This exploratory chapter attempts to engage in a comparative analysis of principles of as-Siyar (... more This exploratory chapter attempts to engage in a comparative analysis of principles of as-Siyar (Islamic international law) and contemporary international human rights law emanating from the UN. The author raises the methodological question of whether an exploratory comparative analysis of concepts and scholarship based on sources from the 7th century (as-Siyar) and contemporary international human rights forms a valid intellectual inquiry. As-Siyar or Islamic International law encompasses public and private international law including a well-defined catalogue of rights of minorities, rights to the environment, humanitarian law, laws of armed conflict, diplomacy and human rights. International Bill of Rights (comprised of the UDHR, ICESCR and ICCPR) provides the foundation upon which the international system for the protection and promotion of human rights has been developed equally for men and women. An exploration into as-siyar and international human rights law highlights a number of commonalities as well as differences. Keywords: as-Siyar; contemporary international human rights law; contemporary world; Islamic international law
The present chapter explores evolving perceptions of children’s rights as reflected in Muslim sta... more The present chapter explores evolving perceptions of children’s rights as reflected in Muslim state party practice in light of responses to the UN Convention on the Rights of the Child (CRC). The only human rights treaty making specific mention of Islam and ratified by all Muslim states, the CRC, also enjoys near-universal ratification by all UN member states (the only exception being the USA). But this unanimous ratification by Muslim states is accompanied by reservations, some of which have been entered in the name of Islamic law and sharia, raising questions of compatibility between the CRC and Muslims’ perceptions of children’s rights. Reservations to multilateral treaties such as the CRC are one of several indicators of Muslim state practice and of Islam’s plural legal traditions in international law; others include, but are not confined to, country reports submitted to the CRC Committee, as well as a range of ‘Islamic’ human rights instruments. Assessing the first two indicators—reservations and country reports—against the backdrop of Islamic legal traditions and international conceptions of human rights, this chapter bears the following questions in mind: Does membership of the CRC per se constitute active engagement with and ownership of its provisions on the part of Muslim states? If so, is there a discernible or potential paradigm shift in perspectives in this area as a result of this engagement with the CRC as evidenced through reservations, withdrawals of reservations, and country reports? And to what extent do children’s rights as set out in the CRC resonate with comparable conceptions within Islam’s plural legal traditions—especially in relation to freedom of religion, thought, conscience, and the adoption of children? The chapter will focus on two of the CRC articles most widely reserved by Muslim states—Articles 14 (freedom of thought, conscience, and religion and 21 (adoption). It argues that children’s rights are an evolving concept with changing content and connotations in classical Islamic law, in Muslim state practice, and in regional and international child rights instruments. Vague and fluid formulations of various aspects of children’s rights both in the CRC and in classical conceptions of the Islamic legal traditions make it a malleable concept that enables diverse cultures and traditions to implement it in their particular contexts.
Introduction A significant articulation of plurality and evolution within the Islamic legal tradi... more Introduction A significant articulation of plurality and evolution within the Islamic legal traditions and conceptions of sharia came about with large numbers of Muslims migrating to non-Muslim-majority jurisdictions and putting down roots there. In the United Kingdom, for instance, the application of Islamic law and sharia is continuously undergoing a transformative process, emerging and evolving as what has been called Angrezi (‘English’ in Urdu) sharia – a hybrid of Islamic law and UK law. In common with Muslim-majority jurisdictions, the focus of Islamic law lies in the sphere of family law, this being central to group identity and cultural preservation through control of members of the group, especially women. An example of such control comes in the form of dispute resolution, focusing on family matters, in Sharia Councils. The fact that British Muslim communities’ interest in Islamic law and sharia lies foremost in being able to control the outcome of marriage and divorce disputes resonates with how the wider British public and state institutions perceive Islamic law. In 2008, the then Archbishop of Canterbury, Dr Rowan Williams, famously declared that Muslim communities sought the freedom to live under sharia law, and that there needs to be ‘access to recognised authority acting for a religious group: there is already, of course, an Islamic Shari'a Council, much in demand for rulings on marital questions in the UK’. He then qualified this by cautioning that ‘recognition of “supplementary jurisdiction” in some areas, especially family law, could have the effect of reinforcing in minority communities some of the most repressive or retrograde elements in them, with particularly serious consequences for the role and liberties of women’. Lord Bach, speaking in the House of Lords a year after Dr Williams's speech, was of the view that we cannot prevent individuals seeking to regulate their lives through religious beliefs or cultural tradition. Communities and other groups have the option to use religious councils or any other system of alternative dispute resolution and agree to abide by their decisions. Nothing in the law of England and Wales prevents people abiding by Sharia principles if they wish, provided that their actions do not conflict with the law in England and Wales. If they do, the law in England and Wales prevails.
