The increasing global demand for energy necessitates devoted attention to the formulation and exploration of mechanisms of thermal heat exchangers to explore and save heat energy. Thus, innovative thermal transport fluids require to boost thermal conductivity and heat flow features to upsurge convection heat rate, and nanofluids have been effectively employed as standard heat transfer fluids. With such intention, herein, we formulated and developed the constitutive flow laws by utilizing the Rossland diffusion approximation and Stephen’s law along with the MHD (...) effect. The mathematical formulation is based on boundary layer theory pioneered by Prandtl. Governing nonlinear partial differential flow equations are changed to ODEs via the implementation of the similarity variables. A well-known computational algorithm BVPh2 has been utilized for the solution of the nonlinear system of ODEs. The consequence of innumerable physical parameters on flow field, thermal distribution, and solutal field, such as magnetic field, Lewis number, velocity parameter, Prandtl number, drag force, Nusselt number, and Sherwood number, is plotted via graphs. Finally, numerical consequences are compared with the homotopic solution as a limiting case, and an exceptional agreement is found. (shrink)

The article analyses Egyptian jurisprudence on the issue of apostasy, with a focus on conversion from Islam to Christianity. It argues that the Egyptian judiciary has failed to develop a harmonious relationship between Islamic law and the principle of freedom of religion. It looks at how the majority of cases examined before the Egyptian judiciary reveal a continued tension between freedom of religion as defined in international human rights law and its judges’ interpretation of Islamic law as a (...) constitutive element of public order. Recently, the Supreme Administrative Court tried to break through traditional barriers regarding the right of converts of Christian origin to record their re-affiliation to Christianity in their documents of identification, and pragmatically justified this precedent in light of the requirements of modern states, whereby identity cards should reflect the correct information of each citizen. Yet it argues that the court was not conscious of freedom of religion as a fundamental individual right, and moreover, that this precedent has not been followed with respect to converts of Islamic origin. Finally, the paper argues that, for a sustainable solution to the legal tensions concerning apostasy in Egyptian courts, a new perspective is required on the relationship between Islamic law and religious freedom whereby the universal understanding of freedom of religion can be legitimized from within Islamic legal traditions. The article also proposes a set of constitutional and legal measures to enhance freedom of religion in Egypt. (shrink)

Modernity believed that processes of secularization and rationalization are universally applicable. What is taking place in the 21st century, however, suggests that the reverse, a process of de-secularization, is becoming the hallmark of the present age. In the case of Islamic civilization, in which law is shari'a, the challenge to secularization takes the form of a process of shari'atization. This is not the traditional or inherited shari'a, restricted to civil matters and to a penal code, but an invented shari'a, (...) one which also claims to be a constitutional law. Moreover, the constructed shari'atized constitutional law, in conflict with secular constitutionalism and appearing to offer no middle way, has been universalized to engender an international conflict between secularization and de-secularization. Since, for most Muslims, Islam without shari'a is unthinkable, this article examines the potential for religious reform of the shari'a in the direction of cultural change, freedom and democratic constitutionalism. (shrink)

In this article, the essential claims and approaches seen in American and Scandinavian legal realism are presented and compared with Islamic law. The uncertainty on which it is based constitutes the essence of legal realism; In terms of Islamic law, there is no possibility of an uncertainty approach as seen in legal realism. The agreed points became clear and fixed. On the other hand, there are different appearances of clarification, not ambiguity in ijtihad issues. Even though realists reject (...) the understanding of root and source, Islamic law, based on the Book and Sunnah is a legal system that consists of certain roots and develops with them. Despite the rejections of realists, morality and values have a central place and importance in Islamic law. While realists define justice as part of the law and subject to the direction of the law; Islamic jurists are based on the approach of interdependence. While realists reject all the rules of law formed in the process; Islamic jurists systematized the rules of law and compiled works in this context. In contrast to the realists' approach that the law will become clear and come into existence with the decision of the judge, Islamic jurists have declared the system of law, which has come into existence with ijtihad as well as what has become clear with the texts. Contrary to the unlimited pluralism seen in realism due to the rejection of the understanding of root and source, there has been limited pluralism in Islamic law, which finds its traditional meaning within the framework of source understanding. After analyzing these issues in the article, the study was completed with the presentation of the results obtained. (shrink)

The rights granted to individuals by the legal system are examined with a fundamental distinction as regards their economic value as "property rights" and "personal rights". Property rights, which differ from personal rights in terms of their economic value, are characterized as ‘absolute’ if they can be asserted against everyone and as ‘relative’ if they can only be claimed against the convict on behalf of the debtor. If absolute property rights are based on a tangible (physical) subject, they are referred (...) to as real rights. Real rights and rights of claim that have relative characteristics and can therefore only be used through the act of a specific person constitute two important components of a property. Although various attempts have been made to bring these two types of rights closer together in the historical process, these rights have continued to be considered different in terms of both nature and legal implications. The aforementioned difference arises from the form of dominance over the subject of the right, whether it is direct or indirect, the impact of these rights on the ownership of the property, whether the right is absolute or relative, whether it is continuous or not, and priority/superiority, which will be discussed in detail in the article. The conceptual framework and terms belonging to the Continental European legal system are also found in Islamic legal doctrine in similar or equivalent forms. In this context, the term "milk" has been used in the fiqh literature to encompass all property rights, and terms such as "milk al-ayn," "milk al-manfaa," "milk al-dayn," and "milk al-habs wal-yad" have been developed depending on the nature of the property subject to the right. Real rights and personal rights constitute two important parts of the asset. In some cases where legal interests between people are confronted, it may be necessary to choose between these two types of rights. In such cases, considering the authorities it contains, a kind of priority has been given to real rights over personal rights. One of the cases where this priority is most clearly seen is when a leased property is transferred to third parties while the current lease agreement is in effect. In Islamic law, the authorities granted to the person by the lease contract differ from the Continental European legal system. At this point, the powers granted by the lease contract in Islamic law differ from those in the Continental European legal system. This article argues that the right of the tenant in this regard is considered as real right in Islamic law, unlike in the Continental European legal system. To justify this, the authorities granted to the tenant in Islamic law have been examined in cases where the leased property is transferred to third parties through means that can be interpreted as unlawful acts such as sale, lease, or usurpation during the lease period. In addition, the unique approach of Islamic law on this issue has been expressed by considering both classical and modern fiqh works, and by making comparisons with Turkish law. (shrink)

Muhammad Arsyad Al-Banjari who lived from 1710 to 1812 in Borneo, Indonesia, applied a model of integrating uses of the Banjarese tradition into Islamic Jurisprudence based on a dialectical constitution of qiyās, the legal argumentation theory for parallel reasoning and analogy, he learned from the Shāfi‘ī-school of jurisprudence (uṣūl al-fiqh). Our paper focuses in the model of integration proposed and practiced by Al-Banjari, a rational debate grounded on a dynamic view on legal systems. We will illustrate the method with (...) the help of two different kinds of qiyās deployed by Al-Banjari in order to argue for the rejection of some traditional Banjarese offering-rituals for avoiding disease or calamities (manyanggar and mambuang pasilih), and for the acceptance of the use of consuming the traditional drink called lahang made of the juice of sugar-palm. As our dialogical reconstruction shows, the development of the debates, particularly the first one, is quite sophisticated, with a Banjarese opponent that does not surrender easily to the rejection of his use of those rituals. (shrink)

This paper seeks to examine the constitutional and legal implications of Islam in Malaysia with a focus on fundamental liberties and particular reference to freedom of religion; conversion of non-Muslim minors to Islam; Hudud law, `Islamic dress,' offenses against precepts of Islam; and, women, Heads of State and Islam. These areas are chosen as a result of cases in civil courts contesting fundamental liberties, and debate in the public domain. The problems which have surfaced revolve around the following (...) concerns: subjecting non-Muslims to Islamic law or principles; subjecting Muslims and non-Muslims to an Islamic fiqh principle contrary to humanistic principles; the problems of a dual legal system with attempts to demarcate jurisdiction but at the cost of fundamental liberties; and, the relevance of the ``Islamic state" vs. ``secular state" issue in rights adjudication. The courts appear to be in a conundrum when dealing with these cases, and this suggests a conflict in the application of Islamic and civil laws. These issues are not new; they have persisted for a long time. Recently court decisions have aroused a public perception that the problem is one of Islam versus the non-Muslim. This tends to be perceived in ethnic terms as well, specifically as a contest between the Malays, who are mostly Muslims, and other races. The author calls for increased secularization in Malaysia as a way to resolve these issues. (shrink)

This monograph proposes a new way of studying the different forms of correlational inference, known in the Islamic jurisprudence as qiyās. According to the authors’ view, qiyās represents an innovative and sophisticated form of dialectical reasoning that not only provides new epistemological insights into legal argumentation in general but also furnishes a fine-grained pattern for parallel reasoning which can be deployed in a wide range of problem-solving contexts and does not seem to reduce to the standard forms of analogical (...) reasoning studied in contemporary philosophy of science and argumentation theory. After an overview of the emergence of qiyās and of the work of al-Shīrāzī penned by Soufi Youcef, the authors discuss al-Shīrāzī’s classification of correlational inferences of the occasioning factor. The second part of the volume deliberates on the system of correlational inferences by indication and resemblance. The third part develops the main theoretical background of the authors’ work, namely, the dialogical approach to Martin-Löf's Constructive Type Theory. The authors present this in a general form and independently of adaptations deployed in parts I and II. Part III also includes an appendix on the relevant notions of Constructive Type Theory, which has been extracted from an overview written by Ansten Klev. The book concludes with some brief remarks on contemporary approaches to analogy in Common and Civil Law and also to parallel reasoning in general. (shrink)

In recent years, Islamic feminism has become a prevalent and controversial topic among scholars from Muslim countries and Western feminists. While respecting the efforts of Muslim activists, this paper argues that because Islamic perspective is inherently anti-pluralist, it is not conducive to feminism and even at odds with it. Since it is impossible to make any generalizations about Muslim countries, this paper focuses on the debate of Islam and feminism as it relates to Iran. Islamic laws that (...) are the ground for constitutions in many Muslim countries treat men and women unequally. In countries with a theocracy, Islam becomes a political system where the power of the ruling elite, which are the clerics, becomes an important obstacle on the way of reforms. As a worldview, Islam provides a fixed identity of women and men that is irreconcilable with any liberating theory. The significance of this discussion lies in the potential of celebration of “Islamic feminism” for reinforcing the fusion of religion and politics in a country such as Iran, which has a religious state. (shrink)

This article argues that women’s human rights were and are being violated in Afghanistan regardless of who governs the country: Kings, secular rulers, Mujahideen or Taliban, or the incumbent internationally backed government of Karzai. The provisions of the new constitution regarding women’s rights are analysed under three categories: neutral, protective and discriminatory. It is argued that the current constitution is a step in the right direction but, far from protecting women’s rights effectively, it requires substantial revamping. The constitutional commitment (...) to international human rights standards seems to be a hallow slogan as the constitution declares Islam as a state religion which clearly conflicts with women’s human rights standards in certain areas. The Constitution has empowered the Supreme Court to review whether human rights instruments are compatible with Islamic legal norms and, in case of conflict, precedence will be given to Islamic law. Keeping this in view, it is argued that Afghanistan’s ratification of the Women’s Convention without reservations has no real significance unless Islamic law dealing with women’s rights is reformed and reconciled with international women’s rights standards. (shrink)

Among the civilization challenges, recognizing the human freedom and drawing its constraints have continuously been contestable. Hence, the recognition, definition, pledge and delineation of the boundaries of freedom have a special position in the declaration of rights. In the meantime, considering the historical intersection of jurisprudential foundations with the modernist thoughts, defining the concept of freedom and delineating its boundaries will be crucial. This definition provides a groundwork for elucidating and interpreting other Articles via identifying their positions in creating solutions (...) to the problems of public administration. The current study is an effort to recognize the concept of freedom and its boundaries in the constitutional system of the Islamic Republic of Iran via employing a descriptive-analytical method. Our findings indicate that the perception of freedom in the Constitution of the Islamic Republic of Iran is convoluted and interpretable. Because of the existing ambiguities in balancing among the historical concerns, the boundaries of freedom can be redefined based on the temporal and historical circumstances by the pressure of social forces. (shrink)

The purpose of this contribution is to shed some light on the inter-relationships between ethics and economics in Islamic religion, and mainly to assert that ethics constitute endogenous phenomena in Islamic economics. In Islam, economic behaviours and transactions cannot be separated from ethics and values. The Islamic principles are intended to govern, direct and control human beings’ behaviours in their daily economic lives. They are aimed at helping people to distinguish between good and bad things while they (...) do any economic activity. It is worth noting that the moral values in Islamic economics are derived from the main sources of Islam namely: the Quran (the holy book of Islamic religion) and Sunnah (the teachings and behaviours of the prophet of Islam: Muhammad PBUH 570-632 AD). Both of them represent the principal pillars of Shariah (Islamic laws and guidelines), which is seen by Muslims as the proper way to happiness, not only in economic life but in all aspects of life. (shrink)

This study aims to analyse the pros and cons of imposing penalties or fines in law enforcement regulations for violating health protocols in Indonesia. Some people consider that the norm of the fine sanctions in statutory provisions regulating health protocol violators is unconstitutional, but others say it is constitutional. As a country with the largest Muslim population in the world, a study of the perspective of Islamic law is essential. This article uses a normative legal research methodology using (...) two main approaches: the statutory and conceptual approaches. The results show that fines are found in the criminal law clusters and state administrative law. Penalties in state administrative law in their enforcement do not require intervention from other institutions. Still, they can be carried out directly by government officials whose authority has been determined in the laws and regulations. Meanwhile, from the Islamic perspective, the fine sanctions can be applied, in the context of hifz Al-Insan, in Maslahah Mursalah as part of the maqasid al-Syari’ah. The obligation to obey government regulations is part of a person’s obedience to God’s commands. Contribution: This study’s findings can support the government in enforcing the law to combat the spread of the coronavirus disease 2019 (COVID-19) in Indonesia and other countries because, constitutionally, the law is legal. Then, the legality of fines for violators of the COVID-19 health protocol, from an Islamic perspective, does not contradict maqasid al-shari’ah. So, there should be no doubts for Muslims to obey these regulations. (shrink)

Constitutional Conversations : Alternative models for the challenge of civilizational conflict -- Western Constitutionalism : Universal Norms or Contingent Cultural Concepts -- From Medina to Runnymede : Comparing the Foundational Legacies of the Constitution of Medina and the Magna Carta -- Comparing Constitutionalisms : Is there an Islamic Constitutionalism? -- Constitutional Conversations- The Fusing of Political Tradition in Khayr al-Din al-Tunisi's The Surest Path -- The Arab Spring- Constitutional Thought in Contested Political Space, Questions and Conclusions.

