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Islamic Constitutionalism
Annu. Rev. Law. Soc. Sci. 2007.3:115-140. Downloaded from www.annualreviews.org
Access provided by Central European University on 12/06/16. For personal use only.
Key Words
Abstract
As the rst survey of the topic, this review covers Islamic constitutionalism since its emergence a century ago, showing a signicant
range of historical variation. The rst two phases of Islamic constitutionalism are separated by a watershed, the late coming of the
age of ideology, which began with the creation of Pakistan in 1947,
thus predating the contemporary resurgence of Islam by some two
decades. In the rst phase, Islam appeared as a limitation to government and legislation, without any presumption that it should be the
basis of the constitution itself. In the second phase, Islam came to be
considered the basis of the constitution and the state. In the incipient
third phase of postideological Islamic constitutionalism, we witness
a return to the idea of limited governmentthis time as the rule of
law according to a constitution that is not based on but is inclusive
of the principles of Islam as the established religion.
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INTRODUCTION
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of the Imamate, beginning with the Shiite belief that the truly legitimate government belongs to the twelfth Imam who will remain in
occultation until the end of time.
According to this new Shiite constitutional theory, it was necessary to change a
despotic regime to a constitutional one because the former consisted of three sets of
usurpations and wrongdoings: (a) It was a
usurpation of the authority of God and an
injustice (zolm) to Him, (b) it was usurpation of the Hidden Imams authority and injustice to the Imam, and (c) it involved injustice to or oppression of the people. By
contrast, constitutional government was only
injustice to the Hidden Imam because his authority was usurped. Thus, a constitutional
regime reduced the three sets of injustices to
one and was therefore preferable to despotism as the lesser evil. With one condition, this
qualied legitimacy of constitutional government could become categorical: If the constitutional ruler in his exercise of custodial
authority gains the approval of the ulema
[as deputies of the Hidden Imam], then there
will remain no usurpation and no injustice to
the Imam (Hairi 1977, pp. 19394, translation slightly modied). Furthermore, Naini
was careful to impose all the same limitations
on parliamentary legislation as other Shiite
jurists, who had supported constitutionalism
but had modied the wording of the crucial
equal protection Article 8 of the 1907 Supplement to the Fundamental Law to read: The
people of the kingdom of Iran will have equal
rights before the state law (emphasis added).
(The intention was to exclude from equal protection of the law the inequalities between
Muslims and non-Muslims, men and women,
free persons and slaves as prescribed in the
sharia.) Naini accordingly accommodated
the substance of the idea of shari constitutionalism regarding the restriction of parliamentary legislation to secular or customary (or)
affairs and explicitly restricted equality before
the law to man-made or positive laws (qavanin
mawzua) on the assumption that they cannot
override the sharia (Hairi 1977, p. 225).
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notion and its confusion of legal and theological categories. The declaration of Gods
sovereignty was in fact the cornerstone for
the construction of an ideological constitution purporting to be based on the Quran and
the Islamic sharia. This declaration ushered
in a wave of ideological constitution-making
in the Muslim world, with Islam increasingly
as the basis of the constitution and the state,
making current constitutional problems especially intractable.
The debate on the idea of an ideological
state based on Islam marked the late transfer
of the age of ideology from the First and Second to the emerging Third World. The constitutional debates during the long making of
the 1956 Constitution of the Islamic Republic of Pakistan are covered by Binder (1961) in
Religion and Politics in Pakistan. The ideological character of this debate, which stimulated
various and contradictory elaborations of the
idea of sovereignty of God in relation to the
popular will during the three decades following the foundation of the state of Pakistan, is
clearly brought out by Ahmed (1987, pp. 18
24, 2024), who analyzes the function of this
ideology in the framework of modernization
theory.
