«MAIORA QUIS PONDERA TIBI COMMODAVIT CUM EMERES AD PONDUS». БЕЛЕЖКИ КЪМ D. 47.2.52.22 (ULP., 37 AD ED.)

Author(s): Mariagrazia Rizzi / Language(s): Bulgarian Issue: 1/2021

The article is aimed at a thorough analysis of the solution of a legal case originally offered by Mela and then proposed again by Ulpian, regarding the lending of pondera maiora, which were used by the borrower to weigh goods for the purpose of purchasing said goods. Mela identifies the lender of the weights as a legitimate subject to an actio furti brought in by the seller of those goods; the text also contains an additional remark that the borrower/buyer will have to respond to the same action, if he has scientia about the incorrectness of the weights. The author examines the various hypotheses brought forward by scholars so far, and offers a new interpretative key to the case in an attempt to understand the reasoning that might have led Mela to his solution – a reasoning, which possibly might have been more sophisticated than recognized until now.

Şiî-Usûlî Gelenekte Haber-i Vâhidin Hüccet Değeri: Şerif Murtazâ Örneği

Author(s): Ramazan Korkut / Language(s): Turkish Issue: 2/2021

Sunni legal theorists [uṣūlists] have adressed that if the k̲h̲abar al-wāḥid is sound, it will be a proof and the acting with it will be wajib. In the Shiiteuṣūlî tradition, Sharīf Murtadhā claimed that acting with it is permissible in terms of logic, but not obligatory in terms of religion. According to him, the Qur'an, mutawatir k̲h̲abars and ijma including the innocent imam are the definitive source of information and are binding. Since the k̲h̲abar al-wāḥid expresses suspicion, it is not evidence in religion and there is no evidence that makes this news binding. Murtazâ criticized the evidences of the uṣūlists on the subject, and the uṣūlists responded to these criticisms. Our research is based on the evaluation of the sample of Sharīf Murtadhā from the khabar alwāḥid approach in the universe of the Shiite tradition. In the research, it has been determined in addition to the theology of the innocent imam that claiming that there is no evidence requires to act with the k̲h̲abar al-wāḥid, is an inconsistent opinion in terms of nass, consensus and reasonableness.

