Browse results

Breaching the Bronze Wall deals with the idea that the word of honorable Muslims constituted proof and with the concept that written documents and the word of non-Muslims were inferior. Foreign merchants in cities like Istanbul, Damascus or Alexandria could barely prove any claim, as neither their contracts nor their words were of any value if countered by Muslims. Francisco Apellániz explores how both groups labored to overcome these ‘biases against non-Muslims’ in the courts and markets of Mamluk Egypt and Syria of the 14th and 15th centuries, and how the Ottoman conquest (1517) imposed a new, orthodox view on the problem. The book dives into the Middle Eastern archive and the Ottoman Dīvān, and scrutinizes the intricacies of sharia and the handling of these intracacies by consuls, dragomans, qaḍīs and other legal actors.
Author: Rudolph Peters
In Shariʿa, Justice and Legal Order: Egyptian and Islamic Law: Selected Essays Rudolph Peters discusses in 35 articles practice of both Shariʿa and state law. The principal themes are legal order and the actual application of law both in the judiciaries as well in cultural and political debates. Many of the topics deal with penal law. Although the majority of studies are situated in the Ottoman and, especially, Egyptian period, few of them are of another region or a more recent period, such as in Nigeria or, also, Egypt. The book’s historical studies are mainly based on archival judicial records and are definitively pioneering. Although the selected articles of this book are the fruit of more than forty years of research, most of them have constantly been cited.

Abstract

Why did the famous North Indian modernist and founder of the Muhammadan Anglo-Oriental College in Aligarh, Sayyid Aḥmad Khān (d. 1315/1898), lash out against emulation (taqlīd) in Islamic law (fiqh)? The usual explanation is that he wanted to shift religious authority away from the religious scholars (ʿulamāʾ) toward ordinary Muslims. Countering this claim, I argue that his goal and that of his followers and associates at Aligarh was not primarily to ‘democratize’ Islamic knowledge by doing away with the traditional edifice of Islamic law in general and the four established Sunni legal schools in particular. Rather, Sayyid Aḥmad Khān and his associates attacked taqlīd because, in their view, it failed to yield reliable, certain knowledge (yaqīn). Drawing on Urdu writings, I demonstrate that these modernist thinkers did not engage with the inner logic of Islamic law but rather measured it according to higher, theological, and philosophical standards. In their quest for certainty, they were inspired both by a scientific worldview as well as colonial conceptions of law.

In: Islamic Law and Society

Abstract

This article examines a little-known treatise on the commemoration of ʿĀshūrāʾ (the martyrdom of al-Ḥusayn, the grandson of the Prophet Muḥammad) written by a scholar from the Ḥaḍramawt, ʿAbdallāh b. ʿUmar Bin Yaḥyā (d. 1265/1849). Entitled Risāla fī ibṭāl bidaʿ munkarāt (Treatise on Nullifying Reprehensible Innovations), the text was composed in response to the ʿĀshūrāʾ commemorative processions introduced by South Asian Muslims in early nineteenth century Malay-Indonesian Archipelago and witnessed by the author during his travel there (1832-1835). In this treatise, Ibn Yaḥyā de­­fines a lawful, regulated, and emotionally restrained way of commemorating al-Ḥusayn’s martyrdom while stressing the imperative of ʿAlid leadership of the umma. I then discuss the recent resurfacing of a redacted summary of the Risāla in Indonesia. I show that in the context of an increasingly intense Sunni-Shiʿi sectarian contestation that characterized contemporary Indonesia, the redacted version of this ʿAlid treatise circulates as an anti-Shiʿi text.

In: Islamic Law and Society

Abstract

This study examines different dimensions and permutations of invaluable judicial support to Islamic financial services and products and identifies specific areas where the judiciary has helped to shape the industry in line with the original value proposition of Islamic financial intermediation. While relying on qualitative legal methods with comparative case analysis from different jurisdictions, this study conducts cross-jurisdiction case analyses and identifies the role of judiciary in introducing sustainable practices. It concludes that the judicial function has played a significant role in ensuring justice and fairness through purposive interpretation of contracts, recognition and enforcement of foreign arbitral awards and judgments, consistency and predictability of outcomes, legal risk mitigation, and facilitation of mediation and arbitral proceedings, thereby positively reshaping the future of Islamic financial services industry. Above all, the availability of binding judicial precedents, which is hitherto not common for Islamic law matters, is a welcome development in the Islamic financial services industry.

In: Arab Law Quarterly

Abstract

The judiciary has a very significant role to play in safeguarding the environment and promoting the right to a clean environment. This study focuses on the role of the judiciary in promoting the right to a clean environment, and, in this regard, will examine the Kuwaiti and Egyptian experience, as both legal systems are among the civil law practice. In addition, it is of importance to expand the study to a different legal practice, such as the common law system. Therefore, this research will also shed light on the role of the judiciary in the United States of America to establish a comparison between three different legal systems. In the course of this study, constitutional, administrative, and other legal provisions will be examined. In addition, significant cases of concern will be provided and discussed in a descriptive, analytical, and critical manner.

In: Arab Law Quarterly
Author: Ryan Calder

Abstract

Observers call upon Islamic financial institutions to move beyond offering merely Sharīʿah-compliant instruments toward offering more Sharīʿah-based ones. But when did these terms come into usage, and why? What precisely do people mean by ‘Sharīʿah-based’? In this article we argue that the term ‘Sharīʿah-compliant’ emerged in the 1990s and allowed Islamic finance institutions to leave behind scandals of the 1980s, presenting Islamic finance anew as a technically rational project grounded in Sharīʿah expertise. In contrast, the call for Sharīʿah-based finance became popular in the 2000s, and especially after the 2008 global financial crisis, which made systemic stability and product transparency pressing concerns. Usages of ‘Sharīʿah-based’ fall into three categories: those that stress separation from conventional finance, those that stress authenticity, and those that stress welfare. This definitional multiplicity is not a problem but rather a starting point for debate and a sign of Islamic finance’s growing maturity as an ethical project.

In: Arab Law Quarterly
Authors: Amin Dawwas and Tareq Kameel

Abstract

According to the principle of party autonomy, the disputant parties may choose the law applicable to the merits of international commercial arbitration. In the absence of the parties’ choice, the arbitral tribunal shall determine this law. This article discusses the applicability of ‘rules of law’, namely the UNIDROIT Principles of International Commercial Contracts (UNIDROIT Principles) to the merits of the dispute. It shows whether the UNIDROIT Principles can be selected by the disputant parties or the arbitral tribunal to govern the subject of the dispute under the Arbitration Laws of the Gulf Cooperation Council (GCC) Countries as well as the Constitution and the Arbitral Rules of Procedure of the GCC Commercial Arbitration Center (GCCCAC).

In: Arab Law Quarterly

Abstract

The current international investment legal regime results from the interplay between international investment norms, embodied mainly in international investment agreements (IIAs), and the legal regime of the host country. This article will outline two major impacts IIAs can exert on national governance in Egypt: first, the domestic reform impact that refers to domestically initiated reform measures taken to compliment IIAs objectives, such as establishment of Economic Courts as well as limitation of third-party challenge of Investor–State contracts; and, second, the Supra-National Impact which involves situations where IIAs constrain the regulatory powers of the host state usually by imposing legal obligations that go beyond international standards, such as alternative dispute resolution (ADR) mechanisms as well as trade-related investment measures-plus (TRIMS-Plus) and trade-related aspects of intellectual property rights-plus (TRIPS-Plus) provisions. Understanding the profound effects of IIAs on national governance will beneficially inform policy makers when concluding IIAs.

In: Arab Law Quarterly