<p>After the establishment of the British Protectorate in the Busa&lsquo / idi Sultanate in 1890, the British colonial administration embarked on a policy of transforming the administration of Islamic law and its institutions which included the kadhi, liwali and mudir courts. The ultimate objective of the transformation process was to incorporate such institutions into the colonial enterprise and gradually reform them. Within a span of seven decades of their colonial rule in the Busa&lsquo / idi Sultanate, the British colonial authorities managed to transform the administration of Islamic law and its institutions. Key areas of the transformation process included the formalisation of the administration of Islamic law in which procedural laws related to MPL and wakf regulations were codified. Kadhi courts and wakf commissions were institutionalised and incorporated into the colonial apparatus. In the process of transforming the kadhi courts, the British colonial authorities adopted three major policies: institutional transformation, procedural transformation, and exclusion of criminal jurisdiction from kadhi courts. The focus of the transformation process was on the curtailment of kadhis powers. By 1916 criminal jurisdiction was removed from kadhis and their civil jurisdiction was gradually confined to MPL. Other significant areas of the transformation process were the wakf institutions and slavery. Wakf institutions were related to land issues which were crucial to the colonial politics and the abolition of slavery in the Busa&lsquo / idi Sultanate was a primary concern of the British colonial administration. Through policies of compromise and coercion, the British colonial officials managed to gradually abolish slavery without causing&nbsp / political or social upheavals in the Sultanate. Due to the fact that there was no uniform policy on the transformation exercise undertaken by the British colonial officials on the ground, the reform process was marked with transformative contradictions which seemed to be a hallmark of British colonial policy in the Busa&lsquo / idi Sultanate. For instance, British colonial policies on transforming wakf institutions were caught in a contradiction in that, on the one hand, colonial efforts were geared towards transforming the land system in order to achieve economic development, and on the other hand, the British colonial officials were keen to uphold a paternalistic approach of adopting a non-interference policy in respect of religious institutions. Similarly, in abolishing slavery, the British colonial government, on the one hand, was under pressure from philanthropists and missionaries to end slavery, and, on the other hand, the British colonial officials on the ground portrayed their support of the slave owners and advocated a gradual approach to abolish slavery. Findings of this thesis reveal that the British colonial administration managed to achieve complete reform in some cases, such as, the abolition of liwali and mudir courts and confining kadhis&rsquo / civil jurisdiction to MPL, while in other areas, such as, the management of wakf institutions and the abolition of slavery, the British faced resistance from the Sultans and their subjects which resulted in partial reforms. Hence, in the process of transforming the administration of Islamic law and its institutions in the Busa&lsquo / idi Sultanate, the British colonial administration adopted a dual policy of reforming and retreating.</p>

The Islamic legislative drafting methodology is meant to bring the family law of Islamic countries into line with current conceptions of gender equality found not only in the West but in Islamic law (the shari’a) as well. The methodology involves identifying the fundamental principles of shari’a and recognizing that they must be adapted to the socio-economic conditions in which they are to be applied.

Family law regulates the formation of marriage, divorce, marital property rights, child custody, inheritance, and spousal duties. This study aims to demonstrate how family law formation in the Middle East and North Africa reflects the struggle among social and political forces to capture the state and assert authority. The balance of power between competing social forces impacts both the timing (short-term versus long-term struggle) and type (progressive or regressive) of family law after independence. The ability of one of two competing forces, broadly categorized as traditionalist versus modernist, to capture the state is necessary for codification and is predictive of family law content. Case studies reveal that systemic shocks (e.g. revolution, social unrest, or foreign intervention) tip the balance of power in favor of traditional or modernizing forces in the post-independence state-building process and facilitate the successful consolidation of power and the codification of family law.

Tez (Doktora) - Süleyman Demirel Üniversitesi, Sosyal Bilimler Enstitüsü, Temel İslam Bilimleri Anabilim Dalı, 2009. / Kaynakça var.

Thèse--Univ de Paris. / Publications de l'Institut français d'archéologie orientale. "Bibliographie" p. [633]-664.

