ISLAMIC LAW & LAW OF THE MUSLIM WORLD eJOURNAL
"A Meditation on Mahr, Modernity, and Muslim Marriage Contract Law"
Univ. of Wisconsin Legal Studies Research Paper No. 1698
ASIFA QURAISHI-LANDES, University of Wisconsin Law School
In this essay, I sketch an alternative model for the Islamic marriage contract. I propose the use of the partnership contract, rather than sales, as its background framework. I believe that applying the well-established (and recently re-energized) principles of Islamic partnership law to Muslim marriage contracts would have several advantages over the current sales-based framework, including eliminating several traditional rules that have been harmful to women. Among other things, some of the existing rules that would disappear under a partnership model include: the lack of mutuality between husband and wife, legal tolerance of marital rape, and a husband’s exclusive right to unilateral divorce. A scheme of Islamic marriage law based on partnership contracts would fit better with modern attitudes about marriage, mutuality, women and individual agency. As such, it would support the sharia-based approach of Muslim women activists more effectively than the current strategies that sometimes require uncomfortably stretching and pulling outdated doctrines to fit modern sensibilities. But my enthusiasm for a paradigm shift to this alternative model for Islamic marriage law is tempered by this caveat: paradigm shifts are not easy. They usually require disentangling emotional connections and long-held patterns of behavior, and these changes usually require much more than a good theoretical argument. So, while as a legal theorist, I would wholeheartedly support new Islamic marriage law based on a partnership contract model, the activist in me is concerned about the pragmatic realities of making it stick. Simply put, no matter how perfectly developed it might be, not everyone will be convinced to switch to this new scheme of marriage law. I therefore note some of the real-life challenges to introducing the alternative model, and what I think should be done in light of these challenges.
"Shackled by Shari’a: Saudi Women Still Controlled by Male Guardianship System Despite Present (Cosmetic) Reforms"
REBEKAH BUNCH, Independent
This article argues for the abolition of the Saudi Arabian male guardianship system. The purpose of this article is to examine the current situation of women’s lives in Saudi Arabia and explain why the Saudi Arabian government and community should take steps toward the abolition of the male guardianship system. The origins of the male guardianship system will be discussed, including where the system comes from, how the system started, and the history behind the system. A limited number of the present reforms for women’s rights in Saudi Arabia that have been implemented before the creation of this article will be analyzed. Next, restrictions on women that still need reformation at the time of the creation of this article will be analyzed. Explanations of how the Saudi Arabian government and community continue to obstruct reformations of the male guardianship system will be introduced. The present reforms of the male guardianship system will be analyzed to determine whether these reforms have been anything but cosmetic. Lastly, two steps for the Saudi Arabian government and community to take in order to progress toward the complete abolition of the male guardianship system will be introduced.
"Myanmar's Rohingya Population: The Case for Genocide"
Oxford University Press
ENGY ABDELKADER, Rutgers, The State University of New Jersey - New Brunswick/Piscataway
The United Nations (UN) has consistently characterized the Rohingya Muslims as the world’s most persecuted population. Significantly, prior to the military coup on February 1, 2020, Myanmar represented itself as a burgeoning democracy on the path to reform. However, the human rights status of racial, religious, and ethnic minorities in legal, political, social, and economic context reveals the true character of any democracy. To that end, the plight of the Rohingya Muslims has long cast a pall on Burmese governance even prior to the most recent military coup.
This analysis employs two international cases of historic significance that are currently pending against Myanmar as a lens to understanding how domestic political developments, such as ethnoreligious nationalism, and international events, such as September 11, 2001, contribute to the ongoing genocide against the Rohingya Muslim population. The first case, brought by the Republic of the Gambia against Myanmar in the U.N. International Court of Justice (ICJ), alleges that Myanmar violated the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). The International Criminal Court (ICC) enjoys jurisdiction over the second case. It focuses on the unlawful deportation of approximately one million members of the stateless population from Myanmar to neighboring Bangladesh during two waves of violence in 2016 and 2017.
Both matters are noteworthy because of the gravitas of each tribunal - arguably the most important courts in the world. Additionally, they represent the very first formal efforts to hold Myanmar legally accountable for international crimes committed against the persecuted ethnoreligious community. Moreover, a critical legal analysis of the factual allegations underlying each controversy crystalizes the nature of, as well as the contributing factors to, official persecution of the world’s largest stateless population.
"The International Criminal Court’s Afghan Dilemma: Complementarity and the Quest for Justice in Afghanistan"
Columbia Journal of Transnational Law, Vol. 60, Forthcoming 2021
MEHDI J. HAKIMI, Stanford Law School
The principle of complementarity is a cornerstone of the International Criminal Court’s (“ICC”) framework. The doctrine, enshrined in Article 17 of the Rome Statute, strikes a balance between the overarching purpose “to put an end to impunity” on the one hand, and the primacy of national criminal jurisdictions on the other hand. Under the complementarity regime, the ICC may only assert jurisdiction when the state fails to act, including when its legal system is unwilling or unable to genuinely carry out proceedings. In the Afghan situation, shortly after the Appeals Chamber’s authorization of an investigation into alleged war crimes and crimes against humanity in March 2020, Afghanistan requested that the ICC’s Office of the Prosecutor (“OTP”) defer to its domestic proceedings.
This Article argues that, contrary to Afghanistan’s contention, potential cases arising from the OTP’s investigation would be admissible before the ICC. Afghanistan has consistently neglected its primary responsibility to bring perpetrators of international crimes to justice. The complementarity analysis reveals that, besides the likely absence of proceedings against individuals who bear the greatest responsibility for the alleged crimes, the Afghan legal system remains unwilling and unable to genuinely carry out the requisite investigations and prosecutions. The government’s unwillingness and inability to conduct genuine proceedings is evinced through the flawed peace process with the Taliban, the Afghan Amnesty Law, and an array of other factors pertinent to the issue of admissibility. Considering the deeply ineffective domestic accountability mechanism, the ICC must step in and ensure that impunity is no longer guaranteed in Afghanistan.
"Time and Moral Choice in Islamic Jurisprudence"
Canadian Journal of Law and Jurisprudence, Forthcoming
OMAR FARAHAT, McGill University Faculty of law
Understanding how classical jurists thought about time is essential for us to fully understand the nature of legal demands, responsibility, and choice in the Islamic legal tradition. Despite its importance, the idea of time in Islamic legal thought remains largely unexplored, although there has been some interest in the concept of time in Islamic philosophy and philosophical theology. The Islamic legal tradition is profoundly concerned with time and advanced its own set of reflections on time. Islamic jurisprudents, I argue in this paper, understood time in moral terms, not as a neutral container or mere background action, but as a series of opportunities in which the authority of divine revelation and human moral reasoning are articulated. That is not to say that they did not understand time to contain action, which, we will see below, is an understanding that is reflected in the thought of some jurisprudents