Amidst violent contestation across the Middle East leaving regimes facing – or fearing – popular protests, the regulation of political life became increasingly important. Across the past century, the development of political projects has been driven by regime efforts to maintain power, constructing regime-society relations in such a way to ensure their survival. As a consequence, security is not given; rather, it reflects the concerns of elites and embeds their concerns within society, using a range of domestic, regional and geopolitical strategies to meet their needs. These strategies play on a range of different fears and currents to locate regime interests within broader concerns. A key part of such efforts involves the cultivation and suppression of particular identities, often resulting in contestation and uncertainty within and between states. Drawing on the ideas of Giorgio Agamben, Gilles Deleuze and Felix Guattari, the article argues that the regulation of sect-based identities – and difference – has been a key part of governance strategies in divided societies across the Middle East, albeit varying across time and space.
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Maqālīd al-ʿulūm. A Gift for the Muzaffarid Shāh Shujāʿ on the Definitions of Technical Terms
Edited by Gholamreza Dadkhah and Reza Pourjavady
Der Staat als Feind
In dieser Arbeit präsentiert Justyna Nedza die erste umfassende Analyse der theologisch aufgeladenen Rechtspraxis des „Apostasievorwurfs“ ( takfīr) im Milieu des militanten „Salafismus“. Dabei liegt ein besonderer Fokus auf der rechtlichen Begründung von gewaltsamen Widerstand ( ǧihād) gegen staatliche Organe in muslimischen Mehrheitsgesellschaften, sowie die hiermit verbundene Ausweitung dieses Rechtsmittels vom Individuum auf Kollektive. Anhand der komparatistischen Untersuchung der Schriften von vier ausgewählten Autoren aus Ägypten und Saudi-Arabien zeigt Nedza, dass deren divergenter nationaler Kontext eine entscheidende Rolle sowohl für ihre jeweiligen textlichen Referenzrahmen als auch ihre entsprechenden Schlussfolgerungen spielt. Damit wird die bisher weithin akzeptierte These vom “Salafismus” als global einheitlichem Phänomen auf den Prüfstand gehoben.
Trading Routes and the Development of Commercial Law
Edited by Stefania Gialdroni, Albrecht Cordes, Serge Dauchy, Dave De ruysscher and Heikki Pihlajamäki
Contributors are Cornelia Aust, Guido Cifoletti, Mark R. Cohen, Albrecht Cordes, Maria Fusaro, Stefania Gialdroni, Mark Häberlein, Uwe Israel, Bart Lambert, David von Mayenburg, Hanna Sonkajärvi, and Catherine Squires.
Issues of Residence, Naturalization and Citizenship
Edited by Ray Jureidini and Said Fares Hassan
Contributors are: Abbas Barzegar, Abdul Jaleel, Dina Taha, Khalid Abou El Fadl, Mettursun Beydulla, Radhika Kanchana, Ray Jureidini, Rebecca Gould, Said Fares Hassan, Sari Hanafi, Tahir Zaman.
Contemporary Discussions in Shī ͑ī Legal Theory
Edited by Ali-reza Bhojani, Laurens de Rooij and Michael Bohlander
Ahmad Mohammed al-Darbas and Mohammed Ebrahem al-Wasmi
This article intends to present the significance of mortgage financing in emerging markets and explain how mortgage financing affects positively the economies of emerging countries. It will also show the legal foundations of the real-estate mortgage law and the prerequisites for a successful mortgage financing system. This article intends to define the main challenges that some consider a hindrance to the development of the mortgage market in the Arabian Gulf countries. From this perspective, a brief comparative analysis of mortgage financing will focus on varying laws and regulations that apply to real-estate mortgages in the Gulf region. Implications for the development of the mortgage market in Arabian Gulf countries will be based on challenges in the mortgage market.
The post-colonialist academic discourse blames colonialism for the marginalisation of Sharī‘a in the legal systems of Sunnī Muslim-majority countries. However, an analysis of some juristic debates around the Sunnī doctrinal theories of uṣūl al-fiqh and maqāṣid al-sharīʿa exposes few of the theories’ internal problems accounting for the marginalisation. In uṣūl al-fiqh, disputes regarding ijmāʿ and qiyās virtually bring their effectiveness as legal doctrines for positive law legislation to a halt. With regard to maqāṣid al-sharīʿa, an Ašʿarī adherence to a literal reading of the text reduces its potential to produce new Sharī‘a-compliant laws. Such problems render uṣūl al-fiqh and maqāṣid al-sharīʿa ineffective instruments for regulating accelerated legal changes demanded by fast-paced societal and scientific developments and deem the application of Sharīʿa in Sunnī Muslim-majority countries a task neither possible nor even recommended.
This article provides an analysis of outward foreign direct investment (FDI) trends from Turkey in light of the UAE’s interests. The key objective is to present a concise picture of Turkish FDI and of the opportunities within selected sectors in the UAE. Pursuant to this analysis, the article enumerates various challenges the UAE legal system poses to foreign investment. It then offers recommendations for how the UAE can mitigate these challenges without compromising its legal and economic regimes.
Haider Ala Hamoudi
Reyadh Mohamed Seyadi
One significant feature of arbitration that distinguishes it from litigation in national courts, is the parties’ freedom to select the arbitrator or members of the arbitral tribunal familiar with the kind of dispute that might arise or already has arisen. In 2012, a new arbitration law was issued in the Kingdom of Saudi Arabia (KSA) inspired by the texts of the Model Law on International Commercial Arbitration. In all its provisions it included the requirement not to violate Sharīʿah law (Islamic legal tradition). However, according to this law, the sole arbitrator or presiding arbitrator must hold a Bachelor of Laws (LLB) or Sharīʿah law degree. This provision is mandatory, and the parties cannot agree otherwise. This article seeks to provide some thoughts on this restriction through an analysis of arbitrator qualifications under Sharīʿah law in order to provide a better understanding of the position adopted by the KSA Arbitration Law.
