Journal articles on the topic 'Insurance law (Islamic law) – South Africa'

Muslims have been living in South Africa for over 300 years. There are over 750 000 Muslims living in South Africa today. These persons constitute a minority religious group in a non-Muslim country. Muslims are required in terms of their religion to follow Islamic law. There has (to date) been no legislation enacted by the South African parliament that gives effect to Islamic law. South African Muslims can however make use of existing South African law provisions in order to apply certain Islamic laws within the South African context. This article looks at the practical application of the Islamic law of succession and administration of estates within the South African context by way of a fictitious scenario. It highlights some of the problem areas when a Muslim testator or testatrix bequeaths his or her estate in terms of Islamic law by means of a will (Islamic will).

On a daily basis people enquire about the dissolution of Islamic marriages, in terms of South African law In South Africa. There exist no legal grounds for obtaining a divorce in a South African court, for persons married in terms of the Islamic law only. The reason for this is due to the fact that Muslim marriages are currently not recognised as valid marriages in terms of South African law. The courts have stated that the non-recognition of Islamic marriages is based on the fact that such marriages are potentially polygamous.In South Africa, marriages may be dissolved by the death of one of the spouses or by divorce. In terms of the Divorce Act, a decree of divorce will be granted by a court of law. Islam grants the husband the right of divorce and also grants the wife the right to request and apply to dissolve the marriage through what is known as Khula, the woman also has the right to a delegated divorce. If the husband dissolves the marriage by divorcing his wife, he cannot retrieve any of the gifts he has given her. Islam further makes provision for the "reasonable maintenance" of divorced women. The non-recognition of Islamic marriages has the effect that a person married in terms of Shari'ah only, has no right to approach a court of law for a decree of divorce and, unless a husband divorces his wife in terms of the Shari'ah, the wife is trapped in a marriage, even if the marriage has broken down irretrievably. Thus a custom in South Africa has developed, whereby Muslim husbands refuse to divorce their wives in terms of Islamic law, so as to punish the wife. The wife in turn cannot make use of the South African judiciary to obtain a divorce, because of the non-recognition of her marriage. This is a burden, which is in direct conflict with Islamic law. In 2000 a Bill was drafted by the South African Law Commission. This act will recognise Islamic family law within a constitutional framework. This article deals with the dilemma that a Muslim woman is faced with in South Africa with regards to divorce.

This article investigates how the Islamic law of succession and administration of estates is applied in Singapore and South Africa with regard to the “Islamic will”. This kind of will includes a provision where the testator or testatrix states that his or her estate must be distributed in terms of the Islamic law of succession. This requires an Islamic law expert or an Islamic organisation to draft an Islamic distribution certificate stating who the beneficiaries of the person are. The distribution certificate is drafted after the testator or testatrix has died. An Islamic distribution certificate within the Singaporean context is specifically compared with one in the South African context. This article looks at whether features found in the Singaporean model can be applied to the South African context. An overview of the Muslim population in Singapore and South Africa is presented by way of introduction. This is followed by an examination of the constitutional and international obligations of the two countries in light of their equality provisions, and a comparative analysis of the Islamic law of succession and administration of estates in the two countries. The focus areas looked at are liability claims, testate succession claims and intestate succession claims. A brief analysis of the findings and concluding remarks are made at the end of the article.

On 22 May 2015, the Supreme Court of Appeal (“SCA”) handed down a judgment in the matter of Lodhi 5 Properties Investments Cc v Firstrand Bank Limited [2015] 3 All SA 32 (SCA). This judgement considered whether the prohibition against the charging of interest on loan in terms of Islamic law (Shariah law) may be a defence for a claim for mora interest in term of a loan agreement. This note critically discusses the judgement in light of the approach adopted by the SCA with regard to addressing dispute arising from a contract that has Islamic law as a governing law. As this is the first case that came before the SCA in South Africa, this note critically analyses how this court discussed the applicable principles of Islamic law as applicable to the dispute between the parties. In particular, it questions the court’s assertion that a claim for mora interest has nothing to do with and is not affected by the Shariah law's prohibition against payment of interest on a loan debt. It also looks at the SCA’s approach (as a common law court) with regard to the enforcement of Islamic banking law principles. This judgement raises important issues regarding the enforceability of Islamic finance law and therefore merits discussion, in light of the continuing growth and expansion of Islamic banking and finance law in South Africa.

Purpose The purpose of this study is to understand the economic substance of Islamic banking transactions in South Africa and to analyse whether the economic substance is closely related to the legal form. Additionally, this study highlights the similarities and differences in the execution of Islamic banking transactions across different South African banks. The transactions analysed are deposit products of qard and Mudarabah and financing products of Murabaha, Ijarah and diminishing Musharaka. Design/methodology/approach The study was conducted through interviews with representatives from each of the four South African banks that offers Islamic banking products. Interviews were semi-structured and allowed interviewees to voice their perspectives, increasing the validity of the interviews. Findings The study found that specific Shariah requirements of Islamic banking transactions are considered and included in the legal structure of the contracts by all four banks offering Islamic banking products. However, the economic reality of these transactions was often significantly different from its legal form and was found to, economically, replicate conventional banking transactions. The study also found that all four banks offer Islamic banking products under the same Shariah principles, but in some instances (e.g. diminishing Musharaka), execute these transactions in different ways. This study is the first of its kind in South Africa. Research limitations/implications While safeguards have been used to ensure the reliability and validity of the research, there remain a few inherent limitations which should be noted: interviewees, while chosen for their expertise and level of knowledge, may provide highly technical insight which may be difficult to interpret. Detailed technicalities were therefore excluded from this research. The regulatory environment of banks in South Africa, for example, regulation imposed by the Financial Service Board on all financial institutions in South Africa, has not been explored. However, the regulatory environment was brought to the readers’ attention to help illustrate certain themes. This research uses only Shariah requirements as detailed in Section 2.2 to analyse transactions. Fatwas (rulings) issued by the Shariah Boards of South African Islamic banks have not been included in this study and may be an area of future research. Originality/value This study is the first of its kind in South Africa. The study adds to the Islamic banking literature by analysing the real execution of Islamic banking transactions rather than the theoretical compliance with Shariah law.

This research addresses a gap in the literature on responsible investing (RI) in South Africa by studying the risk-adjusted performance of RI unit trusts available to retail investors. The Sharpe, Sortino and Upside-potential ratios for 16 RI unit trusts, their benchmarks and a matched sample of conventional unit trusts were calculated for the period 1 June 1992 – 31 August 2011. Most of the RI unit trusts in South Africa use exclusionary screens based on Shari’ah (Islamic) law with the remaining funds focusing on social issues, such as labour relations and social development. The total expense ratios of RI unit trusts are slightly higher than those of conventional funds, but no different from that of their benchmarks or a matched sample of conventional unit trusts. It is suggested that local assets managers expand the range of retail RI unit trusts available in the country.

Insurance industries worldwide currently face disruption in many forms. Technology and artificial intelligence are changing the way we know and transact insurance. One way that technology is impacting insurance is through the use of robo-advisors. Robo-advisors provide automated advice to customers based on algorithms built into the software. This means that many people can now access insurance products at the click of a button. The previous dominant role of intermediaries and advisors in the insurance industry are not as significant in the procuring of insurance products as they used to be. Robo-advisors are able to provide on-demand advice at a lower price and with greater efficacy than their human counterpart. Many industry professionals welcome this change but there is a fear that the technology may render humans obsolete. The current regulatory framework in South Africa is relatively open to the use of automated advice and the future regulations appear to be pro-technology and innovation. This should allow for substantial growth in the insurance industry. Robo-advising should, therefore, play a more active role in procuring insurance products and maintaining these products. In terms of the current regulatory framework in South African insurance law, the question arises as to whether the regulatory framework accommodates the use of robo-advisors.

AbstractIncreasing climate variability increases the risks in production and prices of agricultural products. Inarguably, Africa's susceptibility to climate change is high because it hosts the majority of the world's poor who cannot afford the costs of coping mechanisms. Agricultural insurance is being largely put forward as a coping measure of adapting to climate change to sustain farm production and farmers' livelihood. The study critically reviewed numerous publications on climate change impacts and the role of insurance in the adaptation process. It examined the effects of varying weather conditions and insurance on net crop revenue using the instrumental variable regression approach on a Ricardian model. The study further identified factors influencing the purchase of insurance among the farmers with a probit model. The study data were collected from a cross section of farmers in three selected provinces of South Africa. Results of data analysis indicated that owning insurance, number of labourers employed, size of irrigated farmland and rainfall have significant effects on net revenue. It was also revealed that experience, indicated by years of farming and revenue, influenced farmers' adoption of insurance. Consequently, the paper advocates for the provision of efficient irrigation facilities and promotion of insurance among farmers.

The International Institute of Islamic Thought (IIIT) held a series of panels atthe 41st annual convention of the Islamic Circle of North America (ICNA) inBaltimore, MD, on Sunday, May 29, 2016.The first panel, “Maqāṣid al-Sharī‘ah as a Philosophy of Islamic Law,”featured Jasser Auda (Al-Shatibi Chair of Maqasid Studies, the InternationalPeace College, South Africa) and Ebrahim Rasool (Distinguished Scholar inResidence at Georgetown University’s Edmund A. Walsh School for ForeignService and former ambassador of South Africa to the U.S.), with ErminSinanović (director, Research and Academic Programs, IIIT) as moderator.Sinanović began by introducing IIIT to the diverse audience. He explainedthat the institute is devoted to the revival of Islamic traditions and the reformof Muslim societies. In addition to affirming that our sources and principlesare unchangeable, he positioned IIIT as the institution dedicated to making our intellectual legacy the core of the solution to our current malaise, for it is the“answer to the crisis of the ummah,” a crisis that is largely intellectual in nature:our inability to translate our eternal message as per our time and space ...

First National Bank of Southern Africa v Perry, Nissan South Africa v Marnitz NO and Absa Bank v Lombard Insurance, as well as Trustees, Estate Whitehead v Dumas and Absa Bank v Moore, together amount to a concerted attempt on the part of South African courts to provide victims of the theft of incorporeal money with adequate redress. However, it has proved difficult to find a satisfactory juristic explanation for this series of decisions. This chapter shows that a model organised around the extension of the vindicatio to incorporeal money is unworkable. Instead, having considered briefly a second possibility, namely, the English constructive trust, this chapter advances an analysis of the plaintiff’s claim to the stolen money solely in terms of the non-consensual enrichment (that is, enrichment other than by deliberate conferral) of the defendant at their expense. Apart from its superior explanatory power, such an approach offers a blueprint for future development, insofar as it opens the way to the recognition of a secured claim where the proceeds of stolen money have been used to discharge the thief ’s pre-existing secured debts: the doctrine of subrogation to extinguished rights. This chapter closes by considering the implications of these conclusions for wider debates about the proper size and shape of the law of unjust enrichment.

In October 2002 I was lucky enough to spend three stimulating days at the New York University Law School Library participating in the annual Legal Information Transfer Network workshop. The Legal Information Transfer Network (ITN) is funded by a generous grant from The Starr Foundation (established in 1955 by insurance entrepreneur Cornelius Van der Starr) and is headed by the dynamic Director of the NYU Law School Library, Professor Kathie Price. ITN aims to establish a global network of prestigious law libraries which ultimately can offer a 24/7 virtual reference service, both to its own partner libraries in the developed world and to academic legal communities in less developed countries. Previous annual workshops in such cities as Lausanne in Switzerland have given senior librarians from ITN partner libraries the opportunity to meet and make progress on issues such as providing a global virtual reference desk, sharing database access across the libraries, developing interactive legal research guides, and creating imaginative training programmes for local law librarians in China and Southern Africa (http://www.law.nyu.edu/library/itn). Between workshops the exchange of ideas is continued by email discussion. Currently the list of law library partners includes New York University, Washington University in Seattle, Toronto University in Canada, IALS Library in the UK, the Catholic University of Leuven in Belgium, Tilburg University in the Netherlands, Konstanz University in Germany, Cape Town University in South Africa, Melbourne University in Australia, Yerevan State University in Armenia, and Tsinghua University in China.

It is not always clear, through policies or law, where and when family responsibility ends. This article outlines the tensions that underlie policy and legal conceptions of obligation and everyday obligations that shape typically gendered patterns of care in families in South Africa. An examination of court cases reveals that the court found practices of intergenerational financial support amongst diffuse kin relations and ruled that the social insurance system (Road Accident Fund) was obliged to continue these following the death of a breadwinner in a road accident. The Road Accident Fund contested this responsibility by disputing the legal obligation of the deceased to support the kin member. The cases highlight the lack of coherence in policy and law concerning the agreed social norms about the family. On the one hand, the RAF’s approach reproduces the gendered assumption of care, i.e. the role of the state is reduced, and the onus is placed on working class black South African women to take care of themselves and their families. On the other hand, the judiciary’s focus on social practices of care rather than rights is applauded for being transformative. I argue that the state’s ambiguous approach to recognising committed care work results in a situation where people have to ‘win’ their case in court and consequently leaves the care of family members to the unpaid and paid resources of women.

