Preparation for the Study of Theories of Law: Non-Universality of Law, Irreconcilable Epistemologies, Ideological Incipience; Theories in Metaphysical-Rational Epistemology: Divine and Prophetic Theories; Natural Law: Early Hindu, Chinese, Greek, Roman, and Modern; Theories in Idealist Epistemology; Theories in Empiricist Epistemology; Positivist: Early Hindu, Chinese, Later Bentham, Austin, Kelsen, Hart; Historical Von Savigny, Maine, Marx and Engels; Sociological Jhering, Ehrlich, Duguit, Jurisprudence of Interests, Free Law; Psychological Petrazycki; American Realist; Philosophical Framework; Expressions; Scandinavian Realist; Phenomenological; The Critical Legal Studies (...) and its Offshoots: Critical Legal Studies, Feminist Jurisprudence, Critical Race Theory; Legal Polycentricity. (shrink)

This essay examines the iconography and role of animals in medieval and early modern bestiaries. In being without original sin “God’s creatures” were deemed proximate to divine perfection and to salvation. Animals, whether symbolic or actual, both instructed man’s moral behaviour and ushered man towards salvation. Bestiaries, it will be argued, are keys to understanding how modern law would eventually co-ordinate itself in relation to the concept of a future salvic moment.

This article reviews al‐Ghazālī's conception of Divine Command Theory (DCT) in light of contemporary philosophical developments. There are two well‐known objections against DCT. These include the problem of arbitrariness (PoA), which states that God randomly chose our moral framework for no reason given His capability to choose any moral commands; and the problem of God's goodness (PoGG), which questions God's goodness if morality could be other than what it is. Modern defenders of DCT have attempted to counter these objections (...) through various strategies. This article juxtaposes al‐Ghazālī's interpretation of DCT with modern strategies to illustrate how these two issues are untroubling concerns in al‐Ghazālī's framework. In doing so, it highlights where and how they differ in their approaches. Additionally, it critiques interpretations suggested by some contemporary thinkers who suggest that al‐Ghazālī may not be a strict proponent of DCT. (shrink)

Al-Shafi'i (d. 820) is clearly one of the most important figures in the early history of Islamic jurisprudence. His Risala or "Treatise" on the "principles of jurisprudence" (usul al-fiqh) is also of interest as an example of an approach to ethics that focuses on divine commands. Following a brief introduction, I offer the reader a few comments about al-Shafi'i's context. I summarize the content of the Risala and then analyze it as an example of divine command (...) reasoning in ethics. Finally, I present some observations on the place of al-Shafi'i's theory in the history of Islamic ethics, particularly with respect to his comments on ikhtilaf, "disagreement.". (shrink)

Theories of ethics that attempt to incorporate divine speech or commands as necessary elements in the construction of moral obligations are often viewed as vulnerable to a challenge based on the so-called Euthyphro dilemma. According to this challenge, opponents of theistic ethics suppose that divine speech either informs one of a preexisting set of values and obligations, which makes it inconsequential, or is entirely arbitrary, which makes it irrational. This essay analyzes some of the debates on the nature (...) of divine commands in eleventh-century works of Islamic jurisprudence. I show that Muʿtazilī jurisprudents advanced the view that divine commands were actions performed in time that had concrete manifestations, while Ashʿarīs argued that divine speech in general, and commands in particular, were eternal divine attributes. After exposing certain weaknesses in the Euthyphro-inspired objections to theistic ethics, I argue that the Ashʿarī idea of commands as divine attributes is a promising move for scholars interested in defending a divine command view of moral obligation. (shrink)

Even though the Islamic legal tradition advanced its own set of conceptions of time, modern scholarship on Islamic law has not paid much attention to these conceptions. This paper argues that Islamic jurisprudents understood time in moral terms, not as a neutral container or mere background for action, but as a series of opportunities in which the authority of divine revelation and human moral reasoning are articulated. I suggest that the debates over the manners of compliance with divine (...) commands in time were attempts at reaching some form of balance between the considerations of faithfulness to the demands of divine revelation and the practical imperatives of human temporal lives. This argument is advanced through a study of classical debates among jurists within the two major Sunnī schools of jurisprudence on the specific question of whether divine commands that are devoid of time indications should result in immediate or delayed performance. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Commandment against the Law Writing and Divine Justice in Walter Benjamin’s “Critique of Violence”Tracy McNulty (bio)Pierre Legendre has shown that the Romano-canonical legal traditions that form the foundations of Western jurisprudence “are founded in a discourse which denies the essential quality of the relation of the body to writing” [“Masters of Law” 110]. It emerges historically as a repudiation of Jewish legalism and Talmud law, where (...) the rite of circumcision encodes the subject’s entry into law as an “allegiance to the absolute Writing,” or the “relationship between the human subject and the logical place of the Other” [110–11; see also “les juifs”]. In this shift, one understanding of writing is displaced by another: the material inscription of the letter, as an incommunicable limit or cut, is supplanted by the fantasy of what Legendre calls a “living writing,” a writing “in the heart” that promotes an ideal of perfect communication in which nothing is lost, in which meaning is lodged in an absolute Other who guarantees all knowledge. In his words, “we belong to a culture in which a mystically alienated human body stands in the place of the absolute book. The state has emerged from this structure.... Its basic characteristics can be set out by means of a fundamental Romano-pontifical maxim: the Emperor carries all the archives in his breast (omnia scrinia habet in pectore suo)” [“Masters of Law” 109].The ultimate theological source of this Roman maxim is Paul’s polemic against the Jewish law in the Epistle to the Romans. Paul’s polemic is structured by a distinction between two orders of law: the “law of God” and the “law of sin.” The first is associated with the intelligible “spirit” of the law, which is “written in the heart,” the second with the prescriptive “letter” of the Jewish law, which compromises or corrupts the first by binding it to a particular representation and consigning it to written form. Paul’s solution is to bypass the law, to bypass representation, and perhaps even language itself. The prescriptive “letter” of the Jewish law must be sublated by the law of the spirit, such that “we serve not under the old written code but in the new life of the Spirit” [Romans 7: 6]. Christ, as the living embodiment of the law of God, upholds the spirit of the law by “fulfilling”––and so rendering obsolete–its written form.The doctrine of Christ as the “living law” sustains what Legendre describes as a “banalisation of writing” [“Masters of Law” 111], a disregard for its material inscription that holds the letter to be nothing more than a placeholder, a flawed or incomplete representation of a meaning or truth that is itself beyond words. At the same time, it makes possible the legal and political fantasy of a living writing, located in a single body understood as the site of interpretive authority. The extraction of a meaning or truth from the intractable letter becomes the ultimate aim of the legal order and the most lofty task of its sovereign interpreter, uniquely charged with animating the dead letter. This notion permeates what Peter Goodrich describes as “the most standard protocols of legal reading,” according to [End Page 34] which “it is not the letter but the spirit that determines the meaning of the law”:The text is composed of dead letters (litera mortua); the rule is no more than a “mute judge,” a sleeping form, requiring the interposition, anima legis, of jurist or judge.... [T]he meaning of the law is internal to its living body, viva vox iuris or lex loquens, its image, interpreter, or legislator. In classical terms it is spelled out by reference to something beyond words: “to know the law is not to know the words of the law, but its force and power.” In a renaissance formulation we are similarly told that “no words, forms, niceties, or propriety of language is of any regard in the Civil Law, in comparison to truth, faithfulness and integrity. For verba menti, non verbis servire debet; words, are made as instruments to serve and express the mind, and not to command it.”[229–30]1... (shrink)

