Tag Archives: Islamic Law

Kondo, “Islamic Law and Society in Iran”

In January, Routledge will release “Islamic Law and Society in Iran: A Social History of Tehran” by Nobuaki Kondo (Tokyo University of Foreign Studies). The publisher’s description follows:

This book explores the legal aspects of urban society in nineteenth-century Iran. It provides the social context in which political process occurred and examines how authorities applied law in society, how people utilized the law, and how the law regulated society. The legal system was primarily derived from Islamic la

In his thorough analysis, the author focuses on two themes: the shari‘a court and vaqf (endowments). The shari‘a court was the location, where law was applied, and the author shows that the majority of courts in the country did not engage in disputes, lawsuits, and litigation, but were instead involved primarily in popular transactions such as sales, loans, leases, gifts, and other commercial contracts. This is one of the main reasons that led to the development of close ties between religious clerics as legal professionals, on the one hand, and, on the other, merchants, traders, and shopkeepers in Iranian society during this time period. The second topic, the law of vaqf, is considered to be the strongest among the contracts of Islamic law and an essential part in the development of an Islamic city. Vaqf deeds constituted one of the most common and important types of transactions dealt with by any shari’a court in Iran. Using the alterations that occurred in the legal terms of very important vaqf deeds as an example, the author argues that this traditional legal system was itself not static but had the potential for change and modification.

The relationship between Islamic law and society is still an important issue in Iran under the Islamic Republic. Despite all the debates that began from the middle of the nineteenth century and which promoted legal reform, little was changed substantively in the area of the day-to-day practice of law in Iranian courts until the present day. This book provides an understanding of this legal system and its role in society, and offers a basis for assessing the motives and results of modern reforms as well as the modernist discourse.

Shavit, “Shari’a and Muslim Minorities”

This month, Oxford University Press will release “Shari’a and Muslim Minorities: The Wasati and Salafi Approaches to Fiqh al-Aqalliyyat al-Muslima” by Uriya Shavit (Tel Aviv University). The publisher’s description follows:

Based on a comparative analysis of several hundred religio-juristic treatises and fatwas (religious decisions), Shari’a and Muslim Minorities: The Wasati and Salafi Approaches to Fiqh al-Aqalliyyat al-Muslima offers the most systematic and comprehensive study to date of fiqh al aqalliyyat al-Muslima – the field in Islamic jurisprudence that treats issues that are unique to Muslims living in majority non-Muslim societies. The book argues that two main contesting approaches to fiqh al-aqalliyyat al-Muslima, the wasati and the salafi, have developed, in part dialectically. While both envision a future Islamizing of the West as a main justification for Muslim residence in the West, the wasati approach is pragmatic, facilitating, and integration-minded, whereas the salafi calls for strict application of religious norms and for introversion.

The volume examines diverse and highly-debated juristic issues, including the permissibility of naturalizing in non-Muslim states, participating in their electoral systems and serving in their militaries and police forces; the permissibility of taking mortgages and student loans; the permissibility of congratulating Christians on Christmas or receiving Christmas bonuses; and the permissibility of working in professions that involve breaching of religio-legal prohibitions (e.g. serving pork). Discussions highlight the diversity within contemporary Islamic jurisprudence and introduce new nuances to highly-charged concepts such as proselytizing, integration, and multiculturalism.

Ahmed, “Religious Freedom under the Personal Law System”

In December, Oxford University Press will release “Religious Freedom Under the Personal Law System” by Farrah Ahmed (Melbourne Law School, University of Melbourne). The publisher’s description follows:

The personal law system is hugely controversial and the subject of fierce debates. This book addresses a vital issue that has received inadequate attention in these debates: the impact of the personal law system on religious freedom. Drawing on scholarship on the legal reform of the personal law system, as well as philosophical literature on multiculturalism, autonomy, and religious freedom, this book persuasively argues that the personal law system harms religious freedom. Several reform proposals are considered, including modifications of the personal law system, a move towards a millet system, internal reform of individual personal laws, the introduction of a Uniform Civil Code, and a move towards religious alternative dispute resolution.

