This investigation looks at the development of the Maliki school in Muslim Spain in the 3rd/9th and 4th/10th centuries. It begins with an introduction to the subject which covers the relevant bibliography, the main sources used and a brief look at Malik's life and legal thought. Part I then deals with the beginnings of Malikism in al-Andalus. After a quick glance at Malik's earliest students in al-Andalus, the legal views of Yahya b. YaQya -Malik's most famous Andalusian student- are closely analysed. Then the legal views of the two other most famous Andalusian Malikis of the 3rd/9th century _clsa b. Dinar and C Abd aI-Malik b. I:IabIb- are looked at. In part II the variety of legal trends in the 4th/10th century are looked at using the works of al-Tulaytall, al-KhushanI, al-Jubayn, Ibn Zarb, Ibn Abi Zamanin and Ibn al-Attar. The analysis, attempts to concentrate on the legal views of the jurists -their attitude towards Malik's authority, their way of dealing with the binding texts of the Qur'an and the injunctions of the Prophet and whether there is a sense of school doctrine. The investigation concludes that already in the 3rd/9th century Malik's authority was well established whilst his students were becoming increasingly important. By the 4th/10th century the school was firmly established although attitudes to Malik's views showed that it was still acceptable to differ from the eponym.

This work will develop a methodological and theoretical approach to analysing customary international law, which transcends the strictly defined boundaries of traditional international legal scholarship. It will be proven that approaches which utilise such methodologies tend to view the State as a unitary corporate entity, and therefore only analyse the external conduct of States in order to determine when custom becomes legally binding. Instead an interdisciplinary approach, which focuses on the disciplines of diplomatic history and literature, will be employed in order to understand the underlying attitudes of British officials involved in the legal decision-making process. In particular, a methodology that is influenced by thick description as employed by Geertz, and a 'way of reading' as instituted by Boyd White will be used in order to identify cultural patterns. The analysis of archival evidence will then be placed within the above cultural framework. It is considered appropriate to concentrate on British practice with reference to the development of a right to self-determination, given the discussion of this particular customary right in the first chapter. The decolonisation of the Sudan will be examined, and it will be revealed that, although Bevin alluded to a Sudanese right to self-determination, he in fact used the language of forbearance and evasion to balance competing interests. This was seen to result in the undermining of the Sudanese right to self-determination, when this type of language was used in his meetings with Sidqi. Furthermore, it will be demonstrated that members of the Sudan Political Service also used the language of forbearance and evasion to ensure gradual constitutional development. This is tum resulted, yet again, in the undermining of the right to selfdetermination. Nevertheless note will also be made of the fact that forbearance was subverted by Huddleston in response to the perceived threat of Egyptian infiltration. This resulted in the promotion of the right to self-determinationThe cultural framework will then be applied to the decolonisation of Cyprus. It will be demonstrated that the use of the language of forbearance and evasion by certain British officials ensured that British interests were upheld by placing discussion of a Cypriot right to self-determination in abeyance. This is despite the fact that the applicability of the right to Cyprus was explicitly mentioned. In the final two chapters, the subversion of forbearance as a catalyst for the promotion of the right, and particularly the role of imperial lethargy in that subversion will be examined. In the first of these two chapters, the decolonisation of Malaya will be analysed. It will be demonstrated that following the end of the Second World War, the language of imperial lethargy was clearly being used, resulting in an explicit recognition of the right self-determination. However the use of the language of forbearance and evasion in relation to the process of constitutional change resulted in the impression being presented that the pledge was not seriously made. The analysis of Sierra Leone within a cultural framework will reveal a clear conflict between the cultural patterns of forbearance and evasion, and imperial lethargy. However it will be shown that while the language of forbearance and evasion continued to be used, the language of imperial lethargy dominated, resulting in the unqualified recognition of the right of self-determination. In conclusion it will be maintained that Article 3 8( 1 )(b) promotes orthodox approaches to the development of customary law, which view the State as a unitary corporate entity. It will be argued that this results in a pervasive legal formalism. It will therefore be put forward that it is necessary to engage in an approach which transcends the boundaries of the discipline, and takes into account the complexity, and inevitable humanistic nature of state administration. It will be posited that a cultural framework provides a way of appreciating the complex and ultimately rhetorical process of legal decision making.