Emad Abdel Rahim Dahiyat
Although e-commerce is growing at a dramatic rate, there are still areas of concern that need to be addressed adequately by the legislation in order to promote trust in e-commerce and remove any barriers to its full development. This paper thus explores the existing legislation in UAE to determine whether or not this legislation gives due attention to consumer protection in an online environment. Furthermore, this paper briefly addresses the issue of what the law ought to be in order to enhance legal certainty as well as maintain the credibility of the Internet as a market place for consumers.
Robert P. Parks
This article examines how Algerians negotiate property and public space and how citizens encounter and engage the state. It explores the phenomenon of squatting and appropriation of public space in contemporary Algeria through the lens of the polysemic term beylik, which can be simultaneously used to define the state, public domain, and no man’s land. It argues that, in addition to individual motivations for personal gain or out of necessity, squatting and the appropriation of public space is also a silent yet highly political act that reimagines the relationship of rights and obligations incumbent between citizen and polity. The appropriation of beylik is a process that comes from widely-held beliefs that types of unused state property are somehow unnatural, if not illegitimate, or that, as a citizen, one has the right to re-model and re-fashion it for either individual or collective use. In this sense, beylik is an empty space in which citizens re-imagine how the community should be governed. By seizing and transforming beylik, a citizen is simultaneously forgetting (or ignoring) the state, while projecting a different governing order for both private and public spheres. The silent encroachment of citizens into the domains of the state – in occupying and re-ordering state space – reveals the fluidity of Algerian institutions, inasmuch as it reveals that institutions are themselves negotiated between state and society.
Street Politics and Microfoundations of Governance
Michelle D. Weitzel
Affect was an essential component of the Arab uprisings, and it remains an important medium for shaping everyday politics in the Middle East and beyond. Yet while affect is beginning to be conceived as integral to studies of social movements, endeavors to control individual and collective affect in the praxis of statecraft remain understudied—despite robust evidence that affect and emotion are intimately entwined with political behavior and decision-making on a wide range of issues spanning voter preference to foreign policy. This article examines how such control takes effect, situating the sensory body as a bridge and key site of interaction and contestation for diverse projects that seek to influence behavioral outcomes via the manipulation of public space. From among the bodily senses, it singles out the auditory realm as a particularly potent generator of affect and examines the entanglement of sound, hearing, and power to foreground ways the sensory body is routinely engaged in state projects. Drawing on examples from the protests that ricocheted across the Middle East from 2010–2012, and framing these with historical antecedents from original archival work, this article bridges phenomenological experience and political outcomes to reveal how sensory inputs such as sound, wielded by elite and subaltern actors alike, are engineered for political effect. In so doing, I argue that a necessary prerequisite for grasping the role of affect and emotion in politics is a better understanding of technologies and modalities of control that go into the structuring of the sensory environment.
Lana Salman and Bernadette Baird-Zars
Most studies of the Arab uprisings and their aftermaths focus on national-level political processes, neglecting changes at the municipal level. The few studies of municipalities that do exist tend to treat municipalities either as corruption-prone institutions exploited by local elites, or else as areas in need of intervention to make them function properly. We argue that municipalities are an overlooked site of political change—both spatially and temporally—that began prior to the uprisings but accelerated in their aftermath. Drawing on original empirical material from Tunisia and Syria between 2007 and 2014, we highlight two changing dimensions of municipal governance: how municipalities have sought to expand their power by stretching into new areas; and how, since the uprisings, municipalities have taken up new regulatory and enforcement roles in the wake of central state retreat.
To support this analysis, we utilize on-the-ground interviews and fieldwork in Tunisia and off-site interviews and aerial analyses of urban growth in northern Syria. We find that, first, city governments are moving into the spaces where national actors are absent, transforming municipalities into spaces for meaningful political engagement (Tunisia) and the allocation of resources (Syria). Second, municipalities have gained greater autonomy in the arenas of service delivery and planning. This increase in municipal power does not represent a break from pre-uprising practices, but rather a continuation and perhaps acceleration of the politicization and expansion of municipal authority that began pre-2011.
Laryssa Chomiak and Jillian Schwedler
Many analyses of the 2011 uprisings and their aftermath 2011 uprisings have been built explicitly on social movements theory with a focus on specific episodes of social unrest. Others have employed procedural approaches from theories of democratization. The nation-level unit of analysis dominant in these approaches reproduces classic regime-character typologies and invokes questions about the relationship between regime type and successful social mobilization. This special issue explores the spaces and practices of state power beyond the conventional framework, giving special attention to space, time, and the multiple scales of relations of power. The contributors explore how these alternative approaches open up different questions into the operation of state power—some in the specific context of the uprisings and some in the course of more quotidian administration.
Nicholas J. Lotito
During democratic transitions, newly elected governments face public demands to reform the institutions of the old regime, especially the security forces; yet, these reforms often fail. I argue that politicians define policy issues in ways that maximize popular support for their own positions through well-established processes of elite issue framing. Politicians can reduce popular demand for difficult and costly reforms of the security forces by framing them as trade-offs with other types of reform. The argument is tested with original survey data from Tunisia, an important contemporary case of democratic transition. An embedded vignette experiment primes existing issue frames by asking respondents to adjudicate between investments in security reform versus economic or political reform. I find that framing a trade-off with a more popular policy, economic development, reduces public demand for security reform. These findings have important implications for security sector reform and democratic consolidation in Tunisia and beyond.
