RELIGIOUS LEGAL SYSTEMS IN COMPARATIVE LAW (PART 2)

A Guide to Introductory Research

By Marylin Johnson Raisch

Islamic Law

Essential Facts

According to the excellent outline provided by Irshad Abdal-Haqq in Islamic Law: An Overview of Its Origin and Elements, 7 J. Islamic L. & Culture 27 (2002) ( Reprinted with author’s permission in the same journal from its first appearance in 1996), Islamic law might refer to all the law and jurisprudence of Islam and includes

(1) the primary sources of law (Shari’ah)

      Shari’ah has two main sources:

  • the Qur’an and
  • the Sunnah (traditions of Muhammad ibn Abdullah, the last prophet of Islam), which means
  • the things he said, i.e. hadith,
  • the way he lived his life,  his conduct

(2) the subordinate sources of law and the methods used to discover and apply the law (Islamic jurisprudence or fiqh), described by Mr. Abdal-Haqq as follows:

“While the principles and injunctions of the Shari’ah are infallible and not subject to amendment, fiqh-based standards may change according to the circumstances.

Four methods, often called sources of law by Muslim writers, for deducing and establishing fiqh-based law are universally recognized by Islamic jurists.

  • the extraction of Qur’anic injunctions and principles based on interpretations of it;
  • the application of the principles reflected through the Hadith of Prophet Muhammad;
  • the consensus of opinion from among the companions of Muhammad or the learned scholars (ijma);
  • analogical deduction (qiyas).

Nineteen schools of fiqh (fiqh madhhabs) developed during the first four centuries of Islam. By the fall of Baghdad (in 1258 C.E. to the Mongols, that is- not to be confused with modern events) the number of major madhhabs had dwindled to five (four sunni and one shia). At present, the four major schools of fiqh among the sunni Muslims are: (1) Hanafi, (2) Maliki, (3) Shafi’i, and (4) Hanbali. Among the shia, the Jafari school predominates.” Abdal-Haqq, Islamic Law supra at 36

Judges also use individual judgment and reasoning, known as ijtihad (can include reasoning from analogy), but greatly varying over time. His excellent article goes on to distinguish each school or madhab by the relative importance each attaches to the authority of sources of law in on pages 67-75.

Finally, author Abdal-Haqq observes at pages 68-69

“Currently, Saudi Arabia, Sudan, and Iran stand alone as those countries that fully recognize the Shari’ah as the official law of the land. Qatar, the two Yemens, Kuwait and Bahrain also acknowledge Shari’ah principles but to a lesser degree. All other legal systems in the Muslim world are hybrids of Islamic and European law.”

On the same subject of the lack of “pure” Islamic law today, note the article below by Professor Lama Abu-Odeh, The Politics Of (Mis)Recognition: Islamic Law Pedagogy In American Academia, 52 Am. J. Comp. L. 789 (2004) and see below in this guide under Implementation of religious law in several jurisdictions.

Basic Sources and their descriptions:

Internet

  • Finding the Law: Islamic Law (Shari’a), 2002, Andrew Grossman, LLRX
  • Islamic Family Law, linked from Law and Religion program, Emory University School of Law
  • Center of Islamic and Middle Eastern Law, SOAS, U of London, with reading lists and links  for study of Islamic law
  • Harvard Islamic Legal Studies Program – publications of the Harvard Series in Islamic Law;  projects in Afghan legal history and Islamic finance. Note especially the project for a new Islamic legal history, the Siyasa Project and Occasional Publications, http://www.law.harvard.edu/programs/ilsp/research/hurvitz.pdf
  • British Academy Portal and links for religion
  • USC-MSA Compendium of Muslim Texts
  • Medieval Sourcebook, Islamic law re its medieval legal history, via Fordham University
  • Qur’an at Internet Sacred Text Archive, and Hadith (older translations)
  • List of Islamic countries on World Legal Information Institute pages
  • Muslim and mixed jurisdictions, World Legal systems, University of Ottawa
  • Electronic version of Koran, translated by M.H. Shakir and published by Tahrike Tarsile Qur’an, Inc., in 1983
  • Qu-ran translation with some text images.
  • Al-Islam.org, Ahlul Bayt Digital Islamic Library Project.
  • U.K. Centre for Legal Education, Developing resources on Islamic law: bibliography and other useful information, project leader, Shaheen Sardar Ali (for the full list, click links to the right of the page).

