Chapter III. MAIN BRANCHES AND INSTITUTIONS OF ISLAMIC LAW. CLASSICAL THEORY AND MODERN PRACTICE
Islamic law in modern legal systems. Experience from different countries
By the beginning of the 20th century, perhaps, 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. Other countries by the middle of the 20th century. they abandoned fiqh as the main legal form, and, for example, 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, the Maghreb countries, and Anglo-Saxon – Iraq , Sudan. Muslim rights here 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 remnants of feudalism and the deep influence of Islam on public consciousness.
In general, a similar assessment can be given to the legal system of Iran, where the scope of Islamic law has significantly narrowed as a result of serious reforms carried out in the 20-30s of our century, expressed, in particular, in the adoption of commercial, criminal, civil and civil procedural codes. Fiqh of the Jafarite persuasion retained its positions only in the field of personal status and determination of the legal status of waqfs (see [165, pp. 35-38, 224, pp. 106-108]).
A radical restructuring of legal systems, which in most of the countries under consideration by the middle of the 20th century. turned out to be oriented towards the perception of bourgeois legal models, as well as a wide codification of fiqh norms (primarily in the field of personal status) contributed to a change in the structure of Islamic law in force here in two main directions. First of all, if in the middle of the century Muslim law, as a system of existing norms, occupied a predominant place in the legal superstructure of this group of countries, then in modern conditions, until recently, in most of them it was possible to observe only the application of individual norms, institutions, or, in exceptional cases, industries. , the specific legal content of which was formed under the direct influence of fiqh. As a result, one had to deal not so much with proper Muslim law as with the norms that originate from it.
Emphasizing this genetic connection, when characterizing such provisions in terms of their specific legal content, with certain reservations, one can use the term “Islamic law”, which is rather conditionally applicable to the modern East. In other words, we are no longer talking about the operation of an integral independent system of Islamic law in parallel with the national legal systems that have developed in these countries, or about reducing the latter to Muslim law, which in most countries has gradually lost its significance as a universal regulatory legal regulator.
Qualitative transformations in the structure of Islamic law at the level of its branches were combined with noticeable changes in the legal features of its norms. The fact is that with the publication of the Majalla and the legislation on personal status issues, the role of the leading source of the current Muslim law gradually shifted to a normative legal act adopted by the competent state body. Therefore, if the traditional Muslim legal norms in most cases were of a casual nature and represented individual solutions to specific disputes, then as a result of the noted transformation, they began to acquire the form of uniform general rules of communication familiar to modern legislation.
At present, in none of the countries under consideration, Islamic law is the only law in force. But at the same time, not a single Muslim country has completely lost its position as a system of existing legal norms. The only exception is, perhaps, Turkey, where in the 1920s, after the official abolition of the Caliphate, Muslim law in all sectors (including the sphere of regulation of marriage and family relations) was replaced by bourgeois-type legislation drawn up on the basis of borrowing the Western European model.
Ultimately, the direction and depth of the impact of Islamic law on the modern legal development of a country is determined by the level of economic and cultural development it has achieved.
Therefore, one cannot ignore the obvious differences in the positions that Muslim law occupies in the legal superstructure of the individual countries under consideration. It is no coincidence, for example, that it continues to be most widely used in the countries of the Arabian Peninsula and the Persian Gulf (with the exception of the PDRY), where feudal social relations are largely preserved.
Taking into account the factor of social conditioning, when evaluating the position of Islamic law, one should not discount another important circumstance – not all elements of modern legal systems of the countries of the East are equally influenced by Islamic law. This situation is largely determined by the specifics of the Muslim legal form itself, in particular the nature of the relationship between Muslim law and the state. Of great importance are also the features of the normative composition and structure (system) of Islamic law, which, as has been shown, are characterized by a noticeable predominance of private legal branches and differences in the levels of development of its individual elements.