Šta je to Šerijat? Uvod u epistemologiju normativne hermeneutike u islamu

Author(s): Muhammed Beddy Ebnou / Language(s): Bosnian Issue: 2/2016

Ücret İle Tazminat Sorumluluğu Birlikteliği

Author(s): Abdurrahman Akman / Language(s): Turkish Issue: 1/2022

The aim of the article is to reveal the nature and importance of wage and compensation in legal responsibility and to discuss the possibility of these two basic tools together in the light of different views of the mad̲h̲habs. In addition, the article deals with the functions of these two basic concepts within the scope of Islamic responsibility law. There are two main sources of compensation liability in Islamic Law of Obligations. These are; breach of contract and act of injustice. Harming someone else is prohibited by any of these means. In cases where people cause harm to others in social life, the legal order tries to compensate for the damage in question. It is not a legal way to harm the other party for the remedy of the damage. The method of remedying the damage and what kind of economic values it will cover have been the subject of discussion in the doctrine. Are there other obligations at the same time as the liability for compensation? In this regard, Article 86 of Med̲jelle ̲ -yi Aḥkām-i ̊ʿAdliyye regulates that compensation liability and wage cannot go together in accordance with the Ḥanafī mad̲h̲hab. It is important to deal with the scope and exceptions of this rule and the transformation it has undergone in the history of Islamic law with a comparative method and to establish its connection with the present. The rule that wages and indemnity liability cannot go together finds more application in contracts where the performance of one of the parties is a rent wage. Goods and service contracts come to the fore within the scope of contracts requiring this. Such contracts are generally considered within the scope of rent contracts. The obligations of the parties in those contracts are to leave the use of a commodity to the other party of the contract and that party undertakes to pay a certain usage fee accordingly. Both parties have mutual debts and obligations. A house, an animal, an item may be rented. In labor rent called service contracts, the worker (ecīr) and the employer agree on the work to be done. In case the source of the liability is different, for example when there is a difference in the reason and subject, liabilities can be combined to some extent. In the Ḥanafī school, the point of view of usage benefit lies on the basis of the incompatibility of wage and compensation responsibility. There are some theoretical reasons for this in the Ḥanafī mad̲h̲hab. There is a general agreement on compensation for contractual or tortious damages. In order for a damaged property to be subject to compensation, it must be a property that has legal value and tangible assets. Damage to property can be defined as a decrease or deterioration in the value of something. Anyone who claims to have suffered damage should base their claim for compensation on these grounds. What is meant by compensation is to eliminate the actual damage suffered. Equivalence is one of the issues underlined in compensation for damage. One of the most basic principles of Islamic compensation law is to return to the situation before the damage occurred, as much as possible. The main thing in remedies is not punishment, but compensation for the damage suffered. The basis of the breach of debt is the non-payment or late payment of the debt or defective performance. In case of existence of such situations that prevent the performance of the debt, the actual damage must be compensated. Therefore, claims for loss of profits are not included in the compensation. As for the compensation for the damage arising from the tortious act, while Med̲jelle did not seek ̲ intent in the compensation of the damage to acting directly, it observed the existence of this in case of causing damage (arts. 92 and 93). In legal liability, it is aimed to compensate the fungible (mis̱lī) or nonfungible (ḳıyemī) of the thing damaged due to tortious act. Compensation with fungible is the type to be preferred with priority in remedying the damage. However, the issue of whether usage benefits (menāfiʿ) are also eligible for compensation is controverted issue among Islamic jurists. The Ḥanafī school believes that the benefits don’t comply with these conditions. But, other mad̲h̲habs have opposing views to the The Ḥanafī sect on this issue. Others have accepted the benefit of the usurped property as legal property and have approached positively to the subject of compensation. The basis of this difference lies in whether usage benefit is legally accepted as property. However, in the later periods, some exceptions were made to the first view within the Ḥanafī school. These are; foundation and orphan and commercial properties. It is accepted that loss of benefit in these matters is subject to compensation. In addition, in the Med̲jelle amendments, benefits are accepted as property ̲ that has legal value, and it has been accepted that loss of benefit in cases of tortious act and breach of contract may be the subject of compensation in accordance with fairness in our opinion.

Ülfet Görgülü, Fıkıhta Cenin Hukuku

Author(s): Emine GÜMÜŞ BÖKE / Language(s): Turkish Issue: 1/2020

Review of: Emine GÜMÜŞ BÖKE - Ülfet Görgülü, Fıkıhta Cenin Hukuku, M.Ü. İlahiyat fakültesi Vakfı Yayınları, 2018, 180 s.

Written Source of al-Muwa ṭṭa’ : Risālat al-Farā’iḍ

Author(s): MANSUR KOÇİNKAĞ / Language(s): English Issue: 2/2020

Significant studies have been conducted on the origins and development of Islamic law in the past years. However, in regard to the first century AH, a lack of solid identified references has raised doubts around the accuracy of the reported facts during this period. For this reason, we explored a new reliable document referred to as Risālat al-Farā’iḍ, from the first century. It is accepted that this work was first written by Zayd b. Thābit (d. 45/665) and then annotated by Abū al-Zinād (d. 130/748) who lived during both the first and second centuries. In this study, it will be determined that based on the similarity between al-Muwaṭṭa’ and Risālat al-Farā’iḍ in nearly thirty-five paragraphs, Risālat al-Farā’iḍ has served as a source in the writing process of al-Muwaṭṭa’, besides, it has revealed consistent information about ʻamal (practice) of ahl al-Medīna. Finally, through this document analysis, it will be revealed that the claim that the basic hadith collections are based not only on the oral narrations but also on the written documents will be more accurate.