In this book, Omar Farahat presents a new way of understanding the work of classical Islamic theologians and legal theorists who maintained that divine revelation is necessary for the knowledge of the norms and values of human actions. Through a reconstruction of classical Ashʿarī-Muʿtazilī debates on the nature and implications of divine speech, Farahat argues that the Ashʿarī attachment to revelation was not a purely traditionalist position. Rather, it was a rational philosophical commitment emerging from debates in epistemology (...) and theology. He further argues that the particularity of this model makes its distinctive features helpful for contemporary scholars who defend a form of divine command theory. Farahat's volume thus constitutes a new reading of the issue of reason and revelation in Islam and breaks new ground in Islamic theology, law and ethics. (shrink)

In contrast to classical natural law theory and traditional individualist liberalism, James Luther Adams develops a version of natural law doctrine grounded in liberal religion. In its ontological dimension, his natural law doctrine is derived from a communal understanding of the character of reality. In its institutional dimension, his natural law doctrine promotes a kind of democracy in which freedom of association is central. From this perspective, law is a practice intended to empower persons through their several associations in the (...) constant formation and transformation of community under the direction of divine power. (shrink)

This is Warrior Yoga, New York Times bestselling author and retired Navy SEAL Commander Mark Divine's latest contribution to mental and physical achievement exercises started with 8 Weeks to SEALFIT and Unbeatable Mind. This is not your average yoga book. Using Coach Divine's signature integrated training curriculum, Warrior Yoga is an intense physical workout designed for both the nation's elite special ops soldiers, and the regular athlete with the heart and mind of a warrior. His tried and true (...) warrior sequences are designed to be simple and flexible. These short, powerful drills can be done from home or on the road to enhance existing workout regimens and cultivate new ones. The sequences are targeted and focused to adapt to any athlete's physical and mental capabilities including those rehabilitating from injuries and suffering from PTSD. Mark's decades of experience with amateur and professional athletes, active and aspiring Navy SEALS, and wounded warriors uniquely qualify him as an expert motivator and teacher. To be a SEALFITTM Yoga Warrior requires a harmonious balance between mental and physical toughness, strength, and agility. Mark's short digestible exercises will help any athlete hone their fitness routine to reach their fullest potential, combining the physical, emotional and spiritual aspects of an unbeatable mind and body program. (shrink)

The question of whether individuals retain interests or can be harmed after death is highly contentious, particularly within the context of deceased organ retrieval, retention and use. This paper argues that posthumous interests and/or harms can and do exist in the Konkomba traditional setting through the concept of ancestorship, a reputational concept of immense cultural and existential significance in this setting. I adopt Joel Feinberg’s account of harms as a setback to interests. The paper argues that a socio-culturally sensitive regulatory (...) framework does not necessarily exclude the donation of human biomaterials for transplant and science research. Indeed, when customary values are explored with open-mindedness and sensitivity it may be shown that such donation can form part of the important customs of some communities in this jurisdiction. Accordingly, a context-appropriate governance framework could utilise the cultural value of ancestorship as an incentive to encourage organ donation in the Ghanaian traditional setting. (shrink)

Over the past 25 years, no religious institution in America has done more to explore the link between the environment and spirituality than the Cathedral of St. John the Divine. Now, for the first time, a selection of the finest of the Cathedral's ecological sermons appears in a single volume.