Taking as a basis the scale of application of the norms of Islamic law and the degree of its influence on the current legislation, it is possible, in order to pose the question, to propose the following classification of modern legal systems of the countries of the foreign 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. In these two countries, Islamic law also plays a leading role in other branches of the law in force, which is also confirmed at the constitutional level: the Iranian constitution, in particular, establishes a provision on the mandatory compliance with Sharia of all adopted laws (the Basic Law of the Hijaz of 1926 also provided for that the normative acts of the state are based on the principles of Islamic law). In order to fulfill 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 Hanbali school in Saudi Arabia and the Jafarite school in Iran. In the area of personal status, Islamic law continues to be generally applied in its traditional form. The same applies to the principles of the judiciary, as well as the rules of the judicial process.
If in Saudi Arabia Muslim law never yielded to its role as the predominant source of law, 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 the socio-political, economic and state life of the country and even spheres of personal interests of citizens. In support of this conclusion, it suffices to 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 forms of leisure for Muslims. All those who may be suspected of having a negative attitude towards the existing regime are ruthlessly persecuted (the number of those executed (the opponents of the Islamic Republic is already several thousand people). In addition, in April 1981, a law came into force providing, following Islamic law, a strict system 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 allow obvious violations and commit arbitrariness, which even the leaders of the country were forced to admit. there are special institutions of Muslim control and inspection (hisba), which, without trial or investigation, can impose Muslim punishments for deviations from the rules of trade, public order or moral standards.
The second group consists of the legal systems of the YAR, Libya, Pakistan and Sudan. Although the scope of Islamic law here is not as comprehensive as in Saudi Arabia and Iran, it still remains very significant, and even shows a tendency to expand in the last decade. First of all, the principles and norms of Islamic law have a noticeable impact on the main acts of a constitutional nature, on the structure and 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.” The dissolution of the Parliament and its replacement by the President-appointed Consultative Council, which performed purely advisory functions under the sovereign head of state, were “explained” in a similar way. In Libya, in early 1977, the Koran was generally declared the “law of society”, replacing the ordinary constitution. In addition, in all four of these countries, fiqh is officially given the main place in the legal system as a whole. Thus, (the constitutions of the YAR of 1970 and Pakistan of 1973 consolidate the position of Muslim law as the main source of legislation, and the constitution of Sudan of 1985 considers Muslim law as such, together with custom. In Pakistan, in 1977, the Council of Islamic Ideology was created, which began to develop proposals to bring the current legislation in the country in line with Sharia.On his recommendation, the law on the Islamization of the country’s socio-political life soon came into force.
In 1975, in accordance with the constitution, the so-called scientific commission for the codification of the norms of Muslim law began to operate in the YAR (since 1978, its powers have been transferred to the Constituent People’s Assembly). Even earlier, in 1971, the Libyan Revolutionary Command Council decided to amend and supplement existing laws in the spirit of Islamic law. Such a general attitude (has been concretely embodied in a number of legal acts adopted in these countries. For example, based on the constitution, according to which the state is obliged to provide Muslims with all the conditions that correspond to the basic principles of Islam, as well as the law on Islamization mentioned above, the leadership of Pakistan, starting from In 1979, a whole series of legal acts were enacted, supposedly designed to promote the establishment of the “Muslim way of life”, including acts on the prohibition of usury, sunset and morning, a number of criminal laws. Islamization of all aspects of the country’s socio-political life was chosen as a method of strengthening the legitimacy Zia-ul-Haq’s regime In Libya, as early as 1972, laws were enacted on zakat, the prohibition of interest on loans between individuals and the punishment of theft and robbery by amputation of a hand or hand and foot, which was presented as the first step towards “Revival of true Islam.” Over the next two years, there were also adopted the laws on punishment for adultery and the use of alcoholic beverages, which took as a basis the conclusions of the Maliki persuasion of Muslim law. In YAR, on the initiative of the Commission for the Codification of Islamic Law in 1976-1978. in particular, laws on donations and waqfs, on establishing the amount of ransom for blood in case of murder and bodily injury, family and procedural codes came into force. All these acts provide, in the event of their silence, the application of the “most appropriate” principles and norms of Islamic law.
