COMPARATIVE LAW
Insurgent LegalityViolent groups with extreme ideologies are often characterized as lawless, irrational, and therefore difficult—or even impossible—to predict and understand. Contrary to this conventional wisdom, I argue that many armed extremist groups across history and around the world share a common element: law-like systems of rules that they use to justify violence, regulate the conduct of civilians as well as their own members, and to transform social, political, and economic institutions in ways that will advance their ideological and strategic objectives. This article presents empirical evidence from the case of the Islamic State in Iraq and Syria to support a theory of “insurgent legality”: An armed group’s ability to clearly articulate and consistently enforce its own internal legal system as a de facto state—one that rejects the sovereignty of the de jure state it seeks to overthrow or secede from—is a necessary condition for its successful control and governance of people and territory. However, if the armed group’s legal system is flawed by procedural injustice, corruption, and arbitrary violence, it will lose local support and likely collapse as a result. I test and find support for this theory with qualitative and quantitative data collected over the course of two years of field research in Iraq and southern Turkey including an original household survey of 1,458 residents of the Islamic State’s former capital city, Mosul, in-depth interviews with more than 200 Syrians and Iraqis who lived under the Islamic State’s rule, and a dataset of more than 1,500 primary source documents that maps the expansion and eventual retreat of the Islamic State’s governance and lawmaking activities across time and space in all 22 Syrian districts that the group controlled to some extent between 2013 and 2017. This article lays out a research agenda for the study of insurgent legality, arguing that legal scholars and practitioners should take seriously the internal regulatory and governance systems of violent non-state actors in order to understand not only how these groups emerge and establish legitimacy in the eyes of their supporters, but also how their legitimacy can be undermined. I conclude with a discussion of the broader implications of this research for countering the potential resurgence of the Islamic State in Iraq and Syria and for combating different forms of violent extremism in other contexts including the United States.
Triadic Legal Pluralism in North Sinai: A Case Study of State, Shari‘a, and ‘Urf Courts in Conflict and Cooperation
UCLA Journal of Islamic and Near Eastern Law 13 (2014): 21-59 
To the extent that legal scholars have addressed the post-authoritarian transitions underway in the Middle East, the scope of their work has been primarily confined to the formal infrastructure of state-manufactured law. Attention has focused on the activities of high courts, parliaments, and the administrative apparatus of official justice systems, while largely neglecting to acknowledge the importance of non-state institutions and systems of normative rules that operate in the shadow of modern bureaucratic governments. The concept of legal pluralism, defined as the coexistence of multiple legal or normative orders within a common geographical area, has been applied extensively in European, South American, and sub-Saharan African contexts, but is underutilized in analysis of revolutionary and transitional change in the Middle East. Nowhere is the presence of legal pluralism more apparent than in Egypt’s geographically remote Sinai Peninsula, where non-state Islamic courts that emerged in the post-revolutionary security vacuum in 2011 claim to have absorbed 75 percent of the caseload once handled by Egypt’s official justice system and aspire to achieve full autonomy from the state. This paper, based on field research conducted in the governorate of North Sinai, argues that the rapid institutionalization of non-state shari‘a courts since the 2011 uprising can be explained in part by two historical trends: (1) the Islamizing effects of state-sponsored development and labor migration policies on Bedouin society in North Sinai; and (2) growing disillusionment with state and tribal judiciaries, which are often viewed as complicit in the disenfranchisement of the Bedouin and expropriation of their lands.
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Islamic Law and Constitutions
(with Nathan J. Brown) in Emon, Anver M., and Rumee Ahmed, eds., The Oxford Handbook of Islamic Law (Oxford University Press, 2018)
This chapter explores the scholarly interest in the relationship between constitutions and the Islamic legal tradition. It begins with an overview of constitutional texts and what they say about Islam. It then considers whether the Islamic religion in general, and the shari‘a in particular, lend themselves to constitutionalism. Thereafter, it analyzes how a new generation of scholars from other disciplines have joined those older scholarly efforts. More specifically, it examines the shift in focus of recent scholarship from heavily textual methodologies that prioritize specifically religious and intellectual questions, to more contextualized lines of inquiry that address the legal, institutional, historical, and policy implications of Islamic constitutional development. Finally, it looks at three scholarly debates (ones that have been connected to debates among Muslim political and legal thinkers): the relationship between Islam and constitutional texts; who has interpretive authority in such matters; and where debates take place.
This article maps Middle Eastern law in some of the thousand plateaus where it operates/operated: Mesopotamian law, Roman provincial law, Islamic law, and post-colonial law, with layers within each, such as Elephantine law in Egypt and Jewish and Christian law in Islam's classical age, as well as new worlds of law, such as Byzantine and Ethiopian law, in which scholarship about interaction with other layers of Middle Eastern law is either inexistent or just starting. The focus is directed as much as possible to the extant documentation in the legal record that most affects people's lives: court decisions. For the modern period, we survey, from the point of view of the legal practitioner, lawyer, or judge, the various bodies of case law and codes in the everyday practice of the Middle East lawyer. A legal family analogous to the common or civil law traditions, Middle Eastern law has emerged as a coherent and active discipline that is increasingly a subject of inquiry for historians, social scientists, and others outside of the legal profession. This article presents the field for more sustained attention from lawyers, judges, and law professors.
Egypt's Constitution in Question
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In well-functioning democracies, constitutions are revered as the backbones of law and order and permanent reservoirs of fundamental rights. But if longevity is the defining test of a successful constitution, then Egypt's new charter--ratified by popular referendum in December 2012--is already in danger of failing. This essay, which draws on conversations with Egyptian judges and lawyers in 2013, will argue that the illegitimacy and ambiguity of Egypt's constitution has undermined rule of law by insufficiently clarifying the balance of powers between rival institutions that are now engaged in fierce competition over the uncertain contours. The effect of the resulting power struggle has been a sharp deterioration of public confidence in judicial institutions which are increasingly perceived as partisan actors prioritizing their own interests over the public good.
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Deprivatizing Islamic Law: An Argument for Judicial Interpretation of Shari'a in American Courts
The Journal of Legal Pluralism and Unofficial Law 47 (2015): 246-266 |
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The expansion of private Islamic arbitration services in the United States has provoked opposition from an anti-shari'a movement that is actively seeking legislative reforms and state constitutional amendments to curb what it describes as a “stealth jihad” aimed at Islamizing the American legal system. This article challenges the anti-sharia movement’s narrative and proposes an alternative explanation for the rise of Islamic arbitration as an inevitable by-product of the overall trend toward privatization of law--a process in which courts are outsourcing traditional state functions of dispute resolution to extra-judicial forums that lack the procedural and constitutional safeguards available in ordinary courts. Arguing against proposals for bans on judicial enforcement of shari'a, I argue that courts should take opportunities to deprivatize Islamic law by interpreting and regulating it. Contrary to claims that secular courts are neither competent nor constitutionally authorized to interpret religious law, recent case law indicates that American courts have already been interpreting shari'a for years, and have done so in ways that are fully consistent with federal and state laws.
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