Islamic Law In Our Times: Recent Comments

Comment on Iraq elections and more

Haider Ala Hamoudi — Tue, 16 Mar 2010 02:18:59 GMT

Thanks on that phrase, it makes sense to me now. We should be rid of such notions, too bad I don't hold them-- "one" only "suspects" I do. as long as it doesn't involve bullets it's all good.

My own review is actually on SSRN in pretty late draft form. I added as acknowledgments pretty much the whole Iraqi Constitutional Committee who I ran it by late in the day office by office person by person just to see if a single person thought what he was saying re the Iraqi constitution made any sense (they didn't, nor did they know who this guy making these odd claims was). I made a couple of mentions to the professional nonpartisan legal drafter on the committee too who helped me understand how the language got changed into the final form that appeared. I don't think I've changed much else but not sure. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1266386

I wish I knew how to get the response to the review out to interested readers like you but I don't control that content of course. If you can find it online I'll link to it right away just let me know.

HAH

Comment on Iraq elections and more

Jason Kilborn — Mon, 15 Mar 2010 20:32:00 GMT

I'd really love to read your review and Feldman's response, but as usual, the print publications are neither accessible freely online, nor available in our library. Has either of you posted any of this online? I don't see it on either of your SSRN pages, and Hein doesn't carry this publication. If this exchange is available online somewhere, I'd really like to read it, as I have the rest of your really fine work.

By the way, "to be shot of" something is British slang meaning to be rid of something, to put it behind you. I'm not sure why Feldman uses this phrase here, other than the obvious hoity-toity "I'm more cosmopolitain than you" posture that we've all seen elitists use when challenged by mere mortals.

Comment on Rights to Silence in the US and Iraq

Haider Ala Hamoudi — Sat, 13 Mar 2010 14:22:01 GMT

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 — Wed, 10 Mar 2010 10:57:04 GMT

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 — Wed, 10 Mar 2010 07:17:02 GMT

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 — Sun, 07 Mar 2010 07:12:20 GMT

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 — Fri, 12 Feb 2010 15:57:03 GMT

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 — Thu, 11 Feb 2010 04:50:46 GMT

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 — Sat, 23 Jan 2010 22:10:56 GMT

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 — Fri, 22 Jan 2010 23:43:11 GMT

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?