Decisive measures to Islamize the legal system were also taken in Sudan. In 1983, a new criminal law came into force here, which adopted the basic institutions of Muslim law (its effect applies to all citizens, including non-Muslims living in the southern provinces of the country), and in early 1984 a presidential decree was signed on the introduction Muslim legal norms regulating issues of land ownership. After the overthrow of the reactionary regime of Nimeiri in April 1985, the new leadership of Sudan announced its intention to annul this legislation. At the same time, it is emphasized that this is not about the rejection of Muslim law in general, but about the replacement of previous acts with new ones, providing for the introduction of its “true” norms.
In all four of these countries, Muslim law, without any exceptions, continues to regulate the relationship of personal status and the legal status of waqfs, and Muslim courts are preserved.
The legal systems of a number of countries in the Persian Gulf – the United Arab Emirates, Bahrain, Kuwait, as well as Southeast Asia – Brunei, individual states of Malaysia can be singled out as an independent group. The basic laws of these countries, as a rule, fix the state character of Islam and proclaim Islamic law as the main source of legislation. The legal systems of this group of countries also experience a noticeable influence of Islamic law, although not as deep as in the two previous ones. For example, the criminal codes of Kuwait 1960 (as amended in 1964) and Bahrain 1976 punish drinking and gambling. Brunei passed a law to restrict the sale of alcoholic beverages. UAE legislation regulates in detail the legal status of imams and khatib mosques, while Bahrain has laws on organizing the hajj and the sunset fund. The Bahraini Judiciary Law states that in the event of silence of the law, the courts apply the general principles and specific rules of Islamic law. In Brunei and Malaysia, the norms of Muslim tort law are applied to violators of religious duties [186, pp. 27-51, 69-75].
Another, the most numerous group consists of the legal systems of most Arab countries (Egypt, Syria, Iraq, Lebanon, Morocco, Jordan, Algeria), as well as a number of countries in Africa (Somalia, Mauritania, the northern states of Nigeria) and Asia (Afghanistan). Several aspects of the influence of Islamic law on the legal systems of this group of countries can be traced. Their constitutional law, as a rule, establishes a special position of Islam and Muslim law. Thus, 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. Thus, in the field of family law in many of these countries, laws have been adopted that are almost entirely based on Muslim law. These are the Ottoman law on family rights of 1917, in force in Lebanon, the Egyptian family laws of 1920 and 1929, the Syrian law on “personal status” of 1953, similar laws of Jordan, Iraq, Morocco, Somalia, Afghanistan, etc.
The civil codes of a number of countries (for example, Egypt, Syria, Iraq) contain a provision according to which all issues related to inheritance and wills are regulated on the basis of Islamic law and laws issued in accordance with them. Such laws (codes) on issues of inheritance, wills, guardianship, guardianship, limitation of legal capacity have been adopted in many countries of this group. In some cases, these issues are regulated by Islamic law in the traditional form of doctrine.
In other areas, Islamic law does not operate so universally. However, some of its rules continue to apply here. In civil law, in addition,
its subsidiary application in cases not regulated by law. Thus, the first articles of the civil codes of Egypt, Syria, Iraq, Algeria, Afghanistan, Jordan state that in case of silence of the law, the judge applies the principles of Islamic law. On the other hand, the civil codes of these countries themselves enshrine in their articles many general and specific provisions of Islamic law on the abuse of right, on unforeseen circumstances, the lease of agricultural and waqf land, the transfer of debt, etc. A certain role in the civil law of these countries, in particular in regulation of property rights to real estate, play Muslim norms on the regime of waqf property. A similar situation has developed in some other areas, in particular in the criminal law of Morocco and Northern Nigeria [211, p. 78] We also note that the 1976 Afghan Criminal Code also provides for the possibility of punishment under Islamic law for such crimes as murder, robbery, drinking alcohol, theft, adultery, etc.
