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Lecture 9) Islamic legal systems - Coggle Diagram
Lecture 9) Islamic legal systems
Divine law (goddelijk recht)
In legal systems there is often a close tie between law and religion.
Some legal systems are deeply rooted in religious traditions (e.g. Islamic Law).
They see Devine revelation as their primary source of law, a will of a higher power, a supranational authority.
Religious legal tradition.
Their main laws come from religious teachings. This goes beyond just mentioning religion in a constitution or having a state religion. The laws themselves are based on divine revelation (goddelijke openbaring).
Premise on Islamic Law
Islam goes beyond just being a religion. It is a comprehensive system that influences various aspects of life.
Culture, shaping traditions, customs, ways of life for its followers.
Serves structure, guiding governance and societal organization.
Islam provides a framework for understanding the world and governing behavior.
Two important concepts:
Sharia
and
Fiqh
.
Fiqh
Science of Islamic law.
Specific rules for human actions from the sources of Sharia.
Governing how Muslims should behave in various situations.
Human understanding and interpretation of Sharia principles by Islamic scholars.
Sharia
1) It refers to the religious law of Islam (rules about beliefs, rituals, morals and laws).
2) Signifies the religious path that Muslims are supposed to follow.
3) Religious law revealed to Muslims, set of rules that govern human behavior.
4 main roots (sources) of law
Sunna
: traditions. Provides practical guidance on how to apply principles and teachings of Quran in daily life.
Ijma
: or consensus, represents the collective agreement of Muslim community. When there is a unanimity on a particular issue. Irma ensures continuity and consistency.
Quran
: sacred book of Islam. Primary source, containing guidance on various aspects of life (beliefs, rituals, morals and laws).
Qiyas
: involves making legal analogies or reasoning by analogy. When faced with a new situation or issue that is not explicitly addressed in the Quran or Sunna.
Religious aspect of the law, based on Devine revelation (goddelijke openbaring).
Sharia and Fiqh
coexist
within the general concept of Islamic law.
These interpretations can differ from one country to another. The diversity of interpration is known as
internal
pluralism
.
In countries where Islamic law coexists with state law, there is a delicate balance between religious principles, constitutional law and local customs.
The extent to wihich Islamic principles influence the legal culture can vary. This can range from the state officially declaring Islam as the state religion
Islamic constitutionalism
In many Muslim-majority countries there is a strong push to incorporate Islam into constitutional legal framework (historical and cultural reasons, colonialism and desire for good governance rooter in Islamic principles.
Arab Spring
: protestors demanded both Islam and democracy.
Bringing Islam and Sharia into the constitution is seen as a way to distance from political decay and corruption and to symbolize resistance against injustice.
Western secularism, including the seperation of state and religion, clashed with their national identities. Period after independence was marked by regional conflicts and dictatorships. Leading many to see Islam as a symbol of order and justice.
However, integrating Islamic values into constitutiolism presents challenges, especially in balancing religious principles with the recognition of fundamental rights and separation of powers.
Main challenge: how to include Islam in the constitution effectively. Islam's role can vary, representing a value system, the state religion, a source of law, or even the main source of law.
Clauses are often used to hinder Islam in these constitutional structures and to eliminate its presence in the country's legal Islamic and administrative structures.
Most common: Islam as state religion.
Some go further: declaring Islam as the source of law, which can lead to laws conflicting with Sharia
Some constitutions limit constitutional rights ti what is permitted under Islam, potentially undermining fundamental rights.
The case of Egypt
The role of Sharia in its legal and governmental framework has undergone significant changes.
After gaining independence from British Rule: Egypt has been creating its national laws, establishing Islam as the state religion.
This continued in subsequent constitutions when a coup led by Nasser ushered in a Democratic Socialist Republic.
Over the next decades Egypt saw multiple constitutions with varying stances on Islam's role.
After Nassers' death, there was a shift towards Islamization, culminating in amendments to the constitution. These amendments declared Islam as the religion of the state and Sharia being established as the main source of law.
Suspention of the 1970 constitution > adoption of an Islamic constitution in 2012.