7. Penal law

2021 ◽  
pp. 102-114
Author(s):  
Mashood A. Baderin
Keyword(s):  
Islamic Law ◽  
Penal Law ◽  
Heated Debate ◽  
Penal Codes ◽  
Muslim Majority ◽  
Controversial Aspect

‘Penal law’ reviews Islamic penal law, the most controversial aspect of Islamic law that often prompts heated debate about its applicability in contemporary times. Classical Islamic law classifies crimes and their punishments into three main categories: hudūd, qisās, and ta’zīr. Substantively, the hudūd and qisās offences are specifically prescribed in the Qur’an and/or the Sunnah, while the ta’zīr offences are left to the discretion of the ruling authority or judges. There are a number of evidential requirements and standard of proving criminal offences under Islamic law. The classical Islamic penal rules are now codified into the current penal codes of a few Muslim-majority states, with necessary modifications.

Malaysia: Religious Pluralism and the Constitution in a Contested Polity

2012 ◽  
Vol 4 (2-3) ◽  
pp. 356-385 ◽  
Author(s):  
Andrew Harding
Keyword(s):  
Islamic Law ◽  
Religious Conversion ◽  
Common Law ◽  
Islamic State ◽  
Colonial Era ◽  
Federal Constitution ◽  
Highly Sensitive ◽  
Plural Society ◽  
Muslim Majority ◽  
Historical Developments

Malaysia has a classically plural society with a Malay/ Muslim majority and a legal system which, for historical reasons, is bifurcated between the common law and Islamic law. It also has a colonial-era federal constitution under which Islam is a state issue. Disputes concerning religion are both many and divisive. They are dealt with mainly in constitutional terms, especially in debates about the notion of an Islamic state, in light of Article 3 and the enshrinement of an official religion and in litigation. The latter is rendered complex by the separation of Islamic from common law jurisdiction in 1988, a fact that has given rise to highly sensitive and troubling litigation involving, especially, religious conversion in Lina Joy (2007). This article traces historical developments relating to religion and the law, and finds cause for some optimism that religious divides can be bridged by constitutional means, in light of recent judicial responses and evolving debates about the constitutional position of Islam.

The Other Muslim Bans

2020 ◽  
Vol 1 (1) ◽  
pp. 2-38
Author(s):  
Will Smiley
Keyword(s):  
Security Policy ◽  
Islamic Law ◽  
State Level ◽  
The State ◽  
The Other ◽  
State Court ◽  
Court Cases ◽  
State Laws ◽  
Foreign Law ◽  
Muslim Majority

This Article addresses and critiques the case for state-level legislative bans on courts citing “Islamic law” or the law of Muslim-majority countries. In particular, the Article reviews the most substantive evidence adduced by the bans’ supporters, in the form of a set of state court cases published by the Center for Security Policy (CSP). Very few of these cases, in fact, show courts actually applying Islamic or foreign law, and in none of these cases would the various forms of proposed legislation have been likely to alter the result. Thus even this report does not suggest a need for the state laws purporting to ban sharīʿa. The Article thus argues that even if these bans are not unconstitutionally discriminatory in their effect, they are ineffective at achieving their claimed purpose. This Article was originally published as an Occasional Paper in the Harvard Papers in Islamic Law series in 2018.

Islamic Constitutions and Democracy

2021 ◽  
pp. 106591292199124
Author(s):  
Moamen Gouda ◽  
Shimaa Hanafy
Keyword(s):  
Islamic Law ◽  
Muslim Population ◽  
Informal Institution ◽  
Additional Control ◽  
Negative Effect ◽  
Alternative Measures ◽  
Resource Wealth ◽  
Muslim Majority ◽  
Natural Resource Wealth ◽  
The Relationship

There is an ongoing debate on the relationship between Islam and (lack of) democracy. Considerable literature shows that Islam, represented as an informal institution by Muslim population share, has a negative effect on democracy. This study examines the effects of formal institutions, specifically constitutions that prescribe Islamic law ( Shari’a) as a source of legislation, on democracy. We use a newly developed coding of the degree to which Islam is incorporated in constitutions. Our empirical results show that the constitutional entrenchment of Islamic law has a negative and significant effect on democracy. Our findings are robust to using different estimators and instrumental variable regressions, employing alternative measures of democracy and controlling for Muslim population, natural resource wealth, and additional control variables. While we show that Islamic constitutionalism is a reason for a democracy deficit in Muslim-majority countries, we find no evidence that Islam is inimical to democracy when not entrenched in the constitution.

scholarly journals A Novelty of Perspective of Fikih and PP No. 17 1965 for Status of Ownership of Life Insurance in Claims Fund

