B. Differences in the opinions of the Sahabah (raa) as individuals. Some scholars accepted the opinion of a Sahabi as a legislative source, while others treated the Sahabah (raa) as Mujtahids whose individual opinions were not legally binding. Figuratively, fiqh means knowledge of Islamic legal judgments from their sources. In order to derive religious decisions from their sources, the mujtahid (a person who practices ijtihad) must have a deep understanding of the various discussions of jurisprudence. A faqīh must deeply examine an issue and not be satisfied only with the apparent meaning, and a person who only knows the appearance of a question is not called a faqīh. [2] Several other fundamental common law institutions may have been adopted by similar legal institutions in Islamic law and jurisprudence and introduced to England by the Normans after the Norman conquest of England and the Emirate of Sicily, as well as by the Crusaders during the Crusades. In particular, the “English Royal Treaty, protected by the Act of Debt, is identified with the Islamic AQD, the English Assisi of the novel Disseisin is identified with the Islamic Istihqaq, and the English jury is identified with the Islamic Lafif.” John Makdisi has speculated that English legal institutions such as the “school method of teaching the bachelor`s degree”, the “law schools known in England as Inns of Court and madrasas in Islam” and the “European commenda” (Islamic qirad) could also derive from Islamic law. [56] The methodology of precedents and reasoning by analogy (Qiyas) are similar in Islamic common law systems. [57] These influences have led some scholars to believe that Islamic law may have laid the foundation for “the common law as an integrated whole.” [56] Since 1980, some countries with fundamentalist Islamic regimes, such as Iran, have attempted to reverse the trend of Westernization and return to classical Sharia law.
But most Muslim jurists today believe that Sharia law can be adapted to modern conditions without abandoning the spirit of Islamic law or its religious foundations. Even in countries like Iran and Saudi Arabia, Sharia law is creatively adapted to new realities. Sharia law can also be seen as problematic, depending on who interprets it. Many observers view Sharia law as a rigid legal system that cannot evolve to reflect modern Western values. Sharia debates tend to focus on specific issues: 4.The explicit language used in some prohibitions is often limited by other provisions that allow for the legal excuse of justification as well as judicial discretion. Dual legal system. In some countries with large Muslim populations, such as Malaysia and Nigeria, the government has a secular judicial system, but Muslims may choose to take certain cases to Islamic courts. The exact jurisdiction of these courts varies from country to country, but generally includes marriage, divorce, inheritance and guardianship.
The Qur`an prohibits arbitrary arrest or detention[68] because human dignity must be respected and any criminal proceedings that violate this principle have no legal effect. [69] In addition, espionage and other forms of unlawful interference with a person`s privacy are also prohibited and have no legal effect. The Qur`an establishes rights, responsibilities and rules that people and societies must respect, such as not acting with interests. Muhammad then provided an example recorded in the books of hadiths and showed people how he put these rules into practice in a society. After Muhammad`s death, it was necessary for jurists to decide on new legal questions when there is no such provision in the Qur`an or hadiths, for example of the Islamic Prophet Muhammad in relation to a similar case. [18] [19] Most of the nearly fifty Muslim-majority countries around the world have Sharia-related laws, the leadership that Muslims believe God has given in a range of spiritual and worldly matters. Some of these countries have laws that require cruel punishment or unduly restrict the lives of women and minorities. However, there are large differences in how governments interpret and apply Sharia law, and people often misunderstand the role it plays in legal systems and in the lives of individuals. In the plural ahkam, it usually refers to certain Qur`anic rules or legal decisions derived from the methodology of fiqh. [1] Shari`a decisions fall into one of five categories known as “five decisions” (al-aḥkām al-khamsa): binding (farḍ or wājib), recommended (mandūb or mustaḥabb), neutral/permissible (mubāḥ), reprehensible (makrūh) and prohibited (ḥarām). [2] According to Islamic scholar Joseph Schacht, the categories were developed at least two centuries after the time of Muhammad. [Note 1] A Muslim jurist generally derives his authority from having acquired “competence and integrity” in discerning God`s law through accepted methods of textual analysis and reasoning, rather than from official government agencies (i.e., U.S.
judges at the state and federal levels). [22] Jurists` views on matters of Islamic law vary from region to region and from time to time, just as American law varies from state to state and even, as Professor Sadiq Reza points out, from “courtroom to courtroom.” [23] The opinions of Muslim jurists may be contained in a fatwa issued by the jurist in response to a question submitted to him by a cadi (judge), a party in a particular case, or in a treatise that collects the views of the qadi on various subjects. [24] Unlike a decision of a U.S. court, however, the opinion of a Muslim jurist becomes binding (in the common law sense) only if the view is adopted by a cadi in an actual court case or enforced by a rule or decision of an executive authority. [25] Islamic law varies from country to country, is influenced by local customs, and evolves over time. Sharia law is also the basis for legal opinions called fatwas, issued by Muslim scholars in response to requests from individual Muslims or governments seeking advice on a particular issue. In Sunni Islam, fatwas are strictly consultative; In Shia Islam, practitioners are obliged to follow the fatwas of the religious leader of their choice. In the principles of Islamic jurisprudence (usul al-fiqh), laws based on qanun could be equivalent to social customs (`urf), which is a recognized source of law if Sharia texts are silent. The legal principle of customs, and by extension customary or discretionary law, is that all customs are permitted unless there is evidence in Sharia law that prohibits them. The Islamic legal system is different from other legal systems such as civil law or common law traditions; The former are characterized by the codification of law and the latter by binding precedents. In Islam, there is no history of codification of laws, nor of understanding binding precedents as in common law.
[19] Some governments allow independent religious authorities to apply and decide the laws of their faith in certain situations. For example, the UK allows Islamic courts governing marriage, divorce and inheritance to make legally binding decisions if both parties agree.