Transparency in insurance law attaches to the rights and duties of the parties, the relationships between insurers, insurance intermediaries such as agents and brokers, insurance supervisory law and insurance dispute resolution procedures. Regarding the rights and duties of the insurer and the prospective policyholder, it requires insurers to disclose precontractual information in a timely manner that is clear, understandable, legible and unambiguous. Transparency as a value is incredibly important in insurance contracts. This contribution focuses exclusively on the insurer's duty of disclosure during precontractual negotiations. Although the insured's duty of disclosure has enjoyed more attention in the past, the duty clearly applies to the insurance proposer as well as the insurer. The purpose of this contribution is to evaluate the nature and extent of the insurer's transparency duties as informed by both common and statutory laws.The insurer's duty is derived primarily from the statutory rights of access to information in accordance with the provisions of the Constitution of the Republic of South Africa and the Promotion of Access to Information Act. It is furthermore supported by specific insurance consumer protection law found in the detailed provisions on mandatory disclosures in the Financial Advisory and Intermediary Services Act, the Long-term Insurance Act, the Short-term Insurance Act and, finally, the Policyholder Protection Rules issued in accordance with these acts. Strict rules on advertising can be found in the General Code of Conduct issued under the FAIS Act.The Act furthermore specifically targets the activities of insurance intermediaries in precontractual disclosures. The fact that insurance products and services have been exempted from the scope of the Consumer Protection Act from 28 February 2014 should not diminish the insured's right to rely on universal consumer protection principles as envisaged by South African insurance legislation. The insurer's duty to disclose is in the last instance also derived from the common law duty not to make misrepresentations by commission or omission. When negotiating an insurance contract, the insurer's duty to speak is not based on a general requirement of bona fides, but is recognised as an ex lege duty due to the involuntary reliance of the prospective insured on information supplied by insurers in the market. A lack of transparency should lead to the insurer's accountability. A failure to disclose material information or a disclosure of false information that goes to the root of the matter and that induces the prospective policyholder to buy the insurance product is recognised as an actionable misrepresentation. Statutory provisions do not diminish the common-law duty not to make misrepresentations, but provide details of the nature and extent of the information duty to provide clarity and legal certainty in the determination of the standards of transparency required in law. In addition, statutes provide for enforcement actions by regulators, orders that could affect the licence of the insurer and provide for punishable offences and penalties. In terms of common law, a misrepresentation by omission or commission renders the insurance contract wholly or in part voidable. The policyholder may decide to rescind the contract and claim restitution. He may also, in conjunction with rescission, or as an alternative when deciding to maintain the contract, claim delictual damages or even constitutional damages when judged by a court of law as appropriate relief. Statutory remedies include a monetary award by the Insurance Ombud. Even though such an award is capped at R800 000, it is submitted that it is preferred to a civil law damages claim.

This article is an analysis of the development of halal consumption in South Africa. Research on the contemporary consumption of halal has argued for an articulation of Muslim identity in a variety of settings. What evades these scholarly analyses is the production of halal as a commodity. How is it that halal consumption, as defined by Islamic dietary law, has been produced into a separately identifiable product? This paper argues that in South Africa the production of certified halal has been produced through an extensive campaign that identified the power of the Muslim consumer, consumption as an Islamic imperative, and the contemporary risks to halal presented by food technology and cross-contamination. Communicating with the Muslim consumer and identifying risks to halal consumption established a particular form of halal-certification expertise. The result was an increase in the visibility of halal and the establishment of halal-certification organizations as necessary intermediaries for the proper practice of halal. In the process taqwa was recalibrated to mean vigilance against uncertified consumption as the inspection of a halal label was introduced into the determination of halal.

Abstract This article focuses on adjudication of Muslim family law in countries that range from the Middle East and North Africa to South-East Asia. It begins by shortly summarizing the development of shari‘a in pre-modern times, up until the 19th century. We discuss the basic features of marriage among classical jurists and argue that the close connection known today between the family and Islamic law can be traced to the emergence of modern nation states and centralizing state structures. We then provide a description of important personal status reforms during the 20th and 21st centuries and consider the growing body of scholarship that engages with adjudication of Muslim family law in action and in context. Finally, we consider the contribution that the articles contained in the special double issue make to the field of research, including the questions of gender and judicial authority, religion-based judicial activism, and the courts’ involvement in larger socio-political processes.

This conference was convened by J. H. Dreyer of the Department ofSemitic Studies at the University of South Africa, Pretoria, South Africa, andthe Department of Religious Studies, University of Cape Town, Cape Town,South Africa. It was preceded by a banquet, during which the Islamic Studiesprogram of the Department of Religious Studies was introduced to the peopleof Cape Town. Approximately 250 invited guests attended the conference,which was well received by local Muslims and set the parameters for ahealthy relationship between the department and the Muslim community.The conference was attended by a fluctuating audience of eighty to 150individuals from the University of Cape Town and various Muslim communities.This provided an ideal opportunity for the emergence of a varietyof lively and critical ideas. Issues affecting Muslims living in South Africaalso generated a lot of discussion.The keynote guest speaker was Richard Martin, Arizona State University,Tucson, Arizona. The rest of the papers were presented by scholars fromSouth African universities who have been involved in the study of Islam andArabic. The following broad areas were covered: early Islamic history;Qur'anic hermeneutics in traditional and modem scholarship; revivalism;Islam in South Africa; and Muslim personal law in South Africa.The first session dealt with early Islam and featured two presentations.The first, Martin's paper on "Public Theology in Medieval Islam: The Roleof Kalam in Conflict Definition and Resolution," set the pace with aninteresting and innovative approach to the study of early theological disputes.In addition, he presented kalam disputes to illustrate how modem discussionsand debates on fundamentalism have produced a kind of public theologyinvolving both the media and academia in North America. He was followedby Abdul Kader I. Tayob, University of Cape Town, who dealt with themeaning and significance of the masjid as a sacred space as reflected in theQur'an and si'rah literature of the thirteenth hijri century.Two papers on Qur'anic hermeneutics made up the second session. A. K. ...

This article approaches the position of the call to prayer (adhan or azan) in South Africa from the perspective of both legislation and case law. Although only an unamplified adhan has religious status in Islam, Muslim religious authorities (ulama) have since the twentieth century also approved of, and permitted, an amplified adhan. The adhan has been rendered in both forms from South African mosques (masjids) for some 223 years. However, the unamplified adhan has recently come under the legal and judicial spotlight when the volume of its rendering by human voice was restricted. In August 2020, after prior attempts at municipal level and mediation had been unsuccessful, a high court in KwaZulu-Natal, South Africa, ruled that the sound of the unamplified adhan emanating from a mosque located on the premises of an Islamic institution (madrassa) in the city of Durban should not be audible within the house situated on nearby property belonging to a Hindu neighbor. Wide media coverage reported that the ruling was publicly decried and met with criticism. The Madrassa lodged an appeal in September 2020 and the matter is ongoing. The High Court’s decision is binding in KwaZulu-Natal, a province where Hindus, as a religious minority, are concentrated. The article highlights that although the decision is not binding on similar courts in other provinces, its outcome may yet have far-reaching consequences for the adhan as a religious and cultural heritage symbol, and for religious symbols generally, because similar complaints have been lodged, albeit against amplified adhans, against several mosques located in major cities (Cape Town and Tshwane) of two other provinces where Muslims, as a religious minority, are largely concentrated. The article examines the adhan in the context of competing constitutional rights to religious freedom and property (neighbor law) in South Africa. The article proffers some recommendations for the way forward in South Africa based in some instances on the position of the adhan in several countries. It concludes that, ultimately, unamplified, unduly amplified and duly amplified adhans may all yet be found to constitute a noise nuisance in South Africa, if challenged and found to be unreasonable.

In contemporary times, the relationship between Islam and democracy –democracy and its Islamic heritage and the process of democratization inMuslim societies, and other related themes – is a hotly debated and discussedtopic. Throughout the Muslim world – from South, Southeast and CentralAsia to Middle East and North Africa – Muslim thinkers have undertakenthe effort of working within and cooperating with existing political regimesand authorities ‒ from republics, monarchies and authoritarian dictatorshipsto pluralistic and relativity homogeneous societies. With the desirefor democratization, along with the continuing resurgence of Islam in a dynamicglobal context, the demand and desire for democracy is widespread.Two of the major developments in the final decades of the twentiethcentury to present are “religious resurgence” and “democratization.” Thedebate over democracy and democratization in the Muslim societies, itsdefinition and fundamentals, has continued for a long time, but, as it hasacquired an impetus in recent years, and this debate has become highlyintensified.The Muslim world at present is the most diverse in the forms of the politicalsystems it employs. It has traditional and constitutional monarchies,dictatorships, Islamic republics, and secular and some liberal democracies‒ and due to the diverse interpretations of its laws and sources of law, Islampossesses intellectual and ideological resources that can provide justificationfor a wide range of governing models from monarchy to democracy ...

Weather extremes pose substantial threats to food security in areas where the main source of livelihood is rain-fed crop production. In most of these areas, agricultural index insurance (AII) is recognized as being capable of securitizing food production by providing safety nets against weather-induced crop losses. Unfortunately, however, AII does not indemnify farmers for non-weather-related crop losses. This study investigates how this gap can be filled by exploring strategies through which AII can be linked with non-weather factors that influence crop production. We do this by using an improvised variable ranking methodology to identify these factors in the O.R. Tambo District Municipality, South Africa. Results show that key agrometeorological variables comprising surface moisture content, growing degree-days, and precipitation influence maize yield even under optimal weather conditions, while seed variety, fertilizer application rate, soil pH, and ownership of machinery play an equally important role. This finding is important because it demonstrates that although AII focuses more on weather elements, there are non-weather variables that may expose farmers to production risk even under optimal weather conditions. As such, linking AII with critical non-weather, yield-determining factors can be a better risk management strategy.

EditorialThis voluminous issue consists of 13 articles and 8 notes dealing with various legal topics in South Africa and abroad. The articles commences with Ig Rautenbach’s discussion of the ever-elusive concept of proportionality in the light of the text of the South African Constitution. Mmaphuti Tuba analyses the different approaches adopted for the regulation of payment systems in a variety of legislative instruments by the European Union. Phoebe Boltondeals with the thorny issue of public tenders and the extent to which bidders must comply with tender specifications and conditions. Leentjie de Jong examines present-day family arbitration and the problems experienced with it. Daleen Millard and Birgit Kuschke evaluate the insurer’s pre-contractual duties in the light of the transparency principle in insurance law. Karin Calitz deals with the question if a church can be held liable for the sexual assault of children by a priest, when the victims claim as adults, many years after the events took place. The entitlement of a non-member spouse to the member’s pension forms the focus point of Clement Marumoagae’scontribution. Mitzi Wiese reflects on the correctness of the classification of liens into enrichment and contractual liens. Frans Viljoen and Nicholas Orago analyses the importance and implications of the individual communications procedure under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) and details some of the reasons why it would be beneficial for South Africa to accede thereto. The interplay between international law and labour law in South Africa in the context of diplomatic immunity is investigated byEzette Gericke. Cornelius Kilian and Elizabeth Snyman-Van Deventer consider section 75 in the Companies Act of 1973 (or its equivalent, section 36(2) in the Companies Act of 2008) and the topic of statutory approval for an artificial decrease or increase in the number of issued shares. Annelie Laas and Trynie Boezaart give a critical analysis of the legal measures available to curb bullying in schools. Further afield, Mtendeweka Mhango discusses the development and current status of the political question doctrine in Ghana.The first note by Roger Evans and Lienne Steyn deliberate on the seemingly contradictory outcomes of three high court judgments regarding the question of ownership of property which vests in the master of the high court by virtue of the Insolvency Act 24 of 1936. Philip Stevens also discusses recent judgments pronouncing on the entering of the particulars of child sex offenders into the register for sex offenders as enunciated in Chapter 6 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. Sieg Eiselen illustrates how the Department of Trade and Industry’s proposed amendment to the definition of “electronic signature” would undermine the key principles of functional equivalence, media neutrality and party autonomy. Luanda Hawthorne deliberates on the element of exploitation in bargaining relationships between contractual parties, as highlighted in Uniting Reformed Church, De Doorns v President of the Republic of South Africa 2013 5 SA 205 (WCC). Anneliese Roos and Magda Slabbert discuss the case of Isparta v Richter 2013 6 SA 4529 (GP), which dealt with defamation in the social media on the Facebook platform. Rowena Bernard considers the case of Department of Correctional Services v Police and Prison Civil Rights Union (POPCRU) 2011 32 ILJ 2629 (LAC), where the employer's application of rules relating to the dress code of employees impacted on the religious beliefs and practices of five of the staff members. Nico Buitendag and Karin van Marle reflect on Afriforum v Malema 2011 6 SA 240 (EqC), which drew considerable attention in the media and in the public discourse. In the last contribution, James Linscott analyses F v Minister of Safety and Security 2012 1 SA 536 (CC), which dealt with the “standard” test for vicarious liability.EditorChrista Rautenbach

Purpose This paper aims to investigate the compliance of Islamic banks (IBs) with the AAOIFI standard No. 7, in Middle East and North Africa area during the period 2010-2014. The authors seek to identify, among the 15 countries and 72 banks, those which conform more to this standard. The level of compliance is expected to be more stringent in countries where AAOIFI standards are made mandatory. Design/methodology/approach The paper uses the unweighted disclosure method which measures the corporate social report disclosure (CSRD) score of a bank as additive. Each country and bank are assessed according to two obligatory and voluntary CSRDs. Findings The empirical results indicate that even though the global disclosure index has been improved over the observation period, it has remained relatively low. The results also allowed us to see that the global, mandatory and voluntary societal disclosures vary according to the country and banks. Further, it has been seen that banks allow more attention to the mandatory disclosure recommendations of AAOIFI Governance Standard No. 7, in comparison with the voluntary CSRD. Research limitations/implications One limitation of this study is that the sample is restricted to only the Islamic banking sector. Future research could include other Islamic financial institutions (IFIs) such as insurance companies. Second, the study could be extended to other countries to better control the religious system and cultural effects. Because in our modern era, traditional laws in the Muslim world have been widely replaced by statutes inspired by European models, the authors suggest then to apply a new classification that separates, for instance, countries that rely on an Islamic model from those with a western model, and national banks from those allied with western banks. Finally, the paper’s data collection relies solely on annual reports and does not include publications from bank sites. Future research could consider all these limitations. Another possible avenue could examine the determinants of such disclosure level. Practical implications Almost no study has been limited to the text of the AOIFFI. This detail is important for some countries where the AAOIFI standards are mandatory. Social implications The findings may be of interest to shareholders and all those who deal with IBs that have religious expectations. Originality/value Despite the fact that most studies investigated compliance of IB Sharia law, almost no study has been limited to the text of the AOIFFI. This detail is important for some countries where the AAOIFI standards are mandatory. The findings may be of interest to shareholders and all those who deal with IBs that have religious expectations.

