RESEARCH HANDBOOK ON ISLAMIC LAW AND SOCIETY Research Handbook on Islamic Law and Society Edited by Nadirsyah Hosen Senior Lecturer, Faculty of Law, Monash University, Australia Cheltenham, UK + Northampton, MA, USA © Nadirsyah Hosen 2018 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL502JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2018943995 This book is available electronically in the Law subject collection DOI 10.4337/9781781003060 ISBN 978 1 78100 305 3 (cased) ISBN 978 1 78100 306 0 (eBook) Typeset by Columns Design XML Ltd, Reading Contents List of contributors vii Acknowledgements x Introduction: Islamic law in action 1 Nadirsyah Hosen PART 1 FAMILY LAWAND COURTS 1 Colonial legacies: family laws in Singapore andAustralia 13 Ann Black 2 The application of kafala in the West 48 Kieran Mclean Eadie 3 ‘The best interests of the child’: critical analysis of the Libyan High Court decision 77 Ali Omar Ali Mesrati 4 ADR and Islamic law: the cases of the UK and Singapore 120 Arif A. Jamal PART 2 PROPERTYAND BUSINESS 5 Corporate social responsibility and workplace casualties in Bangladesh: an appraisal of Islamic principles as a potential solution 141 S. M. Solaiman 6 Business in Islam: revisiting Islamic banking practices in Bangladesh 159 Afroza Begum 7 Property law and trusts (waqf) in Iran 178 Hossein Esmaeili PART 3 CRIMINAL LAWAND JUSTICE 8 Corporate criminal liability in SaudiArabia 201 Mohammed Fahad Aljiday Alsubaie v vi ResearchhandbookonIslamiclawandsociety 9 Blasphemy and apostasy laws in the Muslim world: a critical analysis 217 Faisal Kutty 10 Restorative justice in Islamic law: application in Malaysian legal history and the criminal justice system 250 Hanifah Haydar Ali Tajuddin, Nasimah Hussin and Majdah Zawawi PART 4 ETHICS, HEALTHAND SCIENCES 11 Genetic engineering and ethics in Muslim communities: case studies from Tunisia and SaudiArabia 273 Nurussyariah Hammado 12 Collective ijtihad on health issues in Indonesia 289 Nadirsyah Hosen 13 Halal and other codes: can religion, science and ethics guide legal regulation? 307 Richard Mohr PART 5 ARTSAND EDUCATION 14 Finding the Islam in Islamic art: the relationship between Islamic law and artistic practice 331 Mia Corbett 15 The lawfulness of music in contemporary Indonesian debate 350 NenengYanti Khozanatu Lahpan 16 Educational rights for women in SaudiArabia 371 Maan Abdul Haq Khutani PART 6 COMMUNITYAND PUBLIC SPHERES 17 Progressive Islam in Europe: a critical analysis of the unique nature of Bosnia and Hercegovina’s Islamic practice 405 Richard Burgess 18 Khutbahs and fatwas in colonial Indonesia and Malaya 428 Muhamad Ali Index 453 Contributors Muhamad Ali is an Associate Professor of Islamic Studies at the Religious Studies Department, University of California, Riverside. His most recent book is Islam and Colonialism: Becoming Modern in Indonesia and Malaya (Edinburgh University Press, 2015). His research interests are Islam in Southeast Asia, Qur’anic and Hadith Studies, Muslim politics and society, religious pluralism, and Islam and con- temporary issues. Mohammed Fahad Aljiday Alsubaie was awarded a PhD in Law from the University of Wollongong with a special commendation of his PhD thesis. He is a former Professor in the Institute of PublicAdministration, Dar al-‘Uloom University and a legal consultant of a military Judge in Saudi Arabia. Afroza Begum is a Professor of Law at the Islamic University, Bangla- desh. Currently, she is on leave and working as a sessional academic at the University of Wollongong and at Macquarie University, Australia. Her teaching and research interest predominantly lies in international business law, corporations law and public law. AnnBlackisanAssociateProfessorandReaderattheTCBeirneSchool of Law, University of Queensland, Australia. She is the Deputy Director of the Centre for Public International and Comparative Law. Her books include Modern Perspectives on Islamic Law (co-written with Nadirsyah Hosen and Hossein Esmaeili, 2013). Richard Burgess is an alumnus of the University of Wollongong where he graduated with Honours in both European Studies and Law. He prac- tises contract and construction law at firm Herbert Smith Freehills, where he advises on major infrastructure projects across Australian and inter- national jurisdictions. Mia Corbett is an Australian solicitor who advises international clients in the field of media and gambling law. Mia actively pursues her interest in contemporary art practice by presenting guided tours of exhibitions in regional Australian galleries. vii viii ResearchhandbookonIslamiclawandsociety Kieran Mclean Eadie has been employed with the Australian govern- ment since 