A Jihadi-Salafi Legal Tradition? Debating Authority and Martyrdom

Author(s):  
Nathan S. French

Jihadi-Salafi movements are responsible for infamous and sensational acts of violence. Often this leaves their legal discussions overlooked. This chapter argues that by focusing on the legal and theological texts produced by those whom Jihadi-Salafis identify as legal authorities—particularly the nonbinding genre of Islamic legal literature known as the fatwa—it is possible to identify the formation of a Jihadi-Salafi legal tradition possessing digital institutions and legal authorities to whom faithful adherents can turn for guidance. Using the recruitment and attempted attack of Umar Farouk Abdulmutallab, the legal writings of Anwar al-ʿAwlaki, and the Minbar al-Tawhid wa-l-Jihad of Abu Muhammad al-Maqdisi, the chapter explores the contemporary crisis of legal authority facing contemporary Muslim communities, generally, and how Jihadi-Salafis are attempting to answer that crisis through their agreements and disagreements on the interpretation and application of the law.

Author(s):  
Jevgenij Machovenko ◽  
Dovile Valanciene

The research object of this study is the provisions of the Provisional Constitutions of 1918, 1919 and 1920 concerning the establishment of the Lithuanian legal system. The aim of the study was to determine what was the basis for the reception of foreign law and the particularism of the law, what law was recepted and what was the relationship between it and the newly created national law. The main methods used are systematic, teleological, historical, linguistic, and comparative. This article presents an original vision of recepted law and a critical assessment of the interwar Lithuanian governmental decision to completely eliminate recepted law. In the authors' opinion, law reception and particularism enshrined in the Provisional Constitutions met the expectations of the citizens, and the government’s ambition to completely eliminate recepted law in all areas of people’s activities in the intensive development of the national law was in line with the strategic interests of the state and society. Particularism was a natural expression of pluralism inherent in the Western legal tradition and had a great potential for the development of Lithuanian law, which was not exploited due to the negative appreciation of particularism and the attempt to eliminate it completely. Acts issued by the Russian authorities in 1914-1915 and by the German authorities in 1915-1918 restricted the rights of Lithuanian residents, severely restricted monetary and property relations, made it difficult to rebuild the country’s economy, providing for repressive or restrictive measures against the citizens of hostile states. The restored state of Lithuania endeavoured to establish peaceful relations with all states, including those with whom Russia and Germany were at war. Cancelling the law imposed by the Russian and German authorities during the war was a reasonable and useful decision of the Lithuanian State authorities. The interpretation of the constitutional provision «[laws] which existed before the war» as «which existed before August 1, 1914», common in the historical legal literature of Lithuania, is incorrect. The question what laws were recepted has to be addressed not by the date of the adoption o a certain act, but by its content – insofar it is linked or unrelated to the First World War. All acts by which the Russian Empire intervened or were preparing to intervene in this war shall be considered to be excluded from the legal system of the restored State of Lithuania in the sense of the constitutional norm «[laws] which existed before the war» and the general spirit of this Constitution. The system of constitutional control entrenched in the Provisional Constitutions, where a court or an executive authority verified the compliance of a recepted law with the Constitution before applying it is subject to criticism from the standpoint of contemporary legal science, but under the conditions of Lithuania of 1918-1920, it was flexible, fast, allowing citizens to raise the issue of the constitutionality of the law and present their arguments.


1983 ◽  
Vol 11 (3-4) ◽  
pp. 115-129 ◽  
Author(s):  
Igor I. Kavass ◽  
Howard A. Hood

All professions are dependent to some degree on their corpus of literature. For several reasons this dependency is especially acute for the legal profession. First, a large part of legal literature is “authoritative” in a sense different from the literature of, say, medicine or history. Legal authority is binding, backed by the coercive apparatus of the state. One is compelled to be familiar with legal authority, for, in the ancient phrase, ignorance of the law is no excuse. Second, the very principles of Western legal systems require that governmental bodies operate according to law. Courts must resolve their cases in accordance with the law. This jurisprudential theorem imposes upon lawyers and judges the duty of identifying and examining all relevant legal authority. Failure to exercise due care in carrying out this duty may render the attorney liable to a suit for malpractice.


Author(s):  
Will Smiley

This chapter charts the “Law of Release,” a new system of rules that replaced the Law of Ransom. These rules were based on treaties signed from 1739 onward, but also on a variety of lesser agreements and unwritten understandings and the Islamic legal tradition. They were renewed frequently, and structured captivity as late as the 1850s. This chapter will explore the basic structures of the Law of Release—how captives were found, released, and sent home, and how slaveowners were convinced, coerced, or compensated to cooperate. I argue that while release was initially limited to Istanbul, and to the most visible captives, it extended both into elite households, and outward along the Ottoman corridors of power. This process tested the limits of the Ottoman state, forcing the state to cooperate with Russian officials for the benefit of both. They did so in the face of resistance from captors.


