Law Fri, 20 Sep 2019 10:35:56 +0000 Joomla! - Open Source Content Management en-gb Culturalising the Abject: Islam, Law and Moral Panic in the West

Muslim immigrant communities are in crisis in the secular West confronting the conditionality of their citizenship, even in the second generation. After the enormous growth in migration and settlement of Muslims in Australia, Western Europe and North America over the past 20 years and the emergence of second-generation communities, Islam is increasingly viewed as culturally incompatible and, post September 11, Muslims immigrants seen as a potential political threat to national security. The impact of international jihadist terrorism has been to entrench the view that for Muslims, even in the second generation, religion and politics remain irredeemably intertwined and that Islam stands in opposition to secular modernity.: Moreover the terrorist incidents carried out by immigrants in the West such as the murder of Theo Van Gogh in Holland for a film considered blasphemous to Islam, the bombing of Spanish commuter trains in Madrid by Moroccan born migrants and the London commuter train bombings by second generation Pakistani Britons have helped create the impression that Islam is now a de-territorialised ideology and at war with the West. 

As Islam is increasingly constructed as standing in opposition to secular modernity, so Muslim immigrants are judged as having failed the national 'integration' test. In September 2006 the Australian Prime Minister, Mr John Howard, stated: '"There's a small section of the Islamic population which is unwilling to integrate and I have said generally all migrants ... the), have to integrate"' (Kerbaj 2006). Integration here is used as a measure of migrant 'performance' in becoming Australian. The 'good migrant'/'bad migrant' discourse judges migrants' according to their ability, to fit in with the dominant society and achieve success. Bad migrants suffer from high levels of unemployment and welfare dependence, poor English language, crime and culturally separate themselves from the dominant society'. On this basis Muslim immigrants have been seen as "bad migrants' and their problems blamed on their culture and their strong attachment to Islamic values. The focus on the cultural incompatibility of Islam in the West is in practice a focus on national identity (Roy 2006).

But what is the measure of integration being applied to Muslims' participation in Western societies? If the level of legal or cultural conflict over Islamic religious practice is taken as a measure then it is hard to argue Muslims have not successfully integrated[ In most Western countries Muslim immigrants have found there are few areas in which their actual practice of (Shari'a) Islamic law or ritual practice has not been accommodated. The main conflict of laws for Muslim immigrants has occurred in relation to family law matters of marriage, and divorce (Humphrey 1998). This is largely because in their countries of origin the jurisdiction of Shari'a was restricted to matters of personal status law, a legacy" of European colonisation and national constitution making. In a review of multiculturalism and the law by the Australian Law Reform Commission, family law was the only area of Shari'a that Muslims put forward as a possible source of plural law: Even Islamic ritual practice such as prayer, fasting, veiling and burial have on the whole been successfully negotiated with the relevant public authorities such as schools and workplaces as part of multicultural tolerance of difference or in the last resort through laws against discrimination. Suburban opposition to mosque building has also been handled as an administrative rather than political issue at the level of local government or on appeal in an administrative court--in New South Wales the Land and Environment Court. In other words Islamic cultural practice and worship has been negotiated on the basis of administrative law.

Even though conflict between secular and Islamic law has been limited and, for the most part, Islamic ritual practice accepted and/or accommodated in multicultural Australia, most Muslims are experiencing the essentialisation of their Islamic culture and identity as antagonistic to, if not in conflict with, secular modernity. Islam is being defined by and experienced through (since most Australians have little or no direct knowledge of Islam and Muslims) what media reports say Muslims do and what they do is essentialised as cultural--i.e. prescribed by Islam. In other words, Islam is being constructed largely through media communications on the basis of what Muslims do. Consequently any behavioural difference or deviance is interpreted as culturally determined and interpreted through the prism of the dominant paradigms on Muslims: 'the terrorism paradigm and the backwardness paradigm' (Ash 2006: 13). This positions Islam, and Muslim immigrants in particular, as the embodiment of resistance to the universal process of secularisation in modernity which is politically expressed as the rejection of the implicit conditions for secular citizenship: the decline of religious belief, the privatising of religion, and the emancipation of government from religious norms (Casanova 2006).

The culturalising of Muslim immigrant behaviour has intensified since the fihadist terrorism of September 11. Whereas before September 11 Islamic difference was framed in terms of cultural compatibility, after September 11 all Islamic difference is framed in terms of risk. Now even cultural signs of religious identity are suspected as being surface manifestations of a deeper hidden threat. Hence any 'Islamic' signifier such as women's hijab, men's shalwa and kameez or jalabiya, or beards are readily politicised as suspected signs of religious fundamentalism and hostility towards secular culture. Western governments have responded to the perceived threat of Islamic radicalism at home by policing social surfaces in order to promote a 'moderate' Islam publicly stripped of symbols perceived to be 'radical' or 'fundamentalist'. The French government has gone furthest in legislating for secular culture by prohibiting the wearing of conspicuous religious symbols in public schools (Pena-Ruiz 2004). As Dittrich (2003: 11) observes, 'for the French government a model Muslim would be French-speaking, law abiding, accept total separation between church and state, attend mosques presided over by French-trained clerics who avoid politics in their sermons and would call themselves French first and Muslim second.' The veil in particular has become the focus of a transnational public policy, in which increasing numbers of Western governments have officially criticised its use, especially the full face covering veil (burqa, niqab), and even proposed legislation prohibiting it--eg. Belgium, Holland (Bell 2006).

This paper explores the construction of Islam as abject and the symbolic positioning of Muslims as being outside secular modernity in the West in general and Australia in particular through an analysis of the way the criminal legal process and perceptions of criminality are culturalised. The empirical focus is gang rape and the trials of Muslim youth on gang rape charges in Sydney between 2000-2002. Gang rape quickly became culturally inflected as 'Muslim' and 'Lebanese' by media reporting of the criminal trials and moral panic about them as source of social menace. There are three dimensions to the culturalisation of crime and the criminalisation of culture in the criminal legal process and media reporting of it; firstly the cultural inflection of new laws against gang rape by their association with particular events and trials; secondly the introduction of "cultural defence' by the accused as a mitigating factor in the criminal legal process; thirdly, media reporting and commentary on criminal cases which emphasize cultural explanations for individual criminal behaviour.

Islam and Immigration

The role of crime in contributing to the marginalisation of Muslim communities and constructing Islam as abject has occurred within the context of Muslim immigrants becoming Australians on the one hand and the emergence of international jihadist Islamic terrorism on the other. The issue of the successful integration of Muslim communities has become increasingly shaped by the political impact of Islam as a perceived threat to national security post September 11. These two themes have forged the perception that there is in fact a clash of civilisations between the West and Islam leading to the conclusion that Muslims communities and Islam are culturally incompatible with Western secular societies. The question of the cultural compatibility." of Islam with secular modernity, is not merely about the character of Islam as a religion but also the underlying expectation of immigration policy that all immigrants are on a journey to becoming Australians, at least across generations.

Immigration policy has been a key instrument in nation building and national identity formation in a settler society such as Australia built on immigration. The national imaginary expressed in the White Australia policy was premised on the idea that only homogeneous British immigration would ensure the social integration of new settlers. Despite the official de-racialisation of immigration policy in the 1970s and the adoption multiculturalism, the public tolerance of cultural pluralism, becoming 'Australian' remained the underlying premise of the policy. Becoming Australian means subordinating all minority" or cultural identities to national identity: Moreover in the popular discourses about "good' and 'bad' migrants, there remains an implicit progressive evolutionary model in which the traditions and beliefs of migrants should be superseded by the values of the more modern secular society they have migrated to.

Since their arrival in Australia in significant numbers in the 1970s, Muslim immigrants have been seen as a problem community (Humphrey 1998). Islam became visible in Australia with the arrival of Lebanese Muslim war refugees and it is their settlement experience which has strongly shaped Australian public perceptions of Islam, despite the considerable ethnic diversity of Muslim immigrant communities in Australia. The dominant influence of the Lebanese Muslims in shaping the public image of Australian Islam continues to this today with the recent controversy over the suitability of the Mufti Sheikh Tai ad-Din al-Hilali to remain as spiritual leader of the Australian Muslim community played out in the Sunni Muslim Lebanese mosque in Lakemba, the largest mosque in Sydney. (1) The Lebanese Muslims arrived as a poor non-English speaking community escaping civil war under a special humanitarian programme. They suffered chronically high levels of unemployment, the second-generation became identified with crime and after September 11 they became suspected as potential Islamic terrorists. Viewed through the prism of the paradigm of Muslim backwardness, their alleged incompatibility is attributed to their religious attachment that is seen as holding them back from becoming 'Australian'.

High profile criminal cases involving gang rape, gang murders, honour killings and family feuding committed by 'Muslims'/'Lebanese Muslims' have only reinforced the perception of Muslims as being problem and even 'undesirable' immigrants. The association of 'Muslim'/'Lebanese Muslim' identity with crime has tended to criminalize and stigmatise communities and culture. Moreover because the terms Arab, Lebanese, Muslim and Middle Eastern tend to be used interchangeably in public discourse, they all effectively become code words for 'Muslim' in the discourse on the 'bad migrant.' As a consequence police and politicians use of 'ethnic descriptors' such as 'males of Middle Eastern appearance' to identify, crime suspects has been strongly resented by Middle Eastern immigrant communities complaining that it only serves to racialize crime and stigmatize many different Muslim communities and not just the individuals responsible (Poynting et al 2004).

