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TEACHINGS OF ISLAMIC LAW AT THE FACULTY OF LAW OF THE UNIVERSITY OF SARAJEVO IN THE PERIOD FROM 1946 TO 2016 •

Ehlim~ana MEMISEVIC*

I. Introduction

As one of the world's great legal systems, Islamic law is taught at various academic institutions across the Muslim and non-Muslim world, with the application of different methodological approaches and in dif­ferent institutional frameworks. With respect to the aim of the study, one can identify several models of study. Thus, Islamic law is studied within the program for education of ulama, within the program for education of Sharia judges, program for comparative study of law and within the program of general Islamic studies.1

Considering the abovementioned, besides faculties of theology, Is­lamic law is taught at law schools as well. Namely, the courses on Islamic law and jurisprudence are an integral and mandatory component of the curricula of all law schools in the Muslim world. Besides that, there has been an increase in the number of courses on Islamic law at law schools in the United Kingdom, the United States and Europe in the recent years. 2

Research Assistant, Facult ofLaw, University of Sarajevo. 1 Fikret Karcic, Islamske teme i perspektive, (Islamic Themes and Perspectives) (Sarajevo:

El-kalem, 2009), pp. 33--46.

Shaheen S. Ali, "Approaches to Teaching and Learning of Islamic Law: Sharing Some National and International Perspectives'~ http: //www.swlaw.edu/pdfs/jle/jle612ali. ~accessed 15thMay2016.

340 II. Tiirk Hukuku Tarihi Kongresi Bildirileri

Here we can identify different approaches in the study and different terminology used. Namely; at law schools in Muslim countries1 Islamic law is taught as positive law (the only or one of the sources) 3

1 mostly within programs for education of Sharia judges. In the West1 Islamic law is taught within the comparative law program or within program of Islamic studies in general. Within the latter1 Islamic law is studied in a broader context, with particular emphasis on the possibility of applying Islamic law in the c;:ontemporary period. According to this1 term Sharia (or Sharia law) is used in Muslim countries1 while non-Muslim countries use term Islamic or sometimes Muslim law.

In this research we will analyze how Islamic law is being taught at the Faculty ofLaWj University of Sarajevo in the period between 1946-2016. The research will be based on the analysis of the curricula of the courses within which Islamic law is taught at graduate1 postgraduate and doctoral level1 as well as textbooks and other mandatory and additional literature.

Namely; Islamic law has never been taught as an independent course

at the Faculty of LaWj University of Sarajevo. It was always taught within two disciplines: general (and later comparative) legal history and the his­tory of the state and the law of Bosnia and Herzegovina (national legal history). Therefore1 one can speak of two models of study: 1) in compara­tive historical and legal context, 2) as part of the former positive law in the context of the history of the state and the law of Bosnia and Herzegovina.

In regard to teaching oflslamic law at the Faculty of Law in Sarajevo we can identify three main periods: 1) "socialist period" - since the estab­

lishment of the Faculty of Law in 1946 till the beginning of the 1990s; 2) since the 1990s till the introduction of the Bologna system of education in 2005; 3) since the reform of the educational system 2005 / 06 until present.

In this paper1 after pointing out the brief overview of the historical context of the application of Islamic law in Bosnia and Herzegovina1 we will analyze teachings oflslamic law at the Faculty of Law in Sarajevo in

3 Fikret Karci<:, Studije o islamskom pravu i institucijama (Studies of Sharia Law ant its In­stitutions) (Sarajevo: El-Kalem i CNS, 2011), pp. 166-211.

Teachings Of Islamic Law At The Faculty Of Law Of The University Of

Sarajevo In The Period From 1946 To 2016 [Memisevic] 341

comparative historical and legal context, and as a former positive law in the context of the history of state and law of Bosnia and Herzegovina.

II. Historical context of the application of Islamic law in Bosnia and Herzegovina

Islamic law'in Bosnia and Herzegovina has been applied since the establishment of Ottoman rule until the end of the Second World War.4

As part of the Ottoman state in which the prevailing principle was the integration of religion and state (din ve devlet) or the model of the organic unity of religion and state, Islamic law has been a source of positive law. As such, Islamic law was applied on MuslimsoJ,1 the personal principle. At the same time, members of recognized religions - members of Christian denominations and Jews - had their own confessional or­ganizations (millet) and the right to apply their religious and customary law in matters of personal status (marriage, family, inheritance) and ecclesiastical matters. Besides that, secular law, contained in the kanuns, which included customary law ( urj) which had to be in accordance with the Islamic law, was applied on the territorial principle i.e. on all subjects of the Ottoman State. Therefore, by the establishment of the Ottoman rule in Bosnia and Herzegovina, Islamic law became positive law for the Muslim population of Bosnia and Herzegovina and was applied through state sharia courts. 5

By the Ottoman reforms, known as the Tanzimat (1839-1876)1 the application oflslamic law was limited. Namely, the jurisdiction of Sharia courts was limited to marital, family and inheritance law of Muslims and waqf affairs. Sharia courts became special judicial institutions.

As part of the Austro-Hungarian occupation and during the first Yu­goslav state, Muslims had the status of a recognized religious community with the right to apply Islamic law in personal matters by the state Sharia

4 Karcic, Studije o serijatskom pravu i institucijama, pp. llS-131

Mustafa Imamovic, Uvod u historiju i izvore bosanskog prava (Introduction to the History and Sources of Islamic Law) (Sarajevo: Pravni fakultet Univerziteta u Sarajevu, 2006), pp. 38.

342 II. Turk Hukuku Tarihi Kongresi Bildirileri

courts. In this sense, their status was similar to the status of other Muslim minorities living in non-Muslim countries.6

Application of Sharia law for Muslims in Yugoslavia was not an option, but an obligation, since the Treaty on the Protection of Minori­ties concluded in Saint-Germain on 10 September 1919, the Kingdom of Serbs, Croats and Slovenes committed to ensure that the issues of family and personal status of Muslims would be resolved according to Islamic law and Muslim practices (Article 10).7 These provisions were transferred to St. Vitus Constitution, that stipulates in Article 9 that "in family and inheritance matters of Muslims the state Sharia courts will judge". 8 As within the Austro-Hungarian rule in Bosnia and Herzegovina, the application of Sharia law was not a matter of religious autonomy, but especially regulated branches of the state judiciary.9

This situation lasted until 1946, when the Sharia courts were abol­ished by the Law on the abolition of Sharia courts in the territory of the People's Republic of Bosnia and Herzegovina. By that, the Islamic law officially ceased to be a source of positive law in Bosnia and Herzegovina. However, even though the norms of Sharia law were not sanctioned by the state coercion, these norms were still relevant to Muslims in Bosnia and Herzegovina. Namely, since the norms of Sharia law consist of reli­gious, ethical and legal sanctions, in the absence oflegal sanctions, their religious and ethical perspective remains relevant. In this way, Sharia norms in Bosnia and Herzegovina have transformed from legal into reli­gious and ethical norms and as such are still relevant for Muslims.10

6 Fikret Karcic, "Od prava do etike: proces modernizacije i reinterpretacija serijata u BiH," (From Ethics to Law: the Process of Modernization and Reinterpretation f Sharia Law in Bosnia and Herzegovina) 1 Godi5njak Pravnogf akulteta u Sarajevu, LII ( 2009) 1 225-234.

Imamovic, Uvod u historiju i izvore bosanskogprava, pp. 83. 8 Imamovic, Uvod u historiju i izvore bosanskogprava, pp. 83. 9 KarCic, Studije o serijatskom pravu i institucijama, str. 127. 10 KarCic, "Od prava do etike: proces modernizacije i reinterpretacija serijata u BiH," pp.