... Freedom of Religion versus Equality in International Human Rights Law: Conflicting Norms of H... more ... Freedom of Religion versus Equality in International Human Rights Law: Conflicting Norms of Hierarchical Human Rights (A case study of Pakistan). By Shaheen Sardar Ali and Javaid rehman. Artikkelen er tilgjengelig i papirutgaven. ... By Shaheen Sardar Ali and Javaid rehman. ...
Hague Academic Press, an imprint of T.M.C. Asser Press eBooks, 2010
... 2007) 95136; Shaheen Ali and Javaid Rehman, 'The Concept of Jihad in Is... more ... 2007) 95136; Shaheen Ali and Javaid Rehman, 'The Concept of Jihad in Islamic International Law', (2005) 10 Journal of Peace and Security Law 321, 343. I am grateful to Mamman Lawan, Ayesha Shahid, Amila Jayamaha.
Introduction Chapter 5 provided the untold narrative of a complex and nuanced process of Muslim w... more Introduction Chapter 5 provided the untold narrative of a complex and nuanced process of Muslim women's contribution to the drafting of CEDAW. This chapter investigates the extent to which CEDAW finds a place in governmental and non-governmental policy documents, legislation, judicial decisions, governance structures and institutions in Pakistan. It poses the question whether CEDAW's pre- and post-ratification processes and attendant discourse have ‘domesticated’ it within state, government and society in that jurisdiction. The study suggests that in a country where pluralism is deeply embedded in legal culture as well as in religious and cultural norms, human rights instruments in general and CEDAW in particular receive an ambivalent and mixed reception as the newest layer of plural legalities. This chapter draws upon a variety of governmental and non-governmental sources, and upon surveys of judicial decisions of the high courts and the Supreme Court that have invoked CEDAW since Pakistan's ratification in 1996, and is informed by academic literature on the approach of Pakistan and other Muslim states to CEDAW. I was a participant in the accession process and draw upon those personal experiences in developing the present study. This chapter has also benefited from discussions and personal communications with members of the Pakistani NGO communities, in particular those involved in the thirty-eighth session of the CEDAW Committee, in 2007, where Pakistan's country reports were under discussion. As mentioned in Chapter 5, literature on CEDAW focuses on the post-ratification scene, especially in Muslim states due to the far-reaching reservations entered by them citing Islamic law and sharia . Hence there is a need to take a step back and explore the pre-ratifications debates and discourse and then link them to the post-ratification situation. The present chapter attempts to undertake this task using Pakistan as an example. CEDAW within a Religious, Cultural and Socio-legal Context Since its inception as an independent nation in 1947, Pakistan has struggled with multiple strands of its identity (religious, cultural, ethnic, linguistic) and the manner in which these inform conceptions of state, government, law and society, as well as the status of women.
Page 1. From Transnationa Relations to Transnational Laws Northern European Laws at the Crossroad... more Page 1. From Transnationa Relations to Transnational Laws Northern European Laws at the Crossroads Edited by Anne Helium, Shaheen Sardar Ali and Anne Griffiths ■ Page 2. Page 3. FROM TRANSNATIONAL RELATIONS ...
This paper focuses on the role and rationale of Sharia Councils in Britain (in particular in the ... more This paper focuses on the role and rationale of Sharia Councils in Britain (in particular in the issuance of ‘Islamic' divorce certificates to Muslim women), and considers questions of authority and authenticity in their operative frameworks from an Islamic jurisprudential perspective including Siyar and Fiqh-al-Aqalliyat. Focusing on British Sunni Muslims of Pakistani ethnicity, the paper poses the question that since ‘Islamic laws' are susceptible to interpretative plurality, who determines what constitutes ‘authentic' Islamic law in the absence of an identifiable ‘authority', at least within the Sunni Islamic legal traditions? Is there a tangible socio-religious requirement for British Muslim communities to have a parallel quasi-legal system for dispute resolution? How do responses to these questions frame the assumed central role currently fulfilled by Sharia Councils, and what are the alternatives? In the context of Sharia Councils, this paper argues that whilst some will approach these institutions entirely of their own volition exercising agency, autonomy and/or fulfillment of their religious obligations, their very existence and lack of ‘Islamic' alternatives pressurises women to use such forums to obtain ‘acceptance' from their families and communities.