Post September 11 the discourse about good/bad migrants shifted from a question of compatibility to political loyalty. In the discourse on integration attachment to culture is no longer just a question of backwardness but a matter of suspicion and threat. As Appadurai (2006: 101) comments, international terrorism has connected the 'uncertainty. in ordinary life and the insecurity in the affairs of states.' Consequently the criminalizing of Muslim migrants intersects with new state fears about terrorism, turning Muslim immigrants into a national security issue. The effect has been to emphasise the growing conditionality of their citizenship, as the recent labelling of non-resident Australian Lebanese as 'citizens of convenience' highlights (Savage 2006). Anti-terrorist legislation and the intensification of surveillance to counter possible terrorist threats has led to the de facto profiling of Muslims as a dangerous social category. The 'appearance-led' as opposed to 'intelligence-led' basis for profiling terrorists in order to screen the mass movement of people in Western societies has only served to reinforce the positioning of Muslims at the margins of citizenship (Milmo et al 2006).

The suspicion that religious identity, correlates with political disloyalty, has been brought to the fore by the involvement of second generation ('home-grown') British Pakistani youth in the London underground terrorist attacks in July 2005 and the subsequent foiled plots in 2005 and 2006. Their justification for jihadist terrorism at home was their opposition to British foreign policy, pursuing war against Muslims internationally. A recent Pew Poll of Muslims worldwide found that 81% of Muslims surveyed in Britain said 'they thought themselves a Muslim first and a citizen of their country second'. This contrasted with France where 46% felt Muslim first and 42% a citizen second (Ash 2006). The reciprocal response of Muslims to the growth of suspicion over political loyalty as citizens has, for many Muslims, been to identify, themselves as victims thereby only adding to their own sense of rejection and exclusion.

In summary, immigration and settlement policy, constantly scrutinises the performance of migrants as a vehicle for defining national identity and the conditionality of membership. Muslims have increasingly been viewed as a problem immigrant community in Australia on the basis of their 'performance' in becoming citizens. According to the discourses on 'good migrant'/'bad migrant' Muslims have been judged as being unwilling to work, too bound to tradition, too controlling of their women, too slow to learn English and, most recently, too unwilling to integrate and become Australian. Moreover the moral panic around terrorism has led to the situation where any expression of Islamic religious identity, is suspected as a sign of fundamentalism or radicalism and therefore a potential national threat. Muslim immigrants, as a consequence, are being placed in the symbolic position on the margins of citizenship.

I will now explore the present conditionality, of citizenship of Muslim immigrants by examining the role of the criminal legal process in criminalizing culture and culturalising crime. The focus is on the impact of gang rape cases on the symbolic position of Muslims as at the margins of citizenship and the construction of Islam as culturally abject.

Criminal law, the Abject and Cultural Identity

The criminal law deals with the abject in social life, with violent actions that produce injury, pain, loss, humiliation, a sense of powerlessness, trauma, and even death. Crime evokes public fear and even horror because it threatens to overturn our everyday security, heightens our own sense of risk and uncertainty and reveals the fragility of morality and order. These transgressions of community standards and morality are codified as serious offences because they threaten social disorder. Through the prosecution of offenders under strict rules of evidence, legal argument and procedure, the courts seek to achieve legal closure by establishing what happened, who is responsible and what punishment is appropriate. Although criminal law is concerned with the offence and not the cultural identity of the offender, cultural identity can enter into legal consideration as a mitigating (cultural defence) or aggravating (hate crimes) factor. The aim of a criminal trial, verdict and sentencing is to demonstrate the fairness and equity, of the justice system by holding individuals accountable for their actions.

Because crime is not just a matter of law but also morality, the legal and moral meanings of cases can diverge. The abjectness of crime means it is socially disturbing not just legally transgressive. As Merle (2006: 12) comments, 'public opinion confuses the horror of a crime with the legal gravity of a crime.' Hence what resonates in the wider community as an especially abject crime is not necessarily judged in exactly the same way in law. This dissonance between legal opinion and public morality, is apparent in public outcries over the leniency, of sentencing. While law seeks to determine the legal gravity of the act, public morality is more focused on the immorality of crime as an embodied attribute of the individual.

Public perception of crime is that it is an expression of deviance and accounted for by the character of the individual--e.g. madness, criminality, and immorality. But deviance can also be attributed to culture (tradition, belief) and when this occurs both the individual and their culture are in danger of being criminalized. Conflicts between law and culture usually arise in the context of colonization or migration when cultures previously geographically separated are brought into contact. When crime is blamed on culture either culture is criminalized or crime is culturalised. The former is the result of legislation against specific practices while the latter is the result of the association of particular crimes with cultural/ethnic groups.

Under European colonial rule 'repugnancy laws' criminalized the cultural practices of colonised peoples considered morally intolerable to the coloniser--e.g. the Hindu practice of sati, widow burning. In multicultural Australia violent or coercive cultural practices have also been criminalized. For example, female circumcision (2) has been criminalized as an abject cultural practice as has forced marriage (Mercer 2005). Neither of these laws criminalizes culture only the particular act. However because 'female circumcision' and 'forced marriage' are associated with Muslims through media reports they have effectively become recognised as culturalised crimes. This is despite the fact that Islamic religious leaders and Muslim community associations have repeatedly insisted that these practices are only the 'cultural' (by which they mean the non-Islamic) practices of a few Muslims and denied that they are 'Islamic'. Laws against 'gang rape' (aggravated sexual assault in company) and anti-terrorism laws have also been effectively culturalised by virtue of their association with particular events and cases, again provoking the response by Islamic religious leaders that terrorism (especially suicide bombers) and rape are crimes (or prohibited) under Islamic law.

The criminalizing of cultural practices and culturalising of crime are two sides of the same coin whereby cultural practices (actual or attributed) are made abject and the focus of legal prosecution. How offence and offender can be culturalized through the criminal legal process will be explored through an analysis of the now notorious gang rapes committed by Muslims in Sydney. I will argue that the collateralization of crime occurs when the state makes new laws in response to public denunciation of particularly abject crimes, when defendants introduce cultural defence in legal argument seeking to diminish or negate responsibility for their actions, and through the way the media reports crime and trials by focusing on culture as an explanation for crime.

Sydney's 'Muslim' Gang Rapes

Gang rape hit the news headlines in Sydney after a series of attacks by a group of up to 14 Lebanese Muslim adolescent men in 2000 were prosecuted and convicted. The cases became known as the Sydney Gang Rapes and were notorious because of the level of pre-meditated co-ordination using mobile phones to trap the victims and the use of racist language to degrade and humiliate the white Australian teenage female victims. There was a very strong public reaction against these crimes which were seen as predatory, collective, humiliating, and hateful acts. The trials only reinforced previous bad publicity about the violent behaviour of Lebanese gangs already in circulation from earlier incidents involving assault and a murder (Poynting et al 2004). The gang rapes were labeled 'racist' or "hate crimes' by some media commentators (Devine 2005) and the Lebanese Muslim community complained that commentary, on the trials by journalists and politicians vilified the whole community, not just the individuals ultimately convicted, and threatened to stir up ethnic hatred towards the community. The leader of the group, Bilal Skaf, was originally convicted and sentenced to 55 years prison but this was later reduced to 31 years on appeal. The NSW government responded to the strong public outrage at the crimes by introducing legislation creating a new category of crime known as 'aggravated sexual assault in company' with dramatically increased sentences. The case became commonly referred to as the 'Skaf brothers' gang rapes and the new laws were, in the public's mind, a response to 'Lebanese Muslim' adolescent behaviour in Sydney.

The first offenders to be charged under the new gang rape laws were five Pakistani immigrants, four of whom were brothers, from the North West Frontier Province. The four Pakistani immigrant brothers had been brought up between two cultures and two homes. The father, a practicing general practitioner, lived in Australia while his sons grew up in Pakistan with their mother. The father commuted between Australia and Pakistan for 20 years until the sons migrated to Australia to live with their father in 2000. The five were tried for a series of gang rapes which took place at the Ashfield in 2002 in the house where the four brothers lived with their father. The names of the accused were suppressed because two of the accused were minors at the time of committing the offences. Consequently the accused were referred to only by their initials--MSK, MAK, MRK, MMK and RS and collectively referred to as the 'K brothers'. Their trials, which began soon after the completion of the Skaf brothers' trial, reinforced the public perception that there was a gang rape epidemic being conducted by groups of Muslim youth in Sydney. After 2 trials and various appeals, including an appeal to the High Court, the accused were found guilty and given sentences ranging from 15 to 28 years. One of the accused, the unrelated friend, hanged himself in gaol on learning the verdict and his sentence.

This brief summary, of the two key gang rape trials of the Skaf brothers and K brothers identifies the role of the state, the accused and the media in culturalising the crime. The moral panic around gang rape was initially framed by the public revulsion and fear provoked by the original reports of the crimes. It was the subsequent prosecution, conviction and sentencing of the Skaf brothers that led to the state legislating against gang rape as a specific form of sexual assault (aggravated sexual assault in company). The legislation against gang rape aimed to legally denounce this form of crime with harsher sentences. The objectives of sentencing are 'denunciation, general and specific deterrence, separation of offenders, rehabilitation, making reparations, and promotion of a sense of responsibility in the offender' (Fournier 2002: 3). However the new law was also a legislative response to moral revulsion and public outcry towards these crimes and in this sense resembled the repugnancy laws which prohibited particularly abject cultural practices. While the law criminalized particular actions with no cultural reference, the crime itself had effectively been culturalised by the Skaf brothers trial. The idea that cultural attitudes had motivated the accused was reinforced by evidence about the racial/ cultural comments denigrating the victims as 'white' and promiscuous. The legislation against gang rape was culturalised by association from the outset. The fact that the first prosecution under the new rape law was the K brothers, Muslim Pakistani immigrant young men, merely underlined the cultural association between gang rape and Muslims.