225-234

Teachings Of Islamic Law At The Faculty Of Law Of The University Of

Sarajevo In The Period From 1946 To 2016 [Memisevic]

III. Teaching of Islamic law at the Faculty of Law in

Sarajevo in period from 1946 to 1990

343

At the Faculty of Law in Sarajevo1 Islamic law has never been taught as an independent course.11 In the period between the establishment of the Faculty of Law ( 1946) until the beginninge of 1990s Islamic law was only mentioneq within the courses General Legal History and History of the State and the Law of Nations of Socialist Federative Republic of Yugosla­via. In addition1 even this mentioning of Islamic law contained certain incorrect information.

For example1 in the first textbook of General Legal History112 which was

taken from the Faculty of Law in Zagreb as their officialliterature1 Islamic law was described by Church (Christian) terms. For eta:ffiple ijma was defined as 11a unanimous decisions of the fathers of the Islamic church".13

Besides that1 by pointing out that Islamic law was comprehensive and contained "religious dogma on cleaning and washing1 prayer1 fasting1

pilgrimage to Mecca1 war against infidels;' it was emphasized that the rules of war were particularly inter.esting "because in many ways these rules show ideological superstructure for development and the life of a given society and the state:' In this regard1 it is stated that "Muhammad said: 'One day the war was more worthy to God than a whole month of fasting'1 which may explain "the bloody history of the Muslim empire which was characterized by permanent war".14

After that1 the basic information about "division of Islamic law on civil law and criminal law" was provided. In this regard it was stated that

11 One of the founders of Faculty of Law in Sarajevo was professor Mehmed Begovic. He was the first professor of Sharia Law at the Faculty of Law in Belgrade. Muslim students were obliged to study Sharia Law subject instead of Canon law. Mustafa Imarnovic, Biljeske o razvitku i metodu historijsko-pravne nauke (Notes on the Development of the Methods of Legal History) (Sarajevo: Sarnostalno autorsko izdanje, 2008), pp.162.

12 Ferdo Culinovic, Opca historija driave i prava: feudalna, burioaska, socijalisticka driava (General Legal History: Feudal, Bourgeois, Socialist State). (Zagreb: Strucni odsjek N.S.0. Zagrebackog sveucilista, 1949).

13 Culinovic, Opca historija driave i prava, pp. 190. 14 Culinovic, Opca historija driave i prava, pp. 192.

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the civil law included the "norms and laws which were used for solving pri­vate legal relations among· Muslims'~ and that "the class character oflaw" was particularly expressed in criminal law since, "even though the penal­ties were less severe for the less wealthy, they were harder aillicted than the wealthy members of the society who were punished more strictly': 15

Among the crimes and offenses, it was pointed out that the "prop­erty crimes with relatively heaviest penalties and the offenses against morality, which were less severely punished '~ were considered as the most important crimes. Besides that, it was stated that the adultery was considered as most severe delict, which was 11punishable by death" and the 11death penalty was graded and enforced by burial, stoning, cutting heads and hanging:'16

Finally, it was concluded that "the law of the Ottoman state ex­pressed its class character in its content and purpose:'17

In the later textbooks of General History of State and Law (since 196J18

) Islamic law, in addition to the canonical law, was studied in the context of the law in the feudal period.19 It was explicitly stated that sharia law "has the special importance for the history of our nation'' because "it was applied in our countries through several centuries'~ on the one side, and because "the Treaty on the Protection of Minorities concluded in Saint-Germain on 10 September 1919, obliged the old Yugoslavia to ensure that the issues of family and personal law of Muslims and waqf affairs will be resolved according to Islamic law" on the other side.20

15 Culinovic, Opca historija driave i prava, pp. 192. 16 Culinovic, Opca historija driave i prava, pp. 192-193 17 Culinovic, Opca historija driave i prava, pp. 193 18 Bardo Samardzic, Opsta istorija driave i prava (General History of Law and State) (Sa­

rajevo: Univerzitet u Sarajevu, 1963). 19 Bardo Samardzic, Opsta istorija driave i prava II: Feudalni period (General History of

Law and State II: Feudal Period) (Sarajevo: Univerzitet u Sarajevu, 1964), pp. 153-168. 20 Samardzic, Opsta istorija driave i prava, pp. 153-154

Teachings Of Islamic Law At The Faculty Of Law Of The University Of

Sarajevo In The Period From 1946 To 2016 [Memisevic] 345

The sources of the law, matrimonial law and criminal code are then studied, pointing at the differences between the "sacral" (fiqh) and secu­lar ( kanuns) Sharia law. 21

In his textbook Opsta istorija driave I prava II: pregled razvitha driave I prava u feudalnom periodu11 (General History of State and Law: Overview of the Development of State and Law in the Feudal Period) Borda Samardiic describes the relation between the spiritual and sacral government in the feudal period in the Ottoman Empire23

, as well as the law in the feudal period: the Sharia law (sources, sects, matrimonial law, criminal code).24 ,

The same approach was applied within the course Istorija driave i prava naroda SFRJ (Histories of States and Laws of the ·Peoples of the SPRY). Namely, Islamic law was studied as the "law in our states under the Turks'~ defining in a short text (three pages long) the Sharia law, its definition and sources but making a clear distinction between the "sacral" and the state law.25 It is particularly stressed that the Sharia law had "religious (confessional) character and as such it is obligatory for Muslims".26 For this reason, the subject of the study was canon law and common law that regulated family law, matrimonial law and inheritance law for non-Muslims.

21 Samardzic, OpSta istorija driave i prava, pp.157-167. 22 Dordo Samardzic, OpSta istorija driave i prava II: pregled razvitka driave i prava 11 feu­

dalnom periodu (General History of Law and State II: Overview of the Develqpment of State and Law in the Feudal Period (Sarajevo: Univerzitet u Sarajevu, 1963 ).

23 Dordo Samardzic, Opsta istorija driave i prava II, pp. 7 4, Dordo Samardzic, Opsta istorija driavei prava ( 1963 ), pp. 149-163; Dordo Samardzic, Opsta istorija driave i prava (Gen­eral History of Law and State) (Sarajevo: Univerzitet u Sarajevu, 1966), pp. 333-349.

24 Dordo Samardzic, OpSta istorija driave i prava II, pp. 149-161, Dordo SamardZic, Opsta istorija driave i prava (1963), pp. 250-259, Dordo Samardzic, OpSta istorija driave i prava (1966), pp. 349-361.

25 Avdo Suceska, Istorija driave i prava naroda SFRJ (Histories of States and Law of the Peoples of the SPRY) (Sarajevo: ,,Svjetlost" OOURZavodza udzbenikeinastavnasred­stva, 1971), pp.116-119, (edition 1981), pp. 120-124, (edition 1988), pp. 121-124.

