“Cevâz-ı Şer'î Damâna Münâfidir” Kâidesi Kapsamında Hukuka Uygunluk Sebepleri Hakkında Bir İnceleme

Author(s): Ahmet Akman / Language(s): Turkish Issue: 57/2022

The resolution of similar cases according to the same or similar general rules is very important in terms of stability in legal understanding and practice. In this respect, universal rules (basic rules) contribute to the development of legal logic. As of the history of Islamic law, practices and legal works that are the product of this logic have been encountered since the early periods. An important part of these rules are either taken directly from the Ḳur'ān and Ḥadīt̲h̲ or they have emerged as the common meaning of the texts. However, these basic rules were subject to a legalization for the first time and comprehensively through Med̲j̲elle-yi Aḥkām-i̊ ʿAdliyye. These were arranged within the framework of the first hundred articles of the Med̲j̲elle, which can be accepted as the most important national code of the Ottomans. Among these, one of the important components of the compensation law in Article 91;"legal permissibility (cevāz-ı şerʿî) does not create liability." is included. After emphasizing the importance of remedying the damage and the consequences of the tortious act in different articles, it concisely regulates the relationship between the legal permissibility and the compensate of the damage, which is among the reasons for legality. Instead of being directly applied in courts, universal rules have a guiding and opinion-forming effect for judges, practitioners and lawyers.

КЪМ ВЪПРОСА ЗА ПРИДОБИВАНЕ НА ЦЕННИ КНИГИ НА ПРИНОСИТЕЛ ЧРЕЗ ПРИДОБИВНИЯ СПОСОБ ПО ЧЛ. 78 ОТ ЗАКОНА ЗА СОБСТВЕНОСТТА И НЯКОИ НЕОБХОДИМИ ОТГРАНИЧЕНИЯ

Author(s): Dimitar Stoyanov / Language(s): Bulgarian Issue: 1/2022

The present article puts an emphasis upon the acquisition of bearer bonds from a non-owner in the context of art. 78, para. 1 of the Law of Property Act. Significant attention is devoted to establishing the content of the notion of “bonds” in order to assess which of the assets fall within the scope of application of the acquisition from a non-owner pursuant to art. 78, para. 1 of the Law of Property Act. Moreover, the present article aims to compare the means of acquisition applicable to bills of exchange, as established in art. 471, para. 2 of the Commercial Act, with the acquisition from a non-owner pursuant to art. 78, para. 1 of the Law of Property Act.

ЛЪВСКОТО ДРУЖЕСТВО В РИМСКОТО ПРАВО

Author(s): Stoyan Ivanov / Language(s): Bulgarian Issue: 1/2021

The article discusses the origin and meaning of the notion and the term leonine partnership, as well as the problems associated with the distribution of profits and losses between the partners in the consensual contract for partnership in Roman law. The fragment from the Digests of Justinian where actually is the unique mention of the expression societas leonina and this form of partnership is defined by the Romal classical jurist Cassius is subjected to a legal-dogmatic and linguistic analysis. The fable of Phaedrus for the partnership between a lion, a goat, a cow and a patient sheep which is considered to be the original source, used for forming the concept of the leonine partnership in Roman legal thought is completely analysed and interpreted. The author paid special attention to the magna questio (the great discussion) among Roman jurisprudence, dating from the period of the end of the Roman Republic with some projections and in the classical period in connection with the distribution of profits and losses in the consensual contract of partnership as a result of the partnership`s activity. And on the other hand the article examines the problem about the existence of privileges or restrictions for certain partners regarding the profits and analysis of the two leading opinions on the subject through the exegesis of a fragment of the Institutions of Gaius.

МАГИЯТА НА MANCIPATIO

Author(s): Kaius Tuori / Language(s): Bulgarian Issue: 1/2022

Many of the oldest Roman legal institutitues such as mancipatio, stipulatio and vindicatio contained elements that were interpreted as supernatural or religious, the completion of these practices required the use and the pronunciation of certain precise words, and ritual acts which had to be committed. The conventional wisdom has long been that the early history of Roman law was filled with curious ceremonies and ritual incantations; spears and sticks wielded to symbolically bestow rights and duties, while classical law was characterized by rational legal thinking. The author`s purpose is to examine the ritualistic and the supernatural elements of archaic Roman law and their influence in the classical period through the example of the institute of the mancipatio. In this contribution, prof. Tuori argues that through its archaic roots, Roman law had a strong supernatural element, though not as magic is commonly understood, but instead a belief in the transcendental. Additionally the aim of this article is to outline the understanding of the historical consciousness of Roman jurists.

