Faculty Bibliography

[...]this peculiarity of Estrellita’s case, added to the fact that it was the first writ of habeas corpus filed on behalf of an animal in Ecuador, explains our initial uncertainty about the scope of the case. The 2008 Ecuadorian Constitution recognizes nature as a rights holder, so any person or community can request a court or public authority to protect the rights of nature or Pachamama, the Quechua word for Mother Earth. [...]the Constitutional Court’s ruling in Estrellita’s case, the rights of nature had only referred to the protection of animals considered as species, not as individuals. [...]we may be killing animals belonging to different families, destroying the group’s genetic diversity, and leaving only siblings who may not mate. [...]we argued that if the Ecuadorian Constitutional Court decided to exclude individual animals from the protection of the rights of nature, then it would be forced to answer an impossible question:

Our brief argued that the Constitutional Court should recognize the rights of individual animals under the constitutional language of rights of nature. The Court adopted most of the arguments we presented in the brief.

In this essay, I show how developments and achievements in the field of environmental rights and specifically rights of nature can be instructive, intellectually and practically, to the cause of animal protection and animal rights. That instruction includes not only positive examples but also notes of caution, where animal law may face different and more formidable challenges.

The chapter examines the trade of live animals for slaughter, focusing on export from Australia to the Muslim-majority countries that are the main customers. Here, animals are shipped across boundaries of religion, culture, and norms of animal welfare. While the typical rules of international trade in goods apply, they do not really fit. In addition, the current legal regime governing live exports is insufficient to provide animals with an adequate standard of welfare, from the point of entering the ships in the country of origin to the moment of slaughter in the importing country. Stilt argues, however, that with the due involvement of religious authorities, the Islamic tradition of animal welfare could be harnessed to develop more widely accepted international transportation and slaughtering standards.

With vivid and compelling writing, Tamir Moustafa in Constituting Religion takes us into the Malaysian state’s creation and management of law that is purportedly Islamic. Following in the line of...

This chapter examines the scholarship that has dealt with the concept of hisba and the related position of muhtasib. The discussion includes a substantial section on the historical development of the concept of hisba and the position of muhtasib and a shorter section on their contemporary uses and practices. The historical section includes attention to the definitions and origins of the terms and to the position of the muhtasib, including the official’s jurisdiction, sources of law, biographies, and practice in particular historical contexts. The contemporary section focuses on the countries that have received the most scholarly attention regarding the practice of hisba and muhtasib today, notably Saudi Arabia and Egypt.

This article examines constitutional innovation through the case study of the emergence of animal protection in Egypt's 2014 Constitution. Egypt's provision, which is a state obligation to provide al-rifq bi-l-hayawan (kindness to animals), was adopted in Article 45 as part of the country's second constitution following the 2011 revolution that ousted President Hosni Mubarak. Three aspects proved crucial to the adoption of the provision: a decision by animal protection activists to influence the constitutional process; the ability of citizens to convey their ideas to the constitutional drafters, albeit in a limited way; and, most importantly, the use of frame bridging. The activists and then the constitutional drafters presented the new cause of constitutional animal protection in terms of well-established areas of social, and constitutional, concern in the country, including Islamic law, women's rights, human rights, and the protection of the environment.

The international trade of live animals, especially animals sold for slaughter, creates significant challenges for international law. Nonhuman animals do not fit neatly into the legal world created by humans. In nearly every jurisdiction, animals are property, but they are not like all other property. The sentience of animals has been widely recognized and it forms the basis of anticruelty laws where they exist. You may destroy your toaster any way you like, but the laws of most jurisdictions protect how you treat your dog. This fractured point in the law, animals as property and yet not exactly property, is the source of confusion in national laws, leading to unsatisfactory answers to questions such as what damages should be paid when a companion animal is negligently killed or whether individuals should own wildlife as “pets.”

