Liberal Rights versus Islamic Law? The Construction of a Binary in Malaysian Politics

Why are liberal rights and Islamic law understood in binary and exclusivist terms at some moments, but not others? In this study, I trace when, why, and how an Islamic law versus liberal rights binary emerged in Malaysian political discourse and popular legal consciousness. I find that Malaysian legal institutions were hardwired to produce vexing legal questions, which competing groups of activists transformed into compelling narratives of injustice. By tracing the development of this spectacle in the courtroom and beyond, I show how the dueling binaries of liberal rights versus Islamic law, individual rights versus collective rights, and secularism versus religion were contingent on institutional design and political agency, rather than irreconcilable tensions between liberal rights and the Islamic legal tradition in some intrinsic sense. More broadly, the research contributes to our understanding of how popular legal consciousness is shaped by legal mobilization and countermobilization beyond the court of law.     

论中国法、伊斯兰法和印度法对东南亚的影响

东南亚地区是一个具有相当特殊性的法域,古老的习惯法、古代中国法、伊斯兰法、印度法在这一地区混合,其情形十分复杂、混乱。概括起来,有如下特点:中国作为东亚和东南亚文明的轴心,中国古代法对所有东南亚国家均产生了普遍、深远的影响,但越南、新加坡等国受古代中华法系的影响要大一些;马来西亚、印度尼西亚和文莱等以信仰伊斯兰教为主的国家及菲律宾南部地区则受伊斯兰法的影响较大;三是在地理位置上靠近印度的缅甸、柬埔寨、老挝和泰国则受印度法的影响较大。     

The Compatibility Dialectic: Mediating the Legitimate Coexistence of Islamic Law and State Law

Islamic Law is not now and cannot be the state law of any state, whether Muslims are the majority or minority of the population. This view does not dispute the religious authority of Islamic Law for Muslims, which exists only outside the framework of the state. Still, some principles of Islamic Law should be relevant to the public discourse, provided the argument is made in terms of what the author calls 'civic reason' and not simply by assertions of religious conviction. While the two are different types of normative systems, each based on its own sources of authority and legitimacy, there are possibilities of compatibility and mutual influence between Islamic Law and state law as complementary normative systems, without requiring either to conform to the nature and role of the other. This lecture examines the requirements, scope and dynamics of this dialectic relationship, whether Muslims are majority or minority.     

REEVALUATING WHERE WE STAND: A COMPREHENSIVE SURVEY OF AMERICA'S FAMILY JUSTICE SYSTEMS

The call for court reform remains critical in the face of the growing complexity of burgeoning family law cases nationwide. Many states have restructured their court systems using the unified family court model, resolving legal, personal, emotional, and social disputes with the aim of improving the well‐being of families and children. Other states utilize the traditional approach, resulting in cases being handled in a fragmented, time‐consuming and expensive manner. In this article, Professor Barbara A. Babb presents the results of her nationwide survey regarding how each state handles family law matters. The survey is a follow‐up to her comprehensive 1998 survey and her 2002 survey update. The results of the recent analysis reveal that a total of thirty‐eight states now have either statewide family courts, family courts in selected areas of the state, or pilot or planned family courts, representing seventy‐five percent of states. The number of states without a specialized or separate system to handle family law matters has decreased from seventeen states in 1998 to thirteen in 2006. These changes are significant when one considers the complexities involved in court reform. The need for court reform remains an urgent one, as family law cases occupy a significant percentage of court dockets across the country. Families and children deserve a court system where justice is effective and efficient and where their legal, personal, emotional, and social needs are resolved in a therapeutic and holistic manner.     

