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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Muwāsāt encompasses the moral duty to provide aid to those in need, prioritising those closest to us while sharing what resources we can spare. However, should a person's legally protected values be at risk, assistance and solidarity become mandatory obligations. Islamic law recognises this social duty as fard al-kifāya, with muwāsāt as the justification for this sufficient obligation. On the other hand, muwāsāt is also included in the legal justification of in-kind obligations such as zakat and alimony. Muwāsāt actually has a broad conceptual content that includes each individual in the society helping each other, sharing, and sharing what they have when necessary. The aim of muwāsāt is to keep social sensitivity towards those in need alive. Muwāsāt constitutes the wisdom of meeting the needs of the other party by sharing the resources available to each individual in the society when the legal values that Islam aims to protect are in danger. In this context, this study aims to evaluate the rights of those in need over those who have the means to meet their needs by considering the proposal in the context of the provisions. To prioritize the legal values of Islam and safeguard the sanctity of life, as well as protect bodily integrity and uphold the right to privacy, the principle of muwāsāt necessitates that all Muslims must uphold these responsibilities towards themselves, each other and the state. This study aims to investigate muwāsāt, which defines the duty to provide assistance to any individual who is cognisant of their plight, within their capacity, when their legal rights that must be safeguarded are threatened, in the framework of social accountability. In this context, it can be said that muwāsāt has a direct connection with the proposed obligations in Islamic law. Muwāsāt is included in the justification of fard al-kifāya obligations. However, the fact that the obligation of zakat, the obligation of fidya, and the responsibility of alimony are included in the legal justification of meeting the needs of the needy by those who are not dependent on anyone, shows us that muwāsāt is the basis of obligations involving cooperation. Similarly, the legal reason for banning interest is that it destroys the balance in society. In particular, the basis for the state to impose an upper limit on exorbitant prices is based on the principle that every individual has an equal right to meet basic needs. In other words, determining the profit margin in the prices of basic needs is a requirement of muwāsāt. The definition of the state’s obligation, along with individual responsibility in muwāsāt, aims to ensure that there is no individual in society whose basic needs are not met. Consequently, muwāsāt has an aspect that includes social responsibility and legal liability along with conscientious responsibility. This shows that Islam adopts the protection of life as the highest legal value. Muwāsāt is not limited to meeting basic needs, but also includes giving this support to a person when he needs moral support, sharing his pain by standing next to him, feeling him and internalizing his pain. For this reason, muwāsāt actually defines the moral stance that a Muslim should have. Based on this moral stance, it is safe to say that the most fundamental concern of Islam is to protect the material and spiritual integrity and human existence. This study aims to express, in the context of Islamic law, that the main purpose of Islam is to protect human beings in their material and spiritual integrity by examining and evaluating muwāsāt in its broad scope.
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With the 2004 reforms on the Moroccan Personal Status Law, the Moroccan Family Code (Mudawwanah) is considered one of the most egalitarian codes in the Muslim World. The reforms was a product of long-lasting public debates for decades in Morocco. Aḥmad al-Khamlīshī has been actively involved in the debate since the beginning of the 1980s and explained that the Personal Status Law is man-made law open to interpretation, revision of which should be undertaken through ijtihād. Shortly after ascending to the throne, in 2001, the King Mohammed VI appointed the Royal Advisory Commission in charge to reform the Moroccan Personal Status Code. The King charged the commission for making a substantial change in the Code by respecting the main objectives of Sharia (maqāsid al-Sharia) and also responding to the necessities of the time and society by means of exercising ijtihād. He encouraged members of the commission to consider the public interest and to strive for consensus and moderation in any proposed changes. The commission worked for around two and a half years on the proposed changes, but could not reach a consensus on many issues. Everyone on the commission has, more or less, had some leaning towards either of the two main groups, namely, the reformists and traditionalists. Aḥmad al-Khamlīshī was one of the members of the Royal Advisory Commission. He was a person who shared views of the reformist group, but also used the language of the traditionalists. He became a reference point for reformist groups with his critical but moderate views that remain within the Islamic legal framework. In this paper, I argue that al-Khamlīshī was the mastermind behind the reforms of 2004. By applying data analysis method, this study primarly uses al-Khamlīshī’s writings, his interviews and speeches. To reveal the difference and similarities of his understanding, the literature was consulted and comparisons were made. Following a brief background, this paper will discuss al-Khamlīshī’s mediating role between text and context, his influence on the debate of family law reforms, and thus his stance on Sharia-state relations. This paper will then focus on his understanding of ijtihād with reference to his views on the concept of the closure of the gate of ijtihād, qualifications of mujtahid (one who is capable to deduce legal rulings from the revealed texts), and his suggestion on collective type of ijtihād (ijtihād jamā’iʻ); as it was exercised by the Advisory Commission. AlKhamlīshī’s methods of legal reasoning will be examined with regard to family law.
