Shoaib Ghias | University of California, Berkeley (original) (raw)
Papers by Shoaib Ghias
Since the Islamic resurgence of the 1970s, many Muslim postcolonial countries have established an... more Since the Islamic resurgence of the 1970s, many Muslim postcolonial countries have established and empowered constitutional courts to declare laws conflicting with shariʿa as unconstitutional. The central question explored in this dissertation is whether and to what extent constitutional doctrine developed in shariʿa review is contingent on the ruling regime or represents lasting trends in interpretations of shariʿa. Using the case of Pakistan, this dissertation contends that the long-term discursive trends in shariʿa are determined in the religio-political space and only reflected in state law through the interaction of shariʿa politics, regime politics, and judicial politics. The research is based on primary sources in Urdu, Arabic and English gathered during fieldwork in Pakistan and datasets of Federal Shariat Court and Supreme Court cases and judges compiled by the author.
In particular, the dissertation offers a political-institutional framework to study shariʿa review in a British postcolonial court system through exploring the role of professional and scholar judges, the discretion of the chief justice, the system of judicial appointments and tenure, and the political structure of appeal that combine to make courts agents of the political regime. Using this framework, the dissertation undertakes historical-interpretive case studies involving two puzzles. First, why the Federal Shariat Court declared the (largely symbolic) punishment of stoning for unlawful sex as un-Islamic in 1981, and why the Court reversed its ruling upon review in 1982. Second, why the Federal Shariat Court declared interest in banking, finance, and fiscal laws as un-Islamic in 1991, and why the Supreme Court upheld the ruling in 1999 but then overturned its ruling and remanded the case back to the Federal Shariat Court in 2002.
The project shows how competing approaches to shariʿa interact with the evolving judicial politics and regime politics in authoritarian and democratic periods. While the institutional structure of constitutional courts gives the ruling regime considerable control over the direction of shariʿa review, ruling regimes often depend on religio-political forces for legitimacy. When the regime draws upon conservative religio-political movements, representatives of such movements are appointed to courts and allowed to assert traditional doctrines of shariʿa. But when the regime draws its legitimacy from a broader group of religio-political and intellectual forces, a more diverse set of judges is appointed and enabled to rethink the tradition. The study questions approaches that consider shariʿa review in post-colonial states either as a liberal or as a conservative phenomenon. In contrast, the project shows how courts are agents of the political regime and judicial outcomes are products of authoritarian and democratic political processes. The dissertation also invites scholars of shariʿa review in Arab constitutional courts to study courts as political institutions and judges as political actors.
Contemporary Islamic Finance
Over the past two decades, several Islamic financial institutions have been established across th... more Over the past two decades, several Islamic financial institutions have been established across the world. Many of these institutions are under the supervision of Mufti Muhammad Taqi 'Uthmani. In 2008, a group of Deobandi scholars issued a collective fatwa against 'Uthmani's model of Islamic banks. This chapter includes a translation of the fatwa and explores its arguments. The chapter also includes the response to the fatwa and a glossary of terms.
This article explores the struggle for judicial power in Pakistan under Pervez Musharraf focusing... more This article explores the struggle for judicial power in Pakistan under Pervez Musharraf focusing on two questions. First, how did pro-Musharraf regime judges expand judicial power, leading to a confrontation with the regime? Second, how did the bar and the bench mobilize in the struggle for judicial power? The author shows how, instead of blindly supporting economic liberalization in a period of economic growth, the Supreme Court expanded power by scrutinizing questionable urban development, privatization, and deregulation measures in a virtuous cycle of public interest litigation. The author also describes how a politics of reciprocity explains the social mobilization of lawyers as the bench protected the bar from regime penetration, and the bar protected the bench from regime backlash. The Pakistani case questions some of our assumptions about economic liberalization and courts in authoritarian regimes, and the study invites scholars to explore the role of courts in developing judicial support structures and the role of lawyers in social movements.
