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 14, 2015
The concept of “natural law” is not one that is commonly associated with Islamic law. In his monograph, Islamic Natural Theories, Anver M. Emon attempts to shed light on this issue and uncover a natural law tradition in the legal theories of a number of premodern Muslim jurists. In doing so, Emon draws a distinction between the Hard Naturalists and the Soft Naturalists, two schools of natural law that differ on theological points but ultimately find common ground in their conclusions. For Emon, the conception of natural law concerns the extent to which reason is granted the ontological authority to determine norms, as opposed to a textualist approach to producing law. This essay investigates the primary sources relied on by Emon in his study and questions his reading of the texts, his arguments, and his conclusions. I conclude that Emon’s study, ambitious in its goals and important as a first step, presents a strained reading of the texts and struggles to convince the reader of the genuineness of a natural law tradition in Islamic legal theory as he presents it.
This paper examines the contributions of the Ḥanafī jurist al-Sarakhsī (d. 483 AH/1090-91 CE) to the development of the Islamic tradition of war. By examining al-Sarakhsī’s treatment of the use of force by both state and non-state actors in al-Mabsūṭ, this paper answers important questions about warfare in Islam. First, it asks whether Islam sanctions offensive war against non-Muslims because of their religious beliefs. Second, it investigates the extent to which Islamic jus in bello rules are consistent with the four Geneva Conventions of 1949 and their Additional Protocols. Third, it examines the circumstances under which it is permissible for Muslims to rebel against their ruler. Fourth, it explores the meaning of terrorism according to Islamic law and whether or not terrorism is punishable under Islamic law. This paper shows that the Islamic law of war has the potential to impact the attainment of peace in our globalized world. More importantly, this paper exposes the need for a reevaluation of specific classical Islamic rules regulating warfare in light of present-day armed conflicts.
Across geographically diverse Muslim-majority countries, nascent animal welfare movements have recently emerged, culminating in litigation in some instances and calls for legal reform in others. While Islamic legal precepts are often erroneously characterized as conflicting with Western legal ideals, this article highlights their compatibility vis-à-vis a descriptive, comparative and normative analysis of animal protection theory in both U.S. and Islamic legal theory. Moreover, this article argues that the Islamic legal duty to respect, protect and care for animals helps underscore the heightened legal duty to fellow human beings. To that end, it discusses the human rights implications of animal protection theory in Islamic law in relation to chronic maladies in some Muslim-majority societies, such as the unlawful deprivation of life, violence against women, children and religious minorities and mistreatment of the disabled. This article thereby offers a more expansive and necessary gleaning of the Islamic legal principles surrounding animal welfare and protection theory.