The first issue of 2013 contains fifteen contributions dealing with a potpourri of themes. The first contribution is an oratio presented by the retired Dean of the Faculty of Law of the NWU and former editor of PER, Francois Venter, during his exodus in October 2012. He gave his presentation in his mother tongue, Afrikaans, and asks the question if one may assume that being a professor entails belonging to a profession, in other words, an academic profession. The second oratio was a keynote speech delivered by Torsten Stein, the Director of the Institute of European Studies and holder of the chair for European law and European Public Law at Saarland University, Germany. He delivered his speech during November 2012 at the 3rdHuman Rights Indaba on The Role of International Law in Understanding and Applying the Socio-economic Rights in South Africa's Bill of Rights, which was held by the Faculty of Law (NWU, Potchefstroom Campus) in collaboration with the Konrad-Adenauer Foundation. He shared some thoughts about the nature, development and implementation of socio-economic rights within an international and European setting. The next nine articles make up the bulk of this issue. The first one is by Babatunde Fagbayibo, who gives an analytical overview of the common problems affecting supranational attempts in Africa. He argues that Africa's efforts to solidify its unity should be geared towards building on the experiences of past and present experiments at the sub-regional level. Samantha Goosen discusses the very thorny issue of battered women and the elements of self-defence if she has to stand trial for killing her husband. Recent developments in the area of pro bono legal services are the heart of Dave Holness' article. He focuses on legal service delivery for the indigent by attorneys in private practice acting pro bono in civil rather than criminal matters. Henk Kloppers discusses the very topical issue of corporate social responsibility. He gives an overview of the social and ethics committee created in terms of the Companies Act 71 of 2008 as a potential driver of corporate social responsibility. The always newsworthy theme of HIV/AIDS and the question of whether to disclose or not to disclose one's status forms the focal point of Andra le Roux-Kemp's contribution. Chucks Okpaluba gives an overview of South African and Commonwealth decisions dealing with the issue of reasonable and probable cause in the law of malicious prosecution. The never-ending problem of language diversity once again comes to the fore in the article by Loot Pretorius. He asks the question if the recently adopted Use of Official Languages Act 12 of 2012 complies with the normative instructions of the Constitution of the Republic of South Africa, 1996. In his second essay on the Child Justice Act 75 of 2008, Stephan Terblanche deals with a number of procedural issues related to the sentencing of child offenders. The last article, which is by Bonnie Venter, deals with the ethical question of whether the payment of kidney donors could be regarded as constitutionally acceptable or not. In the first of five notes, Nqobizwe Ngema asks if the African custom of theleka (the withholding of a wife by her father or guardian from her husband to coerce him to pay the outstanding lobolo) has an impact on the custody of children in the context of the best interest of the child. The central question Phazha Ngandwe asks is how states can discharge their duties and obligations vis-à-vis their nationals without perpetuating the bottlenecks to and the stigma that attaches to migration and thereby upsetting the international and regional integration objectives of the free movement of people. Mzukisi Njotini's note discusses the adequacy of South Africa's measures designed to protect critical information infrastructures. In the second last note, Anthea Wagener considers the practice of South African motor-vehicle insurers of using gender as a rating variable to classify risks into certain classes, thereby determining insurance premiums, and asks if this practice boils down to unfair discrimination. The final note by Anri Botes deals with the history of labour hire in our neighbouring country, Namibia.

Comprising 57 member states, the Organization for Islamic Cooperation (OIC) is the second largest intergovernmental organization in the world after the United Nations. Its membership extends from Southeast Asia, South Asia and the Middle East to Africa, Eurasia, the Balkans and South America.In 2005, OIC launched a reform program that culminated in adopting a revised Charter in 2008 replacing the Charter of 1972. The new Charter seemed to reflect an increased prominence for human rights within the OIC, and it paved the way for the establishment of the OIC’s Independent Permanent Human Rights Commission (IPHRC). In addition to the stipulation that IPHRC will be one of the eleven primary organs of the OIC, the new Charter expresses the OIC’s determination to “promote human rights and fundamental freedoms, good governance, rule of law, democracy and accountability”, and “safeguard and promote the rights of women and their participation in all spheres of life” in member States in accordance with domestic legislation. In addition to these transformations, OIC appear to be more willing to engage with civil society organizations on human rights. It is in this context, and the increasing need to understand the OIC, particularly its human rights mechanisms and discourse, this paper tries to have a general analysis on subject.It should be noted that for some researchers (Mayer.2015) the OIC’s record is shown to be full of confusing and even self-contradictory statements on Islam and human rights. For them, OIC is not a competent organization for promoting the Human Rights as a universal value.As our major question, the paper seeks to evaluate the index growth of human rights and their criteria in OIC. Which are the main instruments for protection of Human Rights in OIC? Has OIC been successful in promotion of Human rights in the Member States and in the world?To carry out the research, a descriptive and analytical method is selected and based on OIC documents, it will be a documented analysis.

Among issues of the US-Africa summit in August 2014 the problem of religious extremism in Africa was most important. In that context Nigerian Islamist group Boko Haram plays a significant role. Kidnapping by Boko Haram militants of about 200 schoolgirls in April 2014 added oil to the fire. This action increased the fears of international community about possible linkage between Boko Haram and foreign Al Qaeda-like terrorist organizations. Initially, the group emerged as a local movement of devout Muslims in Northern Nigeria. But eventually it became a very radical militant Salafi-Jihadist group with ambitious goal to build an Islamic state in Nigeria. As is well-known, Nigerian population is divided not only into relatively rich South and poor North, but also into Christian and Muslim communities. As a result of sectarian clashes in Nigeria, thousands people lost their lives. The sectarian violence in this country is connected in part with the Islamist revolt of 1999 (“Sharia conflict”), after adoption of Sharia law in several Northern Nigerian states. Ethnic-religious violence in Nigeria is connected in particular with the British colonial heritage, but also with current serious social-economic problems (including the unemployment, corruption, cruelty of security services, unbalanced national economy etc.). From some point of view Nigeria may be considered even as a “failed state” because its federal government cannot control the whole territory of the country. While some southern regions are under control of the Movement for the Emancipation of the Niger Delta militants, some areas in northern states are controlled by Islamists of Boko Haram and other radical groups. It's possible to say that Boko Haram has created its own “state within the state”. Boko Haram's ideology is anti-Western and anti-secular. It supports the revival of “pure” Islamic traditional values. Denying any inter-communion with the Western world, above all, the group claims against corrupted – from its point of view – Nigerian authorities and Muslim establishment (local version of the Islamist "Close Enemy"). An issue of the Boko Haram's engagement to global Jihadist movement is rather unclear. On one hand, ideologically, the group is very close to other Islamist groups (e.g. Al Qaeda and its branches in Maghreb, Somalia and Arabic Peninsula). But on the other hand, Boko Haram prefers to act against domestic (Nigerian) targets with very rare exclusions (for instance, an explosion of UN building in the capital-city Abuja). It must be clear that some attempts to find links between Boko Haram and Al Qaeda's network reflect the interest of Nigeria's authority to win international support for its struggle against local Islamist radicals. But it is impossible to ignore the information about logistical and operational links between Nigerian militants and such terrorist organizations as “Al Qaeda in Islamic Maghreb” or Somalian “Al Shaabab” (not to speak of common ideological agenda). It is necessary to point out that factional splits inside of Boko Haram (e.g. the emergence of the militant group “Ansaru”) make the picture more complex. Actually, the Boko Haram constitutes a danger primarily for Nigeria and potentially for neighboring countries. But considering the current evolution of the group, there is a great danger of further radicalization and internationalization of its activities both at local and regional (and maybe global) levels.

This article focuses on the controversial issue of apostasy pertaining to the alleged family of Shaykh Yusuf of Makassar, the Indonesian pioneer of Islam in colonial South Africa, after his demise at the Cape in the late 17th century during a period of Dutch occupation of both countries. It is reported in local and international historical and scholarly sources that the second generation grandchildren of this political exile and learned Islamic scholar converted from Islam to Christianity at the Cape and thereafter entered into marriages with Christian spouses. Their mother is alleged to have been the Shaykh’s daughter, Zytie Sara Marouff (alias Care Sale), and their father, the Rajah or King of Tambora (alias Abulbasi Sultan), a fellow exiled countryman. The marriage between the Rajah and Zytie is alleged to have taken place shortly after his arrival at the Cape in 1698 but before the death of Shaykh Yusuf in 1699. The conversions are recorded to have taken place within two decades of the Shaykh’s death and shortly after the death of their father, the Rajah, in 1719; both averted death sentences but died during exile at the Cape. The main aim of this article is to critically analyse these sources, which contain both conflicting information, and whose authors express ambivalent views, in an attempt to unravel the mystery surrounding their conversion and the marriage of their parents. Although some local Muslim religious authorities (ulama) at the Cape are aware of these conversions, many are not. In fact, these conversions were overlooked in a publication on the very topic. Local Muslims have therefore not been fully apprised by them of this aspect of their history because the topic is understandably also a sensitive one. The aim of this article is therefore not to dispute these facts or even that these conversions may have been a voluntary exercise and a consequence of freedom of choice. Although an analysis of some of the policies of the then Dutch colonial government which were enforced at the Cape (for example, those pertaining to interracial and interreligious marriages amidst limited religious freedom) are referred to, this article highlights that socio-economic reasons (poverty) and practical expediency (marriage) may indeed have precipitated such conversions. A detailed critical analysis, including of the Islamic law (Shari’a) pertaining to freedom of religion and apostasy, is unfortunately beyond the scope of this article due to space constraints. [Artikel ini membahas kontroversi pindah agama pada keluarga Syekh Yusus Makassar selepas diasingkan di Afrika Selatan pada masa kolonial Belanda akhir abad 17. Menurut sumber lokal dan tulisan sarjana internasional menyatakan bahwa generasi kedua keturunan Syekh Yusuf telah memeluk Kristen serta menikah dengan pasangan Kristen. Cucu yang dimaksud adalah anak dari putri Syekh Yusuf, Zytie Sara Marouff, yang menikah dengan Raja Tambora yang juga ikut dalam pengasingan di Cape Town. Pernikahan itu diperkirakan terjadi setelah rombongan tiba di Cape Town tahun 1698 dan sebelum wafatnya Syekh Yusuf tahun 1699. Sedangkan konversi agama yang terjadi sekitar dua dekade setelah wafatnya Syekh Yusuf dan selepas wafat ayah mereka Raja Tambora tahun 1719. Fokus utama artikel ini adalah mengkritisi sumber-sumber informasi yang bertentangan dan pandangan-pandangan para penulis yang ambivalen dalam rangka memperjelas misteri mengenai konversi dan pernikahan kedua orang tua mereka. Walaupun ulama lokal di Cape Town menyadari tentang konversi tersebut, namun sebagian besar tidak memperdulikannya. Sayangnya konversi ini dilihat berlebihan dalam berbagai tulisan. Lagipula penduduk muslim setempat tidak menjelaskan informasi hal ini pada catatan sejarah mereka karena dipahami sebagai hal yang sensitif. Oleh karena itu, artikel ini tidak bermaksud untuk memperdebatkan atau bahkan menguji fakta mengenai konversi agama yang memang bagian dari hak kebebasan beragama. Walaupun artikel membahas pelaksanaan kebijakan kolonial Belanda (misal pembatasan pernikahan antar ras dan antar agama ditengah pembatasan kebebasan beragama), artikel ini juga membahas sekilas soal kemiskinan dan praktik kebijaksanaan pernikahan dalam mengendapkan persoalan konversi. Namun karena keterbatasan halaman maka artikel ini tidak membahas persoalan hukum Islam mengenai kebebasan beragama dan pindah agama.]