Revolutionary coalitions often break down in the aftermath of revolution, leading to the collapse of transitional governments. Fragmentation among revolutionary elites has been extensively theorized, but few works consider the origins and consequences of polarization among non-elite protesters in the revolutionary coalition. This paper examines the case of Tunisia to unpack how polarization among former revolutionaries may drive secondary waves of mobilization that imperil governing coalitions, even when elites are cooperating. Unique protest surveys of pro- and anti-government demonstrations during the Tunisian political crisis of 2013 – which catalyzed the resignation of the country’s first elected assembly – show that polarization within this coalition occurred along ideological lines concerning the role of Islam in governance but not along class lines, as some theories of transition would predict. Revolutionaries are re-mobilized in part through divergent narratives concerning which social groups participated most in the revolutionary struggle, and which groups suffered and profited most under the old regime. This paper counters the elite-centrism of predominant “transitology” approaches by highlighting how protest politics may shape institutional transitions.
Amidst the politics of the Mamluk-era spice route, why did the standard-bearers of Islamic law routinely oppose the sultanate’s imposition of an alms-tax on merchandise (zakāt al-tijāra), despite the abundance of support for such a tax within the classical tradition of Islamic law? Rather than contending – as some modern scholars have – that prominent jurists developed loopholes that circumvented the original intent of the law to protect the wealthy and the ruling class, I argue that it was precisely the jurists’ careful defense of exemptions and exclusions that allowed them to define the essence of zakāt against forms of taxation they considered unlawful. By narrowing the scope of zakāt, jurists attempted to achieve a moral aim that went beyond the ritual purification of wealth: a limit on the sultanate’s otherwise arbitrary power to tax Muslims as it wished. In doing so, they alleviated some of the tax burden for spice merchants and camel herders alike.
Over the last four years, India has become the centre for a major experiment in the implementation of a so-called ‘gender-just Islam’ by Islamic feminist organisations: the formation of a non-official, female-led sharī‘ah court network, within which women serve as qāẓīs (religious judges) to adjudicate disputes within Muslim families. Presenting themselves as counterweights to more patriarchal legal bodies, including both the official judiciary and unofficial dispute resolution forums, these sharī‘ah ‘adālats employ both state-centred and community-focused strategies to assist Muslim women experiencing marital or family-related strife. Based on interviews with female qāẓīs and associated documentary sources, I examine how the women who run these courts adjudicate family conflicts according to what they understand as both the Qur’an’s ethical teachings, and its stipulations regarding the proper methods of dispute resolution. I also argue that these all-female sharī‘ah ‘adālats reflect a shift of focus away from court litigation and legislative intervention, and towards non-state, arbitration-focused practices, as the most fruitful means to protect the needs of Muslim women in contemporary India.
Text and Context
Mahmoud M. Dodeen
This study explores Islamic law’s position towards the compensation of natural and juridical persons for moral damage within the scope of contractual liability in view of divergent and unclear legal and judicial opinions in Arab countries. One line of argument makes a distinction in the approach to tort and contractual liability. As a result, courts have been influenced by these opinions. In contrast, other jurists have not taken great pains to reach a different discretion in search of the truth. To enrich this study, to ensure a sound interpretation of the true situation, and in an attempt to draw a closer link between the positions of Islamic law and Latin law, the study provides a comparison between the civil codes of three Arab countries: Palestine, Jordan and Qatar.
Iyad Mohammad Jadalhaq
The regulations concerning gross fraud instituted by the United Arab Emirates (UAE) legislature in the UAE Civil Code are derived from provisions put forward by the Ḥanafī school of law. A general rule was put forward, and exceptions thereto were set. A certain remedy for gross fraud was instituted, namely, giving the defrauded party the right to terminate the contract. This article determines the comprehensiveness and adequacy of the legal texts dealing with the impact of gross fraud on contracts in the UAE Civil Code, the methods by which balance could be achieved between the interests of the contracting parties, and the means of protecting the defrauded contractor. Furthermore, shortcomings and defects in the existing legal texts that require amendment and reform are highlighted. This study concludes that the legislative treatment of the impact of gross fraud on contracts is insufficient, and advances possible recommendations.
Baudouin Dupret, Adil Bouhya, Monika Lindbekk and Ayang Utriza Yakin
In most Muslim-majority countries, the legislators who drafted family law codes sought to produce a codified version of one of the many Islamic fiqh schools. Such is the case, from West to East, for Morocco, Egypt, and Indonesia. There are situations, however, in which the law remains silent. In such cases, judges must turn to fiqh in order to find appropriate provisions. It is up to judges to interpret the law and to locate the relevant rule. In this process, judges use new interpretive techniques and modes of reasoning. After addressing institutional and legal transformations in Morocco, Egypt, and Indonesia, this article focuses on the domain of family law. We examine cases that illustrate how judges seek a solution in the body of fiqh when asked to authenticate a marriage. In conclusion, we put forward an argument about how judges who are required to refer to fiqh deal with this matter within the context of positive, codified, and standardized law. We argue that the methodology and epistemology adopted by contemporary judges, the legal material on which they draw, and the means by which they refer to this material have fundamentally altered the nature of legal cognition and of law itself.