The accused introduced culture as a way to try. to alter the course of the trial. Firstly they claimed cultural prejudice in the criminal legal process and secondly they claimed cultural defence to diminish their responsibility and therefore culpability. In their first trial the K brothers claimed the court was prejudiced against them. They alleged there was an anti-Muslim conspiracy which prevented a fair hearing and decided to dismiss their legal counsel and represent themselves. Because their actions created the situation where they would be able to cross-examine their victims in court, legislation was rushed through the NSW Parliament to prevent it. Their claims of bias, their dismissal of their legal defence and their disruptive behaviour in court were generally viewed as strategies designed to bring about a mis-trial (Sheehan 2006: 375).

The accused also introduced culture as a defence to either excuse or justify, their behaviour. Cultural defence 'maintains that persons socialised in a minority, or foreign culture, who regularly conduct themselves in accordance with their own culture's norms, should not be held fully accountable for conduct that violates official law, if that conduct conforms to the prescriptions of their own culture' (Magnarella 1991: 67). The intention of introducing a cultural defence was to claim that at the time they committed the offences they 'ignored for cultural reasons either that it was a crime or that it was such a serious crime as it is' (Merle 2006: 9). In the first trial a 'cultural defence' was introduced to claim ignorance of the law and ignorance of Australian cultural norms in order to diminish their responsibility. The court rejected the claim. 'Supreme Court Justice Brian Sully said "culture or no culture", a strong message needed to be sent to other young men that such horrific sex crimes will not be tolerated in a modern society' (Wallace 2004). Their father, a practising doctor, told the press at that time that his sons should be pardoned because they "did not know the culture of this culture" (Wallace 2004). He also claimed the court was culturally biased stating that "You are the enemy of the Muslim ... they [his sons] are not rapists." (Wallace 2004).

Cultural defence was also introduced at the sentencing stage. Three of the brothers had appealed the severity of the original sentence on the grounds that 'the crime was not the worst of its kind' (Gang Rapes 2005). One brother also introduced a cultural defence and mental illness (being off medication at the time of the offences) as mitigating factors for sentencing (Wallace 2005). The accused claimed that the events had occurred because of cultural differences which had led him to mistakenly believe the girls had consented on the basis of the way girls would behave in Pakistan (Wallace 2005). In rejecting the appeal the Justice Grove specifically criticized a defence lawyer for having claimed his client was 'a cultural time bomb' because of his upbringing in Pakistan. The court did not accept the cultural defence mainly because of the lack of credibility of MSK as a witness, his manipulative attitude towards the court and because the claim of cultural defence had been introduced only at the end (Sheehan 2006: 375-6).

The use of 'cultural defence' in criminal trials has been extensively critiqued on the grounds that rather than redress cultural imbalance in the secular law as the law of the dominant culture it reinforces sexism and racism in both dominant and minority. cultures. What starts off as a well-intentioned attempt to make law more equal makes provocation 'function as a covert (albeit unconscious) form of racism' (de Pasquale 2002: 126). The main criticisms against the recognition of cultural defence are that it undermines the universalistic application of the law, that it can be used opportunistically by minority groups, that its application is gendered and usually invoked to justify men's violence against women, and that it produces a culturally essentialised Other by culturalising behaviour. But the issue is not what happens when cultural defence is applied but that it is applied only for crimes of those who can be culturalised, not for offenders from the dominant (invisible) culture. As Volpp (2000: 89) points out when cultural defence is applied it identifies cultures as less developed or backward not just 'different': 'Behaviour that causes discomfort--that we consider "bad"--is conceptualised as culturally canonical for cultures assumed to lag behind the United States.' This is a defensive strategy, which treats the behaviour of those from the dominant culture who commit crimes as merely deviant but treats those from minority cultures who commit crimes as normative or culturally determined.

On the basis of a survey of the application and recognition of cultural defence, Phillips (2003) argues it should be understood as part of a wider pattern. 'It is largely when mainstream culture itself promotes a gendered understanding of agency and responsibility--perceiving men as understandably incensed by the sexual waywardness of their women, or women as less responsible for their actions because of the influence of men--that references to cultural context have proved effective' (Phillips 2003: 38). She argues that it is when judges and juries are able to put extreme or incomprehensible behaviour into familiar patterns that cultural defence is accepted. Hence 'the problem lies as much with the gendered conventions of the dominant culture as with the introduction of a cultural defence' (Phillips 2003: 38). Culture is understood and recognised through the paradigms of the dominant culture rather than minority, culture.

The most important factor in culturalising the gang rapes was the media reporting of, and commentary on, the criminal legal process. For the media 'legal events provide a constant source of news. These events are not reported by reference to their meaning within the law, for, while they may be news, their meaning within law itself is not their newsworthiness' (Nobles & Schiff 2004: 228). What was newsworthy about the K brothers' trials was that they, confirmed the media-ted 'facts" about the perceived gang rape epidemic; it was the responsibility, of Muslim youth whose demeaning and violent behaviour towards women was culturally determined. In other words the meaning of legal events is communicated as newsworthy facts and much of the legal process is either too complex or abstract to be newsworthy. This is not to suggest the media intentionally misreads the law but that its translation of the criminal legal process inevitably produces a different reality to the one constructed through the law (Nobles & Schiff 2004).

The divergence in meaning of conviction and sentencing in the law and in the media highlight the differences in legal and media communications. While the main purpose of the criminal trial is to hold those responsible individually accountable and to achieve the broader aims of deterrence, denunciation, and reparation through conviction and sentencing, for the media conviction and sentencing are not only legal facts but also evidence that these serious transgressions of morality point to a much larger concealed social menace. This 'tip of the iceberg' use of sensational criminal cases deepens the sense of moral panic about a source of abject threat, in this case 'Muslim immigrant youth'. Hence Paul Sheehan (2006), adopting the expression used by the legal defence, refers to the K brothers as 'cultural time bombs' and wonders just how many others there are in the community. The media narrative emphasized the public's vulnerability in the face of such abject crimes and the paradigm of Muslim backwardness--e.g. treatment of women, disregard for the legal authority--as well as violence.

What the court explicitly rejected as part of legal argument to lessen either guilt or penalty cultural defence, the media reporting and commentaries focused on. Journalists told their stories in terms of the dominant narratives about crime and culture. Media reporting of the trial picked up on the cultural justifications and the media commentary explicitly critiqued what they interpreted as behaviour arising from Muslim culture. Miranda Devine (2005), a media commentator, described the Pakistani brothers as 'cultural suicide bombers' because of the social and personal 'destructiveness' of their behaviour. She blamed cultural background and the parenting role of their father for their offences. The father denied his sons were rapists and insisted that the girls were to blame while his sons were the victims of the anti-Muslim attitude in Australian society. Highlighting the 'tip of the iceberg' threat of Muslim culture to Australians Miranda Devine (2005) connected the gang rapes to 'honour rapes', a reference to a notorious incident of group rape in Pakistan which in fact had been condemned, prosecuted and the offenders sentenced to death. The family was connected with terrorism by geographical association through the comment that they came from a village near Peshawar, the provincial capital 'where Osama bin Laden had lived in the 1980s' (Devine 2005). Another reporter, Paul Sheehan (2006), published a book soon after the final sentencing entitled 'Girls Like You'. While the account, based on official documents, court transcripts and interviews, provides a detailed history of events and biographies of the Pakistani brothers and victims, the question of the underlying cause is framed culturally--they were 'cultural time bombs.' Hence the book's critique of men's sexual violence against women is culturally qualified. As Kath Albury comments in her book review, 'It would be disappointing, however, to see it [sic. the book] used as evidence that only certain kind of men are rapists, and only certain kind of women victims' (Albury 2006).

Media reporting and media commentary of criminal cases connect legal argument and legal decisions in the court with the broader cultural paradigms of Muslim violence and cultural backwardness. Media attention to culture in their translation of court cases for the public resonates with broader processes of evaluation of migrant cultures and migrant 'performance' in becoming 'Australian'. Legal narratives use powerful performative language whereas the media deals in dominant social and cultural narratives about guilt, motive and punishment which are in constant circulation. Even legal decisions such as the length of sentence become interpreted in terms of public opinion and sense of outrage. Media reporting of the K brothers' trials was culturalised and ethicized from the outset because it was framed by the Skiff brothers first gang rape trials. Media coverage reflected public concern about the social menace of gang rapists of Muslim background which the government had also responded to by introducing new legislation to denounce the crime by imposing tougher penalties. While the criminal legal process focused on the K brothers individual responsibility, for the rapes, media commentary focused on the 'clash of cultures', on the distance of these Muslim Pakistani brothers from the dominant culture and its values. In the Muslim community there were two different responses to the gang rape trials. One was to reject their behaviour as un-Islamic, the other was to see the brothers as victims and to blame the girls for inviting the rape on themselves. This latter view was echoed in the controversial comments made 6 months after the sentencing by Mufti Sheikh Taj ad-Din al-Hilali when he referred to women as having 'the weapon of seduction' which can lead to crime and conviction for a lengthy gaol sentence. (3) Media commentary on the Mufti's sermon drew direct connections between his attitudes and encouragement to rape. (4)

The culturalisation of gang rape is not just restricted to Australia. 'Muslim immigrant' gang rapes have also been reported as being on the rise in Western European, especially France, Norway and Sweden. One media source in Australia referred to them collectively as a 'Western Muslims Rape Spree' and claimed there was 'a distinct race-based crime in motion being ignored by the diversity police: Islamic men are raping Western women for ethnic reasons. We know this because the rapists have openly declared their sectarian motivations' (Lapkin 2005). The implication in these accounts is that gang rape is a form of Muslim cultural warfare against the secular West. 'Muslim rapists' as 'cultural suicide bombers' (Devine 2005) resonates strongly with the counter-terrorism discourse about Muslim extremists being at war with our values. (5)

