scholarly journals حنفی اصولی فکر : مشائخ سمرقند کی آرا کا تنقیدی جائزہ اصول السرخسی کے مطالعے کی روشنی میں

2021 ◽  
Vol 59 (1) ◽  
Author(s):  
Muhammmad Rafeeq Shinwari
Keyword(s):  
Legal Theory ◽  
The Other ◽  
Chronological Order ◽  
Substantive Law

The Ḥanafī legal theory is characterized by the fact that unlike other Islamic legal theories it has been extracted from the Ḥanafī fiqh developed by its founding jurists. Later, the Ḥanafī fiqh seems to have gradually split down into trends; one representing the jurists/theorists of ‘Irāq and the other representing those of Mā Warā’ al-Nahr/Samarqand. Both of these trends have left a great impact on the Ḥanafī legal theory. The paper aims to look over this bifurcation and trace its origins to the Ḥanafī fiqh itself. For this purpose, it analyses the works of pioneering Ḥanafī theorists such as Abū Bakr al-Jaṣṣāṣ, Abū Zayd al-Dabūsī, Abū al-Ḥasan al-Bazdawī, and Muḥammad b. Aḥmad al-Sarakhsī in chronological order. The paper finds that al-Jaṣṣāṣ is the pioneer in terms of the development of the Ḥanafī legal theory; al-Dabūsī’s work is characterized by introducing new terminologies; and the works of al-Bazdawī and al-Sarakhsī are useful for arriving at the conclusive stance of the Ḥanafī legal theory. Though the latter two theorists belonged to Mā Warā’ al-Nahr, their preference in some occasions for the views of ‘Irāqī theorists indicate that they did not engage as communal competitors; rather, they played their roles as referees by relying greatly on Ḥanafī fiqh while developing Ḥanafī legal theory. They made robust efforts for tracing the origin of a Ḥanafī theoretical viewpoint to Ḥanaf┘ substantive law or furū‘. This is how they successfully showed the coherency and consistency in Ḥanafī fiqh and uṣūl. This paper specially focuses on al-Sarakhsī’s Uṣūl in which he critically examined the views of his predecessors from Mā Warā’ al-Nahr r on certain issues.

MARRYING FATIMID WOMEN: LEGAL THEORY AND SUBSTANTIVE LAW IN SHĪ'Ī JURISPRUDENCE

1999 ◽  
Vol 6 (1) ◽  
pp. 38-68
Author(s):  
Robert Gleave
Keyword(s):  
Legal History ◽  
Legal Theory ◽  
The Other ◽  
Substantive Law ◽  
The Relationship

In this essay, I examine one area of substantive law (furū' al-flqh) which figured prominently in the Akhbārī-Uṣūlī dispute in Shī̒̒'ī legal history: the legality of the marriage of one man to two women descended from the daughter of the Prophet, Fāṭima. Through an analysis of two risālas on this issue, one by an Akhbārī and the other by an Uṣūlī, I aim to demonstrate that the relationship between Uṣūl alfiqh and substantive law in the Akhbārī school differed from that in the Uṣūlī school, and that this difference was not due to their two different legal theories alone, but stems from two divergent conceptions of the function of legal theory and its role in the derivation of legal rulings.

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).

Preventive Confinement of Dangerous Offenders

2004 ◽  
Vol 32 (1) ◽  
pp. 56-72 ◽  
Author(s):  
Stephen J. Morse
Keyword(s):  
Legal Theory ◽  
The Other ◽  
Legal Issue ◽  
Central Theme ◽  
Sexual Predators ◽  
Dangerous Offenders ◽  
New Form ◽  
The Law ◽  
The One ◽  
Constitutional Regime

How to respond justly to the dangers persistent violent offenders present is a vexing moral and legal issue. On the one hand, we wish to reduce predation; on the other, we want to treat predators fairly. The central theme of this paper is that it is difficult to achieve both goals without compromising one of them, and that both are being seriously undermined. I begin by explaining the legal theory, doctrine and practice governing dangerous offenders (DO) and demonstrate that the law leaves a gap in the ability to confine them. Next I explore the means by which the law has overtly or covertly sought to fill the gap. Many of these measures, especially the new form of civil commitment for sexual predators, dangerously conflate moral and medical categories. I conclude that pure preventive detention is more common than we usually assume, but that this practice violates fundamental assumptions concerning liberty under the American constitutional regime.

