Authors:Sohaira Siddiqui Abstract: Source: Page Count 41In 1869, the British allowed Muslims to sit as judges on the High Court. This article explores the legal opinions of the first Muslim judge to be appointed to the High Court, Syed Mahmood. Straddling two competing worlds – that of Cambridge University and that of his native India – Justice Mahmood both legitimated and resisted colonial judicial power. In this essay I will demonstrate how British judges interpreted points of Islamic law within an English legal framework, and how these interpretations contradicted their translated texts of Islamic law, yet became the foundation of legal precedents established through the doctrine of stare decisis. Despite participating within the British colonial judiciary, Mahmood challenged these precedents, demonstrating his ability to navigate the paradoxes of colonial power to secure for himself a legitimate platform from which he could argue his juridical interventions. The efficacy of these challenges, however, ultimately was restrained by the institutions and structures of the colonial jural project. PubDate: 2018-09-13T00:00:00Z
Authors:Yavuz Aykan Abstract: Source: Page Count 19This article traces the genealogies of the legal concept ‘spreader of corruption’. Although some scholars working on Ottoman law consider this concept to be part of the Ottoman ḳānūn tradition, the history of its adaptation by Ottoman jurists actually dates back to the Qarakhanid period (eleventh century CE). It acquired its legal meaning as a result of jurisprudential debates among Ḥanafī jurists in the context of political turmoil and violent factionalism among madhhabs. Later, Seljuq and Golden Horde legal-textual traditions served as conduit for Ottoman jurists to adapt the concept in order to apply it to a variety of criminal acts. This article explores how the ‘spreader of corruption’ concept was reinterpreted over the centuries and how it contributed to the enforcement of law in the Ottoman context. PubDate: 2018-09-10T00:00:00Z
Authors:Mahmoud Jaraba Abstract: In this article, I examine how Muslim women who ae religiously-married in Germany might initiate no-fault divorce in the absence of a German registered civil marriage. Because there is no Muslim state authority to consult, local imams and Islamic leaders can resort to a community-led practice known as khulʿ (divorce initiated by the woman) to dissolve an Islamic marriage (nikāḥ) that is not recognized by civil authorities. In this article, which is the culmination of three years of fieldwork in Germany, I analyze and interpret the views and practices of two groups of religious actors - conservatives and pragmatists - towards khulʿ in cases of nikāḥ. I find that conservatives only permit a woman to divorce through khulʿ with her husband’s consent, whereas pragmatists use Muslim minority jurisprudence (fiqh al-aqalliyyāt al-Muslima) to argue that the husband’s consent is not essential to legitimize a khulʿ pronouncement. PubDate: 2018-08-29T00:00:00Z
Authors:Youshaa Patel Abstract: Source: Page Count 68This article examines the canonization of the Prophetic hadith, “Whoever imitates a people becomes one of them,” which became the keynote expression of tashabbuh (reprehensible imitation), a Sunni doctrine commonly invoked by religious authorities to distinguish Muslims from non-Muslims. First, I analyze how the Partisans of Hadith transmitted and classified the hadith, highlighting the pivotal role of Abū Dāwūd (d. 275/889) in canonizing the tradition. I then trace the divergent trajectories of its interpretation over time, especially the glosses of two brilliant Damascenes: Ibn Taymiyya (d. 728/1328) and Najm al-Dīn al-Ghazzī (d. 1061/1651). This study draws not only from hadith commentaries but also from treatises on law, ethics, and Sufism, illustrating how hadith interpretation takes place in multiple Islamic literary genres. A detailed appendix catalogues the collections of hadith that transmit the tradition; compares different narrations in order to date and locate its circulation; and visually maps its isnād networks. PubDate: 2018-06-01T00:00:00Z
Authors:Stijn Cornelis van Huis Abstract: Source: Page Count 25In this essay, I describe the historical development of three traditional fiqh-based divorce mechanisms in Indonesia that commonly result in a khul‘ divorce: regular khul‘ (khuluk), conditional divorce (taklik talak), and marital discord (syiqaq). In the practice of present-day Islamic courts these traditional fiqh-based divorce mechanisms have lost almost all of their former prominence. Through a historical analysis of legal practices of female-initiated divorce, I will explain how this happened. Legal reforms under the 1974 Marriage Law, their adoption into the 1991 Compilation of Islamic Law, and case law of the Supreme Court broadened women’s divorce rights significantly. The same reforms made out-of-court divorce illegal. In contrast to fiqh-based divorce mechanisms, judicial divorce on the grounds of ‘continuous and irreconcilable marital discord’ does not require the consent of the husband or the payment of compensation and has therefore become an easier and cheaper option for Indonesian women. PubDate: 2018-06-01T00:00:00Z
Authors:Mathieu Tillier; Naïm Vanthieghem Abstract: Source: Page Count 40This article presents the edition of three fragments of a prison register from Fusṭāṭ, preserved in the Michaelides Collection of the Cambridge University Library. They record the arrival of petitions from prisoners, mainly imprisoned for debt, and mention their release. These excerpts provide crucial information on the organization of prisons during the early Abbasid period. They testify to the high frequency of imprisonment for debt, and confirm that the prison system revolved around the qadi’s judgeship and the police (shurṭa), which included an administrative service where the petitions of the detainees were examined. These documents allow therefore a better understanding of the process of incarceration and release of debtors. Cet article propose l’édition de trois fragments d’un registre carcéral de Fusṭāṭ conservés dans la collection Michaelidès de la Bibliothèque universitaire de Cambridge. Ils enregistrent l’arrivée de pétitions de détenus, principalement incarcérés pour dette, et mentionnent leur élargissement. Ces extraits offrent des informations capitales sur le fonctionnement des prisons au premier âge abbasside. Ils témoignent de la fréquence des incarcérations pour dette et confirment que le système carcéral s’articulait autour de la judicature cadiale et de la police (šurṭa), qui possédait un service administratif où étaient examinées les pétitions des détenus. Ces documents permettent ainsi de mieux comprendre le processus d’incarcération et de libération des débiteurs. PubDate: 2018-05-31T00:00:00Z
