scholarly journals Judging the Franks: Proof, Justice, and Diversity in Late Medieval Alexandria and Damascus

2016 ◽  
Vol 58 (2) ◽  
pp. 350-378 ◽  
Author(s):  
Francisco Apellániz
Keyword(s):  
Conflict Resolution ◽  
Middle East ◽  
Islamic Law ◽  
Government Officials ◽  
Late Medieval ◽  
Legal Documents ◽  
Legal Traditions ◽  
Local Law ◽  
Legal Concepts ◽  
Comparative Manner

AbstractThis article describes how Islamic and Frankish legal devices complemented each other and were even combined to settle disagreements in the late medieval Middle East. For this purpose, it focuses on two legal institutions that provided responses to the biases of Islamic law against non-Muslims and to the prejudices of Franks against the local law. The first are the notaries sent to the Mamluk cities by the Venetian government to draw up legal documents and to support the transactions of Venetian merchants. The second are the new royal orsiyāsacourts implemented by the sultans, where justice was dispensed by government officials instead of by traditional judges, orqāḍīs. Specifically, the article discusses, in a comparative manner, what constituted proof for Christians and Muslims, whether minorities could bear testimony or not, and how notaries and judges dealt with unbelievers. A common notarial culture, together with the expansion ofsiyāsajurisdiction over the affairs of foreigners, brought about a much deeper legal interplay than has previously been understood. Ultimately, it is argued that Mediterranean medieval societies had evolving attitudes toward justice and diversity, and approached their own legal traditions in ways compatible with the conflict resolution, while constantly borrowing legal concepts about difference from each other.

scholarly journals Arbitraža po uzoru na rimsko pravo u graničnom sporu između Lovrana i Mošćenica (1646.)

2020 ◽  
Vol 40 (3) ◽  
pp. 987-1006
Author(s):  
Ivan Milotić
Keyword(s):  
Point Of View ◽  
Roman Law ◽  
Legal Tradition ◽  
Legal Documents ◽  
Legal Traditions ◽  
Canonical Process ◽  
Ius Commune ◽  
Latin Language ◽  
Legal Concepts ◽  
Key Terms

The boundary dispute between Lovran and Mošćenice of 1646 quite recently received some attention in the literature and was simultaneously adequately elaborated form palaeographic and philological point of view. Despite the fact that it is substantially a legal act, its legal content did not receive adequate attention of the scholars, which may primarily be said with reference to its institutes, terms and expressions whose precision, accuracy and legal technical at first sight most evidently depart from the local feudal legal customs and legal traditions. Moreover, nevertheless that these terms and expressions were written down in Italian language of the time, they evidently represent Italianized version of terms, expression and legal concepts that originally belong to Latin language. Additionally, their mentions in the document at hand have no resemblance to the usual medieval descriptions of the legal phenomena which have a little in common with normative language or to administrativefunctional style of that time which distinctively shaped the legal documents. Because all these indications suggest that the key terms, expressions and institutes pertinent to the boundary dispute between Lovran and Mošćenice (and its resolution) might be borrowed from the Roman legal tradition (which outreached this territory by means of ius commune) and the Romano-canonical process, this paper examines origin, roles and functions which were achieved in practice by their use in this particular legal matter. The paper will specifically explore the procedural mechanism which was employed to reach settlement of the boundary dispute between Lovran and Mošćenice and will additionally provide a deeper insight into the possibility that in this particular case arbitration conceptually based on the Roman law was employed as the means of dispute resolution.

A Taste for Law: Rule-Making in Kabylia (Algeria)

2008 ◽  
Vol 50 (4) ◽  
pp. 895-919 ◽  
Author(s):  
Judith Scheele
Keyword(s):  
Conflict Resolution ◽  
Middle East ◽  
North Africa ◽  
Special Kind ◽  
Customary Law ◽  
Internal Logic ◽  
Actual Content ◽  
Local Law ◽  
The Concept Of Law ◽  
Rule Making

There has recently been an upsurge in anthropologists' interest in law, with North Africa and the Middle East taking a prominent position. One of the foci is the coexistence of multiple sets of legal practices, and the ways in which people negotiate between different legal “systems.” This emphasis closely mirrors the more general shift in anthropology from “discourse” to “practice,” and shares both its strengths and weaknesses. Among the latter is that the resulting emphasis on “legal pluralism” (Griffith 1986) runs the danger of eroding the concept of law as such, subsuming it within more general and all-encompassing notions of “conflict resolution.” Similarly, there is a risk that one of the most striking aspects of legal procedure, namely the value placed on the act of making rules, is being neglected, and the actual content of local law codes and their underlying principles are receiving less attention than they deserve. As a result, “customary law” is more often implicitly defined by what it is not. Here, my aim is not to shift the focus from “practice” to “discourse,” but rather to understand the internal logic of one such set of ‘customs,’ and to consider the act of making law in itself as a special kind of practice (see also Comaroff and Roberts 1981: 15–16).