The aim of this research is to investigate the implications of unfair dismissal within the boundaries of Omani labour law with particular relevance to the role of Shari’a. Shari’a itself does not provide a legal code, contract law, or a law of tort as yet but it does provide examples of applicable rules, supported with analogies, to deal with employment. The basic principles of forming a contract in Omani Commercial Law; English Law and Shari’a are similar; however, they differ in application. Likewise, the principles of the employment contract are similar with a few differences being seen in implementation; specifically with regards to unfair dismissal issues. This research used a qualitative approach that has enabled the generation and analysis of data from multiple sources including literature review, semi-structured interviews, court cases, Shari’a implied employment contract principles as found in the Qur’an, the Sunnah and relevant Islamic texts. The research shows that the main reasons for employee dismissal can be categorised into: poor performance, disobedience regarding the contractual rules and regulations, absenteeism, aggressive behaviour and an extreme critical attitude in the work-place. From the employee’s perspective, the main reasons for filing cases at Oman Courts were to seek justice, to obtain fair compensation or to highlight the moral values that form the Islamic code of practice. In contrast the employers considered seeking financial gain and revenge as the motivating factors for employees for filing court cases. There obviously is a mismatch to the reasons by each side and the key findings from this research suggest that there is a modest impact of the legal aspects of Shari’a on the Omani Law of Contract and the Employment Law though it is normally conceived by the public that Shari’a is the fundamental law that governs all aspects of muslim life. There needs to be an overwhelming expectation and requirement to develop procedures in the Omani Employment Law that expedite the process of dealing with dismissal cases and the propositions of establishing an arbitration committee may seem to be a way forward. In addition, the establishment of a Labour Court is paramount as at present the employment cases are heard in the Commercial Courts. This will align with the approach taken in the English system where the Employment Tribunals and the Employment Appeal Tribunal oversee cases and minimize delays in achieving justice. There is also a strong argument that there needs to be a review of Article 40/35/2003 that deals with employer rights to dismiss the worker without prior notice in order to establish a solid foundation for justice in the Sultanate of Oman. Unfair dismissal is a phenomenon that impacts on the employee, the employer, the employee’s wider family network and society. This study provides an in-depth understanding and insight into these impacts and into the capacity of Shari’a impact to address modern employment issues in relation to the labour laws and secular laws being used in Oman today.

This dissertation asks how it came to be that Amina Lawal, a peasant woman from Northern Nigeria, was sentenced to death by stoning in 2002 for committing the crime of zinā, or illegal sexual activity, three years after full Islamic sharīah penal law began to be implemented there by way of massive grassroots demand. Each chapter examines a factor I deem necessary to explore this question. Drawing on ethnographic evidence gathered during fieldwork in Northern Nigeria, I first examine "sharīah as social text," concluding that sharīah is thought to offer the radical societal ordering and historical and cultural legitimacy necessary to combat the corruption and poverty associated with the Federal State structure. However, the integration of the stoning punishment into the formative period of Islamic law (1st-3rd AH/ 7th-10 CE centuries), taken up in Chapter two, reveals stoning to have presented theological problems, challenging its reception in contemporary Nigeria as a symbol of stability. Chapter three traces the slow integration of Hausaland into a legalistic milieu identified with an eastward Arab-Islamic epistemic tradition by the eighteenth century, culminating in the Sokoto Caliphate's (r. 1809 - 1903) identification with the Mālikī school of Islamic law. The British arrival in the late nineteenth century ended the Caliphate, changed Islamic penal law, and promulgated the "Native Courts Proclamation," which outlawed the stoning punishment despite its absence during the Sokoto Caliphate. This history is often recalled in contemporary Northern Nigeria, but only recently, as the State weakens and the Muslim north loses political power. Chapter four analyzes Lawal's trial as the stage where the boundaries and mandates of post-1999 sharī'ah are delineated. I call several features of legal argumentation endemic of "post-modern Islamic law": legal reductionism, reliance mainly on primary texts, combining Islamic and constitutional arguments, and eschewing the jurisprudential tradition. These factors combine to make it easier (relative to Islamic history) to mete out stoning. Finally, I examine gender and the Western reaction to the case, arguing that these discourses collude to ironically elide the voice of Amina Lawal, Nigerian women more generally, and the stoning punishment per se.

