Piracy in the Courts

2017 ◽  
Author(s):  
Joshua M. White
Keyword(s):  
Islamic Law ◽  
Legal Theory ◽  
Court Records ◽  
Legal Strategies ◽  
Islamic Courts

Relying on Ottoman court records from Istanbul to Crete, this chapter shows how merchants, monks, and mariners, Muslims, Christians, and Jews, Ottomans, and foreigners used the Ottoman Islamic courts, how victims of piracy sought restitution and sometimes revenge. It asks how complex jurisdictional questions were addressed and how the legal theory introduced in the previous chapter impacted the legal strategies of litigants, Ottoman and foreign alike, in Ottoman courts. It explores examples of disputes over ships and cargo seized by pirates, suits lodged by victims against their alleged pirates, privateering arrangements contracted and disputed in court, and prosecutions of alleged pirates. Telling these stories and examining their outcomes, the chapter ties together the threads from the preceding examination of the courts, Islamic law, the Ottomans’ diplomatic dealings, and Ottoman administrative responses to piracy.

scholarly journals The Closing of the Door of Ijtihad and the Application of the Law

1993 ◽  
Vol 10 (3) ◽  
pp. 396-401
Author(s):  
Frank E. Vogel
Keyword(s):  
Islamic Law ◽  
Legal Theory ◽  
Early Stage ◽  
Early Period ◽  
Court Records ◽  
Legal Documents ◽  
Islamic Legal Theory ◽  
Made In ◽  
The Ideal

This panel's center of gravity is Islamic legal theory and doctrine,particularly usul alfiqh. In this mom are many of the West's leadingscholars in this field. This puts me out of step, for my work leads me tostudy fiqh and usul alfiqh chiefly from the viewpoint of their application,an approach that is the result of spending several years in SaudiArabia studying the role of fiqh and the ulema in the Islamic legalsystem. I wish to submit, however, that there are a number of doctrinalproblems to which a study of the law's application and practice or, inother words, a study of the legal system, stands to contribute a great deal.The closing of the door of ijtihad, which I intend to discuss, is such anissue.But first let me make some general points to support the generalsuggestion I have just made. In western studies of fiqh, we have oftenomitted, justifiably or not, any consideration of the law's application.Among the valid justifications for doing so is the very vastness of thedoctrinal corpus. Another is that to get basic data on the law's historicalapplication is far more difficult than fvding its black-letter doctrine.Other justifications are more questionable. For one, we have often madecertain assumptions, which-stating them with due exaggeration-holdthat Islamic law, since it became stagnant at an early period, was usuallyignod in practice. As a d t of this, it is often maintained, fiqh retreatedinto the ideal world of scholarship while the application of the lawfell under the sway of arbitrary and despotic rulers. Approaching the lawwith such an impression, however much in the background, scholars ofIslamic law have, not surprisingly, spent little time on its application.This last justification for ignoring the law's application is now, I believe,rapidly eroding due to the efforts of scholars on many differentfronts. Some, notably Professor Hallaq, are at work countering the exaggeratedidea of the "closing of the door of ijtihad," a phrase used to conveythe idea that fiqh became utterly stultified at an early stage. Otherscholars ate examining late Shari'ah court records and legal documents ...

The Values and Norms of Islam

2010 ◽  
Vol 1 (1) ◽  
pp. 1-19
Author(s):  
Ahmed Akgunduz
Keyword(s):  
Islamic Law ◽  
Legal Theory ◽  
The Other ◽  
Moral Norms ◽  
Simple Fact ◽  
Value System ◽  
Legal Norms ◽  
Islamic Legal Theory ◽  
The World ◽  
Over Time

