Understanding Islamic Law (Shari’a)

Raj Bhala, Understanding Islamic Law (Shari’a) (2011)

One of the benefits of working in a library is that you can see the books that have come in before they are put on the shelf. One of the newest books still in processing in our technical services department is Understanding Islamic Law (Shari’a) by Raj Bhala, a law professor at the University of Kansas. I can’t offer a true review of it because I’ve only thumbed through it and haven’t read it in full, but here are my thoughts (n.b. I don’t know how to reproduce diacritical marks in HTML, so a lot of transliterated Arabic terms will likely appear imperfectly).

First of all, it’s thick—well over 1400 pages. It’s also inexpensive (for a law book)—only $43 on LexisNexis’ online bookstore. This is probably because the book has been published as part of LexisNexis’ “Understanding” series which is made up of “concise yet comprehensive” subject matter treatises for use by law students. The book is intended not only as a treatise but a textbook for classes on Islamic law or comparative law. Students in those classes who use this book will be grateful that it hasn’t been priced as a law school textbook.

The online listing for this book doesn’t reproduce its table of contents, so I’ve given it at the very end of this post. Almost the first third of the book is taken up with the history of Islam. This was a surprise to me at first, but it is probably necessary; law students taking a class on Islamic law may well be unfamiliar with the history and development of Islam and the basic tenets of its religious practice.

The novel feature of this book is that it is not a simple presentation of Islamic law, but that it is written with a comparative perspective. The author references discussions of Islamic law with perspectives from American law and the teachings of the Catholic Church. The use of Western sources as comparison will doubtless interest readers and help them better appreciate the pluses and minuses of both Islamic and American/Western laws. However, this leads to some odd notes in the text. The author clearly discloses to the reader that he is not a Muslim but a Catholic. Along with his lack of formal training in Islamic law, this cause one to wonder to what extent he truly comprehends Islamic law. It may have been worthwhile to have coauthored this book with someone formally trained in Islamic law.

Moreover, the author’s religious faith seems to me to have intruded inappropriately into the text. I was first struck by this when he discussed Islamic teaching on euthanasia. After giving a précis of Catholic condemnation of this, he ends with an a description of the last days of Pope John Paul, describing him as a moral exemplar of this teaching. This comes uncomfortably close to using a legal treatise for religious witness. Another example is in the book’s section on “Family Law and Children”. After presenting Islamic teaching on contraception, his presentation of Catholic teaching smacks more of apologia than explication.

The book should be longer in some areas. Almost a third of it is taken up with commercial law. This may reflect an intended audience of students and lawyers focused on international trade, but it leads to short coverage in other areas. The chapter on wills and trusts weirdly includes a section on euthanasia. Was this supposed to be part of an intended chapter on biomedical issues or living wills? The subject of torts is relegated to one chapter in the five-chapter section on “Criminal Law”. Not only will this arrangement be confusing to American lawyers and law students, it makes one wonder if Islamic law really has such a shallow treatment of non-criminal wrongs.

The index is 13 pages long but is inadequate. For a treatise, the number of entries and cross-references are both lacking. For instance, I tried to find the index heading for “Adoption”, but it doesn’t exist. The index heading “Family Law” has as its entry “Marriage and divorce . . . 33.01[D], [E], [F]”. Those entries in the text deal with the importance of family law in Islamic law, the categories of people in Islamic family law, and incongruities in Islamic family law. The index heading “Children” does not exist, but I did see the heading “Child-Rearing” which has the cross-reference “(See MARRIAGE AND DIVORCE)”. When I went to the index heading “Marriage and Divorce” there was an entry for “Adoption” leading me to section 38.04 of the text, which does indeed deal with adoption (§ 38.04 Foundling (Lakit) and Adoption).

Despite these criticisms, I was glad to see this book and enjoyed my look through it. As the author discusses in his Preface, it is surprising that a book covering the breadth of Islamic law for American lawyers has not appeared before now. I look forward to reading through the book (or large parts of it), and I am curious to see how the author improves and expands upon it in future editions. In addition to its use in law school classes, this book would be a superb acquisition for law libraries, academic libraries, and large public libraries. I am  considering purchasing a copy for myself.

