In many parts of Africa three different systems of laws are concurrently applied – the imported "Colonial" law, the indigenous customary law and Islamic law. In some countries the customary and the Islamic law are kept separate and distinct, while in others they are fused into a single system. This volume represents a unique survey of the extent to which Islamic law is in fact applied in those parts of East and West Africa which were at one (...) time under British administration. It examines the relevant legislation and case law, much of which has never appeared in any Law Reports; the judges and courts which apply it and the problems to which its application give rise. (shrink)

This volume represents a unique survey of the extent to which Islamic law is in fact applied in those parts of East and West Africa which were at one time under British administration. It examines the relevant legislation and case law, much of which has never appeared in any Law Reports; the judges and courts which apply it and the problems to which its application give rise.

Polygyny, the marriage of a man with more than one woman at the same time is a well-known practiced in human history. Islamic law accepts the institution of polygyny as a substitute provision if it fulfills the certain conditions and reasons, -and limited the maximum number of wives to four. Although polygyny is mubah (permissible) in Islamic law, it is not an absolute right that every man can use arbitrarily. Thus in Islamic law, the legitimacy of polygyny (...) has been attributed to the presence of two basic conditions: the observance of justice among co-wives and providing maintnance. However, the observance of these conditions that is left to the mercy of men leads to the exploitation of the right for practicing to polygyny and victimization of the first spouse. Therefore, inserting some restrictions for using this right has come to the agenda from time to time in Islamic legal history. The first legal arrangements concerning the restriction of the polygyny (taaddud al-zawjāt) in the history of Islamic law were indirectly made with the Family Law Decree of 1917 which was prepared in the last periods of the Ottoman Empire. Among the late Islamic jurists, the issue of the limitation of polygyny by public authority in Islamic law continues to be discussed. The civil laws of contemporary Muslim countries contain different regulations on the issue. In this article, the restriction of polygyny by the public authority in Islamic family law will be focused on.Summary: Polygyny, the marriage of a man with more than one woman at the same time is a well-known practiced in human history. Islamic law accepts the institution of polygyny as a substitute provision if it fulfills the certain conditions and reasons, and limited the maximum number of wives to four. Thus, relevant verses in the Qur’an (al-Nisa 4/3, 129) and the Prophet’s own practice (al-Ahzab 33/50, 51, 59 al-Tahrim 66 / 3-5) show that it is legitimate for a man to marry more than one woman (up to four) at the same time in Islamic law. Although polygyny is legally permissible (mubah) in Islamic law it is not an absolute right that every man can arbitrarily use. Thus in Islamic law, the legitimacy of polygyny has been attributed to the presence of two basic conditions: the observance of justice among co-wives and providing maintenance. On the other hand, there may be some exceptional circumstances permitting polygyny in Islamic law. For example, when female population is much more than male in the society and when a, woman is can not fulfill her family duties due to her cureless illness, polygyny is permitted in Islamic law.As it can be understood from the explanations above, polygyny in Islamic law is not a general and mandatory provision that should be applied by every man who has legal capacity to marry. On the contrary, it is an exceptional provision that is justified if there are certain conditions and justifications. According to this; polygyny is a moral and legal institution that is made up of mutual consent based on individual and social conditions and needs in Islamic law. Therefore, men do not have to marry a second woman on their current wives, as well as women have the right to say “no” to marry a married man as a second wife.When the conditions and rationales indicated in the relevant verses and doctrine are evaluated together, it can be said that in order to be able to legitimize the polygyny in Islamic law, there must be three basic conditions:(1) Observing justice among spouses, (2) Having sufficient financial power to provide maintenance for spouses, (3) Existence of individual or social need or necessity.Therefore, in order to prevent the exploitation of polygyny, which is justified under certain conditions and justifications in Islamic law, the above-mentioned conditions must be fulfilled. Otherwise, polygyny can cause some problems, unrest and injustice for individual, family and society. Hence, in the presence of certain conditions and justifications, polygyny accepted in Islamic law as a moral and legal institution aiming the elimination of individual and social arbitration.Although the legitimacy of polygyny in Islamic law depends on the existence of certain conditions and special circumstances, it is a known fact that they are not always observed in practice. It can be said that the right of polygyny is a subject of abuse in practice. Therefore, the limitation of polygyny by the public authority has come to the fore in Islamic legal history. Today, control of the public authority and inserting some restrictions of polygyny continue to be discussed among the Islamic jurists. In the past, it is possible to say that the control of the exercising of this right has been done relatively by society (social environment). However, nowadays, since the society cannot perform the control mechanism, it is brought up by the state (public authority) on behalf of the society.Among the contemporary Islamic jurists regarding the supervision or limitation of polygyny by the public authority; there are two approaches: “those who accept” and “those who do not accept” such restrictions.Islamic jurists, who accept that public authority is allowed to intervene in polygyny, grounded their views on two perspectives: The first is that the polygyny is legally permissible and the public authority has the authority to limit the permissible (mubah) in Islamic law. The second is that polygyny is restricted with the conditions in the Qur’anic verses such as “husband’s observation supervision of justice among his wives” and “having the power for ensuring the livelihood (nafaqa) of his wives” and it is more appropriate for the benefit of society and the purpose of the legislator (Shari’) to be subject to the control of the public authority whether these conditions are present or not. Islamic jurists, who do not agree that the public authority has the right to intervene in polygyny grounded their views on two perspectives as well: First, polygyny is a legitimate right mentioned in the verses in Islamic law and there is no definite proof that this can be prohibited or restricted by the public authority. Secondly, it is contrary to the verses to prohibit or limit the right that the Qur’an makes legitimate (free).Thus, it is possible to say that the opinion which accepts that the public authority has to limit polygyny is more accurate in terms today’s social conditions. Namely, polygyny is linked to two basic conditions: ”husband’s observance of justice among his wives and having the power to provide maintenance for his wives. Therefore, supervision of the public authority on checking the existence of these conditions is more appropriate for the purpose of the legislator (Shari legitimizing polygyny and social benefit.In fact, the Ottoman Family Law Decree of 1917 indirectly limited the right of the husband to marry more than one woman, giving the woman right to stipulate a condition in her marriage contract that her husband not to marry a second woman. In the 1924 Draft of Family Law Decree, which was prepared after the repeal of the Family Law Decree of 1917, but not enacted, it was proposed that the application of polygyny should be presented to the approval judge.In today’-s Muslim countries, there are three different practices: namely “completely prohibiting polygyny”, ”releasing polygyny” and “giving the court the right to monitor the existence of necessary conditions “. In countries such as Morocco, Algeria, Iraq, Syria, Indonesia, Malaysia (and Pakistan), the validity of polygyny depends on the permission and supervision of the judiciary. Some of these countries which have accepted judicial review have given the judicial control for the requirement of justice, some of them the conditions of justice and maintenance some of them for the conditions of justice, maintenance and a legitimate justification.In sum, in accordance with the provisions of the relevant verses, polygyny in Islamic law is legitimately permissible (mubah). However, the public authority has the right and authority to limit the mubah in Islamic law in the case of the elimination of damage and the necessity of the public interest. On the other hand, the public authority has the right and authority to enact the law in Islamic law by preferring one of the existing ijtihads that meet the needs of the society and conforms to the conditions of the age.According to this, when the public authority made a statutory regulation that links the use of right of polygyny to the permission of the judge, this regulation is binding on society.Therefore, in the event of such a legal arrangement, it is possible for the public authority to allow the men who comply with the conditions and not to allow the ones who are not to comply with the conditions after conducting the necessary investigation. As a matter of fact, now Family Laws of many Muslim countries now include such legal arrangements. It is also worth mentioning here that there may be a necessity for a man to marry more than one woman (up to four) at the same time in terms of social benefits, when the population of male and female in a society is excessively disproportionate. In such circumstances, it is also possible that the public authority encourages, or even mandates, the marriage of men who have fulfilled the conditions to more than one woman. (shrink)

