At Once Human and Not Human: Law,Gender and Historical Becoming in Colonial Egypt

This article explores two approaches to the gendered human that occupied the historical stage of colonial Egypt. The first was juridical, the second was Islamic and mystical. Elaborating on the first, ‘juridical humanity’, this article probes the constitutive force of modern law in cementing the human as its teleology as well as the colonial operations of this force. Fashioning itself as an answer to the question ‘who is the human?’, juridical humanity took on particular salience in relation to women while engendering disciplinary operations: the humanising powers of colonial law instituted a system of bondage between the law and the woman‐human. The mystical articulation, on the other hand, offered a competing vision for the human, one that constituted an answer to the question ‘where is the human?’, thereby making impossible the unleashing of colonial humanising powers.     

"边疆"一词在世界主要法系中的镜像:一个语源学角度的考察

法系是比较法学的基础概念。本文主要利用语源学的方法,分析了世界三大主要法系——中华法系、罗马法系和伊斯兰法系——中领土、疆域、边疆等概念所反映的不同镜像,力图将不同的地方性知识构成较为全面的世界法律文化图景。     

历史批判与现实关怀:清代中期史学家的风俗论

探讨古今风俗之流变及其与历史演进的关系,是清代中期史学发展上的一个重要现象。清代中期的史学家评论风俗的重点,一是考察了清代以前风俗对朝代盛衰的积极和消极影响;二是批判清代中期社会上出现的不良风气,倡导士大夫阶层在引领风俗的良性发展上扮演重要角色,特别强调士大夫要树立廉耻观念。他们还总结出风俗的时代性、相对稳定性、地域性和民族性等特征。清代中期的风俗论,反映了考史学家的经世思想,体现了乾嘉史学的历史批判精神和关怀现实的学术品格,具有重要的现实价值和学术意义。     

Secular cultural policy in Islamic countries: desirability and feasibility

Secularism in Islamic countries is a hotly-debated topic which produces dramatic sociopolitical consequences on the one hand, and wide-ranging academic controversy on the other. The real social potential of secularism among Muslim populations is an issue that is not always estimated properly. The present paper first reviews some historical examples of secular cultural policy in Islamic countries. This review covers the secular reforms in four political, social, legal, and educational spheres. Subsequently, using data from the World Values Survey, it compares empirically the desirability of a public role for religion in 18 Islamic and Western countries. Furthermore, it examines the acceptability of Western secular culture in six countries in the Muslim world. Bearing in mind Casanova’s analytical approach to the theory of secularization, it comes to the conclusion that a democratic application of a secular cultural policy in Islamic countries is neither desirable nor feasible.     

Jaka Tarub,a Javanese culture hero?

The origin of the Jaka Tarub story in oral tradition shows how Javanese culture deals with encounters and fissues in its civilisation. Drawing on a north Javanese kentrungan performance recorded in the 1980s the article shows how these Islamic storytellers have skilfully blended ancient myths and folktales with local history and non-Javanese Islamic legends. As a rich source of information on local language, manners and customs, these oral tales may also help to answer questions on the relationship between Javanese and other cultures. Investigation of this genre is urgent since the art of storytelling is rapidly fading under the pressure of modernisation.     

Polygamy and Legislation in Contemporary Iran: An Analysis of the Public Legal Discourse

The purpose of this article is to analyze the interaction between different interpretations of Islamic jurisprudence in Iran and state law. It focuses on the public legal discourse about the new Family Draft Law in 2007–08, especially Article 23 regulating polygamous marriages and removing necessity for the first wife's permission. The participants in this public legal debate, which took place on the internet and in the media, were civil society organizations, especially women's organizations, the Shiite clergy, and state representatives. The article argues that even in a non-democratic, theocratic state such as the Islamic Republic of Iran, public discourse promoted by the named actors can challenge and influence state legislation. The removal of Article 23 from the Draft confirms this argument, but in the law of 2013 the requirement for the first wife's permission is not found. By looking at the arguments brought forward in the public discourse, the article demonstrates that the arguments are mainly “Islamic,” and none refers to international human rights, as this seems to be a kind of taboo in the political discourse.     

The Snake Bone Case: Law,Custom, and Justice in a Papua New Guinea Village Court

One of the outcomes of judgmental administrative attitudes toward indigenous praxis in colonial Papua New Guinea was a convention that an antagonistic relationship existed between European law and ‘native custom‘. By the end of the colonial period the defence of ‘custom’ had become part of an anti-colonial polemic among indigenous intellectuals and politicians. The Village Court system was established in this rhetorical climate. Its mission, reinforced in legislation, included the favouring of ‘custom’ in the dispensation of justice. Subsequent academic and journalistic commentaries on the development of the Village Court system have perpetuated a binary notion of the relationship between law and custom, whether portraying it as antagonistic or articulatory. This article focuses on a single case from a Port Moresby village court, involving an accusation of attempted sorcery. The case raises questions not only about the validity of the discursive law/custom dichotomy but about the notion of custom itself in the context of the dispensation of justice in contemporary Papua New Guinea. It is suggested that in village court praxis, the notion of custom serves the exploitation of village court officers as cheap labour in the justice system.     