X. (XVI.) Yüzyıla Ait Üç Sancak Kanunnâmesine Göre Kemah, Âmid ve Pojega Sancaklarının Sosyoekonomik Durumu

Author(s): Tuğba Aydeniz / Language(s): Turkish Issue: 2/2019

The Ottoman legal system is built on religious (sharīʿa) and customary (ʿurfī) laws. The customary law consists of the rules that are not in contrast to the sacred law. Collection of regulations (qānūnnāme) were the most effective way for the execution of the customary laws. The qānūnnāme included the sultan’s orders and edicts (farman). Ottomans regulated and evaluated the taxes through measurements of lands specific times of the year. These measurements would be recorded into the taḥrīr books (written survey of immovable properties). And the administrative qānūnnāme were included in these books. In the qānūnnāmes, we can find information about the taxes, and the unlawful executions of the customary actors (ahl al-ʿurf) as well as the tax regulations. The qānūnnāmes on sanjak are composed according to the economic, social, and geographical characteristics of the administrative district it is written about, and with this, they provide us information on these issues. In this article, three sanjak qānūnnāmes are taken as the central topic and Kamah, Āmid, Pojega are evaluated in terms of the execution of customary law in these districts. These qānūnnāmes include recordings of various taxing regulations, altered and cancelled executions, amounts of taxes, and punishments. We can compare the three districts in their economic and social characteristics.

XVIII. YÜZYILDA RUSÇUK KAZÂSI ÖRNEĞİNDE OSMANLI CEZA HUKUKU VE UYGULAMALARI

Author(s): Duygu Tanıdı / Language(s): Turkish Issue: 1/2022

This criminal history study of the Ruse (Rusçuk) district of the Ottoman Empire is based on analyzing court records (sharia register). In the study, which aims to reveal a small section of the application of the punishment concept in the Ottoman provinces, the court provisions were determined. These provisions were classified according to the type of punishment, and then inferences were made. The study comprised three parts, excluding the introduction and conclusion. At first, the history and socio-economic conditions of the city of Ruse were examined. In the second part, the Ottoman period practices of Islamic criminal law were investigated with a general and theoretical perspective. In this way, it was desired to create a basis for the third party. The last part looks at the punishments given to the criminals in Ruse in a variety of ways, based on the court records from the 18th century. Writing about the crime and punishment history of the Ottoman Empire is especially important because the negatives are memorable and show more clearly what should have happened. In addition, the comparison possibility with today is another sign that shows the need for more studies on the subject.