Popular legal participation in China and Japan

The purpose of this paper is to examine two contrasting styles of the mixed-court system in China and Japan and investigate the extent of their civic legal participation in both nations. In 2004, Japan passed the Quasi-Jury Act to introduce a system of popular legal participation in criminal trials, where defendants have their guilt and sentence determined by a judicial panel of both professional and lay judges. In the same year, the Standing Committee of the Chinese People’s Congress also promulgated the Resolution about the Improvement of the Lay Assessor System in 2004 (the Lay Assessor Act in 2004²) to revise the system of popular participation in law. The act was designed to correct the defects of the lay assessor system that have been sharply criticized by the Western observers for their lack of institutional effectiveness, minimizing the use of lay assessors, pointing at lay assessors’ participatory incompetence and passivity, and disapproving of insufficient funding, among others.There has been, however, little study critically examining the effectiveness of the revised system under the Lay Assessor Act in 2004 in China. In Japan, the first ever quasi-jury trial began in August 2009, but its quasi-jury system suffered from a lack of publicity and insufficient public knowledge about the system, thereby creating the wide-spread public reluctance, or even strong resistance, to participate in the system.The present research is an attempt to shed both theoretical and empirical light on the effectiveness of popular legal participation in these two powerful jurisdictions in East Asia. As both nations are working to adopt a democratic system of popular legal adjudication, this study will provide important clues to measuring the nations’ commitment, as well as the success or failure of the respective governments’ efforts, to democratize their systems of popular participation in legal decision-making.     

Adjudication of Islamic banking and finance cases in the civil courts of Malaysia

The adjudication of Islamic banking and finance (IBF) laws in Malaysia is unique given the Malaysian parallel legal systems. Although IBF is a branch of Islamic law, the civil court has the appropriate jurisdiction to decide the cases. This is due to the fact that banking falls under the items 7 and 8 of the Federal List of the Federal Constitution. The trails of decided cases showed that there are problems in resolving IBF cases in the civil courts. This paper aims to discuss the adjudication of Islamic Banking in the civil courts. The authors employed the method of legal documents analysis in analyzing the IBF cases. The analysis highlighted four obstacles in adjudicating IBF in civil courts, namely; inadequacy of existing legal framework, complications of legal documentation, competency of civil court judges and expert evidence. It also analysed the four approaches adopted by the civil courts in deciding IBF cases; the ‘parties to be bound by their agreement’, the ‘strict adherence to civil law’, the ‘justice and equitable’ and the ‘looking into the substance’.     

Are Women Getting (More) Justice? Malaysia's Sharia Courts in Ethnographic and Historical Perspective

Religious law is commonly understood as deeply conservative and unfriendly to women, even when it is reform oriented and “this‐worldly.” This essay challenges that understanding. It does so by engaging the practice and lived entailments of Islamic family law and gender pluralism in Malaysia, based on ethnographic fieldwork conducted since the late 1970s. My research reveals that sharia courts are more timely and flexible in responding to women's claims than in decades past, and that these courts are more inclined to punish husbands who transgress sharia family law bearing on women. In addition, women nowadays have far more access to resources for negotiating marriage, its dissolution, and the aftermath. This is not to say that women and men experience marriage, divorce, or the sharia juridical field as social equals; they do not. But this situation is changing in ways that benefit women as long as they embrace increasingly salient and restrictive codes of obedience and heteronormativity. More broadly, the essay problematizes tensions and oppositions between Islamic law and women's rights that are the subject of considerable scholarly debate and contributes to our understanding of the complex entanglements of religion and law.     

SOCIAL JUSTICE AND FAMILY COURT REFORM

Creating a unified family court, or any type of family court reform, may have only a minimal impact if it simply changes the structure of how judges do business rather than addresses the structure of the child welfare system itself. The authors argue that family court reform must place social justice at its center. First, they discuss profound flaws in the child welfare system that make poor and minority families especially vulnerable to coercive state intervention. Second, they describe two approaches to child welfare cases–family systems theory and therapeutic justice–that can help to guide reform efforts directed at addressing these structural flaws. Finally, they suggest ways in which family law scholarship can assist in creating a social justice agenda for family court reform.     

The emergence of the Islamic trust

The Islamic trust, governed by both the laws of the jurisdictionunder which it is written and by Shari'ah law, has become apopular financial and devolution planning vehicle for assetsheld by Muslims. This article examines how these trusts havedeveloped.     

