Defining Shariʿa the Politics of Islamic Judicial Review by Shoaib

Defining Shariʿa The Politics of Islamic Judicial Review By Shoaib A. Ghias A dissertation submitted in partial satisfaction of the Requirements for the degree of Doctor of Philosophy in Jurisprudence and Social Policy in the Graduate Division of the University of California, Berkeley Committee in Charge: Professor Malcolm M. Feeley, Chair Professor Martin M. Shapiro Professor Asad Q. Ahmed Summer 2015 Defining Shariʿa The Politics of Islamic Judicial Review © 2015 By Shoaib A. Ghias Abstract Defining Shariʿa: The Politics of Islamic Judicial Review by Shoaib A. Ghias Doctor of Philosophy in Jurisprudence and Social Policy University of California, Berkeley Professor Malcolm M. Feeley, Chair Since the Islamic resurgence of the 1970s, many Muslim postcolonial countries have established and empowered constitutional courts to declare laws conflicting with shariʿa as unconstitutional. The central question explored in this dissertation is whether and to what extent constitutional doctrine developed in shariʿa review is contingent on the ruling regime or represents lasting trends in interpretations of shariʿa. Using the case of Pakistan, this dissertation contends that the long-term discursive trends in shariʿa are determined in the religio-political space and only reflected in state law through the interaction of shariʿa politics, regime politics, and judicial politics. The research is based on materials gathered during fieldwork in Pakistan and datasets of Federal Shariat Court and Supreme Court cases and judges. In particular, the dissertation offers a political-institutional framework to study shariʿa review in a British postcolonial court system through exploring the role of professional and scholar judges, the discretion of the chief justice, the system of judicial appointments and tenure, and the political structure of appeal that combine to make courts agents of the political regime. Using this framework, the dissertation undertakes historical-interpretive case studies involving two puzzles. First, why the Federal Shariat Court declared the (largely symbolic) punishment of stoning for unlawful sex as un- Islamic in 1981, and why the Court reversed its ruling upon review in 1982. Second, why the Federal Shariat Court declared interest in banking, finance, and fiscal laws as un- Islamic in 1991, and why the Supreme Court upheld the ruling in 1999 but then overturned its ruling and remanded the case back to the Federal Shariat Court in 2002. The project shows how competing approaches to shariʿa interact with the evolving judicial politics and regime politics in authoritarian and democratic periods. While the institutional structure of constitutional courts gives the ruling regime considerable control over the direction of shariʿa review, ruling regimes often depend on religio-political forces for legitimacy. When the regime draws upon conservative religio- political movements, representatives of such movements are appointed to courts and allowed to assert traditional doctrines of shariʿa. But when the regime draws its legitimacy from a broader group of religio-political and intellectual forces, a more 1 diverse set of judges is appointed and enabled to rethink the tradition. The study questions approaches that consider shariʿa review in post-colonial states either as a liberal or as a conservative phenomenon. In contrast, the project shows how courts are agents of the political regime and judicial outcomes are products of authoritarian and democratic political processes. The dissertation also invites scholars of shariʿa review in Arab constitutional courts to study courts as political institutions and judges as political actors. 2 To Amria, Fatima, and Nour i Acknowledgments I would like to express my deepest gratitude to my dissertation committee members, Malcolm Feeley, Martin Shapiro, and Asad Ahmed, who meticulously guided this work to completion. In particular, Malcolm gave me the intellectual freedom to explore my theoretical and methodological interests in the Jurisprudence and Social Policy Program at the University of California, Berkeley, and also encouraged me to deepen my understanding of Islamic law and society through the exchange program in the Committee for the Study of Religion at Harvard University. The idea for this project was born in a course on Arab constitutional courts with Baber Johansen, whose erudition in the premodern legal tradition as well as contemporary Islamic law has been a source of inspiration in this work. I would also like to thank Hatem Bazian and Gordon Silverstein who nurtured this project in its early stages of development. During the course of my graduate work, I had the privilege to study with a range of outstanding scholars, including Christopher Kutz, Kristin Luker, Catherine Albiston, Bob Kagan, Wendy Brown, Saba Mahmood, and Emad Shahin, among others, who have left countless imprints on this work. While doing research, I incurred countless debts from Pakistani lawyers, judges, ʿulama, and librarians, including Abid Hassan Minto, Asim Mansoor Khan, Syed Imad-ud-Din Asad, Justice S. A. Rabbani, Justice Mahmood Ahmad Ghazi, Mawlana Samiullah, Mufti Misbahullah, Waqar Ahmed Zubairi, Naeem Siddiqui, and M. Akram Zia, among others. I am also thankful to Abrar Hussain and Arshad Ahmed for introducing me to the intricacies of Islamic finance from a transactional lawyer’s perspective. I am deeply grateful to Asifa Quraishi-Landes, Haider Ala Hamoudi, Lawrence Rosen, and Amria Ahmed whose thoughtful and generous comments on the manuscript greatly refined this work. I am also thankful to Intisar Rabb, Zubair Abbasi, Nicholas Robinson, Jonathan Brown, and Syed Akbar Hyder for discussions on chapters of this dissertation. Over the course of my writing, I presented portions of this dissertation in panels at Harvard University, Columbia University, University of Texas, Austin, University of California, Berkeley, University of California, Hastings, Law and Society Association meetings, American Political Science Association meetings, and American Society of Comparative Law’s Younger Comparativists Committee meetings. I am thankful to the discussants and participants at these events for comments and feedback. My years in Berkeley were gifted with the generous hospitality, friendship and erudition of Mamade Kadreebux and Judy Olson, and the countless friends I met at their home on Friday evenings and elsewhere, including Dawn Bravo, Jamʿan al-Zahrani, Mohamed Muqtar, Ahmed Zildžić, Munir Jiwa, Khalid Kadir, and Murtaza Zaidi. My time in Cambridge was endowed with the intellectual company and friendship of Martin Nguyen, Carl Sharif El-Tobgui, Aria Nakissa, Havva Guney-Ruebenacker, and Mariam Chughtai. ii I wish to express my gratitude to my parents, Aleem Ghias and Farhat Fatima, who nurtured my curiosity and patiently waited for this moment. I also want to thank my wife and friend, Amria Ahmed, whose love, support, and kindness has enabled me reach this point. But perhaps most importantly, I am indebted to Brad Roth for guiding and supporting me to and through this exhilarating academic and intellectual journey. The research and writing for this dissertation was funded by the Selznick Fellowship from the Jurisprudence and Social Policy Program, the Regent’s Intern Fellowship from the Graduate Division, and the Sultan Fellowship and the Mellon Grant from the Center for Middle Eastern Studies. iii Table of Contents Acknowledgments ............................................................................................................. ii List of Tables ................................................................................................................... vii List of Figures ................................................................................................................. viii Transliteration Convention ............................................................................................. ix Glossary of Untranslated Terms...................................................................................... x Glossary of Translated Terms ........................................................................................ xi Introduction ....................................................................................................................... 1 1. Islamic Judicial Review ............................................................................................1 2. Courts, Politics, and Islam ........................................................................................6 3. Sources and Methods ..............................................................................................10 3.1 Court Structure and Procedure .................................................................. 10 3.2 Quantitative Datasets ................................................................................ 10 3.3 Historical-Interpretive Case Studies ......................................................... 12 4. Conclusion ..............................................................................................................17 Chapter 1. Sovereignty of God: Islam in Pakistan ...................................................... 18 1. Introduction .............................................................................................................18 2. Early Developments in Islam ..................................................................................18 3. Conceptualizing Shariʿa ..........................................................................................20

Load more