Posted on by Mark Movsesian

Rinella on Sharia in the State System

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Angelo Rinella (LUMSA) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

Migration flows, whether for humanitarian or economic reasons, have profoundly changed the face of today’s European societies. Groups of different ethnic, cultural, and religious origins have been added to the communities originally settled in the territories of states. These newcomers are required to observe the existing rules to ensure peaceful coexistence and to comply with the established order. At the same time, the Constitutions of liberal and democratic states guarantee that minorities and individuals who are “different”—by social, economic, religious, and political condition—do not suffer any discrimination because of their diversity. In this context, some communities with a religion extraneous to the European religious tradition, such as Islamic communities, ask to regulate some of the affairs of their personal lives according to religious rules, as an alternative to the state civil law.

This demand for recognition of their own identity persists even in the face of state inertia. It produces the de facto formation of regulatory micro-systems that have in their effectiveness their legitimation principle. Micro-systems of norms that coexist in the same territory of the state and apply to certain groups of individuals settled in the same space of the state. Individuals who choose to regulate certain aspects of their existence according to different and alternative rules with respect to the state rules. In other words, the State loses the monopoly of the production of the rules in the State territory.

Anthropologists define this phenomenon in terms of ‘legal pluralism.’ For us, legal scholars, the scenario painted poses a number of problems and questions.

My opinion is that in front of such a scenario, rejecting or denying the problem would be the most detrimental and, all in all, inconsistent with the democratic, liberal, and social spirit of European constitutions.

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Posted on by Liam Ray

Around the Web

Here are some important stories on law and religion from around the web:

Posted on by Christina Vlahos

Cosgel & Ergene, “The Economics of Ottoman Justice”

In November, Cambridge University Press released “The Economics of Ottoman Justice: Settlement and Trial in the Sharia Courts,” by Metin Coşgel (University of Connecticut) and Boğaç Ergene (University of Vermont).  The publisher’s description follows:

During the seventeenth and eighteenth centuries, the Ottoman Empire endured long periods of warfare, facing intense financial pressures and new international 9781107157637mercantile and monetary trends. The Empire also experienced major political-administrative restructuring and socioeconomic transformations. In the context of this tumultuous change, The Economics of Ottoman Justice examines Ottoman legal practices and the sharia court’s operations to reflect on the judicial system and provincial relationships. Metin Coşgel and Boğaç Ergene provide a systematic depiction of socio-legal interactions, identifying how different social, economic, gender and religious groups used the court, how they settled their disputes, and which factors contributed to their success at trial. Using an economic approach, Coşgel and Ergene offer rare insights into the role of power differences in judicial interactions, and into the reproduction of communal hierarchies in court, and demonstrate how court use patterns changed over time.

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Keshavjee, “Islam, Shari’a and Alternative Dispute Resolution”

This June, I.B. Tauris Publishers will publish Islam, Shari’a and Alternative Dispute Resolution: Mechanisms for Legal Redress in the Muslim Community by Mohamed Keshavjee (The Institute of Ismaili Studies). The publisher’s description follows.Islam, Sharia and Alternative Dispute Resolution

The meanings and contexts of Shari’a are the subject of both curiosity and misunderstanding by non-Muslims. Shari’a is sometimes crudely characterised by outsiders as a punitive legal system operating broadly outside, and separate from, national laws and customs. This groundbreaking book shows that Shari’a and its ‘fiqh’ (laws set forward by various Islamic legal schools) comprise a far more nuanced matrix of interpretations than is often assumed to be the case. Far from being monolithic or impervious to change from without, Muslim legal tradition has – since its beginnings in the early Islamic period – placed an emphasis on equity and non-adversarial conflict-resolution. Mohamed Keshavjee examines both Sunni and Shi’a applications of Islamic law, demonstrating how political, cultural and other factors have influenced the practice of fiqh and Shari’a in the West. Exploring in particular the modern development of Alternative Dispute Resolution (ADR), the author shows that this process can revitalise some of the essential principles that underlie Muslim teachings and jurispudence, delivering not only formal remedies but also perceived justice, even to non-Muslims.

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Bostom, “Sharia versus Freedom”

Sharia-v-FreedomIn October, Prometheus Books published Sharia versus Freedom by Andrew G. Bostom (Brown University Medical School). The publisher’s description follows.

Author Andrew G. Bostom expands upon his two previous groundbreaking compendia, The Legacy of Jihad and The Legacy of Islamic Antisemitism, with this collection of his own recent essays on Sharia—Islamic law. The book elucidates, unapologetically, Sharia’s defining Islamic religious principles and the consequences of its application across space and time, focusing upon contemporary illustrations.