26 Suceska, Istorija driave i prava naroda SFRJ (1981), pp. 123.

346

Iv. Teaching of Islamic law at the Faculty of Law in Sarajevo in period from 1992 to 2005

In the period from 1992 until the reform of the educational system, i. e. introduction of Bologna system in Bosnia and Herzegovina, the Is­lamic law is presented in more details within the course General History of State and Law. Namely, in the textbook, Opca historija driave i prava (General History of State and Law) that was used until 2007, apart from the sources of th~ law, matrimonial law and criminal laWj which are the topics elaborated in other textbooks as well, chapter "the Arabian State" discusses the law of real property, the law of obligations, law of inheri­tance and the organisation of courts and judicial proceeding.27

Besides that, the Islamic law was studied in more details within the course Historija driave i prava Bosne i Hercegovine (The History of State and Law of Bosnia and Herzegovina) as well. This course was introduced after the international recognition of Bosnia and Herzegovina as an inde­pendent and sovereign state, instead of the course Istorije drzava i prava naroda SFRJ (Histories of States and Laws of the Peoples of SPRY). Within this course the Ottoman period of the history of Bosnia and Herzegovina was taught in more details. Namely, chapter "Bosnia under the Ottoman Empire'~ within the sub-chapter ''.Autonomy law in Bosnia during the Otto­man era'' studied the sources of the law (of the Sharia law), criminal code, matrimonial laWj inheritance law and judicial organisation.28

V. Teaching of Islamic law at the Faculty of Law in Sarajevo in period from 2005 to 2016

According to the reform of the teaching curriculum that is being applied since the 2005/2006 academic year29

, the Islamic law is stud-

27 Raifa Festic, Opca historija driave i prava (General History of Law and State) (Sarajevo: Studentska stamparija Univerziteta u Sarajevu, 1998), pp.137-146.

28 Mustafa Imamovic, Historija driave i prava Bosne i Hercegovine (The History of State and Law ofBosnia and Herzegovina) (Sarajevo: Magistrat, 2003 ), pp. 131-137.

29 Vodic kroz dodiplomski studij na Pravnom fakultetu Univerziteta u Sarajevu (Guide for Udergraduate Studies at the Faculty of Law, University of Sarajevo) (Sarajevo: Pravni

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Sarajevo In The Period From 1946 To 2016 [Memisevic] 347

ied within a comparative historical and legal perspective - "vertical comparison" and as one of the elements of Bosnian law during the Otto­man period in the history of Bosnia and Herzegovina.

Therefore, it is possible to identify two models of the study of the Islamic law at the Faculty of Law, DepartmenCof the History of Law and Comparative Law: study of the Islamic law from a comparative historical and legal persp'ective and the study of the Islamic law as a once positive law within the history of state and law (of Bosnia and Herzegovina).

On the basis of the analysis of teaching curricula, textbooks and other recommended obligatory and additional references, in the text be­low we will provide an overview of both perspectives of the study of the Islamic law at the Department of the History of Law and the Comparative Law in the period from 2005 to 2013 at the undergraduate, postgraduate and doctoral studies.

VI. Study of Islamic Law from the comparative historical and legal perspective

1. Undergraduate studies

Since the 2005/2006 academic year changes have been introduced in the concept and duration of the study of General history of state and law within the newly introduced curriculum at the Faculty of Law in Sa­rajevo. Instead of a two-semester course, two one-semester courses were introduced: Comparative history of law, taught at the first year of studies, and Modern legal codifications, taught at the second year of studies.

The framework of the course Comparative history of law includes the study of representational legal systems from the ancient times until the modern era, thus giving overviews of state and law of specific coun­tries, according to the adopted presentation structure: (I) State, which includes consideration of the historical context concerned, organisation

fakultet Univerziteta u Sarajevu, 2005).

348 II. Turk Hukuku Tarihi Kongresi Bildirileri

of government, state ideology, courts and judicial proceedings and (II) Law, which includes sources for the cognition of the specific law, law and justice concept, substantive law, including personal status, property law, family law, inheritance law, criminal code and international law. The rep­resentational legal systems are considered in three periods: old era ( 3000 BC -500AD), Middle Ages (500-1500) and new era (1500-1900).

Within the period of the middle ages (500 - 1500) the focus of the study is on state and law through identifying the key legal ideas and institutes and their study in comparative context in Francia, Byzantine Empire and Islamic State, the states that were important for the further development of the three different legal cultures and civilisations: Or­thodox (Byzantine Empire), western and European continental (Fran­cia) and Islamic (the Islamic State).

Therefore, with respect to the study of the Islamic law within the course Comparative History of Law, an overview of the Islamic law is giv­en in its classical formulation achieved in the period of Abassides. This study includes the study of the sources oflaw, concept oflaw and justice, substantive law (personal status, property law, family law, inheritance law, criminal code and international law )30

•

With regard to the previous textbooks, a deeper insight is given into all of the abovementioned issues of the Islamic law. The study of the historical context of the establishment of the Islamic State, organisation of government, state ideology and organisation of courts and judicial proceeding is followed by the study of the sources oflaw. Apart from the key and fixed sources oflaw - Qur'an as the word of God and the collec­tions ofhadith as '"witnesses' reports on words, actions and tacit assents of the Prophet of Islam and his practice that has a normative character for Muslims"31 the sources of the cognition of the law are studied as well: actions of Muslim legal professionals, registers of Sharia courts ( sijjils) that represent an important source for the cognition of the "law

3° Fikret Karci<:, Komparativna pravna historija: predavanja i pravni tekstovi (Comparative Legal History) (Sarajevo: Pravnifakultet Univerziteta u Sarajevu, 2007), pp.112-119.

31 Karcic, Komparativna pravna historija, pp. 112.

Teachings Of Islamic Law At The Faculty Of Law Of The University Of

Sarajevo In The Period From 1946 To 2016 [Memisevic] 349

in action'~ i.e. the practical implementation oflaw and historiographical sources.

Afterwards, the main meaning of Sharia is given within the concept of law and justice - "a path" that "represents, according to the Muslim belief, a system of norms revealed by God that Muslims should follow in this world in order to achieve salvation".32 A difference is stressed between Shari~ that is "meta-historical and unchangeable" and fiqh as "integrity of human interpretation of Sharia shaped into a legal system"33

,

which is historically conditioned and adjustable and corresponding the jurisprudence of the Roman law.

When it comes to substantive law, the first issue that is studied is personal status of the population of the Islamic state tha:t was categorised to free and unfree (slaves) according to the criteria of freedom and to Muslims and non-Muslims according to the criteria of faith. Their legal position is studied. With respect to free citizens (hurr) legal (in)equal­ity between man and women is emphasized, stressing legal equality for property rights and criminal liability and legal inequality in terms of wit­nessing, inheritance law and compensation for murder and wounding. The study of personal status is followed by the study of legal position of slaves (rekik, 'abd or memluk), non-Muslims that were citizens of the Islamic state whose legal status was ehlu-z-zimme ("the protected) and non-Muslims who had temporary residence permit at the territory of the Islamic state - muste'min ("those who were granted safety").34

The study of property law includes movable (menkul), immovable (gajr ), replaceable (misli) and irreplaceable (kimi) property that are the subject oflegal affairs as well as the endowment ( waqf) as a special type of property placed out of use. After this, the focus of the study moves to ownership, obligations, contracts, manner of concluding them, etc.

32 Karc':ic, Komparativna pravna historija, pp. 113. 33 KarC:ic, Komparativna pravna historija, pp. 114. 34 Karcic, Komparativna pravna historija, pp. 114-115.

350 II. Tiirk Hukuku Tarihi Kongresi Bildirileri

Next topic of the study is family lawwhich includes marriage ( nikah) as a "contract of the civil law concluded between a groom and a bride's legal guardian ( veli), i.e. bride, according to the teachings of the Hanafi school of thought'~ the manner of concluding the contract (through an offer and acceptance before two witnesses), agreeing on the amount of marriage gift (mahr) that the groom presents to the bride, prohibitions in marriage and manners of divorce.