Ali Smith

2016 ◽  
Author(s):  
Daniel Lea
Keyword(s):  
Short Stories ◽  
Analytical Study ◽  
The Other ◽  
Moral Sense ◽  
Chronological Order

This chapter explores the writing of Ali Smith from the late 1990s to the publication of How to be Both (2014). It concentrates primarily on her novels and short stories, though some attention is paid to her occasional writings. The chapter is broken into two broad generic sections, the first addressing her short stories together, the second her novels in chronological order. Each text is given close analytical study through formal, stylistic, and thematic critique, building to an overview of an author whose moral sense of duty for the care of the other is paradoxically set against her confusion at the impenetrability of that other’s being.

What Does E- add to Democracy?

2014 ◽  
pp. 200-223 ◽  
Author(s):  
Patricia Mindus
Keyword(s):  
Legal Theory ◽  
Theoretical Work ◽  
The Other ◽  
Practical Philosophy ◽  
Internet Politics ◽  
Online Politics ◽  
The One ◽  
Past Experiences ◽  
The Web ◽  
Current Emphasis

Technologies carry politics since they embed values. It is therefore surprising that mainstream political and legal theory have taken the issue so lightly. Compared to what has been going on over the past few decades in the other branches of practical thought, namely ethics, economics, and the law, political theory lags behind. Yet the current emphasis on Internet politics that polarizes the apologists holding the Web to overcome the one-to-many architecture of opinion building in traditional representative democracy, and the critics who warn that cyber-optimism entails authoritarian technocracy has acted as a wake up call. This chapter sets the problem, “What is it about ICTs, as opposed to previous technical devices, that impact on politics and determine uncertainty about democratic matters?,” into the broad context of practical philosophy by offering a conceptual map of clusters of micro-problems and concrete examples relating to “e-democracy.” The point is to highlight when and why the hyphen of e-democracy has a conjunctive or a disjunctive function in respect to stocktaking from past experiences and settled democratic theories. The chapter's claim is that there is considerable scope to analyse how and why online politics fail or succeed. The field needs both further empirical and theoretical work.

Competition Law in Europe

2020 ◽  
pp. 103-114
Author(s):  
David J. Gerber
Keyword(s):  
Reference Point ◽  
Competition Law ◽  
Institutional Arrangements ◽  
The Other ◽  
Multiple Voices ◽  
The Us ◽  
National Boundaries ◽  
Substantive Law ◽  
European Competition Law

European competition law is the other central player in the competition law world, so an entire chapter is devoted to understanding how it works and how to deal with it. Virtually all firms operating beyond their own national boundaries need to pay attention to it, many regimes use it as a model and reference point, and its institutions have broad and often deep influence on many others. Some aspects of the substantive law are similar to US antitrust, but the similarities are sometimes misleading. For example, EU law uses economic analysis in ways that often differ from how it is used in the US. Procedural and institutional arrangements are often complicated. They represent multiple voices, as national and EU institutions function together to create, apply, and enforce competition law. The chapter reveals how this system functions and what factors guide decisions in it. It looks, in particular, at the institutional arrangements between the EU and its member states, including the role of the European Competition Network.

scholarly journals Recepcija rimskog prava na glagoljici

2020 ◽  
Vol 41 (2) ◽  
pp. 469-482
Author(s):  
Ivan Milotić
Keyword(s):  
Dispute Resolution ◽  
Canon Law ◽  
The Other ◽  
Roman Law ◽  
Legal Tradition ◽  
Legal Principles ◽  
Ius Commune ◽  
Roman Model ◽  
Substantive Law ◽  
Made In