This exploratory chapter attempts to engage in a comparative analysis of principles of as-Siyar (... more This exploratory chapter attempts to engage in a comparative analysis of principles of as-Siyar (Islamic international law) and contemporary international human rights law emanating from the UN. The author raises the methodological question of whether an exploratory comparative analysis of concepts and scholarship based on sources from the 7th century (as-Siyar) and contemporary international human rights forms a valid intellectual inquiry. As-Siyar or Islamic International law encompasses public and private international law including a well-defined catalogue of rights of minorities, rights to the environment, humanitarian law, laws of armed conflict, diplomacy and human rights. International Bill of Rights (comprised of the UDHR, ICESCR and ICCPR) provides the foundation upon which the international system for the protection and promotion of human rights has been developed equally for men and women. An exploration into as-siyar and international human rights law highlights a number of commonalities as well as differences. Keywords: as-Siyar; contemporary international human rights law; contemporary world; Islamic international law
The present chapter explores evolving perceptions of children’s rights as reflected in Muslim sta... more The present chapter explores evolving perceptions of children’s rights as reflected in Muslim state party practice in light of responses to the UN Convention on the Rights of the Child (CRC). The only human rights treaty making specific mention of Islam and ratified by all Muslim states, the CRC, also enjoys near-universal ratification by all UN member states (the only exception being the USA). But this unanimous ratification by Muslim states is accompanied by reservations, some of which have been entered in the name of Islamic law and sharia, raising questions of compatibility between the CRC and Muslims’ perceptions of children’s rights. Reservations to multilateral treaties such as the CRC are one of several indicators of Muslim state practice and of Islam’s plural legal traditions in international law; others include, but are not confined to, country reports submitted to the CRC Committee, as well as a range of ‘Islamic’ human rights instruments. Assessing the first two indicators—reservations and country reports—against the backdrop of Islamic legal traditions and international conceptions of human rights, this chapter bears the following questions in mind: Does membership of the CRC per se constitute active engagement with and ownership of its provisions on the part of Muslim states? If so, is there a discernible or potential paradigm shift in perspectives in this area as a result of this engagement with the CRC as evidenced through reservations, withdrawals of reservations, and country reports? And to what extent do children’s rights as set out in the CRC resonate with comparable conceptions within Islam’s plural legal traditions—especially in relation to freedom of religion, thought, conscience, and the adoption of children? The chapter will focus on two of the CRC articles most widely reserved by Muslim states—Articles 14 (freedom of thought, conscience, and religion and 21 (adoption). It argues that children’s rights are an evolving concept with changing content and connotations in classical Islamic law, in Muslim state practice, and in regional and international child rights instruments. Vague and fluid formulations of various aspects of children’s rights both in the CRC and in classical conceptions of the Islamic legal traditions make it a malleable concept that enables diverse cultures and traditions to implement it in their particular contexts.
Introduction A significant articulation of plurality and evolution within the Islamic legal tradi... more Introduction A significant articulation of plurality and evolution within the Islamic legal traditions and conceptions of sharia came about with large numbers of Muslims migrating to non-Muslim-majority jurisdictions and putting down roots there. In the United Kingdom, for instance, the application of Islamic law and sharia is continuously undergoing a transformative process, emerging and evolving as what has been called Angrezi (‘English’ in Urdu) sharia – a hybrid of Islamic law and UK law. In common with Muslim-majority jurisdictions, the focus of Islamic law lies in the sphere of family law, this being central to group identity and cultural preservation through control of members of the group, especially women. An example of such control comes in the form of dispute resolution, focusing on family matters, in Sharia Councils. The fact that British Muslim communities’ interest in Islamic law and sharia lies foremost in being able to control the outcome of marriage and divorce disputes resonates with how the wider British public and state institutions perceive Islamic law. In 2008, the then Archbishop of Canterbury, Dr Rowan Williams, famously declared that Muslim communities sought the freedom to live under sharia law, and that there needs to be ‘access to recognised authority acting for a religious group: there is already, of course, an Islamic Shari'a Council, much in demand for rulings on marital questions in the UK’. He then qualified this by cautioning that ‘recognition of “supplementary jurisdiction” in some areas, especially family law, could have the effect of reinforcing in minority communities some of the most repressive or retrograde elements in them, with particularly serious consequences for the role and liberties of women’. Lord Bach, speaking in the House of Lords a year after Dr Williams's speech, was of the view that we cannot prevent individuals seeking to regulate their lives through religious beliefs or cultural tradition. Communities and other groups have the option to use religious councils or any other system of alternative dispute resolution and agree to abide by their decisions. Nothing in the law of England and Wales prevents people abiding by Sharia principles if they wish, provided that their actions do not conflict with the law in England and Wales. If they do, the law in England and Wales prevails.