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As the main educational institutions of the time, the Madrasah’s were very spread in Albania as well as in the other parts of the Ottoman Empire. Thus, we can testify their presence in the most developed Albanian towns such Berat, Gjirokastra, Shkodra, Elbasan etc. where were taught many sciences by eminent professors. In these educational institutions we find students and teachers who came from different areas of the Balkans, an aspect which points out the quality and the high educational level of these institutions. The maintenance of madrasah’s and their operation in general was closely linked to the economic factors, which were very crucial in the functioning of them. This important aspect makes evident another important institution of Islamic and Ottoman history, waqf. Waqfs were pious endowments founded by people or groups and gave their contribution in several areas, including education. In this context, starting from the early days of the Ottoman Empire until the second half of XIXth century, all education institutions and the people who served here were financed by these philanthropic objects. This important aspect can be traced easily in the madrasah’s which operated in several Albanian towns during the ottoman period.
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Human-centered environmental issues are a phenomena as old as human history. In the earlier periods, it was not regarded as a common problem because environmental damage was not at a level that would negatively affect the ecosystem and living beings. In the modern period, especially after the industrial revolution, some solutions have been developed at national and international levels after taking into consideration the damage of environmental problems to living beings and the ecosystem on a global scale. Although some countries that were experiencing these problems on a national scale made some progress individually, the 1972 Stockholm Declaration was the first time environmental issues were placed at the forefront of international concerns, and marked the start of a dialogue at the international level to protect the environment. The Qur'an does not approve any illegitimate war against a state or a community. There is no recorded war by Prophet Muhammad against a community without a legitimate reason. Islamic law proposes maximum legality and morality during a legitimate war. It is also seen that this Islamic perspective is grasped in terms of protecting the environment. When analyzing the opinion of jurists of Islamic Law, it is seen that unnecessary destruction of the environmental values such as houses, trees and green spaces is prohibited, as a basic principle. Therefore, Islamic jurists' perspectives on provisions concerning the destruction of environmental elements like trees, buildings, and green spaces are constrained by military necessity only. Consequently, environmental damage during warfare is deemed permissible solely for defensive purposes. However, this legitimacy is contingent upon avoiding unnecessary demolition.
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The Majallah is of great importance not only because it is the first legal text about Islamic law but also because it is a product of historical significance for Turkish literature. Particularly, the 99 general principles at the beginning of the Majallah are an abstract representation of many issues in Islamic law, expressed through various rhetorical devices. Although the Majallah, one of the rare texts where the relationship between law and literature can be evaluated, has been expressed by different authors to have employed various rhetorical devices in its general principles, no study analyzing them has been encountered. This study aims to identify the rhetorical devices used in the general principles, thereby creating a perspective on which rhetorical devices can be applied in the writing of general principles that will be easily memorized like proverbs, and become part of the vernacular. For this purpose, data was collected using the document review method, and the content analysis method from qualitative research methods was applied. The 99 general principles and the rhetorical devices in Turkish literature were examined together, matching the principles with the relevant rhetorical devices and categorizing them. As a result of the research, 9 different rhetorical devices found in the general principles were identified. Suggestions have been made on which types of legal principles these arts were used in the production and which arts could be utilized in which legal situations in the writing of general principles hereafter.
