Pub Date : 2022-06-22DOI: 10.1163/15730255-bja10116
Zaid Al-Ali
{"title":"Arab Constitutions: In Transition, but to What?","authors":"Zaid Al-Ali","doi":"10.1163/15730255-bja10116","DOIUrl":"https://doi.org/10.1163/15730255-bja10116","url":null,"abstract":"","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48629321","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-22DOI: 10.1163/15730255-bja10113
Aymen Zaghdoudi
{"title":"Procrastinating Constitutional Adjudication in Tunisia?","authors":"Aymen Zaghdoudi","doi":"10.1163/15730255-bja10113","DOIUrl":"https://doi.org/10.1163/15730255-bja10113","url":null,"abstract":"","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46929119","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-21DOI: 10.1163/15730255-bja10106
M. Kandeel, Ahmed Khalil
It is a general principle that the minor circuit — as with every civil court in the United Arab Emirates — does not settle cases within its jurisdiction until completion of pleadings by the parties, which usually takes several sessions. However, an exception to this principle has been created under Article 30/1 of the Federal Civil Procedures Law and Articles 22 and 54 of the Regulation of this law. These articles allow the minor circuit to rule upon some cases in a single session. The pleading, adjudication and judgement all take place in this one session, known as a one-day court, launched in the courts of the Emirate of Ras al-Khaimah in January 2017. This article aims to answer the questions raised about the justification for creating this court, the scope of its jurisdiction, the system for preparing cases before it, and the sufficiency of legal rules regulating challenges to its judgements.
{"title":"The One-Day Court: Settling Small Civil Cases in the UAE","authors":"M. Kandeel, Ahmed Khalil","doi":"10.1163/15730255-bja10106","DOIUrl":"https://doi.org/10.1163/15730255-bja10106","url":null,"abstract":"\u0000It is a general principle that the minor circuit — as with every civil court in the United Arab Emirates — does not settle cases within its jurisdiction until completion of pleadings by the parties, which usually takes several sessions. However, an exception to this principle has been created under Article 30/1 of the Federal Civil Procedures Law and Articles 22 and 54 of the Regulation of this law. These articles allow the minor circuit to rule upon some cases in a single session. The pleading, adjudication and judgement all take place in this one session, known as a one-day court, launched in the courts of the Emirate of Ras al-Khaimah in January 2017. This article aims to answer the questions raised about the justification for creating this court, the scope of its jurisdiction, the system for preparing cases before it, and the sufficiency of legal rules regulating challenges to its judgements.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42552001","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-21DOI: 10.1163/15730255-bja10118
Javad Fakhkhar Toosi
This article seeks to study ribā from a novel point of view. Paying off interest without preconditions is recommended strongly by the Prophet (PBUH). If Islamic society follows his advice, this will become a prevalent custom (ʿurf) among Muslims, which the title of the stipulated interest does not include. This article refers to the views of Islamic schools on ʿurf and how they comply with the custom in question formed hypothetically. This article finds that, according to Islamic schools, such custom is considered valid, legitimate, and necessary to follow. The last part of the article provides an important discussion on how to put this theory into practice and implement the model designed for this purpose in the Islamic financial system. This article concludes that the challenge of prohibiting ribā will be solved if non-stipulated interest can be made obligatory in Islamic society based on the juristic views on ʿurf.
