This book explores the relationship between custom and Islamic law and seeks to uncover the role of custom in the construction of legal rulings. On a deeper level, however, it deals with the perennial problem of change and continuity in the Islamic legal tradition (or any tradition for that matter). It is argued that custom ("urf" and "adah") was one of the important tools that the jurists used to accommodate change and to adjust the rulings of shariah to the ever changing conditions in particular social and historical contexts. The book presents a diachronic study of the development of the concept of custom (and the different terms that have been associated with it) in the Islamic legal tradition.

Substantially about the relation between the concept of constitutionalism and Islamic Law in general and how such relation is specifically reflected in the Shi'ite jurisprudence, this volumeexplores the juristic origins of constitutionalism, especially in the context of 1905 Constitutional Revolution in Iran. Boozari has introduced the most important fatwas issued by the religious leaders in support of constitutionalism during the 1905 revolution, unfolded their underpinning theories, and analyzed the juristic technicalities of the terms.

Today there are more Muslims living in diaspora than at any time in history. This situation was not envisioned by Islamic law, which makes no provision for permanent as opposed to transient diasporic communities. Western Muslims are therefore faced with the necessity of developing an Islamic law for Muslim communities living in non-Muslim societies. In this book, Kathleen Moore explores the development of new forms of Islamic law and legal reasoning in the US and Great Britain, as well the Muslims encountering Anglo-American common law and its unfamiliar commitments to pluralism and participation, and to gender, family, and identity. The underlying context is the aftermath of 9/11 and 7/7, the two attacks that arguably recast the way the West views Muslims and Islam. Islamic jurisprudence, Moore notes, contains a number of references to various 'abodes' and a number of interpretations of how Muslims should conduct themselves within those worlds. These include the dar al harb (house of war), dar al kufr (house of unbelievers), and dar al salam (house of peace). How Islamic law interprets these determines the debates that take shape in and around Islamic legality in these spaces. Moore's analysis emphasizes the multiplicities of law, the tensions between secularism and religiosity. She is the first to offer a close examination of the emergence of a contingent legal consciousness shaped by the exceptional circumstances of being Muslim in the U.S and Britain in the 1990s and the first decade of the 21st century

With the contemporary discussions of political Islam, how do minority Muslim communities approach the traditional concept that Islam is both "religion and politics"? How do Muslim minorities address the issues of Islamic social organization when they are either a minority or living within a pluralistic state? Do Muslims who are integrated within a pluralistic state approach the traditional aspects of Islamic social-political organization in a manner different than those Muslims whomake up a majority? This study examines the Islamic categories of Christians under Islamic law and compares them with the status of Christians within Lebanon. David Grafton reviews the opinions of four Lebanese Muslim scholars (two Sunni and two Shi'a) regarding Christian political rights during the Lebanese Civil War. In such a diverse and complicated social context as Lebanon, who do these scholars respond to the position of the Christian community which claims political supremacy by maintaining its hold on the presidency? The debate on political Islam has, to this point, neglected to look seriously at Muslim communities in pluralistic contexts, and how such contexts affect their opinions of traditional social-political organization. This text attempts steps to reverse this trend.

There is a long and rich history of opinion centred on female prayer leadership in Islam that has occupied the minds of theologians and jurists alike. It includes outright prohibition, dislike, permissibility under certain conditions and, although rarely, unrestricted sanction, or even endorsement. This book discusses debates drawn from scholars of the formative period of Islam who engaged with the issue of female prayer leadership. Simonetta Calderini critically analyses their arguments, puts them into their historical context, and, for the first time, tracks down how they have informed current views on female imama (prayer leadership). In presenting the variety of opinions discussed in the past by Sunni and Shi'i scholars, and some of the Sufis among them, the book uncovers how they are, at present, being used selectively, depending on modern agendas and biases. It also reviews the roles and types of authority of current women imams in diverse contexts spanning from Asia, Africa and Europe to America. The research offers readers the opportunity to gain nuanced answers to the question of female imama today that may lead to informed discussions and to change, if not necessarily in practices then at the very least in attitudes. This ground-breaking book interrogates the cases of women who are reported to have led prayer in the past. It then analyses the voices of current women imams, many of whom engage with those women of the past to validate their own roles in the present and so pave the way for the future.

The meanings and contexts of Shari'a are the subject of both curiosity and misunderstanding by non-Muslims. Shari'a is sometimes crudely characterized 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 revitalize some of the essential principles that underlie Muslim teachings and jurisprudence, delivering not only formal remedies but also perceived justice, even to non-Muslims.

