In Ḥanafī legal thought, ta‘ātī (mutual delivery of goods and price) has been seen as a sales contract without the need for an additional legal transaction. This situation raises the question of whether the delivery transaction took place after a void (bāṭil) or invalid (fāsid) sales contract can be considered as a new contract that is revealed through ta‘ātī. In this study, which we aim to answer the aforementioned question, first of all, the issue of what (...) kind of relationship is established between the definition of the sales contract and the legitimacy of the ta‘ātī is discussed. Secondly, the relationship between the principles of “When something is void, what is implicit in that thing is also void.”, “What builds on what is invalid is also invalid” and the delivery transaction that took place after a void or invalid contract is discussed. Thirdly, it has been discussed whether the acceptance of the delivery transaction after a void or invalid contract as a new contract is dependent on the fact that the first contract has been legally terminated. In Ḥanafī thought two approaches have emerged regarding the relationship between ta‘ātī and void or invalid contract. According to Ḥanafī jurists based on the above-mentioned two principles, the delivery transaction that took place after a void or invalid contract is not a new contract. The fact that the delivery transaction becomes a new contract depends on the fact that the first contract was terminated in a legal way. In the approach of Ḥalvānī and Kāsānī, the fact that the delivery transaction that took place after a void or invalid contract gains the quality of a new contract is not dependent on the fact that the first contract is legally terminated. This approach is very important in terms of making it possible for the idea that “Delivery that took place after a void or invalid contract has the quality of a new contract.” to attribute the classical Ḥanafī thought. (shrink)

The ayn-dayn distinction in Ḥanafī legal thought shapes directly many regulations related to the law of obligations, from the legitimacy conditions of the contracts to the principles of compensation obligation. Three aspects are important in understanding the formative function of this distinction. The first of them is what is the conceptual content of ayn and dayn in Ḥanafī terminology. The second of them is what kind of relationship there is between the qualities of goods and ayn (...) and dayn. The third of them is what kind of differences exist between ayn and dayn in terms of their effects on legal regulations. According to Ḥanafī terminology, in a debt relationship, dayn means goods that have not yet been delivered to the creditor, whether they are in the hands of the debtor or not, in terms of goods (gold, silver and money) that are not suitable for determination by determining. Dayn represents the identical goods that is under the responsibility of the debtor in terms of non-existing identical goods. In terms of existing identical goods, dayn represents the identical goods that exist in clusters but have not yet been determined individually. Non-standard goods are goods that are not suitable for dayn because they are not suitable for abstraction from their material existence. Ayn represents the existing and determined goods in terms of non-standard goods and existing identical goods. Ayn represents the goods received by the creditor in terms of gold, silver, money and identical goods that are in the debtor's obligation from the beginning. What stands out among the differences between ayn and dayn is that although destruction and damage can be considered for ayn, they cannot be considered for dayn. In terms of some legal regulations, establishing a relationship between strict liability and dayn and between fault liability and ayn is a result of this. The other important differences between ayn and dayn are the fact that dayn is only determined by delivery and that postponement and remittance are specific to the dayn. (shrink)

Along with the legal opinions, the juristic proofs presented to underpin these legal opinions also occupy an important place in uṣūl al-fiqh. Thus, scholars of uṣūl al-fiqh strived to propound the proofs indicating the relevant theoretical principles in an apparent and definite way. As a result, the disputed and undisputed proofs ranked among al-adilla al-shar‘iyya have been abundantly addressed in the classical uṣūl al-fiqh works. However, although it is not mentioned as a part of legal sources in (...) the uṣul literature, there has been another proof subjected to legal reasoning (istidlāl): the practice of the companions. In this study, “the practices of the companions” is used in the contextual meaing of the verbal and practical positions of the entire companions or some of them on a specific topic of uṣūl al-fiqh. By this definition, the concept of the practice of the companions is separated from the concepts of qawl al-ṣaḥābī, ʿamal ahl al-Madīnah and the ijmāʿ al-ṣaḥābah. As a matter of fact, the concept of qawl al-ṣaḥābī signifies an opinion narrated from a single companion and neither supported nor opposed by other companions, and subjected to use of legal inference for obtaining practical legal rulings. In return, the concept of the practice of the companions signifies the position that the companions hold on a topic of uṣūl al-fiqh and does not stipulate the conditions that it must be an opinion of a single companion and be neither supported nor opposed by other companions. In addition, as being related to the legal theoretical issues and not restricted to a certain region, the concept of the practice of the companions is distinct from the ‘amal ahl al-Madīnah. Likewise, it also differed from the ijmāʿ al-ṣaḥābah because the latter concept indicates the consensus of all companions on a practical legal ruling whereas the practice of the companions amounts to both the consensus of the companions and their individual opinions on the matters of uṣūl al-fiqh. Having said that, the concept of the practice of the companions has some overlaps with the qawl al-ṣaḥābī and ijmāʿ al-ṣaḥābah. It is observed in the Hanafi tradition of uṣūl al-fiqh that the practices of the companions are presented as a proof of many principles of uṣūl al-fiqh. This is because of the fact that the companions have a significant role as being the first practitioners of the revelation and the leading figures of the tradition of fiqh. Due to these significant roles of the companions, a central position is given to their interpretation method of the divine text and the technique of issuing legal opinions in determination of theoretical principles. In this study, I examine the impact of the practices of the companions on the Hanafi legal theory focusing on the work of al-Sarakhsī (d. 483/1090), al-Uṣūl, and try to identify how Hanafi legal theory was grounded, departing from, overall or particular, companions’ practices. This study consists of two main parts. First, I provide the conceptual framework by analyzing the concepts of the companion and the companions’ practice. Second, I discussed the theoretical issues rested evidentially on the companions’ practice. Hence, this study excludes the instances of qawl al-ṣaḥābī, ijmāʿ al-ṣaḥābah and the companions’ practice if they are not resorted in proving the uṣūl al-fiqh principles. This work deals with issues on which theoretical principles grounded in reference to the practice of the companions under the headings; Kitāb, Sunnah, qıyās, naskh and alfāz. When instances of the companions’ practice are in abundance in a case, I just focus on the highly representative ones and shortly refer to the others. In the conclusion part, I provide the consequences achieved by this research and some final remarks on the topic. (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)

