Tag Archives: Islamic Law

Center Sponsors Successful Joint Colloquium with Villanova Law School

Here’s an article, from the St. John’s Law School website, on the inaugural session of the Joint Colloquium in Law and Religion, which the Center hosted with Villanova Law School this semester. The Joint Colloquium, which featured leading law and religion scholars, used innovative “virtual classroom” technology to allow students and faculty at both schools to participate simultaneously through a synchronous video link.

2014_joint_colloquium

Joint Colloquium with Michael Walzer

From the article:

Michael Walzer (Institute for Advanced Studies) discussed the ethics of war in classical and contemporary Jewish law. Legal historian Sarah Barringer Gordon (University of Pennsylvania) explained how the availability of the corporate form empowered African-American congregations in the early national period. Kristine Kalanges (Notre Dame University School of Law) explored the relationship between Islamic law and contemporary ideas about constitutionalism and human rights. Kent Greenawalt (Columbia Law School) and Donald L. Drakeman (Cambridge University) both presented papers on Originalism. Greenawalt argued that factors other than the original understanding inevitably will and should play an important role in constitutional interpretation. Drakeman offered a methodological middle ground, one that takes account of both original intent and original meaning. Steven D. Smith (University of San Diego School of Law) critiqued the standard account of American religious freedom, and asked whether religious freedom in America today is suffering a decline.

The virtual classroom enriched the discussions by allowing for a fruitful exchange between participants at the two host schools. After the speakers presented their papers, students had the opportunity to ask questions and present their own insights and opinions on the issues.

This was our first experience with virtual classroom technology, and it was highly successful. You can read more about the joint colloquium, and view a photo gallery, here. Thanks to everyone who made it possible, and see you next time!

 

Balala, “Islamic Finance and Law”

islamic-finance-and-law-theory-and-practice-in-a-globalized-worldNext month, I.B. Tauris will publish Islamic Finance and Law: Theory and Practice in a Globalized World by Maha-Hanaan Balala (Oxford). The publisher’s description follows.

Islamic commercial and financial practice has not experienced the trial-and-error style of development that has characterized the development of the common law in the English-speaking world. Many of the principles, rules and practices prevalent in the Islamic law of contract, commerce, finance and property remain the same as those outlined by the Quran and the Prophet Muhammad, and expounded by scholars of jurisprudence as far back as the 13th century, despite the advancement in time and sophistication of commercial interaction. Hanaan Balala here demonstrates how, in order to bridge the gap between the principles outlined by the Quran and the Prophet in the 7th century and commercial practice in the 21st century, Islamic finance jurisdictions need to open themselves to learning from the experience (including the mistakes) of the English common law. “Islamic Finance and Law: Theory and Practice in a Globalized World” provides an analysis of the fundamental principles underlying the Islamic law of contract and commercial practice in comparison with their equivalents in common law in the English-speaking world. It seeks to draw parallels (and differences where appropriate) to facilitate the growth and development of Islamic commercial and financial law globally.

Two Updates on Syria’s Christians

Holy Mother of God Armenian Apostolic Church in Kessab, Syria

Two updates on last week’s post about the persecution of Christians in Syria, one hopeful, one much less so.

First the hopeful one. As I wrote last week, the Islamic State in Iraq and the Levant, an al-Qaeda affiliate fighting with Syrian opposition, has succeeded in capturing the town of Raqqa and imposing the classical dhimma on the town’s Christian inhabitants. The dhimma is a notional contract that Christians make with the Islamic community; it offers Christians protection and some autonomy in exchange for their agreement to pay a poll tax called the jizya and to accept restrictions on their dress, movement, construction of churches, etc. Although the historical origins are obscure, the dhimma was a standard concept in classical Islamic law. The Ottomans abandoned the concept only in the 19th century. Its revival now, even in this limited way, is a very worrying sign.

In a response to my post, a post at Andrew Sullivan’s blog points to comments condemning ISIL by a scholar at Egypt’s al-Azhar University, the leading center of Sunni Islamic learning. The scholar, Sheikh Abdul Zahir Shehata, maintains that Islamic law makes imposition of the dhimma illegal in these circumstances. ISIL’s collection of the jizya , he says, is “a form of theft that uses religion as a cover.”

