Legal Manuals Research Articles

Discourses on Marital Relationships in Mamlūk Society. Changing Contexts and Evolving Social Realities

In this paper I intend to examine the fiqh rulings concerning women and the marital relations in the Mamlūk age (1250–1517 AD). However, fiqh manuals cannot adequately portray the reality of women and the marital relationship. They are complex, multifaceted and contextual; they were in a constant state of negotiation with social, political, and economic factors. To contest the authoritativeness of these legal texts, I will juxtapose the legal sources with non‑legal texts. I will consult historical and literary texts, biographical dictionaries, adab literature and poetry, assessing them in comparison to the legal manuals. Looking into the various genres and sources one will clearly realize that there were different pertinent discourses that were all standing side by side, and none of them may claim exclusive validity. It is not possible to resolve the contradiction and ambiguity in the sources regarding the perplexing marital relations. However, I hope that through a combination of historical‑critical research, literary and textual analysis as well as an understanding of the methods and goals of the producers of texts, one can reach a better understanding of the marital relations in the Mamlūk Age.

Comment rire des lois, du magistrat et des dieux en droit des contrats ? ou Petit manuel juridique pour Anarchist/Prostitute…

Ce texte propose l'analyse de l'article 1134 du Code civil français « Les conventions légalement formées tiennent lieu de loi à ceux qui les ont faites » à l'aune de la période révolutionnaire et de certains de ses acteurs. Ainsi peut être questionnée la préférence du législateur de 1804 pour le mot ''convention'' plutôt que ''contrat'' selon une approche développée par l'historien Reinhart Koselleck ; et dans l'esprit des philosophies du droit et du politique de Miguel Abensour ; Boyan Manchev ; et de Laurent de Sutter. L’objectif étant de proposer comment rire des lois, du magistrat et des dieux en droit des contrats. Quelque chose comme un petit manuel juridique pour « anarchist/prostitute », qui « figures out the true meaning of contractual freedom. »

Ḥanafī Approaches to Copyright

Abstract Academic articles on Islamic law and intellectual property often mention that the Ḥanafī legal tradition is the only school that does not protect intellectual property. By examining Ḥanafī legal manuals and fatwās by contemporary Ḥanafī jurists, I argue that variant interpretations of Ḥanafī doctrine can result in a finding of compatibility or incompatibility between Ḥanafī law and copyright. Interpretations that recognize copyright protect Ḥanafīs from tension between state laws on intellectual property and religious practice. Whereas some Ḥanafī jurists hold that Ḥanafī law is fully compatible with copyright, others place restrictions on copyright or reject copyright entirely. Ḥanafī legal manuals grant some protection to intangible notions such as honour, confidentiality and sanctity. One interpretation of property rules accommodates intellectual property rights. The principles of public interest (ḥuqūq Allāh) and private rights (ḥuqūq al-ʿibād) may provide jurists who accept intellectual property with a means to better theorize aspects of copyright.

Kinship Riddles

In the medieval to early modern eras, legal manuals used visual cues to help teach the church laws of consanguinity and affinity as well as concepts of inheritance. Visual aids such as the trees of consanguinity or affinity helped the viewer such as a notary, law student or member of the clergy to do the ‘computation,’ or reckon how closely kin were related to each other by blood or by marriage and by lines of descent or collateral relations. Printed riddles in these early legal manuals were exercises to test how well the reader could calculate whether a marriage should be deemed incest. The riddles moved from legal textbooks into visual culture in the form of paintings and cheap broadside prints. This article examines a riddle painting ‘devoted’ to William Cecil when he was Elizabeth I’s principal secretary, before he became Lord Burghley and explores the painting’s links to the Dutch and Flemish kinship riddles circulating in the Low Countries in manuscript, print and painting. Cecil had a keen interest in genealogies and pedigrees as well as puzzles and ciphers. As a remarried widower with an eldest son from a first marriage and children from his longer second marriage, Cecil lived in a stepfamily typical of the sixteenth century in England and Europe. The visual kinship riddles in England and the Low Countries had a common root but branched into separate traditions. A shared element was the young woman at the centre of the images. To solve the riddle the viewer needed to determine how all the men in the painting were related to her as if she were the ego, or self, at the centre of a consanguinity tree. This article seeks to compare the elements that connect and diverge in the visual kinship riddle traditions of the sixteenth and seventeenth centuries in the Low Countries and England.

