Anver M. Emon

Islamic natural law theories

I. Introduction II. Hard Natural Law III. The Voluntarist Critique of Hard Natural Law IV. Soft Natural Law V. Conclusion

Islamic Law and the Canadian Mosaic: Politics, Jurisprudence, and Multicultural Accommodation

Starting with an analysis of the rhetoric surrounding the Sharia arbitration debate in Ontario, Canada, this paper argues that the underlying concept of Sharia dominant in the debates was one of code-like inflexibility. This concept of law, however, has a historico-political provenance stemming from the colonial period. Certainly Sharia law by the 18th century had developed a considerable amount of precedent. But that precedent was mediated through institutions. With the dismantling of institutions of Islamic legal learning and adjudication during the colonial period, Sharia became an abstract body of doctrines disconnected from a historical or institutional context. The conception of Sharia as an abstract body of values has led to a transformation of its meaning, from being a rule of law tradition to a system of rules that provide over-determined anchors for political contests over identity. To suggest an alternative approach to finding a place for Islamic law in multicultural liberal societies, this paper suggests that governments and the private sector contribute to a Muslim civil society sector focused on resolving disputes for Muslims in those areas that the state will allow parties to privately redress their conflicts. Civil society can be used as a platform to empower competing voices within the Muslim community, undermine conceptions of absolutism, and ultimately provide the Muslim consumer with a choice.

Natural Law and Natural Rights in Islamic Law

This article provides an initial point of departure for considering the scope to which Islamic legal theory sources (i.e. usul al-fiqh) countenanced a theory of reasons ontological authority that can be framed in terms of natural law. Tracing two main schools of thought, the Hard and Soft Natural Law approaches, the article shows that despite starting from competing theological positions, adherents of both schools developed a jurisprudence that nonetheless granted them ontological authority to direct their reason to the business of law and legal regulation. That authority, according to the two historical schools of natural law, was premised upon a fusion of fact and value in the natural world, thereby investing it with both empirical and normative content from which a reasoned deduction could assume normative force.

Codification and Islamic Law: The Ideology Behind a Tragic Narrative

This article repositions historigraphically a particular thesis in Islamic legal studies that characterizes Islamic law as utterly incompatible with codification, and by implication the modern administrative state. This article departs from that argument by situating codification efforts in Muslim majority polities alongside other efforts at codification, specifically 19th century Germany and the United States. The article shows that the thesis of incompatibility relies on a constricted reading of the “Islamic”, an overdetermined conception of the state, and an under-appreciation of the populist-cum-democratic ideology that animates the thesis in the first place. A more fruitful way forward is to reify the “state” rather than rarefy it as a theophanic specter. To better appreciate the relationship between Islamic law and codification, the argument suggests, requires that scholars attend to the “state” while resituating the history of the “Islamic” in terms of a history of the “legal”.

Beyond the Protestantism of Political Theology: Thinking the Politics of Theological Voluntarism

In an attempt to think through the Islamic alongside the Christian, this article draws upon the political theology of Carl Schmitt to reflect on the salience of sovereignty. But in doing so, the article re-reads Schmitt’s political theology for its Protestant voluntarism, and adopts a more robust theological voluntarism as a vehicle for reflecting on political thought across both Christian and Islamic history. Moreover, this approach to political theology makes possible reflections on how political theology, whether in Christian or Islamic thought, may offer a critical lens by which to gain new analytic insights into the operation of sovereignty in presumably secularised regimes of thought, such as international law.

On Sovereignties in Islamic Legal History

The concept of sovereignty has posed important challenges in the ongoing debates and discourses on Islam and international law. This essay illustrates how sovereignty reflects competing ideas about legitimate authority by examining and exploring distinct debates in Islamic thought, all of which share a concern about the nature, scope, and contours of legitimacy and authority. This article does not offer a prescriptive argument for a robust notion of sovereignty in Islam, nor does it attempt to judge the Islamic past pursuant to contemporary strands of political theory. Rather, it explores various strands of historical Islamic intellectual debate that traverse the realms of theology, law and politics in order to reflect on the conditions of different sovereignties and their relationship to one another

Techniques and Limits of Legal Reasoning in Shari'a Today

This article addresses a premodern Islamic legal heuristic that delineates the extent to which a given legal rule regards public or private interest, or even both. The legal heuristic in expressed in premodern sources as the huquq Allah and the huquq al-‘ibad, or the ‘rights of God’ and the ‘rights of individuals,’ respectively. The article also presents a case-study of the contemporary Islamic family law regime applies in Mindanao, the southern region of The Philippines, namely the Code of Muslim Personal Law put into effect under the Marcos regime. Through an analysis of the premodern legal tradition and an appreciation of the contemporary context of Mindanao, the article utilizes the premodern legal heuristic to reflect upon the dynamics of legal ordering and legal pluralism in the modern nation state.

On Statutory Interpretation and the (Canadian) Rule of Law: Interpretive Presumptions as Boundary Setting

Abstract This article brings together debates in statutory interpretation, the rule of law, and legal interpretation. Examining theoretical accounts of the rule of law, the article incorporates a greater attention to questions of interpretivism and the historical context of the interpreter in order to give contextual content to the rule of law. Construing rule of law in terms of fundamental questions about legal interpretation (e.g., discretion, determinacy, objectivity), the article proposes viewing rule of law as a bounded claim space in order to front the boundaries of that space as focal points for rule of law analysis. Reviewing various presumptions of statutory interpretation in Canadian jurisprudence, the article suggests that these presumptions are proxies for the boundary conditions that define, demarcate, and delimit a distinctively Canadian rule of law tradition, thereby showcasing the analytic heft and limited scope of rule of law analysis.

The Future of Theological Ethics: Returning the Gaze

This article offers an Islamic legal perspective on the question posed by this symposium issue, namely the future of theological ethics. Concerned that abstract statements of value all too often play into an apologetics that hides more than it reveals, the article offers a paradigm that makes two specific contributions to the question of this symposium in a context of increasing tension over religious diversity in Europe and North America. First, it adopts a context-rich form of ethical engagement that weaves together commitments to theology and to our place in the world. Second, it provides a model by which to interrogate the assumptions and even the secular apologetics that arise in legal disputes involving contests about religion and the public sphere.

The Quadrants of Shari'a: The Here and Hereafter as Constitutive of Islamic Law

This paper offers a model for conceptualizing the interaction between law and morality in religious legal systems, with specific reference to Islamic law. The doctrinal discussion concentrates on the dog in Islamic law, but the analytic focus is to shift focus on the law/morality distinction by adopting the perspective of religious legal traditions in order to return the gaze on the presumptions of secularity that animate contemporary conceptions of law.