5. Islamic Law
Note:5@@@@@@@@@@@@@Non c é legge di dio ma solo imperfetta interpretazione della stessa.piú una morale che un diritto. Le conseg giuridiche sono secondarieanalogia con la legge costituzionale x capired sahria vs fiqh.. Quattro scuole tutte ortodosse. La fonte primaria si é spostata dal corano all tradizione.. Problemi. Vaghezza. Incoerenza. Per i detti c é anche il prob dell autenticitá.il polilegalismo delle cittá medievali.il garantismo estremo della shaaria.lo stato moderno centralizza il sistema e gli islamisti lo imitano evitando la tradizione decentralizzata e indipendente dalla politica.similitudini con la legge ebraica.il matrimonio islamico
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it is the law of God not of man.
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what traditional Islamic courts enforced was not Shari’a, God’s law, but fiqh, jurisprudence, the imperfect human attempt to deduce from religious sources what human law ought to be.
Note:Fiqh
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four different but mutually orthodox schools of law.
Note:Si spiega il mistero
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more than one reasonable guess.
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An obligatory act
Note:Punito e premiato
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A recommended act
Note:Solo premiato.
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A permissible act
Note:Né punito né premiato.
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An offensive act
Note:Premiato se ti freni
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An unlawful act
Note:Punito se nn ti trattieni e premiati se ti trattieni
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Islamic law is more nearly a system of morality than a system of law, since its rules primarily describe how one ought to act, only secondarily the legal consequences
Note:Una morale
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what is constitutional
Note:Facciamoci la domanda. Per capire la diff tra sahria e fiqh
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what decisions the Supreme Court has made
Note:Risposta x il prof.
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The question for him is not how he and his colleagues will vote or have voted but how he should vote.
Note:Ma mettiamoci nei panni di un giudice
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he has to go back to whatever he sees as the sources
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deducing law.
Note:Il compito del giudice
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the Koran itself and the words and acts of Mohammed
Note:Il punto di partesnza x dedurre
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Over time, the scholars separated into four schools,
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building on the work of their predecessors,
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schools were generally similar but differed in the details
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each regarded the others as orthodox.
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looking at the work of previous generations of scholars.
Note:Una fonte sempre piú preziosa con il tempo.
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end of the process by which law was deduced,
Note:Al punto che... La tradizione come nuova guida.
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it was not always clear what the Koran commanded.
Note:Primo prob per l interprete
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In some cases, such as the rules with regard to wine, later verses were inconsistent with earlier ones.
Note:Secondo problema
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The traditions were at first transmitted orally, only later written down. Each came with its isnad, its pedigree,
Note:Prob amche conla tradiz. Il prob dell autenticitá
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reliability of each hadith depended on the number of independent chains
Note:Regola generale.
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several collections of authenticated hadith were produced by scholars who went through a much larger number, eliminating those they thought insufficiently well supported.
Note:L abilitá nel selezionare
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one more source of information on divine law—consensus.
Note:In addiction
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people would never be all agreed upon an error.
Note:La vcredenza dei profeti.
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Exactly what it meant for all the scholars to be agreed,
Note:Dubbio
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all expressed positive agreement
Note:?
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none expressed disagreement,
Note:?
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The Separation of Law and State
Note:Ttttttttttttttttt
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Law, in theory, was not made by the ruler but deduced by legal scholars.
Note:Common law
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political authority in the Islamic world was fragmented.
Note:Prima dell impero ottomano
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local rulers were frequently foreigners to the populations
Note:Turchi
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What they wanted from the legal scholars was support
Note:Lasciavano la legge nelle mani dei giuristi
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They were even willing to subsidize the scholars by endowing mosques and madrissahs,
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if law professors ran the world,
Note:Immagina
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A mufti was a legal expert who offered advice on legal questions to any who wanted it.
Note:Una figura intermedia
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like the Roman jurisconsult.
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The fatwa might amount to moral advice, an opinion as to what action it was right to take.
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It was not the mufti’s job to find out what had actually happened, only to report what would be the legal implications
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The final actor in the progress from divine revelation to a functioning court system was the qadi, the judge.
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he was appointed and paid
Note:L unico
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In their system, the opinion on the law came first, provided by the mufti, followed by the qadi’s application of the law to the facts as he saw them.
Note:Processo capovolto rispetto a noi. L appwllo ê chiesto x rettificare l accertamento dei fatti
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An Alternative View
Note:Tttttttttt
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Joseph Schact,
Note:Via alteenativa. La scuola xdente
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In his view Muslim law was actually an amalgam of pre-existing Arabic legal rules, administrative regulations created by the first Muslim dynasty,
Note:Glu hadith sono inventati
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both sides to such disputes invented traditions to support their positions.
Note:Quando nascevano dispute.
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The Schools of Law
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Tttttttttttt
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Maliki, Hanbali, Shafi’i, and Hanafi.