There are barriers of perception between Sudanese Muslims for whom the sharia is a source of authority and identity and others who see it as an oppressive means of dominating Sudan's minority populations. I make a distinction between process and substance in law, and show that a flawed process has contributed to a perception of international law as an instrument of powerful states, which has obscured its legislative and procedural usefulness to the Sudan as a member of the United Nations. (...) Similarly a distortion of due process in Sudan's sharia has created a substance derived from the legacy of medieval Arabia rather than applied legal methodology. One consequence of this is that Sudan's Civil Wars have been given the attributes of offensive jihad against its diverse non-Muslim populations. I argue that offensive jihad was a legal construction designed to meet the challenges of medieval Arab society, with little basis in the fundamental sources of Islamic law or in contemporary legal methodology. I advocate a return to due process as a partial solution to the impasse between Muslim and non-Muslim identities in the Sudan, and show how international law can be improved by accommodating other legal traditions. (shrink)

In industrial societies where civil law and state institutions have become well established secular vehicles for governing the populace, it is widely assumed that the state no longer has an interest in fortifying the religious sector as a complementary source of social control. Thus, a distinction is drawn between the Islamic state that is ruled by religious law and the secular state of Western industrial societies in which religion is deemed to have lost its influence in the public sphere. (...) This dissertation argues that civil law is not religiously neutral and thus challenges a central premise of secularization theory. Introducing a new theoretical model that classifies civil law on the basis of its purpose-to protect religious liberty, engage or fortify the religious sector, or to advance universal norms-the author examines the impact of the three different types of legislation upon religious freedom and the individual autonomy of religious minorities in Sweden, an aggressively secularized industrial society. The author concludes that, viewed from the standpoint of a religious nonconformist, there is no discernible difference between living in a society that is overtly ruled by religious law (e.g., an Islamic state) and living in a "secular” society that is ruled by civil law either embedded with religious norms or designed to facilitate state appropriation of the religious sector as a complementary means of social control. In either environment, the author argues, the religious nonconformist will be forced to conform to the religious norms of the predominant religious group. (shrink)

Abortion is forbidden under normal circumstances by nearly all the major world religions. Traditionally, abortion was not deemed permissible by Muslim scholars. Shiite scholars considered it forbidden after implantation of the fertilised ovum. However, Sunni scholars have held various opinions on the matter, but all agreed that after 4 months gestation abortion was not permitted. In addition, classical Islamic scholarship had only considered threats to maternal health as a reason for therapeutic abortion. Recently, scholars have begun to consider the (...) effect of severe fetal deformities on the mother, the families and society. This has led some scholars to reconsider the prohibition on abortion in limited circumstances. This article reviews the Islamic basis for the prohibition of abortion and the reasons for its justification. Contemporary rulings from leading Shiite scholars and from the Sunni school of thought are presented and reviewed. The status of abortion in Muslim countries is reviewed, with special emphasis on the therapeutic abortion law passed by the Iranian Parliament in 2003. This law approved therapeutic abortion before 16 weeks of gestation under limited circumstances, including medical conditions related to fetal and maternal health. Recent measures in Iran provide an opportunity for the Muslim scholars in other countries to review their traditional stance on abortion. (shrink)

Stem cell research is a newly emerging technology that promises a wide variety of benefits for humanity. It has, however, also caused much ethical, legal, and theological debate. While some forms of its application were prohibited in the beginning, they have now started to be used in many countries. This fact obliges us to discuss the regulation of stem cell research at national and international level. It is obvious that in order to make regulations and to draw up legislation (...) at national or international levels it helps to know the perspectives of different cultures and faith traditions. In this article the issue is explored from an Islamic perspective. Firstly, some basic information is given about Islam to explain how laws are drawn up and regulations made in this tradition. Secondly, the principles on which the laws and regulations are based are applied to stem cell research, and finally the permitted and prohibited methods of stem cell research are described. The discussions throughout the paper demonstrate that while some ethicists argue that stem cell research is unethical in the Islamic tradition, tradition permits it as long as such research is aimed at improving human health. (shrink)

In society, people need some properties themselves (the same) or for their own benefits. According to Islamic law, while people acquire the same properties they need through a bay' (sale) contract, they gain access to the benefits of the properties as a means of contracts such as idjâra (rent) or âriyya (lending). Muslims must conclude all kinds of contracts in accordance with the principles and conditions determined within the framework of the Quran and Sunnah. Otherwise, the contracts will be (...) invalid or void. In terms of Islamic law, in a sales contract, the location which subjects to the contract must be existing, and possible to deliver. Since the sale of something that does not exist is prohibited, such a sales contract is void. However, some types of contracts, including the idjâra contract, are exempt from this rule based on some special evidence. Because the idjâra contract, which has been implemented since the time of legislation, is a mandatory need in human life, and also occupies an important place. For this reason, according to some jurists, the idjâra contract was not considered within the scope of the sale of the non-existent through istihsân, contrary to the general rule, and was accepted as legitimate on the grounds of istihsân. The fact that the İdjâra contract is established in a way that is contrary to analogy does not make it possible to compare other contracts with this contract. Since the contract of idjâra is one of the most frequently referred contracts after the contract of sale, it has been discussed in all its aspects by Islamic jurists and examined under separate headings. In this context, the impact of natural disasters on the idjâra contract has not been disregarded. In principle, a rent contract duly established with its provisions and conditions, as well as a sales contract, is binding on both parties. However, in unforeseen circumstances, especially during unexpected disasters, legal problems such as continuation of the rent contract, benefiting from the benefit of the rented property and refund of the paid fee arise. In our study, first of all, after briefly presenting what natural disasters mean in Islamic law literature, the nature of the idjâra contract will be focused on, and then only the consequences of natural disasters on the rent contract will be detailed. As a result, in such disasters cause partial or total loss to the rented property, the possibility of continuation of the contract and the responsibilities of the parties will be revealed. (shrink)

The present paper addresses the mutual relationship between society and law in shaping women’s law in Islam from the perspective of the sociology of law. It analyzes the role of pre-Islamic social, political, and economic structures in the Arabian Peninsula in modeling women’s law and highlights some customary laws which were rejected or revived and integrated in Islamic jurisprudence. In this regard, the paper reviews issues such as polygyny, rights to inheritance, marriage, the process of testimony and acceptable (...) forms of evidence in legal matters, diyya, the exclusion of women from the judiciary and the system of issuing fatwa, natural right of guardianship of underage children after divorce, and regulations related to the veil. Finally, referring to the manner of the Prophet of Islam, the paper suggests that ʿurf can be considered as a source of Islamic legislation alongside other commonly known sources of fiqh. (shrink)

The concept of Hisba in Muslim law has been used by members of certain Islamic groups to impose, through the courts, limitations on freedom of expression. In so doing they sought to circumvent the right of parliament to legislate on matters of personal freedom. This device is now restricted by the Egyptian authorities.

