ISLAMIC LAW & LAW OF THE MUSLIM WORLD eJOURNAL
"Is Islam Incompatible with European Identity?"
University of Milano-Bicocca School of Law Research Paper No. 18-15
WOJCIECH BRZOZOWSKI, University of Warsaw - Faculty of Law and Administration
The current EU migration crisis has confronted Europe with the need to manage an unprecedented influx of refugees and migrants, many of whom report Islamic religious identity. Not only have these recent developments brought about numerous acts of hostility and discrimination motivated by religious hatred, but they also seem to jeopardize, in the long run, inter-religious dialogue in Europe. The conflicts which result from this unexpected, and often unwanted, meeting of people with different cultural and religious background have revived or strengthened doubts about Islam being compatible with European identity. The actual concern is whether following the rules of Islam in everyday life (e.g. wearing of religious clothing and symbols, respecting gender equality, exercising parental rights) can be reconciled with the Western standards of human rights. The aim of the presentation is to address this question from the legal perspective. Unsurprisingly, it is not a new question, and it has been examined on many occasions—though rarely in an open manner—by the European Court of Human Rights (ECtHR) and other standard making bodies in the European legal space. This standard seems to be evolving, slowly and not in one direction, gaining some growing scholarly attention recently. As regards the Islamic legal order, it has been clear, at least since the ECtHR judgment in the case of Refah Partisi (2003), that the concept of Sharia law is incompatible with the fundamental principles of democracy. Applying some of Sharia rules by individuals in the private sphere may be permissible as part of their freedom to observe the precepts of their religion, but it should not be endorsed or enforced by the state. However, the recent relinquishment in favour of the Grand Chamber in a case concerning the application of Sharia law by a state court to an inheritance dispute between Greek citizens belonging to the Muslim minority suggests that this traditional view may soon be challenged. Not less surprising is the recent ECtHR judgment in the case of Hamidović (2017), in which a violation of freedom of religion or belief has been found on account of the punishment of a witness for refusing to remove his Islamic skullcap while giving evidence before a criminal court. Even though the ECtHR declared that the case of Hamidović is completely different from the cases concerning the wearing of religious symbols and clothing in the workplace, it is hard not to see this judgment as a breakthrough in the Court’s case-law as regards the accomodation of Islamic religious practice. At the same time, the interpretation of the European Convention of Human Rights seems to be well-established, and therefore continuously applied, regarding the admissibility of ban on concealment of one’s face in public places motivated by religion. This practice, which is often considered to be at odds which such values as dignity, liberty and gender equality—or even openly hostile to women’s rights—may be prohibited by domestic authorities. Unfortunately for the ECtHR, the application in the case of S.A.S. (2014), which brought such findings, was made by a woman whose arguments and willingness to find a compromise did not make it easy to dismiss her claims for accomodation as clearly incompatible with the European values. In the end, however, it is not only about Islamic practice being accomodated by the European standard makers. The question remains open if the idea of European identity itself needs to be transformed, redefining secularity and reflecting social changes in Europe.
