Journal of Islamic Law

The Other Muslim Bans

Will Smiley — Fri, 29 May 2020 00:00:00 +0000

This Article addresses and critiques the case for state-level legislative bans on courts citing “Islamic law” or the law of Muslim-majority countries. In particular, the Article reviews the most substantive evidence adduced by the bans’ supporters, in the form of a set of state court cases published by the Center for Security Policy (CSP). Very few of these cases, in fact, show courts actually applying Islamic or foreign law, and in none of these cases would the various forms of proposed legislation have been likely to alter the result. Thus even this report does not suggest a need for the state laws purporting to ban sharīʿa. The Article thus argues that even if these bans are not unconstitutionally discriminatory in their effect, they are ineffective at achieving their claimed purpose.

This Article was originally published as an Occasional Paper in the Harvard Papers in Islamic Law series in 2018.

Judicial Intervention in Facilitating Legal Recognition (and Regulation) of Muslim Family Law in Muslim-Minority Countries

Waheeda Amien — Fri, 29 May 2020 00:00:00 +0000

In 2018, a groundbreaking judgment was delivered by a full bench of the Western Cape High Court in the matter of the Women’s Legal Centre Trust v. President of South Africa. This case followed a long line of judgments spanning some twenty-one years in which the South African judiciary afforded limited recognition to aspects of Muslim marriages. In this decision, the Western Cape High Court ordered the South African State to prepare, initiate, enact, and implement legislation that provides for the recognition and regulation of the consequences of Muslim marriages within twelve months of the date of judgment. In this Article, the author examines the following questions: Why has the South African State not yet recognized Muslim marriages despite repeated calls to do so by South African Muslim communities? Why has it taken a court to instruct the South African State to enact legislation to recognize Muslim marriages? What, if any, are the human rights implications of the judgment? And what difference, if any, will the judgment make in the lives of Muslims? The author argues that, despite the groundbreaking nature of the judgment, it does not go far enough to ensure sufficient protection for the human rights of Muslim women and that the manner in which the Western Cape High Court’s order is implemented could perpetuate the undermining of Muslim women’s human rights.

The Last Sharīʿa Court in Europe

Maurits Berger — Fri, 29 May 2020 00:00:00 +0000

On its face, the ruling in Molla Sali v. Greece (European Court of Human Rights 2018) was about choice of forum: in an inheritance dispute, could heirs choose to apply Islamic inheriance law or did a will drawn up in accordance with Greek inheritance law govern a Muslim decedent's estate? The case is significant not so much for its outcome, but because it involved features of two legal systems that are relatively unknown among European and American jurists: interpersonal law and Islamic law in the autonomous region of Greece. The Court's reasoning provides detailed insight into how features of these systems may clash with systems of European civil and common law, particularly in the framework of human rights.

Case Brief :: European Court of Human Rights Rules Against Forcing Greek Muslim Minority to Follow Islamic Law

Marzieh Tofighi Darian — Fri, 29 May 2020 00:00:00 +0000

Student Editor Marzieh Tofighi Darian (SJD Candidate, Harvard Law School) summarizes the landmark case Molla Sali v. Greece (ECHR 2018).

Shamim Ara v. State of U.P. & Anr (Supreme Court of India 2002) and the “Judicialization” of Divorce

Dixie Morrison — Fri, 29 May 2020 00:00:00 +0000

Student Editor Dixie Morrison (JD Candidate, Harvard Law School) examines how the Indian Supreme Court’s reasoning in Shamim Ara v. State of U.P. & Anr. (Supreme Court of India 2012) influenced the legal status of triple ṭalāq and Islamic divorce in India.

