Kitap değerlendirme: Osmanlı Devletinde Fetvâ Eminliği (1826 - 1922)
The review of: Talip Ayar, Osmanlı Devletinde Fetvâ Eminliği (1826 - 1922), (Ankara: Diyanet İşleri Başkanlığı Yayınları, 2014) 266 s.
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The review of: Talip Ayar, Osmanlı Devletinde Fetvâ Eminliği (1826 - 1922), (Ankara: Diyanet İşleri Başkanlığı Yayınları, 2014) 266 s.
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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.
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This paper aims to deconstruct the traditional narratives on the Ottoman financial and political strategies towards non-Muslim and Muslim subjects in the Western Balkans by re-examining the foundation, extent and consequences of the central government’s policy of demanding a payment of jizya tax not only from non-Muslims, as stipulated in the classical Sharia law, but from the Muslim population as well. Although academic community is aware of the existence of Muslim jizya payers in several regions of the Ottoman Empire, this paper argues that historiographic knowledge on the mentioned phenomenon is rather rudimentary as present studies on this topic are based on a very limited data while official financial records that contain information on Muslim jizya payers, such as the jizya registers from the Ottoman Bosnia, have still not been thoroughly analysed. Recognizing the need to include financial records into the account, the main research strategy of this paper was to identify and examine records of jizya payers which contain a significant number of Muslims in a taxpayer role as well as to compare and interpret this data with other financial, administrative and legal texts that could help us gain better insight into the phenomenon of Muslim jizya payers in the Ottoman practice. The main primary source for the analysis provided in this study was a register of jizya payers from the vilayet of Brod, in central parts of the Ottoman Bosnia, from the 1679, which have not been previously used in historiographic studies. On the basis of this financial register, it has been concluded that more that 90% of all jizya payers in the territory covered in the mentioned register were Muslims, which is an important and interesting fact that has still not been recorded in any other part of the Ottoman Empire.
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Review of: Hana Younis - Ehlimana Memišević, Sudovi: komparativna studija, Sarajevo: Centar za napredne studije, 2019, 462 str.
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The concepts ethnicity, religion and politics are problematic even at the level of conceptualization. However, the interdependence of ethnicity, religion and politics as social dynamics in fostering the development of a nation has become imperative across the globe. Nigeria is multi-ethnic with cultural differences between its component ethnic groups has been crippled by series of political unrest, ethnic chauvinism, youth restiveness, corruption, religious bigotry and extremism, and other social vices that undermine national development. Therefore, it is against this backdrop that this study examines the effects of ethnicity, religion and politics on national development in Nigeria. A descriptive method was adopted and cross-sectional data were collected across the twenty five Local Government Areas in Delta State with the aid of a structured questionnaire. Non-probabilistic sampling techniques comprising of purposeful and convenience techniques were used to elicit information via questionnaire from 400 respondents. Data collected were analyzed using correlation and regression analysis. The findings of the study showed that ethnicity, religion and politics negatively and significantly impacts national development in Nigeria. On the basis of these findings, the study recommends among others that the nation needs a purposeful leadership that has a vision of how to place its citizens at the centre of political project without recourse to ethnic chauvinism and sees acquisition of political power as not an end in itself but a means for serving the collective welfare of its people regardless of their ethnic origin.
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This essay addresses the main theses in the book Myth and Reality in Contemporary Islamist Thought by the Egyptian philosopher Fuʼād Zakariyyāʼ (1927-2010). A follower of a critical school of thought, Zakariyyāʼ examines the impact of modern governmental and ideological (ab)uses of Islam, sharīʻa, and state adoption of sharīʻa. In his view, faith in God is primarily a moral vocation, so that sharīʻa and the body of sharīʻa law that later developed from the sources of Islam comprise a set of moral and ethical rules for individuals to follow, but without state sanction. He argues that Muslims should rely on contemporary developments, the product of intellect and reason, in organizing their governments and societies. Zakariyyāʼ advocates reading the major source texts of Islam in a dialectical relationship with the conditions of life in which human societies actually subsist.
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This paper aims to present the views of the Bosnian ulama about one of the biggest challenges facing the Bosniaks in their history in this area. This is an issue of migration or Hijra of Bosniaks from Bosnia at the time of the Austro-Hungarian Empire. The issue of migration of that time reveals a number of Bosniaks‟ dilemmas about their identity, homeland, relations between Sarajevo and Istanbul, to remain here or to leave, to fight or to accept imposed solutions, etc. The paper will also reveal the views or fatwas of the scholars outside Bosnia and Herzegovina, the official Istanbul, i.e. those who justified migration and those who did not. Different views on the same issue suggests the complexity of the then overall situation, different interests that intertwined over Bosnia and Bosnians, political un/orientation in the mirror of questioning Bosniak national identity, etc. The work also shows how Bosnian ulama responsibly and wisely responded to social challenge and offered appropriate solutions
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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.
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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.
