Consult Your Heart

In this article, I explore the authority of the heart (qalb) as a potential locus for the individual moral knowledge and normativity in Islamic ethics. To do so, I discuss the two ḥadīths that ostensibly suggest one’s “self” as a source of moral judgment. These ḥadīths raise renewed questions about the sources of moral judgment, the nature of moral judgment and the ethical capacity of the “self” (conscience)—“consult your heart and consult your self …”; “righteousness is good conduct, and sin is that which rankles in your chest and which you would hate for other people to look upon.” There are rich debates in the Islamic tradition on the place and authority of the bāṭin (inward) in generating moral knowledge, which correspond to contemporary discourses in Western ethics on the place of conscience in the moral formation of the individual. In this article, I argue that although Islamic legal tradition as a discipline has focused on qualified external actions of individuals and the ijtihād (independent legal reasoning) of mujtahids (jurists), it did not ignore the authority of the bāṭin for moral assessment and the ijtihād of common individuals. I propose that the inward dimension has always occupied an important space within the interdisciplinary field of Islamic ethics but has been overshadowed by the overarching theological disputes between the Muʿtazilīs and Ashʿarīs over the sources of knowledge. The article starts by exploring the relevant aḥādīth (reports) and their interpretation in ḥadīth commentaries, followed by an analysis of discussions in the fields of Islamic jurisprudence and Sufism.

Reason and Ethics and an Islamic Reformation

The fourth chapter argues that the Shi‘i claim that the moral value of an act can be known objectively enables a jurist to deduce new injunctions based on moral rationalist considerations. The chapter also maintains that legal determinations based on rational and ethical considerations can empower a jurist to legislate on topics that are congruent with the views of the people of sound mind. It further demonstrates that disregarding the role of ethics in legal deliberations has led to the inference and issuance of iniquitous statements by the very scholars who uphold the Islamic ethical and legal tradition. In order to make Islamic jurisprudence more ethical, Muslim scholars will have to incorporate principles like justice, dignity, and judgments of reason (‘aql) in their legal deliberations so that these principles play more central and decisive roles in determining how the sources are interpreted and applied.

c) Cuba: A Sui Generis Case Study (Communist Proxy)

The anti-clerical elements of the Revolution helped Cuba succeed in various indicators (e.g. education quality and coverage, equality, health). The Cuban regime seized, dismantled, and limited the institutional influence of Roman Catholicism on these areas of public life. However, a strong cultural influence of a highly syncretised Roman Catholicism persists in Cuba even if its institutional influence has been curbed. Also, the Communist regime, by adopting Marxism, “threw the baby out with the bathwater” through persecuting all types of religion, including Protestant liberals. Finally, the Cuban regime conveniently turned to Rome to legitimise itself after the collapse of the Soviet Union and to silence Protestantism with a corporatist strategy. The socialist legal tradition had an effect opposite to its claims (e.g. lack of freedom, corruption), even if its anti-clerical element was an advantage. Comparing the Cuban experience to other Latin American countries with leftist dictatorships (e.g. Venezuela) helps understand their failure to achieve the Cuban indicators (e.g. education). The crucial factor in this regard is whether or not the power and influence of the Roman Church-State are reduced.

Taking the Stand: Women as Witnesses in New Zealand’s Colonial Courts c.1840-1900

<p>The study considers women as witnesses in New Zealand’s colonial courts from c.1840 to 1900. An analysis of women as witnesses adds another dimension to what is known about the everyday but often compelling presence of women in New Zealand’s colonial courts. In 1840 British law was formally implemented in Aotearoa/New Zealand. The law’s institutional structures would soon follow. In 1841 the Supreme Court was established followed by the Resident Magistrate Courts in 1846. The courts were a part of formal British governance. While women were excluded from serving as judges, barristers, solicitors, court officials and jury members, they did appear before the courts as victims, defendants, spectators and witnesses. Being a witness was the only form of verbal participation women could undertake in the court processes during the nineteenth century. Existing scholarly work has tended to concentrate on women appearing in the courts in the nineteenth century as victims or defendants. This study explores the complex agency of women using the law and as active participants in its deliberations. Four substantive chapters consider women as witnesses in cases involving petty offences, violent crime, civil cases and the Native Land Court and finally cases of divorce, bigamy and action of breach of promise of marriage. Courts were significant public places in colonial New Zealand. They were places where disputes were settled, grievances could be aired, conduct was put on trial and order was maintained. A long established element of the legal tradition was that unprejudiced and fair justice could only be assured if the courts were open and public spaces. Thus, the witness stand was a place where women had a public voice. Women’s eligibility to appear as witnesses in the court changed over the period under study. In 1840 when British law formally arrived in New Zealand women were restricted in the cases and circumstances in which they could take the stand. Wives were unable to give evidence in cases involving their husbands. From 1843 to 1889 gradual changes to evidence law allowed women to take the stand in different ways and by 1900 women appeared as witnesses in case types ranging from civil actions to the most violent offences in the criminal law. Changes in married women’s property law in 1860, and more significantly in 1884 and divorce law from 1867 generally extended the number and kind of cases in which women gave testimony in the courts. From the 1860s the Native Land Court became a familiar place for many Māori women forced to resort to the Court to establish title over land. Evidence suggests women’s knowledge of whakapapa and the oral histories of iwi and hapū were vital on the witness stand to ‘prove’ their link with land. The study shows the variety of ways in which the courts were places where women spoke on a public stage, and where their words were often recorded and reported on as part of the official proceedings of the justice system. As witnesses they were also in courtrooms where they watched and were watched in a public domain and their words were heard long before they had any say in political representation. Once women had the vote, from 1893, they were eager to reform the justice system: seeking the opportunity for women to serve on juries, to serve as police, to qualify as lawyers, and in reforming the most egregious injustices such as the differential grounds for wives and husbands to petition for divorce. The application of the law, and the making of the law, proved uneven but had closely interrelated phases in the history of women in colonial New Zealand.</p>