At the intersection of religion, law, and the state lies the opportunity to explore the impact of the state on the legal order. This study investigates such an impact through an examination of authoritative Hanafi legal works from the 16th - 19th centuries CE, casting new light on the understudied late Hanafi jurists (al-muta'akhkhirun) in the early modern period. This dissertation argues that jurists secure the authority of the late Hanafi school (madhhab) through engagement with legal texts from previous generations of Hanafis, disclosure of the reasoning that underlies late Hanafi legal opinions, and invocation of principles, authorities, and juridical formulas that construct late Hanafism in the early modern period in particular ways. I demonstrate how late Hanafi jurists develop their own identities, opinions, and consensus in relation to earlier Hanafi opinions. For late Hanafis, the past authorities, texts, and opinions were never irrelevant: the past constituted a point of reference and continuity for their scholarship. The division of Hanafis into late and early is not simply a matter of time, although it is true that the late Hanafis produce legal works chronologically later than the early Hanafis did. The distinction is more important for identifying that there is a tradition which characterizes the group of scholars identified as being chronologically "late" that develops in the Mamluk and Ottoman periods. By taking the madhhab and its juristic discourse as the central focus, this study demonstrates how late Hanafi jurists assign probative value and authority to Ottoman state orders and edicts. This is reflected in the state's ability to settle juristic disputes, to order specific opinions to be adopted in fatawa, and to establish its orders as authoritative and final reference points. The incorporation of state orders within authoritative Hanafi legal commentaries, treatises, and fatawa collections is made possible by a turn in Hanafi legal culture that embraced the indispensible nature of the state in the law-making process. Current scholarship in the field of Ottoman Studies that focuses on "structural" interventions by the state (appointing muftis and judges, developing an Ottoman learned hierarchy) does not fully capture the influence of the state on the substance of the legal discourse. This project explores late Hanafi responses to Ottoman state interventions in the process of law-making, and the ways in which late Hanafi jurists talk to and about political power. The dissertation concludes by offering two proposals. The first is that late Hanafi legal scholarship in the early modern period secures a limited space for the political authority in the process of law-making. This proposal finds that the argument for the epistemic divorce between the domain of Islamic law and the authority of the state in current Islamic Studies scholarship is untenable. The second proposal is that the late articulation of the Hanafi legal tradition is not only integral to understanding modern movements to codify Islamic jurisprudence, and the role of the state in these transformations, but also to tracing many legal norms that were incorporated in modern civil codes in majority Muslim countries. By introducing "late Hanafism" as a category of analysis, and situating the madhhab as the locus of the investigation, this dissertation fills in a gap in the fields of Islamic legal studies and Ottoman studies. This study draws the focus from Ottoman court archives to the Hanafi juristic discourse itself for understanding how Islamic law was developed and applied, offering a new perspective on the internal legal discourse of late Hanafis and their responses to state power.

Four Muslim senior wives, 35 years and older, were interviewed about their experiences in a polygamous marriage. The Theory of Gender and Power was used to understand some of the emerging themes in the gendered relationships between men and women in polygamous relationships. Thematic content analysis revealed the overarching theme of power. The women expressed helplessness in the face of a practice that they consider objectionable on the one hand, but that they feel compelled to tolerate because their religion permits it. In order to cope with their pain there was a need to assign blame for their husband's remarriage. Blame was attributed to both internal and external causes. Senior wives equate polygamy with "infidelity" and therefore perceived it as an act of betrayal, Consequently, this led to feelings of anger, rejection, pain and jealousy, and subsequently the nonacceptance of the junior wife into the marital dyad. The women reported feelings of loss with regard to the marital relationship, such as loss of financial support, trust, self esteem, identity, dignity and sense of self. For these senior wives, polygamy resulted in loss of sexual exclusivity, shared intimacy and security, which was accompanied by feelings of humiliation and degradation. The women believed that polygamy resulted in straining the relationship between children and their fathers. Children were reported to have experienced emotional, behavioural and academic problems. / Thesis (M.A.)-University of KwaZulu-Natal, Durban, 2004.

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