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volume 16 2014issue 2

european journal of law reform

Rug xx,x mm xx/xx/2014 (Textcetera)

european journal of law reform

volume 16

2014 • issue 2

european journal of law reform

volume 162014 issue 2

Special Issueon Islamic Law

Special Issue on Islamic Law

EJLR_2013_15_04_omslag.indd 1-3 29-7-2014 10:57:49

european journal of law reform16 EJLR 2014

editorial boardProfessor Dr. Katharina Boele-Woelki, Professor of Comparative Law, Private International Law and Family Law, University of Utrecht; Professor Dr. Frank Emmert, LL.M., John S. Grimes Professor of Law and Director of the Center for International and Comparative Law at Indiana University Robert H. McKinney School of Law  - Indianapolis; Dr. Christiana Fountoulakis, Professor, University of Fribourg; Professor Dr. Ingeborg Schwenzer, LL.M., Professor of Private Law, University of Basel Law School; Dr. Constantin Stefanou, Director of Taught Programmes, Institute of Advanced Legal Studies, School of Advanced Study, University of London; Dr. Helen Xanthaki, Senior Lecturer and Academic Director, Centre for Legislative Studies, Institute of Advanced Legal Studies, School of Advanced Study, University of London, Lawyer (Athens Bar).

managing editorDr. Constantin Stefanou, Director of Taught Programmes, Institute of Ad-vanced Legal Studies, School of Advanced Study, University of London, tel: +44 2078625861, fax: +44 2078625850, email: constantin.stefanou@sas.ac.uk

editorial assistantsBrooke Merry, Heather Grimstad, Devin Hillsdon-Smith and Salma Taman, Indiana University Robert H. McKinney School of Law - Indianapolis.

scientific advisory boardProfessor Dr. Mads Andenas, Department of Private Law at the Faculty of Law of the University of Oslo and Senior Fellow in Company and Commercial Law, IALS, School of Advanced Study, University of London; Professor Dr. Michael J. Bonell, Istituto internazionale per l’unificazione del diritto privato, Rome; Professor Richard M. Buxbaum, Ralston Professor of International Law, School of Law (Boalt Hall), University of California, Berkeley; Professor Dr. Inge Govaere, Professor of European Law, University of Ghent; Professor Dr. Dr. Dr. h.c. mult. Klaus J. Hopt, Director, Max-Planck-Institut für ausländisches und internationales Privatrecht, Hamburg; Professor John H. Jackson, Georgetown University Law Center, Washington D.C.; Professor David O’Keeffe, Faculty of Laws, University College London; Professor Edwin Rekosh, Director, The Global Network for Public Interest Law; Professor Dr. Avrom Scherr, Director, Institute of Advanced Legal Studies, School of Advanced Study, University of London and Woolf Professor of Legal Education; Professor Dr. Gunther Teubner, Johann Wolfgang Goethe Universität, Frankfurt/M.; Professor Bruno de Witte, Joint Chair at the Robert Schuman Centre for Advanced Studies and the Law Department, European University Institute, Florence; Professor Dr. Lajos Vékás, Head of Civil Law, Elte University, School of Law, Budapest; Professor Dr. Dr.h.c. Frank Vischer, former President, Europainstitut Basel, Professor em. University of Basel Law School; Membre de l’Institut de Droit International; Corresponding Fellow of the British Academy; Professor Boštjan M. Zupančič, Judge and Section President, European Court of Human Rights, Strassbourg.

sponsorsThe European Journal of Law Reform is published with financial support from the Swiss Academy of Humanities and Social Sciences and the Stiftung zur Förderung der rechtlichen und wirtschaftlichen Forschung an der Universität Basel. Logistic support is generously provided by the Institute of Advanced Legal Studies at the University of London and by Indiana University Robert H. McKinney School of Law - Indianapolis.