Author(s):  
Rebecca Skreslet Hernandez

In addition to his views on ijtihād and tajdīd, al-Suyūṭī’s lasting influence in Islamic legal thought lies in the area of legal precepts (pithy maxims or questions that sum up areas of the law). Al-Suyūṭī’s al-Ashbāh wa-l-naẓāʾir stands as a core work in this genre of legal literature and is still a popular textbook for students at Egypt’s premier institution of religious learning, al-Azhar. Using the pragmatic theory of Grice and others, I argue that legal precepts fulfill a number of key discursive functions for the jurist. It is with al-Suyūṭī’s Ashbāh that he is most successful in asserting his authority as an aggregator, abstractor, and framer of the law. The power of framing lies in the ability to distill key universal principles from the vast corpus of Islamic substantive law and to assert that these principles represent the essence and spirit of the Sharīʿa.


1994 ◽  
Vol 28 (4) ◽  
pp. 739-791 ◽  
Author(s):  
Kartik Kalyan Raman

The role of legal tradition in the reformist rhetoric of Benthamite Utilitarianism presents us with a contradiction. On the one hand, there is the common observation that Utilitarian jurisprudence was necessarily ahistorical and rejected the past as a source of concepts for reworking the criminal justice system existing in Britain during the late eighteenth and early nineteenth centuries. For philosophic reformers such as Bentham, contemporary British criminal justice was to be replaced by a scientific jurisprudence, abstract, universal, and secular in outlook, and antipathetic to the more conservative insistence that the foundations of the penal law continue to be tradition-based. ‘If society was to see any improvement, its law must be reformed; if its law was to be reformed it must be burned to the ground and rebuilt according to a new and rational pattern.’ On the other hand, we find that the very same Utilitarian thinkers, in works describing the state of the law in British India, were concerned with local rather than universal conceptions of criminality. In his 1782 Essay on the Influence of Time and Place in Matters of Legislation, Bentham, for instance, urged the philosophic reformer to temper change in India by fitting Utilitarian judgments about the law to the frames of local society.


2017 ◽  
Vol 6 (1) ◽  
pp. 25-50
Author(s):  
Poku Adusei

This article provides comprehensive insights into the study of the Ghana legal system as an academic discipline in the law faculties in Ghana. It urges the view that the study of the Ghana legal system, as an academic discipline, should be transsystemic. Transsystemic pedagogy consists in the introduction of ideas, structures and principles which may be drawn from different legal traditions such as civil law, common law, religion-based law, African law and socialist law traditions to influence the study of law. Transsystemia involves teaching law ‘across,’ ‘through,’ and ‘beyond’ disciplinary fixations associated with a particular legal system. It is a mode of scholarship that defies biased allegiance to one legal tradition in order to foster cross-cultural dialogue among legal traditions. It involves a study of law that re-directs focus from one concerned with ‘pure’ legal system to a discourse that is grounded on multiple legal traditions.


Legal Studies ◽  
2010 ◽  
Vol 30 (1) ◽  
pp. 61-73 ◽  
Author(s):  
Anthony Ogus

Legal paternalism occurs when the law forces individuals to avoid certain risks (‘hard paternalism’), or, without coercion, nudges them away from such risks (‘soft paternalism’), on the ground that otherwise they will make unwise decisions. The questions when and how such approaches should be taken are of fundamental importance in a society in which there are increasing risks to health and livelihood resulting from technological developments and greater freedom of choice. However, they are not openly addressed in policy-making circles and have also been neglected in the European legal literature. In this paper, I attempt to explain these paradoxes and to outline a theoretical benefit–cost framework for determining when and how legal paternalism might be considered appropriate.


