Islamic Law as a Comparable Model in Comparative Legal Research

2014 ◽  
Vol 3 (2) ◽  
pp. 186-202
Author(s):  
Hamid Harasani
Keyword(s):  
Islamic Law ◽  
Legal Systems ◽  
Legal Transplant ◽  
Legal Studies ◽  
Legal Method ◽  
Religious Law ◽  
The Subject ◽  
First World ◽  
Being Religious ◽  
Comparable Model

Increasingly, Islamic law has become the subject of comparative legal study. Further, in the applied sense, comparative legal studies’ greatest value lies in understanding our own legal systems, as well as benefiting from other legal systems by importing what we lack from them. Unlike secular legal systems, Islamic law, being religious in nature and having eschatological connotations, requires reworking the comparative legal method to take account of that. When it comes to religious laws, hermeneutics play a key role, as a religious legal system will only be receptive to foreign norms if such norms earn their place internally, following hermeneutic justification. Cultural and religious pride, as well as intellectual impartiality, decrees that a legal solution should not be preferable just because it comes from the First World. This paper will therefore formulate a methodology for comparative legal studies where religious law is one of the comparative models and there are potential suggestions of legal transplant.

scholarly journals GUGAT CERAI: MEMBEBASKAN PREMPUAN DARI PENDERITAAN

QAWWAM ◽  
2019 ◽  
Vol 13 (2) ◽  
pp. 101-122
Author(s):  
Nurmala Fahriyanti
Keyword(s):  
Life Cycle ◽  
Social Development ◽  
Islamic Law ◽  
Human Life ◽  
Daily Basis ◽  
State Law ◽  
Legal Systems ◽  
Religious Law ◽  
The Family

In Mataram West Nusa Tenggara, people is lives are regulated on daily basis by religious law, traditional (adat) law and state law. To understand these complex cultural and religious processes as they affect women in particular, I will examine the issue of divorce, also known as sue divorce. This tipe of divorce is socially-sanctioned. I will focus my examination in Mataram, an city of Lombok West Nusa Tenggara. In Lombok society marriage constitutes an important part of the life cycle.  Someone is not considered an adult until marriage.  Marriage is not only united two individual, but also united two families. However this dream canot be realized over the long term.  If family problems arise and  there are no suitable solutions, people may choose to divorce. For instance, if a wife unable to fulfill her obligations as a wife, her husband can divorce her by verbal means alone, according to any of the three existing legal systems (religious customary or state law). By contrast, if her husband unable to fulfill her obligations as a husband his wife can divorce him in only one way by making an application to Islamic Court to do divorce. In marriage available successful couple builds the family that sakinah, mawaddah and warahmah. But then available also that unsuccessful and end with separate or divorce. Separate constitutes a thing that often happens deep good human life divorce the initiating from the husband and also divorce the initiating from the wife, that its cause islamic law puts attention that adequately significant to that thing. It can appear if understand about islamic law, undoubtedly will find both of previous thing and its terminological  islamic law. There is no divorce without started by marriage. But upon that aim not attained, therefore divorce constitutes last way out that must been sailed through. Divorce can't be done but there is grounds which corrected by religion, adat and state law. In islamic law, that divorce grounds experience developing according to social development. Basically islamic law establishes that divorce reason which is wrangle which really culminates and jeopardize the so called soul safety with “ syiqaq ”. Intention is if worried a couple its happening dispute (dispute not only means wrangle among husband or wife can also distinctive principle and opinion) therefore delegate a someone of its husband family and a someone of wife family. And if both of wife and husband will goodness and they can make resolution and look for the solution, but if there are suitable solution wife or husband can do divorce.

scholarly journals Decolonial Translation: Destabilizing Coloniality in Secular Translations of Islamic Law

2021 ◽  
pp. 1-28
Author(s):  
Lena Salaymeh (لينا سلايمة)
Keyword(s):  
Islamic Law ◽  
Muslim World ◽  
Legal Studies ◽  
Islamic Tradition ◽  
Arabic Word ◽  
Religious Law ◽  
Secular Terms

Abstract Contemporary Islamic legal studies – both inside and outside the Muslim world – commonly relies upon a secular distortion of law. In this article, I use translation as a metonym for secular transformations and, accordingly, I will demonstrate how secular ideology translates the Islamic tradition. A secular translation converts the Islamic tradition into “religion” (the non-secular) and Islamic law into “sharia” – a term intended to represent the English mispronunciation of the Arabic word شريعة (sharīʿah). I explore the differences between historical Islamic terms and secular terms in order to demonstrate that coloniality generates religion and religious law; in turn, these two notions convert شريعة (sharīʿah) into “sharia” in both Arabic and non-Arabic languages. Consequently, the notion of “sharia” is part of a colonial system of meaning.