2017 ◽  
Vol 4 (2) ◽  
pp. 193
Author(s):  
Fuji Rahmadi ◽  
Amiur Nuruddin ◽  
Nawir Yuslem
Keyword(s):  
Life Insurance ◽  
Constitutional Law ◽  
Islamic Law ◽  
Social Phenomenon ◽  
Normative Approach ◽  
Muslim Majority

Islam considers insurance or “insured” as a social phenomenon that was ormed by helping each other and humanity. Treasure gained after the death of a person as a result of a cause that by its nature will bring profit, which is done in the period he was still alive then the property as it was by Ibn Hajar al-Haytami, an expert from the Shafi'ites fiqh, in his book Tuhfatul-Muhtaj Syarah Kitab al-Minhaj (by Imam al-Nawawi), fall into the category tirkah treasure. Although the normative existence of insurance is a necessity in the communities in Indonesia but considering Indonesia as a Muslim majority country, then its existence cannot be released by the paradigm of the dynamics of the system of Islamic law. Therefore in this paper describes some of the approaches used in assessing the existence of insurance in Indonesia, it is not enough just to use the normative approach to Islam, but must be coupled with a conventional legal approach that is shaded by the science of law, especially constitutional law.

scholarly journals A Review of the Halal Poultry Slaughtering from Welfare and Legal Perspectives: Analysis of Research Results

2021 ◽  
Vol 30 (3) ◽  
pp. 11-27
Author(s):  
Karrar Imad Abdulsahib Al-Shammari
Keyword(s):  
Public Sphere ◽  
Animal Cruelty ◽  
The European Union ◽  
The Public ◽  
Current Review ◽  
The Subject ◽  
Muslim Majority ◽  
The Public Sphere ◽  
Controversial Aspect

The subject of halal slaughtering is one of the most widely discussed issues of animal cruelty and animal welfare in the public sphere. The discrepancy in understanding the contemporary and religious laws pertaining to animal slaughtering does not fully publicize to Islamic and Muslim majority countries especially with respect to interpreting the use of stunning in animals. The electrical stunning is the cheapest, easiest, safest, and most suitable method for slaughtering that is widespread and developed. However, stunning on head of poultry before being slaughtered is a controversial aspect among the Islamic sects due to regulations of the European Union and some other countries. The current review highlights the instructions of halal slaughtering, legal legislation, and the effect of this global practice on poultry welfare and the quality of produced meat.

scholarly journals CHOICE OF ISLAMIC LAW AS THE GOVERNING LAW IN ISLAMIC FINANCE CONTRACTS: THE UNITED KINGDOM AND NIGERIAN PERSPECTIVES

2017 ◽  
Vol 25 (1) ◽  
Author(s):  
Kareem Adebayo Olatoye ◽  
Abubakri Yekini
Keyword(s):  
United Kingdom ◽  
Islamic Law ◽  
Islamic Finance ◽  
Unique Problem ◽  
Party Autonomy ◽  
The United Kingdom ◽  
Muslim Majority ◽  
The Law ◽  
Governing Law

The globalisation of Islamic finance has brought the adjudication of Islamic finance disputes before non-Muslim courts and arbitral tribunals in Europe, America and elsewhere. Expectedly, the issue of the validity of the selecting Islamic law as the governing law of an Islamic finance contract often arises before these courts and tribunals. The article seeks to address the attitude of the United Kingdom and Nigerian courts to this unique problem. The thesis of the paper is that while the parties’ reasonable expectations in having their Islamic finance contracts governed by the Shari’ah may be met in Nigeria and by extension in other Muslim-majority countries, the contrary is the case in the United Kingdom and Europe where the courts do not generally favour the application of Islamic law. The paper advocates that the doctrine of the proper law of contract should be extended to Islamic finance by upholding Islamic law as the law selected by the parties (on the basis of party autonomy) or alternatively, as the system of law with which an Islamic finance transaction is most closely connected.

scholarly journals Acoso sexista callejero: ¿qué respuesta puede ofrecer el Derecho penal? (Sexist Street Harassment: What Kind of Answer Can the Penal Law Provide?)