Zarûretin Bazı Haramları İbâhasının Keyfiyeti ve Nihâî Sebepleri

Author(s): Ayşegül Yilmaz / Language(s): Turkish Issue: 3/2021

One of the most important issues in Islamic law is that either partially or completely, or temporary or permanently, a rule can be changed for a particular group of people or everyone. Since the concept of necessity can lead to a change of an important rule like ḥarām/prohibition, this concept should be examined meticulously both in theory and in practice. The thşs study aims to analyze how and why necessities make some ḥarāms permissible and to reveal the ultimate cause for this ibāḥa (permission) from the point of view of Islamic legal theory and philosophy. To achieve this aim, first, the nature of the relationship between the prohibition and the act is examined. To understand how and why necessity gives permission to some ḥarāms, it is necessary to determine the changing and unchanging elements in the case at issue. In the case of necessity, there is no change in the nature of the act and the evil, which is considered as the reason of banning. Indeed, there is a change in the conditions surrounding the act and in the state of the obligated person. However, the main factor that enables the change in ḥarām is the change in the addressing of Shāri‘, who takes into account the changes mentioned. It is seen that the changes stemming from necessity do not lead to the same results as in all permitted ḥarāms. This observation requires a thourgh examination and elaboration on what the scholars of legal theory mean by abolition of prohibition and turning it into permissible. As a result, it has been observed that permitted ḥarāms do not equally function in terms of turning into permissible and that they do not have an equal effect on other acts in the field of mubāḥ. In that case, it is possible to evaluate the permitted ḥarām acts as al-maʻfuw ʻanh/forgiven acts. Although the act could be considered part of the category of mubāḥ, it would be more correct to place them close to the line of makrūh. From the point of view of the servant, the reason why necessity makes a ḥarām act permissible is the priority of avoiding greater evil. However, to reveal His sincere servants, Allah's command to them to avoid all ḥarāms even if they die, does not contradict with His wisdom. For this reason, the ultimate cause why Allah considers the case of necessity in passing judgment is His endless mercy. All these points helped reaching some broader conclusions about legal theory, as well as some conclusions specific to the case of necessity. It turns out that to understand how necessity makes some ḥarāms permissible, one needs to comprehend the relation between the act, the obligated person, the conditions surrounding them and the Shari‘ correctly. Understanding this relationship well is also extremely important to understand the theory of ruling and the Islamic legal theory. This research has substantiated once again that the issues addressed by the Islamic legal theory and practice are linked to the theological doctrines, more than, it is commonly perceived or considered. It turns out that it is important to know the deep or subtle differences between the terms such as ḥarām-ḥalāl, maḥẓūr-ḥarām, mubāḥḥalāl, fundamental mubāḥ-ma‘fuw ‘anh, etc. as well as grasping each of the rule categories. Comprehending all these concepts constitutes an important step in acquiring a true understanding of religion and the maqāṣid al-sharī‘a. In this research, it has been proven once again that each category of the rule includes different levels of ruling in itself. The reason why the acts are categorized in different levels even if they are in the same rule category is the concepts of worldly and otherworldly; evil or good arising from the the ḥarām act. This study also confirmed that the obligated person is at the center of the law. This fact reveals how difficult it is to argue that the rules of Allah are based on divine will that is independent of and disregards the act, obligated person, and conditions. On the contrary, it is understood that the interests of the servant are considered both in the rules of necessity and in the whole of the divine legislation (and even the genesis). On the other hand, this indicates a legal system that is not inflexible and dull, but rather dynamic and parallel to life. Both the fact that the real and absolute source of the rule is Shāri‘ Almighty,and that a very large area of legislative was left to the mujtahid should be considered together. This truth has been observed once again in the matter of making prohibitions permissible on the basis of necessity, and the task of determining which evil is greater was often left to the mujtahid’s consideration.