The Most Noble of People: Religious, Ethnic, and Gender Identity in Muslim Spain, by Jessica A. Coope

As Jessica A. Coope highlights in the introduction to this, her second book, it is only relatively recently that scholarship on Umayyad al-Andalus (711–1031)—long centred on institutional and political history—has begun to explore social and cultural history. In part, this is a function of our evidence, which (at least for those of us who work with textual sources) is not especially helpful for getting at life as it was lived, rather than life as it was envisaged by elite writers and users of normative legal manuals. Valuable work has certainly been done: that of Manuela Marín on women, for example, or that of numerous archaeologists on domestic spaces and practices. But much more remains to be explored. Coope’s contribution to the field is an exploration of Andalusī identity in the ninth and tenth centuries, and in particular of how group identities shaped the lives of individuals. Following in the footsteps of the usual cultural history touchstones, such as Clifford Geertz, she examines the value systems of the textual sources to reconstruct how people in this time and place understood themselves, their society and their world. Identity in al-Andalus, she argues—whether religious, ethnic or gendered—was ‘varied, fluid and contentious’ (p. 2), for all that the texts often imagine it as fixed and distinct. The religious group to which someone belonged, for example, determined much about that individual’s legal status and life prospects. Within the still-developing body of Islamic law, Jews and Christians (the ‘Peoples of the Book’, those who shared a core scriptural tradition, albeit in an earlier and less perfect form) were classed as dhimmīs, people subject to some legal restrictions (dhimmī men could not, at least in theory, marry Muslim women) in return for religious autonomy. Nevertheless, identity could change; it was possible to move between religious groups through conversion, or to offset some of the disadvantages of difference by shifting cultural identity while remaining within one’s religious tradition. Both Andalusī Jews and Arabicised Christians (often termed ‘Mozarabs’) have been quite extensively studied in the past, but, as Coope explains in Chapter Three, we still know a great deal more about the theory of their lives than the practice. Law regarding dhimmīs, while enticingly extensive, was ‘a statement of Muslim society’s ideals rather than a reflection of its realities’ (p. 74), and for this early period other types of sources are frustratingly limited; in comparison with later medieval centuries, for example, we have very few surviving fatāwa (expert commentaries deriving from actual legal cases). We can learn a certain amount about Christians collectively in the ninth century, in the context of the martyrs of Cordoba crisis, and about (prominent) Jews individually in the tenth and eleventh, because of the role of Jewish scholars and viziers in the later caliphate and in certain taifa states; but glimpses beyond these are few and far between. Coope distinguishes very usefully between the different types of evidence, and what we can actually learn.

Lost Oral Genesis of Classical Islamic Law


 
 
 This article places the textual production of classical Islamic law in its proper historical context. It does so by examining a transcript of an eleventh-century oral debate, or disputation (munāẓara), between the Shafiʿi and Hanafi jurists Abū al-Ṭayyib al-Ṭabarī (d. 450/1058) and Abū al-Ḥasan al-Ṭāliqānī (fl. fifth/eleventh century) on the subject of the pre-emptive expiation for broken oaths (taqdīm al-kaffāra ʿalā al-ḥinth). The comparison between the disputation transcript and al-Ṭabarī’s lengthy legal manual al-Taʿlīqa al-kubrā reveals that the complexity and argumentative detail of disputations far exceeded jurists’ writings. Even the lengthiest legal manuals of the time are shown to be highly summarized accounts of juristic thought. The article explains how these summaries were essential to the proper training of jurists in the age of ijtihād: jurists were expected to learn these summaries before exploring the law in greater depth through disputations. These disputations were rarely recorded in writing, and few survive. The disparity between the oral and written legal discourse of jurists leads to a disquieting conclusion: much of the thought that produced classical legal opinions is lost to us today. We are therefore left with access to an attenuated version of classical law.
 
