UCLA Journal of Islamic and Near Eastern Law

There are three types of contracts under Islamic law: ṣaḥīḥ, fāsid and bāṭil.  Contracts whose essence and attributes are lawful and which have no defects in their elements (aṣl) or characteristics (waṣf) are termed ṣaḥīḥ (valid). It should be stated that in respect of fāsid contracts only the waṣf may be defective, whereas in respect of bāṭil contracts the aṣl of the contract may also be defective. Fāsid is a type of contract permitted by its intrinsic characteristics but not its features. Its irregularity negates its validity, which if cured would make this type of contract valid. The concept of bāṭil relates to a contract whose elements and characteristics are devoid of legality. This difference between fāsid and bāṭil results in a difference of effects. Each of these contracts are divided into different types. Sometimes, the conditions incorporated in a contract also determine the nature of the contract as either valid, irregular, or void. This article discusses these contracts, as well as the requirements pertaining thereto, as well as the types of terms which are included in a contract and their effect on the validity of the contract.

Jewish law—the halakha atop its Pentateuchal understructure (the ‘Written Law’) and its Mishnaic and Talmudic elaboration (the ‘Oral Law’ or ‘Oral Torah’)—is unique in multiple key respects. Its stringent evidentiary and procedural restrictions often prevent conviction of the guilty and entailed the establishment of two pragmatic complementary legal systems—‘the King’s justice’ and ‘courts that administer punishments and beatings without regard to Torah’—that grant the monarch and the judiciary broad discretion to punish as they deem fit. And while modern codes focus on crimes against persons, Jewish law also centers on crimes against God. Many contemporary scholars conclude that the deistic character of Jewish law and its reliance on complementary legal systems rules it out as a model for secular law. If this is so, Jewish law will have nothing to contribute to discussions regarding capital punishment and other crucial topics. We argue contrarily, seeing Jewish law as a pragmatic system that indeed addresses crimes against human victims. Drawing on Ancient Near Eastern and other historical sources, we show that the provisions that diminished the efficacy of Jewish law were later adaptations to changing social circumstances. Jewish law is unique is its incidence over millennia across national borders and within other governing systems. Marginalizing this ancient legal system instead of using it to develop contemporary legal systems squanders a valuable source of ‘wisdom capital’—foremost where capital punishment is concerned.

This article examines the Shāfiʿī school’s position on ribā in contemporary fiat currencies. It analyzes the definition of ribā, the underlying legal rationale for its prohibition (ʿillah), and engages with historical debates on the valuation of currencies and the applicability of ribā laws to non-gold-and-silver currencies (fulūs). By tracing the evolution of currency within Shāfiʿī jurisprudence from the 9th to the 20th century, the article identifies key trends among Shāfiʿī jurists regarding the legal characterization of bonds and paper money in the late 19th and early 20th centuries. The paper argues that the traditional Shāfiʿī exemption of fulūs from ribā laws is not absolute and does not solely depend on the physical attributes of the currency. Historically, Shāfiʿī jurists have emphasized the subjective value of gold and silver, owing to their longstanding roles as primary mediums of exchange. Furthermore, the potential for future currencies to share a similar legal basis for the prohibition of ribā—akin to that of gold and silver—is acknowledged, reflecting the adaptability of Shāfiʿī jurisprudence to evolving economic conditions.

According to Iranian family law, marriage restricts women’s rights to employment and freedom of movement. Under specific circumstances, the exercise of these rights is subject to the spouse’s consent. This unbalanced power relation between spouses can be rectified in three ways: reforming existing laws, judicial intervention, and contracts. This article illustrates that the first two solutions are not feasible in Iran’s legal regime. At the same time, marriage contracts allow the parties to lift legal discrimination and agree on equal rights by mutual consent. Case law, jurisprudential and legal principles show that contracts’ potential can reform the status quo more effectively. The conventional Islamic family forms different rights and duties for spouses. These are unbalanced leverages that lubricate family law controversies. Accordingly, this article argues that marriage contracts can balance these forces and create both equality and equilibrium in the family.

This Paper contends that without accountability for the atrocity crimes committed by the Assad regime, there is no chance that the Syrian people will experience an enduring peace. And when it comes to sequencing justice and peace, justice must—at least as it pertains to Syria—be underway in some manner before a transitional peace process is implemented. In support of this theory, this Paper argues that a resurrection and fresh interpretation of UN General Assembly Resolution 377(V)—the Uniting for Peace Resolution—can best-serve as an avenue for international law to prevail over international politics. In light of Russia’s 2022 invasion of Ukraine, this Paper builds off the momentum that has been gained in the debate over the balance of power in the United Nations (UN) between the Security Council and the General Assembly. Specifically, a contemporary analysis of the chemistry between the Uniting for Peace Resolution and the UN Charter has become increasingly relevant. Accordingly, a favorable interpretation of the Uniting for Peace Resolution could provide a constitutional opportunity for the General Assembly to establish a UN ad-hoc tribunal—a responsibility traditionally reserved for the Security Council—to prosecute high-powered perpetrators of atrocity crimes within the Assad regime. Not unmindful of the long-term political succession implications an international tribunal could have within Syria, this Paper nonetheless asserts that as a general matter, the UN Charter should be viewed as a “living tree”—a workable instrument whose interpretation may change over time to ensure it serves its object and purpose. With the ability of the Security Council to fulfill its statutory mandate under the highest levels of scrutiny by the international legal community, now is time to revive the Syrian accountability conversation.

Part II begins with a general review of the Arab Spring and the motivation underlying the uprisings in the Middle East. This Part distinguishes the events and consequences of the uprisings Tunisia and Egypt from that of Syria. Part III briefly examines the Syrian civil war and provides a thorough review of the crimes committed by the Assad regime. Part IV includes an analysis of the jurisdictional options for accountability in Syria. In eliminating many of the traditional mechanisms, it is here that the stage is set for a subsequent interpretation of the UN Charter and the Uniting for Peace Resolution (the Resolution). Part V argues that the Resolution should be re-examined in the modern context as a possible means of mitigating bad-faith Security Council vetoes. This Part analyzes the Resolution in coordination with the UN Charter and argues that under a liberal interpretation of each, the General Assembly can lawfully serve as a substitute for roles typically reserved for the Security Council. It is also here, that the evidence collected and preserved by the International, Impartial and Independent Mechanism for Syria is discussed. Part VI considers drawbacks and practical challenges associated with the creation of an UN ad-hoc tribunal for crimes committed in Syria. Part VII concludes that while a liberal interpretation of the statutory language may be idealistic, such interpretation nonetheless could have lasting effects in shaping a currently broken system. Such developments would, in the long run, help to promote human rights, deter future authoritarian regimes from attacking their own population, and ultimately strengthen the UN’s ability as a whole to promote humanity and justice in the international system.

This paper aims to explore what this responsibility entails with regard to the conservation of the natural balance and the protection of non-human and non-human-made aspects of creation: the natural environment. In doing so, it will explore the possible common ground between the Islamic perspectives and the contemporary call for an international prohibition of the destruction of the natural environment, also known as the call for the prohibition of ecocide. In order to get a clear view of the definition of ecocide and to limit and frame the dive into the Islamic tradition, I will first explore the contemporary call for ecocide law. Then I will revisit the Islamic tradition with a specific focus on historical and contemporary Islamic discourses and practices on ecocide.