Transnational media reporting on 'Muslim immigrant gang rape' in different countries reflects a convergent moral panic drawing on the global script of cultural conflict (clash of civilisations) more than a careful analysis of the phenomenon of gang rape. The incidence of gang rape, the definition of gang rape, the women targeted, the justification of perpetrators, and the cultural background of the rapists are much more varied than these reports of an epidemic of 'Muslim immigrant gang rapes' suggest, sensational as they are. The most detailed analysis of the phenomenon of gang rape has occurred in France where they have been given the name 'tournantes' (take turns) (Henley 2001). One 'tournante' victim, Samira Bellil (2003), even published an account of her own experience. Some tournantes have been carried out by French Muslim immigrant gangs on public housing estates against second generation women for being too French (too independent, too secular) but others have targeted 'French' girls. Mucchielli (2005), a criminologist, questions the characterization of gang rape as epidemic on the basis of an historical review of media and judicial reporting of gang rape. He found that the phenomenon had been more or less stable over decades and, citing an earlier incidence of moral panic over gang rape in 1960, argued that the perception of an increase in gang rape had more to do with its reporting and public moral panic than its actual incidence. Von Hofer (2000) makes a similar argument for the incidence of rape in Sweden, which he concludes is fairly stable. He also points out that cross-national comparison of rape statistics are highly problematic firstly because of the problem of definition and secondly because of the difference between reporting of rape in legal regimes governed by the 'legality principle' (police must prosecute all crimes they become aware of) and the 'expediency principle' (the offence can be negotiated as in plea-bargaining).

The one consistent theme in the recent transnational media reporting on the phenomenon of gang rape is the moral panic it has provoked in the West. Gang rape is seen as particularly abject and, if not culturalised, has been blamed on outsiders, 'immigrants'. In Britain the reporting of some incidents of gang rape have been ethnicised as a South African import of a township practice known as 'jack rolling' (Hoyle 2005) while in the US gang rape is blamed on 'illegal aliens' (Schilling 2006). Recent US studies have found that many gang rapes have been connected to gang activity and organized crime. In these cases gang rapes can be a form of initiation rite to gain acceptance along with other acts of random violence. Interestingly the high profile of the French tournantes in Europe led the British Metropolitan Police to review over 2000 rapes in case they had failed to appreciate the extent of gang rape because in Britain it was a particularly culturally taboo topic (George 2004).

A focus on the role of youth violence in response to the loss of culture and social relationships rather than too much culture and community, provides a very different perspective on gang rapes. In a study of violence amongst North African immigrant youth in the banlieues of Paris Andre Iteanu distinguishes between 'local violence' (nihilistic and emotionless) and 'territorial violence' (collective and brutal), both of which he argues are responses to the same void, the loss of social relationships and communities through radical individualisation produced in integration. He argues that 'in enacting territorial violence, the youngsters attempt to obscure the disastrous state of relations that local violence, on the contrary publicises' (Iteanu 2005: 130). Like 'territorial violence' gang rape can be understood as a form of collective violence employed to forge relationships in a radically individualised world. The martial quality of gang rape and its connection to masculinity, and forms of male bonding emphasise its role in organizing and coercing forms of solidarity and collective purpose. Their shared experience as second generation Muslim youth is the loss of religion, loss of respect for parental authority, and loss of community, the very things being invoked by governments to promote a 'moderate' Islam as a defence against religious radicalisation. Soon after the Skaf brothers were tried and convicted for gang rape and their crimes culturalised, allegations surfaced about members of the Canterbury Bulldogs rugby league team, the team from same district where the Skaf brothers lived, using gang rape as a form of male bonding (Magnay 2004). Culture was not used to explain their behaviour, just their over-determined sense of masculinity.


The characterisation of Islam and Muslim immigrants as culturally incompatible with the secular West is highly ideological. It constructs Muslims as trapped by tradition and the West liberated from cultural constraints and individually autonomous, The discourse on immigration to the West, irrespective of the prevailing public policy, of assimilation, integration or multiculturalism, is about the subordination of other cultural identities to national identity. The discourse of good/bad migrant is about the conditionality of their rights and membership as citizens. What the recent moral panics about 'Muslim immigrant gang rapes' in Western societies have thrown up is that cultural difference is not seen just as cultural backwardness but potentially subversive. Culture has been made a matter of personal insecurity and national security. The identification of Muslim youth with gang rapes positions them at the margins of society and a threat to 'our values', echoing the discourse of the War against Terror as a defence of Western values.

What stands out about media reporting of gang rape internationally is the abjectness of the crime and its connection with immigrants. In Britain, according to George (2004), there has been a tendency for gang rape to be a taboo topic such that it has not even been identified in rape statistics. The moral panic around gang rape highlights the extent to which Western societies seek to displace it as extreme deviance and abjection. Culturalising gang rape makes it the responsibility and the property of the Other. Its abjectness is thereby displaced onto those at the margins of society, in this case Muslim immigrants who are made to symbolise the margins of citizenship.

The culturalising of gang rape also conceals the level of impunity that operates in relation to rape in general. Rape remains a very much under-reported and under-prosecuted crime in Western societies because of the difficulties in getting convictions and the humiliation and trauma victims experience if they pursue the matter in court. When rape is prosecuted Phillips (2003) makes the important observation that the use of 'cultural defence', while appearing to be about making allowances on the basis of minority culture, in practice amounts to the recognition of behaviour already implicit in the dominant culture--i.e. the way sexism and racism already enters into the criminal legal process in matters of violence against women in general. In other words the attitude that the victims are to blame--'she was asking for it'--is not just a 'cultural' defence but also a male defence.

Even where the criminal courts resist the introduction of cultural defence as provocation and uphold the universality of the law on the basis of individual accountability, media reporting invariably focuses on culture over the complexity of legal argument and evidence. Their translation of the criminal legal process is in terms of dominant narratives about crime and culture. In the K brothers' trial cultural defence was rejected but the fact of its rejection was merely the opportunity for media commentary to culturalise the offence.

The internationally shared moral panic about 'Muslim immigrant gang rapes' in Europe raises more questions than it answers. The perception that 'gang rape' is on the rise and that 'Muslim immigrants' are to blame is difficult to decipher without much more extensive research. However the accusation highlights the ways in which immigrant citizenship in western societies is being made increasingly conditional. This becomes part of the experience of alienation of young Muslims from the secular world since they are constantly reminded that their cultural visibility is a measure of their lack of citizenship. As a result for them the secular nation-state is being displaced as a source of political identity and alternative identities explored. These alternative identities undermine 'the kind of political identity that citizenship in a secular state aspires to achieve, which above all else, is associated with the separation of church and state, and the consequence of loyalty being connected with juridical nationality that is derived from the status.

]]> (Super User) Law Tue, 04 Sep 2018 08:24:26 +0000
Presentation on the Discipline of Law & Islamic Juriprudence

The recommendations are:

  1. Scholars should continue to study Islamic law to understand its nature and scope and to enquire into the applicability of Islamic law in modern era.
  2. Education system is to be reviewed to incorporate in to the curriculum Islamic values and norms suited for the present day needs of the society.
  3. Educating the Muslim society on their rights and obligations should be promoted. It should be encouraged through a campaign of awareness in electronic and print media.
  4. A lot of research and development activities in such areas as judiciary, finance, political thought, administration etc should be carried out. 
  5. All universities and institutes of higher learning should include teachings of Islam, in general, and Islamic law and jurisprudence, in particular, in the syllabus of the Faculty of Law.
  6. Diploma and some short courses on Islamic Law and Jurisprudence can be introduced in universities and recognized research organizations. Some of these courses can be conducted for the Judges, lawyers, law teachers and other faculties.
  7. Subjects of Islamic law, taught in Islamic educational institutes like Alia and Qawmi Madrasha and Islamic Centers, should be reviewed and all modern researches and books in this regard should be taught in the Madrasha.
  8. The government may constitute an Islamic Law Commission to review the existing laws in the light of Islam and amend those as soon as possible.
  9. Muslim community needs many more scholars having expertise in the nusus (the texts) of the Holy Qur’an and Sunnah as well as the waqaa (context) to meet the challenges of our time and those of the coming phases. Ijtihad should be made applicable in the practical and modern issues. If individual efforts of Ijtihad fail to meet the needs of ummah, then collective Ijtihad should be made where several scholars from various disciplines will take part with a view to reaching a good, authentic and successful result.
  10. Human rights should be fully ensured in all respects in the light of Qur’an and Sunnah.
  11. In framing any law the objectives of Islamic Shariah should be taken into consideration.
  12. In the context of Bangladesh an Islamic Fiqh Academy may be established to cater to the needs of various contemporary issues.  


Presentation on the Discipline of Law & Islamic Juriprudence
Md. Azharul Habib

Existing Syllabus on Land Law :
q History of Land Laws
q General Concepts about Land Administration in Bangladesh

Existing Syllabus on Land Law :
• The State Acquisition and Tenancy Act, 1950.
• The Non-Agricultural Tenancy Act, 1949.
• The Land Reform Ordinance, 1984.
• The Restoration of Vested Properties Act, 2001.
• The Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972.

