To simply promote study about sharia law is not objectionable but
Kagan has honored those who promote sharia law in Pakistan. Likewise, Kagan has been criticized for promoting Noah Feldman, author of
The Fall and Rise of the Islamic State, but it is not the topic per se which is objectionable, the rise of Islamist states are an important area of study. It is rather what are Kagan, Feldman, and perhaps most importantly, Islamists advocating for the rise of Islamist states. In short, is it a good thing or a bad thing based on what I would argue is a radically opposed understanding of law as based on the American Constitution, having profound implications for the role of religion in society, the basis of citizenship, and the notion of natural rights.
Stated baldly, per Feldman, that the contemporary world is oddly enough experiencing a re-birth of Islamic states and is thus worthy of study, I whole-heartedly concur, although it is a trend I view warily. On the other hand, when Feldman asserts, as he does, that "Americans have never fully resolved the question of whether the inalienable rights of life, liberty, and property preexist the U.S. Constitution or derive from it " (Rise, p. 13), then I have to take issue with Feldman. The Founders believed inalienable rights arise from a Supreme Being or Power, i.e., God.
Feldman does develop his notion into an even more problematic area. He argues that an opposing (and I would argue one that is faithful to the American Constitution)
"viewpoint that emerges from inward looking constitutional thought is that international bodies (and hence, the law they produce) lack the legitimacy of direct, democratic procedures. The outward looking concept is characterized by the view that the constitution is the paradigm of the rule of law and should embody justice in governance. This view embraces international organizations as an institutional link between universal values of freedom and justice and the implementation of the rule of law." Cf. "Feldman calls for outward-looking view of Constitution"
I believe you have the outlines demarcated between two substantially opposing viewpoints of the law. On the one hand, do natural rights precede individuals and are guaranteed by God? Or, does the law arise from a universally human and international understanding of justice? The first is the American understanding of life, liberty, and the pursuit of happiness while the latter is the international and contingent nature of humanly applied justice.
Professor Feldman, who joined the faculty of HLS in 2007, is a distinguished scholar in the areas of constitutional design, law and religion, and legal history. His most recent book, which examines the history of Sharia law, is titled The Fall and Rise of the Islamic State. His three previous books are Divided by God: America's Church and State Dilemma, What We Owe Iraq: War and the Ethics of Nation Building, and After Jihad, America and the Struggle for Islamic Democracy. His experience before joining the HLS faculty included a role as senior constitutional advisor to the Coalition Provisional Authority in Iraq and service as law clerk to Justice David Souter at the U.S. Supreme Court. He graduated summa cum laude from Harvard University in 1992 with an A.B. in Near Eastern Languages and Civilizations, was a Rhodes Scholar, received a D.Phil from Oxford University in Islamic Thought in 1994, and received his J.D. from Yale Law School in 1997.
The Constitutional Judiciary in the Muslim World:
Its Influence on the Interpretation of Constitutional and Legislative Texts
1970 to 2008 (November 12-14, 2008)
November 12
Welcome by the Dean of Harvard Law School, Professor Elena Kagan
Paper Abstracts
1. Wednesday, November 12, 9:30 - 10:15 am: The 20th century judiciary of the Muslim World: its historical emergence (Adel Omar SHERIF)
The purpose of this presentation is to shed light on the emergence and spread of the specialized model of the constitutional judiciary in a number of the Islamic countries during the last third of the 20th Century. We are going to highlight the interesting role it has been playing in shaping the constitutional, political, societal, economical dimensions of the systems of government and the citizens’ daily life of those countries through the noteworthy influence it has continuously left on the process of interpreting the constitutional and legislative texts, especially since the 1970s until today.
The scholarly literature is still debating whether the constitutional judiciary in the Muslim World has come into existence responding to public pressures, outside influence or true intentions on the rulers’ part to introduce effective judicial, and more democratic, reforms. These scholarly debates have led to different theories on the phenomenal evolution of the constitutional judiciary that reflects a progressive development of the legal thought in the Muslim World. These theories will be evaluated in the course of the presentation.
The increasing trend towards inscribing Islamic Shari’a principles into state constitutions in Islamic countries and the challenges that the constitutional judiciary has met with, in its attempt to enforce these norms, will be analyzed through an examination of its jurisprudence as it has evolved over the past forty years or so.