Among the Muslims the most common sect is Ḥanafī. It is mentioned in the Ḥanafī sect that there are a line of students who transfer the principles of the sect from generation to generation. In order for the Islamic conquests that started simultaneously in the Eastern and Western lands to be permanent, people were sent to teach Islamic morality, worship and fiqh that encompass daily life. From the 2nd century (A.H.) the sectarianization process that started in the centers (...) such as Kufa, Medina and Damascus has naturally spread to the geography of the West. Many jurists who were educated in the madrasas in the East transferred this education to the newly conquered lands in the West, thus contributing to the fact that sectarianization began in the East and West at the same time. During this period, the views of many mujtahids, including Abū Ḥanīfa and his students, began to enter this geography again through his students. In this article, the most important person who introduced the Ḥanafī sect in the Andalusian region and transferred Abu Ḥanifa's ijtihads, ʿAbdallāh Ibn Farrūkh's life, his scientific personality, his contributions to the spread of the sect and the reasons for the Ḥanafī sect to find supporters in the region will be followed by a short course and the history of the sect will be tried to uncover in the history of Andalusia.Summary: Among the Muslims the most common sect is Ḥanafī. It is not a coincidence that the Ḥanafī sect spread more than other sects and found supporters. Abū Ḥanīfa (d. 150/767) is the most senior among the imams of four leading sects. He experienced about commercial and everyday life, had loyal students. This is because he discussed with his students before deciding on a ruling.Islamic conquests in the east and west started at the same time. Experts teaching Islamic morality were sent to conquered places. In this way, both morality and Islamic law, which encompasses worship and daily life, were also taught. Since the implementation of justice was considered as the main duty of the state, legal affairs were dynamic and systematically organized. For this purpose, both in the Medina and the newly conquered lands, various issues such as, management, use, distribution, non-muslim marriage, trade and so on emerged. These issues were carried out with the "kadi" establishment, which is like today's ministry of justice.In the Hijri 2nd century, Fiqh schools produced practical solutions to matters of process and worship in centers such as, Iraq, Medina and Damascus. These schools completed the sectarianization process after a century. Many Islamic jurists who took madrasah education in the east taught these training in the west. They pioneered the development of this sectarianization process both in the east and the west at the same time.The Islamic jurisprudence solved the problems that emerged with the conquest process that began in Andalusia, primarily through the independent jurisprudence, kadi and muftis in the region. After 710 A.C., the Ḥanafī sect reached Andalusia. After the death of Abū Ḥanīfa, Abu Yusuf became the chief justice. Later, the views of Abū Ḥanīfa gained importance. Abu Yusuf appointed the judges who knew the Ḥanafī sect. Abū Ḥanīfa's students, like a gold mine, embraced the views of their teachers. These jurisprudences were adopted by the supporters. Imam Muhammad was the first to write the case law of Abū Ḥanīfa. The views and thoughts of Abū Ḥanīfa, which were published by Imam Muhammad, spread throughout Iraq, Damascus, Iran and Khorasan. Later these thoughts reached North Africa that was under the control of Aghlabid (A.C. 800-909).In the same era, ʿAbdallāh b. Farrūkh passed to the way 6500 km to learn western sciences. The purpose of Farrūkh is to write the views of his teacher, Abū Ḥanīfa. In this way, he returned to Andalusia by writing ten thousand subjects. Beginning from 767 A.C., Ḥanafī sect gradually began to form in this region. He served as a judge voluntarily, although he did not serve as the official judge. Therefore, it contributed greatly to the spread of this sect in the west. The Mālikī sect, which due to from the animosity of Umayyad (A.C. 661-750) and Abbasids (A.C. 750-1258), came to the forefront. Abdullah b. Ferrûh was not as famous as the other disciples of Abū Ḥanīfa.Although Ḥanafīism spread in the west, it was in the foreground in the eastern geographies. Scholars such as Qadi Ayyad (d. 544/1149), Ibn Farḥūn (d. 799/1397), Muhammad Abū Zahra (d. 1974) and Hintātī state that this sect was effective for a short time in the west. On the other hand, Maqdisī (d. 380/999) states that Ḥanafī existed in Andalusia until the second half of the third century A.C. and was at least as widespread as Mālikīism. Orientalist Lévi Provençal (d. 1956) says that Ḥanafī sect did not reach to Andalusia. However, it can be understood from the above statements that this view is not real. In addition, according to the student hierarchy described in the article, it is understood that the Ḥanafī sect maintained its existence in this region for a while. In Andalusia, the views of the sect from the 8th to the 13th centuries known, recognized and followed by experts and the public. Because this sect was not official, its books were not in demand. For this reason, the basic works belonging to the sect were not reproduced.It is not true that the Ḥanafī sect never came to Andalusia or did not stay for a long time. ʿAbdallāh b. Farrūkh, who studied at Abū Ḥanīfa for 5 years, introduced Ḥanafī sect in Andalusia. Then his students continued this teaching. In this study, the life, mastery and students of ʿAbdallāh b. Farrūkh, who made important contributions for the first time in teaching Ḥanafīsm's to Andalusia, have been brought together. This information is summarized in terms of Ḥanafīsm's entry into Andalusia, the reasons for acceptance in social life and the duration of the sect in the region. (shrink)