Inheritance 'through will and legal inheritance are topics studied within the section of inheritance law. Basic date is provided on will, con­ditions, validity and manner of fulfilment of will. This study is followed by the study oflegal inheritance orders: 1) persons to whom belong the aliquot part of the inheritance regulated in the text of Qur'an - ashabu-l­feraid, which "represents an intervention into the old Arab way of inherit­ing, where inheritance belonged to relatives of the male line'~ 2) relatives of the male line - asaba and 3) relatives of female line - zevu-l-erham.

Three groups of criminal acts are studied within the criminal code: 1) criminal acts against life and body murder and wounding, 2) crimi­nal acts mentioned in the Qur'an for which there are fixed punishments - hudud ("boundaries") and 3) criminal acts and offences that are not strictly defined, but represent infringement of religious and moral norms

tazir ("reprimand") or bring public order into danger - siyase ("poli­tics). Basic information on acts and punishments is given within every group of criminal acts.

Finally, with relation to the previous textbooks, Comparative History of Law discusses for the first time the Islamic international law - siyer ("procedure, flow") that dealt with the relations between Muslim and non-Muslim countries in the period of war and peace. This includes the classification of countries in the then world as understood by Muslim classical legal professionals ( 1) Daru-l-islam ("the home oflslam"), actu­ally the Islamic territory ruled by a Muslim ruler and pertaining to the Islamic law; ( 2) Daru-l-ahd ("the home of contract") or the friendly non­Muslim countries whose relations with the Islamic state are regulated through a contract that usually provided for the payment of a contribute

Teachings Of Islamic Law At The Faculty Of Law Of The University Of

Sarajevo In The Period From 1946 To 2016 [Memisevic] 351

(haraj) to the Islamic state; (3) Dar-l-harb ("the home of war") or the unfriendly non-Muslim country not having a contract with the Islamic state in which Muslims are not allowed to stay and against which war might be started. The focus of the study then moves to the manner of starting a war (jihad), announcing wat and rul~s of warfare (prohibition of attacking priests, houses of worship, civilians, women and children, destruction of 1;:rops, water poisoning etc). 35

Besides this, in order to provide for the possibility of comparing the texts, the texts referred to after each period include ,paragraphs on family law36

, inheritance law37, civil law38 and criminal code39 from the Ecloga,

Salle law and the Qµr' an as the main sources oflaw of the states dealt with from the period from 500 to 1500.

In the second, amended edition of the textbook issued in 2012 legal texts are omitted, but each period is preceded by general characteristics of the law in a comparative context. Mutual characteristics of the law in the middle ages Mediterranean countries are given here (the relation between religion and law, significance of personal principle in the appli­cation oflaw and importance of the status of an individual for the extent of rights and obligations of an individual) as well as specific characteris­tics oflaw in Byzantine Empire and Francia on one side and the Islamic law on the other side (differences in the sources of law, establishment of codification of religious and secular law, as well as the concept of sanctity of state based on the idea of continuity of the holy Roman Empire as opposed to the Islamic State that was called the khilafah as a type of reli­gious and political leadership without any connotations of sanctity and the concept of a holy country whatsoever) .40

35 Karcic, Komparativna pravna historija, pp. 119. 36 KarCic, Komparativna pravna historija, pp. 121-128 37 Karcic, Komparativna pravna historija, pp. 128-131. 38 Karcic, Komparativna pravna historija, pp. 131-134. 39 Karcic, Komparativna pravna historija, pp. 135-147. 4° Karcic, Komparativna pravna historija, str. 69-70.

352 II. Turk Hukuku Tarihi Kongresi Bildirileri

Course Moderne pravne kodifikacije (Modern Legal Codifications) mostly includes the study of codifications of the 19th and 20th century civil law. The study of the development of codifications in Muslim states of Mediterranean in the pre-modern era is relevant for the study of the Islamic law.41 Slow process of codification taknin ("to draft a law") in the Muslim states is explained by the fact that in the Islamic concept God ( el-hakim) is the lawmaker and the interpreters of the God's law are com­petent scholars (ft lama), while the state's task is to implement such for­mulated law. This is why this concept did not encourage codification.42

This is followed by the explanation of the process of strengthening state legislation or the issuance of kanun that culminated in the Ottoman Empire. Kanun, as "the sultan's custom" (urf-i sultani) or the "ottoman custom" (urfi osmani) is compared with the codifications of the com­mon law in Europe during late Middle Ages43

, etc.

Next topic of the study is the Ottoman civil code (Mecelle) as a "codification of the Sharia law according to the interpretation of the Hanafi school oflaw.44 This study includes the establishment of Mecelle, its sources, system, character and reception45

• This is followed by selected legal texts ( 99 legal rules )46

• Besides this, the focus of the study is on the Egyptian civil code47 as the "synthesis of European and Islamic legal insti­tutions48 that showed new relations between the Sharia and positive law in the Muslim world, using the Sharia law as one of the sources and not the exclusive source of codification. As such it was "appropriate for the

41 Fikret Karcic, Moderne pravne kodifikacije: predavanja i zakonski tekstovi (Modern Le-gal Codifications) (Sarajevo: Pravni fakultet Univerziteta u Sarajevu, 2006), str. 20-22.

42 KarCic, Moderne pravne kodifikacije, pp. 21. 43 KarCic, Moderne pravne kodifikacije, pp. 21. 44 Karcic, Moderne pravne kodifikacije, pp. 96. 45 Karcic, Moderne pravne kodifikacije, pp. 9 5-99. 46 KarCic, Moderne pravne kodifikacije, pp. 9 5-99. 47 Karcic, Moderne pravne kodifikacije, pp. 119-122. 48 KarCic, Moderne pravne kodifikacije, I?P· 121.

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reception in other Arab countries that had decided for modernisation path".49 This is followed by selected parts from the Egyptian civil code.50

Apart from the mandatory courses, the curriculum offers several op­tional courses that include the study of Islamic law. For example, course Pravne kulture (Legal Cultures) includes overView of different legal cul­tures by considering concept of law, prevalence of a particular culture, source oflaw ~d judicial procedure. Legal cultures that are studied from a comparative perspective are: the culture of civil/ European continental law, Anglo-American legal culture, Jewish legal culture, canon law, Islamic legal culture and mixed legal cultures.

Course Stare kodifikacije (Old Codifications), whose aim is the de­velopment of the ability of students to consider certain legal institutes in the historical and comparative perspective, includes the study of Otto­man kanunamas.51

2. Postgraduate studies

Selected topics of great legal cultures are studied from historical and comparative perspective ("vertical comparison") within the mandatory course Izabrane teme iz komparativne pravne historije (Selected Topics from Comparative Legal History) at the postgraduate studies within the History and Law program of study. During the comparison, each ques­tion is considered within three legal systems: a) old Middle Eastern, b) Islamic law and c) modern English law. The topics that are studied and compared within the abovementioned legal systems are: concept and sources oflaw, courts and trials, evolution oflaw, status of an individual, contracts, ownership, marriage and family, crime and punishment ( crim­inal code), war and peace (international law).

The postgraduate study applies changed approach and concept of the study in general, which includes the study of the Islamic law as well.

49 Karcic, Moderne pravne kodifikacije, pp. 121. 5° Karcic, Moderne pravne kodifikacije, pp. 123-128. 51 This subject has not been performed yet.

354 IL Turk Hukuku Tarihi Ko11gresi Bildirileri

Namely, unlike graduate studies where textbooks provide basic data on sources, concept, substantive Islamic law and judicial procedure in the · classical period, postgraduate studies use and critically assess contempo­rary texts on specific issues, with the aim of providing deeper insight into the Islamic law from the historical and comparative perspective.

