The Codification Episteme in Islamic Juristic Discourse between Inertia and Change

2015 ◽  
Vol 22 (3) ◽  
pp. 157-220 ◽  
Author(s):  
Ahmed Fekry Ibrahim
Keyword(s):  
Islamic Law ◽  
Boundary Crossing ◽  
Coherent System ◽  
Legal Change ◽  
Legal Rules ◽  
Conventional View ◽  
Evolutionary Trajectories ◽  
Substantive Law ◽  
Legal Methodology ◽  
The Relationship

Many historians view Islamic law as an organic and methodologically coherent system in which there is a systematic link between legal methodology (uṣūl) and substantive law (furūʿ). In this essay, I will argue against the conventional view, drawing support from the evolutionary trajectories of four genres of juridical writing: abridged legal compendia (mukhtaṣars); juristic disagreement (ikhtilāf); the commentary/supercommentary (sharḥ/ḥāshiya); and legal responsa (fatāwā) genres. The post-thirteenth century evolution of these genres reveals a pronounced tendency to marginalize the relationship between legal methodology and substantive law, privileging a codification ethos. Judges and low-ranking jurisconsults were expected to “apply” legal rules and frequently abandoned legal methodology as an avenue for legal change in favor of pragmatic school boundary-crossing. In doing so, they were less concerned with intra-school methodological coherence than with pursuing juristic flexibility by focusing on the content of the law rather than its process.


Origins of and Influences on Islamic law

2015 ◽  
pp. 384-402
Author(s):  
Benjamin Jokisch
Keyword(s):  
Early Development ◽  
Islamic Law ◽  
Legal Institutions ◽  
Legal Systems ◽  
Law Schools ◽  
General Conception ◽  
Substantive Law ◽  
The Relationship

This article examines the origins and evolution of Islamic law as well as its influences. In particular, it considers four major issues of Islamic law discussed by the shari‘a experts, namely: the general conception of Islamic law; the role of pre-Islamic tribal law; Islamic substantive law and the question of interaction with non-Islamic legal systems; and the early development of Islamic legal institutions such as judgeship, market inspection, law schools, and colleges. It also discusses the relationship between state and law and the factors that contributed to the institutionalization of the Islamic judiciary. Finally, it traces the origins and evolution of Islamic law according to the approaches of the traditionalists and skeptics, along with the most important objections to each approach.

Contemporary Qur'anic Studies in Iran and its Relationship with Qur'anic Studies in the West

2012 ◽  
Vol 14 (1) ◽  
pp. 45-72
Author(s):  
Morteza Karimi-Nia
Keyword(s):  
Islamic Law ◽  
Human Sciences ◽  
The West ◽  
Communications Technologies ◽  
Religious Learning ◽  
The Status ◽  
Islamic Republic Of Iran ◽  
Almost All ◽  
The Impact ◽  
The Relationship

The status of tafsīr and Qur'anic studies in the Islamic Republic of Iran has changed significantly during recent decades. The essay provides an overview of the state of Qur'anic studies in Iran today, aiming to examine the extent of the impact of studies by Western scholars on Iranian academic circles during the last three decades and the relationship between them. As in most Islamic countries, the major bulk of academic activity in Iran in this field used to be undertaken by the traditional ʿulamāʾ; however, since the beginning of the twentieth century and the establishment of universities and other academic institutions in the Islamic world, there has been increasing diversity and development. After the Islamic Revolution, many gradual changes in the structure and approach of centres of religious learning and universities have occurred. Contemporary advancements in modern sciences and communications technologies have gradually brought the institutions engaged in the study of human sciences to confront the new context. As a result, the traditional Shīʿī centres of learning, which until 50 years ago devoted themselves exclusively to the study of Islamic law and jurisprudence, today pay attention to the teaching of foreign languages, Qur'anic sciences and exegesis, including Western studies about the Qur'an, to a certain extent, and recognise the importance of almost all of the human sciences of the West.

