"Principe à valeur constitutionnelle en droit français, la sécurité juridique occupe une place centrale dans l'argumentaire du législateur aussi bien national qu'européen et se trouve au coeur de l'activité juridictionnelle. Dans une perspective économique du droit, les systèmes juridiques sont désormais eux-mêmes évalués à l'aune de la sécurité juridique, comme le démontrent les rapports "Doing Business", commandés par la Banque Mondiale depuis une dizaine d'années. Cependant, la crainte d'insécurité juridique semble ne jamais avoir été aussi forte. Elle est notamment révélée (...) par l'appel récurrent à la notion de sécurité juridique. La mondialisation et la "fondamentalisation" du droit amplifient le phénomène dans la mesure où l'exigence de sécurité se manifeste dans des contextes plus complexes de formation et d'application du droit. En parallèle, la notion d'insécurité juridique est évoquée en creux lors des travaux relatifs à la sécurité juridique. Or, cette dernière est le plus souvent envisagée à partir de la dénonciation de son contraire, l'insécurité juridique. Par conséquent, la sécurité juridique est envisagée de manière négative. Pourtant, l'insécurité juridique ne fait l'objet d'aucun travail conceptuel malgré son emploi généralisé. Sous l'égide de la Cour de cassation et de la Société de législation comparée, des juristes de plusieurs horizons se sont réunis à Paris le 22 mars 2021 pour mener une double analyse de cette notion dans un colloque intitulé "Insécurité juridique : l'émergence d'une notion? " Ils ont d'abord apprécié le recours à la notion d'insécurité juridique pour se livrer ensuite à un exercice prospectif, notamment au regard des nouveaux enjeux technologiques.". (shrink)

Muslims living in England are living in a predicament. On the onehand, they have to face the reality that the laws governing the family institutionare secular in nature. This poses a threat to their identity and freedom ofreligion. On the other hand, they are commanded by Islam to settle theirdisputes according to its laws and principles. However, this is unrealistic,simply due to the fact that the only recognized legal system in England isthe English Law. To circumvent this situation, certain Muslim (...) scholars andcommunities have established quasi-judicial courts, acting in the capacity ofmediators, counsellors, arbitrators and even judges, in order to settle maritaldisputes. These courts, known as Shariah councils, provide a modern approachto alternative dispute resolution, whereby Muslim families and individualscan have their disputes resolved amicably. It was also set up as a response forMuslims to adapt to life under the English secular laws in which they live in,that do not afford them the right of having a Sharʑah-based institution. Onesuch Shariah council offering a modern approach to settling marital disputesamicably is the Islamic Council of Europe. The researcher conducted anin-depth interview with the said council and was able to collect a couple ofarbitrational cases and analysed them in order to give a better understandinginto its inner workings, its structural set-up and operation. Hence, this paperaims to critically and juristically analyse them from an Islamic legal maximperspective while taking the Muslim minority context into consideration. (shrink)

Qu'elle soit entendue comme état de désordre social ou qu'elle soit pensée comme ordre social sans Etat, l'anarchie reste difficilement appréhendée par les juristes autrement que par l'exclusion. Droit et anarchie seraient incompatibles, car le droit impliquerait nécessairement l'autorité (dont l'Etat moderne constitue la forme ultime, par la monopolisation du pouvoir de contrainte) que l'anarchie supprime. Aussi, l'étude de l'anarchie n'aurait plus grand chose à révéler au juriste, et sa marginalisation intellectuelle ne devrait pas surprendre. Pourtant, est-il vraiment satisfaisant de (...) cantonner la question de l'anarchie à l'histoire des idées politiques, alors que l'enjeu du débat touche les fondements mêmes de l'ordre juridique? C'est cette question complexe des rapports entre le droit et l'anarchie que cet ouvrage - qui regroupe les actes d'une journée d'étude organisée par l'Institut d'études de droit public de la faculté jean Monnet de l'Université Paris Sud - se propose d'investir à nouveau. (shrink)

This paper aims at clarifying some of the most common issues that legal translators have to face when dealing with the translation of private normative texts, such as contracts or wills, which naturally emerge as the consequence and expression of legal or juristic acts in the scope of private law, in Spanish and English. To comprehend the differences and subtleties regarding legal communication between the common law and the continental law countries (specifically the United States and Spain, respectively), (...) we must unveil some essential clues for their translation and application in the global scope of professional interactions, thus creating a process of inter-legal communication, which takes place through the mutual interpretation and application of two, or more, legal traditions. Through the deployment of a generic or pragmatic analysis at textual or discursive and formal or superficial, strata, of two types of genre within the domain of private law (namely wills and tenancy agreements, or leases) this work aims to prove that both the civil law and the common law private instruments are translatable with respect to each other. An important proviso, however, is that their legal traditions and the genres that constitute the communicative tools of their specialised communities must be duly respected and kept in equilibrium, so that one does not overshadow and obliterate the other. Only in that way can the “convergence” of the two traditions truly enrich and strengthen national and international legal culture. (shrink)

S'il n'est pas un véritable juriste, Rousseau ne s'en est pas moins intéressé à de nombreux problèmes juridiques, du droit public romain au droit de la famille. La réflexion historique occupe également une place importante dans son oeuvre. Ce sont ces aspects moins connus de la pensée de Rousseau jurisconsulte et historien qui sont abordés dans ce volume, considérant aussi le rayonnement du citoyen de Genève dans l'histoire intellectuelle et politique occidentale. Inspirateur des révolutionnaires français, utilisé plus que compris, récupéré (...) par les uns, dénoncé par les autres, Rousseau a eu une influence sur nombre de penseurs politiques et de législateurs constitutionnels. Le présent ouvrage invite ainsi à suivre la trace de cette influence pour restituer à sa pensée politique la singularité comme l'ampleur de sa place dans l'histoire. (shrink)

" Procréation et droits de l'enfant " : ce thème, caractérisé par un large éventail de problématiques, se situe au cœur d'un questionnement auquel les spécialistes de la natalité sont confrontés. Alors que, notamment, des techniques nouvelles viennent perturber nos approches traditionnelles de la procréation, il importe, sans renoncer aveuglément aux innovations de la science, de rester prudent devant des évolutions scientifiques qui pourraient mettre en périt notre Humanité. On trouvera, dans le présent ouvrage, des réflexions qui - émanant d'autorités (...) religieuses, de philosophes, de spécialistes des sciences biomédicales et de juristes - contribuent à éclairer, dans une perspective pluridisciplinaire, les considérations éthiques qui accompagnent le début de la vie et la naissance des êtres humains. (shrink)

The Law uses the terms, Action and Agency in several, significant ways which connect them with modern semiotic theory. In Law one of the main contexts for the idea of Acts is in Speech Acts which have become a major aspect of the philosophy of Language in the twentieth century; to Peirce, as the -father- of modern Semiotics, all thought is action, and thought has meaning to the extent that it has consequences in the world. Agency in law (...) is inseparable from the idea of a Legal Actor, and refers to powers which are conferred by a Principal upon a representator to a Third Party. Legal Agents are mediators in law as signs are mediators of interpreted meaning in semiotic theory and semiotic processes. This collection of papers is a transcultural and transdisciplinary project in law and semiotics by distinguished scholars.". (shrink)

Legal dogmatics in Continental European law (scientia iuris, Rechtswissenschaft) consists of professional legal writings whose task is to systematize and interpret valid law. Legal dogmatics pursues knowledge of the existing law, yet in many cases it leads to a change of the law. Among general theories of legal dogmatics, one may mention the theories of negligence, intent, adequate causation and ownership. The theories produce principles and they also produce defeasible rules. By means of production of general and defeasible theories, legal (...) dogmatics aims at obtaining a system of law that is both internally coherent and harmonized with its background in morality and (political) philosophy. Legal dogmatics is necessary in the context of constitutional constraints on the majority rule. Only if the courts act on the basis of Reason they can be a legitimate counterpart of the majority rule. And Reason cannot be exhausted by particular decision making. It also needs a more abstract deliberation, given by expert jurists. However, legal dogmatics has been a target of several kinds of criticism: empirical, morally-political, epistemological, logical, and ontological. The position taken in this article is to answer such criticism by mutually adjusting philosophy and the practices of the law. (shrink)

The passionate and staunch defence of logic of the controversial thinker Ibn Ḥazm, Abū Muḥammad ʿAlī b. Aḥmad b. Saʿīd of Córdoba (384-456/994-1064), had lasting consequences in the Islamic world. Indeed, his book Facilitating the Understanding of the Rules of Logic and Introduction Thereto, with Common Expressions and Juristic Examples (Kitāb al-Taqrīb li-ḥadd al-manṭiq wa-l-mudkhal ilayhi bi-l-alfāẓ al-ʿāmmiyya wa-l-amthila al-fiqhiyya), composed in 1025-1029, was well known and discussed during and after his time; and it paved the way for the (...) studies of his compatriots Ibn Bājjah (d. 1138), Ibn Ṭufayl (1185), and Ibn Rushd (1198), who each gave demonstrative reasoning a privileged place within the methods of attaining knowledge. Unfortunately, as too often in the history of science, Ibn Ḥazm’s innovative perspectives and contributions in logic have been overlooked or considered with an attitude of contempt. On the one hand, his work has been seen, at best, as promulgating the benefits of studying Aristotle’s logic, so that his contribution is assessed as more didactical than conceptual. And on the other hand, those who do examine his innovations often consider them to be mistaken. As indicated by Chejne (1984, p. 2) contempt towards the logical work of Ibn Ḥazm was also present in its reception by the Eastern philosophers who accused him of deviating from Aristotelian logic and of dabbling in things beyond his capability. However, a reassessment of his work on logic has since begun, by delving into the ways the thinker of Córdoba studied the links between deontic and modal qualification of propositions. In this context Lameer’s (2013) paper on the logical sources of Ibn Ḥazm is worth mentioning; the author (p. 417, footnote 1) observes that, although, strictly speaking, it was al-Fārābī who first drew the parallelism between deontic and modal concepts, it was Ibn Ḥazm who developed it and worked it out in a more precise manner. A primary aim of this paper is to help fill some of these gaps by stressing the role of the work of Ibn Ḥazm in developing a notion of deontic necessity deeply rooted in legal normativity, and in explicitly discussing the transference between deontic and modal concepts. According to our view; the basic units of Islamic deontic logic are what we might call, indulging in terminological anachronism, heteronomous imperatives. As it turns out, the heteronomy of imperatives within Islamic legal systems contrasts with those of the purely moral realm, which seem to be closer to an autonomous conception of moral law. There it concurs again with Leibniz’s proposal to define obligatory as “what is necessary for a good person to do”. In the present paper, we will focus on the heteronomous imperatives of legal systems rather than on the imperatives of the purely moral realm. In this context, the work of Ibn Ḥazm extends the parallelism between the necessity of events and that of human actions stressed by his predecessors. According to our understanding, Ibn Ḥazm’s parallelism can be rendered explicit formally by means of a conditional (or hypothetical) structure shared by both deontic and modal propositions. Moreover, this structure makes apparent that this parallelism displays an underlying system of “degrees”. Indeed, while in the domain of events, given some conditions, it makes sense to distinguish between an event that is more likely to happen than another. Ibn Ḥazm speaks of near and distant possibility (such as the higher degree of likelihood of rain, given the condensation of clouds in December, and its lower degree, when the condensation occurs in summer); and, in the domain of actions, the Islamic notion of weighting actions determines degrees of virtue (or of legal and moral value). So whereas the degree of virtue of performing a forbidden act as determined by the distribution of sanction and reward is 0, we obtain the same value by pondering the likelihood of an impossible event to take place. Furthermore, as discussed in section II.3.2, the system of values at work in the parallelism can be seen as opening the way to a more direct correspondence. Thus, while in the realm of nature, likelihood of occurrence of an event is dependent upon the conditions specific to the occurrence of that event; while, in the realm of jurisprudence, likelihood of performing an action is dependent upon the distribution of reward and sanction specific to that action (being that, given the choice to perform or not perform a given action, those that will be rewarded are more likely to be performed than those that are not). According to this perspective, the point of the parallelism is that both deontic and modal qualifications measure the degree of an action or event to become actual; that is – indulging once more in anachronism (but this time from the Leibnizian background) – the degree measures how feasible (facile) an action or event may be. This suggests that Ibn Ḥazm’s perspectives already herald the links to probability and possibility explored by Leibniz six centuries later – see for example Leibniz’s (1671, A VI, I, p. 424-26) use of probability in the context of conditional right. Nevertheless, it also shows a crucial difference to the approach developed in the Elementa Jura Naturalis: whereas Leibniz’s studies seek to define what is to be just or virtuous, the logical system of deontic imperatives within Islamic jurisprudence presupposes that what is to be virtuous has already been settled. Determining what is to be virtuous is not achieved by logical reasoning within the system of legal jurisprudence, but by delving into the higher objectives of the Sharīʿa. While developing our point, we will delve into the logical structure of the heteronomous imperatives. This distinguishes our contribution from the existing literature, such as the papers of Chejne (1984), Lameer (2014), and Guerrero (1997, 2010, 2014), which do not provide a logical analysis of the deontic concepts put into work by Ibn Ḥazm. The true antecedent to the present paper is the work of Farid Zidani (2007, 2015), who, so far as we know, was the first to undertake such a task. Some of our own developments and general epistemological thoughts go beyond Ibn Ḥazm’s framework and motivations; mainly those contained in sections II.3.2 and IV. However, according to our view, these reflections suggest that Ibn Ḥazm’s approach has the substance for a broader and deeper exploration of the logic of norms. The paper is structured as follows:I.Ibn Ḥazm’s Logic of Heteronomous Imperatives. After presenting some extracts of the relevant text, we proceed by providing a formal reconstruction of the five forms of deontic modalities. II. A Landmark in the History of the Logical Analysis of Norms. Duties and Modalities. In this section, we study the transferences from deontic to modal necessity and possibility. We briefly compare the deontic system of Islamic Jurisprudence with that of Leibniz.III. Leibniz and Hypothetical Imperatives in Law.IV. Beyond Ibn Ḥazm: Conclusions and the Work Ahead. We will conclude the paper by discussing briefly some conceptual points that distinguish the logic of heteronomous imperatives from contemporary deontic logic. Our final words will discuss deontic-modal parallelism in the context of Ibn Ḥazm’s rejection of reasoning by conjecture and what we call “the internalization of nature.”. (shrink)

