JournalTOCs

Journal of Islamic and Near Eastern Law
Number of Followers: 2

This is an Open Access Journal

Open Access journal
ISSN (Online) 2169-7884
Published by eScholarship

[73 journals]

Romantics in Israel's Legal Politics: Arabic Through The Lens of the
Partition Plan
- Authors: Wattad; Mohammed S.
  Abstract: This Paper argues that despite the Israel High Court of Justice's prima facie holding in favor of Arabic being an official language, still the Court has failed to decisively resolve the question concerning the meaning, scope, and consequences of such recognition. Thus, the Court has missed an opportunity, which could have been faithfully addressed had the Court viewed the question at stake romantically, through the genesis of its legal-political premises, upon which it was established; namely, the 1947 Resolution 181 (II) of the United Nations General Assembly (the Partition Plan), wherein the collective rights, including linguistic rights, of the Arab minority citizen, were promised to be constitutionally protected.
  PubDate: Thu, 23 Mar 2023 00:00:00 +000
Unwilling Co-Wives and the Law of Polygamy in Pakistan
- Authors: Khan; Iqra Saleem
  Abstract: This paper is a legal realist endeavor that seeks to uncover a thorough and exhaustive description of Polygamy Law in Pakistan before moving on to a prescriptive analysis. Having an understanding of the stakes involved, background rules at play and the inadequacies within the law can be immensely useful in identifying the harm and redressing it. Thus, in first separating the “Is” from the “Ought”, Part I describes Pakistani polygamy Law and the limited legal remedies available to unwilling cowives. In Part II, the “background rules” driving the bargain amongst the parties’ to enter (or leave) polygamous marriages is discussed. Thereafter in Part III, a distributive analysis is conducted using “ideal-types” to uncover polygamy’s dual nature as a security or a threat for all the parties impacted by the law. Here I rely on the idea that marital partners “bargain in the shadow of the law” with bargaining endowments created in part by the legal rules. By comparing four typical but...
  PubDate: Thu, 23 Mar 2023 00:00:00 +000
Termination of Contracts and Force Majeure Under Qatari Law and Its
Islamic Law Influences: Emergence of a Transnational Gulf Private Law
- Authors: Bantekas; Ilias
  Abstract: There is a growing interest in the private laws of Gulf states, and particularly Qatar, because of the applicability of such laws in transnational and local contracts that account for a significant volume of global trade, energy and construction. Islamic law has a negligible, if any, impact on the law relating to termination of contracts, including hardship and force majeure. Termination of contracts in Qatar is chiefly regulated by the Qatari Civil Code and other specialist legislation, as well as significantly the country’s Court of Cassation, which has produced a consistent flow of case law that is binding on lower courts. The Civil Code generally follows the rule that the parties may not unilaterally terminate contracts and that in any event sufficient notice is required. As regards unforeseen circumstances, the Civil Code distinguishes between general hardship and circumstances that render performance impossible. The former may be amenable to adaptation by the courts, whereas...
  PubDate: Thu, 23 Mar 2023 00:00:00 +000
From the Lack to the Requirement: The Public Consultation Reform in Saudi
Arabia
- Authors: Alholiby; Saud M. , Almulhim, Zakaria A.
  Abstract: Since the foundation of the Kingdom of Saudi Arabia, there had been a lack of public involvement in the decision-making process. Interestingly, however, the Saudi government has recently introduced a new requirement for most proposed laws and regulations: public consultation (PC). Among the first to address the reform in the Kingdom, this Article offers an overview of the PC concept and its development. This Article compares the U.S. and Saudi PC experiences and further analyzes the Saudi PC adoption to achieve three goals. First, the Saudi reader will gain a better understanding of the PC concept by introducing the U.S. experience (the notice and comment). Second, the U.S. reader, unfamiliar with the Saudi legal system, will gain a better understanding of the Saudi experience, along with a brief but necessary constitutional background. Third, the comparison provides an opportunity to make observations about the two experiences, which paves the road to propose critical recommendations...
  PubDate: Thu, 23 Mar 2023 00:00:00 +000
Elizabeth Lhost's Everyday Islamic Law and the Making of Modern South Asia
- Authors: Saeed; Rimsha
