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Edited by Hiroyuki Yanagihashi

This book is dedicated to an analysis of seven groups of hadiths related to matters ranging from the rules concerning water used for ablution to those concerning the proof of facts in a qadi court. It has three main purposes. The first is to clarify the processes by which hadiths on a given topic were formed and developed by analyzing their isnāds and matns and by comparing them with expositions of positive law in legal manuals. Second, it seeks to explain why many hadiths exist in multiple variants and to detect the perception of traditionists about the revision of hadiths. The third purpose is to propose a methodology to estimate the extent to which traditionists accepted hadiths on a particular topic.
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Edited by Martin Lau

The Yearbook of Islamic and Middle Eastern Law (YIMEL) is the leading English language journal covering contemporary Islamic laws and laws of the Middle East. Practitioners and academics dealing with the Middle East can turn to YIMEL for an instant source of information on the developments in the Middle East region and wider Muslim world. YIMEL covers Islamic and non-Islamic legal subjects, including the laws themselves, of some twenty Arab and other Islamic countries. Focusing on YIMEL's role in publishing and disseminating ground-breaking and novel research on Islamic law, Volume 19 includes a Special Edition on the theme of Islamic Law and Empire consisting of a dedicated Preface and articles in Part I, as well as other contributions on legal developments in the Middle East and South Asia, important judgements and book reviews, assembled in Part II. The publication's practical features include: - articles on current topics, - the text of a selection of important case judgments, - book reviews.
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Edited by John Bowen and Arskal Salim

In Women and Property Rights in Indonesian Islamic Contexts, eight scholars of Indonesian Islam examine women’s access to property in law courts and in village settings. The authors draw on fieldwork from across the archipelago to analyse how judges and ordinary people apply interpretations of law, religion, and gender in deliberating and deciding in property disputes that arise at moments of marriage, divorce, and death. The chapters go beyond the world of legal and scriptural texts to ask how women in fact fare in these contexts. Women’s capabilities and resources in Indonesia, the world’s largest Muslim society and one with distinctive traditions of legal and social life, provides a critical knowledge base for advancing our understanding of the social life of Islamic law. Contributors: Nanda Amalia, John R. Bowen, Tutik Hamidah, Abidin Nurdin, Euis Nurlaelawati, Arskal Salim, Rosmah Tami & Atun Wardatun.
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International Law and Islam

Historical Explorations

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Edited by Ignacio de la Rasilla del Moral and Ayesha Shahid

International Law and Islam: Historical Explorations offers a unique opportunity to examine the Islamic contribution to the development of international law in historical perspective. The role of Islam in its various intellectual, political and legal manifestations within the history of international law is part of the exciting intellectual renovation of international and global legal history in the dawn of the twenty-first century. The present volume is an invitation to engage with this thriving development after ‘generations of prejudiced writing’ regarding the notable contribution of Islam to international law and its history.
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John D. Haskell

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When invited to contribute to this collection, the original call framed the question as what might count as a ‘new approach’ to the study of international law and Islam. This chapter begins by reflecting on the challenges to offering a ‘new approach’, addresses some shortcomings often at play in ‘law and religion’ scholarship, and then offers some potential methodological directions forward – what one might think of as ‘structural’ jurisprudence.

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Ignacio de la Rasilla

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The first part of the chapter points to the foundational effects over the history of international law of the rise of positivism and the important role played by methodological nationalism in the modern foundational period of international law. This analysis shows that the foundational period of international law bequeathed a long-lasting ‘double exclusionary bias’ regarding both time and space in the history of international law, and that the latter cause lies behind the still reiterative focus on a series of canonical events and authors to the exclusion and marginalization of others including Islamic ones. The second part of the chapter analyses how this state of historiographical affairs is changing. It does so by pointing to a number of pre-2000s intra-disciplinary developments which set the ground for a gradual change of perspective in the evolving study of the history of international law. It, furthermore, includes an analysis of the effects that new research in the history of international law is having in fostering the re-inclusion of hitherto neglected topics in international legal history. Finally, the conclusion reflects on some of the tasks lying ahead for the history of international law as a field of new research by providing a series of historiographical signposts.