Note:Le quattro scuole. Prendono il nome dai fondatori
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disagreed on the details.
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punishment for drinking wine was eighty lashes according to three of the schools, forty according to the fourth
Note:Esempio
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The schools of Hillel and Shammai tolerated each other for several generations,
Note:Similitudine con gli ebrei
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The two major branches of Islam are Sunni and Shia, a division that goes back to a dispute over the succession to the caliphate after the death of the Prophet.
Note:Sunniti e sciiti
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Ali, the Prophet's cousin
Note:Il suo successore per gli sciiti
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Abu Bakr, one of Mohammed's closest companions,
Note:Per i sunniti. Il successore effettivo. Alí fu il terzo successore.
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The split became permanent when Muawiya, nephew of the third caliph and governor of Syria, refused to accept Ali's succession to the caliphate,
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the first Muslim civil war
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the Shia have their own schools and legal rules,
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a medieval Muslim city could have had separate courts for the four Sunni schools, the Shia, and the other tolerated religions.
Note:Sistedma polilegale.
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Non-Muslims had to use Muslim courts for criminal cases but had choice of law for civil matters.
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What happened in a dispute between parties adhering to different legal systems is not entirely clear
Note:Varia nel tempo e nello spazio
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common rule was for the dispute to go to the defendant’s court.
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law was in theory independent of the state,
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Under the Abbasids, the second Islamic dynasty, the police (shurta) began to investigate, try and punish offenders outside of the fiqh courts.
Note:Talvolta la politica irrompeva sulla scena.
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Finally, the ruler was entitled to create administrative regulations to implement fiqh
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In theory all such courts functioned in Siyasa Shari’a, the general spirit of Shari’a,
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the desire of the ruler to maintain control.
Note:Primo motivo x un sistema parallelo
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fiqh had serious limits
Note:Secondo possibile motivo.
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its evidentiary standards were in some contexts too hard to meet
Note:Difetto. L eccessivo garantismo.
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proof required the eyewitness testimony of two adult, competent, male Muslims
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the role of oaths.
Note:Altro elemento problematico
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an oath by one party could replace one of the two required witnesses.
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What Happened to Islamic Law?
Note:Ttttttttttttt
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Wael Hallaq, one of the most prominent of the modern scholars, argues that the Islamic legal system functioned better than most modern systems,
Note:Giustizia x tutti aggratis
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The scholars maintained their independence in part through the existence of waqfs,
Note:Un trust fund che finanzia le svuole
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the rise of the nation state
Note:L origine dela fine
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rulers replaced the traditional system of decentralized law independent of the state with a system of statutory law
Note:Il cambio
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modern “Islamists” who view themselves as wishing to reinstitute Shari’a are proposing something quite different and less desirable,
Note:Islamisti eredi dei modernisti.
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the destruction of the traditional system was due to western colonialism
Note:Tesi di Halkaq.
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the case of the Ottoman Empire.
Note:Problema
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Hallaq blames that change on indirect western pressure,
Note:Gli stati cristoani
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But the shift began much earlier.
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Ottomans gave the Hanafi school of law a legal monopoly
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Sultans proclaimed their own legal rules, kanun,
Note:Sempre nell impero
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Thus fiqh, according to all four schools, forbade loans at interest. Kanun provided for a maximum interest rate.
Note:Esempio
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Under the Ottomans there was a Grand Mufti appointed by the Sultan with ultimate authority over the appointment of qadis
Note:Altra interferenza
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The breakdown of the traditional legal system may, as Hallaq argues, be due to the rise of the nation state, but the connection between that and western imperialism is accident not essence.
Note:Tirando le somme
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The annexation of the waqfs by the Ottoman authorities parallels the earlier confiscation of the lands of the monasteries by Henry VIII.
Note:Un parallelo
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The Content of Fiqh
Note:Ttttttttttt
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Hadd offenses, mostly derived from Koranic rules, have fixed punishments. Ta'zir offenses have punishments set at the discretion of the judge. Jinayat offenses, homicide and bodily harm, have outcomes determined in part by law, in part by decisions made by the victim or his kin,
Note:Le tre offese
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Hadd
Note:Ttttttt
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Unlawful intercourse
Note:1...adulterio
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false accusation of unlawful intercourse
Note:2
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wine drinking
Note:3
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theft
Note:4
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highway robbery
Note:5
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is either execution
Note:Adulteeio
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hundred lashes
Note:Per chi nn é sposato
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Proof of the offense requires either four eyewitnesses
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the pregnancy of a never-married woman can also be taken as sufficient proof.
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if they do not throw the first stones the punishment is not carried out.
Note:4 testimoni
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almost impossible to prove,
Note:Di fatto
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“false” is interpreted as “not proven,”
Note:Rischioso testimoniare
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If, for example, one of the four witnesses turns out to be a minor, the other three can be charged with kadhf.