The article explored the relationship of the notions of "spirit", "spirituality" and "personality". Their meaning in the philosophy of G. Hegel J. Fichte, F. Nietzsche, N. Hartmann, N. Berdiaev, S. Franko and modern Ukrainian philosophy is analyzed. It was found that Hegel has the concept of the personality of the Roman jurists’ spiritual qualities: personality is not only a person who has property but it is personification. It is the opinion of the personality of the scholar is able to be (...) objective foundation of the state and of social existence and ensure the equality of people in the state. Studied Schopenhauer, Nietzsche, Berdiaev, Franko, Buber traced philosophical affinity of the views of Hegel. It is discovered that tradition combines with the concept of the four levels of spiritual development of man from the position of the proposed concept analyzed the content of the concepts of "spirit", "spirituality", "personality". It is proven that the human spirit is the personal quality of the level of development that causes her to act with the interests of society, population. The spirit of this principle that dictates a person personal way of life, abandon the selfishness of they own benefits. Spirituality is a belief in the ability to achieve moral purity and the level of the individual, which must be not only personification of the spirit, and metaphysics the foundation of public life. (shrink)

L’analyse des juristes médiévaux nous montre comment la manipulation des contradictions déontiques prima facie est associée, dans l’argumentation interprétative, à la théorie de la légitimité de la hiérarchie normative, entendue non seulement comme instrument politique mais aussi et essentiellement comme un instrument de rationalité au sein d’une science juridique orientée vers une théologie politique. La notion de droit naturel telle qu’elle apparaît dans certains documents emblématiques dont le Decretum de Gratien du XIIe s., ne peut être réduite au modèle intellectualiste (...) aristotélo-thomiste du XIIIe s. Il y a plusieurs façons de penser le droit naturel dans le monde médiéval chrétien et latin ; elles se maintiennent sur plusieurs siècles et l’une d’elles au moins a des points de contacts et de désaccord avec les traditions juives et musulmanes. Ces courants de pensée qui s’écartent du modèle intellectualiste aristotélo-thomiste peuvent être regroupés au sein d’une famille (au sens wittgensteinien) de modèles volontaristes : les contradictions déontiques peuvent être plus fortes que des contradictions prima facie, elles peuvent être d’authentiques contradictions renvoyant à un nouvel acte de volonté comme la seule façon d’éliminer la contradiction déontique. La théorie de Duns Scot peut être utilisée comme illustrant le problème d’une approche ontologique volontariste extrême. | Une autre version de cette contribution a été publiée dans Parisoli (2008d : 124–141). (shrink)

Penser l’acte de décider en droit comme une opération mentale d’interprétation conduit bien souvent à en faire un objet métaphysique donné à la connaissance du droit et non construit par elle. Cette réification implique également de recourir à un modèle causal de la décision judiciaire, lequel recèle de nombreuses difficultés au regard du caractère proprement juridique d’une telle enquête. En appréhendant cette problématique de la décision par les outils de la philosophie analytique de l’esprit et de l’action, cet article entend (...) défendre une autre approche qui, dans le prolongement des travaux du juriste Hans Kelsen, s’efforce de penser la décision judiciaire comme un acte de justification au sein d’un cadre de rationalité stipulé. (shrink)

Unlike Hanafī jurists, most of the jurists maintain that qiyās is permissible (jāʿiz) for the origins (aṣl) in which the qiyās rule is invalid, including ruhsat (permission); kaffarah (expiation) and ḥadd (penalties). Shāfiʿī jurists, Imam al-Shāfiʿī and his followers like al-Juwaynī, argue that Hanafī jurists are contradictory since they apply qiyās in many cases despite their judgment that qiyās is invalid, and on the contrary they defend that these are derived from the literal interpretation techniques out of qiyās format. Nevertheless, (...) Shāfiʿī jurists persist that they rule on the qiyās applications through Islamic jurisprudence inference methods (istinbāt) such as Islamic juristic preference (istiḥsān), even beyond qiyās. In his sense of search effective cause: ʿilla (taʿlil), al-Juwaynī focuses on the proper meaning/suitability (munāsaba). He runs the mechanism of taʿlil even in the presence of the deepest proper meaning. He customizes the formulation of the suitability (munāsaba)/proper meaning for the origins in which the qiyās’ rule is invalid. Kaffarah and ḥadd consequently expand the validity area and minimize the restricted area for qiyās. Al-Juwaynī’s approach agrees to his rational personality as well as the value that he appreciates for qiyās. In this paper, the aim of study is to identify the borders and limitations of qiyās in al-Juwaynī’s thought with discussions about the disagreements between the jurists in the specified areas.Summary: As a general principle, devoting (taʿabbud) is the foundation for jurisprudence for al-Imām al-Shāfiʿī and reasoning (taʿaqqul/taʿlīl) for Abu Hanīfa. Despite this, Abu Hanīfa and Hanafī jurists consider non-qiyās foundations (ma’dul bih ‘anil-qiyās) including the quantified ordinances (muqaddarāt/taqdīrat) and ruhsat (permission) as well as kaffarah (expiation) and ḥadd (penalty) as the banned areas for the analogy (qiyās) and profess that qiyās cannot be applied in these areas. It may be contradictory that they state in one hand that the foundation of rulings is taʿaqqul, and on the other hand, bars the above-mentioned areas for qiyās. On the contrary to their general approach, Shāfiʿī jurists, in particular, argue that it is untrue to absolutely exclude use of analogy in those areas, which are rather open to qiyās. Al-Imām al-Shāfiʿī and one of his followers, al-Juwaynī, describe that Hanafī jurists’ applications do not jibe with their principles so that they do refer the inference methods (istinbāt) (e.g. juristic preference: istiḥsān), furthering qiyās although they take qiyās as illicit in kaffarah and ḥadd. However, Hanafī jurists defend that they are not in a contradiction, and indeed they do not apply qiyās in kaffarah and ḥadd and derive their illations mostly from textual implications (dalālah) that are mostly out of qiyās format such as tanqīh al-maʿnā (isolating ʿilla), istidlāl, and dalālah al-naṣṣ (inferred meaning). As understood from the relevant arguments, applying qiyās in these areas is directly associated with the issue of potentiality for “the analogy in reason.” The type of qiyās that Hanafī jurists consider illicit in kaffarah and ḥadd is the analogical actions made for the reasons. One of the most rationalist representatives of Shāfiʿī uṣūl, al-Juwaynī pronounces that the method to determine ʿilla (cause) is fundamentally the suitability (munāsaba) that can be defined as “rational compatibility.” In his opinion, the ratiocination (taʿlīl) is based on this suitability. According to him, the indications of qiyās will be clear or it becomes practicable even in the presence of low-level, implicit suitability. Al-Juwaynī considers that it is licit to apply the analogy for the kaffarah and ḥadd as well as the non-qiyās foundations, including ruhsat and muqaddarāt or taqdīrat, whether direct or explicit (i.e. the meaning of analogy: qiyās al-maʿnā) or indirect or implicit (i.e. the commonality of analogy: qiyās al-shabah). In this context, one of Juwayni’s concern is “the matter of inherence in textual sources such as naṣṣ or the Qur’ān and the Sunna),” corresponding to the area where the judgment is based on a specific reason by naṣṣ. For him, a number of reasonable meanings can be inferred in these areas when it is critiqued independent of the uttered words. But the inherence mentioned in the texts of naṣṣ, indicates to avoid the use of analogy for making a judgment. Al-Juwaynī asserts that some fractional elaborate or detailed meanings cannot be obtained for physical prayers and only a set of universal meanings can be imagined. He defines that it is permissible to compare the reasons of physical worshipping with each other when any suitable meaning is present. He considers that for the permissibility of qiyās in ruhsat, it is adequate to find a meaning suitable for the judgment, and besides, the commonality of analogy (qiyās al-shabah) is applicable in the area of muqaddarāt or taqdīrat. Nevertheless, a patient’s condition is similar to that of a traveller in terms of ruhsat for not fasting (ṣavm). In al-Juwaynī’s way of thinking, patients should act like travellers for ruhsat to shorten (qaṣr) the prayers (ṣalāh) due to “requiring” as a proper meaning. However, as mentioned by al-Juwaynī, there is a consensus (ʿijmā or ittifāq) on the fact that a patient cannot shorten his or her prayers. Due to this impediment, it is understood that the rule of shortening their prayers (ṣalāh) is permissible for travellers but not for patients (manʿ al-ʿijmā’).In criminal cases, the right of oath before the court is belonging to the defendant, whereas to the claimant in kasāme, an oath method in unidentified murders. Taking an oath from the claimant is merely inherent to the kasāme application. Al-Juwaynī states that this inherence is known by the principle of being inherent to each circumstance (iḥtisās bi-l hāl), and with this aspect, kasāme is a closed area for qiyās. According to al-Juwaynī, contracts are suitable for qiyās because they have conditions such as offers and agreements explicitly stating the quality and quantity, and mutual assent. He describes that these are the reasons unavailable for qiyās with respect to their characteristics. With this, the contracts are among the reasonable sources in one respect and the unreasonable in another respect. Consequently, al-Juwaynī suggests that the analogy loses its functionality or validity in a limited number of the closed areas for qiyās, which are the static devotional judgments (taʿabbud) having no proper meaning, direct or indirect, or explicit or implicit; the areas where the judgment is made inherent to a specific reason by the naṣṣ (ihtisās bi-l-nass) (as in the example that sacrificing a female goat at the age of less than one year is a specific judgment for Burde b. Niyār). The point leads to the judgment is made inherent to a specific reason by the principle of ihtisās bi-hāl; and banned ʿijmā issues (as in the example of ʿijmā that it is agreed on the fact that patients cannot shorten (qaṣr) their prayers (ṣalāh), unlike travellers. Al-Juwaynī sees the application of qiyās as licit based on the availability of suitable meaning in all areas except for the above-mentioned issues. That he minimizes the closed areas for qiyās and widely expands the functionality of analogy is the reflections of the value that he gives to qiyās. (shrink)

