Comparative Law and the Islamic (Middle Eastern) Legal Culture

2006 ◽  
pp. 608-640 ◽  
Author(s):  
Chibli Mallat
Keyword(s):  
Rule Of Law ◽  
Islamic Law ◽  
Middle Eastern ◽  
Comparative Law ◽  
Legal Culture ◽  
Public And Private ◽  
The Rule Of Law ◽  
The Third ◽  
Nation States ◽  
Western Side

This article examines comparative law in Islamic legal culture. The first section discusses the comparative framework in Islamic law and civilization. The second section describes the rule of law in the prism of the legal profession. The third section discusses the notions of public and private in issues such as constitutions, contracts and torts, and family law. A millennium and a half after the Islamic revelation, unrest and violence associated with the Islamic/Middle Eastern world make one wonder, from a comparative perspective, whether West and East are not on a collision course precisely because of their diametrically opposed concepts of law. On the Western side, law is associated with nation-states and their territory; on the Islamic/Middle Eastern side, law is dominated by the personal dimension, defined on the basis of religion and even sect within that religion.

Comparative Law and the Islamic (Middle Eastern) Legal Culture

2019 ◽  
pp. 623-651
Author(s):  
Chibli Mallatt
Keyword(s):  
Rule Of Law ◽  
Islamic Law ◽  
Middle Eastern ◽  
Comparative Law ◽  
Legal Culture ◽  
Public And Private ◽  
The Rule Of Law ◽  
The Third ◽  
Nation States ◽  
Western Side

This article examines comparative law in Islamic/Middle Eastern legal culture. The first section discusses the comparative framework in Islamic law and civilization. The second section describes the rule of law in the prism of the legal profession. The third section discusses the notions of public and private in issues such as constitutions, contracts, and torts, and family law. A millennium and a half after the Islamic revelation, unrest and violence associated with the Islamic/Middle Eastern world make one wonder, from a comparative perspective, whether West and East are not on a collision course precisely because of their diametrically opposed concepts of law. On the Western side, law is associated with nation-states and their territory; on the Islamic/Middle Eastern side, law is dominated by the personal dimension, defined by an individual’s religious, and often sectarian identity.

Good Governance

2019 ◽  
Author(s):  
Henk Addink
Keyword(s):  
South Africa ◽  
Rule Of Law ◽  
Good Governance ◽  
National Level ◽  
Administrative Law ◽  
Modern State ◽  
The Rule Of Law ◽  
The Third ◽  
Legal Perspective ◽  
Further Development

The pivotal aim of this book is to explain the creation, development, and impact of good governance from a conceptual, principal perspective and in the context of national administrative law. Three lines of reasoning have been worked out: developing the concept of good governance; specification of this concept by developing principles of good governance; and implementation of these principles of good governance on the national level. In this phase of further development of good governance, it is important to have a clear concept of good governance, presented in this book as the third cornerstone of a modern state, alongside the concepts of the rule of law and democracy. That is a rather new national administrative law perspective which is influenced by regional and international legal developments; thus, we can speak about good governance as a multilevel concept. But the question is: how is this concept of good governance further developed? Six principles of good governance (which in a narrower sense also qualify as principles of good administration) have been further specified in a systematic way, from a legal perspective. These are the principles of properness, transparency, participation, effectiveness, accountability, and human rights. Furthermore, the link has been made with integrity standards. The important developments of each of these principles are described on the national level in Europe, but also in countries outside Europe (such as Australia, Canada, and South Africa). This book gives a systematic comparison of the implementation of the principles of good governance between countries.

Prosecutors and National Security

2021 ◽  
pp. 538-558
Author(s):  
Kent Roach
Keyword(s):  
Human Rights ◽  
National Security ◽  
Rule Of Law ◽  
Ethical Challenges ◽  
Criminal Cases ◽  
The Rule Of Law ◽  
The Third ◽  
Relative Rarity ◽  
The Many ◽  
Operational Aspects

This chapter examines the distinct operational and ethical challenges that prosecutors face in national security and especially terrorism cases. The second part of this chapter focuses on the operational challenges that prosecutors face. These include demands for specialization that may be difficult to fulfill given the relative rarity of national security prosecutions; the availability of special investigative powers not normally available in other criminal cases; exceptionally broad and complex offenses; and the demands of federalism and international cooperation. The third part examines ethical and normative challenges that run throughout the many operational aspects of the prosecutorial role in national security cases. These include the challenges of ensuring that often exceptional national security laws are enforced in a manner consistent with the rule of law and human rights. There are also challenges of maintaining an appropriate balance between legitimate claims of secrecy and legitimate demands for disclosure and between maintaining prosecutorial independence and discretion while recognizing the whole of government and whole of society effects of the many difficult decisions that prosecutors must make in national security cases.