Therefore, with respect of the concept oflaw; the focus of the study is on Islamic and English law placed in comparative perspective, which, among other thillgs, enhances the authority that brings forth the law; nature and extent oflaw; relations between religion and law; definition of criminal action, types of criminal actions and punishments in both sys­tems, innocence presumption, equality before law; treatment of apostasy and blasphemy, family and property law; etc.52

In terms of sources of law; the study analyses the relation between the English Common Law and the Islamic Law according to the text: John A. Makdisi, "The Islamic Origins of the Common Law': 53 Namely, according to this author, Common Law legal system has its roots in the Islamic law; which explains the similarities between these two legal sys­tems with respect to transfer of ownership of goods at the moment of conclusion of contract, institutions of the Islamic istihqaqa as a means of return ofland after usurpation that later appeared within the English law (the similarity is present in the case oflosing property as well), the existence of jury (lafifa in the Islamic law), lack of appellation in both legal systems; etc.

With respect to the evolution of law the study focuses on the phe­nomenon of legal schools of thought in the Islamic law.54 In this sense, starting from the meaning of the word madhhab as a derivative from Arabic verb "dhahaba yaddhhabu" (to go/ to leave), which means "the

52 Sam Solomon, Kathryn Wakeling, "A Comparison Table of Shari'ah Law and English Law'~ http:/ I europenews.dk/files/Final_ Sharia_ Law_ and_ English_ Law_ Table.pelf, 12th April 2016.

53 John A. Makdisi, "The Islamic Origins of the Common Law;" North Carolina Law Re­view, 77:5(1999),1635-1739.

54 Wael B. Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge Uni­versity Press, 2005), pp. 150-177.

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one being followed" or even more specific "opinion or idea adopted by someone'~55 the study analyses the establishment and development of personal schools, the process of moving from personal to doctrinal schools and survival and distribution oflegal schools of thought.

The issue of the status of an individual is considered within the ques­tion ofidentity of citizens of Muslim countries (in the historical context) or the Islamic state ( u theoretical discourse). The study considers the reflexion of the issue of citizenry in the works of several contemporary Muslim authors - whether the status of citizens of Mµslim countries (or the Islamic state in the theoretical discourse) is determined by religious affiliation of territorial connections, 56 actually "whether Muslims are still dhimmi of the theoretical Islamic state or citizens of historically Muslim national states".57 Therefore, the study considers the issue of citizenship as a new identity of an individual developed in the modern era and the Muslim classical and political religious and legal language that oppose each other very often. The study also raises the question of abandoning historical categories to the benefit of the full citizenship concept, solving the issue of incompatibility of facts and ideas, etc.

When it comes to marriage and family, the study analyses marital contracts in the Islamic family law58

, with a particular attention given to marital contracts in Egypt.59 In this sense, from the historical and com­parative perspective, it provides historical overview of concluding mari­tal contracts in Egypt from the pre-Islam era, through the early Islamic and Ottoman period until the modern age60

•

55 Hallaq, The Origins and Evolution of Islamic Law, pp.150. 56 Fikret KarCic, "Koncept gradanstva u savremenoj islamskoj pravnoj misli'~ (The Con­

cept of Citizenship in Contemporary Islamic Thought), Godifojak Pravnogfakulteta u Sarajevu, XLVI-2003 (2004), pp. 313-329.

57 KarCic, "Koncept gradanstva u savremenoj islamskoj pravnoj misli", pp. 313. 56 Asifa Quraishi, Frank E. Vogel (ed.) The Islamic Marriage Contract: Case Studies in Is­

lamic Family Law (Cambridge, Massachusetts: Harvard University Press, 2008 ). 59 Amira El-Azhary Sonbol, "A History of Marriage Contracts in Egypt," in: The Islamic

Marriage Conti'act Case Studies in Islamic Family Law ed. by Asifa Quraishi, Frank E. Vo­gel. (Cambridge, Massachusetts: Harvard University Press, 2008), pp. 87-117.

60 Sonbol, "A History of Marriage Contracts in Egypt," pp. 90-117.

Finally, with respect to international law in great legal cultures, the study analyses the issue· of jihad in the Islamic law, in accordance with the text "Jihad, Warfare and Terrorism" by Khaled Abou El-Fadl.61 The Islamic concept of jihad is studied as "a hard work or fight for achieving the just aim" that is "absolute and unrestricted as a call for justice and

truth'~ as opposed to the concept of warfare kital which is conditioned and restricted. The difference between the concept of jihad and the "holy war" in Catholic,ism is stressed.62 With this purpose, the study analyses early Christian views to violence, war and peace.63

At the Comparative Law program of study, within the mandatory course Komparativno pravo (Comparative Law), apart from the civil and Common Law, one of the legal systems studied during the program is the Islamic law in the contemporary perspective - "horizontal compari­son''. Besides comparing the selected areas of substantive law in the three abovementioned legal systems, the study analyses the relations between the legal cultures: legal transplants, structure, sources, procedure, etc. Un­like vertical comparison within the Comparative Legal History as a "vertical

comparative law'~ this program of study conducts "horizontal comparison'' of the selected great legal systems in the contemporary perspective64

•

Both programs of study offer optional course dealing with the study of the possibilities of Sharia law reform - Savremeni problemi pravne reforme u muslimanskom svijetu (Contemporary Problems of Legal Reform in the Muslim World). Being the only course dealing exclusively with the Islamic law, it focuses on contemporary issues related to the legal reform in the Muslim world. Considering that legal systems of Muslim countries consists of two components - secular and Islamic law, each attempt of

61 Khaled Abou El-Fadl, ,,Dzihad, ratovanje i terorizam" (Jihad, Warfare and Terrorism), in: Savremene muslimanske dileme: pluralizam, ljudska prava, demokratija, pravda, dzihad, ekstremizam, terorizam, ed. by Ahmet Alibasic, (Sarajevo: Centar za napredne studije, 2010), pp. 273-299.

62 Fadl, ,,Dzihad, ratovanje i terorizam'~ pp. 275. 63 Louis J. Swift, "Early Christian Views on Violence, War, and Peace;' in: War and Peace in

the Ancient World, ed. by Kurt A. Raaflaub, (Blackwell Publishing, 2007), pp. 279-295. 64 This program was not offered yet. Therefore, due to the lack of implementation plans we

can not offer more detailed information on the study oflslarnic law.

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reform1 particularly modernisation is always faced with the issue of pos­sibility oflslarnic law reform1 its legitimisation and methods.

Therefore1 basic questions that are studied within this course in­clude: theoretical and practical possibilities of Sharia Law reform1 mod­ernistic jurisprudence and legislation and methods of reform1 general ex­tent and perspectives of modernistic jurisprudence1 challenge of equality and responses of the Islamic legal school of thought and the authority and Islamic normativity.65

With respect to theoretical and practical possipilities of Sharia Law reform1

66 the differenc~ is stressed between variable and fixed sources and the issue of the possibility of their reform is considered. When it comes to fixed sources that1 in principle1 could not be change~1 which was the "inevitable consequence of the teachings on the Divine origin of Qur'an and the Divine inspiration of Mukamed (a.s.)"67

1 the study points out the possibilities of reform of these texts as well through interpretation

by determining the timeline of the regulations (e.g. when one issue is discussed in multiple parts) and by determining the norm to act upon by applying the theory of derogation (rule lex posterior derogat legi priori is valid). Besides this1 the interpretation should provide an answer to the question whether a regulation referred to in Qur'an can be generally ap­plied or it can be applied only for a particular situation ( takhsis) 168 which also represented an intervention into fixed sources or the reform.