Physical activity, and likely the motivation for it, varies throughout the day. The aim of this investigation was to create a short assessment (CRAVE: Cravings for Rest and Volitional Energy Expenditure) to measure motivation states (wants, desires, urges) for physical activity and sedentary behaviors. Five studies were conducted to develop and evaluate the construct validity and reliability of the scale, with 1,035 participants completing the scale a total of 1,697 times. In Study 1, 402 university students completed a questionnaire inquiring (...) about the want or desire to perform behaviors “at the present moment (right now).” Items related to physical activity (e.g., “move my body”) and sedentary behaviors (e.g., “do nothing active”). An exploratory structural equation model (ESEM) revealed that 10 items should be retained, loading onto two factors (5 each for Move and Rest). In Study 2, an independent sample (n= 444) confirmed these results and found that Move and Rest desires were associated with stage-of-change for exercise behavior. In Study 3, 127 community-residing participants completed the CRAVE at 6-month intervals over two years- two times each session. Across-session interclass correlations (ICC) for Move (ICC = 0.72–0.95) and Rest (ICC = 0.69–0.88) were higher than when they were measured across 24-months (Move: ICC = 0.53; Rest: ICC = 0.49), indicating wants/desires have state-like qualities. In Study 4, a maximal treadmill test was completed by 21 university students. The CRAVE was completed immediately pre and post. Move desires decreased 26% and Rest increased 74%. Changes in Move and Rest desires were moderately associated with changes in perceived physical fatigue and energy. In Study 5, 41 university students sat quietly during a 50-min lecture. They completed the CRAVE at 3 time points. Move increased 19.6% and Rest decreased 16.7%. Small correlations were detected between move and both perceived energy and tiredness, but not calmness or tension. In conclusion, the CRAVE scale has good psychometric properties. These data also support tenets of the WANT model of motivation states for movement and rest (Stults-Kolehmainen et al., 2020a). Future studies need to explore how desires to move/rest relate to dynamic changes in physical activity and sedentarism. (shrink)

Religion, law, and politics: historical contexts -- Religion and the limits of philosophy -- The prince and the church: the critique of Lutheran papalism -- Ecclesiastical history and the rise of clerical tyranny -- The history of Roman law -- Natural law (I): the institutes of divine jurisprudence -- Natural law (II): the transformation of Christian Thomasiuss natural jurisprudence -- The interpretation of nature -- Conclusion: reason and faith in the early German Enlightenment.

This chapter contains section titled: Thomasius Wolff Crusius, Baumgarten, and Lessing Writings.

American jurisprudence currently applies two incompatible validity standards to determine which laws are enforceable. The natural law tradition evaluates validity by an uncertain standard of divine law, and its methodology relies on contradictory views of human reason. Legal positivism, on the other hand, relies on a methodology that commits the analytic fallacy, separates law from its application, and produces an incomplete model of law. These incompatible standards have created a schism in American jurisprudence that impairs the delivery (...) of justice. This dissertation therefore formulates a new standard for legal validity. This new standard rejects the uncertainties and inconsistencies inherent in natural law theory. It also rejects the narrow linguistic methodology of legal positivism. In their stead, this dissertation adopts a pragmatic methodology that develops a standard for legal validity based on actual legal experience. This approach focuses on the operations of law and its effects upon ongoing human activities, and it evaluates legal principles by applying the experimental method to the social consequences they produce. Because legal history provides a long record of past experimentation with legal principles, legal history is an essential feature of this method. This new validity standard contains three principles. The principle of reason requires legal systems to respect every subject as a rational creature with a free will. The principle of reason also requires procedural due process to protect against the punishment of the innocent and the tyranny of the majority. Legal systems that respect their subjects' status as rational creatures with free wills permit their subjects to orient their own behavior. The principle of reason therefore requires substantive due process to ensure that laws provide dependable guideposts to individuals in orienting their behavior. The principle of consent recognizes that the legitimacy of law derives from the consent of those subject to its power. Common law custom, the doctrine of stare decisis, and legislation sanctioned by the subjects' legitimate representatives all evidence consent. The principle of autonomy establishes the authority of law. Laws must wield supremacy over political rulers, and political rulers must be subject to the same laws as other citizens. Political rulers may not arbitrarily alter the law to accord to their will. Legal history demonstrates that, in the absence of a validity standard based on these principles, legal systems will not treat their subjects as ends in themselves. They will inevitably treat their subjects as mere means to other ends. Once laws do this, men have no rest from evil. (shrink)

A perennial question of jurisprudence has been whether there is a relationship between law and morality. Those who believe that there is no such relationship are known as while those who hold that some such relationship exists are usually tagged with the label Unfortunately, the latter phrase has been used in quite divergent senses. Sometimes it is used to designate any objectivist position about morality; as often, it labels the view that human nature determines what is objectively good or (...) right; and perhaps as often, it labels the view that some natural facts other than facts about human nature determine what is objectively good or right; and sometimes the label presupposes some divine origins to both morality and human law. (shrink)

Justice is a constant and perpetual will to give every man his due. The principles of law are these: to live virtuously, not to harm others, to give his due to everyone. Jurisprudence is the knowledge of divine and human things, the science of the just and the unjust. Law is the art of goodness and justice. By virtue of this [lawyers] may be called priests, for we cherish justice and profess knowledge or goodness and equity, separating right (...) from wrong and legal from the illegal. (shrink)

This paper explores artificial intelligence (AI) ethics from an Islamic perspective at a critical time for AI ethical norm-setting. It advocates for a pluralist approach to ethical AI benchmarking. As rapid advancements in AI technologies pose challenges surrounding autonomy, privacy, fairness, and transparency, the prevailing ethical discourse has been predominantly Western or Eurocentric. To address this imbalance, this paper delves into the Islamic ethical traditions to develop a framework that contributes to the global debate on optimal norm setting for designing (...) and using AI technologies.The paper outlines Islamic parameters for ethical values and moral actions in the context of AI's ethical uncertainties. It emphasizes the significance of both textual and non-textual Islamic sources in addressing these uncertainties while placing a strong emphasis on the notion of "good" or "maṣlaḥa" as a normative guide for AI's ethical evaluation. Defining maṣlaḥa as an ethical state of affairs in harmony with divine will, the paper highlights the coexistence of two interpretations of maṣlaḥa: welfarist/utility-based and duty-based. Islamic jurisprudence allows for arguments supporting ethical choices that prioritize building the technical infrastructure for AI to maximize utility. Conversely, it also supports choices that reject consequential utility calculations as the sole measure of value in determining ethical responses to AI advancements. (shrink)