Contents of the Law of Land in Islam:
• Ownership of Land
• Pre-emption

Contents of the Law of Land in Islam:
• Waqf
• Abandoned Property
• Settlement of Khas Land
• Ushr
• Khiraj
• Land Rent
• Barga ( Muzara'a)
• Inheritance
• Enemy Property/Vested Property
• Concluding Remarks

Integration of the Islamic Law of Land with existing Syllabus of Land Law:

  1. History of Land Law:

  • The present syllabus focuses on the land administration in Bengal during Hindu, Muslim, British, Pakistani and Bangladeshi Periods.
    • This discussion, to a certain extent covers certain historical issues relating to land administration during Muslim Regime. 

2.Concept of Land:

No separate definition of land.  
 Islamic property rights framework conceives of land as a sacred trust but promotes individual ownership with a redistributive ethos. The state is mandated to administer land efficiently and fairly in accordance with God's laws and ethical and moral principles. Land is seen as a sacred trust for human beings and should be put to continuous productive use.

Classification of Land:
• Land in Bangladesh is divided into agricultural & non-agricultural land.
• After conquering a state its lands are divided into two classes
• Ownerless Land &
• Lands, which have owners.

On the basis of special circumstance and quality the land is divided into two groups:
• Ushri Land
• Khiraji Land 
• There are widely thought to be three broad types of land and land tenure in Islamic theory, which continue as categories into modern Muslim societies. These are 
• Mulk or land in full ownership
• State-owned land and
• waqf land.

Ownership of Land:
• In Bangladesh 3 types of ownership is recognised.
• State Ownership;
• Co-operative Ownership;
• Private Ownership;
• In the Qur'an, Allah clearly ordained:
• "For the earth is God's. To give as a heritage to such of His servants as He pleaseth.”(Al- A'raf 7:128)
• However, this has not precluded either the individual ownership of land or the legal protection of individual property rights, albeit subject to an overall social responsibility.

Pre-emption: In Bangladesh the provisions regarding Pre-emption are provided in the following Acts:
•  The State Acquisition and Tenancy Act, 1950.
• The Non-Agricultural Tenancy Act, 1949.
• The Partition Act &
• Muslim Law
• Pre-emption: Islamic Law also recognizes in connection with immovable property a certain right in restraint of the power of alienation of the owner called the right of shufa' which is usually translated as pre-emption.
• Waqf: Waqf in Bangladesh is regulated under the Waqfs Ordinance 1962. The SAT Act 1950 also deals with the waqf.
• The waqf is a highly significant legal mechanism and a key Islamic institution. It has been recognized and developed under the Shari'a for more than a millenn¬ium. 
• Abandoned Property: Abandoned property means any property movable or immovable owned by any non-muslim who is not present in the Islamic State or whose whereabouts are not known or who has ceased to occupy, supervise or management in person his property.
• Distinction regarding definition exists.
• In Bangladesh The Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972 is the parent Act dealing with the matter. 
• Abandoned Property: Movable Property:
• If any non-muslim sells or gifts his movable property to anyone before leaving the state the buyer or the donee of that property will be the owner.
• If there is no evidence of sale or gift the property shall vest in the Bait al Mal .
• The same principles shall apply to the Immovable Property.
• Khas Land: In Bangladesh the SAT Act, 1950 & certain guidelines deal with the matter.
• Ownerless land was divided into two groups:
• Mewat-dead or empty land, which can be reclaimed or revived.
• Khalisa-khas land.Govt. ownership was declared on such lands. The following types of land were included in this category.
• Abandonment of land by its owner in favour of the state;
• Declaring certain lands khas by dispossessing their owners;
• Lands of the conquered territory, which was declared khas. 
• Settlement Policy of Khas Land: Bangladesh Govt. has adopted certain policies to settle the khas land( agricultural & non-agricultural).
• The Prophet (PBUH) gifted many mewat & khas lands to people.
• Alcama bin Wael described from his father Hazrat Wael bin Huzar ( R ) that  the Prophet (PBUH) gifted a piece of land in Hadarmouth. (Reported by Abu Daud & Tirmidhi) 
• Ushr: In Bangladesh there is no law, guideline regarding this.
• It is an obligatory charge. It is also known as 'Zakat-ul-Ard' or the Zakat of land. 
• The owner must be muslim.

Khiraj: It is defined as land under state control upon which a tax is paid by those in possession; it describes both the land itself and the tax. This is charged on the land of non-muslims. 
• Kinds of Khiraj: It is of two kinds:
– Khiraj-e-Mukasima- determination of half or one-third yield as khiraj.
– Khiraj-e-Mauzifa- cash money as Khiraj.
- The govt. will determine the amount of Khiraj. 
• Land Rent: Certain laws regulate this issue in Bangladesh.
• A larger group of Islamic scholars hold that the tradition prohibits only the payment of rent on land which has not been improved in some way. In this case rent is a rightful return on the inputs into the land in terms of labour and capital.
• Barga (Muzara'a): The Land Reforms Ordinance 1984 focuses on this matter.
• Excepting six companions all other companions of the Prophet supported barga.
• Hazrat Abu Hurairah (R) described that Muhajir accepted the proposal of Ansar to take the share of harvest of the date gardens in exchange of providing labour.(Reported by Saheeh Bukhari).
• The families of Abu Bakr (R), Umar (R), and Ali (R) cultivated land through the contract of barga. 
• Each School of Islamic Jurisprudence consider cultivation of land through barga valid though the differ in forms. 
• Inheritance: Muslim Law basically sheds light on this topic.
• Inheritance is one of the commonest ways of acquiring land or access to land, particularly in the Muslim world. 
• Enemy Property:  The Restoration of Vested Properties Act, 2001 is now the regulating Act.
• There are divergent views regarding lands, which are conquered during war. 
• Some jurists opined that the conquered land shall be divided into five shares. 
• Some other jurists held that the govt. of the Islamic state has the absolute discretion to adopt any measures regarding this type of land but after taking into consideration the interests of the community

Concluding Remarks:

• From the above discussion, it is obvious that Islam provides an appropriate system of land management. 
• It contains explicit provisions regarding private and national ownership of land and proper classification of land from different dimensions. 
• It lays emphasis on the proper disposal of land through the institution of waqf, pre-emption and inheritance, which not only serve spiritual interest but also establishes a proper land tenure system.. 
• In order to eradicate grievances of people and to facilitate proper utilization of land it also supports the system of barga. In order to ensure social and economic justice it prescribes a proper settlement of khas land. It encompasses in its orbit appropriate principles for smooth dealings of abandoned and enemy property. The imposition of land tax and zakat on the produce of land plays a vital role in shaping an efficient economy of the state. In order to face intricate problems of modern times regarding land management we can exploit the tool of Ijtihad as evidences for the change of rulings according to the circumstances are also evident from the Qur'an and the Sunnah. Omar's decision not to distribute the newly acquired land in Sawad was based on his understanding of the aims of the Sharia. He did not feel obliged to do what the Prophet (PBUH) had done, simply because the situation was similar.

]]> (Super User) Law Tue, 04 Sep 2018 08:22:23 +0000
Course Outline: Law of Crimes, Jurisprudence and Constitutional Law

Course Outline: Law of Crimes
Md. Jahid Hossain Bhuiyan, Assistant Professor, BUBT.

Crime and Civil injuries, Origin and Development of Criminal Law.

Islamic Concept of Crime

Essential elements of Crime, Guilty mind, Grounds of exemption from criminal responsibility. Joint liability and abetment a Attempt.

Punishment : Its objects and limit

Islamic Concept of Punishment, Islamic Object of Punishment

The most important offences : Offences against the State and other public interests, Offences affecting the human body. Offences against property and other interests of the individual.

Offences against the State under Islamic Law. Waging War against the State will be included under this heading. 

Offences affecting the human body under Islamic Law.  Murder, Rape and Unnatural offences will be included under this heading. 

Offences against property under Islamic Law. Theft, Dacoity, Robbery will be included under this heading. 


Curriculum Reform Law of Crimes Reference Books

Siddiqi, Muhammad Iqbal, The Penal Law of Islam (New Delhi: International Islamic Publishers, 1994).
Zia, Afiya Sherbano, Sex Crime in the Islamic Context: Rape, Class and Gender in Pakistan (Lahore: ASR Publications, Lahore, 1994).
El-Awa, Mohamed S., Punishment in Islamic Law: A Comparative Study (Delhi: Markazi Maktaba Islami, 1983).
Ullah, Muhammed, The Administration of Justice in Islam: An Introduction to the Muslim Conception of the State, 3rd ed. (New Delhi: Kitab Bhavan, 1990).
Rahman, Gazi Shamsur Rahman, Islamer Dandabidhi (Islamic Penal Code), Dhaka: Islamic Foundation Bangladesh, 1992.
Hannan, Shah Abdul, Social Laws of Islam, 2nd ed. 1997, Dhaka: Bangladesh Institute of Islamic Thought.
Kabir, L., Lectures on the Pakistan Penal Code (Dacca: Law House, 1970).
Ratanlal and Dhirajlal, The Law of Crimes, 22nd ed. rpnt. (New Delhi: Standard Law House, 1992


Md. Azharul Islam Habib, Lecturer, Dhaka University

Existing Syllabus:
Definition, Nature, Scope and Utility of the Study of Jurisprudence.

Islamic Inputs:
Introduction to Usul-al-Fiqh: The Meaning & Scope of Usul-al-Fiqh, Two Approaches to the Study of Usul-al-Fiqh, Importance & Utility of the Study of Jurisprudence, Proofs of Sharia.

Existing Syllabus:
Schools of Jurisprudence: Naturalist, Positivist, Analytical, Realist, Historical, Sociological and Feminist.