Foreword to the Symposium on Brunei’s New Islamic Criminal Code

Intisar Rabb — Fri, 29 May 2020 00:00:00 +0000

In this inaugural issue of Harvard Law School’s Journal in Islamic Law, we use the new Forum, designed for scholarly debate on recent developments and scholarship in the field, to feature a Symposium on the passage of a new 'Islamic Criminal Code' in Brunei. This new criminal code has generated extensive international media attention but little close analysis. In this Forum, four scholars offer scholarly essays that examine the contours of this new legislation and the extent to which it intersects with antecedents in Islamic history and with precedents in modern criminal law and procedure, comparatively. With a foreword by Intisar A. Rabb, Mansurah Izzul Mohamed, Dominik M. Müller, and Adnan A. Zulfiqar assess the history, workings, and critiques surrounding Brunei’s new code. Accompanying their essays is the SHARIAsource Online Companion to the Forum on Islamic Criminal Law in Brunei, which provides the text of each law, and of its antecedents, at beta.shariasource.com.

Understanding the Situation on the Ground

Mansurah Izzul Mohamed — Fri, 29 May 2020 00:00:00 +0000

Mansurah Izzul Mohamed comments on the implementation of Syariah Penal Code Order 2013—Brunei’s new Islamic criminal code. Phase One, covering small crimes and misdemeanors, took effect in May 2014. Phases Two and Three, specifying more serious crimes and more severe punishments, recently took effect in April 2019. This post outlines the history and procedural components of the law with respect to national and international law. Her basic argument is that Codification + Procedure = Just Implementation.

Brunei’s Sharia Penal Code Order: Punitive Turn or the Art of Non-Punishment?

Dominik M. Müller — Fri, 29 May 2020 00:00:00 +0000

In his essay, Dominik M. Müller takes an historical approach. He traces Brunei’s new Islamic criminal code back to the country’s independence in 1984, and even further, to the so-called Anglo-Mohammadan law established by the British protectorate earlier in the twentieth century, and to the Hukum Kanun Brunei before that—some version of which may have stretched all the way back to Islam’s arrival to Borneo in the fifteenth century. Müller is the first to assess the Code based on the evidence, albeit from Phase One. From 2014 to 2019, Phase One saw some application of the new Islamic Code to misdemeanors, but the degree paled in comparison with applications of the existing state Code. Looking at a twelve-month period from 2015 to 2016, Müller counts a total of 247 prosecutions under the new Code, all including fines (with the corporal punishments of the new code from Phases Two and Three not yet in effect). He puzzles over the expressions of surprise among the international media outlets at the new Code, given the long history that preceded as well as the legislative history that followed the phased introduction of the new law announced in 2013, and the minor penalties since. Müller then contrasts the international criticism with the local response: feeling under attack, an educated elite and other social media influencers in Brunei closed ranks in support of the new Code under the banner #BruneiUnited. For Müller, while none of these developments should have surprised the world, the fact that they did likely follows from the fact that Brunei is both historically relatively insular and the “academically most understudied Southeast Asian country.” If true, his observation underscores the extent to which more research is required.

Pursuing Over-Criminalization at the Expense of Islamic Law

Adnan Zulfiqar — Fri, 29 May 2020 00:00:00 +0000

In a short essay, Adnan A. Zulfiqar takes a more critical approach to aspects of Brunei’s criminal laws that have garnered less attention but that he finds more troubling. The international community has, rightly in his view, protested against and condemned the law’s potential violations of human rights norms against torture and individual freedom. Most condemnations have focused on provisions for capital punishment, whipping, and amputation for the new Code’s crimes of liwāṭ (sodomy), zinā (unlawful sexual intercourse between heterosexuals), and theft. But little attention has been paid to the Code’s departures from “classical Islamic law’s substantive and procedural constraints” thus allowing legislators and prosecutors to “criminalize more conduct.” For example, the Code permits punishment of offenders who lack legal capacity, requires four eyewitnesses to prove rape, and prosecutes beliefs through punishing attempted apostasy. For these reasons, despite the procedural protections and heightened standards of doubt jurisprudence to which Mohamed and Müller point, the new Code entails many other provisions that signal the need for greater caution and perhaps further modification. Zulfiqar argues that Brunei codified Islamic criminal law in a way that creates novel crimes and disregards defendant rights, thus diverging from norms of fairness and cultural accommodation present in the precedents and mores of the very Islamic system which it seeks to reinterpret for its society today.