The Zaydī-Muʿtazilī interaction, which dates back to the early periods, increased when The Būyid vizier al-Ṣāḥib b. ʿAbbād invited Qāḍī ʿAbd al-Jabbār to Rayy and many Caspian Zaydī scholars studied with Qāḍī. Ibn Sharwīn, who is mentioned among the students of Qāḍī ʿAbd al-Jabbār and accepted as one of the Zaydī- Muʿtazilī scholars, is one of these names. The works of Ibn Sharwīn, who had writings in the field of kalām and fiqh, did not remain within the borders of the (...) Caspian and reached the Zaydīs of Yemen; one of these works is Ḥaqāʾiq al-ashyāʾ. Considering that, unlike other theological schools, there are not many works on the definitions of theological concepts in Muʿtazilī literature and -as far as is known- did not reach today, this treatise helps to understand better especially the terms in Zaydī- Muʿtazilī theology and the effects of Bahshamiyya on Zaydī thought. This work, edited and translated based on the only extant manuscript only manuscript found in Yemen and a previous publication, on the one hand, is important in understanding the point of view of Zaydī- Muʿtazilī thought on the disciplines of theology, jurisprudence, debate, history of Islamic sects, on the other hand, it is a helpful resource for understanding the terms used in the theory of aḥwāl, which is still an intricate issue. Ibn Sharwīn in his Ḥaqāʾiq al-ashyāʾ; explains over 150 terms in relation to cosmology such as substance, accident, line, surface, space; to ontology such as existing, non-existence, originated (muḥdath); to epistemology such as knowledge, creed, ignorance, doubt, skepticism, obligatory and acquired knowledge; to methodology such as evidence, madlūl, debate, and disputation; to fiqh such as sunnah, farḍ, mandūb, cause, command-prohibition, general-particular (ʿumūm-ḫuṣūṣ); to the history of sects such as ʿadliyya, compulsionists (mujbira) and qadarī; to divinity such as the oneness of God (tawhīd); to justice such as promise and threat (al-waʿd wa-l-waʿīd), good and evil, necessary and acquired, grace, compensation, repentance, major and minor sins; to the theory of al-aḥwāl such as attribute of the essence, determinant (muḳtaḍī), entail (muḳtaḍā), muṣaḥḥiḥ, cause. Describing ḥadd that corresponds to “definition” and ḥaḳīḳat that he used together with it as collectively exhaustive, mutually exclusive, Ibn Sharwīn defines knowledge, power, living (ḥayy), speech (kalām), speaker (mutakallim), permanent (bāqī) etc. in a way that is true for both God and human beings. While making these definitions, he draws on poems, linguistic usages and verses and divides the nouns into three parts at the end of his work, namely linguistic, religious and conventional (sharʿī and waḍʿī); in particular, he gives detailed information about metaphors and parts of truth. Another striking aspect of the work is the explanation of the meanings of the imperative mood which is included in the subjects of the Methodology of Fiqh. (shrink)

The Italian scholar Giovanni Battista Vico is widely viewed as the first modern philosopher of history, a judgment largely based on his obscure 1744 masterpiece, New Science. In this new study Mark Lilla complicates this picture by presenting Vico as one of the most troubling of anti-modern thinkers. By combing Vico's neglected early writings on metaphysics and jurisprudence, Lilla reveals the philosopher's deep reservations about the modern outlook and shows how his science of history grew out of these very (...) doubts. In works such as the untranslated Universal Right (1720-1722), a treatise on natural law, Vico emerges as a profoundly political and theological thinker who contrasted the authoritative traditions of an idealized Rome against the corrupting skepticism endemic in modern life. Vico explicitly blamed this skepticism on the founders of modern philosophy, particularly Descartes. Placed in the context of his critique of skepticism, Vico's "new science" of history appears in a wholly new light. Though modern in form, it can be seen here for what it was: a pessimistic vindication of divine authority directed against the freedom and reason that characterize the modern age. This first truly comprehensive introduction to Vico ties his concerns for authority, politics, and civil religion to his theory of history. As such, it raises provocative questions about the subsequent intellectual development of the anti-modern tradition as it relates to the historical and social sciences of our time. It is a brilliant antidote to the "standard" reading of Vico and will transform studies of his work. (shrink)

In the 17th century natural and international law stood as the first theory of the modern state. But what did it look like before it was caught up in the history of modern statehood? In the topology of early modern knowledge ius naturae was regarded as a body of established thinking common to all disciplines. Philosophy, theology and jurisprudence were in complete agreement on a number of points: natural law was God-given; since the act of Creation divine commandments (...) had been inscribed into the hearts of men; natural law, the Decalogue, and the demands of ethics were identical. Natural law was nothing other than the eternal order imposed on humankind and the world by God since time began. Can this idea be reconciled with the modern state, its origins in disorder, and its need for the decision-making exercise of will? (shrink)