I have also argued that there was a curious convergence between the fundamentalism
of Mawdudi and the Orientalism of Gibb
(Said 1978) in this period, which stems from
a shared textualism (Arjomand 1996). Gibb
(1955) focused on a set of eleventh-century
texts in political theory, giving little systematic attention to cultural and historical context, inferring that in Islam [t]he community exists to bear witness to God amid the
darkness of this world, and the function of its
government is essentially to act as the executive of the Law [meaning the sharia] (Gibb
1970, p. 11). This statement is typical of the
period (Khadduri 1951). The historical pic-
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jurisdiction (Asad 1961, p. 34). This is because the real source of all sovereignty is the
will of God as manifested in the ordinances
of the shariah (Asad 1961, p. 39). The
implication is that, if the government fullls
the requirements imposed by the shariah,
its claim to the allegiance of the citizens is
absolute. And further, So long as the state
conforms in its principles and methods to the
demands of the shariah, a Muslim citizens
duty of obedience to the government is a
religious obligation (Asad 1961, pp. 69, 75).
Each generation should undertake its own
independent endeavor (ijtihad) in law-nding
and legislation in the area where there are
no rm ordinances of the sharia, although
it could also learn from the endeavors of
the earlier generations of Muslims, and here
political difference should be tolerated as they
are a divine mercy. Within the framework,
the fourth and lowest principle of the Islamic
state is popular consent, embodied in the
principle of consultation (shura) and to be
institutionalized as parliaments. This Islamic
state need not correspond to any historical
precedent (Asad 1961, p. 17)! And because it is
an ideological state similar to the communist
states, as in Islam, an ideology is placed over
and above the peoples freedom to legislate
for themselves (Asad 1961, p. 20).
The qualication of the Republic of
Pakistan as Islamic also created a serious
constitutional problem, as had Israels as the
Jewish state. The constitutional proposals
by Mawdudi and Asad to treat religious minorities as the protected people (dhimmis)
according to the sharia would have made
nonsense of the constitutional guarantee
of equality before the law. The Pakistani
Constitutions of 1956 and 1962 categorically recognized the principle of equality
before the law, but without eliminating legal
pluralism completely.3 There were good
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The term comes from the British colonial policy of recognition of native, customary law so long as it was not repugnant to constitutional and statutory law.
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without, however, giving any organ the authority for constitutional review. It is interesting to note that the Pakistani ulemas amendment, reiterated by Mawdudi, that added
and the Quran and Sunnah be the chief
source of the law of the land failed to carry
(Maududi 1960, p. 367; Arjomand 1993b).
Since 1980, the Federal Shariat Court, whose
judges held ofce at the discretion of the president, has assumed jurisdiction over determination of the conformity of laws with the
Quran and the Sunnah. The Shariah Bill of
1991 gave the judiciary power to interpret the
sharia irrespective of constitutional and statutory law, thus exacerbating the chaos of legal pluralism and severely limiting the protection of constitutionally entrenched rights
(Newberg 1995, p. 242).
Moving beyond Pakistan, one must admit
more generally that in the religiously designated states of the Middle East, the issue of
equal protection of law for those citizens who
do not wish their primary identity to be religious has not been worked out in constitutional theory or practice (Mallat 2007, ch. 3).
Islamic Constitution whose Article 1(b) specied the sharia as the sources of all legislation (cited in An-Naim 1990, p. 96). In 1980,
the Egyptian government once more preemptively amended the same Article 2, changing
a to the to read in translation the principles of the Islamic sharia are the chief source
of legislation5 (Brown 2002, pp. 30, 56, 82
84). The gambit was followed by one country
after another, and by 2000, constitutions of
some 24 Muslim states had declared the sharia
(or its principles) a or the source of legislation.6 And the new millennium opened with
the stampede of the 12 northern federal states
of Nigeria declaring sharia the state law.