It’s gratifying to see someone from al-Azhar making the point. But there is a certain ambiguity in Shehata’s remarks. If you read them closely, you see that he is not necessarily condemning the jizya as such, only its collection by a renegade group:

“ISIL contradicts itself,” Shehata said. “On the one hand they say they are implementing the provisions of Islamic sharia, including the ‘jizya’, however the Islamic state must be a full-fledged state and recognised by its citizens and subjects, which is not the case in the areas where ISIL is imposing its control by force and bloodshed.”

Maybe it’s a problem with the translation, or perhaps one has to read the whole interview to understand Shehata’s point. But it’s important to focus on the nuances. Perhaps Shehata’s real point is that only a true Islamic law state, not a band of rebels acting outside government authority, may impose the jizya–in which case, Syria’s Christians may find his rejection of ISIL’s actions less reassuring than first appears.

The less hopeful update: over the weekend, fighters with a different al-Qaeda offshoot in the opposition, a rival of ISIL known as the Nusra Front, captured the Armenian Christian town of Kessab. The fighters crossed the border from Turkey, where their bases are located, and attacked the town on Friday. By Sunday, it had fallen. Thousands of Kessab’s Christians–some of whom had sought refuge from Raqqa–have fled to the nearby city of Latakia, where they receiving assistance from the local community, the Red Cross, and Red Crescent. Eyewitnesses report that the Nusra Front has looted Christian homes and stores and desecrated churches in Kessab.

Many Armenian Christians in Kessab descend from refugees who fled the last great persecution of Christians in the region, the Armenian Genocide of 1915–itself a byproduct, in part, of a jihad the Ottoman Empire declared against Christians during World War I. The sad ironies will not escape any of the Christians in Syria today.

Britain to Recognize Sharia-Compliant Wills

An interesting story about The Law Society’s decision to recognize the legitimacy of Islamic law by permitting solicitors to draft wills that are compliant with principles of Islamic law. A bit:

Under ground-breaking guidance, produced by The Law Society, High Street solicitors will be able to write Islamic wills that deny women an equal share of inheritances and exclude unbelievers altogether.

The documents, which would be recognised by Britain’s courts, will also prevent children born out of wedlock – and even those who have been adopted – from being counted as legitimate heirs.

Anyone married in a church, or in a civil ceremony, could be excluded from succession under Sharia principles, which recognise only Muslim weddings for inheritance purposes.

Nicholas Fluck, president of The Law Society, said the guidance would promote “good practice” in applying Islamic principles in the British legal system.

The story reports that some of the existing Islamic law tribunals also “have powers to set contracts between parties, mainly in commercial disputes, but also to deal with issues such as domestic violence, family disputes and inheritance battles.”

It may be that The Law Society will eventually make the same decision with respect to private parties who wish to engage in commercial transactions that conform to Islamic law, or who wish to avoid commercial transactions with those who hold what are taken to be religiously objectionable views. Interesting that the reception to similar claims in this country has been rather different.

UPDATE: See Frank Cranmer’s comment for various clarifications.

Meshal, “Sharia and the Making of the Modern Egyptian”

This January, the American University in Cairo Press published Sharia and the Making of the Modern Egyptian: Islamic Law and Custom in the Courts of Sharia 2Ottoman Cairo by Reem A. Meshal (Louisiana State University).  The publisher’s description follows.

In this book, the author examines sijills, the official documents of the Ottoman Islamic courts, to understand how sharia law, society and the early-modern economy of sixteenth- and seventeenth-century Ottoman Cairo related to the practice of custom in determining rulings. In the sixteenth century, a new legal and cultural orthodoxy fostered the development of an early-modern Islam that broke new ground, giving rise to a new concept of the citizen and his role. Contrary to the prevailing scholarly view, this work adopts the position that local custom began to diminish and decline as a source of authority.

These issues resonate today, several centuries later, in the continuing discussions of individual rights in relation to Islamic law.

Reinstating the Dhimma in Syria

This month, the conflict in Syria enters its fourth year. The latest news is that the government has recaptured the border town of Yabrud, an important opposition stronghold. In fact, Yabrud is where the Nusra Front, an al Qaeda affiliate in the opposition, had been holding hostage a group of Greek Orthodox nuns. The Front released the nuns only last week, reportedly in return for a government promise to allow the Front to leave the city.