2. Wednesday, November 12, 11:15 - 11:45 am:
The introduction of the “Principles of the Islamic Shari’a” as a major source of the national legislation in the constitutions of major Muslim countries, 1970-2008 (Baber JOHANSEN)
The introduction of constitutional amendments in the 1970s and 1980 that made “the principles of the Islamic Shari’a” a major or even the major source of national legislation has, on the one hand, given a new Islamic dimension to constitutional law, it has, on the other, raised the question of the relation between this amendment and the other articles of the constitution. Is the Islamizing amendment an article above or in the constitution? Do all other articles of the constitution have to be interpreted in its light or is the constitution one body in which the new amendment has to be interpreted in a way that guarantees the rights and freedoms protected by the constitution? In the last instance the question is how, if the Islamizing amendment is above the rest of the constitution, the constitution can guarantee its status as being above the positive law and the constitution.
In the debates on constitutional law this question has been discussed in great detail and from multiple and contradictory positions. The discussion in this paper will center on the conditions under which this amendment has been introduced into the constitution of Pakistan, the constitution of Egypt and the constitution of the UAE and how the legal debates and the positions of the Supreme Courts differ with regard to this question.
3. Wednesday, November 12, 2:00 - 2:30 pm:
The emergence of the constitutional judiciary in the Arab World
(Salsabil KLIBI and Ghazi GHERAIRI)
The introduction of a constitutional judiciary in the political regimes of Muslim countries is part of a process of reform of the political power of those states which has its origin in the Nahda [Renaissance] that these countries initiated since the 19th century. Since their beginning these reforms saw in the occidental world their source of inspiration if not of pure and simple importation.
But the reformers of the Muslim World are constantly nagged by one question: “ Is this occidental model on which the awakening of the Muslim World depends compatible with the precepts of the shari’a”?
Until today, this question has never ceased to torment the minds in this part of the world. This fact explains the tension that characterizes the reform process of the Muslim World since the 19th century, a tension between the imperatives of Modernity and all their implications concerning the status and the role of religion in the exercise of political power but also between the concept of the individual and his relations with the society and the political power on the one hand, the precepts of Islam on the other.
4. Wednesday, November 12, 3:00 – 3:30 pm
Landmark decisions of the Tunisian constitutional judiciary
(Ghazi GHERAIRI)
The modern history of Tunisia shows us the remarkable presence, since the 19th century, of a strong constitutional consciousness, expressed as well in the discourse of claiming rights as in the official language. It is even possible to speak of a Tunisian constitutionalism.
In spite of this historical basis the institution of an organ that controls the constitutional character of statutes is of very recent date still largely imperfect.
In fact, the Tunisian Constitutional Council is a young institution created in 1988. Its contribution to the crystallisation of fundamental principles of Tunisian Law is still at its very beginnings.
But it is possible to detach a certain number of principles that the Council has either proclaimed, reaffirmed or clarified. These principles are held together by the task of combining in one system the relations between public institutions on the one hand, the fundamental rights of individuals on the other.
5. Thursday, November 13, 9:00 - 9:30 am
Changes in the Family Law from 1950-2008: the case of Malaysia (Abdul Hamid MOHAMAD)
Malaysia is a Federation of 13 States. The Federation provides the legislative lists for the Federal Parliament and the State Legislative Assemblies. While most laws are a Federal matter and within the jurisdiction of the common law courts, Islamic law, including family law, is a State matter within the jurisdiction of the Shari’ah courts. To avoid conflict of jurisdictions between the two courts, the Federal Constitution was amended. However, while some jurisdictional issues have been settled by the Federal Court (Supreme Court), some issues still persist and require legislative intervention.
With the establishment of the Shari’ah courts, laws, procedural and substantive, had to be codified. Procedural laws, civil and criminal, of the common law courts were adopted, with necessary modifications to make them Shari’ah-compliance. In the codification of the law of evidence and family law, laws from both sources were adopted even though a large portion of which were from the Shari’ah source.
I foresee that Muslim majority countries will adopt principles of both common law (or civil law) and the Shari’ah and that there will be a disintegration of the mazhabs within the Shari’ah itself.
6. Thursday, November 13, 9:30 - 10:00 am
The evolution of Family Law in Morocco from 1950 to 2008 (Miloud Laksir)
The presentation deals with the evolution of family law in Morocco across three distinct periods in the history of Morocco.
1. Before Morocco became a French protectorate in 1912.
-Islamic Law and traditional rules were applied to Moroccan Muslims;
-Moroccan Jews had their own courts governed by Jewish family law;
-Foreigners living in Morocco were governed by their national family Law or by the provisions of bilateral agreements.