The turning of sharia from a source of legislation into a slogan was the consequence of
the spread of politicized Islamic fundamentalism generally referred to as political Islam
or Islamism. It was built on the myth of the
Islamic state whose primary function is the
execution of the shariawhatever the meaning of execution with respect to a law without
codes that Weber called a jurists law and that
includes rules for acts of worship, ritual, diet,
and cleanliness. It seemed oblivious to the undeniable historical fact that, with the exception of Turkey after the adoption of the Swiss
family law, the sharia is a major source of the
most important acts of legislation, namely the
Civil Code of Iran, which was enacted in 1928
and 1935, and that of Egypt, which was enacted in 1948 and served as the model for those
of many other Arab countries.
During the decade just preceding the
drafting of the Ottoman Constitution,
18691876, 16 books of the Mecelleor,
to give its full title, the Books of Judicial
5
6
Meanwhile, sharia began to trump positive law sporadically. In November 1983, for instance, the Supreme Federal Court of the United Arab Emirates decided in a case
of drunkenness that the sharia is the supreme law of the
federation and therefore its penalty should be applied over
and above that prescribed by a 1976 law of the Emirate of
Abu Dhabi (Mallat 2007, ch. 4).
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SHIITE CONSTITUTIONALISM
AND ITS POSTIDEOLOGICAL
TRANSFORMATION
Khomeini had been living in exile in Iraq for
well over a decade before his triumphal return
to Iran on the crest of the Islamic revolutionary wave. Despite Saddam Hosseins erce repression, the Najaf Khomeini left in 1978 had
been the center of a movement for Islamic renewal, and especially the renewal of Islamic
law that Mallat (1993) has aptly termed the
Shii international. The methodology of the
movement for Islamic reform relied on the
category of maslaha that had been marginal
in traditional Islamic jurisprudence but was
now made central as public interest in the
constitutional eld (Kerr 1966). It has been
severely criticized (Hallaq 1997, ch. 6) and
had no constitutional impact, although the reformist syncretic legal methodology, as was
pointed out, did inuence the codication
of Middle Eastern law. The Shiite reform
movement in the 1960s and 1970s, by contrast, made two previously underdeveloped
areas of Islamic jurisprudence the core of
its renewal of Shiite law: the constitutional
part of public law, and the large eld opened
up by modern economics: labor law, land
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amr) is in fact used in the section embodying the Mandate of the Jurist in the 1979
Constitution, although the ofcial designation of the supreme jurist is the leader of the
Islamic Republic of Iran.
In the 1990s, after the death of Khomeini,
however, new constitutionalist writings in
Iran took a rmly anti-ideological turn in
their opposition to the theocratic regime
whose chief organ of constitutional review
became overburdened with an unexpected
function of political control (mainly by
using its power of supervising elections to
disqualify candidates) and failed to generate
any constitutional jurisprudence. In daring
attempts to nd an alternative to the ofcial
theocracy enshrined in the Constitution of
the Islamic Republic of Iran, a number of
dissident clerics have been striving for a
different kind of constitutional democracy
consistent with the sharia. Politically the
most consequential of these was the radical
modication of the Mandate of the Jurist into
a purely supervisory one by one of its chief architects in the Assembly of Experts, Ayatollah
Hasan-Ali Montazeri, Khomeinis successordesignate until 1988, who had published a
treatise on Islamic jurisprudence justifying
the Mandate of the Jurist (Montazeri 1988).
The young jurist who followed Montazeris
hint and developed a full-edged critique
of Khomeinis constitutionally enshrined
theory of Mandate of the Jurist was one of his
students, Hojjat al-Islam Mohsen Kadivar.
This critique unfolded in two stages.
