SHARIAsource

In this excerpt from his work of Quranic exegesis, Baghawī claims, on the authority of Saʿīd b. al-Musayyab and Ḍaḥḥāk, that God’s epithet al-muhayminis interpreted by some to mean “the judge” (al-qāḍī), and he reports that some even consider al-qāḍīone of the beautiful names of God. In his chapter comparing earthly justice with heavenly justice in the early Islamic imagination in Justice and Leadership in Early Islamic Courts, Christian Lange uses this source to argue that although God is not referred to as qāḍīin the Quran, medieval exegetes regularly identified Him as such in their exegetical works. Lange notes, however, that the inclusion of al-qāḍīamong the divine names did not become standard.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Krasner Balbale(ILSP/HUP 2017)—a collection of primary sources and other material used in and related to the book.

In this excerpt from his biographical dictionary of Egyptian judges, Kindī mentions a scribe (kātib) in describing an event that took place in the year 105–6/724. In his chapter comparing earthly justice with heavenly justice in the early Islamic imagination in Justice and Leadership in Early Islamic Courts, Christian Lange uses this report in the context of a discussion of Q. 50:21 (“Every soul shall come, and with it a driver [sāʾiq] and a witness [shahīd]”). He reports that the term sāʾiqwas interpreted by some as kātib, and he points out that Kindī’s account shows that the kātibwas already an established functionary of the court by the end of the first century of Islam.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Krasner Balbale(ILSP/HUP 2017)—a collection of primary sources and other material used in and related to the book.

In this excerpt from his book of admonitions, Qurṭubī deploys a Prophetic ḥadīth, “This is not a reckoning, it’s a [simple] exposure (ʿarḍ),” to explain Q. 84:7–9 (“As for one who is given his book in his right hand, he will be reckoned with an easy reckoning and will return to his people joyful”). In his chapter comparing earthly justice with heavenly justice in the early Islamic imagination in Justice and Leadership in Early Islamic Courts, Christian Lange uses this source to highlight the ways in which medieval exegetes sought to avoid anthropomorphic interpretations of the Quran. He also points to Qurṭubī’s efforts to alleviate the concern that even true believers will undergo a reckoning (ḥisāb) as indicated inQ. 84:7–9 by arguing that it is only enemies of God who attempt to engage in disputation (jidāl) in order to evade divine judgment.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Krasner Balbale(ILSP/HUP 2017)—a collection of primary sources and other material used in and related to the book.

In his work entitled al-Ashbāh wa-l-Naẓāʾir, Ibn Nujaym (d. 969/1563), examines similar historical legal cases and fatwas through collecting substantive legal canons and interpretive legal canons that “distinguish, explain, and guide varied outcomes in cases with seemingly similar facts.” As a principal work authored early in the Ottoman Era collecting legal canons in Ḥanafī law, Muslim jurists of many schools frequently reference his work. For example, drafters of the Ottoman Code of 1869, also known as the Mecelle, primarily relied on this work to select 99 legal canons to preface a new commercial code based on Ḥanafī law that would both modernize and reform Ottoman law based on traditional or classical Islamic legal norms, through reference to legal canons.

For more, view the full print edition or see Intisar Rabb, Doubt in Islamic Law (Cambridge University Press 2015) and “Experiments in Tracking Canons across the Mecelle” (Islamic Law Blog, March 16, 2022).

This Country Profile provides a basic overview of the legal history and institutional structures of the Kingdom of Bhutan (Druk Gyalkhap), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Bhutan's Constitution, Islamic law (sharīʿa or fiqh) has no legal status. 

This Country Profile provides a basic overview of the legal history and institutional structures of the Democratic People's Republic of Korea/North Korea (Choson-minjujuui-inmin-konghwaguk), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under North Korea's Constitution, Islamic law (sharīʿa or fiqh) has no legal status. 