Islamic law has an advanced legal theory, apart from the four basic decision-making methods, many judgment-gaining theories based on interpretation and reasoning have been derived which have been developed by Islamic jurists in the process. Islamic jurists have used some of their knowledge and techniques to correct the problematic results that arise from both the incorrect use of methods of obtaining judgments and the expansion of the scope of these methods. With these interdisciplinary studies, it was aimed (...) to interpret the criticisms directed against the analogy process and the causes accurately. One of the methods used at the point of revealing whether these criticisms and objections are based on a justified reason and evidence is the debating method. The method of debating, which has become an independent discipline along with fiqh and kalām in the Islamic scientific tradition, began to form during the periods when sects were formed (II century Hijri). The discipline of debate, which has found a practical field in the methodology of Islamic jurisprudence (fiqh), has been particularly effective in interpreting analogy (qiyas), which constitutes an important part of fiqh, and is even assumed to be among the methods of inference (istidlāl). Many Fasād al-waḍʻ (invalidity of an argument of syllogism) is one of the methods of debating has been used in uṣūl al-fiqh. Fasād al-waḍ‘ has been described as the binding of a provision to a cause (ʻillat) that is the opposite of what that cause requires. This is a situation that completely invalidates the cause. In Fasād al-wad‘, the objector proves that the analogy is erroneous by directing objections to the person who brings the evidence. Since Fasād al-wad‘ is a type of objection directed to the basis of the fiction of analogy, it has been accepted by Islamic jurists as one of the strong objections directed to the cause/analogy. However, the issue of which cause this type of objection can be directed against has been discussed among Islamic jurists. Hanafīs accept Fasād al-wad‘ as a sound objection method, but they think that it is not possible to object to the effective causes (al-ʻillat al-muaththirah) with it. Because, according to Hanafīs, the correctness of the effective quality has been revealed by the Qur’ān, the Sunnah and the consensus (ijmā’). Because these proofs do not produce false qualifications. According to Shafeis, all causes and provision can be objected with Fasād al-wad’. In fact, some Shāfi'ī jurists consider this method as a general type of objection, not aunique one to the analogy. Due to these different interpretations that Islāmic law schools attribute to the conditions of analogy and the nature of Fasād al-wad‘, different results may arise in furû issues. In this study, Fasād al-wad‘as a type of objection to the analogy process in Islamic legal procedure has been examined and the nature of Fasād al-wad‘ has been tried to be revealed by determining the comparative furû. Thus, it is aimed to identify and analyse the diversity of legal reasoning methods, which have an important place in the logic of law in Islam and can be gathered under the name of analogy. (shrink)

Some of the foremost living scholars in Islamic thought have come together to create a standard and definitive work on the subject of Islamic thought. Noted scholars from North America, Europe, and the Middle East offer new and generative interpretations of major themes in the field. They address perennial theological and philosophical questions: the nature of the God-head, the ultimate constitution of matter, the world's origin, causality, divine providence and the existence of evil, freedom and determinism, political wisdom, (...) and the reaches of human knowledge, The contributions include historical and analytical expositions of these issues in medieval Islam as well as discussions of individual thinkers, translations of Arabic texts with commentary, comparisons of Greek and Islamic thought, and bibliographical and textual sources. As a whole, these essays offer a wealth of philosophical, theological, bibliographical, philological, and historical information. Among the outstanding contributions are: an article by Charles Butterworth on Aristotle's rhetoric and how it was understood by al-Farabi, Avicenna and Averroes; Richard M. Frank's essay on the concepts of atoms and bodies, one of the most complex subjects in Islamic theology; and an article by Shams Inati on Ibn Sina and single expressions that discusses how language relates to mental processes and the unknown. Michael E. Marmura develops a new perspective on the subject of efficient causality, emphasizing the paradigmatic position of God's relationship to the world; Muhsin Mahdi analyzes a treatise of Averroes' that deals with the relationship between philosophy and law. (shrink)

Our study aimed to investigate what Muslim families in England have the opportunity to have religious education for their children and to examine the institutions or structures that provide Islamic education opportunities. Document analysis as a qualitative method was adopted in our study. Academic books and articles related to the subject, statistical records, various re-ports provided by the state and private institutions, school curricula, school inspection reports, and law articles, and some court decisions constitute the main data sources. Maximum (...) diversi-ty sampling from the purposeful sampling types was used in determining the schools that were examined their Islamic curriculum, and it was tried to include as many different curriculum examples as possible. The fact that religious lessons are compulsory in schools in England and that this lesson is taught with a multicultural approach can be seen as an opportunity. On the other hand, there is a flexible education system in England. Muslim faith schools, supplementary schools (madrasa, maktab, and mosque school), and the home-schooling system are places and structures where Islamic education is carried out within the scope of formal and informal education. It is seen that Muslim faith schools are allowed to be opened as 'voluntary aided schools' by defining their distinctive religious characters as Muslim. The number of ‘state-funded Muslim schools’ is very limited, but their existence carries symbolic weight as a recognition of the Muslim com-munity’s right to establish such schools. It is understood that Muslim faith schools were opened mostly in the category of ‘independent schools’. Although there are various discussions about it, it is also important for Muslims to have informal religious education, in addition to formal education; it is allowed to open schools that offer Islamic education under the name of madrasa, maktab or mosque school. Families who send their children to the community schools because of the insufficient number of Muslim faith schools send their children to madāris (singular: madrasa), makātib (singular: maktab), or mosque schools which are called as ‘supplementary schools’. Social and moral values are taught here, including the teaching of the Qur'an, as well as sīrah (the biography of the Prophet), fiqh (jurisprudence), and Islamic history. It was understood that families who want to protect their children from the unhealthy envi-ronment of the school have the right to prefer home education, since the school is not compul-sory. In this sense, home-schooling can be considered as another opportunity for Muslim fami-lies to have their children Islamic Education. In addition to all these opportunities, the lack of a standard in these educational structures, the unqualified teachers, the inadequacy of curriculum development studies, and as a result, lack of qualified teaching materials are important problems. Economic limitations emerge as the first obstacle to increase the number of Muslim faith schools and to improve educational quali-ty. This situation threatens the quality of education by giving rise to poor buildings, insufficient resources, insufficient health and safety standards, and inexperienced management. Another threat to the quality of education is that teachers for independent schools do not have to have Qualified Teacher Status (QTS). While negative perceptions about Muslim schools have been identified as another challenge, it is expressed in various sources that Muslim students are frequently exposed to Islamophobia in various ways in public schools. Linking mosques and Islamic education institutions to radicalization and making them a subject of discussion is another noteworthy issue. Although there is no evidence of the relationship between Muslim schools and terrorist acts in England, Muslim schools are subjected to suspicions of being po-tential breeding grounds for future extremists. It seems necessary to take some actions for madrasahs who do not want to be under the con-trol of the state to reach certain standards and increase the quality of education. For example, Muslim supplementary schools should be united under the same roof of an association like The Association of Muslim Schools. This will help to attain certain standards, to increase the quality of education, and to create opportunities for various cooperation and sharing of experiences. Also, it should not be seen enough that the teachers in the madāris only have religious educa-tion, and their pedagogical competencies should be improved by subjecting them to various educational programs. (shrink)

Padela and his contributors address a hitherto unexplored dimension of Islamic bioethics: the dynamics and tensions between Muslim medical doctors and Islamic jurists. What happens, and what should happen, when ancient faith and modern medicine both make claims on care for the ill? What, at the end of the day, constitutes true 'Islamic bioethics?' Includes a foreword and a chapter by Ebrahim Moosa.

The field of medicine provides an important window through which to examine the encounters between religion and science, and between modernity and tradition. While both religion and science consider health to be a ‘good’ that is to be preserved, and promoted, religious and science-based teachings may differ in their conception of what constitutes good health, and how that health is to be achieved. This paper analyzes the way the Islamic ethico-legal tradition assesses the permissibility of using vaccines that contain (...) porcine-derived components by referencing opinions of several Islamic authorities. In the Islamic ethico-legal tradition controversy surrounds the use of proteins from an animal (pig) that is considered to be impure by Islamic law. As we discuss the Islamic ethico-legal constructs used to argue for or against the use of porcine-based vaccines we will call attention to areas where modern medical data may make the arguments more precise. By highlighting areas where science can buttress and clarify the ethico-legal arguments we hope to spur an enhanced applied Islamic bioethics discourse where religious scholars and medical experts use modern science in a way that remains faithful to the epistemology of Islamic ethics to clarify what Islam requires of Muslim patients and healthcare workers. (shrink)

Halal means permissible or lawful in Arabic and is applied to both the religious and daily life of Muslims. Islamic Law Shariah requires Muslims to consume halal products only. But with the expansion of supply chains around the world and the development of many new products, Muslim consumers have found it difficult to confirm whether food is halal or not. Also, as many foods are produced in non-Muslim countries and exported to Muslim countries, interest in halal certification in non-Muslim (...) countries is increasing. With several Islamic countries strengthening their halal certification regulation for import in recent years, there is no accurate information on whether halal certification is necessary to export to Muslim countries or the Islamic State, and is lack of clear study of the definition of the Islamic State. Therefore, in this research, we will investigate the constitution and food import regulations of the Organization for Islamic Cooperation member states, called the Union of Islamic States, to study the definition of Islamic State and whether halal certification is necessary for food exports. (shrink)

The Islamic Republic of Iran punishes homosexuality with death but it actively recognizes transsexuality, and partially funds sex change operations. This article aims to examine how this seemingly progressive stance on transsexuality is connected to the IRI's larger oppressive apparatus of gender. It will first provide an overview of the cultural politics of gender and sexuality under the Islamic Republic's rule, and will then discuss the confluence of religious and medical literatures that led the Islamic Republic to (...) adopt its new discourse on transsexuality despite – or perhaps rather because of – its sex/gender politics. The article does not deny that this emerging discourse has been somewhat empowering for those transsexuals who genuinely desire surgical transformation. But empowering as it might have been for such transsexuals, the emerging discourse is still deeply troubling since it systematically regards homosexuality and more generally any sexual or gender non-conformity as unintelligible, perverse, and punishable by law, except for those willing to transform their "wrong bodies." The article will, therefore, demonstrate that the IRI's permission of transsexuality and sex change operations is motivated by a goal that is more about assimilating gender atypical individuals into the heteronormative order than about broadening horizons for sex/gender possibilities. The article ends by discussing how this discourse is making non-surgical trans/multi-gendered identity illegible and illegitimate not only as a publicly recognized possibility, but also with regard to transpersons' own self-perception and self-constitution of their gender and sexual subjectivity. (shrink)

Across the globe, the domain of the litigator and the judge has radically expanded, making it increasingly difficult for those who study comparative and international politics, public policy and regulation, or the evolution of new modes of governance to avoid encountering a great deal of law and courts. In On Law, Politics, and Judicialization, two of the world's leading political scientists present the best of their research, focusing on how to build and test a social science of law and courts. (...) The opening chapter features Shapiro's classic 'Political Jurisprudence,' and Stone Sweet's 'Judicialization and the Construction of Governance,' pieces that critically redefined research agendas on the politics of law and judging. Subsequent chapters take up diverse themes: the strategic contexts of litigation and judging; the discursive foundations of judicial power; the social logic of precedent and appeal; the networking of legal elites; the lawmaking dynamics of rights adjudication; the success and diffusion of constitutional review; the reciprocal impact of courts and legislatures; the globalization of private law; methods, hypothesis-testing, and prediction in comparative law; and the sources and consequences of the creeping 'judicialization of politics' around the world. Chosen empirical settings include the United States, the GATT-WTO, France and Germany, Imperial China and Islam, the European Union, and the transnational world of the Lex Mercatoria. Written for a broad, scholarly audience, the book is also recommended for use in graduate and advanced undergraduate courses in law and the social sciences. (shrink)

Reviewer: Ramizah Wan Muhammad, Associate Professor, Departmentof Islamic Law, Ahmad Ibrahim Kulliyyah of Laws, InternationalIslamic University Malaysia. Email: [email protected].

