Notwithstanding the enactment of the Constitution of the Republic of South Africa, 1996 the recognition of systems of religious, personal or family law for certain cultural and religious groups has either been limited or is virtually non-existent. To this extent, marriages concluded in terms of Islamic rites do not enjoy the same legal recognition that is accorded to civil and customary marriages. Non-recognition of Muslim marriages means there is no legal regulatory framework to enforce any of the consequences that arise as a result of the marriage, or any orders that are made by the Ulama, thereby creating a perilous situation that has dire consequences for spouses to a Muslim marriage. Despite South Africa’s commitment to the right of equality and freedom of religion, the courts have acknowledged that the failure to grant recognition to Muslim marriages on the ground of gender equality, has worsened the plight of women in these marriages, in that they were left without effective legal protection, should the union be dissolved either by death or divorce. Whilst the ad hoc recognition of certain consequences of Muslim marriages by the judiciary has gone a some way to redress the plight of Muslim women, and provided relief to the lived realities of Muslim women, these decisions are in fact contrary to the teachings and principles of Islam and therefore problematic for Muslims. These court decisions, that are in conflict with Muslim Personal Law (MPL), will ultimately lead to the emergence of a distorted set of laws relating to Muslim family law. This is a real cause for concern. This thesis is written from an Islamic legal theory perspective, which is contrary to western legal theory, as the latter adopts a human rights perspective. The basis of modern western democratic societies is a constitution that is premised on human rights and equality and which advocates the notion that the rights contained in the constitution reign supreme in all matters, religion included. Therefore, where a conflict arises in respect of the freedom of religion and the right to equality, western ideologies and philosophies dictate that the latter trump the former. This would inevitably mean that religious law would have to be adapted and ultimately amended so that it is in compliance with the constitution. From an Islamic religious perspective, this is not feasible and practicing Muslims will find this untenable. This may be legally uncomfortable in South Africa as a constitutional democracy but it is the reality for the adherents of the Muslim faith. A draft Muslim Marriages Bill (MMB) was released in 2003, and an amended MMB was tabled in Parliament in 2010. Both MMBs propose the legal recognition and regulation of Muslim marriages in South Africa. However, the two major issues delaying the enactment of the MMB into legislation are, firstly, whether or not the MMB would pass constitutional muster and secondly, the lack of agreement in the Muslim community on whether the MMB is Shari’ah compliant. Despite the largely consultative process that the MMBs underwent the legislative attempts to enact the MMB into legislation has not been successful. This thesis seeks to provide a possible solution whereby legislation regulating MPL law can be implemented in South Africa, notwithstanding the apparent conflict existing between MPL and the rights contained in the Bill of Rights. Notwithstanding the preference shown by the legislature to enact the MMB into legislation which will grant recognition to Muslim marriages, it is submitted there is a need for the legislature to rethink the approach that has to date been adopted. To this extent, it is submitted that the legislature should reconsider granting recognition to Muslim marriages by enacting legislation that takes the form of general legislation where state recognition is granted to all religious marriages, whether it be Muslim, Hindu or Jewish marriages. General legislation would mean that the state would require the marriage to be registered. However, the prescribed requirements, formalities and the consequences of the marriage would be determined by the chosen religious system of the spouses. On a national level a comparative analysis between Islamic law and the South African legal system, relating to the law of marriage is conducted. For the comparative analysis on an international level the law of marriage in England and Wales has been chosen. South Africa and England and Wales share a commitment to human rights and have adopted various approaches in respect of accommodating the application of Islamic law. Furthermore, an internal pluralism exists within the Muslim communities in South Africa, England and Wales as the majority of Muslims in these countries have to varying degrees developed diverse strategies to ensure compliance with Islamic law, and as well as South African and English law. The manner in which MPL is granted recognition needs to be given careful consideration as the implementation of this legislation will only be successful if it is compatible with the rulings and teachings of Islamic law. Caution should therefore be exercised to ensure that the fundamental aspects of MPL are not compromised as this will result in the legislation not being Shari’ah compliant and there will be no buyin from the Muslim community, with the consequence that this legislation will be mere paper law.

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This study concerns mainly with the status and position of dhimmi in various aspects of Islamic law. It is an attempt to survey the legal status of dhimmi in the scattered writings of Muslim jurists, and tie them up systematically in a one work. The Introduction deals with the purpose of the inquiry, the scope, and the relevant literature of the " thesis. In Chapter One the Muslim conception of the world, or Islamic law of nations; viz. dar al-Isläm, d8r alh" arb. dgr al-'ahd. is analysed as is the nature of the relationship among those states, and category of non- Muslims. Chapter Two is devoted to the dimmr's obligations pertaining to the fundamental concepts of lizyah kharä_i. 'ushr, and their need to observe some aspects of Islamic law. Chapter Three is concerned with the principles and aspects of the Islamic conception of tolerance towards non-Muslims as well as some archetypes of Muslim tolerance. Chapter Four gives a detailed discussion of the dhimmi's judicial status in Islamic criminal and family laws, and the law of contracts.Chapter Five is concerned mainly with the analysis of dhimmf's religio-socio-political status. The question of religious autonomy, political rights, economic, education, welfare etc. will be discussed. Finally, Chapter Six outlines the result of this study.