In general, the scam of the operation of Muslim law in this soil of the countries is quite limited. In some of them (Syria, Iraq) there is a certain democratization of the Muslim legal provisions of family law. However, in some cases, the opposite trend is also found. In particular, attention is drawn to the strengthening of the positions of Muslim law in the legal system of Mauritania, where in 1980 a special Muslim court was created, which has repeatedly applied the Muslim penalty – amputation of a hand for theft. In all countries of this group (with the exception of Egypt, Afghanistan and Algeria) there are Muslim courts that apply many rules of Muslim procedural law when considering disputes related to personal status relations (in Egypt, such rules are applied by general civil courts). The norms of Islamic law on inheritance, wills, waqfs, guardianship, guardianship and limitation of legal capacity in most of them apply to all citizens, including non-Muslims.
A special group is made up of the legal systems of those African (Tanzania, Mali, Chad) and Asian (India, Philippines) countries where Muslim law continues to regulate personal status relations among Muslims, as well as the legal status of waqfs, the collection and spending of zakat. Sometimes the norms of fiqh also influence the legislation adopted in these countries. Thus, in Tanzania, the family code of 1971 consolidated certain norms of Muslim law. True, it does not work in Zanzibar, where the majority of the country’s Muslims live, who continue to apply the provisions of Islamic law in its traditional form of doctrine in both family and (partially) civil law. In these countries, as a rule, Muslim courts operate (in 1982, for example, they were officially recognized in the Philippines).
Finally, the legal systems of Tunisia and the PDRY occupy a special position. Their marriage and family legislation is somewhat influenced by Muslim law, but it refuses a number of its fundamental institutions, for example, polygamy is legally prohibited in Tunisia, and the 1974 PDRI Family Code, although it consolidated certain provisions of the Sharia, essentially endowed a woman with equal rights with a man in family relationships. Muslim courts have been abolished in both countries. Therefore, we can conclude that, compared with other countries under consideration, the scope of Islamic law is the least significant here (except for Turkey, whose legislation, as already noted, does not enshrine Sharia norms at all).
In connection with the consolidation of the provisions of Sharia in the legislation of Islamic countries, it is natural to raise the question of the significance of such a transformation for Islamic law itself and its role in the legal systems of these countries. In other words, in what sense can such normative acts be called “Islamic law”, how to understand the constitutional formula that Muslim law is the main source of legislation?
In answering this question, it seems to us that one should take into account several aspects (of the problem posed. First of all, retrospectively tracing the evolution of Islamic law, one must state the important differences between its classical norms and those provisions that are adopted by modern legislation. It would be inaccurate to show that Muslim law in the new conditions continues to act as an independent legal phenomenon only in a slightly modified form.Significant changes have affected not only the form of its relevant provisions, which is primarily striking, but also their social purpose and, although to a lesser extent, specifically normative content .
Therefore, it is impossible to reduce the problem only to a change in the form of Islamic law. This transformation is based primarily on fundamental changes in the class-volitional content, the role of Muslim law in modern legal systems. The main thing is that now we are not talking about the operation of an integral independent system of Islamic law in parallel (along with) the national systems of law operating in these countries, or, even more so, about reducing these latter to Islamic law. Separate norms of Muslim law, fixed in modern legislation, in essence, have largely lost their former specificity, the characteristic legal features of fiqh. Only the right of personal status continues to maintain relatively greater independence, occupying a special place in the legal system in
in general. However, this relatively isolated set of legal norms, under the influence of modern legislation, is being restructured in its principles, more and more subject to the general laws of development, functioning, social purpose of the entire legal system, which is generally not guided by the Muslim legal form.