AbstractIslamic Law is one of the broadest and most comprehensive systems of legislation in the world. It was applied, through various schools of thought, from one end of the Muslim world to the other. It also had a great impact on other nations and cultures. We will focus in this article on values and norms in Islamic law. The value system of Islam is immutable and does not tolerate change over time for the simple fact that human nature does not change. The basic values and needs (which can be called maṣlaḥa) are classified hierarchically into three levels: (1) necessities (Ḍarūriyyāt), (2) convenience (Ḥājiyyāt), and (3) refinements (Kamāliyyāt=Taḥsīniyyāt). In Islamic legal theory (Uṣūl al‐fiqh) the general aim of legislation is to realize values through protecting and guaranteeing their necessities (al-Ḍarūriyyāt) as well as stressing their importance (al‐ Ḥājiyyāt) and their refinements (taḥsīniyyāt).In the second part of this article we will draw attention to Islamic norms. Islam has paid great attention to norms that protect basic values. We cannot explain all the Islamic norms that relate to basic values, but we will classify them categorically. We will focus on four kinds of norms: 1) norms (rules) concerned with belief (I’tiqādiyyāt), 2) norms (rules) concerned with law (ʿAmaliyyāt); 3) general legal norms (Qawā‘id al‐ Kulliyya al‐Fiqhiyya); 4) norms (rules) concerned with ethics (Wijdāniyyāt = Aḵlāqiyyāt = Ādāb = social and moral norms).

Islamic Law and Society

1990 ◽  
Vol 7 (2) ◽  
pp. 177-191
Author(s):  
Louay M. Safi
Keyword(s):  
Composite System ◽  
Islamic Law ◽  
Legal Theory ◽  
Fifth Century ◽  
Muslim Community ◽  
Social Growth ◽  
The Social ◽  
Collective Experience ◽  
Law And Morality ◽  
The Impact

Shari'ah (Islamic law) has been the dominant moral and legal code ofMuslim societies for the gnxter part of their history. During the early centuriesof Islam, Shari'ah hcilitated the social growth and develojment of the Muslims,growth that culminaa in the establishment of a vast emph and an outstandmgcivilization. By the close of the fifth century of Islam, however, Shari'ahbegan to lose its role as the guiding force that inspired Muslim creativityand ingenuity and that nurtured the growing spirit of the Muslim community(Ummah). Consequently, the Ummah entered a period of stagnation thatgradually gave way to intellectual decline and social decadence. Regrettably,this painful trend continues to be more or less 'part of the individualconsciousness and collective experience of Muslims.This paper attempts to trace the development of the principles of Islamicjurisprudence, and to assess the impact of Shari'ah on society. It argues thatthe law ceased to grow by the sixth century of Islam as a result of thedevelopment of classical legal theory; more specifically, law was put on hold,as it were, after the doctrine of the infallibility of ijma' (juristic consensus)was articulated. The rigid principles of classical theory, it is contended, havebeen primarily induced by the hulty epistemology employed.by sixth-centuryjurists.Shari'ah, or Islamic law, is a comprehensive system encompassing thewhole field of human experience. It is not simply a legal system, but rathera composite system of law and morality. That is, Islamic law aspires to regulateall aspects of human activities, not only those that may entail legalconsequences. Hence, all actions and relationships are evaluated in accordancewith a scale of five moral standards.According to Shari'ah, an act may be classified as obligatory (wajib),recommended (mandub), permissible (mubah), reprehensible (makruh), orprohibited (haram). These five categories reflect the varying levels of moral ...

scholarly journals The Theory of Interpretation in Solving Contemporary Legal Issues: With A Focus on the Instrument of Ijtihad

2018 ◽  
Vol 150 ◽  
pp. 05056
Author(s):  
Abdulrahman M.A.Albelahi ◽  
A. Ali ◽  
Faten Mohmed ◽  
Metwally Ali
Keyword(s):  
Islamic Law ◽  
Legal Theory ◽  
Legal Issues ◽  
Legal Interpretation ◽  
Way Of Life ◽  
Essential Question ◽  
Judicial Reasoning ◽  
The Law ◽  
Law And Legislation

