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2023 | Buch

Introduction: The West and Islam: Juridical Categories in a Transitional Global Scenario Kapitel lesen Erstes Kapitel lesen

Juridical Perspectives between Islam and the West

A Tale of Two Worlds

verfasst von: Federico Lorenzo Ramaioli

Verlag: Springer International Publishing

Buchreihe : Global Issues

Enthalten in: Springer Professional "Wirtschaft+Technik" , Springer Professional "Wirtschaft"

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Über dieses Buch

This comparative philosophy of law book aims at formulating a new analytical approach to the Islamic legal tradition based on ‘juridical categories’, a concept that facilitates comprehension and understanding of juridical phenomena. Building upon legal comparativism and legal pluralism, this project intends to avoid bias caused by universalizing Western categories when analyzing foreign juridical notions, which inevitably results in the miscomprehension of non-Western ideas and institutions. Unlike existing literature, this project will not focus on substantive comparisons between normative contents, but on the ‘juridical perspectives’ that helped to shape the Islamic and Western legal orders.The book focuses on the most relevant juridical questions regarding the Islamic and Western legal perspectives, such as the different visions regarding juridical spatiality, the role of human reason and the relationship between law, man and the divinity. While contributing to legal philosophy, this work intends also to develop and define a new interdisciplinary approach, aiming to provide a starting point for novel analyses in research fields such as legal comparativism, legal pluralism, and constitutional law. Finally, by formulating a new interdisciplinary approach, it will provide a foundational discussion of a continuously evolving subject that will never be exhaustively explored. As such, it aims at broadening scholarly reflections on the relationship between the West and Islam, eventually placing these concepts within a suitably comprehensive and contextualized framework.
"Published in cooperation with gLAWcal - Global Law Initiatives for Sustainable Development, Hornchurch, Essex, United Kingdom".

Inhaltsverzeichnis

Frontmatter
Chapter 1. Introduction: The West and Islam: Juridical Categories in a Transitional Global Scenario
Abstract
In my introduction, I define the scope of my research, introducing some key concepts such as the idea of juridical category, intended as a scheme of juridical comprehension and a philosophical parameter on which to base the comparison between the two legal orders. Moreover, I define the terminology used, in a context in which terms such as “law” or “State” are not possibly used in a neutral way but necessarily imply an overall philosophical theorization. Regarding this, I observe how it is extremely important to properly contextualize juridical notions, avoiding the biases caused by universalizing Western categories and schemes of qualification. Lastly, I introduce some preliminary remarks about (Sunni) Islam and sharı̄ʿa, so that the book is understandable also to non-experts in Islamic history and legal culture.
Federico Lorenzo Ramaioli
Chapter 2. Sovereignty and Universalism After Westphalia
Abstract
In this chapter, I analyze the narrative of the modern post-Westphalian in the West, which defined its idea of territorial sovereignty and which came to shape the international scenario up to the preset days. Subsequently, I analyze the Islamic universalist ideal, with the ummah (Islamic community) as its preeminent actor. Drawing conclusions, I put in relation these two perspectives, highlighting the structural differences in the nexus between law, community, and space, as conceived and developed respectively in the Western and Islamic legal orders.
Federico Lorenzo Ramaioli
Chapter 3. The Leviathan and the Caliph Between Authority and Law
Abstract
In this chapter I analyze the different conceptions of authority and power in the Western and Islamic worlds. In particular, I highlight the mainly personified nature of Islamic political power, which basically coincides with the ruler exercising it. On the contrary, the Western world separates the individual in power from its authority, following the elaboration of the Medieval notion of persona ficta, with relevant consequences in terms of legitimation. Moreover, I analyze the relation between authority and law: in the West, especially following the affirmation of the modern State’s paradigm, the law is mainly instrumental to the political authority, while in Islam it is the authority that is to be considered functional to the maintenance of a juridical ideal.
Federico Lorenzo Ramaioli
Chapter 4. Law, Sharīʿa, and Human Reason
Abstract
In this chapter I explore the relationship between law and human reason, analyzing how such a relationship is understood and developed, respectively, in the West and in Islam. In particular, I observe how in the West the human intellect has always been entitled with the right of producing law and juridical regulation, especially as a consequence of the Christian outlook on reality and creation. On the contrary, the Islamic legal tradition considered the role of human reason as mainly deductive, in a context in which the law has already been provided by the divinity and in which the role of the jurist is to detect and research it, by deriving concrete provisions from an immutable and intangible level of normativity. In this respect, the discourse of law between form and substance assumes a great importance, as well as the analysis of the idea of source of law. Regarding this, I compare the images of the source of the law, as developed in the West, and of the roots of fiqh, as developed by the Islamic tradition, highlighting the philosophical differences implied in these two juridical narratives.
Federico Lorenzo Ramaioli
Chapter 5. Spiritual Command and Temporal Rule
Abstract
In this chapter I analyze the question of the possible separation between the spiritual and temporal dimensions of law and power in the Western and Islamic traditions. Assuming as a guiding criterion the separation of authorities and competences, I observe that in the Western world this bipartition has been necessarily theorized, following Christian teachings, but not always applied. On the contrary, in the Islamic world a separation has never been conceptualized from a theoretical point of view, being on the contrary inherent to the concrete and pragmatical organization of society. Moreover, I discuss the question of punishment in the two legal traditions, in order to highlight the philosophical differences implied in the respective teleological perspectives. In particular, I investigate whether legal punishment should have, in the West and in Islamic thought, a moral component as well.
Federico Lorenzo Ramaioli
Chapter 6. Entering into a Dialogue: From Theory to Practice
Abstract
In this chapter I discuss some residual questions, moving from a more theoretical analysis to a more practical and dynamic one. For instance, I analyze some fundamental issues such as the relationship between law, space, and time, and between law and coerciveness and enforceability in the two legal orders. Another important question I discuss here, often underestimated in literature, is the conceptual extension of the juridical sphere, as shaped and delimited by the Western and by the Islamic thought, in ways that are not to be considered coincident. Lastly, I discuss the idea of constitutionalism as developed in the Western world and as successively transposed unto Muslim society, both because of spontaneous imitation and because of colonization.
Federico Lorenzo Ramaioli
Chapter 7. Conclusion: New Juridical Instruments for a New World
Abstract
In my conclusion, I summarize the main divergences in philosophical and juridical terms that characterize these two legal worlds, which greatly came to shape and influence the development of their respective civilization along the centuries of their histories. Given the complexity of the contemporary legal scenario, as well as the deep transition we are experimenting nowadays, I once again highlight the importance of discussing this sort of questions in order to foster new analyses and in order to properly investigate the dynamics that are leading us toward the future.
Federico Lorenzo Ramaioli
Backmatter
Metadaten
Titel
Juridical Perspectives between Islam and the West
verfasst von
Federico Lorenzo Ramaioli
Copyright-Jahr
2023
Electronic ISBN
978-3-031-37844-7
Print ISBN
978-3-031-37843-0
DOI
https://doi.org/10.1007/978-3-031-37844-7

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