{"title":"Ribā and Paying Off Non-stipulated Interest: The Capability to Become a Prevalent Custom (ʿUrf) in Islamic Society","authors":"Javad Fakhkhar Toosi","doi":"10.1163/15730255-bja10118","DOIUrl":"https://doi.org/10.1163/15730255-bja10118","url":null,"abstract":"\u0000This article seeks to study ribā from a novel point of view. Paying off interest without preconditions is recommended strongly by the Prophet (PBUH). If Islamic society follows his advice, this will become a prevalent custom (ʿurf) among Muslims, which the title of the stipulated interest does not include. This article refers to the views of Islamic schools on ʿurf and how they comply with the custom in question formed hypothetically. This article finds that, according to Islamic schools, such custom is considered valid, legitimate, and necessary to follow. The last part of the article provides an important discussion on how to put this theory into practice and implement the model designed for this purpose in the Islamic financial system. This article concludes that the challenge of prohibiting ribā will be solved if non-stipulated interest can be made obligatory in Islamic society based on the juristic views on ʿurf.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48273727","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-21DOI: 10.1163/15730255-bja10109
Rosalie Rubio
Scholars studying counterterrorism laws internationally, particularly across the Arab world, often note the ambiguity of these laws. Few, however, have taken stock of the causes and consequences of these ambiguities. This article explores the questions: What makes counterterrorism laws distinctly amenable to autocratic instrumentalization? What are the mechanisms that allow counterterrorism laws to be used as a means to bolster authoritarian stability? Furthermore, what are the consequences of this instrumentalization on social and political life? This article seeks to answer these questions by focusing on the Hashemite Kingdom of Jordan’s Anti-terrorism Law of 2006 and its 2014 Amendments. The author argues that counterterrorism laws are a unique tool due to their distinctive emphasis on prevention and pre-criminality. As a result, counterterrorism laws are often prone to ambiguities, which permit their expansion and instrumentalization. This article discusses how counterterrorism laws’ inherent ambiguity shape how these laws are articulated, enforced and experienced.
{"title":"Preventative Plasticities: Legal Ambiguities in Jordanian Counterterrorism Legislation","authors":"Rosalie Rubio","doi":"10.1163/15730255-bja10109","DOIUrl":"https://doi.org/10.1163/15730255-bja10109","url":null,"abstract":"Scholars studying counterterrorism laws internationally, particularly across the Arab world, often note the ambiguity of these laws. Few, however, have taken stock of the causes and consequences of these ambiguities. This article explores the questions: What makes counterterrorism laws distinctly amenable to autocratic instrumentalization? What are the mechanisms that allow counterterrorism laws to be used as a means to bolster authoritarian stability? Furthermore, what are the consequences of this instrumentalization on social and political life? This article seeks to answer these questions by focusing on the Hashemite Kingdom of Jordan’s Anti-terrorism Law of 2006 and its 2014 Amendments. The author argues that counterterrorism laws are a unique tool due to their distinctive emphasis on prevention and pre-criminality. As a result, counterterrorism laws are often prone to ambiguities, which permit their expansion and instrumentalization. This article discusses how counterterrorism laws’ inherent ambiguity shape how these laws are articulated, enforced and experienced.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48246529","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-21DOI: 10.1163/15730255-bja10117
Salma Waheedi
This article is an inquiry into the ability of the constitutional judiciary in Arab Gulf monarchial systems to act to protect women’s rights and the conditions that enable such autonomous exercise of judicial powers. Looking specifically at Kuwait and Bahrain, the empirical findings of this article demonstrate that one must look beyond constitutional or legal text in conducting this analysis. In these largely comparable political systems with very similar constitutions, subtle contextual political differences can lead to divergent outcomes when it comes to the practical exercise of constitutional judicial power. The experiences of Kuwait and Bahrain are insightful as they shed light on the different dynamics that may exist in similar monarchial systems and how even a limited divestment of political power, as in the case of Kuwait, can enable judicial institutions to carve a role for themselves in protecting citizens’ rights.