This Country Profile provides a basic overview of the legal history and institutional structures of the Islamic Republic of Mauritania (Al Jumhuriyah al Islamiyah al Muritaniyah), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Mauritania's Constitution, Islamic law (sharīʿa or fiqh) has legal status and is the primary source of legislation. 

This Country Profile provides a basic overview of the legal history and institutional structures of the Kingdom of Morocco (Al Mamlakah al Maghribiyah), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Morocco's Constitution, Islamic law (sharīʿa or fiqh) has legal status. 

This fatwa was issued in response to the following questions from the Attorney-General of the Republic of Indonesia:

1. Jamaah Muslimin Hizbullah is of the opinion that pledging an allegiance (berbai'at) to the Imam of Jamaah Muslimin Hizbullah is obligatory (wajib). What is the opinion of the Council?
2. Can the Council provide to the Attorney-General Qur'anic verses or Hadith regarding Islamic government/Caliphate (Jama'at Imamah/Khalifah) and swearing an oath (Bai'at) apart from that produced by Jemaat Muslimin Hizbullah?
3. What is the Council's opinion on the formation of Jamaat Muslimin Hizbullah under the leadership of Syeh Wall Al Fatah in 1953 which, until now, has continued under the leadersihp of Imam Haji Muhyiddin Hamdi?
4. Can the Council provide any further information in relation to Jamaah Muslimin Hizbullah?

In the fatwa, the Council provided, among other information, the following in response:

1. Jama'ah means more than two people, which, in this case, means at least two people who pray five times a day. Regular prayers are encouraged but are not obligatory (sunat mu' akkad), however, Friday prayers (shalat Juma'at) are considered a pillar of a Muslim's Friday (rukun Jum'at). There are even those who believe that congregating to pray fives times a day is obligatory for some Muslims (fardhu kifayah); that praying together reaps twice the rewards of praying on one's own, and is advocated by Islam. The Council also states that jama'ah in a societal context means working together for good against evil (amar ma'ruf nahi munkar), helping one another socially, and avoiding disunity.
2. Khalifah means representative (wakil), meaning the person elected by the jama'ah to become their leader. Historically, khalifah referred to the head of Islamic government at the time of the companions of the Prophet (sahabat).
3. Bai'at literally implies a handshake as a sign of an agreement. More specifically, however, it is an acknowledgment by the people of their leader's authority.
4. Jama'ah Muslimin Hizbullah is an Islamic people's organisation with its own interpretation of Islam. The Council acknowledges that there exist groups among Indonesia's Muslim population with differing views and beliefs on Islam, some of which diverge from the Qur'an and Hadith. Usually such divergent followings are limited in numbers and, over time, struggle to acquire more followers. That said, proselytisation (da'wah) efforts are indeed necessary to correct these incorrect interpretations of Islam.

The parties were married on 11 February 2001 and had one child. The applicant submitted, however, that around September-October 2013, he and the respondent had begun to quarrel regularly. This was the result of:

1. the respondent's distrust of the applicant, whereas the applicant provided the respondent space and time for her own activities;
2. an increasing incompatibility and difference of opinion between the two parties;
3. the respondent requesting the applicant return her to her family, which the applicant interpreted as the respondent wanting to separate from the applicant, despite the respondent returning to the applicant after being counselled by her older sibling; and
4. the above incidents leaving the applicant feeling uncomfortable in the respondent's presence and his feelings towards the respondent somewhat dissipated.

Indeed, the applicant and respondent had not been physically intimate since 2008.

The respondent refuted many of the applicant's submissions, primarily that the applicant's own sexual dysfunction caused by a blood condition, as well as his constantly playing golf, had caused the aforementioned rift.

After judicial mediation proved unsuccessful, the court, pursuant to art 39(2) of Law No. 1 of 1974 on Marriage, art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of the Compilation of Islamic Laws, granted the applicant a revocable divorce (talak satu raj'i) on the grounds of ongoing conflict. The court also ordered the applicant to pay to the respondent maintenance costs of IDR 30 million backdated six months, as well as IDR 15 million for iddah (100-day period after divorce has been granted), and IDR 25 million for mut'ah (divorce compensation).