Authorized Lies: Colonial Agency and Legal Hybrids in Tashkent, c. 1881-1893

2012 ◽  
Vol 55 (4-5) ◽  
pp. 688-717 ◽  
Author(s):  
Paolo Sartori
Keyword(s):  
Central Asia ◽  
Present Article ◽  
Legal Pluralism ◽  
Government Officials ◽  
Legal Traditions ◽  
Legal Concepts ◽  
Pluralisme Juridique

Abstract In this essay I reconstruct a conflict over the legitimacy of a waqf established in Tashkent in 1881. The litigation involved a qāḍī and the heirs of the founder of the endowment; Russian colonial authorities investigated the case. Looking, as they were, for an instance of qāḍī malpractice, the Russians sought recourse to legal concepts borrowed from sharīʿa and fabricated evidence as they saw fit. I draw on the idea of legal pluralism in order to highlight how, in Russian Central Asia, legal praxis inevitably embraced diverse conceptions of legality. I also show how locals were able to maneuver government officials into using procedures from various legal traditions and thus produce a legal hybrid. Le présent article s’attache à reconstituer un contentieux touchant la légitimité d’un waqf établi à Tashkent en 1881. Le litige opposait un qāḍī aux héritiers du fondateur de la dotation; les autorités coloniales russes étaient en charge de l’enquête. Prompts à mettre en cause les qāḍī pour malversations à la moindre occasion, les Russes n’hésitaient pas à recourir à des notions juridiques empruntées à la sharīʿa, voire à forger des preuves au besoin. Mon analyse de cette affaire s’appuie sur la notion de pluralisme juridique, qui permet de mettre en évidence la coexistence, dans la justice telle qu’elle se pratiquait en Asie Centrale sous domination russe, de conceptions hétérogènes de la légalité. Cette étude révèle aussi le rôle des populations locales, et leur capacité à induire les fonctionnaires d’état à mettre en œuvre des procédures émanant de traditions différentes, au point de produire de véritables hybrides juridiques.

Maxims

2019 ◽  
pp. 654-669
Author(s):  
Donald R. Davis
Keyword(s):  
Islamic Law ◽  
Legal Interpretation ◽  
Legal Practice ◽  
Moral Foundation ◽  
Legal Principles ◽  
Legal Traditions ◽  
The World ◽  
The Law

This chapter examines the history and use of maxims in legal traditions from several areas of the world. A comparison of legal maxims in Roman, Hindu, Jewish, and Islamic law shows that maxims function both as a basic tools for legal interpretation and as distillations of substantive legal principles applicable to many cases. Maxims are characterized by their unquestionable character, even though it is often easy to demonstrate contradictions between them. As a result, legal maxims seem linked to the recurrent desire for law to have a moral foundation. Although maxims have lost their purchase in most contemporary jurisprudence and legal practice, categories such as “canons of construction,” “legal principles,” and “super precedents” all show similarities to the brief and limited collections of maxims in older legal traditions. The search for core ideas underlying the law thus continues under different names.

scholarly journals From Norms to Facts: The Realization of Rights in Common and Civil Private Law

2011 ◽  
Vol 56 (1) ◽  
pp. 77-114 ◽  
Author(s):  
Helge Dedek
Keyword(s):  
Legal System ◽  
Deep Structure ◽  
Common Law ◽  
Social Reality ◽  
Judicial Decision Making ◽  
Legal Traditions ◽  
The United Kingdom ◽  
The Common ◽  
Legal Concepts ◽  
The Ideal

Every legal system that ties judicial decision making to a body of preconceived norms has to face the tension between the normative formulation of the ideal and its approximation in social reality. In the parlance of the common law, it is, more concretely, the remedy that bridges the gap between the ideal and the real, or, rather, between norms and facts. In the common law world—particularly in the United Kingdom and the Commonwealth—a lively discourse has developed around the question of how rights relate to remedies. To the civilian legal scholar—used to thinking within a framework that strictly categorizes terms like substance and procedure, subjective right, action, and execution—the concept of remedy remains a mystery. The lack of “remedy” in the vocabulary of the civil law is more than just a matter of attaching different labels to functional equivalents, it is the expression of a different way of thinking about law. Only if a legal system is capable of satisfactorily transposing the abstract discourse of the law into social reality does the legal machinery fulfill its purpose: due to the pivotal importance of this translational process, the way it is cast in legal concepts thus allows for an insight into the deep structure of a legal culture, and, convergence notwithstanding, the remaining epistemological differences between the legal traditions of the West. A mixed jurisdiction must reflect upon these differences in order to understand its own condition and to define its future course.