Family law in Muslim-majority countries has undergone tremendous change over the past century, and this process continues today with intensity and controversy. In general, this change has been considered one of “reform,” defined loosely as the adoption of national laws to modify the rules of Islamic law (fiqh) that had been applicable and predominant in the particular country in an effort to improve the rights of women and children. In most Muslim-majority contexts, however, the rules of fiqh remain particularly (and in some jurisdictions uniquely) relevant in the area of family law, and the reform process is usually presented as taking place internally to Islamic law rather than something external to it. In early reform efforts, three main strategies were used to achieve substantive results (namely the strategies of exercising preference, patching, and jurisdiction stripping). To the extent that the scholarly literature on Muslim family law deals with types of internal strategies (rather than the actual substantive changes), these three strategies are typically the main or only ones discussed. Family law reform has been very active in recent years, however, and some advocates have developed creative and innovative ways to continue to push legal change that is presented as coming from within the Islamic legal tradition. This article, drawing mainly on examples from Egypt and Morocco, seeks to identify and examine the breadth of strategies in Sunni Islam that have been used beyond these well-known three. By naming and defining them, we hope to facilitate discussions and research in this area, among academics and those engaged in reform projects alike. Specifically we aim to encourage empirical studies of the practical impact of reforms; draw attention to the potential unintended consequences produced by each type of strategy; and contribute to a larger conversation about the benefits and disadvantages of internal approaches, on a case by case basis and as a whole, in comparison with other ways that might be used to achieve legal improvements for women and children.

The Iranian constitutional system has far-ranging influence in the Muslim world, and it is usually, although not always, referred to as a negative model. Recently, the Muslim Brotherhood in Egypt, the largest opposition movement in the country, issued a lengthy political Platform that expressed publicly for the first time its views on the relationship between Islam and the state’s constitutional structures. While the Brotherhood has a minority in the Egyptian parliament, it is believed that if free and fair elections were held, the Brotherhood would become a majority and thus threaten gravely Mubarak’s National Democratic Party (NDP). Significantly, this Platform dealt with some of the most fundamental questions related to the role of Islam and Islamic law in a democratic system: who decides the content of legislation, and should there be limits imposed upon the results of the democratic process that come from some notion of religious law? Apparently in a last minute addition, the Brotherhood drafters added a few sentences to the Platform that proposed to create a body of Islamic scholars that would have to approve legislation before it could be promulgated. Critics, including human rights groups and the ruling NDP, immediately alleged that the Brotherhood wanted to create an Egyptian version of Iran’s Guardian Council. These criticisms directed public attention to the few sentences in the lengthy Platform proposing the body of Islamic scholars and away from the many other statements of the Brotherhood’s commitment to a civil (that is, non-theocratic) and democratic Egypt. Even though Brotherhood leaders have since backed away from the body of Islamic scholars idea, the entire event provides important insight into how the Brotherhood is struggling to formulate their approach to Islamic law as determined by popular democracy (and by legislators, who have no scholarly training) and Islamic law as determined by scholars or some kind of authority figure that would keep popular voices within some sense of religious limits. This fundamental tension runs through the Platform, although it is usually more subtle than the explicit statement proposing the "Egyptian Guardian Council." This paper will examine this tension in the Brotherhood’s political agenda, and show that despite the uniqueness of Iran’s religious and cultural context that produced its Guardian Council, the same kinds of large scale questions of law and society are present everywhere that Islam and Islamic law are attempted to be incorporated into constitutional structures for reasons that transcend the divide between Sunni and Shia Islam.

This Article uses documents issued by the Muslim Brotherhood, in particular the lengthy 2007 “Political Party” Platform, and personal interviews with Brotherhood leadership to examine the group’s specific goals and beliefs for the place of religion within the structure of the Egyptian legal system. While many important angles need to be explored, I focus on one topic that has drawn the most attention to the Brotherhood, the place of religion in the state, or religion defined and enforced by state institutions. I show that the Brotherhood carefully acknowledges the existing constitutional structure and jurisprudence on the position of Islam in the state, it also significantly expresses a desire to expand the place of Islam, constructed around and built upon the existing system. In order to examine these areas, the Article first provides essential background on the Muslim Brotherhood and then briefly explains Egypt’s existing constitutional structure with regard to Islam. The main part of the Article discusses in detail the Brotherhood’s agenda and its significance. In conclusion, the Article returns to the larger topic of Islamist political parties participating in national legislatures and will identify general challenges that any such party will face in explaining its agenda and, in particular, how it will combine religious sources along with a commitment to public welfare.