Since the beginning, legal theory has concerned itself with the establishment of principles and precepts that govern the procedure of legal interpretation, from the initial stages of the judicial reasoning down to the promulgation of ruling and their implementation, Islam is a total way of life. Muslims are obliged to abide by the rules of Allah in every aspect of their lives, always and wherever they live. However, the actual rules of Allah as given in the Qur’an and the sunna are limited. The Qur’an contains only six hundred verses directly related to laws, and there are approximately two thousand hadiths. The function of interpretation is to discover the intention of the Lawmaker of the matter, therefore, interpretat primarily concerned with the discovery of that which is rot self-evident the objective of interpretation is to ascertain the intention c the Lawmaker with regard to what has been left unexpressed as a matter of necessary interference from the surrounding circumstances. Sometimes, the textual sources did not provide detailed guidelines in which to derive the law, and then the role of interpretation is important to determine the law. In Islamic law the role of Ijtihad undoubtedly important in order to meet new problems. But some of the Jurist contended that the role of Ijtihad had ended and we have to follow the rule that has been stated. An explanation given to this trend is that a point had been reached at which all essential question of law had been thoroughly discussed and further deliberation was deemed unnecessary. In Common law, man-made law and legislation are related to one another within a philosophy of law. Parliament makes law and it is the duty of the courts to give effect to them if properly enacted. While courts may rule that a particular statute or section is invalid for various reasons such as unconstitutionality, they cannot say, "We shall change this Act because it is not appropriate". That function belongs to Parliament (Wu Min Aun 1990: 120). So as in Islamic law, the Lawmaker is Allah S.w.t and the sacred text (Quran) is legislated due to His intention whereas Sunnah of the Prophet Muhammad is enacted due to the Prophet's intention. Therefore, Ulama of Usul Fiqh, in making any Ijtihad, they are du y bound to be guided by Quran and Sunnah.

scholarly journals The Legal Authority of the Jurist and Its Scope in Modern Iran

2020 ◽  
pp. 1-27
Author(s):  
Seyfeddin Kara
Keyword(s):  
Social Change ◽  
Islamic Law ◽  
Legal Theory ◽  
Political Authority ◽  
Legal Authority ◽  
Intrinsic Connection ◽  
Legal Perspective ◽  
The Social ◽  
The Subject

The development of Shīʿi jurisprudence has mostly been studied from the perspective of its relation to political authority. A handful of works that have examined the subject from a purely legal perspective, neglected the influence of Muslim societies on the evolution of Shīʿi legal theory. The paper examines the development of Shīʿi jurisprudence from a legal perspective and argues that there is an intrinsic connection between Islamic law (both Sunni and Shiʿi laws) and Muslim societies. Therefore, the changing values and expectations of society prompt changes in Islamic rulings. In this sense, the evolution of Shīʿi legal theory is no different to Sunni legal theory, and there are striking similarities between Khomeini's theory of Wilāyat al-Faqīh and the Sunni legal notion of maṣlaḥa which both aim to respond to the exigencies of the social change.

Legislation as an Instrument of Islamic Law

2016 ◽  
pp. 550-584
Author(s):  
Leonard Wood
Keyword(s):  
Nineteenth Century ◽  
Islamic Law ◽  
Legal Theory ◽  
Islamic World ◽  
Islamic Legal Theory ◽  
History Of

This article examines legislation as an instrument of Islamic law in the history of the Islamic world and in Islamic legal theory, with particular emphasis on the scholarly analysis of whether Islamic law can be legislated at all, and if so, how. It first reviews the scholarship on legislation in the Islamic world before the mid-nineteenth-century Ottoman reforms (tanzimat)—the “premodern” centuries. It then considers legislation after the mid-nineteenth century—the “modern” centuries—by looking at scholars’ preoccupations with the apparent novelty of modern legislation and its debatable Islamicity. It also discusses empirical dilemmas underlying these preoccupations and competing scholarly approaches to theorizing and studying the proper relationship between legislation and Islam. The article concludes by suggesting four paths forward in the analysis of legislation as an instrument of Islamic law.