In this article, I introduce and examine the novel concept of bench representation. Jurists and scholars have extensively examined whether judges are or ought to be considered symbolic representatives of abstract concepts (for instance, the law, equality, or justice), representatives of society as a whole, or descriptive representatives of the social groups from which they hail. However, little attention has been paid to the question whether judges act as representatives for the parties before them through their everyday work on the (...) bench. This article examines that question. Bench representation occurs when a judge, through statements or actions undertaken during the performance of official duties, speaks or acts for a party to the proceeding before them. I argue that serving as a bench representative is a common and valuable feature of what it is to be a judge and, despite appearances, usually undermines neither impartiality nor fairness. (shrink)

The problems that organ transplantation poses to the Muslim mind may be summarized as follows: firstly, a muslim believes that whatever he owns or possesses has been given to him as an amānah (trust) from Alla¯h. Would it not be a breach of trust to give consent for the removal of parts of one's body, while still alive, for transplantation to benefit one's child, sibling or parent? Secondly, the Sharā'ah (Islamic Law) emphasizes the sacredness of the human body. Would it (...) not then be an act of aggression against the human body, tantamount to its mutilation, if organs were to be removed after death for the purpose of transplantation?In this paper I attempt to illustrate how the Muslim jurists have tried to resolve the dilemma of Muslims by providing them with certain guidlines based on the original sources of Islam, namely, the Qur'n and the Prophetic tradition. In order to assist the followers of other religious traditions to grasp the gravity of the problem posed by organ transplantation to the Muslim mind, I begin by discussing the opinions of Muslim jurists on the issue of utilization of human parts. Thereafter, I touch upon the resolutions taken by the various Islamic Juridical Academies on the issue in question. Finally, I shed light upon the inclusion of organ donation in a Muslim Will and the enforceable nature of such a will. (shrink)

The problems that organ transplantation poses to the Muslim mind may be summarized as follows: firstly, a muslim believes that whatever he owns or possesses has been given to him as an amānah (trust) from Alla¯h. Would it not be a breach of trust to give consent for the removal of parts of one's body, while still alive, for transplantation to benefit one's child, sibling or parent? Secondly, the Sharā'ah (Islamic Law) emphasizes the sacredness of the human body. Would it (...) not then be an act of aggression against the human body, tantamount to its mutilation, if organs were to be removed after death for the purpose of transplantation? In this paper I attempt to illustrate how the Muslim jurists have tried to resolve the dilemma of Muslims by providing them with certain guidlines based on the original sources of Islam, namely, the Qur'n and the Prophetic tradition. In order to assist the followers of other religious traditions to grasp the gravity of the problem posed by organ transplantation to the Muslim mind, I begin by discussing the opinions of Muslim jurists on the issue of utilization of human parts. Thereafter, I touch upon the resolutions taken by the various Islamic Juridical Academies on the issue in question. Finally, I shed light upon the inclusion of organ donation in a Muslim Will and the enforceable nature of such a will. (shrink)

The problems that organ transplantation poses to the Muslim mind may be summarized as follows: firstly, a muslim believes that whatever he owns or possesses has been given to him as an amānah (trust) from Alla¯h. Would it not be a breach of trust to give consent for the removal of parts of one's body, while still alive, for transplantation to benefit one's child, sibling or parent? Secondly, the Sharā'ah (Islamic Law) emphasizes the sacredness of the human body. Would it (...) not then be an act of aggression against the human body, tantamount to its mutilation, if organs were to be removed after death for the purpose of transplantation?In this paper I attempt to illustrate how the Muslim jurists have tried to resolve the dilemma of Muslims by providing them with certain guidlines based on the original sources of Islam, namely, the Qur'n and the Prophetic tradition. In order to assist the followers of other religious traditions to grasp the gravity of the problem posed by organ transplantation to the Muslim mind, I begin by discussing the opinions of Muslim jurists on the issue of utilization of human parts. Thereafter, I touch upon the resolutions taken by the various Islamic Juridical Academies on the issue in question. Finally, I shed light upon the inclusion of organ donation in a Muslim Will and the enforceable nature of such a will. (shrink)

Dans le débat sur l'euthanasie, la passion l'emporte souvent sur la réflexion. Donner la mort, ou se donner la mort : voilà des actes qui sont loin d'être anodins. Le développement technologique des soins intensifs place aujourd'hui le médecin devant la possibilité, sinon l'obligation, de gérer la vie finissante. Au-delà des difficultés issues de cette situation nouvelle, le terme même d'" euthanasie " est lourd d'ambiguïtés. S'il désigne communément les procédés destinés à rendre la mort plus douce, diverses pratiques s'en (...) inspirent, qui peuvent être radicalement opposées d'un point de vue éthique. Geste de liberté individuelle, suicide, meurtre ou délivrance : la violence des arguments fait écho à celle de l'enjeu. Pour tenter d'y voir clair, une vingtaine de spécialistes d'horizons divers - médecins, psychologues, juristes, infirmières, psychiatres et représentants des religions - ont constitué pendant plusieurs années un groupe de travail collectif. Confrontant leurs convictions et leurs approches, parfois éloignées, souvent complémentaires, dans une volonté de dépassionner le débat, ils ont construit une réflexion approfondie sur la fin de vie, les soins palliatifs et l'accompagnement des mourants. Original et accessible à tous, cet ouvrage propose, face au désarroi des soignants et à la détresse des familles, une vision apaisée de la fin de vie, qui s'appuie sur la dignité de chaque personne. (shrink)

The pirate is the original enemy of humankind. As Cicero famously remarked, there are certain enemies with whom one may negotiate and with whom, circumstances permitting, one may establish a truce. But there is also an enemy with whom treaties are in vain and war remains incessant. This is the pirate, considered by ancient jurists considered to be "the enemy of all."In this book, Daniel Heller-Roazen reconstructs the shifting place of the pirate in legal and political thought from the ancient (...) to the medieval, modern, and contemporary periods presenting the philosophical genealogy of a remarkable antagonist. Today, Heller-Roazen argues, the pirate furnishes the key to the contemporary paradigm of the universal foe. This is a legal and political person of exception, neither criminal nor enemy, who inhabits an extra-territorial region. Against such a foe, states may wage extraordinary battles, policing politics and justifying military measures in the name of welfare and security. Heller-Roazen defines the piracy in the conjunction of four conditions: a region beyond territorial jurisdiction; agents who may not be identified with an established state; the collapse of the distinction between criminal and political categories; and the transformation of the concept of war. The paradigm of piracy remains in force today. Whenever we hear of regions outside the rule of law in which acts of "indiscriminate aggression" have been committed "against humanity," we must begin to recognize that these are acts of piracy. Often considered part of the distant past, the enemy of all is closer to us today than we may think. Indeed, he may never have been closer. (shrink)

Abu Muhammad Ali b. Ahmed b. Hazm al-Andalusi (d. 456/1064), the greatest exponent of the Ẓahiriyya school, was a scholar producing important works with his identity as a jurist, hadith scholar, historian, literary man, and poet. He also persistently defended the understanding of Ahl as-Sunna against the sects that emerged within Islamic thought as he defended the superiority of Islam against other religions. In his works, he covered almost every topic of the kalam science; in this context, he was especially (...) interested in topics related to the possibility of prophethood, the prophethood of Muhammad and his being the last representative of the prophethood chain. Therefore, this study, based mainly on his works such as al-Fasl, al-Usul wa'l-Furu, ad-Durr fi ma Yecibu i'tikaduhu and Ilm al-Kalam ala Mazhab Ahl al-Sunnah wa'l-Jama'a, deals with the topics of the possibility of prophecy, the prophethood of Prophet Muhammad, and the role and importance of miracles in proving it in the view of Ibn Hazm. Almost all Islamic scholars have based their systems for recognizing prophets on the evidence of miracles. According to them, a person who claims to be a prophet must bring extraordinary evidence to confirm his claim, and it is necessary for him to do so in order to make his opponents religiously responsible. For an event to be considered evidence that confirms the prophet's claim and to be called a miracle, it must have some characteristics, such as: it must be a divine act; it must appear in an extraordinary manner; it must occur together with the claim of prophecy and challenge; and it must occur immediately after the claim of the prophet. Therefore, it is believed that evidence that possesses these characteristics can prove the correctness of the claimant without needing any other evidence. The kalam scholars only call those events as miracles, which have the characteristic of challenging the dozens of evidences that prove the prophet's truthfulness. Therefore, it is without a doubt that the concept of miracle is a special concept invented by kalam scholars. When looking at Ibn Hazm’s views on the subject, which form the backbone of the study, it is necessary to state the following: Firstly, Ibn Hazm explains that prophecy is possible, that God chooses and sends messengers among the people, and that there is no difference among the prophets in terms of belief principles. Ibn Hazm emphasizes the role of miracles in identifying prophets and bases his system on this principle. However, he does not show much care in using the term "miracles" in the way that Kalam scholars accept it and does not aim to explain or list the characteristics or attributes of miracles as seen in Kalam books. He uses the term "miracles," which have been conceptualized over a long period of time, for every extraordinary event that belongs to the prophets, without considering these sensitivities. The most striking aspect of Ibn Hazm's understanding of miracles is that he does not consider the attribute of challenge, which is defined as a condition of a miracle, as necessary. He criticizes those who accept the attribute of a challenge as an essential part of miracles and argues that such an understanding would limit the miracles of the Prophet Muhammad. If the attribute of the challenge is accepted as a condition, then extraordinary events such as the blessing of food and drink, the moaning of wood in the mosque, and some animals coming and expressing their complaints would be excluded from the scope of miracles. This would mean limiting the evidence of Prophet Muhammad's prophecy. According to him, the creator of extraordinary events is God, and He creates them only to confirm His messengers. The events that occur in the hands of a person who claims to be a prophet should be considered a miracle. Therefore, he has named every event that occurred through the prophets as a miracle, regardless of its context and nature. In conclusion, according to Ibn Hazm, there are two types of events that occur in nature: Normal events and miraculous events. He refers to the latter as miracles and limits them to only occurring in the hands of prophets. He believes that events that occur in the hands of prophets, whether they possess the characteristic of tahaddî or not, should be referred to as miracles. Events that occur in the hands of people other than prophets do not possess the characteristics of miraculous events. If such events are claimed to be miraculous, the evidence of the prophets will be damaged. Therefore, Allah creates these events only for His messengers. Therefore, in the view of Ibn Hazm, concepts such as miracles of saints (karamat), magic, and divine help (maunat) do not have a counterpart. In fact, his attitude coincides with the Mu'tazilite tradition. He tries to prevent criticism that can be directed at miracles by assigning miraculous events only to prophets. (shrink)