Abū Ishāq al-Ṣaffār was one of scholars of the Western Qarakhānids’ period who followed the Kalām thought of al-Māturīdī (d. 333/944). His theological works Talkhīs al-adilla and Risāla fī al-kalām, his method in kalām, and frequent reference to his works by Ottoman and Arab scholars indicate that al-Ṣaffār is a respected and authorative Māturīdī theologian. The article focuses on his defense of the kalām. By adding a long introduction to Talkhīs about the naming, importance, and religious legitimacy of the (...) science of kalām, Saffār asserted that the kalām should be learned. When systematical vindication of the science of kalām is examined, it is understood that al-Ṣaffār is the first theologian who reserved a private and voluminous part for defensing the kalām among Ḥanafī-Māturīdīs. Even though he does not state its systematic, it can be understood that vindication of kalām in al-Ṣaffār divides into three parts as of explanation, demonstration and refutation. Al-Ṣaffār’s defending the science of kalām shows that there were opposite thoughts against kalām in the 4th/10th and 5th/11th centuries throughout in Transoxania. In this period Aṣḥāb al-Ḥadīth and Ikhwān al-Ṣafāʾ were the opposite fronts of kalām. In addition, he was trying to go beyond the oppositions of Ḥanafī jurists. His vindication is consistent and has scholarly depth because it is able to be against a strong opposition. -/- SUMMARY: Abū Ishāq Ibrahīm b. Ismāil Zāhid al-Ṣaffār al-Bukhārī is a scholar belonging to the Ḥanafī theological tradition which was improved by the contribution of Ḥanafī theologians who used thinking system of Abū Ḥanīfa (d. 150/767) as base and adopted Abū Manṣūr al-Māturīdī (d. 333/944) and his thoughts in historical process. The contents of his theological works Talkhīs al-adilla li-qawāʿid al-tawḥīd and Risāla fī al-Kalām, the method that he used, and references to his works made by Ottoman and Arab scholars indicate that he is an important Māturīdī theologian. The article focuses on his defense of the science of Kalām. -/- In Talkhīs al-adilla, there are two sections including the subject of naming, and importance and necessity of Kalām discipline. Here, the necessity of learning Kalām and its value are defended in detail. -/- Besides, rumors “Abū Ḥanīfa turned away from the science of Kalām in his doomsdays” and that “He prohibited to make occupation with Kalām completely” are evaluated. -/- When systematical vindication of the science of Kalām is examined, it is understood that al-Ṣaffār is the first theologian who reserved a private and voluminous part for defensing the Kalām among Ḥanafī Māturīdīs. Even if Abū Manṣūr al-Māturīdī, Abū al-Yusr al-Bazdawī (d. 493/1100) and Abū Muʿīn al-Nasafī (d. 508/1115) defend that the science of Kalām is not wrong for religion; yet, the vindication of Kalām does not take a place under a separate title and in a detailed manner in any of Māturīdī theologians works. -/- The method that al-Ṣaffār used when he is defending the science of Kalām, differs from strategy of Abū Ḥanīfa. While Abū Ḥanīfa has mentioned that there is a need for the science of Kalām under these new circumstances, al-Ṣaffār has defended theologians who were charged with being Ahl al-Bidaʿ, by trying to prove that the prophets especially the Prophet Ibrāhīm, even the Companions of the Prophet Muḥammad (Ṣaḥāba) and the Successors of the Companions (Tābiʿūn) scholars use their minds and make arguments in religious matters. In this respect, he emphasizes that the Qurʾān orders to think and discuss gently, not to be stay in silence: “And dispute with them, using what is best” (16.125-126). Therefore, he states that this discipline which took a mission to explain and defend the creed of Islam (ʿaqīda), cannot be characterized as an innovation (bidʿah) or illicit. -/- His vindication method can be defined as a more developed type of method that Abu’l-Ḥasan al-Ash’arī’s (d. 324/935) used in Risāla fī istiḥsān al-khawḍ fī ʿilm al-kalām. Even though he does not state its systematic, it can be understood that vindication of Kalām in al-Ṣaffār divides into three parts as of explanation, demonstration and refutation: -/- a) Explanation: Explaining the necessity and importance of the science of Kalām by giving information about its definition, names, value and place among other principles. -/- b) Demonstration: Revealing the religious basics of the science of Kalām from the Qurʾān, the Sunna of the Prophet Muḥammad, the Companions of the Prophet, and the Successors of the Companions thus specifying that it is legitimate for religion. -/- c) Refutation: Replying the claims having aim to weaken the value of Kalām principle and its religious legality. -/- Al-Ṣaffār describes ‘the science of Kalām’ as ‘Knowing the Real with the evidences which help to reach the absolute information’. By allocating the concept of 'Ḥaqq', he repeats the definition of Kalām as “it is to know God with certain evidences” in a part of his work, and “it is to know the principles of religion (uṣūl al-dīn) with certain evidences” in another part. He describes Kalām as “Knowing ḥaqq / God / uṣūl al-dīn by depending on evidence”, and tries to prove that it is wrong to consider a science which performs the stated duty, as illicit and abominable and thus turn away from it. -/- Al-Ṣaffār thinks that it is right to call this principle as ‘Kalām’ because of the certain evidences leading to the truth that this science has used. This thought was defended by other theologians as well. -/- For example, according to Saʿd al-Dīn Masʿūd al-Taftazānī (d. 792/1310) it seems like to say “This is the word (kalām), not the other knowings” by the way of the power of evidences used in Kalām.Thus, it is appropriate to give name Kalām for this science which based on certain evidences. -/- Al-Ṣaffār’s explanations revealed in scope of vindication of the Kalām are adopted by some of following scholars. Ḥusām al-Dīn al-Sighnāqī (d. 714/1314) in his book called al-Tasdīd sharḥ al-Tamhīd fī qawāʿid al-tawḥīd quotes Saffâr’s explanations as the same. -/- Al-Ṣaffār indicates that the method told in the Qurʾān is to reply questions about religion, beliefs and rejection instead of remaining in silence. The duty taken on by Kalām is this vindication activity performed by the prophets whose examples are described in the Qurʾān and which is legal and demanded. His way of thinking and vindication of the Kalām resembles that of Abū Manṣūr al-Māturīdī. Al-Māturīdī says, “Prophets and we were ordered to invite infidels to Islam. When this invitation happens, the respondents will ask for evidence and explanation, and discussion will be inevitable. Therefore, discussing and talking about subjects of Kalām is not objectionable”. -/- Thoughts of al-Māturīdī and al-Ṣaffār regarding the vindication of the Kalām were repeated by Nūr al-Dīn al-Ṣābūnī (d. 580/1184), and Fakhr al-Dīn al-Rāzī (d. 606/1210) later. According to al-Ṣābūnī, the evidences put against deniers and especially the discussion made by the Prophet Ibrāhīm to defend his own belief, prove the legality of Kalām discipline. Likewise, according to al-Rāzī, the duty of Kalām is just an activity performed already in the Qurʾān and ordered to the prophets. At this point of view, since the prophets were leading to Kalām, banning this activity is nonsense. -/- According to al-Ṣaffār, the reason for why Abu Hanifa avoids his son Hammād from these discussions is that Abu Hanifa does not like discussions based on obstinate. Otherwise, it cannot be that Abū Ḥanīfa prohibits to learn Kalām and make discussion about Kalām. According to him, this behavior of Abū Ḥanīfa results from that people discussing with him are ignorant about the subject of Kalām, discussion turns to an obstinate, and coming to an end of discussion seems impossible. This comment of al-Ṣaffār is quoted in Miftāḥ al-saʿāda wa-miṣbāḥ al-siyāda by ʿIṣām al-Dīn Aḥmed b. Muṣṭafā Tashköprüzāde (d. 968/1561) and in Minaḥ al-rawḍ al-azhar fī sharḥ al-Fiqh al-akbar by ʿAlī b. Sulṭān Muḥammad al-Qārī (d. 1014/1606) as same as his words. -/- Al-Ṣaffār’s defending the science of Kalām shows that there were opposite thoughts against Kalām in the 4th/10th and 5th/11th centuries throughout in Transoxania.In this period Aṣḥāb al-Ḥadīth and Ikhwān al-Ṣafāʾ were the opposite fronts of Kalām. In addition, he was trying to go beyond the oppositions of Ḥanafī jurists (fuqahāʾ). Because some of the Ḥanafī jurists thought that Abū Ḥanīfa forsook occupation with the science of Kalām and even he prohibited his son to have interest in this discipline. But some of Ḥanafī theologians such as al-Māturīdī, al-Nasafī and al-Ṣaffār protested this thought which describes Abū Ḥanīfa as a banner for Kalām. -/- His vindication is consistent and has scholarly depth because it is able to be against a strong opposition. -/- His book Talkhīs al-adilla li-qawāʿid al-tawḥīd is a unique source in terms of containing vindication of the Kalām in detail and also influencing the approaches of the next period scholars. (shrink)

