Uluslararast Turk Hukuk Tarihi Kongresi 13-14 May is 2016 - Istanbul II. TURK HUKUK TARiHi KONGRESi BiLDiRiLERi Cilt: II Editor Prof. Dr. Fethi GEDiKLi onikilevha 1111 II llllll lllllll Ill llllllll YAYIN NO: 681 II. TiirkHukuk Tarihi Kongresi Bildirileri Cilt: II Editor: Prof. Dr. Fethi Gedikli ISBN 978-605-152-470.-2 1. BASKI- iSTANBUL, ARALIK2016 © ON iKi LEVRA YAYINCILIKA. ~· Adres : Prof. Nurettin Mazhar Oktel Sokak No: 6A ~i§li I iSTANBUL Telefon : (212) 343 09 02 Faks : (212) 224 40 02 Web : www.onikilevha.com.tr E-Posta : [email protected] Baski/Cilt Birlik Fotokopi Baski Ozalit ve Buro Malz. San. ve Tic. Ltd. ~ti. Yild1z Mah. <;1ragan Cad. No: S 1 Nolu Magaza Be§ikta§ / istanbul Tel: (212) 269 30 00 SertifikaNo: 20179 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 dif­ ferent 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, Is­ lamic 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 3 law is taught as positive law (the only or one of the sources) 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 his­ tory of the state and the law of Bosnia and Herzegovina (national legal history). Therefore1 one can speak of two models of study: 1) in compara­ tive 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 In­ stitutions) (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 or­ ganizations (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 Yu­ goslav 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 ofIslamic 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 Minori­ ties 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 abol­ ished 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 reli­ gious, 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 reli­ gious 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 ofModernization and Reinterpretation f Sharia Law in Bosnia and Herzegovina) 1 Godi5njak Pravnogfakulteta 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 OfLaw Of The University Of Sarajevo In The Period From 1946 To 2016 [Memisevic] 343 III. Teaching of Islamic law at the Faculty of Law in Sarajevo in period from 1946 to 1990 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 ofNations of Socialist Federative Republic of Yugosla­ via.