The subject “rule”, which is one of the most fundamental issues of the Islamic legal theory (usūl al-fiqh), has been in the center of methodological debates. There is one important term in this regard, which should be studied very carefully: Khiṭāb(speech) of the God. It is because that, especially since the first period of Islam, it has been taken with some significant terms in the field of Kalāmsuch as Husn (pretty; good), Qubh (ugly; evil), and the quality of God’s talk. (...) Yet, adopting this term in the description of the “rule” shows that Fiqh is based on divine inspiration, and it also emphasizes that even though there are some differences in details, wisdom of human being is not ignored when adjudicating. Moreover, it suggests that the validity or methodological accuracy of the “rule” which is adjudicated with ruling case is related to the connection through the term speech or divine inspiration. In this regard, Kalāmdimension of the term and its affect to legal theoretical discussions are very important in terms of historical process of the definition of the “rule” in Islamic law. In this study, I tried to examine whether or not the term “khiṭābof the God” which is used in the definition of the “rule” formed a limitation for consideration of legal evidence in Islamic law and if there is any limitation for the legal evidence regarding being only in the Qur’ān and the Sunnah due to this definition.SummaryThe “hukm (rule, arbritation, judgment, God’s will)”-as the backbone notion in usūl al-fiqhis one of the significant key notions discussed in the legal theory. Specifically, the term “khitabullah” mentioned in the definition of hukmis noteworthy to investigate. Since the early formation period of Islamic law, the term khitabullahhas been embraced along with the theological subjects: “husnand qubuh(the good and evil) and kalām(the attribute of speech to Allah)”. The term “khitabullah” in the definition of hukmemphasizes that indeed the source of fiqhis the revelation (wahy) and also emphasizes that the function of reason (‘aql) is not ignored in the process of adjudication- even if there are some nuances in details.Additionally, it presents that the validity or methodological accuracy of the “rule” which is adjudicated with ruling a case is connected to the term speech (khitāb), or in other words to revelation (wahy).On the whole, in the legal theory, the rule of Sharī‘ah is defined as God’s khitab(the communication of God), which means the demand of God relating to the acts of those who are subject of law or the effect of the khitābon the acts of those persons. Although, in the early formative period various explanations were made about what the rule is, it can be understood that the present definition of hukmbegan to evolve towards the end of the 5thcentury (A. H.). It is clear that al-Ghazālī had an impact on the formation of this definition. It is because al-Ghazālī defined the rule of Sharī‘ahas “the communication from God relating to an act of the person who is the subject of law”. After al-Ghazālī, al-Rādī and al-Baydāwī added to al-Ghazālī’s definition the words “iqtidā and takhyīr” and Ibn Hājib added “wad‘an”. Whereas in the Mutakallimun(theologians) tradition, Ibn Hacib's definition was preferred, Fuqaha(jurists) tradition chose two definitions-resembling each other: “Those coming to exist with the khitāb” and “the effect of God’s khitāb”.Along with al-Ghazālī’s definition, the concept of khitābcarved out a niche for itself in it and became the main element of the definition. It is understood that some discussions in the field of theology, such as husn-qubhand God’s attribute of speech have been effective on the interpretation of the concept of khitāb. The Ash‘arilegal theorists argue that the good and evil are not attributes of the self / the acts, whereas the Maturidi legal theorists argue that the exploration and determination of these attributes is rational and thus, the verdict reached via this rationale is lawful. The Maturidi legal theorists initiated the concept of being subject of law with the concept Sharī‘ah and in the line with this opinion; they defined hukmon the basis of khitāb. On the other hand, the Mutazilites’ claiming the attribute of good and evil are inherent feature of the act, did not define hukmon the basis of the khitābaccording to their theological understanding. The word of khitābassessed with God’s eternal speech (al-kalām al-azalī) has been approached from various aspects: for instance, whether the presence of the addressee is mandatory. The early Asharites scholars (mutaqaddimun), in particular Imam Asharī, did not entitle the eternal speech as khitāb. They consider that the presence of the interlocutor is necessary in the conversion of Kalāminto khitāb. The mutaakhirunAsharites (successors of the early Asharites scholars) did not consider the presence of the interlocutor necessary, thus they viewed the eternal speech as khitāb. The former identification of the hukmwith khitābby the early Ashari legal theorists caused to the problem of whether hukmis adventitious or not. Therefore, this approach was criticised by the Mutazilites. On the other hand, the Maturidi and Mutezilite legal theorists accept that hukmis adventitious; hence they do not consider as a problem naming the eternal speech of God as khitāb.When the historical course is examined, it can be said that one of the important aspects of the development of hukm’s definition is the use of khitāb. Khitābin some cases is used without possessive construction, in other cases it is used with possessive construction with God, or in possessive construction with shar’ or Shāri’. The most important one within these possessive constructions is the notion “khitaballah”. Therefore, it is necessary for khitaballahto be approached from the angle of the legal theory. In comparison to other terms, this notion narrowed the scope of the rule down. In the meanwhile, it raised the question: how the rule deduced via legal evidences can be incorporated in khitāb? As a consequence of this question, some legal theorists, such as Tūfī, proposed another definition by adducing this question.Although it is commonly accepted that the rules deduced via other evidences are within the context of the khitāb, there are also different descriptions about the concept of khitaballah. The rule is not limited to khitaballahin the conception of traditional interpretation accepting the khitābas eternal speech or literal speech (al-kalām al-lafzī). Because either all evidences are within the context of the khitāb,which is the eternal speech or other evidences are within the context of the khitāb,which is the literal speech. Thus, each result coming to exist with the other evidences is part of the Islamic law. But not all of these rules are considered equal to each other. Because each rule which is deduced from indisputable origin (qatii al-thubut) and is deduced from completely explicit sources (qatii al-dalala) are accepted as the word of God or the Prophet. On the other hand, other rules deduced via jurisprudence- in other words by jurist’s own value of judgment is viewed as the virtual rule (al-hukm al-zāhir). Such rules do not express absolute certainty. It is unacceptable for these rules to be described as the word of God or the Prophet. In this way, it is clearly understood that the concept of khitaballahmentioned in the description do not introduce restriction to the evidences ofSharī‘ah.We do not see a contradiction when the indefinite rules of Islamic law included in the context of khitāb. Because ijtihāddoes not aim to produce a new rule, on the contrary it functions in order to find out the already existing rules. The legitimacy of the rule obtained through ijtihādemerges from the way that this rule is deduced from the khitāb,which directly or indirectly represents the divine will. In addition, according to us, this legitimacy is not merely limited to versification and conception of the khitāb, but it also includes the function of the reason in (reasonable of the) khitāb. As a matter of fact, trying to solve unlimited cases with limited texts is difficult- in fact this is impossible. The majority of the legal theorists also share this opinion. Then, there is no obstacle in accepting that each rule obtained by authentic source and methodology can be considered part of Islamic law by implicating the rule in the context of khitāb(which represents the divine will) - although it may contain error and presumption. (shrink)