Books

  • Dien, Mawil Izzi. Islamic law: from historical foundations to contemporary practice. Edinburgh : Edinburgh University Press, 2004.
  • Feldman, Noah. The fall and rise of the Islamic state. Princeton: Princeton University Press, 2008.
  • Hallaq, Wael B. The origins and evolution of Islamic law. Cambridge ; New York : Cambridge University Press, 2005.
  • Johansen, Baber. Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh. Boston: Brill, 1999.
  • Juynboll, G.H.A.  Encyclopedia of Canonical Hadith. Leiden; Boston: Brill, 2007.
  • Schacht, Joseph. Introduction to Islamic Law. Oxford: Clarendon, 1964.
  • Yilmaz, Ihsan.  Muslim laws, politics, and society in modern nation states : dynamic legal pluralisms in England, Turkey, and Pakistan. Aldershot, Hants, England; Burlington, VT: Ashgate Pub., 2005.

Articles and Journals

Islamic Law in general

  • Abdal-Haqq, Irshad. Islamic Law: An Overview Of Its Origin And Elements, 1 J. Islamic L. 1 (1996) (Reprinted in 7 J. Islamic L. & Culture 27 (2002)).
  • Lombardi, Clark Benner, Islamic Law as A Source Of Constitutional Law In Egypt: The Constitutionalization Of The Sharia In A Modern Arab State, 37 Colum. J. Transnat’l L. 81 (1998).
  • An-Na’im, Abdullahi Ahmed, The Foundations Of Law: Globalization And Jurisprudence: An Islamic Law Perspective, 54 Emory L.J. 25 (2005).
  • El Fadl, Khaled Abou, Islam And The Challenge Of Democratic Commitment, 27 Fordham Int’l L.J. 4 (2003).
  • Emon, Anver M., On Democracy As A Shar’i Moral Presumption: Response To Khaled Abou El Fadl, 27 Fordham Int’l L.J. 72 (2003).
  • Jensen, Erik G.  Confronting Misconceptions And Acknowledging Imperfections: A Response To Khaled Abou El Fadl’s “Islam And Democracy,” 27 Fordham Int’l L.J. 81 (2003).
  • Lucas, Scott C.  Where are the Legal Hadith? A study of the Musannaf of Ibn Abi Shayba, 15 Islamic Law and Society 283 (2008).
  • Stahnke, Tad and Blitt, Robert C. The Religion-State Relationship and the Right to Freedom of Religion or Belief: A Comparative Textual Analysis of the Constitutions of Predominantly Muslim Countries. 36 Georgetown J. Int’l L. 947 (2005).
  • Saifee, Seema. Penumbras, Privacy, And The Death Of Morals-Based Legislation: Comparing U.S. Constitutional Law With The Inherent Right Of Privacy In Islamic Jurisprudence, 27 Fordham Int’l L.J. 370 (2003).
  • Stilt, Kristen A. Islamic Law And The Making And Remaking Of The Iraqi Legal System, 36 Geo. Wash. Int’l L. Rev. 695 (2004).
  • Bose, Amitabha. Do All Roads Lead To Islamic Radicalism? A Comparison Of Islamic Laws In India And Nigeria, 32 Ga. J. Int’l & Comp. L. 779 (2004).
  • Ahmad, Ali. The Role Of Islamic Law In The Contemporary World Order, 6 J. Islamic L. & Culture 157 (2001)
  • Melchert, Christopher. Islamic Law, 23 Okla. City U.L. Rev. 901 (1998).
  • Bassiouni, M. Cherif & Gamal M. Badr. The Shari’ah: Sources, Interpretation, And Rule-Making, 1 UCLA J. Islamic & Near E.L. 135 (2002).

