Islamic Law in the Modern State Guest contributors Vidusha Mardi and Bhaira Acharya examine issues of privacy and the state in Islamic law with the baseline argument that privacy is the default rule in Islamic law and that the public sphere, into which the state may intrude, is the exception to this rule. As they put it, Islamic law recognizes that "every society [must] impose certain requirements on individuals by the law and by societal norms," but anything not explicitly located within the worldly public sphere is assumed to reside within the domain of the private sphere. While the individual's relationship with the divine demands that she always "ordain good and forbid evil," state intrusion could be considered a trespass on a relationship meant to remain between the individual and the divine. Such invasion is, in the opinion of many modern jurists, "'exactly what Islam has called as the root cause of mischief in politics.'" Their views come from a longer report on privacy in Islamic law written for the Centre for Internet & Society in Bengaluru, India: Identifying Aspects of Privacy in Islamic Law.  Read more. Image Credit: Rueters

 

IN SUMMARY:: MLTalks Series at MIT: Intisar Rabb and Manal Omar in conversation with Ethan Zuckerman Ethan Zuckerman framed the conversation with HLS Professor and SHARIAsource Editor-in-Chief Intisar Rabband USIP VP for the Middle East Manal Omar as a discussion within a larger approach of the Media Lab’s aim to engage in solution-making dialogue from a techno-social perspective. Last week’s discussion tackled pressing questions of Islamic law as it intersects with American society and politics, civil rights, and US-based foreign policy for Muslim-majority countries. Omar provided insights on how humanitarian aid and development activities benefit from implementing strategies that incorporate religious literacy and the moral authority of religious leaders who appeal to sharīʿa as a working knowledge set. Rabb discussed the link between sharīʿa and civil rights in the American context, as the legacy of Muhammad Ali most powerfully demonstrates. Waves of African-Americans became Muslim out of impetus to fight for civil rights, seeing Islam as an equalizing force and sharīʿa as a call to fight for justice. For her, that legacy represented just one instance of a larger trend within a decidedly American experience of sharīʿa, one that she referred to in shorthand as "civil rights sharīʿa." When asked about the role of sharīʿa in educational and policy contexts, Rabb provided a framework for approaching discussions of Islamic law both online and offline -- in ways that track the major inspiration and mission of SHARIAsource in its design to provide content and context on Islamic law. Namely, she stressed the need to consider a large number of source materials, cultural contexts, and political realities when approaching any analysis of the meaning and application of Islamic law. Image credit: Paul Beran

 

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Oct 2016, no. 5
Oct 2016, no. 5

CASE COMMENTARY: Shamim Ara and the Divorce Politics of a Secular and Modern India There is a lot of talk about a controversial type of divorce – some see it as valid in Islamic law, but  others rail against it as anti-Islamic law – that may challenge the integrity and institution of marriage in secular societies, and has the Indian Supreme Court set for possibly banning the practice. What practice is that? It is the so-called triple-ṭalāq maneuver whereby Muslim men utter three “magic words” – ṭalāq, ṭalāq, ṭalāq (divorce, divorce, divorce) – to dissolve a marriage outside of the judicial system. Against that backdrop, it is worth revisiting the origins of the practice. South Asia editor Jeff Redding takes us back to a 2002 case to highlight ways in which a major factor that influences the Indian Supreme Court’s ṭalāq decisions is often overlooked: the "state vs. non-state character of ṭalāq." In the landmark case Shamim Ara v. State of U.P. (2002), the Court decided in favor of Shamim Ara, who sued her husband for maintenance fees, only to be told he had divorced her in a civil suit years prior using the private ṭalāq maneuver without her knowledge.The Court concluded that declaration of ṭalāq without her knowledge was illegitimate and ordered him to pay maintenance fees until the divorce had been effected with both parties' knowledge. Since, the decision has had a positive effect on Muslim women's welfare in India. But women’s welfare may not have been the driving concern of the Court. Instead, the case may have revealed the extent of the Indian government’s concerns with being seen as a secular and modern state on par with its peers. These concerns reveal themselves in several related cases: the Supreme Court's historical preference for arbitration and reconciliation over divorce; its historical reluctance to intervene in questions of Islamic family law, which usually involves divorce, and which therefore typically result in illiberal outcomes regarding women; and its reluctance to codify Islamic family law to set clear standards. Redding concludes that, in the 2002 case, the Indian Supreme Court's decision sought to preserve existing mores and project liberal aspirations by "allow[ing] divorce, while simultaneously attempting to distance itself—both figuratively and literally—from the practiced reality of it." The current row over triple ṭalāq currently before the Supreme Court will no doubt test these claims and may well explain the original outcome. Read more. Image credit: India New England News

