A Comparative Analysis with Special Reference to Saudia Arabia
This book examines in depth the degree of compatibility and incompatibility between the general principles and jurisdiction of Islamic law and international criminal law (the Rome Statute). It discusses the controversy related to the non-ratification of the Rome Statute by some Islamic and Arab countries. The author analyses arguments that maintain that Islamic law cannot be compatible with international criminal law, and makes it clear that there are no fundamental differences between the principles of Islamic law and the principles of international criminal law. The book considers Saudi Arabia as a case for reference.
Studies in Islamic Law and Society accommodates monographs, collections of essays, critical editions of texts with annotated translation, and reference works whose subject-matter lies within the field of classical and modern Islamic law. Both the study of legal texts and legal discourse and the study of the social circumstances in which law has been and is being shaped - the reciprocity of influence of law on society and society on law - are integral to the series, and works representing either type of study or both will be considered for inclusion. Studies in Islamic Law and Society provides a focal point for scholars researching Islamic law both as a medium in its own right and as a phenomenon inviting historical and social analysis.
يعدّ الوقف (وجمعه: أوقاف) جزءًا لا يتجزأ من المجتمع اليمني لإدارة الثروة الخاصة وكإطار قانوني للأعمال الخيريّة والبنّية التحتيّة العامة. يركز الكتاب على أربع ميادين اجتماعية في المعرفة القانونية وهي: الفقه والتقنين وبعض حالات الوقف والمعرفة المتعلقة بالوقف في الحياة اليومية. يجمع الكتاب بين تحليل النصوص والدراسات الإثنوغرافية بهدف فهم كيف تم التعامل مع الشريعة الإسلامية واستخدامها وتحديدها واعتمادها في مسائل معينة من مسائل الوقف حيث يوجد توتّر بين النظرية الإسلامية والتطبيق على أرض الواقع. تقوم الدراسة بتحليل أهم أعمال الفقه الزَّيديّ مثل شَرْح الأزْهَار، والأحكام الإماميّة، والفتاوى، والوقفيات، معظم هذه المصادر يأتي من المناطق الشمالية الزيدية.


Islamic foundations (waqf, pl. awqāf) have been an integral part of Yemeni society both for managing private wealth and as a legal frame for charity and public infrastructure. This book focuses on four socially grounded fields of legal knowledge: fiqh, codification, individual waqf cases, and everyday waqf related knowledge. It combines textual analysis with ethnography seeking to understand how Islamic law is approached, used, produced and validated in selected topics of waqf law where the tensions are strong between ideals and pragmatic rules. The study analyses central Zaydī fiqh works such as the Sharḥ al-azhār-cluster, in addition to imamic decrees, fatwās, and waqf documents, mostly from Zaydī, Northern Yemen.
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Abstract

Istiṣḥāb al-ḥāl, the presumption of the persistence of a state or ruling, is a disputed source within Islamic jurisprudence. For some scholars, it is one of the main sources of Islamic law. Many juristic principles are based on istiṣḥāb. The Hanbali scholar al-Ṭūfī (d. 716/1316) follows this idea in Sharḥ Mukhtaṣar al-Rawḍa and holds that istiṣḥāb is the fourth source of law after the Quran, Sunna, and Consensus. Al-Ṭūfī argues for the validity of istiṣḥāb with regard to a physical theory in kalām known as atomism. He discusses the possibility of continuation in existence. In his view istiṣḥāb is based on the principle that persistence/continuation (baqāʾ) is an accident (ʿaraḍ) that is not re-created in each moment in contrast to kalām atomism, which postulates that accidents are re-created constantly. This article presents al-Ṭūfī’s original approach to the validity of istiṣḥāb that guarantees the continuous existence of a state and ruling.

Open Access
In: Islamic Law and Society

Abstract

This research focuses on an increasingly important question associated with the state of military occupation as part of International Humanitarian Law, namely, to what extent the rights and duties of an occupying power are to be broadened or otherwise minimized when an occupation of a foreign territory lasts for a long period of time? This question is necessitated by the practices of some occupying powers that claim their ‘original’ authority over occupied areas should exceed the original rights embodied in the legal corpus on military occupation due to the prolonged nature of their military presence. This research focuses on the state of the Israeli military occupation over the Occupied Palestinian Territories (OPTs.) and found that the Israeli practices are calculated in this direction, i.e., the expansionist policy, which ultimately conflict with the corpus of rules of international law on military occupation.