Zarûrî Küllî Makâsıdın Tertibi Problemi Üzerine Bir İnceleme

Author(s): Fatih Çinar / Language(s): Turkish Issue: 1/2021

This article discusses the issue of arrangement /ordering of compulsory-comprehensive maqāsid. In this respect, the main purpose is to help clarify the ordering problem. To accomplish this task, the classical and contemporary studies on this subject were reviewed. Within the scope of this research, it has been determined that the universal principles are generally listed in the order of religion, nafs, mind, generation and property. However, alternative orderings can be found where the nafs is placed at the forefront. The focal point of the ordering problem is emerges from the question of whether Allah's rights/otherworldly maqāsid should be priorities or servants' rights/worldly maqāsid. The conflict between religion, which is an otherworldly value, and other principles played an active role in this classification of maqāsid. Many legal scholars who placed religion in the first place in the classical period did not clearly explained the justification of their arrangement. Also, many of today's researchers also stated that religion should come first. The scholars who put both the religion and the nafs in the center have listed many evidence for their preference. The legal scholars who put religion at the center have pointed the verse " I have not created the jinn and men but they may worship Me" as the basis for their views. Accordingly, the main purpose of the creation of human being is to serve Allah. Because the most important right to be fulfilled is the right of Allah religion should take precedence over other virtues in maqasid. Religion is also the only essential way that leads to eternal happiness. According to the legal scholars who put religion into the center, other maqasid principles are secondary. Correlatively, other principles serve religion. The hadith "The debt to Allah is more worthy of being paid." has been made the basis. Since religion constitutes the essence of the maqāsid, it is also a requirement of reason to make religion essential. According to another reason they stated, the obligation of jihad also ensures that religion is at the center. The obligation of jihad causes lives to be sacrificed to protect the religion. This means that religion is superior to the nafs and other principles. Because jihad, which is the order of religion, is fard. The scholars who maintain that the rights of the servants should take precedence over the right of Allah have cited also a lot of evidence. We come across with their views presented as a weak view in the sources or as an answer to a possible question. There is no clear information about to whom these views belong. Therefore, it is stated that no one introduces the nafs to religion. As a matter of fact, it is stated that it is not correct to qualify these views as an independent view defended by scholars. In other words, the view putting the nafs at the center and the evidence to this preference at this point should be regarded as hypothetical. We are of the view that these claims of contemporary writers need to be proven. The basic reason of the views that puts the nafs in the center is based on the pre-acceptance that maslahahs like the nafs are the right of servants while religion is the right of Allah. The given reasons can be addressed under three main headings: punishments, mitigation of prayers, and concern with non-Muslims. In case where the rights of the servant and Allah unite, the rights of the servant should be preferred. Because, the rights of servants are on hardship, and the rights of Allah are on breadth and mercy. On the contrary to the rights of the servants, postponing or neglecting the right of Allah will not harm Allah. It is clear that if the rights of the servants face postponement, they will suffer serious damage. The fact that killing a man who both abandoned his religion and killed someone unfairly, not for his departure from religion, but for retaliation, that is, the right of a servant, is a concrete example of this. The shortening of the prayer during the journey, the patient’s abandoning standing in prayer and the fasting, and other examples also require the human to be in the center. Today, there are researchers who take the nafs to the center. The existence of religion for humans and society reflects the view of these researchers. Because it is clear that religion will remain dysfunctional where there is no human and society. When these evidences are examined carefully, it can be concluded that the opinion that defends the nafs to be at the center of comprehensive maqāsid is preferable

