Islamic Law and Legal Hybridity in Nigeria

2014 ◽  
Vol 58 (2) ◽  
pp. 303-327 ◽  
Author(s):  
Mamman Lawan
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Islamic Law ◽  
The Other ◽  
Colonial Administration ◽  
English System ◽  
Customary Laws ◽  
British Colonial

AbstractThe British colonial administration created a hybrid legal system in Nigeria where English, Islamic and customary laws apply. The English system, having a written constitution, was made dominant and the other laws apply to the extent permitted by it. However, Muslims in the northern part of the country have been making efforts to reverse this dominance, including the recent re-introduction of Islamic criminal law by 12 states. This effort is seen to be revolutionary, reverting the states to the position when Islamic law applied in full, devoid of colonial influence. This article asks whether this can break the legal hybridity and answers in the negative, arguing instead that the effort accentuates the hybridity. For example, the re-introduction of Islamic criminal law is enabled by the constitution, the constitution institutionalises the hybridity and the 12 states operate, and are bound by, the constitution. The article discusses other variables depicting the hybridity and concludes that it was a conscious colonial act, nearly impossible to break.

Connecting Tort and Crime: Comparative Legal History in England and Spain since 1850

2009 ◽  
Vol 11 ◽  
pp. 247-288
Author(s):  
Matthew Dyson
Keyword(s):  
Criminal Law ◽  
Legal History ◽  
Complete System ◽  
Civil Law ◽  
Tort Law ◽  
The Other ◽  
Criminal Courts ◽  
English System ◽  
History Of ◽  
The Relationship

Abstract This chapter explores the relationship between tort law and criminal law. In particular it tracks one line of developments in the procedural co-ordination of criminal and civil law: the ability of criminal courts to award compensation for harm. It is a study of legal change or development: how and why law has evolved from the middle of the nineteenth century through to the present day. The chapter is also comparative, looking at the English and Spanish legal systems. The history of powers to compensate has highlighted two fundamentally different ways to resolve claims based on a concurrently tortious and criminal wrong. The English system has slowly moved from disparate and piecemeal provisions to a general if under-theorised system. On the other hand, Spain created a novel and complete system of liability to be administered by the criminal courts. This chapter seeks to trace and explain this development with a view to understanding how much civil and criminal law can perform the same function: compensation.

Crime, Law and the Internet

2004 ◽  
Vol 26 (1) ◽  
Author(s):  
Eric Hilgendorf
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
The Other ◽  
The Internet ◽  
Other Hand ◽  
The World ◽  
At Will ◽  
Global Reach

AbstractAfter some introductory remarks on the German legal system and German legal politics, the main forms of datanet crime on the Internet are sketched. After that, one of the most important Internet-cases of the last decade, the CompuServe case, is discussed in some detail. One of the main problems of datanet crime is its global reach. The world-spanning nature of the cyberspace significantly enlarges the ability of offenders to commit crimes that will affect people in a variety of other countries. On the other hand, the jurisdiction of national criminal law cannot be expanded at will by any single nation. A transnational criminal law for the Internet is possible but should be restricted to the defence of universally (or nearly universally) accepted interests and values. In effect, it seems that the problems of computer-related crime on the Internet cannot be solved by criminal law alone.

scholarly journals Legal Pluralism within The Space of Sharia: Interlegality of Criminal Law Traditions in Aceh, Indonesia

2021 ◽  
Vol 5 (1) ◽  
pp. 426
Author(s):  
Dedy Sumardi ◽  
Ratno Lukito ◽  
Moch Nur Ichwan
Keyword(s):  
Civil Rights ◽  
Criminal Law ◽  
Legal System ◽  
Islamic Law ◽  
Customary Law ◽  
Legal Tradition ◽  
Legal Traditions ◽  
National Legal System ◽  
Psychological Pressure ◽  
Women And Children

This article aims to analyze various legal traditions working within the implementation of Islamic law after special autonomy in Aceh. Although Aceh's legal system follows the national legal system derived from civil law, diverse legal traditions still exist. The scope of this study is limited to the interaction of Aceh's legal traditions by taking the construction of juvenile and immoral criminal law and describing the social authorities who also operate the legal tradition to the parties in the case. This study presents the results using a case study model. Data obtained from interviews and documentation, analyzed using an interlegality approach. Based on the results of data analysis, it was found that the dialectic of legal traditions is determined by the role of actors acting as companions for victims to ensure that the rights of victims are not neglected. The traditions of Islamic law, customary law, and laws for protecting women and children are used interchangeably. The effort to combine these three legal traditions was carried out to obtain justice and guarantee the fulfillment of the victim's civil rights, such as the right to continue education, to relieve the trauma caused by the psychological pressure. The amalgamation of legal traditions in Aceh is an effective way to achieve justice for women and children and the construction of new laws to develop a national legal system that favors the interests of victims.

