22 March 2014

JOURNAL: Islamic & Law of the muslim world eJournal

The following articles from Islamic Law & Law of the Muslim World eJournal (2014),  have been published on SSRN:


"An Analysis of Women's Contribution to the Gender Discourse of Jamaat-I-Islami of Pakistan"  
Wagadu, Volume 11, 2013

SHAHBAZ AHMAD CHEEMA, Punjab University - Law College
Email: shahbazcheema@ymail.com

This article explores different facets of women's contribution to gender discourse of the Jamaat-i-Islami Pakistan. Their contribution is demonstrative of the fact that they want to live a life as honorable human beings while observing their religious responsibilities.

"Essay: Maria Was a Christian - Nadra Was a Muslim: Hertogh Revisited"
Australian Journal of Asian Law, Vol. 14, No. 2, Article 8, 2013

M. B. HOOKER, Centre for Indonesian Law, Islam and Society
Sixty years on, the Hertogh litigation (1950-51) continues to resonate in the Malay-Muslim world. The person on whom the courts focussed was a 13 year-old girl, ‘Maria’ in her Dutch-Christian persona and ‘Nadra’ in her Muslim reincarnation. The Singapore Court at the time was bound by wholly inappropriate law to decide which of her two religious identities was the correct one for determining custody and validity of marriage. There was, in fact, no ‘right’ answer and Maria/Nadra suffered the consequences. This essay describes the litigation, the result of which (apart from personal tragedies) was a complete loss of trust by Singapore Muslims in the post-war colonial legal system. The issue of trust is of vital importance and has recently re-appeared in Malaysian syariah. The issue there is exactly the same – what law determines the legal identity of women and children whose religious identity is uncertain as, for example, in circumstances of apostasy and conversion. The Malaysian answers are inconsistent and in the view of many (both Muslim and non-Muslim) are bidding fair to allow, or even encourage, distrust of the law and the courts. The subject itself, the personal status of women and children, is always crucial in Muslim societies, as is the question of who decides the appropriate law and determines its effects for daily life. In this respect the Hertogh litigation lives on and we ignore its historical lessons at our peril.

"Legal Frameworks and Land Issues in Muslim Mindanao"
in Land and Post-conflict Peacebuilding, Jon Unruh & Rhodri Williams (eds.), Earthscan, 2013, pp 451-474

PAULA DEFENSOR KNACK, Leiden University - Public International Law Studies Programme
Email: paula.knack@hotmail.com

Mindanao, the second largest island grouping in the Philippine archipelago, has experienced lengthy conflict over land, resources, and identity. It is the only island grouping with a large Muslim population, while the rest of the country is predominantly Christian. Territorial conflict in Mindanao began in the sixteenth century, when Spain conquered northern Mindanao and a small part of southern Mindanao from the sultanates or royal kingdoms of Sulu and Maguindanao. After years of revolts, the Philippine war for independence from Spain broke out in 1898. This was overtaken later that year by the Spanish-American War, which resulted in America’s purchase of the Philippines from Spain. Mindanao was subdued by American forces, but conflict between the Moros and American-sponsored Christian migrant settlers and workers from other islands continued, resulting in laws legalizing confiscation of lands owned by the Moros, large-scale land acquisitions (also referred to as land grabbing), and prejudice against and marginalization of the Moros. After Philippine independence from American rule in 1946, temporary calm ensued. However, in the 1960s, conflict resumed between Moros and Christian settlers, giving rise to a secessionist movement. In the 1970s, a war of independence was launched by the Moro National Liberation Front (MNLF). Twenty years of negotiation, beginning with the Tripoli Agreement in 1976 and culminating in a second peace agreement in 1996, put a temporary stop to the conflict. In 2008, the government and the Moro Islamic Liberation Front (MILF) signed the Memorandum of Agreement on Ancestral Domain (MOA-AD), which marked a significant step in the Moro quest for a homeland by setting up the Bangsamoro Juridical Entity (BJE). Publication of the proposed area of the BJE sparked vehement public opposition, however, because the territory overlapped with non-Muslim regions and was determined without consultation of affected Christian communities. The Supreme Court ruled in Province of North Cotabato v. GRP (Government of the Republic of the Philippines) that this entity violated the constitution. This chapter discusses the complex legal framework for resolving the struggle over land and natural resources in Mindanao. It demonstrates how conflicting laws and policies inherited from colonial regimes have added another layer of complexity to the conflict and made the achievement of lasting peace more difficult. A comprehensive understanding of such frameworks is crucial in preventing a return to conflict and achieving stable political and social regimes in post-conflict countries. The chapter is organized as follows: The first part reviews the relationship between the legal framework and the land conflict in Mindanao; the second part reviews the historical roots of the conflict. The third discusses the peace agreements and the creation of the Autonomous Region in Muslim Mindanao (ARMM); the fourth discusses the passage of the Indigenous Peoples Rights Act (IPRA) and its impacts on the legal framework; and the fifth discusses critical land issues arising from the 2008 MOA-AD. The chapter concludes by reviewing lessons learned.
"The Significance of Socio-Political Context in Shaping the Authenticity of Jamaat-I-Islami's Gender Discourse"
Pakistaniaat: A Journal of Pakistan Studies Vol. 5, No. 2 (2013)

