Journal of Islamic Law最新文献

{"title":"The Other Muslim Bans","authors":"Will Smiley","doi":"10.53484/JIL.V1.SMILEY","DOIUrl":"https://doi.org/10.53484/JIL.V1.SMILEY","url":null,"abstract":"This Article addresses and critiques the case for state-level legislative bans on courts citing “Islamic law” or the law of Muslim-majority countries. In particular, the Article reviews the most substantive evidence adduced by the bans’ supporters, in the form of a set of state court cases published by the Center for Security Policy (CSP). Very few of these cases, in fact, show courts actually applying Islamic or foreign law, and in none of these cases would the various forms of proposed legislation have been likely to alter the result. Thus even this report does not suggest a need for the state laws purporting to ban sharīʿa. The Article thus argues that even if these bans are not unconstitutionally discriminatory in their effect, they are ineffective at achieving their claimed purpose. \u0000This Article was originally published as an Occasional Paper in the Harvard Papers in Islamic Law series in 2018.","PeriodicalId":340573,"journal":{"name":"Journal of Islamic Law","volume":"334 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123777030","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Pursuing Over-Criminalization at the Expense of Islamic Law","authors":"A. Zulfiqar","doi":"10.53484/JIL.V1.ZULFIQAR","DOIUrl":"https://doi.org/10.53484/JIL.V1.ZULFIQAR","url":null,"abstract":"In a short essay, Adnan A. Zulfiqar takes a more critical approach to aspects of Brunei’s criminal laws that have garnered less attention but that he finds more troubling. The international community has, rightly in his view, protested against and condemned the law’s potential violations of human rights norms against torture and individual freedom. Most condemnations have focused on provisions for capital punishment, whipping, and amputation for the new Code’s crimes of liwāṭ (sodomy), zinā (unlawful sexual intercourse between heterosexuals), and theft. But little attention has been paid to the Code’s departures from “classical Islamic law’s substantive and procedural constraints” thus allowing legislators and prosecutors to “criminalize more conduct.” For example, the Code permits punishment of offenders who lack legal capacity, requires four eyewitnesses to prove rape, and prosecutes beliefs through punishing attempted apostasy. For these reasons, despite the procedural protections and heightened standards of doubt jurisprudence to which Mohamed and Müller point, the new Code entails many other provisions that signal the need for greater caution and perhaps further modification. Zulfiqar argues that Brunei codified Islamic criminal law in a way that creates novel crimes and disregards defendant rights, thus diverging from norms of fairness and cultural accommodation present in the precedents and mores of the very Islamic system which it seeks to reinterpret for its society today.","PeriodicalId":340573,"journal":{"name":"Journal of Islamic Law","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114929867","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Understanding the Situation on the Ground","authors":"Mansurah Izzul Mohamed","doi":"10.53484/JIL.V1.IZZUL-MOHAMED","DOIUrl":"https://doi.org/10.53484/JIL.V1.IZZUL-MOHAMED","url":null,"abstract":"Mansurah Izzul Mohamed comments on the implementation of Syariah Penal Code Order 2013—Brunei’s new Islamic criminal code. Phase One, covering small crimes and misdemeanors, took effect in May 2014. Phases Two and Three, specifying more serious crimes and more severe punishments, recently took effect in April 2019. This post outlines the history and procedural components of the law with respect to national and international law. Her basic argument is that Codification + Procedure = Just Implementation.","PeriodicalId":340573,"journal":{"name":"Journal of Islamic Law","volume":"190 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134310421","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Immorality of Incarceration: Between Jāvēd Aḥmad Ghāmidī and Angela Y. Davis","authors":"A. Zulfiqar","doi":"10.53484/jil.v3.zulfiqar2","DOIUrl":"https://doi.org/10.53484/jil.v3.zulfiqar2","url":null,"abstract":"The carceral nature of America’s criminal system has become a subject of fierce debate over the past few years as the extent of incarceration has gained notoriety. As a result, the decades-old argument for the abolition of prison has received its greatest reception to date, becoming the subject of popular conversation and a plethora of scholarly articles. Much of this discussion has centered on diagnosing the causes of mass