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Allah Hakkı ve Kul Hakkı Arasında Hanefi Ceza Hukukunun Kamusallığı

Author(s): Muharrem Midilli / Language(s): Turkish / Issue: 1/2017

Modern criminal law is generally regarded as a public domain because it primarily aims at protecting general interests and has dominant vertical relationships between public institutions and the individual. This understanding corresponds to a certain extent in the Hanafi criminal law. According to Hanafi jurists, the fixed penalties such as adultery, theft, and drinking wine/getting drunk are applied only to the benefit of all people. The fixed penalty for the false accusation of adultery and the retaliation (kısas) protect the benefit of all people, as well as the the interests of individuals. The public authority is able to impose discretionary chastisements (ta´zîr) and administrative punishments (siyâsa) for the benefit of the society. It is his responsibility to investigate crimes, to prosecute suspects and to impose punishments. In all these steps, vertical relations are formed between the public authority and the perpetrator. On the other hand, the Hanafi criminal law has unique features such as the determination of public interests by the Lawgiver and the penalties imposed directly on behalf of individuals.

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DETECTING THE IDEOLOGICAL POSITION OF POLITICAL ISLAM TOWARDS LIBERAL DEMOCRACY IN MUSLIM COUNTRIES

Author(s): Nikola Gjorshoski,Goran Ilik / Language(s): English / Issue: 3/2020

The question of the correlation between Islam, political Islam and liberal democracy has so far been the most exposed topic in exploring the democratic capacity of political Islam and Islamic societies in general. What is particularly intriguing about the relationship between political Islam and liberal democracy is the fact of its westernized triviality that has received a pejorative tone in Islamic political circles. Simplified, the triviality of liberal democracy for the Islamic political campus implies imposing a model of democracy that cannot be fully compatible with the original Muslim notion of society and government. Hence, the following paper analyzes exactly the relations of political Islam to specific inherent categories of liberal democracy such as the rule of law, representative government, the separation of powers and secularism as diferenta specifica of liberal western democratic discourse. Through the methods of induction and deduction, the author will illustrate how appropriate tangent or divergence is illustrated and how this is reflected in the general ideological positioning of political Islam towards liberal democracy in Muslim countries through an axiological and praxeological perspective.

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Determinants of Debt Maturity Structure in Shariah and Non-Shariah Firms in Pakistan: A comparative Study

Author(s): Naveeda Karim Katper,Azian Madun,Karim Bux Shah SYED,Muhammad Nawaz TUNIO / Language(s): English / Issue: 50/2017

Despite the global emergence of Shariah-complaint firms and the resulting interest of investors and policy makers, the research on these companies is still at an embryonic stage. This paper addresses this issue by investigating the capital structure decisions of Shariah compliant firms in comparison with the conventional or non-Shariah firms. Using the theories of corporate debt maturity structure, we carried out the empirical analysis of firm-level factors influencing the debt maturity structure among Shariah firms in Pakistan. Since Shariah compliance entails some specific firm characteristics such as lower debt ratio, lower liquidity, and higher tangibility, we argue that the debt maturity structure of Shariah and conventional firms would differ significantly. Our purpose, therefore, is to explore how Shariah compliance translates into debt maturity structure decisions of these firms. Our results show some significant variations among the impact of various determinants of debt maturity among the Shariah and conventional firms. Our most striking finding is that the debt maturity among Shariah firms is significantly shorter than conventional firms. Amid the dearth of studies investigating the relationship between Shariah compliance and firm’s choice of financial decisions, our study would be a source of unfolding the debate and understanding the nature of capital and debt maturity structure of Shariah firms. The research findings are also expected to benefit large and growing clientele of the Shariah firms by providing better insights on the capital and debt maturity structure of these firms.

