ISLAMIC LAW

Prof. Mark Cammack

This course segment provides a brief introduction to the Islamic legal tradition. The first session examines the historical development and jurisprudential foundations of Islamic law. The second session illustrates the contemporary application of Islamic inheritance law in Southeast. 

Islamic law is not a legal system, like the Korean or Indonesian legal system, but a legal tradition, like the common or civil law tradition. A legal tradition is a set of related beliefs, attitudes, and practices regarding the necessary components of a legal system, including the scope and purposes of the law, the manner in which law is created or discovered, the identity and function of legal actors, and the manner in which law is learned, implemented, developed and adapted. Like the common law and civil law traditions, Islamic law does not exist in Apure@ form anywhere, but influences to varying degrees and in different ways many of the world=s domestic legal systems. 

The fundamental premises of Islamic law are that God has revealed his will for human-kind in the Koran and the inspired example of the Prophet Mohammed, and that society's law must conform to God's revealed will. The belief in the Koran as God's word and that law should be based on God's command gives unity to the Islamic legal tradition. Within Islamic law, however, there is considerable diversity of opinion over the interpretation of God's revelation and the role of human reason, custom, and other factors in the development of specific rules and institutions. 

The scope of Islamic law is broader than the common law or civil law. In addition to core legal doctrines covering the family, wrongs, procedure, and commercial transactions, Islamic law also includes detailed rules regulating religious ritual and social etiquette. References to the application or proposed application of "Islamic law" or "Shariah" (also transliterated in English as Syariah) often refer narrowly to state enforcement of these social mores rather than more strictly legal doctrines. 

The law of inheritance is specified with greater detail in the original sources of Islamic law than most other subjects. For that reason, the doctrines developed in the early years of Islam have been more resistant to evolution and change than some other doctrinal areas. 

Unlike many contemporary legal systems, which recognize broad powers to specify the distribution of oneís property on death through the use of a will, Islamic law has traditionally required that the bulk of the deceasedís estate be distributed to the deceasedís relatives according to predetermined rules. The received doctrine regarding entitlement to inherit and the size of oneís share reflect the social world in which the law originated and developed on the Arabian Peninsula. But these rules, which favor male relatives and male lines of descent, are felt to be at odds with cultural practices among many Southeast Asian groups, which accord more equal treatment to male and female blood lines.  

The second session of the segment on Islamic law looks at the application of Islamic inheritance doctrines in contemporary Indonesia. We will focus on the inheritance provisions of the Compilation of Islamic Law, which was used by progressive Muslims within the government to attempt to grant greater inheritance rights to female relatives and relatives related through females than is recognized in the classical doctrines. And while these reformers were unable to achieve their most ambitious goals in the Compilation of the Islamic Law, modest improvements in the legal status of women are being made in Indonesia.  

 

BACKGROUND WEBSITES

 

Introduction to Islam


Centre for Islamic and Middle Eastern Law

Liberal Islam Network

 

 

SELECT BIBLIOGRAPHY

General Introduction to Islam

Fazlur Rahman, Islam (2d 1979).

John L. Esposito, Islam: The Straight Path (1991).

 

The Islamic Legal Tradition

Joseph Schacht, The Origins of Muhammadan Jurisprudence (1950).

Majid Khadduri, Nature and Sources of Islamic Law 22 G.Wash. U.L. Rev. 3 (1953).

Asaf A.A. Fyzee, Outlines of Muhammadan Law (1964).

Joseph Schact, An Introduction to Islamic Law (1964).

Noel Coulson, A History of Islamic Law (1964).

Bernard Weiss, Interpretation in Islamic Law: The Theory of Ijtihad 26 Am. J. Comp. L. 199 (1978).

John Makdisi, Legal Logic and Equity in Islamic Law 33 Am. J. Comp. L. 63 (1985).

Wael B. Hallaq, Islamic Legal Theories (1997).

Bernard Weiss, The Spirit of Islamic Law (1998).

 

Islam and Islamic Law in Asia

Clifford Geertz, Islam Observed: Religious Development in Indonesia and Morocco (1968).

Daniel S. Lev, Islamic Courts in Indonesia: A Study in the Political Bases of Legal Institutions (1972).

John L. Esposito (ed.), Islam in Asia: Religion, Politics, & Society (1987).

Robert W. Hefner, Civil Islam: Muslims and Democratization in Indonesia (2000).

Mohammad Hashim Kamali, Islamic Law in Malaysia: Issues and Developments (2000).

Arskal Salim & Azyumardi Azra, Sharia and Politics in Modern Indonesia (2003).

John R. Bowen, Islam, Law and Equality in Indonesia (2003).

 

Islamic Political Thought and Islam and the Modern State

Joseph Schacht, Problems of Modern Islamic Legislation 12 Studia Islamica 99 (1960).

W. Montgomery Watt, Islamic Political Thought (1968).

Bernard Lewis, The Political Language of Islam (1988).

Hamid Enayat, Modern Islamic Political Thought (1982)

James P. Piscatori, Islam in a World of Nation-States (1986).

John L. Esposito, Islam and Politics (3d ed. 1991).

Dale F. Eichelman & James Piscatori, Muslim Politics (1996).

Robert W. Hefner & Patricia Horvatich (eds.), Islam in an Era of Nation States (1997).

Ann Elizabeth Mayer, Islam and Human Rights: Tradition and Politics (3d ed. 1999).

 

Contemporary Trends: Fundamentalism and Progressive Alternatives

S. Abdul Ala Maududi, Islamic Law and Constitution (1965).

Richard Mitchell, The Society of Muslim Brothers (1969).

Fazlur Rahman, Islamic Modernism: Its Scope, Method, and Alternatives 317 (1970)

J.N.D. Anderson, Modern Trends in Islam: Legal Reform and Modernization in the Middle East 20 Inítl & Comp. L.Q. 1 (1971).

Emmanuel Sivan, Radical Islam: Medieval Theology and Modern Politics (1985).

Abdullahi Ahmed an-Na`im, Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law (1990).

Norani Othman, Shariía Law and the Modern Nation State: A Malaysian Symposium (1994).

Bassam Tibi, The Challenge of Fundamentalism: Political Islam and the New World Disorder(1998).

Norani Othman, Grounding Human Rights Arguments in Non-Western Culture: Sharia and the Citizenship Rights of Women in a Modern Islamic State in Joanne R. Baur & Daniel A. Bell (eds.) The East Asian Challenge for Human Rights (1999).

Kladed Abou El Fadl, Speaking in Godís Name: Islamic Law, Authority and Women (2001).

 

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