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Starting from a general vision of Roman law regarding obligations, this article analyzes the relationship between the exact fulfillment of the former and the creditor satisfaction. In addition, based on the sources, some personal reflections are made as for the procedural claim in case of non-compliance, the payment made after the litis contestatio, and a review of the means of proof in the Roman private process in the Italian doctrine.
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Although not always distinguished as an explicit procedural phenomenon, abusus iuris doctrine has a long history and is familiar to all periods of historical development of civil procedure. As one of the basic principles of contemporary civil procedure, if analysed historically, it can be noted that the prohibition of abuse of procedural rights is neither modern nor contemporary in the legal meaning of those terms, nor in the historical retrospective loses the importance that characterize it in the modern civil procedure. Within the paper, the focus is set on the administration of justice in ancient Rome with particular interest on the institute of abuse of procedural rights. The paper discusses the beginnings and development of organized methods of legal protection in Roman civil procedure with the aim to determine its basic characteristic through different stages of its development and to analyse the frivolous behaviour of the parties before the tribunal and procedural mechanisms for supressing vexatious litigation. The historical retrospective is covering different periods of development of the Roman litigation. The main drive for analysis of the historical dimension of civil procedure in ancient Rome is to analyse the genesis and evolution of the principle of bona fides in Roman civil procedure.
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This paper examines some of the legal perspectives of Rome’s fight against piracy. The main objectives of the study are to touch upon the notion of piracy in Republican Rome and the actions that were taken by the State against these „sea bandits“.
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This study investigates end-of-life decisions through Islamic and legal comparativeapproaches by focusing on the Albanian context. The methods applied in this paperare critical legal reasoning and legal comparison. The goal of this research is toreview the impact of the Islam legal culture (Qur’an and hadith) on the Albanianlaw of end-of-life decisions. From a legal approach, this paper underlines the unconstitutionality of the Albanian Code of Medical Ethics. In addition, the review ofthe Islamic literature on medical jurisprudence demonstrates the attitude of Muslimcommunity regarding end-of-life decisions in addition to scientifically examine thevarious rules governing end-of-life situations codified in the Islam legal sources byonly considering the Qur’an and hadith. This investigation aims to understand the similarities and differences between these two different approaches by also underlyingthe importance of Islam approach on end-of-life situations on the Albanian legislation.
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Feminism and the women's movement in Malaysia are products of specific historical and political contexts. Following this logic, the language used in feminist activism can also be seen as product of similar contexts. The focus of this article is the current state of the feminist movement in Malaysia and its linguistic framework as the effects of changes in language policy. This article then considers the use and relevance of feminist theory in Malaysian feminist activism as linked to the predominance of English in Malaysian feminist discourse. This article also argues that the predominance of English poses challenges to the inclusion of working-class class feminist agendas but offers opportunities in strengthening transnational feminist linkages. Language thus becomes an underlying issue which may explain the successful inroads and setbacks faced by feminist organizations in Malaysia. The issues of language and hegemony of this article couches itself within ongoing debates on Anglophone hegemony in feminist discourse in non-Western nations and how feminist concepts in English are engaged in multilingual contexts.
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We will make a brief review and a summary analysis of the most characteristic and particular profiles of the iurisdictio Irnitana, of the more traditional notion of iurisdictio, and, in a more detailed way, we will focus our attention on the competent organs and courts (duumviri, aediles, prefects, municipal senate and court of five decuriones). We will also highlight the different options of the adversarii in the different courts and the special relevance granted by lex Flavia Municipalis to the agreements of the subjects in the lawsuits of the municipality.
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According to Islamic law, there are rules and prohibitions that Muslims must follow in their actions and transactions. The prohibition of interest has been decisive in many actions, especially in debt. Accordingly, Muslims cannot put forward a condition of interest in their debt, nor can they take any transactions under this condition. Many jurists viewed interest not only as an excess of the debt but also as any benefit that the creditor would receive from the debtor other than the amount of the loan, and they evaluated it within the scope of interest. Since the lender of “qard”, which is generally used to define the debt, should not receive anything in return and should expect its reward from Allah, this was called “qard al-hasen”, quoting the relevant verses of the Qur’an, and Muslims tried to meet their credit needs through qard al-hasen. However, in some cases, people had difficulty obtaining the credit they needed, and especially in the modern period, the need for credit has increased both individually and institutionally. Therefore, Muslims tried to meet their need for qard by resorting to different ways within the limits of the Shariʽah. While applications based on transactions such as sukuk, mudaraba and murabaha and those based on intermediary transactions such as the purchase and sale of goods or partnerships were developed, applications based on direct debt without resorting to such transactions remained almost nonexistent. However, from the expressions in the books of classical fiqh, it is understood that the juʽalah, which is defined as “promising a reward in return for an action”, can be used for obtaining qard under certain conditions. In this type of juʽalah, which can be named as juʽalah ala al-iqtirad, a person in need of qard promises a certain reward from third parties to the person who provides him qard. Considering that there is a qard in question in this transaction and that the debtor pays more than the qard he has received, it is necessary to examine the opinions about this transaction's relationship with interest and its validity. The main focus of the research will be answers to questions such as the conditions that the aforementioned juʽalah transaction must meet to be valid, in what ways this transaction differs from interestbearing transactions, and within which limits.