{"title":"Litigating Women’s Rights in Gulf Monarchial Systems: The Kuwait and Bahrain Constitutional Courts as Case Studies","authors":"Salma Waheedi","doi":"10.1163/15730255-bja10117","DOIUrl":"https://doi.org/10.1163/15730255-bja10117","url":null,"abstract":"\u0000This article is an inquiry into the ability of the constitutional judiciary in Arab Gulf monarchial systems to act to protect women’s rights and the conditions that enable such autonomous exercise of judicial powers. Looking specifically at Kuwait and Bahrain, the empirical findings of this article demonstrate that one must look beyond constitutional or legal text in conducting this analysis. In these largely comparable political systems with very similar constitutions, subtle contextual political differences can lead to divergent outcomes when it comes to the practical exercise of constitutional judicial power. The experiences of Kuwait and Bahrain are insightful as they shed light on the different dynamics that may exist in similar monarchial systems and how even a limited divestment of political power, as in the case of Kuwait, can enable judicial institutions to carve a role for themselves in protecting citizens’ rights.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47156764","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-21DOI: 10.1163/15730255-bja10119
Samy A. Ayoub
This article explores two recent decisions issued by the Egyptian Supreme Constitutional Court (SCC) to demonstrate how the Court resolves conflicts involving Islamic and Christian law: (1) a decision to maintain the constitutionality of the wife’s obedience (ṭāʿat al-zawǧa) articles in the Personal Status Law for Christians, and (2) a decision to extend Muslim mothers’ exclusive custodial claims over children until they reach the age of 15. The article argues that the SCC takes upon itself to decide — based on its own internal logic — the normative legal positions for Christians and Muslims. The SCC rulings reinforce a vision of the Egyptian State as the exclusive holder of legal authority (walī al-amr) with the power to determine the meaning of Islamic/Christian legal norms in a court of law. In these judgments, the Egyptian State is personified as an independent jurist (muǧtahid) that can legislate on behalf of Egyptian Muslims and Christians.
{"title":"The Egyptian State as a Muǧtahid: Law and Religion in the Jurisprudence of the Egyptian Supreme Constitutional Court","authors":"Samy A. Ayoub","doi":"10.1163/15730255-bja10119","DOIUrl":"https://doi.org/10.1163/15730255-bja10119","url":null,"abstract":"\u0000This article explores two recent decisions issued by the Egyptian Supreme Constitutional Court (SCC) to demonstrate how the Court resolves conflicts involving Islamic and Christian law: (1) a decision to maintain the constitutionality of the wife’s obedience (ṭāʿat al-zawǧa) articles in the Personal Status Law for Christians, and (2) a decision to extend Muslim mothers’ exclusive custodial claims over children until they reach the age of 15. The article argues that the SCC takes upon itself to decide — based on its own internal logic — the normative legal positions for Christians and Muslims. The SCC rulings reinforce a vision of the Egyptian State as the exclusive holder of legal authority (walī al-amr) with the power to determine the meaning of Islamic/Christian legal norms in a court of law. In these judgments, the Egyptian State is personified as an independent jurist (muǧtahid) that can legislate on behalf of Egyptian Muslims and Christians.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44224879","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-14DOI: 10.1163/15730255-bja10115
May Barakat, Yasser Amouri
This article focuses on the representation of the Palestinian people eight years after the adoption of United Nations General Assembly Resolution 67/19 in 2012, which accorded Palestine observer State status at the United Nations. It addresses the representative role of the Palestine Liberation Organization as an entity with international legal personality recognized by the international community as the sole representative of the Palestinian people. It discusses the developments related to this representative role in light of the ambiguous relationship between the Palestinian Liberation Organization and the State of Palestine, which is merely a continuation of the organization’s relationship with the Palestinian National Authority.