The sources show that two different groups of sheikhs were followed in the Hanafi usūl al-fiqh: ‘Iraqi and Samarqandi sheikhs. However, the perception of followers of ‘Iraqi sheikhs formed the dominant Hanafī tradition. This situation has caused different approaches of the theologian methodologists who followed the Samarqandi sheikhs to become in shadow. Considering this separation within this denomination, when the sunnah sections of usūl al-fiqh literature are compared it is possible to see the different points raised within the Hanafi usūl (...) al-fiqh. In this study, “the definition of sunnah”, “the acts of the Prophet”, “the imitating companions”, “the criteria of ard (submission) to the Qur’an” and “the problem of faqīh (jurist) narrator” are determined as differentiated notions. Considering these issues, since the concepts which differentiate theologian methodologists, whose perception have been taken into account in this paper, from the dominant Hanafi usūl tradition have been generally related to theological concerns, it is possible to argue that this distinction can be explained by their approach of usūl in which theological premises considered as important as other concerns. Eventually, this paper aims to show that like any denomination Hanafi sect also does not have a uniform approach about sunnah.Summary: In this study, the marks of differentiations in sunnah topics were followed based on the works of Ḥanafī usūl al-fiqh written in the Transoxanian region between 5th-8th centuries A.H. The reason for the limitation of this issue is that there have been some changes and developments in the sect in this region and period. It is because Ḥanafī usūl al-fiqh, which is in two different lines, namely ʿIrāqī sheikhs and Samarqandī sheikhs, has improved in favor of one side in this period. It is thought that this dual disintegration occurs due to the effect of different theological tendencies. This situation has caused the different approaches of the theologian methodologists who mostly followed the Samarqandī sheikhs to be overshadowed. Because Ḥanafī tradition, which became a permanent establishment, mostly followed the line of ʿIrāqī sheikhs in terms of both the topics that are discussed and the approaches in these issues. The aim of this study is to determine the different approaches of the line of Samarqandī sheikhs to sunnah. In the study which is based on comparative method, sunnah topics of Dabūsī, Pazdawī, Sarakhsī and those who followed them and the theologian methodologists Abū l-Yusr, Samarqandī, Lamishī and Usmendī’s sunnah topics were compared and the differentiation points of the second group were determined.In this context, it is seen that there are two different approaches in the Ḥanafī usūl al-fiqh regarding the definition and scope of sunnah. Because the Ḥanafī principals who followed the ʿIrāqī sheikhs, while describing the sunnah, they included the companions in the scope of sunnah. However, Abū l-Yusr, Samarqandī and Lamishī did not mention the companions in the sunnah description and stated that the only person to be subjected was the Prophet. In addition, the Ḥanafīs in the second group, unlike others, do not accept the opinion that the meaning of absolute sunnah word is only sunnah of the Prophet. At this point they have shared the same conviction with the ahl al-ḥadīth (the traditionists) and cumhūr al-ulemā (majority of ulema).There are two different approaches, which are based on ʿIrāqī and Samarqandī sheikhs in the show of the judgments of the acts of the Prophet. According to the ʿIrāqī Ḥanafīs, the Prophet's act is attributed to mubāh (permissible) when there is no evidence about its feature. According to the Samarqandī sheiks, such an act is attributed to vucūb (obligation) in terms of practice and stopped in terms of faith. Most of the later Ḥanafī scholars have adopted the idea of ​​ibāha (permissibility) of the ʿIrāqī Ḥanafīs. On the other hand, Samarqandī, Lamishī and Itkanī have tended to the opinion of the Samarqandī sheikhs.It is seen that two different approaches were adopted by Ḥanafī scholars in the field of imitation of companions. Most of the Ḥanafīs adopted the view of Bardaī. According to this view, it is necessary to imitate companions and their expression takes precedence over the qiyās (legal analogy). On the other hand Samarqandī and Lamishī adopted the opinion of Māturīdī. According to this opinion, a companion who has reached the rank of fatwā (legal opinion), it is necessary to imitate that person if one of his peers did not oppose his opinion on a subject that is not likely to be hidden because the general public needs it.There is also a dispute between the Ḥanafī scholars on the type of information expressed by the famous report. Dabūsī, Pazdawī and Sarakhsī and later Ḥanafīs believe that the famous report does not refer to certain knowledge but to assured knowledge. However, it is understood that, Abū l-Yusr, Samarqandī and Lamishī believe that the famous report refers to certain knowledge. But this conflict between the Ḥanafīs only affects the issue of the takfīr who denies the famous report. It does not cause any dispute on judgments.There are two different approaches in the sect about the issue of opposition to the Qur'an covered by internal interruption. In this matter, the issue of opposition to the Qur'an, especially through ziyāda alā al-nās, has been evaluated in different ways. According to the ʿIrāqī sheikhs and majority of the Ḥanafīs, which followed them, ziyada ala al-nas is naskh (abrogation). But according to Māturīdī and Ḥanafīs which followed him, it is also possible that ziyāda alā al-nās is naskh and statement. One of them cannot be preferred without any evidence. In addition, according to the ʿIrāqī sheikhs general and apparent words of the Qur'an express certain knowledge. However, according to the Samarqandī sheikhs the general words of the Qur'an don not express certain knowledge. So, these words can be specialized by isolated tradition. But it was observed that this conflict between the Ḥanafīs was related to the fact that the first opinion caused some problems related to the faith.In the issue of the faqīh narrator, it was determined that three different approaches were exhibited by Ḥanafī scholars. Firstly, the attitude towards not accepting the report of the non-faqih narrator, expressed by the ‘Īsā b. Abān in Abū Hurayra, is gradually being softened along with Dabūsī and adopted by the later Ḥanafī principals. However, despite the same scientific environment and period, Abū l-Yusr does not follow this approach. At the same time, it is possible to say that Samarqandī, Lamishī and Usmendī don not adopt the faqīh narrator criterion. While ‘Abd al-‘Azīz Bukhārī and Kakī did not adopt this approach but criticized it openly. As a result, it is seen that Ḥanafī sect which contains different orientations in itself does not have a uniform approach about sunnah. The points which differentiate theologian methodologists, whose perception have been taken into account in this paper, from the dominant Ḥanafī usūl tradition have been generally related to theological concerns. So, it is possible to say that this distinction can be explained by their approach of usūl in which theological premises considered as important as other concerns. In addition, it is seen that some of the opinions theologian methodologists present as an alternative to dominant Ḥanafī usūl al-fiqh tradition are close to the ahl al-ḥadīth and cumhūr al-ulemā. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Guillaume Budé, Andrea Alciato, Pierre de l’Estoile: Renaissance Interpreters of Roman LawMichael L. MonheitIn the Renaissance, jurists and other scholars intensely debated the problem of how to interpret correctly the Corpus iuris civilis (CIC), Justinian’s great sixth-century-ad compilation of Roman law. 1 Yet by the sixteenth century jurists had been closely interpreting its texts for four centuries; indeed Roman law jurists, much more than pre-Reformation theologians, innovated through close (...) commentary on the text (a characteristic sometimes wrongly considered a humanist innovation). Assuming that these texts were fully consistent, largely lacking a sense of historical distance, they “found” the CIC’s dictum on a given question by weaving many passages that seemed to address it partially into a complex logical fabric, and eliminated apparent internal conceptual disparities in the same way. 2But from the fifteenth century such humanists as Lorenzo Valla (1407–57) and Angelo Politiano (1454–94) applied humanist critical methods to the CIC and ridiculed the methods of the civilians. In the early sixteenth century the work of Guillaume Budé (1468–1540), Andrea Alciato (1492–1550), and Ulrich Zasius (1461–1535) intensified the crisis in legal interpretation. Budé, the [End Page 21] period’s leading French humanist, was the first humanist to publish an exhaustive study of Justinian’s Digest, while the Milanese jurist Alciato and the German jurist Zasius were among the first humanist-trained Roman lawyers to tackle the CIC. Across the century’s first three decades these humanists debated each other and other jurists, including the eminent Orléans professor of Roman law, Pierre de l’Estoile (1480–1537), best known to scholars as the teacher of a youthful law student named Jean Calvin. 3 We consider here a debate between Budé, Alciato, and Estoile, which also involved Nicolas Duchemin, Estoile’s student and partisan, and Calvin himself, who made his first appearance in print by contributing a preface to the work of his friend Duchemin. Though often referred to in Calvin scholarship, the debate has never been thoroughly explored. 4 [End Page 22]Unlike some recent studies of interpretation in the Renaissance, this study focuses on each interpreter’s practice, rather than his explicit methodological pronouncements alone, on what Wittgenstein calls a writer’s “language game”—here the meaning of each interpreter’s statements in the context of his interpretive practices. Indeed we shall view this debate as a clash of three “forms of life,” since the three protagonists could not agree as to what rules to follow to determine the meaning of a particular expression. 5In the passage in question, Lex Nec quicquam, §Ubi decretum, from the Digest section On the Duties of the Proconsul and Legate (D.1.16.9.1), the third century Imperial jurist Ulpian, declares:Ubi decretum necessarium est per libellum id expedire proconsul non poterit: Omnia enim quaecunque causae cognitionem desiderant per libellum non possunt expediri. (Where a decretum [decree] is required, the proconsul will not be able to dispose of the matter per libellum. All matters whatsoever requiring causae cognitio [judicial investigation] cannot be disposed of per libellum.)In unravelling the meaning of such key terms as decretum and libellus, the interpreters applied assumptions and practices rooted in both the humanist and [End Page 23] scholastic traditions—sometimes the same individual applied both. The debate presents the issue of interpretation apart from that of textual recovery, for no participant claimed any passage involved had been corrupted or offered a significant variant. Had they possessed the Mommsen edition of the CIC (albeit without necessarily understanding its principles of construction), each would have faced little added difficulty.I. Guillaume Budé on §Ubi decretumGuillaume Budé sparked the debate with his comments on the passage in the first part of his famous study of Justinian’s Digest, the Annotationes in quattuor & viginti Pandectarum libros (1508). He argued that the term libellus as used in the passage meant a supplicatory petition addressed to the Emperor. The matters involved could include both controversial cases, for which the Emperor would rely on the judgment of his council, and uncontested matters in which Emperors acted by their own “liberality or beneficence.” Budé confined himself to the... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Ideas 62.2 (2001) 301-312 [Access article in PDF] Kant on Property: The Problem of Permissive Law Brian Tierney In a pathbreaking article published in 1982 Reinhold Brandt called attention to the significance of the concept of permissive natural law in Kant's political philosophy. Brandt noted that Kant's "rightful concept of practical reason" or "permissive law of practical reason" was of fundamental importance for understanding (...) the whole theory of the Rechtslehre, and he complained that the issue had been virtually ignored in the recent secondary literature. 1 Since then others have taken up the theme, but it remains relatively neglected in the vast modern literature on Kant. In the work of Brandt and in some other recent explorations of this question a primary concern has been to relate Kant's doctrine to other aspects of his critical theory. Brandt himself, for instance, compared the "provisional" and "peremptory" rights mentioned in the Doctrine of Right with the "problematic" and "assertoric" judgments of the Critique of Pure Reason. The problem that I want to consider is rather different. In the following study I want to consider primarily the internal structure of the Doctrine of Right and specifically to ask whether Kant's appeal to permissive natural law served a constructive purpose in the theory of property that he presented in that work or whether it was perhaps subversive of the argument that he developed. 2 This will require [End Page 301] some discussion of the other usages of the idea of permissive law that we find scattered in Kant's later writings. In pursuing such an inquiry we encounter various difficulties and apparent anomalies in Kant's teaching. I want finally to suggest that we might understand those difficulties better if we were to situate Kant's work in a broader historical context than those that have previously been considered, bearing in mind that the concept of permissive natural law had been discussed by jurists and political philosophers for several centuries before Kant took up the argument. Kant on Property When approaching Kant's Doctrine of Right it may be salutary to recall a remark of Mary Gregor, the translator of the work and a sympathetic reader of it. "Kant has never been accused of underestimating his readers," Gregor wrote, "but he seldom treats them so harshly." 3 The difficulty of the work is compounded by the fact that the text as we have it is apparently in a mutilated condition, with some passages transposed from their original contexts. Any reading of such a text will be open to dispute; but it seems necessary to attempt at least an outline of Kant's doctrine and to mention some of its complexities if we are to understand the function of permissive natural law in the argument presented.Kant's purpose was to formulate a doctrine of property based on reason alone, a doctrine in which "abstraction is made from all spatial and temporal conditions." 4 The principles he deduced were intended to apply to anyone "merely because and insofar as he is free and has practical reason." 5 The whole subsequent argument revolved around these concepts of practical reason and human freedom. Kant began by presenting some basic propositions and definitions. Obligation, he wrote, was "the necessity of a free action under a categorical imperative of reason." And an action was permitted or licit when it was not contrary to obligation. This freedom of action was called a moral faculty (facultas moralis). 6 According to Kant, the only innate right inhering in all persons was a right to freedom (defined as "independence from being coerced by another's [End Page 302] choice") insofar as this freedom could coexist with the freedom of all others. 7 A corresponding universal law of Right established the rule: "[S]o act externally that the free use of your choice can coexist with the freedom of everyone in accordance with a universal law." 8External laws imposed by another evidently did hinder one's freedom. Kant therefore held that a person was... (shrink)