Yabrud’s fall will be welcome news to Syria’s Christians. Although they have tried to avoid getting too mixed up in the conflict, it’s no secret that most of them quietly support the Assad government. Some Americans express dismay at this fact. Earlier this year, in fact, Senator John McCain reportedly stormed out of a private meeting with Syrian Christian leaders who had traveled to Washington to warn about Islamist elements in the opposition. Presumably, Senator McCain thinks these warnings reflect badly on non-Islamist elements in the anti-Assad coalition, whom he favors supplying with arms.

It’s easy to support moderate rebels and hope for the best when one lives in the United States. Syria’s Christians do not have that luxury. They favor Assad because he represents the lesser of two evils. A member of a minority religion himself–he is an Alawite–Assad has been reasonably tolerant of other minorities, including Christians. Better to take your chances with him, even if he is a dictator, than risk life under jihadists who kidnap nuns and hold them for ransom.

Actually, for an al Qaeda affiliate, the hostage-taking Nusra Front is relatively tolerant. The opposition contains worse. Take, for example, the Islamic State in Iraq and the Levant (ISIL), another al Qaeda offshoot that fights with the opposition. ISIL has taken the eastern town of Raqqa and reinstated the centuries-old dhimma, the notional contract that governs relations with Christians in classical Islamic law. According to the dhimma, Christians may live in an Islamic society as long as they pay a poll tax called the jizya, accept restrictions on their activities–for example, they may not engage in public religious displays, affect equality with Muslims, or carry weapons–and refrain from cooperating with Islam’s enemies. If they break the terms of the contract, Christians forfeit the protection of Islamic society and become subject to retaliation.

ISIL has updated the dhimma for Raqqa’s several thousand Christians. For example, Haaretz reports,

According to the 12 clauses in the accord, the Christians will commit to pay a twice-yearly poll tax of “four gold dinars” – which at today’s rate, comes to about $500 per person – with the exception that members of the middle class will pay half this amount, and the poor will pay a quarter of it, on condition they do not conceal their true financial situation.

The Raqqa dhimma also requires Christians to turn over persons ISIL believes to be working against it. Interestingly, this might include other jihadists. At the moment, ISIL is quarreling with the Nusra Front, whose members have demanded that ISIL leave the country and allow the Front to represent al Qaeda’s interests in Syria.

The Ottomans formally abolished the dhimma in the nineteenth century, an act that led at the time to a widespread anti-Christian backlash. Since the founding of the modern Middle East, no Islamist group has seriously sought to reinstate it. Even the Muslim Brotherhood government in Egypt, for example, did not propose that Christians formally comply with the old dhimmi restrictions. It’s no surprise that Syria’s Christians look at developments in places like Raqqa and decide that Assad, rather than the opposition, offers them a more secure future.

Korteweg & Yurdakul, “The Headscarf Debates”

Next month, Stanford University Press will publish The Headscarf Debates by Anna C. Korteweg (University of Toronto) and Gökçe Yurdakul (Humboldt University of Berlin).  The publisher’s description The Headscarf Debatesfollows.

The headscarf is an increasingly contentious symbol in countries across the world. Those who don the headscarf in Germany are referred to as “integration-refusers.” In Turkey, support by and for headscarf-wearing women allowed a religious party to gain political power in a strictly secular state. A niqab-wearing Muslim woman was denied French citizenship for not conforming to national values. And in the Netherlands, Muslim women responded to the hatred of popular ultra-right politicians with public appeals that mixed headscarves with in-your-face humor. In a surprising way, the headscarf—a garment that conceals—has also come to reveal the changing nature of what it means to belong to a particular nation.

All countries promote national narratives that turn historical diversities into imagined commonalities, appealing to shared language, religion, history, or political practice. The Headscarf Debates explores how the headscarf has become a symbol used to reaffirm or transform these stories of belonging. Anna Korteweg and Gökçe Yurdakul focus on France, Germany, and the Netherlands—countries with significant Muslim-immigrant populations—and Turkey, a secular Muslim state with a persistent legacy of cultural ambivilance. The authors discuss recent cultural and political events and the debates they engender, enlivening the issues with interviews with social activists, and recreating the fervor which erupts near the core of each national identity when threats are perceived and changes are proposed.

