LUMS Faculty of Law Muslim Personal Law Fall Semester 2011 Junaid S. Ahmad

Transcription

1 LUMS Faculty of Law Muslim Personal Law Fall Semester 2011 Junaid S. Ahmad This course focuses on Muslim Personal Law (MPL) in contemporary Muslim societies. MPL, which includes all matters of inheritance for Muslims, is an integral part of a rich, complex and highly sophisticated system of Islamic jurisprudence (commonly known as Shari'a) that can be traced back to the 8th and 9th centuries C.E. Significant theological and jurisprudential differences existed from the very beginning not only between Sunni and Shi'a Muslim jurists, but also among the different schools of thought of each tradition, and indeed within the same school of thought (Madhahib, sing. Madhhab). Since that formative stage, Islam gradually spread throughout the world, with different schools and jurists alternating in influence among Islamic communities. Factors that contribute to the diversity and complexity of the theory and practice of MPL in Islamic countries and communities include: The timing and manner of the spread of Islam to different regions, and how it evolved there over time; the degree to which Shari'a was traditionally applied, and how and when was it displaced by European codes during colonial rule; disparities in levels of social and economic development of various Islamic communities. Generally speaking, MPL is applied today in almost all predominately Islamic countries, as well as among Islamic communities in secular states like India. Even where MPL is not enforced by official state courts, its principles are informally observed by Muslims as a matter of religious obligation and vital concern. Whether formally or informally, MPL governs matters of marriage, matrimonial relations and maintenance, divorce, paternity and custody of children, inheritance and related matters for more than a billion Muslims throughout the world. In this sense, one can say that the broad principles of MPL, and their basic assumptions and rationale, constitute the most widely applied system of family law in the world today. The politicization of MPL operates at different levels in various Islamic societies and communities. However, in most cases MPL is a proxy for political, ideological or cultural struggles, rather than an independent matter in its own right. For Muslim minorities within predominantly non-muslim countries, for example, MPL becomes the boundary of self-identity and gate-keeper of communal autonomy and cultural self-determination. This is clearly illustrated by the controversy over the Shah Bano case in India. In many Muslim majority situations, MPL was usually the only aspect of Shari'a that has successfully resisted displacement by European codes during the colonial period, and survived various degrees or forms of secularization of the state and its institutions since independence. As such, MPL has become the symbol of Islamic identity, the hard irreducible core of what it means to be a Muslim today precisely because it was always applied. Consequently, MPL has become the contested ground between conservative and fundamentalist groups, on the one hand, and modernist and liberal groups, on the other. While the former group seeks to entrench MPL as the embodiment of Islam itself, the latter criticize it as archaic, rigid and discriminatory against women. Unfortunately, the cause of genuine and legitimate reform is lost in this rhetorical absolutist confrontation, with

2 each side refusing to "concede" any validity to the other's point of view for fear of frustrating or jeopardizing their own broader political and social objectives. This course has two main objectives: to verify and document the scope and manner of the application of MPL in various case studies, including a heavy emphasis on MPL in Pakistan; and to explore and substantiate possibilities of MPL reform within particular communities of Muslims in their specific cultural, theological, legal and institutional context. Course requirements: Regular attendance of classes and careful preparation with regard to the reading assignments. All students are expected to participate in class discussion. 4 Short response papers, 2-4 pages, responding reflectively and critically to a selected issue or issues in the readings assigned for that week. Please do not provide a mere summary of the readings. You need to independently engage with and analyze key arguments in the readings. This may include pointing to critical questions for consideration, or contradictions where they might exist, or comparative differences within and between readings. You must hand in the weekly paper at the seminar in which that particular reading is being covered. We will have 2-3 students a week present key issues from their response papers in the form of short presentations. One class presentation by each student on Nov 13 on essay research. One essay of around 3000 words focused on a key research topic within the range of the course themes. Develop a critical interpretation, explanation, or line of analysis, supported by detailed evidence, in response to the topic. Please ensure that the essay is written in formal academic manner with a proper, consistent and accurate academic reference style sheet. Please consult with me when deciding on a topic. ESSAY DUE DATE: Dec 10 (to confirm) Grading 4 short response papers = 40 % Class participation = 10% 1 class presentation = 10 % Final essay = 40 % Denny, Frederick Mathewson, An Introduction to Islam (New Jersey: Pearson, 2006), Al-Misri, Ahmad al-naqib, Reliance of the Traveller: A Classis Manuel of Islamic Sacred Law (Maryland: Amana Publications, 1999)