Topical

Family Law

  • Chaudhry, Zainab, The Myth Of Misogyny: A Reanalysis Of Women’s Inheritance In Islamic Law, 61 Alb. L. Rev. 511, 555 (1997).
  • Khaliq, Urfan, Beyond The Veil?: An Analysis Of The Provisions Of The Women’s Convention In The Law As Stipulated In Shari’ah, 2 Buff. J. Int’l L. 1 (1995).
  • Berger, Maurits S. Conflicts Law And Public Policy In Egyptian Family Law: Islamic Law Through The Backdoor, 50 Am. J. Comp. L. 555 (2002).
  • Radford, Mary F., The Inheritance Rights Of Women Under Jewish And Islamic Law, 23 B.C. Int’l & Comp. L. Rev. 135 (2000).
  • Saiman, Chaim, Legal Theology: The Turn to Conceptualism in Nineteenth Century Jewish Law, 21 J. L. & Religion 39 (2005-2006).
  • Coggins, William A., Succession in Traditional Islamic Law, 60 J. Mo. B. 180 (2004).
  • Abu-Odeh, Lama, Modernizing Muslim Family Law: The Case Of Egypt, 37 Vand. J. Transnat’l L. 1043 (2004)
  • Wing, Adrien Katherine, Custom, Religion, And Rights: The Future Legal Status Of Palestinian Women, 35 Harv. Int’l L.J. 149 (1994).
  • Cherry, Kristen, Marriage And Divorce Law In Pakistan And Iran: The Problem Of Recognition, 9 Tulsa J. Comp. & Int’l L. 319 (2001).

Commercial Law

  • Moghul, Umar F., & Arshad A. Ahmed, Contractual Forms In Islamic Finance Law And Islamic Inv. Co. Of The Gulf (Bahamas) Ltd. V. Symphony Gems N.V. & Ors.: A First Impression Of Islamic Finance, 27 Fordham Int’l L.J. 150 (2003).
  • El-Gamal, Mahmoud A., “Interest” And The Paradox Of Contemporary Islamic Law And Finance, 27 Fordham Int’l L.J. 108 (2003).
  • Twibell, T. S., Implementation Of The United Nations Convention On Contracts For The International Sale Of Goods (Cisg) Under Shari’a (Islamic Law): Will Article 78 Of The CISG Be Enforced When The Forum Is In An Islamic State?, 9 Int’l Legal Persp. 25 (1997).
  • Akaddaf, Fatima, Application Of The United Nations Convention On Contracts For The International Sale Of Goods (Cisg) To Arab Islamic Countries: Is the CISG Compatible With Islamic Law Principles?, 13 Pace Int’l L. Rev. 1 (2001).
  • McMillen, Michael J.T., Islamic Shari’ah-Compliant Project Finance: Collateral Security And Financing Structure Case Studies, 24 Fordham Int’l L.J. 1184 (2001).
  • Taylor, J. Michael, Islamic Banking – The Feasibility Of Establishing An Islamic Bank In The United States, 40 Am. Bus. L.J. 385 (2003).
  • Mallat, Chibli, Commercial Law in the Middle East: Between Classical Transactions And Modern Business, 48 Am. J. Comp. L. 81 (2000).
  • Carroll, John, Intellectual Property Rights In The Middle East: A Cultural Perspective, 11 Fordham Intell. Prop. Media & Ent. L.J. 555 (2001).
  • Abdal-Haqq, Irshad, A Model Of Islamic Banking And Finance In The West: Islamiq, 6 J. Islamic L. & Culture 101 (2001)
  • Islamic Finance

Euromoney: according to their web site, they will soon be available electronically.

  • Harvard Islamic Finance Project, Islamic Legal Studies Program, Harvard Law School: publications listed and linked at http://www.law.harvard.edu/programs/ilsp/publications/finance.php

Comparative Law

  • Abu-Odeh, Lama, The Politics Of (Mis)Recognition: Islamic Law Pedagogy In American Academia, 52 Am. J. Comp. L. 789 (2004).
  • Special Issue 2002 Australian Journal of Asian Law (Leichhardt, NSW : Federation Press) devoted to “Islamic Law in South-east Asia.”
  • Harvard Series in Islamic Law is published by Harvard University Press and includes comparative titles, http://www.law.harvard.edu/programs/ilsp/publications/series.php

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