Māturīdism is an Ottoman identity and this identity was not limited, as is commonly believed, to the last period of the Empire. It maintained its formal existence throughout the Ottoman history. Nevertheless, the context in which the Māturīdism was located or with which it was associated changed in the course of time. In the early period when the eclectic way of thinking was dominant, Māturīdism as a creed was apparent mainly in the jurists whose ascetic identity was prominent and partly (...) in the mystical currents that were essentially continuations of Yasawiyya. At this point, the Bukhara-centered Ḥanafī legal literature played a distinctive role. At the time of Meḥmed II and in the following period during which the philosophical kalām dominated the scene, the Māturīdism was relatively passive and was in search of a position against the Ash‘arism. The new Rāzian paradigm of thought that began to be felt strongly in the Ottoman lands with Meḥmed II as an attempt of integration into the global circulation of knowledge prevented to a certain extent the visibility of Māturīdism. However, even in this period, Māturīdism was remarkably reflected in the muqaddimāt-i arba‘a literature which was directly sponsored by Meḥmed II. The tradition of philosophical kalām in the Ottoman scholarship, just when it was about to yield significant results, was interrupted due to the struggle against the Ṣafawids. Transformation of this political tension, at the same time, into a fight against Shiism also brought about a constriction in the religious thought of the Ottomans. Shiism and its all other variants were bitterly attacked under the main heading of Rāfiḍa. Unfortunately such a refutational approach proved a boomerang and returned in time striking the Ottoman Ṣūfīs who stood near the line of the Ardabil Shrine before its Shiitization. Ḥanafī fatwā literature was used extensively in the refutation texts against Ṣafawids. This brought to the fore at first the Ḥanafite and then the Māturīdite identity. This paper attempts to analyze this changing emphasis on Māturīdism in the Ottoman period and the political and intellectual factors that supported and nourished it. -/- SUMMARY It can be argued that the debates around Ash‘arism and Māturīdism in the Ottoman period and the resulting meant more than attempts of the members of the two sides to understand each other and that Māturīdism, particularly from the 16th century onwards, was gradually brought fore as the identity of Ottomans. In fact, this identity was not limited, as is commonly believed, to the last period of the Empire; it maintained, in form, its existence throughout the Ottoman history. Nevertheless, the context in which the Māturīdism was located or with which it was associated changed in the course of time. In the early period when the eclectic way of thinking was dominant, Māturīdism as a creed was apparent mainly in the jurists whose ascetic identity was prominent and partly in the mystical currents that were essentially continuations of Yasawiyya. At this point, the Bukhara-centered Ḥanafī legal literature played a distinctive role. At the time of Meḥmed II and in the following period during which the philosophical kalām dominated the scene, the Māturīdism was relatively passive and was in search of a position against the Ash‘arism. In this period, Ottoman scholars still embraced the Māturīdī-Ḥanafī line in their theological views. Ḫiḍir Beg’s al-Qaṣīda al-Nūniyya, and al-Khayālī’s commentary upon it, and the commentary written by Aḥmad b. Oġuz Dānishmand al-Aḳshahrī on al-I‘timād of Abū al-Barakāt al-Nasafī were the most noticeable Māturīdite texts from that time. Besides, al-Khayālī’s supercommentary (ḥāshiya) upon the commentary of al-Taftāzānī written on al-‘Aqā’id of Najm al-Dīn ‘Umar al-Nasafī was also of central importance. However, the new Rāzian paradigm of thought that began to be felt strongly in the Ottoman lands with Meḥmed II as an attempt of integration into the global circulation of knowledge prevented to a certain extent the visibility of Māturīdism. But, this should not be taken to mean that Māturīdism lost its ground of existence. That the Ash‘arite works produced in this new paradigm were transferred to and fully integrated in the madrasa curriculum was not because they were Ash‘arite texts but because they were the most original and highest achievements of the philosophical theology. These texts that aimed at combining all fields of knowledge on a single platform, despite the Ash‘arism they included, constituted the peak of the Islamic thought of the time. In the preference of these texts, the fact that the Māturīdī tradition generally stood, in course of time, distant to the philosophy and chose to continue the kalām in the classical line also played a role. Māturīdī theologians Muḥammad b. Ashraf al-Samarqandī, partly, but Ṣadr al-Sharī‘a al-Maḥbūbī, to a greater extent, were notable exceptions to this general Māturīdī tendency. These figures were theologically Māturīdite, but their framework of producing discourse was the combination of philosophy and kalām as with their Ash‘arī counterparts. Therefore, Ṣadr al-Sharī‘a’s criticism of Fakhr al-Dīn al-Rāzī, and through him, of against the Ash‘arism in the context of muqaddimāt arba‘a was wholeheartedly supported by the Ottoman ulama. Even it was Meḥmed II who sponsored the debates regarding muqaddimāt arba‘a. The works written by such scholars as Muṣliḥ al-Dīn al-Kastallī, al-Ṣamṣūnī, ‘Alā’ al-Dīn al-‘Arabī, Mollā ‘Arab al-Anṭākī, Khaṭībzāde, Sa‘dī Chalabī during his and his son Bāyazid II’s reigns were the supercommentaries written upon the related chapter of al-Talwīḥ, al-Taftāzānī’s commentary on Ṣadr al-Sharī‘a’s al-Tawḍīḥ where the former responded to the criticism of the latter from an Ash‘arī point of view. The Ottoman ulama, in their workswere forced to choose between the two scholars and they mostly supported Ṣadr al-Sharī‘a and Māturīdism. The tradition of philosophical kalām in the Ottoman scholarship, just when it was about to yield significant results, was interrupted due to the struggle against the Ṣafawids. Transformation of this political tension, at the same time, into a fight against Shiism also brought about a constriction in the religious thought of the Ottomans. The reflex of of identifying oneself through ‘the other’ made, to a certain extent, the theological and philosophical debates regarding faith meaningless, and gradually gave the Ottoman Sunnism a doctrinal and political tone. In such a context, the Ottomans’ paradigm of producing thought in line with the philosophical kalām began to lose its function, and, the focus of scholarhsip shifted; Shiism with its all variants were began to be bitterly attacked under the main heading of Rāfiḍa. When the refutation texts composed from the reign of Bāyazid II onward to criticize the Ṣafawids are chronologically analyzed, it is seen that the contents of the texts evolved from criticism of Rāfiḍa to criticism of Sūfism. Ḥanafī fatwā literature was used extensively in these refutations. So the fatwās issued against Rāfiḍa and Ṣūfīs in malāmatī line in earlier centuries in different contexts for different reasons were employed to criticize the new opponents. This caused two important results: First, such an approach proved a boomerang and returned in time striking the Ottoman Ṣūfīs who stood near the line of the Ardabil Shrine before its Shiitization. Ḫalwatīs, Bayrāmīs, Gulshanīs, Baktāshīs and Mawlawīs were the sufi groups influenced by this situation in varying degrees. Second, Sunnism was exposed to the narrowization and centered around the fiqh, particularly Ḥanafī fiqh, in the context of Ḳāḍīzādelīs who were the main adversaries of above mentioned groups. The culture of catechism (‘ilm-i ḥāl) that came to the fore through the efforts of Ḳāḍīzādelīs was a crystallization and was mainly fuelled from this tension. Such a crystallization led the Ṣūfīs, the opponents of Ḳāḍīzādelīs, to a higher level of discourse deemphasizing the Ḥanafī aspect: They underscored the discourse of Ahl al-Sunna and four madhhabs, and mostly turned towards the Shāfiʿī and Ash‘arī traditions to look for support fortheir views. This process during which the emphasis of sharī‘a and tradition began to come to the fore once again paved the way for the zuhd and fiqh-centered religious thought that was maintained from the time of the Seljukids in Anatolia and was influential until Meḥmed II’ reign. Therefore in the Ottomans, particularly starting with the reign of Suleymān I, an intensive emphasis on Abū Ḥanīfa was witnessed. Abū Ḥanīfa was at the very center of the debates revolving around zuhd and fiqh which came about in the same period and in which the sharī‘a sensitivity was a determining factor. Al-Māturīdī, whose name was overshadowed for a long time by the name of Abū Ḥanīfa, but who became prominent in the tradition with Abū al-Mu‘īn al-Nasafī, had to transfer his gains for a period of time to Abū Ḥanīfa. Emphasis on Abū Ḥanīfa looks like a rope that when pulled, all the tradition comes with it. When the topics began to be discussed in a manner that would also include the theological context, the contribution of the works ascribed to Abū Ḥanīfa, namely al-Fiqh al-Akbar, al-Waṣiyya and al-‘Ālim wa al-Muta‘allim to the discussions would be limited. For this reason, the need to refer to al-Māturīdī or to the theological formation bearing his name was inevitable. So, the literature on the points of disagreements between the Ash‘arism and the Māturīdism developed both vertically and horizontally in the 18th century and, corollary to that, the debates of free will as a corolloary to that, once again brought Māturīdism to the fore. (shrink)

The work of contemporary Italian thinkers, what Roberto Esposito refers to as Italian Theory, is attracting increasing attention around the world. This book explores the reasons for its growing popularity, its distinguishing traits, and why people are turning to these authors for answers to real-world issues and problems. The approach he takes, in line with the keen historical consciousness of Italian thinkers themselves, is a historical one. He offers insights into the great "unphilosophical" philosophers of life—poets, painters, politicians and revolutionaries, (...) film-makers and literary critics—who have made Italian thought, from its beginnings, an "impure" thought. People like Machiavelli, Croce, Gentile, and Gramsci were all compelled to fulfill important political roles in the societies of their times. No wonder they felt that the abstract vocabulary and concepts of pure philosophy were inadequate to express themselves. Similarly, artists such as Dante, Leonardo Da Vinci, Leopardi, or Pasolini all had to turn to other disciplines outside philosophy in order to discuss and grapple with the messy, constantly changing realities of their lives. For this very reason, says Esposito, because Italian thinkers have always been deeply engaged with the concrete reality of life and because they have looked for the answers of today in the origins of their own historical roots, Italian theory is a "living thought." Hence the relevance or actuality that it holds for us today. Continuing in this tradition, the work of Roberto Esposito is distinguished by its interdisciplinary breadth. In this book, he passes effortlessly from literary criticism to art history, through political history and philosophy, in an expository style that welcomes non-philosophers to engage in the most pressing problems of our times. As in all his works, Esposito is inclusive rather than exclusive; in being so, he celebrates the affirmative potency of life. (shrink)

