This chapter looks at the different ways in which a free person might come to forfeit their freedom in the late antique and early Islamic Middle East. Although frowned upon and theoretically illegal, free persons might opt, due to extreme poverty or privation, to sell themselves or their family, offering their labor in return for basic sustenance. Otherwise, loss of free status might occur due to a debt default, which, if the sale of a debtor’s assets realized insufficient credit, could see them being forced to work to pay off what they owed. This solution was common in the fouth–eighth centuries, but by the ninth century it was increasingly deemed unacceptable. This chapter considers what led to this shift in legal thinking, the degree to which Islamic law continued late antique practice and the nature of this continuity.

This chapter provides an overview of how various aspects of sexuality are dealt with in different Islamic traditions. If first looks at the Qur'an, the Sunna and pre-modern Islamic legal sources. It then focuses on how some medical and erotological sources dealt with the issue in the past, and finally looks at how contemporary feminists are pushing back against patriarchal interpretations of Islamic traditions. The chapter argues that pre-modern texts can help explain how sexuality is understood in contemporary Muslim-majority societies, where continuities are as striking as ruptures, especially when coming to religious or legal sources. It also reminds us of the danger of essentialism, oversimplification and lack of historical contextualization when looking at Islamic and religious traditions in general.

Globalisation has brought the world closer and urged nations to consider the differences between their various legal systems. Comparative law is vital to facilitating this. There are many reasons for the discipline to consider the legal systems of the Middle East and North Africa (MENA) region. The MENA population does not only represent a large part of the world, but the MENA region also has attractive markets with active investment opportunities. Recent studies indicate a remarkable move towards foreign investment in the MENA region business market. This chapter provides an overview of the fundamentals of the MENA region’s legal systems. What is new about this study is that it does not adopt the classical approach of examining Islamic law as the legal cornerstone in this area of the world. Rather, the chapter provides a comparison between the impact of Western laws – founded initially on either the Napoleonic Code or common law doctrines – versus the impact of Islamic law ‘Shari‘a’ on building the legal systems of the MENA countries. The chapter also gives examples of the role of comparative law in shaping some contemporary issues in the MENA countries today, such as migration and women’s rights.

The rule of law, it has been said, is at best a vague concept and at worst a myth. Yet as one looks at any given society, it is a notion that takes on local meaning, in the Middle East and North Africa no less than elsewhere. In this chapter, it is suggested that there is a significant reality to the concept of the rule of law in Muslim nations but that much of that local meaning turns not on substantive rules or the formal organization of institutions so much as the procedures followed and the cultural presumption that inform the finding of facts. By tracing these features through concrete cases and related sources, we can see that Islamic concepts of the rule of law are mostly about process and the assessment of persons, rather than of material evidence and the structure of judicial power. As such, we can also see that when various Muslim cultures encounter one another and the legal systems of the West, some misunderstanding of why failing to appreciate that no cases are thought to be identical and that persons take precedence overs ‘facts’ can readily lead to misperception and misguided encounters.

Tribes are often seen as territorial, pugnacious, and collectivized. In fact, they are quite resilient, individualistic, and readily accepting of others’ practices. When one turns to the law, we can see these features at work in the Berber and Arab tribes of the Middle East, both currently and historically. By starting with the practices of the Berbers of North Africa and then comparing the features they exhibit in their customary law – both substantive and (more importantly) procedural – the similarities to Islamic law are striking. Moreover, it is suggested, this is not surprising, as much of the procedural aspects of classical and modern Islamic law developed out of the tribal background of the Prophet’s day and finds additional support in the precepts of sacred texts. Thus, the comparison of Berber tribal law and Islamic law underscores the continuity of Islamic law, one reasons why it could spread into diverse regions of the Middle East and North Africa so quickly, and why we need to see the spread of Islam not simply as having been carried by military conquest and economic contact but by a form of law that readily resonated with the tribes the new religion encountered.

Every Islamic waqf that adhered to its deed eventually became dysfunctional because of unanticipated changes in conditions. But not all waqfs were managed rigidly. Relaxed legal interpretations enabled waqf caretakers to depart, albeit within limits, from the founder’s instructions. But courts had the final say on whether a caretaker was complying with the deed and, insofar as he was not, whether his exceptions were justified. A judge could rule that the founder, were he alive, would have authorized certain changes that the deed did not explicitly allow. Alternatively, he could treat them as incompatible with the waqf’s spirit. He was thus the arbiter of what resource reallocations were legal. Unsurprisingly, this judicial privilege was abused. Judges commonly withheld permission for a managerial or financial adjustment until they were bribed. So central was the waqf to the region’s premodern economy that efforts to transgress its rules promoted a culture of corruption. Our primary interest here lies in the political consequences. In societies with rampant corruption, individuals tend to solve their problems with the state through bribery and reciprocal favors. They find personal solutions easier than trying to form coalitions with others facing similar challenges. Civil society suffers.

Among the requirements of a liberal order is the ability to pursue collective goals through enduring private organizations. Such organizations contribute to political checks and balances, which sustain individual freedoms. In the Islamic Middle East, a possible starting point for autonomous nonstate organizations was the Islamic waqf, a trust that an individual formed under Islamic law to provide designated social services in perpetuity. Waqfs came to control vast resources. They might have used their enormous wealth to constrain the state and advance the freedoms of their constituents. The resulting decentralization of power could have placed the Middle East on the road to liberalization and perhaps also democratization. However, despite their immense wealth, waqfs remained politically powerless. A key reason is that they were governed according to their deeds, not the preferences of their caretakers or beneficiaries. In these respects, Islamic waqfs differed from European corporations, which were self-governing organizations enjoying legal personhood. In the Middle East, waqfs supplied services that the corporation provided in Western Europe. For instance, whereas churches and universities operated as corporations, mosques and madrasas (Islamic colleges) were financed by waqfs. This institutional difference contributed to the interregional divergence in political patterns.