The European Journal of Law Reform is indexed/abstracted in Political Science and Government Abstracts.

aimsThe European Journal of Law Reform is a peer-reviewed journal, and aims to con-tribute to thinking and debate in its areas of concern by providing a platform for thought-provoking articles of a comparative and progressive nature. The term ‘European’ in the Journal’s title both highlights and draws on Europe’s main as-sets–its intellectual traditions and its diversity. These are reflected in the creative contributions to theory and practice of law from a worldwide authorship repre-senting various schools of thought.

submission of articlesManuscripts should be submitted by email to the Managing Editor. A journal style guide is available from the Managing Editor and the Publisher. For more informa-tion, please see www.ejlr.org.

publisherEleven International Publishing, Paleisstraat 9, P.O. Box 85576, 2508 CG The Hague, e-mail info@budh.nl, website www.elevenpub.com.

subscriptions European Journal of Law Reform is published quarterly. Annual subscription rates for 2014 are €195 (online), €225 (print), €250 (print and online). Prices exclude VAT and are including postage.

open access policySix months after the publication of the article, the author is free to provide open ac-cess to the final pdf of his work. For more information, visit www. elevenjournals.com. Eleven International Publishing assumes that the author agrees to the license which can be found on the website.

Subscription queries and requests for sample copies should be directed to the Pub-lisher.

ISSN 1387-2370© Eleven International Publishing

EJLR_2013_15_04_omslag.indd 4-6 29-7-2014 10:57:49

European Journal of Law Reform2014 (16) 2

Table of Contents

EditorialSpecial Issue on Islamic Law 209

ArticlesThe Place of Shariah Among the Legal Systems of the World 212Issam Saliba

An Introduction to Islamic Law 221Salma Taman

Democracy, Constitutionalism and Shariah 247The Compatibility QuestionA.T. Shehu

Human Rights in Islamic Law, Specifically the Guarantee of ProceduralJustice 274Mohamed Y. Mattar

Women’s Rights in the Islamic Perspective 303Omar Alsunaid & Bashar Almofadda

Appointment of Female Judges in Muslim Countries 317Aishath Muneeza

The Manifestation of Religious Belief Through Dress 329Human Rights and Constitutional IssuesAnthony Gray

Freedom of Speech, Freedom of Religion and Islam 353A Review of Laws Regarding ‘Offences Relating to Religion’ in Pakistanfrom a Domestic and International Law PerspectiveUjala Akram

The System of Kafala and the Rights of Migrant Workers in GCCCountries – With Specific Reference to Saudi Arabia 377Majed M. Alzahrani

International Kafala: A Right for the Child to Enter and Stay in the EUMember States? 401Julie Malingreau

Medically Assisted Reproduction in Egypt, Iran, Saudi Arabia and theUnited Arab Emirates 430Sunni and Shia Legal DebatesAndrea Büchler & Eveline Schneider Kayasseh

Islamic Policy of Environmental Conservation 4651,500 Years Old – Yet Thoroughly ModernMohamed A. ‘Arafa

Protection of Intellectual Property Rights Under Islamic Law 505From Tort to Special PrivilegesMahmood Bagheri, Mojtaba Nayyer & Mahdi Moalla

Book Review 521

EDITORIAL

Special Issue on Islamic Law

Islamic law is an old legal system. The only universally binding written rules inIslamic law are the Qur’an and the words and deeds of the Prophet collected inthe Sunnah. Its legislative period – the time during which statutory law was adopt‐ed – lasted from the year 609 of the Gregorian Calendar and ended with the deathof Prophet Mohamed (PBUH) in the year 632.

One of the central questions for anyone applying or trying to understandIslamic law is how the system addresses modern life issues that did not presentthemselves at the time when Islamic law was revealed and are thus not directlyaddressed in the ancient legislative texts. Two challenges, in particular, have to beovercome. First, some of the ancient rules may seem archaic today, in particularthose pertaining to criminal punishment. Cutting off the hand of a thief or pub‐licly flogging an adulterer are the kind of rules – or more precisely the kind ofinterpretation of rules – that contribute much to the widespread perception ofIslamic law as out of touch, unfit for modern societies or even cruel and inhuman.

