Chapter 3. Islamic law in the modern world

To adapt Muslim law to modern reality, methods are used that are, as it were, outside Muslim law – agreements, legislation, customs that do not contradict it. In the countries of Muslim law, there was and still is a dualism of judicial organization: along with special religious courts (kadi), other types of courts have always functioned, applying primitive customs or legislative acts (regulations) of the authorities. Islamic law applies only to Muslims. But all the same, even in those countries where the majority of the population is Muslim, it is supplemented by laws and customs, codified and modified in connection with emerging new social relations. As a result, religious Muslim law and the law of Muslim states are carried out. In 1869-1877. Al-Majala was published as the civil code of the Ottoman Empire. It also operated on the territory of Turkey until 1926, Lebanon until 1932, Syria until 1949, Iraq until 1951. Now its operation has been partially preserved in Jordan, Israel, and Cyprus. In the second half of the 19th century, criminal, commercial, procedural and other laws were applied in Muslim countries, partly on the basis of the reception of the law of Western European countries. Islamic law played the role of a regulator of family, inheritance and some other relations.

In countries with Islamic law, the constitution is not considered the basic law, and this role is played by the Koran, the Sunnah, the principles of consensus (Ijma) and analogy (Qiyas). Muslim jurists and theologians believe that both the religious and ethical aspects of public life, the relations of citizens both among themselves and with the state, are subject to regulation of the norms of the Koran and Sharia. They also argue that these norms, illuminated by the will of Allah, are much stronger in their effect than constitutional norms written by man. This is exactly what is connected with the fact that in Saudi Arabia there is no written constitution, and the Koran takes its place.

In many states, Islamic law is constitutionally considered the basis of legislation. It is applied on many issues, but especially in civil relations, Sharia courts are still preserved. In some countries of Central and East Africa, Islamic law is used as customary law. Although Islamic law has a huge impact on the legal systems of Muslim states, there is still a tendency to use such sources of law as legal custom and normative legal act or legislation. In almost all Muslim countries, the influence of Muslim law is limited to marriage and family and related relations, that is, those that are included in the concept of “personal status. As an example, one can also cite Saudi Arabia, which is considered a country of traditional Islam. Even here, more and more are used there are “double standards” in legal proceedings and legislation, while in commercial law priority is already given to “Anglo-American” law.

In the 19th century, significant changes took place in the position of Muslim law. In the most developed countries, it has given way to the dominant position of legislation based on the borrowing of bourgeois legal models. By the beginning of the 20th century, only in the countries of the Arabian Peninsula and the Persian Gulf did Muslim law retain its positions and operate universally in its traditional form. The legal systems of the most developed Arab countries, with some deviations, began to be built according to two main models: Romano-Germanic (French) – Egypt, Syria, Lebanon; and Anglo-Saxon – Iraq, Sudan. Muslim law retained the role of a regulator of marriage, family, inheritance and some other relations among Muslims (sometimes non-Muslims), which was explained by the still remaining remnant of feudalism and the deep influence of Islam on public consciousness. At present, Muslim law is not the only law in force. But at the same time, in no Muslim country has it lost its position as a system of existing legal norms. The only exception is Turkey, where in the 1920s Muslim law in all areas was replaced by bourgeois-type legislation drawn up on the basis of borrowed from Western European models. Ultimately, the direction and depth of the impact of Islamic law on the modern legal systems of a particular country are determined by its level of economic and cultural development. Taking as a basis the scale of application of the norms of Islamic law and the degree of their influence on the current legislation, we can propose the following classification of modern legal systems of the countries of the East. The first group consists of the legal systems of Saudi Arabia and Iran, where Islamic law continues to be applied as widely as possible. First of all, its norms and principles have a profound influence on constitutional legislation and the form of government that has developed here. The Iranian Constitution, for example, establishes a provision on mandatory compliance with the Sharia of all adopted laws.1 In pursuance of this provision, laws have been issued here that focus on fixing in their articles the general principles and specific norms of a particular school of Muslim law: the Hanbalist in Saudi Arabia and the Jafarite in Iran .