Pengaruh Adat dalam Hukum Keluarga terhadap Pembaruan Hukum Nasional

2019 ◽  
Vol 2 (1) ◽  
pp. 73-87
Author(s):  
Melani Diah Sekar Puri ◽  
Ridwan Arifin
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Family Law ◽  
Customary Law ◽  
European Law ◽  
Unitary State ◽  
National Legal System ◽  
Customary Laws

Indonesia as Unitary State consists of various kinds of tribes, customs, and even religions. The legal system adopted in Indonesia is not only civil or criminal law, but also mulually related religious and customary laws. Until recent years, Indonesia still uses European law as the national law and still try to make the customary law to be a national law. In fact, the implementation of European law is considered incompatible with the soul of the Indonesian people, especially in the the case family law. This paper seeks to uncover customary influences and effects in the development of family law in the national legal system.

PELUANG HUKUM PIDANA ISLAM DALAM PEMBENTUKAN HUKUM PIDANA NASIONAL DI INDONESIA

2018 ◽  
Vol 1 (4) ◽  
Author(s):  
Fitri Wahyuni
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Islamic Law ◽  
Civil Law ◽  
Legal Environment ◽  
Positive Law ◽  
National Legal System ◽  
The Future ◽  
Civil Laws ◽  
Islamic Civilization

Islamic law is prescribed by Allah SWT with the aim of realizing and realizing and protecting the benefit of humanity, both for the benefit of individuals, society or both. But Islamic criminal law is not understood correctly and deeply by society, even by the Islamic community itself. in the meantime, the position of Islamic law in the field of civilization has been broadly established in positive law, whether it is an element of influence, or as a modification of religious norms, which are formulated in civil laws and regulations, or which are covered by a substantial legal environment. Law No. 7 of 1989 concerning religious justice. Whereas Islamic criminal law has not yet gotten a place like the positive law of Islamic civilization. Whereas Islamic criminal law has the same opportunities as civil law in the national legal system based on three factors, namely philosophy, sociology and juridical. In addition to the three factors above, there are opportunities described in this study so that Islamic criminal law has the opportunity to establish national criminal law in the future  

Secularizing Islam: The Colonial Encounter and the Making of a British Islamic Criminal Law in Northern Nigeria, 1903–58

2019 ◽  
Vol 38 (2) ◽  
pp. 459-493 ◽  
Author(s):  
Rabiat Akande
Keyword(s):  
Criminal Law ◽  
Islamic Law ◽  
Northern Nigeria ◽  
Colonial State ◽  
Religious Difference ◽  
British Colonial ◽  
Colonial Encounter ◽  
The Relationship

Emerging critiques of mainstream accounts of secularism reveal the imbrication of the sacred and the secular in ‘secular’ states. In the context of colonial Northern Nigeria, this sacred-secular entanglement, which took the form of the co-option of Islam for the colonial ‘secular’ enterprise, did not leave Islam unchanged. Co-opting Islam for the colonial project necessitated the making of an Islamic Law amenable to the colonial state. With a focus on criminal law, this article narrates the making of a British Colonial Islamic law in Northern Nigeria through the unprecedented expansion of siyasa. Departing from orthodox accounts of Islamic law's reification in colonial Northern Nigeria and heterodox assertions of its erosion by the colonial state, this article argues that neither the reification nor the erosion accounts illuminates the relationship between the colonial state and Islamic law. To show how the colonial state could assert secularism while co-opting Islam, this article presents a narrative of reform that foregrounds the following questions: Who had (and exercised) the power to decide what Islamic law was? How was the exercise of this power justified? How did the exercise of this power fit with the broader colonial project of governing religious difference? What were the consequences of these processes for Islamic law, institutions and colonial subjects?

Legal Pluralism in Muslim-Majority Colonies: Mapping the Terrain

2012 ◽  
Vol 55 (4-5) ◽  
pp. 637-663 ◽  
Author(s):  
Paolo Sartori ◽  
Ido Shahar
Keyword(s):  
Present Article ◽  
Legal System ◽  
Final Section ◽  
Islamic Law ◽  
Legal Pluralism ◽  
Special Issue ◽  
Customary Laws ◽  
Muslim Majority ◽  
Written Traditions ◽  
Pluralisme Juridique

Abstract This essay aims to provide some analytical foundations for the study of legal pluralism in Muslim-majority colonies. Specifically, we contend that the incorporation of Islamic law into the colonial legal systems should be distinguished from the process of integration and codification of oral customs. As Islamic law constitutes a well-established legal system, based on written traditions and on elaborate institutions of learning and adjudication, its incorporation into the colonial legal system carried with it a number of implications. These are discussed, as are the tripartite relations that often emerge in Muslim-majority colonies between statutory laws, Islamic, and customary laws (ʿādat, ʿurf). The final section of the essay aims to present the articles included in this special issue and to place them within this broad context. Le présent article vise à établir des fondements théoriques à l’étude du pluralisme juridique dans les colonies à majorité musulmane. Il insiste en particulier sur la nécessité qu’il y a à distinguer l’incorporation de la loi islamique aux systèmes juridiques coloniaux, du processus d’intégration et de codification du droit coutumier non écrit. La loi islamique constitue un système bien établi, fondé sur des traditions écrites et pourvu d’institutions de formation et d’exercice complexes. Son incorporation au sein du système juridique colonial a entraîné un certain nombre de conséquences spécifiques, qui sont analysées ici. Une attention particulière est en outre accordée aux relations triangulaires qui se font jour entre loi statutaire, loi islamique et droit coutumier (ʿādat, ʿurf) dans les colonies à majorité musulmane. Enfin, la dernière partie est consacrée à la présentation des articles réunis dans le numéro spécial dédié à ces enjeux.