A wealth of unambiguous evidence is marshaled, distilled, and analyzed, including: objective, erudite studies of Sharia by leading scholars of Islam; the acknowledgment of Sharia’s global “resurgence,” even by contemporary academic apologists for Islam; an abundance of recent polling data from Muslim nations and Muslim immigrant communities in the West confirming the ongoing, widespread adherence to Sharia’s tenets; the plaintive warnings and admonitions of contemporary Muslim intellectuals—freethinkers and believers, alike—about the incompatibility of Sharia with modern, Western-derived conceptions of universal human rights; and the overt promulgation by authoritative, mainstream international and North American Islamic religious and political organizations of traditional, Sharia-based Muslim legal systems as an integrated whole (i.e., extending well beyond mere “family-law aspects” of Sharia).

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Redding on What American Legal Theory Might Learn from Islamic Law

Jeff Redding (Saint Louis U. School of Law) has posted What American Legal Theory Might Learn from Islamic Law: Some Lessons About ‘The Rule of Law’ from ‘Shari‘a Court’ Practice in India. The abstract follows.

In 2010, voters in the state of Oklahoma passed a constitutional amendment that prohibits the Oklahoma courts from considering “Sharia Law.” A great deal of the support for this amendment and similar (ongoing) legal initiatives appears to be generated by a deep-seated paranoia about Muslims and Islamic law that has taken root in many parts of the post-9/11 United States. This Article contends that the passage of this Oklahoma constitutional amendment should not have been surprising given that it is not only right-wing partisans who have felt the need to strictly demarcate and police the boundaries of the American legal system, but also liberal partisans too. Indeed, this Article argues that certain modes of American liberal legal thought actually facilitate the anti-shari‘a mania currently sweeping the United States. As a result, an adequate response to this mania cannot simply rely on traditional, American-style, liberal legal theorizing. Indeed, as this Article argues and explains, some extant American liberal understandings of ‘law,’ ‘legal systems,’ and ‘the rule of law’ are eminently inappropriate resources in the struggle against American forms of reactionary parochialism because these liberal understandings are themselves deeply compromised by their own forms of parochialism.

This state of theoretical affairs is unfortunate. As a result, in the course of demonstrating some of the theoretical inadequacies of American liberal legalism, this Article also commences an alternative theorization about ‘law,’ ‘legal systems’ and, more particularly, ‘the rule of law.’ This theorization relies heavily on what can be learned about ‘the rule of law’ — including whatever exists of it in the United States — from the experiences of an Indian Muslim woman, ‘Ayesha,’ who recently used a non-state ‘shari‘a court’ (specifically, a ‘dar ul qaza’) in Delhi to exercise her Indian Islamic divorce rights. I recently interviewed Ayesha at length as part of a larger project on liberalism and Islamophobia.

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Kadri on the Many Facets of Shari’a

This month, Farrar, Straus & Giroux publishes Heaven on Earth: A Journey Through Shari’a Law From the Deserts of Ancient Arabia to the Streets of the Modern Muslim World, by Sadakat Kadri, a lawyer and journalist.  Kadri attempts to clarify prevailing misunderstandings over Shari’a and its application both in the ancient and modern worlds.  Above all, Kadri illustrates that Shari’a is far from monolithic; rather, its application today and throughout time has been varied and a matter of debate.  While Shari’a has occasionally been considered synonymous with harshness, Kadri reveals its essential ethic of compassion and equity—one not reducible to simplistic generalization.

Please read the New York Times review of Heaven on Earth here.  Please listen to the author’s interview on NPR’s Fresh Air here.  The publisher’s description follows the jump. Read more

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Sharia’h and the Exploitation of Natural Resources

Via Professor Howard Friedman:  Nima Mersadi Tabari, Ph.D. candidate at the University of London’s Institute of Advanced Legal Studies, has timely posted The Sharia’h Dimension of the Persian Gulf’s Hydrocarbon Resources.  Tabari illustrates how Islamic law governs extraction of Middle Eastern oil, financing oil operations, and sale of this indispensable and all consuming resource.  Such a study promises to illuminate the originating motives of the global oil politics that permeate American domestic policy (consider the congressional Arctic National Wildlife Refuge drilling dispute, which remains active after decades [NYT, Feb. 3]) and its foreign concerns (the Iranian threat to blockade the Strait of Hormuz, and naval buildup there, is a frightening tinderbox [NYT, Feb. 13].  Please find Tabari’s abstract after the jump. Read more