A UK family court considered whether and how UK law recognizes a marriage conducted according to Islamic law that had not been accompanied by a civil law marriage. The husband contended that the couple was never married, and the wife—petitioning for divorce—insisted that they were. The two had signed an Islamic marriage contract (nikāḥ) accompanied by a ceremony abroad, lived together and had children together, and held themselves out as married for years both abroad and in the UK. The court concluded that, on those facts and considering the UK laws on marriage—as interpreted, for the first time, through the Human Rights Act 1998 and the best interests of the child—that the marriage was “void” or “voidable.” This determination meant that the couple was not validly married under UK law but that their union was also not considered a non-marriage. Instead, as a void marriage, their union was something akin to what Islamic law would label a “defective marriage.” The court had essentially concluded that, although a marriage was not properly concluded or registered according to the law, the steps taken toward one would in some measure be recognized by the law and entitle the wife to certain legal protections upon dissolution of the union. In this case, this meant that the wife was entitled to a decree of nullity from the court, and that the wife could take advantage of certain UK civil law remedies for maintenance and child custody upon dissolution.

In these excerpts, the exegete Thaʿlabī provides interpretations of several Quranic verses pertaining to the heavenly court on the Day of Resurrection. In his commentary on Q. 39:69 (“The earth will shine with the light of its Lord. . . .”), Thaʿlabī presents reports explaining that God will manifest Himself (yatajallā) and illuminate the “open grounds of resurrection” (ʿaraṣāt al-qiyāma) with His light. In explaining Q. 2:210 (“God will come to them in canopies of clouds [fī ẓulalin min al-ghamām]”), Thaʿlabī cites al-Ḥasan al-Baṣrī’s view that God is “inside a cover (fī sutra) of clouds, so that the people of the earth do not look at Him.” As for the expression “God will come to them,” Thaʿlabī notes that God’s “coming” (ityān)refers to “recompense” (al-jazāʾ). Recompense is referred to as “coming” just as how “frightening” (takhwīf) and “punishment” (taʿdhīb) are also referred to as “coming” in the story of Nimrod in Q. 16:26 (“Then God came upon their building from the foundations, and the roof fell down upon them from above, and the punishment came upon them when they were not aware”). In his chapter comparing earthly justice with heavenly justice in the early Islamic imagination in Justice and Leadership in Early Islamic Courts, Christian Lange uses these reports to illustrate Muslim exegetes’ conceptions of the heavenly court and the ways in which they sought to explain away potentially anthropomorphic imagery in the Quran.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Krasner Balbale(ILSP/HUP 2017)—a collection of primary sources and other material used in and related to the book.

In Ayub Masih v. State (23 Aug 2022), Justice Qazi Faez Isa and Justice Syed Mansoor Ali Shah granted bail on an interim petition, pending trial, to the plaintiff Salamat Mansha Masih, who was arrested for “preaching and making blasphemous remarks” in April 2021. Masih was denied bail by the Sessions Judge and the Judge of the High Court, who relied on the First Information Report (FIR), which alleges that the petitioner was a preacher, and the statements of the four witnesses. Upon review, the Supreme Court declared that an “examination of the charge reveals material deficiencies ... [and] does not contain a number of prescribed requirements with regard to the framing of the charge,” casting doubt on the reliablity of the FIR and testimony from the four witnesses. Namely, the Court pointed to the misidentification of the petitioner as a preacher, and the lack of corroborating evidence for the witness testimony. Remanding the case without deciding on the merits, the Court charged the lower courts with observing the constitutional requirements for fair trials in blasphemy and other criminal law cases. Constitutional requirements of applying shari'a, alongside its fundamental rights and fair trial provisions, include consideration of the Islamic law doubt canon instructing judges to ”avoid criminal punishments in cases of doubt”), and thereby requiring heightened procedures, a beyond a reasonable doubt standard for criminal convictions. For further studies of the doubt canon, together with the heightened procedures, standards of proof, and interpretive norms requiring lenity in Islamic criminal law, see Intisar Rabb, Doubt in Islamic Law (Cambridge University Press 2015).

