文章基本信息

标题：Beyond the Sharia and Codified Law Dichotomy: From the Late Ḥanafi Tradition to Mecelle
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作者：Murat Burak Aydin
期刊名称：Rechtsgeschichte - Legal History
印刷版ISSN：1619-4993
电子版ISSN：2195-9617
出版年度：2021
卷号：29
页码：361-363
DOI：10.12946/rg29/361-363
语种：German
摘要：The interaction between the ruler and Islamic law was an intricate one. The Ḥanafi school of law was one of the legal schools in Islamic law, and it was the school adopted in the Ottoman Empire. Samy Ayoub, in his book Law, Empire, and the Sultan, investigates the transformation of Ḥanafi jurisprudence and its interaction with state authority starting from the 16th century. Islamic | jurisprudence and legal discourse were not fixed or frozen in time. Samy Ayoub illustrates how late Ḥanafi jurisprudence was in flux and how the interaction between legal scholars and the state shaped the legal opinions of the school between the 16th and 19th centuries. He poses a few main questions in this context: How to »explain the late Ḥanafi jurists’ departure from the established norms of their school and their adoption of a new set of doctrines? What are the tools they used to justify such changes? In what ways did Ḥanafi jurists incorporate Ottoman edicts and orders? And how should we evaluate the codification of Ḥanafi legal doctrines in the late nineteenth century?« (4) One of the main arguments of the book is that »late Ḥanafi jurists formulated a set of juristic tools and devices to change, alter or perpetuate early Ḥanafi opinions, even those that originated with Abū Ḥanīfa (d. 150/767), the eponym of the school« (4). He portrays a continuation together with change in Ḥanafi legal thinking, a legal process that considered the necessities and social realities of the time (153). Throughout the book he illustrates the various tools (necessity, customary practice, change of time, widespread communal necessity and others) that late Ḥanafi scholars used to »justify fundamental changes in key Ḥanafi doctrines« (4).