Reasoned and Inspired Beliefs: A Study of Islamic Theology

Abstract: In most cases, Islamic theology has been examined as a sub‐field of Islamic legal studies. Ignaz Goldziher and Joseph Schacht for instance, see a link between Islamic law and theology. However, Islamic materials from the formative period of Islamic thought show that Muslim scholars distinguished between disciplines dealing with theological themes and those dealing with legal and jurisprudential topics. In this article, the author defines theology and identifies the major trends that contributed to the development of theological doctrines in Sunni and Shi‘ite Islam. He argues that, during the various historical periods, the scope and reach of Islamic theology depended on the political, social, and intellectual environment. He concludes that, in the end, Muslim theology could only be understood in a context radically different from its counterpart in Judaism and Christianity.     

论“捏价”的法律意义

“捏价”,是藏族、撒拉族等高原少数民族商事交易中常用的一种议价方式。长期以来,人们对“捏价”的认识仅仅停留在一种民族习惯上,至今还没有学者从法学的角度作出评析。笔者通过对青海省玉树藏族自治州部分商事活动的调查与研究,重点分析了“捏价”及其涉及的相关法律问题。     

‘Your work is of no use to us…’: Administrative interests in ethnographic research (West New Guinea, 1950–1962)

Abstract

The extent of customary land in Samoa and the laws pertaining to its protection create a presumption of state dependence on the regulation of custom in effecting state policies within local contexts. The principal means of regulating custom in Samoa has been and continues to be through state court adjudication of conflicts over customary land and chiefly titles. The transitive nature of ‘custom’ and conceptions of ‘custom’ in Samoa created an opening for court influence in the construction of custom, if not custom's partial reinvention through the agency of the courts. This occurred principally through the courts’ privileging principles of English common law in confirming asserted land rights generally considered unenforceable at the time of Samoa's political partition. The courts re‐interpreted as customary, conceptions of land rights the colonial state's influence attempted to effect within Samoan society. But the source of the changes, and the courts’ role in promoting them, tended not to be equally reflected upon. To the extent such influence is ignored in analyses of Samoan land tenure and customary law, and reproduced within state policies and court adjudication of conflict, custom's social construction is left unexamined, assumed to be more general than it is, and likely to exacerbate tensions and conflict within Samoan society rather than reduce them.     

The Life of the Law in the Islamic Republic of Iran

Beyond the esoteric deliberations of Islamic jurists and their exegesis of criminal and private law doctrines, Iranian law lives a life of its own. It is a life of routine practices of judges, court clerks, lawyers and clients, each of whom is striving to turn the law to their own advantage. It is also a life of contested legality, a relentless struggle over the right to determine the law in a juridical field which is infused with strife and hostility. These conflicts are reproduced daily as two competing conceptions of law, and their corresponding perceptions of legality clash in pursuit of justice. The Iranian judiciary’s concept of law, its reconstruction of Islamic jurisprudence and methods of dispensing justice, which on the surface are reminiscent of Max Weber’s “qādi-justice,” collide with the legal profession’s formal rational understanding thereof. However, Iranian judges are not Weberian qādis, and the legal profession is not a homogenous group of attorneys driven by a collective commitment to the rule of law. To understand their conflict, we need to explore the mundane workings of the legal system in the context of the transformation of Iranian society and the unresolved disputes over the direction of its modernity.     

Taqiyya as Polemic,Law and Knowledge: Following an Islamic Legal Term through the Worlds of Islamic Scholars,Ethnographers, Polemicists and Military Men

Taqiyya is an Islamic juridical term whose shifting meaning relates to when a Muslim is allowed, under Sharia law, to lie. A concept whose meaning has varied significantly among Islamic sects, scholars, countries, and political regimes, it nevertheless is one of the key terms used by recent anti‐Muslim polemicists such as Robert Spencer or Daniel Pipes, and has been used by US Prosecutors to explain terrorist behavior. This paper seeks to summarize the complex uses of the term and show how a specific concept in a legal system can be used and interpreted by both adherents of that system and enemies in a wide variety of ways, taking on different meanings while referring to effectively the same set of practices. The term is debated in a scholarly way in the scholarly literature, as an ethnographic term, and finally, as an operational concept used as a tactic in a war and demanding countertactics tailored to it. The paper will discuss the social purpose of having such ambiguous concepts available within one's society, and the idea that making the ambiguous specific can be a valuable weapon in polemical attack.     