The rst was implicit and consisted of
the relativization of Khomeinis theory by
presenting it as one among many recognized
Shiite views of the state. Kadivars (1997)
Nazariya-ha-ye dawlat dar f iqh-e Shia (Theses
on the state in Shiite jurisprudence) takes
this step and is valuable for its departure from
the ofcial position that Khomeinis thesis
was the Shiite view of government. Although
dutifully tracing its genealogy, Kadivar
separates Khomeinis earlier and later views
on theocratic government into two theses
and puts them alongside seven other theses
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marjaiyyat), while his earlier views, alongside those of the Lebanese jurists, Shaykh
Muhammad Javad Mughnia and Shaykh
Muhammad Mahdi Shams al-Din, are presented as the thesis on elective Islamic
government. Coming close to this view,
according to Kadivar, is the theory of
Mahdi Hairi-Yazdi, presented in Hekmat
va hokumat (Wisdom and government, published in 1995), which assimilates parliamentary representation to grant of power of attorney by the people as the joint owners of
the country and constitutes Kadivars thesis on representation through deputation
by joint property-owners (velayat-e malekane shakhsi-ye mosha)! Last but not least, we
have the thesis on the elective and conditional mandate of the jurists, which represents the views of Ayatollah Montazeri and of
Shaykh Nematollah Salehi-Najafabadi. This
class of contemporary Islamic constitutionalist writings represents modernist attempts
to create various legal ctions, drawn from
Shiite jurisprudence, for the justication of
a modern Islamic constitutional state. SalehiNajafabadi attempts to reconcile sovereignty
of God with representative government in a
subordinate position through the idea of an Islamic social contract. Though perhaps more
liberal, they have been weaker than Mawdudis
theo-democracy and Asads Islamic state in
their derivation of constitutional principles
from Islam (Akhavi 2007). Hairi-Yazdi comes
a little closer to Western social contract theories on the basis of the implicit recognition of
the natural law in the Quran, buttressed by
ad hoc reinterpretation or extension of categories of joint ownership and legal representation in Islamic jurisprudence. Though recognizably Islamic, it is not deemed convincing
in the derivation of the social contract from
Islam (Akhavi 2007).
Kadivar (1998) took the second and nal step a year later with the publication
of Hokumat-e velai (Mandate-based government), or government based on the absolute
appointive mandate of the jurists. He now offered an explicit critique of Khomeinis theory
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regimes based on the science of jurisprudence suitable for all ages and that the
function of government among the Muslims
is the execution of the commandments of
Islam.
Mojtahed-Shabestaris ideas were very inuential in the reform movement under President Mohammad Khatami (19972005), who
propounded the idea of religious democracy
together with the leading reformist intellectual, Abdol-Karim Sorush. Sorush had denounced the characterization of Islam as an
ideology in the 1990s and moved on to argue that Islam was essentially secular and
consistent with democratic forms of government that a fortiori are also secular. However, as democracy is majoritarian and the majority of Iranians are religious, for Sorush as
for Khatami, democracy in Iran would naturally assume the form of a religious democracy. Sorush (2000a, pp. 215, 220) juxtaposed
this underspecied idea of religious democracy with the view of the ruling clerical elite
as the fascist reading of religion and spoke of
them as the bearers of religious despotism,
afrming that the new generation that has
now arisen in Iran does not see the jewel of
religion in jurisprudence and ideology. Last
but not least, in a major departure from his
earlier purely instrumental, managerial view
of democracy as a rational method of management of society, Sorush (2000a, pp. 37677)
now offers a normative denition of democracy as resting on three pillars: rationality, pluralism, and human rights.
ISLAMIC
CONSTITUTIONALISM
IN EGYPT AND
POSTIDEOLOGICAL
CONSTITUTION-MAKING
IN SUNNI ISLAM
Turning to (Sunni) Islamic constitutionalism
in the Arab Middle East, we nd it inseparable from the organizational and ideological
evolution of the Muslim Brotherhood,
founded by Hasan al-Banna in Egypt in 1928
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Article 2 between 1987 and 1991, in its landmark ruling of May 15, 1993, the SCC basically invested the state with the right to determine compatibility of laws with the sharia.
