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On March 6, 2017, President Donald J. Trump, issued a revised Executive Order which barred, with certain exceptions, entry to the United States of nationals from six predominantly Muslim countries, suspended the entry of refugees for 120 days, and reduced the number of refugees who can be admitted to the United States by more than half. The Plaintiffs (the State of Hawai’i and Dr. Ismail Elshikh, an American citizen of Egyptian descent who serves as the Imam of the Muslim Association of Hawai’i) filed a motion for a nationwide temporary restraining order.

The Plaintiffs argued that the revised Executive Order subjected them to discrimination in violation of the Constitution and the Immigration and Nationality Act 8 U.S.C. § 1101 et seq. (INA), because the Executive Order results in “their having to live in a country and in a State where there is the perception that the Government has established a disfavored religion.” The Plaintiffs pointed to public statements by the President and his advisors regarding the implementation of a “Muslim Ban,” which the Plaintiffs contended was the tacit and illegitimate motivation underlying the revised Executive Order. For example, the Plaintiffs pointed to a statement by President Trump that he was “establishing a new vetting measure to keep radical Islamic terrorists out of the United States of America,” and that “We don’t want them here,” and to an interview with President Trump in which he claimed: “Do you know if you were a Christian in Syria it was impossible, at least very tough to get into the United States? If you were a Muslim you could come in, but if you were a Christian, it was almost impossible and the reason that was so unfair, everybody was persecuted in all fairness, but they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair. So we are going to help them.”

The Court found that the State of Hawai’i and Dr. Elshikh both had standing to assert their claims. The Court found that Hawai’i had standing due to the harms to the state’s proprietary interests as operator of public universities and due to preliminary data that indicated the revised Executive Order had suppressed international travel and injured tourism as Hawai’i’s main economic driver. As for Dr. Elshikh’s standing, the Court observed that the injury-in-fact prerequisite can be “particularly elusive” in Establishment Clause cases because plaintiffs do not typically allege an invasion of a physical or economic interest. “Despite that, a plaintiff may nonetheless show an injury that is sufficiently concrete, particularized, and actual to confer standing.” See Catholic League, 624 F.3d at 1048-49; Vasquez v. L.A. County, 487 F.3d 1246, 1250 (9th Cir. 2007). Dr. Elshikh had standing because the revised Executive Order left him and his family, including a wife of Syrian descent and young children who are American citizens, with the knowledge that the United States—their own country—would discriminate against individuals who are the same ethnicity as them, and who hold the same religious beliefs. The Court found that, because the revised Executive Order targeted Muslim citizens due to their religious views and national origin, which may result in these citizens being unable to associate freely with those of other faiths, the injuries are sufficiently personal, concrete, particularized and actual to confer standing in the Establishment Clause context.

As for the Establishment Clause claim, the Court declined the Defendants’ urging to rely on the Executive Order’s religiously neutral text, and instead evaluated the text in conjunction with the historical background of the revised Executive Order. The Court found this historical record “includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.” The Court included statements made by President Trump including: “I think Islam hates us” and “People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.”

Because the Court found that the Plaintiffs have shown a “strong likelihood” of succeeding on their claim that the Executive Order violates First Amendment rights under the Constitution, and “it is always in the public interest to prevent the violation of a party’s constitutional rights,” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012), the Court granted the Plaintiffs’ motion for a temporary restraining order (TRO). In effect, the TRO now blocks the second version of the ban.

Editors’ Note: Many of the statements about Islam, including references to Islam generally and to jihād, tend to refer to false conceptions of Islamic law or sharīʿa as inherently violent.

