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Full-Text Articles in Law
Iraq, Secured Transactions & The Promise Of Islamic Law,, Mark J. Sundahl
Iraq, Secured Transactions & The Promise Of Islamic Law,, Mark J. Sundahl
Law Faculty Articles and Essays
When Iraq regains political stability, major reconstruction projects will have to be funded and local businesses will need financing in order to gain a foothold in the new economy. In order to attract the necessary capital, the Iraqi law of secured transactions must be reformed to allow for lenders to take security in the assets of their borrowers. However, the challenge of reforming Iraqi commercial law is complicated by the requirement under the new Iraqi Constitution that any new statutes enacted by the Iraqi legislature must comply with the principles of Islamic law. This Article sets forth proposals for reform …
Apostasy And Blasphemy In Pakistan, David F. Forte
Apostasy And Blasphemy In Pakistan, David F. Forte
Law Faculty Articles and Essays
This article analyzes how the law against blasphemy has become a weapon against religious minorities in Pakistan. It begins with a brief overview of the constitutional struggle between the forces for religious tolerance and that element of Pakistani society seeking a particularized Islamization of Pakistan's law and culture. The second section of the article explains the manner in which classical Islamic law (the Shari'a) treated apostasy and blasphemy, and how it permitted private acts of religious vengeance to be immune from legal liability. In the final section, I describe how the current law on blasphemy imposes a harsh regime on …
Islamic Law And The Crime Of Theft, David F. Forte
Islamic Law And The Crime Of Theft, David F. Forte
Law Faculty Articles and Essays
This article introduces the concept of theft in Islamic law. As such, it does not pretend to be comprehensive either in the data it puts forth or in its analysis. Rather, the Article raises a number of issues for discussion, and offers, most tentatively, suggested answers to the following points: 1) criminality; 2) what possible justifications exist for such an extreme penalty; 3) what were the requirements for conviction; and 4) some concluding observations as to why the classical jurists encumbered a prosecution for theft with so many restrictions.
Shufcah: Origins And Modern Doctrine, Farhat J. Ziadeh
Shufcah: Origins And Modern Doctrine, Farhat J. Ziadeh
Cleveland State Law Review
Shufah is an excellent example of the continuity of an Islamic institution and of the capacity of that institution for change. Although it is not, strictly speaking, a part of personal status law, which is said to be the only part of Islamic law that is being applied in Islamic countries, it has survived in a recognizable form. Islamic countries, in their attempts at law reform, have effected little change in the traditional law of personal states, only after heated discussions and controversy. On the other hand, profound changes were introduced into the traditional law of preemption with little controversy. …
The Logic Of Legal Reasoning In Religious And Non-Religious Cultures: The Case Of Islamic Law And The Common Law, Wael B. Hallaq
The Logic Of Legal Reasoning In Religious And Non-Religious Cultures: The Case Of Islamic Law And The Common Law, Wael B. Hallaq
Cleveland State Law Review
It is only reasonable to assume that dissimilar legal systems possess dissimilar patterns of legal reasoning. Inasmuch as two legal systems differ in their structure and function, they also differ in the types of arguments they employ in their service. It may well be argued that law is, in the final analysis, the product of the premises and methods from and through which it is derived. Two such legal systems which display a vast difference in their overall structure and function are Islamic law and the common law. This paper proposes to shed some light on the logic of legal …
Islam And Politics, David F. Forte
Islam And Politics, David F. Forte
Law Faculty Articles and Essays
We can thus see that Islamic tradition has recognized the venerability of the Shari'a but that the same tradition has historically given the state means to workaround the limits of the Shari'a. How far it should go has always been debated in Islam. The debate and the alternative theories all stem from the fact that the Shari'a never developed a constitutional basis for itself due to its history and the notion of law as simply the refinement of divine command. The competing views of the Shari'a's proper place have jousted with one another for a thousand years. They will continue …
Islamic Law In American Courts, David F. Forte
Islamic Law In American Courts, David F. Forte
Law Faculty Articles and Essays
Nonetheless, the common law judge remains constrained by his own system of adjudication. Not only does he apply the law, he also states it. Yet, he becomes hesitant when he is asked to apply an asserted principle of Islamic law unless he is certain that it truly represents the accepted view and is not some imaginative interpretation. Thus, in interpreting Islamic law, the American judge is more reluctant than a qadi would be in choosing between opposing casuistical arguments in the same kind of case. Ironically, the American judge is also far more restrained in a case involving Islamic law …
Islamic Law: The Impact Of Joseph Schacht, David F. Forte
Islamic Law: The Impact Of Joseph Schacht, David F. Forte
Law Faculty Articles and Essays
It is here where Schacht's service to Islamic law becomes most salutary. He has made it possible for this great legal tradition to free itself from an unthinking bondage to issues relevant to the second Islamic century, and thus open anew the gate to ijtihad. Mujtahids need no longer fear they are revising divine law when they develop the traditional norms of Islamic law beyond the confines imposed by taqlid. The Sunna of Islam remains the way of the Prophet's devout followers, even though it may not be the way of the Messenger himself. In this fashion, respect for the …