review pisai vaticaan akgunduz public law

7/29/2019 Review PISAI Vaticaan Akgunduz Public Law

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ISLAMOCHRISTIANA(THEH

UMANBEING)

PONTIFICIO ISTITUTO DI STUDI ARABI E DISLAMISTICA

[PISAI]

38

2 0 1 2

RO M A

2102U

83

THE HUMAN BEING

ISLAMOCHRISTIANA

ISLAMOCHRISTIANA

2012

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RECENSIONS ET COMPTES RENDUS

Akgndz Ahmed,Islamic Public Law. Documents on Practice from the OttomanArchives, IUR Press, Rotterdam 2011, 733 pp.

The present volume is one of a series of four. The first Volume has been published in 2010 underthe titleIntroduction to Islamic Law (seeISCH37 [2011] 288290). Still to come are a Volume entitled ThePrinciples of Islamic Jurisprudence, and one with the titleIslamic Private Law (cfr. Volume 1, pp. 56). Ihave underlined already, in my review of the Introductory Volume, the importance, to my mind, of themany references to, and indeed the integration of, the Ottoman work on Islamic Law, followed by Tanzimat.It was the situation of a vast Empire that called for a more systematic organization of the legal system.Earlier on the gradual spreading of Islam had already necessitated some steps in that direction, and ourpresent globalized world with a Muslim presence in its various continents and in many countries will makeits demands felt also as regards the organization of its legal heritage. I am looking forward to the Volumeon Islamic Jurisprudence where the Author intends to deal with new tendencies in the interpretation ofIslamic sacred texts, such as historicity and the hermeneutical method in relation to the traditional rules

of Islamic jurisprudence oful alfiqh (cfr. Vol. 1, pp. 56). No one, be he Muslim or Christian, or whetherhe holds other religious convictions or takes a secular stance, can avoid taking position as regards thesource of law, and probably will have to address the question of possible fundamental norms, or normsof reference as others might say, that cannot, or should not, be disregarded.

Having said this, the most interesting point of the book under review is, to the present reviewersmind, its structure. Anyone who has been interested in, or obliged to take a look at, different legal systems,knows that the expression Public Law, and, inevitably, its counterpart Private Law, are far fromunivocal, i.e. in a onetoone semantic interpretation among different authors and in different countries,and also across historical periods for that matter. Rather than getting involved in such discussions I decidedto try to present, to the best of my ability, the structure of the book under review as well as the broadoutlines of its content, without pretending to assess all the arguments on their respective merits.

The first Chapter deals with Constitutional and Administrative Law (pp. 29301).UnderConstitution the author deals with the political and legal organisation that has been retained, with qualitiesthat must be found in such an organization (equality, justice etc.). The questions of democracy and/ortheocracy, as well as secularism are discussed as well. Even human rights are introduced here as the basicvalues of a state. The text of the UN Declaration is not considered acceptable on all points, so an Islamicversion, drafted and approved in 1990, the Cairo Declaration of Human Rights in Islam is used as textof reference. In any case, the Declaration is not part of a Constitution, it is an international treaty, theobservance of which can be challenged in special ad hoc Law Courts. Its normal place is therefore inChapter 5 that deals with International Law. What on the other hand is constitutional is the structure of thepowers in a country and how they function: the legislative, executive and judiciary powers (pp. 213299).The Administrative aspect is by some dealt with as a law by itself, as part of the legislation that concernsthe State as such and which in that sense is a Public Law. I am not sure that everything administrativeshould be dealt with at the Constitutional level.

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Having dealt with the organization of the State one comes, after the ConstitutionalAdministrativelegislation, at the area of the Islamic Penal Law: preventing and repressing violations of the laws of the State(Chapter 2, pp. 303436). We find here the legal aspects of crime, the attitude of a person who committed

crimes (actus reus and mens rea), the punishments in general as foreseen by law, and a number ofcrimes dealt with explicitly by, and proper to, Islamic Law. Over the centuries there have been severalCriminal Codes in the Muslim world.

Another aspect of human life that is important and indeed basic, is finance. This is covered by theIslamic Financial Law (Chapter 3, pp. 437523). The personal finances of the individual people are notconsidered here: this part deals exclusively with the finances of the State. Topics such as commerce, trade,salaries in the business world etc. will be dealt with under Private Law. Under Public Law the first item tocome up is taxes, various taxes according to the complexity of the State. And speaking about taxes we areonly one step away from the State budget. With time there came duties on top of the taxes. No one will denythe importance of all this, as long as one remembers that we are dealing here with the means for runningthe State, not with fund raising as an end in itself.

The Chapter 4 deals with the Islamic Trial Law, which some might prefer to call Procedural Law.The name Evidence Law is perhaps too narrow as there are more aspects to a trial than evidence:evidence is in fact only one part in this Chapter. In fact we meet here such various matters as: Courts andJudges, Types of Lawsuits, Means of Evidence, Jurisdiction and Judgement, and Appeal Procedures. As amatter of fact, some elements of this Chapter, notably of the section on Courts and Judges, figure as wellin Chapter 1 on the Constitutions in the part there that discusses the Judiciary Power and its organisation.However, since the book under review provides a great variety of information, both from a historical pointof view, and from a geographical one, it is very difficult, without going to the documents quoted, to seewhether there is some overlap between the two Chapters concerned. Another question might be to seewhether this treatment of a theme in two places still provides a clear overall picture of the issue, or if thereis a risk of some confusion.