scholarly journals THE IMPACT OF THE LAW VALUES TO OVERCOME LEGAL NIGILISM

2019 ◽  
Keyword(s):  
Civil Society ◽  
Rule Of Law ◽  
Natural Law ◽  
Negative Attitude ◽  
Legal Culture ◽  
Social Value ◽  
The Rule Of Law ◽  
Potential Strength ◽  
Objective Property ◽  
High Level

The article substantiates the idea that in the process of the formation and development of the foundations of a civil society and the rule of law, legal nihilism continues showing to a certain extent its potential and thus inhibiting progressive legal changes. Attention is focused on the peculiarities of the stability of legal nihilism and the problems of its gradual overcoming. It is emphasized in the offered article the importance of the law values priority, of the legal ideal, of the principle of social justice in the process of eradicating the manifestations of legal nihilism in the relevant areas of society life activity and personality. The authors came to the following conclusion: Values of law is a phenomenon of objective property, to be based on the ideas of the natural law, arising from the fact of human existence and directed exclusively to a person, to his rights and needs. Value entity of law really manifests itself only under operating conditions of civil society and legal state, recognising a person, his rights and freedoms as the highest social value. Legal nihilism begins losing its potential strength only when the majority of members of civil society recognize the priority of values of law. Confrontation of values of law and legal nihilism decisively narrows the scope of negative legal phenomena in all forms of their manifestation. Basing on the values of law, civil society institutions can solve problems being in the field of interests and needs of each person, so creating favourable conditions to eradicate legal nihilism. Using the truly valuable potential of law (first of all, legal law), civil society and legal state carry out transformations that ensure decent existence of any individual and by this minimizing the manifestation of legal nihilism. Even with a sufficiently high level of development of civil society and legal state, the practical negative attitude to legal nihilism should not weaken, because in the face of any social and legal reality, various offenses (including serious crimes) can be committed. Overcoming legal nihilism is associated with constant increase in the level of legal awareness and legal culture of the majority of members of civil society, which is a consequence of the following conclusions. Values of law is a phenomenon of objective property, based on the ideas of natural law, arising from the fact of a person’s existence and directed exclusively to a person, his rights and needs. The value essence of law really manifests itself only in the conditions of the functioning of civil society and the rule of law, recognize a person, his rights and freedoms as the highest social value. Legal nihilism begins to lose gradually its potential strength only when the majority of members of civil society recognize the priority of the values of law. The confrontation of the values of law and legal nihilism decisively narrows the scope of negative legal phenomena in all forms of their manifestation. Based on the values of law, civil society institutions can solve problems that are in the field of interests and needs of each person, which creates favourable conditions for the eradication of legal nihilism. Using the truly valuable potential of law (first of all, legal laws), civil society and the rule of law carry out those transformations that ensure the worthy existence of the individual and thereby minimize the manifestation of legal nihilism. Even with a sufficiently high level of development of civil society and legal law any negative attitude to legal nihilism should not be weaken, since in the conditions of any social and legal reality, various offenses (including serious crimes) can be committed. Overcoming legal nihilism is associated with permanent increase in the level of legal awareness and legal culture of the majority of civil society members which is a consequence of increase of quality of legal education and upbringing.

scholarly journals Analisis terhadap Larangan Analogi dalam ‎Rancangan Undang-Undang Kitab Undang-Undang ‎Hukum Pidana

2016 ◽  
Vol 2 (2) ◽  
pp. 408-419
Author(s):  
Ikhsan Fatah Yasin
Keyword(s):  
Rule Of Law ◽  
Islamic Law ◽  
Criminal Code ◽  
The Rule Of Law ◽  
The Public ◽  
The People ◽  
Draft Bill ◽  
Good Analogy

