This study aims to discuss the question of foreign influences on early Islamic law. This issue has been dealt with from various perspectives. Some scholars claim that Roman law was the predominant influence in formulating Islamic law, both in its legal concepts and its application. Certain scholars, however, maintain that the provincial law influenced Islamic law more, arguing that Roman law was not really practiced in former Greek provinces where Islamic law was formulated. Still others argue that Jewish influences are also believed to have shaped the development of early Islamic law, considering that Babylonian schools were situated close to the Hanafi school. / The problem of foreign influences on early Islamic law, however, is a matter of degree only as far as the pre-Islamic Arab traditions are concerned. It is believed that certain institutions derived from pre-Islamic Arabic society, the Qur' an and the traditions of the Prophet provided the early Muslims with a considerable wealth of values, norms and broad principles as well as specific rules which were to guide the Muslims in their legal speculation in order to develop positive law.

This thesis is an attempt to question the established thesis of Joseph Schacht that Islamic law, as we know now, did not exist during the greater part of the first century of the Hijra. His argument rests on the notion that the Qur'an was only utilized as a secondary source in legal matters, and the Prophet's works were out of legal context. Thus, Muslims at that time mostly relied on customary law which was practiced in pre-Islamic Arabia. Consequently, he claims that Islamic law began to develop at the end of the first century of the Hijra, as a result of the measures taken by the Umayyad Caliphs and their Governors. / Contrary to this thesis, some scholars have shown some evidence to argue that Islamic law did exist during the life time of the Prophet. The Qur'an has played a significant role in formulating law as well as solving legal problems in the very beginning of the period. The key figure to apply such law is the Prophet himself and his companions, who, after him, acted as muftis. Moreover, all the Prophet's action including those related to legal matters had been transmitted orally and recorded in a written form. This transmission is owed to the isnad system which was introduced since the life time of the Prophet. After the Prophet's death, his companions pursued these legal activities by issuing legal decision which subsequently developed and became a model of Islamic law. (Abstract shortened by UMI.)

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The thesis examines the origins and function of legal theory ( usul al-fiqh) within the context of the development of early Islamic law. I argue against the depiction of the development of law as a series of compromises between traditionalism and rationalism. Rather, by evading the demands of traditionalism, law evolved into a complex doctrinal entity rooted in the social structures of third-century Abbasid society. This revision of the development of law provides a context to evaluate early works of legal theory. Moreover, in context of my analysis of the development of law, I attempt to explain the emergence of legal theory as an independent discipline and its function within the greater structure of law.

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In this dissertation, I undertake an empirical analysis of Iranian punitive practices over the last century. In thiscontext, I set out to investigate three issues. First, I critically examine the claim that modernity is characterizedby a diminution of corporal punishments, considering both the older humanist-progressivist verions of this claim and therevisionist-Nietzschean versions that have been advanced by several scholars including Michel Foucault, David Rothman,Michael Ignatieff, John Langbein, Gerhard Oestreich and Marc Raeff. In particular, I examine the relationship betweenmodern torture and might be called the "disciplinary process" that is said to characterize modernization. Second, I evaluate Chomsky and Herman's hypothesis that developing societies are characterized by a specific economy of violence that might be described as "state terrorism." Third, I test the utility of Foucault's theoretical approach to the study of power. / Dans cette these, j'entreprends une analyse empirique des coutumes punitives iraniennes depuis un siecle. A cette fin, j'examine trois aspects. Premierement, j'examine d'une maniere critique le point de vue suivant lequel, la modernite se caracterise par une diminution des punitions physiques, tout en considerant l'interprétation traditionnelle humanistico-progressive de ce point de vue et les interpretations Nietzscheo-revisionnistes qui ont ete suggerees par plusieurs penseurs, tels que Michel Foucault, David Rothman, Michael Ignatieff, John Langbein, Gerhard Oestreich, et Marc Raeff. Plus precisement j'examine la relation entre la torture au XXieme siecle et ce que l'on pourrait appeler le "processus disciplinaire" qui, soi-disant, caracterise la modernisation. Deuxiemement, j'évalue les hypothèses de Noam Chomsky et d'Edward Herman suivant lesquelles les sociétés en voie de développement sont caractérisées par la violence d'une manière bien précise, et qui pourrait etre decrite comme "une économie de terrorisme d'état." Troisièmement, j'examine l'utilité de l'approche théorique de Michel Foucault pour l'etude du pouvoir. fr

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