In this critically insightful and highly readable book of political ethnogra- phy, Aisha Ahmad, a political scientist at University of Toronto, seeks to explain how and why Islamist movements continue to militarily prevail and politically succeed in forming proto-states, over clan, ethnic, and/or tribal based competitions, amidst the chaos and disorder of civil wars across the contemporary Muslim world, from Mali to Mindanao. To this end, Ahmad seeks to go beyond the usual expositions that center the explanatory power of Islamist ideologies and identities, which dominate the scholarly fields of political science, international relations, security studies as well as the global public discourse shaped by journalists, politicians, and the punditry of shouting heads everywhere. Through a deep, immersive study of power in Afghanistan and Soma- lia, Ahmad demonstrates the profoundly symbiotic relationship between Islamists and the local business class. While recognizing the interconnec- tions between violent conflict and illicit trade is nothing new, Ahmad’s explication of the economic logics of Islamist proto-states furnishes a nov- el two-stage dynamic to explain the indispensability and ubiquity of this Islamist-business alliance in conflict zones. The first is the gradual social process of conversion of the business class’ worldview and practice to align them with Islamist identity formations, which is “aimed at mitigating un- certainty and improving access to markets” (xvii). Alongside this long-term socialization is a second, short-term political-economic dynamic of rapid shift in the business class’s collective patronage of a new Islamist faction, based on the assumption that it will lower the cost of business. The for- midable alliance between business class interests and Islamist institutions brings forth the new Islamist proto-state. Chapter one of the book adum- brates this two-stage argument and offers justifications for the two case studies, namely the Taliban in Afghanistan and the Islamic Courts Union in Somalia. The second chapter unpacks the two-stage dynamic in detail. We learn that in modern civil wars across the Muslim world, business communi- ties intentionally adopt ardent Islamist identities as a practical means to- ward building trust and lowering cost. Islamist factions, aspiring toward hegemony, offer the possibility of economic relationships that transcend the ethnic boundaries which limit rival factions rooted in clan, tribal, or ethno-linguistic social formations. This leads to the second, faster conver- gence of business-Islamist interests, wherein the Islamist groups leverage their broader social identity and economic market to offer stronger secu- rity at a lower cost. This development of an economy of scale leads the local business elites to throw their financial support behind the Islamists at a critical juncture of militant competition. Once this threshold is met, Islamist factions rapidly conquer and consolidate territories from their rel- atively socially constrained rivals to form a new proto-state, like the Taliban regime and the Islamic Courts Union (ICU). When we look at the timeline of their development (the Taliban in 1994 and the ICU in 2006), we notice a similar length of gestation, about 15 years of war. This similarity may be coincidental, but the political-military threshold is the same. Both societ- ies, ravaged by civil war, reached a stalemate. At this critical juncture the positional properties of Islamist formations in the field of civil war factions gives the Islamists a decided economic (cost analysis) and social (trust building across clan/tribal identities) advantage. Chapters three to six examine each of the two processes for the se- lected sites of inquiry. Thus chapters three and five, respectively, explore the long-term Islamist identity construction within the smuggling industry in the Afghanistan-Pakistan borderland, and the Somali business elites’ gradual convergence with Islamists. In chapter four, Ahmad explores the second dynamic in the context of rising security costs during the Afghan civil war. Mullah Omar’s Taliban provided the order and security across the borderland that had previously eluded the variety of industries. This allowed the Taliban to expand on the backs of voluntary donations, rather than extortions like their rival tribal warlords, which in turn allowed them to recruit and retain more disciplined fighters (81). The source of these donations was the business class, especially those involved in the highly lucrative transit trade, which, before the rise of Taliban, paid immense op- portunity cost at the hands of rapacious local and tribal warlord fiefdoms and bandits. Instead of the multitude of checkpoints crisscrossing south- ern Afghanistan and the borderlands, the Taliban presented a simplified administration. While the rest of the world took notice of their repressive measures against women’s mobility, education, and cultural expression, the men of the bazaar appreciated the newly acquired public safety to ply their trade and the lowered cost of doing business. Chapter six, “The Price of Protection: The Rise of the Islamic Courts Union,” demonstrates a similar mutually beneficial Islamist-business relationship emerging out of the incessant clan-based militia conflicts that had especially plagued southern Somalia since the fall of the last national government in 1991. Businesspeople, whether they were tycoons or small business owners, had to pay two types of tax. First was what was owed to the local racket or warlord, and the second was to the ever-fragmenting sub-clan militias and their checkpoints on the intercity highways. Unlike their rival, the Transitional Federal Government (TGF), ICU forged their supra-clan institutional identity through a universalist legal discourse and practice rooted in Islamic law and ethics. They united the courts and their associated clan-based militias, including al-Shabaab. Ahmad demonstrates, through a synthesis of secondary literature and original political ethnogra- phy, the economic logics of ICU’s ability to overcome the threshold of ma- terial and social support needed to establish the rule of law and a far-reach- ing functioning government. If the Taliban and the ICU had solved the riddle of creating order and security to create hegemonic proto-states, then what was their downfall? Chapter seven gives us an account of the international interventions that caused the collapse of the two proto-states. In the aftermath of their de- struction, the internationally supported regimes that replaced them, de- spite immense monetary and military aid, have failed to gain the same level of legitimacy across Afghanistan and Somalia. In chapter eight, Ahmad expands the scope of analysis to North/Western Africa (Al-Qaeda in the Is- lamic Maghrib: AQIM), Middle East (Islamic State in Iraq and Syria: ISIS), and South Asia (Tahrik-i Taliban-i Pakistan: TTP). At the time of this book’s publication, these movements were not yet, as Ahmad posits, closed cases like the Taliban and the ICU. Thus, the data from this chapter’s comparative survey furnishes suggestive arguments for Ahmad’s larger thesis, namely that Islamist proto-states emerge out of a confluence of economic and security interests rather than mere ideological and identity politics. The epistemic humility of this chapter signals to this reader two lines of constructive criticism of some aspects of Ahmad’s sub- stantiation of this thesis. First, the juxtaposing of Islamist success against their clan-/tribal iden- tity-based rivals may be underestimating the element of ethnic solidarity in those very Islamists’ political success. The most glaring case is the Taliban, which in its original formation and in its post-American invasion frag- mentations, across the Durand Line, was more or less founded on a pan- or-tribal Pashtun social identity and economic compulsions relative to the other Afghan ethno-linguistic communities. How does one disaggregate the force of ethnic solidarity (even if it is only a necessary condition, rather than a cause) from economic calculus in explaining the rise of the Taliban proto-state? The second issue in this juxtaposition is that when we compare a suc- cessful Islamist movement against socially limited ethnocentric rivals, we discount the other Islamist movements that failed. Explanations for those Islamists that failed to create a proto-state along the lines of the ICU or the Taliban, such as al-Ittihad al-Islamiyya (Somalia) or Gulbuddin Hekmat- yar’s Hezb-e Islami (Afghanistan), needed to be more robustly taken into account and integrated into the substantiation of Ahmad’s thesis. Even in the section on ISIS, it would have been helpful to integrate the case of Jabhat al-Nusra’s (an al-Qaeda affiliate in Syria) inability to create a proto-state to rival ISIS. We must ask, why do some Jihadi Islamist movements prevail against each other and why do others fail? Perhaps some of these Islamist movements appear too early to scale up their operation (i.e., they precede Ahmad’s ‘critical juncture’), or they were too embroiled and too partisan in the illicit trade network to fully leverage their Islamist universalism to create the trust and bonds that are the first part of Ahmad’s two-stage dy- namic. Possible answers would need to complement Ahmad’s excellent po- litical ethnography with deeper quantitative dives to identify the statistical variations of these critical junctures: when does the cost of warlords and mafias’ domination outweigh the cost of Islamist-Jihadi movements’ social- ly repressive but economically liberating regimes? At which point in the social evolution of society during an unending civil war do identities forged by the bonds of blood give way to those imagined through bonds of faith? These two critical suggestions do not diminish Ahmad’s highly teach- able work. This book should be read by all concerned policy makers, schol- ars in the social sciences and humanities, and anyone who wants to go be- yond ‘culture talk’ historical causation by ideas and identity and uncover structuralist explanations for the rise of Jihadi Islamist success in civil wars across the Muslim world. It is especially recommended for adoption in cog- nate courses at the undergraduate level, for its combination of erudition and readability. Maheen ZamanAssistant ProfessorDepartment of HistoryAugsburg University

In this critically insightful and highly readable book of political ethnogra- phy, Aisha Ahmad, a political scientist at University of Toronto, seeks to explain how and why Islamist movements continue to militarily prevail and politically succeed in forming proto-states, over clan, ethnic, and/or tribal based competitions, amidst the chaos and disorder of civil wars across the contemporary Muslim world, from Mali to Mindanao. To this end, Ahmad seeks to go beyond the usual expositions that center the explanatory power of Islamist ideologies and identities, which dominate the scholarly fields of political science, international relations, security studies as well as the global public discourse shaped by journalists, politicians, and the punditry of shouting heads everywhere. Through a deep, immersive study of power in Afghanistan and Soma- lia, Ahmad demonstrates the profoundly symbiotic relationship between Islamists and the local business class. While recognizing the interconnec- tions between violent conflict and illicit trade is nothing new, Ahmad’s explication of the economic logics of Islamist proto-states furnishes a nov- el two-stage dynamic to explain the indispensability and ubiquity of this Islamist-business alliance in conflict zones. The first is the gradual social process of conversion of the business class’ worldview and practice to align them with Islamist identity formations, which is “aimed at mitigating un- certainty and improving access to markets” (xvii). Alongside this long-term socialization is a second, short-term political-economic dynamic of rapid shift in the business class’s collective patronage of a new Islamist faction, based on the assumption that it will lower the cost of business. The for- midable alliance between business class interests and Islamist institutions brings forth the new Islamist proto-state. Chapter one of the book adum- brates this two-stage argument and offers justifications for the two case studies, namely the Taliban in Afghanistan and the Islamic Courts Union in Somalia. The second chapter unpacks the two-stage dynamic in detail. We learn that in modern civil wars across the Muslim world, business communi- ties intentionally adopt ardent Islamist identities as a practical means to- ward building trust and lowering cost. Islamist factions, aspiring toward hegemony, offer the possibility of economic relationships that transcend the ethnic boundaries which limit rival factions rooted in clan, tribal, or ethno-linguistic social formations. This leads to the second, faster conver- gence of business-Islamist interests, wherein the Islamist groups leverage their broader social identity and economic market to offer stronger secu- rity at a lower cost. This development of an economy of scale leads the local business elites to throw their financial support behind the Islamists at a critical juncture of militant competition. Once this threshold is met, Islamist factions rapidly conquer and consolidate territories from their rel- atively socially constrained rivals to form a new proto-state, like the Taliban regime and the Islamic Courts Union (ICU). When we look at the timeline of their development (the Taliban in 1994 and the ICU in 2006), we notice a similar length of gestation, about 15 years of war. This similarity may be coincidental, but the political-military threshold is the same. Both societ- ies, ravaged by civil war, reached a stalemate. At this critical juncture the positional properties of Islamist formations in the field of civil war factions gives the Islamists a decided economic (cost analysis) and social (trust building across clan/tribal identities) advantage. Chapters three to six examine each of the two processes for the se- lected sites of inquiry. Thus chapters three and five, respectively, explore the long-term Islamist identity construction within the smuggling industry in the Afghanistan-Pakistan borderland, and the Somali business elites’ gradual convergence with Islamists. In chapter four, Ahmad explores the second dynamic in the context of rising security costs during the Afghan civil war. Mullah Omar’s Taliban provided the order and security across the borderland that had previously eluded the variety of industries. This allowed the Taliban to expand on the backs of voluntary donations, rather than extortions like their rival tribal warlords, which in turn allowed them to recruit and retain more disciplined fighters (81). The source of these donations was the business class, especially those involved in the highly lucrative transit trade, which, before the rise of Taliban, paid immense op- portunity cost at the hands of rapacious local and tribal warlord fiefdoms and bandits. Instead of the multitude of checkpoints crisscrossing south- ern Afghanistan and the borderlands, the Taliban presented a simplified administration. While the rest of the world took notice of their repressive measures against women’s mobility, education, and cultural expression, the men of the bazaar appreciated the newly acquired public safety to ply their trade and the lowered cost of doing business. Chapter six, “The Price of Protection: The Rise of the Islamic Courts Union,” demonstrates a similar mutually beneficial Islamist-business relationship emerging out of the incessant clan-based militia conflicts that had especially plagued southern Somalia since the fall of the last national government in 1991. Businesspeople, whether they were tycoons or small business owners, had to pay two types of tax. First was what was owed to the local racket or warlord, and the second was to the ever-fragmenting sub-clan militias and their checkpoints on the intercity highways. Unlike their rival, the Transitional Federal Government (TGF), ICU forged their supra-clan institutional identity through a universalist legal discourse and practice rooted in Islamic law and ethics. They united the courts and their associated clan-based militias, including al-Shabaab. Ahmad demonstrates, through a synthesis of secondary literature and original political ethnogra- phy, the economic logics of ICU’s ability to overcome the threshold of ma- terial and social support needed to establish the rule of law and a far-reach- ing functioning government. If the Taliban and the ICU had solved the riddle of creating order and security to create hegemonic proto-states, then what was their downfall? Chapter seven gives us an account of the international interventions that caused the collapse of the two proto-states. In the aftermath of their de- struction, the internationally supported regimes that replaced them, de- spite immense monetary and military aid, have failed to gain the same level of legitimacy across Afghanistan and Somalia. In chapter eight, Ahmad expands the scope of analysis to North/Western Africa (Al-Qaeda in the Is- lamic Maghrib: AQIM), Middle East (Islamic State in Iraq and Syria: ISIS), and South Asia (Tahrik-i Taliban-i Pakistan: TTP). At the time of this book’s publication, these movements were not yet, as Ahmad posits, closed cases like the Taliban and the ICU. Thus, the data from this chapter’s comparative survey furnishes suggestive arguments for Ahmad’s larger thesis, namely that Islamist proto-states emerge out of a confluence of economic and security interests rather than mere ideological and identity politics. The epistemic humility of this chapter signals to this reader two lines of constructive criticism of some aspects of Ahmad’s sub- stantiation of this thesis. First, the juxtaposing of Islamist success against their clan-/tribal iden- tity-based rivals may be underestimating the element of ethnic solidarity in those very Islamists’ political success. The most glaring case is the Taliban, which in its original formation and in its post-American invasion frag- mentations, across the Durand Line, was more or less founded on a pan- or-tribal Pashtun social identity and economic compulsions relative to the other Afghan ethno-linguistic communities. How does one disaggregate the force of ethnic solidarity (even if it is only a necessary condition, rather than a cause) from economic calculus in explaining the rise of the Taliban proto-state? The second issue in this juxtaposition is that when we compare a suc- cessful Islamist movement against socially limited ethnocentric rivals, we discount the other Islamist movements that failed. Explanations for those Islamists that failed to create a proto-state along the lines of the ICU or the Taliban, such as al-Ittihad al-Islamiyya (Somalia) or Gulbuddin Hekmat- yar’s Hezb-e Islami (Afghanistan), needed to be more robustly taken into account and integrated into the substantiation of Ahmad’s thesis. Even in the section on ISIS, it would have been helpful to integrate the case of Jabhat al-Nusra’s (an al-Qaeda affiliate in Syria) inability to create a proto-state to rival ISIS. We must ask, why do some Jihadi Islamist movements prevail against each other and why do others fail? Perhaps some of these Islamist movements appear too early to scale up their operation (i.e., they precede Ahmad’s ‘critical juncture’), or they were too embroiled and too partisan in the illicit trade network to fully leverage their Islamist universalism to create the trust and bonds that are the first part of Ahmad’s two-stage dy- namic. Possible answers would need to complement Ahmad’s excellent po- litical ethnography with deeper quantitative dives to identify the statistical variations of these critical junctures: when does the cost of warlords and mafias’ domination outweigh the cost of Islamist-Jihadi movements’ social- ly repressive but economically liberating regimes? At which point in the social evolution of society during an unending civil war do identities forged by the bonds of blood give way to those imagined through bonds of faith? These two critical suggestions do not diminish Ahmad’s highly teach- able work. This book should be read by all concerned policy makers, schol- ars in the social sciences and humanities, and anyone who wants to go be- yond ‘culture talk’ historical causation by ideas and identity and uncover structuralist explanations for the rise of Jihadi Islamist success in civil wars across the Muslim world. It is especially recommended for adoption in cog- nate courses at the undergraduate level, for its combination of erudition and readability. Maheen ZamanAssistant ProfessorDepartment of HistoryAugsburg University