All this gives grounds for the conclusion that Islamic law is gradually losing its independent significance at the level of the system of law as a whole. However, the Muslim legal doctrine often still continues to act as a form of law, which is also confirmed by the legislation of the countries in question. Thus, the family law of the ARE and the SAR provides that in the event of silence of the law, the judge applies “the most preferable conclusions of the Abu Hanifa type”, and according to Libyan laws, the conclusions of the Maliki type apply in this case. Note that Art. 2 constitutions of the SAR. The term fiqh (Islamic law) is used in it primarily in the meaning of “Islamic legal doctrine”, and the formula “Islamic law is the main source of legislation”, in essence, means the constitutional recognition of the Muslim legal doctrine as the main form of law.
In most cases, however, Islamic legal doctrine does not matter as an independent form of law. Indeed, if the provisions of fiqh are enshrined in the articles of the current legislation, then the form of law here is the normative legal act of state power. This, of course, does not mean that one can generally ignore the influence of Islamic law as an important informal factor in law formation. After all, the approach to the problem from the point of view of the form of expression of legal norms takes into account only its external side, leaving aside the question of the content of the act that adopted the norms of Islamic law, of its reflection of real social relations, in other words, of the factors that determine the content of normative prescriptions.
Law is in close interaction, mutual influence with many social phenomena. The social force that forms the law should be recognized as the totality of social (economic, political, ideological, socio-psychological) relations that determine the essence and content of legal norms (the source of law in the literal sense), directly created or sanctioned by state power (the source of law in the formal sense) (cf. (217, pp. 572-573]). Among the factors that are not directly related to the economy and have a noticeable impact on the formation and development of law of any historical type, continuity is important (see [1134; 311; 312 ]).In the conditions of the countries under consideration, among the elements of the former legal superstructure, with which their legal systems retain a well-known “thread of continuity”, should also be attributed Muslim law, which for many centuries occupied the dominant legal positions in this region of the world and fulfilling in new historical conditions, a very specific, special role in the formation of legal norms . At the same time, the ratio of the moments of the destruction of the old and its partial perception in relation to Muslim law, which is characteristic of continuity in law in general, has its own characteristics: continuity here covers the perception not only and not so much of the elements of form as of the moment of content, of certain principles of legal regulation – for example, in the field of family law. rights.
The legal culture, the level of legal consciousness, legal ideology and psychology have a profound influence on the law of any country. Legal motives, views, ideas can be a direct ideological and psychological source for the formation of legal norms [218, p. 347]. Islamic law plays a special role in this respect. This refers to Muslim law in a broad interpretation, that is, taken not only in the normative aspect, but also as an important political, ideological and psychological factor, an element of social and normative culture. It should be emphasized that the specifics of the form and other features left a deep imprint on the psychological mechanism of the operation of Muslim law: in the eyes of the broad masses, its norms often, especially in the sphere of personal status, acted and act in the form of uniform rules of conduct – both legal and moral, and religious. The literature correctly notes that the actual relationship between forms of law is of great importance for the prevailing ideas about what should be considered proper law [326, p. 115]. It is no accident, therefore, that if in the countries of the Anglo-Saxon legal system law in the mass consciousness is associated primarily with law in the subjective sense [656, 197.1, No. 10, p. 131, rights and freedoms that can be protected by the court, and for a representative of the continental legal system it is largely consonant with the concept of “law”, then Muslim law is perceived primarily as a universal religious, moral and legal doctrine, an indicator of the evaluation of any act, and in a formal sense – as the opinion of the founders of major legal schools and their adherents, many hundreds of “legal books” in which the basic legal principles and decisions of specific cases are doctrinally stated.
The Muslim legal form is inextricably linked with religion, which still has an enormous impact on the masses. Of all the modern world religions, Islam is perhaps the most closely associated with politics, the state and law. Muslim law is the link here. At the same time, it has an impact on modern
legal development of the countries of the East primarily through legal ideology and psychology. It can be said that the scope of Islamic law as an ideological factor is much wider than the scope of its specific normative prescriptions. In other words, the normative approach to Islamic law, studying it only as a set of norms that give rise to specific rights and obligations, in reality turns out to be insufficient for understanding the place that Muslim law occupies in modern legal systems and in the entire legal superstructure of the countries under consideration. This is largely facilitated by the fact that Islamic law, as already noted, consists of two layers: decisions on specific cases and general norms-principles.
