This thesis examines the views held by Muh&dotbelow;yi al-Din Ibn al-`Arabi on shari`ah, based for the most part on his magnum opus, al-Futuh&dotbelow;at al-Makkiyyah. It explores his attitude towards the shari`ah as practical religious law and his teachings concerning its sources and interpretation. Despite being misunderstood on account of his s&dotbelow;ufi background and his well-known criticism of the fuqaha' Ibn al-`Arabi's teaching, in fact, advocated a strict and consistent orientation to the shari`ah. This thesis shows how, on the one hand, his criticism of the jurists was due to their inability to achieve the high standards that he set for interpreting the law, and how, on the other, his s&dotbelow;ufi beliefs complemented, rather than weakened, the foundations of the shari`ah. It is clear that the principle underlying his approach to the shari`ah's application was his belief in its being a manifestation of God's mercy. He demonstrates this by pointing to the direct sources of God's law, accepting differences in legal opinion and seeking as much as possible the deeper spiritual and universal meaning of God's intentions in the law.

Having been influenced by the Muslim reformist ideas championed by Muhammad 'Abduh and his colleagues, Hamka attempted to disseminate and ameliorate the reform ideas in his country, Indonesia, through the means available to him; that is by preaching and writing. He was among the most prolific contemporary authors, having written 113 books including his monumental Tafsir al-Azhar. In this commentary, Hamka has probably included the sum of his ideas particularly those pertaining to religious aspects. With regards to the religious aspects, he mostly discusses the problems of theology, sufism and law. Hamka's conception of the law portrays his challenge and struggle towards the abolishment of taqlid (uncritical acceptance of the decisions made by the predecessors) and the implementation of ijtihad (personal opinion). In addition, his legal comments and interpretations are quite different from many of the comments made by sectarian commentators, who saw in tafsir a forum for defending their schools of thought. However, Hamka steered away from any school of thought and tried to be as objective as possible in his work, an attempt reflected in his method of interpreting the problematic legal verses. Moreover, he did not limit himself to a single method of interpretation. On the contrary, he availed himself of both the tafsir bi al-ma'thur method (interpretation derived from the Prophet, the Companions and the Successors) and the tafsir bi al-ra'y method (interpretation based on reason).

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Pas de résumé / Doctorat en droit / info:eu-repo/semantics/nonPublished

Thesis (LLD (Mercantile Law))--University of Stellenbosch, 2006. / The objective of this study is to examine the significance of postmodern insights regarding interpretation (especially the rejection of intentionalism) and subjectivity for contractual interpretation theory. In Part One (consisting of chapters 2-5), the leading postmodern insights on interpretation, individual autonomy, texts and intentionalism are discussed. This is done by analysing the present interpretive practice in four chapters: 1) Different theories of interpretation ranging from objectivism and natural law theories to post-structuralism are discussed in chapter 2. 2) In chapter 3 individual autonomy (as advocated by liberal theorists) is contrasted with communitarianism in order to problematize the notion of contracting parties as autonomous, self-regulating beings. By highlighting criticism against liberalism and communitarianism, and also by suggesting critical self-rule as an alternative, the assertion that contracting parties are autonomous and self-regulating is contested. 3) The process of textual definition is critically analysed with emphasis on the position reflected by the application of the parol-evidence rule and also post-structuralist ideas on the definition of texts in chapter 4. It is shown that textual definition consists of interpretation rather than identification. 4) The nature of intention and the process of intention “discovery” are analysed in chapter 5. Because of the centrality of intention in contractual practice, alternative theories on intention (and its role during interpretation) are postulated and it is suggested that post-structuralism can provide a critically reflective theory of intention. It is clear (from the critical analysis of intentionalism) that the way intention is presently approached is theoretically flawed. It is also apparent from the critique of liberal beliefs held regarding the nature of interpretation, subjectivity and the definition of texts that the theoretical foundations of these beliefs are fundamentally flawed. A critical re-imagination of contractual interpretation is necessary. In Part Two, questions about the justifiability of the present interpretive theories are posed. In chapter 6 the practical implications of a new theoretical basis for contractual interpretation are considered by examining the way various rules of interpretation are influenced by the new theoretical basis of interpretation. Three “rules” are examined: 1) The golden rule of interpretation is examined because of its reliance on intentionalist assumptions; 2) the parol-evidence rule is examined because of its relation to positivist assumptions about the definition of texts; 3) the relevance of bona fides as a substantial remedy during the interpretation of the contract is analysed to reveal assumptions about the nature of legal subjectivity in which the present consideration of the bona fides is grounded. It is shown that rules depend not on their content for operation, but rather on the assumptions upon which they are grounded. In short, we do not have to do away with our rules of contractual interpretation, but we have to re-evaluate how we apply those rules. The final part of this dissertation consists of a summary of the conclusions drawn during the course of this study.