Insurance law in the United Kingdom (UK) has recently undergone significant reforms. Until 2015, insurance law in the United Kingdom was still largely regulated by the Marine Insurance Act 1906. This meant that a statute created over a hundred years ago was still regulating insurance law. The need for the more recent reforms was evidently dire. The Law Commission undertook an investigation that highlighted the need for new insurance laws. The result was the enactment of the Insurance Act 2015. There are some significant changes in the new Act concerning fraudulent claims, breaches of good faith and the duty of disclosure. The new laws appear to be much more pro-policyholder than was the case in the previous regime. This article undertakes a detailed analysis of these reforms and also presents a comparison with South African laws. The ultimate question is whether South Africa can learn anything from the recent reforms to UK insurance law.

The article discusses and compares the dissolution of a marriage as well as the legal consequences thereof in Islamic law, South African law and English law. This is done in order to demonstrate that despite similarities, there are vast differences between the three legal systems. This impacts on how Muslim personal law (MPL) can be recognised and regulated in South Africa and in England and Wales as constitutional democracies. South Africa, England and Wales share a commitment to human rights and have adopted various approaches in respect of accommodating the application of Islamic law. Internal pluralism also exists within the Muslim communities in South Africa, England and Wales as the majority of Muslims in these countries have to varying degrees developed diverse strategies to ensure compliance with Islamic law, as well as with South African and English law. Notwithstanding the accommodation of MPL in terms of South African and English law, the differences between these legal systems have resulted in decisions that, while providing relief to the lived realities of Muslims, are in fact contrary to the teachings and principles of Islam and therefore problematic for Muslims.

Notwithstanding the fact that South Africa is a country rich in cultural diversity, and despite section 15 of the Constitution, the recognition of systems of religious, personal or family law for certain cultural and religious groups has either been limited or is virtually non-existent. This is particularly true in the case of Muslim marriages. To this extent, marriages concluded in terms of Islamic rites do not enjoy the same legal recognition that is accorded to civil and customary marriages. Non-recognition of Muslim marriages has dire consequences for the parties to the marriage, more so for women who are parties to Muslim marriages as there is no legal regulatory framework to enforce any of the consequences that arise as a result of the marriage. Therefore, in most cases, parties to a Muslim marriage are left without adequate legal protection, where the marriage is dissolved either by death or divorce. The non-recognition of Muslim marriages effectively means that despite the fact that the parties to a Muslim marriage may regard themselves as married, there is no legal connection between them.Despite South Africa’s commitment to the right of equality and freedom of religion, the courts have acknowledged that the failure to grant recognition to Muslim marriages on the ground of gender equality, has worsened the plight of women in these marriages, in that they were left without effective legal protection during the subsistence of the marriage and also when the marriage is dissolved either by death or divorce. Whilst the ad hoc recognition of certain consequences of Muslim marriages by the judiciary has gone some way to redress the plight of Muslim women and provided relief to the lived realities of Muslim women, these decisions are in fact contrary to the teachings and principles of Islam and therefore problematic for Muslims. These court decisions that are in conflict with Muslim Personal Law (MPL) will ultimately lead to the emergence of a distorted set of laws relating to Muslim family law. This is a real cause for concern. A discussion of these cases is undertaken in this article.

This article examines the right to the free exercise of religion from a comparative perspective in the context of Islamic marriage and divorce in England and South Africa. In particular, the article considers how Islamic marriage may be interpreted and recognised in a coherent manner in rights-based systems of law and how these two legal systems ensure that the rights of religious women are fully respected and acknowledged. The similarity in the growth of non-legal, quasi-judicial bodies (sharia councils in England and ulama in South Africa) is analysed, along with their effect on rulings on Islamic divorces and other matters. The article suggests that both legal systems may learn from the other and suggests ways in which this comparative method of legal analysis can be employed to achieve legal reform and the legal recognition of these marriages. In this regard, the article deals with various models, based on either the assimilation and unification of marriage laws (as proposed in South Africa) or integration and pluralism. The article examines these models not only from a pragmatic perspective, but also from a rights perspective. It suggests that the assimilation model, based on a Western, Judeo-Christian paradigm of marriage, would not only be inconsistent with the ethos of legal pluralism promoted by the South African Constitution and the English Human Rights Act, but, more importantly, would not protect the rights of Muslim women adequately. Therefore, the article concludes that, in line with recent South African High Court jurisprudence, the legislative recognition of Muslim marriage and divorce law is urgently required in both jurisdictions.

This article demonstrates that the cases decided by the ICJ and the arbitration tribunals are judge made law and are not derived from the rules of customary law. Judge made law, as enunciated by the ICJ and the arbitration tribunals are very general and imprecise. The decisions made by the ICJ and the arbitration tribunals beget unpredictability or unexpected results. Normally, state parties are not happy with the decision made by the ICJ and the arbitration tribunals and the discontented states are unable to take any actions as state parties need to comply with the decision of the ICJ. In this Article, two (2) cases, one in South America and the other one in Africa, were discussed in detail. The outcome of these two (2) cases is not palatable to some state parties. Since the decisions are not predictable and the outcome is not palatable to some state parties, this Article looks at possible solutions which are being offered in International Islamic Law (Siyar). Keywords: Islamic International Law (Siyar), International Court of Justice (ICJ), Judge Made Law, Maritime Boundary Delimitations, Unpredictable Results, The Principle of Joint Administration, The Principle of Joint Development.

Background: Doctors complete death notification forms poorly, in South Africa and globally. This reduces accuracy of mortality statistics in South Africa, which is needed by policymakers and clinicians to focus on healthcare improvement initiatives. The law on procedure-related deaths was changed in 2008, directly informing on the practice of anaesthesiologists. Perioperative deaths continue to be misclassified, possibly related to doctors’ lack of knowledge or understanding of the law. This study aimed to determine if perioperative clinicians working in theatre and the Intensive Care Unit (ICU) knew and understood the law pertaining to deaths in the perioperative period. Method: A survey was conducted at eight hospitals in the Durban area amongst specialists and non-specialists who work in theatre and ICU. The questionnaire had three parts: definitions, medico-legal experiences and clinical scenarios. Results: Eighty responses were received, a response rate of 74%. More non-specialists responded (57%). When undecided on how to classify a death, clinicians mostly seek assistance from their private medico-legal insurance or a senior colleague. However, specialists are unable to define or classify unnatural and procedure-related deaths any better than non-specialists. Conclusion: Specialist and non-specialist knowledge and application of the law relating to unnatural deaths in the perioperative period is poor. Forensic pathologist assistance is underutilised. More needs be done to empower doctors on medico-legal issues affecting perioperative clinical practice.

Given the globalised nature of work in the twenty-first century, labour and social security law issues relating to worker-posting are sure to increase in the years to come. The purpose of this note is to assess critically the social protection of workers posted abroad from a South African perspective. The contribution addresses this topic by discussing various questions. It concludes by stressing the need for the adoption of a coherent approach as far as social protection for posted workers is concerned by, inter alia, promulgating an act of parliament to regulate the social security and labour law entitlements and obligations of these workers as well as their employers.In addition, it emphasises the need for and the importance of bilateral and multilateral social security and labour agreements between South Africa and other countries, particularly those where South African companies have established themselves. A sizeable number of South African companies (such as MTN, Vodacom, SABMiller, Sasol, Woolworths and Debonairs) have established, or are successfully establishing themselves, in African countries and beyond. At the same time, foreign companies (such as BMW, Levi Strauss, Barclays Bank and Vodafone) have registered, or are in the process of registering, in South Africa at an unprecedented rate. It is true that these companies do employ locals. However, situations do arise requiring a global company to send a worker for a limited period (usually not exceeding twelve months) to carry out work in the territory of a State other than the State in which he or she normally works. This scenario is commonly known as worker-posting and does yield some benefits (including international exposure) to the (posted) workers, their employers and the economy in general. Nevertheless, if not properly regulated, worker-posting may have an undesirable effect, particularly on workers. For example, posted workers may find themselves concurrently covered (ie, at home and abroad) by social insurance schemes or not covered at all. As will be explained later, this can yield undesirable results. For example, it unnecessarily raises the costs of doing business for transnational employers. Furthermore, the period of stay for posted workers is limited and, as a result often does not lead to any entitlement to benefits. In addition, in the labour law sphere, posted workers may fall victim to abuse as regards the basic conditions of employment (eg, relating to pay and working time). The purpose of this paper is to assess critically the social protection of workers posted abroad from a South African perspective. According to the Asian Development Bank (ADB), “social protection” consists of policies and programmes designed to reduce poverty and vulnerability by promoting efficient labour markets, diminishing people’s exposure to risks, enhancing their capacity to protect themselves against hazards and interruption/loss of income”. The aim of social protection for that reason, is to avert or minimise social risks – in that way preventing or minimising human damage – by increasing capabilities and opportunities. As noted by the UN Commission: “The ultimate purpose of social protection is to increase capabilities and opportunities and, thereby, human development. While by its very nature social protection aims at providing at least minimum standards of well-being to people in dire circumstances enabling them to live with dignity, one should not overlook that social protection should not simply be seen as a residual policy function of assuring the welfare of the poorest – but as a foundation at a societal level for promoting social justice and social cohesion, developing human capabilities and promoting economic dynamism and creativity”. This contribution addresses this topic by discussing the following questions: What is the social protection status, with reference to social security and labour law, of workers posted to and from South Africa? Is the present social security and labour law protection framework ideal for extending social security and labour law protection to posted workers? To the extent that it is not, where and what are the gaps and challenges that are likely to hinder efforts to extend or strengthen social security and labour law coverage to this category of workers? Finally, what are the alternatives for improving, in a worker-posting context, the current social protection framework?