2019 ◽  
Vol 9 (6) ◽  
pp. 983-1000
Author(s):  
Alicia Brox Sáenz de la Calzada
Keyword(s):  
Comparative Law ◽  
Waste Paper ◽  
Penal System ◽  
System Reform ◽  
Street Harassment ◽  
Legal Perspective ◽  
Penal Law ◽  
Penal Codes ◽  
Derecho Penal

El presente trabajo analiza la polémica existente en el ámbito penal en torno a la creación de un delito de acoso sexista callejero. En un primer momento, se estudia el fenómeno en sí, sus repercusiones victimológicas y los problemas que plantea la falta de regulación penal al respecto, en el ámbito de la Comunidad Europea y en España. A continuación, ante una eventual reforma del sistema jurídico español, se comentan las posibilidades que ofrece el Derecho comparado belga y francés, países cuyos Códigos penales han sido reformados para sancionar este fenómeno. Ambas iniciativas, aunque bien intencionadas, corren el riesgo de convertirse en papel mojado. This paper analyses the controversy over the phenomenon of sexist street harassment under a legal perspective. Firstly, this paper studies the phenomenon itself, its impact on the victims and the problems caused by the lack of Spanish and European penal regulation. Secondly, considering a possible Spanish penal system reform, we discuss the options that Belgian and French comparative Law offers to tackle sexist street harassment. These two countries have reformed their Penal Codes to sanction this phenomenon. Both initiatives, though well-intentioned, run the risk of becoming waste paper.

The Wrongfulness of Crimes of Unlawful Association

2008 ◽  
Vol 11 (4) ◽  
pp. 563-589 ◽  
Author(s):  
Manuel Cancio Meliáá
Keyword(s):  
Organized Crime ◽  
Criminal Policy ◽  
Criminal Organization ◽  
Political Organization ◽  
Collective Interest ◽  
Criminal Organizations ◽  
Actual Content ◽  
Penal Law ◽  
Penal Codes ◽  
Basic Approaches

Though always present in penal codes, offenses based on belonging to a criminal organization occupy a vanguard position in today's evolution of penal law systems: organized crime is located at one of the most prominent places in the criminal policy agenda. Nevertheless, neither criminal law theory nor the actual content of criminal provisions nor the putting of theory into practice enables an adequate restriction of the interpretation of the laws against criminal organizations. Therefore we need to investigate the wrongfulness at the base of this offense. European legal scholarship has proposed two basic approaches: to consider that this offense anticipates the possibility of punishing and prosecuting such behavior (anticipation theory) or to consider that it harms a collective interest ("public security," "public peace"). From our perspective, it is necessary to underline the collective wrongfulness embedded in a criminal organization and that, beyond the actual crimes committed, it questions the monopoly of violence exercised by the state. It represents the constitution of a violent organization that counters the basis of state political organization (arrogation of political organization). This approach opens a possibility to adequately define the offense of belonging to a criminal organization.

scholarly journals Marketing Islamic services: tackling misconceptualisation of commercial insurance

2020 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Djavlonbek Kadirov
Keyword(s):  
Islamic Law ◽  
Insurance Premium ◽  
Unique Type ◽  
Content Type ◽  
Commercial Insurance ◽  
Muslim Majority ◽  
Policy Failures ◽  
Monetary Gain ◽  
Practical Implications

Purpose The purpose of this paper is to offer an alternative conceptualisation of commercial insurance that is based on service thinking and compares it to the ideas flowing from goods thinking that currently appears to be a dominant mindset. Design/methodology/approach When deliberating on commercial insurance, Muslim jurists and scholars followed a misleading route of logical reasoning that is based on comparing insurance to other approved commercial contracts within Islamic Law. In this paper, the author questions such reasoning by contrasting the framework of service thinking to that of goods thinking. Findings The alternative framework proposed in this paper repositions commercial insurance as a unique type of service (rather than a good). It shows that commercial insurance can be seen as a bundle of benefits, which unfold in a gradual, intermittent, sporadic manner depending on the circumstances. This mode of a servicing relationship focuses on harm removal rather than the opportunistic actualisation of unfair monetary gain. Insurance premium is conceptualised as an availability fee, while compensation payout is recast as the restoration of value. Practical implications Muslim jurists and marketing practitioners can use this framework to further scrutinise the permissibility of different varieties of commercial insurance in the contexts of both Muslim and non-Muslim majority countries. As service thinking radically repositions the essence and structure of commercial insurance, the views on the relevance of “gharar” and “riba” may undergo significant re-conceptualisation. Moreover, the design of takaful options can be improved on this basis. Social implications Service thinking can better elucidate a positive societal role of commercial insurance that is in accord with the societal and Islamic maxim of harm removal. Some objections to commercial insurance relate to public policy failures. Well-regulated commercial insurance industries can substantially contribute to the economic development of impoverished societies. Originality/value This paper exemplifies compelling power as well as potential of the discipline of Islamic marketing in contributing to significant debates concerning the permissibility of modern commercial options.

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