Research exploring how students develop their perspectives on religious moderation through reading and understanding the Qur’an is underexplored. This study aims to investigate students’ religious literacy tenet as a process of constructing meaning about religious moderation from the verses of the Qur’an. The participants involved were three students with an excellent ability to read the Qur’an and who had a great interest in the study of the Qur’an. The data were collected through the process of reading the verses of the (...) Qur’an and its textual and contextual translation. The results of this study indicate that students with high translation amendments tend to have more ability to interpret the verses of the Qur’an widely as a form of verbalisation of thoughts.Contribution: This study provides clarification on student interactions, the interpretation process and the construction of the meaning of the verses of the Qur’an. Furthermore, the results of this study encourage lecturers to reconstruct the process of learning to read the Qur’an at the university level. (shrink)

This paper seeks to retrace human nature and transcending the vision of humanity, by identifying, describing and analyzing the Hahnemannian principles and their relevance to anthropology of transcendent philosophy. Using the qualitative data from Hahnemann’s works with special reference to his Organon we found that Hahnemann’s principles are, unquestionably, a philosophical system in its own right. The primary goal of his philosophy, however is not solely speculative, indeed it is a medical philosophy written in brief aphoristic style, aimed more of (...) guidelines at curing suffering human beings, rather than winning adherents to its speculative creed. The main concern of Hahnemann with regard to his medical philosophy is actually the question of suffering human well-being. The answer to this question will provide an indication of the relevant of Hahnemannian principles to anthropology of transcendent philosophy. Thus Hahnemann’s principles cannot be properly understood apart from some grasp of his conception of human nature and philosophy as a whole. Nonetheless his ideas are against the new emergence mainstream thought pattern of modern Europe which in turn spread all over the globe. (shrink)

One of the influential contributions to criminalisation theories is Duff’s work on public wrongs, which offers a thin master principle of criminalisation, proposing that we have a reason to criminalise a type of conduct if it constitutes a public wrong; one that violates a polity’s civil order and forms part of that polity’s proper business. The nature of the civil order, the scope of its proper business, and the distinction between the public and private realms of wrongs are context-relative to (...) each polity, structured by their legal, institutional, and informal values and ways of life. Such a context-relative view led to problematic criminalisation examples raised by Duff and his critics. This article engages more fully with the relativism of the civil order and public wrongs in non-democratic and illiberal contexts. It draws on examples such as Saudi Arabi and Iran, and Beetham’s work on the legitimation of power to argue that conceptualising the civil order as an undifferentiated whole that represents a polity’s chosen way of life overlooks the ways in which the civil order’s values and practices are shaped by relations of power and exclusion rules and processes. This, in turn, exposes the theory to the risk of mirroring and legitimising unequal relations of power and impeding efforts to change them. This is also due to the theory’s lack of proper normative guidance on the legitimacy of criminalisation. The potential commitment to – instead of a preference for – democracy and guarantees of equality and freedoms might help strengthen the theory normatively, but it is insufficient to guard against the raised problems. (shrink)

This article examines the influence of the Hanafī philosophy of the Mamlūk period on the early Ottoman fiqh studies. Since the Egyptian and Damascus regions, which were under the rule of the Mamlūks, became the most important centres of knowledge in the Islamic world, it is understood that the Mamlūks’ scientific knowledge was superior to the Ottomans. On this occasion, many scholars who were considered the leading figures of the Ottoman scientific community turned to Egypt and Damascus regions and benefited (...) from the scientific accumulation there. In fact, these scholars who played an active role in the formation of the Ottoman scientific environment completed their education in Damascus and Egypt under the rule of the Mamlūks and graduated from the Mamlūk education system and assumed important roles in the formation of the Ottoman science understanding. During this period, the Hanafī judges (fuqahāʾ), who were active in the Mamlūk community, contributed to the development of the leading names of the Ottoman scientific community and this thought had an impact on their understanding of science. In this context, it is possible to say that the fiqh studies of the Ottomans in the first period were influenced by the Mamlūk Hanafī who had their characteristics. The two main characteristics of Hanafī thought in the Mamlūk period, the hadīth-centred juristic (fiqh) idea and the method of mamzûc (mixed) fiqh style are also seen in Ottoman fiqh works.Summary: In this article, the effect of Hanafī fiqh thought on the early Ottoman fiqh studies in Mamlūk period is discussed. While the Ottomans did not yet establish a scientific tradition in the period of foundation and ascension, many Mamlūk cities replaced Baghdad as the centre of knowledge of the Islamic world. Because the Mongol invasion, the crusades and the destruction of Andalusia due to reasons such as many scholars displaced by the Mamlūks settled there. Especially during this period, Egypt and Damascus, which were under the rule of the Mamlūks, became the most important centres of science in the Islamic world. In this respect, 14th-16th It is accepted that the science level of the Mamlūks was quite superior to the Ottomans in the 16th century. On this occasion, many scholars who are considered as the leading names of the Ottoman scientific community turned to Egypt and Damascus regions and benefited from the scientific accumulation there. Osman Ghāzī’s teacher and father-in-law, Sheikh Edebālī, Davud-i Kayserī, Sheikh Bedreddin, Molla Fanārī, Molla Gürānī are some of these scholars. In addition to these, scholars such as Muhsin-i Kayserī, Germiyanlı Poet Ahmedī, Hacı Paşa, Celāleddin Hızır, İbnü’l-Cezerī and İbn Arabşāh have also studied science in Egypt and Damascus. These scholars, who played an active role in the formation of the Ottoman scientific environment, completed their education in Damascus and Egypt under the rule of the Mamlūk and after graduating from the Mamlūk education system, they played an important role in the formation of the Ottoman science understanding. Sheikh Edebālī was accepted as one of the scientific and spiritual leaders of the Ottoman Empire. Davud-ı Kayserī was the first chief professor of İznik madrasah, the first Ottoman madrasah. Molla Fanārī had the privilege of being the first Ottoman shaykh al-Islām. Molla Gürānī became the teacher of Fatih Sultan Mehmed. During this period, the Hanafi faculties, which were active in the Mamlūk science community, contributed to the growth of the leading names in the Ottoman science community. Molla Fanārī, Seyyid Şerif Cürcānī, Shaykh Bedreddin and Poet Ahmadī have learned lessons from Bābertī, who important Hanafī scholars in Egypt. The idea of Hanafī fiqh in the Mamlūk period influenced the studies of the Ottoman fiqh in the first period. In this context, Molla Khüsrev refers to Zeyla‛ī and Bābertī, the leading Hanafī scholars of Mamlūk in many parts of his work, although he did not go to the regions dominated by the Mamlūks. The two main characteristics of the Hanafī thought in the Mamlūk period were the hadith-centred fiqh thought and mamzûc (mixed) method of fiqh. In the Mamlūk period, hadith studies which were not seen before in Hanafī sect were done. During this period, Hanafī jurists spent time in the field of hadith such as Ibn Balabān, Ibn Turkmānī, Zeylaʻī, Kuraşī, Mogoltay b. Kılıç, Bedruddīn Aynī, Ibn Kutluboğa, Serūcī, Bābertī, İbnü’l-Humām, İbnü’l-‛Adīm. They tried to eliminate the lack of studies in the field of hadith in the Hanafī circles while their studies certainly require hadith expertise. As a result of the works of these jurists in the field of hadith, the basic sources were frequently included in the fiqh studies in the Mamlūk period and, the hadiths were started to be made. The influence of this understanding, which had an important place in the thought of the fiqh of Hanafī during the Mamlūk period, can be seen in the Ottoman fiqh works in the first period. In this context, Molla Khüsrev, in his work with the influence of the early Ottoman jurists who had been educated in Egypt before him, gave some basic sources of hadith and sometimes gave information about the reliability of hadiths. On the other hand, it is possible to say that this issue is quite insufficient in Ottoman fiqh works when compared with Hanafi jurists of the Mamlūks. A comparison of Ibnü’l-Humām’s Fethü’l-kadīr and Netāicu’l-efkār, which was performed by Kādızāde order to complete it, can be compared. Apart from that, there are different attitudes between Şürünbülālī and Şeykhi-zāde known as Damad Efendi, they lived in the same period. Şürünbülālī, one of the Egyptian scholars of the Ottoman period generally gave the hadiths from the basic hadith sources in his work Merāki’l-felāh, while Şeyhīzāde did not obey this issue and rarely included basic hadith sources in his work Mecma‛ü’l-enhur. These differences can be explained by the necessity of the scientific environment. Because the Hanafīs were accused of not using hadith in Egypt and its environs, the Hanafī jurists living in this region should have directed them to be more rigorous about the hadith. However, since the Hanafī jurists living in other Ottoman regions did not have such a problem, they probably did not feel the need to refer to the main sources of hadith in the power of hadiths. Therefore, it can be said that the scientific environment and the need arising in this direction lead to different attitudes of the jurists living in the same period. The mamzûc (mixed) method starting with Ibnu’s-Sāātī, In the 8th-century, it was especially effective on the idea of ​​the fiqh style of Hanafī jurists. Although the first name of the mamzûc (mixed) method, Ibnu’s-Sāātī, was not one of the scholars of the Mamlūk period, the influence he initiated was more common in the Mamlūk period and became one of the characteristic features of the Hanafī fiqh thought in this period. Therefore, it is understood that the majority of Hanafī jurists had a gratified method. In addition to this, it is seen that Ottoman jurists who were educated in and around Egypt write procedural works in grammatical style. Molla Fanārī's work Fusūlü’l-Bedāyi is the most important example of this genre. Moreover, even Molla Khüsrev, who had not gone to Egypt and his surroundings, wrote a memoir-like work called Mir’ātü’l-Usûl. The works of these two authors show that the Ottoman jurists were influenced by the Mamlūks. As a result, it is possible to say that the fiqh studies in the early period of the Ottomans were influenced by the Mamlūk Hanafīs who had their characteristics. The hadith-centred fiqh thought and mamzûc (mixed) fiqh style understanding had an impact on the early Ottoman fiqh studies. (shrink)