The Pursuit of the Perak Regalia: Islam, Law, and the Politics of Authority in the Colonial State

Islamic law changed radically in the last century and a half. It was codified and limited to the domain of personal and family law in almost all majority and minority Muslim states. The argument of this article is that this remarkable change in Islamic law began in the colonial state. Islamic law, as it functions within postcolonial Muslim states, is a product of negotiations between colonial and local elites over law, religion, culture, ethnicity, and the identity of the Muslim subject. In the case of colonial Malaya, this resulted in a codified, institutionalized legal system within a colonial state, which was critical in constructing Malay ethnic and religious identities and interpretations of Islam that prevail today.     

Islamic Law in Action: A Historical Discussion

This review essay engages Kristen Stilt's recent book, Islamic Law in Action: Authority, Discretion, and Everyday Experiences in Mamluk Egypt (2011), in a fashion that highlights its contributions to the study of Islamic law. In particular, it underlines the methodological arguments made in the book that might help us think about Islamic legal practice in sophisticated and historically grounded ways. As elaborated in the article, these arguments have important implications for modern as well historical settings. Specifically, Stilt's discussion of “Islamic law in action” reveals the inherent flexibility of Islamic legal practice to accommodate political change. The article also discusses how further research on the topic could benefit from specific approaches and orientations.     

MEDIATION AND THE PROCESS OF FAMILY LAW REFORM

The family law system needs fixing. The real question is how to go about fixing it. The concept of mediation and its process should be vital in the rethinking and restructuring of the system. This article discusses how mediation can be used in policy-making to get all the stakeholders in the family law system to creatively and non-judgmentally work toward reform. The author contends that increased legal access and speedy low-cost dispute resolution should be at the top of the reform agenda. Courts and professional offices are valued for their consumer-friendliness, stressing nonadversarial settings and cleint education. Unbundling is urged to be not only accepted but also promoted as a practice to meet the legal needs of families. The article concludes with the argument that effective reform should incorporate the principles of mediation, and the reform process should take advantage of models of consumer friendliness from both the public and private sectors .     

民事诉讼受理制度改造的理性视角

民事诉讼受理是纠纷进入司法程序的初始必经阶段,对于当事人诉讼权利保障意义重大.随着经济体制改革的深化和经济的快速发展,许多深层次的矛盾不断出现,民众的诉求越来越多,而我国的法律体系和社会保障机制还不够完善,人民法院作为解决矛盾纠纷的专门机构,应当担负起为构建和谐社会提供有力司法保障的历史任务,最大程度地吸纳化解矛盾纠纷.然而,现行民事诉讼受理制度所规定的起诉条件,既包括实体内容又包括程序要求,确定性有余而灵活性、包容性不足,虽然能够一定程度地起到过滤纠纷,节约司法资源的作用,但其对于新型权利诉求进入诉讼渠道的阻隔作用日益显现,甚至为个别地方限制当事人正当诉权的行使提供了借口.在改造方案的设计方面,应当理性审视现有司法资源和司法环境,更宜采渐进式而非跃进式的方案,避免由于准备不足而导致司法不堪重负,制约正常功能的发挥.     

A Comparative Study of the Principles Governing Criminal Responsibility in the Major Legal Systems of the World (England, United States, Germany, France, Denmark, Russia, China, and Islamic legal tradition)

The purpose of this survey is to examine the underlying principles of criminal responsibility in selected common law and continental law jurisdictions as well as in the Islamic legal tradition through the lens of comparative law (legal jurisdictions of England, Canada, United States, Germany, France, Denmark, Russia and China are subject to the legal analysis). By conducting a comprehensive legal analysis of the concept of crime in selected legal jurisdictions, this study reveals the common legal features pertinent to the concept of crime that are shared by the major legal systems of the world. Particular attention has been given to the thorny and much debated area of the subjective element of a crime and the standards employed to demarcate between intentional and negligent conduct. Turning to comparative law as an invaluable tool of legal analysis, the study demonstrates that there are more common characteristics than originally anticipated regarding the concept of crime, as well as the basis of the principle of culpability in such major legal systems.     