Certain legal and technical defects of criminal, criminal procedure and criminal Executive legislation affecting the activities of institutions and bodies executing criminal penalties

2019 ◽  
pp. 42-49
Author(s):  
Юлия Павловна Колесникова
Keyword(s):  
Criminal Procedure ◽  
Theoretical Development ◽  
Legal Norms ◽  
Legal Studies ◽  
Legal Method ◽  
General Scientific ◽  
The Subject ◽  
Criminal Penalties ◽  
The Moment ◽  
The Impact

Предметом исследования выступило взаимодействие уголовного, уголовно-процессуального и уголовно-исполнительного законодательства и его влияние на деятельность учреждений и органов, исполняющих уголовные наказания. Цель работы заключается в обобщении отдельных направлений материализации дефектов указанных отраслей законодательства и оценке влияния данных дефектов на деятельность уголовно-исполнительной системы. В основе исследования лежит общенаучный анализ и специально-научный формально-юридический метод. Исследование основано на оценке технико-юридической составляющей отдельных правовых норм, имеющих значение для деятельности учреждений и органов, исполняющих уголовные наказания. Результатом работы является формирование открытого перечня разновидностей дефектов части системы права, изучаемой в рамках установленного предмета исследования. Материалы могут быть использованы для совершенствования юридико-технической составляющей уголовного, уголовно-процессуального и уголовно-исполнительного законодательства. Выводы. Объем и актуальность предмета исследования позволяют сделать вывод, что в настоящий момент рано говорить о его исчерпании. Определенное в статье направление нуждается в дальнейшей разработке. Теоретическая разработка возможна и необходима и в рамках отраслевых юридических исследований с целью выявления конкретных недостатков юридической техники, и в рамках теоретико-правовых исследований с целью обобщения дефектов и поиска универсальных путей их устранения. The subject of the study was the interaction of criminal, criminal procedure and penal enforcement legislation and its impact on the activities of institutions and bodies executing criminal penalties. The purpose of the work is to generalize certain areas of materialization of defects in these branches of legislation and to assess the impact of these defects on the activities of the penal system. The research is based on General scientific analysis and specially scientific formal legal method. The study is based on the assessment of the technical and legal component of certain legal norms that are important for the activities of institutions and bodies executing criminal penalties. The result of the work was the formation of an open list of varieties of defects of the part of the system of law studied within the established subject of research. The materials can be used to improve the legal and technical component of criminal, criminal procedure and penal enforcement legislation. Summary. The volume and relevance of the subject of research, allow us to conclude that at the moment it is too early to talk about its exhaustion. The direction defined in the article needs further development. Theoretical development is possible and necessary both in the framework of branch legal studies in order to identify specific disadvantages of legal equipment, and in the framework of legal theoretical studies, in order to generalize the defects and find universal ways to eliminate them.

Imprisonment in Pre-Classical and Classical Islamic Law

1995 ◽  
Vol 2 (2) ◽  
pp. 157-173 ◽  
Author(s):  
Irene Schneider
Keyword(s):  
Islamic Law ◽  
Early Stage ◽  
Limited Attention ◽  
Legal Systems ◽  
Historical Sources ◽  
Criminal Jurisdiction ◽  
The Subject ◽  
Accepted Form ◽  
Administrative Detention

AbstractImprisonment, a generally accepted form of punishment in modern legal systems, existed also in Islamic law in the pre-classical and classical periods (second-sixth/eighth-thirteenth centuries), although Muslim jurists devoted only limited attention to the subject and Islamicists have largely ignored it. Muslim jurists of pre-classical and classical times concentrated their attention on pre-trial and administrative detention, especially imprisonment for debt. The jurists mention punitive detention as a supplementary measure that was enacted mostly in conjunction with corporal punishments (ḥudūd and taʿzīr). Because state authorities established a monopoly over criminal jurisdiction at a very early stage, it is possible that punitive detention played a more important role in practice than it did in theory. However, inasmuch as I found only a few examples in historical sources, it seems safe to conclude that punitive detention did not have the same status in pre-modern Islamic law that it does in modern law.