Submitted by Filipe dos Santos (fsantos@pucsp.br) on 2018-10-05T12:15:00Z No. of bitstreams: 1 Ruy Veridiano Patu Rebello-Pinho.pdf: 1247599 bytes, checksum: c44c5bdfc39b4b689b84b1dd0766568e (MD5) / Made available in DSpace on 2018-10-05T12:15:00Z (GMT). No. of bitstreams: 1 Ruy Veridiano Patu Rebello-Pinho.pdf: 1247599 bytes, checksum: c44c5bdfc39b4b689b84b1dd0766568e (MD5) Previous issue date: 2018-08-31 / The purpose of this dissertation is to emphasize the existence of the duty of legal independence of the registrar and the notary, who are responsible of a legal function constitutionally decentralized by the Charter of 1988 and disciplined by Law 8935/94, the Law of Notaries and Registrars. Independence is not a state of the person, but takes place contemporaneously in an argumentative intersubjective process of cooperative order. This mechanism of decentralization of powers and competences outside the structure of the State, gives an independent legal professional a bundle of legal responsibilities to be exercised through an administrative and technical organization, so that along legal independence, that all legal profession implies, goes the management and administration of its resources under private law. Every legal function must be accountable to the society and to be supervised; by law, the inspection and technical standardization of the services is attributed to the Judiciary. In order to concentrate the finite judicial powers in its nuclear activity, the Judiciary has an important role in ensuring the legal independence of the registrar and the notary as legal duties to society / O objetivo desta dissertação é sublinhar a existência do dever de independência jurídica do registrador e do notário, que exercem função jurídica descentralizada constitucionalmente pela Carta de 1988 e disciplinada pela Lei 8935/94, a Lei dos Notários e dos Registradores. Independência que não é um estado da pessoa, mas que ocorre, na contemporaneidade, em um processo intersubjetivo argumentativo de ordem cooperativa. Esse mecanismo de descentralização de poderes e competências para fora da estrutura do Estado, atribui a um profissional do Direito independente um feixe de responsabilidades jurídicas a serem exercidas por meio de uma organização administrativa e técnica, de modo que ao lado da independência jurídica, que toda profissão jurídica implica, se encontra a gestão e administração de seus recursos em regime de direito privado. Toda função jurídica deve prestar contas à sociedade e ser fiscalizada; por lei, a fiscalização e a uniformização técnica das serventias é de atribuição do Poder Judiciário. A fim de concentrar as energias judiciárias, que são finitas, em sua atividade nuclear, o Poder Judiciário tem importante atuação no sentido de garantir a independência jurídica do registrador e do notário como deveres jurídicos para com a sociedade