Islamic Inputs:
A Brief Outline of the Schools of Islamic Jurisprudence. Theories of General Principles, Theories of Strict Interpretation, The Theory of the Purposes of Law, The Refinement of the Purposes of Law.

Existing Syllabus:
Definition of Law.

Islamic Inputs:
The Concept of Islamic Law.

Existing Syllabus:
Kinds of Law.

Islamic Inputs:
Law and its Classification: The Hukm

Existing Syllabus:
 Sources of Law.

Islamic Inputs:
Sources of Islamic Law.

Existing Syllabus:
Administration of Justice: Civil and Criminal Justice. Theories of Punishment.

Islamic Inputs:
The concept of justice in Islam, Punishments & its basic purposes in Islam, Hadd Punishment, Tazir Punishment & Qisas.

Existing Syllabus:
Substantive and Adjective Law.

Analysis of Legal Concepts: Rights, Duties, Property, Possession, Ownership, Liability, Obligation, Persons and Title.

Islamic Inputs:
Islamic Concept of Rights, Duties, Property, Possession, Ownership, Liability, Obligation, Persons & Title.

Books Recommended:
1. P. J. Fitzgerald: Salmond on Jurisprudence, Universal Law Publishing Co. Allahabad, India, 2003.
2. R. W. M. Dias: Jurisprudence, Aditya Books Pvt. New Delhi, 1994.
3. D. Lloyd: Introduction to Jurisprudence, Sweet & Maxwell 1994.
4. Friedman: Legal Theory, 5th Edition, 3rd Indian Reprint, Universal Law Publishing Co., Allahabad, India, 2004.
5. Sir C. K. Allen: Law in the Making, Oxford University Press, London, 1992.
6. T. E. Holland: On Jurisprudence, 13th Edition, 1st Indian Reprint, Universal Law Publishing Co., Allahabad, India, 2001.
7. Rawls: A Theory of Justice, Universal Law Publishing Co., Allahabad, India, 2000.
8. Roscoe Pound: An Introduction to the Philosophy of Law, 3rd Indian Reprint, Universal Law Publishing Co., Allahabad, India, 2003.
9. Imran Ahsan Khan Nyazee: Theories of Islamic Law: The Methodology of Ijtihad, The International Institute of Islamic Thought, Islamabad and Islamic Research Institute, Islamabad, Pakistan, 1994.
10. Mohammad Hashim Kamali:  Principles of Islamic Jurisprudence, The Islamic Texts Society, Cambridge, UK, 1991.
11. Shaykh Taha Jabir Al-Alwani, Issues in Cotemporary Islamic Thought, The International Institute of Islamic Thought, USA, 2005.
12. Abdur Rahim: The Principles of Muhammadan Jurisprudence, Madras, 1911.
13. Weiss, Bernard G. The Search for God's Law: Islamic Jurisprudence in the Writings of Sayf al-Dîn al-Âmidî. Salt Lake City, UT: University of Utah Press, 1992.
14. Khadduri, Majid. Al-Shafii's Risala: Treatise on the Foundations of Islamic Jurisprudence. Cambridge, UK: Islamic Texts Society, 1999.
15. Makdisi, George. Religion, Law and Learning in Classical Islam. Aldershot: Ashgate/Variorum, 1991.
16. Masud, Muhammad Khalid, Brinkley Messick and David S. Powers, eds. Islamic Legal Interpretation: Muftis and their Fatwas. Cambridge, MA: Harvard University Press, 1996.
17. Stewart, Devon J. Islamic Legal Orthodoxy: Twelver Shiite Responses to the Sunni Legal System. Salt Lake City, UT: University of Utah Press, 1998.
18. Hallaq, Wael B. Authority, Continuity and Change in Islamic Law. Cambridge, UK: Cambridge University Press, 2001.
19. Fareed, Muneer Goolam. Legal Reform in the Muslim World: The Anatomy of a Scholarly Dispute in the 19th and the Early 20th Centuries on the Usage of Ijtihâd as a Legal Tool. Bethesda, MD: Austin & Winfield, 1996.
20. Yahaya Yunusa Bambale: An Outline of Islamic Jurisprudence, Malthouse Press, Nigeria, 2008 .
21. Azami, M.M. On Schacht's Origins of Muhammadan Jurisprudence. New York: John Wiley, 1985.
22. M. T. Ladan: Introduction to Jurisprudence Classical and Islamic, Malthouse Press, Nigeria, 2007.
23. Imam al-Shafi’i: Al Shafi’i’s Risala: Treatise on the Foundations of Islamic Jurisprudence.
24. Dr. Saalih al-Fawzaan: A Summary of Islamic Jurisprudence (2 vols.) 2005.


Constitutional Law
Md. Azharul Islam Habib, Lecturer, Dhaka University

Conception & Elements of State. Meaning of Constitution. The Concept of Constitutionalism. Contents and Classification of Constitutions. Methods of Establishing  Constitution. Meaning, Nature and Scope of Constitutional Law.

Islamic Inputs:
Concept of Islamic State, Definition & Classification of Islamic Constitution, Necessity of having an Islamic Constitution, The concept of Constitutionalism in Islam, Scope & Contents of Islamic Constitution, Methods of Establishing of Islamic Constitution.

Constitutional Law of Bangladesh:
Framing of the Constitution of Bangladesh. Features of the Constitution of Bangladesh, 1972. Sources of Constitutional Law. Interpretation of Constitution. Preamble. Supremacy of the Constitution. Fundamental Principles of State Policy. Fundamental Rights and  their Enforcement.

Islamic Inputs:
Special Features of an Islamic Constitution, Basis & Sources of Islamic Constitution, Ideology of State & Its Belief (i.e. Fundamental Principles of State Policy), Supremacy of Shariah, Concept of Sovereignty in Islam, Fundamental Rights & their Enforcement, Rights of Non-Muslims.

The Executive:
Powers and Functions of the President, Prime Minister and Cabinet, Ministerial Responsibility, Care-taker Government, Local Government. Defence Services. The Attorney-General.

Islamic Inputs:
Concept of Executive in Islamic Constitution, Designation of the Head of the State, Duration, Election Qualification of this Post, Powers & Functions of the Head of the State, Women Leadership in Islam.

The Legislature:
Parliament, Its Composition, Functions, Privileges, Immunities, Legislative and Financial Procedures. Ordinance Making Power.

Islamic Inputs:
Basic Distinctions between Conventional Parliament & Majlish al Shura, Siyasa al Shariah, Qualification of the members of Shura, Types & Structure of Majlish al Shura, Election of members, Functions of Majlish al Shura.

Judiciary, Administrative Tribunal, Separation of Power and Independence of Judiciary, Constitutional Remedies, Judicial Review, Writ.

Islamic Inputs:
Concept of Judiciary in Islamic Constitutional Law, Nature of Judiciary before & after the advent of Islam, Separation of Power & Independence of Judiciary, Legal Professions, Different Tribunals in Islamic State, Constitutional Remedies.

Election, Services of Bangladesh, Ombudsman, Emergency, Amendments of the Constitution, Miscellaneous.

Islamic Inputs:
Methods of Election in Islamic State, Independent Election Commission & Its Compositions & Functions, Services of Islamic State, Hisbah or Ombudsman, 

Constitutional Law of UK:
Characteristics of the UK Constitution, Sources of the UK Constitution, Rule of Law, Royal Prerogative, Parliamentary Sovereignty, Government and Parliament. The Individual and the State.

Islamic Inputs:
Reviewing the Constitutions of Saudi Arabia, Pakistan, Iran & if possible on the constitution of other Muslim Countries who laid emphasis on the Sharia.

