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more Islamic law links

Date: January 17, 2003 | 14 Dhu-l-Qidah 1423 Hijriah
Subjects: law
A few more articles about Islamic jurisprudence, these probably of interest only to lawyers. Appellate review in Islamic law and Development and use of legal maxims (PDF) both by Mohammad Hashim Kamali.
~ Posted by Al-Muhajabah, a member of the reality-based community, at 07:36 PM

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one of the top five commentors on this blog! Jonathan Edelstein said: Total comments: 91   gold stargold stargold stargold stargold star

Damn right they're of interest to lawyers. smile I especially liked the discussion of appeal and judicial independence; I'll have to remember thefiqh.org.

One interesting comment on judicial independence from an Islamic point of view was in the opinion of Justice Mohammed Afzal Cheema of the Pakistan Supreme Court in Bhutto v. Chief of Army Staff, [1977] PLD (S. Ct.) 657. This case concerned the legality of General Zia's coup in Pakistan, and Justice Cheema cited several Islamic scholars on the subject of when a usurping government should and should not be obeyed. The consensus seemed to be that a government that ruled according to shariah was legitimate - but this presupposed some authority, whether "the people" or a court, that could judge whether or not a government was ruling according to shariah. Justice Cheema concluded from this that courts have authority independent of the state and can, if necessary, judge the state itself.

The discussion in the article about the disagreements between the decisions of the Companions was also interesting - it sounded very much like the disagreements between the Talmudic rabbanim.


~ Posted at January 18, 2003 09:57 AM | Comment Permalink
moderator Al-Munaqabah said: Total comments: 996   gold stargold stargold stargold stargold star

The question of usurping governments and when a government must be obeyed is one that has been debated very extensively in Muslim history. In practice, of course, the guy with the power has his way and if he bothers to go through the motions of claiming legitimacy, everybody will agree to it. But in theory, there's supposed to be some independent check on the authority of the ruler.

Thefiqh.org is a great site. I've only read a handful of the articles there, but all of the ones I've read so far are excellent.

~ Posted at January 18, 2003 06:21 PM | Comment Permalink
one of the top five commentors on this blog! Jonathan Edelstein said: Total comments: 91   gold stargold stargold stargold stargold star

Most of the time, the guy with the power does have his way, but if his power is shaky, then the approval or disapproval of a court can make a great deal of difference. This happened in Fiji in March 2001, where - for the first time in history of which I am aware - a coup was successfully reversed by a court. I published an article on this subject last year; it isn't available online, but I can send you a manuscript copy if you want.

The amazing thing about the scholars cited by Justice Cheema, though, is how strong the ideas of popular sovereignty and the limited state were in early Islam. There was a definite consensus that the state was bound by the law and that the people had the right to overthrow unjust government, and some of the scholarship was informed by Hellenistic notions of democracy as well as shura.

It's one of the reasons I laugh out loud whenever I hear the standard "Muslims can't do democracy" speech.


~ Posted at January 20, 2003 04:09 PM | Comment Permalink
moderator Al-Munaqabah said: Total comments: 996   gold stargold stargold stargold stargold star

I definitely agree with you on this one, Jonathan. One of the reasons I have this blog is to help people find information like this on Islam and to get past the stereotypes. Some of my efforts are less successful than others, but oh well. You can't win if you're not in the game.

~ Posted at January 20, 2003 08:22 PM | Comment Permalink

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