The most important part of this ruling, however, was declaring Article 2 nonretroactive
and thus preserving the major achievement of
the preideological age, namely the Egyptian
Civil Code, and making it immune to the Islamist onslaught (Mallat 2007, ch. 4). In sharp
contrast to the Iranian Council of Guardians,
which soon degenerated into the gatekeeper
of entry for elected ofces, stopped giving reasons for its legislative vetoes, and thus developed no Islamic constitutional jurisprudence,
the constitutional jurisprudence of the Egyptian SCC has been remarkable. In procedural
and formal terms, its constitutional interpretation of Article 2 over the rst two decades
of its existence amounted to a consistent jurisprudence resting on three principles: the
coherence of the Constitution of 1971 as a
unied organic unit of which Article 2 was
one element, the nonretroactivity of Article
2s requirement of adherence to the sharia
by the legislature, and lastly a distinction between the denite and the indenite norms of
the sharia to be determined by the SCC justices themselves (Brown & Sherif 2004, p. 68).
Furthermore, the SCC sought to institutionalize the principle of public interest (maslaha)
by arguing that the indenite norms of the
sharia can be left to the discretionary power
of the ruler through ijtihad. If the ruler misuses this power or selects an ijtihad that is
not consistent with the public interest . . . , his
legislation becomes a violation with Islamic
sharia (Brown & Sherif 2004, p. 74). The
Egyptian SCCs Article 2 jurisprudence thus
required it to be understood in the context of
other commandments enshrined in the constitution and thus represents the peaceful
integration of Islamic principles in the constitutional order (Brown & Sherif 2004, p. 75).
On the substantive impact of Islamism on
the decisions of the Egyptian SCC, however, the scholarly opinion is divided. Botiveau
(1993) and Brown (1997a; 2002, pp. 18084),
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Because of its religious pluralism, Iraq offered an opportunity, under ideal circumstances, for the liberal updating
of Nainis Shiite constitutionalism of 1909, which is presumably acceptable to Ayatollah Ali al-Sistani.
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Arjomand
Civil Revolution of 1964 set up a law revision committee for the purpose of proposing new laws consistent with our tradition
(in the National Charter as cited in Lut
1967, p. 220), but an Islamic draft constitution was shelved by the coup of 1969 by
Colonel Jafar Numeiri, who advocated socialism at rst but later turned Islamic. In
September 1983, he abruptly imposed the
sharia law over the whole of the Sudan by
presidential decrees in violation of the Addis
Ababa agreement of 1972 that had ended the
civil war with the non-Muslim Southern Sudanese and was entrenched in the permanent
Constitution of 1973. It is important to see
this ideological turnabout in historical perspective. Until Numeiri himself promulgated
a new civil code in 1971 in fulllment of his
earlier commitment to pan-Arabism and socialism, the sharia courts had been functioning for nearly seven decades since the British
Mohammedan Law Courts Ordinance of
1902 and had been procedurally modernized
only two years earlier with the Sharia Courts
Act of 1967 (Khalil 1971). The sharia courts
administered personal status and family law
but did not have and never claimed criminal
jurisdiction. And that was really the point of
Numeiris imposition of the sharia. It wrought
havoc with the Sudanese judiciary system
but satised the Islamists punitive urge by
amputating the limbs of the poor thieves,
some of whom had already served prison sentences, and ogging poor women who had
made their living by selling intoxicating beverages (An-Naim 1990, pp. 21920, n. 91
92). Shortly before being overthrown in April
1985, Numeiri executed Mahmud Muhammad Taha, an advocate of radical reform of Islamic law who had published a short pamphlet
criticizing the Islamicization program on the
charge of apostasy (An-Naim 1985).
In developing Tahas idea of Islamic reformation and his constitutional proposals (AnNaim 1990, pp. 5770, 97100), his student
Abdullahi Ahmad An-Naim (1990, 1996) analyzed the contradictions between the sharia
and modern constitutionalism, human rights,
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CONSTITUTIONAL
TREATMENT OF HUMAN
RIGHTS
Although I have chosen to structure this survey as a case-by-case study of selected countries that have led different trends in Islamic
constitutionalism in different periods, at least
one subject has to be treated thematically
rather than case by case: human rights. Ann
Mayers numerous publications, most generally Islam and Human Rights (1999), offer a
comprehensive treatment of Islam and human
rights. Advocates of Islamic constitutionalism
have typically sought an alternative to universal human rights. The document best embodying this Islamic alternative is the 1990
Cairo Declaration on Human Rights in Islam.