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

Protecting women and children is one of the core values of the Islamic legal tradition. In Muslim countries religious, constitutional, and legal frameworks obligate the state to take special measures to provide protection to women and children within families and in society. However, despite such provisions, post-divorce maintenance rights are not granted to women in Pakistan and Iran. Family law enacted in Pakistan and Iran still differs in form and substance from what has been mentioned in the primary (...) sources of Islamic law and from the previous articulations of early Islamic law scholars. Moreover, patriarchal notions of male authority are still sustained through law and judicial interpretations when it comes to the question of giving post-divorce maintenance to women. As a result in the absence of a welfare system divorced women are left in a vulnerable situation. Although in Iran, some financial compensation under the concept of Ujrat ul Misl is given to divorced women, but it remains unclear whether the right to Mata’at-ul-Talaq has been recognised under the family law. In Pakistan the law does not include any provision for giving women Ujrat ul Misl and Mata’at- ul -Talaq. Moreover in the absence of a welfare system, divorced Muslim women in both countries are left in a vulnerable situation. This article engages with plural normative sources and contemporary notions of human rights to make the case for family law reform and for awarding post-divorce maintenance rights to Muslim women in Pakistan and Iran. (shrink)

Appearing in the “Cairo Declaration on Human Rights in Islam” as an undefined referent for the limits on freedom of expression in Islam, Shariah is still to be chased as an indefinable referent which restricts freedom of the expression in the Islamic Republic of Iran. Iran’s Press Law as well as Constitution unveil Shariah’s referent to be a person: the Jurist-Ruler around whom a cult of personality is legalized in terms of “Imamate” and around whom all the limits on (...) freedom of expression revolve. Interpretation of Shariah is not a solution but part of the problem in Iran. Such problem can be dealt in terms of three modes of self-expression which were invented by the Iranian Reformists to avoid self-censorship. The notion of master-signifier can be the key to unraveling the problem of self-referentiality in freedom of expression and its Reformist solution in Iran’s legal system. (shrink)

Increasingly in today’s world we are experiencing intensifying antagonisms around religious and ethno-cultural differences. The confrontation between political Islam and the so-called ‘West’ has replaced the rhetoric of the Cold War against communism. This new constellation has not only challenged the hypothesis that ‘secularization’ inevitably accompanied modernity but has also placed on the agenda political theology as a potent force in many societies. This article analyzes the contemporary revival of political theology by focusing on the headscarf debate in comparative (...) class='Hi'>constitutional perspective. It compares the well-known decision of the French Parliament banning the wearing of the headscarf in public schools (2004) with the decision of the German Constitutional Court concerning whether Fereshta Ludin, an Afghani-German teacher wearing the hijab, could teach in German schools (2003) and with the more recent judgment of the Turkish Constitutional Court (summer 2008) upholding the ban on the wearing of the scarf or the turban in institutions of higher learning. At stake in these debates is not only the meaning of fundamental human rights but also why women and their bodies become the object of disciplinary conflicts in culture, law and religion. (shrink)

The primary aim of this article is to illustrate the dichotomy of Jordan as a progressive country, perhaps best exemplified through the engagement of the royal family in human rights matters, versus the traditional approach, sanctioning the discriminatory laws concerning women. This paper further attempts to demonstrate that Jordan is balancing between the conservative tribal interests, by pertaining to the Arab and Islamic tradition on the one hand, and the need for democratisation and further human rights development on the (...) other. It is important to note, that discriminatory laws concerning women are not the only examples illustrating this peculiar mechanism, however, they constitute the most vivid one. The author further submits that many authors, as well as international bodies such as CEDAW and the Human Rights Committee, fail to understand the dynamics and complexity of the human rights situation in Jordan. Hence, these authors and authorities’ recommendations are often misguided, as they focus mostly on amending the discriminatory legislation. This article briefly discusses cultural relativism aspects and suggests that actual progress can be achieved by developing a unique language of human rights related to the Arab culture, for instance through the newly established Jordanian Constitutional Court. (shrink)

This paper explores the difficulties of implementing international human rights standards in post conflict states, particularly in Islamic States, using Afghanistan as a case study. The paper will submit that imposing international human rights law with a ‘top down' approach is ineffective, using the example of the western-style Afghan constitution which contains many human rights protections, such as freedom of religion, that cannot be realized in contemporary Afghan society. It will be argued that a more transparent, consultative and long-term (...) approach to human rights implementation should be taken in post conflict situations, if ‘human rights' is to be more than a catch phrase for membership of the international community. (shrink)

In a society transitioning to democracy from an authoritarian regime, drafting a new constitution is an important step in the establishment of a civil and democratic state. Indeed, the demand of Tunisians to write a new constitution reflects their ambitions, aspirations and hopes; but reality shows a huge gap between the expectations of the majority of Tunisians and the result of the drafting process. The Tunisian transition is characterized by a fierce debate between the secular and the religious forces. This (...) unfolding confrontation forms the backdrop to the process of drafting a new constitution, amid anxiety surrounding the place of Islam in the new political system. However, fears of the resurrection of a new theocratic dictatorship are mitigated by a dynamic civil society in which voices that were silenced or misused by the former regime of Zine Al-Abidine Ben Ali are becoming distinctly vocal. Their action has become increasingly visible, evolving around the place of religion, law and gender in the new constitutional framework. This article focuses on the debate on religion, law and gender in post-revolution Tunisia. (shrink)

Though the federal government covers much of the cost of counterterrorism instruction, it has surprisingly little control over who is chosen to conduct the training. Structural problems abound. There is no unified system of expert evaluation or regulatory authority to impose quality control. The Tenth Amendment, which states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” has been interpreted to mean (...) that police powers, and officer training, are the preserve of the states. By design, state and local law enforcement is not the responsibility of the federal government, and neither is officer training. While the Department of Homeland Security offers certification, this only means that approved courses are eligible for DHS funds. If the course is paid for by other means—by a regional source, or by another federal department—DHS accreditation isn’t necessarily required. Even DHS money, once received by a state or local police department, can often be used for trainers without DHS accreditation. (shrink)

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

The right of freedom of religion is one of the fundamental rights guaranteed in the Malaysian Constitution. The provision over the right to freedom of religion is seen as one of the most crucial provisions ever stated in the Federal Constitution. Article 11 has never been amended. Indeed, provision in Article 3 reiterates the right of individuals, especially the non-Muslims to profess and practise their religion freely, without any fear and interference. The special status of the religion of Islam enshrined (...) in Article 3 does not mean that non-Muslims have no right in matter of freedom of religion. However, the Federal Constitution seems to restrict the right to freedom of religion, in the sense that freedom of religion in Malaysia is not absolute. There have been several restrictions imposed not only within the constitutional framework but also other general legislations. Among provisions that furnished such restrictions can be seen in Articles 11, 11 and 10 of the Federal Constitution. Moreover, the Parliament had also passed several legislations allowing such restrictions. This can be seen, among others, the Internal Security Act of 1960, the Societies Act of 1966, the Police Act of 1967, the Printing Presses and Publications Act of 1984, the Town and Country Planning Act of 1976 and the Penal Code. As such, Muslims and non-Muslims alike must adhere to certain religious constraints for the sake of public order, public health and morality.While freedom of religion is guaranteed for individuals in the Malaysian Constitution, some states in Malaysia have penalised Muslims who renounced the Islamic faith. Although there is no death penalty for apostasy in Malaysia, apostates are subject to punishments like fine, imprisonment and to a certain extent whipping. In certain states, apostates are detained at the rehabilitation centre for up to 36 months. These have brought concern to human rights activists because such punishments and detention may seem contrary to the right to freedom of religion enshrined under Article 11 of the Federal Constitution and Article 5 that guarantees individual liberty. This article attempts to investigate whether restrictions over the right of freedom of religion particularly when Muslims renounce the Islamic faith is constitutionally valid. It also intends to highlight the conflict in the laws surrounding the punishment for apostasy in various states in Malaysia. (shrink)

In March 2004 the French parliament controversially adopted legislation regulating the wearing of symbols indicating religious affiliation in public educational establishments. This note discusses several features of the new law indicating its origins, its rationale and its position within French constitutional discourse on religious freedom and secularity. It is based on a panel discussion held in April 2004 within the Gender Studies Programme at the Robert Schuman Centre for Advanced Studies, European University Institute, Florence. Placing the French legislative initiative (...) in the context of recent developments in national and European case law (suggesting clear limitations to freedom of religion), the note explores the complexity of issues of gender, identity and difference in the present debate, especially when considered in the light of reactions to the law in Islamic countries. (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)

In Islamic thought, the accumulation regarding Tafsir appears in various ways. One of them is the type of work called Anmudhaj that contains chapters about Tafsīr. In the An-mudhaj type of works, the determination of the sciences to investigate may occur according to different criteria. These criteria may occur as a classification of science and they also can be limited to a few sciences. In this article, we will examine the Tafsīr chapter from the work of Sipāhīzādah who took (...) charge as a teacher and judge in the Ottoman Empire. That part cons-titutes the first chapter of the work called Anmūdhaju’l-Funūn which he symbolically limited the investigated sciences to seven. The other investigated sciences in the work are Ḥadīth, Kalām, the methodology of Islamic Law, Fiqh, Bayân, and Medical Science. In the Tafsīr chap-ter of the work of Sipāhīzādah called Anmūdhaju’l-Funūn, seven different issues are investi-gated in total. Those questions are “Does Bismillah count as a vow?” and “What is the order of the creation of the earth and the heavens in the light of the verse al-Baqarah 2/29?” and “Do the names of the numbers imply limitation (hasr)?” and “What is the reason behind the borrowing of Israelites the jewels of the Egyptians in the light of the verse al-Baqarah 2/50?” and “The entry order to the city was given to Israelites in the verses al-Baqara 2/58-59, was this order given to them before or after their deviation?” and “Where is the prostrated door which is mentioned in the verse?” and “How can we assess Fakhr al-Dīn al-Rāzī’s questions and answers regarding the narrative differences between the verses al-Baqarah (2/58-59) and al-A‘râf (7/161-162)?” Sipāhīzādah examined the issues of Tafsīr through a historical which makes him the participant of the debate and allows him to the continue the present discourse through a critical reading. This makes the subject of work quite important. Because thanks to the work, it will be possible to catch some clues about the progress of the accumu-lation regarding Tafsīr in the era the author lived.Summary: In Islamic thought, the accumulation regarding Tafsīr appears in various ways. One of them is the type of work called Anmudhaj that contains chapters about Tafsīr. In Anmudhaj type of works, the determination of the sciences to investigate may occur according to diffe-rent criteria. These criteria may occur as a classification of science and they also can be limi-ted to a few sciences. In this article, we will examine the Tafsīr chapter from the work of Sipāhīzādah who took charge as a teacher and judge in the Ottoman Empire. That part cons-titutes the first chapter of the work called Anmūdhaju’l-Funūn which he symbolically limited the investigated sciences to seven. The other investigated sciences in the work are Ḥadīth, Kalām, the methodology of Islamic Law, Fiqh, Bayân, and Medical Science.The work of Sipāhīzādah, Anmūdhaju’l-Funūn consists of seven chapters and also seven is-sues are investigated in the Tafsīr part of the work. The first investigated issue in the Tafsīr part is the issue of Basmalah and in our opinion, it would not be surprising to accept that in one dimension it is a conscious choice aimed at the beginning of the work. His general attitude is presenting the issues firstly. He constituted all of the issues through the trio of al-Zamakhs-harī, al-Rāzī, and al-Bayḍāwī either one or two of them. Another remarkable point in the de-velopment of the issues is Sipāhīzādah begins with Basmalah according to the Mushaf com-position and proceeds to al-Baqarah verse 59 in a particular order. According to this, the aut-hor takes the problems he detected in the relevant parts as a subject.The issues that are investigated in the Tafsīr chapter can be listed as follows:1. Can Bismillah be used as a vow? According to Sipāhīzādah, al-Bayḍāwī, al-Jurjānī and Mollā Khusraw claim that there is a difference between vowing in the name of God and starting something with Bismillah and this difference should be rejected through the work of al-Mergīnānī that is called Hidâye and Ibn al-Humām’s Sharh. Thus, according to him one of the differences between Billah and Bismillah is not that they count as a vow.2. What is the order of the creation of the earth and the heavens in the light of the verse al-Baqarah 2/29? Sipāhīzādah mentions that the creation and the arrangement of the earth did not happen at the same time.3. Do the names of the numbers imply limitation (hasr)? Regarding this issue, Sipāhīzādah took the verse that says “…and made them seven heavens” as the focal point and claimed that the mentioned number in this verse indicated limitation and gave examples from verses, hadith, linguists and scholars of the methodology.4. What is the reason behind the borrowing of Israelites the jewels of the Egyptians in the light of the verse al-Baqarah 2/50? Sipāhīzādah criticized the two arguments of Fakhr al-Dīn al-Rāzī. Sipāhīzādah criticized the assessments that Ancient Egyptians pursued those properties which they lent before and Israelites kept those jewels and he rejected them.5. The entry order to the city was given to Israelites in the verses al-Baqara 2/58-59, was this order given to them before or after their deviation? He criticized the argu-ments of al-Zamakhsharī and al-Bayḍāwī which they have given to prove that this order was given to them after their deviation. He offered arguments and emphasi-zed that the entry order to the city was given before their deviation.6. Where is the prostrated door which is mentioned in the verse al-Baqara 2/58? It is controversial if it is Jerusalem or the door of the Mosque in which they were perfor-ming the prayer. al-Zamakhsharī and al-Bayḍāwī claim that it is Jerusalem. Was this order given before or after the death of the prophet Moses? Sipāhīzādah thinks that it has to be the door of Jerusalem.7. How can we assess Fakhr al-Dīn al-Rāzī’s questions and answers regarding the nar-rative differences between the verses al-Baqarah (2/58-59) and al-A‘râf (7/161-162)? Sipāhīzādah criticized the responses which are given by al-Rāzī and gives contrary responses.It is obvious that the author is Hanafi in the matters of Islamic Law. Besides this, we can say that Sipāhīzādah did not examine the issues of Tafsīr through a sense of belonging, he emp-hasized the opinions of people which he found compatible with his beliefs. Hence, He someti-mes comes to an agreement with al-Bayḍāwī who is a Shaffi in the matters of Islamic Law and from time to time he affirms al-Zamakhsharī who is a Mutazilite in the matters of faith. Sipāhīzādah examined the issues of Tafsīr through a historical depth and this both makes him a participant of the debate and allows the continuation of the present discourse through a critical reading. Thus, an attitude of critical consistency is prominent in his works. In our opi-nion, this attitude of critical consistency is an action of consolidation for the maintenance of the power of the relevant text-centered linguistic system. In this regard, we can say that Tafsīr remained its liveliness in the geography in which the author lived. So, the founders of the system which we can list as al-Zamakhsharī, Fakhr al-Dīn al-Rāzī, and al-Bayḍāwī and the ones who caused it to continue which we can list as Sayyid Sharif al-Jurjānī, Mollā Khusraw, and Ibn Kamāl Pasha have been read critically by the author. This makes the subject of work quite important. Because thanks to the work, it will be possible to catch some clues about the progress of the accumulation regarding Tafsir in the era the author lived. Even though it was negative in the issues that are investigated by the author, the fact that the Fakhr al-Dīn al-Rāzī is a prominent figure is an indicator of the maintenance of the dominance of Rāzī. It would be more appropriate to link this with his effectiveness rather than the Kalāmī power of his Tafsir. For Rāzī is not taken as the focal point by Sipāhīzādah only in issues of Kalām. Besides that, he renders Rāzī as a participant of the subject in linguistic issues too such as whether if the name of the numbers implies limitation or not and the usage of varied phrases in verses. (shrink)