 

Geçmişe Bugün için Bakmak: Modern Dünyanın Mültecilik Krizi ve Osmanlı Muhacirin Komisyonu

The Ottoman Empire handled the massive populations fleeing to its lands through various institutions tasked with settling them in different parts of the empire. One such institution was the Muhacirin Komisyonu, established on January 5, 1860. In this article, I will examine the Ottoman migration experience, as well as the theoretical and historical background on which it was built. While studying the historical experience, I will explore the concepts developed regarding migration within the context of hijra and amān. I will discuss the legal and institutional dimensions of these concepts as developed in Islamic law and the Ottoman experience. This will show us on which conceptual background the Ottoman migration experience is based. I will use the concepts discussed in Islamic legal manuals and documents in the Ottoman Archives to support my argument. The theoretical framework of the article depends on 5 x 5 matrices. There are five interrelated tensions derived from my comparison between the Ottoman experience and modern approaches to refugee rights. On the basis of my research, it is possible to express these tensions as follows: Hijrah versus asylum: This refers to the tensions between the Islamic understanding of migration and modern policies of asylum, which will become clearer through the following tensions. Permanency versus temporality: These concepts point to the tensions between the permanency of residence assumed in the idea of hijra and the limitation of stay based on the concept of refuge. Contribution versus burden: This tension refers, on the one hand, to contributions of the muhājirīn to the local population as a result of being accepted as permanent residents, and, on the other hand, the barriers to integration as a result of the temporality of the modern migrants’ status settled in camps. Obligation versus favor: This refers to the tension between the Qur’ānic principle that declares the obligation of accepting those who seek safeguard, including non-Muslims, and the modern rights to asylum and humanitarian aid based on the choice of the sovereign state. Safeguard (amān) versus well-founded fear: This tension refers to the main concepts of migration in Islamic law and modern refugee law, respectively. As mentioned in a Qur’ānic verse, it is necessary under Islamic law to grant safeguard to whosoever seeks protection. In contrast, according to modern law, granting the right of asylum to the citizens of another state must be based on well-founded fear. One of the main arguments of the article is that the Ottoman migration policies show how the theory guides the practice and how the practice develops a human-centered approach based on this theory. Therefore, I will examine the theoretical background of the Ottoman immigration policies and how it has turned into practice as a model that can be used by the current policy makers, legal scholars, sociologists and institutions dealing with the migration issue. I will argue that the historical practices of Muslim societies have made significant contributions as a solution to the refugee phenomenon that has turned into a crisis today.

Non-binary sexual and gender identities in the community

The Mamluk jurist 'Abd al-Rahim al-Isnawi's legal manual on the cases involving a khuntha (an intersex person) was comprehensive on matters of religious practice. It allows us to understand the underlying doctrinal strategies that the jurists used in regulating the khuntha's access to public life. This article attempts to examine specific strategies that al-Isnawi used in his legal manual's chapter on salah (ritual prayer). Through an exploration of the doctrines in the chapter affecting a khuntha's comportment and location, I assess the possible consequences of such doctrines on the life of a khuntha. The major consequence is the khuntha's social isolation in the name of accommodating them in a community's mosque by providing a specific row for them. The accommodation requires outing a khuntha as such within the community space, leading to further isolation, even when the khuntha is not a singular subject within the community.

Hermeneutics in the Genre of Mukhtaṣar: Civil and Commercial Law in Islamic Law by Husain Kassim

Book review

<em>Qāḍīs</em> communicating: legal change and the law of documentary evidence

El estudio de dos formularios notariales del siglo vii/xiii, uno sirio y el otro andalusí, muestra que el discurso sobre las modalidades de comunicación escrita preceptuadas para los jueces (kitāb al-qāḍi ilà al-qāḍi) refleja una estrecha relación entre la doctrina y la realidad de la práctica legal. Uno de los aspectos de esta relación es el cambio que tuvo que experimentar la doctrina discursiva bajo la presión de las prácticas judiciales cotidianas.