 

CASE DOCUMENT: Shamim Ara v. State of U.P. (Indian Supreme Court, 2002) In this older case on ṭalāq (divorce) before the Supreme Court in India, an issue now before that Court again, the justices decided that a husband's filing for divorce without his wife's knowledge cannot be considered a valid declaration of ṭalāq. For the first time, the state formally decided what is or is not considered proper procedure for ṭalāq. Often considered a landmark case for Muslim women's welfare in India, the Shamim Ara case will no doubt shed light on the question currently before the Indian Supreme Court on the constitutionalism of triple ṭalāq. Image credit: The Indian Talks

 

IN SUMMARY:: Workshop: Digital Islamic Humanities & Early Arabic Printed Books Friday, October 21, 2016 | Brown University, Joukowsky Forum, Watson Institute | Led by Elias Muhanna. As part of a series on digital Islamic humanities, this program showcased a growing network of institutions and organizations using technology to enhance the study of Islam in all its facets, including Islamic law. Dr. Kathryn Schwartz of Harvard University outlined a major shift in the understanding of why Europe and the Middle East embraced printing at different speeds. She indicated that differences in technology are replacing lack of human agency as the most widely accepted reason. This approach embraces more squarely the extensive history of manuscripts in the Middle East region. Read more. Image credit: Paul Beran

 

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Nov 2016, no. 1
Nov 2016, no. 1

ELECTION DAY 2016 ISSUE Civil Rights Sharīʿa and the Elections as a part of the American Political Process On election day 2016, Professor Intisar Rabb, SHARIAsource founding editor-in-chief, reflects on the notion of “civil rights sharīʿa”: the role that Islamic law has historically played in honoring and pressing for shared commitments to justice and equality under the law. Modern American history already exemplifies this notion in the legacy of boxing legend Muhammad Ali, who died as a civil rights champion. In addition to advocating for the disadvantaged throughout his life, he once took his case against joining the U.S. military to fight in Vietnam all the way to the Supreme Court, and winning. All this he did on the basis his Islamic faith, that is, his understanding of sharīʿa that drove him to see that conflict as an unjust war against innocent civilians that did nothing to serve the cause of justice given the problems of racial inequality at home. In Ali's own words, “Why should they ask me to put on a uniform and go 10,000 miles from home and drop bombs and bullets on brown people in Vietnam while so-called Negro people in Louisville are treated like dogs and denied simple human rights? … Man, I ain't got no quarrel with them Viet Cong. No Viet Cong ever called me n****r." Rabb draws a parallel between this historical example of what she calls "civil rights sharīʿa" and the more recent example of Khizr Khan's speech at the Democratic National Convention this past July, where he exhibited forceful support for the U.S. Constitution as a Gold Star father of a U.S. fallen soldier, who – in contrast to Ali – died fighting in the U.S. military. One a Kentucky native, the other an immigrant, these two Muslims undeniably expressed a morality that differed strikingly from one another but was equally born of their American values and Muslim faith. Their stories powerfully correct a common misconception – highlighted in the sometimes vitriolic contests over the presidency this election term – that sharīʿa is fundamentally at odds with American values of liberal, constitutional democracy. Moreover, prior Islamic history demonstrates that Ali and Khan’s sense of justice and equality is not derived from a uniquely American belief. The historical record of Islamic law shows a precedent of support for the notion of fighting for justice on the basis of shared moral principles in mixed Muslim and non-Muslim settings. Demonstrating this claim is SHARIAsource senior scholar Sherman Jackson's recent article on “Islamic Law, Muslims, and American Politics.” There, Jackson examines the "intelligent moral principles" exemplified by the Prophet Muhammad's Treaty of Hudaybiyya, in which he prioritized peace over "everyone agreeing to the same theological or legal morality." These moral principles do not mutate or dissipate, but as Ali and Khan's actions demonstrate, they often adapt to the realities of the political climate and the demands of justice in any given time and place. Rabb emphasizes that, of course, "whether Muslim or non-Muslim, one should never assume that sharīʿa covers both substantive and administrative procedural laws, or both public law ... and private transactions." In short, under both modern and medieval definitions of sharīʿa, the laws of the state are customary norms that each citizen must follow. In this context, the commitment to upholding the values and spirit of that state are often aspirations rooted both in the U.S. constitution and the moral principles of sharīʿa. Read more.  Image credit: The Ringer, Harvard Law Today