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The fundamental distinction made in Shiite legal epistemology is that between qaṭʿ (certainty) and ẓann (conjecture). Contemporary Uṣūlī epistemology maintains that in the juristic process of the derivation of Sharīʿa precepts, a mujtahid is prohibited to use any evidence that gives rise to mere ẓann. Rather, he must only use evidence that gives qaṭʿ of Sharīʿa precepts. Furthermore, this discourse distinctly argues that a mujtahid can also derive knowledge of Sharīʿa precepts through the ẓann al-khāṣ (especial conjecture) that is emanated from evidence that is ẓannī (conjectural) by nature but is substantiated by the Divine Lawgiver Himself through other qaṭʿī (certainty bearing) evidence. This understanding effectively curtails the derivation of Sharīʿa precepts to only the textual evidence of the Qurʾān and sunna, and in the present day this textualist dependency can be criticised for contributing towards the gulf that exists between traditional Shiite jurisprudence and matters that are pertinent to contemporary societies. In light of this, this study critically analyses the contemporary discourse of Uṣūlī epistemology and explores whether it has the potential to legitimise the epistemic validity and utility of a wider range of evidence in the juristic process of deriving Sharīʿa precepts. It essentially focuses on the strength and rigour of the epistemological underpinnings that are maintained in Uṣūlī legal theory, and by highlighting that these underpinnings and the underlying epistemic assumptions that are prevalent in contemporary Uṣūlī legal epistemology are rationally derived, this study explains how and why the Uṣūlīs have been led to rationally give preference to textual evidence over nontextual evidence. This study concludes that Uṣūlī legal theory has the potential to, and moreover is required to, undergo an epistemological paradigm shift that permits the acceptance of the epistemic validity of a wider range of evidence, other than just those that emanate qaṭʿ or ẓann al-khāṣ.

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Creative Shari‘ah compliance can be defined as compliance with the letter but not the objectives of Shari‘ah. In recent years, Islamic finance industry practises have come under scrutiny, with strong critiques levelled against many institutions that claim to provide Shari‘ah-compliant Islamic financial products and services, while such products and services in fact undermine the spirit and the objectives of Shari‘ah. Financial instruments based on the profit- and loss-sharing model are deemed by Shari‘ah scholars and Muslim academics to be the most compliant with the objectives of Islamic law. Nonetheless, research has shown that they are the least practised forms of Islamic finance; in contrast, institutions offering Islamic financial services (IIFS) offer mainly debt-based instruments. While many researchers have noted this gap between the theory and practise of Islamic finance, no study has provided a sustained analysis of the issue. This thesis undertakes such analysis and, in doing so, significantly contributes to the sphere of Islamic finance in three main ways. First, it critically appraises justifications of creative Shari‘ah compliance practises. Second, it examines how Shari‘ah supervisory board )SSB) governance practises and the inconsistent fatwas (Islamic legal opinions) issued by SSBs contribute to the issue of creative Shari‘ah compliance in contemporary Islamic finance. Most importantly, it suggests regulatory mechanisms which regulators can employ in Islamic countries such as Saudi Arabia and in secular countries such as the United Kingdom to deal with the issue of creative Shari‘ah compliance. This thesis concludes that creative Shari‘ah compliance is not a phenomenon new to Islamic law, but it is one that has no solid justification in Islamic jurisprudence. This study suggests two public mechanisms to remedy the issue of creative Shari‘ah compliance: establishing central Shari‘ah supervisory boards and enforcing compulsory disclosure. In addition, it proposes private mechanisms to remedy creative Shari‘ah compliance which can be employed without governmental involvement. These mechanisms include adopting a Shari‘ah compliance rating, Shari‘ah indices, private Shari‘ah auditing, international standards related to enhancing Shari‘ah compliance, and a whistle-blowing policy for serious Shari‘ah compliance violations, as well as characterising an IIFS in its articles of association as an entity that fully complies with Shari‘ah ruling. These remedies are particularly useful when an IIFS is operating within a jurisdiction where regulators cannot or prefer not to be involved in regulating Shari‘ah governance.

This study was conducted in Iran (Tehran) to assess perceptions of women with regard to access to justice. Its aims are firstly to provide original evidence about user perceptions of access to justice, and to contribute to related national/international debates and body of literature. The research reviews some of the literature in the field of access to justice to highlight similarities and gaps between contextual framework of Islamic and Western correlated legal concepts including definitional analysis in support of and/ or against access to justice model worldwide. Consideration was also given to a comparative framework for conceptualizing access to justice from Islamic Law perspectives. The research evaluates the historical development of access to justice in the Islamic Republic of Iran as a case study together with an analysis of barriers. The research also presents the findings of a survey study on women' perceptions (first study of its kind) in Iran conducted as a significant constituent of the thesis. The thesis concludes that existing Western models have excessively highlighted the need to strengthen state's institutions to provide 'access' to mechanisms of 'justice'. Access to justice as a complex phenomenon, however, incorporates various conceptions of 'justice' as an index for 'access' on one side and individuals as 'users of justice' on the other side. A distinctive conclusion is that 'legal empowerment' can provide wider 'access to justice' in Iran particularly for disadvantaged groups such as women.

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