This book proves to be an excellent guide through the labyrinth of law. Its crucial point is legal order viewed from the perspective of a situated "We". Jurisprudence appears as an implicit sort of thinking, embedded in moral, political, epistemological, and linguistic contexts. Numerous example cases lead us from everyday issues to the abysses of violence. Anyone who practices or studies law will highly profit from reading this book. One sees how law functions by being more than mere law. (...) Bernhard Waldenfels, Ruhr-University Bochum, Germany Legal Thought and Philosophy clarifies background questions in legal research projects, such as the relationship between law and justice, law and politics, law and knowledge, facts and norms, normativity and validity, constituent and constitutional power, and rule and context. It provides advanced students in law and philosophy with an account of legal thinking that combines analytical and phenomenological insights. From a conception of justice as principled political self-restraint, the book explains why there are moral reasons to separate law from morality conceptually and in what sense a legal order is positive--that is, set by authority and bound up with history. The book explores the conditions under which law may become an object of knowledge and theorising, before finally discussing how these features come together in law as rule-following by citizens, officials, judges, and legislators alike. Addressing advanced students in law and philosophy, this key book: bridges separate traditions in legal philosophy (in particular analytical philosophy and phenomenology), develops a view of law as an institution of authority from a conception of justice in the socio-political relationship between we and the others, presents a systematic account of normativity and validity, explains in what sense law is doing things with rules. (shrink)

In a little over two hundred years, American legal thought moved from premodernism through modernism and into postmodernism. This book charts that intellectual voyage, stressing both the historical contexts in which ideas unfolded and the inherent force of the ideas themselves.Author Stephen M. Feldman first defines "premodernism," "modernism," and "postmodernism," then explains the development of American legal thought through these three intellectual periods. His narrative revolves around two broad, interrelated themes: jurisprudential foundations and the notion of (...) progress. He points out that much of American legal thought has grappled with the problem of identifying the foundations of the American judicial system and judicial decision making. The various ideas of jurisprudential foundations, moreover, are closely tied to shifting notions of progress-the definition of the term, assumptions about the possibility of progress, and hopes about how law might contribute to it.This book's broad historical sweep and its clear explanations of the competing theoretical positions of current legal scholarship make it indispensable to students and scholars of jurisprudence and American legal history. (shrink)

This book looks at the thought of a key figure in Islamic history from the vantage point of different forms of authority. In addition to providing detailed textual analysis of al-Suyuti's legal writing in its historical context, the study also connects the pre-modern figure to contemporary debates in post-2011 Egypt.

Empire reveals some of the reasons why the history of legal thought should not be prepared in precisely the same way as the history of political thought. This article, beginning in the Mediterranea...

This is a study of what constituted legality and the role of law in ancient societies. Investigating and comparing legal codes and legal thinking of the ancient societies of Mesopotamia, Egypt, Greece, India, the Roman Republic, the Roman Empire and of the ancient Rabbis, this volume examines how people used law to create stable societies. Starting with Hammurabi's Code, this volume also analyzes the law of the pharaohs and the codes of the ancient rabbis and of the Roman (...) Emperor Justinian. Focusing on the key concepts of justice equity and humaneness, the status of women and slaves, and the idea of criminality and of war and peace; no other book attempts to examine such diverse legal systems and legal thinking from the ancient world. (shrink)

In this one-of-a-kind text, George P. Fletcher, a renowned legal theorist, offers a provocative yet accessible overview of the basics of legal thought. The first section of the book is designed to introduce the reader to fundamental concepts such as the rule of law and deciding cases under the law. It continues with an analysis of the values of justice, desert, consent, and equality, as they figure into our judgment of legal cultures in terms of soundness (...) and legitimacy. The final chapters address the problems of morality and consistency in the law. In each case the author not only introduces the basic ideas but considers important arguments in the contemporary literature and raises original claims of his own. Ideally suited for courses in the philosophy of law, legal issues, and jurisprudence, Basic Concepts of Legal Thought fills a void in the literature, as there is no other volume that both eases law students into the mysteries of legal philosophy and provides an introduction to the legal mind for non-lawyers. (shrink)

In this one-of-a-kind text, George P. Fletcher, a renowned legal theorist, offers a provocative yet accessible overview of the basics of legal thought. The first section of the book is designed to introduce the reader to fundamental concepts such as the rule of law and deciding cases under the law. It continues with an analysis of the values of justice, desert, consent, and equality, as they figure into our judgment of legal cultures in terms of soundness (...) and legitimacy. The final chapters address the problems of morality and consistency in the law. In each case the author not only introduces the basic ideas but considers important arguments in the contemporary literature and raises original claims of his own. Ideally suited for courses in the philosophy of law, legal issues, and jurisprudence, Basic Concepts of Legal Thought fills a void in the literature, as there is no other volume that both eases law students into the mysteries of legal philosophy and provides an introduction to the legal mind for non-lawyers. (shrink)