scholarly journals HUKUM ISLAM DALAM KERANGKA PEMBARUAN HUKUM PIDANA DI INDONESIA, DILIHAT DARI PERSPEKTIF TEORI HUKUM PEMBANGUNAN MOCHTAR KUSUMAATMADJA

2019 ◽  
Vol 4 (2) ◽  
pp. 98
Author(s):  
Aris Irawan
Keyword(s):  
Criminal Law ◽  
Islamic Law ◽  
Criminal Code ◽  
The Other ◽  
Way Of Life ◽  
Other Hand

<p><em>Development Law Theory refers to the life view (way of life) of Indonesian society based on the principle of Pancasila which encourages kinship then to norms, principles, institutions and rules. Updating laws is part of and at the same time implements punishment. Islamic Judicial Law, specifically concerning Role Law, stoning law for adulterers, as well as qishash, often gets a sharp spotlight from Non-Islamic societies such as Orientalists, as well as research, principles, legal laws and others required in the substance of the Criminal Code, actually regulated and applied in Islamic Law. On the other hand Islamic law in transition is not as rigid as imagined by Orientalists, but is instead flexible and can be used as a source of renewal of the National Criminal Law.</em></p>

scholarly journals SANKSI ADAT BAGI PELAKU KEKERASAN FISIK DITINJAU MENURUT HUKUM PIDANA ISLAM

2018 ◽  
Vol 3 (2) ◽  
Author(s):  
Abdul ◽  
Jamhuri ◽  
Irwansyah
Keyword(s):  
Physical Abuse ◽  
Criminal Law ◽  
Islamic Law ◽  
Head Injuries ◽  
The Other ◽  
Medical Expenses ◽  
Criminal Sanctions ◽  
Positive Law ◽  
Other Hand

Physical abuse is an act causing pain and injury to one's body. Today, there is a customary criminal law regulating the sanctions for the perpetrators of physical abuse, namely in Kampung Taman  Firdaus. However, the customary sanctions are significantly different from the penalties stipulated in Islamic law and positive law. The differences in the type and the rate of sanctions will have consequences on the purpose of a law formation. Therefore, this study examined the regulations of criminal sanctions for the perpetrators of physical abuse in Kampung Taman Firdaus. The results of this study concluded that the customary sanctions of physical abuse in Kampung Taman Firdaus were the fine of one goat for head injuries with blood flowing, and the penalty of one chicken for head injuries without blood flowing. On the other hand, for the physical abuse other than on the head and face, the customary sanction is only to pay medical expenses until the victim is healed,  and this sanction is not in line with Islamic criminal law. Abstrak: Kekerasan fisik adalah suatu tindakan yang  mengakibatkan rasa sakit dan terluka pada tubuh seseorang. Dewasa ini terdapat sebuah hukum pidana Adat  yang mengatur sanksi bagi pelaku kekerasan fisik yaitu di Kampung Taman  Firdaus. Namun pada sanksi Adat tersebut terdapat perbedaan yang signifikan terhadap hukuman yang diatur dalam hukum Islam dan hukum positif, dengan perbedaan dari jenis sanksi serta bobot sanksi tersebut akan berkonsekuensi pada tujuan dibentuknya suatu hukum. Oleh karena itu penelitian ini ingin melihat bagaimana ketentuan sanksi pidana bagi pelaku kekerasan fisik dalam Adat Kampung Taman Firdaus. Berdasarkan hasil penelitian ini dapat disimpulkan bahwa sanksi adat Kampung Taman Firdaus mengenai kekerasan fisik yaitu denda satu ekor kambing untuk luka di kepala yang darahnya mengalir, dan denda satu ekor ayam untuk luka di kepala yang darahnya keluar tidak mengalir. Sedangkan kekerasan fisik dengan objek selain kepala dan wajah sanksi adatnya ialah hanya membayar biaya pengobatan saja sampai sembuh, dan sanksi adat pada bagian ini tidak sesuai dengan hukum pidana Islam. Kata kunci : Sanksi Adat, kekerasan fisik, dan Hukum  Pidana Islam.

Shariah Punishments in Republic of Sudan

2019 ◽  
pp. 315-320
Author(s):  
Mohammad Hashim Kamali
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
The State ◽  
Penal Code ◽  
Colonial Rule ◽  
Principal Source ◽  
British Colonial

Although the Muslim influence on Sudanese law remained important, British colonial rule left the country with a mixed legal system. The primary legal influence remained British, yet the constitution of Sudan 1973 proclaimed shariah as the principal source of legislation. The 1998 constitution only adopted Islam as the state religion, which was followed by Nimeiri’s Penal Code 1983 episode. Al-Bashīr announced new amendments to Islamic criminal law, yet court sentences imposing shariah punishments often remained unenforced.

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