Law Commons^™

Oppression In American, Islamic, And Jewish Private Law, Rabea Benhalim

University of Colorado Law Review

American, Islamic, and Jewish law all limit the enforcement of private law agreements incases of oppression and exploitation. But each system uses a different justification. The common thread among the three legal systems is the opposition from jurists to enforce contracts with a fundamental aspect of oppression. The reasoning for preventing oppression within the law is distinct to each legal system. The American legal system roots the justification in preserving free will and ensuring actual consent to contract. Islamic l provides justifications based on the divine vision for an equitable and just society articulated in the Quran. Jewish law argues …

Implications Of The Selection Of Islamic Law In European Private International Law, Grace Brody

Michigan Journal of International Law

The English Court of Appeal in Beximco v. Shamil Bank chose to apply only English law in a breach of contract case, even though the choice of law clause in the contract at issue also selected Islamic law. The court cited three main reasons for this decision. First, article 3(1) of the Rome I Convention “contemplates” that a contract can be governed only by the “law of a country,” and there is no mention of the application of a “non-national system of law such as Sharia law.” Second, Islamic law does not consist of “principles of law” but instead a …

English Courts And Transnational Islamic Divorces: What Role For Personal Liberty Of Muslim Women?, Ilias Bantekas

University of Miami Race & Social Justice Law Review

English courts consider the validity of a talaq obtained abroad on the basis of the lex matrimonii, without examining whether the circumstance of the divorce, both factual and legal, offend English public policy. An anthropological inquiry into talaq obtained in most Muslim nations reveals that androcentric culture – as opposed to religious prescription as such – largely distorts the Quranic vision of this institution. This author suggests that English courts and the scholarly/religious community should entertain the notion of the contractual nature of nikah (marriage) in order to assess the consequences of the talaq. If a nikah is entered into …

Perkawinan Dalam Hukum Adat Baduy Dan Perkawinan Dalam Kompilasi Hukum Islam, Muhammad Muslih

Journal of Islamic Law Studies

This research explains about marriage regulated in Baduy traditional law and marriage regulated in Islamic Law Compilation (KHI).

This research uses the Normative Sociological and Juridical Empirical research methods. This research is descriptive analytical and uses Primary Data Sources and Secondary Data Sources. Sources of data used were obtained from Library Research. Interviews of the Baduy community and field observations to the Baduy area were also carried out to obtain the data needed for this research.

The results of this study indicate that there are many differences between the existing marriage regulations in Baduy customary law and the marriage regulations …

The Rules Of Larceny In Islamic Law B Y Dr. Mohammad Jabr Al-Alfi

UAEU Law Journal

The rules of larceny in Islamic jurisprudence were critized on the ground that they were contrary to human rights norms recognized by the Western civilization. This criticism was produced by the practical application of these rules in some Islamic countries. The objection to these rules, perhaps, came as a result of 'the speedy enactment of legislation, which did not take into consideration all the rules and precepts dealt with by the different schools of thought in Islamic jurisprudence. Such practice by such States is incompatible with the legislative policy of Islam and resulted in the narrow conception and application of …

The Effect Of Psychological And Mental Diseases On Criminal Responsibility In Islamic Law, Mohammed Naim Yassin

UAEU Law Journal

This study gives a definition of criminal responsibility and commandment. It details the concept of mental and criminal diseases and their types, the concept of criminal responsibility; its cause and conditions, the study is split into two parts. Part 1 defines Mind, the degree and criterion adopted by Islamic Law for criminal responsibility with a comparison with mental and psychological diseases, and the effect of mental disability at the time of criminal act. Part 2 discusses the conscience will being the second part of responsibility explaining its definition and psychological diseases having effect on it, etc, the study concludes the …

