Islamic Law In Our Times: Recent Comments

Comment on Rights to Silence in the US and Iraq

Haider Ala Hamoudi — 2010-03-13T14:22:01Z

Andrew the computer didn't like your comment, so it moved it into the inactive folder on its own. I just read it now when I got into that folder to extract gems like this, hence the delay in getting it posted.   It must have been because you said I had socialist instincts, the computer must have thought you were Glenn Beck.

I like your UK suggestion, works better for me than the US system.

But in any event. "You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney, if you cannot afford an attorney, one will be assigned to you. Do you understand these rights? (pause) Now look here Andrew, it's pretty ugly, we found you at the crime scene, three hours after the murder, your friends saw you with a knife just like the one sticking out of your father, and a woman said she saw you do the stabbing. Then there's the old man who says he saw you running down the stairs just after he heard you threaten you'd kill him at the same time. Now I understand it, heck if I had been beaten all my life I might have done the same thing. Outrageous what that man did to you. So why don't you help us out, and tell us what happened, and we'll do what we can to help you out. Because see if you don't help us out, and we have to do this the hard way, then no jury out there is going to help you.  You'll be in the chair in six months time. Up to you, dead in six months or tell me now what happened so I can help you."

I think that's uncontroversially okay under US rules. Yet I don't think you have to be dumb to think you'd better say something quick. I think you just have to know that the cop is allowed to mislead or exaggerate, he won't protect your interests like your lawyer will, and that talking early leads to nothing good for you.   And if you don't know those things, and I just most people accused of crimes would not, then I do not think the first sentence does you much good at all.

HAH

Comment on Takaful and Insurance: On the meaning of "ownership"

cheap travel insurance — 2010-03-10T10:57:04Z

Very interesting post - it does seem that a few semantic shifts are all that has been changed. People can actually do a lot themselves to make insurance more ethically congruent with Islamic law - how about only insuring until you have saved up enough money to provide for your family on your own?

Comment on Takaful and Insurance: On the meaning of "ownership"

Car Insurance — 2010-03-10T07:17:02Z

Fascinating discussion. I think there are plenty of very real, practical ways to make Islamic insurance more in line with the instruction not to gamble. For example, why wouldn’t payouts be based on whatever funds are available, rather than guaranteeing a certain amount? Why not make the group completely non-profit? If the ‘human foibles’ can be overcome, it would be an excellent example to the West.

Comment on Rights to Silence in the US and Iraq

Andrew Allen — 2010-03-07T07:12:20Z

With the greatest of respect, I have tried hard but I don't really understand the point that is being made here. There is a big difference between suggesting that someone is not afforded a right (the Basra cop - whose services to comedy gave a number of people including some of his colleagues in the Iraqi police force an opportunity to laugh at him) and informing someone of their right to be silent and then asking him questions which he can choose to answer or not (which you say is the US position).
I think that this difference has important consequences in practice as well as theory.
I have no knowledge of the US position but I can't instinctively agree with your assumption that the American lumpen proletariat in their ignorance of the 5th Amendment are generally unable to understand or make use of their right to silence - a right which is in fact widely used by all sorts of people in other nations. Isn't our general ignorance of our rights the reason that we are informed of them upon arrest?
I can't understand how this particular constitutional right has been "developed in a manner that ends up causing significant damage to the less advantaged". Even if in the US the 'less advantaged' often don't make full use of this right, are you suggesting that everyone but the American elite would be better off without being informed of their right to silence or without having the right to silence?
Constitutions tend to be written by elites and from what little I know of the US constitution it certainly was. There are undoubtedly disparities between the abilities of those with money and those without to take advantage of their rights but perhaps it is a step too far to suggest that the 'disadvantaged' might actually need different rights.
Anyway all that said I applaud your socialist instincts and I have a suggestion for debate that might create more equality between the plebs and the patricians. In the UK the right to silence was long since qualified and now before questioning (usually upon arrest), one is informed that "You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you may later rely on in court. Anything you do say may be given in evidence." This may help to keep the red flag flying by ensuring that the corrupt banker who fails to answer a question about the whereabouts of his assets that he really should have been able to answer shortly after arrest is treated similarly to a blood splattered chainsaw wielding resident of a trailer park.