  Abstract: Everyday Islamic Law and the Making of Modern South Asia is a thoroughly researched, well-written and important examination of how qazis, muftis and ordinary individuals shaped everyday Islamic law in 19th century South Asia, and how their concerted efforts helped maintain a robust presence of Islamic law in various legal fields. Lhost’s work is a valuable resource to anyone hoping to learn more about the history of Islamic law under colonial rule.
  PubDate: Thu, 23 Mar 2023 00:00:00 +000
Where Do We Go From Here': Halal Food Regulation and Monitoring
- Authors: Aziz; Insiya
  Abstract: As Muslims continue to settle in this country, there are a number of unique challenges that emerge in the criminal legal system, religious freedom, and much more. But one often overlooked question is that of the dietary rules and requirements that many Muslims adhere to. Many are familiar with the halal carts on street corners in major cities but are unaware of the intricacies of ḥalāl food doctrine and the associated regulatory and monitoring schemes in place. While it may be inconsequential to many, for Muslims, the principles of permissible and impermissible food are essential to understand and practice. However, in a secular nation like the United States, parsing what is or is not religiously compliant can be difficult and may leave room for deception and fraud. With that in mind, this Comment considers the current regulatory framework and identifies its shortcomings, proposing reforms in three distinct areas: inspection, certification, and labeling. These reforms form a quasi-public,...
  PubDate: Thu, 23 Mar 2023 00:00:00 +000
Using Islam to Protect the Rights of Migrant Workers: Bringing Kafala into
Sharia Compliance in Saudi Arabia
- Authors: Truluck; Emilia
  Abstract: Saudi Arabia is home to thousands of migrant domestic workers who cook, clean, and provide child-care in private homes. These individuals are not only subject to the kafala system, where their visa is strictly tied to their employer, but they are excluded from the protections accorded to other workers (both Saudi and non-Saudi) under Saudi Labor Law. Although Saudi Arabia has promulgated a set of regulations to govern the treatment of migrant domestic workers, these regulations guarantee only the most basic rights and are often not enforced. As a result, the mistreatment of migrant domestic workers in Saudi Arabia has become a topic of concern for both human rights organizations and the International Labour Organization. In this Comment, I provide a history of kafala in Saudi Arabia, an overview of the role of Islamic law (sharia) in Saudi governance, and an analysis of sharia-compliant labor protections to argue that Saudi Arabia can and should...
  PubDate: Thu, 23 Mar 2023 00:00:00 +000
The Protection and Empowerment of People With Disabilities in Islamic Law
- Authors: Austen; Margaret R.
  Abstract: Around the world, the experience of people with disabilities, like many marginalized classes, does not always align with the promises codified in statues and case law. However, inclusive ideals are found in even the earliest of Islamic legal texts, where people with disabilities are included within etymology, storytelling, the duty of almsgiving, and the influence of physiognomy on Islamic Law. People with disabilities are also integrated in contemporary Islamic legal principles, including penal, family, and municipal Islamic law. While it is tempting to contrast the everyday experiences of people with disabilities against the principles declared in laws or religious creeds, this type of analysis requires a sophisticated blend of sociology, theology, psychology, and even anthropology. This Comment seeks instead to survey the protections and power granted to people with disabilities within Islamic law. While this is a primarily legal analysis, the overlap of theology, morality,...
  PubDate: Mon, 10 Jan 2022 00:00:00 +000
An Evaluation of Pre-Modern Fiqh Rules Pertaining to the Marital Practices
of Non-Muslims
- Authors: Ali; M. Mehdi
  Abstract: The objective of this paper is to examine certain normative pre-modern Islamic legal rules regarding marital practices of non-Muslims, including those who later accepted Islam, as stipulated by a variety of jurists in manuals of law representing the positions of multiple legal schools. The rules regarding marital practices are particularly interesting because marriage was a highly (perhaps even the most highly) regulated feature of Islamic law, and thus rules pertaining to it shed light on broader concerns that guided the process of rule-making conducted by jurists. In conducting this analysis, I identify three overarching principles that appear to have guided Islamic marital rules pertaining to non-Muslims: (1) First, I found that there was a large degree of autonomy granted to non-Muslims in practicing their own marital customs, as long as they did not seek intervention from Islamic authorities; (2) Second, I found that most non-Islamic practices of non-Muslims that took place...