65 Obligatory literature for this subject is: Fikret Karcic, Drustveno-pravni aspekt islamskog reformizma (Social and Legal Aspects ofislamic Reformism) Sarajevo: Islamski teoloski fakultet, 1990); Kari Vogt et al., New Directions in Islamic Thought: Exploring reform and Muslim Tradition (London. LB.Taurus, 2009); AbdullahiA. An-Nairn (ed.), Islamic Fam­ily Law in A Changing World: A Global Resource Book (London-New York: Zed Books, 2002); Khaled Abou El-Fadl, Islam i izazov demokracije (Islam and the Challenges of Democracy) (Sarajevo: Buybook, 2006); Abdullahi Ahmed An-Nairn, Islam and the Secular State: Negotiating the Future of Shari'a (Cambridge, London: Harvard University Press, 2008); Noah Feldman, Tlze Fall and Rise of tlze Islamic State (Princeton-Oxford: Princeton University Press, 2008).

66 Fazlur Rahman, "Revival and Reform in Islam" in: The Cambridge History of Islam: Islam Society and Civilization: Islamic Society and Civilization, ed. by P. M. Holt et al. (Cam­bridge University Press, 1970, 2008), pp. 632-657.

67 Karcic, Drustveno-pravni aspekt islamskog reformizma, pp. 22. 68 KarCic, Drustveno-pravni aspekt islamskog reformizma, pp. 22-23.

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As regards regulations based on ijtihad as a fixed source of Sharia Law, the study points out the possibility of their reform through ijma'a which used to be one of the most powerful means of self-adaptation in Islam. Then, the study notes that in the practice of different Muslim states, multiple ways of harmonising law with the amended social cir­cumstances appeared throughout history, which include, apart from the selective acceptance oflocal customs, the three classical methods "which were noted by hj.storian Henry S. Main in the case of old laws: legal fic­tions, legislation and equity': Then, the study briefly analyses each of the abovementioned reform methods in the Sharia Law.

Finally, it is concluded that the Sharia Law "not only possesses theoretical possibilities of reform but also a rich experience of practical adaptation':69 In this sense, it is noted that instruments oflaw adjustment to the amended social circumstances usually correspond to the methods familiar to other great legal systems.

When it comes to the issue of modernistic jurisprudence, the study analyses the process of Sharia Law reform after the second decade of the 20th century which was taken over by the state which issued appropri­ate legal acts that were known in the literature as modernistic legislation and the theory that gave them the basis and explanation is marked as "modernistic jurisprudence".70 This is followed by the study of methods of Sharia Law reform: procedural means ( al-siyiisa al-shar'iyya), selection ( takhayyur) and eclecticism ( talfik), reinterpretation of the main sources of the Sharia Law (through fatwas of religious authorities of modernistic orientation and modernistic legislation)71 as well as changes that oc­curred under the influence of reformism. When it comes to the changes in the positive expression of Sharia regulations, the study analyses Sharia Law codifications: laws on personal status, civil codes72 and in terms of changes in the content of Sharia regulations, the focus of the study are changes in family law (entering into marriage, type of marital relation-

69 Karci<:, Drustveno-pravni aspekt islamskog reformizma, pp. 27.

;o KarCic, Drustveno-pravni aspekt islamskog reformizma, pp. 27.

;i Kari':ic, Drustveno-pravni aspekt islamskog reformizma, pp. 165.

n Kari':ic, Drustveno-pravni aspekt islamskog rejormizma, pp. 172-181.

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ship, divorce, rights and duties of parents towards children, family plan­ning), inheritance laWj waqflaw, law on obligations and organisation and procedure of Sharia courts.73

Besides this, special attention is paid to the possibility of Islamic family law reform.74 In this sense, the challenge of equality and opinion of the Islamic legal school of thought are strongly stressed, with the focus on the issues of equity and equality in family laws of Muslim countries, challenges, possibilities and reform methods.75

. . Within the issue of authority and Islamic normativity the study fo-

cuses on ijtihad76and early construction of authority and the process of following the opinion of well-known legal professionals .and legal schools of thought - taq lid.77

3. Doctoral studies

In the 2012/2013 academic year, the Faculty of Law introduced doctoral studies by the new curriculum, as planned in the 2005/2006 reform. The difference between this system of doctoral studies and the preceding system that was implemented from 1952 to 2011 and that implied conducting a research and doctoral thesis defence, is in the fact that it is organised as a six-semester study program. The studies include general study program and specific study program. General study pro-

73 KarCic, Drustveno-pravni aspekt islamskog reformizma, pp. 181-191. 74 John L. Esposito, "Muslim Family Law Reform: Towards an Islamic Methodology", Is­

lamic Studies, 15 (1976), 19- 51; Lynn Welchman, Women and Muslim Family Lawsin Arab States: A Comparative Overview of Textual Development and Advocacy (Amsterdam: Amsterdam University Press, 2007), pp. 33--45; Ziba Mir-Hosseini, "Muslim Women's Quest for Equality: Between Islamic Law and Feminism,'' Critical Inquiry 32:4 (2006), 629-645.

75 Zainah Anwar, Jana S. Rumminger, "Justice and Equality in Muslim Family Laws: Chal­lenges, Possibilities, and Strategies for Reform'~ Washington and Lee Law Review, 64:4 (2007), 1529-1551.

76 Wael B. Hallaq, Authority, Continuity and Change in Islamic Law (Cambridge: Cam­bridge University Press, 2004 ), pp. 86-122.

77 Hallaq, Authority, Continuity and Change in Islamic Law, pp. 24-5 7.

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gram consists of five courses (each department offers one mandatory course). The Department of History of Law and Comparative Law offers the course Pravne kulture Jugoistoene Evrope (Legal Cultures of the South Eastern Europe) that studies legal cultures of the South Eastern Europe, their tradition and transformation. Focusing on legal pluralism of the South Eastern Europe, besides the tradition of the Roman and Byzantine law, it studies the tradition of Sharia Law.

Within the tradition of Sharia Law, the course studies general Sharia rules, usuli fikh - the methodology of the Islamic law, legal nature, place and importance of fatwa in Sharia law and compares the responses of the Roman law78

, the relation between fikh and Roman law and the issue of influence of Roman law to fikh. This is followed by the study of the implementation of Sharia law throughout history of Bosnia and Herze­govina Muslims, influence of Sharia to the pre-war Yugoslav law, the issue of publicly and legally recognised Islam in Yugoslav regions after the end of Ottoman rule, etc.79

VII.Study of Islamic law, as a once positive law in the Ottoman state, within the History of State and Law of Bosnia and Herzegovina

1. · Undergraduate studies

Within the mandatory course in 2nd semester of undergraduate studies Bosansko komparativno pravo (Bosnian Comparative Law), the focus of the study is comparative legal development oflegal institutions in Bosnia and Herzegovina that may be tracked down from the early South Slavic Middle Ages, through the Ottoman and Austro Hungarian period to the establishment of a joint Yugoslav state and its development until 1992. Special attention is put on the comparative study in order to understand mutual influences and intertwining of e.g. Sharia and canon

78 Karcic, Studije o serijatskom pravu i institucijama, pp. 50-52. 79 KarC:ic, Studije o serijatskom pravu i institucijama, pp. 50~52.

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law, i.e. Venetian law with the Ottoman state and tanzimat law, etc. Even though this course has comparative approach, it does not put Islamic law in a wider context but it compares different components of positive law in Bosnia and Herzegovina throughout history.