МОРЕ И ПРАВО. НЯКОИ БЕЛЕЖКИ

Author(s): Mario Fiorentini / Language(s): Bulgarian Issue: 2/2021

The analysis of the legal sources of the second and third centuries AD, aims to highlight the fact thatthe inclusion of the sea among the res communes omnium, and the same this category developed by Marcian are not so much the mature fruit of the discussions developed among the imperial jurists but, on the contrary, an attempt to build a special category within the res publicae, open to anyone regardless of Roman citizenship, which, however, when it was created by Marcian, would need further reflection. However, such an in-depth study was not possible due to the lack of scientific activity of the jurists after Gordian III. A close analysis of the scene of Plautus’ Rudens is also carried out, in order to attempt a correct framing of the discussion on the historical process that involved the definition of the sea as res communis omnium.

НЯКОИ ДИАХРОНИЧНИ ОТРАЖЕНИЯ НА ДЕФИНИЦИЯТА ЗА ДОГОВОРНАТА ИЗМАМА В РИМСКОТО ПРАВО

Author(s): Emmanuelle Chevreaux / Language(s): Bulgarian Issue: 1/2021

The French reform of contract law, and in particular the publication of the Ordinance of 10 February 2016 on the reform of contract law, offers an opportunity to make some remarks on the subject of the Roman definitions of dolus malus. In fact, the new Article 1137 of the French Civil Code introduces for the first time the definition of fraud. This is a novelty in the legislation, as the drafters of the Civil Code of 1804 (Napoleon's Code) did not propose any definition of fraud, although Pottier in his "The Doctrine of Bonds" adopted the famous definition of dolus malus by the Roman jurist Labeon. It was formed in the legal doctrine and case law of the XIX century, and for this purpose the Roman legal sources are analyzed.

О ФОРМАХ ПРАВОСОЗНАНИЯ: ПРИМЕР ОДНОГО АНАЛИЗА

Author(s): Sergey Shevtsov / Language(s): Russian Issue: 1/2021

The article raises the question of the possibility of reconstructing the legal consciousness of one culture and era in the categories and concepts of another. The subject of analysis is the plot of a medieval fairy tale from the collection Arabian Nights. Most European researchers of modern Europe perceive the plot of this story as a demonstration of the blatant injustice and corruption that reigned in Egypt during the Mamluk sultanate. At the same time this story appears completely different when correlated with the principles and norms of Muslim law. It tells how divine wisdom guides the people’s actions without them knowing, establishing order and justice in society. Fairy tales reveal the relationship between the upper world and the earth one, testify to the divine care for the daily life of people.

Основні принципи шаріатської економіки для економічного розвитку громади (аналіз застосування принципів шаріату в Індонезії)

Author(s): Rahadi Wasi Bintoro / Language(s): Ukrainian Issue: 153/2021

Islamic financial institutions tend to no longer apply profit and loss sharing but more to revenue sharing. On the other hand, the Sharia economy aims to empower people to fulfill human needs based on Islamic values to achieve happiness in the world and end. Therefore, the focus of this paper is the application of Sharia principles in the sharia economy. The research method to answer the legal issue is normative legal research that is analyzed qualitatively. Sharia financial institutions are still unable to escape from their existence as business institutions for the main purpose of profiting. This is certainly far from the spirit of empowerment of people in the sharia economy. Islamic financial institutions should not be separated from the core of the sharia economy, namely the empowerment of people. Therefore, Sharia financial institutions must utilize social corporate responsibility to achieve the objectives of community empowerment

ОТНОШЕНИЯ МЕЖДУ ЗАПАДНОЧЕРНОМОРСКИТЕ ГРАДОВЕ-ДЪРЖАВИ И РИМ ПО ВРЕМЕТО НА ПРИНЦИПАТА

Author(s): Tihomir Rachev / Language(s): Bulgarian Issue: 2/2021

The expansion of the Roman Empire during the Principate leads to the creation of various unions between Rome and Black Sea city-states. The relations between Roman and local authorities is a question of great importance for the understanding of the integrational processes in the Empire. One example of such a union is the Western Pontic koinon among Istrum, Tomis, Callatis, Dionisopolis, Odessos and Mesambria. The analysis of this union can reveal the mechanisms of integration and government during the classical period of Roman law. This article aims to examine the relations between Rome and the Western Black Sea Coast city-states in order to reveal the basic principles of cooperation and integration of these cities under Roman rule.