Abstract: This article discusses the analysis of the prohibition of analogy in the Draft Bill. The majority of the experts of jurisprudence against analogy. The author does not agree with the ban on using the analogy in the Draft Bill, but justifies the analogy with the record, the judge must be competent and with integrity. If the judge is unable to make analogy, then he could use self-interpretation to find a legal decition. The argument of usage of analogy is to seek substantial justice for the people without setting aside the individual’s rights, because by using the analogy, the rule of law will remain unfulfilled. It is because the crime, in its various forms, is still contrary to morality even though it is not written, and even if the crime has an impact to the public. In Islamic law, the method of qiyâs compiled by Imam Shafi’i in may be used as a good analogy, because qiyâs method has been tested by producing many laws.Keywords: Analogy, draft bill, the criminal code. Abstrak: Artikel ini membahas tentang analisis terhadap larangan analogi dalam RUU KUHP. Mayoritas para ahli ilmu hukum menentang analogi. Penulis tidak sepakat dengan larangan menggunakan analogi dalam RUU KUHP, tetapi membenarkan analogi dengan catatan, hakimnya harus kompeten dan berintegritas. Jika hakimnya memang tidak mampu untuk beranalogi, maka ia masih bisa menggunakan interpretasi untuk menemukan hukumnya.   Argumen diperbolehkannya analogi adalah untuk mencari keadilan substansial bagi masyarakat tanpa menyampingkan perlindungan individu, sebab dengan menggunakan analogi kepastian hukum akan tetap terpenuhi. Karena kejahatan, dalam berbagai bentuknya, tetap saja bertentangan dengan kesusilaan meskipun ia tidak tertulis, apalagi jika kejahatan tersebut membawa pengaruh kepada masyarakat luas. Dalam hukum Islam, metode qiyâs yang disusun oleh Imam Syafi’i dalam berijtihad mungkin dapat digunakan sebagai proses analogi yang baik, sebab metode qiyâs ini sudah teruji dengan memproduksi banyak hukum. Kata Kunci: Analogi, Rancangan Perundang-undangan, KUHP.

scholarly journals Engaging Foreign Law: Not So Liberally

2019 ◽  
Vol 19 (75) ◽  
pp. 11-19
Author(s):  
Pierre Legrand
Keyword(s):  
Rule Of Law ◽  
Local Knowledge ◽  
Comparative Law ◽  
The Rule Of Law ◽  
Legal Thought ◽  
Foreign Law ◽  
Georgetown University ◽  
The Way

Taking its cue from a remarkable institutional initiative owing to the Georgetown University Law Center, this essay contests some of the key assumptions that have informed liberalism’s cosmopolitan turn. In particular, the argument addresses the way in which liberal legal thought has handled a doctrine widely known as “the rule of law”. The text challenges the universalizing drive having informed the dissemination of “the rule of law” and the attendant marginalization of culture in the form of the decredibilization of local knowledge. The paper suggests that “comparative law” can offer a valuable opportunity for the liberal self to revisit its uniformizing ideological commitments  — although not “comparative law” of the mainstream brand.

scholarly journals The Implementation Effort Islamic Law Norms in Activities for Overcoming Pornography and Pornoaction on Mass Media

2017 ◽  
Vol 5 (1) ◽  
pp. 1-12
Author(s):  
Ramlani Lina Sinaulan
Keyword(s):  
Mass Media ◽  
Rule Of Law ◽  
Islamic Law ◽  
Social Values ◽  
The Rule Of Law ◽  
Implementation Effort ◽  
Permissive Attitude ◽  
The Social ◽  
Universal Properties ◽  
The Times

This paper discusses the effort Islamic Law norms in activities for overcoming pornography and porno-action on mass media. By using normative legal research, the result found that the concept of Islamic law, behave based on sharia, shows the importance of shaping the personality traits of Islam (syakhsiyya Islāmiyya) and based on the devotion and faith. Because of the relation to the formulation of the rule of law against pornography behavior, it can not be designed, prepared and formulated based on social values. Based on the facts of society, as a result of the moral decadence that led to a permissive attitude towards their cultural infiltration, the social values in assessing the behavior may become more permissive toward behavior. However, the use of religious norms which have universal properties will not change, and even capable of elastic with the times.

The Restatements and the Rule of Law

2020 ◽  
pp. 527-550
Author(s):  
Kristina Daugirdas
Keyword(s):  
Rule Of Law ◽  
Foreign Relations ◽  
Customary International Law ◽  
The Rule Of Law ◽  
Legal Rules ◽  
The Third ◽  
American Law ◽  
The Law ◽  
Compliance With The Law ◽  
Domestic Level

This chapter explores the promotion of the rule of law. In drafting and publishing Restatements of Foreign Relations Law, both the American Law Institute and the reporters have understood the projects as contributing to the rule of law at the international level, at the domestic level, or both. There are at least three distinct ways that these Restatements might promote the rule of law. First, they might do so by clarifying the content of the law. Second, the Restatements might contribute to the development of new legal rules, specifically to the evolution and consolidation of customary international law. Finally, the Restatements might promote the rule of law by promoting compliance with the law. Ultimately, the Third and Fourth Restatements have taken quite different approaches to promoting the rule of law. To some extent these different approaches are a consequence of changes in the legal landscape over the past three decades. They also reflect different choices that the reporters and the American Law Institute have made about how to carry out the project of restating foreign relations law.

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