Authors:Esther Van Eijk Abstract: Source: Page Count 22In this article, the author examines the ways in which a number of Dutch Muslim women try to obtain an Islamic divorce. The road to a divorce, often long and winding, does not always lead to a satisfactory conclusion. I explore the question of why it can be difficult for Muslim women to obtain a religious divorce. Drawing on recent empirical research into the phenomenon of ‘marital captivity’ – a situation in which someone is unable to terminate a (religious) marriage, I examine the case of a Dutch Muslim woman who, at the instigation of a civil court, managed to negotiate a khulʿ agreement with her ‘ex’-husband, who released her from the marital bond. This exceptional example of a khulʿ practice in the Netherlands attests to the versatility of this under-researched form of Islamic divorce and how it is used in a Muslim minority context in Europe. PubDate: 2018-05-25T00:00:00Z
Authors:Norbert Oberauer Abstract: Source: Page Count 40The present study examines the conception of money in classical Islamic law, specifically the relationship between scholarly discourses on money and actual economic practice. I shall argue that the theoretical concept of money was to some extent a fiction. Muslim jurists conceived of money in terms of a three-tier currency system that involved gold dinars, silver dirhams and copper fulūs. The market was much more complex. A wide range of coins of various metallic content, weight and value circulated. In the first part of the study I describe the complexity of Islamic money markets. In the second part, I investigate how scholars reacted to the gap between theory and practice and posit some tentative conclusions about the relationship between Islamic law and practice. PubDate: 2018-05-25T00:00:00Z
Authors:Sohail Hanif First page: 173 Abstract: Source: Volume 25, Issue 3, pp 173 - 211In this article, I address the long-standing debate on the existence of regionally defined schools of law in Islam’s formative period by focusing on the early Kufan tradition, with special attention to Ikhtilāf Abī Ḥanīfa wa-Ibn Abī Laylā, attributed to Abū Yūsuf (d. 182/798). By studying reports and legal opinions in the text, I argue that the legal thought of Kufan jurists in Abū Ḥanifa’s generation was based on a general deference to regional, Kufan authorities and that this larger legal project may meaningfully be termed a school. I provide a model for legal method in these early schools, taking into account the contributions of supporters and detractors of the regional-school concept. I suggest that formative-period legal methods are also expressed in the classical Ḥanafī school, enabling us to view questions of ijtihād, taqlīd and madhhab formation in a new light. PubDate: 2018-05-15T00:00:00Z
Authors:Rosemary Admiral First page: 212 Abstract: Source: Volume 25, Issue 3, pp 212 - 234Historical studies of Islamic legal systems have focused primarily on courts and prominent muftīs. My research shifts the focus to the community level, with particular attention to women and their relationships with male family members, drawing on cases from Fez and its environs under the Marinid dynasty from the mid-seventh/thirteenth to the mid-ninth/fifteenth century. I argue that people actively engaged with Islamic law in their daily lives and relationships, and that women had access to informal legal spaces that allowed them to influence the legal process, making interpretive decisions on issues where the Mālikī school accepted multiple opinions. Through an analysis of fatwās issued by Marinid jurists, I explore how communities and legal officials resolved contentious disputes, and how women used legal knowledge to participate in the legal process. PubDate: 2018-05-15T00:00:00Z
Authors:Yüksel Sezgin First page: 235 Abstract: Source: Volume 25, Issue 3, pp 235 - 273Should a democratic regime formally incorporate religious laws and courts into its otherwise secular legal system' This is not a hypothetical question. Some democratic nations already formally integrate religion-based laws in the field of family law (especially Muslim Family Law – MFL). Although state-enforced MFLs often affect human rights negatively, many governments, especially non-Muslim majority ones, have refrained from direct legislative interventions into substantive MFLs. Instead they have empowered civil courts to play the role of “reformer.” But how successful have civil judiciaries in non-Muslim regimes been in “reforming” Muslim laws' On the basis of an analysis of the MFL jurisprudence of Israeli and Greek civil courts over the last three decades, I argue that civil courts could not have brought about any direct changes in Muslim law, however, they have had an indirect effect by pressuring religious courts/authorities to undertake self-reform. PubDate: 2018-05-15T00:00:00Z
Authors:Dörthe Engelcke First page: 274 Abstract: Source: Volume 25, Issue 3, pp 274 - 309Using Pierre Bourdieu’s theory of practice as a theoretical framework, I establish links between the structure of the Jordanian legal system, processes of reforming family law between 2001 and 2010, and the development of the content of family law. The dāʾirat qāḍī al-quḍāt, the Supreme Justice Department (SJD), is a state institution that enjoys considerable autonomy in overseeing the sharīʿa courts that apply Islamic family law. As the Jordanian king chose not to participate in the reform process, the SJD came to dominate the reform process, which concluded with the issuing of the 2010 family law. Its control over the reform process allowed it to influence the content of the law. This article is based on semi-structured interviews as well as written sources such as Jordanian family laws, procedural laws, minutes of parliamentary debates, royal speeches, and relevant statistics. PubDate: 2018-05-15T00:00:00Z
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