Pursuant to a murabahah sale-purchase agreement, the defendant had obtained a murabahah loan facility valued at IDR 142,400,000: IDR 80 million in gains, with the bank’s profit margin being IDR 62.4 million. The period of the loan was 60 months, commencing on 21 October 2011 (signing date) and ceasing on 21 October 2016. The defendant was to use the finance to purchase 360 m² of land in Patemon, Purbalingga. The plaintiff submitted that the defendant had defaulted on the loan, that it had served the defendant with several reminder notices, and that despite providing the defendant with yet another opportunity to make the necessary repayments, the defendant had failed to do so. The plaintiff made several other attempts, such as billing the defendant, sending a reminder, as well as approaching the defendant through his family. The defendant’s inaction forced the plaintiff to lodge an application with the court, pursuant to art 49(i) of Law No. 3 of 2006 on Amendments to Law No. 7 of 1989 on the Religious Judiciary, in conjunction with art 55(1) of Law No. 21 of 2008 on Shari’a Banking.

The plaintiff requested that the court secure the defendant’s property against the debt owed, that it declare the original agreement valid, that it find the defendant in breach for default, and that it order the defendant to pay to the plaintiff in material damages IDR 138,456,468.

Despite being summonsed to attend the proceeding, the defendant failed to do so. In the defendant’s absence, the court declared the agreement valid, and ordered the defendant to pay to the plaintiff IDR 138,456,468 in material damages, as well as court costs (IDR 491,000).

The deceased passed away on 29 September 2007 in Balikpapan due to illness, leaving in his will seven properties. The plaintiffs were the nieces and nephews of the deceased, their fathers (also deceased) being the biological brothers of the deceased. They submitted that they had not been included in the will of the deceased as beneficiaries, and that, therefore, the will should be declared null and void. The first defendant was the wife of the deceased, and the third-fifth defendants were her adopted children. The second defendant was also a biological sibling of the deceased.

The plaintiffs submitted that the defendants had sold the bequeathed properties for a collective IDR 6.8 billion, without distributing to the plaintiffs their share of the proceeds. As there was no familial or blood relationship between the deceased and the third-fifth defendants, the plaintiffs submitted that they had no claim to the proceeds of sale.

The court found that the plaintiffs' claim failed, however, because it did not identify when the properties were sold. Moreover, while their claim did acknowledge that the properties had been sold, the plaintiffs still sought to have the properties stipulated as estate of the deceased that should be distributed in their favour. Rather, they should have requested that the proceeds of sale be stipulated as estate of the deceased. In addition, the court found that it was not authorised to invalidate a previous court determination handed down on 10 January 2012, which had found that the plaintiffs were not beneficiaries because their parents had passed away before the deceased.

An Arab Muslim truck driver for Swift Transportation Company sued his former employer under Title VII, Tennessee state law, and the Family and Medical Leave Act (FMLA), alleging discrimination on the basis of race, national origin, and religion, as well as intentional economic harm under state law and the FMLA. Specifically, the plaintiff claimed that non-Arabs and non-Muslims received better work assignments and that fellow drivers made “hateful” comments regarding his religion and national origin. However, he did not provide any specifics regarding these claims. The defendant claimed that it terminated the plaintiff because the plaintiff did not report an accident within the timeframe mandated by the company. The Court granted the defendant company’s motion for summary judgment, concluding that the plaintiff did not provide sufficient evidence to make out a prima facie case of discrimination under Title VII, the defendant had a legitimate non-discriminatory reason for terminating employment, and because the plaintiff did not exhaust all administrative measures before pursuing a case in court. The plaintiff madeno explicit connection to Islamic law, except that to complain of perceived bias on the basis of his religion, which may have included religious practice.

This is a reference to the legal legacy of the Family of the Prophet being informed primarily by the teachings and practice of ʿAlī, his sons Ḥasan and Ḥusayn, ʿAlī Zayn al-ʿĀbidīn, Muḥammad al-Bāqir, and Jaʿfar al-Ṣādiq. Hossein Modarressi argues that it was with al-Bāqir that this legacy assumed formal shape as a systematic and well-organized tradition.

This source is part of the Online Companion to Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Harvard University Press, 2022).

Ibn Ḥārith al-Khushanī recorded the following case as a ḥikāya, an anonymous report: A Christian appeared before the judge Aslam b. ʿAbd al-ʿAzīz, petitioning to be executed. The anecdote offers insight into the historical role of judges during a period of religious dissent in the Umayyad Caliphate, while the author's narrative voice demonstrates past judicial approaches to rationality, humor, and violent penalization. 