This fatwa states that the Islam Jama'ah sect commenced in Indonesia in the 1970s. As its teachings were misled and misleading, and led to disquiet among Indonesian society, its interpretation of Islam was prohibited by the government in 1971. Islam Jama'ah, however, continued to operate under different names, which continued to change until 1977-78. The philosophy of Islam Jama'ah was that there were 72 categories of Muslims who were not part of Islam Jama'ah and would, therefore, be directed to hell.

The sect believed it had to appoint a Leader of Believers (Amirul Mukminin) as its central leadership; a leader who must be obeyed. Adherents had to pledge allegiance to this Leader in order to be guaranteed passage to heaven, and the only rightful and permissible Islamic teachings came from ther Leader. Adherents of the sect also had to cut off ties with persons from these other categories, even if those people were their parents; they were not allowed to pray behind people who were not adherents of Islam Jama'ah; they were not allowed to wear clothing for prayers that had been touched by people who were not adherents unless it had been cleansed; husbands even had to endeavour to make their wives join the sect, and if their wives refused, they would have to divorce them. A legitimate marriage was one officiated by the sect's leader, and for a sermon to be legitimate it would have to be conducted in Arabic.

This fatwa states that Islam Jama'ah, Darul Hadits (or whatever other pseudonym the sect may have adopted), is contrary to the teachings of Islam, and that its dissemination is designed to destablise the state. It implores Muslims to avoid its teachings and to return to the pure teachings of Islam with the intent and desire to similarly save those who have already chosen Islam as their religion from the wrath of Allah. It also implores people to report to their local public prosecutor any evidence of activities conducted by Islam Jama'ah.

(Translation by Seyed Bahman Khodadadi)

Islamic Republic of Iran
Judiciary
Supreme Court of the Country
General Administration of Uniformity of Judicial Decisions and Publication of Deliberations and Opinions of the General Board

Subject: Decision of the Unity of Procedure of the General Board of the Supreme Court
Opinion Number: 835

With the enactment of the Islamic Penal Law (1375) and the subsequent dissolution of public and revolutionary courts from [Iran's] judicial system, the responsibility for conducting preliminary investigations was assigned to the courts. Consequently, the reference to the "Prosecutor's Office" in Article 650 of the aforementioned law concerning perjury has become obsolete.

Following the re-establishment of the Prosecutor's Offices, Article 322 of the Criminal Procedure Law, approved in 1392, along with Article 209 of the same law, explicitly addresses the punishment for perjury, establishing a legal obligation for investigators regarding witness testimony. This provision emphasizes the necessity of enforcing penalties for violations committed by witnesses, thereby underscoring the duty of investigators to interpret the law with the intent of uncovering the legislative purpose.

Accordingly, the punishment prescribed for perjury occurring during the preliminary investigation phase, prior to the involvement of the Prosecutor's Office, remains subject to Article 650 of the Islamic Penal Code (Penalties). Therefore, the decision rendered by the 13th Branch of the Alborz Court of Appeal, which aligns with this opinion, is recognized as correct and lawful by the majority of votes. This decision is binding for the branches of the Supreme Court, as well as all other judicial and non-judicial authorities, pursuant to Article 471 of the Criminal Procedure Law, approved in 1392, along with subsequent amendments and additions in similar cases.

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.

