Law and Social Sciences

Participatory photography is an innovative way for researchers to understand the nuanced perspectives of vulnerable groups - but what does it look like in practice? In this information brief, we explore: what participatory photography is, why researchers might consider using this method, and how it can be applied. Using Land Core Group’s (LCG) Land and Gender Project as a case study, we reflect on some of the lessons learned and explore how this approach contributed to our key research findings on gender dynamics in rural Myanmar.

This policy brief analyses the potential gender implications of the National Land Use Policy draft, in particular how the proposed policy could affect women farmers. Drawing on international examples, it offers suggestions to promote and strengthen women’s land rights within Myanmar Law and Policy.

Women’s land rights in Burma still do not feature prominently in civil society and government discussions. Until now, public and private organizations tend to focus solely on gender or land issues, rarely working on the combination of the two. Women’s relationship to land in Burma is complex and working on this topic requires engaging with legal, sociocultural, and political dimensions in order to understand the origins of current inequalities and to develop comprehensive and effective solutions.

This brief provides a reflection on land and gender, based on a two-day workshop with civil society organizations (CSOs) from across Burma, who are actively working on this topic. This brief is directed towards donors, government, non-governmental organizations (NGOs), and other practitioners. It provides a condensed overview and reflection of the views of in-country practitioners into thematic and technical aspects of working on land and gender. This brief also provides suggestions for project design and development around land and gender moving forward.

The paper looks at the social institution of law and argues there is a dialectic in it. Parallels will be drawn between Islamic and International Law presenting Abdulkarim Soroush, Iranian philosopher who claims the Qur’an to be a product of Prophet Mohammed’s mind with all its human, contextual, historical and cultural motivations and limitations, and David Kennedy, a Harvard trained international lawyer, who suspects global governance processes to be steered by legal experts that deny the political nature of their decisions. The argument is that these two are not only comparable but show a commonality as to the way they analyse and uncover the dialectic of their respective legal bodies.

The essay at hand will discuss law and policy reforms with regard to the Indian water sector. It is set against the background of the Dublin Principles of 1992 redefining the role of the public sector in the water domain. The political opportunity that decentralisation leads to greater community control of water resources shall be subject to critical analysis throughout the work. The question here is not whether a state‐governed, privately‐governed or community‐governed water sector is ideal but rather which combination makes use of the strong features of each one in order to serve the public interest.

This essay will look at the recent trend of commercial land purchases by actors applying a purely economic logic to land, thus transforming it into a commodity for ensuring food and fuel security, or a financial asset. The legal structure of land deals is multi-layered: Different actors have different legal subjectivities and obligations. This calls thus for progressive legal pathways concerning state sovereignty and responsibility to enforce rights as demonstrated in this paper.

Energy transition policies and environmental fiscal reforms (EFR) in particular are necessary from an environmental perspective but also from a social one. In the long run, EFR help reduce fuel poverty. Included in wider tax shifts, eco-tax reforms can also contribute to employment creation and/or contribute to pension system financing during demographic transitions.
However, in the short run, eco-taxes can have strong negative impacts on low income households and on vulnerable businesses. A variety of compensation mechanisms can be used to counter such effects – and have been used successfully in many countries. Some mechanisms (like subsidies for technological change) stand out as more effective than others (like tax rebates).

Many regard the right to freedom of expression, recognized in the Qur’an as a birthright, as the most important of all civil liberties. But why is freedom of expression not an absolute right? How and under which circumstances is it restricted? Where does freedom of expression end and hate speech begin?