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Endülüs’ü Hanefî Mezhebi İle Tanıştıran İlk Fakih: Abdullah b. Fer-rûh ve Öğrenci Silsilesi

Author(s): Abdullah Acar / Language(s): Turkish / Issue: 2/2019

Among the Muslims the most common sect is Ḥanafī. It is mentioned in the Ḥanafī sect that there are a line of students who transfer the principles of the sect from generation to generation. In order for the Islamic conquests that started simultaneously in the Eastern and Western lands to be permanent, people were sent to teach Islamic morality, worship and fiqh that encompass daily life. From the 2nd century (A.H.) the sectarianization process that started in the centers such as Kufa, Medina and Damascus has naturally spread to the geography of the West. Many jurists who were educated in the madrasas in the East transferred this education to the newly conquered lands in the West, thus contributing to the fact that sectarianization began in the East and West at the same time. During this period, the views of many mujtahids, including Abū Ḥanīfa and his students, began to enter this geography again through his students. In this article, the most important person who introduced the Ḥanafī sect in the Andalusian region and transferred Abu Ḥanifa's ijtihads, ʿAbdallāh Ibn Farrūkh's life, his scientific personality, his contributions to the spread of the sect and the reasons for the Ḥanafī sect to find supporters in the region will be followed by a short course and the history of the sect will be tried to uncover in the history of Andalusia.

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Hanefi Usulünde Fasid Sayılan İstidlallerden İstifade İmkânı

Author(s): Mustafa Çil / Language(s): Turkish / Issue: 2/2014

Principles of Islamic Jurisprudence, in addition to its mission of determining the ruling methods from the Islamic sources, assesses the possible methods from various point of views and decides on their validity. The aim of this work is to review the methods that are not validated by Hanafi School of Thought Jurisprudence, analyses of the reasons for their invalidation, and possibility of benefiting from those in judging or in another purposes without violating the essential principles of the Hanafi School.

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İSLAM BORÇLAR HUKUKUNDA FESAD MÜEYYİDESİ İLE KISMİ HÜKÜMSÜZLÜK VE İPTAL EDİLEBİLİRLİK MÜEYYİDELERİNİN MUKAYESESİ

Author(s): Mustafa Ünal / Language(s): Turkish / Issue: 6/2019

Islamic scholars have brought forward different views on some matters. One of these matters is distinction of deterioration and nullity. This distinction has come before us as two different sanctions imposed on contracts in the Hanafi sect. Distinction of deterioration and nullity has brought a different perspective on contracts in Islamic Law. It is seen that the sanctions of partial nullity and annulability under modern law and the sanction of deterioration in Islamic law are similar in many respects when this distinction is examined together with sanctions within the scope of modern law. However, there are also significant differences between them. So despite all these similarities, each sanction appears as a different species.

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İslam Hukukunda Senet Tanzîmi ve Senetlerin Şekil Şartları

Author(s): Şenol Saylan / Language(s): Turkish / Issue: 1/2016

From the early periods of Islamic Law, the legal proceedings and documentation were began to be certificated. Starting from the second century of Hijra, the documentation and certification rules began to be identified. These rules had been examined by a specific part of Islamic Law science (ilm al-shurût) and formed a vast literature in this area. It was started to determine the rules about how to form valid and strongly proving documents considering the science of Islamic Law and Literature. In this article, the document which has been discussed in books of shurût and can be defined as “the certificate which were formed to record the legal proceedings” will be examined in point of its content that should contain.

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İslâm Medeniyetinde Teşekkül Eden Eğitim Tasavvurunda Şer′î İlim Kavramı

Author(s): Hasan Sabri Çeliktaş / Language(s): Turkish / Issue: 3/2019

In this article, the meaning of concept of sharʿī science gained in the conception of education, which was established in Islamic civilization, was studied. The main problem of the research is to evaluate the idea of education in Islamic Civilization, which is closely related to the concept of sharʿī science, with a false perception that it consists entirely of religious education. The beginning of Islamic Civilization is traced back to descent of the Qur'an. The conception of education that started to emerge after this period is based on the understanding of the Qur'an and hadiths at first. In later times, a wide variety of fields, such as language, literature, logic, wisdom, riyāzat, nature, and astronomy, have been included in the concept of education to encompass the whole existence of the entity. In the following centuries, these fields, which were included in the course curriculum of the madrasahs, were examined in detail in the works of classification of sciences. Therefore, the false perception needs to be reconsidered. For this reason, the article focuses on how the concept of sharʿī science is defined. Historical data analysis method was used to solve the problem. The claim of the article is that the concept of shar′i science has wide perspective to cover the world of meaning, mind and essence of man. As a result, this article, it was determined that the concept of sharʿī science has a meaning to cover the majority of information fields that are subject to instruction in our educational conception.