Economic liberalization not only requires rules goveming economic exchange (such as multilateral ... more Economic liberalization not only requires rules goveming economic exchange (such as multilateral trade agreements), but also institutions (such as courts) goveming how rules are enforced. However, once courts are established to govem economic exchange, they tend to expand their competence to political and social policy. Political scientists have used this theoretical framework to explain the evolution of national (for example the U.S. Supreme Court) and quasi-intemational (for example the European Court of Justice) judicial institutions. In this article, I explain how this model can be extended to a truly intemational "judicial" institution, the WTO's Appellate Body. The thesis of this article is that the Appellate Body has followed the process predicted by political science by using its institutional independence to develop doctrine that has spilled over to political and social policy areas.
Drafts by Shoaib Ghias
Since decolonization, many Muslim polities have struggled to reconcile their colonial legacy with... more Since decolonization, many Muslim polities have struggled to reconcile their colonial legacy with their Islamic heritage in law, politics, and society. Starting from the so-called Islamic resurgence of the 1970s, Muslim countries such as Pakistan, Iran, Egypt, Sudan, Kuwait, Afghanistan and Iraq empowered constitutional courts to review legislation based on shariʿa (or shariʿa review). These courts are considered to have played an important role in negotiating law and religion under authoritarian as well as democratic contexts. The central question in evaluating shariʿa review is whether and to what extent constitutional doctrine articulated through shariʿa review is contingent on the ruling regime or represents lasting trends in the development of shariʿa. Using a constitutional ethnography of shariʿa review of stoning in Pakistan as a case study, I explore this question and contribute to existing theories on religion and constitutional politics, courts in authoritarian regimes, and authority in contemporary Islam. The central argument of this article is that constitutional courts are agents of the political regime and shariʿa review is a product of regime politics. The institutional structure of constitutional courts gives ruling regimes considerable control over the direction of shariʿa review. But ruling regimes often depend on religio-political forces for legitimacy. When regimes draw legitimacy from conservative religio-political movements, representatives of such movements are appointed to courts and allowed to assert traditional doctrines of shariʿa. But when regimes turn to a broader group of religio-political and intellectual forces for support, a more diverse set of judges is appointed and enabled to rethink the tradition. In this way, the long-term discursive trends in shariʿa are determined in the religio-political space and are only reflected in state law through politics. This argument is developed through an exploration of three questions about the shariʿa review of stoning in Pakistan.
Since the Islamic resurgence of the 1970s, many Muslim postcolonial countries have established an... more Since the Islamic resurgence of the 1970s, many Muslim postcolonial countries have established and empowered constitutional courts to declare laws conflicting with shariʿa as unconstitutional. The central question explored in this dissertation is whether and to what extent constitutional doctrine developed in shariʿa review is contingent on the ruling regime or represents lasting trends in interpretations of shariʿa. Using the case of Pakistan, this dissertation contends that the long-term discursive trends in shariʿa are determined in the religio-political space and only reflected in state law through the interaction of shariʿa politics, regime politics, and judicial politics. The research is based on primary sources in Urdu, Arabic and English gathered during fieldwork in Pakistan and datasets of Federal Shariat Court and Supreme Court cases and judges compiled by the author.
In particular, the dissertation offers a political-institutional framework to study shariʿa review in a British postcolonial court system through exploring the role of professional and scholar judges, the discretion of the chief justice, the system of judicial appointments and tenure, and the political structure of appeal that combine to make courts agents of the political regime. Using this framework, the dissertation undertakes historical-interpretive case studies involving two puzzles. First, why the Federal Shariat Court declared the (largely symbolic) punishment of stoning for unlawful sex as un-Islamic in 1981, and why the Court reversed its ruling upon review in 1982. Second, why the Federal Shariat Court declared interest in banking, finance, and fiscal laws as un-Islamic in 1991, and why the Supreme Court upheld the ruling in 1999 but then overturned its ruling and remanded the case back to the Federal Shariat Court in 2002.
The project shows how competing approaches to shariʿa interact with the evolving judicial politics and regime politics in authoritarian and democratic periods. While the institutional structure of constitutional courts gives the ruling regime considerable control over the direction of shariʿa review, ruling regimes often depend on religio-political forces for legitimacy. When the regime draws upon conservative religio-political movements, representatives of such movements are appointed to courts and allowed to assert traditional doctrines of shariʿa. But when the regime draws its legitimacy from a broader group of religio-political and intellectual forces, a more diverse set of judges is appointed and enabled to rethink the tradition. The study questions approaches that consider shariʿa review in post-colonial states either as a liberal or as a conservative phenomenon. In contrast, the project shows how courts are agents of the political regime and judicial outcomes are products of authoritarian and democratic political processes. The dissertation also invites scholars of shariʿa review in Arab constitutional courts to study courts as political institutions and judges as political actors.