This book will be of significant interest to students and scholars of law, politics, and gender studies, as well as lawyers and policymakers across jurisdictions interested in multiculturalism, particularly contemporary debates on the legal accommodation of religious and cultural norms.


Alserhan, “The Principles of Islamic Marketing”

This month, Ashgate releases “The Principles of Islamic Marketing,” second edition by Baker Ahmad Alserhan (Qatar University). The publisher’s description follows:

The Principles of Islamic Marketing fills a gap in international business literature covering the aspects and values of Islamic business thought. It provides a framework and practical perspectives for understanding and implementing the Islamic marketing code of conduct. It is not a religious book.

The Islamic Economic System is a business model adopted by nearly one quarter of the world’s population. Baker Alserhan identifies the features of the Islamic structure of International Marketing practices and ethics. Adherence to such ethical practices elevates the standards of behaviour of traders and consumers alike and creates a value-loaded framework for meaningful cooperation between international marketers and their Muslim markets. His book provides a complete guide for an organization when managing its entire marketing function or when customising part of its offering to suit Muslim customers. It addresses the challenges facing marketers involved in business activities with and within Islamic communities, the knowledge needs of academic institutions, and the interest of multinationals keen on tapping the huge Islamic markets.

Along the way, Baker Alserhan provides insights into key elements such as, distribution channels, retailing practices, branding, positioning, and pricing; all within the Muslim legal and cultural norms. This second edition brings the book up to date and features a number of new case studies and two additional chapters on Maqasid Al Shariah and the Islamic economy, and a strategic perspective on Islamic marketing and branding.

Dispatches from Kabul: On the Banks of the Kabul River


Former CLR Fellow Jessica Wright ’14 is currently working as an attorney in Kabul, Afghanistan. This post is part of a series of reflections on her experiences there.

A Public Murder

She was a 27-year-old student of Islamic law and a devout Afghan Muslim. After praying at the Shah-e Du Shamshira mosque at the center of Kabul, Farkhunda Malikzada confronted the caretaker about the practice of selling charms or tawiz, amulets containing Quranic verses and incantations. Like many other conservative Muslims, she believed they were superstitious and un-Islamic. As she admonished the caretaker and the confrontation escalated, he began shouting, “In the name of God, kill her! She has burned the Quran!” Within minutes, a mob of hundreds had assembled, and while the police stood idly by, Farkhunda was stoned, beaten, set on fire, and left to die on the banks of the Kabul River. Some of those present filmed the lynching on their mobile phones.

Violence is endemic in Afghanistan and modern political and legal institutions have faltered since the fall of the Taliban in 2001, but the brutal murder of Farkhunda – which took place just last March – was particularly shocking given the cultural understanding in Afghanistan that public violence toward women is taboo. Despite the outcry from within the country and abroad, a number of prominent Afghan officials and religious leaders immediately endorsed the murder, highlighting Afghanistan’s complicated relationship with Islam and shattering the cautious hopes of reformers, particularly women’s rights advocates. The official spokesman for the Kabul police characterized Farkhunda’s protestations as a publicity stunt with the aim of attaining U.S. or European citizenship, and during his Friday prayer sermon, Ayaz Niazi, the prominent imam of the Wazir Akbar Khan Mosque, said, “If someone disrespects the Quran, you cannot expect people to control their emotions and wait for judges to decide the punishment.” Mullah Hassam of the Bagh-e Bala mosque argued that mahkama—e sahrayi or arbitrary execution is the appropriate punishment for insulting Islam. Soon thereafter, an investigation by the Ministry of Hajj and Religious Affairs found no evidence that Farkhunda had burned the Quran, and concluded that she had been slandered.

I first read about Farkhunda while weighing the pros and cons of moving to Kabul to practice law. I knew about Afghanistan’s abysmal human rights record, and had read up on the fragile legal protections for women and girls, as well as the “moral crimes” they are often prosecuted for and the oppressive customary rules they are subject to. Nevertheless, I was stunned by the savagery of Farkhunda’s murder. Afghanistan has “entered a new period of instability in 2014” the reports read, but Taliban-style murders were, I thought, a thing of the past.