Taking the Stand: Women as Witnesses in New Zealand’s Colonial Courts c.1840-1900

<p>The study considers women as witnesses in New Zealand’s colonial courts from c.1840 to 1900. An analysis of women as witnesses adds another dimension to what is known about the everyday but often compelling presence of women in New Zealand’s colonial courts. In 1840 British law was formally implemented in Aotearoa/New Zealand. The law’s institutional structures would soon follow. In 1841 the Supreme Court was established followed by the Resident Magistrate Courts in 1846. The courts were a part of formal British governance. While women were excluded from serving as judges, barristers, solicitors, court officials and jury members, they did appear before the courts as victims, defendants, spectators and witnesses. Being a witness was the only form of verbal participation women could undertake in the court processes during the nineteenth century. Existing scholarly work has tended to concentrate on women appearing in the courts in the nineteenth century as victims or defendants. This study explores the complex agency of women using the law and as active participants in its deliberations. Four substantive chapters consider women as witnesses in cases involving petty offences, violent crime, civil cases and the Native Land Court and finally cases of divorce, bigamy and action of breach of promise of marriage. Courts were significant public places in colonial New Zealand. They were places where disputes were settled, grievances could be aired, conduct was put on trial and order was maintained. A long established element of the legal tradition was that unprejudiced and fair justice could only be assured if the courts were open and public spaces. Thus, the witness stand was a place where women had a public voice. Women’s eligibility to appear as witnesses in the court changed over the period under study. In 1840 when British law formally arrived in New Zealand women were restricted in the cases and circumstances in which they could take the stand. Wives were unable to give evidence in cases involving their husbands. From 1843 to 1889 gradual changes to evidence law allowed women to take the stand in different ways and by 1900 women appeared as witnesses in case types ranging from civil actions to the most violent offences in the criminal law. Changes in married women’s property law in 1860, and more significantly in 1884 and divorce law from 1867 generally extended the number and kind of cases in which women gave testimony in the courts. From the 1860s the Native Land Court became a familiar place for many Māori women forced to resort to the Court to establish title over land. Evidence suggests women’s knowledge of whakapapa and the oral histories of iwi and hapū were vital on the witness stand to ‘prove’ their link with land. The study shows the variety of ways in which the courts were places where women spoke on a public stage, and where their words were often recorded and reported on as part of the official proceedings of the justice system. As witnesses they were also in courtrooms where they watched and were watched in a public domain and their words were heard long before they had any say in political representation. Once women had the vote, from 1893, they were eager to reform the justice system: seeking the opportunity for women to serve on juries, to serve as police, to qualify as lawyers, and in reforming the most egregious injustices such as the differential grounds for wives and husbands to petition for divorce. The application of the law, and the making of the law, proved uneven but had closely interrelated phases in the history of women in colonial New Zealand.</p>

Medieval Canon Lawyers and European Legal Tradition. A Brief Overview

The Roman Church was a leading public institution of the Middle Ages and its law, canon law, belonged to most powerful factors of European legal history. Today’s lawyers have hardly any awareness of the canonist origins of several current legal institutions. Together with Roman law, canon law constituted the system of “both laws” (utrumque ius) which were the only laws acknowledged as “learned” and, consequently, taught at medieval universities. The dualism of secular (imperium) and spiritual power (sacerdotium), symbolized by so-called two swords doctrine, conferred to the Western legal tradition its balance and stability. We analyze the most important institutional achievements of the medieval canon lawyers: acquisitive prescription, the Roman-canonical procedure, the theory of just war, marriage and family law, freedom of contract, the inheritance under will, juristic personality, some institutions of constitutional law, in particular those based on the concept of representation, and finally commercial law. Last not least, the applicability of canon law defined the territorial extension of medieval and early modern Christian civilization which exceeded by far the borders of the Holy Roman Empire, where Roman law was effective as the law of the ruler. Hence, the first scholar to associate Roman law with (continental) Europe as a relatively homogeneous legal area, Paul Koschaker, committed in his monograph Europa und das römische Recht, published in 1947, the error of taking a part for the whole. In fact, Western legal tradition was based, in its entirety, not on Roman, but rather on canon law; embracing the common law of England, it represented – to cite Harold Joseph Berman – the first great “transnational legal culture”. At the end, some structural features of canon law are discussed, such as the frequent use of soft-law instruments and the respect for tradition, clearly visible in the approach to the problem of codification.

The Scope of Academic Freedom Right and the Situation of Scientists in Poland

The implementation of academic freedom can be difficult both for policymakers and university authorities. A good example of these difficulties is the case of Poland. These difficulties stem from three factors: a weak legal tradition of academic freedom, a lack of legal definition of this freedom and the transition of Polish universities from the collegial to the managerial management model. This article analyzes the impact of these three factors on the situation of Polish scientists. It is very plausible that the introduction of a legal definition of academic freedom to the Law on Higher Education and Science could mitigate the tendency to limit academic freedom in Poland. Such a definition would make it difficult for governments, faculty and university authorities to interfere with this right and make it easier for researchers to assert their rights in court.