This chapter explores the logical structure of rights and the right of self-defence. Drawing on jurist Wesley Newcomb Hohfeld’s theory of rights, it argues that self-defence is a justification, a feature which explains why a normally prohibited act becomes either not impermissible or is a positive good. The justification of self-defence consists in a simple Hohfeldian liberty to commit homicide. The exceptional nature of the liberty together with its recurring and readily identifiable nature enables it to function as a genuine (...) right within legal and moral normative systems. (shrink)

Ijtihad is the mujtahid's putting forward all his efforts on a fiqh issue within the framework of methodological principles. Fatwa, on the other hand, are the explanations made regarding the questions asked in fiqh issues. Therefore, although there are similarities between fatwa and ijtihad in terms of declaring a fiqh knowledge, there are also some differences that distinguish both scientific activities from each other. Because of this difference, not every ijtihad qualifies as a fatwa that a Muslim can apply in (...) his life. A jurist who does not have the qualifications for ijtihad has to pay attention to when giving a fatwa by making use of the classical period ijtihad. The most important thing to consider when benefiting from the ijtihads that have been put forward is to correctly distinguish between the ijtihads that are historical and those that will always be used. In the fiqh books, there are many issues that can be described as historical ijtihad, in the context of their own time and conditions. Since it is not possible to present all such ijtihads within the framework of an article, in this study, the subject is discussed within the framework of ijtihads selected from fiqh books. From international relations to family law, there are many historically qualified ijtihads in the fields of fiqh, especially in the field of transactions. Today, international relations are quite different. It is of great importance to redefine the world and present fiqh rules accordingly. In the changing social structure, a new perspective is needed in the determination of the muruet. In the process of women's social position and participation in social life, great changes have been experienced all over the world and women have started to take part in many areas of life. In terms of the minimum age limit for marriage, it has become natural to marry at an older age than in the past. It has become almost impossible to act with the approach that those who have the same belief will obtain citizenship without other terms and conditions. It has become necessary to consider the views of jurists regarding the rights of non-Muslim citizens from a new perspective in the globalizing world structure. The implementation of views that give authority to private property owners regarding mineral ownership may be harmful to the security of the state and the public interest. There has been a need to look again at the legal provisions regarding the treasures under the ground in terms of public interest. In the article, it is stated why the ijtihads on the aforementioned issues have a historical character and in which framework the issue should be handled today. (shrink)

Utilising literature as a serious source of challenges to questions in philosophy and law, this book provides a fresh perspective not only upon the inculcation of the legal subject, but also upon the relationship between modernism, postmodernism and how such concepts might evolve in the construction of community ethics. The creation and role of the legal subject is just one aspect of jurisprudential enquiry now attracting much attention. How do moral values act upon the subject? How do moral 'systems' impinge (...) upon the subject - jurist and judged - throughout the 20th century, when religious values are called into question, when 'existential' doubt prevails? To what extent do issues of gender and identity inform these questions? Many sources can provide insights into these issues: this book intends to concentrate upon fiction as just such a resource. However it is not just another law and literature compilation. Spanning the last century, each chapter will attempt to fulfil four objectives: to identify key texts in relation to a given period; to look for linked legal and philosophical developments from that period; to establish fresh links from these sources regarding concrete doctrinal, or practical legal questions, and finally draw a more general inference about the legal subject and the frequently less evident feminine citizen-subject. Central to this approach will be the consideration of contemporary case law and legal materials as social documents of the relationship between law and the wider community. (shrink)

In this paper I argue that there is objectivity in international human rights law, against which the justifiability of arguments can be determined, and which could advance the universality versus relativity of human rights debate. Revisiting the three schools of treaty interpretation and applying the three elements of Radbruch’s rule of law, I discuss how the interpreter’s job of balancing those schools has limited room for manoeuvre. I further propose an approach to help jurists detect unjustifiable arguments in treaty interpretation, (...) often in the disguise of relativism. That approach consists of: a non-justifiable argument contradicts all three schools of treaty interpretation; or ignores all three; a justifiable argument is supported by at least one of these schools; a better argument is a more balanced argument, i.e. supported by more elements of interpretation. Finally, I argue that there is a degree of objectivity in each school of treaty interpretation, which is supported by shared intention and speech act theory, and can therefore be held to apply to the whole process of treaty interpretation. I illustrate above arguments with a case, a doctrine, and a country. (shrink)

‘Attempted negligence’ is a category of criminal offense that many jurists and philosophers have law have deemed conceptually incoherent. In his Attempts: In the Philosophy of Action and the Criminal Law, Gideon Yaffe challenges this dismissal, anchoring his argument in cases of what he calls ‘mental self-management’ in which agents plan to bring about that they perform unintentional actions at a later time. He plausibly argues that mental self-management-type attempted negligence is possible. However, his account raises the question whether such (...) attempts can be successful: whether, in other words, attempts to perform unintentional actions at a later time could issue in actions that are, indeed, unintentional. Intuitively, at least, it would seem that we should answer in the affirmative. However, that answer poses problems for a plausible and widely-held account of intentional action. Al Mele, responding to Yaffe’s account, has pointed out this problem without, I think, providing a satisfactory resolution. I propose another way of vindicating the possibility of successful attempted negligence with small, if significant, revision to the standard view of intentional action. In these cases, I argue, agents fail to act intentionally because they render themselves, through their acts of self-management, unaware that they are successfully executing their intentions. Moreover, I argue that these agents’ intentions to bring about that they perform unintentional actions do not commit them to acting intentionally because of the nature of intentions to bring about actions. I offer an account of the intention to bring about that one A’s and defend it against some objections. (shrink)

The issue of wiping over socks is part of the more general issue of wiping over leather socks (khuffayn) for ablution (wuḍū’). Washing feet or wiping over them is a debate whose sides bases their claims on the verses of the Qur’an and supports these claims with narrations. When performing ablution, if shoes or socks are on the feet, whether one can wipe over them without taking these off and the qualities that these clothes should have is a debate based (...) on hadith narrations. Most Muslims except for the Ja’farite are of the opinion that either washing the feet or wiping over a khuff or similar clothing that was put on while a person already had ablution can be done during ablution, while the Ja’farite think that wiping over bare feet is enough but wiping over khuff is not. There is a consensus that shoes, boots, buskins and other leather footwear qualify as khuff. However, there is disagreement over whether clothing from materials like cotton, linen, wool, and felt -usually referred to as socks- qualify as khuff. For this reason, some Muslims of the world wipe over socks while others do not. There are contemporary fatwas (legal opinion) that are supportive of either of the positions. However, there are those who treat this issue beyond choosing a side in an ijtihad (process of juristic legal reasoning) and some who wipe on socks are censured strongly. In this research based on an examination of the fiqh heritage, the goal is to contribute to making this issue better understood and its fiqh ruling clearer.Summary: The sixth verse of Surah Ma’idah in the Qur’an clearly states that wuḍū’ requires washing the face, arms up until elbows, and wiping over the head. However, when it comes to the fourth element of wuḍū’, the feet, there has been disagreement about whether it should be wiped or washed. Arabic grammar rules and narrations have been interpreted in ways that support both views; in general Sunni sects, Zaydis, and Kharijites argue the feet should be washed while Shia Ja’farites are in favor of wiping over bare feet. There have also been efforts among faqihs (jurists) to reconcile washing and wiping; washing slightly; choosing the better one between the two; washing when not covered, wiping when covered; washing if there is dirt, wiping if it is clean; viewing at least wiping as fard (obligatory), washing as a Sunna (recommended) that includes the fard as a way to unify the two approaches have also been proposed.According to widely accepted narrations, the prophet and his companions washed their feet when performing wuḍū’ and once they put on their shoes having had wuḍū’, the next time they only wiped over the shoes without taking them off. In less commonly accepted narrations, which some hadith authorities regard as authentic, the Prophet is said to have wiped over his socks. In narration sources, it has been narrated that about fifteen faqih companions, among them ʿUmar b. al-Khaṭṭāb, ʿAlī b. Abī Ṭālib, ʿAbdallāh Ibn Masʿūd, ʿAbdallāh b. ʿAbbās, ʿAbdallāh b. ʿUmar, saw wiping over socks as appropriate. However, there are no narrations about the companions disapproving of wiping over socks. Among those who approved of wiping over socks are tābiʿūn (successors) faqihs like Saʿīd b. D̲j̲ubayr, Saʿīd b. al-Musayyab, Ibrāhīm al-Nakhaʿī, ʿAṭāʾ b. Abī Rabāḥ, al-Ḥasan al-Baṣrī ve al-Aʿmash, and Mujtahid Imams like Zufar, Sufyan al-Thawri, al-Ḥasan b. Ṣāliḥ, Ibn al-Mubārak, Abū Yūsuf, Muḥammad al-Shaybānī, Aḥmad b. Ḥanbal, Isḥāq b. Rāhawayh. Considering their most prominent positions, we can say that Ḥanafis and Shafis allow wiping over socks that are thick and opaque, Hanbalis allow it over socks that cover the foot even if thin, while Mālikīs do not allow wiping over socks at all.As far as it is understood from narrations from the Prophet’s time, due to both climate conditions and weaving possibilities, socks were used only rarely. Also, footwear like shoes or slippers made of leather were very hard to find and narrations suggest that prayers were performed at houses and the masjids over soil base on either bare foot or with shoes. For these reasons, the issue of wiping over socks did not arise at the time and at later periods different opinions on the issue led to disagreements. When carpets were placed on the ground at later periods, performing the prayer with shoes was abandoned and a second layer of shoes (khuff) was placed inside the shoes as khuff. Since removing the shoes would invalidate wuḍū’ performed over that shoe, those who wanted to avoid the difficulty of having to wash their feet each time they needed wuḍū’ have instead wiped over this second layer once they put them on after performing wuḍū’.Ḥanafīs and Shāfiʿīs, who tend to approach the issue of wiping over socks with hesitation and make this conditional on some strict rules, emphasize that the socks to be wiped over should be similar to shoes in terms of thickness, based on the idea that it is certain that the Prophet has wiped over shoes made of leather but his wiping over socks is weaker and that the qualities of those socks are not clear. Among the thickness criteria expressed for the socks are being waterproof, the ability to walk for at least a league with it, and its ability to hold on to feet without being tied at the wrists. Due to these criteria, which have been developed to protect the wuḍū’ and whose boundaries are not well specified, especially among Ḥanafis the idea that wiping over socks is not allowed has gained popularity. As opposed to this, in circles dominated by Ḥanbalīs opinions allowing wiping over any type of socks have been expressed.At times when the Prophet had his shoes on and did not want to take off his shoes, he used to wipe over the shoes. The equivalent of this act today is to wipe over socks since prayer with shoes on is not common any more. While nowadays wiping over socks is an ease for everybody when performing wuḍū’, it is something that is especially needed under certain circumstances. Cold weather and the lack of drying possibilities for the feet leading catching cold and illness, socks that are put on when feet are wet leading to bad smell and fungus on feet, the hardship of elevating the feet high enough to the sink and of changing socks on one foot when there are no special wuḍū’ places, the fact that at societies distant from Islamic culture it is seen against the etiquette to wash feet in the sink are among the reasons why this need arises. Because most of the time we are not in a position to determine the circumstances of our work and travels at modern times, it can be said that today this need is more than it was in the past.Some scholars of today use a precautionary principle and argue that the Qur’an commands to wash the feet, and the only narration powerful enough to make an exception to this rule is about masts made of leather, and extending this to include socks would go against the precaution principle and some other principles of uṣūl al-fiqh (Islamic legal theory). However, some other scholars who use the ease in religion principle argue that the permission to wipe over masts also include wiping over socks and that they are of the same nature, that there are authentic narrations that show wiping over socks are allowed and that one can even talk of an ijmāʿ (consensus) among the companions on this issue, and that seeking additional qualities socks on which one is to wipe over, such as thickness, ability to walk with it, its ability to hold on to the feet, being waterproof, have no merit in the sharīʿa. Jamaleddīn Qāsimī, who wrote a special research book on the topic, and scholars like Abū l-Aʿlā Mawdūdī, Yūsuf al-Qaradāwī, ʿAbd al-ʿAzīz b. Bāz, Ibn al Uthaymeen think that one can wipe over daily socks that do not show the skin beneath it, while scholars predominantly of the Ḥanafi opinion hold that one cannot wipe over the thin daily socks. (shrink)