Several friends and colleagues asked if I would be defending victims of human rights abuses, particularly women, and strongly advised against it. I assured them that I would be working in the commercial sector, focusing on corporate law and taxation, and would remain far outside the controversial limelight. Free enterprise is the surest path to prosperity and human rights, I would tell them. And surely it is. But even though I am not an Afghan woman, and life in Kabul is comparatively easy for me, Farkhunda’s story affected me deeply and became a catalyst for deeper study into a troubled country.

Afghan Law

Afghanistan’s legal system has been shaped by the country’s multiethnic population and chaotic history, as well as its distinctive culture. Under the veneer of monotheism, it is actually a country of competing belief structures. Afghanistan is overwhelmingly Muslim, but it is also clan-based, and as such its two primary sources of law have long been customary tribal law and Islamic law. The current formal legal system – designed in Bonn after Allied forces and the Northern Alliance gained control of the country in 2001 – aims to blend both traditions within a constitutional order defined by civil codes and formal courts. The Constitution designates Islam as the religion of the state and stipulates that no law shall contravene its tenets and provisions. It also suggests that Hanafi jurisprudence – one of the four Sunni Muslim schools – should be used as a kind of gap filler, consulted when there is no provision in the Constitution or others laws regarding a particular issue. And while Islam has been used as a source of authority to unite Afghanistan’s disparate clans under the auspices of the government since the late eighteenth century to the present, legal authority has never been fully consolidated in the hands of the state. This is due in part to ongoing conflict, lack of infrastructure, and an overarching lack of legitimacy, but also because of the prevalence and perceived authority of informal or customary law.

Within the informal system in Afghanistan, the ulama or religious leaders adjudicate disputes by employing common cultural and ethical standards that are assumed to conform to Islamic law. Most of these tribal leaders, who meet in shuras or jirgas – the main institutions that operate as mechanisms of dispute settlement – are untrained in the classical Islamic law tradition. In Pashtunwali, an unwritten ethical code with its own particular set of customs or urf, individual identity is inextricably linked to membership within a particular tribe, and the concept of nang or honor is paramount. Certain actions help to build one’s honor within the tribe while others negate honor and bring about shame. Namus or the practice of observing gender boundaries, for example, is routinely extolled as a virtue. Women abide by purdah or seclusion to maintain these boundaries since it is believed that a woman who is almost invisible to others cannot shame herself. These norms and others like them are not codified; urf assumes space within Islamic law. As such, the formal and informal legal systems operate in parallel with significant tensions between them.

During my first month in Kabul I met Kimberley Motley, the spirited American defense attorney who represented Farkhunda’s family at the initial trial. Motley is, in her words, on a “quest for justness,” which means using existing laws for their intended purpose: to protect. She keeps records of all legal proceedings, and insists that court officers, judges, and parties to the dispute sign off on them. Since the principle of stare decisis does not apply in the Afghan legal system, and judicial interpretation cannot be relied upon to clarify interpretive voids, Motley often relies on this self-made precedential system to argue her cases.

Forty-nine suspects were tried in the Farkhunda case at a trial noted for its unusual brevity. Motley wrote a petition for the family, in which she cited the Afghan Penal Code, the Elimination of Violence Against Women (EVAW) law, the Afghan Constitution, the Quran, a body of tribal law, and the International Convention on the Rights of the Child. She requested civil compensatory damages for the family and criminal punishment to the extent of the law for the perpetrators. Motley also demanded punishment for those who stood by and watched the murder. “To take good care of and protect women is one of the principles of Islam,” she wrote. “To allow society to ignore this obligation promotes anarchy and discord, and perpetuates further violence.”