The Islamic contestation of the last twenty years has in many aspects called into question the legitimacy of current juridical systems of supposedly MuslimCountries. Their adoption of another rationality of the law is today a well affirmed process but has left many consequences.In the article we will try to explain in which way the šarî'a, being a religious law, is completely controlled by the usage given to it by the State through the supremacy of the Constitution, its means, institutions (...) and actors. It is therefore a question of the level of its integration into « the law » of various countries with the emphasis on the necessity of change of perspective, where the "secularisation of Islamic law" should rather be regarded as "islamisation of the Positive law", at least when referring to Family law and, above all, when dealing with specific political conditions. (shrink)

In 1946, the French constitution made colonial subjects in Africa into citizens. Having been content to rule ‘tribes’ via their ‘chiefs’, at that point it had to track individuals entitled to vote and receive social benefits. The new citizens retained their personal status — regulating marriage, filiation, and inheritance — under Islamic law or local ‘customs’ rather than through the civil code. That posed a dilemma for French officials, for the état-civil did not just record life events, but symbolized (...) the integration of all into a single body of citizens. French officials and legislators — including African representatives — could not agree on whether the multiple status regimes necessitated two états-civils or one. In the end, officials were too torn between their recognition of difference among peoples under French rule and their desire for singularity to put in place a consistent policy of identification, registration, and surveillance. They bequeathed the problem to their successors. (shrink)

Ex interiore ipso exeas. Preface. This book reconstructs the history of a still open dialectics between several ethoi, that is, shared codes of unwritten rules, moral traditions, or self-aware attempts at reforming such codes, and ethical theories discussing the nature and justification of such codes and doctrines. Its main claim is that this history neither amounts to a triumphal march of reason dispelling the mist of myth and bigotry nor to some other one-way process heading to some pre-established goal, but (...) instead to a chain of controversies where the partners’ will to win unintentionally yields a wealth of insights on human existence that has still something to teach us. -/- 1. The Hellenic moral tradition. -/- Two different traditions of morality in vi-v century Greece are described. The birth of philosophical questioning of traditional morality and temporal and spatial variation of custom is described within the context of the v century crisis, the demise of traditional aristocratic and tyrannical rule and the birth of democracy. Two conflicting answers to the challenge are reconstructed, namely conventionalist or immoralist theories formulated by the Sophists and the eudemonist and intellectualist Socratic theory. -/- 2. Plato and the Good. -/- Plato’s own reformulation of Socrates rejoinder to the Sophists is reconstructed. His psychological views, his classification of the four cardinal virtues and his political theory are described as parts of a unitary system, culminating in an extremely realist moral ontology identifying the idea of the good with the essence of the (moral and extra-moral) world itself. -/- 3. Aristotle and practical philosophy. -/- Aristotle’s invention of practical philosophy as a field separated from first philosophy is shown to be an implication of his break with Plato moral ultra-realism. Aristotle’s agenda in his moral works is arguably dependent on a polemical intention, namely dismantling Socratic intellectualism. The semi-inductive or virtuously circular method of practical philosophy is illustrated, starting with the received opinions of the better and wiser individuals and trying dialectically to sift what is left of mistake and inconsistency in such opinions, finally trying to correct mistakes and make the overall practical science more consistent. The relationship of individual ethics, or ‘monastics’, with the art and the science of the pater families, or ‘economics’, and the science of the ruler and citizen, or politics, is illustrated. The nature of virtues, or better, excellences of character, is discussed, highlighting the basic role of hexes, or ‘dispositions’. Prudence, or better, practical wisdom, is the focus of the chapter. Its relationship with boùleusis or deliberation is discussed, and its autonomous status vis-à-vis theoretical knowledge is stressed. -/- 4. Cynics and Stoics: ethics as therapy. -/- The chapter provides an overview of Hellenistic ethics, which almost amounts to Hellenistic schools of philosophy, in so far as ‘philosophy’ became in these centuries primarily the name for a way of life. The typical character of the Cynical movement is highlighted, that of a school of life, not a school aimed at providing any kind of intellectual training was to be provided. The various phases of Stoicism are described, and the shifting place that was given to ethics in the Stoic system of idea, culminating in the paradoxical view of ethics, its impossibility in principle notwithstanding, as the only truly significant and necessary part of philosophy. The peculiar character of the Epicurean school is described, a combination of the science of well-being aiming, more than pleasure understood as in the popular view, the reduction of useless suffering, of unnecessary needs, and at a balanced selection of pleasures of the best and most durable kind. -/- 5. Roman and Imperial Moralists. -/- The chapter is dedicated to the reconstruction of a particular kind of literature, whose specific features have long been under-stressed, namely the Roman and Imperial moral literature. Cicero is treated at some length, showing how his own synthesis of various Hellenistic trends is as a truly philosophical enterprise, deserving serious consideration after one or two centuries when he was confined to the role of literate. Epictetus is given pride of place, stressing the novelty of his approach to ethics as cognitive therapy, in this case just following an already existing new wave of interest after nineteenth-century oblivion justified by alleged lack of authentic ‘philosophical’ character. -/- 6. The Hebrew moral tradition. -/- A reconstruction of basic ideas from a few books of the Hebrew Bible is provided, starting with the Prophetic tradition and the focus on God’s mercy as the source of motivation and standard for human behaviour. Then a comparative analysis is undertaken of a parallel tradition, namely the three codifications of the Torah (Law or, better, Instruction), highlighting how a core of moral ideas may be recognized as a basis and preamble of codification of civil law, cultural practice, and regulation of ritual purity. The importance of Levitic is stressed as the turning point when the stress on mercy, typical of the Prophetic tradition, starts being combined with legal tradition yielding the change in the sensibility of the Second Temple time. -/- 7. Second Temple Judaism. -/- This chapter describes the Long March leading from the post-exile Zadokite restoration to the first-century aevi vulgaris. The first topic reconstructed is the Zadokite theology of the double retribution. The second is the alternative Enochic tradition consistently rejecting the central role of the Temple, the Priesthood and worship as atonement for sins and offering as an alternative God’s unlimited mercy and preaching mercy, not sacrifice as the way of behaving requested by God. Wisdom literature, the third subject discusses, is a kind of third way, on the one hand increasingly critical towards the double retribution and ruling theology’s optimism facing the world as it is and on the other mocking at the Enochic current as a band of dreamers and visionaries. The third way consists in disenchantment facing the word as it is combined with a refusal of vain and childish hope of prizes for the righteous, suggesting instead the leading idea of right deeds for righteousness’s sake. Rabbi Hillel, Rabbi Yeshua and Philo of Alexandria are described as the three leading figures at the culminating point of such process of emergence of a new sensibility, gradually including mercy as an essential part of justice and establishing the starting point of both the Rabbinic and the Christian tradition. This starting point consists precisely in the precept of one’s neighbour’s love or of the golden rule, whose meaning is, arguably, more consistent than a long-lasting Christian tradition deriving from John and Augustine made us believe. And Christian morality, vis-à-vis allegedly legalist ‘Ancient Testament’ teachings, is less of a novelty than most early Christian writers announced. -/- 8. Talmudic moral doctrines and proto-Christian paraenesis. -/- The first three sections examine the moral doctrines of so-called 'ethical Treaties' from the Talmud, a group of treaties, among which the best known is Pirke Avot, that were left out of the six "orders" of the canon as they did not fit in any of the six groups of issues ritual or legal on which the division was based. According to Maimonides, their peculiar theme is provided by the Deot, 'opinions', i.e., mental dispositions, that is, the translation of the Greek term hexes and Arab akhlak (in turn providing in this language the name for ethics as such). The three topics I reconstruct are: i) the notion of Torah: The Torah is understood as the world order itself, or as the ‘Wisdom’ that existed even before creation and was "the tool by which the world was built"; however, the Torah is an earthly and human entity, as it was "received" by humans, and from that very moment belongs to them; ii) the relationship between love of God and love of neighbour; the treaties require us to study and practice the Torah ‘for its own sake’, that is, require us to act out of love, not out of fear or hope of reward; iii) the idea of sanctification of daily life: having disappeared with the destruction of the Temple the possibility of any conflict between liturgical service and everyday life, the latter is assumed to be in itself divine service: to give food to the poor has the same value as sacrifices in the Temple, and as an implication, the insistence become recurrent on the goodness of created things in themselves along with a polemic against ascetic currents. The conclusions drawn are: i) the moral teachings of the Talmud and those of Yeshua are, rather than similar, virtually identical; one may safely say that the precept of love and the golden rule are central ones for all Talmudic rabbis, that mercy plays an indispensable role alongside with justice, and the latter is not a different thing from one’s neighbour’s love; ii) a peculiarity of Talmud rabbis facing Yeshua is the idea of study as worship, and knowledge as a source of justice; but this is an idea of Judaism after the Temple's destruction that cannot be attributed to the Pharisees of Yeshua’s time; iii) the relation of study and practice in the Talmud parallels that between faith and deeds in Paul's epistles, that is, respectively faith or learning are a necessary and sufficient condition to be recognized as righteous, but deeds are the inevitable effect of either faith or learning. The last two sections examine first the various Christian currents and then Gnostic para-Christian or non-Christian currents as well as Manicheism. The sayings ascribed to Yeshua are examined first, yielding the conclusion that a close equivalent may be found for every saying in Talmudic literature and yet the whole is ascribed to one rabbi, with rather consistent stress on God’s mercy and unconditional forgiving as the mark of true imitation of God. Thus, Yeshua’s teaching is pure, purest Judaism. The last section describes briefly the galaxy of Gnostic currents and Manicheism, trying to sketch the profile of moral teachings resulting from an encounter of Asian spiritual traditions, Hellenistic lore and sparks of teachings from apocalyptic Jewish currents. -/- 9. Christianity as “philosophy”. -/- The chapter reconstructs the stormy story of several encounters between Christian currents and Hellenistic philosophical schools. The first one was with late Cynicism. Recent, rather controversial, literature discovered the jargon and several rhetorical topics from the Stoic and Cynical popular philosophy in a few books from the New Testament itself. This, far from proving that Rabbi Yeshua himself had been influenced by cynical preachers, is a proof of the necessity to translate the original Christian message in a Greek lexicon deeply impregnated with cynic terminology. The second was with Platonism, yielding the mild and temperate moral teaching of Clemens of Alexandria, teaching the sanctity of nature and the human body, the joy of moderate fruition of ‘natural’ kinds of pleasures, and the beauty of the marital life – in short, the opposite of the standard picture of Medieval Christianity. Ambrose of Milan brings about a different kind of synthesis, namely with Middle Platonism, where Stoic themes prevail. The most shocking case is Augustine, where early Manichean education is overcome in a former phase by a synthesis of Plotinian Neo-Platonism and Christian preaching, yielding a sustained polemic with the Manicheans and rather optimistic views on life and Creation, the body and sexuality, and Hebrew-Judaic tradition not far from Clemens of Alexandria. In a later phase, occasioned by controversy on the opposite front, with such Christian currents as the Pelagians and Donatists, Augustine comes back to heavily anti-Judaic and world-denying ascetic attitudes where is earlier Manichean upbringing seems to emerge again. The tragedy of medieval Christianity will be the later Augustine’s overwhelming influence. A final section is dedicated to the monastic tradition where a curious mixture of world-denying asceticism with an astonishingly penetrating ‘science’ of introspection emerges. -/- 10. Ethics in the Arabic-Islamic Philosophy. -/- The Qurān and the qadit, that is, collections of sayings ascribed to the prophet Muhammad contain a wealth of precepts and catalogues of virtues mirroring moral contents from the Jewish and the Christian traditions, among them the basic notion of imitation of the Deity, where mercy is assumed to be its basic trait. An important tradition within Islam, namely Sufism, stressed to the utmost degree the role of mercy, turning Islam into a mystic doctrine centred on the retreat from the world, abandonment to God’s will, and a peaceful and fraternal attitude to our fellow-beings. A secular literary tradition originating in the Sassanid Empire, the literature of advice to the Prince, had for a time a widespread influence in the newly constituted Arabic-Islamic commonwealth. In a later phase, the legacy of Hellenic philosophy made its way into the intellectual elite of the Islamic world. The first important legacy was Platonic, and the Republic became the main text for Islamic Platonism. In a second phase also Aristotelian and Stoic influence were assimilated. Miskawayh’s treatise was the masterwork at the time Arabic philosophy reached its Zenith. It is a treatment of the soul’s diseases and their remedies, combining the Aristotelian doctrine of the golden mean with the Stoic doctrine of the passions and elements of Galenic medicine. Towards the eleventh-twelve centuries, a war raged among theologians and philosophers, finally won by the former with the disappearance of philosophy as such. The newly established mainstream, yet, was no kind of intolerant fanaticism. It drew from the work of mystic theologian Al-Ghazālī, the best heir of Sufism, teaching a tolerant and peaceful attitude to our fellow-beings and a passive attitude to destiny as an expression of the Divine will. -/- 11. Ethics in the Jewish philosophy. -/- The encounter between the Talmudic tradition and Hellenic philosophy had taken place for the first time in Alexandria at the time of Philo but the two traditions had parted way again. In fact, the kind of Platonic Judaism founded by Philo survived only within Christianity, in the fourth Gospel and then in writings by Clemens of Alexandria. The Talmudic literature had absorbed too a few traits from the Hellenic Philosophy, namely an idea of ethics as care of the self and a role for the education of character as propaedeutic to theoretical knowledge. In the Arabic-Islamic world, a second round started when Jewish authors writing in Arabic undertook the task to prove the full compatibility of the tradition deriving from Tora and Platonic philosophy. The culmination of this attempt is provided by Moshe ben Maimon who tried to use Aristotelian ethics as a language into which the teaching from the Pirke Avot could be translated. -/- 12. The practical philosophy revival in Latin Europe. -/- A reconstruction is carried out of a fresh start of philosophical ethics in Latin Europe at the turn of the Millennium rescuing a Platonic and Augustinian legacy, with Anselm and Peter Abelard. In this phase remarkable innovations are introduced, including Abelard’s claim of the obliging character of erring consciousness. In a second phase, the rediscovery of Nicomachean Ethics thanks to Latin translation of Arabic versions, gives birth to a new wave of ethical studies, recovering the very idea of Aristotelian practical philosophy, with the potential implication of a full legitimization of natural morality, i.e. ethics without Revelation. -/- 13. Scholastic practical philosophy: Thomas Aquinas. -/- Aquinas’s ethics is theological ethics out of which it would be vain to try to extract self-contained philosophical ethics. His treatment of topics in philosophical ethics, yet, does not boil down to the repetition of Aristotelian arguments but is rather a creative reshaping of such arguments. For example, he introduces also in the practical philosophy a first principle parallel to the principle of non-contradiction; and he also carries out a synthesis of Aristotelianism, Stoicism, neo-Platonism. Even though it is essentially moral theology, Aquinas’s doctrine - unlike Augustine – grants full citizenship to "natural" morality, firstly by rejecting the claim that the corruption of human nature due to the original sin is so radical as to leave pure nature incapable of moral goodness. The doctrine is presented in a more sophisticated formulation in a few of the Quaestiones such as De Malo and De Veritate, in the Summa contra Gentes and in the commentaries to Aristotle than in the famous Summa Theologica, but the latter work includes the only or the largest exposition of some decisive part of the theory. Thus, the Summa Theologica should be read for what it is more than criticized for not being what it was not meant to be. It was not meant to be the brilliant synthesis of all that Reason he had been able to produce with what Revelation had added about which the Neo-Thomists used to dream, but rather a manual for the training of preachers and confessors, where theoretical claims are not too ambitious, and a few serious tensions are left. Besides a jump between the Prima Secundae and the Secunda Secundae, being the former an essay in virtue theory and the latter a handbook for confessors, the most serious tension is perhaps the one between the ethics of right reason presented in most of Prima Secundae and the eudemonistic ethics developed in quaestiones 1-5 of the same part; the alternative ethical theory which also may be found in Augustine, the Stoic view of a cosmic reason eventually coincident with the moral law, was believed by Anselm (followed by John Duns Scotus and William of Ockham) to be incompatible with eudemonism. It is questionable whether Thomas was able to solve the tension proving that it is just an apparent tension, in so far as the right reason and bliss derived from the knowledge of God tend to coincide, but this is just a conjecture. Thomas’s ethics is a virtue ethics, not a law-based one, and moral judgment focuses on the virtues, particularly charity, not on the commandments and even less on absolute prohibitions; Thomas, however, would not have considered a drastic alternative between law and the virtues such as the one which has been advanced in late twentieth-century philosophy to be justified. Nonetheless, when it discusses ‘special’ virtues, it ceases to be an ethics of virtue and becomes a disappointing and often contradictory discussion of legal and illegal acts. Such a discussion takes most of the time ‘reasonable’ middle positions on controversial issues but not the alternative approach that Aristotelianism would have made possible; even when some occasional Aristotelian claim shows up, such as money’s barrenness as a reason against usury, this seems to be made by an author who apparently ignores the Aristotelian Thomas of the Prima Secundae. It is an ethic of human autonomy which recognizes the binding character of the individual conscience and, potentially, even a duty to disobey unjust laws. It is true that what Thomas writes in his discussion of the death penalty and persecution of heretics is simply disgusting, and yet we should blame Thomas the man, not the Thomist ethical theory. Finally, Thomas’s ethics is no way an ethical ‘absolutism’, as both the traditionalist Catholic theologians and secularists tend to believe, but rather an ethic of prudential judgment on the individual case. Exceptions to this approach – or better the result of logical fallacies – are provided by the thesis of the absolute character of negative precepts and of the existence of so-called intrinsically evil acts, a thesis that would simply cease to make sense in the light of Thomas’s own distinction between human act and natural act, carrying consequences that Thomas did not live long enough to draw. -/- 14. Scholastic practical philosophy: John Duns Scotus and William of Ockham. A reconstruction is carried out of the ethical doctrines by both most authoritative Franciscan doctors. Their continuity with Aquinas is vindicated against prejudice carried by centuries of polemics within the Catholic Church and tendentious disparaging of both as forerunners of execrable Reformation. Besides aspects of continuity, also the important novelties are illustrated, first John’s abandonment of Aquinas’s and Augustine’s eudemonism, asserting righteousness for righteousness’s sake, and then William’s explicit defence of the philosopher’s virtues, that is, natural morality, and his solution to the dilemma of God’s omnipotence and the universal validity of natural law extending to God himself. -/- 15. Aristotelianism interpreted by the Magistri Artium. -/- A reconstruction of the until recently forgotten ethical doctrines by the Parisian Magistri Artium, falsely depicted as ‘Averroists’ and either deprecated as heretics or mistaken for predecessors of modern secularism. In fact, they illustrate a view of ‘natural’ virtue as may be understood by human reason without the assistance by Revelation. -/- Etiamsi daremus Deum non esse. Intermediate considerations. Three considerations may be suggested by the story told in the book. The first one is that intellectual histories have been mounted in the past with the same state of mind as one may mount a war chariot. Such constructions are not very helpful as tools for understanding the past. Wars waged in the past have left the field obstructed by ruins not easy to remove even by those historians who have animated by an impartial academic motivation. They have been influenced too by consequences of past emphasis on some authors and damnatio capitis suffered by others, by stratifications left on sources by secondary literature and translations, by allotment of originally close sources to different literary genres, by the monopolization of religious texts by churches with full cooperation by secular scholars who still fear contamination. The second one is that aware or unaware ethnocentrism has carried various calamities to our comprehension of the past. Their last vestiges have surfaced again in the semi-scholarly discussion on the idea of Europe occasioned by the debate on a project of a European Constitution. Mention of Europe’s Christian roots has been the clumsiest move. Proclamations of such roots were so obvious in what they affirmed as they were totally off-path concerning what they omitted, namely that he modern European moral tradition included legacies from Middle-Eastern wisdom, Hellenic philosophy, Roman Imperial legal literature, and, besides, a Jewish legacy in turn incorporating other more ancient Middle-Eastern legacies and which has been partly conveyed by Christianity. And the Islamic-Arabic philosophy too, in so far it made the Nicomachean Ethics available to Latin Christian scholars, is one more of Europe’s roots. The third is that religious traditionalists and secularist fundamentalists have gone hand in hand for a couple of centuries in either extolling or deprecating the allegedly Modern idea of Ethics without God, first formulated by Hugo Grotius with the claim that natural law would still be valid ‘etiamsi daremus – quod sine summo scelere dari potest – Deum non esse’. The facts are, firstly, that this is not an irreligious claim and Grotius was just a pious and meek Christian and, secondly, that it is not a ‘modern’ claim but rather one more formulation of the claim that there is a natural morality, independent of divine revelation, a claim shared by Moshe ben Maimon, Aquinas and William of Ockham. -/- . (shrink)