Apart from conferring a wide range of powers on the President, the Constitution also regulates the manner in which the President may exercise these powers. One of the ways in which the Constitution does this is by imposing an obligation on the President to exercise his or her powers in accordance with the principle of legality, which is an incident of the rule of law. A necessary consequence of this requirement is that a decision of the President may be reviewed and set aside on the grounds that it infringes the principle of legality.From its relatively modest beginnings in Fedsure Life Insurance v Greater Johannesburg Transitional Metropolitan Council (1999 (1) SA 374 (CC)) – where the Constitutional Court held that the exercise of public power is only legitimate when it is lawful – the principle of legality has expanded in leaps and bounds over the past 21 years; today, it encompasses several other grounds of review, including lawfulness, rationality, undue delay and vagueness.Of all of these broad grounds of review, substantive rationality has received the most attention from the courts and today encompasses several other grounds of review itself, such as procedural fairness, procedural rationality, relevant and irrelevant considerations (Democratic Alliance), non-jurisdictional mistake of fact, and, on occasion, the giving of reasons.Unfortunately, the development of the principle of legality has not been all plain sailing, and the rationality jurisprudence of the Constitutional Court has given rise to complex and difficult questions. This is particularly the case when it comes to procedural fairness and procedural rationality. It is not entirely clear what the difference between these two requirements is and in what circumstances the one should be applied rather than the other. The court attempted to address some of these questions in Law Society of South Africa v President of the Republic of South Africa (2019 (3) SA 30 (CC)) (Law Society). The purpose of this note is to discuss this case critically.

The much-debated diagnostic report, the National Development Plan 2030 (NDP), paints a worrying picture about the state of the health system in South Africa. The NDP simply states that, “At institutional level, healthcare management is in crisis” (Republic of South Africa 2012, National Development Plan of 2030: 52). One of the remedial measures proposed by the NDP is the introduction of the National Health Insurance in South Africa (Republic of South Africa 2012, National Development Plan of 2030: 52). It is hoped that the National Health Insurance “will ensure that everyone has access to appropriate, efficient and quality health services” (Republic of South Africa 2012, National Development Plan of 2030: 4).The Constitution of the Republic of South Africa, 1996 sets the benchmark and the ideals towards which public servants must strive as they deliver the much-needed services to the general populace (s 195(1)(a)−(i)). Among others, public servants must promote and maintain a high standard of professional ethics (s 195(1)(a)). Further, the Batho Pele Principles require it of government institutions to, inter alia communicate the level and quality of service, which the public must expect from them (Batho Pele Principles Principle 2). It is therefore not misguided to say that generally, people are aware of the standard of service they should expect from state institutions. As a matter of fact, people have gone to the courts of law to hold state institutions accountable. In this regard the medical fraternity has in the recent past witnessed an upsurge of court cases of negligence against the health department. This rise in litigation has led to a crisis of another kind. According to the Minister of Health, healthcare in South Africa is facing a crisis because some medical practitioners, particularly gynaecologists and obstetricians, have opted not to perform operations for fear of lawsuits.The concerns of the Minister notwithstanding, the daily experiences of people point to the fact that despite the lofty ideals in the Constitution and the Batho Pele Principles, the general public continues to receive sub-standard service from public institutions, especially from public hospitals. The case of Lushaba v MEC for Health, Gauteng (The original case) provides a good illustration of a nation, which is in a state of paralysis ethically. The case paints a picture of “state employees who could not be bothered to do their work” (The rule nisi case par 87). What is even more ominous is the observation by Robinson JA that shaming such public officials no longer has any effect (The rule nisi case par 90).The Lushaba case has all the hallmarks of the cost of indifference on the ethical values of a nation. Axiomatically, such a cost cannot only be measured in Rands and cents. Later in the discussion, we hope to make it clear that indifference impacts on the valuable time of the court and the plaintiff, the reputation of the various institutions involved, quality of life of the child born with cerebral palsy as a result of indifference, the dignity of both the mother and her son and, of course, the taxpayers’ money. These factors combined provide a good basis for reflection on the cost of indifference in this case. To provide some background, the facts of the Lushaba case are discussed briefly, after which the indifference of every role player in the events leading up to the two court cases are highlighted. In the process, our discussion also makes mention of the trajectory that the case followed from the court a quo all the way to the Constitutional Court (MEC for Health, Gauteng v Lushaba [2015] ZACC 16). In the Constitutional Court’s judgment, even the High Court judge came under scrutiny.

AbstractThe Review has chosen to open this edition with an interview with General Abdoulaye Kaka as a representative of State practice in counterterrorism detention. The journal chose to focus on Niger as a State that is affected by an ongoing armed conflict and which arrests, detains and tries suspected members of a non-State armed group under its domestic legal system.General Abdoulaye Kaka has been working as Head of Niger's Central Counterterrorism Agency (Service Central de Lutte Contre le Terrorisme) since 2014. He previously worked for the judicial police in Niger as head of the anti-gang section before opening the first office of the judicial police in Zinder. General Kaka worked for the United Nations (UN) police forces in Ivory Coast between 2006 and 2012, when he became the Commander-in-Chief of the Niger UN police forces.In his current role as Head of the Central Counterterrorism Agency, General Kaka oversees detention operations throughout the country, many of which involve suspected members of the group that calls itself Islamic State's West Africa Province (ISWAP), also known as Jama'atu Ahlis Sunna Lidda'awati wal-Jihad or, as it is most widely known under its former name, Boko Haram.Niger has suffered the effects of the ongoing conflict between ISWAP and State forces in the Lake Chad region, resulting in casualties, arrests and repeated displacement among civilians. The government of Niger contributes troops to the Multinational Joint Task Force, which conducts operations against the group. At the same time, the government arrests and detains suspected members of ISWAP as part of its counterterrorism efforts. These detention operations are coordinated by the Central Counterterrorism Agency. Established in 2011, the Central Counterterrorism Agency, successor to the counterterrorism section of the judicial police, is made up of representatives from the three primary law enforcement organizations in the country – the national police, the national guard and the gendarmerie – and is principally responsible for counterterrorism investigations in Niger.In Niger, the International Committee of the Red Cross (ICRC) helps people affected by conflict in the south-east or fleeing fighting in north-east Nigeria. With the Niger Red Cross, the ICRC delivers aid, treats the wounded, provides water and supports farmers. The ICRC also monitors compliance with international humanitarian law, visits detainees and helps them to maintain contact with their families.The ICRC visits people held by the authorities in at least five places of detention in Niger. After the visits, the ICRC shares its findings on the treatment and living conditions of the detainees confidentially with the authorities and urges them to take steps to address concerns. The ICRC also helps bolster prison management capacities and health services for detainees through technical and material support, and round-table discussions on these topics. The ICRC helps detainees, particularly minors, maintain contact with their families. At the request of foreign detainees, the ICRC informs their families or consular representatives of their detention. Lastly, the ICRC covers transportation costs for security detainees returning home after their release.