This article deals with the role of the UAE Federal National Council (FNC) as a legislative authority. It explains how it differs from other parliaments around the world in terms of composition and the role it plays as a final authoritative legislative power. The FNC has neither the power to legislate nor the right to control laws, although the Constitution allows it to discuss and comment upon draft laws. However, the FNC’s opinion is not binding on the promulgation of the laws. The President may reject the amendments and promulgate the law after it has been sanctioned by the Supreme Council. The Constitution also gives the Council of Ministers the power to promulgate laws in case of necessity and absence of the FNC. These constitutional texts contradict the internal regulations of the FNC which give this Council the right to amend the legal texts of the draft budget.
Mathieu Tillier and Naïm Vanthieghem
Le présent article propose l’édition de deux papyrus juridiques relatifs à la répudiation, conservés dans la collection Michaelidès de la Bibliothèque universitaire de Cambridge. Le premier, une page de titre datant du milieu du iiie/ixe siècle, suggère que le second, un extrait relatif au serment d’abstinence (īlāʾ), est attribuable au juriste mālikite égyptien Aṣbaġ b. al-Faraǧ (m. 225/840). Cet échantillon, qui pourrait constituer les seules pages survivantes du Samāʿ ou des Nawāzil de cet auteur, fait alterner des citations du Muwaṭṭaʾ de Mālik et l’argumentation d’une autre autorité, peut-être Aṣbaġ lui-même ; il préserve par ailleurs la trace de controverses juridiques tant dans le milieu des savants médinois que dans celui des juristes égyptiens. Ces deux papyrus offrent ainsi un témoignage inédit sur la formation d’un maḏhab mālikite en Égypte et sur la relation dialogique qui s’instaura, dans la première moitié du iiie/ixe siècle, entre les juristes qui se réclamaient du maître médinois.
This article investigates the role of the Ottoman Nizamiye Court of First Instance in conflicts over capital between public revenue agencies and tax farmers in the Syrian district of Homs at the turn of the twentieth century. The court’s records show that it adjudicated these conflicts in exclusive reference to codified law. However, I argue that the court’s formalist adjudication responded to political and economic circumstances defined by the global fiscal crises of the 1870s. In the aftermath of these crises, tax farmers took on new roles underwriting both Ottoman public debt and foreign investment through contracts with public revenue collection agencies like the Public Debt Administration. These agencies employed codified law to garner as much of tax farmers’ profits as possible. Tax farmers used the same law to contest these efforts and leverage their new economic influence to maintain control over regional markets and land. The court’s formalist rulings served the prerogatives of imperial sovereignty and solvency.
Amir Fazlim Yusoff, Azlin Alisa Ahmad and Nik Abdul Rahim Nik Abdul Ghani
International Islamic religious authorities have commented negatively on the application of baiʿ al-ʿīnah (same-item sale-repurchase) in the Malaysian banking industry. These authorities include the Islamic Fiqh Academy of the Organisation of Islamic Cooperation (OIC) and Accounting and the Auditing Organisation for Islamic Financial Institutions (AAOIFI). They conclude that the application represents a prohibited ruse to legitimise usury through a sale transaction. This article examines the possible use of classical tawarruq as an alternative to baiʿ al-ʿīnah in the Malaysian banking industry, especially for retail financing. Several modes of classical tawarruq are considered. This research supports the application of classical tawarruq as an effective, viable and marketable Islamic financing arrangement.
The International Maritime Organisation (IMO) is part of the UN entities. IMO Conventions focus on the human and technical aspects of shipping, including safety. Kuwait has ratified not only key IMO Conventions, but also other widely covered conventions in the fields of safety of life at sea, safe navigation, prevention of marine pollution, and third-party liability and compensation for maritime claims. This article is an attempt to address briefly the ratified conventions and their implementation (or effectiveness) under Kuwaiti law. Matters such as whether it is essential to incorporate new IMO Conventions and their amendments into Kuwaiti law will be considered.
Mohammad H. Bashayreh
This article examines how non-codified Sharīʿah governing Islamic banking and finance agreements should be applied to ensure certainty and predictability of the applicable rulings. The significance of this topic stems from the fact that the multiplicity of schools of Islamic law or fiqh has given rise to concerns about the certainty of the applicable rules. Here we set out these concerns through the lens of English courts and argue that non-codified Sharīʿah has the status of a law in Jordan regulating Islamic banking and finance agreements. It overrides legislation and excludes Statute Law that could invalidate agreements acceptable in Sharīʿah. Further, the concepts of maṣlahah and istiḥsān are explained as bases for the selection of applicable Sharīʿah rulings. This approach ensures certainty and is better than codifying rigid rules from Sharīʿah that could impede the development of Islamic banking and finance.
Hasan Falah and Amjad Hassan
Recognising the potential abundance of revenue and penetration of intellectual property as protected in various forms (copyrights, trademarks, patents, industrial designs, technical expertise, and trade secrets), into every aspect of society, states have endeavoured to regulate and protect these rights through national legislation and international agreements that emphasise the need to organise and protect these tax rights to support cooperation and integration among countries, as well as resolving international disputes on double taxation and combating tax evasion. This Article examines existing intellectual property legislation in Palestine, Jordan, and Egypt. Legislations in these three countries have agreed to subject to tax intellectual property revenues and activities, recognising them as one of the most important sources of state income. However, Palestinian legislation has not been clear in setting laws to deal with intellectual property revenues, contrary to counterparties in Egypt and Jordan.