From Harvard Law Today: A Citizen's Constitution
Earlier this year, Harvard Law Today interviewed alumnus Khizr Khan, HLS LL.M. '86, for its September 6th issue. Khan discussed how the course of his career from Pakistan to the United States shaped his dedication to American constitutional values, even after the death of his son Captain Humayun Khan in Iraq. A Muslim and published author on Islamic law, he says to those who fear sharīʿa and Islam as encroaching upon American values: “They need to read the Constitution. It has safeguards.... I’m an ordinary Muslim, and I ... am a protector of the United States … Islam has taught me to be caring, to be kind. My religion is to live peacefully with all other religions and all other peoples. Read more. Image credit: Mike Segar/Reuters

 

CASE: Islamic Family Law in U.S. Courts U.S. Editor Abed Awad has been collecting cases of family law related to Islamic law that get litigated as matters of contract in U.S. courts. For each case available in the SHARIAsource portal, Awad summarizes the facts, the issue, and the ruling of each case. From his case summaries, readers can quickly glean and compare how American courts decide family law cases in which prenuptial or/and related contracts contain terms drawn from varied aspects of Islamic law. The courts apply U.S. law to these private contracts, and the outcomes are far from uniform. For example, two cases decided in Virginia,  Afghani v. Ghafoorian  and Farah v. Farah, demonstrate how American courts can differ in resolving disputes at such intersections of law. (SHARIAsource beta access required). Image Credit: Wikipedia

 

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Nov 2016, no. 2
Nov 2016, no. 2

SHARIAsource TOOL:: Using Corpus Analysis to Study Media Discourse First there was Media Cloud -- an open source platform for studying media ecosystems developed by Ethan Zuckerman (an adviser to SHARIAsource) and his team at the MIT Media Lab. That tool allows researchers to track the way ideas spread through media, and shows that different corners of the media ecosystem report on stories differently. Building on Media Cloud is a tool that SHARIAsource Editor and MIT Media Lab research affiliate Ali Hashmi has been developing to analyze discourse on Islamic law (sharīʿa) in the media. On November 7, he and Research Editor Sharon Tai presented their preliminary findings with the first iteration of this tool in a talk on “Using Corpus Analysis to Study Media Discourse: Comparing Discussions of Islamic Marriage Reform in India and Pakistan.” The two applied machine learning to research media discourse on Islamic law and uncovered ways in which distinct nuances become conflated in varied media ecosystems. The tool analyzes large sets of text-based data by conducting what they call “critical sentiment analysis,” that is, by separating key terms into positive and negative ideas. As a case study, they applied their work to Pakistani and Indian newspapers to examine how conversations on Islamic law manifest in ongoing discussions of divorce and marriage reform. Osama Siddique, Henry J. Steiner Visiting Professor in Human Rights at Harvard Law School responded to the presentation with his commentary on the tool’s broader applications to research. When fully developed, this tool may well inform or analyze conversations about media and politics in discussions of Islamic law in the United States and around the world. Image credit: Paul Beran

REVIEW: Judges on Cushions and Under Trees: Thoughts on “Qāḍī Justice” and Hyperpolemics Guest contributor Haider Hamoudi reviews Professor Intisar Rabb's, SHARIAsource founding editor-in-chief, new article in the Suffolk Law Review entitled  Against Kadijustiz: On the Negative Citation of Foreign Law. Rabb focuses on how American courts have utilized inaccurate portrayals of "qāḍī justice" as antitheses to American court procedures. Hamoudi notes that this point is all the more important when one considers that using inaccurate and reductive caricatures to advance polemical arguments is a technique used as well in the history of Islamic law, to the detriment of the arguments. Read more. Image credit: Chester Beatty Library, Dublin

