Islamic Law & Law of the Muslim World eJournal: August 16

This week’s issue of SSRN’s Islamic Law & Law of the Muslim World eJournal includes:

“Sharīʿa Supervisory Boards, Governance Structures and Operational Risk Disclosures: Evidence from Islamic Banks in MENA Countries” by Ahmed Elamer, Collins Ntim, Hussein Abdou, and Chris Pyke

This paper examines the impact of Sharīʿa supervisory board (SSB) and governance structures on the extent of operational risk disclosures (ORDs), using a sample of 63 Islamic banks from 10 (i.e., Bahrain, Egypt, Jordan, Kuwait, Lebanon, Oman, Qatar, Saudi Arabia, Syria, and the UAE) countries in the Middle East and North Africa (MENA) region for the fiscal years 2006 to 2013. The authors find that SSB, block ownership, board independence, and country-level governance quality are statistically significant and positively associated with ORDs. This study has implications for policy-makers and regulators in the MENA region with respect to the development and implementation of SSB and governance mechanisms that can improve operational risk disclosures.

 

“Conscience Claims in Islamic Law” by Intisar Rabb

Equality and nondiscrimination norms within Islam are illustrated by episodes that display how decision makers interpret conscience claims made on the basis of or within contexts of Islamic law. This chapter centers primarily on ways in which Islamic law decision makers consider such claims from transsexual and transgender communities in the Muslim world. In 1986, the leader of Iran’s Revolution issued a fatwa authorizing sexual reassignment surgery. The government subsequently set up a “sex-change bureaucracy” to simultaneously accommodate and regulate the procedure. Yet norms of gender — rather than equality — animated the accommodation. The failure to address equality norms exemplifies typical (though not essential) approaches to Islamic law in Muslim majoritarian contexts. By contrast is a Muslim minoritarian context: Muhammad Ali’s conscience claim by which he sought exemption from the military draft for the Vietnam War based on his Islamic convictions. The U.S. Supreme Court eventually granted the exemption on a technicality that also sidestepped the question of equality. Nevertheless, this episode positively shaped equality norms in the U.S., over time, and gender-based litigation in the majoritarian Muslim world has the potential to do likewise — through reasoned consideration and interpretation of conscience claims. This chapter explores the interpretation behind such claims.

 

Property Rights for Landless Agricultural Workers and the Flexibility of Hanafi Land Law Jurisprudence: A Solution for Rural Displacement?” by Erum Sattar

With one stroke of a pen and a simple rule-change, landless agricultural workers on military-operated farms in Pakistan have found themselves facing eviction from lands their families have worked for generations. While exploring the dynamics of this legal change of status from share-croppers to cash renters, the author explores the extent to which a rule of classical Islamic Hanafi land law that gave tillers responsibility for paying a tax to the state for lands they worked can be a legal mechanism for vesting land ownership. At a time of increasing social pressures and rising resource inequality, the process is proof of the great power of the law to shape the legal, social and economic conceptualization of particular groups and to be able to change the way that particular groups are viewed in society.

‘Sovereignty, Legitimacy, and Fundamental Rights as Limitations to Criminalization Power of the State” by Simeneh Assefa

This article uses the doctrines of sovereignty, legitimacy state coercive power and fundamental rights as effective limitations to criminalization power of the state. It makes a theoretical discussion on those subjects including contemporary theories. It reviews interpretive methods of the bill of rights.

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