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Edited by Ardi Imseis

Under the editorship of Ardi Imseis, Volume 19 of the Palestine Yearbook of International Law features articles on: the right to rebel and responsibility to protect, Palestinian statehood, universal jurisdiction, bilateral investment treaties in occupation, and fragmentation of international law.

The Yearbook is an unparalleled reference work of general international law, in particular as related to Palestine. The Yearbook regularly features English-language articles reviewing contemporary legal questions and translations of key legislation, court decisions, and academic material. It is intended for use by legal practitioners, government officials, researchers, scholars, and students. Published in cooperation with the Birzeit University Institute of Law, the Yearbook is a valuable resource for anyone seeking well-researched and timely information about Palestine and related legal issues.

Contributors: Valentina Azarova, Ofilio J. Mayorga, Jasmine Moussa, Ardi Imseis, Salma Karmi-Ayyoub, Chiara Redaelli, Musa, Njabulo Shongwe

Rule-Formulation and Binding Precedent in the Madhhab-Law Tradition

Ibn Quṭlūbughā’s Commentary on The Compendium of Qudūrī

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Talal Al-Azem

In Rule-Formulation and Binding Precedent in the Madhhab-Law Tradition, Talal Al-Azem argues for the existence of a madhhab-law tradition’ of jurisprudence underpinning the four post-classical Sunni schools of law. This tradition celebrated polyvalence by preserving the multiplicity of conflicting opinions within each school, while simultaneously providing a process of rule formulation ( tarjīḥ) by which one opinion is chosen as the binding precedent ( taqlīd). The predominant forum of both activities, he shows, was the legal commentary.

Through a careful reading of Ibn Quṭlūbughā's (d. 879/1474) al-Taṣḥīḥ wa-al-tarjīḥ, Al-Azem presents a new periodisation of the Ḥanafī madhhab, analyses the theory of rule formulation, and demonstrates how this madhhab-law tradition facilitated both continuity and legal change while serving as the basis of a pluralistic Mamluk judicial system.

Shariʿa Councils and Muslim Women in Britain

Rethinking the Role of Power and Authority

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Tanya Walker

The public debate on Shariʿa councils in Britain has been heavily influenced by the assumption that the councils exist as religious authorities and that those who use them exercise their right to religious freedom. In Shariʿa Councils and Muslim Women in Britain Tanya Walker draws on extensive fieldwork from over 100 cases to argue for a radically different understanding of the setting and dynamics of the Shariʿa councils. The analysis highlights the pragmatic manoeuvrings of Muslim women, in pursuit of defined objectives, within limited space – holding in tension both the constraints of particular frameworks of power, and the realities of women’s agency. Despite this needed nuance in a polarised debate however, important questions about the rights of Muslim women remain.

Sharīʿa and the Islamic State in 19th-Century Sudan

The Mahdī’s Legal Methodology and Doctrine

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Aharon Layish

The Sudanese Mahdī headed a millenarian, revivalist, reformist movement in Islam, strongly inspired by Salafī and Ṣūfī ideas, in late 19th century in an attempt to restore the Caliphate of the Prophet and “Righteous Caliphs” in Medina. As the “Successor of the Prophet”, the Mahdī was conceived of as the political head of the Islamic state and its supreme religious authority. On the basis of his legal opinions, decisions, proclamations and “traditions” attributed to him, an attempt is made to reconstruct his legal methodology consisting of the Qurʾān, sunna, and inspiration ( ilhām) derived from the Prophet and God, its origins, and its impact on Islamic legal doctrine, and to assess his “legislation” as an instrument to promote his political, social and moralistic agenda.

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Edited by Ardi Imseis

Under the editorship of Ardi Imseis, Volume 18 of the Palestine Yearbook of International Law features articles on: colonialism and apartheid; the Mavi Marmara Flotilla; populist legal movements; corporate accountability for human rights violations; the World Trade Organization; and state crimes.

The Yearbook is an unparalleled reference work of general international law, in particular as related to Palestine. The Yearbook regularly features English-language articles reviewing contemporary legal questions and translations of key legislation, court decisions, and academic material. It is intended for use by legal practitioners, government officials, researchers, scholars, and students. Published in cooperation with the Birzeit University Institute of Law, the Yearbook is a valuable resource for anyone seeking well-researched and timely information about Palestine and related legal issues.

Contributors: Valentina Azarova; Birju Dattani; Nina Jorgensen; Victor Kattan; John Reynolds; Ozlem Ulgen; Kim Van der Borght and Hisham Awwad.

Rendre la justice à Amid

Procédures, acteurs et doctrines dans le contexte ottoman du XVIIIème siècle

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Yavuz Aykan

Dans son Rendre la justice à Amid, Yavuz Aykan analyse la vie juridique de la ville d’Amid, capitale de la province ottomane de Diyarbakir, au 18ème siècle. A partir des procès-verbaux des tribunaux des villes d’Amid, Harput et Mardin, il met en lumière la centralité du cadi, du gouverneur provincial (vali) et du mufti dans le champ opératoire de la loi. Retraçant la généalogie des textes utilisés par le mufti provincial, Aykan étudie aussi la circulation de diverses interprétations juridiques de la Grande Syrie à la Transoxiane et la Horde d'Or, et leur intégration dans la pratique juridique ottomane. Ce livre offre ainsi une approche renouvelée et historicisée des acteurs et hiérarchies de systèmes juridiques de ce cadre provincial.