Many modern researchers argue that not specific rules of conduct, but rather norms-principles are the fundamental and most stable part of Muslim law, suitable for all times and peoples, guaranteeing its compliance with the needs of social progress (see, for example, [468, p. 48 -49]). Most often they refer to such principles as “the possibility of changing norms with a change in time, place and conditions”, “the norm in its existence and disappearance follows the fate of its foundation”, “everything that is permitted can be limited by the legislator”, “need does not know prohibitions”, etc. From these positions, the necessity of limiting polygamy and the exclusive right to divorce according to Muslim law, nationalization of natural resources, restriction of property, etc. is substantiated. even an entire branch of law, if they follow these abstract principles. For example, according to this view, Muslim criminal law provides the legislator with complete freedom in choosing the measure of punishment for any crime, excluding only a few types of acts for which the Koran provides for invariable penalties. Therefore, practically all modern criminal laws, since they do not affect these acts, are declared to be consistent with Islamic law. “The assumption of contradictions between the general (principles of positive and Muslim law) should be avoided,” says the Egyptian jurist Shafik Shihata [491, pp. 136-137].
All law-making activity of the modern state is evaluated from the standpoint of these principles. This, in our opinion, is the hidden meaning of the provision that the constitutions of a number of countries fix the principles of Muslim law, and not its specific norms, as the main source of legislation.
Such an approach to evaluating the place of Muslim law in the legal systems of the countries under consideration is very characteristic of the modern evolution of Muslim legal ideology. It reflects the irreversible process of narrowing the scope of positive Islamic law and the almost universal rupture of real social relations with the specific legal prescriptions of Sharia. Under these conditions, the main focus is not on protecting the specific normative content of Islamic law, but on promoting, first of all, the “universal suitability” of its general ideas – principles. However, if the individual principles of Islamic law correspond to the needs of social progress, it is only because they reflect certain trends in the development of law in general and are equally suitable for various legal systems and social conditions, precisely because of their very general nature.
It is natural, therefore, that the specific historical role of Islamic law is determined primarily by the nature of the class forces ruling in a particular country. It bears the imprint of the feudal legal form with its uncertainty and intricacy, which leads to the pluralism and inconsistency of the content of both the system as a whole and many individual norms. Therefore, there are objective grounds for emphasizing both (survival and relatively progressive elements of Islamic law.
Such a rather wide range, “elasticity”, of Muslim law gives it an immanent opportunity to serve the interests of the most diverse, sometimes opposing political currents. Thus, in the last decade, the Muslim legal doctrine in a number of countries of the East began to consider the prospects for the development of Muslim law in a different way and evaluate the existing legal systems in comparison with it. In particular, this theory no longer attaches self-sufficient significance to the general principles of Islamic law noted above. On the contrary, a state, which in its law-making is guided not so much by these principles, as by the specific prescriptions of the Sharia, began to be recognized as truly Muslim. It is no coincidence that in a number of countries a course has been taken to revive specific norms of Islamic law and their consolidation in the current legislation. Thus, in Iran, Pakistan, Libya, the YAR, Sudan and some other countries, its scope now covers not only “personal status”, but also, as will be shown, criminal law and procedure, certain types of financial and economic relations, and even state institutions. rights. In recent years, this practice of developing the legal systems of a number of countries under consideration 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 bourgeois legal models, are being revived and are beginning to be applied in practice.
 The special independence of the right of personal status is clearly manifested, for example, in the fact that relations by inheritance and testament, which are usually regulated by civil law, in most of the countries under consideration are not subject to civil codes. The specificity of these institutions brings them closer to family law, with which they constitute a kind of complex industry with their own characteristics in the form, sources and methods of legal regulation.
 Indicative in this regard is the thesis defended by Subhi Mahmasanig “Muslim law should be studied based on the content of its books, sources and roots that gave it life, and not by observing the behavior of Muslims” [468, p. 166].
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