Orientalism, Colonialism, and Legal History: The Attack on Muslim Family Endowments in Algeria and India

1989 ◽  
Vol 31 (3) ◽  
pp. 535-571 ◽  
Author(s):  
David S. Powers
Keyword(s):  
Legal History ◽  
Islamic Law ◽  
Legal Studies ◽  
Colonial Expansion ◽  
Legal Texts ◽  
The Subject ◽  
Islamic Legal History ◽  
Scholarly Production ◽  
The Impact ◽  
Muslim Family

One of the earliest and most highly developed areas of orientalist scholarly production was the study of Islamic law. Modern western investigation of Islamic law emerged during the era of European colonial expansion, and the first studies of the subject were written by citizens of the colonial powers, many of whom had lived in the colonies for extended periods. These men produced the first translations of legal texts, the first studies of individual legal institutions, and the first comprehensive studies of Islamic law, thereby laying the foundations for the modern discipline of Islamic legal history. Surprisingly, students of orientalism have devoted little attention to the colonials'viewsof Islamic law—that is, to the attitudes and assumptions that underlay their writings and interpretations—or to the impact of those views on the development of Islamic legal studies as a discipline.

International Law, Islamic Law, and Islamic Law States

2019 ◽  
pp. 25-85
Author(s):  
Emilia Justyna Powell
Keyword(s):  
Conflict Management ◽  
International Law ◽  
International Conflict ◽  
Islamic Law ◽  
Legal Systems ◽  
Clear Cut ◽  
Religious Law ◽  
Islamic Jurisprudence ◽  
The Relationship ◽  
Internal Variation

This chapter explains concepts fundamental to this book: international law, Islamic law, Islamic international law, sharia, and the category of Islamic law states (ILS). The ILS category offers an efficient and clear-cut conceptual vehicle for mapping out the balance between religious law and secular law, and how this balance translates into ILS’ preferences with respect to international conflict management venues. The chapter explains how the ILS category differs from other seemingly parallel concepts or definitions present in the scholarship, such as “Islamic states,” or “Muslim states.” It discusses the characteristics and internal variation within the ILS category across different countries and different schools of Islamic jurisprudence. This chapter also presents an analysis of ILS’ domestic legal systems, elaborating on Islamic constitutionalism, and the relationship between religious norms and secular norms in constitutions and sub-constitutional legal systems. Some features analyzed include holy oath, supremacy clause, and sharia education.

Freedom of expression and Islam: Charlie Hebdo’s lessons

2021 ◽  
Vol 28 (1) ◽  
pp. 61-70
Author(s):  
Dmytro V. Lukianov ◽  
Volodymyr M. Steshenko ◽  
Hanna P. Ponomarova
Keyword(s):  
Islamic Law ◽  
Freedom Of Expression ◽  
Case Law ◽  
Legal Framework ◽  
European Convention ◽  
Scientific Methods ◽  
Religious Conflicts ◽  
Legal Method ◽  
The Subject ◽  
The One

This article studies specifics of Islamic understanding of freedom of expression and significant differences between Islamic and European understanding of that concept. Freedom of expression is recognized in Islam; however, it has significant and deeply-rooted peculiarities. In particular, Islam strictly prohibits imaging Prophet Muhammad, let alone making cartoons of him. For instance, from the perspective of Muslims, imaging Prophet Muhammad as a dog is extremely cynical, since a dog in Islam is an unclean animal inadvisable to contact with. Also, there is long-established perception of humour and its admissibility in Islam. For example, under Islamic law one shall not tell lies or scare another person; one shall not joke with an older person, a teacher, a scientist, a manager, a person who does not understand jokes, an unknown man or woman; a joke shall not be offensive or degrading a man or a family; one shall not joke about prohibited issues, tell dirty stories, disclose intimate details, resort to insults or slander. The article points out that Europeans perceive drawing cartoons of the Prophet as freedom of expression. However, in the eyes of Muslims such cartoons constitute violation of a number of prohibitions existing in Islam and therefore deeply insult their religious and cultural feelings. Such insults may cause religious conflicts with many victims, like the one that happened in the January of 2015 in the office of Charlie Hebdo French satirical weekly newspaper. To prevent similar and even more terrible tragedies in the future and release tension between Europeans and Muslims, primarily in Europe, the article explores the legal framework and conditions for restriction of freedom of expression set out in universal international law, the European Convention on Human Rights and relevant case-law of the ECHR. The set of the general and specific scientific methods of research were used by the authors according to the subject and scope of the study: sociological, statistical, dialectical, formal stylistic, axiological, hermeneutic, systemic, comparative legal method etc.

scholarly journals Comparison Of Legal System: Islamic Law System, Civil Law, and Common Law