Introduction The genealogy of Feminist Standpoint Theory in the 1970s prioritised “locationality”, particularly the recognition of social and historical locations as valuable contribution to knowledge production. Pioneering figures such as Sandra Harding, Dorothy Smith, Patricia Hill Collins, Alison Jaggar, and Donna Haraway have argued that the oppressed must have some means (such as language, cultural practices) to enter the world of the oppressor in order to access some understanding of how the world works from the privileged perspective. In the essay “Meeting at the Edge of Fear: Theory on a World Scale”, the Australian social scientist Raewyn Connell explains that the production of feminist theory almost always comes from the global North. Connell critiques the hegemony of mainstream Northern feminism in her pyramidal model (59), showing how theory/knowledge is produced at the apex (global North) of a pyramid structure and “trickles down” (59) to the global South. Connell refers to a second model called mosaic epistemology which shows that multiple feminist ideologies across global North/South are juxtaposed against each other like tiles, with each specific culture making its own claims to validity.However, Nigerian feminist Bibi Bakare-Yusuf’s reflection on the fluidity of culture in her essay “Fabricating Identities” (5) suggests that fixing knowledge as Northern and Southern—disparate, discrete, and rigidly structured tiles—is also problematic. Connell proposes a third model called solidarity-based epistemology which involves mutual learning and critiquing with a focus on solidarity across differences. However, this is impractical in implementation especially given that feminist nomenclature relies on problematic terms such as “international”, “global North/South”, “transnational”, and “planetary” to categorise difference, spatiality, and temporality, often creating more distance than reciprocal exchange. Geographical specificity can be too limiting, but we also need to acknowledge that it is geographical locationality which becomes disadvantageous to overcome racial, cultural, and gender biases — and here are few examples.Nomenclatures: Global-North and Global South ParadigmThe global North/South terminology differentiating the two regions according to means of trade and relative wealth emerged from the Brandt Report’s delineation of the North as wealthy and South as impoverished in 1980s. Initially, these terms were a welcome repudiation of the hierarchical nomenclature of “developed” and “developing” nations. Nevertheless, the categories of North and South are problematic because of increased socio-economic heterogeneity causing erasure of local specificities without reflecting microscopic conflicts among feminists within the global North and the global South. Some feminist terms such as “Third World feminism” (Narayan), “global feminism” (Morgan), or “local feminisms” (Basu) aim to centre women's movements originating outside the West or in the postcolonial context, other labels attempt to making feminism more inclusive or reflective of cross-border linkages. These include “transnational feminism” (Grewal and Kaplan) and “feminism without borders” (Mohanty). In the 1980s, Kimberlé Williams Crenshaw’s concept of intersectionality garnered attention in the US along with Gloria Anzaldúa’s Borderlands/La Frontera: The New Mestiza (1987), which raised feminists’ awareness of educational, healthcare, and financial disparities among women and the experiences of marginalised people across the globe, leading to an interrogation of the aims and purposes of mainstream feminism. In general, global North feminism refers to white middle class feminist movements further expanded by concerns about civil rights and contemporary queer theory while global South feminism focusses on decolonisation, economic justice, and disarmament. However, the history of colonialism demonstrates that this paradigm is inadequate because the oppression and marginalisation of Black, Indigenous, and Queer activists have been avoided purposely in the homogenous models of women’s oppression depicted by white radical and liberal feminists. A poignant example is from Audre Lorde’s personal account:I wheeled my two-year-old daughter in a shopping cart through a supermarket in Eastchester in 1967, and a little white girl riding past in her mother’s cart calls out excitedly, ‘oh look, Mommy, a baby maid!’ And your mother shushes you, but does not correct you, and so fifteen years later, at a conference on racism, you can still find that story humorous. But I hear your laughter is full of terror and disease. (Lorde)This exemplifies how the terminology global North/South is a problem because there are inequities within the North that are parallel to the division of power and resources between North and South. Additionally, Susan Friedman in Planetary Modernisms observes that although the terms “Global North” and “Global South” are “rhetorically spatial” they are “as geographically imprecise and ideologically weighted as East/West” because “Global North” signifies “modern global hegemony” and “Global South” signifies the “subaltern, … —a binary construction that continues to place the West at the controlling centre of the plot” (Friedman, 123).Focussing on research-activism debate among US feminists, Sondra Hale takes another tack, emphasising that feminism in the global South is more pragmatic than the theory-oriented feminist discourse of the North (Hale). Just as the research-scholarship binary implies myopic assumption that scholarship is a privileged activity, Hale’s observations reveal a reductive assumption in the global North and global South nomenclature that feminism at the margins is theoretically inadequate. In other words, recognising the “North” as the site of theoretical processing is a euphemism for Northern feminists’ intellectual supremacy and the inferiority of Southern feminist praxis. To wit, theories emanating from the South are often overlooked or rejected outright for not aligning with Eurocentric framings of knowledge production, thereby limiting the scope of feminist theories to those that originate in the North. For example, while discussing Indigenous women’s craft-autobiography, the standard feminist approach is to apply Susan Sontag’s theory of gender and photography to these artefacts even though it may not be applicable given the different cultural, social, and class contexts in which they are produced. Consequently, Moroccan feminist Fatima Mernissi’s Islamic methodology (Mernissi), the discourse of land rights, gender equality, kinship, and rituals found in Bina Agarwal’s A Field of One’s Own, Marcia Langton’s “Grandmothers’ Law”, and the reflection on military intervention are missing from Northern feminist theoretical discussions. Moreover, “outsiders within” feminist scholars fit into Western feminist canonical requirements by publishing their works in leading Western journals or seeking higher degrees from Western institutions. In the process, Northern feminists’ intellectual hegemony is normalised and regularised. An example of the wealth of the materials outside of mainstream Western feminist theories may be found in the work of Girindrasekhar Bose, a contemporary of Sigmund Freud, founder of the Indian Psychoanalytic Society and author of the book Concept of Repression (1921). Bose developed the “vagina envy theory” long before the neo-Freudian psychiatrist Karen Horney proposed it, but it is largely unknown in the West. Bose’s article “The Genesis and Adjustment of the Oedipus Wish” discarded Freud’s theory of castration and explained how in the Indian cultural context, men can cherish an unconscious desire to bear a child and to be castrated, implicitly overturning Freud’s correlative theory of “penis envy.” Indeed, the case of India shows that the birth of theory can be traced back to as early as eighth century when study of verbal ornamentation and literary semantics based on the notion of dbvani or suggestion, and the aesthetic theory of rasa or "sentiment" is developed. If theory means systematic reasoning and conceptualising the structure of thought, methods, and epistemology, it exists in all cultures but unfortunately non-Western theory is largely invisible in classroom courses.In the recent book Queer Activism in India, Naisargi Dev shows that the theory is rooted in activism. Similarly, in her essay “Seed and Earth”, Leela Dube reveals how Eastern theories are distorted as they are Westernised. For instance, the “Purusha-Prakriti” concept in Hinduism where Purusha stands for pure consciousness and Prakriti stands for the entire phenomenal world is almost universally misinterpreted in terms of Western binary oppositions as masculine consciousness and feminine creative principle which has led to disastrous consequences including the legitimisation of male control over female sexuality. Dube argues how heteropatriarchy has twisted the Purusha-Prakriti philosophy to frame the reproductive metaphor of the male seed germinating in the female field for the advantage of patrilineal agrarian economies and to influence a homology between reproductive metaphors and cultural and institutional sexism (Dube 22-24). Attempting to reverse such distortions, ecofeminist Vandana Shiva rejects dualistic and exploitative “contemporary Western views of nature” (37) and employs the original Prakriti-Purusha cosmology to construct feminist vision and environmental ethics. Shiva argues that unlike Cartesian binaries where nature or Prakriti is inert and passive, in Hindu Philosophy, Purusha and Prakriti are inseparable and inviolable (Shiva 37-39). She refers to Kalika Purana where it is explained how rivers and mountains have a dual nature. “A river is a form of water, yet is has a distinct body … . We cannot know, when looking at a lifeless shell, that it contains a living being. Similarly, within the apparently inanimate rivers and mountains there dwells a hidden consciousness. Rivers and mountains take the forms they wish” (38).Scholars on the periphery who never migrated to the North find it difficult to achieve international audiences unless they colonise themselves, steeping their work in concepts and methods recognised by Western institutions and mimicking the style and format that western feminist journals follow. The best remedy for this would be to interpret border relations and economic flow between countries and across time through the prism of gender and race, an idea similar to what Sarah Radcliffe, Nina Laurie and Robert Andolina have called the “transnationalization of gender” (160).Migration between Global North and Global SouthReformulation of feminist epistemology might reasonably begin with a focus on migration and gender politics because international and interregional migration have played a crucial role in the production of feminist theories. While some white mainstream feminists acknowledge the long history of feminist imperialism, they need to be more assertive in centralising non-Western theories, scholarship, and institutions in order to resist economic inequalities and racist, patriarchal global hierarchies of military and organisational power. But these possibilities are stymied by migrants’ “de-skilling”, which maintains unequal power dynamics: when migrants move from the global South to global North, many end up in jobs for which they are overqualified because of their cultural, educational, racial, or religious alterity.In the face of a global trend of movement from South to North in search of a “better life”, visual artist Naiza Khan chose to return to Pakistan after spending her childhood in Lebanon before being trained at the University of Oxford. Living in Karachi over twenty years, Khan travels globally, researching, delivering lectures, and holding exhibitions on her art work. Auj Khan’s essay “Peripheries of Thought and Practise in Naiza Khan’s Work” argues: “Khan seems to be going through a perpetual diaspora within an ownership of her hybridity, without having really left any of her abodes. This agitated space of modern hybrid existence is a rich and ripe ground for resolution and understanding. This multiple consciousness is an edge for anyone in that space, which could be effectively made use of to establish new ground”. Naiza Khan’s works embrace loss or nostalgia and a sense of choice and autonomy within the context of unrestricted liminal geographical boundaries.Early work such as “Chastity Belt,” “Heavenly Ornaments”, “Dream”, and “The Skin She Wears” deal with the female body though Khan resists the “feminist artist” category, essentially because of limited Western associations and on account of her paradoxical, diasporic subjectivity: of “the self and the non-self, the doable and the undoable and the anxiety of possibility and choice” (Khan Webpage). Instead, Khan theorises “gender” as “personal sexuality”. The symbolic elements in her work such as corsets, skirts, and slips, though apparently Western, are purposely destabilised as she engages in re-constructing the cartography of the body in search of personal space. In “The Wardrobe”, Khan establishes a path for expressing women’s power that Western feminism barely acknowledges. Responding to the 2007 Islamabad Lal Masjid siege by militants, Khan reveals the power of the burqa to protect Muslim men by disguising their gender and sexuality; women escape the Orientalist gaze. For Khan, home is where her art is—beyond the global North and South dichotomy.In another example of de-centring Western feminist theory, the Indian-British sitar player Anoushka Shankar, who identifies as a radical pro-feminist, in her recent musical album “Land of Gold” produces what Chilla Bulbeck calls “braiding at the borderlands”. As a humanitarian response to the trauma of displacement and the plight of refugees, Shankar focusses on women giving birth during migration and the trauma of being unable to provide stability and security to their children. Grounded in maternal humility, Shankar’s album, composed by artists of diverse background as Akram Khan, singer Alev Lenz, and poet Pavana Reddy, attempts to dissolve boundaries in the midst of chaos—the dislocation, vulnerability and uncertainty experienced by migrants. The album is “a bit of this, and a bit of that” (borrowing Salman Rushdie’s definition of migration in Satanic Verses), both in terms of musical genre and cultural identities, which evokes emotion and subjective fluidity. An encouraging example of truly transnational feminist ethics, Shankar’s album reveals the chasm between global North and global South represented in the tension of a nascent friendship between a white, Western little girl and a migrant refugee child. Unlike mainstream feminism, where migration is often sympathetically feminised and exotified—or, to paraphrase bell hooks, difference is commodified (hooks 373) — Shankar’s album simultaneously exhibits regional, national, and transnational elements. The album inhabits multiple borderlands through musical genres, literature and politics, orality and text, and ethnographic and intercultural encounters. The message is: “the body is a continent / But may your heart always remain the sea" (Shankar). The human rights advocate and lawyer Randa Abdel-Fattah, in her autobiographical novel Does My Head Look Big in This?, depicts herself as “colourful adjectives” (such as “darkies”, “towel-heads”, or the “salami eaters”), painful identities imposed on her for being a Muslim woman of colour. These ultimately empower her to embrace her identity as a Palestinian-Egyptian-Australian Muslim writer (Abdel-Fattah 359). In the process, Abdel-Fattah reveals how mainstream feminism participates in her marginalisation: “You’re constantly made to feel as you’re commenting as a Muslim, and somehow your views are a little bit inferior or you’re somehow a little bit more brainwashed” (Abdel-Fattah, interviewed in 2015).With her parental roots in the global South (Egyptian mother and Palestinian father), Abdel-Fattah was born and brought up in the global North, Australia (although geographically located in global South, Australia is categorised as global North for being above the world average GDP per capita) where she embraced her faith and religious identity apparently because of Islamophobia:I refuse to be an apologist, to minimise this appalling state of affairs… While I'm sick to death, as a Muslim woman, of the hypocrisy and nonsensical fatwas, I confess that I'm also tired of white women who think the answer is flashing a bit of breast so that those "poor," "infantilised" Muslim women can be "rescued" by the "enlightened" West - as if freedom was the sole preserve of secular feminists. (Abdel-Fattah, "Ending Oppression")Abdel-Fattah’s residency in the global North while advocating for justice and equality for Muslim women in both the global North and South is a classic example of the mutual dependency between the feminists in global North and global South, and the need to recognise and resist neoliberal policies applied in by the North to the South. In her novel, sixteen-year-old Amal Mohamed chooses to become a “full-time” hijab wearer in an elite school in Melbourne just after the 9/11 tragedy, the Bali bombings which killed 88 Australians, and the threat by Algerian-born Abdel Nacer Benbrika, who planned to attack popular places in Sydney and Melbourne. In such turmoil, Amal’s decision to wear the hijab amounts to more than resistance to Islamophobia: it is a passionate search for the true meaning of Islam, an attempt to embrace her hybridity as an Australian Muslim girl and above all a step towards seeking spiritual self-fulfilment. As the novel depicts Amal’s challenging journey amidst discouraging and painful, humiliating experiences, the socially constructed “bloody confusing identity hyphens” collapse (5). What remains is the beautiful veil that stands for Amal’s multi-valence subjectivity. The different shades of her hijab reflect different moods and multiple “selves” which are variously tentative, rebellious, romantic, argumentative, spiritual, and ambitious: “I am experiencing a new identity, a new expression of who I am on the inside” (25).In Griffith Review, Randa-Abdel Fattah strongly criticises the book Nine Parts of Desire by Geraldine Brooks, a Wall-Street Journal reporter who travelled from global North to the South to cover Muslim women in the Middle East. Recognising the liberal feminist’s desire to explore the Orient, Randa-Abdel calls the book an example of feminist Orientalism because of the author’s inability to understand the nuanced diversity in the Muslim world, Muslim women’s purposeful downplay of agency, and, most importantly, Brooks’s inevitable veil fetishism in her trip to Gaza and lack of interest in human rights violations of Palestinian women or their lack of access to education and health services. Though Brooks travelled from Australia to the Middle East, she failed to develop partnerships with the women she met and distanced herself from them. This underscores the veracity of Amal’s observation in Abdel Fattah’s novel: “It’s mainly the migrants in my life who have inspired me to understand what it means to be an Aussie” (340). It also suggests that the transnational feminist ethic lies not in the global North and global South paradigm but in the fluidity of migration between and among cultures rather than geographical boundaries and military borders. All this argues that across the imperial cartography of discrimination and oppression, women’s solidarity is only possible through intercultural and syncretistic negotiation that respects the individual and the community.ReferencesAbdel-Fattah, Randa. Does My Head Look Big in This? Sydney: Pan MacMillan Australia, 2005.———. “Ending Oppression in the Middle East: A Muslim Feminist Call to Arms.” ABC Religion and Ethics, 29 April 2013. <http://www.abc.net.au/religion/articles/2013/04/29/3747543.htm>.———. “On ‘Nine Parts Of Desire’, by Geraldine Brooks.” Griffith Review. <https://griffithreview.com/on-nine-parts-of-desire-by-geraldine-brooks/>.Agarwal, Bina. A Field of One’s Own: Gender and Land Rights in South Asia. Cambridge: Cambridge University, 1994.Amissah, Edith Kohrs. Aspects of Feminism and Gender in the Novels of Three West African Women Writers. Nairobi: Africa Resource Center, 1999.Andolina, Robert, Nina Laurie, and Sarah A. Radcliffe. Indigenous Development in the Andes: Culture, Power, and Transnationalism. Durham, NC: Duke University Press, 2009.Anzaldúa, Gloria E. Borderlands/La Frontera: The New Mestiza. San Francisco: Aunt Lute Books, 1987.Bakare-Yusuf, Bibi. “Fabricating Identities: Survival and the Imagination in Jamaican Dancehall Culture.” Fashion Theory 10.3 (2006): 1–24.Basu, Amrita (ed.). Women's Movements in the Global Era: The Power of Local Feminisms. Philadelphia: Westview Press, 2010.Bulbeck, Chilla. Re-Orienting Western Feminisms: Women's Diversity in a Postcolonial World. Cambridge: Cambridge University Press, 1998.Connell, Raewyn. “Meeting at the Edge of Fear: Theory on a World Scale.” Feminist Theory 16.1 (2015): 49–66.———. “Rethinking Gender from the South.” Feminist Studies 40.3 (2014): 518-539.Daniel, Eniola. “I Work toward the Liberation of Women, But I’m Not Feminist, Says Buchi Emecheta.” The Guardian, 29 Jan. 2017. <https://guardian.ng/art/i-work-toward-the-liberation-of-women-but-im-not-feminist-says-buchi-emecheta/>.Devi, Mahasveta. "Draupadi." Trans. Gayatri Chakravorty Spivak. Critical Inquiry 8.2 (1981): 381-402.Friedman, Susan Stanford. Planetary Modernisms: Provocations on Modernity across Time. New York: Columbia University Press, 2015.Grewal, Inderpal, and Caren Kaplan. Scattered Hegemonies: Postmodernity and Transnational Feminist. Minneapolis: University of Minnesota Press, 1994.Hale, Sondra. “Transnational Gender Studies and the Migrating Concept of Gender in the Middle East and North Africa.” Cultural Dynamics 21.2 (2009): 133-52.hooks, bell. “Eating the Other: Desire and Resistance.” Black Looks: Race and Representation. Boston: South End Press, 1992.Langton, Marcia. “‘Grandmother’s Law’, Company Business and Succession in Changing Aboriginal Land Tenure System.” Traditional Aboriginal Society: A Reader. Ed. W.H. Edward. 2nd ed. Melbourne: Macmillan, 2003.Lazreg, Marnia. “Feminism and Difference: The Perils of Writing as a Woman on Women in Algeria.” Feminist Studies 14.1 (Spring 1988): 81-107.Liew, Stephanie. “Subtle Racism Is More Problematic in Australia.” Interview. music.com.au 2015. <http://themusic.com.au/interviews/all/2015/03/06/randa-abdel-fattah/>.Lorde, Audre. “The Uses of Anger: Women Responding to Racism.” Keynoted presented at National Women’s Studies Association Conference, Storrs, Conn., 1981.Mernissi, Fatima. The Veil and the Male Elite: A Feminist Interpretation of Women’s Rights in Islam. Trans. Mary Jo Lakeland. New York: Basic Books, 1991.Moghadam, Valentine. Modernizing Women: Gender and Social Change in the Middle East. London: Lynne Rienner Publishers, 2003.Mohanty, Chandra Talpade. Feminism without Borders: Decolonizing Theory, Practicing Solidarity. Durham, NC: Duke University Press, 2003.Moreton-Robinson, Aileen. Talkin' Up to the White Woman: Aboriginal Women and Feminism. St Lucia: Queensland University Press, 2000.Morgan, Robin (ed.). Sisterhood Is Global: The International Women's Movement Anthology. New York: The Feminist Press, 1984.Narayan, Uma. Dislocating Cultures: Identities, Traditions, and Third World Feminism, 1997.

