Search Results

The Mahdī’s Legal Methodology and Doctrine
Author: 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.
The Impact of the Shari'a on Bedouin Customary Law
Author: Aharon Layish
This volume presents annotated English translations of 74 awards handed down by tribal arbitrators and other legal documents obtained from the Bedouin of the Judean Desert. The documents address such legal issues as blood and sexual offenses, family disputes, inheritance, private transactions in land and water rights, tribal boundaries, contracts and obligations. The documents, some of which date back to the 19th century, provide vital information on the process of Islamization of the tribal customary law in the precinct of the tribal judge.
The facsimile reproductions of the manuscripts are included, rendering direct access to the original documents. The study is intended for students of Islamic law, of customary law and of comparative law, and historians interested in the legal, social and economic history of modern Palestine and Jordan. A linguistic essay, by Dr. Mūsā Shawārbah, based on the Bedouin documents, appears at the end of the study.
An Annotated Translation of Decisions from the Sharīʿa Courts of Adjābiya and Kufra
Author: Aharon Layish
This volume presents annotated English translations of 72 court decisions handed down by the the Sharīʿa Courts of Adjābiya and Kufra roughly during the period 1930-1970; the original texts (facsimiles and edited documents) appeared in A.Layish, Legal Documents on Libyan Tribal Society in Process of Sedentarization (Wiesbaden, 1998).
The documents address personal status, succession, homicide and bodily injury, property, obligation, and attest to the interaction between the sharīʿa representing normative Islam, and tribal customary law, representing social reality in Cyrenaica during the aforementioned period. They also exemplify the qadi's role of bringing a Bedouin society within the orbit of normative Islam. A.Borg's essay Orality, Languages, and Culture in Arabic Juridical Discourse addresses cultural aspects of orality on the language of these documents.
The study is intended for Orientalists, Islamologists, legal and social historians, social scientists, and lawyers interested in Islamic and comparative law.
In: Islamic Law and Society
Author: Aharon Layish

Abstract

On the basis of an analysis of waqfiyyas collected mainly from the sijill of the sharīʿa courts of Mandatory Palestine and Israel, I seek to clarify the identity of the initial beneficiaries of the waqf and the manner in which entitlement is transmitted to and apportioned among subseqent generations of beneficiaries. I also evaluate the motives of the founder in using the waqf as an instrument for circumventing the compulsory Islamic inheritance rules and analyze the implications of this practice on the integrity of the patrimony and structure of the family. My main conclusions are: (1) the creation of a waqf makes it possible to keep property intact and prevents its division among heirs; (2) the concentration of entitlement on the founder's male agnatic descendants (in itself a victory of custom over sharīʿa) contributes to the disintegration of the extended family.

In: Islamic Law and Society
In: Islamic Law and Society
Author: Aharon Layish

Abstract

Freedom of civil testation available, since 1965, to Israeli Muslims within some of the sharīʿa courts, has replaced the family waqf as an instrument for circumventing the compulsory rules of inheritance (ʿilm al-farāʾid). This marks in many respects the victory of custom over the sharīʿa. On the basis of an analysis of bequests probated in the sharīʿa courts, I conclude that the bequest is being used as a means to prevent fragmentation of the patrimony and to preserve it in the hands of the testator's sons or, in their absence, other male agnates, in units as complete and economically sound as possible. While excluding his wife and daughters from the estate, the testator secures their economic well-being by allocating them subsistence allowances and residential rights, that is, customary maintenance out of the estate. At the same time, the making of bequests demonstrates the capacity of women to dispose of property. The concern for orphaned grandchildren is another incentive for making a will.

In: Islamic Law and Society
Author: Aharon Layish

Abstract

A family archive from Aleppo of the late Mamlūk period sheds light on a society in transition from military to civil elite. It provides us with insights on the religious, social, and economic role of the waqf and on its function as a means for circumventing the Islamic inheritance law and preserving the integrity of the patrimony. Vital information is provided on the possibilities for women and manumitted slaves to own and dispose of property. The study is also concerned with the impact of the legal pluralism created by the introduction of sharīi' a courts belonging to the four Sunnī schools on the ability of the waqf to accommodate itself to social and economic pressures. Les archives d'une famille d'Alep datant de la fin de la période mamelouke apportent un éclairage sur une société en transition, passant du statut militaire à celui de dignitaires civils. L'examen du manuscrit dévoile le rôle du waqf dans les domaine religieux, social et économique, et la manière dont sont contournées les lois de succession islamiques pour conserver l'intégralité d'un patrimoine. Le document fournit également des éléments sur la possibilité pour des femmes et des esclaves affranchis de détenir et de disposer de biens propres. Cette contribution explore également l'effet du pluralisme légal, issu de la création de tribunaux religieux des quatre écoles juridiques sunnites, sur la capacité d'adaptation de cette institution à la pression sociale et économique.

In: Journal of the Economic and Social History of the Orient