This discussion aims to understand how Foucault explored a theoretical understanding of relationships of power and will not focus on finding examples of power and resistance. I aim to look at mutually constitutive relationships that can be used to talk about political and social power whilst also providing a theoretical conceptualization that offers a form of logic that advances inquiry based on oppositional precepts. Understanding this theoretical conceptualization of relationships engages with a history of dialectical reasoning and adds vigour to our empirical analysis of social and political relationships. This discussion will focus first of all on the subject and its mediation of reality to elucidate constitutive and immanent relations. This mediation of reality can be used as a theoretical paradigm to understand the relationship between elements described as ‘power’ and ‘resistance’ and too understand Foucault’s conceptualization of freedom and the significance of the autonomy of the subject. We will then consider Foucault’s understanding of dialectical enquiry, alongside critical responses in order to crystallise a form of reasoning that moves away from a binary or attritional form of reasoning. Finally, we will understand this relationship via gender identity to demonstrate how the gap between the theoretical and empirical can be addressed by exploring the development of the microcosmic to the macrocosmic.

The primary objective of this thesis is to investigate the role of ijtihād in its application to Islamic law in modern Muslim-majority states by analysing its conceptualisations and the jurisprudential justification for its practices. The question of how and why ijtihād operates in legal reforms is addressed as well as what are the motivations, techniques, forms and reasoning adopted when practising it. This thesis involves examining whether ijtihād is exercised by going back to the primary sources, i.e. the Qur'an and the Sunnah or by choosing among existing juristic views in classical Islamic jurisprudence. To what extent the rules and principles of classical Islamic legal theory (uṣūl al-fiqh) are respected and followed in bringing about the reforms by means of contemporary ijtihād, is explored. The main substantive area of focus is family law due to its

Unregistered customary marriage, known Fatiha, is mostly practiced in rural parts of Morocco. This lived reality caused serious debates during legislative amendments and shaped the Family Law Reforms of 2004, henceforth Mudawwanah. It is called as Fatiha marriage as it is contracted between the families reading the first chapter of the Qur’an, namely al-Fatiha. It includes an offer and acceptance of the parties and customary exchange of presents. It is basically what the Mudawwanah considers an engagement (art 5) and requires official registration of the marriage (art 6). Moroccan lawmakers took this social and cultural reality into consideration in the creation of the legislation. Two changes of the Mudawwanah were particularly affected by consideration of it. In this regard, recognition of unregistered marriage in the existence of children or a pregnancy (art 16) and child’s affiliation to father (art 156) in cases of force majeure are allowed in the Mudawwanah under specific conditions. By adopting these articles, the Mudawwanah primarily was aimed at ensuring the protection of the interests of children, particularly taking into account the situation of children who are not protected with a marriage contract in society. It should be remarked that Fatiha marriage is considered different from any other type of unregistered marriage or secret marriages. It is because Fatiha marriage was justified by referring to Islamic jurisprudence.

The recognition of paternity in the case of unregistered marriage was justified with the doctrine of doubt or semblance (shubhah) in Islamic jurisprudence. The important point is by applying the doctrine of shubhah, lawmakers considered this marriage as defective (fāsid) rather than void (bātil). However, the members of the Royal Advisory Commission in charge of reforming the family law adopted different positions regarding recognition of unregistered Fatiha marriages. The debate mainly revolved around the means of proof of a marriage. The commission members heatedly discussed whether to return to what comprises a marriage contract in classical fiqh or to adopt legal procedure for its registration. Some of them proposed that customary marriage should be considered illegal and state law should be the conclusive reference for registration of marriage and argued the recognition of unregistered marriages as justification for continuation of the practice. It is true that the law (art 16) creates a lacuna and controversy in the Mudawwanah, in particular, in relation to practicing polygyny and minor marriage through applying recognition of marriage upon pregnancy or the birth of a child. However, it seems that a top-down prohibition of Fatiha marriage and nonregistration of such marriages would not cease this cultural practice as it is socio-economically and religiously rooted. Hence, the interim period for recognition of such marriages specified as five years in the promulgation of the code. However, as the practice still prevails the interim period was extended twice (until February 2019). It will probably be extended further in the future.

The present study seeks to explore how Fatiha marriages was justified and shaped the Mudawwanah by investigating debates of the commission members. It analyses court cases to investigate the implementation of the relevant laws and to reveal social reality and motives behind practicing Fatiha marriages.