Mirrors for princes, in general, give advices to the rulers about the subtleties of political art. Another aim of these books is to define and explain the administration of the state and the duties of rulers based on experience. In consequence of this they reflect the practical ethics of the period in which they were written. As such, they resemble practical handbooks written for rulers. Another point regarding the mirrors for princes works in which the political understanding of the era (...) can be observed is that they generally use sacred texts in order to prove the political legitimacy or invalidity of the power, as well as the rightfulness or the unlawfulness of the claims to the throne. Evidences from the Qurʾān and the ḥadīth literature was almost always used to support such advocated opinions. In fact, during the Middle Ages when religion and politics were considered coupled, it was unthinkable that religious elements should not be included in the works of state administration. The important point here is that the verses and ḥadīths were sometimes removed from their contexts and interpreted and explained in a way to support the ideology of the author or the ruler whom the author presented his work. In this study, we will try to reveal the subjects in which the verses and ḥadīths used in the mirrors for princes, which is a genre that has emerged within the Islamic culture and civilization. Thus, we aim to prepare a background for the future studies, which will focus on a specific verse or ḥadīth.Summary: The first political splits in Islamic history occurred immediately after the death of prophet Muḥammad. These differences were resolved by the agreement of the majority of Muslims on Abu Bakr's name. Until the second half of the rule of the third caliph ʿUthmān, Muslims came together around the unifying power of the idea of conquest. Nevertheless, substantially as a result of economically based problems the period of tranquility in Islamic society came to an end and was replaced by disputes. Disputes turned into conflict and ultimately seperation fused with the massacre of ʿUthmān in the capital Medina turned into a big fire with the Battles of the Camel and Ṣiffīn, the emergence of Khārijīs, the formation of the Shia and the deepening of the intellectual divisions after the all of these. Islamic history has witnessed a clash of different religious views and beliefs. along with deepening of intellectual disagreements as a result of political debatesIn the Islamic political thought, especially the first two centuries process was formed around the views of the jurists, muḥaddiths and theologians. The first sources used by those who tried to justify their opinion in the differences of opinion experienced during this period were the Qurʾān and ḥadīth literature which Muslims accepted as the determining factor in all their acts. The views based on the Qur'an and the hadiths, which are the two main sources of Islamic religion, had been used to influence the people, legitimize the actions and refute the claims of the opponents. On the other hand the sort who gave direction to political thought changed and political thought adhered a new path with Turks and Persians served as bureaucrats and soldiers and took an active position in the state. Especially Persians carried the culture of advice to Islamic thought, which is the product of both Greek and Hind civilization. Such books had brought in the İslamic society with translation movements began in the Umayyad period and peaked with the Bayt al-Ḥikma in the Abbasid period. Together with these books, the ideas of these civilizations on ideal state administration, politics and morality were recognized by Muslim scholars.These type of works, which are famous in terms of Islamic thought as mirrors for princes, have been written by Muslim scholars since the middle of the eighth century. Mirrors for princes are political, moral and religious content books that gives the rulers practical advice to maintain their power in accordance with the religious orders and prohibitions, and to the consent of Allāh’s who grant them this authority and people which appointed for their administration. Mirrors for princes are mostly theoretical books since they are mostly focused on what should be. In addition, since they are written for names that currently hold power, they are centered on how the rulers can maintain and increase their power and with which practices the state will maintain its existence for a longer period. The basic point of political thought and political interpretation are concepts and definitions. When the concept meaning of a word is mentioned, it is generally considered that there is a general definition. However, the concepts reflect the meaning that the user assigns to him in the context of his thoughts, perceptions, criticisms, explanations and analyzes. Concepts such as fair, honest, brave, hero, beautiful, rich, good and clean express what the person imposes on the meaning. In other words, everyone’s experience determines the content of the concept so far. The meaning of the concepts varies with the age and its user of that concept. Even concepts such as justice, merit and consultation can change meaning in different periods and geographies. The concepts, which are often used to facilitate understanding, are sometimes used to judge, to mold or mislead the interlocutor. In this context, it is imperative to enter the mind of the user in order to make concept analysis.In Islamic civilization, the principles of management are explained with concepts. The idiosyncrasies that Muslims expect from an ideal ruler are defined as justice, consultation, merit, trust and legitimacy and a broad corpus has been written about the concepts related to the administration, especially those mentioned. One type of this corpus is mirrors for princes.In Islamic history, there are many Mirrors for princes who are written in different time periods by names coming from different geographies and different backgrounds. Although the advice given in Mirrors for princes indicate a great similarity to each other, the preferred arguments and examples in the foundation of the counsel are different. While the persons in active politics mostly based their opinions on political arguments, scholars with scientific tradition supported their advices with religious arguments.Verses are the leading religious elements highlighted in Mirrors for princes. While explaining the concepts and emphasizing the importance of the advices, many verses have been exploited. Some verses are used only by one author, while some verses are the subject of their work by many authors. In the same way, ḥadīths and the sentences accepted as ḥadīths were also used to reinforce the emphasis and meaning. At this point, sometimes the context of the verses and ḥadīths were not taken care of. In this study, we aim to address the use of religious elements.In the literature, different opinions have emerged about who is ülü’l-emr and the limits of obedience to ülü’l-emr that used describe the names of senior executives and leaders of society. The reason for the difference is that each sect or religious school provides an interpretation on the basis of grounding its own views in explaining the verse. Justice is the most emphasized concept among the advices given to the rulers in mirrors for princes. Justice, which is shown as the most important feature of a sovereign, has been regarded as extremely important for the state to existences until the Doomsday. In addition, justice has been described as the most important condition for the maintenance of the state/sovereign authority. Consultation was important to make the right decision.Verses and ḥadīths were used in the explanations about the personal characteristics of the sovereign. Some features such as being compassionate, keeping promise, controlling anger, patience, honesty, blessing, extravagance, self-esteem, break a promise, revoke a promise and arrogance have become the subject of politics. When the mirrors for princes are considered as a whole, it is seen that religion and state are considered as inseparable twin brothers, taken one step further the understanding that accepts religion and the world as brothers especially is a product of the old Persian tradition. In this understanding, religion was accepted as the root and was given the duty of its patronage to political authority. It is seen that in the Mirrors for princes verses and ḥadīths hold a significant amount. As the reason for this can be said that along with religion takes place on the basis of morality, the authors of the Mirrors for princes, which put deep meanings on the relationship between religion and the state in the period that we are dealing with, consider both institutions to be complementary and integrative. (shrink)

Desde la separación estricta de ética y derecho, la Rechtslehre kantiana sostiene que es la ética la que exige al sujeto que haga suya la máxima de actuar conforme al derecho. En la misma línea defiende J. F. Kervégan que los sujetos habríamos de reconocer como un deber ético el respeto a las normas jurídicas, sin que esto quiera decir que el derecho dependa de la ética, pues en estricto derecho no podría tenerse a la intención de conciencia como móvil (...) de la acción justa. Lo que el derecho regula y juzga son las acciones exteriores, y también el móvil tiene que es el poder coercitivo, que el derecho, a diferencia de la ética, tiene la facultad de imponer a la sociedad a fin de que cada miembro de ella en su acción externa evite por su propio interés perjudicar la libertad de cualquier otro. Por esta unicidad del móvil sostiene Kant que derecho y facultad de coaccionar significan una y la misma cosa. El formalismo de su planteamiento impide a Kant entrar en la complejidad del entramado de derechos y deberes, de bienes y cargas, que hace de la justicia distributiva el verdadero objeto del arte jurídico. Y por su externalización estricta del derecho reduce al jurista a la observancia de los textos, ignora el procedimiento de la controversia judicial, excluye la equidad como ajena al derecho, y convierte al derecho en el gendarme de la moral . En cuanto a la intención interior, una cosa es que las leyes no puedan motivar el albedrío por la conciencia de la obligación, y otra que si derecho y coacción significaran lo mismo no habría diferencia entre cumplir la ley para evitar el castigo o eludir el castigo burlando la ley -opción ésta que a muchos resultaría más provechosa, dado que el poder del Estado es incapaz de vigilar en cada momento a cada sujeto, y que los vigilantes mismos necesitan ser vigilados, ad infinitum. Tras una breve alusión a los conocidos argumentos de Platón, Hobbes y Montesquieu sobre la obediencia voluntaria como el otro móvil del derecho, no menos necesario que la coerción, se recuerda que también el profesor Kervégan ha defendido en otro contexto que un orden jurídico cualquiera tiene dos componentes irreductibles entre sí: el sistema de normas que define lo que debe ser y la decisión que conforma el ser al deber-ser. Finalmente, en el derecho interestatal no puede Kant invocar la facultad de coaccionar, que deja de significar lo mismo que "derecho" porque, al no haber ninguna fuerza superior a la soberanía de los Estados, el pacto durará hasta que alguno de ellos lo incumpla por su libre y soberana decisión. From a firm distinction between ethics and right, the Kantian Rechtslehre holds that the demand to adopt the maxim to act according to the right is an ethical demand. Also J.F. Kervégan defends that individuals should recognize the ethical obligation to respect juridical rules, but this does not mean that right depends on ethics, because, in strict right, internal disposition or intention could not be considered as motive for the rightful action. Law regulates and judges the external actions and also the motive has to be external as it is external the coercion that right -but not ethics- can impose on society so that each member of it, for his own interest, does not damage in his external agency any other member's freedom. Because of this only one motive, Kant declares that right and coercion's capacity signify the same thing. His formalist position stops him to go into the complex network of rights and duties, of advantages and burdens, which makes distributive justice the true subject of juridical art. Moreover, because of the strict externals of the law Kant is unaware of the juridical controversy, reduces the jurist to the observance of texts, ejects the equity as not right's own, and risks to transform the right in the gendarme of morals . With regard to intention, one thing is that in strict law the internal disposition can not be deemed as the motive, and other thing is that if law and coercion's capacity signify the same thing, there is no difference between obeing the law to avoide the punishment, or avoiding the punishment in breaking the law; then, the last option would be profitable for too many people, since the coercion power is not able to survey in every moment each individual, and the watchmen themselves need to be watched over and so on. After a short mention of the well known Plato, Hobbes and Montesquieu's arguments about the voluntary obedience as the other motive of the strict right, not less necessary than coercion, we remember that J. F. Kervégan also defended in another context that any juridical order has two irreducible le système des normes générales qui définissent ce qui doit être, et la décision qui conforme l'être au devoir-être. Finally, in the interstates right, Kant can not maintain that right and capacity of coercion mean the same thing, because there is not any force over the sovereignty of the States, and therefore the contract will last till one of them breaks it by its free and sovereign decision. (shrink)