In Rendre la justice à Amid, Yavuz Aykan analyses the legal life of the city of Amid, the capital of Ottoman Diyarbekir province in the 18th century. Making use of court records from the cities of Amid, Harput and Mardin, he explores the centrality of the qadi, the provincial governor, and the provincial mufti to law enforcement. By tracing the genealogies of legal texts used by the mufti for fatwa production, Aykan maps out the broader transformations of various judicial interpretations in their journey from Greater Syria to Transoxiana and the Golden Horde, and finally into Ottoman legal praxis. As such, this book offers a far more historicized approach to the multiple actors and hierarchies of juridical systems operating in this provincial setting.

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Pavel Pavlovitch

In The Formation of the Islamic Understanding of kalāla in the Second Century AH (718-816 CE), Pavel Pavlovitch studies traditions ( ḥadīth) about the lexical and terminological meaning of the Quranic vocable kalāla. Attempts to understand kalāla began with acknowledging its unintelligibility but ultimately brought into existence a capacious body of interpretative ḥadīth, associated with early Islamic authorities. The analysis of these traditions affords insights into the changing conception of scripture during the first two Islamic centuries, the early history of Islamic exegesis and jurisprudence, and varying scholarly attitudes towards constituent sources of Islamic law. The book highlights the importance of coherent methodology of dating and reconstructing Muslim traditions according to their lines of transmission ( isnāds) and their narrative content ( matns).

The Heritage of Arabo-Islamic Learning

Studies Presented to Wadad Kadi

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Edited by Maurice A. Pomerantz and Aram Shahin

The Arabo-Islamic heritage of the Islam is among the richest, most diverse, and longest-lasting literary traditions in the world. Born from a culture and religion that valued teaching, Arabo-Islamic learning spread from the seventh century and has had a lasting impact until the present.In The Heritage of Arabo-Islamic Learning leading scholars around the world present twenty-five studies explore diverse areas of Arabo-Islamic heritage in honor of a renowned scholar and teacher, Dr. Wadad A. Kadi (Prof. Emerita, University of Chicago). The volume includes contributions in three main areas: History, Institutions, and the Use of Documentary Sources; Religion, Law, and Islamic Thought; Language, Literature, and Heritage which reflect Prof. Kadi’s contributions to the field.

Contributors:Sean W. Anthony; Ramzi Baalbaki; Jonathan A.C. Brown; Fred M. Donner; Mohammad Fadel; Kenneth Garden; Sebastian Günther; Li Guo; Heinz Halm; Paul L. Heck; Nadia Jami; Jeremy Johns; Maher Jarrar; Marion Holmes Katz; Scott C. Lucas; Angelika Neuwirth; Bilal Orfali; Wen-chin Ouyang; Judith Pfeiffer; Maurice A. Pomerantz; Riḍwān al-Sayyid ; Aram A. Shahin; Jens Scheiner; John O. Voll; Stefan Wild.

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Luqman Zakariyah

Using contemporary illustrations, Legal Maxims in Islamic Criminal Law delves into the theoretical and practical studies of al-Qawaid al-Fiqhiyyah in Islamic legal theory. It elucidates the importance of this concept in the application of Islamic law and demonstrates how the concept relates to the objectives of Islamic law ( maqāṣid al-Sharī‘ah), generally. Included in this examination are the following maxims: al-Umūr bi-Maqāṣidihā ("Matters shall be Judged by their Objectives"); al-Yaqīn lā Yazūl bi-sh-Shakk ("Certainty Cannot be Overruled by Doubt"); al-Mashaqqa Tajlib at-Taysīr ("Hardship begets Facility"); Lā Ḍarar wa-lā Ḍirār ("No Injury or Harm shall be Inflicted or Reciprocated"); and al-ʿĀda Muḥakkama ("Custom is Authoritative").

Toward the Reform of Private Waqfs

A Comparative Study of Islamic Waqfs and English Trusts

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Hamid Harasani

Using a combination of the comparative legal method and hermeneutics, this book reconciles Islamic law with English trust’s law in these two main areas. It does not find it necessary for one legal system to reign supreme over the other, as such solutions will be questioned by the internal subjects of the dominated legal system, undermining the efficacy of this study. Rather, reconciliation is a mutual step to congruence taken by both legal systems. In the area of perpetuities, the book finds that neither Islamic Waqfs must be perpetual, nor common law trusts must have a rule against perpetuities. Regarding ownership theories, the multiplicity of rendered theories in both legal systems presents more than one avenue of reconciliation. Overall, the study finds that private Waqfs and private trusts can be reconciled without undermining the internal hermeneutic standpoints of both legal systems.