  PubDate: Mon, 10 Jan 2022 00:00:00 +000
Mark Fathi Massoud's Shari'a, Inshallah: Finding God in Somali Legal
Politics
- Authors: Jishi; Omar
  Abstract: In the popular imagination, Somalia conjures images of civil war, terrorism, piracy—in short, chaos. It is one of the last places one would expect to be a laboratory for rule of law. Shari’a, Inshallah upends that stereotype by showing how law and religion play an active and central role in building stability, and rule of law, in the country. In particular, it shows how law and religion interweave in shaping Somali political history, and how Shari'a has been an unavoidable force in building legitimancy for Somalia's political actors. Every political actor and participant in civil society has had to contend with Shari'a in order to assert legitimacy, drive political programs and agendas, advocate for rights, rule, and resist. Although Shari’a, Inshallah focuses on the Somali experience, it carries lessons for the greater Muslim World.
  PubDate: Mon, 10 Jan 2022 00:00:00 +000
Heaven or Earth: The Hagia Sophia Re-Conversion, Turkish and International
Law, and the Special Case of Universal Religious Sites
- Authors: Goodyear; Michael P.
  Abstract: The Hagia Sophia has stood as one of the greatest religious buildings in the world for nearly 1,500 years. During this time, it has taken many forms, first as a church and then a mosque, before finally becoming a museum in 1934 .But in July 2020, the Turkish president, Recep Tayyip Erdoğan, converted the Hagia Sophia back to a mosque following a ruling by the Turkish Council of State. This re-conversion was received with outrage across much of the world, but whether the decision was legal poses a much more difficult question.This article analyzes Turkish domestic law and international law to conclude that there are grounds for questioning the legality of the Hagia Sophia’s re-conversion. It then addresses the need to better protect universal religious sites like the Hagia Sophia in the future. The Council of State relied on principles of the Islamic waqf endowment structure to declare the museum status of the Hagia Sophia illegal. But, in reality, waqf legal doctrine...
  PubDate: Mon, 10 Jan 2022 00:00:00 +000
Kidney, Money, and the Shī‘ah Implementation of the Rule of
Necessity
- Authors: Takhshid; Zahra
  Abstract: In the U.S., over 43,000 people die every year waiting for a kidney. In Iran, however, monetary incentives have eliminated such a waitlist. Iran is the only country in the world with an unrelated living kidney donor program that has allowed for monetary incentives in the form of an altruistic gift, which has become known as the "Iranian Mode." Nevertheless, the legal details of the system remain vague and scholars both in and outside of Iran continue to debate the nature of the system. Does the Iranian system consider kidneys a commodity' Can you legally buy a kidney in Iran' If not, what is the legal nature of the monetary incentive' The answers to these questions are particularly important as many countries seek to find the right approach in addressing kidney shortages. This Article follows the newly established guidelines of the Iranian Model and seeks to answer these questions. It argues that Iran's peculiarity is neither related to its view on the marketability of the kidney...
  PubDate: Mon, 10 Jan 2022 00:00:00 +000
Tensions in Tradition: Hadith, Gender, and Reasonable Interpretation
- Authors: Abou El Fadl; Khaled
  Abstract: Given the central role the hadith tradition and sunna of the Prophet play in forming the doctrine of Islamic theology and law, they have been the focus of modern criticism and reinterpretation when it comes to the issues of women and gender in Islam. However, the thrust of the hadith and sunna pull indifferent directions and can be read both to support and to undermine patriarchy. This Article, therefore, begins with a description of “tension reports” in the Islamic narrative tradition, arguing that there is just as much material that celebrates the memory of liberating moments for women as there are reports bolstering male dominance. Tension reports preserve moments defying the institutions of patriarch in early Islamic history. Next, I discuss what I describe as misogynistic traditions in the hadith and the three main interpretive strategies employed by Muslim women scholars in their approach to this material. I assess the merits of these strategies and offer an alternative....
  PubDate: Mon, 10 Jan 2022 00:00:00 +000