Ahmed Mansoor Alkhan and Mohammad Kabir Hassan
The debate about tawarruq (monetisation) has been ongoing, especially with regard to the permissibility of organised tawarruq. The majority of contemporary Sharīʿah scholars, including the Organization of Islamic Cooperation in 2009, ruled that organised tawarruq is impermissible according to Sharīʿah (Islamic law). Nevertheless, organised tawarruq remains a widely-used product in the international Islamic banking industry. Having reviewed the literature and reasons pertaining to the prohibition of organised tawarruq, this research article argues that the prohibition ruling may have been based on certain wrongful practices that existed in the industry, rather than on evidence provided from the Sharīʿah. This research includes empirical work that qualitatively analyses organised tawarruq transactions executed by three Islamic banks in the Kingdom of Bahrain. Using empirical data and analysis provided, this article suggests that the general practice of organised tawarruq might be permissible according to Sharīʿah.
Despite being promulgated in 2014 by the Gulf Cooperation Council (GCC), the Gulf Declaration of Human Rights (GDHR) has received little academic attention. Khalifa Alfadhel is one scholar who has sought to engage with the declaration, citing it as a significant regional document worthy of commendation due to its reconciliation of both Islamic and international notions of human rights, a feat other comparable regional human rights documents have yet to achieve. Furthermore, Alfadhel praises the GDHR as it embodies the GCC’s commitment to human rights and political reform, with the GDHR supplying the foundation for a regional customary law regime. This article questions such claims, arguing that Alfadhel has overlooked unambiguous flaws that contradict the GDHR’s alleged regional promotion of human rights, ultimately undermining its supposed significance. Certainly, this article highlights how the GDHR is a rhetorical document that intrinsically negates the same rights it purports to protect.
Ahmed A. Altawyan
As international efforts mount to combat corruption, whistleblower protections have become increasingly important. As a G20 nation, the Kingdom of Saudi Arabia has made commitments to reinforce the rules relating to such communication. However, the lack of comprehensive laws has become an obstacle. This study examines the current whistleblowing laws and offers suggestions through which Saudi Arabia can achieve its goals for Saudi Vision 2030. To attract foreign investments and businesses, the Saudi Kingdom will need to prove that there are mechanisms in place to prevent instances of corruption. As there are already relevant examples provided by other nations, Saudi legislative bodies should be able to look to these examples to develop valid countermeasures to corruption.
The Ottoman Empire and Its Tribute-Payers from the North of the Danube. Second Revised Edition
Andrew Dahdal and Francis Botchway
The Qatar International Court is a new breed of judicial tribunal inspired by the English Commercial Court based in London. It provides a dispute resolution forum specifically tailored to civil, commercial and administrative disputes arising within the framework of Qatar Financial Centre. Over the past decade, the Court has grown in prominence both locally and globally. It is one of a number of similar judicial bodies that have recently been established in jurisdictions from Singapore to Kazakhstan. This article examines the experience of the Qatar International Court and is offered as a contribution to the broader literature and comparative research being conducted on the growth of these new international commercial tribunals.
Lourna El-Deeb and Ahmed Labeeb
The Trade-Related Investment Measures (TRIMs) Agreement aims to balance the interests of developed countries seeking to protect their investments as well as developing countries trying to attract more foreign investments to finance national projects. This article assesses the TRIMs Agreement and the compatibility of Egyptian economic legislation, especially the provisions of the Investment Law No. 72/2017, alongside the impact of this agreement on the Egyptian economy. We conclude that Egyptian legislation as a whole is in line with the TRIMs Agreement, with the exception of some provisions enacted under exceptional circumstances in Egypt since January 2011. As a result of these circumstances, it is impossible accurately to assess the extent to which the Egyptian economy was affected by the implementation of TRIMs during the current period, since the policies adopted by the Government of Egypt have succeeded in increasing the volume of foreign direct investment to Egypt.
Throughout history, many women have lived in slave-like conditions and have suffered oppression, coercion and disrespect, as well as being deprived of their social, political, and essential natural rights. Therefore, the aim of this research is to focus on the role of international legislation in combating the crime of trafficking in women and in reducing its effects. This article first examines multiple forms of trafficking in women and how this heinous crime is facilitated. Thereafter solutions to the crime of trafficking in women are covered under international law, narrowing its focus to Lebanese legislation and its compatibility with international legislation. Organisations working in this regard in Lebanon are examined, alongside the most important cases of trafficking in women in this country.
Iyad Mohammad Jadalhaq and Ibrahim Sulaiman al-Qatawnah
This article reviews the legal regime for the protection of minors in the UAE. First, the rights of minors protected under threat of criminal sanctions, as enshrined in the UAE Children Rights Law 2016, is addressed. Subsequently, the protection of minors in civil legislation, especially with regard to financial transactions, is considered by examining the legal effects of acts performed by minors themselves or by agents on their behalf. The legal authority of a minor’s agent to act on his/her behalf is outlined and the consequences of acts performed by the minor or his/her agent beyond legal limits is presented. Finally, the role of the Social Care and Minors Affairs Foundation (SCMAF) is considered when caring for minors and protecting their property. The article concludes with an assessment of the legal regime for the protection of minors, especially in connection with financial transactions, evaluates the guarantees and safeguards included therein, and issues some additional recommendations.
Gianluca P. Parolin
This article investigates how ratification and implementation of international treaties are regulated in GCC Constitutions and how these regulations currently operate. First, it considers the models of internal/international law relations that Gulf Cooperation Council (GCC) Constitutions espouse. Second, it then reviews ratification procedures and practices. Finally, it examines alternative options to guarantee implementation. Shifting the focus away from conventional court implementation mechanisms, the article argues that internal accountability mechanisms of executives might guarantee a more effective enforcement of international treaties in the GCC Member States.