In: Arab Law Quarterly
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Abstract

In a decision of 14 January 2023, the Egyptian Supreme Constitutional Court confirmed the constitutionality of Decree-Law 32/2014 abolishing public interest litigation. Public interest litigation in the past was an important political means permitting NGOs to submit the privatization of public enterprises and the allocation of state land to judicial scrutiny. The long-awaited decision conforms to a tendency of limiting judicial control in the interest of economic stability, hereby giving state-lead economic development the priority over citizens’ rights and participation.

In: Arab Law Quarterly

Abstract

This article focuses on the transformations of Algerian Islamist parties, placing them in a dynamic context. Having undergone both phases since the fall of the ruling party in 1989, Algeria furnishes a case study for analyzing the conditions and challenges of the inclusion and exclusion of Islamist parties. The synchronic and diachronic construction of the Algerian case, combined with a comprehensive and inductive approach, thus allows us to contribute to the inclusion-moderation debate on multiple empirical, methodological, and conceptual levels. Only this dual approach makes it possible to grasp the changes and continuities in the ideology and modes of action of the Islamist parties as well as the evolution of how the regime integrated or excluded them from the political arena. On the level of defining moderation and radicalization, it allows us to differentiate between, on the one hand, political labelling by the various Islamist or non-Islamist actors and institutionally defined legal criteria and, on the other hand, academic concepts. This calls for adopting a dual analysis: what we term a radicalization within the institutional arena (by subverting the foundations of the state, i.e., the Islamic state project) and a radicalization from outside it (by armed violence). In this framework, the political exclusion of an Islamist party correlates closely not with its intrinsic radicality but with the crossing of an electoral threshold, which sets the stage for implementing its radical program. Knowing how the civilian and military authorities assess this threat is thus essential for understanding the exclusionary and inclusionary processes. Next, we must differentiate between inclusion in the electoral game, which is accepted, and inclusion in the executive branch, on which the Islamist parties are internally conflicted. Finally, it behooves us to show that the moderation of programs and modes of action does not stem from (prior) inclusion in the political game, but instead results from a new institutional constraint. It produces specific effects, namely partisan fragmentation, and ambivalence about the identity of Islamist parties.

In: Middle East Law and Governance
In: Middle East Law and Governance
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Abstract

At the beginning of the 2010s, several Arab countries seemed about to follow the model of Turkey, with an electoral victory of Islamist parties in a context of democratization. A decade later, Turkish akp has turned authoritarian, and the Moroccan and Tunisian Islamist parties have lost both access to governmental office and a large part of their electoral appeal. In this context, lessons can be learned from the early failed democratic experience in Algeria (1989–1992), and from the evolution of its Islamist movements since then.

From these four case studies, the contributors of this issue investigate the notions of moderation and inclusion, and their interrelations. Their articles build on the current trends within literature by taking into account the variety of Islamist movements, and their incorporation within different national trajectories. These articles contribute to the academic discussion by bringing new facts and ideas regarding this topic of inclusion-moderation.

In: Middle East Law and Governance

Abstract

This article explores the complex dynamics shaping the integration of the Tunisian Islamist party Ennahdha into the instituted political game. Drawing on a strategic relational approach, the analysis highlights the simultaneous, mutually reactive, and often conflicting relationships of Ennahdha party with three types of actors: political secular forces (allied or antagonist), political and religious Salafi actors, and faith-based associations. Based on extensive field research and 33 in-depth interviews conducted with key players involved, we propose to capture these dynamics at the macro (regime), meso (organizations), and micro levels, through the notion of strategic pluralization, by which we mean a reconfiguration of Ennahdha’s relations with various Islamic actors under the pressure of secular forces. Going beyond institutional-structural approaches and monolithic interpretations of the Islamist constellation, we argue that Ennahdha’s integration in relational economies has formed the basis of the party’s strategy to secure its political inclusion in the post-revolutionary scene.

In: Middle East Law and Governance