Islamic waqfs did not produce a vigorous civil society. On the contrary, they inhibited mass political participation and collective civic action through several channels. Firstly, a waqf’s beneficiaries had no say over its activities. Second, each waqf was required to provide services on its own, which kept it from participating in political coalitions. Third, the waqf’s beneficiaries played no formal role in appointing its officers. Such organizational features constitute key reasons why, as the West developed political checks and balances, no such tendency emerged in the Middle East. The West liberalized and democratized through epic struggles involving universities, cities, religious orders, and guilds, all organized as corporations. Challenging power structures, such corporations developed ideologies supportive of personal and associational rights. A virtuous circle thus emerged. As civil society strengthened, it took steps to bolster private organizations, which then strengthened civil society further. In the Middle East, by contrast, the waqf created a vicious circle. By keeping civil society weak, it limited freedoms and perpetuated autocracy. The absence of strong nongovernmental organizations made it hard to challenge rulers through organized collective action from outside the state. Tellingly, over more than a millennium, waqfs fostered no political movements or ideologies.

The Middle East, defined here as the twenty-two members of the Arab League plus Iran and Turkey, has a poor record on matters of governance. Even within the fifty-seven-member Organization of Islamic Cooperation, it stands out as weak on rule of law, civil liberties, and government transparency. Another salient characteristic of the Middle East is that its exposure to Islamic law (Sharia) lasted far longer than anywhere else. No Middle Eastern country is governed by Islamic law today; even Iran and Saudi Arabia operate under largely secularized laws. Yet the region’s legal history causes one to expect specific Islamic laws of the past to illuminate its poor political performance today. The legacies transcend contexts explicitly involving religion. Regardless of religious beliefs or attitudes toward religion, every decision maker in the region is constrained by institutions that bear influences of earlier institutions grounded in Islamic law. The contexts that the book’s analysis brings into focus are civic engagement, religious liberty, and economic capability. The illiberal patterns observed in these contexts are sometimes attributed to European colonization alone. In fact, whatever their harms to the region, colonial policies also mitigated institutional inefficiencies rooted in precolonial history.

Islam’s historical institutional complex has delayed a liberal order in the Middle East, not blocked it permanently. The institutions primarily responsible for the region’s historical trajectory are either gone or, under new conditions, they no longer inhibit liberalization. The infrastructure for an effective civil society is in place. Apart from private associations, it includes perpetual enterprises. And no absolute barrier exists to reinterpreting illiberal readings of Islam. By and large, the institutions that sustain the region’s repressive regimes are mutually supporting. For example, religious illiberalism facilitates associational repression, and vice versa. In any one context, the interlinkages among various institutions may work against liberalization, because change depends on appropriate movements in complementary institutions. The half-full part of this glass is that altering a single institution can destabilize others, possibly unleashing a cascade of mutually reinforcing reforms. Yet there is probably no quick fix to the prevailing illiberalism. Many patterns must change for the Middle East to reach advanced standards of liberty. Although specific changes can stimulate one another, each involves adjustments to interpersonal norms, organizational rules, and state laws. Some would upset longstanding status rankings and hierarchies. Learning civic skills requires communal practice. Vested interests are already organized.

Although entry into Islam is costless, exit was banned early on. According to a widely accepted interpretation of early Islam, soon after Muhammad’s death a precedent for banning apostasy was set. In fact, the underlying dispute was over zakat, and the episode amounted to enforcing the tax code. But recasting this historical detail would not necessarily settle controversies over Muslim religious freedoms. Certain Quran verses speak of retribution against nonbelievers. Others preclude compulsion, arguably establishing a right to leave Islam. Insofar as a textual inconsistency exists – and that itself is debatable – for advocates of liberalizing Islam the challenge boils down to prioritizing liberal verses. Blasphemy and heresy charges, used repeatedly to persecute heterodox sects, also restrict sundry liberties. The fear of getting accused of religious offense constrains political discourse and inhibits collective action. But a broadening of Muslim religious freedoms through the liberalization of apostasy and blasphemy rules is not unthinkable. Analogous transformations have occurred in other religions. Besides, Islam has been reinterpreted repeatedly since its emergence, radically so in modern times. Innovations include Islamic banks, which are business corporations, and various Islamic NGOs, which are organized as nonprofit corporations. Evidently, no absolute barrier exists to broadening Islamic religious freedoms.

This chapter attempts to build on chapter 2, which dealt with the two building blocks necessary for the formation of contracts, namely offer and acceptance. Here, we examine the remaining two requirements: the intention (nīyya) to be bound and the existence of good cause or causa. Unlike English law where so-called consideration is additionally required, this is not entertained in the CC, even if in places the language seems to suggest consideration. This is in fact not true. The chapter goes on to show how the parties’ intention to be bound may be expressed and how the courts can make sense of such intent when the parties disagree about what it is they had offered or accepted. Intent has been a significant aspect of Islamic law. A significant part of this chapter will deal with the legal nature of promises, as unilateral acts, and whether they are enforceable under any circumstances. As will be demonstrated, Qatari law is generally reluctant to enforce promises.