This thesis offers, in response to the challenges of a globalised world, a coherent systematisation of the Brazilian model of precedents as a new hybrid between civil and common law. Conceptual and broadly comparative (constantly drawing knowledge from the English common law), it presents how precedents are understood and how they operate in Brazil. This thesis systematises the concepts and establishes a consistent vocabulary for the categories of creativeness, declarativeness, persuasiveness and bindingness of precedents, which can then be comprehended by both Brazilian and English audiences. In addition, it creates a unique reference to be applied in the comparative study throughout the thesis. This thesis also analyses the practical uses of precedents in Brazil and then compares them to the English model. It discusses how judges in Brazil deal with concepts such as the ratio decidendi, the distinguishing and the overruling of precedents. As the last few decades in Brazil have seen a clear increase in the use of precedents in terms of frequency, creativity and bindingness, this thesis offers a comprehensive taxonomy of the several Brazilian binding precedents that are expected to progressively transform the Brazilian approach to precedents into an example of a hybrid model. This thesis focuses on the new and very important Supreme Court’s Binding Súmula (a category of binding precedent introduced into Brazilian law by Amendment 45 to the Federal Constitution, passed in 2004), analysing its origins, features and significance under a dual perspective that could be interesting for both common and civil law traditions. This thesis finally focuses on some of the advantages of the doctrine of stare decisis – stability, certainty of law, equality, time-saving –, as positive criteria of functionality, in order to analyse improvements in the deliverance of justice in Brazil since the adoption of a more comprehensive approach to binding precedents. The last chapter also presents and debates some strengths of the new Brazilian approach to precedents, emphasising that the Brazilian mix of civil and common law elements has proven to be a very synergic model. Identifying many of the problems of Western precedent models as well as suggesting some solutions, this thesis aims to be used as a tool for both researchers and those dealing with law reform and to contribute to the development of the theory of precedents in both civil and common law legal worlds.

This thesis offers a critical historical analysis of the discourses on sexual and gender diversity related to international human rights law and Islamic law, as well as an ethnographic account of contemporary Muslims in Lahore, Pakistan whose pluralist sexual and gender experience defies the punitive gaze of state law. The central hypothesis of this project is that critical - and parallel - examinations of the legal, social and political genealogies of human rights law and the Islamic legal tradition, as they relate to human sexual and gender difference, can reveal some salient patterns of insurrectionary vernacular discursive practices. It is, moreover, posited that sexually diverse and gender-variant Muslims already engage in such practices, which help them to negotiate their legal, political and social positions. The ethnographic part of this thesis, then, documents and interrogates those practices, while the concomitantly pursued historical analysis provides a broader background for understanding their invaluable role. Thereby compiled and recounted, a history - of sexual and gender plurality amidst the umma (1) past and present - is always already in the making. Whilst its roots - and rites­ run deep into the idiosyncratic forms of Muslim sociality, that narrative is now increasingly seen as a part of larger human rights and sexual/gender reforms. This thesis, thus, also endeavours to contextualise and historicise the treatment of sexual/gender diversity in international law- epitomised in the (legal) ascendance of the notions of sexual orientation and gender identity - by retracing, inter alia, the making of the sexual and gendered subject of Christian and European law. Ultimately, this thesis is an interdisciplinary account of Muslim sexual and gender diversity, and of the attempts of historical and contemporary legal systems at its regulation.

This thesis contains a critical study and edition of the Adab al-Qadä' of 'Isä b. 'Uthmän al-Ghazni (799/1396), with an English introduction. The introduction consists of four chapters. Chapter 1 gives an account of the author and his historical milieu. It includes a biographical summary, a consideration of his education, his career, the political background to his life, and the institutional system within which he made his career. Chapter 2 gives a literary history of the juristic tradition in so far as it aids understanding of al- Ghazzi's work. Chapter 3 contains an analytical summary of the Adab al- Qadä', together with a general account of judicial procedure in Islamic litigation. The value of the work and al-Ghazzi's methods are discussed at the end of the chapter. Chapter 4 gives an account of the manuscripts which were used or consulted in producing the text. It also contains an account of the methodological principles adopted in editing the text. There are two appendices to the introduction, one being a list of all jurists mentioned in the text, together with brief biographical data, the other a list of all juristic works mentioned in the text. The bulk of the thesis consists of the Adab al-Qadä'. It is a work which deals with practical problems of judicial procedure, as they became evident to a working judge in Damascus in the 8th/14th century. In spite of some uncertainties of organisation, it is possible to distinguish four main areas of concern. These relate to claims (da äwä, bib 1), oaths (aymän, bib 2), testimonies (shahädät, bibs 3-5), and judicial decisions (ahkdm, bäbs 6-8). This is followed by a miscellaneous section (bäb 9). The book concludes with a consideration of the special spheres of competence of Shifi' i judges in Mamlük times (bäb 10).