Muwāsāt encompasses the moral duty to provide aid to those in need, prioritising those closest to us while sharing what resources we can spare. However, should a person's legally protected values be at risk, assistance and solidarity become mandatory obligations. Islamic law recognises this social duty as fard al-kifāya, with muwāsāt as the justification for this sufficient obligation. On the other hand, muwāsāt is also included in the legal justification of in-kind obligations such as zakat and alimony. Muwāsāt actually (...) has a broad conceptual content that includes each individual in the society helping each other, sharing, and sharing what they have when necessary. The aim of muwāsāt is to keep social sensitivity towards those in need alive. Muwāsāt constitutes the wisdom of meeting the needs of the other party by sharing the resources available to each individual in the society when the legal values that Islam aims to protect are in danger. In this context, this study aims to evaluate the rights of those in need over those who have the means to meet their needs by considering the proposal in the context of the provisions. To prioritize the legal values of Islam and safeguard the sanctity of life, as well as protect bodily integrity and uphold the right to privacy, the principle of muwāsāt necessitates that all Muslims must uphold these responsibilities towards themselves, each other and the state. This study aims to investigate muwāsāt, which defines the duty to provide assistance to any individual who is cognisant of their plight, within their capacity, when their legal rights that must be safeguarded are threatened, in the framework of social accountability. In this context, it can be said that muwāsāt has a direct connection with the proposed obligations in Islamic law. Muwāsāt is included in the justification of fard al-kifāya obligations. However, the fact that the obligation of zakat, the obligation of fidya, and the responsibility of alimony are included in the legal justification of meeting the needs of the needy by those who are not dependent on anyone, shows us that muwāsāt is the basis of obligations involving cooperation. Similarly, the legal reason for banning interest is that it destroys the balance in society. In particular, the basis for the state to impose an upper limit on exorbitant prices is based on the principle that every individual has an equal right to meet basic needs. In other words, determining the profit margin in the prices of basic needs is a requirement of muwāsāt. The definition of the state’s obligation, along with individual responsibility in muwāsāt, aims to ensure that there is no individual in society whose basic needs are not met. Consequently, muwāsāt has an aspect that includes social responsibility and legal liability along with conscientious responsibility. This shows that Islam adopts the protection of life as the highest legal value. Muwāsāt is not limited to meeting basic needs, but also includes giving this support to a person when he needs moral support, sharing his pain by standing next to him, feeling him and internalizing his pain. For this reason, muwāsāt actually defines the moral stance that a Muslim should have. Based on this moral stance, it is safe to say that the most fundamental concern of Islam is to protect the material and spiritual integrity and human existence. This study aims to express, in the context of Islamic law, that the main purpose of Islam is to protect human beings in their material and spiritual integrity by examining and evaluating muwāsāt in its broad scope. (shrink)

