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2 results

  • 2 - The Great Divide in Legal Discourse: Toward a Global Historical Ontology of the Concept of Positive Law

  • from Part I - The Concept of Law
  • Baudouin Dupret
  • Book:
    Positive Law from the Muslim World
    Published online:
    16 June 2021
    Print publication:
    24 June 2021, pp 53-75

  • Summary

    If one accepts that there is a remarkable continuity in the human propensity to formalize and categorize the world, it is necessary at the same time to note the no less obvious differences in the methods of conceiving and implementing this process of efficacious formalization, but also in the finalities associated with it. In this respect one could speak of legal revolutions just as one speaks of scientific revolutions. The idea of legal revolution suggests two things: one, substantial, is that there have been break points in how the world has been categorized in the legal sense; the other, of a more methodological nature, is that it would no doubt be useful to make good use, in the history of law, of what the philosophy and history of science and technology have continued to accumulate over several decades.

Positive Law from the Muslim World
  • Jurisprudence, History, Practices
  • Baudouin Dupret
  • Published online:
    16 June 2021
    Print publication:
    24 June 2021
  • Can the concept of law be indiscriminately extended to times and places in which it did simply not exist? Such an extension is at best useless and at worst misleading. Producing an intelligible jurisprudence of the concept of law means keeping it within the reasonable boundaries of its contemporary common-sense understanding: positive law. Parallel to Western societies in which it firstly emerged, the concept of positive law developed in many places, including countries characterized as Muslim. There, it faced other existing normativities, like customs and the Sharia. This book aims, from the Muslim world's perspective, to clarify the uses of the concept of law and the ways of studying it, to describe some of its historical developments, including the ideas of constitutional law, customary law and forensic evidence, and to describe present-day practices, including reference to law sources, rules and interpretation.