The 5th and last Chapter deals with International Public Law (pp. 607647). Here too there might be

some overlap. Sovereignty and independence may well be at their proper place in the Chapter on theConstitution. International relations and possible Wars involve necessarily the fundamental constitutionalpowers of the State, both the executive (government) and the legislative (parliament) ones. Whenmentioning International Treaties I have alluded to this kind of situation. When a State votes and signssuch a Treaty, say about Human Rights, such Rights become object of law in the State concerned and musttherefore be observed. They are not there for mere decoration.

It will be obvious that this is not a book one can read quickly. I am not sure one could call it a bookfor consultation, at least not in the sense of finding a quick answer to concrete questions. The structure ofthe book is part of the point of view that is presented. It contains a tremendous amount of information, andin that sense it is a book worth consulting. But one has to know a good amount of things to be able to ask

appropriate questions and to know where to look for answers. Having said this I do not want to put intoquestion the worth of the book, and certainly not discourage potential readers to make use of this tool forresearch and reflection. I would just like to add a few more points for reflection: up to each reader to decidewhat they are worth.

The expression Public Law, just as its counterpart Private Law, owe their importance to the factthat they have been used extensively in Western legal systems. However, the exact meaning given to theseexpressions can vary. When adopting them for a nonWestern legal system, i.c. Islamic Law, it might begood to spell out the sense given to this classification in this new context. To give an example of what Ihave in mind: where, for instance, to place the four major schools of law of the Islamic tradition, in thisclassification Public vs. Private? These schools of law do still influence jurisprudence in certain matters(mostly family law?) and in certain cultural areas. What could be the status of those schools of law? Whataboutfatws? And then: how to integrate into this system the divine law or ara, how to define theauthority of this law in a system where there is a legislative instance? and if some rules or norms from

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such sources were inserted in what one calls positive law (i.e. manmade law, not revealed law), to whatextent could legal texts of such sources be interpreted by the Courts when they apply these laws to particularcases? It was also with such questions in mind that I expressed earlier on in this review my interest and

expectations as regards the Volume on interpretation.Even if not all the questions have found an answer yet, the work of Prof. A. Akgndz, because of

the sheer amount of material he offers us, can be extremely helpful in opening further avenues to be pursuedin (inter)religious legal studies.

Piet HORSTEN

Anthony Sean W., The Caliph and the Heretic, Ibn Saba and the Origins of Shism,Brill, Leiden 2012, 352 pp.

This book is focused on the Ibn Sabas figure, the eponymous of the Sabaiyya, traditionallyconsidered at the origin of the socalled extremist ism (ala alliya). His life belongs to a stillobscure page of Islamic historiography centered on the first decades of the Islamic caliphate. With thisessay the author tries to shed some lights on this few but crucial years. Many scholars have alreadyundertaken significant research in the life of this character, among them we find the names of JuliusWellhausen, Israel Friedlnder, Leone Caetani, Hainz Halm and Josef Van Ess. Nevertheless, as SeanAnthony emphasizes in his introduction, rarely the subject was treated as a topic of study on its own terms,being usually inserted within related arguments (p. 4). Moreover, during the considerable time that passedsince the appearing of some of the aforementioned studies, the discovery and publication of numeroussources then unavailable have occurred.

The essay is divided in three parts and seven chapters in total. The first part is centered on the well

known portrayal of Ibn Saba and the Sabaiyya depicted by the Kfan historian/abr Sayf Ibn UmaralTamm (2nd / 9th century). In particular, the first chapter is dedicated to the scholarly debate over earlyMuslim historiography and the place of Sayfian Corpus within it. The author discusses the topic in a veryexhaustive way, illustrating the opposite opinions of past and contemporary scholars about the reliabilityof this source. The Orientalists attention rose again after the discovery by Qasim alSamarrai of anincomplete manuscript of the Sayfs book in the University Library in Riyad in 1991. This work, previouslyknown only through quotations by later authors, contains the oldest and widest amount of material aboutthe heresiarch Ibn Saba. The second and the third chapters analyze the Sayfs narrative of the events duringthe Uthmans caliphate. Ibn Saba converted to Islam in this period and immediately we saw him at the headof the opposition party against the caliph. Indeed, the responsibility of Uthmans murder is attributed to theSabaiyya group as well as the first grievous division of the Islamic community (pp. 9899).

The second part consists of three chapters, from the forth to the sixth, and examines the medievalheresiographical and theological writings on Ibn Saba with a careful critical approach. To this leader areattributed many of the archetypes which we find later in the ulw a. Among the major archetypes thereare the ideas ofraa (i. e. the imms parousia at the end of the world) and the waiyya (i. e. thetestamentary disposition in Muammads succession, p. 145). The wide interest shown by Muslimhistoriographers from the 2nd / 8th century onwards in the Ibn Sabas sect (each heresiographical bookcontains a chapter dedicated to it) confirms the relevance of the topic for Islamic community.

A constant element in the polemic literature against Ibn Saba is the reference to his Jewish origin.He is depicted as a Yemenite Jewish with a colored mother another name for him is Ibn Sawd whooutwardly converted to Islam, but remained indeed a cryptoJewish. He should have devised a plan todestroy the ArabIslamic community from within. His biography is interwoven with a series ofclichs inorder to demonstrate that he is at the origin of the first great civil war of Islam ( alfitna alkubr), as IbnSayf says, or that he is responsible of the birth of the extreme a, as the heresiographers want to

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