Emphasising an empirical research to contemporary legal pluralist settings in Muslim contexts, the present collected volume contributes to a deepened understanding of legal pluralist issues and realities through comparative examination. This approach reveals some common features, such as the relevance of Islamic law in power struggles and in the construction of (state or national) identities, strategies of coping with coexisting sets of legal norms by the respective agents, or public debates about the risks induced by the recognition of religious institutions in migrant societies. At the same time, the studies contained in this volume reveal that legal pluralist settings often reflect very specific historical and social constellations, which demands caution towards any generalisation.

Muslim Personal Law in South Africa: Evolution and Future Status, the first South African book on the topic of Muslim personal law, introduces readers to the debate on the awarding of unique rights to specific communities. The recognition of Muslim personal law or Muslim family law has provoked debate within and beyond the Muslim community and has attracted the attention of religious scholars, academics and lawyers. The contributors to this volume touch on constitutional issues, concerns with the application of Muslim personal law by our courts, and the conflict between supporters and opponents of the draft Bill on Muslim Marriages. The non-recognition of Muslim marriages has compelled Muslim women who have suffered the dire consequences of divorce, maintenance and custody to approach the courts for relief. If Muslim personal law were to be recognised by the state, to what extent would it protect the rights of women? Will recent judgments establish precedents that might prove to be at odds with the draft Bill? This book provides fascinating insight into the evolution and prospects of Muslim personal law in South Africa.

Drawing on legal and hadith texts from the formative and classical periods of Islamic legal history, this book offers an overview of the development of the questions prominent jurists asked and answered about women's issues. All assumed a woman would marry and thus the book concentrates on women's family life. The introduction establishes the historical framework within which the jurists worked. A chapter on Qur'an verses devoted to women's lives is followed by chapters on marriage and divorce which compare the views of jurists during the formative period. The fourth chapter describes the evolution from the formative to the classical periods. The fifth uses material from both periods to describe the array of legal opinion about other aspects of women's lives in and outside their homes. Throughout, jurists' opinions are juxtaposed with relevant quotations from contemporaneous hadith collections.

In "Peaceful Islamist Mobilization in the Muslim World: What Went Right, "Julie Chernov Hwang presents a compelling and innovative new theory and framework for examining for the variation in Islamist mobilization strategies in Muslim Asia and the Middle East. Based on extensive field research in Indonesia, Malaysia and Turkey, Hwang argues that states, through their policies, institutions, and capacities, can influence the mobilization strategies that Islamist groups choose, encouraging peaceful strategies, or sometimes, creating permissive conditions for violence. This book highlights the positive ways that states can influence Islamist group decision-making and answers the question--what went right?

Personal status laws remain a highly politicized area of debate in the Middle East, as the arena in which the contentious issues of women's rights, religion and minority groups meet. This is especially so when it comes to divorce. In Tunisia, with the moderate Islamist party Ennahda winning the first elections following the 2011 revolution, questions of religion in public life have gained greater primacy. The country is often hailed for its progressive personal status code, seen as an exception to the practice in many other Muslim countries. Polygamy is banned, for example, and in divorce cases there is gender equality. However, Tunisia's legal system contains many gaps and leaves much room for interpretation. Bearing in mind this importance of the role of Islam in judicial courts, Maaike Voorhoeve investigates whether the more progressive, and ostensibly secular, principles enshrined in Tunisia's Personal Status Code of 1956 are in fact adhered to in divorce cases. And if not, whether judges frequently turn to the Sharia, custom or societal norms as their primary sources of guidance. Through extensive research in the Tunisian courts, Voorhoeve investigates the different types of divorce, the arguments presented to the court and the consequent legal decisions made. She focuses on the role of female judges, testing the assumption that they adjudicate in a more gender-neutral way and examining the impact they have had on Tunisian legal culture and through this, Tunisian society. Gender and Divorce Law in North Africa therefore sheds light on the wide-reaching debate throughout North Africa and the Middle East concerning the role of Islam and Sharia in the public, political, legal and private spheres. This debate, which often pits secularists against Islamists, but is in reality much more nuanced, is key in a variety of fields, including Middle East studies and Islamic law.