 

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Nov 2016, no. 3
Nov 2016, no. 3

DEVELOPMENTS IN DIGITAL ISLAMIC LAW :: New Tools that Range from Machine Learning to Mapping Islamic Legal Texts Preceding the annual Middle East Studies Association (MESA) conference in Boston, SHARIAsource hosted several events on emerging digital research tools featuring new research tools developed by Maxim Romanov (Universität Leipzig) and his team. The events covered digital mapping tools that can – among other historical questions – show the regions in which different approaches to Islamic law developed and spread, enable scholars to collaborate on creating a corpus of Arabic texts compatible with digital humanities tools, and allow comparisons between texts to show when and how much one scholar borrowed ideas from another. The major finding is this: after years of chasing a chimeric tool made up of the ability to manipulate Arabic PDFs (many of which are scans that remain static, like a physical book) and easy compatibility with machine learning and other digital humanities work (a tool long resolved for Latin characters), Romanov’s team has managed to capture the once mythical beast. For the first time in the field, the Islamicate Texts Initiative (ITI) has produced a high-accuracy optical character recognition (OCR) tool – with accuracy rates in the high-nineties – that will change the possibilities for digital Islamic law and digital Islamic humanities both. (The chart above illustrates the success rate for recognition when used on a number of different texts and scan qualities.) The ITI team, in addition to Romanov, includes Matthew Thomas Miller (Roshan Institute for Persian Studies, University of Maryland, College Park), Sarah Bowen Savant (Agha Khan University), and Benjamin Kiessling (Universität Leipzig). The events were sponsored or co-sponsored by the Islamic Legal Studies Program: SHARIAsource, the Center for Geographic Analysis at Harvard, and the Department of Near Eastern Languages and Civilizations (NELC).  Read more. Image credit: ITI/Important New Developments in Arabographic Optical Character Recognition (OCR)

 

DOCUMENT: Sharifian Decree of 1957 - The Mudawwana: Law of Personal Status Uploaded by Morocco editor Ari Schriber, "This section of al-Jarīda al-Rasmiyya officially promulgates the first two books of the Moroccan Personal Status Code, the Mudawwana (1957). The first book presents stipulations concerning marriage, including issues such as the contract, dowry, and inhibitors (like number of wives). The second book deals with the dissolution of marriage, thus addressing conditions of repudiation, women’s repudiation, and the ʿidda (the woman’s waiting period until she may remarry)." Read more. Image credit: SHARIAsource

 

SHARIAsource Welcomes New Program Coordinator Darrick Northington joined the SHARIAsource team last week as Program Coordinator. He brings amazing talents and experiences to the SHARIAsource's team. Darrick is a graduate of Indiana University (BA) and Harvard University (MTS), where he studied religion and US society, American pragmatism, and the history of political philosophy. He spent the last several years closely assisting friend and mentor,  Charles J. Ogletree Jr., Jesse Climenko Professor of Law at Harvard Law School. Most recently Darrick served as the House Administrator for The John Winthrop House. He brings many years of Harvard administrative experience to SHARIAsource, as well as a passion for academic study and racial and community justice. Image credit: Harvard

 

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Nov 2016, no. 4
Nov 2016, no. 4

Developments in Islamic Law: The Comparative Costs and Benefits of Models of Islamic Finance Regulation Islamic finance is under increased scrutiny. Just last week, the Accounting and Auditing Organization for Islamic Finance Institutions (AAOIFI) announced plans to more aggressively develop centralized standards to regulate the boards responsible for assessing sharīʿa-compliance among banks and financial institutions doing business in GCC countries. UAE editor Paul Lee provides some context. From a series of interviews he conducted last year with Islamic finance practitioners in the Dubai International Financial Centre (DIFC), he gleaned a number of insights and opinions in the industry useful for assessing the costs and efficacy of different models of  Islamic finance. Because Islamic law prohibits charging interest, sharīʿa-compliant banks must look to financial instruments that do not rely on interest. The industry has developed to offer three choices that coordinate among those instruments: a systems-based model, a centralized model, and a model of competitive equality. Each model relies on Sharīʿa Supervisory Boards (SSBs), but to varying degrees and with varying results. While the systems-based and centralized models save transactions costs by creating standards for best practices among financial agents, the systems-based model may allow agents to "shop" for sharīʿa advisors most amenable to their requests ( as would the competitive model), and the cost of standardization for the centralized model may result in overregulation that creates disincentives for investors. The Islamic finance jury is still out. The AAOIFI’s recent move may make available more empirical evidence to more decisively assess the efficacy of the centralized model, but more is required to assess the other theories.  Read more.  Image Credit: SHARIAsource

