Recent Scholarship: Fadel on Islamic Self-Government

SHARIAsource Senior Scholar Mohammad Fadel has written an article in the most recent issue of the Journal of Islamic Ethics (available open-access here), discussing how states can incorporate sharīʿa into their legislative systems in a way consistent with our modern-day ideals of democracy and peace:

“Political Legitimacy, Democracy and Islamic Law: The Place of Self‐Government in Islamic Political Thought”

The article argues that Islamic constitutional theory and political thought provide explicit grounds for self-government based on a conception of the state that is grounded in the ideals of agency and fiduciary duties rather than conformity with the pre-determined substantive norms of revelation. Far from imposing particular outcomes, in most cases, the rules of the sharīʿa will only present options for how public law may be made, while giving the public the freedom, through the exercise of its collective deliberation, to choose how it operationalizes various provisions and values of sharīʿa in positive law in relation to its own determination of its own rational good (maṣlaḥa).

Here is a round-up of other recent scholarship:

“The Idea of Religious Neutrality and the Cooperation Model Compared in Germany, Austria and Italy” by Joshua Moir and Julia Wagner

This article, published in SSRN Law & Religion eJournal, compares the concept of “religious neutrality” in three European countries: Austria, Italy, and Germany. For each country, it provides a historic overview of church-state relations, a summary of constitutional provisions related to freedom of religion, and current legal debates surrounding religion in the public sphere (including Islamic headscarves). The article identifies instances where government officials and courts have shown preferential treatment towards the majority religion.

“Stealth Theocracy” by Yvonne Tew

This article was originally published by the Virginia Journal of International Law, and was highlighted in this week’s SSRN Law & Religion eJournal. It explores how governments can become more theocratic, not just through revolutions and constitutional amendments, but also through less transparent, informal changes by judicial and political actors. In Malaysia, for example, jurisdictional deference to the religious courts and judicial Islamization of the secular courts have resulted in a more theocratic constitutional order. The article discusses the implications of this for constitutional change, constitutional design, and constitutional identity.

“Does the Crown Court Discriminate Against Muslim-Named Offenders? A Novel Investigation Based on Text Mining Techniques” by Jose Pina-Sánchez, Julian V. Roberts, and Dimitrios Sferopoulos

This research study, published in the British Journal of Criminology and available open-access here, analyzed a sample of 8,437 defendants in the UK from between 2007 and 2017. Although the study found that defendants with a traditional Muslim name received sentences 9.8% longer than the rest of the sample, this difference disappeared once it accounted for the type of offense and other key case characteristics.