Books Recommended;
1. Government Publication: The Constitution of the People’s Republic of Bangladesh.
2. Mahmudul Islam: Constitutional Law of Bangladesh, Second Edition, Mullick Brothers, Dhaka, 2002.
3. H. M. Seervai: Constitutional Law of India, Universal Book Traders, Delhi, 2002.
4. D.D. Basu: Shorter Constitution of India, Wadhwa, Nagpur, 2003.
5. Hilare Barnett: Constitutional & Administrative Law, Cavendish Publishing Ltd. London, 4th Edition, 2002.
6. Hood Philips: Constitutional Law and Administrative Law, Sweet & Maxwell, London, 1973.
7. John Adler: General Principles of Constitutional and Administrative Law, Fourth Edition, Palgrave Macmillan, 2002.
8. C. F. Strong: Modern Political Constitutions, London, 1975.
9. A. V. Dicey: An Introduction to the Study of the Law of the Constitution, 10th Edition, 4th Indian Reprint, Universal Law Publishing Co., Allahabad, India, 2003.
10. Latifur Rahman: The Constitution of the People’s Republic of Bangladesh with Comments and Case-Laws, Mullick Brothers, 2004.
11. Sayyid Abul A'la Maududi, "The Islamic Law and Constitution" Translated by Ahmad, Khurshid Published by the Islamic Publications (Pvt.) Limited, 13-E Shahlam Market, Lahore, Pakistan, 11th edition October 1992.
12. M. Hamidullah, “The Muslim Conduct of State, Lahore”, 1st ed. 1953, 2nd ed. 1977.
13. Prof. Dr. Yusuf Al Qaradawi, "Priorities of Islamic Movement in the Coming Phase" translated by Akhunji, Muhammad Sanaullah in Bengali as "Adhunik Jug :Islam Kaushal O Karmoshuchi, Published by Notun Safar Prakashani, 167/A WAPDA Road, West Rampura, Dhaka-1219. Second Edition : October 2003.
14. Dr. Yusuf al Qaradawi, "Ghayr al-Muslimeen fil-Mujtama' al-Islami" ,"Generosity Towards Non-Muslims In Islam"  originally written in Arabic, translated into Bengali by Hasan, Mahmudul as "O-Muslimer Proti Islamer Udarata published by Sarwar Kamal, Potia, Chittagong
15. Imam Ibn Taymiyyah, “Statehood in Sharia”, Translated by Julfiqar Ahmad Qismati in Bengali as “Shariati Rastha Babostha” Ahsan Publication, Dhaka, 2008.
16. Maulana Abdur Rahim, “Al Quran-e- Rastha O’ Sharker”, Khairun Prokashani, 3rd edition, March 2000.
17. Dr. ABM Mahbubul Islam, Islamic Constitution: Quranic & Sunnatic Perspectives, Professor Publication, Dhaka.
18. Mohammad Asad: The Principles of State and Government in Islam, University of California Press, Berkeley, CA, 1961
19. Mawdudi, S. Abul `Ala', The Rights of Non-Muslims in Islamic State, Islamic Publications, LTD. Lahore, Pakistan. 1982.
20. Muraghi, Abdullah Mustapha, Islamic Law Pertaining to Non-Muslims, Library of Letters. Egypt. Undated 
21. Dr. Muhammad Sharif Chaudhry, A Model Islamic Constitution, Kitab Sarai, First Floor Al-Hamd Market, Urdu Bazar, Lahore, Pakistan.
22. Dr. Muhammad Sharif Chaudhry, Islam’s Charter of Fundamental Rights and Civil Liberties, Kitab Sarai, First Floor Al-Hamd Market, Urdu Bazar, Lahore, Pakistan.
23. Dr. Muhammad Sharif Chaudhry, An Introduction to the Islamic State and Government, Kitab Sarai, First Floor Al-Hamd Market, Urdu Bazar, Lahore, Pakistan.
24. Dr. Muhammad Sharif Chaudhry, Elements of Political System of Islam, Kitab Sarai, First Floor Al-Hamd Market, Urdu Bazar, Lahore, Pakistan.
25. Dr. Muhammad Sharif Chaudhry, Administration of Justice in Islam, Kitab Sarai, First Floor Al-Hamd Market, Urdu Bazar, Lahore, Pakistan.

]]> (Super User) Law Tue, 04 Sep 2018 08:21:41 +0000
Notes on Ibn Hazm's Rejection of Analogy (Qiyas) in Matters of Religous Law

Ibn Hazm (994-1064) was no doubt one of the most outstanding intellectual figures of Muslim Spain in particular and of the whole Muslim world in general. Though it is beyond the purpose and scope of this paper to give a complete profile of the man and his place in the intellectual history of Islam, it remains necessary to make some introductory remarks that would help in understanding the topic under discussion?

In Ibn Hazm’s scholarly preparation the second stage was characterized to be a juridic-theological preparation to which he fully devoted himself following his political failure; the year 1031 is usually proposed to be the turning point in this new orientation of Ibn Hazm’s intellectual life. It was during this second stage that he wrote profusely on a variety of subjects and distinguished himself as a master dialectician and polemicist. His major works on religious matters such as Fisal, Ihkam, and Muhalla were the products of this period; in them as well as in many other treatises, Ibn Hazm discusses his religious ideas and doctrine and enthusiastically refutes his adversaries. “ As a master dialectician he insisted on proofs (barahin), whether arrived at on the basis of the holy texts (nusus), or through logical demonstration, or both.” His use and reliance on analysis of textual material and information was perhaps the most clear feature of Ibn Hazm’s polemics; this method was always in  conformity with his Zahirite doctrine; and was largely employed in his disputation with Jews, Christians, or his co-religionist opponents.

Since Ibn Ham’s religious ideas originated within the framework of his Zahirite doctrine, a word about this doctrine seems to be necessary as a prerequisite to understand his rejection of analogy in matters of religious law. The Zahirite doctrine was founded in the East by Dawud ibn Khalaf (d. 883) who was a Shafi‘ite before developing his new doctrine. For this reason it is believed that the Shafi‘ite theology was responsible for paving the way for the appearance of the new doctrine. It is also believed that this new doctrine originated as a reaction to the widespread activities of those who applied analogical deduction (qiyas) to arrive at legal decisions in matters of religion. Then the new doctrine reached Muslim Spain and was adopted by a small number of Andalusian theologians through whom it reached Ibn Hazm who developed the new doctrine and became the most eloquent spokesman of it. The essence of the Zahirite doctrine centers around the idea that the Qur’an and the authenticated traditions ought to be the sole guiding criteria for arriving at juridico-theological decisions. They should be understood in the context of what they say rather than what they may imply. This can be done by adhering strictly to the apparent meaning (zahir) of the text and by conforming to the grammatical and lexical rules of the Arabic language.’ Hence the name of the new doctrine (al-Zahiriyyah) which emphasized the exoteric meanings of the texts as opposed to the traditional way of emphasizing the esoteric (batin) meanings of the texts.

]]> (Super User) Law Tue, 04 Sep 2018 08:20:25 +0000
Islamization of “Muhammadan Law” in India

One of the bounties bestowed on Muslims by Allah (SWT) is the Shari’ah: the Divine guidance and code of conduct, necessary to achieve success in this world and the world hereafter. For the colonists who subjugated Muslim lands it appeared necessary therefore to first deprive Muslims of their source of sustenance and symbol of identity. The first target of their attack was the Shari’ah; every aspect of which was ridiculed, belittled or truncated. It is difficult to improve upon Isma’il Raji al Faruqi‘s graphic description of this onslaught. He who wrote:

  • By the colonialists directly, or by their native stooges, everything Islamic fell under attack. The integrity of the Qur’anic text, the genuineness of the Prophet (SAAS), the veracity of his Sunnah,
    the perfection of the Shariah the glories of Muslim achievements in culture and civilization - none of them was spared. The purpose was to inject doubt in the Muslim’s confidence in himself . . .
    to subvert his Islamic personality . . . lacking the spiritual stamina necessary for resistance . . . the Muslim was turned into something neither Islamic nor Western, a cultural monstrosity of modem

In India, the British colonialists deprived the Muslims of their sense of identity by substituting a good part of the Sharitzh with English law and systematically mutiliated the rest of it into a hybrid legal system they started calling with the meaningless name of “Muhammadan Law“.

With a view to analyze the colonization of the Shari’ah in India during the last century and to determine’the extent of damage it suffered in the past and continues to endure to this day, this paper makes the following submissions:

  • That the law to govern Muslims anywhere in the world including India should be the Sharibh;
  • That the “Muhammadan law” (or Muslim Personal Law) which is applicable to Muslims in India materially differs from the Shari’ah;
  • That the ill-effects of continued application of this law are serious and need certain corrective measures; and

4. That a complete re-appraisal of the Islamic legal education in the century is necessary to ensure proper understanding and judicial implementation of the Shari’ah in India.

]]> (Super User) Law Tue, 04 Sep 2018 08:19:19 +0000
The Importance of Ilm al Khilaf to North America

Ilm al Khilaf  a science which deals with the Islamically sound arguments used by Muslim jurists (fuqaha) to reach their various legal opinions. As such, it can also be known as comparative Islamic law. Historically, the various madhahib of Islam shared and benefitted from this science, and there is no reason why we also cannot benefit from it.

We know that there were differences of opinion and practice even during the time of the Prophet Muhammad, for his Companions did not view everything the same way. This state of affairs naturally continued after the Prophet’s death. The suhuf ascribed to some of the Companions and the information given in the relevant biographical literature were studied for details. The fiqh-related issues debated by the Companions increased in number and complexity during the time of the Successors (Tabi’un),w hen the development of Islamic jurisprudence was just getting started.

The judicial and juristic opinions expressed in Majmu al Fiqh by Zayd ibn ‘Ali (d. l22/740), in al Muwata’by Imam Malik (d. 179/795), by Muhammad ibn al Hasan al Shaybani (d. 189/805) which he his master Abu Hanifah, and by Abu Yusuf Ya‘qub (d. 182/769), especially in his Kitab al Kharaj, al Radd ala Siyar al Awzi, and Iktilaf Abi Hanifah waIbn Abi Layla may be cited here as the first scholarly sources of ‘ilm al khilaf.  The related literature on differences between the fuqaha’ is full of points which may be studied for further information.

With the spread of Islam and the incorporation of many non-Muslim subjects into its domains, new legal questions were raised. The resulting decisions led to the profound and scholarly development of ilm al khilaf and the establishment of the methodological principles of Islamic law in several branches. However, it was not until the beginning of the fifth hijri century that comparative Islamic law was scientifically established as an independent branch of Islamic law by Abu Zayd ‘Abd Allah ibn ‘Umar ibn ‘Isa.

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The Problem of Bias: An Epistemological Approach and Call for Ijtihad

The International Institute of Islamic Thought (IIIT) is pleased to sponsor this important seminar, as its topic and objectives, the nature of the issues to be raised, and the points of view represented by the scholarly participants and their papers are of vital concern to the Islamic world. Through its participation, the institute has opened a new chapter for academic activity and intellectual jihad, particularly in Arabic and Islamic cultural circles.

As the institute joins the Union of Egyptian Engineers (UEE) in this pioneering intellectual effott, it seeks to articulate its third objective as regards the reform of the methodology of Islamic thought: the Islamization of knowledge in order to build a new Islamic cultural order and lead the ummah to the most beneficial ways of overcoming its backwardness.

Moreover, as the IIIT joins the UEE in this undertaking, it seeks to exonerate itself from the charge that it is biased in favor of theoretical thinking and thus insensitive to the applied sciences. While this is the impression that might be given by the institute's publications and statements, the truth is that these are indicative only of its priorities and have nothing to do with bias.