Photo by Filip Mroz on Unsplash INTRODUCTION The first live births via uterine transplant using deceased donors (UTx) occurred in Brazil in 2017[1] and in the United States in 2019.[2] Prior to that, living donors were the source of uteruses for transplant, with the first successful birth in Sweden in 2014, and the first successful birth in the US in 2017. This achievement in reproductive technology gives women with absolute uterine factor infertility (AUFI) the option to become a biological parent. In the US, 120,000 women of childbearing age are affected by AUFI.[3] Without UTx, their only option for having genetically related children is through gestational surrogacy. Since some religions and cultures prohibit the use of surrogates to achieve motherhood and surrogacy is illegal in many countries, some women would not otherwise have the chance to have biological children. For instance, China, Finland, Germany, Iceland, and other countries prohibit any form of commercial or altruistic surrogacy making adoption the only option for becoming a mother. However, in many cultures, biological ties are central to the understanding of the family. For example, in the Middle East, adoption is uncommon because biological connections are crucial.[4] Therefore, the only option these women would choose to become a mother is UTx. The exclusive value of UTx to these women is being able to experience pregnancy. Thus, UTx gives unique benefits to these women that adoption or surrogacy would not. The procedure entails surgery on a living or deceased donor to acquire the uterus. Then, the recipient undergoes transplantation followed by a course of immunosuppressive medication. After in vitro fertilization (IVF), the embryo is implanted into the transplanted uterus. If the pregnancy progresses, the child is delivered by C-section and the uterus is removed either simultaneously or later. This paper argues that both deceased and living donors should be permitted, while increased-risk donors should not be eligible. ANALYSIS l. Permitting Living Donors or Limiting all UTx to Deceased Donors The ethics of using a uterus from a deceased donor differs from using one from a living donor. The biggest concern for living donation is that it exposes the donor to unacceptable risks, especially considering that the procedure is elective and not life-saving. In other types of transplants, the sacrifice is warranted because the organ is needed to save the recipient's life. For instance, living kidney donations protect against kidney failure.[5] The uterine donor undergoes a four to eight-hour surgery to acquire the uterus for no potential health benefit to themselves or arguably, to the recipient.[6] UTx is not a life-saving procedure. Some argue that because there is no imminent threat to the health of patients with AUFI, it is unnecessary to expose live donors to risks of UTx. While treating AUFI is not technically medically necessary, many women find infertility debilitating to their physical and mental health. As a result, women want their infertility treated. Now that UTx with deceased donors has been successful, the ethical justification for continuing to allow living donation could be questioned. UTx from deceased donors cannot harm the donor and thus has a different overall risk-benefit calculation. It is reasonable to believe that opponents of living donation may view UTx from deceased donors as ethically permissible. From the public health and ethical perspective, retrieving uteruses from deceased donors is a preferable option for the following reasons: First, there is no medical risk to the donor; thus, public resources do not need to be allocated to resolving the potential complications from the procedure. Additionally, acquiring a uterus from a deceased donor takes less time than from a living donor.[7] Using deceased donors also decreases operating room visits compared to living-donor uterus acquisition, and allocates more time for the operating room to perform other procedures. However, without living donors, the pool of available uteruses for transplantation narrows. In 2017, there were 2,200 deceased female donors aged 18-47 in the US, defined as those willing to donate, not those with a procurable and usable uterus, or even a uterus at all.[8] 2,200 is an extremely low number of potential uterus donors considering that there are more than 120,000 women with AUFI in the US. Not every available uterus is suitable for donation; each must pass quality control. These donors could have had a hysterectomy, no pregnancies (having had a pregnancy makes the uterus more suitable for transplant), papillomavirus infection, or other conditions that would prevent them from being uterus donors.[9] Therefore, the number of potentially suitable uteruses from deceased donors is probably lower than 2,200. There is significant uterus scarcity. To expand the donor pool, living-donor transplants should be allowed to continue. Using living donors respects individual autonomy. The uterus does not serve a vital purpose and women who have had successful pregnancies and do not want to become pregnant again can donate without a concern for their own fertility. Because most living donors are related to the recipients, they will also benefit from this procedure since it would enable them to have family relationships, perhaps becoming an aunt or grandparent. By decreasing wait time, allowing living donors also would provide the option of UTx while women are younger and more likely to achieve pregnancy since the IVF would be more likely to succeed increasing the chances that UTx would result in a child. ll. Increased-Risk Donors To further expand the pool of donors, some favor making organs from “increased-risk” donors available to recipients. Increased-risk donors range from those with a history of IV drug use or certain sexual or behavioral histories.[10] The main risk associated with transplantation from increased-risk donors is the possibility of transmission of infections like HIV, hepatitis B, or hepatitis C. Whether the scarcity of transplantable uteruses makes it ethical to include increased-risk donors in the UTx donor pool, assuming there is still a scarcity once other qualified living donors are permitted depends on the risks and benefits. The organs of increased-risk donors are offered to patients for life-saving procedures such as a liver transplant.[11] For example, since the donor pool in South Africa is small, in one case, the best option was for a child to receive a partial liver transplant from his HIV-positive mother. The donation was approved to save the life. The risk of HIV infection, and the need for lifetime antiretroviral therapy paled in comparison to death due to the unavailability of a deceased or low-risk liver donor.[12] Yet, UTx is not a life-saving procedure. Because infertility treatment is not lifesaving, the risks do not outweigh the benefits. Increased-risk donations use the organs that otherwise may have been disposed of (or rejected by potential recipients) categorically even if a donor did not actually have the underlying disease like HIV, hepatitis B, or hepatitis C.[13] Yet increased-risk donations pose ethically unacceptable risks to the recipient and their fetus in the case of UTx. If the patient remained on the waitlist for a uterus transplant, she and the resulting fetus would forgo the risks associated with using an increased-risk donor. It is possible that being on a waitlist could be psychologically traumatizing for a patient. This does not justify the potential to expose the woman and possibly a fetus to HIV, or hepatitis B or hepatitis C if an increased-risk donor provided a uterus and had an undetected condition While infertility may be devastating to the women wanting UTx, UTx should not be treated as a life-saving procedure. Therefore, it is unethical to expand the donor pool to include increased-risk donors. lll. Potential Downsides of the Availability of Uterine Transplant The availability of UTx to the public may impose additional pressure on women affected by infertility to try an additional burdensome procedure before giving up genetic motherhood. In cultures where family ties are important, the spouse or family members may pressure women to undergo UTx for the benefit of having biological children. Moreover, it may add overall pressure on the women to become mothers and exacerbate the deficiency stigma on infertile women. Moreover, the availability of UTx may compromise the future of many children who are waiting for adoption. Adoption may start to be seen by others only as a last resort after attempting to have biological children. This is problematic because there are many already existing children who need parental love. These downsides can be addressed by assurances that women freely enter UTx. Counseling and assurances that women are acting of their own accord and not under duress or societal pressure can mitigate the downsides. The autonomy and the choice to engage in new assisted reproduction should not be dismissed out of a fear that women are choosing UTx for the wrong reasons. CONCLUSION UTx offers women with AUFI unique benefits like the experience of pregnancy and having children genetically related to them. A woman deciding whether to receive a uterus from a living or deceased donor, or not to undergo UTx at all should understand the risks and benefits, including the risk of the UTx not resulting in a viable pregnancy. Doctors or hospitals should decide whether to perform UTx on a case-by-case basis. Increased-risk donation that could expose the recipient and fetus to transmissible disease should be prohibited because the risks associated with increased-risk donation are not morally justified by UTx. Remaining on the transplant list would be safer. While increased-risk UTx should be prohibited, other living-donor procedures should be continued to widen the donor pool. Living-donor UTx will empower the donor since she will voluntarily make the decision to donate, helping another person. Women with infertility whose only chance to have a biological child should not be limited to uteruses supplied by deceased donors. [1] France 24, “First Baby Born after Uterus Transplant in France,” France 24 (France 24, February 17, 2021), https://www.france24.com/en/live-news/20210217-first-baby-born-after-uterus-transplant-in-france. [2] “For the First Time in North America, a Woman Gives Birth After Uterus Transplant From a Deceased Donor,” Health Essentials from Cleveland Clinic (Health Essentials from Cleveland Clinic, July 9, 2019), https://health.clevelandclinic.org/for-the-first-time-in-north-america-woman-gives-birth-after-uterus-transplant-from-deceased-donor/. [3] Max M. Maurer et al., “First Healthy Baby After Deceased Donor Uterus Transplantation: Birth to a New Era?” Transplantation 103, no. 4 (2019): pp. 652-653, https://doi.org/10.1097/tp.0000000000002627. [4] Yassari, N. “Adding by Choice: Adoption and Functional Equivalents in Islamic and Middle Eastern Law.” The American Journal of Comparative Law, 63(4), 927-962. Retrieved April 22, 2021, from https://www.jstor.org/stable/26425445 (Acknowledges that traditional Islamic law prohibits adoption but arguing jurisdictions have worked around the prohibition to create avenues toward adoption.) [5] Though some people might argue that dialysis would be an option, generally kidney transplants are justified by medical necessity and a transplant both saves the life and significantly improves quality of life compared to dialysis. [6] “Uterus Transplants: A New Door Opens,” Penn Medicine, April 29, 2019, https://www.pennmedicine.org/news/internal-newsletters/system-news/2019/may19/uterus-transplants-a-new-door-opens. [7] Niclas Kvarnström et al., “Live versus Deceased Donor in Uterus Transplantation,” Fertility and Sterility 112, no. 1 (2019): pp. 24-27, https://doi.org/10.1016/j.fertnstert.2019.05.029, 25. [8] Max M. Maurer et al., “First Healthy Baby After Deceased Donor Uterus Transplantation: Birth to a New Era?” Transplantation 103, no. 4 (2019): pp. 652-653, https://doi.org/10.1097/tp.0000000000002627, 653. [9] Max M. Maurer et al., “First Healthy Baby After Deceased Donor Uterus Transplantation: Birth to a New Era?” Transplantation 103, no. 4 (2019): pp. 652-653, https://doi.org/10.1097/tp.0000000000002627, 653. [10] Shelly Bansal et al., “Risky Business: Taking the Stigma Out of High-Risk Donation in Lung Transplantation,” The Annals of Thoracic Surgery 100, no. 5 (2015): pp. 1787-1794, https://doi.org/10.1016/j.athoracsur.2015.05.065, 1787. The Centers for Disease Control (CDC) define the high-risk donor if a person meets one or more of the following criteria: “1) men who have had sex with other men in the last 5 years, 2) a history of intravenous drug abuse, 3) persons who have hemophilia, 4) persons who have engaged in sex for money or drugs in the past 5 years, 5) persons who have engaged in sex with individuals who have high-risk behaviors or those that are suspected to have HIV, 6) anyone who has been exposed to HIV in the last 12 months, 7) inmates, and 8) children born to mothers who had HIV or mothers who met the criteria for high risk. [11] Jean Botha et al., “HIV and Solid Organ Transplantation: Where Are We Now,” Current HIV/AIDS Reports 16, no. 5 (April 2019): pp. 404-413, https://doi.org/10.1007/s11904-019-00460-7, 404. Harriet Rosanne Etheredge et al., “Needs Must: Living Donor Liver Transplantation from an HIV-Positive Mother to Her HIV-Negative Child in Johannesburg, South Africa,” Journal of Medical Ethics 45, no. 5 (2019): pp. 287-290, https://doi.org/10.1136/medethics-2018-105216. (A partial liver transplant was done from an HIV-positive mother to an HIV-negative child in South Africa in 2017). [12] Botha, et al. [13] David S. Goldberg and Josh Levitsky, “Transplanting Livers from HCV ‐Infected Donors into HCV ‐Negative Recipients: Promise but Mind the Pitfalls,” American Journal of Transplantation 19, no. 5 (December 2018): pp. 1264-1265, https://doi.org/10.1111/ajt.15193, 1264.