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The growth of the Islamic banking industry in Makassar has shown significant progress; however, a thorough analysis of the factors influencing customer loyalty is still needed. This study aims to analyze the impact of product innovation, service quality, and transaction security on customer satisfaction and loyalty in Islamic banks in Makassar. Structural Equation Modeling (SEM) using AMOS was applied to data collected from 400 Islamic bank customers. The results indicate that service quality (estimate 0.253, C.R. 3.229) and transaction security (estimate 1.581, C.R. 3.216) have a significant impact on customer satisfaction. Product innovation also significantly affects customer satisfaction (estimate 0.723, C.R. 6.484) but does not significantly influence loyalty (estimate 0.130, C.R. 0.545, P 0.693). Conversely, customer satisfaction significantly affects loyalty (estimate 0.234, C.R. 2.534, P 0.027). The implications of this study highlight the importance of improving service quality and transaction security to enhance customer satisfaction and loyalty. Islamic banks should continue to develop innovative products and provide ongoing education to customers to maintain and boost their loyalty
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This paper presents a feasibility model for Sharia Bank share ownership through Waqf funds as an alternative source of capital. It begins by addressing the problem of insufficient capital stock for Islamic banks in Indonesia. The exploration includes banking regulations by the Indonesian Financial Services Authority, Sharia Waqf laws and regulations by the Indonesian Waqf Board, and literature in the field of Waqf, as well as secondary sources such as books, journal articles, and online resources, particularly those related to Waqf regulation. Conclusions are drawn by analyzing several themes, which are further validated through in-depth interviews and Focus Group Discussions with experts. This paper introduces Cash Waqf as a potential source of paid-in capital for Islamic banks, particularly in Indonesia.
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This study discusses strategies to enhance the economic well-being of the community through engagement in entrepreneurship, especially through the franchise business model. Franchising is a marketing strategy for rapidly expanding businesses through the concept of cooperation. Legal protection for franchise business operators is crucial in maintaining a balance between the parties involved. Although there are no specific verses about franchising in the Quran, the principles of business ethics, justice, and compliance with Islamic law are essential foundations that should be applied in all forms of business transactions, including franchising. This study uses an empirical juridical legal approach to explore the concept of franchising, Islamic legal principles, and the impact of legal protection on franchise business operators. The results of this research are expected to make a significant contribution to advancing the legal discourse related to franchise business and Islamic law in Indonesia. Legal protection helps franchise business operators manage risks and conduct business in accordance with the principles of justice and business ethics, from both Islamic and general legal perspectives. Islamic and general law play a crucial role in shaping a fair, orderly, and sustainable franchise business environment. With a clear and consistent framework, franchise business operators can focus on the development and growth of their businesses. Thus, legal protection serves as a strong foundation for sustainable franchise business growth in Indonesia and makes a positive contribution to the economy and society as a whole. Franchise businesses can be a suitable form of enterprise that aligns with the values and principles of Islamic economics, providing a positive contribution to the economy and society overall
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Generally speaking, there are two juridical systems in Europe: the continental one, based on the positive law and the Anglo-Saxon juridical system based on the common law1. In the history of the European peoples the latter reflects a primitive stage in the society. But, starting with the Codex of the Illyrian Emperor Justinianus (6th C), elements of the common law have been integrated into the various legal codes published anywhere.2. 1 Joseph Dainow, “The Civil Law and the Common Law: some points of comparison”, in: The American Journal of Comparative Law, 15, no. 3 (1966-1967), p. 419 and then; Lisa Bénou, “Droit positif-droit coutumier: une relation conflictuelle ou un dialogue continu”, në: L "Homme et son environnement dans le Sud-Est Européen, Actes du Xe Congrès de l’Association Internationale du Sud-Est Européenne, Paris 24- 26 Septembre 2009, éd. Association Pierre, Paris, 2011, p. 252, 253. 2 G. Ostrogorsky, Storia dellTmpero Bizantino, Torino: Einaudi, 1968, f. 65-66. 3 “omnes bonos usus et consuetudines eorum”. Acta et Diplomata res Albaniae mediae aetatis illustrantia, bot. L. Thalloczy, C. Jirecek, M. Sufflay, vol. I, Adolph Holzhausen, Wien, 1913, no. 269, p. 77. 4 J. Huillard-Bréholles, Historia Diplomatica Frederici II, vol. I, Parisiis, 1859, p. CDXIII; vol. IV, f. 182; vol.V, f. 958; J. Ficker, Forschungen zur Reichs-und Rechtsgeschichte Italiens, I. Band, Innsbruck, 1868, p. 364-365; D. Abulafia, Frederick In Albania, the common law is explicitly mentioned in two letters of the year 1272 from the King of Naples, Charles of Anjou, who by that time was also proclaimed “King ofAlbania” (Rex Albaniae). In the said letters addressed to the nobility of the land and to the patricians of Albanian towns, Charles promised that he “would observe all their good practices and customs”3 However, these “good practices and customs” would have to cohabitate with the feudal law ofthe Kingdom ofNaples, as it has been made up from the time of Frederick II Hohenstaufen into the so-called “Constitution ofMelfi”.
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