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Monday Read: "Limiting Oppression: Duress and Unconscionability in Islamic Law"
12 Plays2 years ago
How can vulnerable parties, such as minorities and women, best be protected during religious arbitration within the Islamic tradition? Should parties be informed of their legal rights under American law or their rights within their religious tradition? For Rabea Benhalim, the answer is a balance of both.
In today’s episode of Interactions, we hear from Benhalim and her Canopy Forum article, “Limiting Oppression: Duress and Unconscionability in Islamic Law”.
In her article, Benhalim explains that vulnerable parties will be better protected if they have a dual understanding of their rights under both their religious legal tradition and American law.
While "anti-Shariah movements tend to assume that Islamic law will provide inferior protections to vulnerable parties," Benhalim writes, this simply isn't the case: "Islamic law in fact often provides stronger protections, especially as Islamic law prioritizes the subjective experience of a coerced party and strictly limits financial exploitation."
Read the original article on Canopy Forum.
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Transcript
Introduction to the Podcast
00:00:04
Speaker
Hello, and welcome to another episode of Interactions, a podcast about law and religion and how they interact in the world around us.
Focus on Rabia bin Halim's Article
00:00:15
Speaker
In today's episode, we hear from Rabia bin Halim and her Canopy Forum article, limiting oppression, duress, and unconscionability in Islamic law.
Dual Understanding of Rights
00:00:28
Speaker
In her article, Ben Halim considers how to best protect vulnerable parties during religious arbitration within the Islamic tradition. Should parties be informed of their legal rights under American law or their rights within their religious tradition? For Ben Halim, the answer is a balance of both.
Islamic Law vs. Civil Rights
00:00:50
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Vulnerable parties, she writes, such as minorities and women, will be better protected if they have a dual understanding of their rights under both their religious legal tradition and American law. She shows that, in fact, Islamic law provides special protections against oppression that do not have parallels within civil rights.
Limiting Financial Exploitation
00:01:17
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While anti-Sharia movements tend to assume that Islamic law will provide inferior protections to vulnerable parties, Ben Halim writes, this simply isn't the case.
00:01:30
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Islamic law, in fact, often provides stronger protections, especially as Islamic law prioritizes the subjective experience of a coerced party and strictly limits financial exploitation. All this and more on today's episode of Interactions.
Quranic Emphasis on Justice
00:01:49
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I'm Janet Metzger.
00:02:03
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Indeed, God orders justice and beauty and giving to relatives and forbids immorality and abomination and oppression.
Empowering Vulnerable Groups
00:02:14
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The Quran, chapter 16, verse 90.
00:02:18
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Within religious communities, there are vulnerable parties, such as recent immigrants and women, who would be better served if they had a clear understanding of the protections available to them under their religious legal tradition and American law.
00:02:34
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In doing so, they would understand their religious rights vis-a-vis their community and their civil rights vis-a-vis the American legal system. Advocates concerned about the impingement of vulnerable parties' rights due to communal pressures to use religious arbitration typically only advocate for educating vulnerable parties regarding their civil rights.
00:03:00
Speaker
However, vulnerable parties may be further empowered through education on their rights within their religious tradition, as religious authorities within the community may be more likely to respect and protect those rights.
Historical Focus on Subjective Experience
00:03:16
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Furthermore, there may be instances where the religious legal tradition via arbitration provides more protections than the American legal system via civil courts.
00:03:28
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As religious minorities living in a secular context, Muslims navigate overlapping and distinct legal norms regarding their respective religious legal traditions and the larger American legal system.
00:03:44
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Islamic law has long recognized the need to limit the ability of more powerful parties to take advantage of vulnerable parties, especially in the realm of wealth disparity.
Invalidating Oppressive Contracts
00:03:56
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Historically, Islamic law prioritized a subjective inquiry into the oppression a vulnerable party may have faced when entering a contract.
00:04:07
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Rather than holding a reasonableness standard, as in the common law, Islamic law looked to the particular realities of an oppressed individual. This essay details the protective mechanisms in Islamic law against oppression and exploitation available to parties resolving disputes in forums including religious arbitration.
00:04:32
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While a doctrine of unconscionability does not exist in Islamic law, per se, there are certain corollary principles in Islamic law derived from verses of the Quran. Based on these verses, an arbitral body may invalidate or alter a contract in the interest of justice if oppression is somehow present within a contract.
Preventing Exploitation in Islamic Law
00:04:57
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Muslim legal scholars grounded their reasoning in Quranic verses, including the following. O you who believe, fulfill your contracts and covenants. Chapter 5, Verse 1. O you who believe, do not consume each other's wealth and property between yourselves illegitimately unless you undertake trading with mutual consent between you. Chapter 2, Verse 188.
00:05:27
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Do not devour one another's possessions wrongfully, not even by way of trade based on mutual agreement, and do not destroy one another. Chapter 4, Verse 29 Given these Quranic verses, Muslim legal scholars have generally condemned bargains they deem oppressive and unfair.
00:05:49
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To achieve such ends, certain principles exist within Islamic law to help society guard against unjust practices. These principles include the doctrines of unjust enrichment, fadl mal-bil-itwad, unfair dealing, contracts of necessity, bay al-muthar or bay al-mahut,
00:06:13
Speaker
and excessive speculation, hara. The concept of riba, commonly translated to mean interest, but literally meaning increase, became an umbrella doctrine for all of the above concepts and served as a general prohibition on contracts in which one party received an undeserved profit.