In the chapter "Pravo u Osmanskoj Bosru" (Law in Ottoman Bos­nia), the textbook analyses religious structure of Ottoman Bosnia, start­ing from the p;ocess of the acceptance of Islam which, "together with the medieval Bosnian heresy that preceded it, makes the spiritual vertical and significant historical determiner of Bosnia, especially Bosniaks':80

This is followed by the study of the millet system as .the "Ottoman model of resolving the 'national issue"~ which "was not democratic but rather autocratic, just like the Ottoman state itself, and it wefs pluralistic in a way that was not familiar to Europe of that period which was ruled by religious exclusiveness:'81

The next chapter, Pravo i sudstvo u Osmanskoj Bosni" (Law and Judi­ciary in Ottoman Bosnia)82 analyses the sources of Sharia law in the Ot­toman state and the sources of Sharia law ( Qur'an and Sunnah or hadith) and the Ottoman state law (kanuns / kanunams) are differentiated. Con­sidering that, besides the Islamic (Sharia) and state or kanune law, the Ottoman Empire used Milesian law, this chapter analyses the sources of the canon law of the Roman Catholic Church, Serbian Orthodox church law and the common law of Jews. 83

The next subject of analysis is the criminal code in Ottoman Bosnia, which was bases on Sharia law. Three groups of criminal acts are stated and the explanation is provided for the dact that, unlike feudal laws that preceded it, the Ottoman law, based on Sharia, did not make any differ­ence in punishing with respect to the criminal's affiliation to a particular social class. The difference was only made with respect to religion and sex. Namely, since Muslims were required to have higher moral stan-

so Imamovic, Uvod u historiju i izvore bosanskogprava, pp. 37. 81 Imamovic, Uvod u historiju i izvore bosanskogprava, pp. 39. 82 Imamovic, Uvod u historiju i izvore bosanskog prava, pp. 44-62. 83 Imamovic, Uvod u historiju i izvore bosanskogprava, pp. 45-50.

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<lards of behaviour, usually they were punished more severely than non­Muslims for the same crime. At the same time, a slave was punished with less severity than the slave man who committed the same crime. When it comes to sex differences, the same moral and patriarchal reasons implied more severe punishments for women than for men.84

"Sharia marital law" is the next subject of study. It includes the defi­nition of marriage, manner of marrying through a marriage offer (ijjab) and the acceptahce (Kabul), the contracting parties (groom and the bride's guardian (representative / vekil), marital difficulties for getting marries and divorce.85 For the sake of comparing the institute and law in Ottoman Bosnia, which is the aim of the course, the next subject of study is the law of Catholic Church86

, marital law of the Orthodox Church87

and Jewish marital law. 88

The next subject is Sharia inheritance law, which was "almost com­pletely regulated by Qur'an, which, besides setting general principles of inheritance law, strictly and in details presents and determines - with all aliquot inheritance parts - the intestate inheritance order (feraiz).89

After this, the study focuses the tanzimat and tanzimat law that in­clude the study of the Giilhane Hatt-1 ~erif, Hatt-I Hamayun, Ramadan law, the Order of Safar and Majella (Ottoman Civil Code) .90

2. · Postgraduate studies

Mandatory course at the postgraduate studies at the Comparative Law program of study91 is Razvoj pravne misli i pravna praksa u BiH

84 Irnamovic, Uvod u historiju i izvore bosanskogprava, pp. 51. 85 Irnamovic, Uvod u historiju i izvore bosanskogprava, str. 51-53. 86 Irnamovic, Uvod u historiju i izvore bosanskogprava, pp. 53-54. 87 Irnamovic, Uvod u historiju i izvore bosanskogprava, pp. 54-56. 88 Irnamovic, Uvod u historiju i izvore bosanskogprava, pp. 56-57. 89 Irnamovic, Uvod u historiju i izvore bosanskog prava, pp. 57. 90 Irnamovic, Uvod u historiju i izvore bosanskogprava, pp. 63-71. 91 This programe was not performed yet at the Department of Legal History and Com­

parative Law. The analysis of study oflslarnic law is based on the curricula.

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(Development of Legal Thought and Legal Practice in Bosnia and Her­zegovina), that includes the study of legal thought and legal practice in Bosnia and Herzegovina through their mutual influence, with the stress on the comparative legal approach. With respect to Islamic law, the focus of the study is on the Ottoman legal order apd its implementation in Bosnia. This is followed by the study of Sharia and millet law,92 tanzimat and the beginnings of Europeanisation oflaw in Bosnia and Herzegovina as well as the continuity of tanzimat law and the establishment of a new Austro-Hungarian legal order in Bosnia and Herzegovina

When it comes to the study of Ottoman legal order, the chapter provides a general structure of the Ottoman legal system: Sharia and common character of the Ottoman legal system, common law and the law (kanun), relations between Sharia and common law and the areas of Sharia and common law.93 The chapter also provides the structure and manner of operation of Sharia courts. After this, it provides the data on the official mazhab, fatwas and the connection between fatwas and kadiluk, sources oflaw (books, collections, fatwas, kanunamas and Sharia sijils) .94 This is followed by the overview of the Ottoman law after tanzimat.95

The next focus of the study is the application of Sharia law in Bosnia and Herzegovina, first in the period of Austro-Hungarian rule (sources of obligations, implementation area and organisation of Sharia courts

92 Enes Durmisevic, Serijatsko pravo i nauka serijatskog prava u Bosni i Heq:egovini u prvoj polovini XX stoljeea (Sharia Law and Sharia Law Science in Bosnia and Herze­govina in the First Half of 20th Century) (Sarajevo: Pravni fakultet Univerziteta u Sara­jevu, 2008); Ekmeleddin Ihsanoglu (ed.), Historija osmanske driave i civilizacije (His­tory of the Ottoman State and Civilization) (Sarajevo, Orijentalni institut u Sarajevu, 2004); Enes Durrnisevic, Uspostava i pravni poloiaj Rijaseta Islamske zajednice u BiH 1882-1899. (The Foundation and Legal Position of the Islamic Community in Bosni and Herzegovina 1882-1899) (Sarajevo: Magistrat, 2002).

93 M. Akif Ajdin, "Pravo kod Osmanlija" (Ottoman Law), in: Historija osmanske driave i civilizacije, pp. 515-550.

94 Ajdin, "Pravo kod Osmanlija;' pp. 551-571. 95 Ajdin, ,,Pravo kod Osmanlija," pp. 585-596.

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and the study within the framework of the Sharia judicial school)96

and then in the period 9f the Kingdom of Serbs, Croats and Slovenes.97

In this sense, special attention is paid to the attempt of drafting inter­confessional law in the Kingdom of Serbs, Croats and Slovenes, general characteristics of religious legislation of the 6th January Dictatorship and the legal position and organisation of the Islamic Community in Yugo­slavia in the period from 1918 to 1941.98 This is followed by the study of the state Sharia courts in Yugoslavia in the period from · 191 s to 1941 and the obligation of implementation of the Sharia law. The focus of the study is on the structure and operation of Sharia courts and the social and legal consequences of their existence and of the implementation of Sharia law.99

The next section of the study is related to the overview of the imple­mentation of Sharia law as religious and moral and common norms of Muslims100 after its abolishment as positive law and the interpretation of Sharia law in Bosnia and Herzegovina in the first half of the 20th century.

General information on religion in the period after the Austro-Hun­garian occupation are given within optional courses such as Sekularna driava na Balkanu (Secular state in the Balkans (graduate studies, 8th semester)) which analyses issues such as: relation between the church and the state in the Balkan states until the First World War, church and religious competencies within the law, relation between the church and state in Yugoslavia between the two world wars, Yugoslav revolution as continuation of modernisation and secularisation of the Balkans as well as (lack of) legal definition of the relations between religious communi­ties and the state in Bosnia and Herzegovina as an independent country.