incarceration. Empirical and historical studies have offered a strong case for the pervasive role of racial animus and discrimination in expanding the carceral state, which in turn has produced an abolitionist response as remedy to a broken system. At the same time, contexts far removed from America’s racial paradigm have also produced fierce critiques of incarceration. The introduction of prisons by European colonial powers met with native resistance across the Global South and, in the period since, a range of scholarly writing has continued to challenge prisons. Among the Global South’s most prominent examples of this abolitionist response has been those from scholars of Islamic law. These jurists have offered critiques that argue for both a doctrinal incongruence between incarceration and the Islamic legal tradition, as well as a moral chastisement of the carceral state. This Essay seeks to explore one such critique that represents a strand of abolitionist thinking in the Islamic legal tradition. While the American discourse has been preoccupied with abolition as a remedy for mass incarceration, the Islamic discourse is largely devoid of this concern; it critiques the institution of prison itself. The Essay’s overarching aim is to show how perspectives from the Global South, in this case Islamic law, might inform new approaches to abolition in other contexts. To accomplish this, the piece uses the thought of Muslim jurist and intellectual, Jāvēd Aḥmad Ghāmidī, examining both his ideas on imprisonment and broader approach to questions of law and morality. It then brings this discourse into conversation with key ideas in the work of American scholar–activist Angela Yvonne Davis. The animating inquiry will center on the moral arguments made in support of prison abolition and how Ghāmidī’s ideas, and by extension Islamic law, offer a unique perspective on this timely matter.","PeriodicalId":340573,"journal":{"name":"Journal of Islamic Law","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129737587","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Muslims in American Prisons: Advancing the Rule of Law through Litigation Praxis","authors":"","doi":"10.53484/jil.v3.spearit","DOIUrl":"https://doi.org/10.53484/jil.v3.spearit","url":null,"abstract":"Islamic ideas about justice and equality directly informed the development of prison law jurisprudence in the United States. Since the early 1960s, when federal courts began to hear claims by state prisoner-petitioners, Muslims began to look to courts to establish Islam in prison and inaugurated an ongoing campaign for civil rights. The trend is significant when considering Muslims represent a relatively small percentage of the American population. Decades of persistent litigation by Muslims in courts have been integral to developing the prisoners’ rights movement in America. The Muslim impact on prison law and culture is an underappreciated phenomenon that involves African-American Muslims, the criminal justice system, and a spiritual quest for justice and equality. This Essay explores how Islamic ideals contributed to the litigation and how mundane lawsuits were transformed into an expression of genuine religiosity which, in turn, helped create new rules and policies that expanded the law’s presence in prison. By appropriating courts in this way, Muslims emerged as staunch upholders of the rule of law. These lawsuits also unveiled a role-reversal between the guards and the guarded, since the prison staff and administration, entrusted to act lawfully, must be held accountable for violating institutional rules and even criminal law. Far from being antagonistic to American law, Muslims have not stopped attempting to ensure the rule of law prevails in prison.","PeriodicalId":340573,"journal":{"name":"Journal of Islamic Law","volume":"15 28","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120943185","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Editor’s Introduction","authors":"H. Heikal","doi":"10.53484/jil.v3.heikal.pdf","DOIUrl":"https://doi.org/10.53484/jil.v3.heikal.pdf","url":null,"abstract":"This special issue of the Journal of Islamic Law started with one question: how do Islamic legal traditions, whether in theory or in practice, inform contemporary debates on racial justice and equality, particularly with the notable rise of mass incarceration? Exploring this question appeared to us critical in several respects. First, race continues to be a major fault line in today’s world—W. E. B. Dubois’s color line persists. Race also continues to affect the way Black people and other people of color—including many Muslims—are treated on a day-to-day basis. Second, the Black Lives Matter moment brought realist