In the end, four of the perpetrators were given death sentences and eight were sentenced to 16 years in prison for murder, assault, and encouraging violence. Nineteen more were sentenced to one year in prison for failure to protect, and 18 were acquitted. “The trial was about Farkhunda and her family,” said Motley. “But to some extent, this ordeal has also put the Afghan legal system on trial.” Critics contend that the rapid convictions were a result of public pressure, and came at the cost of serious failings in the judicial process. Motley, too, acknowledged that there were monumental flaws, but also noted that it was the most well run trial she has ever seen in Afghanistan. She added, “I hope the judges, police, and the wider community in Afghanistan have learned from this case and better understand that the laws exist to protect not oppress women.” Unfortunately, this seems not to be the case. Two months later, during a secret and unlawful hearing, the Appellate Court overturned the death sentences. Motley hopes the case will now be brought before the Supreme Court.

The Aftermath

In the aftermath of Farkhunda’s murder, the largest women’s protest in the Afghanistan’s history took place. Women poured onto the streets of Kabul to demand justice and an end to gender-based violence. Many decried the notion that “men are fundamental and women are secondary,” as declared by the Afghan Ulama Council in 2012, saying that such a concept exists in neither classical nor contemporary Islamic jurisprudence. One women’s rights activist said, “The men who killed and attacked Farkhunda were mostly those who have lived in Kabul and have grown up as boys in Hamid Karzai’s government. . . they learned how to wear jeans and look modern but their mentality towards women hasn’t changed.” This attitude, split between a yearning for modernity and fidelity to tribal custom and regressive norms, applies most visibly to issues affecting women.

The dissonance between customary practice, Islamic law, and the state legal code makes it difficult to use existing laws to effectively protect the rights of individuals or to hold accountable those who have violated the rules, norms, and customs of the existing constitutional order. Preventing tragedies like the murder of Farkhunda in the future depends, at least in part, on building and sustaining a robust legal system in Afghanistan. And because that legal system will develop within the strictures of Islam – a religion focused on jurisprudence – many believe change must begin with the ulama.

Photos via Wikimapia and The Guardian

Serajuddin, “Cases on Muslim Law of India, Pakistan, and Bangladesh”

In September, Oxford University Press released “Cases on Muslim Law of India, Pakistan, and Bangladesh,” by Alamgir Muhammad Serajuddin (University of Chittagong, Bangladesh).   The publisher’s description follows:

Muslim law is an integral part of the South Asian legal system, and case law plays a major role in its interpretation, application, and development. Through a selection of principal judicial decisions and significant fact situations from pre- and post-independent India, Pakistan, and Bangladesh, this volume provides an easy access to the basic principles and rules of Muslim law, and shows how case law acts as a social barometer and an instrument of change.

The cases discussed cover such diverse areas as sources and interpretation of law, institution of marriage, polygamous marriages, dower, restitution of conjugal rights, talaq, khula, irreconcilable breakdown of marriage, legitimacy, guardianship, and maintenance of wives and divorced wives. Among the important legislations, it covers Dissolution of Muslim Marriages Act 1939, Muslim Family Laws Ordinance 1961, and Muslim Women Act 1986.

The book also shows how religion-based rules of personal law have been interpreted by secular courts during certain epochs in history and how the trend of interpretation has changed over the last 150 years.

Dispatches from Kabul: Warlords and Takeout

Former CLR Fellow Jessica Wright ’14 recently moved to Kabul, Afghanistan, where she works with a team of local and international lawyers at Rosenstock Legal Services, a commercial law firm. In this series of dispatches from Kabul, she will share her insights on issues of law and religion in the context of practicing law in the Islamic Republic. The following personal narrative is an introduction to the series.

Mostly, I was exhausted. There was the packing and repacking, a sleepless night, the flight from Milan to Istanbul, and a four and a half hour layover in the dead of the night. When I arrived at the overcrowded international terminal at Atatürk International, a dark sense of dread came over me. I ordered a venti chai tea latte, bought two bags of Haribo Gold Bears, and sat in front of the lounge monitor watching GO TO GATE flash across the screen for destinations like Najaf, Sulaimaniyah, and Baghdad. When “impoverished, Taliban-infiltrated, suicide-bombed city” is all you have to associate with your destination, it’s hard to rally. KABUL–3:10–WAIT FOR GATE. I wasn’t overcome by the urge to buy a one-way ticket back to Chicago, but as the minutes ticked by slowly I became increasingly angry with myself for having made this decision in the first place.

