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Islamic Law: Afghan Muslim
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This article considers the relationship between Islamic law and the absence or practice of investigative torture in the countries of today's Muslim world. Torture is forbidden in the constitutions, statutes, and treaties of most Muslim-majority countries, but a number of these countries are regularly named among those in which torture is practiced with apparent impunity. Among these countries are several that profess a commitment to Islamic law as a source of national law, including some that identify Islamic law as the principal source of law and some that go so far as to declare themselves “Islamic states.” The status of investigative torture in Islamic law has long been unsettled: most early classical jurists forbade it, but some later classical jurists permitted it in at least certain circumstances. The permission some jurists gave the practice in Islamic jurisprudence (fiqh) was matched and augmented by a broader license jurists gave executive actors in the realm of governance or administration (siyasa), a realm seen as necessarily less constrained by jurisprudential limitations. Historical evidence indicates that investigative torture was indeed practiced by executive actors at various periods and places of the pre-modern Muslim world. Nevertheless, statistical analysis indicates little or no correlation between the absence or practice of torture in today's Muslim-majority countries and the degree of commitment these countries profess to Islamic law.
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The researcher approaching Islam and Islamic law from outside must be careful not to do so from Western human-rights, constitutional-law and philosophical assumptions. Furthermore, the researcher may be confronted with a strict orthodox view and a different liberal interpretation accepted by some but no means by all believers and sympathizers. This is particularly so here since dissent in Islam may be viewed as apostasy or blasphemy severely to be punished, even by death. The distinguished law professor Abdullahi Ahmed An-Na'im argues the case for a modernist Islam; this is something he could only do from his exile in the United States, not his native Sudan. In the post-9-11 era Muslim moderates in the United States have been particularly anxious to express themselves, particularly on the subject of terrorism. See, for example, Diane Katz, "Shek: moderate U.S. Muslims have become 'the silent majority', Detroit News, October 11, 2001, http://detnews.com/2001/editorial/0110/12/a11-315728.htm. See ...: Zeeshan Hasan's Liberal Islamic Web Site.
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Lawyers in the region attribute the increase in the number of Islamic finance deals in large part to the Middle East's overall economic boom resulting from record oil profits. The surge of liquidity in the market has driven investors to demand a broader range of financial instruments in which to invest. And more of the money is staying in the region than it did during the oil booms in the 1970s and 1980s. "Muslim investors' increasing interest in Islamic finance is ... tied to a groundswell in religious identity that has been building in the Middle East in the post-colonial period," says Ali Adnan Ibrahim, who teaches a course in Islamic finance at Georgetown University's law school. "Real movement is afoot in the Middle East. Investors want alternative ways to invest their money," says Agha.
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Many Islamic nations--such as Jordan, Kuwait, Pakistan, and Yemen--have certain criminal laws that reflect traditional Islamic practice, banning Muslims, for example, from drinking or selling alcohol. Enforcement of these laws is often spotty, and non-Muslims are generally exempted. The vast majority of Islamic nations no longer apply the traditional corporal punishments for violations of specific Quranic criminal laws. These punishments include flogging, amputation, and stoning.
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Even though this is the first semester of Warren’s Islamic Law Seminar, the course has gained a tremendous amount of popularity at the Law School. Warren says the genesis of the course came following the events of September 11th. The students’ response, she says, was to ask why it happened and to attempt to learn more about the Muslim world.
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The message that all countries should be ruled by Islamic law is echoed throughout MAS’s membership curriculum. For example, MAS requires all its adjunct members to read Fathi Yakun’s book To Be a Muslim. In that volume, Yakun spells out his expansive agenda: "Until the nations of the world have functionally Islamic governments, every individual who is careless or lazy in working for Islam is sinful."
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