This volume brings together studies that explore the richness of the Arabic literary tradition and of Islamic intellectual life, from the beginnings of Islam to the present. The contributors cover an unusually wide range of subjects, including such topics as guile in the Quran, marriage in Islamic law, early esoterica, commentaries on al-Hariri's Maqamat, Hellenistic philosophy in Arabic, medieval music and song, scurrilous poetry, Arabic rhetoric, cursing, the modern social and legal history of the Middle East, al-Kharrat's modernist project, and contemporary Islamic thought and responses to it. The volume's range reflects the enormous breadth of Everett Rowson's scholarship and his impact over a lifetime of publishing, editing, teaching, and mentoring in the many fields that constitute the Arabic humanities and Islamic thought. Contributors: Ali Humayun Akhtar, Thomas Bauer, Hans Hinrich Biesterfeldt, Kevin van Bladel, Marilyn Booth, Michael Cooperson, Kenneth M. Cuno, Geert Jan van Gelder, Hala Halim, Lara Harb, David Hollenberg, Matthew L. Keegan, David Larsen, Joseph E. Lowry, Zainab Mahmood, Jon McGinnis, Jeannie Miller, John Nawas, Bilal Orfali, Alex Popovkin, Dwight F. Reynolds, Susan A. Spectorsky, Tara Stephan, Adam Talib, Sarra Tlili, Shawkat M. Toorawa, James Toth, Mark S. Wagner.

The idea of maslaha has a rich history in classical legal thought and literature. Conventionally translated into English as 'general benefit' or 'general interest', it has been the subject, over many centuries, of intense argument in Muslim legal manuals about how the concept should be constructed and how it might be interpreted. Some celebrated scholars have even elevated its status to an independent legal source; while other prominent jurists have spoken of the special strictures which need to be applied to maslaha when considering it within the overall framework of Islamic law. In this thorough and original treatment of the concept, Abdul Aziz bin Sattam offers the first sustained examination of one of the most important tenets of Sharia. Seeking to illuminate not only the intricacies of its application, but also the wider history which has shaped it, the author examines its foundations, theoretical underpinnings and the key debates in both classical and contemporary texts. His book will be a vital resource for all those with an interest in Islamic law, whether of the medieval or modern periods.

Peaceful legal and political 'changing of the guards' is taken for granted in developed democracies, but is not evident everywhere. As a relatively new democracy, marred by long periods of military rule, Bangladesh has been encountering serious problems because of a prevailing culture of mistrust, weak governance institutions, constant election manipulation and a peculiar socio-political history, which between 1990 and 2011 led to a unique form of transitional remedy in the form of an unelected neutral 'caretaker covernment' (CTG) during electoral transitions. This book provides a contextual analysis of the CTG mechanism including its inception, operation, manipulation by the government of the day and abrupt demise. It queries whether this constitutional provision, even if presently abolished after overseeing four acceptable general elections, actually remains a crucial tool to safeguard free and fair elections in Bangladesh. Given the backdrop of the culture of mistrust, the author examines whether holding national elections without a CTG, or an umpire of some kind, can settle the issue of credibility of a given government. The book portrays that even the management of elections is a matter of applying pluralist approaches. Considering the historical legacy and contemporary political trajectory of Bangladesh, the cause of deep-rooted mistrust is examined to better understand the rationale for the requirement, emergence and workings of the CTG structure. The book unveils that it is not only the lack of nation-building measures and governments' wish to remain in power at any cost which lay behind the problems that Bangladesh faces today. Part of the problem is also the flawed logic of nation-building on the foundation of Western democratic norms which may be unsuitable in a South Asian cultural environment. Although democratic transitions, on the crutch of the CTG, have been useful in moments of crisis, its abolition creates the need for a new or revised transitional modality - perhaps akin to the CTG ethos - to oversee electoral governance, which will have to be renegotiated by the polity based on the people's will. The book provides a valuable resource for researchers and academics working in the area of constitutional law, democratic transition, legal pluralism and election law.