Contemporary Islamic Finance
Over the past two decades, several Islamic financial institutions have been established across th... more Over the past two decades, several Islamic financial institutions have been established across the world. Many of these institutions are under the supervision of Mufti Muhammad Taqi 'Uthmani. In 2008, a group of Deobandi scholars issued a collective fatwa against 'Uthmani's model of Islamic banks. This chapter includes a translation of the fatwa and explores its arguments. The chapter also includes the response to the fatwa and a glossary of terms.
This article explores the struggle for judicial power in Pakistan under Pervez Musharraf focusing... more This article explores the struggle for judicial power in Pakistan under Pervez Musharraf focusing on two questions. First, how did pro-Musharraf regime judges expand judicial power, leading to a confrontation with the regime? Second, how did the bar and the bench mobilize in the struggle for judicial power? The author shows how, instead of blindly supporting economic liberalization in a period of economic growth, the Supreme Court expanded power by scrutinizing questionable urban development, privatization, and deregulation measures in a virtuous cycle of public interest litigation. The author also describes how a politics of reciprocity explains the social mobilization of lawyers as the bench protected the bar from regime penetration, and the bar protected the bench from regime backlash. The Pakistani case questions some of our assumptions about economic liberalization and courts in authoritarian regimes, and the study invites scholars to explore the role of courts in developing judicial support structures and the role of lawyers in social movements.
Economic liberalization not only requires rules goveming economic exchange (such as multilateral ... more Economic liberalization not only requires rules goveming economic exchange (such as multilateral trade agreements), but also institutions (such as courts) goveming how rules are enforced. However, once courts are established to govem economic exchange, they tend to expand their competence to political and social policy. Political scientists have used this theoretical framework to explain the evolution of national (for example the U.S. Supreme Court) and quasi-intemational (for example the European Court of Justice) judicial institutions. In this article, I explain how this model can be extended to a truly intemational "judicial" institution, the WTO's Appellate Body. The thesis of this article is that the Appellate Body has followed the process predicted by political science by using its institutional independence to develop doctrine that has spilled over to political and social policy areas.
Since decolonization, many Muslim polities have struggled to reconcile their colonial legacy with... more Since decolonization, many Muslim polities have struggled to reconcile their colonial legacy with their Islamic heritage in law, politics, and society. Starting from the so-called Islamic resurgence of the 1970s, Muslim countries such as Pakistan, Iran, Egypt, Sudan, Kuwait, Afghanistan and Iraq empowered constitutional courts to review legislation based on shariʿa (or shariʿa review). These courts are considered to have played an important role in negotiating law and religion under authoritarian as well as democratic contexts. The central question in evaluating shariʿa review is whether and to what extent constitutional doctrine articulated through shariʿa review is contingent on the ruling regime or represents lasting trends in the development of shariʿa. Using a constitutional ethnography of shariʿa review of stoning in Pakistan as a case study, I explore this question and contribute to existing theories on religion and constitutional politics, courts in authoritarian regimes, and authority in contemporary Islam. The central argument of this article is that constitutional courts are agents of the political regime and shariʿa review is a product of regime politics. The institutional structure of constitutional courts gives ruling regimes considerable control over the direction of shariʿa review. But ruling regimes often depend on religio-political forces for legitimacy. When regimes draw legitimacy from conservative religio-political movements, representatives of such movements are appointed to courts and allowed to assert traditional doctrines of shariʿa. But when regimes turn to a broader group of religio-political and intellectual forces for support, a more diverse set of judges is appointed and enabled to rethink the tradition. In this way, the long-term discursive trends in shariʿa are determined in the religio-political space and are only reflected in state law through politics. This argument is developed through an exploration of three questions about the shariʿa review of stoning in Pakistan.