The questions of violence, justice and judgment define one of the most resonant and constant concerns of contemporary thought. In part, this is only a reflection of what are often called the ‘realities on the ground’ . In the few years of this century the logic of violence, and even its aestheticisation – whether as terror or as ‘shock and awe,’ or in the citizen’s daily vocation to be ‘alert but not alarmed’ – have become the familiar data of current (...) experience. They are a kind of weather, felt through the colour-coded threat scale of the Homeland Security Advisory System, or in the casual references to the ‘current climate.’ In view of these realities, and of an acclimatisation to them that informs general popular support for extensions of executive power and legislative activity, the urgency of the turn or return to questions of force and law is to be expected. In the fabric of recent debate, they are seams at which confrontations are staged and positions defined; but also, where the thought that remains closest to the ‘realities on the ground’ is forced into juxtaposition with the mythological and theological schemes that violence, justice and judgment inevitably conjure. Thus, contributors to this issue of Colloquy were invited to consider whether it was possible to account for a difference between violence, terror and revolution, without simplification or banalisation of the relationship between law and force. On the one hand, the editors envisaged that this question would be a provocation to reexamine contemporary representations of sovereignty, jurisdiction and the ‘state of exception,’ in a global context dominated by issues of security and the justification of extra-legal and extra-judicial force – occupation, detention, torture. On the other hand, the reference to the mythological and the theological was inevitable, inasmuch as contributors were invited to organise their reflections around two of the most significant interventions in twentieth-century jurisprudence and political theory, Walter Benjamin’s “Critique of Violence” and Jacques Derrida’s “Force of Law.” For as is well-known, Benjamin and Derrida pursue their distinctive lines of questioning in the direction of a ‘divine violence’ or of a ‘mystical foundation of authority.’ The reception of the two texts suggests that these concepts remain, for many, difficult to the point of being indigestible; at least in the ‘current climate.’. (shrink)

For centuries, philosophers, political scientists, and jurists have struggled to understand the possibilities for justice and peace among a multiplicity of sovereign states. Like Dante, who sought to organize the world under the authority of the Holy Roman Empire, many theorists have tried to explain how sovereign states should be governed to ensure stability and peace in the absence of any established higher authority. Theories of World Governance traces the various conceptual approaches to world harmony from the close of the (...) Middle Ages to today. Considering the immediate problems of order in a decentralized world community, Cornelius F. Murphy, Jr., outlines what he believes are the essential long-term conditions for world peace. Covering a wide range of disciplines -- from theology and philosophy to jurisprudence, ethics, and sociology -- Murphy explores how theorists have reflected upon the necessary components of an effective global order. At the outset, the thought of Christian Europe was shaped by a belief in a natural order established by the Creator of the universe. However, with the advent of the Enlightenment, the connections between the human and the transcendent were severed. There was a movement from a theocentric understanding of the powers of the human mind to an intellectual outlook that blurred the distinctions between the divine and human. This study in the history of ideas examines the profound effects of the fundamental shift from transcendence to immanence upon the development of international theory. Murphy discusses the thought of Leibniz, Wolff, Kant, Hegel, and Phillip Allott, among others. The study concludes with an extended reflection on the importanceof a sound political philosophy to the future well-being of the global community. Possible improvements in the existing arrangements, such as reform of the United Nations, are discussed. Murphy suggests that in order for a society of sovereign states to be transformed into a world political community, human rights and self-governance within states must first be strengthened and, at the same time, individuals of all states must begin to realize their responsibilities toward the whole human family. (shrink)

Accounting for the Commandments in Medieval Judaism explores the discursive formation of the commandments as a generative matrix of Jewish thought and life in the posttalmudic period. Each study sheds light on how medieval Jews crafted the commandments out of theretofore underdetermined material. By systematizing, representing, or interrogating the amorphous category of commandment, medieval Jewish authors across both the Islamic and Christian spheres of influence sought to explain, justify, and characterize Israel's legal system, divine revelation, the cosmos, and even (...) the divine order. This volume correlates bodies of knowledge-such as jurisprudence, philosophy, ethics, pietism, and kabbalah-that are normally treated in isolation into a single conversation about a shared constitutional concern. (shrink)