This book provides a critique of current international law-making and draws on a set of principles from Persian philosophers to present an alternative to influence the development of international law-making procedure. The work conceptualizes a substantive notion of democracy in order to regulate international law-making mechanisms under a set of principles developed between the twelfth and seventeenth centuries in Persia. What the author here names 'democratic egalitarian multilateralism' is founded on: the idea of 'egalitarian law' by Suhrawardi, the account of (...) 'substantial motion' by Mulla Sadra, and the ideal of 'intercultural dialectical democracy' developed by Rūmī. Following a discussion of the conceptual flaws of the chartered and customary sources of international law, it is argued that 'democratic egalitarian multilateralism' could be a source for a set of principles to regulate the procedures through which international treaties are made as well as a criterion for customary international law-ascertainment. (shrink)

In most countries where Islam is acknowledged as a, or the, source of legislation, abortion is permitted under certain conditions and at certain stages of pregnancy. This article examines some of these laws and argue that they represent a continuation of the logic that governed the views of pre-modern Muslim jurists on abortion, that is, harm aversion. However, these laws also add a ‘modernist’ twist to that logic – rather than repealing that logic altogether, modernist views on ‘rights’ and (...) the advancement of medical knowledge and technology have influenced the priorities of Muslim jurists and lawmakers as far as abortion and the issues associated with it are concerned. This influence has furthermore been possible by a conscious selection and blending of pre-modern views to serve modern concerns. In all this, however, harm aversion remains the centrifugal principle, even when the abortion discourse in Muslim countries appears couched in the modernist discourse of rights. (shrink)

It is the difference in the ways of seeing "obvious things" that creates cultural diversity. With this in mind, the fundamental ideas behind the notion of justice in classical Islamic thought are examined, such as the nature of truth and the relation of "things" to time and space, and the meaning of the "law" that follows from these ideas. Certain features of Islamic justice (e.g., latitude in making judicial and legislative decisions) are treated as natural and even logical (...) consequences of these fundamental ideas. (shrink)

The great disputants within the Islamic tradition, the Mutakallimūn, laid down the basis for rational discussion of causality by affirming the right of reason to engage in independent research. This affirmation could not be absolute; it took the form of a division of the spheres of competence belonging, respectively, to reason and Law. Reason was declared to be the judge in ontological and epistemological questions, whereas the sphere of ethics and legislation were left subject to religious Law. Certainly, (...) this division should not be understood too rigidly. The Mutakallimūn often remained loyal to the Law and did not permit reason to execute its rights to the full even when disputing ontological problems. On the other hand, in the sphere of legislation they asserted the rights of reason to define new norms, not established in Revelation, on the basis of rational analysis of revealed Law, thus defying the Zāhiriyya, “people of the manifest,” who denied the legitimacy of rational procedures for determining new norms of law. (shrink)

This book explores the emergence of the fundamental political concepts of medieval Jewish thought, arguing that alongside the well known theocratic elements of the Bible there exists a vital tradition that conceives of politics as a necessary and legitimate domain of worldly activity that preceded religious law in the ordering of society. Since the Enlightenment, the separation of religion and state has been a central theme in Western political history and thought, a separation that upholds the freedom of conscience of (...) the individual. In medieval political thought, however, the doctrine of the separation of religion and state played a much different role. On the one hand, it served to maintain the integrity of religious law versus the monarch, whether canon law, Islamic law, or Jewish law. On the other hand, it upheld the autonomy of the monarch and the autonomy of human political agency against theocratic claims of divine sovereignty and clerical authority. Postulating the realm of secular politics leads the author to construct a theory of the precedence of politics over religious law in the organization of social life. He argues that the attempts of medieval philosophers to understand religion and the polity provide new perspectives on the viability of an accommodation between revelation and legislation, the holy and the profane, the divine and the temporal. The book shows that in spite of the long exile of the Jewish people, there is, unquestionably, a tradition of Jewish political discourse based on the canonical sources of Jewish law. In addition to providing a fresh analysis of Maimonides, it analyzes works of Nahmanides, Solomon ibn Adret, and Nissim Gerondi that are largely unknown to the English-speaking reader. Finally, it suggests that the historical corpus of Jewish political writing remains vital today, with much to contribute to the ongoing debates over church-state relations and theocratic societies. (shrink)

Reproductive health technology allows married couples who experience infertility to have a child through assisted reproductive technology (ART), such as the in vitro fertilisation (IVF) process. The transfer of the extracted embryo to the woman’s womb is called surrogacy technology (gestational surrogacy). The legality of the practice of surrogacy is still questionable, both on a national and international level. This research discussed the legality of surrogacy in some religious countries, focusing on Indonesia. This research used normative juridical research methods or (...) literature review through a comparative religion-legal approach. This study indicated that most do not have a specific legal instrument regarding surrogacy practice. International law also does not have a standard legal instrument regarding the legality of surrogacy. Legality is determined by each religious country’s national laws and customs. For example, Indonesian law prohibits this practice implicitly under Law No. 36 of 2009 concerning health. The United Kingdom legalised surrogacy through the Surrogacy Agreement Act 1985, which was amended to the Human Fertilization and Embryology Act 2008, Greece through the Greek Legislation Law 3089/2002 and Law 3305/2005, and India through the 2019 Surrogacy Regulation Bill. Those countries have their limitations and characteristics that rule surrogacy. Surrogacy is indeed a technological advancement in the health sector. However, for countries that are influenced much by religion, technological advances sometimes conflict with the culture and the belief that has long been followed by most of the population. For Indonesia, the largest of Sunni Islam ruled surrogacy against the law. Next, Iran, as a Shia Islam country, ruled that surrogacy is a legal action.Contribution: The research provided information and knowledge regarding the different settings of surrogacy practice. Most religious countries bravely rejected or put strict limits on the practice of surrogacy. (shrink)

Medical, legal, and Islamic views on abortion, fertilization in vitro, euthanasia, kidney transplant, and sex change operation; results of discussions.