Comment on Institutional Failures in Islam

Haider Ala Hamoudi — 2010-02-12T15:57:03Z

Well said indeed. Precisely the type of measures that one needs to take in order to ensure more neutrality on the part of the shari'a boards, which would be far more effective than just insisting on their purity because the relevant individuals have PhD's and are scholars.

HAH

Comment on Institutional Failures in Islam

Blake Goud — 2010-02-11T04:50:46Z

Professor Hamoudi,

The conflict of issue is approached institutionally in many different ways, but one of the ones that I am most familiar with is the investment advisory role. Investment advisors in the US are required to act in a fiduciary role and disclose any conflict of interests.

Would the fiduciary model work for Shari'ah borads? They clearly have a potential conflict of interest between the investors they are making representations to about Shari'ah-compliance and the institutions they are being paid by.

In a simple system, the Shari'ah scholars (who I think are acting on behalf primarily of the investors who rely on their fatawa to invest in a sukuk or other product) should be required to disclose their conflict of interest (the amount the issuer is paying them) and also be required to act as fiduciaries. Specifically, they should be required to act in the best interest of the investors and to put the investors' interests above their own.

These are financial products we are talking about and so such a high standard would not be out of the question (although that may not necessarily always apply in jurisdictions where Islamic finance operates). However, if Islamic finance wants to try and operate on the moral high ground compared to the way finance is done by conventional financial institutions, it would seem reasonable to meet OR EXCEED the prevailing standards for fairness and ethical behavior.

Blake Goud
Sharing Risk dot Org

Comment on America's Two Muslim Communities

Haider Ala Hamoudi — 2010-01-23T22:10:56Z

Thanks Kim. yeah, I hit "send" and realized I omitted the whole area of African Muslims which was rather dumb of me. Generally, African immigrant Muslims (meaning of course subsaharan Africa, as the North Africans consider themselves Arabs more or less) end up with the African American community by and large, though not exclusively, which does not surprise me terribly.

I'm not sure where outside the US you have such incredible diversity. Of course Canada and Europe and Australia, but they aren't much different in terms of their racial divides. The HK mosque I used to attend had immigrants from everywhere, though overwhelmingly South Asia. Still, folks from other places likewise attended,including Africans, and there was no "African Muslim" mosque that I knew anything about.

Comment on America's Two Muslim Communities

Kim — 2010-01-22T23:43:11Z

Just a question, in practice and in doctrine where do immigrant African Muslims fall?

And, outside America, when African Muslims and Arabic or Persian Muslims live in the same cities and regions, is there less division along racial lines than in the US? Along doctrinal lines?

Comment on On the nature of "Islamophobia"

Haider Ala Hamoudi — 2010-01-22T21:17:57Z

Your information on Iraq is simply flat wrong. I would be the last to suggest that Christians are not disproportionately targeted in terrorist attacks by nutcases. But in our offices in Baghdad I had three Christian colleagues, all attended church regularly, all had their children baptized, none hid their religion from anyone I know. "very much on the run" just isn't true.

Iran does have a Christian community and churches, they are open. Synagogues as well, they exist. That said, Christians are discriminated against in Iran, as are Jews, even if their beliefs are tolerated. Saudi is viciously intolerant. Neither is an appealing model for religious pluralism under any reasonable formulation.

How many churches and synagogues are there in Islamic countries? Are you kidding? It's in the hundreds of thousands. Visit Indonesia, visit Iraq, visit Syria, visit Malaysia, visit Egypt, visit Tunisia, visit Morocco, visit Turkey. Just off the top of my head.

I'd go on and point out none of this has to do with my post, which is about the importance of not assuming the very practice of Islam is necessarily intolerant and violent given the many places and the many people for whom that is not true, but since you obviously don't know much about the Muslim world in the first place, it's sort of a waste of time in this context.

Comment on On the nature of "Islamophobia"

Roger — 2010-01-18T18:21:17Z

It is my understanding that Christians are very much on the run for some time now in Iraq. Is Christianity or any belief other than Islam tolerated in Iran? Are Christians and their bibles allowed to live and practice openly in Saudi Arabia? How many churches or Jewish temples are there in Islamic countries?