Lex Lata comes with a Date; or, What Follows from Referring to the “Tallinn Rules”

At first sight, the question that Dan Efrony and Yuval Shany ask in their article, A Rule Book on the Shelf?, makes sense. If a group of lawyers writes a legal manual for state legal advisors, the logical follow-up question would indeed be, do they use it? Do these “black-letter rules,” as the Manual itself terms them, actually “provid[e] international law advice” to states operating in cyberspace? Given the Manual's own claim that its “effort [is] to examine how extant legal norms apply” to cyber warfare, one may indeed wonder whether states have used the Manual as intended—as a manual.

Visual Impact Assessment of Free Standing Billboards in the Road Landscape near Elektrėnai (Lithuania)

Abstract Free standing billboards (FSBs) have a significant negative visual impact on landscape. In majority of foreign countries the construction of FSBs is regulated by various legal instruments, guidelines, and control manuals. In Lithuania the construction of FSBs considering visual impact is poorly regulated by juridical and spatial planning means. Considering this situation methodological guidelines for regulation of FSB construction taking into account their visual impact were created. The guidelines are a part of the Landscape Guidelines for the Roads and Railways of National Significance [10] which is a manual set to fulfil the requirements of the European Landscape Convention [4] to broaden the knowledge on this subject and to integrate landscape issues into all matters that influence the state and the future of landscape. The aim of the article is to show the possibilities of application of the guidelines by performing visual impact assessment of FSBs in the road landscape near the town of Elektrėnai on one of the main highways of Lithuania: A1 Vilnius-Kaunas-Klaipėda. The proposed stages of FSB visual impact assessment are the following: analysis of landscape spatial structure designating visual spaces perceived from separate road sections; analysis of FSB layout possibilities designating visual spaces protected from FSB construction and visual spaces as FSB construction areas; establishment of possible visual contrast level of FSB, and establishment of FSB location in visual space and visual contrast character according to the Identity Index context (Similarity, Identity, Difference Index) theory and results of evaluation of aesthetic potential of the visual space. In the performed research we used the possibilities of spatial data management and analysis of geographic information systems (GIS) and basically implemented the first three stages of FSB visual impact assessment. The fourth stage was not implemented because it deals mainly with technical issues of FSBs. We tried to solve questions that are most important on the level of spatial planning when developing special plans for FSB construction.

Free Standing Billboards in a Road Landscape: Their Visual Impact and Its Regulation Possibilities (Lithuanian Case)

Free standing billboards have a significant negative visual impact on the landscape. In the majority of foreign countries construction of free standing billboards is regulated by various legal instruments, guidelines and control manuals. In Lithuania the construction of free standing billboards considering their visual impact is poorly regulated by juridical and spatial planning means. Taking this situation into account the paper aims to review main problems of regulating free standing billboards construction in Lithuania, to assess their impact on the landscape, to present foreign experience in solving these problems and to provide methodological guidelines for regulation of free standing billboards construction considering their visual impact. The proposed stages of the assessment of free standing billboards visual impact are the following: analysis of the landscape spatial structure designating visual spaces perceived from separate road sections, analysis of the possibilities of free standing billboards layout designating visual spaces protected from free standing billboards construction and visual spaces as free standing billboards construction areas, establishment of the possible visual contrast level of free standing billboards and establishment of free standing billboards location in a visual space and a visual contrast character according to the SID theory and results of the visual space evaluation according to the criteria of vitality, complexity, compositional harmony, expressivity, uniqueness, functionality and meaningfulness. DOI: http://dx.doi.org/10.5755/j01.erem.66.4.5320

Dissimulation in Sunni Islam and Morisco <i>Taqiyya</i>

This study provides an outline of the religious doctrine of taqiyya or dissimulation in Sunni Islam, drawing on Qur’ānic commentaries, hadīth compilations, legal manuals, and ethical treatises. Moriscos and the North African jurists who advised them had access to discussions of taqiyya and the closely connected legal dispensation of coercion ( ikrāh ) through these sources, many of which were wellknown in al-Andalus before the Reconquista, and some of which continued to be popular afterwards. Attention to this material helps one to interpret the 1504 fatwā of Ibn Abī Jum’a al-Wahrānī to the Moriscos and in particular his discussion of blasphemy under coercion.