al-Qurṭubī (d. 671/1273) was a scholar of tafsīr, ḥadīth and fiqh. He experienced both Western and Eastern civilizations in the geography of Andalusia and Egypt, respectively. In his famous Tafsīr called al-Jâmi li-Aḥkâm al-Qur’ān, al-Qurṭubī comparatively explained and interpreted all legal verses. Also, in addition to exploring the spesific legal rulings denoted in the Qur’ān and the Sunnah, al-Qurṭubī has largely interpreted the legal norms regarding the issues of jurisprudence. By doing this, al-Qurṭubī contributed to the formation and development (...) of a civil codification activity under a kazuistic format. The casuistic structure of the legal exegesis of the Qur’ān is anlaysed in terms of the form and content in the sample of al-Jâmi. Therefore, neither the similarity or similarity of the schools of the legal exegesis of Qur’ān and of the legal schools nor the disciplines of positive law, but their kazuistic structures, which systems they built and which interpretation methods and techniques they operated on this basis, were evaluated in terms of their original structure. In this direction, the article emphasizes that the casuistic structure of the legal exegesis of Qur’ān is established on and by the Prophet’s sayings and practices. Although, it has been observed that it is a unique tradition, both as form and content, and that the interpretation means are identified with its own unique structure, it has been concluded that the casuistic method is not one of the fundamental elements of both this tradition and Islamic legal thought. This means that the casuistic method is always a tool that can be changed and transformed according to the conditions of time and space.Summary: As it is stated in al-Isrāʾ 17/106: “And (it is) a Qur’ān which we have separated (by intervals) that you might recite it to the people over a prolonged period. And we have sent it down progressive.”, the Qur’ān is revelaed in about twenty-three years by taking into consideration the sociocultural positions of its interlocutors. The Prophet Muḥammad explained the Qur’ān by the virtue of the ayah: “(We sent them) with clear proofs and written ordinances. And We revealed to you the message (i.e. that you may make clear to the people what was sent down to them and that they might give thought.” (an-Naḥl 16/44). Of course, there is no subject integrity in this Qurānic chronology-which also reflects life. As a matter of fact, the issues related to individual and society have been independently analyzed by a casuistic/case-based method and ruled in accordance with the intention of Allāh. It can be seen that the ayahs “They ask you about wine and gambling. Say, ‘In them is great sin and (yet, some) benefit for people. But their sin is greater than their benefit.’ And they ask you what they should spend. Say, ‘The excess (beyond needs).’ Thus Allāh makes clear to you the verses (of revelation) that you might give thought.” (al-Baqara 2/219) and other ayahs such as (al-Baqara 2/186; al-Nisāʾ 4/176; al-Anfāl 8/1) reflect the casuistic method in terms of form and content. This can also be exemplified by the Sunna. For example, when the question “Is it permissible to perform ablutions with sea water?” was posed to Messenger of Allāh. He said that “It’s water is clean and his dead (fish) are lawful “(Abū Dāwūd, “Ṭaḥāra”, 41). By this answer, the Prophet Muḥammad indeed ruled and established a general rule.It can be said that this early example table formed the basis of the legal exegesis of the Qur’ān in terms of origin, source and application, and that its shape and content are often immanent in the examples it contains. In this article, based on the prophetic period, the legal exegesis of the Qur’ān and casuistic structure has been studied with an analytical and critical approach. Again, because the casuistic method is one of the universal concepts of east-west science and cultural life, an interdisciplinary approach was exhibited in this study. The roots of the casuistic method date back to 5000 BC and the legal systems of the society and states of antiquity are examined from this method. This method is chosen and used in the legal exegesis of the Qur’ān. However, this study does not analyse the sameness or the similarity of the legal exegesis of the Qur’ān and the legal schools nor the positive law disciplines, but the casuistic structures used by these, the systems they have built on this basis and the interpretation methods and techniques they have been used and analyzed in terms of their originality.In effect, the article embodies the Qur’ānic exegesis called al-Jâmi li-Aḥkâm al-Qur’ān by al-Qurṭubī (d. 671/1273), a scholar of tafsīr, ḥadīth and fiqh. In addition to the works of the aḥkām al-Qur’āns, which deal with the interpretation of the ayahs related to the subjects of ʿibādāt, muʿāmalāt ve ʿuḳūbāt, many other works have been used in parallel with the development of the legal exegesis of the Qur’ān. al-Qurṭubī, who comparingly explained the legal verses in his tafsīr, investigated the aspects of the Qur’ān and Sunna that indicate the aḥkām, generally interpreted the existing legal norms within the framework of evidence and introduced his own opinions and etasblished his ijtihād. Thus, he benefited from the tafsīr accumulation and contributed to the formation and development of a civil legalization activity with casuistic format. As a matter of fact, the casuistic/case-based method has been used as a codification/tadwīn technique by Western and Eastern legal disciplines and systems. The casuistic method covers both concrete event and abstract ruling methods. In the casuistic method, which is fact-based event, the laws are organized according to all possible events that can be experienced. On the other hand, the abstract method, which is defined as the abstract ruling method, aims to organize the laws in a general and abstract framework. In the article, it is stated that the legal exegesis of the Qur’ān contains both concrete and abstract dimensions in its own way. It has been emphasized that the legal exegesis of the Qur’ān is based on divine revelation (waḥy) and that it is separated from human law as its origin and source, and that this feature is its most faithful characteristic. On this basis, the legal exegesis of the Qur’ān is a separate scholarly tradition and has its own definition, subject and purpose. Its original structure and function have been noted. As a matter of fact, the subject and purpose of the legal exegesis of the Qur’ān always require the tafsīr and taʾwīl of the legal verses having regard to the Qur’ān and Sunna. It is also necessary for the purpose of investigating the ways in which nuṣūṣ (an explicit statement upon which a ruling is based) can refer to the provisions and to resolve the issues related to individuals and society. As a matter of fact, the legal verses function as a guide for humanity until the day of judgment as the inspiration for religious-legal matters; they contain the content and provisions that offer happiness in the two worlds. (shrink)

