Book review: The Beginnings of Islamic Law: Late Antique Islamicate Legal Traditions

2017 ◽  
Vol 13 (3) ◽  
pp. 493-495
Author(s):  
Christopher Tomlins
Keyword(s):  
Islamic Law ◽  
Late Antique ◽  
Legal Traditions

Maxims

2019 ◽  
pp. 654-669
Author(s):  
Donald R. Davis
Keyword(s):  
Islamic Law ◽  
Legal Interpretation ◽  
Legal Practice ◽  
Moral Foundation ◽  
Legal Principles ◽  
Legal Traditions ◽  
The World ◽  
The Law

This chapter examines the history and use of maxims in legal traditions from several areas of the world. A comparison of legal maxims in Roman, Hindu, Jewish, and Islamic law shows that maxims function both as a basic tools for legal interpretation and as distillations of substantive legal principles applicable to many cases. Maxims are characterized by their unquestionable character, even though it is often easy to demonstrate contradictions between them. As a result, legal maxims seem linked to the recurrent desire for law to have a moral foundation. Although maxims have lost their purchase in most contemporary jurisprudence and legal practice, categories such as “canons of construction,” “legal principles,” and “super precedents” all show similarities to the brief and limited collections of maxims in older legal traditions. The search for core ideas underlying the law thus continues under different names.

A STEP TOO FAR? THE JOURNEY FROM “BIOLOGICAL” TO “SOCIETAL” FILIATION IN THE CHILD'S RIGHT TO NAME AND IDENTITY IN ISLAMIC AND INTERNATIONAL LAW

2019 ◽  
Vol 34 (3) ◽  
pp. 383-407 ◽  
Author(s):  
Shaheen Sardar Ali
Keyword(s):  
International Law ◽  
Islamic Law ◽  
Legal Traditions ◽  
Rights Of The Child ◽  
State Practice ◽  
Legal Position ◽  
The Subject ◽  
Rights Discourse ◽  
Muslim Communities ◽  
Human Rights Discourse

AbstractThis socio-legal narrative investigates the journey from “biological” to “societal” filiation undertaken by Islamic and international law regimes in their endeavors to ensure a child's right to name and identity. Combining a discussion of filiation—a status-assigning process—with adoption and kafāla (fostering) as status-transferring mechanisms, it highlights a nuanced hierarchy relating to these processes within Muslim communities and Muslim state practices. It questions whether evolving conceptions of a child's rights to name and identity represent a paradigm shift from “no status” if born out of wedlock toward “full status” offered through national and international law and Muslim state and community practices. The article challenges the dominant (formal, legal) position within the Islamic legal traditions that nasab (filiation) is obtainable through marriage alone. Highlighting inherent plurality within the Islamic legal traditions, it demonstrates how Muslim state practice and actual practices of Muslim communities on the subject are neither uniform nor necessarily in accordance with stated doctrinal positions of the juristic schools to which they subscribe. Simultaneously, the paper challenges some exaggerated gaps between “Islamic” and “Western” conceptions of children's rights, arguing that child-centric resources in Islamic law tend to be suppressed by a “universalist” Western human-rights discourse. Tracing common threads through discourses within both legal traditions aimed at ensuring children a name and identity, it demonstrates that the rights values in the United Nations Convention on Rights of the Child resonate with preexisting values within the Islamic legal traditions.

scholarly journals SHARIAH AND THE POLITICS OF PLURALISM IN INDONESIA: UNDERSTANDING STATE’S RATIONAL APPROACH TO ADAT AND ISLAMIC LAW

2019 ◽  
Vol 4 (1) ◽  
pp. 14-30
Author(s):  
Ratno Lukito
Keyword(s):  
Islamic Law ◽  
Effective Means ◽  
The State ◽  
Rational Approach ◽  
State Law ◽  
Legal Tradition ◽  
Basic Character ◽  
Legal Traditions ◽  
Religious Law ◽  
Adat Law

The distinction in the normative character of legal traditions will give an effect of the state different attitude to those traditions. In the case of Islamic law and adat law in Indonesia, we see that although having different basic character in terms of its foundation of legal creation, Islamic law can relatively be closer to the character of the state law, which is uniform and nationally effective. It is clear here that the nationalization of Islamic law built on the basis of its adherents, and not on the tribe, clan, language, or other local denominations, becomes an effective tool for its rapprochement with the state law, which is also nationalized on the basis of citizenship. Thus, although it is not possible to equalize Islamic law and state law due to the sacredness of the religious law, the scope in the efficacy of both laws can be an effective means of legal rapprochement. This is however not the case with adat law. The character of adat law as a local and heterogeneous legal tradition is intrinsically not in line with the philosophy of national law, which is anti-localism and homogeneous. It is just impossible to bring adat law to become an effective law for all Indonesian citizens. As a result, the rapprochement is difficult between adat law and state law.

Islamic Law and Human Rights

2015 ◽  
pp. 818-842
Author(s):  
Shannon Dunn
Keyword(s):  
Human Rights ◽  
Islamic Law ◽  
Second World War ◽  
World War ◽  
Legal Traditions ◽  
Universal Human Rights ◽  
Rights Discourse ◽  
And Gender ◽  
Human Rights Discourse ◽  
Second World

This article explores the question of whether Islamic law and universal human rights are compatible. It begins with an overview of human rights discourse after the Second World War before discussing Islamic human rights declarations and the claims of Muslim apologists regarding human rights, along with challenges to Muslim apologetics in human rights discourse. It then considers the issues of gender and gender equality, feminism, and freedom of religion in relation to human rights. It also examines four basic scholarly orientations to the topic of Islam and human rights since the end of the Second World War: a model that privileges a secular (non-religious) paradigm for rights; a Muslim apologist model, which privileges a purely “Islamic” conception of rights over secular models; a Marxist/postcolonial critique of rights as a western imposition of power; and a Muslim reformist paradigm of rights that highlights points of continuity between western legal and Muslim legal traditions.

Islamic Law and International Law

2019 ◽  
pp. 86-124
Author(s):  
Emilia Justyna Powell
Keyword(s):  
International Law ◽  
Analogical Reasoning ◽  
Islamic Law ◽  
Religious Affiliation ◽  
Customary Law ◽  
Legal Tradition ◽  
Legal Traditions ◽  
And Gender ◽  
Role Of Religion

This chapter explores in considerable detail differences and similarities between the Islamic legal tradition and international law. It discusses in detail the historical interaction between these legal traditions, their co-evolution, and the academic conversations on this topic. The chapter also addresses the Islamic milieu’s contributions to international law, and sources of Islamic law including the Quran, sunna, judicial consensus, and analogical reasoning. It talks about the role of religion in international law. Mapping the specific characteristics of Islamic law and international law offers a glimpse of the contrasting and similar paradigms, spirit, and operation of law. This chapter identifies three points of convergence: law of scholars, customary law, and rule of law; as well as three points of departure: relation between law and religion, sources of law, and religious features in the courtroom (religious affiliation and gender of judges, holy oaths).

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