Systematic Approach to Coercion
00:06:36
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Within the modern context, ribah is often discussed in terms of Islamic finance, and the methods Islamic finance scholars have developed to technically avoid ribah.
00:06:49
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However, ribah historically has had a much broader application in Islamic law. Scholars differentiated between two types of ribah. Ribah Afarl, in which a contracting party acquired an unlawful excess profit, or ribah Anasih, in which a party used contract terms to gain an unlawful advantage by speculating on uncontrollable risks.
00:07:18
Speaker
This prohibition of taking advantage of another party is also central to Islamic law's prohibition of duress and coercion. Fundamental to the doctrines of both duress and unconscionability in Islamic law is a dynamic of oppression or exploitation between a vulnerable party and a party with some degree of power leveraged over the vulnerable party.
00:07:45
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While the concept of duress overlaps into the moral, ethical, and social norms, the doctrine of duress is concerned with the legalist approach to coercion and ultimately to victimization.
Balancing Rights and Feelings
00:08:00
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Islamic law, like the common law, addresses the legal ramification of coercion in a wide array of circumstances, ranging from commercial transactions to criminal acts to divorce.
00:08:14
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The concept of duress in both Islamic and common law demonstrates an aim to set a standard of conduct by which people are expected to live. The two legal systems share a host of similarities regarding duress. Both systems differentiate between civil and criminal law, requiring a higher standard of conduct in criminal cases.
00:08:40
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The differentiating factor of Islamic law is that it offers a methodologically more coherent and systematic approach to duress, especially regarding the consideration of the subjective feelings of the coerced.
Podcast Break
00:08:56
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Islamic law also provides limiting guidelines in the form of legal principles that help create a more predictable doctrine of duress. We'll be right back after the break.
Resource Promotion
00:09:12
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Hi Interactions listeners, this is Justin Lateral at the Center for the Study of Law and Religion. If you liked this episode and want to learn more about the interactions of law and religion around the world, check out the link to our book brochure in the podcast description.
00:09:28
Speaker
There you'll find over 40 new titles like God and the Illegal Alien by Robert Heimburger and Michael Perry's new book on human rights, democracy, and constitutionalism. Each title includes a short description and a link to buy the book online.
Challenging Anti-Sharia Assumptions
00:09:44
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Thanks for listening to Interactions.
00:10:02
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One of the central questions to the application of the doctrine of duress is how much particularization should the law account for regarding an individual victim of duress? For instance, should the law hold that the subjective feelings and fears of the threatened person are determinative?
00:10:23
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Furthermore, should the reasons for those subjective fears, that is, the person comes from a vulnerable class of person, be taken into consideration? Islamic law answers these questions with a multifaceted approach to duress.
00:10:40
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Unlike the common law, Islamic law takes into account certain divine rights and is unyielding in regards to the protection of these rights. In regards to duress, Islamic law balances the rights of God and society against the rights of the coerced individual.
00:11:01
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While the rights of God and society must be upheld, Islamic law is concerned with the particular subjective feelings of the coerced individual.
00:11:13
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The Hanafi scholar Asaraxi, died 483, 1090, described the importance of taking the subjective feelings of a victim of duress as follows. We consider the preponderance of thought of the victim and what he felt because the victim's belief takes precedence over the reality concerning matters that we have no way of verifying independently.
00:11:39
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The condition of people vary according to their ability to withstand pain. Therefore, we have no alternative but to consider what the victim believed.
00:11:51
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The subjective belief of the victim, however, is not the end of the inquiry for Islamic law jurists. In order for a judge to find duress, the basic formulation of duress under Islamic jurist prudence requires meeting both a physical and moral criterion. The physical criterion requires that the victim believes they are in danger.
00:12:16
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although actual physical presence of the coarser is not necessary in order for the victim to believe that he is in danger.
00:12:25
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The determination is based on whether the victim actually believed they had no choice. Jurists disagree as to whether the threat needs to be imminent. For example, the Malachi's agreed with the above determination, but added that since the real issue is the formation of the fear in the victim's mind, there is no need to require that the threatened harm be immediate.
00:12:51
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Thus, if the threatened event would occur a month later, provided that the victim was actually terrified by this prospect and had no recourse to seek aid, then a court would find duress.
00:13:06
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Parties in an American Muslim arbitration can find greater protection against oppression and exploitation through the application of these Islamic law doctrines than parties would have available applying the common law in civil court.
Podcast Credits
00:13:23
Speaker
While the one law for all and anti-Sharia movements tend to assume that Islamic law will de facto provide inferior protections to vulnerable parties or no protection at all, Islamic law, in fact, often provides stronger protections, especially as Islamic law prioritizes the subjective experience of a coerced party and strictly limits financial exploitation.
00:13:59
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That was Limiting Oppression, Duress and Unconscionability in Islamic Law, by Rabia Ben Halim.
00:14:07
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You can find the full article as well as the rest of the articles in the Canopy Forum religious arbitration series by following the link in the episode description. Canopy Forum and the Interactions podcast are distributed by the Center for the Study of Law and Religion at Emory University and produced by Anna Knudsen and Ethan Anthony. I am your narrator, Janet Metzger.
00:14:34
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You can follow Canopy Forum on Twitter or Facebook and subscribe to Interactions on your favorite podcast platform. Thank you for listening.