KONSTRUKSI ISLAM DALAM KEKUASAAN NEGARA

1970 ◽  
Vol 6 (2) ◽  
Author(s):  
Nurul Aini Musyarofah
Keyword(s):  
Islamic Law ◽  
Social Condition ◽  
The Other ◽  
Good Society ◽  
Ideal Form ◽  
Other Hand ◽  
Islamic Politics ◽  
The Relationship ◽  
The Ideal

The relationship between Islam and state raises a controversy that includes two main groups;formalists and substantialists. Both of them intend to achieve a good social condition which is inaccordance with Islamic politics. The ideal form of good society to be achieved is principallydescribed in the main source of Islamic law, Al Qur’an and As Sunnah, as follows. A form of goodsociety should supprot equality and justice, egalitarianism, and democracy in its social community.The next problem is what the needed methods and instruments to achieve the ideal Islamic politicsare. In this case, the debate on the formalization and substance of Islamic teaching is related to therunning formal political institution.Each group claims itself to be the most representative to the ideal Islam that often leads to anescalating conflict. On the other hand thr arguments of both groups does not reach the wholeMuslims. As a result, the discourse of Islam and state seems to be elitist and political. As a result,Both groups suspect each other each other and try to utilize the controversy on the relationshipbetween Islam and state to get their own benefit which has no relation with the actualization ofIslamic teaching.

Content Analysis (Analisis Isi) terhadap Peraturan Daerah Bernuansa Syariat Islam di Kabupaten Banyumas

2019 ◽  
Vol 1 (2) ◽  
pp. 121
Author(s):  
Dody Nur Andriyan
Keyword(s):  
Disease Management ◽  
Public Interest ◽  
Islamic Law ◽  
Alcoholic Beverages ◽  
Public Issues ◽  
Criminal Sanctions ◽  
Qualitative Descriptive ◽  
Administrative Sanctions ◽  
And Control ◽  
The Relationship

Regional Regulation (Perda) which regulates public issues such as prostitution, alcoholic beverages, gambling, and the relationship between men and women turns out to be identified as a Regional Regulation with nuances of Islamic law. in Banyumas Regency there is a Regional Regulation which if used by the identification of Arfiansyah above, it can be referred to as a Regional Regulation with nuances of Islamic law. The regulation is: Banyumas District Regulation Number 15 of 2014 concerning Control, Supervision and Control of Circulation of Alcoholic Beverages and Regional Regulations of Banyumas Regency Number 16 of 2015 concerning Community Disease Management. This research has two formulations of the first problem related to the results of the content of the analysis on the Perda that are nuanced by Islamic law in Banyumas Regency. Both of the results of the analysis content on the Regional Regulations that are nuanced by Islamic law in Banyumas Regency are not contrary to Law-Invitation Number 12 of 2011? This research is a qualitative-descriptive study. The research method used is normative juridical. The main source of data is the Banyumas District Regulation Number 15 of 2014 concerning Control, Supervision and Control of Circulation of Alcoholic Beverages and Regional Regulations of Banyumas Regency Number 16 of 2015 concerning Community Disease Management. Interviews were also conducted with resource persons. Furthermore, the results of the analysis were carried out. Regional Regulation No. 15 of 2014 is actually a Regional Regulation that has a broad purpose of public interest, for the nation and state. So that the claim that Perda No 15 of 2014 as a Regional Regulation with nuances of Islamic law is not true. Regional Regulation No. 16 of 2015 is actually a Regional Regulation that has a broad purpose of public interest, for the nation and state. So that the claim that Perda No 16 of 2015 as a Regional Regulation with nuances of Islamic law is not true. Both of these Perda (Perda No 15 of 2014 and Perda No. 16 of 2015) are not in conflict with Law No. 12 of 2011 concerning the Establishment of Legislation. Both in terms of content, principles, goals, arrangements, administrative sanctions and criminal sanctions. Formally and procedurally the two Perda are in accordance with Law Number 12 of 2011

سؤال العلاقة بين الفطرة والشريعة: قراءة معرفية (The Question of the Relationship between Shariah and Human Nature/fitrah: An Epistemological Review)

2018 ◽  
Vol 15 (1) ◽  
pp. 1-42
Author(s):  
المختار الأحمر
Keyword(s):  
Human Nature ◽  
Islamic Law ◽  
Interconnected Systems ◽  
Evolutionary Aspect ◽  
Islamic Thought ◽  
The Creation ◽  
The Relationship ◽  
Evolutionary Aspects ◽  
Shed Light