2018 ◽  
Vol 5 (2-1) ◽  
Author(s):  
Asasriwarnia Asasriwarnia ◽  
M. Jandra
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
Human Life ◽  
Common Law ◽  
Civil Law ◽  
Legal Systems ◽  
Law System ◽  
Legal Method ◽  
History Of ◽  
Wide Definition

This paper will discuss the comparison of Islamic legal system, civil law, and common law. Knowing the comparison is important. This method is very appropriate considering that the legal system has its own character and scope. The questions of this study are: (1) how is the comparison concept of legal systems; (2) how was the comparison of legal systems’ source; (3) how was the comparison of its history and (4) the comparative material of law content. The purpose of this study is to reveal the concepts of legal systems comparison; the comparison of its source, history and the material comparison of law system’s content. This study use normative legal method. The results of this study are: (1) the concept of legal system comparison is defined by the similarities and difference on the collection of law elements. The needs of legal systems comparison are grouped into scientific needs and practical needs; (2) the comparison of legal system source is that the source of Islamic legal system, civil law, and common law has similarity in the effort of legal discovery. (3) The comparison of the history of legal system have similarities in growth and development influenced by the traditions of human life from one generation to the next generation in wide definition. (4) Comparison of the content of law system have similarities that all aspects of human life is generally regulated by law. In this context Islamic law is comprehensively regulate various aspects of human life including the relationship with the universe, the Lord and the hereafter.

scholarly journals Criminal-legal ensuring of freedom of religion in modern conditions: a comparative analysis

2021 ◽  
Vol 39 (68) ◽  
pp. 620-649
Author(s):  
Sophia Ya. Lykhova ◽  
Borys D. Leonov ◽  
Tetiana D. Lysko ◽  
Natalya K. Shaptala ◽  
Sergiy I. Maksymov
Keyword(s):  
Comparative Analysis ◽  
Criminal Law ◽  
International Standards ◽  
Freedom Of Religion ◽  
Legal Systems ◽  
Legal Method ◽  
Foreign Countries ◽  
The Subject ◽  
Constitutional Right ◽  
The Right

The article conducts a comparative criminal law investigation to ensure freedom of religion in Ukraine and some countries. The subject of the study is a person's right to freedom of religion guaranteed by the Ukrainian Constitution. In conducting this research, a comparative legal method was widely used, which allowed a two-tier analysis (empirical and theoretical) of the legal systems of Ukraine and some foreign countries in terms of ensuring freedom of religion under criminal law, to identify the originals and specific manifestations of such support, to determine the patterns of development of each country's criminal law. As a result of the investigation, some gaps and advantages of Ukrainian law were identified in terms of criminal law guaranteeing the right to freedom of religion. Itstates that Ukraine's modern criminal law generally complies with international standards for the protection of citizens' constitutional right to freedom of religion, but there are some shortcomings in terms of unequivocal understanding of the elements of crimes that violate freedom of religion, which are worth discussing.

The Transposition of the European Directive 85/374/EEC on Product Liability into Palestine and Jordan: Is it Adaptable to Islamic Law?

2012 ◽  
Vol 1 (2) ◽  
pp. 194-224
Author(s):  
Mahmoud Fayyad
Keyword(s):  
Islamic Law ◽  
Civil Law ◽  
Product Liability ◽  
Main Question ◽  
Legal Systems ◽  
European Directive ◽  
Consumer Rights ◽  
Islamic Jurisprudence ◽  
The Subject ◽  
Civil Codes

The aim of this paper is to recommend the transposition of the European Directive 1985/374/EEC on product liability into the Palestinian and Jordanian legal systems. The application of this Directive concurs with many general objectives and consumer rights declared in both of the latter regimes; neither of these two legal systems provide for how those objectives and rights would be accomplished, so there are executive tools putting into practice the declared objectives. This is to say that neither jurisdiction makes any sense with regard to the subject of product liability. The transposition of the European measures into both regimes must take into consideration the general principles of civil law applicable in local legal systems in order to avoid legislative disharmony between imported and local rules. Islamic law represents the basis of civil codes applicable in both regimes; the Othman Justice Rules Record (El-Majalla), which dates back to 1876 and was the first attempt to codify Islamic rules of treatment is still applicable. To recommend the implementation of the European measures in the Palestinian and Jordanian legal systems, it is important to identify the supporting and contradicting points in Islamic jurisprudence. The main question of this paper is, how and to what extent is European Directive 1958/374/EEC applicable in Palestine and Jordan.

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