The plaintiffs, Sehatno Samiadoen and Tutik Ani Rahmawati, represented, Moses Antonius (complainant), who had filed a complaint with the Kalimantan Consumer Protection Group (Yayasan Lembaga Perlindungan Konsumen Kalimantan) on 30 May 2013, against the defendant's (PT Bank BNI Syariah) Banjarmasin branch. The complainant had entered into a shari’a-style home loan (Murabahah) with the defendant’s Banjarmasin branch for the purchase of a 150m² property on 18 September 2012. The term of the loan was 120 months (10 years), with monthly repayments of IDR 8,638,583, and an initial down-payment of IDR 147.5 million. The complainant also provided the defendant with payment for the first two months (IDR 17,277,166) in a show of good faith. The complainant and defendant also entered into a power of attorney agreement on 28 May 2012, pursuant to which the complainant vested in the defendant the authority to sell, transfer and release all rights over the property to any person, including to the defendant itself.

The complainant then experienced financial hardship and went into arrears. The defendant sent to the complainant three separate written warnings in regards to his default. The plaintiffs, however, told the court that the agreement contravened shari’a principles, as contained in Law No. 21 of 2008 on Shari’a Banking, as well as standard clausal requirements, as regulated in Law No. 8 of 1999 on Consumer Protection. Moreover, that as the complainant had only recently become a Muslim (muallaf), he did not properly understand Islamic shari’a, nor did he properly understand the content of the agreement, or the fact that he could not novate its terms. Consequently, the complainant felt aggrieved by the inclusion of standard clauses, which he believed contravened art 18(1) of Law No. 8 of 1999 on Consumer Protection. Pursuant to art 18(3) of Law No. 8 of 1999, the plaintiffs argued for the agreement to be rendered null and void, and sought to invoke art 62 of Law No. 8 of 1999, which prescribes a penalty of up to five years imprisonment or a fine of up to IDR 2 billion. The plaintiffs also sought to rely on the principle of presumption of liability, thereby compelling the defendant to prove its innocence, as it claimed was supported by art 23 of Law No. 8 of 1999.

The plaintiffs requested that the court grant an interlocutory order precluding the defendant from dealing adversely with the complainant’s property. They also requested that the court declare the defendant’s conduct illegal by rendering the three agreements the complainant had with the defendant null and void.

The defendant lodged an objection in regards to the plaintiffs’ choice of forum, citing art 45(1) of Law No. 8 of 1999, which requires an aggrieved party to lodge an application with either an institution assigned to resolve consumer-related disputes, or a civil court. The defendant also cited art 25(2) of Law No. 48 of 2009, which states that civil courts are authorised to adjudicate civil matters, as further proof that a civil court was the appropriate forum to hear the matter. The defendant further argued that the plaintiffs had erred in submitting their application to the court because, per arts 18 and 19 of their Murabahah agreement, the complainant and defendant had agreed to resolve any disputes in the Registrar’s office of the Banjarmasin Religious Court. The defendant also submitted that the special power of attorney, pursuant to which the plaintiffs were acting on the complainant’s behalf, was invalid due to formulaic irregularities.

In addition, the defendant sought to impugn the fact that the plaintiffs’ statement of claim referred to the complainant as if he were the plaintiff. Moreover, it argued that the plaintiffs’ assertion that the Murabahah agreement contravened shari’a principles, as contained in Law No. 21 of 2008 on Shari’a Banking, as well as clausal standards, per Law No. 8 of 1999 on Consumer Protection, was illogical and lacked legal basis. The defendant also criticised the plaintiffs for seeking to bring a civil action, pursuant to a civil statute (Law No. 8 of 1999), to a religious court.

The court found that, pursuant to Constitutional Court Decision No. 93 of 2012, the elucidation of art 55(2), which prescribed a civil forum as a suitable venue for shari’a banking dispute resolution, was invalid. Moreover, that a 'civil judicature' (Peradilan Umum), per art 45(1) of Law No. 8 of 1999 on Consumer Protection, was to be read and interpreted as a religious court (Pengadilan Agama). Accordingly, the court found that religious courts had absolute jurisdiction over this matter. Crucially, however, the court found that the parties had clearly specified the Banjarmasin Religious Court as the appropriate resolution forum, precluding it from handing down a judgment.

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.