3 Historical Overview of Islamic law and Western scholarship on Islamic law Baber Johansen, Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh (1999), pp The Origins and early development of Islamic Law Wael Hallaq, The Origins and Evolution of Islamic Law (2005), pp. 1-78, , (Chapters 4, 6, and 8 are recommended) * Wael Hallaq, Authority, Continuity and Change in Islamic Law (2001), chapters 2-4. Laws of Marriage (nikah) Susan Spectorsky, Chapters on Marriage and Divorce: Responses of Ibn Hanbal and Ibn Rahwayh (1993), pp Topics: Requirements, impediments to marriage, marital rights & relations Laws of Divorce (talaq) Susan Spectorsky, Chapters on Marriage and Divorce: Responses of Ibn Hanbal and Ibn Rahwayh (1993), pp *Svetlana Ivanova, The Divorce Between Zubaida Hatun and Esseid Osman Aga: Women in the Eighteenth-century Shari a Court of Rumelia, in Women, the Family, and Divorce Laws in Islamic History, edited by Amira El Azhary Sonbol (1996), pp Topics: Procedure, Khul, Retraction, Waiting period ( idda) Legal Theory (Usul al-fiqh) Khaled Abou El Fadl, Speaking in God s Name: Islamic Law, Authority and Women (2001), pp Hallaq, The Origins and Evolution of Islamic Law, pp *Wael Hallaq, Usul al-fiqh: Beyond Tradition, in Hallaq, Law and Legal Theory in Classical and Medieval Islam (1994), XII. Fatwas (1): The Classical Period Masud, Messick, and Powers, Islamic Legal Interpretation: Muftis and Their Fatwas (1996), chapters 1, 5, 9. Fatwas (2): The Modern Period Masud, Messick, and Powers, Islamic Legal Interpretation: Muftis and Their Fatwas (1996), chapters 26, 27, 28. *Judith Tucker, In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine (1998)

4 *Skovgaard-Peterson, A Typology of State Muftis, in Islamic Law and the Challenges of Modernity, edited by Yvonne Haddad and Barbara Stowasser (2004), pp Abou El Fadl, Khalid. Speaking in God s Name: Islamic Law, Authority and Women, Oxford: Oneworld, Tayob, Abdulkader. Muslim Personal Law Women s Experiences and Perspectives. Annual Review of Islam in South Africa (2002): Imami Shi i Law and the Iranian Revolution Hossein Modarressi Tabataba i, An Introduction to Shi i Law: a bibliographical study (1984), pp. 2-6, Anthropological Approaches to Islamic Law: Courts in the Islamic world John Bowen, Fairness and Law in an Indonesian Court, in Dispensing Justice in Islam: Qadis and their Judgments, edited by Masud, Peters, and Powers (2006), pp Personal Status laws in Muslim countries Abd Allah Na im, Islamic family law in a changing world: a global resource book (2002). *Talal Asad, Reconfigurations of Law and Ethics in Colonial Egypt, Formations of the Secular (2003), pp *Ann E. Mayer, The Shari ah: A Methodology of a Body of Substantive Rules? in Islamic Law and Jurisprudence, ed. Nicholas Heer (1990), pp Gender and Islamic Law: Current Debates Abou El Fadl, Speaking in God s Name, pp Kecia Ali, Progressive Muslims and Islamic jurisprudence: the necessity for critical engagement with marriage and divorce law in Progressive Muslims, ed. Omid Safi (2003), pp Recommended: Abdulaziz Sachedina, Woman, Half-the-Man? Crisis of Male Epistemology in Islamic Jurisprudence, in Perspectives on Islamic Law, Justice, and Society, ed. R.S. Khare (1999), pp Fatima Mernissi, The Veil and the Male Elite (1991), pp Weiss, THE SPIRIT OF ISLAMIC LAW, pp

5 Hallaq, A HISTORY OF ISLAMIC LEGAL THEORIES, pp