I couldn’t quite will myself out of the lounge on time, so I ended up sprinting down the terminal to the gate where all but one anxious-looking passenger had been loaded onto the bus that would take us to the outer reaches of the airfield. I remember passing rows of shipping containers and other miscellaneous cargo and wondering if I hadn’t read the fine print well enough.

The flight was full of Westerners. Men with buzz cuts, prominent biceps, and army green t-shirts; tall bespectacled Dutch men with reporter notebooks; women wearing Western tunics and headscarves and speaking the language of project management. A beautiful Afghan girl with kind and vibrant eyes sat next to me. She looked very stylish in her elegant black tunic and hijab, and we struck up a conversation about Islamic dress. She asked me if this would be my first time in Afghanistan – pronounced in a lilting and graceful accent – and then enthusiastically told me all the things she loves about her country. Later, I fell asleep to her conversation with another Afghan woman, the singsong words bale, bale playing in my head. Dari, the Afghan version of Persian and one of the national languages of the country, is really beautiful.

I woke in time to see the sun rising ahead of us in the east, and as we approached Kabul, the desert disappeared and the Hindu Kush came into view. I thought about Antoine de Saint-Exupéry’s Little Prince and his tiny asteroid, and about the surface of Mars and the moon. “Kabul might as well be outer space,” I whispered to myself. From high above, it looked as though you could be stuck forever in this place surrounded by a vast mountain range encased in endless deserts. The city itself appeared brown and dusty and flat, and the rows of concrete buildings gave the impression that we were landing in the middle of a sprawling detention center or military compound. But as we began the descent I felt a rush of adrenaline and excitement. I had finally made it to Kabul and there was no room for panic.

The hot, dry air smelled like summer in Mumbai, but the atmosphere at Hamid Karzai International was more subdued. An Afghan man loaded my suitcases onto a cart, and we exited the building and began the dreaded walk from the international arrivals terminal to the entrance and parking lots. I felt exposed in the open air, but more curious than frightened, and I managed to snap a few pictures of the “gardens” – wilting rosebushes among weeds – as we made our way to the gate. Given the recent airport bombings, I thought I would be sick with fear, but the ten-minute walk felt strangely normal. A coworker greeted me warmly at our meeting point, and we set out to the city with our driver.

The next hours are a blur of checkpoints, armed men, and seemingly perilous moments on a journey through Kabul’s manic “streets.” When we finally arrived at my new house in a quiet residential neighborhood, I met my housemates – journalists, NGO researchers, communications specialists – as well as the very gracious guards, drivers, and cleaners who make life here easier. We have gates and blast walls, 24-hour chakidors, CCTV, a safe room, and a semi-automatic weapon. Even so, we live “outside the wire,” to borrow a military phrase, which means our security approach is to remain under the radar and as out of sight as possible. Our cars have no markers, we wear headscarves and abayas, and we do not keep regular schedules. Consequently, we are able to move around the city with relative ease. I have only felt anxious once or twice when passing a checkpoint or sitting too long in traffic, and for the most part, the days pass by in a normal rhythm. But I guess this is the reality in a conflict zone. Everything’s fine until it isn’t. You’re safe until you’re in the wrong place at the wrong time. You forget about the danger until your friends get captured or killed. It’s the vague, speculative fear, I suppose, that looms large.

My first week in Kabul has been filled with takeout dinners at home, all day brunches in private gardens, and bonfires at night. These are things you wouldn’t think possible in Afghanistan. I’m excited about the work – more on that later – and happy to have met many interesting and enthusiastic people. The low-flying helicopters that regularly shake the house still throw me off, as do glimpses of abject poverty seen through the car window. I like hearing the call to prayer five times a day, but the light blue burkas that cover the body with a single piece of cloth, the chadri, are an eerie reminder of the Taliban’s hold on this country.