For more than a century, law schools have trained students to 'think like a lawyer'. In these times of legal crisis, both in legal education and in global society, what does that mean for the rest of us? In this book, thirty leading international scholars - including Louis Assier-Andrieu, Marianne Constable, Yves Dezalay, Denise Ferreira da Silva, Bryant G. Garth, Peter Goodrich, Duncan Kennedy, Martti Koskenniemi, Shaun McVeigh, Samuel Moyn, Annelise Riles, Charles F. Sabel and William H. Simon (...) - examine what is distinctive about legal thought. They probe the relation between law and time, law and culture, and legal thought and legal action; the nature of current legal thought; the geography of legal thought; and the conditions for recognition of a new 'contemporary' style of law. This work will help theorists, social scientists, historians and students understand the intellectual context of legal problems, legal doctrine, and jurisprudential trends in the current conjuncture. (shrink)

This dissertation is based on four backgrounds: (1) the diversity of definitions of philosophy, (2) statements by several thingkers about the death/ending of philosophy, (3) the existence of Hassan Hanafi's writings about the definition, life and death of philosophy, and (4) the limitations of specific studies on philosophy according to Hanafi. On that basis, this dissertation examines philosophy according to Hanafi, by revealing and reviewing his definition of philosophy and his views on when philosophy lives and when philosophy dies. In (...) general, this is metaphilosophical study of Hanafi's philosophy by disclosuring it descriptively and analytically on the one side, and by reviewing it falsificatively, interpretatively and axiologically on the other side. This metaphilosophical study of Hanafi philosophy found several things. First, Hanafi's definition of philosophy is still diverse and needs to be reanalyzed, so it cannot overcome the problem of the diversity of definitions of philosophy. Second, Hanafi's statement about those who kill philosophy and turn on it is inconsistent and falsifiable. Third, philosophy can still live in conditions that are considered to kill it. Fourth, although it has several weaknesses, Hanafi's philosophy is useful in particular for Muslims and researchers about Islam, Arab nations and researchers about Arab, and societies that face internal and external traditions; and also worthwhile in general for philosophy and practitioners of philosophy. Fifth, Hanafi's philosophy can overcome the problem of ongoing discourse about the death/ending of philosophy, because his philosophy can actually bring philosophy to life. (shrink)

According to long-established narratives, legal thinking in Germany, France and the U.S.A. was shaped by formalist legal cultures for the most part of the nineteenth century until the respective legal sciences embraced their social responsibility in the early twentieth century. Recently, legal historians have begun to question these narratives. In separate analyses, they have shown that the critics of ‘Legal Formalism’ exerted a lasting influence on historical research since the early twentieth century, thereby fostering a (...) deeply charged understanding of nineteenth century jurisprudence. What went largely unnoticed, however, was the transnational dimension of this false narrative. Due to the transnational ties of the critics of ‘Legal Formalism’, a powerful misrepresentation of nineteenth century Western legal thought emerged that still influences contemporary global legal history. Dismantling the prejudices surrounding the Western jurisprudence of the nineteenth century causes crucial challenges for conceptualising nineteenth century Western legal thought. (shrink)

A review of The Disenchantment of Secular Discourse by Steven D Smith.

Throughout the ancient society of China, we can find that from Qin and Han Dynasties to Ming and Qing Dynasties, the social nature, political structure and legal system of China did not change endlessly due to the change of dynasties. On the contrary, it was always in a stable state. This has to be attributed to the all-round and deep-seated influence of Confucianism on China society. Confucian culture had an important influence on the development of China's law in the (...) two thousand years after Qin and Han Dynasties. This influence gradually deepened, and eventually became the soul of China's ancient law, which dominated its development value orientation. Under the influence of Confucianism, China's legal culture has its own distinctive spiritual character and institutional characteristics. The theory of "goodness of nature" makes China's legal culture have the characteristics of "morality dominates punishment" and "courtesy for the country"; The thought of "people-oriented" makes China's legal culture have strong humanistic characteristics because of "leniency and caution" and "cherishing people's lives"; The idea of "cheap business" makes China's legal culture show obvious characteristics of public law culture in the field of private law. (shrink)

Norm and Nature: The Movements of Legal Thought, by Roger Shiner, is an intricate book with the perhaps surprising thesis that the outstanding problem in legal philosophy, the conflict between positivism and natural law, is irresolvable. The controversy is doomed to a never-ending cycle because “sophisticated positivism follows from positivism's difficulties with simple positivism … anti-positivism follows from sophisticated positivism's difficulties with simple positivism; [and] simple positivism follows from positivism's difficulties with anti-positivism”. For legal theory, then, (...) an understanding of law is simply an understanding of why legal theory is thus “condemned to endless dialectic”. And the reason is found in the nature of law itself and the perennial tension between, on the one hand, certainty and procedure and, on the other, flexibility and substance. (shrink)

The article describes the history of Mykolas Romeris University periodical science journal “Jurisprudence”. The principal characteristics describing “Jurisprudence” as well as the content of the journal are discussed in the article. The “Jurisprudence” of today is a modern tribune that helps the scientists of Mykolas Romeris University and other educational institutions as well as the scientists of foreign countries to present to the society the findings of various scientific works in the sphere of research of fundamental and applicable legal (...) science. The journal has been officially granted the status of prestigious publication that embodies the acknowledgement of the publications for the authors of the articles published in the journal while claiming for the scientific degree or pedagogical title. The publications of this journal are reflected in the notorious international data bases. During the past twenty years, 132 tomes of “Jurisprudence”, that overwhelms more than 2100 printer’s sheets, have been published. Approximately 1900 scientific articles in Lithuanian, English, German, French, Polish and Russian have been published. The genuine popularity and the social utility of the substance published in the journal is apparent not as much from the edition of the traditional paper version of the journal as from the data, showing the numbers of users downloading the electronic version of the articles of the journal that mostly reach the four-figure numbers, sometimes extending to five or six thousand. Some attention in the article is paid to discuss the primal problematics of legal science reflected in the pages of “Jurisprudence” as well as to describe the contribution of the authors of the articles. The content of the journal allows us to ascertain the variety of publications announced, as they overwhelm practically all the classical branches of legal science. The journal analyses the conceptual matters as well as solves the specific problems dictated by practice. Most of the articles published in the journal are oriented to the primal legal problems of a particular period, raise and analyse problematical questions relevant to both science and practice as well as correspond to the novelties of legal regulation in Lithuania. (shrink)

Being the largest Muslim country in the world, the conversation of Islam in Indonesian social media has grown to the distinctive opposite poles of belief among the Islamic communities. This study presents the discussions of theological selections among the application users, as evident from their contesting schools of thought. This study identifies the data by content analysis. It presents the information with the digital ethnography design by analyzing and interpreting data from online sources to identify themes, patterns, and trends. (...) The results show that social media greatly influences socio-religious development as religious organizations have responded to their participation in social media. The community then experienced social changes that prioritized relevant options in understanding religion according to their natural or developed preference, thus potentially creating an echo chamber. Some towering figures rise by the mobs with different proposals and will color the selection of Islamic ideology and views now and then. (shrink)

Throughout Pope Emeritus Benedict XVI's pontificate he spoke to a range of political, civil, academic, and other cultural authorities. These speeches reveal a striking sensitivity to the fundamental problems of law, justice, and democracy. He often presented a call for Christians to address issues of public ethics such as life, death, and family from what they have in common with other fellow citizens: reason. This book discusses the speeches in which the Pope Emeritus reflected most explicitly on this issue, along (...) with commentary from distinguished legal scholars. It responds to Benedict's invitation to engage in public discussion on the limits of positivist reason in the domain of law from his address to the Bundestag. Although the topics of each address vary, they are joined by a series of core ideas whereby Benedict sketches, unpacks, and develops an organic and coherent way to formulate a 'public teaching' on justice and law. (shrink)

What the ancients have to tell us: the history of dogmatics.--What the ancients have to teach us: its application to the present time.