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The penalty is eighty lashes.
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The husband who cannot prove the charge can protect himself from being charged with kadhf by swearing four times
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The wife can defend herself against the accusation by the same series of oaths.
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punishment is eighty
Note:Bere vino
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testimony of two adult
Note:Prova
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The thief must be a competent adult.
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intentional,
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item of more than a specified minimum value.
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item must be one protected by its owner,
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Stealing perishable food does not count
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amputation of the right hand,
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Since the punishment was Koranic it could not be changed,
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it was unlikely to be applied―the
Note:resa troppo qualificata
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stoning a disobedient son.
Note:Analogia
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Ta'zir
Note:Tttttt
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For ta’zir offenses, the punishment was up to the judge,
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from a private admonishment to death
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Proof is by the testimony of two witnesses, one of whom can be a woman,
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Kadhf is only a hadd offense if committed against a Muslim, but ta’zir can be
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Jinayat
Note:Ttttttttttt
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based on the pre-Islamic rules of Arab blood feud.
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charge is brought by the victim if he is alive or his nearest relative
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Retaliation occurs only at the request of the victim if alive, his nearest kin if the victim is dead, and is to be inflicted by victim or kin.
Note:Prima pena
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the victim or his closest kinsman may demand blood money
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Most schools include as homicide false testimony at trial that results in death.
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Ridda
Note:Ttttttttttt
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ridda, apostasy, the crime of converting away from Islam.
Note:Un crimine nn classificato
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The usual view is that apostasy is a capital offense,
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Some authorities hold that it may be punished without trial,
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the apostate must be given three days to repent
Note:Secondo una scuola
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beaten until they recant.
Note:Se donna
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The Koran sentences the apostate to hell but prescribes no punishment.
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belief alone was not to be punished.
Note:Secondo alcuni
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apostasy from any of the other religions of the book.
Note:Nn solo l apostasia dell islam
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Marriage Law
Note:Ttttttttttt
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marriage is treated as a contract.
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each entitled to own property.
Note:Marito e moglie
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wife’s property includes the dowry
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Pagata dall uomo
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part, sometimes a large part, may be due only after divorce or the death of the husband.
Note:Dissuasores x i divorz
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A wife does not have the right to divorce
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offering to give up part of what he would owe her as a result.
Note:Per aggirare la proibizione del divorzio
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the right of the wife to be divorced if the husband took a second wife.
Note:Contrattato nel matrimonio
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husband obedience and sexual access,
Note:I doveri della donna
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adequate intercourse and support at a level suited to her station,
Note:I doveri dell nuomo
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Taxation
Note:Tttttttttttt
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an annual head tax paid by non-Muslims under Muslim rule,
Note:Jizya
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tax on productive property owned by Muslims.
Note:Zakat
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the payment goes to the high-level religious scholar whose interpretation of law the individual taxpayer has chosen to follow,
Note:Mille x mille
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Jewish and Muslim Law: Similarities
Note:Ttttttttt
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Islamic law permits a man only four wives.
Note:Esempio
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a man should not marry more than four wives,
Note:Maimonide
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the conjugal schedule is every night.
Note:Pee chi nn lavora...le frequenze di maimonide
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for sailors, once in six months;
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for disciples of the wise, once a week,
Note:Lo studio indebolisce
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every four nights,
Note:To fiqH
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In Jewish law a wife who refuses intercourse with her husband is a “rebellious wife.”
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A man who is unwilling to have intercourse with his wife is obligated to divorce her
Note:In entrambi i diritti
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Both systems sometimes allow oaths as part of the legal process.
Note:Altra similitudine
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Jewish law is based on the written Torah and the oral Torah,
Note:Altra similitudine. Le fonti.
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Islamic law is based on the written Koran and the hadith, statements and practices of Mohammed
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During the period when there were two schools of Jewish law, some authorities held that one could choose either but should then follow all of its rulings,
Note:Similitudine con le 4 scuole.musulmane
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The solution chosen by Joseph Caro for the Bet Yosef was to base his position on the view of the majority of the three most eminent authorities.
Note:Se le opinioni dei saggi divergono.
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Working Around God’s Law
Note:Tttttttttttt
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“the reward I wish from the Prince of the Muslims is that he should send instructions to his officials in the city of Medina, commanding that when I am found dead drunk upon the pavement and brought in by the city guard, I be let off from the punishment prescribed for that offense.”
Note:Il premio richiesto dal poeta x il suo bel canto Ma ola olegge divina nn si puõ cambiare.
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Al-Mansur thought a little, then sent instructions to his officials in Medina commanding that if anyone found the poet ibn Harma dead drunk upon the pavement and brought him in for punishment, ibn Harma should receive eighty strokes of the lash as the law commands. But whoever brought him in should receive a hundred.
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L ordine inviato