Comments On Provisions Of Tort In Iraqi Civil Law, Dr. Galil Hassan Al-Saadi

UAEU Law Journal

Iraqi Civil Law number 40 of 1951 has some rules driven from Islamic Law and some others from foreign legislations. Despite that, law has some defects relating basically to drafting some of its articles from one hand, and from another hand some recourses of this law were improper. This search contains some comments on rules dealing with tort. Some comments concern with tort of personal actions, some other comments concern with tort of a third party Action which has been regulated by law in three articles divided into two places. Study deals as well with some comments on liability of …

Credibility Of Genetic Profiling In Establishing Paternity A Legal Comparative Study, Fwaz Saleh

UAEU Law Journal

Genetic profiling offers a new dimension for the possibility of exploring biological truth. It plays an important role in establishing paternity in Western legislation, though two conflicting trends are apparent in this connection: free and restricted.

In both trends, however, proving the biological truth is not the only objective of the legal rules organizing the establishment of paternity. The present study has also indicated that genetic profiling poses a threat to human rights, especially inviolability of the human body. Scientific evidence would certainly help determine paternity through the use of biologically accurate techniques. In the event of disputed paternity, however, …

The Concept Of Public Property And The System Of Protecting It According To Islamic Law - مفهوم المال العام ونظم حمايته في الشريعة الإسلامية, Nawfal Ali Alsafo

UAEU Law Journal

This article consists of an introduction by which the importance of public property was clarified, this is according to its connection to the economic structure of the state.

Then the article was divided into Two Chapters:

In chapter one, we discussed the concept of public property, its sorts and conditions. Firstly we talked about the private property, what can be considered as a private property according to Islamic rules, we concluded that the property can be divided into: estimated and non-estimated property, Then we discussed the Jurists’ opinions on public property. Secondly we clarified the sorts of public property in …

A Critical Study Of The Two Standard References Of Obligations (Personal Rights (And Contracts In United Arab Emirates Law Of Civil Transactions, Dr.Adnan Sarhan

UAEU Law Journal

The Emirates Law of Civil Transactions is based on the rules set by Islamic Law. However; it suffers from faults or short comings in the legal texts and even, sometimes, a contradiction in the merits or judgement. These faults are consequences of the presence of statements extracted from defective or imperfect laws such as the Jordanian law, or a contradiction due to differences between Malek’s or Hanbal’s and Al-Numan’s shools.

In this research, the author deals with the text of the United Arab Emirates Law of Civil Transactions that are related to commitments and contracts. As he believes in the …

Islamic Law And Weapons Jurisprudence Of Mass Destruction, Abdel-Majid Al Salahin

UAEU Law Journal

The paper is comprised of an introduction, three chapters and Conclusion.

The introduction deals with the phenomenon of fighting in the human societies in terms of it's reasons and development of fighting means.

In chapter one the author defined the three types of mass destruction weapons and their dangerous effects:

1- Chemical weapons which include gases and inflammables.

2- Biological weapons which include: the various types of viruses and germs.

3- Atomic weapons which include the fissionable bomb, the fusing bomb and the neutron bomb.

In chapter two the study deals with two issues:

1. Islamic jurisprudence stand concerning destructive weapons …

Negative Crimes In Islamic Jurisprudence: Their Concepts And Provisions, Abdel-Majid Al Salahin

UAEU Law Journal

The penalty system which has been established Shari'ah (Islamic Law), is based on careful balance among various interests: the interests of individuals, interests of society and, interests of State. Sharia'h was the first legalsystem to identify, to criminalize and, to lay down criteria regarding negative crimes.

It considers that an abstention from performing an act is a crime if an abstention results in negative harmful consequences for individuals or society. Italso has recognized the concept of public liability whereby an individualcan be held responsible for acts committed by a third party.