The protocol of Petar Lazarić, who was simultaneously a domestic priest, prebendary and a notary of Mošćenice, dates back to 1621. It originated in Mošćenice and records in glagolithic script a resolution of a private dispute concerning the property division which was achieved in arbitration. Although the wording of the documents reveals the glagolithic script and is fully made in the Croatian language, if we go beyond that and explore the origins of the essential terms and expressions, we may reach a conclusion that the document substantially records Latin (or Italian) legal technical language which was slightly Croatised in the process of its adoption into the legal system of the commune of Mošćenice. Moreover, the content of the document puts forth legal principles, concepts and institutes of the extrajudicial dispute resolution which were consistently applied in Mošćenice following the model of arbitration in Roman law. All the essentials of the document at hand reflect the strong influences of the Roman legal tradition and the ius commune. The author provides an analysis in this paper which addresses all the relevant institutes that were applied in the arbitration dispute at hand referring to the procedural and substantive law at the same time. The author searches for the Roman model of these institutes, evaluates them from perspective of Roman and canon law of the Middle and New Ages and, finally, he brings this particular legal source in relation to the other two which originated in Mošćenice in the first half of the 17th century that both record significant influences of the Roman legal tradition of the time: The Statute of Mošćenice of 1637 and the boundary dispute between Lovran and Mošćenice of 1646.

Part I Histories, Ch.6 The Ottoman Empire, the Origins of Extraterritoriality, and International Legal Theory

2016 ◽  
Author(s):  
Özsu Umut
Keyword(s):  
Nineteenth Century ◽  
International Law ◽  
Ottoman Empire ◽  
Legal Theory ◽  
The Other ◽  
State Institutions ◽  
The One ◽  
Intellectual Production

This chapter argues that it was partly through engagement with the Ottoman Empire, particularly its tradition of extraterritorial consular jurisdiction, that nineteenth-century European and American jurists came to view China, Japan, and a number of other states as ‘semi-civilized’, setting them against ‘civilized’ states on the one hand and ‘savage’ peoples on the other. These states on the ‘semi-periphery’ exercise a greater degree of agency in international law, given their closeness to dominant centers of economic and intellectual production that had come under their influence, as well as their possession of national traditions and state institutions resilient enough to resist formal colonization. These traits are especially evident in the case of the Ottoman Empire, a powerful state that made a point of modifying its profile for different audiences.

Political World

1990 ◽  
Vol 3 (2) ◽  
pp. 139-153
Author(s):  
Brian Langille
Keyword(s):  
Ludwig Wittgenstein ◽  
Legal Theory ◽  
Status Quo ◽  
The Other ◽  
Political World ◽  
Other Hand ◽  
The Status ◽  
Critical Legal Theory ◽  
The One

It is not transparently obvious why legal theorists are increasingly attracted to the ideas and methods of Ludwig Wittgenstein. After all, Wittgenstein’s writings are notoriously difficult and he said almost nothing, and certainly nothing sustained, about law. And why would self-proclaimed legal theorists be attracted to someone who was quite explicitly hostile to “theory”, who viewed philosophy as a sort of therapy, and who said, famously, “philosophy leaves everything as it is”? But a still more interesting question is, why has Wittgenstein received such curious and conflicting treatment at the hands of the critical legal theorists? On the one hand critical legal theory celebrates Wittgenstein’s work as a key to the dismantling of traditional jurisprudence, but on the other hand critical scholars bemoan his alleged debilitating endorsement of the status quo. It is this last question upon which this essay is focussed.

Choosing a Legal Theory on Moral Grounds

1986 ◽  
Vol 4 (1) ◽  
pp. 31-48 ◽  
Author(s):  
Philip Soper
Keyword(s):  
Natural Law ◽  
Moral Theory ◽  
Legal Theory ◽  
Moral Authority ◽  
Legal Positivism ◽  
The Other ◽  
Law And Morality ◽  
The Cost ◽  
Practical Implications

I. INTRODUCTIONTwenty-five years is roughly the time that has elapsed since the exchange between H. L. A. Hart and Lon Fuller and the subsequent revival in this country of the natural law/positivism debate. During this time, a curious thing has happened to legal positivism. What began as a conceptual theory about the distinction between law and morality has now been turned, at least by some, into a moral theory. According to this theory, the reason we must see law and morality as separate is not (at least not entirely) because of the logic of our language, but because of the practical implications of holding one or the other of the two traditional views in this area. The natural law theorist, it is said, can connect law and morality only at the cost of investing official directives with undeserved moral authority, thus encouraging obedience where there should be none. The natural law position should therefore be rejected – and the positivist's accepted – on moral grounds.

Sign in / Sign up

Export Citation Format

Share Document