The relationship between Islamic law and society is an important issue in Iran under the Islamic Republic. Although Islamic law was a pivotal element in the traditional Iranian society, no comprehensive research has been made until today. This is because modern reformers emphasized the lack of rule of law in nineteenth-century Iran. However, a legal system did exist, and Islamic law was a substantial part of it. This is the first book on the relationship between Islamic law and the Iranian society during the nineteenth century. The author explores the legal aspects of urban society in Iran and provides the social context in which political process occurred and examines how authorities applied law in society, how people utilized the law, and how the law regulated society. Based on rich archival sources including court records and private deeds from Qajar Tehran, this book explores how Islamic law functioned in Iranian society. The judicial system, sharia court, and religious endowments (vaqf) are fully discussed, and the role of 'ulama as legal experts is highlighted throughout the book. It challenges nationalist and modernist views on nineteenth-century Iran and provides a unique model in terms of the relationship between Islamic law and society, which is rather different from the Ottoman case. Providing an understanding of this legal system in Iran and its role in society, this book offers a basis for assessing the motives and results of modern reforms as well as the modernist discourse. This book will be of interest to students of Middle Eastern and Iranian Studies.

This in-depth study examines the relation between legal theory (usul al-fiqh) and speculative theology ('ilm al-kalam). It compares the legal theory of four classical jurists who belonged to the same school of law, the Shafi'i school, yet followed three different theological traditions. The aim of this comparison is to understand to what extent, and in what way, the theology of each jurist shaped his choices in legal theory.

In a world where conventional interest-based finance is the dominant framework, Islamic banking faces many challenges. This text is the first to address different Islamic banking issues from both the researchers and practitioners' perspective across the world, reviewing their past experiences of Islamic banks.

Gender equality is a modern ideal, which has only recently, with the expansion of human rights and feminist discourses, become inherent to generally accepted conceptions of justice. In Islam, as in other religious traditions, the idea of equality between men and women was neither central to notions of justice nor part of the juristic landscape, and Muslim jurists did not begin to address it until the twentieth century. The personal status of Muslim men, women and children continues to be defined by understandings of Islamic law - codified and adapted by modern nation-states - that assume authority to be the natural prerogative of men, that disadvantage women and that are prone to abuse. This volume argues that effective and sustainable reform of these laws and practices requires engagement with their religious rationales from within the tradition. Gender and Equality in Muslim Family Law offers a ground-breaking analysis of family law, based on fieldwork in family courts, and illuminated by insights from distinguished clerics and scholars of Islam from Morocco, Egypt, Iran, Pakistan and Indonesia, as well as by the experience of human rights and women's rights activists. It explores how male authority is sustained through law and court practice in different contexts, the consequences for women and the family, and the demands made by Muslim women's groups. The book argues for women's full equality before the law by re-examining the jurisprudential and theological arguments for male guardianship (qiwama, wilaya) in Islamic legal tradition. Using contemporary examples from various contexts, from Morocco to Malaysia, this volume presents an informative and vital analysis of these societies and gender relations within them. It unpicks the complex and often contradictory attitudes towards Muslim family law, and the ways in which justice and ethics are conceived in the Islamic tradition. The book offers a new framework for rethinking old formulations so as to reflect contemporary realities and understandings of justice, ethics and gender rights.

"The Fatigue of the Shari'a" places on a continuum two kinds of debates: debates in the Islamic tradition about the end of access to divine guidance and debates in modern scholarship in Islamic legal studies about the end of the Shari'a. The resulting continuum covers what access to divine guidance means and how it relates to Shari'a, whether the end of this access is possible, and what should be done in this case. The study is based on textual analysis of medieval legal and theological texts as well as analysis of recent arguments about the death of the Shari'a.

The Dialectical Forge identifies dialectical disputation (jadal) as a primary formative dynamic in the evolution of pre-modern Islamic legal systems, promoting dialectic from relative obscurity to a more appropriate position at the forefront of Islamic legal studies. The author introduces and develops a dialectics-based analytical method for the study of pre-modern Islamic legal argumentation, examines parallels and divergences between Aristotelian dialectic and early juridical jadal-theory, and proposes a multi-component paradigm-the Dialectical Forge Model-to account for the power of jadal in shaping Islamic law and legal theory.In addition to overviews of current evolutionary narratives for Islamic legal theory and dialectic, and expositions on key texts, this work shines an analytical light upon the considerably sophisticated "proto-system" of juridical dialectical teaching and practice evident in Islam's second century, several generations before the first "full-system" treatises of legal and dialectical theory were composed. This proto-system is revealed from analyses of dialectical sequences in the 2nd/8th century Kitab Ikhtilaf al-'Iraqiyyin / 'Iraqiyyayn (the "subject-text") through a lens molded from 5th/11th century jadal-theory treatises (the "lens-texts"). Specific features thus uncovered inform the elaboration of a Dialectical Forge Model, whose more general components and functions are explored in closing chapters.