Law Commons^™

The School Of SharīʿA Judges: SharīʿA Courts’ Reform And Legal Modernization In Egypt (1907-1927), Yamen Nouh

Theses and Dissertations

This thesis studied the history of the school of sharīʿa judges (1907-1927) as an essential episode of the reform of Sharīʿa courts in Egypt in the early 20th century. The thesis studied the school in connection with the broader context of legal modernization of the Egyptian legal system. The study explored the institutional, pedagogical, and legal aspects of the reform that the school advocated. The study analyzed the impact of the school’s pedagogy on the practice of the Islamic judiciary and the theoretical conception of Sharīʿa. The study used a significant yet understudied historical source: the judicial press. A comparative …

The Saudi Judge's Discretion In Liquidated Damage Clauses: An Applied Analytical Study In Light Of Islamic Sharia Law, Salman Mufleh R. Al-Kahtani

Maurer Theses and Dissertations

This dissertation studies the treatment by Saudi judges under Islamic Sharia law of liquidated damages clauses in contracts, a critical part of modern commercial transactions.

After introducing the basic and secondary sources of Islamic law and discussing the current treatment of the liquidated damages clause by Saudi judges according to general Islamic rules and the four jurisprudence schools, this dissertation demonstrates that Saudi judges have broad discretion in applying jurisprudence rules, particularly Hanbali jurisprudence, the applicable jurisprudence in the Saudi courts.

Numerous interpretations of the same jurisprudential rule exist, resulting in multiple judicial rulings for the same jurisprudential rule. Among …

Can Islamic Law Principles Regarding Settlement Of Criminal Disputes Solve The Problem Of The U.S. Mass Incarceration?, Amin R. Yacoub, Becky Briggs

Pepperdine Dispute Resolution Law Journal

The mass incarceration crisis in the United States (US) remains a vexing issue to this day. Although the US incarcerated population has decreased by twenty-five percent amid the COVID-19 pandemic, the US remains a leading country in the number of incarcerated people per capita. Focusing on Islamic law principles governing settlement in criminal cases, the rehabilitative approach of the Icelandic criminal justice model, and the powerful role of prosecutors in serving justice, this research argues that integrating settlement and mediation into the prosecutorial proceedings will significantly reduce mass incarceration in the US.

Intellectual Property Through A Non-Western Lens: Patents In Islamic Law, Tabrez Y. Ebrahim

Georgia State University Law Review

The intersection of secular, Western intellectual property law and Islamic law is undertheorized in legal scholarship. Yet the nascent and developing non-Western law of one form of intellectual property—patents—in Islamic legal systems is profoundly important for transformational innovation and economic development initiatives of Muslim-majority countries that comprise nearly one-fifth of the world’s population.

Recent scholarship highlights the tensions of intellectual property in Islamic law because religious considerations in an Islamic society do not fully align with Western notions of patents. As Islamic legal systems have begun to embrace patents in recent decades, theories of patents have presented conceptual and theological …

Owls In Islam And Pakistan: Loopholes And Suggestions For Conservation And Management Of This Highly Ecologically Important Niche, Mubasher Hussain, Jamil Akhtar

Journal of Bioresource Management

Due to their vital ecological significance, owls drew the attention of several groups working on wildlife protection and conservation management across the globe. Hence, certain legal provisions have been articulated in the wildlife protection acts of the advanced countries to ensure full legal protection of wildlife including owls. Although there are certain laws concerning the protection of wild life in Pakistan, the specific and consistent legal provisions are still required for owl’s full protection. This article highlights a dire need of the articulation of such provisions respecting the prohibition of owl hunting on several religious, legal and ecological grounds.