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Freedom of Expression in Islam: An Analysis of Fitnah

This article develops the concept of fitnah and its bearing on freedom of expression. It puts together information from the unconsolidated source materials of the Shari'ah in a manner reflecting the interest and style of a modern student of comparative law. It also develops the theme that modern interpretations of seditious speech and conduct have done much to restrict the scope and substance of the freedom of expression. The Shari’ah tends to advocate the opposite, as it confines the scope of restrictions to measures necessary to repel an imminent danger to normal order in society. The individual's freedom to investigate facts and ideas and to formulate and express an opinion are integral to Islam's approach to the dignity of the individual and the quest for ascertaining the truth.

What Is Fitnah?

Dictionaries give various meanings for fitnah: temptation, trial, misguidance, enticement, fascination, commotion, sedition, confusion, affliction, torture, and strife (Majma' al Lughah a1 'Arabiyah 1405/1958; al Zawi  n.d.; Wajdi 1971; Cowan 1976; Hughes n.d.; Khan 1979). This plurality of meaning might have contributed to a certain ambiguity noted in the term's juridical meaning. Fitnah and its derivatives feature prominently in the Qur'an, being found in no less than sixty places. In the chapter "Kitab al Fitan," Sahih al Bukhari records eighty-six hadiths. Thus, as might be expected, the word appears in both the Qur'an and the hadith in several contexts and denotes meanings that converge and overlap.

Among the juridical meanings of immediate concern are seditious speech that attacks a government’s legitimacy and denies believers the right to practice their faith (Hughes n.d.). This latter meaning tends to be the most dominant one in the Qur’an. Each of these two meanings will be addressed in detail as the discussion proceeds. However, there are a few other Qur’anic usages of fitnah of which the reader should be aware.

As a dominantly moral concept, fitnah occurs in the Qur’an in the sense of temptation or enticement, as in: “Know that your possessions and your offspring are but a trial (fitnah) and that it is God with Whom lies your highest reward” (Qur’an 8:28; 64:15). Love of property and children may thus entice one to indulge in sinful conduct (Ibn al Qayyim 1983).

Fitnah is also used to denote trial and testing (imtihan) someone for what he/she finds difficult to accept or deny. In this sense, it entails an exposure to hardship with a view to forcing someone to do or abandon an act, speech, or a belief. God tests believers and unbelievers in order to reward or punish them in proportion to the fitnah they have undergone. Note for example: “We put to test (laqad fatanna) those who preceded them (the believers) and God knows the truthful from those who lie“ (Qur’an 29:3; 9:49; 44:17; Rida 1910).

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Fundamental Rights of the Individual: An Analysis of Haqq (Right) in Islamic Law

Despite the ubiquitous occurrence of the word haqq in the works of classical jurists, a precise definition has never been articulated. Earlier religious scholars have relied on its literal meaning, while modern scholars have tried to provide a comprehensive definition. This essay looks into the definition of haqq and ascertains, on a selective basis, some aspects that have engendered controversy and debate. It also discusses the tendency in Islamic law to place greater emphasis on obligations than on rights. I have attempted to develop a perspective on this and have, in the meantime, addressed the suggestion by western commentators that the Shari'ah does not recognize rights, but only obligations.

The answers given are partly the outcome of my reflections based on nearly a decade of intermittent research on basic rights and liberties in Islamic law. I have tried to advance an understanding of this basic and yet complex juridical issue and have related my analysis to the ongoing debate on the general subject of human rights. An adequate understanding of haqq in Islamic law quires looking into several related themes, and my attempt to do this has enabled me to identify the roots of what I regard to be a persistent misunderstanding of Islamic law on this subject.

Western commentators generally hold that Islam does not recognize the idea of an individual having inherent rights, fundamental or otherwise. For Schacht (1970), "Islamic law is a system of duties, of ritual, legal and mod obligations, all of which ate sanctioned by the authority of the same religious command." Gibb (1955) opines that "the Islamic theory of Government gives the citizen as such no place or function except as taxpayer and submissive subject." This line of argument is taken further by Siegman (1964), who states that "no such abstractions as individual rights could have existed in Islam . . . In such a system the individual cannot have rights and liberties . . . he has only the obligation."

Rights and duties in Islamic law originate in the Qur'an and the authentic Sunnah of the Prophet. The juristic manuals often speak of hukm shar’i a term that signifies a ruling, usually communicated in the form of a command or a prohibition, that regulates the conduct of a mukalaf (a legally responsible individual). Such a ruling may convey a variety of concepts, including legal rights and obligations. There may be an apparent pmpensity in the nature of such a communication, and in the language in which it is conveyed, towards obligations rather than rights. A closer examination, however, reveals that a mere propensity in the style of communication does not have a negative effect upon the substance and validity of rights in the Shari'ah. A teal understanding and analysis of the language of the Qur'an and Sunnah confirm that Islam has its own view on this type of ding and on its allied subjects of rights and duties.

In the Qur'an and the Sunnah, no formal distinction is made between fundamental and other rights, or between constitutional and ordinary law. This is also indicative of a certain outlook in expounding the juris corpus of the law, the some materials of the Shari'ah reflect the Unitarian influence of tawhid (uhity in some and origin of all knowledge) and a tendency to stay away from approaches that may interfere with this principle's holistic and unitarian philosophy. As the Shari'ah adheres to the overriding authority of divine revelation, the sense of mission and duty to God and society acquires, admittedly, a certain prominence in the concept of hukm (hereinafter defined as ruling) over the idea, so to speak, of an individual's right or claim on Gad. The issue is essentially that of the pattern of relations between the Lawgiver and the recipient of law, one that is inspired by the ideals of unity and integration rather than the duality of their respective interests. Modern constitutional law, and constitutionalism as such, champions the rights of the citizen when dealing with the ever-expanding power of the state. This latter factor was, on the whole, viewed as a menace to individual rights and liberties.

Islamic law, on the other hand, does not  proceed from a condition of conflict between the individual's respective rights and interests and those of the state, for implementing the Shari'ah satisfies the basic purpose of the state's existence, which includes the rights of the individual. In doing so, both the individual and the state obey the Shari'ah and gain the pleasure of God. Thus the duality of interest often envisaged in modern constitutions does not present the same picture in the Islamic theory of government. Islamic law operates on the premise that God commanded humanity to act, or not to act, towards Him and other people in certain ways. The individual must worship and obey Him, as there is no room for anything other than submission to His will. However, God has expressed His will and d e c e and has thereby bestowed upon human beings certain rights as an expression of His grace. Commentators who deny the place and reality of rights in the Shari'ah have shown no awareness of this perspective and have advanced a superficial discourse that confuses a certain outlook maintained by Islam on rights and duties with the affirmative substance of the Shari'ah on this theme.

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The Closing of the Door of Ijtihad and the Application of the Law'

This panel's center of gravity is Islamic legal theory and doctrine, particularly usul a lfiqh. In this room are many of the West's leading scholars in this field. This puts me out of step, for my work leads me to study fiqh and usul al fiqh chiefly from the viewpoint of their application, an approach that is the result of spending several years in Saudi Arabia studying the role of fiqh and the ulema in the Islamic legal system. I wish to submit, however, that there are a number of doctrinal problems to which a study of the law's application and practice or, in other words, a study of the legal system, stands to contribute a great deal. The closing of the door of ijtihad, which I intend to discuss, is such an issue.

But first let me make some general points to support the general suggestion I have just made. In western studies of fiqh, we have often omitted, justifiably or not, any consideration of the law's application. Among the valid justifications for doing so is the very vastness of the doctrinal corpus. Another is that to get basic data on the law's historical application is far more difficult than finding its black-letter doctrine. Other justifications are more questionable. For one, we have often made certain assumptions, which-stating them with due exaggeration-hold that Islamic law, since it became stagnant at an early period, was usually ignored in practice. As a d t of this, it is often maintained, fiqh retreated into the ideal world of scholarship while the application of the law fell under the sway of arbitrary and despotic rulers. Approaching the law with such an impression, however much in the background, scholars of Islamic law have, not surprisingly, spent little time on its application.

This last justification for ignoring the law's application is now, I believe, rapidly eroding due to the efforts of scholars on many different fronts. Some, notably Professor Hallaq, are at work countering the exaggerated idea of the "closing of the door of ijtihad," a phrase used to convey the idea that fiqh became utterly stultified at an early stage. Other scholars ate examining late Shari'ah court records and legal documents and are finding that relevant fiqh doctrines were scrupulously applied. Still others are tracing extensive developments in fiqh law, in the interstices of doctrine, and in genres of fiqh literature, particularly fhiwd, which are hierarchically lower than the muan, or basic texts of the legal schools. Lastly, there are scholars studying Shari‘ah applications in traditional contemporary societies.

There is a single theme, I submit, that usefully integrates research into the law’s application: the profound tension or dialectic, apparently endemic in the Islamic legal venture, between the ulema and the ruler. While the former are the bearers and advocates of fiqh, the latter is the inheritor of another principle-namely power-which is as indispensable to the fulfillment of the Islamic legal ideal as is fiqh itself. The ruler’s very indispensability lends him an indefeasible legitimacy, which can be countered by the ulema only with difficulty. Let us designate this legitimacy, as it concerns the operation of the legal system, by the ulema’s own term: siyasah. The structure of an Islamic legal system arises most essentially from the complex interaction of these two legitimacies and institutions-siyasah and ruler on the one hand, and fiqh and the ulema on the other-as they enter into relations of cooperation and competition.

]]> (Super User) Law Tue, 04 Sep 2018 08:09:14 +0000