The first defendant (Neima Mohamed, herein Neima), as the plaintiff in the court of first instance, had submitted that:

1. On 4 April 2004, she and the plaintiff (Mostafa Mohamed, herein Mostafa) were married;
2. On 28 February 2005, the parties had executed a pre-nuptial financial agreement that would regulate their financial affairs during and after their marriage;
3. The agreement stated that Mostafa should pay to Neima $50,000.00 if he initiated separation or divorce proceedings against her; and
4. On 11 September 2008, Mostafa Islamically divorced Neima.

Mostafa denied marrying Neima, did not admit points 2 and 3, and denied Islamically divorcing her. Moreover, Mostafa submitted that any separation of the parties had been initiated by Neima.

Before the court of first instance, Mostafa denied having been married to Neima under Islamic law. Her Honour Magistrate Trad did not answer that question, but rather found that the parties had been in a 'domestic relationship'. Regardless, the parties could not agree who initiated the separation and on which date the separation occurred. Mostafa claimed that Neima had initiated the separation on 11 September 2008 by taking his key to their Rockdale unit, while Neima claimed that Mostafa, on 11 April 2007, had asked her to leave their home, and alternatively, on 11 September 2008, had Islamically divorced her.

On the facts, Magistrate Trad found that Mostafa had initiated the divorce on 11 April 2007, further evidenced by him sending his daughter to tell Neima to leave by a certain date, with directions as to the division of their property. Therefore, her Honour found that sufficient evidence existed to activate cl 11 of the parties' agreement, compelling Mostafa to pay to Neima the agreed-upon sum of $50,000.00 (Moackar Sadak or dowry).

On appeal, Harrison AsJ found that Mostafa could appeal the initial decision pursuant to s 69 of the Supreme Court Act 1970, which granted the Court jurisdiction to quash the decision of a lower court if based on an error of law. Mostafa sought to dispute the findings of Magistrate Trad in their entirety on the following grounds:

1. that her Honour had made errors of fact and law;
2. that the decision suffered from jurisdictional error;
3. that her Honour had failed to acknowledge that the agreement had not been executed in accordance with the law;
4. that her Honour had failed to find that the agreement was unenforceable because it conflicted with public policy; and
5. that her Honour had erred by failing to find that the separation, for the purposes of the agreement, did not have to accord with shari'a law.

With regards to appeal ground 4, Mostafa submitted that her Honour had failed to recognise that the agreement was one of servitude in that it compelled Mostafa to remain in a relationship with Neima, lest he pay her $50,000.00. Moreover, it was contrary to public policy for her Honour to determine which party had left the relationship, and cl 11 was void for illegality as it was a penalty clause. The Court found the precedent cited in support of its submission by Mostafa's counsel to be somewhat irrelevant. It found the precedent cited by Neima's counsel, which stated that the court would, where possible, hold parties seeking separation or divorce to their agreement, relevant. The Court also acknowledged the issue of the payment of Moackar Sadak, noting that the lack of any precedent regarding such payment in Australia may necessitate seeing how other common law countries have approached such agreements. The Court also provided a brief discussion on mahr, based on Ann Black and Kerrie Sadiq's, 'Good and Bad Sharia: Australia's Mixed Response to Islamic Law' (2011) 17 UNSW Law Journal 82, noting that mahr appeared to be what the parties meant by Moackar Sadak. The Court found that cases dealing with mahr from the United States, Canada and the United Kingdom all found such agreements enforceable, provided they could not be invalidated for other reasons. Counsel for Neima submitted that, while some customs might be contrary to public policy, what is of utmost importance in enforcing such an agreement is that the parties to the agreement knowingly and voluntarily adhered to those customs.

Harrison AsJ found that, in enforcing such agreements, courts of common law countries have applied common law or the relevant legislation (if any), rather than sharīʿa law. Moreover, that none of these courts found that agreements such as that made by the parties in this instance contradict public policy. Harrison AsJ also dismissed Mostafa's argument that it was not for the Court to decide who left the relationship, stating that '[c]ourts are often called upon, especially in family matters, to determine sensitive factual matters such as when a relationship has ended, or whether it was indeed a de facto relationship...'.