Summary Table of Contents

Part One: Origins

  • Chapter 1: Muhammad (pbuh) Before Prophethood (570/571–610 A.D.)
  • Chapter 2: Muhammad (pbuh) as Prophet (610–632 A.D.)
  • Chapter 3: Holy Qur’an (610–650 A.D.): Revelation, Compilation, and Tenets

Part Two: Golden Age

  • Chapter 4: Caliphs of Mecca and Medina (Rashidun) (632–661 A.D.)
  • Chapter 5: Umayyad Caliphate (661–750 A.D.)
  • Chapter 6: Abbasid Caliphate (750–1258 A.D.)
  • Chapter 7: Crusades (1095–1272 A.D.)

Part Three: Schism

  • Chapter 8: Sunni—Shi’ite Split (632–680 A.D.)
  • Chapter 9: Shi’ism and its Imams (680–940 A.D.)

Part Four: Last Great Era?

  • Chapter 10: Ottoman Turkish Empire (11th Century A.D.–1923)
  • Chapter 11: Moghul Indian Empire (1504–1857 A.D.)

Part Five: Theory—Four Classical Sources of Islamic Law (Usul Al-Fiqh)

  • Chapter 12: Fundamental Sources: Holy Qur’an and Sunnah
  • Chapter 13: Secondary Sources: Ijma’ and Qiyas
  • Chapter 14: Controversial Additional Sources

Part Six: Practice

  • Chapter 15: Five Pillars of Islam
  • Chapter 16: Four Sunnite Schools

Part Seven: Commercial Law, Capitalism, and Global Trade

  • Chapter 17: Islam and Capitalist Economic Growth
  • Chapter 18: Property Law: Ownership and Property
  • Chapter 19: Property Law: Public Property, Private Property, and Possession
  • Chapter 20: Property Law: Protecting and Restricting Private Ownership
  • Chapter 21: Contract Law: General Principles and Contract Formation
  • Chapter 22: Contract Law: Types of Contracts
  • Chapter 23: Contract Law: Performance, Terms, and Remedies
  • Chapter 24: Business Associations Law: Traditional Types of Partnership
  • Chapter 25: Business Association Law: Modern Partnerships and Agricultural Ventures

Part Eight: Banking Law, Capitalism, and Global Finance

  • Chapter 26: Banking Law: Risk (Gharar)
  • Chapter 27: Banking Law: Interest (Riba)
  • Chapter 28: Banking Law: Legal Devices (Hiyal) and Prohibition on Interest (Riba)
  • Chapter 29: Finance (Tamweel): Islamic Bonds (Sukuk) and Securitization
  • Chapter 30: Finance (Tamweel): Types and Risks of Islamic Bonds (Sukuk)
  • Chapter 31: Finance (Tamweel): Insurance (Takaful) and Transfers (Hawalah)
  • Chapter 32: Finance (Tamweel): Innovative Instruments and Markets

Part Nine: Family Law and Women

  • Chapter 33: Marriage and Divorce
  • Chapter 34: Polygamy and Mixed Marriages
  • Chapter 35: Rights of Wife
  • Chapter 36: Women and Clothes
  • Chapter 37: Women and Work

Part Ten: Family Law and Children

  • Chapter 38: Rearing Children
  • Chapter 39: Contraception
  • Chapter 40: Abortion

Part Eleven: Inheritance Law

  • Chapter 41: Wills (Wasaya), Charitable Trusts (Waqfs), and Euthanasia
  • Chapter 42: Law of Succession

Part Twelve: Criminal Law (‘Uqubat)

  • Chapter 43: Key Concepts
  • Chapter 44: Claims of God (Haqq Allah): Sex Crimes
  • Chapter 45: Claims of God (Haqq Allah): Drinking and Stealing
  • Chapter 46: Claims of God (Haqq Allah): Converting and Religious Freedom
  • Chapter 47: Private Claims (Haqq Adami)

Part Thirteen: International Law

  • Chapter 48: Law of War
  • Chapter 49: Jihad (Struggle)
  • Chapter 50: Terrorism

Part Fourteen: Glossary of Arabic Terms
Index

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