This study examines the conditions, constituents, provisions of negative …

Abuse Of Rights In Order To Harm Others Or To Get An Illegal Benefit In Sharia And Law, Ahmed Al-Suwai’I Shlibak

UAEU Law Journal

This research involves the topic of “ِAbuse in using rights with the intention of harming others or to realize illegalbenefits”. The research is divided into an introduction and four parts. The introduction contains the importance and goals of the research. The first part contains: the definition of abuse in Law and Shar’iah (Islamic Law) as well as the differences between them, and the absence of legalbenefit. The second part contains the rules that govern the intention behind harming others and its criterion. The aforementioned was agreed upon by Jurists and acts of Parliament (Positivelaw) which forbid harming others, its evidence, …

The Nesab (The Minimum Amount Of Property For Which The Legal Punishment Of Stealing Is Applied) In Islamic Law: A Comparative Fiqh (Jurisprudence) Study

UAEU Law Journal

The NESAB (the minimum amount of property for which the

legal punishment of stealing is applied) in Islamic Law:

A Comparative Fiqh (Jurisprudence) Study

By

Dr. Hasan Ahmed Al Khattaaf*

Assistant Professor - College of Law - University of Damascus

Abstract

The purpose of this comparative study is to determine the minimum amount of stolen property (NESAB) upon which Islamic Shari'a may be applied in the form of cutting a thief's hand. This study is important because there is a controversy in determining the NESAB, which is the most important condition upon which legal punishment for stealing in Islamic …

Landmines And International Liability In Public International Law And Islamic Law A Comparative Study

UAEU Law Journal

Landmines are considered as one of the arsenals of conventional weapons of armies and are originally used as a means of defense to protect an area, stop the advance of the enemy, or to inflict the greatest possible loss on them. However, their increasing destructive power has caused a lot of and material and human losses incurred by the innocent. This requires the international actors to move in order to remove the pain, especially that suffered by civilians, so humanitarian considerations should take precedence over military necessity. In the spirit of spreading safety and security, Islamic law prohibits the use …

A Shari'a Measures Against Arbitrary Divorce: A Comparative Fiqh Study In The Light Of Islamic Law And What He Has To Do In The Uae Personal Status Law )28/2005), May Salem Al Sheikh

UAEU Law Journal

Family related cases are of great complexity, of which divorce cases are some of the most critical. This is due to the increasing importance of the role of family in building society, and in view of the intensification of marital disputes which in turn have led to the spread of divorce in Arab societies, in addition to spouses’ abuse of the decision to divorce, which raises concerns about the resulting harm.

This research sheds the light on one type of family related cases in particular, which is the arbitrary abuse of the right to divorce which can cause negative impact …

Sacred Corporate Law, Giancarlo Anello, Mohamed Arafa, Sergio Alberto Gramitto Ricci

Seattle University Law Review

This Article investigates the sacred origins of the corporate form. It sheds light on the sacred rituals performed to establish Ancient Roman cities as legal entities. It discusses the role of the Roman Catholic Church in developing the corporate form and in giving birth to a systemized set of rules regulating corporations, which we commonly call corporate law. It analyzes the limitations to the use of the corporate form in Islamic law as well as the streams of Islamic law jurisprudence that recognize legal capacity to specific entities with religious, social, or charitable purposes. It surveys the characteristics of two …

Consent In Marriage: A Radical Feminist Analysis Of Pakistani Law, Iqra Saleem Khan

William & Mary Journal of Race, Gender, and Social Justice

In Abdul Kadir v. Salima, Mahmood J summarised the nature of a Pakistani wife’s duties under Islamic Law. The nikkah contract “imposes submission on the wife when summoned to the couch and confers on him the power of correction when she is disobedient or rebellious.” Earlier, a similar pronouncement was made across the ocean in the United Kingdom by Sir Matthew Hale that through the marriage contract the “wife hath given herself to the husband, consent of which she cannot retract.” Marital rape was later recognised as an offence in the UK by the House of Lords in R …

Improving Education Through Devotion: A Religious Solution To Eastern Turkey's Gender Gap, Joshua E. Thomas

William & Mary Journal of Race, Gender, and Social Justice

Turkey has much room for improvement regarding women’s education opportunities—particularly in eastern Anatolia. Despite the Turkish Republic’s outward secular appearance, Islamic law plays an increasingly important role in society. A potential solution to the government’s sluggish progress on gender equality may lie in the utilization of their religious directorate (Diyanet). The Diyanet could issue fatwas sympathetic to women’s rights, which may more effectively reach the conservative eastern Turkish population.