الملخّص يتناول البحث علاقة الفطرة بالشريعة في التفكير الإسلامي، وما تطرحه هذه العلاقة سواء على مستوى بيان الجوانب المتعلقة بخَلْق الإنسان وما فُطِر عليه ابتداء، وهذا البعد يمثّل الجانب التكوني في مفهوم الفطرة، أو على المستوى المتعلق بالشريعة وفطريتها، أي أنها جارية وفق ما يدركه العقل وتشهد به الفطرة، وهذا البعد يمثّل الجانب التشريعي الذي يطرحه مفهوم الفطرة. لقد زخرت أغلب الكتابات بتناول جانبا واحدا مما يتيحه أو يعكسه مفهوم الفطرة، لكن البحث في العلاقة التناسبية بين الفطرة والشريعة، وما يتيحه هذا النظر المتلازم بين المفهومين على مستوى الإمكانات المتعلقة بقدرات الإنسان الفطرية في فهم وتعقّل الخطاب الشرعي والأحكام التكليفية، والوقوف على غاياته ومقاصده، يبقى في حاجة إلى البحث والاستقصاء. ولذلك تأتي هذه الدراسة لتسليط الضوء على الجانب التشريعي والتكويني في علاقة الشريعة بالفطرة، باعتبارهما نظامين متلازمين يتيحان فهم طبيعة الشريعة وأحكامها ومقاصدها من جهة، وتحديد جوهر وماهية الإنسان الفطرية وإمكاناته في تعقّل هذه الشريعة من جهة ثانية.                  الكلمات المفتاحية: الفطرة، الشريعة، الدين، التكاليف، العقل. Abstract This research addresses the relationship between premordial human nature (fitrah) and Islamic law (SharÊÑah) within the frame of Islamic thought, while exploring the questions it raises at two levels. The first level explains the aspects related to the creation of man and what has initially been bestowed upon him, which represents the evolutionary aspect of the concept of fiÏrah. The second level is related to SharÊÑah and its nature, which evolves according to what is percieved by reason and witnessed by fiÏrah; this represents the legislative aspect presented by the concept of fiÏrah. The majority of studies to date address a single aspect of the illustrations of the concept of fiÏrah. However, research on the dialectic relationship between fiÏrah and SharÊÑah and what its relevant concurrent view provides at the level of potentials related to human innate capacities in understanding and realizing SharÊÑah discourse and mandatory provisions as well as understanding its objectives  remains scarce and requires further research and investigation. Therefore, this study intends to shed light on the legislative and evolutionary aspects of the relationship between SharÊÑah and fiÏrah as two interconnected systems that allow for the understanding of the nature of SharÊÑah, its provisions and purposes, as well as identifying the essence of human innate nature and its potential in perceiving SharÊÑah. Keywords: human nature (fiÏrah), Islamic law (SharÊÑah), religious mandates (TakÉlif), religion, intellect (ÑAqal).

The Dynamics of Society-in-the-Self

2018 ◽  
Author(s):  
Hubert J. M Hermans
Keyword(s):  
Social Environment ◽  
The Self ◽  
Boundary Crossing ◽  
The World ◽  
Self And Identity ◽  
New Vision ◽  
New Phenomena ◽  
The Relationship

In the field of tension between globalization and localization, a set of new phenomena is emerging showing that society is not simply a social environment of self and identity but works in their deepest regions: self-radicalization, self-government, self-cure, self-nationalization, self-internationalization, and even self-marriage. The consequence is that the self is faced with an unprecedented density of self-parts, called I-positions in this theory. In the field of tension between boundary-crossing developments in the world and the search for an identity in a local niche, a self emerges that is characterized by a great variety of contradicting and heterogeneous I-positions and by large and unexpected jumps between different positions as the result of rapid and unexpected changes in the world. The chapter argues that such developments require a new vision of the relationship between self and society.