The law of responsibility (compensation), which was formed around the concept of the ḍamān and was developed by the scholars within the system of furû‘ al-fiqh (substantive law) over time, constitutes one of the important parts of Islamic law. Although compensation law (ḍamān) was not addressed as a private subject in the first period fiqh literature, it is seen that the literature on this specific area started to emerge after the early period. It is the Hanafi jurists who first brought (...) together these issues that are scattered in the classical books of fiqh that are related to the law of responsibility. Compensation law took its classical form in the texts of the early periods and was shaped around the views of the founding imams of the Ḥanafī school (madhab). It has later been expanded with the fatwā and interpretations of the Sheikhs (mesāikh) of Hanafi in the type of waqi'at works. These works were a product of the need for the law to adapt to the new conditions. These issues, which are related to the compensation law in the Hanafi school have been covered as a special section (chapter) in the studies that are classified as waqi'at, such as Usrūshanī’s al-Fuṣūl fī al-muʿāmalat (Fuṣūl al-Usrūshanī), ʿImād al-Dīn al-Marginānī’s Fuṣūl al-iḥkām fī uṣūl al-aḥkām and Shaykh Badr al-Dīn’s Jāmiʿal-Fuṣūlāyn. Later, the topics discussed in these works were developed and continued, and ultimately separate works related to this field have been copyrighted. In this study, the kinds of development and expansion which are in the literature and related subjects will be discussed by examining the above-mentioned works. Therefore; first of all, the first examples of Hanafi jurists related the compensation will be analysed comparatively. Afterwards, the place of ad-Ḍamānāt fī al-furūʻ al-Ḥanafīyyah of Fuḍayl Chalābī (d. 991/1583), one of the Zenbillizade’s, will be addressed.Summary: The core idea of the law of responsibility, which constitutes one of the important parts of Islamic law, was stated in the Qur'an and Hadith, and then have accumulated by the contributions of the jurists (fuqaha), as they developed the idea of the law of responsibility within the furû‘ al-fiqh in relation to the systematic of the legal school (madhab) that they belonged to.These issues, which constitute one of the important parts of the law, were addressed by sprinkling among the topics in almost every part of classical fiqh books. In other words, the subject of ḍamān (responsibility) was not considered as a separate subject in the fiqh works of the first period. In this way, it is seen that the literature on compensation law started to emerge in the following periods, and at first several independent sections on this subject, and then separate works specific to this field, albeit limited in number, were written.It is the Ḥanafī jurists who first brought together these issues that are scattered in the classical fiqh books related to the law of responsibility. Compensation law, which took its classical form in the texts from early periods, shaped around the views of the pioneering imams of the Ḥanafī school, has been expanded with the fatwā and interpretations of the Sheikhs (mesāikh) of Ḥanafī in the waqi'at works, which is a product of the need for the law to adapt to new conditions. Firstly, one of the Ḥanafī jurists, Majd al-Dīn al-Usrūshanī (d. 637/1240) dealt with the responsibilities arising from the contract and unfair acts in the 29th section of his book named al-Fuṣūl fī al-muʿāmalat under the title “Types of Compensation Required to be Paid and Their Situation”. The method and system that Usrūshanī started in this work, the Ḥanafī jurisits ʿImād al-Dīn al-Marginānī in the Fuṣūl al-iḥkām fī uṣūl al-aḥkām and Shaykh Badr al-Dīn Ibn Qāḍī Samāwnā in the Jāmiʿ al-Fuṣūlāyn continued to develop the compensation section in their books. Afterwards Fuḍayl Chalābī (d. 991/1583), one of the members of Zenbillizade’s family, enriched these issues and made it an individual work, named ad-Ḍamānāt fī al-furūʻ al-Ḥanafīyyah. Marginānī titled the issues that Usrūshanī had handled in the compensation section and systemised it even more by gathering the fatwās on the related issues under one heading. It is noteworthy to mention that when the compensation sections of both works are compared, the way the subjects handled are exactly the same. But unlike Usrūshanī, Marginānī added the compensation for damages to the fetus in the womb and the responsibility of the person who brought back the fleeing slave at the end of the chapter. On the other hand, unlike them, Shaykh Badr al-Dīn added only the responsibility of the person who found the lost item. Considering that almost all of the topics in the compensation section of Sheikh Badr al-Dīn existed exactly in the compensation section of Marginānī, and that most of them were stated in Usrūshanī’s al-Fuṣūl, it is necessary to say that all of these discussions are based on Usrūshanī as the main backbone of this particular subject and that his work has a unique place in the Islamic legal literature. Chalābī’s ad-Ḍamānāt, is the first work that was written as a separate book in the field of compensation law. Even though in some modern works claim that the work Ghānim al-Baghdādī’s (d. 1030/1620) book named Majma‘ al-ḍamānāt fī madhhab al-Imām al-A'zam Abī Ḥanīfa al-Nu'mān was the first written book in this field; it is known that Chalābī's ad-Ḍamānāt had been written before Baghdādī’s Majma‘ al-ḍamānāt. As a matter of fact, the work of Chalābī had been completed in 984 Hijra, and the Baghdādī’s Majma‘ al-ḍamānāt was completed in 1027 Hijra. Although the subject sequence in Baghdādī’s work is different; this work is regarded as a continuation of the same tradition.An examination of the systematic and the content of the work reveals that Chalabi’s ad-Ḍamānāt is the continuation of the type of writing that Usrūshanī started and developed by Marginānī and Shaykh Badr al-Dīn. When compared with the compensation sections of these works before him, Chalābī has added new compensation issues to his book that are not addressed in these three works; such as partnership, mudaraba, suretyship (kafāla) transfer (ḥawāla), peace, legal disability (hajr), freedom of trade (idhn) and testament. Among the works mentioned above, works out of Shaykh Badr al-Dīn’s Jāmiʿ al-Fuṣūlāyn and Baghdādī’s Majma‘ al-ḍamānāt are available as manuscripts in the libraries. Therefore, these works have not been used much in modern studies on compensation. In addition, the Chalābī's ad-Ḍamānāt is almost unknown. Although there is little information about this work in some bibliographic studies, it is noteworthy to state that this work is not used as a source in contemporary studies written in Arabic on compensation law. The fact that this work is available as manuscripts in Istanbul libraries is probably the reason for this outcome. It is also very difficult to say that this work is known and used sufficiently in studies written in Turkish.Usrūshanī’s al-Fuṣūl fī al-muʿāmalat and Marginānī’s Fuṣūl al-iḥkām are currently in the form of manuscripts, so there is no comprehensive study on the whole work and the compensation section. It is possible to see the compensation issues discussed in the work, since Shaykh Badr al-Dīn’s Jāmiʿ al-Fuṣūlāyn, which has been published as printed, was translated into Turkish by an editorial group under the presidency of H. Yunus Apaydın. In addition, Kemal Yıldız, who translated the compensation section in this translation, published this section in Jāmiʿal-Fuṣūlāyn as a separate book with the name of “Sources of the Jāmiʿ al-Fuṣūlāyn and Compensation in the Practice of Ḥanafī School”. Yıldız, first introduced the sources of the Jāmiʿ al-Fuṣūlāyn in the first part of this work and then translated the compensation section from beginning to end by adding his own explanations and evaluations around the subject during the second part. Even though some introductory information about the books of Usrūshanī and Marginānī is presented in Yıldız’s study, the absence of information on the contents of the compensation sections of these books does not allow the opportunity for the researchers to evaluate on the subject wholly. (shrink)

Evils, both large and small, are a constant feature of human life. This book is about responding to them and in particular about responding to moral evils, that is, those produced by the deliberate acts of human beings. Prominent in our repertoire of responses to moral evil are forgiveness and punishment, and these, with the numerous conceptual and moral problems they raise, are at the heart of the study in this book. After discussing the idea of evil, Scarre turns (...) to the meaning of forgiveness and the conditions for granting it. He defends a broadly utilitarian approach that stresses the role of forgiveness in repairing the damage that has been caused by injurious or offensive behaviour. Scarre then considers the controversial virtue of mercy and the propriety of revengeful behaviour and resentful attitudes. Finally, he deals with the purpose and justification of judicial punishment, paying particular regard to the appropriate treatment of war criminals. In this timely and sensitively written book, Scarre pays close attention to the existing literature and appraises both contemporary and classical contributions to the debate. This book makes an original contribution to an area of ethical thought that has been attracting an increasing amount of attention from philosophers, jurists and political thinkers. (shrink)

This book explores both the possibilities and limits of arguments from human nature in the context of human rights. Can the concept of human nature provide a basis for understanding fundamental rights? Is it plausible to justify the claim to universal validity of human rights by reference to human nature? Or does the idea of human rights in its modern, post-1945 manifestation go, in essence, beyond human nature? The essays in this volume introduce naturalistic positions and their concomitant critiques. They (...) address the role that human nature both actually does and potentially may play in forming a foundation for and acting as an exemplification of fundamental rights. Beyond that, they give attention to the challenges caused by Life Sciences. Human nature itself is subject to transformation and transgression in an unprecedented manner. The essays reflect on issues such as reproduction, species manipulation, corporeal autonomy and enhancement. Contributors are jurists, philosophers and political scientists from Germany, Switzerland, Turkey, Poland and Japan. (shrink)

En 1534, le grand chancelier d'Angleterre, sir Thomas More, refuse de prêter serment à l'Acte de Suprématie par lequel Henri VIII d'Angleterre, s'opposant à l'Eglise de Rome, se proclame chef de l'Eglise anglicane. Condamné par le tribunal royal à la décapitation publique, Thomas More demeure pourtant fidèle : fidèle au roi, fidèle à la foi, et fidèle à sa conscience au prix de sa vie. En effet, s'il ne reconnaît pas le roi comme chef de l'Eglise nationale, il n'a jamais (...) remis en cause son autorité temporelle. Sir Thomas More, humaniste, juriste, théologien, diplomate, homme d'Etat et finalement martyr, est devenu un modèle pour ceux qui se dévouent au bien commun. L'Europe troublée du XVIe siècle n'est pas sans rappeler notre époque soumise à la difficile gestion des affaires publiques, aux scandales financiers et à l'avidité de quelques puissants. Ce livre, qui présente la vie de Thomas More et les valeurs fondatrices de son action, peut nous aider à trouver de nouveaux repères pour devenir ferment dans la pâte du monde. Le lecteur saisira alors toute la vérité des paroles adressées par l'humaniste anglais Roger Ascham à la petite- fille de More : "Par cet homme seul, c'est toute l'Angleterre qui s'est trouvée anoblie.". (shrink)