ПОJAM СУНЕ У ПРЕДИСЛАМСКО ДОБА

Author(s): Vojislav Stanimirović / Language(s): Serbian Issue: 1-3/1991

The notion of pre - Islamic sunna has for a long time been in the shadow of the much more known sunna of the prophet Mohammed. However, Goldziecher and, later on, Schacht have contributed to discovery in the dzahiliet surma of the contents which may be qualified as one of the most significant sources of the Islamic law. Treated in the text is the difference between the custom (adet) and the sunna. The sense of binding character of application of a specific sunna comes out of the authority of its founder. Tribial character of the Arabian society before Islam made possible useful and accepted precedents created by some personalities which introduced them into the legend, so that these people became the part of an everlasting tradition of the tribe. Keeping that tradition through generations was the task of poets, while credit for its development has to be granted to elected tribal arbitrators. By establishing the new - Mohammedan sunna and by uniting the tribes into a single Muslim community (ummu), the pre - Islamic sunnas gradually were forgotten as far as their origin is concerned. They, in fact, were transformed into customs (adet).

ПОМИЛВАНЕТО В РИМСКОПРАВНАТА ТРАДИЦИЯ

Author(s): Iva Pushkarova / Language(s): Bulgarian Issue: 2/2020

The article studies the scope of application, the legal effects and the legal and political concept of pardon as an instrument for full or partial abolition of an imposed penalty in Ancient Rome Empire focusing on both normative resources and historical evidence of the manner in which the institute has been practiced. By outlining both permanent characteristics of pardon which have survived to the present times and features which have changed together with the change-related factors, the analysis contributes to the establishment of a common understanding of the institute.

ПРОИЗХОДЪТ НА REGULAE IURIS: МАКСИМАТА “PACTA SUNT SERVANDA”

Author(s): María Etelvina De las Casas León / Language(s): Bulgarian Issue: 1/2021

The jurists of the late Republican period, under the influence of the Greek dialectics, formulated certain principles or rules across the generalization of decisions to which they had come across the study of particular cases. They were trying to solve the cases that were appearing ignoring any type of rules or rather without knowing that across some of these decisions they were constructing rules that would come to the present day. Along this work there will be studied the origin and evolution of the roman regulae iuris, where the jurists, without realizing elaborated a corpus of rules that have been and are used not only for the juridical classifications of the Civil Law, but also of the Common Law.

РАЗМИСЛИ ВЪРХУ ПОНЯТИЕТО DAMNUM: DAMNUM И ВРЕДА, ИСТОРИЯТА НА ДВАМА „ФАЛШИВИ СРОДНИЦИ?

Author(s): Jean-François Gerkens / Language(s): Bulgarian Issue: 1/2021

The article raises the question of two legal terms - harm (dommage in French) and damnum (in Latin): whether they are so-called in linguistics "false cognates"? If we look at the dictionaries of two modern languages, in such way are called words that are very similar in appearance but different in meaning. The interpretation of the difference in word formation and meaning can sometimes be explained by differences in the evolution of the two words, which could have a common etymological origin. The peculiarity of the case considered here is obvious in the fact that one word originates from another and it is not a question of parallel development. The question also arises as to whether the evolution of the word has given it a new meaning different than that which it had in Latin. The purpose of this brief research is not a philological or an etymological study of the subject, but to examine whether every time the Roman jurists speak of damnum it necessarily corresponds to the concept of harm (dommage) in the French language.

РАЗМИСЛИ ОТНОСНО РИМСКОТО И СЪВРЕМЕННОТО СХВАЩАНЕ ЗА ДОГОВОРА

Author(s): Juan Manuel Blanch Nougués / Language(s): Bulgarian Issue: 1/2021

The aim of this article is to highlight the importance of the Roman legal terminology on contracts, origin of modern basic concepts such as contract, pactum, agreement, transaction (with mutual sacrifices by the parties), or unilateral promise etc., very abundant, from the legal theory’s point of view, in the Roman law. This ancient law is, nowadays, an indispensable tool referring the dialogue between the most widespread traditions in the world, i. e., the Roman-Germanic and the Common Law. In order to do that, even between national laws belonging to a common legal tradition, the analysis of the genesis and nature of the legal concepts in Roman law constitutes a fundamental task of legal interpretation. A review of the traditional theory of the sources of obligations in Roman law is also necessary. This paper, besides, affords the discussion of the recent reform of the French Civil Code concerning the sources of obligations (2016), as well as some of the different initiatives about the international unification of private law.

РИМСКОТО ПРАВО КАТО ИЗТОЧНИК НА ТЕОРЕТИЧНО ВДЪХНОВЕНИЕ: СЛУЧАЯТ НА СКАНДИНАВСКИЯ ПРАВЕН РЕАЛИЗЪМ

Author(s): Simeon Efimov Groysman / Language(s): Bulgarian Issue: 2/2020

The article analyzes the large-scale theoretical significance of Axel Hägerström's idea of the magical origin of a number of the institutes of the most ancient Roman law. In the theoretical thought of Scandinavian legal realism, and especially of Hagerstrom's student Karl Olivecrona, the idea develops that legal thinking bears a number of features of primitive magical thinking. Scandinavian realists oppose the alternative of a fact-oriented legal method, which considers legal norms as mere probabilistic conditional statements for how a hypothetical judge would decide in a hypothetical situation. The proposed analysis develops the idea of analogies between magical and legal thinking, considering the relationships between magic and science and magic and religion. The term "magic" in the authors under consideration is shown in its role of an argumentative tool rather than a strictly anthropological concept. The scientific endeavor of Scandinavian legal realists is explained as a radical opposition to the older legal theory. The idea of magic served Olivecronа ultimately to emphasize the importance of legal psychology for legal thinking and to present legal force as the belief in the binding nature of a rule.