SHAHBAZ AHMAD CHEEMA, Punjab University - Law College
Email: shahbazcheema@ymail.com

This paper analyses an important series of episodes in politico-legal history of Pakistan from a particular perspective. It is generally contended by Islamic religious discourses that whatever has been presented by them that is the only authentic manifestation of the divine sources, i.e. the Quran and the Sunnah of the Prophet Muhammad. The paper problematizes the above contention and argues that the link between the divine sources and its human interpretations is not so straight forward. Without denying or undermining the role of the divine sources, it is argued that there are many factors which help formulate the authentic stances of the religious discourses and one of them is socio-political context of a particular discourse. To substantiate the above argument, the paper analyses the gender discourse of the Jamaat-i-Islami, Pakistan. The analysis underscores the relevance and scope of those socio-political factors which have played a significant role in construction of authentic stances of the Jamaat-i-Islami’s gender discourse at different stages of its formation.
"The Federal Shariat Court’s Role to Determine the Scope of ‘Injunctions of Islam’ and Its Implications"
Journal of Islamic State Practices in International Law, Vol. 9, Issue. 2 (2013)

SHAHBAZ AHMAD CHEEMA, Punjab University - Law College
Email: shahbazcheema@ymail.com

The Federal Shariat Court (FSC) of Pakistan has been granted extensive power to determine validity of any law or custom having the force of law on the yardstick of ‘injunctions of Islam’. It is the original jurisdiction of the court. This paper explores the scope of ‘injunctions of Islam’ as construed by the FSC along with its implications on the constitutional system of Pakistan. Although it is an important jurisdiction having many implications for the role of Islam and its introduction into the legal system by judicial pronouncements, the irony of this jurisdiction is that it’s very foundation, i.e. ‘injunctions of Islam’ has not been defined precisely by the Constitution of Pakistan. Leaving this important phrase undefined, the Constitution has abdicated its task to the FSC. Hence, the court has to give a connotation to the ‘injunctions of Islam’ in order to exercise its jurisdiction. The paper posits that the court’s exercise of jurisdiction in this regard is somewhat ambivalent and amounting to interference in the tasks assigned to other constitutional courts.

21 March 2014

BOOK: Language and law by Annabelle Mooney


Language and law by Annabelle Mooney (Palgrave Macmillan), part of the new Language and ...series, introduces students to work in the field of forensic linguistics and demonstrates the omnipresence of legal language. Containing real-life examples, it shows that linguistic tools are invaluable in exploring legal language and language with legal consequences, and that lawyers are also language experts who exploit the 'normal' rules of language in ingenious ways. 


Reviews 

'This accessible, energetic and engaging book will offer a fascinating voyage of discovery to those beginning their journey into the study of language and law. Mooney's elegant, roomy prose and novel routes into topics provide a refreshing take, even for the more seasoned traveller. The combination of well-selected examples, effective activities and a lean yet thoughtful approach to previous research makes for an invigorating read.' 
- Frances Rock, Cardiff University, UK 

'Abundant real-world examples throughout the text illustrate not only how the law makes special use of language but also how unexpected legal consequences can arise from the ways in which people use language in their everyday lives.' 
- Janet Ainsworth, Seattle University School of Law, USA

20 March 2014

BOOKS: New Titles from Edward Elgar Publishing

BOOKS: New Titles from Edward Elgar Publishing


The following titles are now available from Edward Elgar Publishing:

Edited by: David S. Clark, Maynard and Bertha Wilson

Comparative Law and Society, part of the Research Handbooks in Comparative
Law series, is a pioneering volume that comprises 19 original essays written by
expert authors from across the world. This innovative handbook offers both a
history of the field of comparative law and society and a thorough exploration
of its methods, disciplines, and major issues, presenting the most comprehensive
look into this contemporary field to date.
 
