World Congress for Middle Eastern Studies

Barcelona, July 19th - 24th 2010

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ISLAMIC LAW AND CONTEMPORARY LEGAL DEBATE - II - (313) - Panel
 

· Date: THU 22, 11.30 am-1.30 pm

· Language: English

· Description:
Chair: Labeeb Bsoul (Khalifa University)

Paper Presenter: Labeeb Bsoul (Assistant Professor, Khalifa University-Abu Dhabi Campus, UAE), “The Concept of Treaty in Islamic Jurisprudence: a View of classical Jurist”
This study aims to shed light on a particular area in the field of Islamic International law (siyar): treaty. It undertakes a comparison of the views of classical jurists regarding treaties, both theoretically and historically, and highlights their continued relevance to the contemporary world Since the concept of treaties presents a lacuna in scholarship there is a need for international legal theorists to study and integrate the Islamic treaty system into the body of modern international law in order to facilitate mutual understanding and to promote respect and honour for treaties among nations. This study is divided into three parts, the first addresses the concept of treaties in Islamic jurisprudence, the second addresses the process of drafting and concluding treaties; and the third examines selected treaties, including the treaty of Hudaybiya that took place between Muslims and non-Muslim during the Prophetic era.

Paper Presenter: Matthias Vanhullebusch (LL.D Candidate, School of Oriental and African Studies, University of London, UK), “The Islamic Law of War and the Protection of the Humanitarian Conscience”
The aim of this paper is to examine how historical identities on the Islamic Self and its Other have informed the creation and the application of the universal principles of protection in the Islamic Law of War, i.e. distinction and proportionality. Combining the positivist analysis of the rules applicable in armed conflicts with the historical analysis of the context in which the laws of war have evolved over time and in space, can reveal how the structure of the Islamic Law of War in theory and in practice has been formulated against those different historical backgrounds. From the Revelation and the subsequent Muslim conquests onwards, a shift has been witnessed in the way the jurisdictional scope of the Islamic Law of War has been portrayed. The introduction of the different abodes, i.e. those of peace (dar al-Islam) and of war (dar al-harb), seems to avoid the original challenges of warfare such as to demonstrate patience, persuasion and tolerance as portrayed in the primary sources of Islamic law, i.e. the Qur’an and The Sunnah. From an utilitarian perspective, these legal fictions seem to have served the Islamic authorities and their empires over the centuries to divide and rule over their enemies at home and abroad. The determination of who can challenge the Islamic authorities and who cannot, remained in the hands of the prevailing powers at a given moment. From their perspective it would be justified to use all necessary means to fight internal resistance and external oppression. Hence, principles of protection could be set aside by requirements of military necessity. This would, however, distort the true application of the sacred texts. The respect for all members of humanity, despite their differences, is one of the hallmarks of Allah’s Creation and humanity’s conscience. Islam has always favoured the protection of life and human beings above all sorts of divisions introduced by humanity upon itself. Prohibiting the evil and commanding the good within the Islamic Law of War might possibly redress the invocation of military necessity to serve the interests of the Islamic authorities at the expense of innocent civilian casualties. Treating the Other with such humanitarian conscience might possibly lead to a more just world for all members of humanity even during wartime.

Paper Presenter: Lorenzo Ascanio (PhD Candidate in Comparative Law, Firenze University, Faculty of Law, Italy), “The Formation of Contract in Islamic Law. Ma’lis al-'Aqd Theory, Civil Codes and New Perspectives”
Islamic law of contracts has received considerable attention. However, contracts negotiations and dynamics of the formation of contract, can still benefit from further discussions and debates between Islamic and not-Islamic jurists.
This paper intends to describe a theory related to the formation of contract under Islamic law; mağlis al-caqd, literally “session of the contract”, is an ancient theory elaborated by certain Islamic jurists(Fuqahā), according to whom the contract shall be concluded within the unity of time and place; in accordance of this principle, Islamic law ruled that the declaration of offer and acceptance has to make place almost simultaneously in the mağlis. In case of the parties separate, offer is void and acceptance is considered impossible.
This proposed paper is divided in three distinctive parts.
The first part will regard the detailed analysis of the mağlis al-caqd theory; in particular, I will analyze origins of this theory in Šarīca sources (ūsūl al-fiqh) and the differences of opinions between Fuqahā schools with regard to: a)the forms of the offer (iğab); b) the different forms of the acceptance (qabūl); c) the theory of mağlis al-caqd inter praesentes et absentes; d) the Šāficīs theory of Khyar al Mağlis, literally “Option of reflection during the session of the contract”.
The second part will be dedicated to the relation between mağlis al-caqd theory and the process of Civil codification in Islamic countries. The scope is to verify the presence (rectius, the resistance) or the reject of mağlis al-caqd in Arab Civil Codes. This part will also focused on the description of legislative techniques elaborated by modern Legislators in order to insert (or reject) mağlis al-caqd theory in Civil codes. A particular study in this view will regard: a)the official Hanafi compilation of Ottoman Empire (Mağallat al Ahkam al–‘Adliya)implemented in most Countries with Islamic tradition which had been part of the Ottoman Empire; b) Tunisian Contract codification (mağalla al-iltizamat wa-al-cuqud); c) Egyptian Civil code (and, in particular, the thinking of cAbd Razzāq Akhmad al-Sanhūrī).
The conclusive part intends to resume the dichotomy into Islamic Legal systems between Šarīca and the Western legal tradition influence (i.e. Code Civil Français, BGB, Code Suisse des obligations, Common Law) and present a new perspective of analysis between new types of pre-contractual agreements as result of the economic develop commonly used in international transactions (i.e. letters of intent and memorandum of understanding) and Šarīca’s rules of the mağlis al-caqd theory.