scholarly journals Religious Conscience or Religious Freedom? The Difference between Official Constitutional Norms and Actual Legal Restrictions in Morocco, Algeria, and Tunisia

2021 ◽  
Vol 16 (2-3) ◽  
pp. 117-142
Author(s):  
Amal Idrissi
Keyword(s):  
Islamic Law ◽  
The State ◽  
Freedom Of Religion ◽  
Muslim Majority ◽  
Moroccan Family ◽  
Legal Restrictions ◽  
The Difference ◽  
The One ◽  
The 19Th Century ◽  
Family Code

Abstract This paper will consider the extent to which two competing norms—freedom of religion, on the one hand, and Islam as the religion of the state, on the other—are in tension with each other as seen through the lens of three Muslim-majority countries in the Maghreb. I examine this potential tension in four steps: first, the transformation of meaning of the Arabic word “hurriyya” (freedom) during and after the 19th century; second, the articulation of Islam as the religion of the state in the constitutions of Morocco, Algeria, and Tunisia; third, the articulation of freedom of religion (whether freedom of worship or conscience) in the constitutional texts of these three countries, and finally, the question whether the laws and practices that implement these two constitutional norms are compatible or whether they in fact give priority to Islam as the state religion over the norm of freedom of religion. In Morocco, Algeria, and Tunisia, Islam plays an important role in the legal system, especially in family codes: the Moroccan Family Code (2004), the Algerian Family Code (2016), and the Tunisian Personal Status Code (1957). These are the remaining citadels most implicated with references to Islamic law, the interpretation of which has placed women in an unequal position.

The Other Muslim Bans

2020 ◽  
Vol 1 (1) ◽  
pp. 2-38
Author(s):  
Will Smiley
Keyword(s):  
Security Policy ◽  
Islamic Law ◽  
State Level ◽  
The State ◽  
The Other ◽  
State Court ◽  
Court Cases ◽  
State Laws ◽  
Foreign Law ◽  
Muslim Majority

This Article addresses and critiques the case for state-level legislative bans on courts citing “Islamic law” or the law of Muslim-majority countries. In particular, the Article reviews the most substantive evidence adduced by the bans’ supporters, in the form of a set of state court cases published by the Center for Security Policy (CSP). Very few of these cases, in fact, show courts actually applying Islamic or foreign law, and in none of these cases would the various forms of proposed legislation have been likely to alter the result. Thus even this report does not suggest a need for the state laws purporting to ban sharīʿa. The Article thus argues that even if these bans are not unconstitutionally discriminatory in their effect, they are ineffective at achieving their claimed purpose. This Article was originally published as an Occasional Paper in the Harvard Papers in Islamic Law series in 2018.

What Use Is Customary International Law?

2021 ◽  
Vol 9 (1) ◽  
pp. 119-131
Author(s):  
Anthony Carty
Keyword(s):  
International Law ◽  
Legal Theory ◽  
The State ◽  
Legal Doctrine ◽  
Customary International Law ◽  
Legal Personality ◽  
Historical School ◽  
General Law ◽  
The One ◽  
The 19Th Century

Abstract Customary international law as a source of general law is given a primary place in Article 38 of the ICJ Statute. However, it is historically a concept created by legal doctrine. The very idea of custom supposes legal persons are natural persons living in a dynamic, evolving community. This was the assumption of the historical school of law in the 19th century when the concept of custom was developed. Now the dominant notion of legal personality is the State as an impersonal corporation and international legal theory (Brierly and D’Amato) can see well that the death of the historical school of law has to mean the death of the concept of custom. What should replace it? Two steps need to be taken in sequence. Firstly, following the Swedish realist philosopher Haegerstrom, we have to ascertain the precise constellations of the conflictual attitudes the populations of States have to the patterns of normativity which they project onto international society. Secondly, we should follow the virtue ethics jurisprudence of Paul Ricoeur and others, who develop a theory of critical legal doctrinal judgement, along the classical lines of Aristotle and Confucius, to challenge and sort out the prejudices of peoples into some reasonable shape, whereby these can be encouraged to understand and respect one another. Then one will not have to endure so many silly interpretations of international law such as the one declaring that there are only rocks in the South China Sea and not islands. Such interpretations have nothing to do with the supposedly ordinary legal language analysis of a convention and the State practice surrounding it. They have to do entirely with a continued lack of respect by Western jurists for non-Western societies and nations.

scholarly journals DEBATE OF ISLAM AND COUNTRIES IN THE CONSTITUANTE BOARD, 1956-1959

2019 ◽  
Vol 2 ◽  
pp. 155-174
Author(s):  
Heri Herdiawanto ◽  
Valina Singka Subekti
Keyword(s):  
Research Method ◽  
Islamic Law ◽  
Secondary Data ◽  
The State ◽  
Islamic State ◽  
Basic Group ◽  
Constituent Assembly ◽  
Library Research ◽  
The One ◽  
The Relationship