The originality of this volume lies in the interdisciplinary synergies that emerge through the issues it explores and the approaches it adopts. It offers legal and ethical reflections on the criminal qualification of a series of conducts ranging from human experimentation and non-consensual medical interventions to organ transplant trafficking and marketing of human body parts. It also considers procedural matters, notably related to psychiatric and medical evidence. In so doing, it combines legal and other types of conceptualizations to examine such (...) contemporary issues as rights of the LGBTIQ population, access to medical care, corporate criminal liability, rights of children and Islamic jurisprudence. (shrink)

The Court of Justice of the European Union (CJEU) has had the opportunity to address the sensitive matter of the wearing of the Islamic headscarf in the workplace in two preliminary rulings. The result of these decisions implies that the wearing of this veil at work is, in general, neither proscribed nor always justified as a legitimate expression of religious beliefs. However, the law studied and applied deals exclusively with discrimination in the workplace on religious grounds. Nonetheless, the (...) class='Hi'>Islamic headscarf is only worn by (some) Muslim women (never by men). This article reviews the EU legislation and policy on equality, intersectionality and multiple discrimination to verify that gender mainstreaming does not reach the work of the Court. Only the inclusion of a feminist perspective to the application of justice, with a clear methodology, can guarantee that gender does not disappear in cases of complex discrimination. (shrink)

The primary aim of this article is to illustrate the dichotomy of Jordan as a progressive country, perhaps best exemplified through the engagement of the royal family in human rights matters, versus the traditional approach, sanctioning the discriminatory laws concerning women. This paper further attempts to demonstrate that Jordan is balancing between the conservative tribal interests, by pertaining to the Arab and Islamic tradition on the one hand, and the need for democratisation and further human rights development on the (...) other. It is important to note, that discriminatory laws concerning women are not the only examples illustrating this peculiar mechanism, however, they constitute the most vivid one. The author further submits that many authors, as well as international bodies such as CEDAW and the Human Rights Committee, fail to understand the dynamics and complexity of the human rights situation in Jordan. Hence, these authors and authorities’ recommendations are often misguided, as they focus mostly on amending the discriminatory legislation. This article briefly discusses cultural relativism aspects and suggests that actual progress can be achieved by developing a unique language of human rights related to the Arab culture, for instance through the newly established Jordanian Constitutional Court. (shrink)

This comprehensive historical exploration investigates the intricate relationship between religion and the evolution of civil laws. Throughout human history, the interplay between religious beliefs and legal systems has profoundly shaped societies and governance structures. From ancient civilizations to the modern era, religious authorities and teachings have acted as catalysts in shaping civil laws, often with the goal of promoting social justice. This article embarks on a journey through time, unraveling the multifaceted connections between religion and the development of legal frameworks. (...) In numerous societies, religious doctrines formed the cornerstone of civil laws and regulations. The majority of civilizations witnessed priests assuming pivotal roles as lawmakers, effectively coupling civil laws and religious practices. By examining various historical civilizations, this study illustrates how religious norms and practices were intertwined with legal codes, revealing instances where religious teachings played a crucial role in promoting adherence to laws. The transition to modern times witnessed the emergence of alternative means for law enforcement, yet religion’s role persisted as an internal driving force for fostering law-abiding behavior. Drawing from examples such as the Code of Hammurabi, Islamic legal traditions, and the Roman Twelve Tables, this article showcases historical instances where religious values contributed to legal principles centered around equity, justice, and morality. Additionally, the study explores how religion’s influence shifted over time, from early religious leaders acting as legislators to the establishment of more secular legal systems. (shrink)

The right of freedom of religion is one of the fundamental rights guaranteed in the Malaysian Constitution. The provision over the right to freedom of religion is seen as one of the most crucial provisions ever stated in the Federal Constitution. Article 11 has never been amended. Indeed, provision in Article 3 reiterates the right of individuals, especially the non-Muslims to profess and practise their religion freely, without any fear and interference. The special status of the religion of Islam enshrined (...) in Article 3 does not mean that non-Muslims have no right in matter of freedom of religion. However, the Federal Constitution seems to restrict the right to freedom of religion, in the sense that freedom of religion in Malaysia is not absolute. There have been several restrictions imposed not only within the constitutional framework but also other general legislations. Among provisions that furnished such restrictions can be seen in Articles 11, 11 and 10 of the Federal Constitution. Moreover, the Parliament had also passed several legislations allowing such restrictions. This can be seen, among others, the Internal Security Act of 1960, the Societies Act of 1966, the Police Act of 1967, the Printing Presses and Publications Act of 1984, the Town and Country Planning Act of 1976 and the Penal Code. As such, Muslims and non-Muslims alike must adhere to certain religious constraints for the sake of public order, public health and morality.While freedom of religion is guaranteed for individuals in the Malaysian Constitution, some states in Malaysia have penalised Muslims who renounced the Islamic faith. Although there is no death penalty for apostasy in Malaysia, apostates are subject to punishments like fine, imprisonment and to a certain extent whipping. In certain states, apostates are detained at the rehabilitation centre for up to 36 months. These have brought concern to human rights activists because such punishments and detention may seem contrary to the right to freedom of religion enshrined under Article 11 of the Federal Constitution and Article 5 that guarantees individual liberty. This article attempts to investigate whether restrictions over the right of freedom of religion particularly when Muslims renounce the Islamic faith is constitutionally valid. It also intends to highlight the conflict in the laws surrounding the punishment for apostasy in various states in Malaysia. (shrink)

ABSTRACTA primary theme in Leo Strauss’s early work is how medieval Jewish and Islamic political philosophy, while influenced by Plato, differs from him in crucial ways. This theme is central to Strauss’s 1935 book Philosophy and Law. Philosophy and Law concerns the medieval ‘philosophic foundation of the law,’ which provides a rational justification of revelation. For Strauss, the foundation provides this justification by virtue of some difference it has from Plato. In this paper, I offer a new interpretation of (...) Strauss’s view of this difference. I suggest that, for Strauss, whereas Plato conceived of the legislator and his legislation, the foundation conceives of the sovereign and his sovereign laws. On this basis, I also suggest a solution to a perennial mystery of Philosophy and Law: Strauss claims that the medieval foundation reveals ‘ultra-modern thoughts,’ yet does not explicitly state the identity of these thoughts. I suggest that their author is Carl Schmitt. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Ideas 63.4 (2002) 619-637 [Access article in PDF] Maimonides and the Rise and Fall of the Sabians:Explaining Mosaic Laws and the Limits of Scholarship Jonathan Elukin The Koran mentions the Sabi'un three times (II 6-2, V 69, XXII 17). "Believers, Jews, Christians, and Sabi'un—whoever believes in Allah and the Last Day and does what is right—shall be rewarded by their Lord; they have nothing (...) to fear or to regret." This language is repeated in the second citation. The third appearance is slightly different: "As for true believers, the Jews, the Sabi'un, the Christians, the Magians, and the pagans, Allah will judge them on the Day of Resurrection. He bears witness to all things." 1 Early Islamic commentators often disagreed on the identity of the Sabi'un, and the confusion continued throughout the medieval Islamic period. 2 The term Sabi'un was applied by some early Koranic commentators to the survivors of an ancient Jewish-Christian sect, the Elchasites in southern Iraq. 3 One minority group of ethnic Arab "pagans" with a hellenized elite in Harran, in Arabia, also took the Koranic name Sabian in the third/ninth century to claim the status of a "people of the book" and therefore avoid persecution. It is this group that some later Muslims identified as Sabi'. 4 The scholarly consensus now suggests that [End Page 619] the term Sabian refers to some kind of Gnostic identity that can encompass "the disciples of Judeo-Christian baptizing sects... and, on the other, Harranian astrolators, the last representatives of decadent Greco-Roman paganism." 5The mysterious Sabians would play a key role in attempts by early modern European scholars to understand the origins of the Mosaic legislation. It was through Maimonides, the great twelfth-century Jewish scholar, that the Sabians were transmitted to Christian scholars. By the seventeenth century, the Sabians of Maimonides's Guide for the Perplexed had become a fixture in how scholars understood or at least debated the history of the origins of Mosaic law. Increasingly perceived as a diffuse paganism rather than a specific ethnic identity or subsumed by the more tangible reality of Egypt, Sabianism drifted to the margins of scholarship by the end of the Enlightenment. During the nineteenth century the Sabians became superfluous to scholarly efforts to understand the origins of Israelite monotheism. This study is an attempt to understand the growth of the enthusiasm for the Sabians by early modern scholars and then its precipitous decline. In a large degree it was the nature of the evidence itself regarding the Sabians that shaped and ultimately undermined the survival of the Sabians in European thinking. Still, both Christian and Jewish scholars well into the twentieth century lived with the ghosts of the Sabians as they sought to explain otherwise mysterious Mosaic commandments.In the Guide Maimonides argued that the sacrificial system legislated by Moses was an example of God's mercy. It would have been impossible for the Israelites to abandon suddenly the style of idolatrous worship learned in Egypt, and so Moses crafted the sacrificial system gradually to replace false gods with the true God. Maimonides still needed to explain the particular details and reasons for the sacrifices and the other ritual laws. 6 To that end he claimed to have read various texts, particularly the so-called Nabataen Agriculture, which purported to describe Abraham's education among and flight from the Sabians as well as a summary of the practices of the Sabians. 7 (The Sabians had made one brief appearance before Maimonides's discussion in the Guide; the tenth-century Karaite Jew, Qirqisani, declared in his Kitab al anwar, "the modern Christian philosophers assert that the laws of the Torah were given to the Children of Israel only because of God's wrath; and that they [Israel] have chosen these laws for themselves only on account of their resemblance to the laws of the Sabians, which was due to the fact that they became... (shrink)