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Foundation organizations had a very important place in the social, cultural, economic and legal structure of the Ottoman Empire. The main sources of reference for archival research on foundations are the series of books such as waqfiye, hurûfat, atik, ahkam, etc. In the ahkam books, which are among the main series of books in the Divani Humay, there are many complaints about the functioning of foundations, problems faced by foundation officials, interventions in foundation revenues and lands belonging to the foundation, claims of sonship in foundations, maintenance and repair of foundations. In this study, the problems of foundations reflected in the Erzurum Ahkam books numbered 1, 3, 5, 7 and 9 and the proposed solutions to these problems are analyzed.
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It has long been doubted whether the Romans knew the notion that we call recidivism in modern terminology, for which the Latin language lacks a nomen. However, the sources attest cases of aggravation of the punishment for those who repeat the same offence after a previous sentence or a coercive sanction. It is difficult therefore to deny the existence of the ‘thing’ that in the Roman legal system is closely related to the forms of procedure. It will be the jurists, especially in the Severan age, to identify the structural elements of the figure and the ratio for the harsher punitive treatment of the recidivist. The tendency in the Late Imperial age to consider that of recidivist a real subjective condition opens the way to the subsequent developments of modern criminal legal science.
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There is no archival record connecting the zawiya founded by Gazi Isa Bey in Sarajevo (1462) to a dervish order (tariqat) till the end of the 18th century. Then, suddenly, with the appearance of Sheikh Osman Dede, Isa Bey’s zawiya began to be mentioned alongside the Mevlevi tariqat. This change took place when Sheikh Osman Dede, one of the dervishes of the Hacı Sinan Kadirî tekke in Sarajevo, became the sheikh of the Hacı Mahmud Mevlevi tekke and claimed that it was actually Isa Bey’s zawiya. At first, he convinced the authorities that the two lodges were one and the same, and even repaired the Mevlevi tekke with the income of the waqf of Isa Bey’s zawiya. He then further claimed that the waqf’s tawliyat (the right to manage the waqf) belonged to the sheikhs of the zawiya based on the waqf’ regulations, and took over the tawliyat of the waqf and appropriated the waqf’s property. Thus, a tawliyat lawsuit that would last for many years arose between the trustee of the zawiya foundation represented by Osman bin Mustafa residing in Skopje, from the lineage of İsa bey, and the new trustee of the foundation represented by Sheikh Osman Dede. The documents presented in this case reveal that certain aspects such as whether or not Isa Bey’s zawiya is really Mevlevi, which side has the right to the tawliyat of the zawiya’s waqf, and the conditions of endowment in the foundation charter (waqfiya) etc., have been questioned. Various types of documents found in the Ottoman Archive (Ottoman Archive of the Presidency of the Government - BOA) and in the Archives of the General Directorate of Waqfs in Ankara that shed light on the claims and events related to Isa Bey’s zawiya and its waqf starting from the time Sheikh Osman Dede became a Mevlevi sheikh, constituting the first part of this study, have already been published under the title “Several Documents About Isa Bey’s Tekke in Sarajevo (I)”. In this study, the documents from the Sarajevo court registers (sharia sijjils) held at Gazi Husrev’s Bey Library in Sarajevo, will be discussed. In a way, this study implements the documents already discussed in the earlier publication. These new documents that question the generally ac-cepted claim that Isa Bey founded the zawiya as a Mevlevi and reveal the name of Haci Mahmud as the founder of the Mevlevi tekke are of extreme importance and may completely alter the history of the tariqats in Sarajevo all together. These documents are also of great importance not only for the research of the waqf institutions, but also for the research of legal history through the prism of the institution of the qadi and the functioning of the court.
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This paper analyzes the theory of Islam as a religion that could have formed a rationalistic civilization, based on scientific progress, individualism and democracy. One of the representative studies on this topic is the work of Mustafa Akyol Reopening of Muslim Minds, in which the author uses the method of counterfactual analysis, posing the fundamental question: what would Islamic civilization look like if in the Sunni majority had not prevailed Ash’ari theology, but rationalistic, Mu’tazili theology? Although it could be said that the author of this study does not err when he concludes that Ash’ari occasionalism stopped the development of science in Islam, he nevertheless errs when he claims that the doctrines of voluntarism, predestination, and uncreatedness of the Qur’an, were generators of injustice in Islamic society. In this paper we tried to analyze the metaphysical foundations of these doctrines, re-examine the validity of the hypothesis about their harmfulness, and re-examine whether the observed harmful effects come from Islamic tradition or from the more recent attempts of modernization of Islam.
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