The Age of Development and Continuity, 12th–15th Centuries CE

2015 ◽  
pp. 436-458
Author(s):  
Marion Katz
Keyword(s):  
Real World ◽  
Historical Development ◽  
Islamic Law ◽  
Legal Theory ◽  
Intellectual Functioning ◽  
The Law ◽  
Legal Judgments ◽  
Legal Opinion

This article examines the historical development and social and intellectual functioning of Islamic law in the twelfth through fifteenth centuries. In particular, it considers the progressive stabilization and institutionalization of the four classical Sunni madhhabs (schools of law) and the corresponding developments in Imami Shi‘ism; developments in legal theory (usul al-fiqh); and the practical administration of the law. It also discusses the various forms of ijtihad and taqlid that could generate new legal rulings, along with the textual forms and real-world interactions within which legal judgments were sought and expressed. Finally, it looks at the fatwa, which consists of a legal opinion issued in response to an inquiry (istifta’).

scholarly journals A Historiography of Islamic Law in the Mughal Empire

2016 ◽  
pp. 492-510
Author(s):  
M. Reza Pirbhai
Keyword(s):  
South Asia ◽  
Islamic Law ◽  
Legal Theory ◽  
Theory And Practice ◽  
British Colonialism ◽  
Mughal Empire ◽  
Qualitative And Quantitative ◽  
Two Factors ◽  
State Archives ◽  
Late Works

Whereas political and cultural histories of the Mughal Sultanate (1526–1858) abound, the study of Islamic law under the state’s auspices is less clearly drawn. This article considers the reasons behind the dearth by outlining the process by which major archival collections came into being and critically evaluating the secondary works produced over the last century and half. It argues that two factors are primarily responsible: 1) the qualitative and quantitative paucity of extant documentation as a consequence of no Mughal state archives and the fact that contemporary collections originated with British colonialism; 2) the approach too often taken by historians of South Asia. Early secondary works make little to no distinction between treatises reflexive of legal theory and practice, while many late works compensate by considering theory entirely divorced from Mughal practice. For the study of Islamic law under the Mughals to progress, practical and theoretical obstacles must be overcome.

Money in Classical Islam: Legal Theory and Economic Practice

2018 ◽  
Vol 25 (4) ◽  
pp. 427-466
Author(s):  
Norbert Oberauer
Keyword(s):  
Islamic Law ◽  
Legal Theory ◽  
Theoretical Concept ◽  
Theory And Practice ◽  
Money Markets ◽  
Economic Practice ◽  
Wide Range ◽  
The Relationship

AbstractThe present study examines the conception of money in classical Islamic law, specifically the relationship between scholarly discourses on money and actual economic practice. I shall argue that the theoretical concept of money was to some extent a fiction. Muslim jurists conceived of money in terms of a three-tier currency system that involved gold dinars, silver dirhams and copper fulūs. The market was much more complex. A wide range of coins of various metallic content, weight and value circulated. In the first part of the study I describe the complexity of Islamic money markets. In the second part, I investigate how scholars reacted to the gap between theory and practice and posit some tentative conclusions about the relationship between Islamic law and practice.

The Islamic and Western Cultures and Values of Privacy

2019 ◽  
Vol 16 (1) ◽  
pp. 51-80
Author(s):  
Sattam Eid Almutairi
Keyword(s):  
Islamic Law ◽  
Legal Theory ◽  
Self Determination ◽  
Crucial Importance ◽  
Limited Government ◽  
Privacy Law ◽  
Evidence Rules ◽  
The Usa ◽  
The Impact ◽  
Mass Surveillance

AbstractThe paper provides valuable accounts of the general concepts underlying privacy law in both cultures, and great detail about the impact of criminal procedure and evidence rules on privacy in reality rather than legal theory. It is, in this sense, a “realist” approach to privacy, particularly but not exclusively in relation to sexual activity. The distinction which the article draws between the frameworks within which privacy is conceived broadly, self-determination and limited government in the USA, protection of one’s persona in Europe, and reputation in Islamic law. However, the paper argues that Western and Islamic traditions share many of the same concepts about the tests to be applied when deciding how far an intrusion on privacy is justified and value many of the same interests in doing so. At the same time, it will highlight those areas where they differ which are not ones of crucial importance when deciding, for example, what are the proper limits on mass surveillance. Indirectly, this shows that even though there may be stark differences between the cultures on some points, there is enough agreement on some aspects of privacy to make comparisons in relation to issues such as mass surveillance.

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