This paper investigates the debates over, and the promulgation of, the new Moroccan laws on unregistered customary marriages and on establishing the paternity of offspring resulting from such marriages, and it analyzes how those laws have been implemented by the judiciary. The paper closely examines the relevant deliberations of the Moroccan Royal Advisory Commission, and analyzes 24 court cases involving the laws. I argue that, while monogamous registered marriage is depicted in the national legal system as the basis for establishing a modern Moroccan society, legislators regard fātiḥa marriage as a social reality that has its roots in customs and religious practices. The paper shows that judges abide by the conditions specified in law but differ in their interpretation of “force majeure” when it comes to a couple’s having not registered their marriage. The study also reveals how the laws create legal loopholes in terms of underage marriage and polygyny, which are strictly restrict in the code.

In the world history, the nineteenth century witnessed globally major economic, politic, and social changes. More importantly, their implications constitute today’s challenges particularly for modern Muslim-majority states where the tension between state, religion and society has not been settled. There is no doubt that looking at the past where the separation between sharī‘a and state started clearly to appear serves for a better understanding of today’s struggle in locating the role of sharī‘a in legal systems of modern Muslim-majority states. Many of them, i.e. the Middle Eastern and some North African states are the successors of the Ottoman Empire. The Ottomans ruled over continents for centuries thanks to their well-established governmental policy and legal system. However, they were also obliged to introduce some remarkable changes in social, political and legal spheres in the nineteenth century. The era is generally called as the process of Ottoman modernization and secularisation referring to Tanzimat Edict and following legal reforms. This study seeks to analyse the way Ottoman law has been transformed in the nineteenth century, as well as its roots, challenges and implications. To this end, the paper offers an answer to the questions as to whether secularisation of Ottoman law was evolutionary or revolutionary, why it had to go through a process of secularisation, and to what extent classical Ottoman system could serve this secularisation process. To address these inquiries, the study is divided into two principle sections: the first part evaluates the classical Ottoman legal system and its religious and non-religious characters, arguing that the Turkish state tradition with its influence on government and law making were in fact the changeable features of the Ottoman law. The second part examines the process of secularisation of law from the pre-Tanzimat period to the end of the Ottoman Empire. This part reveals that secularisation of the Ottoman law was of evolutionary character, and that reforms were introduced thereafter for practical purposes, i.e. meeting contemporary needs and necessities, and not for the sake of philosophical and political considerations. However, these attempts led to a gradual secularisation of the Ottoman law, and further culminated in a revolutionary approach in the republican era.

İslam hukukunda güncel meselelere dair hayati öneme sahip ve gelişen tıp teknolojisine bağlı olarak sürekli değişim içinde olan alanlardan biri de tıp ve sağlık ile ilgili konulardır. Bu bağlamda insan genomuna yapılan tıbbi müdahaleler ve CRISPR-Cas9 teknolojisinin bu yönde kullanımına dair bir çalışmanın yakın zamanlara kadar yapılmamış olması bu alanda üzerinde çalışılmaya değer bir boşluğun varlığına işaret eder. Ülfet Görgülü'nün İnsan Genomuna Müdahale: Etik Tartışmalar-Fıkhi Yaklaşımlar isimli eseri, sözü edilen boşluğu doldurmaya yönelik ilk çalışma olması sebebiyle oldukça önemlidir. Bu çalışmada, insan genomuna yönelik tedavi, araştırma, geliştirme ve iyileştirme amaçlı yapılan genetik müdahalelerin, bireysel ve toplumsal etkilerini 'fıkhi açıdan' ele alan söz konusu eserin incelenmesi amaçlanmaktadır.