Religious Courts In Secular Jurisdictions: How Jewish And Islamic Courts Adapt To Societal And Legal Norms, Rabea Benhalim

Publications

At first glance, religious courts, especially Sharia courts, seem incompatible with secular, democratic societies. Nevertheless, Jewish and Islamic courts operate in countries like the United States, England, and Israel. Scholarship on these religious courts has primarily focused on whether such religious legal pluralism promotes the value of religious freedom, and if so, whether these secular legal systems should accommodate the continued existence of these courts. This article shifts the inquiry to determine whether religious courts in these environments accommodate litigants’ popular opinions and the secular, procedural, and substantive justice norms of the country in which they are located. This article …

The Case For American Muslim Arbitration, Rabea Benhalim

Publications

This Article advocates for the creation of Muslim arbitral tribunals in the United States. These tribunals would better meet the needs of American Muslims, who currently bring their religious disputes to informal forums that lack transparency. Particularly problematic, these existing forums often apply legal precedent developed in majority-Muslim nations, without taking into consideration the changed circumstances of Muslim living as minorities in the United States. These interpretations of Islamic law can have especially negative impacts on women. American Muslim arbitration tribunals offer the potential to correct these inadequacies. Furthermore, a new arbitral system could better meet the needs of sophisticated …

Jurisdiction Over Jihid: Islamic Law And The Duty To Fight, Adnan A. Zulfiqar

West Virginia Law Review

No abstract provided.

Reforming The Death Penalty In Egypt: An Islamic Law Perspective, Gaber Mohamed

Maurer Theses and Dissertations

The main goal of this thesis is to reform the imposition of the death penalty in the Egyptian legal system through the tools and theories of Islamic law. This subject will be discussed in three main chapters: The first chapter will be a survey of the current application of the death penalty in the Egyptian legal system, including the death penalty’s history, laws, courts, appeals, legal procedures, and general comments on the current application of the penalty. The second chapter will be about the death penalty in Islamic law – including the sources of Islamic law, the crimes that merit …

Women And The Making Of The Tunisian Constitution, Rangita De Silva De Alwis, Anware Mnasri, Estee Ward

All Faculty Scholarship

This article attempts to glean from field interviews and secondary sources some of the sociopolitical complexities that underlay women’s engagement in Tunisia’s 2011-14 constitution-making process. Elucidating such complexities can provide further insight into how women’s engagement impacted the substance and enforceability of the constitution’s final text. We argue that, in spite of longstanding roadblocks to implement and enforce constitutional guarantees, the greater involvement of Tunisian women in the constitution drafting process did make a difference in the final gender provisions of Tunisia’s constitution. Although not all recommendations were adopted, Tunisian women were able to use an autochthonous process to edify …

Islamic Law And Constitution-Making: The Authoritarian Temptation And The Arab Spring, Mohammad Fadel

Osgoode Hall Law Journal

In the wake of the Egyptian military coup of 3 July 2013, much commentary has focused on the religious-secular divide in Egypt as the principal division that laid the groundwork for the subsequent coup. Less attention has been paid to the profound divisions within religiously-minded Egyptian political actors regarding whether democratic or authoritarian government is more desirable from a religious perspective. This article explores the division between Islamist supporters of a “republican” conception of a modern Muslim constitutional and religious order, and Islamist supporters of an “authoritarian” conception of constitutional government in alliance with a state-supported religious establishment. The article …

Book Review: The Concept Of State And Law In Islam. Farooq Hassan. University Press Of America, 1981., Noor Mohammad

Georgia Journal of International & Comparative Law

No abstract provided.

Does Shari’A Play A Role In Turkey?, Russell Powell

Pepperdine Law Review

An essay is presented in which the author explores the relationship of religious law with contemporary Turkey. Topics discussed include certain civil law supporting adoption of Sharia in Turkey, role of religious people in providing protection to religious freedom in Turkey, and role of traditional Kemalist secularism laiklik in distinguishing Turkey.