Human reproductive technology; law and legislation; religious aspects; Islam.

The intra-school controversies in Hanafī school are remarkable. These controversies pose a risk for legal safety and stability and creates difficulties for muqallīd Hanafī judges and muftīs. In the historical process, different types of literature such as mukhtaṣar and fatwa (legal opinion) books, and applications such as aṣṣaḥ-ı aqvāl and maʻrūdhāt, emerged to solve this problem. One of the last example of these applications is the codification movement. The subject of this study is the relationship between the Majalla al-Aḥkām al-ʿAdliyyah, (...) which is the first product of codification based on fiqh (Islamic jurisprudence), and the intra-school preference. In order to describe this relationship, it is briefly emphasized that one of the aims of codification of Majalla is to satisfy the need for intra-school preference. The function and content of Majallaʼs necessary reasons, (asbāb al-mūjiba) was analyzed in terms of intra-school preference. The interventions on the preferences of the Majalla Commission are also emphasized. The Majalla is a text of the intra-school preference. The analysis of its content in relation to intra-school preference is very important. Therefore, in order to reveal what kind of method is used in intra-school preferences and to determine different aspects of intra-school preference in the Majalla, the chapter about ‘sale’ (Kitāb al-Buyūʿ) of the Majalla are examined.Summary: The intra-school controversies in Hanafī School, which is quite important in terms of freedom of ijtihād (independent legal judgment) and legal wealth, possible to threaten legal safety and stability. These controversies also make difficult for judges to reach a judgment or fatwa in controversial affairs. For this reason, determination of the rājiḥ (preferred opinion) in controversial issues in the school, is a need that must be eliminated.The intra-school preference can be described as "to determine the superior, preponderant of different opinion or narrations about a specific issue in the school". In the historical process different types of literature such as mukhtaṣar and fatwa books, and different applications such as asaḥḥ-ı aqvāl and maʻrūzāt, emerged to meet this need. One of the applications aimed to meet this need is the codifications in the last period of the Ottoman State.The relationship between the Majalla al-Ahkam al-Adliyyah, which is the first example of codification based on fiqh (Islamic jurisprudence), and the intra-school preference; and in this context, while preparing the Majalla how a method was followed in the intra-school preference; at what rate be obeyed the rājiḥ (preferred) opinion; articles contrary to the rājiḥ (preferred) opinion in Majalla and their reasons; whether legal arrangements have been made in all controversial issues; at what rate be met the need of determination of rājiḥ (preferred) opinion are the issues that need to be examined.One of the main reasons for the need for a law text such as Majalla al-Ahkam al-Adliyyah is the multitude of the intra-school controversies in Hanafī School. Therefore, the goal of Majalla is to prepare a code that contains rājiḥ opinion.When Majallaʼs necessary reasons, i.e. asbāb al-mūjiba, are examined in terms of the intra-school preference, it is seen that there are two basic functions of necessary reasons. The first of them is, emphasizing that the code is prepared substantially in accordance with the râjih opinion in the school. In fact, that this issue in the asbāb al-mūjiba of the first ten books of Majalla is expressly stated. The other function of the asbāb al-mūjiba is to justify that why rājiḥ opinion are not be confirmed in some article. In the necessary reasons it is stated that twelve articles are prepared in the direction of unrâcih (unpreferable) opinion. Considering that Majalla is formed of 1851 article, it will be better understood that how the rājiḥ opinions are effective in Majalla's content. Essentially, the conditions of the period also make it necessary. The preference of the non-preferred opinion of Züfer (d. 158/775) in 692nd article of Kitāb al-Ḥavala, caused the reaction of some circles mainly Şeyhülislam Hasan Fehmi Efendi (d.1298/1881) and for this reason Ahmet Cevdet Pasa (d.1895) was dismissed from the ministry of Divan al-Ahkâm al-Adliyyah and the chairman of the Majalla Commission.When the asbāb al-mūjibas of contrary articles to rājiḥ opinions are examined, it is seen that maṣlaḥa and customs are determinative in these preferences. It is also seen that the preferences of some jurists are also mentioned as a reason of preference. The most widespread preference’s reason in Hanafī sources is in congruity with the texts. On the contrary, it is noteworthy that, besides the interdiction of extravagant (safih), it is not operated as a preference’s reason in Majalla.Some preferences of the Majalla Commission were intervened by other institutions. The chapters prepared by the commission were examined both by Majlis-i Wukalā and Mashihat, and these chapters were subject to some revisions at this time. Here, two articles prepared on the basis of the non-preferred opinion were intervened by Majlis-i Wukalā. The first of these is 216th article that written in the direction of opinion of Mashāyikh Balkh, which argues that it is permissible to sell separately ḥaqq al-murūr (the right of passage) and ḥaqq al-shirb (water right), the second is the 611th article which regulates the liability to damage of ajīr al-mushtarak (joint salaried employee).When the content of Kitāb al-Buyū, the first and the most voluminous book of Majalla, is examined in terms of the intra-school preference, it is seen that the rājiḥ opinions in the school are generally taken as basis. It is stated that in the asbāb al-mūjiba of the Kitāb al-Buyūʿ the four issues are prepared basing on the non-preferred opinion and these preferences are justified with custom and maṣlaḥa. However, the contrary articles to the rājiḥ opinion in the Kitāb al-Buyūʿ are not limited to these. According to our research, in addition to these, three articles were prepared with the preference of non-preferred opinion. These are the 118th article regarding that the bayʻ bi-l-wafā is permissible in chattels, 165th article on the definition of al-ghabn al-faḥiş (lesion), and the 309th article concerning the provision of the khiyār al-sharṭ (right of cancellation). These three articles show that the regulations contrary to the rājiḥ opinion in Majalla are not just those explained in the asbāb al-mūjiba and this situation is contrary to the method that is followed when preparing the Majalla.In some controversial issues in the Hanafi School, authorized jurists to preference (asḥāb al-tarjīh) disagreed over which opinion is rājiḥ. It wasn’t explained that how a method would be followed in Majalla when the legal arrangements were made in these matters. When these issues are examined, it can be said that the preferences of the majority, the providing of convenience and the preference by some jurists are effective.Preferences in Majalla have not been occurred only among the sharʻī (related to Islamic Law) provisions. In addition, the definitions and the inscription in the definitions are also the subject of preference. In this context, the preferences related to the definition of the sales contract, the suspended contract (al-ʻaqd al-maqqūf) and the al-ghabn al-faḥiş in Kitāb al-Buyūʿ can be mentioned as an example.Some controversial issues in the Hanafi School are not regulated in Majalla. When considering the multiplicity of controversial issues and therefore the difficulty of making legal arrangements to cover all of them, this situation is natural. Moreover, some of these issues may not have been regulated in Majalla because they are not frequent and necessary. However, it is not possible to explain all the controversial issues that have not been regulated for these reasons. Because some of the controversial issues that have not been legislated are basic, relatively important issues and they are included in the mukhtaṣars. This indicates that when preparing the Majalla, instead of making preference on some controversial issues, the method of non-regulation of these matters is adopted. It can be said that this method is applied as a way of creating law text which is clear of controversy. Thus, the determining of the rājiḥ opinion in these matters has been left to the judges. This situation is not suitable to meet the need of determining the rājiḥ opinion, which is the goal of Majalla. But it is the result of the difficulty of making a law that encompasses all legal issues. (shrink)