Reflection on natural law reaches a highpoint during the Middle Ages. Not only do Christian thinkers work out the first systematic accounts of natural law and articulate the framework for subsequent reflection, the Jewish and Islamic traditions also develop their own canonical statements on the moral authority of reason vis-à-vis divine law. In the view of some, they thereby articulate their own theories of natural law. These various traditions of medieval reflection on natural law, and their interrelation, merit further (...) study, particularly since they touch upon many current philosophical concerns. They grapple with the problem of ethical and religious pluralism. They consider whether universally valid standards of action and social life are accessible to those who rely on reason rather than divine law. In so doing, they develop sophisticated accounts of many central issues in metaethics, action theory, jurisprudence, and the philosophy of religion. However, do they reach a consensus about natural law, or do they end up defending incommensurable ethical frameworks? Do they confirm the value of arguments based on natural law or do they cast doubt on it? This collection brings together contributions from various expert scholars to explore these issues and the pluralism that exists within medieval reflection on natural law. It is the first one to study the relation between the natural law theories of these various traditions of medieval philosophy: Jewish, Islamic, Byzantine, and Latin. Each of the first four essays surveys the 'natural law theory' of one of the religious traditions of medieval philosophy-Jewish, Islamic, Byzantine, and Latin-and its relation to the others. The next four essays explore some of the alternative accounts of natural law that arise within the Latin tradition. They range over St. Bonaventure, Peter of Tarentaise, Matthew of Aquasparta, John Duns Scotus, and Marsilius of Padua. (shrink)

This thesis studies the development of empiricist Scottish moral philosophy from its origins in the work of Gershom Carmichael through the works of Francis Hutcheson, David Hume, and Adam Smith. Impressed by the successes of the new sciences, particularly Newtonian science, these philosophers each sought to bring this modern scientific method to bear upon the pursuit of moral theory. By tracing the development of moral philosophy through these four authors, we find important changes in how they understand the questions, methodology, (...) aim, and even the very nature of moral philosophy. ;Carmichael introduced this tradition to Scotland by rejecting then current moral philosophies. In their stead, he introduced a conception of moral philosophy as empirically derived natural law. ;Seeking to mirror not only Newton's method but also, by analogy, Newton's results, Hutcheson argued that the moral world was structured by a divinely designed balance between the powerful but opposing forces of benevolence and self-interest. ;Next, Hume felt that religious belief was not only philosophically unjustifiable, but also practically harmful. He sought, therefore, to change moral theory by rendering it entirely secular. Furthermore, he aimed to change moral practices by rejecting the religious-grounded, personally and socially harmful 'monkish' virtues, and rehabilitating pride as a virtue rather than a vice. ;Finally, Smith was distrustful of such grand schemes. Arguing that philosophy is not so much the discoverer of truth as the fabricator of truth, Smith sought to woo men away from outmoded moral schemes, and to lead them to trust in their natural moral sentiments. This, Smith believed, was the most effective and beneficial way of leading men, as social beings, into the modern, commercial society. The only real areas in which moral philosophy can constructively offer concrete contributions are jurisprudence and political economy. ;In conclusion, we should understand that moral philosophy changes its complexion from time to time and place to place. Accepting this can be a step towards questioning our own preconceptions of what moral philosophy is or should be. (shrink)

This book contributes to the 'new view' reading of Adam Smith, providing a historically and contextually rich interpretation of Smith's thought. Smith built a moral philosophy on the foundations of a natural theology of human sociality. Examination of his life, relationship with David Hume, and use of divine names shows that he retained a progressive form of Christian theism. The book interrogates the metaphor of the 'invisible hand' and highlights the importance of the religious dimension of Adam Smith's thought (...) for his moral philosophy, his jurisprudence and his economics. It reflects on the contemporary relevance of a theological reading of Smith and lays the ground for further inquiry between economic and religious perspectives. (shrink)

Thomas Fitzherbert's two-part Treatise concerning Policy and Religion (1606, 1610) was a rebuttal of unidentified Machiavellians, statists or politikes and their politics and policies. The work was apparently still well-regarded in the following century. Fitzherbert's objections to ‘statism’ were principally religious, and he himself thought the providentialist case against it unanswerable. But for those who did not share his convictions, he attempted to undermine Machiavellism on its own ground. Like both ‘Machiavellians’ and their opponents, he argued by inference from historical (...) examples, but with a particularly copious knowledge of historians ancient, medieval and modern to draw on. Equally, however, he deployed the principles of speculative (principally Aristotelian) ‘political science,’ as well as theology and jurisprudence, to demonstrate that the kind of knowledge that Machiavellians required to guarantee the success of their ‘reason of state’ policies was simply unobtainable. A particularly striking strategy (perhaps modelled on that of his mentor and friend Robert Persons) was Fitzherbert's attempt to demonstrate, on the Machiavellians’ own premises, that they advocated policies which were very likely to fail, and would be visited with divine punishments sooner as well as later, whereas policies that were compatible with faith and morals were also much more likely to succeed, even judged in purely human and ‘statist’ terms. (shrink)

Hijab – covering of a Muslim woman's body – is the most visible Islamic mandate. For a century it has been a major site of ideological struggle between traditionalism and modernity, and a yardstick for measuring the emancipation or repression of Muslim women. In recent decades hijab has become an arena where Islamist and secular feminist rhetoric have clashed. For Islamists, hijab represents their distinct identity and their claim to religious authenticity: it as a divine mandate that protects women (...) and defines their place in society. For secular feminists, hijab represents women's oppression: it is a patriarchal mandate that denies women the right to control their bodies and to choose what to wear. The clash has been particularly strident in Iran, where the state has twice intervened with legislation to an extent that no other Muslim country has experienced. Iran, too, has been a prime site for the emergence of `Islamic feminist' discourses that speak of hijab not as a `duty,' but as a `right,' and as a social rather than a religious mandate, and finds juristic arguments to support this position. This article traces the genealogy of this new juristic position from notions of hijab in classical Islamic jurisprudence (fiqh). It documents how jurisprudential positions and notions of hijab in Iran evolved in response to socio-political factors. It concludes by highlighting wider implications of the new juristic position on hijab for establishing common ground between secular feminist and Islamic discourses. (shrink)