The Headscarf Debates pays unique attention to how Muslim women speak for themselves, how their actions and statements reverberate throughout national debates. Ultimately, The Headscarf Debatesbrilliantly illuminates how belonging and nationhood is imagined and reimagined in an increasingly global world.

Al-Azmeh, “The Emergence of Islam in Late Antiquity”

Next month, Cambridge University Press will publish The Emergence of Islam in Late Antiquity: Allah and his People by Aziz Al-Azmeh (Central European University, Budapest). The publisher’s description follows.The Emergence of Islam in Late Antiquity

Based on epigraphic and other material evidence as well as more traditional literary sources and critical review of the extensive relevant scholarship, this book presents a comprehensive and innovative reconstruction of the rise of Islam as a religion and imperial polity. It reassesses the development of the imperial monotheism of the New Rome, and considers the history of the Arabs as an integral part of Late Antiquity, including Arab ethnogenesis and the emergence of what was to become Muslim monotheism, comparable with the emergence of other monotheisms from polytheistic systems. Topics discussed include the emergence and development of the Muhammadan polity and its new cultic deity and associated ritual, the constitution of the Muslim canon, and the development of early Islam as an imperial religion. Intended principally for scholars of Late Antiquity, Islamic studies and the history of religions, the book opens up many novel directions for future research.

Fakhri, “Fatwas and Court Judgments: A Genre Analysis of Arabic Legal Opinion”

Next month, Ohio State University will publish Fatwas and Court61Fh-piM65L._SY300_ Judgments: A Genre Analysis of Arabic Legal Opinion, by Ahmed Fakhri (West Virginia University). The publisher’s description follows.

Fatwas and Court Judgments: A Genre Analysis of Arabic Legal Opinion uses a genre analysis approach to investigate how Arabic legal opinion is linguistically and rhetorically constructed in two culturally significant types of texts: secular court judgments and fatwas, the Islamic edicts based on sharii’a law. Ahmed Fakhri’s analysis shows that the court judgments exhibit several Western-inspired features, particularly the complexity of syntax and the rhetorical moves utilized to construct arguments. But the fatwas maintain conventional Arabic patterns of persuasion, such as citing religious texts, relying on affective appeal, and offering moral advice. Showing how these two radically different rhetorical traditions coexist, Fatwas and Court Judgments totally re-conceptualizes Arabic legal argumentation by highlighting its diverse sources and hybridity.

The differences between the two genres stem from elements of their socio-cultural context, such as the role relations of the participants and the characteristics of the institutions to which the genres belong. Moving beyond these contexts, Fatwas and Court Judgments reveals generic practices that have broad implications for understanding various aspects of wider Arab culture, including the tension between modern secular ideologies and traditional religious beliefs, the male-dominated access to discourse, and the prevalence of utilitarian attitudes exhibited in “fatwa shopping.”

Sachedina, “Islam and the Challenge of Human Rights”

Next month, Oxford University Press will publish Islam and the Challenge of Human Rights by Abdulaziz Sachedina (George Mason University). The publisher’s description follows.Islam and the Challenge of Human Rights

In 1948, the General Assembly of the United Nations adopted and proclaimed the International Declaration of Human Rights, a document designed to hold both individuals and nations accountable for their treatment of fellow human beings, regardless of religious or cultural affiliations. Since then, the compatibility of Islam and human rights has emerged as a particularly thorny issue of international concern, and has been addressed by Muslim rulers, conservatives, and extremists, as well as Western analysts and policymakers; all have commonly agreed that Islamic theology and human rights cannot coexist.

Abdulaziz Sachedina rejects this informal consensus, arguing instead for the essential compatibility of Islam and human rights. He offers a balanced and incisive critique of Western experts who have ignored or underplayed the importance of religion to the development of human rights, contending that any theory of universal rights necessarily emerges out of particular cultural contexts. At the same time, he re-examines the juridical and theological traditions that form the basis of conservative Muslim objections to human rights, arguing that Islam, like any culture, is open to development and change. Finally, and most importantly, Sachedina articulates a fresh position that argues for a correspondence between Islam and secular notions of human rights.