This text is part of Maribel Fierro, The Judges of al-Andalus, forthcoming.

This is a reference to a story about one of Jaʿfar al-Ṣādiq's slaves, together with someone else, who killed a person. When permission for retaliation was sought from al-Ṣādiq by the governor of Medina, al-Ṣādiq at first remained silent because his view was that two people could not be put to death for the murder of one person, later withdrawing his protection of his slave after the victim's family convinced the governor to put pressure on him. Hossein Modarressi cites this reference to explain that al-Ṣādiq was keenly attuned to social sensitivities.

This source is part of the Online Companion to Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Harvard University Press, 2022). 

In November 2010, the plaintiff permitted his daughter and son-in-law to use his property to secure a murabahah financing agreement for IDR 182,400,000 from the defendant. Rather than his daughter and son-in-law being parties to the agreement, it was in fact their company that became party to the agreement, a point to which the plaintiff did not object. On 22 November 2010, the defendant requested that the plaintiff sign a declaration acknowledging that he was financially responsible for the agreement, as well as a power-of-attorney granting the defendant authority to deal with his property as it saw fit, in the event his daughter's company defaulted on its repayments.

The plaintiff submitted that he did not know what the loan money was intended for, nor did he know about the repayment scheme agreed to by the parties to the agreement. On 24 April 2013, the plaintiff was informed that his property would be auctioned as his daughter and son-in-law's company had indeed defaulted on a repayment. While the plaintiff was informed by his son-in-law that the debt owing was IDR 118,604,000 (four monthly repayments), when the plaintiff requested the relevant information from the defendant to repay the debt, the defendant, the plaintiff submitted, failed to provide him with that information, confusing the plaintiff further by telling him that the total debt was not actually IDR 182,400,000. The plaintiff submitted that the defendant then unilaterally set the sale price of the property, rather than obtaining a quote from an independent and reputable appraisal company registered with the Ministry of Finance, contrary to Law No. 4 of 1996 on Mortgages of Land and Fixtures. The plaintiff further submitted that the credit arrangement was unlawful as the plaintiff had still not seen any evidence of an agreement, such as a repayment receipt. More significantly, contrary to art 18(1)(g) and (3) of Law No. 8 of 1999 on Consumer Protection, the plaintiff submitted that the defendant had included in the agreement a requirement that the plaintiff be subject to any new regulations the defendant sought to include. This conduct, the plaintiff asserted, was punishable by a maximum fine of IDR 2 billion (art 62 of Law No. 4 of 1996).

After court-sanctioned mediation failed, it initially appeared that the court had successfully counselled the parties, bringing them to reconcile. When this proved not to be the case, however, the plaintiff lodged an amended claim. In his amended claim, the plaintiff alleged that, in November 2010, the co-defendant, via his daughter, used the same property to secure the murabahah agreement. The plaintiff consented to this arrangement, pursuant to which the co-defendant secured IDR 182.4 million. On 22 November 2010, the plaintiff was asked by the defendant to sign a written statement that declared the plaintiff responsible for the financed amount, and that the plaintiff would fulfil all obligations pursuant to the agreement, pay all arrears and/or repayments, and provide his property as a security. On the same date, the plaintiff then signed a power of attorney before a notary, granting power of attorney to Limo Endriyanto, as head of the defendant's branch, to deal with the property as necessary in the event of a default. The plaintiff also signed a mortgage power of attorney in favour of the marketing department of the defendant, and a new mortgage deed was drafted on 20 December 2010. On 24 April 2013, the plaintiff was informed by the co-defendant that, owing to a default on the repayments to the defendant, the plaintiff's property would be auctioned on Wednesday 29 May 2013.

The plaintiff claimed that the co-defendant had informed him he would need to repay four instalments totalling IDR 118,604,000, however, he had only guaranteed repayment of IDR 182,400,000 in total. Moreover, despite his requests for further information to the defendant and co-defendant regarding the debt, the plaintiff received no information that clarified the situation.