“Islamic Law” In Us Courts: Judicial Jihad Or Constitutional Imperative?, Faisal Kutty

Pepperdine Law Review

At the beginning of 2014, about a dozen states introduced or re-introduced bills to ban the use of Sharī’ah law. They hope to join the seven states that have ostensibly banned it to date. Anti-Sharī’ah advocates have cited a number of cases to back their tenuous claim that Sharī’ah is stealthily sneaking in through the doctrine of comity, but a close examination of the cases they cite contradicts their claim. Comity, when one court defers to the jurisdiction of another, has been accepted and denied based on legal principles and public policy, on a case-by-case basis. There is no creeping …

Introduction: Religious Law In The 21st Century, Michael A. Helfand

Pepperdine Law Review

An introduction is presented in which the editor discusses various articles present in symposium including role of the U.S. courts in interpreting religious laws, practice of religious laws in secular states, and political, and legal structures of Jewish and Islamic identities.

Religious Law, Family Law And Arbitration: Shari'a And Halakha In America, Mohammad H. Fadel

Chicago-Kent Law Review

The possibility that Muslims might use private arbitration as a forum in which their family law disputes could be settled according to the principles of Islamic law has generated substantial controversy, with one liberal democracy, Canada, even taking affirmative steps to insure that religious-based arbitration of family law disputes are denied legal recognition. This paper argues that such moves are ill-considered. From the perspective of political liberalism, the arbitration of family law disputes within a framework of religious law, provided that the arbitration is subject to review by a public court for conformity with public policy, is an ideal tool …

Do All Roads Lead To Islamic Radicalism? A Comparison Of Islamic Laws In India And Nigeria, Amitabha Bose

Georgia Journal of International & Comparative Law

No abstract provided.

An Evaluation Of The Prospects For Successful Implementation Of The Convention On The Rights Of Persons With Disabilities In The Islamic World, Brenton Kinker

Michigan Journal of International Law

This note will examine the CRPD’s aspirations in light of Islamic law, comparing whether the two are—or can be—consistent. Part I will provide background on the CRPD, including the intent of the treaty, the negotiations leading to the final wording, and the solid obligations it contains for state parties. Part II examines the background of Shari’a and its provisions regarding disability. Part III compares the treatment of the disabled under Islamic law with that required by the CRPD in order to gage consistency. Where tensions exist, alternative interpretations of both Islamic law and the CPRD are proposed that might facilitate …

The Impossible, Highly Desired Islamic Bank, Haider Ala Hamoudi

Articles

The purpose of this Article is to explore, and explain the stubborn persistence of, a central paradox that is endemic to the retail Islamic bank as it operates in the United States. The paradox is that retail Islamic banking in the United States is impossible, and yet it remains highly desired. It is impossible because the principles that are supposed to underlie the practice of Islamic finance deal with the trading of assets and the equitable sharing of risks, profits and losses among bank, depositor and portfolio investment. It is true that much of this can be, and is, circumvented …

Anatomy Of Dissent In Islamic Societies, Ahmed Souaiaia

Ahmed E SOUAIAIA

The 'Arab Spring' that began in 2011 has placed a spotlight on the transfer of political power in Islamic societies, reviving old questions about the place of political dissent and rebellion in Islamic civilization and raising new ones about the place of religion in modern Islamic societies.

In Anatomy of Dissent in Islamic Societies, Ahmed E. Souaiaia examines the complex historical evolution of Islamic civilization in an effort to trace the roots of the paradigms and principles of Islamic political and legal theories. This study is one of the first attempts at providing a fuller picture of the place of …

Bad Moon Rising: The Sharia Law Bans, Bradford J. Kelley

Louisiana Law Review

The article presents information on the Sharia Law, an Islamic religious law, and other foreign laws in the U.S. courts. It discusses that whether prohibition should be applied to the Sharia Law. It mentions about the impact of this Law in the countries like the U.S. and Great Britain. It informs about the efforts made by the U.S. state legislative to stop use of Sharia Law.