As is to be expected in an imitative document,
much of the legal terminology of the international human rights conventions is swallowed, while quite a number of rights are in
substance nullied. The Cairo Declaration offers no guarantee of religious freedom. It prohibits any form of compulsion or exploitation
of poverty and ignorance to convert anyone to
atheism or a religion other than Islam (Article
10). Article 22 of the Declaration bars the
exploitation or misuse of information in such
a way as may violate sanctities and the dignity
of Prophets, undermine moral and ethical values or disintegrate, corrupt, or harm society
or weaken its faith. It is interesting to note
that, in at contradiction to the historical experience and the public law of virtually all the
signatory countries, Article 19 of the Cairo
Declaration provides that [t]here shall be no
crime or punishment except as provided for in
the Shariah. Article 25 further declares that
the sharia is the only source for explanation
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CONCLUSION
Democracy is a Greek political concept, and
its reception in Christianity and Islam has
varied through different historical eras and
with divisions within each world religion.
Current discussions of Islam and democracy
are usually couched in essentialist terms
and are therefore hopelessly ideological and
ahistorical. What this survey shows is that
the relation between Islam and constitutionalism is variable, as are forms of Islamic
constitutionalism in different historical
periods. There are signicant differences in
the demarcation and overlap of the sacred
and the temporal, the religious and the
political in the two world religions, but
these are translatable to varying inections
of democratic constitutionalism rather than
to their possibility or impossibility. Perhaps
the greatest pertinent difference between
Christianity and Islam is not doctrinal but
institutional. As Weber noted, the canon law
of Western Christendom was unique among
sacred laws in its type of legal rationalization
that was due to the bureaucratic organization
of the Catholic Church, whereas Jewish
and Islamic sacred laws remained jurists
laws (Arjomand 1993b). As a consequence,
constitutionalism in Western Europe did not
clash with canon law but, on the contrary,
had some roots in it. The later reception of
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on the one hand, and the persistence of authoritarian regimes, on the other, cannot be
predicted. What is certain, however, is that in
its latest form it offers a consistent model of
Islamic constitutional democracy that would
allow for the emergence of Islamic democratic parties similar to the Christian democratic parties in Western Europe and elsewhere, and to the Nahdlatul Ulama and the
Muhammadiyya in Indonesia and the Justice
and Development Party currently in power in
Turkey.
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Contents
Annual Review of
Law and Social
Science
Volume 3, 2007
Frontispiece
Kitty Calavita p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p x
Immigration Law, Race, and Identity
Kitty Calavita p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p1
Accountability, Quantication, and Law
Wendy Nelson Espeland and Berit Irene Vannebo p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 21
How Autonomous Is Law?
Christopher Tomlins p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 45
Half Empty, Half Full, or Neither: Law, Inequality, and Social Change
in Capitalist Democracies
Robin Stryker p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 69
The Rule of Law
John K.M. Ohnesorge p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 99
Islamic Constitutionalism
Sad Amir Arjomand p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p115
The Emergence, Content, and Institutionalization of Hate Crime Law:
How a Diverse Policy Community Produced a Modern Legal Fact
Valerie Jenness p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p141
Restorative Justice: What Is It and Does It Work?
Carrie Menkel-Meadow p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p161
Law and Collective Memory
Joachim J. Savelsberg and Ryan D. King p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p189
Law and Lawyers Preparing the Holocaust
Michael Stolleis p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p213
The Death of Socialist Law?
Inga Markovits p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p233
Legal Innovation and the Control of Gang Behavior
Eva Rosen and Sudhir Venkatesh p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p255
v
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vi
Contents