... Freedom of Religion versus Equality in International Human Rights Law: Conflicting Norms of H... more ... Freedom of Religion versus Equality in International Human Rights Law: Conflicting Norms of Hierarchical Human Rights (A case study of Pakistan). By Shaheen Sardar Ali and Javaid rehman. Artikkelen er tilgjengelig i papirutgaven. ... By Shaheen Sardar Ali and Javaid rehman. ...
Hague Academic Press, an imprint of T.M.C. Asser Press eBooks, 2010
... 2007) 95136; Shaheen Ali and Javaid Rehman, 'The Concept of Jihad in Is... more ... 2007) 95136; Shaheen Ali and Javaid Rehman, 'The Concept of Jihad in Islamic International Law', (2005) 10 Journal of Peace and Security Law 321, 343. I am grateful to Mamman Lawan, Ayesha Shahid, Amila Jayamaha.
Introduction Chapter 5 provided the untold narrative of a complex and nuanced process of Muslim w... more Introduction Chapter 5 provided the untold narrative of a complex and nuanced process of Muslim women's contribution to the drafting of CEDAW. This chapter investigates the extent to which CEDAW finds a place in governmental and non-governmental policy documents, legislation, judicial decisions, governance structures and institutions in Pakistan. It poses the question whether CEDAW's pre- and post-ratification processes and attendant discourse have ‘domesticated’ it within state, government and society in that jurisdiction. The study suggests that in a country where pluralism is deeply embedded in legal culture as well as in religious and cultural norms, human rights instruments in general and CEDAW in particular receive an ambivalent and mixed reception as the newest layer of plural legalities. This chapter draws upon a variety of governmental and non-governmental sources, and upon surveys of judicial decisions of the high courts and the Supreme Court that have invoked CEDAW since Pakistan's ratification in 1996, and is informed by academic literature on the approach of Pakistan and other Muslim states to CEDAW. I was a participant in the accession process and draw upon those personal experiences in developing the present study. This chapter has also benefited from discussions and personal communications with members of the Pakistani NGO communities, in particular those involved in the thirty-eighth session of the CEDAW Committee, in 2007, where Pakistan's country reports were under discussion. As mentioned in Chapter 5, literature on CEDAW focuses on the post-ratification scene, especially in Muslim states due to the far-reaching reservations entered by them citing Islamic law and sharia . Hence there is a need to take a step back and explore the pre-ratifications debates and discourse and then link them to the post-ratification situation. The present chapter attempts to undertake this task using Pakistan as an example. CEDAW within a Religious, Cultural and Socio-legal Context Since its inception as an independent nation in 1947, Pakistan has struggled with multiple strands of its identity (religious, cultural, ethnic, linguistic) and the manner in which these inform conceptions of state, government, law and society, as well as the status of women.
Page 1. From Transnationa Relations to Transnational Laws Northern European Laws at the Crossroad... more Page 1. From Transnationa Relations to Transnational Laws Northern European Laws at the Crossroads Edited by Anne Helium, Shaheen Sardar Ali and Anne Griffiths ■ Page 2. Page 3. FROM TRANSNATIONAL RELATIONS ...
This paper focuses on the role and rationale of Sharia Councils in Britain (in particular in the ... more This paper focuses on the role and rationale of Sharia Councils in Britain (in particular in the issuance of ‘Islamic' divorce certificates to Muslim women), and considers questions of authority and authenticity in their operative frameworks from an Islamic jurisprudential perspective including Siyar and Fiqh-al-Aqalliyat. Focusing on British Sunni Muslims of Pakistani ethnicity, the paper poses the question that since ‘Islamic laws' are susceptible to interpretative plurality, who determines what constitutes ‘authentic' Islamic law in the absence of an identifiable ‘authority', at least within the Sunni Islamic legal traditions? Is there a tangible socio-religious requirement for British Muslim communities to have a parallel quasi-legal system for dispute resolution? How do responses to these questions frame the assumed central role currently fulfilled by Sharia Councils, and what are the alternatives? In the context of Sharia Councils, this paper argues that whilst some will approach these institutions entirely of their own volition exercising agency, autonomy and/or fulfillment of their religious obligations, their very existence and lack of ‘Islamic' alternatives pressurises women to use such forums to obtain ‘acceptance' from their families and communities.
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Papers by Shaheen Sardar Ali