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Open Access Publications from the University of California


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.

Table of Contents


Tensions in Tradition: Hadith, Gender, and Reasonable Interpretation

Given the central role the hadith tradition and sunna of the Prophet play in forming the doctrine of Islamic theology and law, they have been the focus of modern criticism and reinterpretation when it comes to the issues of women and gender in Islam. However, the thrust of the hadith and sunna pull indifferent directions and can be read both to support and to undermine patriarchy. This Article, therefore, begins with a description of “tension reports” in the Islamic narrative tradition, arguing that there is just as much material that celebrates the memory of liberating moments for women as there are reports bolstering male dominance. Tension reports preserve moments defying the institutions of patriarch in early Islamic history. Next, I discuss what I describe as misogynistic traditions in the hadith and the three main interpretive strategies employed by Muslim women scholars in their approach to this material. I assess the merits of these strategies and offer an alternative. Rather than a wholesale rejection of the hadith and sunna, as some have proposed, I argue for a more circumspect approach. As critical components of the Islamic tradition, the hadith and sunna must continue to serve as the source for dynamic and inventive solutions even to deeply entrenched challenges such as patriarchy. Reasonable interpretation offers the promise of maintaining an ethically sensitive and dynamic approach to resolving even the most intractable issues.

An Evaluation of Pre-Modern Fiqh Rules Pertaining to the Marital Practices of Non-Muslims

The objective of this paper is to examine certain normative pre-modern Islamic legal rules regarding marital practices of non-Muslims, including those who later accepted Islam, as stipulated by a variety of jurists in manuals of law representing the positions of multiple legal schools. The rules regarding marital practices are particularly interesting because marriage was a highly (perhaps even the most highly) regulated feature of Islamic law, and thus rules pertaining to it shed light on broader concerns that guided the process of rule-making conducted by jurists. In conducting this analysis, I identify three overarching principles that appear to have guided Islamic marital rules pertaining to non-Muslims: (1) First, I found that there was a large degree of autonomy granted to non-Muslims in practicing their own marital customs, as long as they did not seek intervention from Islamic authorities; (2) Second, I found that most non-Islamic practices of non-Muslims that took place prior to their conversion to Islam did not pose a concern for Muslim jurists; however, practices pertaining to the parties to a marital contract were the subject of concern for Muslim jurists; and (3) Third, I found that jurists were highly concerned with keeping a certain religious hierarchy intact, especially when it came to intermarriage between Muslims and non-kitābīs. I argue that the seemingly liberal laws pertaining to non-Muslims derive from (A) a conception of the world held by jurists that is best understood as akin to imagined political communities, and (B) an interest in ensuring consistency in the law.

Heaven or Earth: The Hagia Sophia Re-Conversion, Turkish and International Law, and the Special Case of Universal Religious Sites

The Hagia Sophia has stood as one of the greatest religious buildings in the world for nearly 1,500 years. During this time, it has taken many forms, first as a church and then a mosque, before finally becoming a museum in 1934 .But in July 2020, the Turkish president, Recep Tayyip Erdoğan, converted the Hagia Sophia back to a mosque following a ruling by the Turkish Council of State. This re-conversion was received with outrage across much of the world, but whether the decision was legal poses a much more difficult question.

This article analyzes Turkish domestic law and international law to conclude that there are grounds for questioning the legality of the Hagia Sophia’s re-conversion. It then addresses the need to better protect universal religious sites like the Hagia Sophia in the future. The Council of State relied on principles of the Islamic waqf endowment structure to declare the museum status of the Hagia Sophia illegal. But, in reality, waqf legal doctrine has been dynamic throughout history. Separately, the Turkish Constitution holds secularism as one of its greatest principles, which the re-conversion of the Hagia Sophia, cloaked with religious importance and symbolism, would seem to violate. On the other hand, international law on cultural heritage, freedom of religion, cultural rights, minority rights, and conquest provide much weaker constraints on the changed status of the Hagia Sophia. This is concerning given that Hagia Sophia is not the only universal religious site—a place of shared religious importance for two or more religions—in need of protection due to its unique history. In light of this, a future treaty on universal religious sites or the expansion of freedom of religion under the International Covenant on Civil and Political Rights could provide potential vehicles for such protection.

Kidney, Money, and the Shī‘ah Implementation of the Rule of Necessity

In the U.S., over 43,000 people die every year waiting for a kidney. In Iran, however, monetary incentives have eliminated such a waitlist. Iran is the only country in the world with an unrelated living kidney donor program that has allowed for monetary incentives in the form of an altruistic gift, which has become known as the "Iranian Mode." Nevertheless, the legal details of the system remain vague and scholars both in and outside of Iran continue to debate the nature of the system. Does the Iranian system consider kidneys a commodity? Can you legally buy a kidney in Iran? If not, what is the legal nature of the monetary incentive? The answers to these questions are particularly important as many countries seek to find the right approach in addressing kidney shortages. This Article follows the newly established guidelines of the Iranian Model and seeks to answer these questions. It argues that Iran's peculiarity is neither related to its view on the marketability of the kidney nor the proprietary nature of the organ; instead, it can be associated with the principle of of necessity as interpreted by Shī‘ah Islam in Iran. The legal nature of the act of giving monetary incentives is also best described under the Islamic contract of ju’ala—the unilateral contract of reward. This Model as explained in this article can be implemented outside of Iran, eliminating the need to create a market for the sale of kidneys as some scholars have suggested.


The Protection and Empowerment of People With Disabilities in Islamic Law

Around the world, the experience of people with disabilities, like many marginalized classes, does not always align with the promises codified in statues and case law. However, inclusive ideals are found in even the earliest of Islamic legal texts, where people with disabilities are included within etymology, storytelling, the duty of almsgiving, and the influence of physiognomy on Islamic Law. People with disabilities are also integrated in contemporary Islamic legal principles, including penal, family, and municipal Islamic law. While it is tempting to contrast the everyday experiences of people with disabilities against the principles declared in laws or religious creeds, this type of analysis requires a sophisticated blend of sociology, theology, psychology, and even anthropology. This Comment seeks instead to survey the protections and power granted to people with disabilities within Islamic law. While this is a primarily legal analysis, the overlap of theology, morality, and scholarship inherent in Islamic law renders sifting out the solely legal principles affecting people with disabilities nearly impossible. In addition to highlighting the work of contemporary scholars such as Vardit Rispler-Chaim and Mohammed Ghaly, this Comment examines classical sources and early works of Islamic jurists.

Book Reviews

Mark Fathi Massoud's Shari'a, Inshallah: Finding God in Somali Legal Politics

In the popular imagination, Somalia conjures images of civil war, terrorism, piracy—in short, chaos. It is one of the last places one would expect to be a laboratory for rule of law. Shari’a, Inshallah upends that stereotype by showing how law and religion play an active and central role in building stability, and rule of law, in the country. In particular, it shows how law and religion interweave in shaping Somali political history, and how Shari'a has been an unavoidable force in building legitimancy for Somalia's political actors. Every political actor and participant in civil society has had to contend with Shari'a in order to assert legitimacy, drive political programs and agendas, advocate for rights, rule, and resist. Although Shari’a, Inshallah focuses on the Somali experience, it carries lessons for the greater Muslim World.