Law Commons^™

Sex And The Shari’A: Defining Gender Norms And Sexual Deviancy In Shi’I Islam, Haider Ala Hamoudi

Articles

This paper demonstrates that modern authoritative jurists working within the Shi’i tradition have developed their rules respecting sex regulation to serve three primary commitments. The first of these is that there is an intense and near debilitating desire on the part of human beings generally, though mostly men, for a great deal of sex. This desire must be satisfied, but it also must be tightly controlled. This is because of the second commitment, which is that excessive licentiousness is a form of secular distraction from a believer’s central obligation to worship God. Finally, and perhaps the most interesting, is the …

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 …

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 …

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. …

Ornamental Repugnancy: Identitarian Islam And The Iraqi Constitution, Haider Ala Hamoudi

Articles

Nearly six years after the enactment of Iraq’s final constitution, the Federal Supreme Court of Iraq has yet to render a single ruling respecting the conformity of any law to the “settled rulings of Islam” despite being empowered to do precisely that under Article 2 of the Iraqi Constitution. This so-called repugnancy clause is swiftly devolving from a matter that was of some importance during constitutional negotiations into one that is more symbolic than real – an assertion of identity, primarily of the Islamic variety (though when combined with Article 92, to some extent of the Shi’i Islamic variety) – …

The Death Of Islamic Law, Haider Ala Hamoudi

Articles

That lawmaking in many modern Muslim nation states appears to give rather short shrift to shari’a, seemingly ignoring it in all areas save the law of the family and replacing it elsewhere with European transplanted law, has been discussed. That the Muslim world is replete with political institutions and leaders that seek a greater role than this for the shari’a in the affairs of the state is obvious to anyone even faintly familiar with the region.

However, left undiscussed is the fact that the Islamist, who derives his authority precisely on the basis of returning sovereignty to God in all …

Dream Palaces Of Law: Western Constructions Of The Muslim Legal World, Haider Ala Hamoudi

Articles

Western distortions of the Muslim East nearly always take the same form, irrespective of who in the West is doing the distorting. One common theme can be generally gleaned from any projections of the Muslim East in the West, in any Western country, among nearly every community, including, and perhaps especially, our own academic community. This is the perception of the near ubiquitous role of Islam and, more germane to my remarks, Islamic law, of a historic, medieval kind, in governing the legal order of Muslim states, including Iraq, in a manner that can be entirely distorting. In these brief …