Author(s):  
Egidijus Küris

Western legal tradition gave the birth to the concept of the rule of law. Legal theory and constitutional justice significantly contributed to the crystallisation of its standards and to moving into the direction of the common concept of the rule of law. The European Court of Human Rights uses this concept as an interpretative tool, the extension of which is the quality of the law doctrine, which encompasses concrete requirements for the law under examination in this Court, such as prospectivity of law, its foreseeability, clarity etc. The author of the article, former judge of the Lithuanian Constitutional Court and currently the judge of the European Court of Human Rights, examines how the latter court has gradually intensified (not always consistently) its reliance on the rule of law as a general principle, inherent in all the Articles of the European Convention on Human Rights, to the extent that in some of its judgments it concentrates not anymore on the factual situation of an individual applicant, but, first and foremost, on the examination of the quality of the law. The trend is that, having found the quality of the applicable law to be insufficient, the Court considers that the mere existence of contested legislation amounts to an unjustifiable interference into a respective right and finds a violation of respective provisions of the Convention. This is an indication of the Court’s progressing self-approximation to constitutional courts, which are called to exercise abstract norm-control.La tradición occidental alumbró la noción del Estado de Derecho. La teoría del Derecho y la Justicia Constitucional han contribuido decisivamente a la cristalización de sus estándares, ayudando a conformar un acervo común en torno al mismo. El Tribunal Europeo de Derechos Humanos emplea la noción de Estado de Derecho como una herramienta interpretativa, fundamentalmente centrada en la doctrina de la calidad de la ley, que implica requisitos concretos que exige el Tribunal tales como la claridad, la previsibilidad, y la certeza en la redacción y aplicación de la norma. El autor, en la actualidad Juez del Tribunal Europeo de Derechos Humanos y anterior Magistrado del Tribunal Constitucional de Lituania, examina cómo el primero ha intensificado gradualmente (no siempre de forma igual de consistente) su confianza en el Estado de Derecho como principio general, inherente a todos los preceptos que forman el Convenio Europeo de Derechos Humanos, hasta el punto de que en algunas de sus resoluciones se concentra no tanto en la situación de hecho del demandante individual sino, sobre todo y ante todo, en el examen de esa calidad de la ley. La tendencia del Tribunal es a considerar que, si observa que la ley no goza de calidad suficiente, la mera existencia de la legislación discutida supone una interferencia injustificable dentro del derecho en cuestión y declara la violación del precepto correspondiente del Convenio. Esto implica el acercamiento progresivo del Tribunal Europeo de Derechos Humanos a los Tribunales Constitucionales, quienes tienen encargado el control en abstracto de la norma legal.


Author(s):  
Ulyana Polyak

The current criminal procedure law of Ukraine stipulates that a witness is obliged to give a true testimony during pre-trial investigation and trial, however, the legislator made an exception for this by specifying the categories of persons who have been granted immunity from immunity, ie they are released by law. testify. The article deals with the problems of law and practice regarding the prohibition of the interrogation of a notary as a witness in criminal proceedings and the release of him from the obligation to keep the notarial secret by the person who entrusted him with the information which is the subject of this secret. The notion of notarial secrecy is proposed to be changed, since the subject of this secrecy is not only information that became known to the notary public from the interested person, but also those information that the notary received from other sources in the performance of their professional duties, as well as the procedural activity of the notary himself, is aimed at achieving a certain legal result. The proposal made in the legal literature to supplement the CPC of Ukraine with the provisions that a notary is subject to interrogation as a witness on information that constitutes a notarial secret, if the notarial acts were declared illegal in accordance with the procedure established by law The proposal to increase the list of persons who are not subject to interrogation as witnesses about the information constituting a notarial secret is substantiated, this clause is proposed to be supplemented by provisions that, apart from the notary, are not notarized, other notarials, notaries as well as the persons mentioned in Part 3 of Art. 8 of the Law of Ukraine "On Notary". Amendments to the current CPC of Ukraine by the amendments proposed in this publication will significantly improve the law prohibiting the interrogation of a notary as a witness in criminal proceedings, as well as improve certain theoretical provisions of the institute of witness immunity in criminal proceedings.


Author(s):  
Ахметкали Шаймуханов

В статье рассматриваются и анализируются некоторые положения действующего оперативно-розыскного законодательства Республики Казахстан. На основе сравнительного анализа и изучения юридической литературы поднимаются проблемы, возникающие в правоприменительной деятельности при реализации отдельных положений закона. Автором вносятся предложения и рекомендации по совершенствованию правовых норм, направленные на решение задач, связанных с профилактикой, предупреждением и пресечением наиболее опасных уголовных преступлений. Мақалада Қазақстан Республикасының қолданыстағы жедел-іздестіру заңнамасының кейбір ережелері талқыланып, талданған. Салыстырмалы талдау және заң әдебиеттерін зерттеу негізінде заңның белгілі бір ережелерін жүзеге асыру кезінде құқық қорғау органдарында туындайтын проблемалар көтеріледі. Автор аса қауіпті қылмыстық құқық бұзушылықтардың алдын алуға, алдын алуға және жолын кесуге байланысты мәселелерді шешуге бағытталған құқықтық нормаларды жетілдіру бойынша ұсыныстар мен ұсыныстар енгізеді. The article discusses and analyzes some of the provisions of the current operational-search legislation of the Republic of Kazakhstan. Based on comparative analysis and study of legal literature, the problems arising in law enforcement activities in the implementation of certain provisions of the law are raised. The author makes suggestions and recommendations for improving legal norms aimed at solving problems related to the prevention, prevention and suppression of the most dangerous criminal offences.


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