The Umayyad State is widely criticized in the West as well as in its own region. Actually, this is normal situation. Because Hijaz Arabs who had no state experience, built a multinational state in short period of time. Yet, this caused serious matters. The fundamental point of the criticism is the payment of tax, also called jizya, which is taken from residents (mawālī) of Khorasan and Transoxania. However, in most studies on this subject, it is understood that the jizya taken (...) from mawālī is combined jizya and kharja, which is different type of tax. Although mawālī was tested for whether it passes religious criteria in critic periods or not, this situation did not last throughout the entire Umayyad history. It was continued for fifteen and twenty years. In this period, it was understood that the jizya tax taken from the mawālī, was caused by the unlawful practices of some regional governors, most of them were non-Muslim local tax officials and all their purpose was to collect the amount of combined jizya. It cannot be said that the Umayyad caliphs officially ordered written instructions in order to take the conceptual sense from the mawālī part. But some Khorasan governors, who detected that taxes were decreasing, blinked at the collection of the jizya from the mawālī.Summary: The tax policies of a state are of great importance for the political, social, and economic stability. A regular tax system minimizes the problems that the state mechanism might face. The establishment of a fair and just tax scheme is undoubtedly possible with a deep-rooted state experience. It is known that the Umayyad state which is the subject of this research has no state experience. Furthermore, ruling to the area which is on 13 million square kilometers and reaching to Kashgar in the East and to South France in the West and governing this multinational structure who are living on these regions, put the Umayyad government in a very difficult condition. With the vast borders and the stoppage of the conquests, some political, social and economic problems were experienced and these problems deeply affected the government. The groups which had argued with Shiites and Khārijites because of some various reasons led the country into collapsing. It is also known that many plague epidemics in the region of Damascus affected the society in a negative way, changing the capital and changing some of the border cities in favor of the Eastern Roman Empire.All these negativities certainly shaken the Umayyad state economically. It is understood from the data that the instability and political uncertainties in the country led to a decrease in the tax rates. For example, the Umayyad caliph ‘Abd al-Malik İbn Marwān period, only half of the tax was collected at the time of Hazrat ‘Umar could be collected. It can be said that the public who avoided the general policies of the state avoided giving tax, in other words, the tax evasion. Also, the increasing migration from village to city and due to that, the vacancy of tribute tax collected land, failure to obtain expected yield because of rent fights on fertile lands, and conversion process in non-Muslim community are included in other reasons of reduction of taxes.In the Umayyad period, the issue of taking the jizya from the mawālī can be considered in this context. We do not have an independent work or research article on how this practice was initiated, how it was and how it was taken from mawālī, and how it was a state policy, and how long it was sustained. The studies that touch on this subject are far from being holistic. Even in the main sources it is seen that the concepts of kharāj and jizya are not fully understood and therefore used interchangeably. This may be considered normal for the first period in which the concepts are not in place. However, in the following centuries, the works that were copyrighted and, except for a few, instead of understanding and explaining this confusion, chose to use the word jizya from these two words which can be used interchangeably in texts. Therefore, this approach has led to the widespread conviction that the Umayyad state has taken jizya from the mawālī in the conceptual sense.Al-Ḥajjāj ibn Yūsuf is claimed to have started the application of taken jizya from mawālī. However, Haccac aimed to provide the regularity of both agricultural products and the kharāj which is taken from farmers because of the status of the soil by sending Sawad villagers who migrated to the big cities and became Muslims by changing their religions. The status of the lands seized was decisive in taxation. According to this, the conquest and the territorial lands were taxed differently, but in some cases the same tax (kharāj) was taken. Non-Muslims who living in the territory of conquest were demanded jizya per capita. The jizya and kharāj tax collected from this category can be expressed as “joint jizya”. Regardless of whether the person is a Muslim or not, the fact that he was demanded from him due to the status of the land was interpreted by some researchers as juristic. However, in times of political instability, it is also a fact that mawālī is demanding jury in addition to the tribute tax. The point that is misunderstood or interpreted is that this practice was carried out throughout the entire Umayyad territory and the history. When examined, this distorted tax concept is actually concentrated in the area of Transoxania. Although some attempts were made to take the jizya from the mawālī to the country, the Umayyad caliphs have not allowed it. The practice of taking the jizya from the mawālī is actually followed by the killing Qutayba ibn Muslim al-Bāhilī (d. 96/715). This started political instability in the Transoxania and continued by some Khurāsān governors. These governors act according to the provocations of the Turkish governors and tax collectors of the region in order to be able to send their taxes completely. They claimed that the region in the region was not a sincere Muslim and, they continued to take the jizya from them.It can be said that jizya is not demanded as it is taken from non-Muslims in the common meaning from mawālī. Because any Umayyad caliph wrote no written instructions regarding this issue in the sources. It is understood that until the caliphate of ‘Umar b. ‘Abd al-‘Azîz, the Umayyad caliphs were not even aware of this distorted tax policy in the area of Transoxania. To put it once again, this practice was initiated by some Khurāsān governors with the concern that tax revenues might decrease. However, it should not be forgotten that this unfair practice after 96/715 is limited to certain governors. For example, during the tenure of Naṣr b. Seyyâr, the last governor of Khurāsān (120-131 / 738-748), the jizya tax was completely removed from the mawālī. Another activity that shows this action is regional and that was ordered by some governors of Khurāsān. Therefore, this practice does not reflect the Umayyad state policy. This is also apparent in the fact that the Shiites, Kharijites, and those who carried out the Abbasid Revolution for thirty-two years, did not make an anti-Umayyad propaganda with provoking the slave by the way of wrong application. (shrink)

THIS ESSAY EXPLORES THE IMPLICATIONS OF A NATURAL LAW ACCOUNT of marriage for the gay marriage controversy, starting from the concept of the natural law developed by scholastic jurists and theologians in the twelfth and thirteenth centuries. Certainly, the scholastics themselves unanimously condemned homosexual acts, and probably never entertained the possibility of same-sex marital unions. Yet this fact taken by itself does not mean that their overall concept of the natural law and the approach to marriage developed out of (...) that concept must necessarily rule out gay marriages. We are the heirs of several centuries of further experiences with and reflection on marriage, and through this process our own conceptions of both marriage and sex itself have changed—leading to perspectives very different from the scholastics yet recognizably products of a trajectory of thought that they initiated. In this essay I argue that the scholastic concept of the natural law, when developed and applied within a contemporary context, does not rule out gay marriage but on the contrary gives us reasons to support the legal recognition of such unions. (shrink)

The article investigates the use of the term “Law” in Richard Rorty and suggests an alternative use of the word. Although Rorty’s anti-foundationalism and antirepresentationalism are well known specially in relation to the metaphysical grounds of the human sciences, I argue that he would employ the term “law” in important rhetorical contexts. The text proposes to identify some aspects of the Rortyan Approach to “law” and, at the same time, focuses on the environment and the professional activity of the jurists (...) in this context. At the end, I suggest a different use of the term, in the sense of a literary and conversational art (an artistic ability). This use of the term shall be understood as a provisional suggestion for narrative purposes and seems to partly escape a rigorous Rortyan view. If the practice of law was for the romans not only a “science”, but also an “art” (ars), so it can be for those that act in the juridical practice today a practice of prudence qua art. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Wyclif on RightsStephen E. LaheyIn the study of medieval political philosophy the tendency has been to pay attention to thinkers who appear to have contributed to the birth of the modern. While the value in coming to understand how modern political thought developed is undeniable, this tendency is accompanied by an implicit, perhaps unintentional, devaluation of the study of that which did not contribute as obviously to modernity. In (...) the history of the idea of the natural right scholars have distinguished between the objective and the subjective right, characterizing the subjective right as what lies at the heart of the classically modern and liberal. One could get the impression that the good political philosophers, having hit upon the subjective right, dispensed with talk of the old-fashioned objective right just as people abandoned gaslight when Edison’s lightbulb went on the market. 1 But this is not what happened; not only did objective rights discourse continue into the modern period, but it was not necessarily the idiom solely of religious and political conservatives.Some late medieval philosophers, notably Marsilius of Padua, even came up with progressive and unorthodox political visions while adhering to the objective right. I will show that at least one late medieval political theory founded on the objective right, that of John Wyclif, can be argued to be as innovative in several important aspects as that of any of the better-known fourteenth-century advocates of the subjective right. To do that, I will divide this paper into three parts. In the first, I will explain the difference between objective and subjective theories of the right, making note of what we can reasonably expect from a fourteenth-century political theory in the way of toleration and briefly introducing John Wyclif’s life and works. In the second I will recount Wyclif’s view of ius, or the right, as it appears in his political writings, and in the third I will explain how this concept has a bearing on elements in his political thought that are recognizably unorthodox and even tolerant to modern, liberal eyes. Having [End Page 1] shown how Wyclif’s objective right plays out in his innovative and reformative political scheme, I hope to have helped to dispel the dogma that the only early rights theories worth studying are those that evolved into ones we use.I.a. Objective and Subjective RightsThe explicit distinction between objective and subjective rights is a new one, invented by scholars of the history of political thought to distinguish between the sense of the term ius, or right, as that which is just in accordance with a set body of law, and the sense of ius which refers to a licit power or faculty belonging to an individual in accordance with right reason. 2 The objective right is grounded in Roman law and functioned in medieval legal and political thought as it had in antiquity. Generally, an individual had a ius to act or be acted upon if that action was commensurate with the law. Among the Romans, that law was either Roman law, or it was according to objective natural law; with the introduction of Christian monotheism, the ius was “right” according to God’s law. Tuck notes that the concept of dominium had long been of a piece with objective ius and explains that dominium had usually been seen as a species of objective ius. If someone has just dominium over something, it is because their relation of dominium is “(what is) right,” ius, in accord with justice, iustitia. He argues that when dominium, which he understands to mean “property,” is equated with ius, “right,” the foundation is laid for a possessive (subjective) right. 3 While this is problematic on several counts, not the least of which is the restriction of dominium to the ownership of property, it illustrates the relatedness of the two concepts ius and dominium. 4As juristic sophistication grew in the twelfth century, it became useful to distinguish between ius in re, “right in a thing,” and ius ad rem, “right to a thing.” If someone has a ius in re, they can use the thing and/or exercise dominium... (shrink)

Le faux s'entend de multiples façons et ne désigne pas seulement le résultat d'une opération de falsification menée à des fins privées et, à ce titre, réprimée plus ou moins efficacement par le droit pénal. Il fait aussi partie des contraintes nécessaires au bon fonctionnement du système juridique: on ne peut se passer des fictions ou des présomptions ; il faut compter aussi avec les approximations nécessaires du langage juridique: jamais il n'est question de "décrire" une réalité, mais bien plutôt (...) de la schématiser ou d'énoncer un devoir-être la concernant. Ce qui a pour effet de placer le législateur et ses alliés objectifs dans une situation de tension permanente entre ce qui existe en fait ou risque d'advenir et les exigences énoncées par la règle juridique. Ce décalage nécessaire affecte tous les secteurs du droit, pas seulement les plus sensibles au changement social. On a donc essayé d'en prendre la mesure, dans certains d'entre eux - droit économique, droit des assurances, droit de l'environnement, protection des oeuvres de l'esprit, droit international et européen, droit des nouvelles technologies -, sans oublier que le droit n'est à tout prendre qu'un laboratoire des oppositions et conflits d'intérêts qui travaillent la société dans son ensemble et que, par conséquent, comme tout système de communication, il se doit pour continuer d'exister et de remplir cette fonction implicite, de maintenir une part d'ombre sur sa propre nature. Comme dans tous les colloques organisés par le Centre d'études et de recherches sur les contentieux, cette question juridique par excellence a été étudiée par des juristes, bien sûr, mais aussi par des collègues apparemment étrangers à la chose juridique mais directement concernés par les problèmes de la communication entre les hommes. Le colloque dont les actes sont ici reproduits s'inscrit dans la continuité d'un travail entrepris il y a quelques années dans le cadre du Centre d'études et de recherches sur les contentieux. Il a déjà donné lieu à une première publication consacrée aux problèmes de l'interprétation et de la traduction. (shrink)