1999. During this period, Kieran has spent more than five years living and working in the Middle East and South Asia regions in his official capacity. He holds a Masters Degree in Politics and Public Policy (Macquarie), a first-class Honours Degree in Law (UOW) and a BA in History and Politics (NTU). Hossein Esmaeili is an Associate Professor of Law at Flinders Univer- sity, Adelaide, Australia. He is a Co-rapporteur of International Law Association’s Committee on Islamic Law and International Law. His most recent book is The Rule of Law, Freedom of Expression and Islamic Law (Hart Publishing, 2017, co-authored with Irmgard Marboe and Javaid Rehman). Nurussyariah Hammado is a medical doctor, neuroscientist and clinical exercise scientist who teaches at the Universitas Negeri Makassar (UNM), Indonesia. She has special interest in exploring the neuroscience basis of religious behaviour. She obtained her degrees from the Univer- sitas Hasanuddin, the University of Queensland and the Australian National University. Nadirsyah Hosen has been working as a Senior Lecturer at the Faculty of Law, Monash University since 20 July 2015. Prior to this role, Nadir was an Associate Professor at the School of Law, University of Wollon- gong. He has written and/or edited 13 books on the issues of Islam, constitution, law and religion. Nasimah Hussin is an Associate Professor at the Ahmad Ibrahim Kullliyyah of Law, International Islamic University Malaysia (IIUM). She has extensively researched areas relating to Shari’ah law, Islamic criminal law, victimology, social sciences and restorative justice. She is also actively involved with government and university projects in devel- oping Shari’ah law of Malaysia. ArifA. Jamal is anAssociate Professor in the Faculty of Law, National University of Singapore (NUS Law). He serves on the Executive Com- mittee of the Centre forAsian Legal Studies (CALS) at NUS Law and as an Editor with the Asian Journal of Comparative Law. His research and teaching interests include legal and political theory, law and religion, and law in Muslim contexts. His most recent book is Islam, Law and the Modern State: (Re)imagining Liberal Theory in Muslim Contexts (Rout- ledge, 2018). Maan Abdul Haq Khutani is a lawyer, with a PhD in Islamic law and international human rights law. He works in Jeddah, Saudi Arabia. Contributors ix Faisal Kutty is an Associate Professor of Law and Director of the International LL.M. program at Valparaiso University Law School in Indiana and anAdjunct Professor of Law at Osgoode Hall Law School of York University in Toronto. He also serves as counsel to Kutty Law, a Toronto-based law firm. He is currently on the executive committee of the Association of American Law School Section on Islamic Law. NenengYanti Khozanatu Lahpan is a Senior Lecturer at ISBI (Institut Seni Budaya Indonesia) Bandung, Indonesia. She completed her doctoral degree in anthropology at Monash University, with the thesis entitled ‘Negotiating Ethnicity and Islam in Musical Performances in West Java, Indonesia’(2015). Ali Omar Ali Mesrati is an Assistant Professor of International Law at the College of Law, University of Bahrain. He is the founder and director of the University of Bahrain’s Human Rights Legal Clinic. His interest is in education relating to international human rights and he has played a significant role in introducing a wide variety of human rights courses in Bahrain. Richard Mohr is a sociologist (PhD UNSW) specialising in legal and urban issues. He is Director of Social Research, Policy and Planning, incorporatedinAustralia.HeeditedLawandReligioninPublicLife:The Contemporary Debate with Nadirsyah Hosen (Routledge, 2013). S. M. Solaiman is an Associate Professor of Law, University of Wollongong, Australia. He has extensively published on corporate regu- lation and stakeholder protection in leading law journals around the world, mostly in the United Kingdom, the United States, Continental Europe and Australia. Hanifah Haydar Ali Tajuddin is a Senior Officer at the Shariah Judiciary Department of Malaysia. Throughout her career, she has had experiencesintheSyariahprosecutionunitandintheresearchunitofher department. She is currently a PhD candidate at the International Islamic University Malaysia (IIUM) in the area of comparative criminal law. Majdah Zawawi is an Associate Professor at the Ahmad Ibrahim Kullliyyah of Law, International Islamic University Malaysia (IIUM). Her research background has been a mixture of Islamic law, jurispru- dence, biosafety law and the halal industry. She has also been actively involved in university and government projects in developing Shari’ah law and the halal industry of Malaysia.