If in Saudi Arabia Islamic law never gave way to its role as a clearly predominant source of law, then in Iran it again took a leading place only after the overthrow of the Shah’s regime, as a result of the course pursued by the leadership of the Islamic Republic, towards the Islamization of all aspects of socio-political, economic and state life. countries and even spheres of personal interests of citizens. In support of this, one can point to the introduction of a system of strict and sometimes cruel punishments for the slightest violation of not only legal, but also moral norms, relating in particular to clothing and leisure activities for Muslims. The Muslim courts operating in the country, contrary to the elementary requirements of justice and democratic legality, strictly adhering to Muslim norms when considering cases, often commit obvious violations and create arbitrariness. In Iran and Saudi Arabia, there are special institutions of Muslim control and inspection (hisba), which, without trial or investigation, can impose Muslim punishment for deviating from the rules of trade, public order or moral standards. The second group consists of the legal systems of Libya, Pakistan, Sudan. Although the scope of Islamic law is not as comprehensive here as in the first group, but still remains very significant, in recent decades they even show a tendency to expand. First of all, the principles and norms of Islamic law have a significant impact on the main acts of a constitutional nature and the activities of the state mechanism of these countries. Thus, the military regime of Pakistan justified the rejection of general elections by saying that they supposedly “do not meet the principles of Islam.” In Libya, in 1977, the Koran was generally declared the “law of society”, replacing the ordinary constitution. In all the listed countries of the second group, Muslim law, without any exceptions, continues to regulate personal status relations, and Muslim courts are preserved. Another large group consists of the legal systems of most Arab countries: Egypt, Syria, Iraq, Lebanon, as well as a number of countries in Africa (Somalia, Mauritania) and Asia (Afghanistan). Their constitutional law, as a rule, enshrines the special provisions of Islam and Muslim law. So the constitutions of many of them provide that only a Muslim can be the head of state, and Muslim law is the source of legislation. This constitutional provision is practically implemented in other branches of law and the judiciary. But on the other hand, in some of the countries (Iraq, Syria) there is a certain democratization of the Muslim legal provisions of family law. It is no coincidence that in a number of countries a course has been taken to concretize the norms of Muslim law and consolidate them in the current legislation. So in Iran, Pakistan, Libya, Sudan, its scope covers not only “personal status”, but also criminal law and procedure, certain types of financial and economic relations, and even institutions of state law.

This practice of developing the legal systems of a number of countries in recent years has also introduced certain adjustments into the structure of Islamic law in force here, some of the norms and institutions of which, previously supplanted by legislation borrowing Western legal models, are being revived and are beginning to be applied in practice.

Currently, Ijma is seen as a way to adapt fiqh to the needs of modern society.

Now there is a period of codification of Muslim law in many countries, among them Pakistan, Indonesia, and in Turkey since 1926 it was completely abandoned.

Conclusion: In the modern world, Islamic law coexists and closely interacts with other legal families. Islamic law, which has repeatedly experienced foreign legal influence, remains an independent legal family that has an impact on millions of people.

Conclusion

So, in this work, I have considered the process of emergence and formation of Muslim law, given a general description of Sharia and its main sources, presented Muslim law on the example of the law of the Arab Caliphate, analyzed the adaptation of Muslim law to the modern world.

Islamic law, in my understanding, is a system of norms expressed in religious form and based on the Muslim religion – Islam. Islam proceeds from the fact that the existing law came from the Almighty Allah, who at a certain point in history revealed it to man through his prophet Muhammad (pbuh). It covers all spheres of social life, and not only those that are subject to legal regulation.

Islamic law has four sources: the Holy Book of the Quran, consisting of the sayings of Allah addressed to the last of his prophets and messengers, Mohammed; Sunnah – a collection of traditional rules regarding the actions and sayings of Mohammed, reproduced by a number of intermediaries; Ijma – concretization of the provisions of the Koran in the presentation of major Muslim scholars; Qiyas is a reasoning by analogy about those phenomena in the life of Muslims that are not covered by previous sources of Islamic law. Such judgments are given a legal, social character.

The features of Islamic law include: the archaism of a number of institutions, casuistry and lack of systematization.

An analysis of the normative content of Muslim law allows us to conclude that not all legal norms are equally based on Islam as a religious dogma, or a system of purely religious normative prescriptions. The most firmly connected with religion are only those few, specific rules of conduct that are established with reference to the Koran or Sunnah. These include, for example, certain aspects of marriage and family relations or issues of inheritance, several statutory regulations.

They differ from other norms of Islamic law in that they essentially coincide in certain patterns of behavior with the relevant religious regulations and (in some cases) moral requirements illuminated by Islam. Precisely because their religious “duplicates” are enshrined in the Qur’an and the Sunnah, the very norms of Muslim law are considered by this variety as having a direct

To adapt Islamic law to modern reality, the following are used: agreements, legislation, customs that do not contradict it.

In countries with Islamic law, the constitution is not considered the basic law, and this role is played by the Koran, the Sunnah, the principles of consensus (Ijma) and analogy (Qiyas).

In a number of countries, a course has been taken to concretize the norms of Muslim law and consolidate them in the current legislation. So in Iran, Pakistan, Libya, Sudan, its scope covers not only “personal status”, but also criminal law and procedure, certain types of financial and economic relations, and even institutions of state law. This practice of developing the legal systems of a number of countries in recent years has also introduced certain adjustments into the structure of Islamic law in force here, some of the norms and institutions of which, previously supplanted by legislation borrowing Western legal models, are being revived and are beginning to be applied in practice.

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