approaches to law out of law reviews and into the mainstream conversation through its focus on structural inequalities, mass incarceration, and the policing of communities of color and immigrants in the United States. No matter what law said it did, one had to look at what it actually did to affect (different segments of) society. Third, Muslims, be it in the United States or in the Global South, were not simply subjects or victims of the law or of its systems. We recognized that they are actors shaping the course of the developments in law and society that touch on racial equality, criminal justice, and equality; and they sometimes draw on Islamic traditions in doing so. We sought to examine how.","PeriodicalId":340573,"journal":{"name":"Journal of Islamic Law","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134559890","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Shīʿī Ideas of Slavery: A Study of Iran in the Qājar Era Before and After the Constitutional Revolution","authors":"M. Noori, Zahra Azhar","doi":"10.53484/jil.v3.azharnoori.pdf","DOIUrl":"https://doi.org/10.53484/jil.v3.azharnoori.pdf","url":null,"abstract":"The wave of struggle againstthe slave trade which began in eighteenth century Europe reached the Middle East and countries in Persian Gulf in the nineteenth century. In its efforts to end slave trade, Britain concluded treaties with Ottomans, sheikhs in Oman, and the king of Masqat. This concentrated the trade of enslaved Black people from Africa in Iran. The study of this period in Iran is important because Muḥammad Shāh, the then ruler in Iran, believed that since any order that bans the slave trade is against Islam, concluding any accord in this regard was beyond his control and was related to sharī ͑a. This Essay discusses and compares the opinions of Shīʿī scholars in the Qājar era, when the question of the abolition of slavery was first posed via British diplomatic channels, and subsequently during the Constitutional Revolution 1905 (Enghelāb-e Mashrūteh), to see if the introduction of Human Rights concepts at the time had any effect on fatwas about slave trade. This is done by the study of historical documents, including royal correspondence, exchange of letters among Shīʿī scholars, and scholarly fatwas. This Essay argues that jurisprudential opinions continued to regard slavery as permissible within the sharīʿa despite political and diplomatic pressures to abolish it and despite the importance of the principles of freedom and equality in the Constitutional era.","PeriodicalId":340573,"journal":{"name":"Journal of Islamic Law","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133086264","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Lost in Translation","authors":"Tobias Scheunchen","doi":"10.53484/jil.v2.scheunchen","DOIUrl":"https://doi.org/10.53484/jil.v2.scheunchen","url":null,"abstract":"As a reciprocal contract, Islamic marriage (nikāḥ) furnishes rights and obligations for both spouses. Usually split into two portions, the deferred part of the bridal dower (mahr muʾakhkhar)—a one-time financial liability that both spouses agree on during the wedding proceedings—is customarily received by the Muslim wife where her husband seeks to divorce her unilaterally (ṭalāq). However, US courts faced with construing mahr-agreements have been reluctant to enforce the financial promises stipulated in such agreements. Based on evidence gathered from case law, this article argues that a combination of several factors, most importantly, the judicial anxiety to get involved in religious doctrinal interpretation, as well as the misinformed analogizing of bridal dowers to prenuptial agreements, adversely affects Muslim women as courts increasingly adhere to the presumption that mahr-agreements are non-enforceable, squarely placing the burden of proof to the contrary on women. Moreover, women's financial hardship is often the immediate result of the court's refusal to uphold a husband's commitment to pay dower. As a critical feature of Islamic marriage, the agreed-on dower payment assures financial stability after divorce, predictability, and women's bargaining power throughout a marital relationship. Since 2013, state legislators' partially successful endeavors to bar state courts from applying Islamic law under comity function as a compounding factor that has created dire prospects for the future of mahr-agreements in the US, posing a substantial risk not only to the institution of Islamic marriage, but also the parties’ freedom of contract.","PeriodicalId":340573,"journal":{"name":"Journal of Islamic Law","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122010996","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}