The book reconstructs the history of Western ethics. The approach chosen focuses the endless dialectic of moral codes, or different kinds of ethos, moral doctrines that are preached in order to bring about a reform of existing ethos, and ethical theories that have taken shape in the context of controversies about the ethos and moral doctrines as means of justifying or reforming moral doctrines. Such dialectic is what is meant here by the phrase ‘moral traditions’, taken as a name for (...) threads of moral discourse, made in turn of other interwoven threads, including transmission of shared codes, appeals to reform of prevailing custom, rational argument about the justification of some precept on the basis of some shared general teaching or principle, and rational argument about the ultimate basis for principles and justification of authoritative teaching. That is, the approach adopted to the reading of ethical texts depends on a firm belief in the fact that philosophers hardly created any ethical doctrine out of nothing. The main point this book tries to highlight is how different philosophical theories emerged and followed each other as a result of attempts at accounting for what was going on in the world of moral traditions. Changes were propelled by controversies between different schools, and highly abstract arguments were the unintended effects of moves made by controversialists forced to transform (and occasionally to turn upside down) their own doctrines in order to face the challenge posed by other arguments. This is the reason why the book examines not only texts that already enjoy pride of place in the history of philosophy (Aristotle, Kant, Hegel), but also other texts usually treated in the histories of religions (the Bible, the Talmud, the Quran), and others considered to be much less philosophical (Plutarchus, Pufendorf). -/- 1. Plato and a response to ethical scepticism. Two different traditions of morality in VI-V century Greece are described. The birth of philosophical questioning of traditional morality and temporal and spatial variation of custom is described within the context of the v century crisis, the demise of traditional aristocratic and tyrannical rule and the birth of democracy. Two conflicting answers to the challenge are reconstructed, namely conventionalist or immoralist theories formulated by the Sophists and the eudemonist and intellectualist Socratic theory. Plato’s own reformulation of Socrates answer to the Sophists is reconstructed. His psychological views, his classification of the four cardinal virtues and his political theory are described as parts of a unitary system, culminating in an extremely realist moral ontology identifying the idea of the good with the essence of the (moral and extra-moral) world itself. -/- 2. Aristotle and the invention of practical philosophy. Aristotle’s invention of practical philosophy as a field separated from first philosophy is shown to be an implication of his break with Plato moral ultra-realism. Aristotle’s agenda in his moral works is arguably dependent on a polemical intention, namely dismantling Socratic intellectualism. The semi-inductive or virtuously circular method of practical philosophy is illustrated, starting with the received opinions of the better and wiser individuals and trying dialectically to sift what is left of mistake and inconsistence in such opinions, finally trying to correct mistakes and make the overall practical science more consistent. The chapter illustrates then the relationship of individual ethics, or ‘monastics’, with the art and the science of the pater familias, or ‘economics’, and the science of the ruler and citizen, or politics. The nature of virtues, or better, excellences of character, is discussed, highlighting the basic role of hexis, or ‘disposition’. Prudence, or better practical wisdom, is the focus of the chapter. Its relationship with bouleusis or deliberation is examined, and its autonomous status vis-à-vis theoretical knowledge is stressed. -/- 3. Diogenes and philosophy as a way of life. The chapter provides an overview of Hellenistic ethics, which almost amounts to Hellenistic schools of philosophy, in so far as ‘philosophy’ became in these centuries primarily the name for a way of life. The typical character of the Cynical movement is highlighted, that of a school of life, not a school aimed at providing any kind of intellectual training was to be provided. -/- 4. Epicurus and ethics as self-care. The peculiar character of the Epicurean school is described, a combination of a science of well-being aiming, more than at pleasure as in the popular view, at reduction of useless suffering, of unnecessary needs, and at a balanced selection of pleasures of the best and most durable kind. -/- 5. Epictetus and ethics as therapy of the passions. The various phases of Stoicism are described, and the shifting place given to ethics in the Stoic system of idea, culminating in the paradoxical view of ethics, its impossibility in principle notwithstanding, as the only truly significant and necessary part of philosophy. Cicero is treated, showing how his own synthesis of various Hellenistic trends is as a truly philosophical enterprise, deserving serious consideration after one or two centuries when he was confined to the role of literate. Epictetus is chosen as the best example of what the Stoic tradition could yield, an art of living based on sophisticated introspection, in turn aimed at making a kind of cognitive therapy possible, dismantling obnoxious passions at their root by systematically correcting false representations. -/- 6. Philo and the reconciliation of Torah and Platonism. A reconstruction of basic ideas from a few books of the Hebrew Bible is provided, starting with the Prophetic tradition and the focus on God’s mercy as the source of motivation and standard for human behaviour. Then a comparative analysis is undertaken of a parallel tradition, namely the three codifications of the Torā (Law or, better, Instruction), highlighting how a core of moral ideas may be recognized as a basis and preamble of codification of civil law, cultural practice, and regulation of ritual purity. The importance of Leviticus is stressed as the turning point when emphasis mercy, typical of the Prophetic tradition, is combined with the legal tradition, yielding the change in sensibility of the Second Temple time. Philo of Alexandria is described as one of the three leading figures – together with Rabbi Hillel and Rabbi Yeshua – at the apex the emergence of the mentioned new sensibility, gradually including mercy as an essential part of justice and establishing the starting point of both the Rabbinic and the Christian tradition. This consists precisely in the precept of one’s neighbour’s love or of the golden rule, two eventually identical precepts whose meaning is arguably more sober and sensible than the long-lasting Christian tradition deriving from John and Augustine has made us believe and no novelty vis-à-vis so-called Ancient-Testament teachings. -/- 7. Augustine and Christianity as Neo-Platonism. The first section examines the moral doctrines of so-called 'ethical Treaties' from the Talmud, a group of treaties, among which the best known is Pirqé Avot, that were left out of the six "orders" of the canon as they did not fit in any of the six groups of issues ritual or legal on which the division was based. According to Maimonides, their peculiar theme is provided by the Deòt, 'opinions', i.e., mental dispositions, that is, the translation of the Greek term hexeis and Arab akhlak (in turn providing in this language the name for ethics as such). The three topics I reconstruct are: i) the notion of Torah: The Torah is understood as the world order itself, or as the ‘Wisdom’ that existed even before creation and was ‘the tool by which the world was built’; however, the Torah is an earthly and human entity, as it was "received" by humans, and from that very moment belongs to them; ii) the relationship between love of God and love of neighbour; the treaties require us to study and practice the Torah ‘for its own sake’, that is, require us to act out of love, not out of fear or hope of reward; iii) the idea of sanctification of daily life: having disappeared with the destruction of the Temple the possibility of any conflict between liturgical service and everyday life, the latter is assumed to be in itself divine service: to give food to the poor has the same value as sacrifices in the Temple, and as an implication, the insistence become recurrent on the goodness of created things in themselves along with a polemic against ascetic currents. The conclusions drawn are: i) the moral teachings of the Talmud and those of Yeshua are, rather than similar, virtually identical; one may safely say that the precept of love and the golden rule are central ones for all Talmudic rabbis, that mercy plays an indispensable role alongside with justice, and the latter is not a different thing from one’s neighbour’s love; ii) a peculiarity of Talmud rabbis facing Yeshua is the idea of study as worship, and knowledge as a source of justice; but this is an idea of Judaism after the Temple's destruction that cannot be attributed to the Pharisees of Yeshua’s time; iii) the relation of study and practice in the Talmud parallels that between faith and deeds in Paul's epistles, that is, respectively faith or learning are a necessary and sufficient condition to be recognized as righteous , but deeds are the inevitable effect of either faith or learning. The sayings ascribed to Yeshua are examined first, yielding the conclusion that a close equivalent may be found for every saying in Talmudic literature and yet the whole is ascribed to one rabbi, with rather consistent stress on God’s mercy and unconditional forgiving as the mark of true imitation of God. Thus, Yeshua’s teaching is pure Judaism. The third section describes briefly the galaxy of Gnostic currents and Manichaeism, trying to sketch the profile of moral teachings resulting from an encounter of Asian spiritual traditions, Hellenistic lore and sparks of teachings from apocalyptic Jewish currents. The last section summarizes the turbulent history of several encounters between Christian currents and Hellenistic philosophical schools. The first one was with late Cynicism. Recent, rather controversial, literature discovered the jargon and a few topics from the Stoic-Cynical popular philosophy in a few books from the New Testament itself. This, far from proving that Rabbi Yeshua had been influenced by cynic preachers, is a proof of the necessity felt by Christian preachers to translate the original ‘Christian’ teaching into a Greek lexicon deeply impregnated with cynic terminology. The second was with Platonism, yielding the mild and temperate moral teaching of Clemens of Alexandria, teaching the sanctity of nature and the human body, the joy of moderate fruition of ‘natural’ kinds of pleasures, and the beauty of the marital life – in short, the opposite of the standard picture of Medieval Christianity. Ambrose of Milan brings about a different kind of synthesis, namely with Middle Platonism, where Stoic themes prevail. The most shocking case is Augustine, where an early Manichean education is overcome in a former phase by a synthesis of Plotinian Neo-Platonism and Christian preaching, yielding a sustained polemic with the Manicheans and rather optimistic views on life and Creation, the body and sexuality, and Hebrew-Judaic tradition not far from Clemens of Alexandria. In a later phase, occasioned by controversy on the opposite front, with such Christian currents as the Pelagians and Donatists, Augustine comes back to heavily anti-Judaic and world-denying ascetic attitudes where is earlier Manichean upbringing seems to emerge again. The tragedy of medieval Christianity will be the later Augustine’s overwhelming influence. A final section is dedicated to the monastic tradition where a curious mixture of world-denying asceticism with an astonishingly penetrating ‘science’ of introspection emerges. -/- 8. Al Farabi and the reconciliation of Islam and Platonism. The Qurān and the qadit, that is, collections of sayings ascribed to the prophet Muhammad contain a wealth of precepts and catalogues of virtues mirroring moral contents from the Jewish and the Christian traditions, among them the basic notion of imitation of the Deity, where mercy is assumed to be its basic trait. An important tradition within Islam, namely Sufism, stressed to the utmost degree the role of mercy, turning Islam into a mystic doctrine centred on retreat from the world, abandonment to God’s will, and a peaceful and fraternal attitude to our fellow-beings. A secular literary tradition originating in the Sassanid Empire, the literature of advice to the Prince had for a time a widespread influence in the newly constituted Arabic-Islamic commonwealth. In a later phase, the legacy of Hellenic philosophy made its way into the intellectual elite of the Islamic world. The first important legacy was Platonic, and the Republic became the main text for Islamic Platonism. Al-Farabi wrote an enjoyable remake of the Platonic Republic, arguing that the citizen’s virtues were the basis on which the political building needs to rest. The secular lawgiver is enlightened by the light of reason in his everyday practice of governance, but room is made for the Prophet as the voice of revealed truth that confirms and completes the rational truth that philosophy may afford. In a second phase also Aristotelian and Stoic influence were assimilated. Miskawayh’s treatise was the masterwork at the time Arabic philosophy reached its Zenith. It is a treatment of the soul’s diseases and their remedies, combining the Aristotelian doctrine of the golden mean with the Stoic doctrine of the passions and elements of Galenic medicine. Towards the eleventh-twelve centuries a war raged among theologians and philosophers, finally won by the former with disappearance of philosophy as such. The newly established mainstream, yet, was no kind of intolerant fanaticism. It drew from the work of mystic theologian Al-Ghazālī, the best heir of Sufism, teaching a tolerant and peaceful attitude to our fellow-beings and a passive attitude to destiny as an expression of the Divine will. -/- 9. Moshe ben Maimon and the reconciliation of Torah and Aristotelian ethics. The encounter between the Talmudic tradition and Hellenic philosophy had taken place a first time in Alexandria at the time of Philo but the two traditions had parted way again. In fact, the kind of Platonic Judaism founded by Philo survived only within Christianity, in the fourth Gospel and then in writings by Clemens of Alexandria. The Talmudic literature had absorbed just less striking traits from the Hellenic Philosophy, namely an idea of ethics as care of the self and a role for the education of character as propaedeutic to theoretical knowledge. In the Arabic-Islamic world, a second round started when Jewish authors writing in Arabic undertook the task to prove the full compatibility of the tradition deriving from Torah and Platonic philosophy. The culmination of this attempt is provided by Moshe ben Maimon who tried to use Aristotelian ethics as a language into which the teaching from the Pirké Avot could be translated. -/- 10. Thomas Aquinas and the reconciliation of Christian morality and Aristotelian ethics. In the first section the fresh start is described of philosophical ethics in Latin Europe at the turn of the Millennium. In a first phase, Anselm and Peter Abelard built on a Platonic and Augustinian legacy. In this phase. remarkable innovations are introduced, including Abelard’s claim of the obliging character of erring consciousness. In a second phase, the rediscovery of Nicomachean Ethics thanks to Latin translation of Arabic versions gives birth to a new wave of ethical studies, recovering the very idea of Aristotelian practical philosophy, with the potential implication of full legitimization of natural morality, i.e. ethics without Revelation. Aquinas’s ethics is a theological ethics out of which it would be vain to try to extract a self-contained philosophical ethics. His treatment of topics in philosophical ethics, yet, does not boil down to repetition of Aristotelian arguments but is rather a creative reshaping of such arguments. For example, he introduces also in the practical philosophy a first principle parallel to the principle of non-contradiction; and he also carries out a synthesis of Aristotelianism, Stoicism, and neo-Platonism. Even though it is essentially moral theology, Aquinas’s doctrine - unlike Augustine – grants full citizenship to "natural" morality, firstly by rejecting the claim that the corruption of human nature due to the original sin is so radical as to leave "pure nature" incapable of moral goodness. The doctrine is presented in a more sophisticated formulation in a few of the Quaestiones, such as De Malo and De Veritate, in the Summa contra Gentes and in the commentaries to Aristotle than in the famous Summa Theologica, but the latter work includes the only or the largest exposition of some decisive part of the theory. Thus, the Summa Theologica should be read for what it is more than criticized for not being what it was not meant to be. It was not meant to be the brilliant synthesis of all that Reason he had been able to produce with what Revelation had added about which the Neo-Thomists used to dream, but rather a manual for the training of preachers and confessors, where theoretical claims are not too demanding and a few serious tensions are left. Besides a jump between the Prima Secundae and the Secunda Secundae, being the former an essay in virtue theory and the latter a handbook for confessors, the most serious tension is perhaps the one between the ethics of right reason presented in most of Ia-IIae and the eudemonistic ethics developed in quaestiones 1-5 of the same part; the alternative ethical theory which also may be found in Augustine, the Stoic view of a cosmic reason eventually coincident with the moral law, was believed by Anselm (followed by John Duns Scotus and William of Ockham) to be incompatible with eudemonism. It is questionable whether Thomas could reduce the tension proving that it is just an apparent tension, in so far as the right reason and bliss derived from knowledge of God tend to coincide, but this is just a conjecture. Thomas’s ethics is a virtue ethic, not a law-based one, and moral judgment focuses on the virtues, particularly charity, not on the commandments and even less on absolute prohibitions; Thomas, however, would not have considered a drastic alternative between law and the virtues such as the one which has been advanced in late twentieth-century philosophy to be justified. Nonetheless, when it discusses ‘special’ virtues, it ceases to be an ethics of virtue and becomes a disappointing and often contradictory discussion of legal and illegal acts. Such a discussion takes most of the time ‘reasonable’ middle positions on controversial issues but not the alternative approach that Aristotelianism would have made possible; even when some occasional Aristotelian claim shows up, such as money’s barrenness as a reason against usury, this seems to be made by an author who apparently ignores the Aristotelian Thomas of the Prima Secundae. It is an ethic of human autonomy which recognizes the binding character of the individual conscience and, potentially, even a duty to disobey unjust laws. It is true that what Thomas writes in his discussion of death penalty and persecution of heretics is simply disgusting, and yet we should blame Thomas the man, not Thomist ethical theory. Finally, Thomas’s ethics is not ethical ‘absolutism’, as both traditionalist Catholic theologians and secularist enemies of dogmatic morality tend to believe. It is instead an ethic of prudential judgment. Exceptions to this approach – or better results of logical fallacies – are such claims as the absolute character of negative precepts and of the existence of "intrinsically evil acts", claims that simply cease to make sense in the light of Thomas’s own distinction between human act and natural act, carrying consequences Thomas did not live long enough to draw or was not consistent enough to dare to draw. -/- 11. Francisco de Vitoria and casuistry. The first topic illustrated is the discussion about the notion of pura natura, namely the human condition after the original sin and before divine revelation. The core notion was already there in Aquinas but was later developed by Caietanus (Thomas de Vio) with a number of interesting implications: firstly a view of human nature as such much more positive than Augustine’s and his followers’ view, including both Calvinists and Jansenists; secondly, the implication that the philosopher’s morality, as opposed to the Christian’s morality, is a quite respectable kind of morality; thirdly, that theocracy and prosecution of the unfaithful lacked justification, with more far-fetching consequences than Aquinas himself had dared to draw. The second topic is casuistry, a new name for a comparatively older way of thinking, which was already there in late Stoicism and Cicero as well as in the Talmudic literature. This is an approach aimed at yielding probable enough solutions for doubtful cases even in absence of completely safe staring points. The genre developed from medieval reference books for confessors and became by the sixteenth-century a sophisticated tool-box for dealing with various fields of applied ethics. Francisco Vitoria, the main authority of Baroque Scholasticism, was a controversial figure, among the proponents of the new discipline of casuistry and a consistent proponent of more separation between the religious and the civil authority, stricter limits to the legitimacy of war, innate rights of non-Christian nations in the New World based on the notion of pura natura, providing a standard of ‘natural’ goodness, previous to revelation, on which the Indian nations were judged to live in a naturally good condition, provided with the institutions of family, justice, and religion had accordingly a right to full respect by Christian sovereigns. Bartolomé de Las Casas, arguing along similar lines, was the leader of a historical battle in defence of the rights of the Indios. -/- 12. Michel de Montaigne and the art of living. A short description of one of the Renaissance Phyrronism, one of the classical philosophies revived in the fifteenth and sixteenth century. Montaigne combines the sceptical epistemology with an understanding of ethics – indeed of philosophy as a whole – in terms of an art of living inspired by two basic ideas, sagesse, that is, practical wisdom as the only kind of rationality available after theology, science, and tradition have declared bankrupt, and an aesthetic ideal of self-transformation through the art of writing and introspection. -/- 13. Pierre Nicole and neo-Augustinianism. The chapter illustrates first the vicissitudes of Augustinianism newly born after the late medieval triumph of Thomist Aristotelianism in the alternative Protestant and Catholic versions processed by the Calvinists and the Jansenists. Then it illustrates the doctrines of Pierre Nicole, Blaise Pascal’s best disciple, on the impossibility of introspection, on the ubiquity of self-deception, on the incurably evil character of the passion of love, and on the two moralities, the one of the man of the world, the morality of honesty which is indispensable for granting peace and order but devoid of any true value for eternal salvation, since the same external behaviour may be prompted by opposite motivations, and the morality of charity, the only true one but also useless to society. The third topic is Pierre Malebranche’s view of self-deception as a ubiquitous phenomenon accounting for human action and responsibility and his reformulated theory of self-love, no less ubiquitous than for Nicole and yet not as incurably evil, given the distinction between morally indifferent and even necessary amour de soi and vicious amour proper, a distinction on which the whole of Rousseau’s moral and political theory rests. -/- 14. Samuel von Pufendorf and the new science of morality. The chapter is dedicated to the discovery of the idea of a ‘new moral science’. Hugo Grotius is discussed first highlighting the real character of his project, much closer to the Thomist idea of a natural law accessible to non-corrupted human reason when human beings are living in a state of pura natura. Then Hobbes’s combination of scepticism, voluntarism, and conventionalism is described and both the continuity with Grotius’s new science, in the search for non-revealed rational morality, and the break with him, in the adoption of voluntarism and refusal of an intellectualist view of natural law, are illustrated. Pufendorf’s work is illustrated as a synthesis of the two previous attempts and the – up to Schneewind underestimated – paradigmatic example of the new science of morality. -/- 15. Richard Cumberland and consequentialist voluntarism. The chapter gives an overview of eighteenth-century Anglican ethics, noticing how the Cambridge tradition gave special weight to natural theology as opposed to positive or revealed theology – and how two Cambridge fellows, John Gay and Thomas Brown, elaborated on Cumberland’s (and Malebranche’s, as well as Leibniz’s) strategy for finding a third way between intellectualist view and voluntarist view of the laws of nature. The result of their elaboration was a kind of a rational-choice account of the origins of natural laws, where a law-giver God chooses among a number possible sets of laws on a maximizing criterion, and God’s maximandum is happiness for his creatures. The chapter notices also how such a solution aimed at solving at once the problem of evil and that of the foundation of moral obligation by proving how God’s choice was justified as far as it was the one minimising the amount of suffering in the world. 16. Richard Price and intuitionism. The chapter describes first the doctrines of the Cambridge Platonists, an example of hyper-rationalist reaction to Calvinism. Secondly it describes the sophisticated and universally ignored – from Sidgwick to Anscombe –version of what was later labelled ‘ethical intuitionism’ – showing how it escapes familiar objections and misrepresentations of intuitionism – from Mill to Rawls – in grounding its argument on transcendental arguments while carefully avoiding recourse to introspection and psychological evidence, which has been taken as a too easy target by critics of intuitionism. Thirdly, the chapter discusses Whewell’s ‘philosophy of morality’, as opposed to ‘systematic morality’, not unlike Kant’s distinction between a pure and an empirical moral philosophy. Whewell worked out a systematization of traditional normative ethics as a first step before its rational justification; he believed that the point in the philosophy of morality is justifying a few rational truths about the structure of morality such as to rule hedonism, eudemonism, and consequentialism; yet a system of positive morality cannot be derived solely from such rational truths but requires consideration of the ongoing dialectics between idea and fact in historically given moralities. Whewell’s intuitionism turns out closer to Kantian ethics than commentators have made us believe until now, and quite different from what Sidgwick meant by intuitionism. -/- 17. Adam Smith and the morality of role-switch. The chapter describes first, Hutcheson’s attempt at basing the ‘new science’ of natural law on different bedrock than Pufendorf and the English Platonists, namely a moral sense, a faculty whose existence is assumed to be proved on an empirical basis. The second step is a reconstruction of Hume’s rejoinder in terms of a new science of man including morality on an ‘experimental’ basis, that is, a ‘Newtonian’ hypothetical-deductive approach, distinguished from Hutcheson’s allegedly uncritical descriptive approach to human nature. The third step is a reconstruction of Adam Smith theory of morality understood as emerging from a spontaneous interplay of exchanges of situations (the most basic meaning of the word ‘sympathy’ as construed by this author). -/- 18. Jeremy Bentham and utilitarianism. The bulk of the chapter is dedicated to the doctrines of Jeremy Bentham. The Enlightenment spirit that suggested the idea of a new morality, free from religion, is illustrated. The notion of utility is illustrated as well as the subsequent formulations of the principle of utility. The idea of felicific calculus is discussed, showing how its inner difficulties prompted several reformulations of the principle of utility in order to avoid undesirable implications of proposed formulations. The role of the thesis of spontaneous convergence between interest and duty is discussed, showing how it left numberless questions open, and the distinction between the virtues of prudence, justice and beneficence is described as a way out of the deadlocks of classical utilitarianism. After Bentham, Mill’s reformed utilitarianism is reconstructed, showing how it is a kind of mixed system – as closer to common sense as it gives up Bentham’s claims to consistency and simplicity – resulting as unintended consequences from the controversies in which Mill was too keen to engage. The hidden agenda of the controversy between Utilitarianism and Intuitionism, going beyond the image of the battle between Prejudice and Reason, is described, showing how both competing philosophical outlooks turn out to be more research programs than self-contained doctrinal bodies, and such programs appear to be implemented, and indeed radically transformed while in progress thanks to their enemies no less than to their supporters. -/- 19. Immanuel Kant, practical reason and judgment. The chapter argues that Kant took from Moses Mendelssohn the idea of a distinction between geometry of morals and a practical ethic. He was drastically misunderstood by his followers precisely on this point. He had learned from the sceptics and the Jansenists the lesson that men are prompted to act by deceptive ends, and he was aware that human actions are also empirical phenomena, where laws like the laws of Nature may be detected. His practical ethics made room for judgment as a holistic procedure for assessing the saliency of relevant moral qualities in one given situation; this procedure yields the same results as the geometry of morals does for abstract cases but does so immediately and without balancing conflicting duties with each other, since what makes for the salient quality of a situation is perceived from the very beginning. Kant's practical philosophy is richer than the received image, making room for an ‘empirical moral philosophy’ or moral anthropology including treatment of commerce, needs, value and price, happiness and well-being; the overall social theory and philosophy of history is less different from Adam Smith's than the received image makes believe; the paradox of happiness is central to Kant's philosophy; a distinction between happiness and well-being is clearly drawn; the distinction plays a basic role in establishing a link between the economic and the moral life. -/- 20. Georg Wilhelm Friedrich Hegel and the critique of abstract universalism. The chapter describes first the Romantic movement and the implications some of its concerns, rescuing passions, community, tradition, the individual as the bearer of a unique destiny, and the longing for organic unity between the individual, mankind and nature. Hegel’s contribution is discussed then, highlighting how, on the one hand, he shared a number of these concerns and on the other he had more rationalist leanings. The notion of morality is the pivotal point of the reconstruction, highlighting how Hegel construes this notion as a key to his own diagnosis of the malaise of modernity – the separation of individual and Gemeinschaft – and how his attack on Kant turns around this very idea. -/- 21. Friedrich Nietzsche against Christianity and the Enlightenment. The chapter illustrates first the idea of deconstruction of the back-world of values. Nietzsche claims to be legitimate heir of the French moralists, Leibniz, Kant and Hegel, in so far as he allegedly carries out to its deepest implications their discovery of what lies behind traditional naïve belief in the existence of an objective realm of values just waiting for description by the philosopher. The two exemplars form which genealogy draws inspiration are the classical philologist’s historical reconstructions of lost meanings and the chemist’s decomposition of elements. Then the genealogy of the notions of good and evil carried out in the first dissertation of Genealogy of morals is illustrated with its paradoxical conclusion that will to power is in fact the only ‘genuine’ kind of goodness. The third point illustrated is the dialectic of ascetism and self-realization with its ambiguous outcome. The suggested interpretation of such outcome is that Nietzsche’s normative ethics is a kind of virtue ethics taking an aesthetic ideal as a normative standard -/- 22. George Edward Moore and ideal utilitarianism. The chapter discusses the ideas of common sense and common-sense morality in Sidgwick. I argue that, far from aiming at overcoming common-sense morality, Sidgwick aimed purposely at grounding a consist code of morality by methods allegedly taken from the natural sciences to reach, also in ethics, the same kind of “mature” knowledge as in the natural sciences. His whole polemics with intuitionism was vitiated by the a priori assumption that the widespread ethos of the educated part of humankind, not the theories of the intuitionist philosophers, was what was worth considering as the expression of intuitionist ethics. In spite of a naïve positivist starting-point, Sidgwick was encouraged by his own approach in exploring the fruitfulness of coherentist methods for normative ethics. Thus, Sidgwick left an ambivalent legacy to twentieth-century ethics: the dogmatic idea of a “new” morality of a consequentialist kind, and the fruitful idea that we can argue rationally in normative ethics albeit without shared foundations. Then it reconstructs the background of ideas, concerns and intentions out of which Moore’s early essays, the preliminary version, and then the final version of Principia Ethica originated. I stress the role of religious concerns, as well as that of the Idealist legacy. I argue that PE is more a patchwork of rather diverging contributions than a unitary work, not to say the paradigm of a new school in Ethics. I add a comparison with Rashdall’s almost contemporary ethical work, suggesting that the latter defends the same general claims in a different way, one that manages to pave decisive objections in a more plausible way. I end by suggesting that the emergence of Analytic Ethics was a more ambiguous phenomenon than the received view would make us believe, and that the wheat (or some other gluten-free grain) of this tradition, that is, what logic can do for philosophy, should be separated from the chaff, that is, the confused and mutually incompatible legacies of Utilitarianism and Idealism. -/- 23. Edmund Husserl and the a-priori of action. The chapter illustrates first the idea of phenomenology and the Husserl’s project of a phenomenological ethic as illustrated in his 1908-1914 lectures. The key idea is dismissing psychology and trying to ground a new science of the a priori of action, within which a more restricted field of inquiry will be the science of right actions. Then the chapter illustrates the criticism of modern moral philosophy carried out in the 1920 lectures, where the main target is naturalism, understood in the Kantian meaning of primacy of common sense. The third point illustrate is Adolph Reinach’s theory of social acts as a key the grounding of norms, a view that basically sketches the very ideas ‘discovered’ later by Clarence I. Lewis, John Searle, Karl-Otto Apel and Jürgen Habermas. A final section is dedicated to Nicolai Hartman, who always refused to define himself a phenomenologist and yet developed a more articulated and detailed theory of ‘values’ – with surprising affinities with George E. Moore - than philosophers such as Max Scheler who claimed to Husserl’s legitimate heirs. -/- 24. Bertrand Russell and non-cognitivism. The chapter reconstructs first the discussion after Moore. The naturalistic-fallacy argument was widely accepted but twisted to prove instead that the intuitive character of the definition of ‘good’, its non-cognitive meaning, in a first phase identified with ‘emotive’ meaning. Alfred Julius Ayer is indicated as a typical proponent of such non-cognitivist meta-ethics. More detailed discussion is dedicated to Bertrand Russell’s ethics, a more nuanced and sophisticated doctrine, arguing that non-cognitivism does not condemn morality to arbitrariness and that the project of a rational normative ethics is still possible, heading finally to the justification of a kind of non-hedonist utilitarianism. Stevenson’s theory, another moderate version of emotivism is discussed at some length, showing how the author comes close to the discovery of the role of a pragmatic dimension of language as a basis for ethical argument. Last of all, the discussion from the Forties about Hume’s law is described, mentioning Karl Popper’s argument and Richard Hare’s early non-cognitivist but non-emotivist doctrine named prescriptivism. -/- 25. Elizabeth Anscombe and the revival of virtue ethics. The chapter discusses the three theses defended by Anscombe in 'Modern Moral Philosophy'. I argue that: a) her answer to the question "why should I be moral?" requires a solution of the problem of theodicy, and ignores any attempts to save the moral point of view without recourse to divine retribution; b) her notion of divine law is an odd one more neo-Augustinian than Biblical or Scholastic; c) her image of Kantian ethics and intuitionism is the impoverished image manufactured by consequentialist opponents for polemical purposes and that she seems strangely accept it; d) the difficulty of identifying the "relevant descriptions" of acts is not an argument in favour of an ethics of virtue and against consequentialism or Kantian ethics, and indeed the role of judgment in the latter is a response to the difficulties raised by the case of judgment concerning future action. A short look at further developments in the neo-naturalist current is given trough a reconstruction of Philippa Foot’s and Peter Geach’s critiques to the naturalist-fallacy argument and Alasdair MacIntyre’s grand reconstruction of the origins and allegedly unavoidable failure of the Enlightenment project of an autonomous ethic. -/- 26. Richard Hare and neo-Utilitarianism. The chapter addresses the issue of the complex process of self-transformation Utilitarianism underwent after Sidgwick’s and Moore’s fatal criticism and the unexpected Phoenix-like process of rebirth of a doctrine definitely refuted. A glimpse at this uproarious process is given through two examples. The first is Roy Harrod Wittgensteinian transformation of Utilitarianism in pure normative ethics depurated from hedonism as well as from whatsoever theory of the good. This results in preference utilitarianism combined with a ‘Kantian’ version of rule utilitarianism. The second is Richard Hare’s two-level preference utilitarianism where act utilitarianism plays the function of eventual rational justification of moral judgments and rule-utilitarianism that of action-guiding practical device. -/- 27. Hans-Georg Gadamer and rehabilitation of practical philosophy. The post-war rediscovery of ethics by many German thinkers and its culmination in the Sixties in the movement named ‘Rehabilitation of practical philosophy’ is described. Among the actors of such rehabilitation there were a few of Heidegger’s most brilliant disciples, and Hans-Georg Gadamer is chosen as a paradigmatic example. His reading of Aristotle’s lesson I reconstructed, starting with Heidegger’s lesson but then subtly subverting its outcome thanks to the recovery of the central role of the notion of phronesis. -/- 28. Karl-Otto Apel and the revival of Kantian ethics. Parallel to the neo-Aristotelian trend, there was in the Rehabilitation of practical philosophy a Kantian current. This started, instead than the rehabilitation of prudence, with the discovery of the pragmatic dimension of language carried out by Charles Peirce and the Oxford linguistic philosophy. On this basis, Karl-Otto Apel singled out as the decisive proponent of the linguistic and Kantian turn in German-speaking ethics, worked out the performative-contradiction argument while claiming that this was able to provide a new rational and universal basis for normative ethics. An examination of his argument is some detail is offered, followed by a more cursory reconstruction of Jürgen Habermas’s elaboration on Apel’s theory. -/- 29. John Rawls and public ethics as applied ethics. Rawls’s distinction between a “political” and a “metaphysical” approach to one central part of ethical theory, namely the theory of justice, is interpreted as a formulation of the same basic idea at the root of both the principles approach and neo-casuistry, both discussed in the following chapter, namely that it is possible to reach an agreement concerning positive moral judgments even though the discussion is still open – and in Rawls’ view never will be close – on the basic criteria for judgment. -/- 30. Beauchamp and Childress and bioethics as applied ethics. The chapter presents the revolution of applied ethics while stressing its methodological novelty, exemplified primarily by Beauchamp and Childress principles approach and then by Jonsen and Toulmin’s new casuistry. -/- . (shrink)