Ibrahim Suleiman Zamel
The UAE federal legislator is keen to protect the environment and its development by amending the Federal Environmental Protection and Development Law No. 24 of 1999, which provides for the penal protection of public health by criminalising any act that damages the quality of water, air and land, or generates excessive noise or mismanages the disposal of hazardous substances and medical wastes. The UAE Federal Law imposes penalties for all such violations, however without achieving the purpose of deterrence or punishment.
Edited by Norbert Oberauer, Yvonne Prief and Ulrike Qubaja
Emphasising an empirical research to contemporary legal pluralist settings in Muslim contexts, the present collected volume contributes to a deepened understanding of legal pluralist issues and realities through comparative examination. This approach reveals some common features, such as the relevance of Islamic law in power struggles and in the construction of (state or national) identities, strategies of coping with coexisting sets of legal norms by the respective agents, or public debates about the risks induced by the recognition of religious institutions in migrant societies. At the same time, the studies contained in this volume reveal that legal pluralist settings often reflect very specific historical and social constellations, which demands caution towards any generalisation.
The volume is based on papers presented at a conference in Münster (Germany) in 2016 and comprises contributions by Judith Koschorke, Karen Meerschaut, Yvonne Prief, Ulrike Qubaja, Werner de Saeger, Ido Shahar, Katrin Seidel, Konstantinos Tsitselikis, Vishal Vora and Ihsan Yilmaz.
The Problem of Slavery in Islamic Law and Muslim Cultures
Bernard K. Freamon
Islam in National and International Context
Edited by Kathryn O'Sullivan
While frequently hailed as the sole success story of the Arab Uprisings, the consolidation of Tunisia’s Jasmine Revolution has in fact proven deeply problematic. This paper will argue that the frailty of Tunisia’s democratic present is a direct function of liberal democratization, specifically implicating this practice of democratization in the hollowing and cartelization of the political system. In insulating policymaking within a host of nocturnal councils, I will argue that liberal democratization has purposefully obstructed the translation of popular preferences into policy outcomes, thereby preventing the Tunisian people from realizing the social democracy they so clearly desire.
Rethinking Authoritarian Repression Strategies in Light of Ben Ali’s Tunisia
In Tunisia under Ben Ali (1987–2011), marked human rights rhetoric coincided with intense repression. This points to a more general puzzle: what happens when authoritarian regimes uphold their repressive power maintenance agendas while simultaneously trying to avoid negative international consequences?
This article argues that authoritarian decision-makers attempt to evade negative consequences from international audiences by applying cushioning strategies in the form of obfuscation, rhetorical justification and/or procedural justification. In that way, they adapt their repressive tactics and manipulate the visibility and perception of their repressive behavior. Ben Ali’s main strategy was to obfuscate, i.e. to deny and cover repression.
However, as international audiences are far from applying the same yardstick to all human rights violations, ruling elites often repress targets differently depending on whether audiences have links and sympathy. Again, this becomes apparent in the Tunisian case study, from which hypotheses are generated for future research.
This article conceptualizes the Lebanese sectarian power-sharing system as a resilient system. Utilizing the case of the Lebanese government’s response to the Syrian refugee crisis, the article unpacks this notion of resilience through two mechanisms of learning and adaptation. The article contributes to the literature on power-sharing by focusing on policy-making during political deadlock and crisis. Anchored in empirical evidence, this article explains how the Lebanese government exhibited learning and adaptation by facilitating the efforts of donors, municipalities and ngos to respond to the evolving refugee crisis. In doing so, the deadlock that prevailed during that time-frame did not translate into policy inaction. While not considering that the Lebanese response was a rights-based approach to addressing the crisis, the article contends that mechanisms of learning and adaptation help reveal some form of response to this crisis. Understanding this response can help in future theorizing about the continuity of power-sharing systems.
Israel’s State-Run Ritual Baths and the Rights of Women
Nahshon Perez and Elisheva Rosman-Stollman
Ritual immersion in Israel has become a major point of contention between Israeli-Jewish women and the state-funded Chief Rabbinate of Israel. In order to conduct a religious household, Orthodox Jewish women are required to immerse in a ritual bath (mikveh) approximately once a month. However, in Israel, these are strictly regulated and managed by the Chief Rabbinate, which habitually interferes with women’s autonomy when immersing. The article presents the case, then moves to discuss two models of religion-state relations: privatization and evenhandedness (roughly the modern version of nonpreferentialism), as two democratic models that can be adopted by the state in order to properly manage religious services, ritual baths included. The discussion also delineates the general lessons that can be learned from this contextual exploration, pointing to the advantages of the privatization model, and to the complexities involved in any evenhanded approach beyond the specific case at hand.
This paper analyzes the cultural constraints imposed in the Russian legal system by the prevailing social philosophy, which is characterized by a significant degree of religious conservatism and communitarianism. This conservatism is predictably opposed to sexual minorities and to those who want to defend or justify them. The author concludes that this philosophy strongly affects decision-making in Russian courts, and can sometimes overrule the provisions of the Russian Constitution and the laws that formally grant protection to sexual minorities. In turn, this conservative social philosophy and communitarian morality are based on religious patterns that are still shaping the mindsets and attitudes of Russians. These attitudes cannot be ignored by judges and other actors in the Russian legal system, who to some extent are subject to the general perception of what is just, acceptable, and reasonable in society, and are factually bound by this perception.