Second, whenever a limited set of rules that was adopted in different timesand circumstances is applied, much depends on how these rules are interpretedand by whom. To give a modern day example, the United States Constitution isalso an ancient text in need of interpretation. The legal system of the UnitedStates, in principle, gives the right of interpretation to each and every judge, atleast those on the Federal courts. However, if there are divergent interpretations,there are rules about the powers of the Federal appellate courts to provide moreuniform guidance, and the US Supreme Court is the final arbiter with the powerto bind everyone in the entire country to one and the same interpretation.Islamic law does not have a similar structure of Islamic courts that can providebinding interpretation of the ancient texts. This makes for a considerable diver‐sity of interpretations. Moreover, the only authoritative primary sources ofIslamic law are the original texts in Classical Arabic. Any translations into anyother language, including even modern Arabic, are mere secondary sourcesbecause they are no longer the actual words of God and his Prophet. Thus, allthose who are not trained in Classical Arabic are developing their interpretationson the basis of earlier interpretations by the respective translators. This is whyIslamic law generally does not treat interpretations as binding law, becausehumans can err and times can change. The only exception would be if all Islamicscholars came to the same interpretation, because the Prophet said that his com‐munity will never agree or be in consensus in an error. Given the size and diver‐sity of the Islamic community of scholars today, consensus very nearly never hap‐pens, and each interpretation can be applicable only to those who want to applyit.

European Journal of Law Reform 2014 (16) 2 209

One may see this lack of an authoritative final arbiter for the interpretationof Islamic law as a weakness of the system. But is US law really any better, if itgives the power to determine such central issues as whether or not a woman canhave an abortion, whether or not men and women of the same sex can marry, orwhether or not there should be limits on the amount of money a person candonate to a political candidate or representative, into the hands of a single judgeholding a so-called swing vote on the Supreme Court, in particular if that judge ishim- or herself a political appointee?

Fortunately, Islamic law does not leave those who want to understand andapply it without guidance as to its proper interpretation. There are a number ofhierarchical rules and general principles in Islamic law that every interpretationof its rules has to respect. These include, for example, the rule that everything isallowed unless it is specifically prohibited, as well as considerations of publicinterest, fairness, and equity, as guidelines for interpretation. Once we begin withthe original Classical Arabic, instead of more or less accurate interpretations, andwe diligently and consistently follow the rules and general principles, we find thatIslamic law is not only flexible enough to accommodate modern life issues but itprovides solutions that do not need to look and feel archaic or out of touch, letalone cruel or inhuman. Quite to the contrary, Islamic law provides surprisinglymodern and decidedly just and fair solutions in many areas where Western sys‐tems still struggle, for example in areas such as consumer protection againstabuse by mortgage lenders and credit card companies, or in the protection of theenvironment.

It is the goal of this special issue of the European Journal of Law Reform toshed new light on Islamic law as a legal system. While other publications haveexplained modern and just solutions offered in Islamic law for particular ques‐tions, we are attempting to draw a wide arc across issues as diverse as the place ofIslamic law among legal systems (Saliba), the Sources and Fundamental Principlesof Islamic Law (Taman), Democracy and Constitutionalism (Shehu), HumanRights and Procedural Guarantees (Mattar), Women’s Rights (Alsunaid andMuneeza), Religious Dress (Gray), Freedom of Speech and Freedom of Religion(Akram), the Rights of Migrant Workers in Countries like Saudi Arabia or Qatar(Alzahrani), the Rights of Children (Malingreau), Medically Assisted Reproduc‐tion (Büchler and Schneider Kayasseh), Environmental Protection (‘Arafa), as wellas Intellectual Property Rights (Bagheri, Nayyer and Moalla). In this way, we hopeto provide a kind of Handbook on Islamic Law, and an incentive to see this legalsystem in a new and more objective way.

Comments and questions from our readers are most welcome and should beaddressed to the individual authors and/or to me as the editor of the present vol‐ume.

Sincerely Yours,

Frank Emmert (femmert@iupui.edu)

210 European Journal of Law Reform 2014 (16) 2

Special Issue on Islamic Law

I am delighted that the EJLR has produced this wonderful special issue on IslamicLaw. The issue has been a couple of years in the making and would have com‐pletely collapsed as a project had it not been for the intervention of Prof FrankEmmert who managed to put this special issue together in less than a year. Whatis particularly impressive about this issue is not just the quality of the articles butthe breadth of topics, which puts this special issue on a par with a textbook onIslamic Law. I congratulate the guest editors and the individual contributors fortheir brilliant efforts.

Dr Constantin Stefanou

EJLR Managing Editor

European Journal of Law Reform 2014 (16) 2 211