Understanding The Islamic Prohibition Of Interest: A Guide To Aid Economic Cooperation Between The Islamic And Western Worlds, Hesham M. Sharawy

Georgia Journal of International & Comparative Law

No abstract provided.

Deciphering The Divine: An Unmasking Of Islamic Law, Hamid Khan

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

How Do You Solve A Problem Like Sharia? Awad V. Ziriax And The Question Of Sharia Law In America, Jeremy Grunert

Pepperdine Law Review

In the 2010 midterm elections, the citizens of Oklahoma passed a ballot initiative barring Oklahoma courts from considering the tenets of Islamic Sharia law in their judicial decisions. This initiative was passed in the midst of a nation-wide debate on the nature of Sharia law, in which numerous states began to take legislative steps to ban or limit the application of Sharia. Oklahoma’s law was the first to explicitly ban Sharia, and it was immediately challenged by a Muslim plaintiff for violating the Constitution’s Establishment and Free Exercise Clauses. This Article examines the resulting case, Awad v. Ziriax, and the …

Corruption And Bribery In Islamic Law: Are Islamic Ideals Being Met In Practice?, Mohamed A. Arafa

Annual Survey of International & Comparative Law

Islam looks to a significant degree to moral development within the individual to strengthen resolve and foster self-restraint. The focus is upon shaping the higher-order preferences elaborated in the Qur’an and the Sunnah through the law of Sharie‘a, reinforced by a powerful spiritual incentive system. Both legal systems—domestic and international—can learn from the Islamic legal system. To get a better understanding of this law, Part I will present a brief survey of Islamic law and Fiqh (“Islamic Jurisprudence”), sources of this law, the famous Islamic schools of jurisprudence (“Fiqh Al-Mazaheb/madhhabs”), and then an overview of the fundamental legal principles in …

Is The Middle East Moving Toward Islamism After The Arab Spring? The Case Study Of The Egyptian Commercial And Financial Laws, Radwa S. Elsaman, Ahmed Eldakak

Richmond Journal of Global Law & Business

The first parliamentary elections that followed the Egyptian Revolution witnessed an unprecedented success for Islamists as they secured an overwhelming majority of seats in parliament, suggesting that they may intend to amend many laws to bring parliament into compliance with Islamic Shari’a. This article addresses legal challenges that will face the new majority if they decide to Islamize laws and regulations related to business and finance. Particularly, the article discusses Islamic money theory, trade, banking systems, consumer protection, insurance, competition, and tax systems. The article analyzes Egyptian business and finance laws to examine whether they comply with Islamic law. It …

Factors To Be Considered Before Arbitrating In The Arab Middle East: Examples Of Religious And Legislative Constraints, Radwa S. Elsaman

Arbitration Brief

No abstract provided.

Muslims In A Secular State: Islamic Law And Constitutions Islam In America

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Privatizing Family Law In The Name Of Religion, Robin Fretwell Wilson

William & Mary Bill of Rights Journal

No abstract provided.

The Role Of Culture In The Creation Of Islamic Law, John Hursh

Indiana Law Journal

No abstract provided.

The Theocratic Challenge To Constitution Drafting In Post-Conflict States, Ran Hirschl

William & Mary Law Review

No abstract provided.

Iraq, Secured Transactions, And The Promise Of Islamic Law, Mark J. Sundahl

Vanderbilt Journal of Transnational Law

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 comply with the principles of Islamic law. This Article sets forth proposals for reform that …