2. During the French Protectorate.
-Islamic Judge remained in charge of the implementation of Islamic family Law as far as Moroccan Muslims were concerned;
-As for Moroccan Jews, they continued to be ruled by the principles of Jewish family law;
-Modern courts were established for non-Muslim foreigners to deal with their family cases, except for the Americans whose cases were considered by American consulates.
3. The period during which Morocco has been independent.
-In 1958, the first Family code was adopted and was amended in 1993, in particular its provision concerning marriage and matrimonial supervision;
-The year 2001, saw a major step forward accomplished in Morocco through the establishment of a Royal commission Chaired Chief Justice Dr Driss DAHAK, with the mandate of conducting a comprehensive revision of the provisions of the family code in force then. The four-year work of the Commission resulted in the drafting of a new family Law which was adopted by Parliament in February 2004.
-The provisions of the new Law stressed among other things, the principle of equality between husband and wife concerning the conclusion of the marriage contract.
It also placed the issue of divorce and marriage with more than one wife, under the court’s control strengthened the rights of the child and eased procedures regarding alimony.
7. Thursday, November 13, 10:00 - 10:30 am
The growing influence of the judiciary in the fields of marriage, maintenance, divorce and succession: the role of family jurisdictions
(Brahim BAHMANI)
Before the French protectorate was established in Morocco in 1912, Islamic law was applied in the country according to the Malikite rite. Then judges were appointed by the King in his capacity as Commander of the Faithful and the King would review decisions under special circumstances.
During the Protectorate period, the French introduced in Morocco, civil, criminal, commercial and property laws. However Moroccan Islamic law judges continued to be in charge of the implementation of Islamic law in cases concerning personal status, succession and properties without a title.
Furthermore, Moroccan Jews have their own judges who apply to them Jewish religious law. As to the French and other foreigners, residing in Morocco their family relations are governed by the provisions of the Royal Decree of 1913, which is still applied to non-Muslim foreigners.
When Morocco gained its independence, a code of personal status was introduced in 1958 and was amended in 1993. Then, in 2004, the present family Law of Morocco was adopted and entered into force.
The presentation consists of four parts: marriage, divorce, maintenance and succession. Each part will feature specific laws and how they were implemented by judges and how through this exercise, the Judiciary influenced the legislator in changing those laws.
Comments on key decisions will also constitute a major aspect of the presentation
8. Thursday, November 13, 10:30 - 11:00 am
Filiation and integration into the family of the orphaned child: an alternative approach (Walina Cheikh MAOULAININE)
The presentation will have two sections:
Section one will deal will the filiation of the child, the means to establish filiation, which are married life, confession of the father, and sexual intercourse by mistake (Choubha). This section will also touch on recourse concerning filiation through anathema oath and acknowledgement of fatherhood.
Section two will focus on the integration of the orphan into the family in the light of the Moroccan family law and other laws.
9. Thursday, November 13, 3:30 - 4:00 pm
The evolution of Tunisian Family Law between legislation and jurisprudence, from the enactment of the Code of Personal Status (1956 to the present) (Salsabil Klibi)
Tunisia did not proclaim the idea of laïcité in the text of its constitution, as Turkey did, but she has nevertheless opted for a positivist definition of its legal order.
In fact, in proclaiming the principle of the sovereignty of the people, a people that makes law through a parliament which it elects directly, Tunisia recognizes indirectly that the state is the only source of law and that the shari’a is limited to the role of a material source of law.
However, in its first article, the Tunisian Constitution proclaims also:” Tunisia is a free, independent and sovereign state. Arabic is its language and Islam is its religion”.
This ambiguity of the constitutional text inspires the question whether there is a possibility of a third way between a laic and a theocratic state.
Family Law is the privileged place for the unfolding of the sharia, even in states that want to demark themselves from it. In analyzing some court decisions on the liberty to contract marriage and on inheritance we will try to show the direction in which the consciousness of the Tunisian judge, reflecting without doubt the collective Tunisian consciousness, has – even if hesitatingly –developed. Starting with the idea that the shari’a can legitimately unfold in the law of a state that claims to pertain to Islam it has recognized the concept that Islam is but one characteristic of the society. Consequently, the judge who works out solutions to conflicts that refer to personal status law has to take into consideration or even make prevail other political values that have been given the status of legal rules of the highest rank.
A summary report of the conference is available as well.
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