By some point in the fall of 2011, Egyptians in large numbers no longer viewed the Supreme Council of the Armed Forces (SCAF) as the guardian of the revolution and even considered it the revolution’s antagonist. “The army and the people are one” was a common slogan in the early days following Mubarak’s ouster on February 11, 2011, but the situation had changed dramatically by the landmark date of October 9, when the military used violence against its own citizens, killing approximately twenty-five Christians at a protest outside Maspero, the headquarters of the Egyptian state television. Violence against protestors continued to escalate, leading to the attack by military police on female protesters in Tahrir Square in mid-December and the now-famous video of officers ripping off the garments of a young woman on the ground and then proceeding to beat her. SCAF’s assertions of political power angered Egyptians in November when it issued “supra-constitutional principles” that were intended to control the drafting of a new constitution, a task clearly in the jurisdiction of the new parliament according to the March 30 constitutional declaration, a document discussed below. These proposed principles included the provision that only SCAF would have access to the details of the military’s budget and that all legislation concerning the military would have to be approved by SCAF; the parliament would only control the total sum allocated to the military. The principles also gave SCAF the power to veto any provision of the new constitution that “contradicts the basic tenets of Egyptian state and society and the general rights and freedoms confirmed in successive Egyptian constitutions.” This document of supra-constitutional principles, along with a series of subsequent statements by SCAF, also indicated SCAF’s attempt to control the selection of the constitution’s drafters, in contradiction to the constitutional declaration. While these events marked key moments in SCAF’s attempts to control the political process, SCAF had laid the groundwork for such efforts much earlier in the post-revolutionary period. The crucial turning point that showed that SCAF was a self-interested participant, willing to ignore the democratic choices of the Egyptian people if necessary to advance its own interests, came in the form of the constitutional declaration issued by SCAF on March 30, following the constitutional referendum of March 19. At that time, SCAF’s actions drew little attention by foreign observers and even slight response within Egypt, in part due to the fact that it required a careful reading of the lengthy constitutional declaration in order to see exactly what SCAF had accomplished. While at that time SCAF surely had not formulated a full plan for the subsequent transitional period, it was clearly already anticipating that it would want to exercise far more control, and for a far greater time, than it had envisioned prior to the constitutional referendum. This essay examines the constitutional referendum and then the constitutional declaration with the goal of answering several questions. First, what was the constitutional referendum and what were SCAF’s goals in drafting it and submitting it to the public for a vote? Second, why did SCAF subsequently determine that the referendum was not adequate and how did it seek to modify and supplement the referendum to produce the declaration? Third, how did SCAF embed in the declaration the basis for its own later assertion of greater power over the political and constitutional process? While the declaration was praised for replacing the 1971 constitution, a goal of the referendum’s opponents, and for providing more clarity about the transitional process, the declaration was also the first clear expression by SCAF of its long-term ambitions, even as it was not until later in 2011 that the significance of that expression became vividly clear.

This Article studies the legal position of the muhtasib in medieval Cairo, using the biographical information available about the individuals who held the position to understand the actions they took in office. The muhtasib, who was an inspector of public places and markets in particular, was a key legal actor in terms of applying law immediately to a situation he encountered; he was a common face of the law in society. This Article, influenced in method by legal realism, shows that in addition to the law that a particular muhtasib intended to apply to a particular case, biographical information is crucial in explaining how and why each muhtasib responded to particular events.

This article examines the 2005 amendments to the Egyptian constitution that were intended to change the presidential selection system from a single-nominee referendum to a multi-candidate election. Through a careful study of the amendments and the related laws, it shows that while on the surface this amendment looks as though it opens the presidential elections to multiple candidates, its actual goal is to perpetuate the rule of President Mubarak and his National Democratic Party. Further, by entrenching the new election system through a detailed constitutional amendment, the Egyptian regime has subverted the powers of the Supreme Constitutional Court (SCC) to score a significant victory for the executive and legislative branches in their ongoing cold war with the SCC.

This Article studies the biographies of several key muhtasibs in Mamluk Cairo and Fustat to understand the types of individuals who held the position and how the individual background, education, status among the populace, relationship to the ruling elite, and the means of obtaining the position of each contributed to how the particular muhtasib functioned in office.

This article examines the distinctions between public and private space in classical Islamic law through the work of the muhtasib, a legal official charged with the inspection of public places and behavior in towns of the premodern Middle East and North Africa (and in some Muslim communities outside of these areas).