LEGISLATION: UAE Federal Law No. 8 of 2004 Regarding Financial Free Zones (2004) This federal legislation of the United Arab Emirates establishes and regulates Financial Free Zones in the sharīʿa-compliant UAE. In addition to defining how a Free Zone is established and operated, the statue also outlines how financial brokers and businesses may establish themselves within the Free Zones.  Read more. Image Credit: SHARIAsource

 

Professor Intisar Rabb Joins Emerson College's Engagement Lab Intisar Rabb, Professor of Harvard Law School and SHARIAsource founding editor-in-chief, has joined the Advisory Board of Emerson College'sEngagement Lab. Described as "an applied research lab for reimagining civic engagement in a digital culture," this unique organization's vision shares many commonalities with that of SHARIAsource. With twenty-six national partners and over a dozen projects incubating, the Lab focuses on using new media and data to increase media literacy and community engagement. Image Credit: SHARIAsource

 

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Dec 2016, no. 1
Dec 2016, no. 1

Debt and Bankruptcy in Classical Islamic Law Student editor Esther Agbaje (Harvard Law School) explores classical Islamic law's basic conceptions of debt and bankruptcy. While the main Islamic texts, the Qur’ān and Sunna (records of the Prophet Muhammad's teachings), provide principles for fiscal  matters, these principles are not enough to establish systems as complex as those in modern finance with a guarantee of soundness in terms of Islamic law. As financial systems increase in complexity and number of actors, for better or worse, so too does the necessity of a clear set of sharīʿa-compliant  standards. Agbaje suggests starting with classical Islamic law, which explicitly summarizes the principles of finance into “four distinct areas: prohibition on earning interest (riba), the prohibition on speculation (maysir), the prohibition on illegal activities (haram), and the obligation of banks to give back to the community (zakat).” These principles naturally make for a financial model “based on partnership” that emphasizes both debt repayment and tolerance. “This tension between the obligation of a debtor to repay and the obligation of a creditor to forgive (or at least allow more time for repayment)” manifests as equal treatment for personal and commercial bankruptcy. How bankruptcy is practically dealt with, however, differs among schools of jurisprudence, as they diverge on how a creditor may humanely demand repayment. Read more. Image credit: Blog: Brave Organization Never Dies

 

LEGISLATION: Laws of Malaysia, Act 276: Islamic Banking Act 1983 When Malaysian officials established a centralized Islamic financial system with its 1983 Islamic Banking Act, they avoided issues of bankruptcy and debt. Instead, Malaysia handles bankruptcy according to banking principles familiar to its foreign investors, as evidenced in its Bankruptcy Act of 1967. U.S. editor Abed Awad explains that such moves occur because bankruptcy in classical Islamic law is “strongly analogous to the traditional civil and common law treatment of bankrupts prior to the enactment of Chapter 11,” when debt repayment was the goal, not preserving a business enterprise. Read more. Image credit: Channel News Asia

 

COMMENTARY: Is Sharīʿa Incompatible with the Modern Administrative State? Anver Emon (Professor of Law at the University of Toronto Faculty of Law and SHARIAsource senior scholar) has a new paper on “Codification and Islamic Law” that challenges the now popular argument that Islamic law is near-impossible to formalize as state law. Treating Islamic law as “law” fails, he argues, when folks reduce definitions of sharīʿa and the state to fit a narrow idea of the state: the modern administrative state. Fitting Islamic law into a centralized bureaucratic institution loses the spirit of what is “law” and explains the assumed incompatibility. Read more. Image credit: The Library of Liberty and Law