Anicée Van Engeland
According to some interpretations of Islam supported by gender activists, the veil can be perceived as a passport that enables women to participate in public affairs. This argument has been overlooked by the courts, including the European Court of Human Rights. The latter has adopted a discourse that considers the veil to be a threat to public order and gender equality, and more recently, an obstacle to social cohesion. By doing so, the Court has excluded veiled European Muslim women from the public sphere. The Court has justified curbing freedom of religion by granting states a wide margin of appreciation on the basis of the concept of “living together.” I argue that the Court needs to take the “passport veil” into account to be consistent with its argument on living together. A shift of approach and discourse would constitute a new way of understanding integration through the veil.
Suhaib Walid Sharaiyra and Maher Haswa
This article aims to discuss the effect of motive of organised tawarruq parties on its permissibility and to shed light on the importance of considering the overall objectives and goals of Sharīʿah when conducting transactions. An analytical and deductive approach is used to examine the reality of organised tawarruq (al-tawarruq al-munaẓẓam) and the motive behind it as well as the validity of reference to and conception of the texts used in support thereof. The discussion concludes the presence of misinterpretations of the Sharīʿah texts referred to in support of organised tawarruq, as well as obvious overlooking of the motives behind it, which should have led to the exclusion of organised tawarruq from the permissible modes of Islamic finance. This article provides a comprehensive view of organised tawarruq, in terms of its motive, form and substance, in order to assist in reviewing the capability of its use as a financing tool.
The UAE launched its National Vision 2021 in 2010, which ‘sets the key themes for the socio-economic development of the UAE’ and calls for ‘a shift to a diversified and knowledge-based economy’. It focuses on the UAE becoming the economic and commercial capital for more than two billion people by transitioning to a knowledge-based economy. The success of the vision requires the State to join the United National Convention of Trade in Goods, which is the most important convention in this field. Until now, the national lawmaker has refrained from joining the Convention, believing that the Convention prevails to the interests of the seller party. As fundamental breach is a momentous concept of the terms of the Convention, this article will attempt to draw similarities and distinctions between national law and the United Nations Convention for the International Sales of Goods (CISG) in terms of the principle of fundamental breach.
Jonathan George Ercanbrack
Islamic financial law (IFL), an emerging global legal order, is a highly fragmented law comprised of both state and non-state generated laws, standards, commercial practices, institutions, fatwās and legal ideas. A recent event involving ṣukūk issuance in which Dana Gas claimed that its ṣukūk were no longer Sharīʿah-compliant highlights the legal disjuncture between global IFL and the laws of municipal legal systems, which have chosen to facilitate and regulate Islamic finance. Systemic legal issues or ‘legal gaps’ undermine investor confidence and impede sustainable development of the Islamic finance industry. Legal gaps include but are not limited to undeveloped securities laws, enforceability issues and a lack of clarity with respect to the role and effect of the Sharīʿah in the municipal legal systems of many MENA (Middle East/North Africa) states. This paper analyses these gaps and in so doing illustrates the relationship of IFL to the law of the United Arab Emirates.
Ahmed Mohammad Al-Hawamdeh and Ahmad Abed Alla Alhusban
Before its amendment in 2018, Article 51 of the Jordanian Arbitration Law stated that: ‘if the court nullifies the award, consequently it would render the arbitration agreement nullified’. The newly amendment Article 51 of the Jordanian Arbitration Law reads: ‘If the Court of Cassation […] nullifies the award that should not result in nullifying the arbitration clause unless the arbitration agreement is itself void’. Here we argue that the new amendment was long due as the previous Article unduly intruded on parties’ autonomy. This article was originally submitted before the 2018 amendment of the law and the exact wording of what the article originally suggested was adopted by the new law.
Challenging Structural Discrimination in Alberta v. Hutterite Brethren of Wilson Colony
The decision in Alberta and Hutterite Brethren of Wilson Colony refocused attention on the role played by the final limb of the Oakes test when considering the proportionality of the limitation of a Charter right. This article seeks to re-examine this decision and challenge the structural discrimination it created by requiring minorities whose belief gives a religious value to a facially utilitarian practice which may not be apparent when considered from a secular perspective. In particular it examines the potential benefits of allowing a liberal perspective of group rights to inform the weight courts’ give to the detriment faced by a community and argues that this revised approach to balancing would result in outcomes more reflective of the values codified in the Charter.
Toward a Multi-Confessional System
The Argentinian Constitution of 1853 established a religious policy based on two main principles: freedom of religion and the privileged status of the Catholic Church. In 1966, an agreement with the Catholic Church eliminated the power of the government to interfere in ecclesiastical matters, but maintained the privileged status of Catholicism. Today, the religious configuration of Argentinian society differs greatly from that of the 19th century. Amidst increasing religious diversity, some legal changes point to the transformation of the Argentinian regime from a nearly confessional state into a multi-confessional, yet not an egalitarian one.
Article 20(2) of the un’s International Covenant on Civil and Political Rights (iccpr) is an odd human rights clause. It provides that “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” Accordingly, this provision does not appear to codify a fundamental right but rather a sui generis state obligation. The present article aims at providing a legal taxonomy of this international incitement clause, ultimately also answering the question as to whether, despite its unique formulation as speech prohibition, it contains a justiciable right to protection from incitement.