清代贵州锦屏林木交易习惯的法律经济学分析

清代锦屏林木交易习惯,以契约、碑文等为主要载体,在南方山地少数民族习惯法中属于初阶成文[1]形式的习惯法。它们不仅反映了当地历史上民族经济发展的客观情况,而且也是老百姓自觉地创造民间法和政府正确运用法律和经济手段治理边疆的真实写照。本文兼采描述与分析相结合的方法,对田野调查的情况作一定层面的小结。     

Muslim Contestations over Religion and the State in the Middle East

Abstract

With the future of the Middle East uncertain and unstable, claims to holding the authentic Islamic understanding of the role of religion in politics remain competed over in a political struggle for support, with sides believing that whoever can articulate the authenticity of their vision of government would become more able to influence public opinion. While one train of thought posits Islamic governance as an authentic and correct form of polity for the region which would bring about accountable, elected government, the other claims that Islam is fundamentally silent on the issue of the "state," and that notions of an "Islamic state" or caliphate are in fact dictatorial and antithetical to orthodox Islam, though Islamic values can inform the individual in their role as a citizen within a democratic state. This article will briefly examine the genealogy of these two competing claims from a Sunni Muslim perspective after examining the dominant approaches to analysing political Islamic groups, while also questioning whether it is fundamentally necessary to insert democratic ideals into such a discussion.     

Pakistan,militancy and identity: parallel struggles

This article focuses on the dominant and parallel struggles that have been carried out in Pakistan in terms of its Islamic identity since 9/11. It argues that the Pakistan government has legitimised and explained its partnership with the US government in countering terrorism through a discourse that makes use of Islamic symbols. The Islamists have engaged in a similar process, arguing for jihad against the enemies of Islam. Simultaneously, a tension has persisted between liberal/progressive and orthodox notions of being a Pakistani Muslim, which has been reflected in, for example, the debate on the blasphemy law in Pakistan. It is important that strategies to strengthen Pakistan also creatively empower groups subscribing to liberal/progressive ideas so as to succeed in the struggle against militancy in the long term. The argument is developed in three parts, starting with a discussion of opposing views on Pakistan's identity and the place of Islam as the context for the Pakistan government's participation in the War on Terror. The second part explores features of the opposing discourses adopted by Islamabad and jihadi groups. The third part discusses the parallel tensions between alternative understandings of Pakistan's Islamic identity at the societal level with reference to the blasphemy law. The concluding section suggests a carefully crafted approach to assisting Pakistan at this stage in its history that could also respond to the subordinate tensions.     

Dressing the Arbor Tree

The custom of dressing the black poplar growing in Aston-on-Clun in south Shropshire--known as the Arbor Tree--with flags on flagpoles every 29 May is unique in Britain. New flags are attached to wooden flagpoles on the tree that remain throughout the year. Written records of the Arbor Tree only extend back to 1898, but the tradition of dressing the tree is reputed to date back to a local wedding in 1786. The article attempts to establish the history and context of the tradition and shows how the custom has developed and acquired new meanings, particularly since 1955 when a pageant was devised. The pageant and the celebrations associated with the tree dressing are evolving in response to those living in the local community as well as to the external recognition now accorded to this unique tradition.     

The Veil and Urban Space in Istanbul: Women's dress,mobility and Islamic knowledge

The issue of veiling marks an ideological fault line in urban Turkey. Based on focus groups conducted with migrant women to Istanbul in the spring of 1999, this article aims to show how veiling, as a form of dress, is a spatial practice that gains its significance through women's urban mobility and their construction of Islamic understandings in the city. At the same time, both urban mobility and Islamic knowledge are structured by wider relations of power, such as the struggle between the secular state and resurgent Islamic politics. In order to situate the practice of veiling within these structures, the author argues that Istanbul is marked by a pattern of shifting 'regimes of veiling,' and that these spatialized norms of dress affect the meaning and enactment of women's veiling choices. This concept is particularly useful to draw out the ways in which veiling, despite providing some protection from urban harassment, may actually constrain women's urban mobility in the context of Istanbul. The focus group analysis illustrates these points and demonstrates how women's views on Islam provide a basis for their attitudes towards veiling, mobility and space. The author suggests that among the participants, two main trends in Islamic understandings related to veiling can be observed: one towards the 'privatization' of religion along secularist lines, accompanied by a flexible attitude towards veiling, and another towards the public contestation of formal anti-veiling regimes justified in terms of knowledge gleaned through direct, textual engagement with Islam. In this way, this study aims to link veiling, as a socio-spatial practice, to the local, gendered production of Islamic knowledge in Istanbul.     

Jeremy Bentham,choice architect: law,indirect legislation,and the context of choice

ABSTRACT

The goal of this paper is to locate indirect legislation within Bentham’s art of legislation, and to distinguish it, as far as possible, from direct legislation. Along the way, some parallels are drawn between indirect legislation on the one hand, and the Nudge theory of Thaler and Sunstein on the other. It will be argued that many expedients categorized by Bentham as indirect legislation are simultaneously exercises of direct legislation. Another set of indirect expedients act on knowledge, and involve efforts to eliminate asymmetries of information between potential offender and potential victim by providing official standards and disseminating a plethora of factual information. Other forms of indirect legislation threaten the coherence of Bentham’s theory of law, firstly by regarding all government actions as exercises in legislation, and secondly by turning the formers of public opinion into legislators. Insofar as some forms of indirect legislation operate by sleight of hand, they conflict with Bentham’s commitment to transparency in the exercise of public power, reflecting a tension between reality and appearance which runs through his thought.