Zbornik radova Pravnog fakulteta

Frequency: 1 issues / Country: Bosnia and Herzegovina

<p>Proceedings of the Faculty of Law promotes scientific research in all areas of law (legal theory and practice) and other associated social sciences. Edited in accordance with highest academic standards by the distinguished editorial and international advisory board, proceedings are published once a year and are indexed in the HeinOnline and C.E.E.O.L. (Central and Eastern European Online Library) database.</p>

Zeydî Fukahânın Tasnifi: Bülûġu’l-ereb ve künûzü’ẕ-ẕeheb fî-maʿrifeti’l-meẕheb Adlı Eser Çerçevesinde Bir İnceleme

Author(s): Eren Gündüz / Language(s): Turkish Issue: 3/2021

In this study, the classification of Zaydī fuqahā’ that emerged in the mutaaḫḫirūn period of Zaydī fiqh and related terms are examined. The book named Bulūgh al-arab wakunūz al-dhahab fī-maʿrifat al-madhhab, which has great importance among the studies aiming to present the Zaydī fiqh accumulation as a uniform doctrinal structure was taken as a basis in the processing of the subject. After an introduction in which Zaydī fiqh studies are evaluated in their relationship with the subject, the issue is addressed under three main headings. In the first title, the author and his work are introduced, and in the second and third titles, the methods and terms used in the classification of the Zaydī fukahâ are examined. The author of the work is ʿAlī b. ʿAbd Allāh al-Shaharī (d. 1190/1776) who lived during the period of the Qāsimī dynasty (al-dawla al-Qāsimiyya) in Yemen. The most important characteristic of this work, which was prepared by using many important sources in the Zaydī literature, is that it was the most comprehensive study written on madhhab doctrine until then. The first part of the work explains that the right madhhab to be followed is Zaydiyya. In the second part, the classes of the Zaydī fuqahā’, which is the subject of our study, are explained. The fuqahā’ classes are primarily divided into two parts: al-salaf al-ṣāliḥīn and al-ḫalaf al-ṣāliḥīn. The first dates back to the beginning of the 3rd/10th century. This class is divided into two parts, as al-sābiqūn and al-mutaaḫḫirūn. The sābiqūn starts with ʿAlī b. Abī Ṭālib and his two sons al-Ḥasan, and Ḥusayn, and ends with the sons of twelve imams who are their descendants. Zayd b. ʿAlī (d. 122/740) is one of the twelve imams. The most important of the faqīhs in the part of mutaaḫḫirūn, which started with al-Qāsim b. Ibrāhīm al-Rassī (d. 246/860), are the six imams called ahl-al-nuṣūṣ or aʾimma al-nuṣūṣ. The reason why they are named as such is that their words were taken as a basis in determining the views of the sect on the field of uṣūl and furūʿ l-fiqh. al-Qāsim al-Rassī is at a point where all the knowledge of the Prophet's family and the principles agreed upon by sābiqūn, reach him through many channels. al-Hādī Yaḥyā b. al-Ḥusayn (d. 298/911), grandson of al-Qāsim, is the most important imam in terms of his position in the madhhab. The ḫalaf al-ṣāliḥīn is also divided into two parts as ahl l-taḥṣīl and ahl l-naẓar. The first part also referred to as muḥaṣṣilūn or aʾimma al-taḥṣīl, has no subcategories. The second part is divided into two sub-sections as ahl l-taqrīr and mudhākirūn. The muḥaṣṣilūn class starts with those who catch up with the last class of ahl al-nuṣūṣ and ends with ʿAbd Allāh b. Ḥamza (d. 614/1217), one of the three important imams. Two other important imams of muḥaṣṣilūn are Aḥmad b. al-Huṣayn (d. 411/1020) and his brother Yahyā b. al-Husayn (d. 424/1032). It is the fiqh activity of the jurists of this class, called taḥṣīl lmadhhab, that brought Zaydī fiqh, which was fiqh of imams (madhāhib l-aʾimma) in its first period, into a single madhhab and to its classical form in the last period. Mudhākirūn jurists lived at the same time as the ahl-t-taqrīr. This period is about 700 years from the beginning of the 6th/12th century, which is the last century of the muḥaṣṣilūn class, to the end of the 12th/18th century, when Shaharī lived. The roles of the ahl al-taqrīr in the madhhab mostly consist of reviewing the works of the ahl-l tahṣīl, approving the correct ones, and correcting the wrong ones. That's why they are so named. The author of Kitāb l-Azhār, Aḥmad b. Yaḥyā l-Murtaḍā (d. 840/1437), is one of the prominent jurists among the ahl l-taqrīr. The majority of Zaydi fuqahā’ belongs to the muẕākirūn class. These are the lowest class of the ahl-al-naẓar. As an important result reached in the study, it is possible to state the following: There is a difference between some of the knowledge and opinions in modern Zaydī studies, which include the same subject as Shaharī's work, in terms of the classification of Zaydī fuqahā’ and the terms used. Therefore, the findings and conclusions based on this work should be confirmed by new studies on other Zaydī classics, and existing opinions on Zaydī jurisprudence should be reviewed.

ГЕНДЕРНЫЙ АСПЕКТ В ДУХОВНОЙ ЖИЗНИ НАСЕЛЕНИЯ РЕСПУБЛИК СЕВЕРНОГО КАВКАЗА

Author(s): Hasan Vladimirovich Dzutsev,Aminat Parukovna Dibirova / Language(s): Russian Issue: 1/2020

The present article uses the data collected during the summer of 2017 in a course of the large scale survey in the republics of the North Caucasus Federal District of the Russian Federation, namely, the Chechen Republic, the Karachay-Cherkessia Republic, Republics of North Ossetia-Alania, Ingushetia, Dagestan, and Kabardino-Balkaria. The survey was conducted by the Center of the Russian Southern regions studies at the Institute of Socio-Political Research of the Russian Academy of Sciences and the department of sociology at the North Ossetian State University. The total number of respondents was 1200, including 30 experts (journalists, scientists, government officials, members of political parties, cultural workers, religious scholars, lawyers). The results demonstrate that in their spiritual life the Caucasians are strongly interested in the gender aspect. A high coefficient of variation of data within a single answer indicates the heterogenous nature of the opinions, which depended on the respondents’ nationality, religion, and place of residence. The experts’ opinions varied as well. For example, experts from Chechnya and Ingushetia, and, to a lesser extent, Dagestan, emphasized the importance of religion in their respective regions. The experts from North Ossetia, Kabardino-Balkaria, and, to a lesser extent, Karachay-Cherkessia spoke about the dominant role of nationalism in their republics. This notion was especially applied to such issue as family creation. The experts of North Ossetia pointed out that the citizens of the republic are indifferent to the issues of Islamic faith, gender segregation, Muslim woman’s dress code, etc. It is worth mentioning, that the experts from Chechnya and Ingushetia expressed a strong sentiment in favor of gender segregation and limited social role of women, prescribed by the Islamic faith.