The aim of this thesis is to edit a manuscript in 'Usul al-Fiqh (principles of Islamic jurisprudence) written according to the Hanafi school. The main manuscript used on the edition dates back to (690H/1292AD). The author is Husäm al-Din Muhammad bin Muhammad bin `Umar al-Akhsikathi, who died in (6441V1247AD). The thesis provides an account of the author's life and identifies his historical character and the epoch in which he lived, i. e. the 7th century H.(13th century AD). To explore that, it was necessary to dwell upon the region and context where the author lived. I endeavour to highlight the author's personality from different angles so as to understand the circumstances that produced such scholars at that time in history. The study of the book required, first to attribute the work to its author and, second, to show its significance and its impact on the science of 'Usul al-Fiqh. I also tried to focus on the methodology employed by the author of this work and the reason that this book has gained wider prominence in this particular field than that of other writers. Through studying this book I discuss Muslims' interest in this work and its prolific number of editors and commentators, which indicates the value of the book to scholars and students. The significance of any book relates to the subject that the book itself tackles; therefore, I start the study with an introduction in which I demonstrate the value of the subject of the book i.e. 'Usul al-Fiqh. Here, I discuss the time when it came into being, how it evolved, scholars' methods and approaches in studying this authority- whom many scholars consider as a fundamental pillar for many other sciences such as jurisprudence, interpretation and the Hadith (Prophet's Traditions).

This present study deals with the linguistic principles that are used in the process of legal reasoning in Islamic law. These linguistic principles represent an important branch of the science of usu1 al-fiqh on its part represents the theoretical basis for the Shari ah and indisputable foundations upon which the whole structure of Islamic law is built. It is a unique study in the sense that no similar work, as far as we know, is available and its comparative and analytical approach has not been presented before. This study is divided into four parts. The first part deals with the linguistic principles that are related to the methods of textual indication on legal rulings. In this part these principles have been analysed according to both the Hanafi and the Shäfi'i approach. In the second part this study deals with linguistic principles which are related to clarity and ambiguity of words. It is a comparative study of the Hanafi and the Shdfi'i approach to this issue. The third part highlights the generality and specific qualities of words, and the fourth part analyses the possibility of interpretation of authoritative texts not according to their obvious meanings (ta'wi7). In general this is a comparative study of the methodology of interpretation of authoritative texts in Islamic law presented through the study of the linguistic principles in usül al-fiqh and their effect on legal reasoning in Islamic law.

It has been pointed out by numerous authorities that the legality issue is one of the most complex and difficult areas in English law. Countless rules and principles have been created by former authorities, on one hand, principles which have been created by common law give guidance to the English courts when deal with this issue, on the other hand, however, these judgments make this area far from clear an stable. However, compared with one more special area, the legality issue in marine insurance law, the instability of rules in English common law makes itself useful instrument. Section 41 of Marine Insurance Act 1906, which is known as warranty of legality, requires the adventure is a lawful and so far as the assured can control the matter, the adventure shall be carried out in a lawful manner. However, this piece of law has imposed a rigid and unfair system on the assured. According to former authorities, it can be seen that, the illegality rules in marine insurance law is far more complex than section 41; and, moreover, English common law also provide useful instruments for marine insurance law. This thesis begins with the analysis of section 41 in marine insurance law and tries to explore the true scope of section 41 in marine insurance. And then the principles of legality issue in English common law will be introduced in detail; furthermore, the pattern of resolve legality issue in Australia and New Zealand will be introduced as well, since the common grounds these three legal systems share. And based on the introduction of the reform which have been taken by Australia and New Zealand, this thesis will try to explore the positive methods which can be absorb by English law as well. And in the end, the new reform of English law on the legality issue in insurance and marine insurance law which has been proposed by the Insurance Contract Law Bill 2014 will be analysed as well, and based on former analysis, this thesis will propose a practical method to reform this issue in English law, that is to apply the common law rules in marine insurance law.

