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RELIGION AND CONSTITUTIONALISM (Legal - religious concepts (ijtihad :…
RELIGION AND CONSTITUTIONALISM
Religion and constitutionalism
secularism
impossible in muslim world
product of christian society, reaction of the historical domination of the church
Classification of Hirschl
Atheist state : anti-religious (USSR)
Religious jurisdictional enclaves (INdia, Israel)
Assertive secularisme : secular, religion-free citizenship (France, Turkey)
Weak religious establishment : state religion but few implication (Northern Europe)
Separatism as State Neutrality toward Religion (US)
Different relationships btw state and islam
declared secular state
declared Islamic states : law is based on islam
no constitutional declaration
declared islam as the State religion : religion has an impact, more social than legal
Charter of Medina
622, migration of the prophet to Medina
full written C°, daily for religious co-existence (muslims / non-muslims)
The schools of interpretation
The prophet was a ruler, a law maker
after his death --> jurists are interpreters
emergence of 4 schools
Maliki
Shafi'i
Hannafi
Hanbazli
conflict btw Ahl Al-hadith (focus on the sayings of the prophet) / Ahl al-Ra'y (jurisprudence, use our mind to understand)
Legal - religious concepts
ijtihad : process of reflexion --> closing the gates
Absolute : can establish new school = closed
within a school : minorities views allowed
on a particular matter : allowed
Taqlid : apply the jurisprudence exactly as before
Ra'y : an opinion on general issues, given by a mufti
Fatwa : legal opinion
Ikhtilaf : disagreement among jurists
religious legal acts
different ones
Maslaha aama : public interest
Siyassa : state policy
Mazalim : complaints jurisdiction
Mu'amal : transactions btw ppl
Urf : usage
Ibadat : religious matter
Adat : custom
Qanun : laws (not secular)
different types
prohibited
indifferent
compulsory
nuances
praiseworthy : don't have to but better
... : shouldn't but not a pb
Siyassa
system of government
different from Sharia : text, rigid, can't change / Siyassa : law in action, can evolve
Sharia in a constitution
different impact
A source (Egypt)
a reference (Tunisia)
The source (Iran)
main principles
Life
Intellect
Religion
Offspring
Property
The crimes in Islam
Ta'zir
least serious (bribery)
Qisas
revenge crime : not from the Qu'ran but from Hadiths
Had crimes
most serious
corporal punishment
ex : cutting hand when theft
exception : when bad situation (drought, needy...)