On 25 December 2013, the plaintiff submitted, contrary to the mortgage deed, that the co-defendant visited him at his home and requested that he repay IDR 401,250,200, rather than the original IDR 182,400,000. The plaintiff also maintained that the co-defendant and defendant's conduct breached Law No. 4 of 1996 and Law No. 8 of 1999, as per the plaintiff's initial claim.

As a result of the confusion caused by the defendant and co-defendant, as well as time lost, the plaintiff submitted that he had suffered IDR 1 million in material damages. Moreover, due to the concern, disharmony and anxiety suffered by the plaintiff and his family, the plaintiff sought IDR 200 million in damages.

The court, however, finding that the plaintiff lacked the necessary legal standing as he was not a party to the original murabahah agreement, dismissed the plaintiff's claim.

The scope of this qanun is confined to creed (aqidah), shari'a (syariah), and moral disposition (akhlak). The qanun defines moral disposition (akhlak) as symbolism (syiar) and proselytisation (dakwah), and shari'a as:

1. worship (ibadah);
2. family law (ahwal al-syakhshiyah);
3. civil law (muamalah);
4. criminal law (jinayat);
5. judiciary (qadha');
6. education (tarbiyah); and
7. defence of Islam.

The qanun states that the implementation of the Islamic principles regulated therein is part of a more significant overall objective, that being to implement Islamic principles in their entirety. It places the responsibility to implement Islamic principles on the Acehnese government, as well as the regency/municipal governments within Aceh, mandating the governments to allocate at least five per cent of their respective budgets to facilitate such implementation. The qanun also obligates all Muslims in Aceh to adhere to Islamic principles and customs, and every legal entity domiciled in Aceh to respect the implementation of Islamic principles.

A petition sent to the Ottoman Sultan from Egypt in 1155 AH (1742-3), concerning a dispute between a Muslim and a Christian in the town of Zifta. The Muslim petitioner attempts to enforce the regulation of the Pact of 'Umar that forbids non-Muslims from having houses taller than those of Muslims. Baldwin's commentary on the petition focuses on how the petitioning process relates to the sharīʿa court system in the Ottoman Empire.

A Toledan man named Ibn Ḥātim was accused of being a heretic by sixty witnesses on the initiative of a fellow Toledan called Ibn Labīd al-Murābiṭ. The judge consulted with the local jurists, and following their legal opinions, he sentenced the accused to death. However, he granted the accused the right to challenge the witnesses (iʿdhār). Ibn Ḥātim escaped from Toledo and found refuge in the neighboring kingdom of Badajoz. Ibn Labīd went after him, carrying a copy of the judge’s sentence (tasjīl) along with the legal opinions of a number of non-Toledan jurists. In Badajoz, the ruler withdrew his support from Ibn Ḥātim, who fled again, this time to Cordoba. While in Cordoba, the “moral” police arrested Ibn Ḥātim, and the judge imprisoned him, giving him two months to prove his innocence. Unable to do so, Ibn Ḥātim was crucified alive. A number of legal issues arise in the course of this case: should the process of iʽdhār—the right to challenge witnesses—be granted to those accused of heresy (zandaqa)? Should refuge be granted to them? What happens with the estate or inheritance of an executed zindīq? Can a judge reverse a sentence given by another judge? The source is a collection of court cases by Andalusi scholar Ibn Sahl (d. 486/1093), and it is based on information directly available to the compiler, who was also a witness of most of the events described.

By Waheeda Amien (University of Cape Town), originally published on The Conversation

South Africa’s Constitutional Court has fundamentally changed the country’s marriage law, making it fairer to people who are married “out of community of property” when their marriages end. In these marriages, the estates of spouses are kept separate. They do not combine what they own into a joint estate.

The change applies to people who got married after 1 November 1984 when their marriages end in divorce; or who got married before or after 1 November 1984 and whose marriages end in death.

The apex court’s judgment of 10 October 2023, in the case of EB v ER, will benefit spouses, mainly wives, who find themselves in financially vulnerable positions when their marriages out of community of property without accrual end in divorce or death. This includes stay-at-home mothers, who take care of the family home or raise the children full time. Their non-financial contributions to the marriage, including unpaid labour in the home, are now valued as much as any financial contributions to the marriage.

