JINEL's goal is to emphasize and critically analyze all legal issues—social, political, civil, historical, economic and commercial—that are of particular relevance to Muslims and Near Easterners in both Muslim and non-Muslim societies.
Volume 20, 2023
Table of Contents
This Paper argues that despite the Israel High Court of Justice's prima facie holding in favor of Arabic being an official language, still the Court has failed to decisively resolve the question concerning the meaning, scope, and consequences of such recognition. Thus, the Court has missed an opportunity, which could have been faithfully addressed had the Court viewed the question at stake romantically, through the genesis of its legal-political premises, upon which it was established; namely, the 1947 Resolution 181 (II) of the United Nations General Assembly (the Partition Plan), wherein the collective rights, including linguistic rights, of the Arab minority citizen, were promised to be constitutionally protected.
Since the foundation of the Kingdom of Saudi Arabia, there had been a lack of public involvement in the decision-making process. Interestingly, however, the Saudi government has recently introduced a new requirement for most proposed laws and regulations: public consultation (PC). Among the first to address the reform in the Kingdom, this Article offers an overview of the PC concept and its development. This Article compares the U.S. and Saudi PC experiences and further analyzes the Saudi PC adoption to achieve three goals. First, the Saudi reader will gain a better understanding of the PC concept by introducing the U.S. experience (the notice and comment). Second, the U.S. reader, unfamiliar with the Saudi legal system, will gain a better understanding of the Saudi experience, along with a brief but necessary constitutional background. Third, the comparison provides an opportunity to make observations about the two experiences, which paves the road to propose critical recommendations for the Saudi policymaker to realize a meaningful PC implementation. Moreover, this Article documents and analyzes PC practices conducted by Saudi government agencies before and after the adoption of PC in the Kingdom.
Termination of Contracts and Force Majeure Under Qatari Law and Its Islamic Law Influences: Emergence of a Transnational Gulf Private Law
There is a growing interest in the private laws of Gulf states, and particularly Qatar, because of the applicability of such laws in transnational and local contracts that account for a significant volume of global trade, energy and construction. Islamic law has a negligible, if any, impact on the law relating to termination of contracts, including hardship and force majeure. Termination of contracts in Qatar is chiefly regulated by the Qatari Civil Code and other specialist legislation, as well as significantly the country’s Court of Cassation, which has produced a consistent flow of case law that is binding on lower courts. The Civil Code generally follows the rule that the parties may not unilaterally terminate contracts and that in any event sufficient notice is required. As regards unforeseen circumstances, the Civil Code distinguishes between general hardship and circumstances that render performance impossible. The former may be amenable to adaptation by the courts, whereas the latter effectively serves to terminate the parties’ respective obligations. Qatari law allows the parties to waive force majeure claims in their contracts.
This paper is a legal realist endeavor that seeks to uncover a thorough and exhaustive description of Polygamy Law in Pakistan before moving on to a prescriptive analysis. Having an understanding of the stakes involved, background rules at play and the inadequacies within the law can be immensely useful in identifying the harm and redressing it. Thus, in first separating the “Is” from the “Ought”, Part I describes Pakistani polygamy Law and the limited legal remedies available to unwilling cowives. In Part II, the “background rules” driving the bargain amongst the parties’ to enter (or leave) polygamous marriages is discussed. Thereafter in Part III, a distributive analysis is conducted using “ideal-types” to uncover polygamy’s dual nature as a security or a threat for all the parties impacted by the law. Here I rely on the idea that marital partners “bargain in the shadow of the law” with bargaining endowments created in part by the legal rules. By comparing four typical but contrasting marriages and examining the rules about the formation and breakup of polygamous marriages, the role of the pre-existing and new wife’s consent (or not) and the economic consequences of poly-formation in ongoing and divorcing marriages, I demonstrate that the surpluses generated and distributions currently in place can both benefit and harm the cowives. Finally, Part IV will prescribe a restorative justice approach to the situation of unwilling cowives, arguing that the solution ought to be focused on redressing the social, emotional and economic harm caused to unwilling cowives than simply punishing the perpetrator. Monetary restoration, victim-focused circles, and involvement of the wider community are proposed as alternatives to punishment. My goal with this project is to provide a nuanced and theoretically informed understanding of a topic over which much ink has already been spilled. By using analytical techniques from the legal realist toolkit, I seek to recast the case of polygamy in Pakistan as more than just a “ban it” or “allow it” issue.
Using Islam to Protect the Rights of Migrant Workers: Bringing Kafala into Sharia Compliance in Saudi Arabia
Saudi Arabia is home to thousands of migrant domestic workers who cook, clean, and provide child-care in private homes. These individuals are not only subject to the kafala system, where their visa is strictly tied to their employer, but they are excluded from the protections accorded to other workers (both Saudi and non-Saudi) under Saudi Labor Law. Although Saudi Arabia has promulgated a set of regulations to govern the treatment of migrant domestic workers, these regulations guarantee only the most basic rights and are often not enforced. As a result, the mistreatment of migrant domestic workers in Saudi Arabia has become a topic of concern for both human rights organizations and the International Labour Organization. In this Comment, I provide a history of kafala in Saudi Arabia, an overview of the role of Islamic law (sharia) in Saudi governance, and an analysis of sharia-compliant labor protections to argue that Saudi Arabia can and should reform its laws around migrant domestic workers to protect their fundamental human rights. In doing so, Saudi Arabia would not only uphold its obligations under international human rights law, but would increase its compliance with sharia as well.
As Muslims continue to settle in this country, there are a number of unique challenges that emerge in the criminal legal system, religious freedom, and much more. But one often overlooked question is that of the dietary rules and requirements that many Muslims adhere to. Many are familiar with the halal carts on street corners in major cities but are unaware of the intricacies of ḥalāl food doctrine and the associated regulatory and monitoring schemes in place. While it may be inconsequential to many, for Muslims, the principles of permissible and impermissible food are essential to understand and practice. However, in a secular nation like the United States, parsing what is or is not religiously compliant can be difficult and may leave room for deception and fraud. With that in mind, this Comment considers the current regulatory framework and identifies its shortcomings, proposing reforms in three distinct areas: inspection, certification, and labeling. These reforms form a quasi-public, quasi-private scheme that mirrors best practices as learned from the Kosher regulatory system, international examples, and state practices. This Comment hopes to begin conversation around halal products and how best to protect consumers through transparency and detection of fraud. As this country continues to add to its rich cultural, ethnic, and religious diversity, these questions become increasingly complex, but the basic principles of consumer protection and integrity in food production, certification, and the labeling process translate to a need for substantive reform.
Everyday Islamic Law and the Making of Modern South Asia is a thoroughly researched, well-written and important examination of how qazis, muftis and ordinary individuals shaped everyday Islamic law in 19th century South Asia, and how their concerted efforts helped maintain a robust presence of Islamic law in various legal fields. Lhost’s work is a valuable resource to anyone hoping to learn more about the history of Islamic law under colonial rule.