The Limits of Gender Domination: Women, the Law, and Political Crisis in Quito, 1765–1830

The Limits of Gender Domination: Women, the Law, and Political Crisis in Quito, 1765–1830

Legal Education in Disruption: The Headwinds and Tailwinds of Technology

By harnessing improvements on communications and computational systems, law firms are producing a revolution in the practice of law. Self-help legal manuals have transformed into sophisticated interactive software; predictive coding can empower clients to receive sophisticated legal advice from a machine; socially mediated portals select among potential lawyers and assess the quality of the advice given; and virtual law firms threaten to distintermediate the grand edifices of twentieth century Big Law. These changes may profoundly restructure the legal practice, undermining the business model for many solo and small firm practices.This paper focuses on the implications of these profound disruptive changes. It looks at the expectations the market may place on future lawyers and by extension the training necessary for lawyers entering the practice of law. The final section reflects a suggested curriculum and programmatic redesign, highlighting one possible future legal educational model, complete with acquiescence to existing constraints found in American Bar Association and other accreditation regimes.

ANNA WÜRTH, Aš-Šdaria fi Bab al-Yaman: Recht, Richter und Rechtspraxis an der familienrechtlichen Kammer des Gerichts Süd-Sanaa, (Republik Jemen) 1983–1995 (Berlin: Duncker and Humblot, 2000). Pp. 284.

Allan Christelow once remarked that court documents have the potential to provide a more thorough and unbiased picture of society than most other sources. Anna Würth's study of judicial procedures at a court in a poor Sanעani neighborhood would appear to give credence to this observation. The book covers an important stage in Yemeni post-revolutionary history embracing republican state consolidation, unification of the Yemen Arab Republic (YAR) and the People's Democratic Republic of Yemen (PDRY), and the Islamist challenge. It is based on more than one hundred fifty court cases, legal manuals, and unpublished draft statutes; “participant observation” at the court; historical chronicles; newspaper articles; and interviews with jurists and petitioners. Echoing the work of Mir-Hosseini and Messick, Würth conceives of law and legal practice as mutually constituting rather than separate domains. The book is divided into two main parts, each subdivided into two or more chapters. The first part deals with the norms governing the application of family law by the courts, describing court procedures during the period of Ottoman rule and the Hamid al-Din dynasty. Most chapters are devoted to an analysis of legal reform as part of state transformation from the 1970s to unification in 1990. Readers are offered a valuable overview of the diverse family laws of 1974, 1978, and 1992, their political objectives, and the debates surrounding them. The second part centers on the administration of justice at the court between 1983 and 1995.

The Jmyt-pr Document: Form, Function, and Significance

The study of in ancient Egypt is hampered by the lack of a digest of legal decisions1 comparable to the Code of Hammurabi (and similar codes, more properly collections of case law2) from Mesopotamia. The best we have is the Hermopolis or Demotic Code, or Legal Manual.3 It is a late compilation of the 3rd century (though some of it may go back to the 8th century B.C.).4 But we do know that Diodorus praised the completeness of Egyptian and that several pharaohs (including kings of the Saite Dynasty)5 are said to have made revisions in the legal system.6 In addition, the study of ancient Egyptian suffers because comprehensive legal legislation (Statutory Law) does not survive (whether such existed in the rolls of law is not important here). Lacking such codification we must glean the surviving inscriptions which discuss legal disputes and/or decisions, contracts, the few actual legal documents that survive, and allusions to legal documents in literary or religious texts. The problem this causes is obvious: our knowledge of ancient Egyptian remains incomplete. Keeping this in mind, solid progress has still been accomplished in clarifying certain classes of legal documents like the Jmyt-pr. This study will concentrate on the Jmyt-pr document. This document concerned the transfer

Legal Writing and Research Manual

Legal Writing and Research Manual

Dunn's Pure Food and Drug Legal Manual

Dunn's Pure Food and Drug Legal Manual