One of the most important issues in Islamic law is that either partially or completely, or temporary or permanently, a rule can be changed for a particular group of people or everyone. Since the concept of necessity can lead to a change of an important rule like ḥarām/prohibition, this concept should be examined meticulously both in theory and in practice. The thşs study aims to analyze how and why necessities make some ḥarāms permissible and to reveal the ultimate cause (...) for this ibāḥa (permission) from the point of view of Islamic legal theory and philosophy. To achieve this aim, first, the nature of the relationship between the prohibition and the act is examined. To understand how and why necessity gives permission to some ḥarāms, it is necessary to determine the changing and unchanging elements in the case at issue. In the case of necessity, there is no change in the nature of the act and the evil, which is considered as the reason of banning. Indeed, there is a change in the conditions surrounding the act and in the state of the obligated person. However, the main factor that enables the change in ḥarām is the change in the addressing of Shāri‘, who takes into account the changes mentioned. It is seen that the changes stemming from necessity do not lead to the same results as in all permitted ḥarāms. This observation requires a thourgh examination and elaboration on what the scholars of legal theory mean by abolition of prohibition and turning it into permissible. As a result, it has been observed that permitted ḥarāms do not equally function in terms of turning into permissible and that they do not have an equal effect on other acts in the field of mubāḥ. In that case, it is possible to evaluate the permitted ḥarām acts as al-maʻfuw ʻanh/forgiven acts. Although the act could be considered part of the category of mubāḥ, it would be more correct to place them close to the line of makrūh. From the point of view of the servant, the reason why necessity makes a ḥarām act permissible is the priority of avoiding greater evil. However, to reveal His sincere servants, Allah's command to them to avoid all ḥarāms even if they die, does not contradict with His wisdom. For this reason, the ultimate cause why Allah considers the case of necessity in passing judgment is His endless mercy. All these points helped reaching some broader conclusions about legal theory, as well as some conclusions specific to the case of necessity. It turns out that to understand how necessity makes some ḥarāms permissible, one needs to comprehend the relation between the act, the obligated person, the conditions surrounding them and the Shari‘ correctly. Understanding this relationship well is also extremely important to understand the theory of ruling and the Islamic legal theory. This research has substantiated once again that the issues addressed by the Islamic legal theory and practice are linked to the theological doctrines, more than, it is commonly perceived or considered. It turns out that it is important to know the deep or subtle differences between the terms such as ḥarām-ḥalāl, maḥẓūr-ḥarām, mubāḥ-ḥalāl, fundamental mubāḥ-ma‘fuw ‘anh, etc. as well as grasping each of the rule categories. Comprehending all these concepts constitutes an important step in acquiring a true understanding of religion and the maqāṣid al-sharī‘a. In this research, it has been proven once again that each category of the rule includes different levels of ruling in itself. The reason why the acts are categorized in different levels even if they are in the same rule category is the concepts of worldly and otherworldly; evil or good arising from the the ḥarām act. This study also confirmed that the obligated person is at the center of the law. This fact reveals how difficult it is to argue that the rules of Allah are based on divine will that is independent of and disregards the act, obligated person, and conditions. On the contrary, it is understood that the interests of the servant are considered both in the rules of necessity and in the whole of the divine legislation (and even the genesis). On the other hand, this indicates a legal system that is not inflexible and dull, but rather dynamic and parallel to life. Both the fact that the real and absolute source of the rule is Shāri‘ Almighty,and that a very large area of legislative was left to the mujtahid should be considered together. This truth has been observed once again in the matter of making prohibitions permissible on the basis of necessity, and the task of determining which evil is greater was often left to the mujtahid’s consideration. (shrink)

In 1946, the French constitution made colonial subjects in Africa into citizens. Having been content to rule ‘tribes’ via their ‘chiefs’, at that point it had to track individuals entitled to vote and receive social benefits. The new citizens retained their personal status — regulating marriage, filiation, and inheritance — under Islamic law or local ‘customs’ rather than through the civil code. That posed a dilemma for French officials, for the état-civil did not just record life events, but symbolized (...) the integration of all into a single body of citizens. French officials and legislators — including African representatives — could not agree on whether the multiple status regimes necessitated two états-civils or one. In the end, officials were too torn between their recognition of difference among peoples under French rule and their desire for singularity to put in place a consistent policy of identification, registration, and surveillance. They bequeathed the problem to their successors. (shrink)

The Iranian government is a theocracy—the only one in the world today. The clergy control all three branches of government. The supreme leader or velayat-e-faqu’ih is also a cleric. In such a political system all legislation and policy making are conducted in accordance with the leaders’ interpretation of Islamic law or Shari’a. In this paper I will examine the extent to which these laws and policies allow the government to intrude into the private sphere of life and intervene (...) in the privacy of individual citizens. I will use specific examples to illustrate my point that since citizens have no control over their government and cannot impact the interpretation of Shari’a, their private sphere is always threatened by government action. (shrink)