 

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Dec 2016, no. 2
Dec 2016, no. 2

The Long Shadow of England’s Privy Council Cast on the Islamic Law of Trusts in British India Student editor Esther Agbaje (Harvard Law School) explores classical Islamic law's basic conceptions of debt and bankruptcy. While the main Islamic texts, the Qur’ān and Sunna (records of the Prophet Muhammad's teachings), provide principles for fiscal  matters, these principles are not enough to establish systems as complex as those in modern finance with a guarantee of soundness in terms of Islamic law. As financial systems increase in complexity and number of actors, for better or worse, so too does the necessity of a clear set of sharīʿa-compliant  standards. Agbaje suggests starting with classical Islamic law, which explicitly summarizes the principles of finance into “four distinct areas: prohibition on earning interest (riba), the prohibition on speculation (maysir), the prohibition on illegal activities (haram), and the obligation of banks to give back to the community (zakat).” These principles naturally make for a financial model “based on partnership” that emphasizes both debt repayment and tolerance. “This tension between the obligation of a debtor to repay and the obligation of a creditor to forgive (or at least allow more time for repayment)” manifests as equal treatment for personal and commercial bankruptcy. How bankruptcy is practically dealt with, however, differs among schools of jurisprudence, as they diverge on how a creditor may humanely demand repayment. Read more. Image credit: Western Civilization II Guides

 

CASE: Abul Fata Mahomed Ishak v Russomoy Dhur Chowdury (1894) This case exemplifies the complex influence of the British Privy Council on Islamic law (called “Muhammadan law”) in India during colonial rule. While the British rulers instituted their legal system in India, family and inheritance law often remained under the purview of the exponents of Islamic law. This case demonstrates the political and legal complexities of such a system. The court here held that a family endowment could not be formed under Islamic law. The principles underlying this decision, however, bore an uncanny similarity to English inheritance laws. Read more. Image credit: The British Library

 

CASE: Indonesian Supreme Court Jurisprudence 111K/AG: Familial Beneficiaries (1998) One of the Supreme Court of Indonesia's judgments on inheritance, the judgment in this case is that the law does not recognize a simultaneous ownership and inheritance dispute when the petitioners or potential beneficiaries (ahli waris in Bahasa, ahl al-wārith in Arabic). Although Indonesia is not an Islamic constitutional country, its legislation is increasingly guided by Islamic law principles. Read more. Image Credit Wikipedia

 

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Dec 2016, no. 3
Dec 2016, no. 3

The Dissolution of Sharīʿa in the 1965 Moroccan Court Unification Law During a time when there are global questions about stable Muslim-majority states that have combined Islamic law with state law, SHARIAsource editor Ari Schriber (Harvard University) convincingly demonstrates that Morocco's 1965 Court Unification Law deserves more attention, though not for the reasons one may initially suppose. In asserting independence then, Moroccan leaders paved the way for a stable regime that featured Islamic law as a part of national identity, independence, and statehood under a constitutional monarchy now. Before independence, Morocco's state were established by Frenchcolonial powers and assumed French judicial traditions. Religious courts remained independent under qādīs (judges), who continued to provide rulings based in Islamic law. After independence, however, "the [Moroccan] government sought to complete a series of legal codes reasserting Moroccan national sovereignty ... subsum[ing] religious courts into the national system." Although the Moroccan Constitution declared Islam the religion of the state, the way the King went about integrating Islamic law into that new administrative state "reduc[ed] sharīʿa to statutory legislation" and promoted Moroccan independence and nationalism. The nationalist bent was evident in the Court Unification Law itself. It allowed only Moroccans to be eligible for judgeships  and promoted an increasingly "Arabicized" system. In speeches accompanying the passage of the Laws, King Hassan II asserted an Islamic law basis for these changes, arguing that such provisions were consistent with the preservation of Islamic legal principles. But upon closer inspection, says Schriber, "the ensuing series of legislation clearly paved the way for a bold assertion of secular Moroccan state institutions." Read more. Image Credit: Wikipedia

 