РОМАНИСТИЧНИ СЪОБРАЖЕНИЯ ЗА УСТОЙЧИВОСТТА НА ТЕРМИНИТЕ „НАСЛЕДНИК“ И „НАСЛЕДСТВО“

Author(s): Riccardo Cardilli / Language(s): Bulgarian Issue: 1/2020

The article presents the terms and concepts of heir and inheritance, formed in the archaic era by solemnis mos and included in ius civile. Inheritance is analyzed as a cultural and legal-religious achievement with richer content than the ordinary transfer of property after the death of the testator. A comparison is made between inheritance by law (ab intestato) and by will the appointment of an heir by testamentum calatis comiciis and adoption by adrogatio. The basic and genetically related terminology for heir and inheritance passes into the legal tradition based on Roman law in both models of inheritance – by will and by law. Linguistically, however, "successio" has an expressive meaning, but it is the result of the reasoning of classical jurists and interpreting the models of succession on the occasion of death in civil and praetorian law.

Студентски стихотворения

Author(s): Dobrinka Chankova / Language(s): Bulgarian Issue: 1/2020

Турският наказателен закон – опит за създаване на модерно законодателство

Author(s): Neli Radeva / Language(s): Bulgarian Issue: 1/2021

During the 19th century, Ottoman law was influenced by the West. The Tanzimat reforms marked the beginning of criminal codification in the Ottoman Empire, whose Penal Code was adopted in 1858.It was modern in terms of format and content, and it differed from the penal laws of 1840 and 1851. Its first article stated that it shall not repeal the provisions of Sharia law. This dual nature of the code caused a lot of confusion. The complete replacement of Sharia law with modern European law did not happen suddenly, but gradually. This was necessary for the government to embrace the new ideas and understandings of the modern societies at that time. Therefore, the attempts of the Ottoman authorities to modernize the Empire’s laws,particularly the ONK, cannot be denied.

الفتوى الشرعية وأهميتها في المحافظة على الهوية الحضارية لمسلمي دول جنوب شرق أوربا

البوسنة والهرسك نموذجا

Author(s): Junus Al-Azuzi / Language(s): Arabic Issue: 23/2019

Geographically, Bosnia and Herzegovina is part of Eastern Europe, while in a historical and religious sense, it has been associated with the Islamic world since the Ottoman conquest of this region during the 15th century. It is inhabited by Bosniaks, Serbs, Croats, Albanians, Turks, Romanies and others. Throughout its history, from the Austro-Hungarian monarchy, through communist Yugoslavia, to Serbo-Croatian ambitions in the last war, Bosnia and Herzegovina has been exposed to a number of disasters, most of which were related to wars and aggressions. These have caused Muslims living in Bosnia and Herzegovina to be repeatedly cut off from their brothers in other countries, to be prevented from performing religious practices and establishing religious education, and to live divided among nationalities and forces constantly seeking their subjugation and disappearance. Therefore, Muslims in these areas needed a clear legal sharia solution (fatwa) that would facilitate their social, religious, political and military life and protect them from the iron grip of their enemies. Thus, several fatwas have appeared known by the names of those who issued them, (...)

تخيير الطفل بين أبويه عند انتهاء الحضانة في الفقه الإسلامي

Author(s): Baha Eddin Aljasem / Language(s): Arabic Issue: 1/2021

One of the most important rights of the child organized by Islamic law is the right of custody, and the performance of this right is shared between the spouses in the event of marriage. But if the marriage ends and the family contact is dissolved, the first to take custody of the child is his mother, unless there is an emergency that her right to so is waived. If the custody period ends, the rivalry between the parents intensifies, both of which want to take the child to his side. Then who decides the fate of the child in this period and does his choice have a role in resolving the dispute. And what if he chooses him together or the child chooses someone else or refrain from the child's choice to keep the child with him. This research comes to answer these and other questions? by speaking briefly about the legality of custody and it's general principles. And then the scholar sayings that the child has the right to choose between his parents at the end of custody period, to give their evidence, to discuss them, to weigh these statements, and to make a statement that is applicable in most famous personal status laws in the Arab countries.