"The Idea of Religious Neutrality and the Cooperation Model Compared in Germany, Austria and Italy"
University of Milano-Bicocca School of Law Research Paper No. 18-13
JOSHUA MOIR, University of Trier - Faculty of Law
JULIA WAGNER, University of Trier
In recent years, Europe has experienced a move towards religious diversity and pluralism, which is especially caused by the lasting wave of migrants fleeing conflicts in primarily Muslim countries. While in 2010 Muslims formed 3.8% of Europe’s population, the Muslim population would be expected to rise to 14% by 2050. Even if this scenario does not materialise the European Union and its member states, they will be confronted more and more frequently with new challenges to the law regulating the relations between the state and religious organisations and currently unknown religious conflicts: disputes over religious symbols like the Christian crucifix, the Jewish mezuzah or the Muslim hilal in the public sphere, the debate on the Muslim head scarf, burka and niqab worn by teachers, police women or judges and controversies concerning religious practices in schools and universities – the list is almost endless – are only a few examples impressively demonstrating this. Although many of these problems have been the subject of debate within German higher court, federal administrative, and constitutional court cases, particular decisions as the headscarf ban for teachers (BVerfGE 108, 282, BVerfGE 138, 296) or the crucifix ruling (BVerfGE 93, 1) show that the judicial recognized idea of neutrality between state and religion is characterised by inconsistent results and rules: This leads to the paradox situation that in one and the same country Christian crucifixes in classes and court rooms are (predominantly) allowed and desired whereas on the other hand its strictly prohibited for Muslim teachers or legal clerks to wear a head scarf. Lastly, the current legal situation leaves affected people and legal practitioners helpless. This might be linked to the German model of rules regulating the relation between state and religion. The German Grundgesetz follows the so called hybrid or cooperation model – incorporated from the German constitution of 1918 – which is characterised by a basic separation of state and religion, simultaneously the state is responsible for maintaining religious freedom, diversity and plurality. This middle of the road approach be-tween an established church system and secularity is the most prevalent model in Europe. Particularly also our immediate European neighbours Austria and Italy follow this long-lasting co-operation-based tradition. Key objective of our contribution is to examine whether our neigh-bours are facing similar problems to those we have in Germany. In particular, we will focus our attention on the missing legal certainty and clarity with regard to the – positive and negative – freedom of religion. To ensure a comprehensive picture of the ambiguous legal situation our study will analyse and compare the relevant constitutional provisions, particular laws and jurisdiction in Austria, Italy and Germany and evaluate whether or not European countries still give privileges to their Judeo-Christian roots, (will) develop a religion-friendly attitude of neutrality towards all – also the Muslim – religions and world views or choose a way into a secular society. This question needs to be discussed on a multi-national forum, because it is a matter that concerns all European countries. The International Symposium on Religious Pluralism and European Integration provides a suitable framework to answer this question and to get in touch with experts from different fields of research and different ethical, racial and religious backgrounds.
"Islamic Financial Institutions and Participatory Finance Constraints: The Case of Pakistan"
IRTI Policy Paper No. 2018-02
AZAM ALI, Islamic Development Bank - Islamic Research and Training Institute
TANVEER KISHWAR, Islamic Development Bank - Islamic Research and Training Institute
MUHAMED ZULKHIBRI, Islamic Development Bank - Islamic Research and Training Institute
Islamic financial contracts are designed to facilitate financing according to Islamic norms. Islamic financing in its first stages used only the partnership modes of Musharakah and Mudarabah. Later it is realized that, to avoid moral hazards, yet compete successfully with conventional banks, it is necessary to use all permissible Islamic modes and consequently, trade and leasing techniques were developed. This paper aims to identify the constraints faced by Islamic financial institutions in the adoption of participatory finance i.e., Musharakah and Mudarabah financing. The two basic categories of financing are: 1) profit-and-loss-sharing (PLS), also called participatory finance, i.e. Musharakah and Mudarabah and 2) purchase and hire of goods or assets and services on a fixed-return basis, i.e., Murabahah, Istisna', Salam and Ijarah also called non-participatory finance. This paper suggests that innovation and creativity is necessitated more than ever to promote participatory modes of financing and to make it the preferred choice for meeting the increasingly sophisticated and diversified financial needs.
"Muhammad Iqbal's Constitutionalism"
Indian Law Review, 2:2 (2018)
ADEEL HUSSAIN, Max Planck Institute for Comparative Public Law and International Law
In this article, I look at Muhammad Iqbal’s legal vision for an Islamic Republic. By focusing on the 1930s, the last decade of his life, I piece together how Iqbal’s constitutionalism was hospitable to legal transformation up until sovereign power conflicted with the principles of tauhid (unity of God) and the somewhat obscure concept khatm-e-nabuwwat (finality of prophethood). In mapping the conceptual tension of Iqbal’s thought in relation to the individual, the community, and politics in late colonial India, this article speaks directly to debates on Islamic constitutionalism, conceptual counter-geographies of international law, and the intellectual history of Pakistan and India’s Constitutions.