Psychology and legal change

From its inception, research in “law and psychology” has had an explicitly applied focus. In large part, psychologists have studied legal issues and participated as experts in the legal process in order to improve law and enhance the quality of its justice. This article examines whether and how this can be done. A taxonomy of relationships between the two disciplines is presented which characterizes law and psychology research in terms of its potential for legal change. The use of psychology of effect legal change requires a bringing together of both psychological and legal paradigms. But important differences exist between the styles and methods of reasoning, proff, and justfication in psychology and law. The implications of those differences for the use of psychological data in legal change efforts are developed, as are other aspects of “legalism” that may hinder or impede the effectiveness of psychologically oriented law reform. Finally, limitations of a “factual jurisprudence” that derived from the nature of psychological data are examined.     

Crossing Boundaries: Nineteenth-Century Domestic Relations law and the Merger of Family and legal History

This essay argues for the need to study the legal history of the American family. It does so by combining a critique of secondary literature in family and legal history with examples from nineteenth-century domestic relations law. These examples, drawn from family law doctrines on seduction under the cover of a marriage promise, runaway marriages, and bastardy, are used to indicate the benefits of adding a sociocultural dimension to legal history and legal and institutional dimensions to family history. Three main themes in the history of nineteenth-century domestic relations law are developed to make these points: the law's particular fabric of issues, its distribution of authorship, and its chronological development, These themes suggest why a full understanding of the legal history of the American family requires crossing the boundaries between legal and family history.     

Citizenship,Belonging and Attachment in the ‘War on Terror’

The ‘war on terror’ has had an enormous impact on citizens’ legal rights and legal status. Using data from interviews with British Pakistani Kashmiri Muslims, this paper explores how the change to citizens’ legal rights and legal status in the ‘war on terror’, the legal dimension of citizenship, has impacted the psychological dimension of citizenship. Through denoting legal rights, equality and status the study revealed the powerful role of the state and the police in shaping citizens’ perceptions of the legal dimension of citizenship. The paper explores how changes to participants’ perceptions of their legal status and legal rights are instrumental in shaping the psychological dimension of citizenship—participants’ sense of loyalty, belonging and attachment to their British identity and their Islamic identity.     

The Rule of Law in Fragile States: Dictatorship,Collapse, and the Politics of Religion in Post-Colonial Somalia

The fate of the rule of law in fragile states rests in religious politics. Three defining periods of Somali politics illustrate this argument. First is the authoritarian regime of Mohamed Siad Barre in Somalia (1969–1991). This dictatorship used religion to rule by law. The regime executed religious leaders for disagreeing with the government's interpretation of Islam. Second is the rise of Islamic courts in Mogadishu, Somalia's capital city (1991–2007). The Islamic courts apprehended criminals, expelled warlords, and provided spaces for Somalis to resolve disputes peacefully. Third is the breakaway of Somaliland (1991–present). Somaliland has advanced Islamic legal principles to build peace and constitutional law. Taken together, these three periods demonstrate how religious politics transform law and society.     

International Legal Rulings on Lustration Policies in Central and Eastern Europe: Rule of Law in Historical Context

The transitional justice literature highlights various trade-offs involved in the choice and implementation of lustration as a transitional justice measure in Central and Eastern Europe. This article examines how international legal body rulings on lustration laws have interpreted rule-of-law versus justice concerns. The European Court of Human Rights and the International Labour Organization have explored possible information problems, due process violations, employment discrimination issues, and bureaucratic loyalty concerns within the context of lustration. Three findings emerge from their legal rulings. First, contrary to popular notions, international legal bodies are not antilustration. The institutions are engaging with questions regarding the fair implementation, not the legality, of lustration laws. Second, the prioritizing of justice concerns during the transition efforts is highlighted as a way to lay a strong democratic foundation. Third, the organizations have emphasized the importance of placing rule of law in historical context, thereby situating post-Communist societies within other posttotalitarian regime-building narratives.