LEGISLATION: Moroccan Court Unification Law (1965) This legislation unified Morocco's religious courts with its state courts. Though the vision proclaimed in the Moroccan Constitution of 1962 was one of a "state of Islam," this piece of legislation does not mention Islam as a guiding principle. Instead, it supports the vision of a Moroccan administrative state, rooting the newly sovereign nation in nationalist rather than religious foundations. Read more. Image credit: Public Domain/Flickr

 

IN SUMMARY:: Policy Roundtable: Understanding Sharīʿa: Implications for Policy and Conflict Resolution, 13 Dec, USIP, Washington, DC A policy roundtable on Islamic law, co-sponsored by the Islamic Legal Studies Program: SHARIAsource and the United States Institute of Peace, and held on December 13 at USIP, was a first-of its-kind program that brought together a broad cross-section of individuals working in federal government, academic, and non-governmental organizations on policy issues related to Islamic law. The program focused on exploring the major features, structures, and processes of law-making in Islamic law historically and in the present. Read more. Image Credit: Wikipedia

 

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Previous Newsletters (ILSP) 🛈

Aug 2010
Aug 2010

Islamic Law in the Law of National States in the Middle East and Southeast Asia Under this title I organized, on March 26 and 29, 2010, a workshop that discussed the place of Islamic law in the national codes of states with predominantly Muslim populations in the Middle East and Southeast Asia. What place do their codes assign to Islamic law? As none of the states concerned—with the exception of Turkey—declares itself to be a secular state, they can all claim that the law they enact is the law of an Islamic state and therefore Islamic law, even if the dependence of the codes on Western models often is obvious. The question is how the states’ claim to create new “Islamic law” affects the interpretation of the content of their codes that seem to be entirely “Western” and distinct from classical Islamic fiqh. Read more

 

Parting Words from the Acting Director On July 1, 2010, I ended my tenure as Acting Director of the Islamic Legal Studies Program at Harvard Law School and took over the directorship of the Center for Middle Eastern Studies at Harvard University. As of July 1, Dr. Nazim Ali will be the Acting Executive Director of ILSP.

These changes in the directorship will not diminish the important potential that ILSP has as a center for research on Islamic legal history, as a forum in which members of the legal profession of Muslim countries (the judiciary, legal practitioners, and law professors) can meet and discuss questions of common interest with members of the American legal profession. ILSP will continue to be a common ground for visiting research fellows from countries with different cultural and religious backgrounds who come to Harvard to provide, through their research, a better understanding of the development of Islamic law past and present. ILSP and its Islamic Finance Program have established a solid reputation as one of the meeting points of scholars and practitioners in
this field. Read more

 

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Jun 2011
Jun 2011

From the Acting Executive Director Greetings! First and foremost, I would like to welcome you all, this being the first newsletter since I assume the acting executive directorship of ILSP. I would also like to thank my predecessors­-the Founding Director of ILSP, Frank E. Vogel, former Acting Director Baber Johansen, and former Associate Director, Peri Bearman-who, through their efforts and dedication, have built a strong foundation for ILSP. I am also grateful to them for always being available to assist me whenever I need any advice. Read more

 

Abd Al-Razzaq Al-Sanhuri Lecture Series On April 18, 2011, the Islamic Legal Studies Program hosted the sixth lecture of the Abd al-Razzaq al-Sanhuri Lecture Series on Legal Interpretation in the Muslim World. Named after the prominent 20th-century Islamic jurist, educator and reformer the Sanhuri Lecture Series seeks to bring a variety of renowned guest speakers from around the world to discuss both historical and modern issues in Islamic legal theory and practice. Delivering this lecture was Ibrahim Najjar the former Justice Minister of Lebanon and Professor of Law at St. Joseph University in Beirut. Read more

 

 

IFP Roundtable on the Impact of Islamic Finance on Economic Development The Islamic Finance Project and Islamic Legal Studies Program organized a panel discussion that took place on October 12, 2010, entitled “The Impact of Islamic Finance on Economic Development”. A distinguished panel of practitioners form the Islamic Development Bank (IDB) and a academic from Tufts University provided their insights on the topic. Read more.

 

Student Travel Grants During the previous academic year, ILSP was pleased to award travel grants to four Harvard Law School students. During the winter term, third-year J.D. students Mina Khalil, Taylor Landis and Chelsea Sharon traveled to the Middle East to undertake research in Lebanon and Egypt. Read more.