"Waqf Resource Mobilization for Poverty Alleviation Based on Maqasid Framework"
IRTI Policy Paper No. 2018-03
KHALIFA MOHAMEDÆALI, Islamic Development Bank
This study adopts the framework practiced by various multilateral development banks (MDBs), particularly International Development Association (IDA), to explore the potential establishment of a global Waqf fund, as this framework is proven effective. The framework revolves around the IDA operations with replenishments, allocation of funds by implementing specific formulas and the determination approach, which is mainly to monitor effectiveness of the earlier processes. The study proposes to integrate Islamic vision of development based on Maqasid al-Shari’ah with IDA principles for the allocation of funds for a potentially global Waqf fund. The objective is to create more effective approach for raising and using resources for a global Waqf fund.
"Islamic Microfinance Experience in a Secular State: Case of Benin"
IRTI Policy Paper No. 2017-05
OUSMANE SECK, Islamic Development Bank - Islamic Research and Training Institute
Islamic finance has gained interest in Muslim as well as non-Muslim countries as financial markets are trying to attract capital from investors in search of investment opportunities in accordance with Islamic principles. While the industry is growing on fertile grounds in countries such as Malaysia, the United Arab Emirates, Saudi Arabia, a mix of other countries such as the United Kingdom, Luxemburg, Hong Kong, Senegal, South Africa etc., have tapped into that market by issuing Sukuk or Islamic bonds, although their regulatory frameworks are not designed for their specificities. In 2010, Benin, a former French colony, which inherited its secular constitution has introduced Islamic microfinance without modifying its regulatory framework. The objectives in this paper are three-fold: review the microfinance policy, the regulatory framework and its relevance to the effective functioning of Islamic microfinance. The paper also presents the experience of Benin in Islamic microfinance, and the evaluation of its impact in a policy environment characterized by secularism that implies exclusion of religious specificities. Using a combination of evaluation studies, survey of stakeholders and experts in Islamic microfinance in Benin, and complementary interviews, this research finds that the impact of Islamic microfinance is not separable from the impact of the overall microfinance sector in which it is blended. The impact appears to be positive in terms of contributing to the improvement of living conditions, and loosening the financing constraints on households and small and medium enterprises through additional financial resources.
About this eJournal
Islamic Law and Law of the Muslim World is an interdisciplinary forum for posting abstracts, works-in-progress, and completed scholarly works on any matter of public or private law, legal theory, legal practice or policy that bears on the modern or pre-modern Muslim world, such as studies of:
- topics in classical or contemporary shari'a;
- legal theory, practice, institutions, or actors in pre-modern Muslim regions;
- domestic law or practice in modern Muslim-majority nations, or in non-Muslim-majority nations insofar as it affects or relates to Muslims;
- international law or practice that affects or relates to Muslim-majority nations or to Muslims.
Contributions are welcome from scholars of law, history, religion, political science, international affairs or regional studies, gender studies, economics or finance, and any other discipline from which pertinent scholarship arises.
Editor: Sadiq Reza, New York Law School
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Islamic Law & Law of the Muslim World eJournal
KHALED M. ABOU EL FADL
Omar and Azmeralda Alfi Professor of Law, University of California, Los Angeles (UCLA) - School of Law
AZIZAH Y. AL-HIBRI
Professor, T.C. Williams School of Law, University of Richmond
NATHAN J. BROWN
Professor of Political Science and International Affairs, George Washington University - Department of Political Science
WAEL B. HALLAQ
Columbia University - Avalon Foundation Professor in the Humanities
BERNARD A. HAYKEL
Professor of Near Eastern Studies, Director - Institute for Transregional Study of the Contemporary Middle East, North Africa and Central Asia, Princeton University - Department of Near Eastern Studies
MOHAMMAD HASHIM KAMALI
Professor of Law, International Islamic University of Malaysia (IIUM) - Ahmad Ibrahim Kulliyyah of Laws
ANN ELIZABETH MAYER
Associate Professor of Legal Studies, University of Pennsylvania - The Wharton School, Department of Legal Studies and Business Ethics
DAVID STEPHAN POWERS
Professor of Islamic History and Law, Cornell University - Department of Near Eastern Studies
ABDULAZIZ A. SACHEDINA
Frances Myers Ball Professor of Religious Studies, University of Virginia - Department of Religious Studies
FRANK E. VOGEL
Founding Director, Islamic Legal Studies Program (1991-2007), Adjunct Professor of Islamic Legal Studies (Retired), Harvard Law School