scholarly journals Optimal water management and conflict resolution: The Middle East Water Project

2002 ◽  
Vol 38 (11) ◽  
pp. 25-1-25-17 ◽  
Author(s):  
Franklin M. Fisher ◽  
Shaul Arlosoroff ◽  
Zvi Eckstein ◽  
Munther Haddadin ◽  
Salem G. Hamati ◽  
...  
Keyword(s):  
Water Management ◽  
Conflict Resolution ◽  
Middle East ◽  
Water Project

A STEP TOO FAR? THE JOURNEY FROM “BIOLOGICAL” TO “SOCIETAL” FILIATION IN THE CHILD'S RIGHT TO NAME AND IDENTITY IN ISLAMIC AND INTERNATIONAL LAW

2019 ◽  
Vol 34 (3) ◽  
pp. 383-407 ◽  
Author(s):  
Shaheen Sardar Ali
Keyword(s):  
International Law ◽  
Islamic Law ◽  
Legal Traditions ◽  
Rights Of The Child ◽  
State Practice ◽  
Legal Position ◽  
The Subject ◽  
Rights Discourse ◽  
Muslim Communities ◽  
Human Rights Discourse

AbstractThis socio-legal narrative investigates the journey from “biological” to “societal” filiation undertaken by Islamic and international law regimes in their endeavors to ensure a child's right to name and identity. Combining a discussion of filiation—a status-assigning process—with adoption and kafāla (fostering) as status-transferring mechanisms, it highlights a nuanced hierarchy relating to these processes within Muslim communities and Muslim state practices. It questions whether evolving conceptions of a child's rights to name and identity represent a paradigm shift from “no status” if born out of wedlock toward “full status” offered through national and international law and Muslim state and community practices. The article challenges the dominant (formal, legal) position within the Islamic legal traditions that nasab (filiation) is obtainable through marriage alone. Highlighting inherent plurality within the Islamic legal traditions, it demonstrates how Muslim state practice and actual practices of Muslim communities on the subject are neither uniform nor necessarily in accordance with stated doctrinal positions of the juristic schools to which they subscribe. Simultaneously, the paper challenges some exaggerated gaps between “Islamic” and “Western” conceptions of children's rights, arguing that child-centric resources in Islamic law tend to be suppressed by a “universalist” Western human-rights discourse. Tracing common threads through discourses within both legal traditions aimed at ensuring children a name and identity, it demonstrates that the rights values in the United Nations Convention on Rights of the Child resonate with preexisting values within the Islamic legal traditions.

scholarly journals SHARIAH AND THE POLITICS OF PLURALISM IN INDONESIA: UNDERSTANDING STATE’S RATIONAL APPROACH TO ADAT AND ISLAMIC LAW

2019 ◽  
Vol 4 (1) ◽  
pp. 14-30
Author(s):  
Ratno Lukito
Keyword(s):  
Islamic Law ◽  
Effective Means ◽  
The State ◽  
Rational Approach ◽  
State Law ◽  
Legal Tradition ◽  
Basic Character ◽  
Legal Traditions ◽  
Religious Law ◽  
Adat Law

The distinction in the normative character of legal traditions will give an effect of the state different attitude to those traditions. In the case of Islamic law and adat law in Indonesia, we see that although having different basic character in terms of its foundation of legal creation, Islamic law can relatively be closer to the character of the state law, which is uniform and nationally effective. It is clear here that the nationalization of Islamic law built on the basis of its adherents, and not on the tribe, clan, language, or other local denominations, becomes an effective tool for its rapprochement with the state law, which is also nationalized on the basis of citizenship. Thus, although it is not possible to equalize Islamic law and state law due to the sacredness of the religious law, the scope in the efficacy of both laws can be an effective means of legal rapprochement. This is however not the case with adat law. The character of adat law as a local and heterogeneous legal tradition is intrinsically not in line with the philosophy of national law, which is anti-localism and homogeneous. It is just impossible to bring adat law to become an effective law for all Indonesian citizens. As a result, the rapprochement is difficult between adat law and state law.

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