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ISLAMSKI REFORMIZAM U BOSNI I HERCEGOVINI I IMPLIKACIJE NA POLOŽAJ ŽENE

Author(s): Elvira Islamović / Language(s): Bosnian / Issue: 10/2018

Although there is recent literature in domestic historical and legal literature on the issue of the application of Sharia law, Islamic reformism and customs as an auxiliary source of sharia law in Bosnia and Herzegovina, we believe that there is a need for these issues from the perspective of women's historical experience. This paper has modest pretensions to alleviate the void that generally exists when it comes to the visibility of women in domestic historiography. Starting from the historical fact that Sharia law, in greater or lesser form, was part of a positive law in Bosnia and Herzegovina from the establishment of the Ottoman authorities to the end the Second World War, in this paper theoretically the issue of occurrence of Islamic reformism with a special emphasis on changes that treat the social position of women is dealt with. Exposed to the European / Western influences during the Austro-Hungarian administration, Bosnian Muslims were faced with the need to critically review religious practice and practice and adapt them to new social and political demands. In this paper we will try to point out some aspects of Islamic reformism in Bosnia and Herzegovina and its immediate implications for the position of women in terms of standardizing the family and marital relations of Muslims using the archives of the Archives of Bosnia and Herzegovina and the Committee of the Islamic Community Cazin.

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JEDNA NEOBJAVLJENA RASPRAVA MUHAMED-EF. TUFE O ŠERIJATSKIM SUDOVIMA

Author(s): Fikret Karčić / Language(s): Bosnian / Issue: 40/2019

This paper deals with an unpublished debate on Sharia judiciary written by Muhammad ef. Tufo, the modern-day Bosnian alim. The manuscript is in the Gazi Husrev-bey’s Library, registered under number R-8258. It is written in Bosnian with quotations in Arabic language. This paper provides a biography of the author, a text of discussion, and a brief analysis of it. The main conclusions reached by the author are that Muhammad ef. Tufo considers the judiciary the most important branch of state power, emphasizes the character of a righteous ruler in Islamic thought, and follows Ibn Haldun when it comes to injustice and violence as signs of society’s decadence.

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Kitap değerlendirme: Hanefîlerde Mezhep Usûlü: Şerhu Ukûdi resmi’l-müftî

Author(s): Gökçe Zeynep Akın / Language(s): Turkish / Issue: 1/2017

The review of: İbn Âbidîn, Hanefîlerde Mezhep Usûlü: Şerhu Ukûdi resmi’l-müftî, çev. Şenol Saylan, (İstanbul, Klasik Yayınları, 2016), 342 s.

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Kitap değerlendirme: Osmanlı Devletinde Fetvâ Eminliği (1826 - 1922)

Author(s): Ahmed Niyazov / Language(s): Turkish / Issue: 2/2015

The review of: Talip Ayar, Osmanlı Devletinde Fetvâ Eminliği (1826 - 1922), (Ankara: Diyanet İşleri Başkanlığı Yayınları, 2014) 266 s.

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Muhammed Ed-Destinâî’nin Âdâbü’l-Müftîn Adlı Risâlesi: İnceleme Ve Tahkîk

Author(s): Şenol Saylan / Language(s): Turkish / Issue: 1/2019

In the first periods, the procedure and methodology of iftâ were discussed in the sections adab al-muftî or adab al-fatwa of fiqh works. In the following process, independent works containing these subjects with the same name were written. Among the first independent works on this subject, Ibn al-Salâh’s Edebü’l-müftî ve’l-müsteftî and Ibn al-Hamdân’ın Sıfatü’l-müftî ve’l-müsteftî can be mentioned. In comparison with other madhabs, the independent works on the fatwa methodology of Hanafi were written later. As far as we can determine, the first independent work on Hanafi fatwa methodology is tractate of Mohammed al-Destinâî named Âdâb al-muftîn. Only one copy of this work, which was thought to have been written at the end of the IX. (XV.) century or the beginning of the X. (XVI.) century, was identified. In the work, which consists of four sheets, are included the meanings of the term of fetwa and its derivatives, conditions of the mufti and müstefit. In this article, a tractate named Âdâb al-muftîn, which was the first independent work on Hanafi fatwa methodology and not too much information in sources, and its author will be introduced. In addition, with the thought of contributing to the literature of fetvâ methodology the critical edition of this compendious tractate, will be included.