Ilımlı (moderate) İslam özellikle son yıllarda radikal İslam’a karşı sıklıkla dillendirilen ve teşvik edilen bir söylem hatta proje haline gelmiştir. Modern müslüman-çoğunluklu devletlerin bir bakıma uluslararası alanda kendilerini konumlandırdıkları sosyo-politik düzlemi de gösteren söylemleri dini ve hukuki alandaki tavırlarını ve reformlara yaklaşımlarını da şekillendirmektedir. Bu bağlamda ılımlı İslam söylemini resmi olarak benimseyen ve bölgesel hatta uluslararası bir proje haline dönüştüren Fas, başta Amerika Birleşik Devletleri olmak üzere Batılı ülkelerce desteklenmekte ve dahası bu söylem ve tutumları Müslüman dünyaya model olarak gösterilmektedir. Kral 6. Muhammed Emir el-Müminin sıfatıyla dini ve siyasi otoritenin başı olarak Fas’ın benimsediği ılımlı İslam anlayışının Sünni-Maliki usulüne ve Eş’ari doktrinine bağlı olduğunu ifade ederek yapılacak reformların “süreklilik içinde değişim” prensibiyle çerçevesini belirtmiştir. Bu doğrultuda tahta çıktığı 1999 yılı itibariyle dini ve hukuki alanda birbirini takip eden pek çok değişim ve dönüşüm yaşanmıştır. Bu çalışmada Fas’ta ılımlı İslam anlayışını yerleştirmek ve yaygınlaştırmak için yapılan dini kurumların yeniden düzenlenmesi, 2004 yılında aile hukukuna dair yapılan kapsamlı reformlar, özellikle kadın din görevlileri dahil edilerek düzenlenen yaygın eğitimler, medya tanıtımları, sufizmin canlandırılması ve Afrika ülkeleri başta olmak üzere Müslümanların Batıda azınlık olarak yaşadığı ülkelerde görev yapan imam ve din görevlilerinin eğitimleri için düzenlenen programlar gibi uygulamalar ele alınarak sosyo-politik bağlam çerçevesinde değerlendirilecektir.
Anahtar Kelimeler: İslam aile hukuku, ılımlı İslam, reform, Fas, emir el-müminin.

With the 2004 reforms on the Moroccan Personal Status Law, the Moroccan Family Code
(Mudawwanah) is considered one of the most egalitarian codes in the Muslim World. The reforms was a product of long-lasting public debates for decades in Morocco. Aḥmad al-Khamlīshī has been actively involved in the debate since the beginning of the 1980s and explained that the Personal Status Law is man-made law open to interpretation, revision of which should be undertaken through ijtihād. Shortly after ascending to the throne, in 2001, the King Mohammed VI appointed the Royal Advisory Commission in charge to reform the Moroccan Personal Status Code. The King charged the commission for making a substantial change in the Code by respecting the main objectives of Sharia (maqāsid al-Sharia) and also responding to the necessities of the time and society by means of exercising ijtihād. He encouraged members of the commission to consider the public interest and to strive for consensus and moderation in any proposed changes. The commission worked for around two and a half years on the proposed changes, but could not reach a consensus on many issues. Everyone on the commission has, more or less, had some leaning towards either of the two main groups, namely, the reformists and traditionalists. Aḥmad al-Khamlīshī was one of the members of the Royal Advisory Commission. He was a person who shared views of the reformist group, but also used the language of the traditionalists. He became a reference point for reformist groups with his critical but moderate views that remain within the Islamic legal framework. In this paper, I argue that al-Khamlīshī was the mastermind behind the reforms of 2004. By applying data analysis method, this study primarly uses al-Khamlīshī’s writings, his interviews and speeches. To reveal the difference and similarities of his understanding, the literature was consulted and comparisons were made. Following a brief background, this paper will discuss al-Khamlīshī’s mediating role between text and context, his influence on the debate of family law reforms, and thus his stance on Sharia-state relations. This paper will then focus on his understanding of ijtihād with reference to his views on the concept of the closure of the gate of ijtihād, qualifications of mujtahid (one who is capable to deduce legal rulings from the revealed texts), and his suggestion on collective type of ijtihād (ijtihād jamā’iʻ); as it was exercised by the Advisory Commission. Al- Khamlīshī’s methods of legal reasoning will be examined with regard to family law.