{"title":"Who is representing the Palestinian People: The Palestine Liberation Organization or the State of Palestine? The Aftermath of United Nations General Assembly Resolution 67/19","authors":"May Barakat, Yasser Amouri","doi":"10.1163/15730255-bja10115","DOIUrl":"https://doi.org/10.1163/15730255-bja10115","url":null,"abstract":"\u0000This article focuses on the representation of the Palestinian people eight years after the adoption of United Nations General Assembly Resolution 67/19 in 2012, which accorded Palestine observer State status at the United Nations. It addresses the representative role of the Palestine Liberation Organization as an entity with international legal personality recognized by the international community as the sole representative of the Palestinian people. It discusses the developments related to this representative role in light of the ambiguous relationship between the Palestinian Liberation Organization and the State of Palestine, which is merely a continuation of the organization’s relationship with the Palestinian National Authority.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48860113","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-09DOI: 10.1163/15730255-bja10108
Noura H. al-Mutairi
This article is primarily concerned with setting a definition for the right to privacy in the digital age, which reflects its meaning and social value in Kuwait as an Arab — Muslim country. While ‘ḥurmah’ is considered as equivalent to ‘privacy’, under the primary sources of Islamic law, its meanings do not provide a sufficient explanation of what is meant by privacy. Also, most Arabic academics, instead of focusing on the illustration of privacy from the perspective of Islamic law, have tended to demonstrate the term ‘privacy’ according to Western theories, without considering the differences between Western and Islamic cultures and the value of that right in each. As such, this article has illustrated and explained the prevalent Western theories, but with reflection from the perspective of Islamic law, in order to set a definition for that right which reflects its meaning and social value in Kuwait as a Muslim country.
{"title":"The Right to Privacy in the Digital Age as Expressed in a Muslim Country: A Case Study of Kuwait","authors":"Noura H. al-Mutairi","doi":"10.1163/15730255-bja10108","DOIUrl":"https://doi.org/10.1163/15730255-bja10108","url":null,"abstract":"\u0000This article is primarily concerned with setting a definition for the right to privacy in the digital age, which reflects its meaning and social value in Kuwait as an Arab — Muslim country. While ‘ḥurmah’ is considered as equivalent to ‘privacy’, under the primary sources of Islamic law, its meanings do not provide a sufficient explanation of what is meant by privacy. Also, most Arabic academics, instead of focusing on the illustration of privacy from the perspective of Islamic law, have tended to demonstrate the term ‘privacy’ according to Western theories, without considering the differences between Western and Islamic cultures and the value of that right in each. As such, this article has illustrated and explained the prevalent Western theories, but with reflection from the perspective of Islamic law, in order to set a definition for that right which reflects its meaning and social value in Kuwait as a Muslim country.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46145328","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-09DOI: 10.1163/15730255-bja10114
Mohamed Elgohari
This article argues that law and legal mechanisms in Egypt have not simply reinforced authoritarianism but have also been the avenue through which embryonic moves toward the rule of law have been halted and even reversed. The political regime has utilized law to consolidate its rule, boost its legitimacy, crack down on opposition and dissent, and restrict freedoms and rights. In Egypt, law and authoritarianism have not only co-existed but also have intersected and been mutually supportive. The political regime has used laws to legalize its autocratic policies and practices as a pretext to restore order and stability and fight terrorism. Since 2013, the law has been a tool not simply for authoritarianism in general but also for the ruling regime and military institution to assert control over society, to place themselves out of reach of legal/constitutional mechanisms and accountability either by issuing new laws and executive orders or altering existing ones.
{"title":"Deconstructing the Relation between Law and Authoritarianism: How Law Consolidated Authoritarianism in Post-2011 Egypt","authors":"Mohamed Elgohari","doi":"10.1163/15730255-bja10114","DOIUrl":"https://doi.org/10.1163/15730255-bja10114","url":null,"abstract":"\u0000This article argues that law and legal mechanisms in Egypt have not simply reinforced authoritarianism but have also been the avenue through which embryonic moves toward the rule of law have been halted and even reversed. The political regime has utilized law to consolidate its rule, boost its legitimacy, crack down on opposition and dissent, and restrict freedoms and rights. In Egypt, law and authoritarianism have not only co-existed but also have intersected and been mutually supportive. The political regime has used laws to legalize its autocratic policies and practices as a pretext to restore order and stability and fight terrorism. Since 2013, the law has been a tool not simply for authoritarianism in general but also for the ruling regime and military institution to assert control over society, to place themselves out of reach of legal/constitutional mechanisms and accountability either by issuing new laws and executive orders or altering existing ones.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42177705","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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