ГЛАСЪТ НА ЖЕНИТЕ В РИМ. ИСТОРИЯ, КОЯТО РАЗРУШАВА МЪЛЧЕНИЕТО И НЕРАВЕНСТВОТО

Author(s): Amelia Castresana / Language(s): Bulgarian Issue: 2/2020

Nowadays, on the iconic date of March 8th, thousands of women and men fill the streets of our cities to make visible gender inequality. In such a feminist mobilization, voices are raised against the pay difference and the discrimination in the workplace, domestic and sexual violence, and calls in favor of equality between men and women are written in capital letters. Everyone listens, reads, understands and shares these legitimate demands of women. However, these demonstrations have their origins in Ancient Rome. More than 2000 years ago, Roman women went to the streets to protest publicly against sexual violence and abuse of power by men. The article traces the various stages of this protest, as well as in particular the measures regarding the exclusion of women from political life and the restriction of their labor initiative.

Джерела шиїтського ісламського права (відповідно до джафаритського мазхабу)

Author(s): Akif Tahiiev / Language(s): Ukrainian Issue: 18/2020

To understand the essence of a legal system, one of the priority tasks is to study the doctrine of its sources of law. The situation with Islamic law is similar. The doctrine of sources of law is one of the most developed because it has been studied by a large number of lawyers and orientalists. At the same time, we see insufficient research on this doctrine due to a large number of approaches to understanding the term «source of law». In this paper, we have explored the sources of Islamic law in accordance with the Twelvers madhhab, as it is a basic school of Shiite legal doctrine.As a theoretical basis for the analysis of approaches to understanding the «sources of law», we have chosen approaches and their characteristics that would correspond to current approaches to the study of legal phenomena and processes in domestic legal science. Thus, the sources of Shiite Islamic law were analyzed in accordance with the following dominant approaches to understanding the meaning of the term «source of law»: epistemological (source of law is defined as a source of knowledge of the law, ie where we get our knowledge of the law. Most often it is legal monuments of history); material (social relations in general, natural, cultural, political, religious and other factors that determine the emergence, development and content of law); institutional (the law-making activity of state authorities and civil society institutions that establish or sanction legal norms); ideological (legal ideas, concepts, legal awareness of the subjects of lawmaking, which form a certain legal understanding and are the basis of the rules of law, affect their content); formal-legal (various forms (methods) of external expression of legal norms). After analyzing different approaches, we came to the conclusion that depending on the approach, the sources of Shia Islamic law are:according to the classical approach (ie, which is followed by Muslim scholars of Islamic law) - the Quran, Sunnah, ijma, akl;according to the epistemological approach - the Quran, Shia collections of hadiths «Al-Kafi» Kulaini, «Man la yahduruhu-l-faqih» by Sheikh Saduk and others), the works of prominent lawyers «az-Zaria» by Seyid Murtaza, «al-Nihai» by Sheikh Tusi);according to the material approach - social relations, cultural, religious and political factors;according to the institutional approach – religious scholars and faqihs, partly the new Islamic states;according to the ideological approach - God (and His will), akl (intellect, reason);according to the formal-legal approach - the Quran, hadiths from the Prophet and Imams, legal doctrine

ДЛЪЖНИЦИ И ДЪЛГОВЕ: НОВИ ПЕРСПЕКТИВИ

Author(s): Sebastiano Tafaro / Language(s): Bulgarian Issue: 1/2021

The text of the article was edited on the basis of a report presented to the XI Congress of Roman law scholars from Central and Eastern Europe and Asia, held in Craiova on 3 November 2007. It examines successively legislative policy on debt and government intervention on interest rates, limitation of interest rates supra legitimum modum, setting an upper limit for increasing the amount of debt. A special place is given to the concepts of proportionality and reasonableness in credit relations, as well as to the evolutionary interpretation of obligation and proportionality.