Zachary R. Calo
This article compares the law and religion jurisprudence of the us Supreme Court and the European Court of Human Rights across three legal areas: religious symbols and religion-state relations, individual religious freedom, and institutional religious freedom or freedom of the church. Particular focus is given to the manner in which this jurisprudence reveals the underlying structure and meaning of the secular. Although there continues to be significant jurisprudential diversity between these two courts and across these legal areas, there is also emerging a shared accounting of religion, secularity, and moral order in the late modern West.
Assessing the Role of Religion and Legal Pluralism at Four un Human Rights Committees
International human rights law (ihrl) has traditionally enjoyed an uneasy relationship with customary, religious, and indigenous forms of law. International courts and tribunals have considered these non-state forms of law to represent both structural and material challenges to the implementation of human rights norms at the domestic level. Over the course of the last decades, however, the theory and practice of human rights has increasingly started recognizing and accommodating multiple legal orders. This article traces the gradually increasing accommodation of legal pluralism in ihrl in the monitoring practice of four un human rights committees over a period of 20 years, looking in particular at the increasing recognition of religious forms of legality across the committees.
Constitution Does (not) Matter
This article focuses on state-church relations and on the peculiar implementation of the “idea of secularism” in Italy. First, it explores the formal provisions of the 1848 Constitution. Next, it investigates constitutional provisions that came into force in 1948. Finally, it examines how the actors of the living constitution (legislators, the government, judges, and the Constitutional Court in particular) tried to balance and develop the potentially conflicting principles included in the 1948 Constitution in the area of religious freedom, equality, and state-church relations. The article explores three particularly controversial examples: the teaching of religion in state schools; the display of the crucifix in classrooms; and state funding mechanisms of religious denominations. The main claim of the article is that, with regard to the regulation of religion in Italy, the transformation of the constitutional position of religion did not occur within the formal constitution, but in the “living constitution.”
Arif A. Jamal and Jaclyn L. Neo
This essay introduces the Special Issue of the Journal. It discusses how changing religious demographics and heightened religious plurality are challenging existing thinking about, and patterns of, state-religion relations and the nature of the ‘secular state’. The essay briefly surveys each of the papers in the Special Issue and highlights that one of the key lessons that emerges from the papers is the importance of context. As the contexts evolve, fresh thinking and new arrangements would be needed.
Beyond the End of the European Universal Dream
The article provides data that attest to the severity of the European demographic, economic, and political decline, and considers one of its manifestations, the capacity of the secular state to cope with the transformations of the European religious landscape. The secular state has been a European invention, and the decline of Europe has inevitable repercussions for its vitality, in Europe and beyond. In Europe, the weakness of the secular state has been revealed by the diversification of the European religious landscape. A declining Europe is less and less capable of managing diversity using the tools provided by the secular state. Analysis of the different models of secular states implemented in Europe is followed by a reexamination of the issue of the decline of Europe, and of its effect on the reforms that are required to adapt the secular state to the new conditions.
Edited by Ignacio de la Rasilla del Moral and Ayesha Shahid
Legal Theory, Codification, and Local Practice
With Special Reference to the Reign of Murad Giray (1678-1683)
Legal Fluidity in Theory, History and Practice
Edited by Sohaira Siddiqui
Contributors are Khaled Abou El Fadl, Asma Afsaruddin Ahmad Ahmad, Sarah Albrecht, Ovamir Anjum, Dale Correa, Robert Gleave, Sohail Hanif, Rami Koujah, Marion Katz, Asifa Quraishi-Landes, David Warren and Salman Younas.
Edited by John Bowen and Arskal Salim
Yehya Ikram Ibrahim Badr
This article analyses the choice of law issues associated with setting aside an arbitral award under the Egyptian Arbitration Code (the Code), the challenges posed by applying the Code to arbitration conducted outside Egypt, and the lack of a clear criterion to define the Code’s scope of application. Choice of law issues – such as the law governing the parties’ capacity, the law governing the agreement to arbitrate and the applicable curial – are not addressed by defined choice of law rules. Under Egyptian law, there are several conflicting choices of rules. Finally, the article focuses on the Egyptian courts’ tendency to apply Egyptian law extraterritorially, either to protect Egyptian public policy or to apply Egyptian mandatory rules to determine the procedural validity of the arbitral award and the arbitration proceedings in general.
Ahmed Samir Hassanein
The Qatari legislator has adopted a penal code that encompasses rules derived from a divine source and also deals with several other crimes common in positive penal laws. Whoever reads the Qatari Penal Code will notice the significant influence that Islamic criminal rules have had on that law. Its inaugural article unequivocally provides that rules of Islamic law (shariah) shall apply to all crimes of hudud, qisas and diya if a special condition is met. In all other cases, however, shariah rules still permeate the entire code through the proscription of acts derived from shariah law. This article thus aims to present a concise overview of the contemporary Qatari experience in adopting rules derived from Islamic criminal law into its penal code, for the purpose of highlighting its points of strength, as well as identifying points of weakness to overcome.
This article examines Oman’s Commercial Code’s preventive composition scheme with creditors. Various conditions that a trader needs to meet in order to apply for preventive composition are highlighted. Then, the issues of management displacement, of staying creditors’ actions during the proceedings and of cramming-down dissenting creditors are examined. The article concludes by demonstrating that the preventive composition scheme in Oman is far from being a rescue scheme.
Rafidah Mohamad Cusairi and Mahdi Zahraa
The unavailability of civil courts to hear cases relating to Muslim family law and other related matters persuaded community leaders and religious scholars in the United Kingdom to establish several Sharīʿah councils. This article explores the role played by these councils in resolving matrimonial disputes, especially the process and procedure of issuing an Islamic divorce. Library and empirical research methods were employed. Three main