Before 1 November 1984, there were only two legally recognised matrimonial property regimes applicable to marriages in South Africa. They were marriages in community of property and out of community of property.

Marriages in community of property are those in which the estates of both spouses are combined. When the marriage ends through divorce or death, the parties each have a 50% claim against the joint estate.

In the case of the out of community of property regime, the estates of the spouses are at all times kept separate. Neither spouse has a claim against the other spouse’s estate even if they contribute to the maintenance or growth of the other’s estate.

The change

On 1 November 1984, the Matrimonial Property Act 88 of 1984 entered into force. It introduced a third matrimonial property regime: the accrual system.

The accrual system allows spouses who are married out of community of property to share in the growth of each other’s estates while still maintaining their separate estates.

Both spouses retain separate estates when they enter the marriage and during the marriage. At the end of the marriage through divorce or death, the spouse with the smaller accrual or no accrual has a claim against the spouse with the bigger accrual. The claim is for an amount equal to half of the difference between the accrual of the respective estates of the spouses.

For example, a wife and husband each enter the marriage with R1,000. At the time that they are married, both spouses are working. During the marriage, they decide that the wife should stay at home and take care of the house and children while the husband will continue working and be the breadwinner of the family.

Suppose that at the end of the marriage, the wife’s estate is valued as R3,000 and the husband’s estate is valued as R10,000. The accrual in the wife’s estate is R2,000. The accrual in the husband’s estate is R9,000. Half the difference between the accrual of the spouses’ estates is R3,500 (R9,000 minus R2,000 equals R7,000, divided by two equals R3,500.) Since the wife’s accrual is smaller than her husband’s accrual, she has a claim of R3,500 against her husband’s estate.

The above crude example illustrates that even though it may not have been intended, the out of community of property with accrual regime recognises that even though parties retain separate estates during the marriage, they may contribute indirectly to the maintenance or growth of each other’s estates, like the wife did through her unpaid labour in the home.

The judgment

When the accrual regime was created, section 7(3) of the 1979 Divorce Act was amended to allow spouses who were married out of community of property before 1 November 1984 (who therefore did not have the option of accrual), and who were undergoing a divorce, to apply to a divorce court for a redistribution order.

Through a redistribution order, a court can transfer the assets of one spouse to the other spouse if it is just and equitable to do so. This applies in instances where one spouse contributes directly or indirectly to the maintenance or growth of the other spouse’s estate including through the rendering of services.

In its judgment of 10 October 2023, the Constitutional Court found section 7(3) of the Divorce Act, among others, to be unconstitutional and invalid to the extent that it did not include a) spouses who were married out of community of property without accrual after 1 November 1984 if the marriages were dissolved through divorce, and b) spouses who were married out of community of property without accrual before or after 1 November 1984 whose marriages ended through death.

These parties could not claim a redistribution order if they contributed to the maintenance or growth of their spouse’s estate.

Significance of the judgment

The court’s judgment will provide much needed financial relief to spouses whose marriages out of community of property without accrual end regardless of when the parties were married or how the marriage ended.

The judgment will also benefit spouses in Muslim marriages. These were legally recognised when the Constitutional Court, in a 2022 case, Women’s Legal Centre Trust v President of the Republic of South Africa, declared that the common law definition of marriage and section 7(3) of the Divorce Act, among others, were unconstitutional to the extent that they did not include Muslim marriages. Now, spouses in Muslim marriages that are out of community of property without accrual, which dissolve through divorce or death, may apply to court for a redistribution order to transfer the assets from one spouse’s estate to the other.

Next steps

The advisory committee of the South African Law Reform Commission Project 100E on the Review of Aspects of Matrimonial Property Law is reviewing existing laws that deal with matrimonial property regimes.

In light of the Constitutional Court judgments in the Muslim marriages’ and accrual cases, the advisory committee could most likely recommend amendments to, among others, section 7(3) of the Divorce Act to enable all spouses married out of community of property without accrual to apply to court for a redistribution order when their marriages end in divorce or death.