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NEKE DILEME OKO TRADICIJE I PREVOĐENJA “ZASTARJELIH” PITANJA

Author(s): Muharem Štulanović / Language(s): Bosnian / Issue: 10/2018

Two questions in studying the causality of faith and tradition in the identity of Bosniaks can be understood as dilemmas of interest for practical application: - I - the normal treatment of the Pillars of Islam, - II - justification of translating some classic, "overstated", legal issues. In studying the evolutionary application of Islam in our territory, it is initiated several times as a dilemma, the custom of imams at weddings to determine religious credibility, the bride is inquiring about "religious questions" traditionally systematized into a group of "thirty-three pillars", which must to know and to present to the Imam, as a wedding ceremony. In this paper we are offered an answer why and why exactly such a custom that settled in the sight of only those thirty-three articles, in which the Islamic and Immanent articles (pillars) were mentioned, that is, only the auxiliary related to the spread, its conditions and purity, the taharetta (ghusl, wudu, tayammum), leaving everything else related to the clarifying "chaps" of the zekat, fasting, hajj, etc.?!

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Osmanlı Ulemasının Fıkıh Usulü Çalışmalarına Katkısı: Hasan Çelebi Ve Telvîh Hâşiyesi Örneği

Author(s): İlyas Yıldırım / Language(s): Turkish / Issue: 1/2019

One of the most important sciences that shape the Classical Period Ottoman thought is undoubtedly Usūl al-Fiqh. When the works of the Ottoman scholars of that period on Usul al-Fiqh are considered, it is seen that there are too many works inspired by the books named al-Tanqīh and al-Tawdīh by Sadr al-Shari‘ah. In this context, the annotate named al-Talwīh written by al-Taftāzānī on the aforementioned works has become the subject of much annotates due to being a text in which scholars have the possibility to express themselves and to prove their scientific maturity. Hasan Çelebi was a scholar who had studied almost all of the basic texts taught in the madrasas. Ḥāshiyah ‘alā al-Talwı̄h, one of these texts, was completed in 885/1480 and presented to Sultan Bayezid II. This work was carefully analyzed and appreciated by some scholars of the period. The related work and its author has been determined to be the main subject of the study because it is thought to provide important findings related to the thought of Ottoman principles.

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PORODIČNO PRAVO I REVOLUCIONARNI DOPRINOS ISLAMA STATUSU ŽENE

Author(s): Muharem Štulanović / Language(s): Bosnian / Issue: 9/2017

Family law can be treated as a branch of positive law and as a separate, independent part of the legal science. Family law is a set of legal norms which regulate the family and relationships between family members, that is relationships that are formed when forming a family, its duration or cessation of existence. These relationships arise from the foundation of the relationship between a man and a woman, birth and forms of kinship that result from that connection. Law theorists in Islamic culture and civilization commonly use the term of family law for the regulation of marriage, divorce, testament, and inheritance, although in Islamic Fiqh, everything that is regulated by family relations has previously been called by a personal, special name such as the chapter of marriage, divorce, etc.

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Prikazi

Author(s): Rifat Alihodžić,Šerbo Rastoder,Safet Hadrović Vrbički,Senad M. Karađuzović,Sead Bandžović,Sait Š. Šabotić,Ismet Dedeić,Kostas Mavrakis,Alen Peričić,Selma Đečević / Language(s): Bosnian / Issue: 83-84/2020

