Congrès Mondial des Études sur le Moyen-Orient et l'Afrique du Nord

Barcelone du 19 au 24 Juillet 2010


HISTORY OF ISLAMIC LAW - 2/2 (049) - NOT_DEFINED activity_field_Panel

· NOT_DEFINED language: English

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Paper presenter: Necmettin Kizilkaya (PhD Candidate, Selcuk University), “A Legal Genre in Islamic Law: al-Qawā‘id al-fiqhiyyah”
Mustafa Ahmad al-Zarqa’ defines al-qawa‘id in his al-Madkhal, as “universal legal principles which are formulated in regulative and laconic expressions that contain general normative determinations about cases of their subject.”
Maliki jurist al-Qarafī (d. 684/1285), after dividing Islamic Law into usul and furu‘, divides usul into usul al-fiqh and al-qawa‘id al-kulliyyah. Al-Qarafi notes that al-qawa‘id al-kulliyyah are valuable principles that contain the wisdom and mystery of Islamic Law, and countless rules of furu‘ are built on them. Al-qawa‘id al-fiqhiyyah which are axioms, mediate usul and furu‘ and reflect the essence of Islamic Law in a concise way. Knowledge of qawa‘id, which echoes the general principles that Islamic Law relies on and an understanding furu‘ al-fiqh, which is built on those principles, allow an inclusive perception to the approach of different disciplines within the Islamic Law tradition.
Qawa‘id literature came into being as an independent discipline after the compilation and doctrinal completion period of Islamic Law. The existence of legal thinking based on primary principles in the mind of Muslim jurists from the formation process of Islamic Law, and the wealth of materials around this comprehension, is one of the first factors of emerging qawa‘id literature. Additionally, resolving differences among discussed matters according to the rules by referring to the general principles and objectives of Islamic Law in furuq (significant differences of similar cases yielding different legal determinations) literature is one of the major factors that expedited the arising qawa‘id literature. Because of this function of furuq literature, it came about first, followed by qawa‘id literature; by collecting these two disciplines and adding other subjects led al-ashbah wa ’l-naza’ir literature to increase.
This paper, after dealing with the concept of qawa‘id and its importance, presents a historical overview of the development of qawa‘id literature in three periods: the formative period, self-contained compilation period, and post compilation period.

Paper presenter: Taymour Harding (DPhil Candidate in Oriental Studies, University of Oxford, St. Antony's College), “Judicial Reform and the Use of Extraordinary Powers at the Dawn of the Pahlavi Autocracy: a Study of the Debates in Iran’s 6th Majles of 1926”
The present paper is a critical study of the first extraordinary measures taken by the Iranian government to reform the judicial system in the first year of Reza Shah’s reign (1925-1941). Building on comparative law scholarship, it shows how the Iranian legal/judicial system was first reorganized under pressures of state-enforced modernization, and how this was challenged by a minority in Parliament (Majles). Based on records of the Majles debates and other (un)published primary sources, we examine the process of legislative deliberation which followed: i) the unilateral dissolution of the state courts in Tehran, and ii) the demand by the Minister of Justice (Ali Akbar Davar) for immediate delegation of powers to him for reform of the judiciary, in the month of February 1926.
The aim of the paper is twofold: First, it examines debates over the legality and legitimacy of these extraordinary measures in the 6th session of the Majles, highlighting competing conceptions about the procedure of judicial reform. Indeed, the ad hoc and total dissolution of the judiciary was duly contested on several important constitutional and legal grounds by a minority of lawmakers. In later discussions about the transfer of powers to the Minister of Justice, such speakers as Dr. Musaddiq and Seyyed Hassan Modarres argue against the immediacy of the measure and for greater deliberation over the proposed bill in the judiciary committee of parliament (Komission-e Adliye). While the apparent intent of these counter-proposals was to increase legislative oversight of reform, a first reading suggests that at the heart of these demands was a claim to preserve the existing constitutional and legal institutions of the country from the arbitrary encroachment of government.
Thus our second question builds on the first: how and why did Reza Shah’s government manage to abolish the judiciary, and effectively control the ensuing process of judicial reform through delegated powers? The paper will thus end with a tentative set of answers to this question. In so doing, it will investigate some of the major shortcomings of the Iranian legal system, as well as the broader socio-political context. Comparative analyses of state-led reform in the broader Middle East will also be considered.