In its discussion paper 160, the commission recommends that a court should retain discretion to ensure a just and equitable result when granting a redistribution order.

In April 2022 [1443 AH], the Dār al-ʿUlūm al-Sharʿiyya press published The Islamic Emirate and Governmental System, authored by the Chief Justice of the Islamic Emirate of Afghanistan, ʿAbd al-Ḥākim al-Ḥaqqānī, with a foreword by the current Taliban head, Hibatullāh Akhunzāda. The book was published in Arabic, with the intention of reaching a broad Muslim audience, beyond Afghanistan. The 312-page book discusses governance, education, laws of war (jihād), political leadership, education, and the rights and roles of women. The book opens by stating that, following the withdrawal of American-allied forces from Afghanistan, the goal of the new Islamic State is the implementation of divine law in accordance with Islamic law generally and Hanafī jurisprudence specifically. This book claims to be a manifesto encompassing the political and governance policies of the Taliban, even though it definitely represents the beliefs of al-Ḥaqqānī and his allies, rather than the philosophy of the entire Taliban movement—which has some internal variation. The book's principal assertions follow.

The book begins by defining two types of government: al-jabāya and al-hidāya. Al-jabāya refers, essentially, to the levying of taxes, while al-hidāya refers to religio-moral guidance. The author maintains that an Islamic government should be one of al-hidāya, where the government serves the role of providing advice and guidance to the people, rather than al-jabāya, wherein a government exploits the poor for the personal gain of government officials. Under a government of al-hidāya, the author asserts that the legitimate form of law is divine, not man-made.

The book acknowledges several sources of sharīʿa. Those sources include but are not limited to the Qur’ān, the ḥadīth (prophetic reports), qiyās (deductive analogical reasoning), ijmā‘ (scholarly consensus), and khayr (benevolence).

The book further establishes that the justice system of the Islamic Emirate should be in accordance only with Hanafī jurisprudence, and that no credence should be given to other schools of Islamic law that are and have historically been minoritarian in Afghanistan. The author asserts that accommodations made for religious minorities will lead to the justice system falling apart, as in the Ottoman Empire.

According to the author, citizens of the Islamic Emirate may continue to adhere to local customs (in Afghanistan: Pashtunwali or the code of the Pashtun people). Such customs may be upheld so long as they do not conflict with sharīʿa and may include wearing traditional Afghan clothes.

The head of the global Islamic state, the book asserts, should be called the Amīr al-Mu’minīn and should be appointed according to the same methods used in selecting the first Four Rāshidūn Caliphs after the death of the Prophet Muḥammad: through the formation of a council of influential and prominent people, not through democracy, which the author considers un-Islamic. Obedience to the Amīr al-Mu’minīn by the entire Islamic world is mandatory, the author asserts, and disobedience is punishable by death. As to criteria for leadership, the author maintains that the Amīr must be a man, and that women are to stay home and avoid participation in politics, for fear that their participation would compromise the political state.

The book discusses the various political institutions that form the Islamic Emirate: a Council of Ministers, the Armed Forces, and a Judiciary. It also calls for the creation of an all-male legislative body known as the Islamic Council.

On education, the book maintains that the educational system should include mandatory education in madrasas, and optional non-Islamic education. The author states that a co-educational system is forbidden (ḥarām), but that education of women itself is not necessarily prohibited (ḥarām). According to the author, a woman’s education should occur within the home and should be carried out by her family members. Further, he maintains that women should pursue careers that are suitable for them, such as medicine, caretaking, home sciences, and teaching; and they are to interface only with other women and girls in those professions.

The book specifically discusses women’s roles in society. It requires women to fully cover themselves in ḥijāb and stipulates that they should not engage in any pursuit that would require them to be alone for longer than three days. Finally, the author notes that women should not travel long distances without a male guardian, and that they should not unnecessarily leave their residences.

Overall, the book’s claims are seldom backed with references, and the sources employed by the author are not listed.