Contemporary conflicts over such issues as abortion, same-sex marriage, circumcision, and veiling highlight the need for renewed reflection on the justification of religious norms and authority. While abstract investigation of these questions is necessary, inquiry into them is not foreign to religious traditions. Philosophical engagement with these traditions of inquiry is both intellectually and practically advantageous. This does not demand, however, that these discussions be conducted within a discourse wholly internal to a particular religious tradition; dialogue between a religious tradition and philosophical reflection can be created that is mutually beneficial. To that end, this dissertation explores a central issue in philosophy of halakha (Jewish law): the relation between the justification of halakhic norms and halakhic-legal practice. A central component of philosophy of halakha is the project of ta'amei ha-mitzvot (the reasons for the commandments). Through such inquiry, Jewish thinkers attempt to demonstrate the rationality of Jewish religious practice by offering reasons for halakhic norms. At its best, it not only seeks to justify halakhic norms but also elicits sustained reflection on issues in moral philosophy, including justification and normativity. Still, there is a tendency among its practitioners to attempt to separate this project from halakhic-legal practice. Legal practice is thus isolated from philosophical reflection, and the reasons for the norms do not guide their application. Ta'amei ha-mitzvot therefore also provokes queries in legal philosophy concerning the relation between normative and legal justification. This study explores the relation between the justification of halakhic norms and halakhic-legal practice in modern Jewish thought by placing it into dialogue with both moral and legal philosophy. This occurs in two stages: First, the philosophies of halakha of three influential twentieth-century Jewish thinkers, Yeshayahu Leibowitz (1903-1994), Joseph Soloveitchik (1903-1993), and Eliezer Berkovits (1908-1992) are examined and critically assessed. It is shown that despite the denials of Leibowitz and Soloveitchik, all their accounts of the reasons for the commandments influence their approaches to halakhic-legal practice; they each combine a foundationalist approach to justification with skepticism about the practical normativity of reason; and none of them adequately grounds halakhic-legal authority. However, their skepticism is based on unduly constricted conceptions of reason and untenable alternative sources of normativity, such as will, metaphysics, or revelation. Second, through engagements with the work of Jürgen Habermas and Joseph Raz an alternative to their accounts of the justification of halakhic norms and authority is developed. This alternative is described as critical philosophy of halakha, for it does not attempt to justify halakhic norms or authority but articulates the rational constraints on, and practical consequences of, their justification. In terms of justification, this account is contextualist, that is, pragmatic and intersubjective, rather than foundationalist, and it is responsive to failures of justification. Correspondingly, it entails pluralism yet avoids moral and epistemic relativism. In terms of authority, this account is instrumentalist and thus mediates between normative and legal justification without reducing the latter to the former. Consequently, authority is circumscribed as opposed to total. Critical philosophy of halakha therefore represents a method whereby the modern religious believer may hold herself accountable to both her faith and other individuals.

Il tema dell'inculturazione del diritto canonico è analizzato in rapporto al problema della resa operativa del diritto attraverso i processi di interpretazione e di applicazione della norma; in particolare, tali processi sono esaminati sotto il profilo della loro funzione trasformatoria del diritto vigente in diritto vivente, inteso come il diritto emergente dall'impatto della norma generale e astratta con la realtà sociale. Tale categoria concettuale è vagliata quanto alla sua compatibilità con la struttura ed i principi fondamentali dell'ordinamento ecclesiale. A tal fine,ci si sofferma sulla possibilità e sulle condizioni di legittimità di un'interpretazione creativa del diritto ecclesiale; in particolare, come si possa garantire la permanenza e l'integrità degli indefettibili valori ecclesiali all'interno di un diritto vivente prodotto da un'interpretazione creativa del dato giuridico ecclesiale. Successivamente, si esamina l'influenza che l'elemento culturale e locale può giocare in riferimento al processo di interpretazione del dato divino-rivelato, nel conformare l'orizzonte di valori e le aspettative di giustizia dei soggetti che vi concorrono, e pertanto nel configurare il diritto canonico effettivamente vivente nelle diverse comunità costitutive della Chiesa universale, avuto altresì riguardo all'incidenza che il riconoscimento di un diritto vivente culturalmente orientato ha sulla comprensione della cattolicità della Chiesa, come la capacità di questo ordinamento di conglobare il maggior numero possibile di componenti antropologiche e valoriali differenziate senza disgregare la propria identità e unità di fondo. / Inculturation of canon law is regarded under the perspective of the processes of interpretation and application through which the norm becomes operating. These processes are examined in particular under the profile of their transforming function of legally binding law in 'living law', understood as the law emerging from the impact of a general and abstract rule with concrete social reality. The notion of 'living law' is questioned as to its compatibility with the structure and basic principles of the ecclesial juridical order. To this purpose it is examined if and to what extent canonical interpretation can be defined a creative act, and how it could be granted the integrity of constitutional ecclesial values within a living law issued from a creative interpretation of ecclesial laws. Then it is examined the role played by the cultural horizon of an ecclesial community in the interpretation of the divine Revelation's contents, thus shaping the canon law actually living in it, and the incidence that this culturally orientated living law has on the comprehension of the catholicity of the Church, from the viewpoint of its capability to settle the widest range of anthropological experiences and human values without losing its fundamental identity and unity.