Edited by: Rosalind Dixon and Tom Ginsburg
 

Comparative constitutional law is a field of increasing importance
around the world, but much of the literature is focused on Europe,
North America, and English-speaking jurisdictions. The importance ofAsia
for the broader field is demonstrated here in original contributions that
look thematically at issues from a general perspective, with special
attention on how they have been treated in East Asian jurisdictions.

A Comparative Law Approach
 
Edited by: Jean-Bernard Auby, Emmanuel Breen and Thomas Perroud
 
As in all periods of swift economic development and political upheaval,
our era of globalization has brought corruption and conflicts of interest
into the spotlight. This comprehensive study highlights the difficulties of
devising global legislative and judicial responses to these issues.


































19 March 2014

ARTICLE: The Discourse of Political Constitutionalism in Contemporary China

Albert H. Y. Chen's article "The Discourse of Political Constitutionalism in Contemporary China"  in the Legal History eJournal is now available on SSRN.
The discourse of “political constitutionalism” that emerged in China a few years ago is of considerable scholarly value, and is likely to have impact on the development of Chinese constitutional thought in the longer term. This article discusses the discourse of political constitutionalism in contemporary China by introducing and commenting on the scholarship of Professor Gao Quanxi, the leading theorist of political constitutionalism in China today. The article begins by providing readers with some basic information about modern Chinese constitutional history and the constitutional systems that are in force in mainland China (the People’s Republic of China) and Taiwan (the Republic of China) today. The article then describes the main features of Gao Quanxi’s studies on political constitutionalism. The article concludes by reflecting and commenting on Gao’s scholarship.

ARTICLE: Genealogical Analysis of Islamic Law Books Relied on in the Courts of Pakistan

Islamic Law and Law of the Muslim World eJournal has published an article  "Genealogical Analysis of Islamic Law Books Relied on in the Courts of Pakistan" by Shahbaz Ahmad Cheema and Samee Uzair Khan.  It is available on SSRN.


The article explains the significant positive impact the World Trade Organization (WTO) could have on the Middle East and international trade globally, but the struggle Middle Eastern countries are having in their accessions to the WTO. There is a comparison within the article, between Middle Eastern Countries that have acceded to the WTO and Middle Eastern Countries that have been the accession process for many years with very little progress in gaining membership. The article makes suggestions on how the Middle Eastern Countries stuck in the accession process can advance by following in their neighbors’ steps, as well as, why current WTO members should support Middle Eastern Countries’ accession, due to the vast benefits membership would reap bringing about peace, security, and solidarity.

18 March 2014

CALL FOR PAPERS: Constitution Writing, Religion and Human Rights - An International Workshop

LogoCALL FOR PAPERS

Constitution Writing, Religion and Human Rights
An International Workshop
June 5-7, 2014
 Center for Interdisciplinary Research (ZIF), Bielefeld, Germany

With the ZiF Research Group
“Balancing Religious Accommodation and Human Rights in Constitutional Frameworks”

Workshop organizers: Asli Bali (UCLA) and Hanna Lerner (Tel Aviv University)

What sorts of constitutional solutions could reconcile the protection of human rights with the demand for incorporation of religious law in contemporary democratizing or democratic states? In recent years, tensions over religion-state relations have been gaining increasing salience in processes of constitution-writing and amendment processes around the world. In many of these cases, constitutional drafters struggle to mitigate conflicts over religious law and religious identity, which are issues intrinsically related to questions of human rights, gender equality and protection of vulnerable minorities.

The workshop aims at advancing our understanding of how constitutional drafters address these two goals - conflict mitigation and human rights protection - and to what extent the relationship between them are complementary or whether there is a trade-off between the two.

By drawing on comparative analyses of past and contemporary processes of constitutional drafting where questions of religious law and religious identity were at the center of debate, participants are invited to discuss the following questions:

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