Reviews of: 1. Zlatko Karač, Alen Žunić „Islamska arhitektura i umjetnost u Hrvatskoj. Osmanska i suvremena baština“, „Islamic Architecture and Art in Croatia. Ottoman and contemporary heritage“, Arhitektonski fakultet Sveučilišta u Zagrebu, UPI-2M PLUS Zagreb, 2018. Review by: Rifat Alihodžić; 2. „Modernost Zlatka Glamočaka“, Review by: Kostas Mavrakis; 3. Gani Karamanaga „Gradski Pazar“, Review by: Šerbo Rastoder; 4. Šerbo Rastoder, „Murteza Karađuzović (1865 - 1941), muftija crnogorskih Muslimana“, Almanah, Podgorica, 2019, Review by: Alen Peričić; 5. Mehmed Pargan „Grad u cvatu magnolije“; Izdavač: BMG Bosanska medijska grupa, Tuzla, 2018., Review by: Safet Hadrović Vrbički; 6. „Slovo o knjizi“, Review by: Senad Karađuzović; 7. Harun Karčić „Šerijat i pravni pluralizam u Evropi: primjeri koegzistencije religijskog i sekularnog prava na Starom kontinentu“, Centar za napredne studije, Sarajevo, 2018, str. 206., Review by: Sead Bandžović; 8. „Slike Aldemara Ibrahimovića - arhitektura sjedinjenog vremena“ (uz izložbu Aldemara Ibrahimovića u Modernoj galeriji u Podogorici), Review by: Selma Đečević; 9. Enes Pelidija, “Osmanisti Bosne i Hercegovine do kraja XX stoljeća”, knj. I, Mostar, 2019, 237 str., Review by: Sait Š. Šabotić; 10. „Sandžački Bošnjaci u brčanskom kraju: Posavina u srcu, Sandžak u duši“, Review by: Ismet Dedeić

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Property as a Comprehensive Institution of Modern Muslim Law

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Property as a Comprehensive Institution of Modern Muslim Law

Author(s): Anastasia ALEYNIKOVА / Language(s): English / Issue: 37/2018

The relevance of the study is due to the fact that Russia's relations with the Islamic theocratic states are developing more and more, so it is important for Russian investors to understand the specifics of property relations in these countries in order to minimize risks and expand their economic presence. In this context, this article aims to analyze the positive experience of regulating of legal property regime in the Islamic countries. Leading approach to the study of this problem is the descriptive method that has afforded revealing peculiarities of regulation of the concept of property under consideration within Muslim states. The materials of the paper imply the practical significance for the university teachers of the legal specializations.

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Przymusowa migracja muzułmańskich kobiet jako katalizator rozwoju pluralizmu prawnego w ich krajach docelowych na przykładzie poligamicznych związków obywatelek Syrii w Turcji

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Przymusowa migracja muzułmańskich kobiet jako katalizator rozwoju pluralizmu prawnego w ich krajach docelowych na przykładzie poligamicznych związków obywatelek Syrii w Turcji

Author(s): Wojciech Trojan / Language(s): Polish / Issue: 2/2019

Islam provides a perfect environment for the fast development of the Sharia law and the customary laws despite strong secularization efforts and pressure exercised by the government authorities. The Ottoman Empire was a multicultural society based on the principles of the Sharia law. The abolishment of the caliphate in Turkey and enforcement of the monogamy model of a family through the Kemalist revolution penalized the parallel Islam activities. After the collapse of the Ottoman Empire the millet system survived in Syria with its legal pluralism. Polygamy is currently on the rise in Syria as many men left the country or got killed in the fighting. The mass influx of Syrian women to Turkey results in the growth of parallel Islam de facto polygamous marriages in Turkey. The refugee women are looking for protection within the Sharia law family model, and the living law bypassed the Kemalist positive law secular principles. The same trend is visible in the countries that received many Muslim women that were claiming to the UNHCR their well-founded fear of persecution due to alleged transgressing of traditional social mores in their countries of origin. The same individuals sought later support and protection within the informal and effective parallel Islam networks in the resettlement countries. The legal pluralism is on the rise in the traditionally secular cultures due to the mass migration of single women preferred by the selection systems and resettlement criteria as agreed between UNHCR adjudicators and immigration authorities worldwide.

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RES PUBLICA - RES PRIVATA ET LEURS TRANSFORMATIONS – L’EXEMPLE DE L’EMPHYTEOSE EN DROIT ROMAIN

Author(s): Malina Novkirishka- Stoyanova / Language(s): French / Issue: 2/2019

In the modern legislation and in the jurisprudence, we don’t find an insurmountable limit between public and private property, which gives the possibility of the various transformations for the public interest compatible with the private interest. During the centuries there are two opposite directions in this sense: expropriation and confiscation of private property and privatization or private use of public goods. The origins of modern practices and institutions in these two sectors are found in Roman law, which establishes the basic principles and presents a vast series of cases and rules that can also be useful for contemporary jurisprudence. From this perspective, the example of Roman emphytosis is presented as a regulation of concessions and agricultural leases adapted to the public interest as well as to the private interest.

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