In March 2004 the French parliament controversially adopted legislation regulating the wearing of symbols indicating religious affiliation in public educational establishments. This note discusses several features of the new law indicating its origins, its rationale and its position within French constitutional discourse on religious freedom and secularity. It is based on a panel discussion held in April 2004 within the Gender Studies Programme at the Robert Schuman Centre for Advanced Studies, European University Institute, Florence. Placing the French legislative initiative (...) in the context of recent developments in national and European case law (suggesting clear limitations to freedom of religion), the note explores the complexity of issues of gender, identity and difference in the present debate, especially when considered in the light of reactions to the law in Islamic countries. (shrink)

The Islamic government of Iran recently passed and announced a new law titled “Rejuvenation of the Population and Protection of the Family.” This legislation is a noteworthy example of biopolitics‐influenced biolaw. In terms of abortion, contraception, prenatal screening, and population control, this law clearly contrasts with women's fundamental rights and freedoms and has significant health‐related consequences for different sectors of the population. A historical review of the population policies of the Islamic Republic of Iran shows the occurrence (...) of multiple abrupt and radical changes in such policies over the past four decades. This new law, promoted by religious biopolitics, is the most recent example, and places stringent limits on abortion. According to it, all decisions concerning abortion must be made in courts rather than in health clinics. Such courts are typically presided over by male religious scholars. This law also limits prenatal screening to the degree that will increase the rate of genetic defects, especially in the population's lower socioeconomic strata. By strictly limiting access to contraception, this law will increase the rate of unwanted pregnancies and sexually transmitted diseases. This paper argues that such an influence of biopolitics on biolaw contrasts with the principles of bioethics. Still, Iran's current institution of bioethics cannot address it effectively. Therefore, a new model of interaction between bioethics, biopolitics, and biolaw is needed to prevent the detrimental consequences of such pieces of legislation. Such a paradigm shift is demanded by the current “Woman, Life, Freedom” movement of the Iranian people. (shrink)

This book analyzes for the first time in English the ethical theory that underpins Qur’anic legislation by providing a classification of specific verses in which Islam’s holy book discusses moral issues. The principal purpose of this book is to demonstrate the ways in which the Qur’an theoretically and practically provides the moral code to which Muslims around the world adhere. The author divides his analysis into a survey of Qur’anic attitudes towards the basic ethical issues of obligation and responsibility, (...) issues of moral psychology such as motivation and intention, as well as matters of social ethics such as the function of law in society. He then explores the meanings of individual morality, morality within the family and civil society, and the relationship of morality to the idea of the state. (shrink)

Laws do not suffice to make societies. Gabriel Tarde could have expressed this warning under two hats, first as a legal theorist, then as a sociologist. However, this does not lead him to dissolve society into merely individualistic calculations. His concept of imitation calls for a distributive description of social facts. Its other virtue directs our attention towards the secret sources of invention, which cannot be predicted by the legislator, and which keep the sociologist from being able to close his (...) system . The « social body » is infiltrated from all sides by upsurges of novelties, variations, and adaptations. Hence, and even though Tarde opted for a metaphysical foundation, his sociology is bound to pragmatic demands. The recent French controversy about the Islamic veil provides a testing board for such propositions. (shrink)

As the title of the article suggests, “The Burqa Ban”: Legal Precursors for Denmark, American Experiences and Experiments, and Philosophical and Critical Examinations, the authors embark on a factually investigative as well as a reflective response. More precisely, they use The 2018 Danish “Burqa Ban”: Joining a European Trend and Sending a National Message (published as a concurrent but separate article in this issue of INTERNATIONAL STUDIES JOURNAL) as a platform for further analysis and discussion of different perspectives. These include (...) case-law at the international level while focusing attention on recent rulings and judicial reasoning by the ECtHR and the ECJ; critical thought-experiments in religion, morality, human rights, and the democratic public space; a contextualized account of burqa-wearing interventions by federal and state governments and, moreover, various courts in the United States; and philosophical commentary and, in some instances, criticism of the Danish and/or European (French, etc.) approach. The different contributions have different aims. The section on case-law at the international level reports on those central judgments that, in effect, helped to pave the path for the Kingdom of Denmark’s burqa ban. Concerning the concurring judges at the ECtHR, the opinions served to uphold a preexisting ban and to grant a wide margin of appreciation to the national authorities, thereby limiting the Court’s own review. -/- As regards to the ECJ, the legality of company rules that contain a policy of neutrality for the workplace was examined, with a similar outcome. The authors who discuss religion, morality, human rights and the democratic public space are endeavoring to, respectively, appeal to ethics as a testing stone for law and to both challenge and address several forms of “expressivist worry” in connection with face veils. In doing so, the authors ask a number of thought-provoking questions that hopefully will inspire public policymakers to careful analysis. While the section that is devoted to American perspectives highlights a comprehensive survey of political and legal responses to, in particular, full-face veils like the burqa, the relevant author also incorporates public perceptions and, in the course of examining these, draws a parallel to “the fate” of the hoodie. The constitutionality of burqa-wearing in America, so it also appears, is partially an open question, but differentiating between religious, political, or personal reasons is a de jure premise. Given that the Danish legislators who drafted law L 219 to ban burqa-wearing in public places rely on a reference to political Islam, they relegate religious and personal reasons to the private domain, thereby also adopting secularism as a premise. This is explored in the last author response of the article, more precisely, in an account of the underlying materialism that, in turn, is applied to Muslim women. If policymakers and legislators engaged in Thinking Things Through exercises, they could, as a minimum, avoid law-making strategies that are not in the spirit of the theory they themselves invoke, albeit tacitly. While the aim of, as it were, arresting culturally self-contradicting legislators is unique for the section in question, all the authors who contribute to the joint research project have one end-goal in common, namely to inform about important perspectives while at the same time opening up for parameters for (more) fruitful, constructive and (if need be) critical debate in the future. With this in mind, four recommendations are presented by the research director for the project. Legally, politically, socially and culturally, conflict-resolution should not translate the relationship between rulers and the ruled into a separation ideology, an instance of controllers versus the controlled. All things being equal, that is the objective limit for a democratic society. (shrink)

The government of Bangladesh approved the human organ transplantation law in 1999 and updated it in 2018. This legislation approved both living‐related donor and posthumous organ transplantation. The law only allows family members to legally donate organs to their relatives. The main focus of this study was to explore how Bangladeshis make donation decisions on familial organs for transplantation. My ethnographic fieldwork with forty participants (physicians and nurses, a healthcare administrator, organ donors, recipients, and their relatives) disclosed that the (...) organ donation decision was family‐based. An assessment of the relationship between religion, culture, and biomedicine leads to the conclusion that deciding on donating organs to relatives is primarily family‐based and is perceived to be steeped in Islamic ethical principles and religious cultural tradition. The family‐based consent and motivation for donor‐recipient pair organ transplantation strengthen an altruistic environment for the family and act as the moral and legal authority that ensures ethical healthcare outcomes for Bangladeshis. (shrink)

In 2009, a law was passed in the Danish parliament, according to which judges cannot wear religious symbols in courts of law. First, I trace the development of this legislation from resistance to Muslim religious practices on the nationalist right to ideas in mainstream Danish politics about secularism and state neutrality – a process I refer to as ‘liberalization’. Second, I consider the plausibility of such liberal justifications for restrictions on religious symbols in the public sphere and, in particular, (...) for the ban on the wearing of religious symbols by judges. I argue that such justifications are flawed and so are not plausible corollaries of anti-Islamic justifications originating on the nationalist right. (shrink)