A Layered Approach to Jurisdiction

2017 ◽  
Author(s):  
Dan Jerker B. Svantesson
Keyword(s):  
Data Protection ◽  
Data Privacy ◽  
General Data Protection Regulation ◽  
Legal Rules ◽  
Privacy Laws ◽  
Scope Of Application ◽  
General Data ◽  
Layered Approach ◽  
Substantive Law

This chapter observes how it may be inappropriate to apply a single jurisdictional threshold to diverse instruments such as data privacy laws. In the light of this observation, a proposal is outlined for a ‘layered approach’ under which the substantive law rules of such instruments are broken up into different layers, with different jurisdictional thresholds applied to each such layer. This layered approach is discussed primarily as a technique to be utilized in legal drafting, but it may also be applied in the interpretation and application of legal rules. Article 3 of the European Union’s General Data Protection Regulation, which determines that regulation’s scope of application in a territorial sense, provides a particularly useful lens through which to approach this topic and, thus, the discussion is largely centred around that Article.

scholarly journals The Principle of Directive-Compliant Development of the Law and the Contra Legem Limit

2020 ◽  
Vol 16 (4) ◽  
pp. 465-488
Author(s):  
Thomas M.J. Möllers
Keyword(s):  
Case Law ◽  
Third Party ◽  
Broad Term ◽  
Legal Texts ◽  
Classical Methodology ◽  
The Law ◽  
Legal Methodology ◽  
The Relationship ◽  
Further Development ◽  
Domestic Law

AbstractThe Europeanisation of domestic law calls for a classical methodology to ‘update’ the established traditions of the law. The relationship between European directives and national law is difficult, since directives do apply, but European legal texts need to be implemented into national law. Whilst directives are not binding on private individuals, there is no direct third-party effect, but only an ‘indirect effect’. This effect is influenced by the stipulations of the ECJ, but is ultimately determined in accordance with methodical principles of national law. The ECJ uses a broad term of interpretation of the law. In contrast, in German and Austrian legal methodology the wording of a provision defines the dividing line between interpretation and further development of the law. The article reveals how legal scholars and the case-law have gradually shown in recent decades a greater willingness to shift from a narrow, traditional boundary of permissible development of the law to a modern line of case-law regarding the boundary of directive-compliant, permissible development of the law.

Turnout and the Vote: The Joke's on the Democrats

1980 ◽  
Vol 74 (2) ◽  
pp. 406-420 ◽  
Author(s):  
James DeNardo
Keyword(s):  
Empirical Evidence ◽  
Common Sense ◽  
Majority Party ◽  
Conventional View ◽  
Theoretical Reasoning ◽  
The Relationship

A heavy turnout is commonly believed to favor the Democrats. This study presents theoretical reasoning and empirical evidence that challenge the conventional view. Reasonable assumptions about the behavior of core and peripheral voters lead to the conclusion that the majority party is most likely to suffer when turnout increases, common sense notwithstanding. It also appears that the recent decay of partisan loyalties among voters has eroded the relationship between turnout and the vote.

scholarly journals Cyber Attacks, Information Attacks, and Postmodern Warfare

2017 ◽  
Vol 10 (1) ◽  
pp. 63-89 ◽  
Author(s):  
Jozef Valuch ◽  
Tomáš Gábriš ◽  
Ondrej Hamuľák
Keyword(s):  
International Law ◽  
Subject Matter ◽  
Case Law ◽  
Cyber Attacks ◽  
Armed Conflicts ◽  
Information Warfare ◽  
Law Of War ◽  
Legal Rules ◽  
The Subject ◽  
The Relationship

Abstract The aim of this paper is to evaluate and differentiate between the phenomena of cyberwarfare and information warfare, as manifestations of what we perceive as postmodern warfare. We describe and analyse the current examples of the use the postmodern warfare and the reactions of states and international bodies to these phenomena. The subject matter of this paper is the relationship between new types of postmodern conflicts and the law of armed conflicts (law of war). Based on ICJ case law, it is clear that under current legal rules of international law of war, cyber attacks as well as information attacks (often performed in the cyberspace as well) can only be perceived as “war” if executed in addition to classical kinetic warfare, which is often not the case. In most cases perceived “only” as a non-linear warfare (postmodern conflict), this practice nevertheless must be condemned as conduct contrary to the principles of international law and (possibly) a crime under national laws, unless this type of conduct will be recognized by the international community as a “war” proper, in its new, postmodern sense.

Sign in / Sign up

Export Citation Format

Share Document