96 Durmisevic, Serijatsko pravo i nauka serijatskog prava u Bosni i Hercegovini, pp. 73-122. 97 Durmisevic, Serijatsko pravo i nauka serijatskog prava u Bosni i Hercegovini, str. 133-

192. 98 Mustafa Imamovic, Vjerske zajednice u Bosni i Hercegovini i Jugoslaviji izmeau dva svjetska

rata (Religious Community in Bosni and Herzegovina in Yugoslavia Between the World Wars) (Sarajevo: Pravni fakultet Univerziteta u Sarajevu, 2008), pp. 7-145.

99 Fikret KarCic, Serijatski sudovi uJugoslaviji 1918-1941. (Sharia Courts in Yugoslavia 1918-1941.) (Sarajevo: Islamski teoloski fakultet, 1986), pp 11-155.

100 Durmisevic, Serijatsko pravo i nauka serijatskog prava u Bosni.i Hercegovini, pp. 199-213.

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Somewhat detailed introduction into the relations between church and the state in the Kingdom of Serbs, Croats and Slovenes / Yugosla­via, the separation of the state and religion after 1945 and the relations between the state and religious communities in Bosnia and Herzegovina from 1990 to 2010 is given within the cours,e Sekularna i nacionalna driava (Secular and national state), which is an optional course at post­graduate studies at the Department of History and Law and the Depart­ment of Comparative Law.

3. Doctoral studies

Finally, doctoral studies offers deeper insight into Bosnian law in the Ottoman period within the mandatory course at 'the Department of Comparative Law Bosansko pravo: tranzicija i tradicija (Bosnian Law: transition and tradition). The course studies institutions of Bosnian law in the context of the shift of different state and legal frameworks. Special at­tention is paid to the study oflaw in the Ottoman period. The following issues are analysed: institutions of the medieval common law in Bosnia and their trans.formation to t_h.e frameworks of classical Ottoman law, in­stitutions of Ottoman law in Bosnia, modernisation of classical Ottoman legal institutions in the period of tanzirnat reforms in the 19th century, the reception of Ottoman law in Bosnia and Herzegovina after the 1878 occupation and the issue of transition oflegal systems.101

VIII. Conclusion

The Islamic law is studied at the Department of History of Law and Comparative Law at the Faculty of Law in Sarajevo within the following two disciplines: comparative legal history and history of state and law of Bosnia and Herzegovina. Therefore, tentatively speaking, one can bear in mind two models of study: comparative historical and legal and as a part

wi Ajdin, "Pravo kod Osmanlija;~ pp. 515-585; Durmisevic, Serijatsko pravo i nauka serijatskog prava u Bosni i Hercegovini; Karcic, Studije o serijatskom pravu i institucijama; Eugen Sladovic, Islamsko pravo 11 Bosni i Hercegovini (Islamic Law in Bosnia and Herze­govina) (Beograd, 1926); Karcic, Serijatski sudovi u Jugoslaviji 1918-1941.

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of former positive law within the Ottoman state and1 after1 when it was implemented for the resolution of personal issues of Muslims1 until the final abolition of Sharia courts in 1946.

Compared to the period from the establishment of the Faculty of Law in 19461 until the 1990s1 when the Islamic law was only sometimes mentioned in few details within the courses General History of State and Law and Histories of States and Law of the Peoples of the SPRY, which was the consequence of marginalisation of religion (and thus the religious law) 1 we can notice progress in its study after the reform of higher educa­tion in the 2005/2006 academic year.

However1 bearing in mind the importance of Islamic law in Bosnia and Herzegovina1 which1 more or less1 made the part of positive legal system since the establishment of the Ottoman rule until the end of the Second World War1 and considering the fact that regardless of the lack of normative element - its contents are still relevant for Muslims1 Islamic law is not paid the attention it deserves. This is confirmed by the fact that it is studied as one of the great legal systems of today at many academic institutions in the world individually or in comparison with other legal systems (religious or secular).

Therefore1 one might consider increased study oflslamic law within the History of State and Law of Bosnia and Herzegovina. Since Islamic law is mostly connected to the Ottoman period1 we could use law schools in Turkey as a model and introduce a course of Ottoman Islamic law.

Nevertheless1 the increased study oflslamic law in Bosnia and Her­zegovina ·after the Ottoman rule would be equally significant because it was implemented during the Austrian-Hungarian period and in the Kingdom of Serbs1 Croats and Slovenes I Yugoslavia for the resolution of issues of family and personal status of a Muslim until the final abolition of Sharia courts in 1946.

On the other side1 actualisation and reintroduction of the Legal Cul­tures course to graduate studies (the course has not been taught during the past three academic years) would make the manner of the study of

Teachings Of Islamic Law At The Faculty Of Law Of The U11iversity Of

Sarajevo In The Period From 1946 To 2016 [Memisevic] 367

Islamic law at the Faculty of Law in Sarajevo be up to date with the con­temporary approaches to the study that are being implemented within many academic institutions in the world. Namely, this course studies the Islamic law in comparison to other great legal cultures: civil / Euro­pean continental law, Anglo-American legal cuJ.ture, Jewish legal culture, canon law and mixed legal cultures. Therefore, there is insistence on the study of the "law in context" and the comparative approach.

Besides this, the course Comparative Law at postgraduate studies at the Department of History pf Law and Comparativ~ Law would include, apart from civil and common law, the Islamic law· in the contemporary perspective - "horizontal comparison".

Therefore, by teaching Legal Cultures within graduate studies, Com­parative Law within postgraduate studies and Legal Cultures of the South Eastern Europe within doctoral studies - planned in the current curri­cula - the Islamic law would be taught together with other great legal systems (at all levels of study) in the historical ("vertical comparison'') and contemporary context ("horizontal comparison"), modelled on the contemporary approaches to the study of Islamic law and legal cultures in general at academic institutions in the world.

Besides this, according to the 2005/2006 curriculum reform, the Department of State and International Public Law at the Faculty of Law in Sarajevo and within the Sub-department of legal theory, offers the course Religion and Law (8th semester), alongside th~ courses Law and Ethics and Theory of Ethnicity. ·

This course studies the religious dimension oflaw and the legal di­mension of religion and interaction of religious and legal ideas. Therefore, · it studies the relations between law and religion in the historical and con­temporary dimension (regulation of relations between state and religion · in Muslim societies, relations between church and state, theocratic state, secular state I laicism, pluralism and multi-confessional communities and models of regulation of relations between state and religious com­munities). Then, the course offers comparison of the most important types of religion-inspires laws - Jewish law, canon law and Islamic law as

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well as modern secular law. Secular law is considered to be particularly significant, considering the fact that all three abovementioned religious laws were implemented in Bosnia and Herzegovina throughout history. In this way, the course gives necessary attention to the undoubted influ­ence of religion to legal understandings, ethical values, institutions and customs of the peoples in Bosnia and Herzegovina and wider region.102

Therefore, regardless of the mentioned flaws in the study of the Islamic law at t:Jie Faculty of Law in Sarajevo, one can conclude that its extent is sufficient for the profile of experts educated by the Faculty of Law, bearing in mind the fact that this profile is represented by secular legal experts. This fact is particularly noticed when we consider the study of the Islamic law in the period from the establishment of the Faculty of Law in 1946 until the 1990s, when it was only rarely and in few details mentioned within courses General History of State and Law and Histories of States and Laws of the Peoples of SPRY.

102 This subject is not offered in the current curriculum.