Human rights have become an important ideal in current times, yet our age has witnessed more violations of human rights than any previous less enlightened one. This book explores the historical and theoretical dimensions of this paradox. Divided into two parts, the first section offers an alternative history of natural law, in which natural rights are represented as the eternal human struggle to resist opression and to fight for a society in which people are no longer degraded or despised. At (...) the time of their birth in the 18th Century and again in the popular uprisings of the last decade, human rights became the dominant critique of law and society. The radical rhetoric of rights and its apparently endless expansive potential has led to its adoption by governments and individuals alike seeking to justify their actions on moral grounds and has undermined its radical edge. Part Two examines the philosophical logic of rights. The classical critiques of Kant, Burke, Hegel and Marx illuminate traditional aproaches to the concept of human rights. The work of Heidegger, Sartre and psychoanalysis is used to deconstruct the metaphisical essentialism of bothe universalists and cultural relativists. Finally, through a consideration of the ethics of otherness, and with reference to recent human rights violations, it is argued that the end of human rights is to judge law and politics from a moral stand point which both transcends the present and is historically relevant. (shrink)

What the ancients have to tell us: the history of dogmatics.--What the ancients have to teach us: its application to the present time.

Exploring the history of contemporary legal thought on the rights and status of the West's colonized indigenous tribal peoples, Williams here traces the development of the themes that justified and impelled Spanish, English, and American conquests of the New World.

In the contemporary domain of American legal thought there is a dominant way in which lawyers and judges craft their argumentative practice. More colloquially, this is a dominant conception of what it means to 'think like a lawyer'. Despite the widespread popularity of this conception, it is rarely described in detail or given a name. Justin Desautels-Stein tells the story of how and why this happened, and why it matters. Drawing upon and updating the work of Harvard Law (...) School's first generation of critical legal studies, Desautels-Stein develops what he calls a jurisprudence of style. In doing so, he uncovers the intellectual alliance, first emerging at the end of the nineteenth century and maturing in the last third of the twentieth century, between American pragmatism and liberal legal thought. Applying the tools of legal structuralism and phenomenology to real-world cases in areas of contemporary legal debate, this book develops a practice-oriented understanding of legal thought. (shrink)

This book examines moral issues in public and private life from a religious but not devotional perspective. Rather than seeking to prove that one belief system or moral stance is right, it undertakes to help readers more fully understand the effect of religious beliefs and practices on ways of conceiving and addressing moral questions, without having to accept or to reject any specific religious outlook. It shows how the similarities between religions and the differences within any one religion are more (...) important than the reverse. The book asks • Where do moral imperatives come from, and how do the answers found in religion and law interact? • How does the fact that a moral norm is grounded in religion affect our thinking about it? • What is the significance of the differences between religious and secular sources of moral norms? (shrink)

This book examines the ideology of elite lawyers and judges from the Gilded Age through the New Deal. Between 1866 and 1937, a coherent outlook shaped the way the American bar understood the sources of law, the role of the courts, and the relationship between law and the larger society. William M. Wiecek explores this outlook--often called "legal orthodoxy" or "classical legal thought"--which assumed that law was apolitical, determinate, objective, and neutral. American classical legal thought (...) was forged in the heat of the social crises that punctuated the late nineteenth century. Fearing labor unions, immigrants, and working people generally, American elites, including those on the bench and bar, sought ways to repress disorder and prevent political majorities from using democratic processes to redistribute wealth and power. Classical legal thought provided a rationale that assured the legitimacy of the extant distribution of society's resources. It enabled the legal suppression of unions and the subordination of workers to management's authority. As the twentieth-century U.S. economy grew in complexity, the antiregulatory, individualistic bias of classical legal thought became more and more distanced from reality. Brittle and dogmatic, legal ideology lost legitimacy in the eyes of both laypeople and ever-larger segments of the bar. It was at last abandoned in the "constitutional revolution of 1937", but--as Wiecek argues in this detailed analysis--nothing has arisen since to replace it as an explanation of what law is and why courts have such broad power in a democratic society. (shrink)

This book examines legal ideology in America from the height of the Gilded Age through the time of the New Deal, when the Supreme Court began to discard orthodox thought in favour of more modernist approaches to law. Wiecek places this era of legal thought in its historical context, integrating social, economic, and intellectual analyses.

This article places the textual production of classical Islamic law in its proper historical context. It does so by examining a transcript of an eleventh-century oral debate, or disputation, between the Shafiʿi and Hanafi jurists Abū al-Ṭayyib al-Ṭabarī and Abū al-Ḥasan al-Ṭāliqānī on the subject of the pre-emptive expiation for broken oaths. The comparison between the disputation transcript and al-Ṭabarī’s lengthy legal manual al-Taʿlīqa al-kubrā reveals that the complexity and argumentative detail of disputations far exceeded jurists’ writings. Even the (...) lengthiest legal manuals of the time are shown to be highly summarized accounts of juristic thought. The article explains how these summaries were essential to the proper training of jurists in the age of ijtihād: jurists were expected to learn these summaries before exploring the law in greater depth through disputations. These disputations were rarely recorded in writing, and few survive. The disparity between the oral and written legal discourse of jurists leads to a disquieting conclusion: much of the thought that produced classical legal opinions is lost to us today. We are therefore left with access to an attenuated version of classical law. (shrink)

The thought and work of the Jesuit Francisco Suárez (1548-1617) is widely acknowledged as the culmination point of the contribution of the theologians and jurists of the so-called School of Salamanca to the development of modern Western law. This collection of studies on the legal work of Suárez explores some of his major forays into the law. Both his theoretical system-building as well as his interventions in practical questions are covered. Next to discussions on the nature of law (...) and its different categorisations, they extend to various subbranches of the law including family law, property law, the law of obligations, criminal law and international law. Contributors are: Dominique Bauer, Daniel Schwartz, João Manuel Azevedo Alexandrino Fernandes, Lisa Brunori, Wim Decock, Bart Wauters, Gaëlle Demelemestre, and Jean-Paul Coujou. (shrink)

This book delves into Carl Schmitt's early legal works and explores their hermeneutic nature. Drawing on the insights of the giants of existential hermeneutics, such as Heidegger and Gadamer, we illuminate the essence of hermeneutic thought - the existential openness inherent in us as human beings, and then examine its implications for Carl Schmitt's early legal thought. The journey that this text embarks on reveals that the openness inherent in human beings inevitably extends to the (...) class='Hi'>legal phenomenon. This realisation exposes two potential pitfalls or flawed appropriations within juridico-hermeneutical activity. First, there's the scientism that restricts law strictly to positive legislation, depriving it of its broader scope. Second, there's what might be called legal romanticism, in which the interpreter, on the basis of whim and subjectivity, dictates what the law means. The book delves into Schmitt's early works, highlighting his awareness of these extremes and the ways in which he addresses them. (shrink)