The concubines, with whom the sultans lived a family life, were classified according to a certain hierarchy in the Harem. The first wives of the sultan and those who gave birth were called Kadınefendi. The other wives with a lower status than the Kadınefendi wives were called Ikbal Hanımefendi. According to Islamic law, marriage with a concubine is not like a marriage with a free woman. If a marriage is desired, the concubine must be freed. Until the 19th century, (...) sultans did not marry their concubines for a few exceptions. In the 19th century, the legal status of concubines in the Ottoman Empire became controversial. The countries of origine changed when the Ottoman Empire was unable to conquer new territory. Consequently, the enslavement procedure of prisoners of war disappeared. Instead, Caucasian immigrants, who had to leave their homeland mainly due to the Russian attacks, gave their daughters to the Ottoman palace so that they would not suffer misery and could reach important positions in the future. Among these were orphans from poor families as well as those from noble Caucasian dynasties. Even though the young women in the palace were called concubines, at least some of them were free/Muslim persons. This meant, that they could not be enslaved according to Islamic law. Although there was no problem for those who served in the palace, a remarkable situation emerged for the would-be spouses of the sultan. Could a woman from a free and Muslim family be the sultan's wife without a marriage bond? Was the limitation of the Kadınefendi numbers to four (in times of Sultan Abdülaziz) due to the Islamic law principle, that a man could marry maximum four wives? Was there a marriage ceremony (nikāh) for Kadınefendi wives? What was the situation of the Ikbal? Satisfactory answers to these questions have not been given yet. However, there are no official records it was claimed that lately sultans married especially their concubines who were Abkhaz descendants and included them among their wives in this way, because they were free and Muslims. Thus, the matter whether Sultan Abdülhamid II's wives were concubines or wedded became the subject of some research today. Memoires claim that almost all of Sultan Abdülhamid's wives were free and of Muslim origin. According to this, it was said that the wives of Sultan Abdülhamid could not have the status of the concubine and that their relationship should have been by marriage. On the other hand, considering that a maximum of four women can be married according to Islamic law, the marriage of the Sultan, who had thirteen wives, raised juristic questions. This problem was most clearly seen in the inheritance case filed by his heirs after the death of Sultan Abdülhamid. In this case, where it was claimed that Sultan Abdülhamid was married to nine wives, no objection was made to that claim. In this study, information about the wives of Sultan Abdülhamid and their legal status was tried to be determined through the documents related to their salaries during the 2nd Constitutional Era. Besides, the issue of nine wedded women, which emerged in the case of Sultan Abdülhamid's inheritance, was evaluated in terms of fiqh (Islamic jurisprudence). Sultan Abdülhamid was never accused of marriages contrary to Islamic law by his opponents during and after his reign. From this point of view, it can be said that there was no situation contrary to Islamic law regarding the Sultan's harem at that time. This might be due to three possibilities: Firstly, some wives have concealed the truth in the court, which is the weakest possibility according to the data obtained. Secondly, the talaq (divorcement) was hidden by Sultan Abdülhamid and his wives were not aware of it. This possibility has been found to be problematic when evaluated in terms of Hanafi fiqh. Thirdly, the practice of al-nikāh al-tanazzuhī (marriage performed in order to avoid from fornication). Considering the correspondence between the state departments in the period starting with the 2nd Constitutional Monarchy and until the Republic, it is clear that the Kadınefendis were regarded as married wives (their number was limited to four), while the Ikbals were regarded as concubines. From this point of view, it is thought that the most plausible possibility is that the Ikbals were regarded as concubines and their marriages were al-nikāh al-tanazzuhī. (shrink)