This thesis verifies that no laws in Islam are immutable. Immutability is only applicable to faith, values and ultimate goals in Shariah. Those laws which look immutable even in ritual part of the religion are not actually immutable and are subject to change under special circumstances. Islamic laws have been developed out of certain conditions and necessities of the time and space. This flexibility must be known as the essential feature of the Islamic law. The framework for this flexibility and change has been predicted and verified in the main sources of Shariah, i.e. the Quran, the Sunnah, Ijma, Qiyas, Aql and Urf. The primary source of the Islamic law (the Quran) is, in itself, flexible on the basis of the analysis that the Quranic legislation leaves room for flexibility in the evaluation of its injunctions. The Quran is not specific on the precise value of its injunctions, and it leaves open the possibility that a command in the Quran may sometimes imply an obligation, a recommendation or a mere permissibility. Commands and prohibitions in the Quran are expressed in a variety of forms which are often open to interpretation. The main devices for change predicted in Shariah are Ijtihad, Maslaha and Al-ahkam-al-thanaviiah (secondary rules). Chapter One discusses the concept and development of Ijtihad. In Chapter Two, the role of Ijtihad in providing the Shariah with flexibility will be analysed. Chapter Three outlines how in practice Ijtihad has been effective in making the Islamic law flexible. Chapter Four is devoted to the concept of Al-ahkam-al-thanaviiah (secondary rules) as it has been developed by Muslim jurists. Chapter five will deal with the theory of Maslaha as a dynamic device in Shariah. Finally, in chapter six, the role of Al-ahkam-al-thanaviiah and Maslaha in Islamic Iranian law will be examined as it has beeen developed over the years.

While the Islamic financial industry has been growing rapidly and has become a significant sector in many countries, it is often criticised of not complying with Shariah (Islamic law) principles and not fulfilling the goals of Islamic law, maqasid al Shariah. Against the positive financial developments of Islamic finance and Islamic project finance (IPF) in particular, it is important to critically examine the underpinning aspects of IPF from the Shariah and maqasid perspectives. Hence, this study aims to explore the contracts used in IPF with the objective of examining their practice in Islamic financial institutions from two dimensions: the Shariah compliance and the adherence to maqasid al Shariah. Regarding the Shariah component, the study commences with a critical explorative review of the main IPF contracts and their structures. The study then develops two frameworks for Shariah analysis. The first framework relates to compliance with the AAOIFI (2010) Shariah Standards and the second one relates to the overall compliance of the contracts with Islamic commercial law. Four real life contracts, as the case studies, are studied—mudarabah, murabahah, ijarah and istisnaa—and examined against these two Shariah compliance frameworks. The second component of the research analyses maqasid al Shariah by examining the classical and contemporary discourses and establishes the relationship between Islamic commercial law and maqasid. In addition, the sampled contracts of mudarabah, murabahah, ijarah and istisnaa are deconstructed into their particular rulings and the rulings are linked to their appropriate maqasid through an inductive analysis. Moreover, a framework is developed to examine and quantify the maqasidic compliance. In developing this framework, it was pertinent to assign weights to the maqasid. Therefore, the study first constructed an index—the Maqasid al Shariah Index (MSI)—to measure the relative weights of maqasid in general, and then applied the index to weigh the maqasid of economic activities. The conceptual frameworks developed were then applied to actual IPF contracts to examine their maqasid compliance. The empirical results show relatively low compliance scores and do not reflect a positive status of Islamic finance when it comes to Shariah compliance and realisation of maqasid. Nevertheless, the study provides useful lessons and information that can be used to evaluate the current practice of IFIs. This initial step is necessary in order to reshape the industry towards the realisation of the social and developmentalist aspects of Islamic economics. More importantly, the study contributes towards the construction of a normative and ethical philosophical basis for the Islamic moral economy.