18 January 2008

'Law and the Islamic World': Papers Round-up 2007 (Version 3)

At the start of the new year, here is an overview of some noteworthy papers published on the broad topic of 'Law and the Islamic world' in 2007. The focus is on papers that deal in some way with the specificity (or not) of conceptions of law and legal form in the Islamic world, rather than on those dealing with more 'substance related' issues - for want of a better term - such as family law, fundamental rights, freedom of religion, Islam and democracy etc. All suggestions for further materials are very welcome. Here goes (Version 3: see the updates below):

Muhammad’s Social Justice or Muslim Cant?: Langdellianism and the Failures of Islamic Finance,
Haider Ala Hamoudi (Cornell International Law Journal, 2007)

From the Introduction: "Islamic finance has failed to achieve its most basic and central objectives, but the causes of that failure, and whether anything can be done to reconstruct the practice in a manner consistent with commercial reality and its ontology, are matters that, by and large, have gone unexamined. (...) This Article considers two issues. First, it seeks to provide a more precise description of the jurisprudential methodology employed in Islamic finance that has led to its failure. The dominant interpretive approach within contemporary Islamic jurisprudence, and Islamic finance in particular, shares many common features with the jurisprudential theories of Christopher Columbus Langdell. Both approaches are excessively rigid and dependent on formal exercises of logic, allowing the jurist or Second, it seeks to explain how Islamic principles might be used in a more salutary fashion in finance, avoiding unnecessarily the elaborate obfuscations and complications that serve no practical purpose while achieving some modicum of social justice in an Islamic setting. The more extreme forms of Legal Realism are not a workable solution in light of the nature of religious jurisprudence and the deep, historic importance of giving some role to Islamic doctrine and sacred text in developing Islam’s legal rules. Rather than attempt a comprehensive alternative methodology, this Article seeks to outline principles necessary for any credible attempt at reform and will provide specific examples of how such principles might be applied. In so doing, it will become apparent that the changes necessary to develop an interpretive system, which will achieve the objectives of Islamic finance, are not as vast as might be imagined. (...) This Article illustrates its two central themes through an admittedly contentious comparison of the jurisprudential theories of Langdell and Muhammad Ibn Idris al-Shafi’i, the person credited by the dominant contemporary proponents of Islamic finance as responsible for systematizing the Islamic jurisprudence they use."

Islamic finance law as an emergent legal system, Nicholas H. D. Foster (SOAS) (Arab Law Quarterly)

Abstract: The recent growth in Islamic finance has drawn attention to the alleged “uncertainty” of the sharia, highlighted in 2004 by the Beximco case. On the institutional level, various organisations are addressing the issue; there are also “organic” tendencies towards standardisation. These phenomena are combining with others to form a new legal system, albeit one with particular characteristics. This system has matured sufficiently to merit categorisation as a separate field of study and practice: Islamic Finance Law.

Legal Impediments to the Collateralization of Intellectual Property in the Malaysian Dual Banking System, Ida Madieha Azmi (International Islamic University Malaysia), Engku Rabiah Adawiyah Engku Ali (International Islamic University Malaysia) (Asian Journal of Comparative Law)

Abstract: This paper examines the legal impediments facing the acceptability of intellectual property as collateral in Malaysia. As Malaysia practises a dual banking system, conventional and Islamic, both running parallel to each other, the position of intellectual property under the Islamic banking system will also be analysed. This, in turn, requires a deeper elaboration of principles relating to collateral security or rahn in Shari'ah law. The paper also proceeds to explore the suitability, acceptability and practical risks of allowing intellectual property as a form of security in comparison to "physical assets".