Mainstream historians in recent decades have often treated formal categories and rules as something to be 'used' by individuals, as one might use a stick or stone, and the gains of an earlier legal history are often needlessly set aside. Anthropologists, meanwhile, have treated rules as analytic errors and categories as an imposition by outside powers or by analysts, leaving a very thin notion of 'practice' as the stuff of social life. Philosophy of an older vintage, as well as the (...) work of scholars such as Charles Taylor, provides fresh approaches when applied imaginatively to cases beyond the traditional ground of modern Europe and North America. Not only are different kinds of rules and categories open to examination, but the very notion of a rule can be explored more deeply. This volume approaches rules and categories as constitutive of action and hence of social life, but also as providing means of criticism and imagination. A general theoretical framework is derived from analytical philosophy, from Wittgenstein to his critics and beyond, and from recent legal thinkers such as Schauer and Waldron. Case-studies are presented from a broad range of periods and regions, from Amazonia via northern Chad, Tibet, and medieval Russia to the scholarly worlds of Roman law, Islam, and Classical India. As the third volume in the Legalism series, this collection draws on common themes that run throughout the first two volumes: Legalism: Anthropology and History and Legalism: Community and Justice, consolidating them in a framework that suggests a new approach to rule-bound systems. (shrink)

The Ottoman State contains many different ethnic elements which constituted a legal perspective. In this regard, the necessary precautions were taken to ensure that Muslims and non-Muslims live together peacefully in Vidin, a border city that was very important for the Western military expeditions of the Ottoman State known as “dār al-jihad wa-l-mujāhidīn” during the 18th century which set a historical example. The economic and social dimensions of the relations between the Muslim and non-Muslim population comprising the society in Vidin (...) who have shared the same city, neighborhood and public space during 1700-1750 were examined in this study and the conflicting subjects with regard to the ongoing relations between these two communities were tried to be determined. A total of 15 shari‘aregistries kept by the qāḍī (Muslim Judge) court for the related period located at the Oriental Department of National Library of Bulgaria constitute the main resources of the study. The shari‘aregistries that are the main resources of urban historical studies are full of countless examples that provide information on the relations between Muslims and non- Muslims in Vidin. The examination of these examples is of significant importance for putting forth the methods with which the nation system is applied by the Ottoman Empire as well as their opinions towards the non-Muslims they rule.SummaryVidin, located today in northwest Bulgaria was founded during the 1stcentury BC to the right of the River Danube by the Romans and named as Bononia. This settlement which was named as V’dinby the Muslims throughout the Middle Ages was transformed into a castle about 800 years after its foundation. The city that continuously changed hands due to its location at the border fell under the Ottoman rule after Battle of Nicopolis dated 1396. Vidin became one of the important border cities of the Ottoman against Serbia, Walachia and Hungary until the beginning of the 16thcentury. This importance of Vidin gradually decreased after the Ottoman Empire conquered Belgrade, Budin and Timişoara. Vidin retrieved its status as a border city against the Hungarians and the Wallachians after the Habsburgs dominated the region following the Great Turkish Wars that took place during 1683-1699, and thus regained its past importance. Even though the pressure influenced Vidin as a result disappeared with the 1739 Treaty of Belgrade, the conflicts between Austria and the Ottoman Empire did not end completely and continued throughout the 18thcentury. Vidin preserved its status as a first-degree border city for the Ottomans during the period of time, as examined in this study, which was also known as “dār al-jihad wa-l-mujāhidīn” starting from the beginning of the new century. Majority of the settled public were comprised of military classes in Vidin due to its geographical location where the Muslims and non-Muslims lived together. While the Muslim population was higher during the period of time following the establishment of the Ottoman rule, the non-Muslim population continued to increase throughout the 17thcentury reaching 23.961 taxpayer non-Muslim men in the 18thcentury. The Ottoman Empire based its ruling in Vidin, where almost the same number of Muslim and non-Muslims lived, on the principles of Islamic Law rules for non-Muslims. Since this legal system takes into consideration religious differences, non-Muslims were not held responsible from the prayers of Muslims and the actions that were not prohibited in their religion did not pose any contradictions with regard to Islamic law. The Ottoman Empire did not apply the Islamic Law on its non-Muslim citizens living in Vidin and allowed them to continue their social and religious lives based on their own religious principles in a special legal stance. Thanks to the system applied, the Muslim and non-Muslim community in Vidin were able to continue their daily lives without serious conflicts.The main purpose of this study is to explain how the Muslim and non-Muslim population related with each other in the city of Vidin during the second half of the 18thcentury and the dynamics with which they continued these relationships. Following this purpose, the cases between Muslims and non-Muslims in court records kept by the Vidin sharia court during 1700-1750 are examined. The relations between Muslims and non-Muslims are subject to two different classifications as economic and social issues, and each topic is supported and explained as sub-titles using different case examples. Majority of the relations between Muslims and non-Muslims in the city are economic according to Vidin court records. In this regard, it seems that there is no religious discrimination between the artisan groups in the city. In addition, many home, land, store and vineyard sales took place between the Muslims and non-Muslims which were resolved in the court mostly for registration purposes. It can also be understood from the court records that there were commercial relations between the Muslims and non-Muslims, that they had partnerships and that they lent money to each other which can be seen as an example of interpersonal support. Various social relationships were also established between the Muslim and non-Muslim population in Vidin during the period examined in this study. Even though non-Muslims had the right to carry out marriages and resolve their issues at their own community courts, it was observed that they frequently applied to the sharia courts for these purposes. They have developed witnessing relationships in such cases with the Muslims. The non-Muslim community did not experience any issues in finding Muslim witnesses for their cases with the Muslims; many Muslims acted as witness against their fellow Muslims without any hesitation. Two cases of injuries and few robbery issues were reflected in the courts of Vidin between the Muslims and non-Muslims during the fifty-year period examined in the study and no incident ending with death took place. Various singular cases took place between the two groups which were resolved at the sharia courts without escalating into severe conflicts. When all court records are taken into consideration, it can be understood that the Muslim judge of Vidin did not make any distinctions between the non-Muslims and Muslims and that he did not compromise from the principle of fairness. Both the Muslims and non-Muslims managed to live comfortably by acting carefully so as to not cross their own lines in both their economic and social relations in Vidin. When the faith-related conflicts that are taking place in our day in many regions of the world despite the level of education and culture are taken into consideration, it is very meaningful that people living in Vidin during the first half of the 18thcentury managed to live in peace. (shrink)

This article tries to contextualise the formulation of Islamic laws with regards to contemporary dynamics of non-Muslim leadership in the government. It particularly addresses the religious deliberation of the traditionalist Muslim organisation, the Nadhlatul Ulama/NU, and its youth organisation, the Gerakan Pemuda Ansor. The construction of Islamic laws in contemporary Indonesia tells an insightful viewpoint in Islamic-laws making and delivers multiplicity in Islamic interpretation. Despite the fact that these two organisations are of the same organisation, the (...) NU, their formulation of Islamic laws with regards to non-Muslim leadership demonstrates a different and contrasting opinion. While the national board of the NU through its national congress in 1999 argues against non-Muslim leadership, the national religious deliberation board of the Ansor in 2017 issues a legal opinion that approves non-Muslim leadership. As this article argues, the different opinions between these two institutions develops particularly because of different construct in defining Islam and democracy in the largest Muslim country Indonesia. They differ in reconciling istinbat of two principles of Islamic laws ; al-sabit and al-mutahawwil. It further argues that the national board of the NU particularly sees the prohibition of non-Muslim leadership as al-sabit, an unchanged dictum, whereas the Ansor considers it al-mutahawwil as looking at the Indonesian state constitution that does not discriminate its citizens based on religion. Thus, making Islamic laws accords to the state constitution. (shrink)

A Theory of Universal Democracy empowers cultures and communities across the world to custom design democracy in consonance with their traditional values. For example, the book makes concrete proposals for Muslim countries to democratize their constitutions without accepting Western values and without violating the principles of Islamic law. More importantly, Universal Democracy further develops the idea of Free State, which the author first presented in his previous book, The Extinction of Nation-States (Kluwer, 1996). The proposed fusion of Universal Democracy (...) and Free State is designed to revolutionize the classical theory of government and to offer a new paradigm that accommodates both universality and uniqueness. Scholars, teachers and students of international law, constitutional law, legal theory, and Islamic law will find this book a source of valuable ideas. (shrink)