ЕТИЧНИТЕ КОМИСИИ ПРИ НАУЧНИТЕ МЕДИЦИНСКИ ИЗСЛЕДВАНИЯ ВЪРХУ ХОРА – МЕЖДУНАРОДНОПРАВНИ АСПЕКТИ

Author(s): Ivaylo Ivanov Staykov / Language(s): Bulgarian Issue: 2/2020

The subject of analysis is the international legal regulation of the activity of the ethics committees of scientific medical research with human beings. The focus of the analysis is on The Declaration of Helsinki of the World Medical Association on Ethical Principles in Human Clinical Trials (of 1964), The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (the so-called Oviedo Convention) and The Additional Protocol of 2005 to the Convention on Human Rights and Biomedicine on Biomedical Research.

ИЗВЪНРЕДНО ДОГОВОРНО ПРАВО ИЛИ КАК ДА УРЕДИМ ДОГОВОРНИТЕ ПРОБЛЕМИ ПО ВРЕМЕ НА ПАНДЕМИЯ

Author(s): Pascal Pichonnaz / Language(s): Bulgarian Issue: 1/2021

Despite the significant number of measures taken by the Swiss Federal Council (Government) in relation to the COVID-19 pandemic, problems regarding the economic balance between contracting parties have not been subject to specific interventions. The article points out that an individualistic approach, in particular through the rules of unforeseeability, is partly unsatisfactory in view of the systemic issues at stake and the risk that the burden of all additional individual actions represents for the judicial system as a whole. The author stresses the importance of a duty of renegotiation between the parties, based on the rules of good faith in business, the content of which must take into account a dynamic approach, inspired by historical experience. The article then suggests substantive and procedural rules for an extraordinary contract law to deal with systemic contractual imbalances. A relational approach to the contract, as well as a more solidarity-based conception of it, must lead to renegotiations and group settlements, which are relatively binding for the contracting parties, or even to solutions imposed by the authorities as a last resort.

КОНСЕНСУАЛНОСТТА НА РЕАЛНИЯ РИМСКИ MUTUUM. КОНТИНУИТЕТ И ДИСКОНТИНИУИТЕТ В УРЕДБАТА НА ДОГОВОРА ЗА ЗАЕМ ЗА ПОТРЕБЛЕНИЕ МЕЖДУ РИМСКОТО ПРАВО, ИТАЛИЯ И КИТАЙ

Author(s): Antonio Saccoccio / Language(s): Bulgarian Issue: 1/2021

Roman jurists had always included the loan contract among the real contracts. This is the result of a progressive refinement process started with the ‘birth’of the loan within the category of the 're obligari'. Through a riper consideration developed among the jurists, the old 're obligari' has been included in a more recent notion of 'contrahere re', where the role of the consent is definitely more relevant. A tension between the elements of the consent and delivery has been kept within the view of Roman jurists on this contract: Roman jurists had, on the one hand, vigorously defended the view of the loan as a real contract, on the other hand, had elaborated dogmatic models of loan contracts for which the delivery (traditio) was not anymore necessary for the production of the (obligatory) effects of the loan contract.

КРИПТОВАЛУТЕ У ИСЛАМСКОМ ФИНАНСИЈСКОМ СИСТЕМУ КРОЗ ПРИЗМУ ШЕРИЈАТСКОГ ПРАВА

Author(s): Ahmedin S. Lekpek / Language(s): Serbian Issue: 2/2021

The creation of cryptocurrencies marked the beginning of a new era in money evolution. In the cryptocurrency system, governments do not have primacy over monetary flows, but it is in the hands of participants in the cryptocurrency system, which enables the democratization of money. This also raised a number of issues that need to be resolved. Among them, the issues of incorporating cryptocurrencies into monetary policy, accounting, and tax treatment of cryptocurrencies, as well as preventing potential abuses, are especially prominent. On the other hand, Shariah experts deal with cryptocurrencies from the aspect of their Shariah compliance, and on that issue they are divided. This paper analyzes the treatment of money in Islamic teaching and practice, the concept of cryptocurrencies, and the challenges of their practical application, as well as the arguments presented by Shariah experts in support of their positions on the Shariah (non) compliance of cryptocurrencies.