Codifying Shari'A: International Norms, Legality & the Freedom to Invent New Forms
, Paul H. Robinson and others (University of Pennsylvania Law School) (in the AmJCompL and on

Abstract: The United Nations Development Program and the Republic of the Maldives, a small Muslim country with a constitutional democracy, commissioned this project to craft the country's first system of codified penal law and sentencing guidelines. This Article describes the special challenges and opportunities encountered while drafting a penal code based on Shari'a (Islamic law). On the one hand, such comprehensive codification is more important and more likely to bring dramatic improvements in the quality of justice than in many other societies, due in large part to the problems of assuring fair notice and fair adjudication in the uncodified Shari'a-based system in present use. On the other hand, the challenges of such a project are greater, due in part to special needs for clarity and simplicity that arise from the relative lack of codification experience and training. But there turned out to be perhaps unexpected advantages to undertaking a comprehensive codification project in the Maldives. While the lack of a codification tradition created difficulties, it also gave drafters the freedom to invent new codification forms that would be difficult to adopt in a society with an entrenched codification history.While it was a concern that any Shari'a-based code could conflict with international norms, in practice it became apparent that the conflict was not as great as many would expect. Opportunities for accommodation were available, sometimes through interesting approaches by which the spirit of the Shari'a rule could be maintained without violating international norms. In the end, this Shari'a-based penal code drafting project yielded a Draft Code that can bring greater justice to Maldivians and also provide a useful starting point for modern penal code drafting in other Muslim countries.However, the code drafting project also may have much to offer penal code reform in non-Muslim countries, for the structure and drafting forms invented here often solve problems that plague most penal codes, even codes of modern format such as those based upon the American Law Institute's Model Penal Code, which served as the model for most American penal codes. The challenges of accessible language and format, troublesome ambiguous acquittals, overlapping offenses, combination offenses, and penal code-integrated sentencing guidelines have all been addressed.

“And amicable settlement is best”: Sulh and dispute resolution in Islamic law
, Aida Othman (
Arab Law Quarterly)

Abstract: The attention accorded to the institution of qa;dā’ ‘judgeship’ and the adjudicative functions of the qādi has obscured another important method for resolving disputes in Islamic law, namely Sulh ‘amicable settlement’. While many studies on dispute resolution in Muslim societies have portrayed Sulh mainly as a manifestation of customary practice within informal settings, a study of the legal sources reveals that it is not extra-judicial but is rather an integral aspect of an Islamic justice system. Citing authoritative traditions on the potentially disruptive effects of adjudication, jurists instructed disputants and qādis alike to first consider conciliation to solve conflicts. A qādi might opt for Sulh in lieu of proceeding to trial, either steering disputants towards settlement on their own, with the assistance of mediators, or mediate the case himself. At the same time, jurists were also concerned with ascertaining the parameters within which Sulh should operate, especially when they might offend the rules against ribā (usury) and gharar (uncertainty, deception, or unreasonable risk). The legal debates on Sulh during the formative period of Islamic law show how jurists struggled to balance competing ethical and religious ideals: those of conciliation and compromise with those of truth and justice. In some situations, the individual’s right to his full legal entitlements should be upheld, and Sulh should not be given precedence over the formal, truth-seeking procedures of adjudication.

And some book reviews:

Islamic Finance: Law, Economics and Practice, by Mahmoud A. El-Gamal. Reviewed by Rodney Wilson, in the Journal of Islamic Studies.

Crime and Punishment in Islamic Law, by Rudolph Peters, Cambridge: Cambridge University Press, 2006, 220 pp (ISBN 0–521–79670–9). Reviewed by Lubna Alam, in the Michigan Law Review, and by Mona Siddiqui, in the Journal of Islamic Studies.

The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt, by Tamir Moustafa, Cambridge and New York: Cambridge University Press, 2007. Reviewed by Antony T. Sullivan, on Law & Politics Book Review.

Update (2): Chicago Journal of International Law Specials

A bit of an omission in earlier versions of this round-up: the Chicago Journal of International Law devoted two special issues to the topic of Law and the Islamic World in 2007. Papers cannot be downloaded for free, but the content tables are available online. The issues are on Islam and International Law (Summer 2007) and on Islamic Business and Commercial Law (Winter 2007). Well worth a look.

Update (1): Links Collection

Professor Ruud Peters (University of Amsterdam) was kind enough to send in this collection of useful links:

Islamic Legal Studies Programme at Harvard University

Islamic and Middle Eastern Law Materials on the Net (SOAS London)

Islamic Family Law Initiative at Emory University

Islamic Lawbase Collection (International Islamic University of Malaysia)

Middle East & Islamic Studies Collection at Cornell University Library

Women Living Under Muslim Laws Website

No comments:

Post a Comment