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Jul 2012
Jul 2012

From the Acting Executive Director Greetings! This past year marked the 20th anniversary of the Islamic Legal Studies Program at Harvard Law School, and it is my pleasure to share its highlights with you. As usual, a variety of academic activities, including ILSP fellows’ lectures, seminars, forums, and panel discussions, took place during the year, as well as efforts to engage with various departments across Harvard and with colleagues and organizations outside of the University. Read more

 

Abd Al-Razzaq Al-Sanhuri Lecture Series On Modern Muslim societies are now facing the challenge of applying Shari‘a to contexts that have changed markedly from those that existed during the early decades of Islam. The current Islamic legal system has gone through periodic changes of growth and renewal that have not kept up with the rapid developments of the legal system in the world today. Despite reform and revitalization efforts to adapt Islamic law to contemporary issues, various Islamization and harmonization theories remain insufficient, and new challenges are continually forming. Much of the contemporary research in this field focuses primarily on the harmonization of legal systems. However, the effort should go beyond harmonization, through unified efforts from all Islamic agencies. In her lecture for the Abd alRazzaq al-Sanhuri Lecture Series on Legal Interpretation in the Muslim World, “Islamic Legal System and the Quest for Transformation in the 21st Century,” Professor Zaleha Kamaruddin, Rector of the International Islamic University Malaysia, argued that efforts to reform Islamic law should go beyond the harmonization of legal systems, harnessing unified efforts from all Islamic agencies. Read more

 

Islamic Finance Project  The Tenth Harvard University Forum on Islamic Finance was held at Harvard Law School on March 24 and 25, 2012. This forum is a biennial event organized by IFP to engage practitioners, scholars, and students of Islamic finance in a critical discussion of the latest developments in the field. This year’s forum, entitled “Islamic Finance and Development,” included three plenary sessions on global economic development, the development of small and medium enterprises (SMEs), and faith-based investment and social responsibility. It also included two distinguished banquet speeches and four parallel sessions discussing various contemporary issues on Islamic finance and development. Read more

 

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Aug 2013
Aug 2013

From the Acting Executive Director This year, ILSP was fortunate to relocate from Mount Auburn Street back to the Harvard Law School campus, after a hiatus of seven years. Our new headquarters in historic Austin Hall have brought us closer to HLS students, faculty, and other resources. The Islamic Finance Project (IFP), a subsidiary of ILSP, also moved into Austin Hall from its previous location in Holyoke Center. Our move, which took place in March, was hectic, but having the IFP and ILSP under one roof has allowed us more control, smoother communications, and valuable integration. Read more

 

Shari‘a and the Law in Bangladesh: Understanding the Critical Conjunctions and Disjunctions Bangladesh, a Muslim-dense democratic state in South Asia, represents a curious dichotomy between the belief system of the Muslim majority (shari‘a) and the existing legal system of the country. However, underneath this apparent dichotomy, there exist certain crucial interlinkages between shari‘a and the law. This dichotomy and the linkages merit a careful scrutiny, though they have never been subjected to any systematic academic analysis. This paper therefore seeks to examine the conjunctions and disjunctions between shari‘a and the law in Bangladesh and point out the key challenges of integration of shari‘a and its mainstreaming in the legal system of Bangladesh. Read more

 

United Nations and Islamic Law: Strategies to Achieve Universal Development Goals and Human Rights in the Muslim World?  A common dilemma confronting post-conflict interventions in Muslim societies is whether, or to what extent, to engage with Islamic normative systems and perforce Islamic political dynamics. Will entertaining Islamic arguments add another layer of volatility, frustrate reform, and embolden radicals? Will canvassing medieval Islamic doctrines, like other customary norms, unravel the hard-won development consensus and jeopardize human rights? Widespread anxieties such as these may reflect the false premises and dichotomies—universal versus Islamic, secular versus faith-oriented, modern versus traditional—that sometimes permeate development discourses. UN agencies seeking to harness authentic Islamic ideas do not advocate for exclusive or automatic Islamic solutions where Muslims live. Instead the quest is for Islamic components that can be fitted into overall universal strategies. Read more

 

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