Seeking An Islamic Reflective Equilibrium: A Response To Abdullahi A. An-Na'im’S Complementary, Not Competing, Claims Of Law And Religion: An Islamic Perspective, Mohammad H. Fadel

Pepperdine Law Review

Professor 'Abdallahi Na'im argues that there can be no conflict between religion and the state because religion and politics are part of different normative orders, and thus it is not conceivable that a conflict can arise between them. I argue that Na'im's solution to the problematic relationship of religion to state shares the same conceptual terrain as separationism in American constitutional law, a position which has grown increasingly untenable as a result of the increasing religious pluralism in the United States and the expansion of the government into areas of life in a manner that would have been inconceivable even …

Complementary, Not Competing, Claims Of Law And Religion: An Islamic Perspective, Abdullahi A. An-Na'im

Pepperdine Law Review

No abstract provided.

Religious Minorities And Shari’A In Iraqi Courts, Haider Ala Hamoudi

Articles

There is a rising interest in our academy in the study of constitutional states, particularly in the Islamic world, whose legal and constitutional structure is at least as a formal matter both founded on and subject to religious doctrine. For those of us interested in the Arab spring, and indeed in constitutionalism in much of the Islamic world, this work is not only valuable, but positively vital. Without it, we are unable to discuss most emerging Arab democracies in constitutional terms. In Iraq, and in Egypt after it, two of the premier Arab states which have recently seen constitutions approved …

In The Name Of God The Most Gracious The Most Merciful, Saud Alhassan Saud Abdulaziz Al Saud

Dissertations & Theses

This thesis explains the Islamic law that applies the Quran and Sunnah as a constitution, and the concept of Rahma. It will emphasize this concept by explaining the rigid law of Hudod, then elaborating on Rahma.

The Arabs In The (Inter)National, Haider Ala Hamoudi

Articles

This essay is a commentary on an article submitted by Professor Lama Abu-Odeh as part of a special symposium edition contained in Volume 10 of the Santa Clara Journal of International Law. In her piece, Professor Abu-Odeh builds on her earlier work respecting Islamic law but adds a new target to her sites, that of the study of national security. That is, we already knew Professor Abu-Odeh’s view of the typical Islamic law scholar. He is one who is focused either on the resurrection of the shari’a in some sort of reconstructed form or involved in a thoroughly misguided search …

Repugnancy In The Arab World, Haider Ala Hamoudi

Articles

“Repugnancy clauses” -- those constitutional provisions that, in language that varies from nation to nation, require legislation to conform to some core conception of Islam -- are all the rage these days. This clause, a relatively recent addition to many modern constitutions, has emerged as a central focus of academic writing on Muslim state constitutions generally, and on Arab constitutions in particular. Much of the attention it has received has been enlightening and erudite. Yet one aspect of the broader repugnancy discourse that deserves some attention is an important, often de facto, temporal limitation on the effect of the clause. …

Conceptualizing Shari'a In The Modern State, Khaled Abou El Fadl

Villanova Law Review

THIS Article addresses the animated and evolving role that Shari'a, i.e., the system of Islamic jurisprudence collectively or generally, and Shari'a conceptions play in the contemporary world. There are various manifestations of this evolving role in the often dynamic, subtle, highly negotiated, and far from formalistic ways that Shari'a is animated in today's world. There are three main points that I will address in this Article. First is to provide some insight into the various ways that Shari'a has been manifesting in the recent revolutions sweeping through the Arabic-speaking world, while at the same time contrasting the rather curious case …

Oklahoma's Save Our State Amendment: Two Issues For The Appeal, John T. Parry

Oklahoma Law Review

No abstract provided.

Veil Or No Veil? Are We On The Right Track?, Rayhan Asat

Cornell Law School Inter-University Graduate Student Conference Papers

In recent years, it is ironic that a simple Muslim headscarf became one of most contentious and controversial political, culture, religious and human rights issue in various countries around the world. The Muslim headscarf affair has given rise to heated debate in Europe in particular. Extensive scholarship literature contributed to this debate from various aspects, including from the banning of the Niqab from a public sphere, to institutional education and from the courtroom context. One has to acknowledge that few expressions of faith today cause as much fear and loathing in plural democracies as the Muslim headscarf has. I intend …