As we ventured into a different neighborhood a few nights ago, our driver pointed to a newly built, outsized mansion and said, “That is Dostum’s house.” I looked on in awe as I recalled Ahmed Rashid’s description of General Dostum, the Uzbek warlord:

“He wielded power ruthlessly. The first time I arrived at the fort to meet Dostum there were bloodstains and pieces of flesh in the muddy courtyard. I innocently asked the guards if a goat had been slaughtered. They told me that an hour earlier Dostum had punished a soldier for stealing. The man had been tied to the tracks of a Russian-made tank, which then drove around the courtyard crushing his body into mincemeat, as the garrison and Dostum watched. The Uzbeks, the roughest and toughest of all the Central Asian nationalities, are noted for their love of marauding and pillaging – a hangover from their origins as part of Genghis Khan’s hordes and Dostum was an apt leader. Over six feet tall with bulging biceps, Dostum is a bear of a man with a gruff laugh, which, some Uzbeks swear, has on occasion frightened people to death” (Taliban, pg. 56).

Somehow, all of us, even warlords and lawyers, have a role to play in this strange but fascinating place.

Photos by Jessica Wright, September 2015

Nagamine, “The Legitimization Strategy of the Taliban’s Code of Conduct”

In October, Palgrave Macmillan will release “The Legitimization Strategy of the Taliban’s Code of Conduct: Through the One-Way Mirror” by Yoshinobu Nagamine (World Economic Forum, Geneva). The publisher’s description follows:

The Afghan Taliban are often judged against international norms; what is,9781137537164 however, less known is that they have produced their own set of norms designed to guide their conduct. In this insightful study, Yoshinobu Nagamine examines the Taliban’s internal code of conduct, the Layeha. Nagamine analyzes the Layeha in comparison with Islamic Law and international humanitarian law and conducts interviews with Taliban members to understand how they interpret and refer to the Layeha. The results of these interviews give readers an insider’s view of the legitimization strategy of the Taliban leadership. This work makes a significant contribution to research on non-state actors, counterinsurgency, and Islamic fundamentalism, and it serves as an indispensable resource for scholars of the Afghan Taliban.

Zakariyah, “Legal Maxims in Islamic Criminal Law”

In November, Brill will release “Legal Maxims in Islamic Criminal Law: Theory and Applications” by Luqman Zakariyah (International Islamic University Malaysia). The publisher’s description follows:

Using contemporary illustrations, Legal Maxims in Islamic Criminal Law delves into the theoretical and practical studies of al-Qawaid al-Fiqhiyyah in Islamic legal theory. It elucidates the importance of this concept in the application of Islamic law and demonstrates how the concept relates to the objectives of Islamic law (maqāṣid al-Sharī‘ah), generally. Included in this examination are the following maxims: al-Umūr bi-Maqāṣidihā (“Matters shall be Judged by their Objectives”); al-Yaqīn lā Yazūl bi-sh-Shakk (“Certainty Cannot be Overruled by Doubt”); al-Mashaqqa Tajlib at-Taysīr (“Hardship begets Facility”); Lā Ḍarar wa-lā Ḍirār (“No Injury or Harm shall be Inflicted or Reciprocated”); and al-ʿĀda Muḥakkama (“Custom is Authoritative”).

Barazangi, “Woman’s Identity and Rethinking the Hadith”

In November, Ashgate will release “Woman’s Identity and Rethinking the Hadith” by Nimat Hafez Barazangi (Cornell University). The publisher’s description follows:

The Prophet Muhammad’s reported traditions have evolved significantly to affect the social, cultural, and political lives of all Muslims. Though centuries of scholarship were spent on the authentication and trustworthiness of the narrators, there has been less study focused on the contents of these narratives, known as Hadith or Sunnah, and their corroboration by the Qur`an.

This book is a first step in a comprehensive attempt to contrast Hadith with the Qur`an in order to uncover some of the unjust practices by Muslims concerning women and gender issues. Using specific examples the author helps the reader appreciate and understand the magnitude of the problem. It is argued that the human rights and the human development of Muslim women will not progress in a meaningful and sustainable manner until the Hadith is re-examined in a fresh new approach from within the Islamic framework, shifting the discourse in understanding Islam from a dogmatic religious law to a religio-moral rational worldview.