Proponents of the capabilities approach claim that it should be used to give guidance for the implementation of good constitutional laws. This suggests that it also gives us grounds to support attempts to create or protect constitutions based on something like the capabilities approach. The Turkish Republic claims that in order to protect secularism and the equal status of women, it needs to keep certain Islamic practices away from the public domain. The wearing of the headscarf has been singled (...) out as such a practice, and the Turkish Republic has therefore legislated against headscarf wearing in schools, universities, and government buildings. In consequence many women are forced to choose between religion over education and politics in a way that curtails central human capabilities. Nussbaum claims that the best way to help states resolve the dilemma presented by the conflict between religious choice and other central capabilities is to refer to principles embodied in to the US Religious Freedom Restoration Act 1993, which states that a law can burden a person's exercise of religion only when the burden is a furtherance of a compelling state interest. In this paper I consider how this advice partly vindicates the Turkish case and how the solution it yields is in many ways more satisfactory than that of more traditional approaches in political philosophy. (shrink)

Bangladesh, a Muslim-majority country, has a national organ donation law that was passed in 1999 and revised in 2018. The law allows living-related and brain-dead donor organ transplantation. There are no legal barriers to these two types of organ donations, but there is no legislation providing necessary costs and incentive measures associated with successful organ transplants. However, many governments across the globe provide different types of incentives for motivating living donors and families of deceased donors. This study assesses the (...) merits and demerits of incentive measures already in use around the world and proposes ethical measures that can promote organ donation in Bangladesh. The primary focus of this paper is to present an ethical analysis of the comparison of incentive measures on organ donation between Bangladesh and the Islamic Republic of Iran as two Muslim countries that operate organ donation for transplantation practices according to Islamic principles. In this paper, I mainly argue that providing a fixed bare minimum financial incentive measure to distantly related living donors and families of deceased donors will encourage Bangladeshis to donate organs in a manner that is ethically justifiable, morally permissible, and socio-economically appropriate. The government of Bangladesh should revise the existing biomedical law to include a provision related to incentive measures and set a strict policy to properly regulate these measures as key stewardship that can ethically promote organ donation for transplantation. (shrink)

The case of highland Yemen up to around the middle of the twentieth century involves a history different from most Muslim societies in that, from 1919, the Yemeni state was independent. The problem I address concerns the utility of thinking about the highland property regime in this era in relation to the categories of "private" and "public." What sort of antecedents existed, at the level of property relations, for later commercial transformations that would culminate in such things as Pizza Hut (...) franchises? In Yemen, the polity of the period was a type of Islamic state, one based on the shari`a in ideology and in application and headed by a classical form of jurist-leader, a figure known as an imam. Prior to the twentieth century, this Yemeni form of a shari`a-based Islamic polity had a thousand year history in the highlands. Shari`a courts had exclusive competence as state tribunals, and judges, trained on old-style law books, heard the full gamut of litigation. By contrast, colonial changes in other Muslim societies typically entailed a sharp alteration and restriction of the sphere of the shari`a, often limiting application to the domain of "family law" alone. At the same time, the highlands had yet to commence the other great and, elsewhere, ongoing modern transformation of the shari`a, codification and legislation, which would not begin in Yemen until after the Revolution of 1962.Highland society at mid-century was agrarian, based primarily on settled plow cultivation, and the associated property regime was almost exclusively "private." In Yemen, the "private" property regime centered conceptually on milk, a category of individual ownership of immoveable property, and on the concept of mal, a commercial commodity. As a form of private, landed property, milk involved rights that could be acquired, alienated and inherited, and the associated agricultural production was based on lease contracts between landlords and sharecroppers. Pious endowments were the basis for one of the great Muslim "public" institutions, which supported mosques, schools, water systems, etc. Another fundamental "public" institution was an extension of the "private" commercial notion of mal into the state institution of the 'House of Mal,' or Treasury. Other key "public" institutions were the imamate itself, a form of Islamic state, and the shari`a court. This shari`a system can be thought of in terms of three levels of legal texts. At the highest level, shari`a doctrine, the jurisprudence of the period, constituted an ideology of the property regime. The doctrine provided models for both the range of substantive undertakings and for court processes, but the relationship of these models to the property relations and to litigation on the ground is a key question. At the lowest level, the routine documents of ongoing, uncontested practice proliferated. These included ordinary sale documents, leases, marriage contracts, endowment instruments, wills and estate inheritance instruments. Between high doctrine and low instruments were the records of shari`a court judgments, records in which the conflicts and contradictions of the property system were expressed, argued and ruled upon. In certain problem areas of the law, the ruling imams's personal doctrinal "choices" were designed to guide court judges in their rulings. (shrink)

Learning the truth: memorizing the Koran in an Egyptian kuttâb -- The context of truth practices: legislating the sharîa at the shopfloor level -- Telling the truth: the judge and the law in family matters -- The truth about oneself: three Arab channels and their self-presentation -- Speaking the truth: advocacy video clips against terror -- Narratives of truth: documenting the mind in a psychiatric hospital -- Conclusion: Truth: a matter of language game and practical achievement.

This paper examines how the law elects non-Muslim leaders from the Qur’an perspective. The issue raised was based on the Regional Head Election of the DKI Jakarta on February 6, 2017 where one of the candidates is non-Muslim. Then, the simultaneous local elections on June 27, 2018, and the Legislative Election and the Presidential Election on April 17, 2019. It has become interesting because the issue of ethnic, racial, and religious sentiments in the context of candidate leaders often becomes a (...) serious consideration for voters, in addition to capability and track record of the candidate. This paper uses the thematic interpretation method seeks to get a comprehensive genealogy of the verse choosing non-Muslim leaders. The results studies that in the Qur'an there are four terms related to leadership: khalȋfah, uli al-amr, imâm, and awliyâ’. The last term gives rise to various interpretations because it is mentioned 33 times with various meanings: salvation, friend, and leader. From these verses it can be understood that partiality for non-Muslims is not permitted in Islam, especially in the affairs of the nashb al-Imâmah. As for the fulfillment of the rights of non-Muslims as citizens, it is still guaranteed and highly upheld in Islam. (shrink)

Human rights were analyzed and described in many writings from older times. If we consider their fame and historical value, most important ones are: Great Charter of Freedoms of 1215, the Law on Rights of 1689, the Declaration of Independence of the United States of America and the Declaration of the Rights of Man and Citizen. In Chapter 1 of Magna Carta was described the freedom of religion – it established the freedom of the English church from state interference. Today, (...) implementation of this principle, challenges the communities to examine the part they might play in the development of a liberal democracy and to be part of the solution rather than part of the problem in internal and international relations. The restitution of the expropriated congregational properties – concretely of the Islamic Community of Macedonia remains open and can reflect the level of respect of human rights in general and religious and property rights in particular. The aim of this paper is to bring some facts on actual situation regarding the implementation of religious and related rights and discuss the way this principle has found its implementation in Macedonian legislations. Also this paper will seek to identify the problems that occur regarding these rights. (shrink)