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Locating the Sharīʿa

Legal Fluidity in Theory, History and Practice

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Edited by Sohaira Siddiqui

The study of the sharīʿa has enjoyed a renaissance in the last two decades and it will continue to attract interdisciplinary attention given the ongoing social, political and religious developments throughout the Muslim world. With such a variety of debates, and a corresponding multitude of theoretical methods, students and non-scholars are often overwhelmed by the complexity of the field. Even experts will often need to consult multiple sources to understand these new voices and provide accessible answers to specialist and non-specialist audiences alike. This volume is intended for both the novice and expert as a companion to understanding the evolution of the field of Islamic law, the current work that is shaping this field, and the new directions the sharīʿa will take in the twenty-first/fifteenth century.

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.

Series:

Volume-editor Sohaira Z.M. Siddiqui

Sohaira Z.M. Siddiqui

Utilizing the codification of Islamic Criminal law in the Maldives, this article argues that the process of codifying Islamic law often ignores classical conceptualizations of Islamic criminal law and judicial procedures established as preventative measures against the widespread implementation of Islamic criminal punishments (ḥudūd). Instead of recognizing the legal nuance in classical debates, reliance is placed on a narrow body of texts, and extracted rules are reformed for easy implementation and compliance with modern human rights standards. By ignoring classical discussions of Islamic criminal law, and adopting a singular conception of codification, a paradox emerges wherein the resulting criminal code is less punitive, but more enforceable than its classical counterpart. A second paradox is that on one hand religious legitimacy and moral credibility is desired through the implementation of an Islamic penal code, but on the other, controversial criminalized actions are assumed to be non-prosecutable.

Sohaira Siddiqui

Abstract

In 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.