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Pierre-Alexandre Cardinal and Frédéric Mégret

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Historiographies of international law have set as a breaking point with the medieval Respublica Christiana the crucial moment of the “discovery” of the Americas. In these historiographies, the defining “Other” of Europe is conceived by the thinkers of the Spanish Salamanca School as the “Indios” of the Americas, whose encounter powerfully contributed to the shaping and extension of international law outside of Europe. It is argued, however, that the thought of the School of Salamanca was based on a prior normative apparatus already contained in late medieval thought. This proto-modern world view was focused on the Muslim Other, as the “enemy in the mirror”. By its proximity, this “Other” unsettled Christendom’s very identity through its difference and rejection of Christianity.

Europe’s encounter with its Muslim Other remains curiously absent from international law’s historiography. This suggests that international law is conspicuously not a history of the relation between Europe and its Muslim Other, and perhaps even based on a tentative erasure of that relation. This chapter will question this accepted historiography and provide a short genealogy of the thought of the School of Salamanca in relation to medieval Europe’s other “other”; “infidels”, “Saracens” and “Moors”. We argue that Christianity’s complex engagements with Islam at its borders constituted a laboratory for international legal concepts, including in their most colonial dimensions.

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Mohamed Badar, Ahmed Al-Dawoody and Noelle Higgins

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This Chapter analyses both the international humanitarian law and the Islamic law approaches to rebellion. The first part of the discussion focuses on the right to rebel under traditional public international law, and proceeds to analyse the status of wars of national liberation under international law. It then comments on the rights of rebels under international humanitarian law. The second part of the discussion deals with how the right to rebel is dealt with under Islamic law. The Chapter asks whether the lacunae inherent in the customary international law and international humanitarian law regimes concerning rebellion can be filled by reference to the Islamic legal framework when a rebellion takes place in a state where this framework is applicable? The Chapter also addresses the issue of cases concerning rebellion and rebels coming before the International Criminal Court and suggests that the Court must be appraised of the Islamic law framework, especially concerning the types of defences to rebellion which can be raised under the Islamic regime, as this aspect of the law on rebellion under Islamic law differs significantly from the international humanitarian law regime.

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Matthias Vanhullebusch

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Traditionally, the territorial regimes of the Islamic Law of War distinguish between armed conflicts which take place within the Islamic territory and those which are waged against non-Muslim enemies. The regimes have respectively been legalized into the abode of Islam, i.e. the dar al-Islam, and the abode of war, i.e. the dar al-harb. Yet, the bifurcation of the world order into different spheres was a legal fiction which did not have any textual support in the primary sources of Islam, i.e. the Quran and the Sunnah. From the eighth century onwards, they would serve as a legitimation to consolidate their territorial conquests and to manage internal affairs accordingly. The construction of these regimes has ever since perpetuated in the analysis of contemporary conflicts thus reinforcing the existence of these fictions which have started to live their own realities. Nonetheless, the Quranic provisions do provide wisdom in transcending some of the divisions which mankind – Muslim and non-Muslim alike – have imposed upon themselves. In this regard, their common belonging to God’s creation is a departure from the current legal discourse – in pursuit of the command to do good and to forbid evil, namely to respect humanity in its diversity.

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Luigi Nuzzo

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The article analyzes the first attempts of the Spanish jurists to recover the medieval legal and religious tradition in order to construct the relationships between the ‘civilized’ European system and the ‘uncivilized’ world of Indies. Particularly it focuses on a text usually known as Requerimento. It is a legal and religious text that informed the Natives about the values of the Western world and that the Spaniards were obliged to read to them. Written by a Spanish jurist, it cannot be considered only a Spanish text. Its discursive structure as well as the strategies of control and domination pursued by this document were based on biblical tradition, feudal praxis, ius commune and Islamic culture, allowing us to consider it as model or archetype through which it could have made been possible, from the Mediterranean to the Ocean, to regulate the relationships with the Others.

This took me firstly to analyse the symbolic and semiotic relevance of the Requerimiento, reconstructing its role within the system of communication between Native and Spaniards; and secondly to stress the influence of the biblical and Islamic sources. Finally, taking seriously the hypothesis that the Requerimiento could be influenced or inspired by the Islamic culture, I examine, in the last paragraph, the conquest of Otranto (1480) by the Ottoman Empire.