With regards to Mostafa's submission that cl 11 was a penalty clause, Harrison AsJ disagreed. Her Honour found that the Property (Relationships) Act and the Family Law Act allowed parties to enter into financial agreements. Moreover, that cl 11 formed part of the 'greater bargain' between the parties.

Harrison AsJ also dismissed Mostafa's submissions that the court of first instance did not have jurisdiction to adjudicate the validity of the agreement, or to determine whether or not the parties' separation had to accord with sharīʿa law. The Court found that as the agreement had neither specified an appropriate dispute resolution forum or jurisdiction (common law or sharīʿa law), nothing precluded the court of first instance from adjudicating the case. Secondly, that Magistrate Trad had not considered the meaning of 'divorce' under sharīʿa law, instead determining when the separation had occurred on the facts. The Court also noted that Mostafa had not relied on any expert evidence relating to sharīʿa law, and that Magistrate Trad was in no way required to apply sharīʿa law to interpret the parties' agreement.

Mostafa's counsel conceded the inapplicability of the Property (Relationships) Act but argued that Magistrate Trad had applied it regardless. The Court found it irrelevant whether or not the agreement satisfied the requirements of the Property (Relationships) Act, stating that Magistrate Trad had correctly applied the laws of contract to the agreement.

Mostafa also submitted that as the parties had not been married under Australian law, the agreement was unenforceable because the terms 'separation' and 'divorce', per cl 11 of the agreement, are inapplicable to de facto relationships. The Court agreed to consider whether or not marriage under Australian law was a condition precedent to the enforceability of the agreement, but concurred with Neima's counsel that, among other submissions, the agreement did not specify marriage under Australian law as a condition precedent to the enforceability of the agreement, or to cl 11 specifically. Moreover, that the word 'separation' is distinct from 'divorce' and is applicable to the cessation of a de facto relationship. The Court also noted that the agreement was to secure the parties' individual assets, as both parties had been previously married and had significant assets individually.

With regards to which party initiated the separation and on what date, Harrsion AsJ noted Magistrate Trad's deliberations and that her Honour was unable to rely on any 'so-called independent witnesses' because all the evidence provided by witnesses had been informed by what the parties had told them. Magistrate Trad had, therefore, relied on Neima's evidence that, on 11 April 2007, the parties had argued and Mostafa had waved a knife in front of Neima. That evening Mostafa's daughter, accompanied by a police officer, had come to collect some of Mostafa's belongings and to give her a list separating the parties' belongings. On 13 April 2007, Neima moved out of the parties' unit. While the parties had attempted to reconcile, in September 2008, following another argument, Mostafa said the words 'you are divorced' to Neima. Mostafa denied this, stating that Neima had initiated the separation in September 2008 by asking him to leave their Lakemba unit. Mostafa also denied saying the words 'I divorce you'.

All other submissions made by Mostafa on appeal were dismissed on the grounds that they were not covered in Mostafa's submissions. Harrison AsJ also found that Magistrate Trad had made her findings pursuant to ample evidence. Harrison AsJ noted that this appeal raised religious and cultural issues not previously dealt with by the Australian courts, and that the question of how such agreements should be dealt with would be referred to the Australian Law Reform Commission and NSW Law Reform Commission for their consideration.

This document is a beyānnāme, or declaration, sent by the Ottoman reʾīsül-kuttāb (chief scribe) to Britain's ambassador to the Ottoman Empire, justifying the Ottoman declaration of war on Russia by explaining Russia's violation of treaty obligations. The document gives insight into eighteenth-century Ottoman attitudes to international law and its relationship with Islamic law. Its use of the phrase naḳż-ı ʿahd (breaking the treaty), which has its origins in a specifically Qurʾānic context illustrates one way in which war was legitimized within the Ottoman Empire. Other phrases used in the beyānnāme demonstrate how Ottoman legal plurality functioned within a martial context.