This study examines Hamka's political thinking about Islam and the State in the Basic State debate that took place in the Constituent Assembly 1956-1959. Hamka belongs to the basic group of defenders of the Islamic state with Mohammad Natsir in the Masyumi faction, fighting for Islamic law before other factions namely the Nationalists, Communists, Socialists, Catholics-Protestants and members of the Constituent Assembly who are not fractured. Specifically examines the issue of why Islam is fought for as a state basis by Hamka. and how Hamka thought about the relationship between Islam and the state. The research method used is a type of library research with literature studies or documents consisting of primary and secondary data and reinforced by interviews. The theory used in this study is the theory of religious relations (Islam) and the state. This study found the first, according to Hamka, the Islamic struggle as the basis of the state was as a continuation of the historical ideals of the Indonesian national movement. The second was found that the constituent debate was the repetition of Islamic and nationalist ideological debates in the formulation of the Jakarta Charter. Third, this study also found Hamka's view that the One and Only God Almighty means Tauhid or the concept of the Essence of Allah SWT. The implication of this research theory is to strengthen Islamic thinking legally formally, that is thinking that requires Islam formally plays a major role in state life. The conclusion is that Indonesian society is a heterogeneous society in terms of religion. This means that constitutionally the state recognizes the diversity of religions embraced by the Indonesian people and guarantees the freedom of every individual to embrace religion and realize the teachings he believes in all aspects of life. Hamka in the Constituent Assembly stated that the struggle to establish a state based on Islam rather than a secular state for Islamic groups was a continuation of the ideals of historical will.

scholarly journals The Politics of Congregational Prayer

2020 ◽  
Vol 8 (2-3) ◽  
pp. 251-271
Author(s):  
Imran Ahmed
Keyword(s):  
Public Health ◽  
Islamic Law ◽  
The State ◽  
The Political ◽  
Religious Leaders ◽  
Colonial Era ◽  
Muslim Majority ◽  
Religion And State

Abstract Religious authorities in many Muslim-majority countries have argued that the suspension of communal prayers during an epidemic does not contravene Islamic law. In Pakistan, such measures have proven difficult to enforce, in part because many religious leaders in the country have opposed the closure of places of worship and the limits placed on public religious gatherings. The question is why? This paper suggests that the distrust of the state in matters of religion in Pakistan can be traced back to the colonial era, and that the political developments following independence have amplified frustration and mistrust between political and religious authorities in the country. Significant sources of contention in matters of religion and state remain unresolved under the prime ministership of Imran Khan. At the same time, the pandemic has thrust earlier conflicts into the spotlight and exposed contests over opinion, expertise, and authority in matters of religion and public health.

scholarly journals HUKUM KELUARGA DI MESIR

2020 ◽  
Vol 1 (2) ◽  
pp. 93-108
Author(s):  
Nurinayah Nurinayah
Keyword(s):  
Middle East ◽  
Islamic Law ◽  
Family Law ◽  
The State ◽  
Law Reform ◽  
Muslim Countries ◽  
Personal Status ◽  
Muslim Majority ◽  
Limited Scope

The application of family law in Muslim-majority countries, especially the Middle East and its surroundings, has different practices, we do not find uniformity in family law practices in these countries. This is influenced by differences in government systems, cultures, situations and conditions of society of each country. Egypt is one of the predominantly Muslim countries which has established Islam as the state religion. Therefore, the principles of Islamic law are the main source of law in the making and formulation of laws, including family law. The practice of Islamic law in Egypt does not fully apply only to areas of family law in a limited scope including the distribution of inheritance and marriage. However, the application of family law in Egypt continues to undergo reforms and reforms. Family law reform took place in Egypt in 1920. This was marked by the promulgation of Law no. 25/1920 regarding family law and care (Law of Maintenance and Personal Status / Qanun al-Ahwal al-Syakhsiyyah wa al-Siyanah). Family law reform in the 1970s was marked by the issuance of laws regarding the authority to the judiciary to force parties (husbands) to pay maintenance fees to wives, widows, children, or parents in 1976. the current era of family law in Egypt continues to experience development. Abstrak Penerapan hukum keluarga di negara-negara yang berpenduduk mayoritas Muslim khususnya kawasan Timur Tengah dan sekitarnya memiliki praktik yang berbeda-beda, kita tidak menemukan keseragaman praktik hukum keluarga di negara-negara tersebut. Hal ini dipengaruhi oleh perbedaan sistem pemerintahan, kultur, situasi dan kondisi masyarakat setiap negara. Mesir merupakan salah satu negara yang berpenduduk mayoritas Muslim yang menetapkan Islam sebagai agama negara. Karena itu, prinsip-prinsip hukum Islam menjadi sumber hukum utama dalam pembuatan dan perumusan undang-undang termasuk hukum keluarga. Praktik hukum Islam di Mesir tidak berlaku secara utuh hanya bidang-bidang hukum keluarga dalam ruang lingkup yang terbatas meliputi pembagian warisan dan perkawinan.  Namun, penerapan hukum keluarga di Mesir terus mengalami reformasi dan pembaruan. Pembaruan hukum keluarga terjadi di Mesir pada tahun 1920. Ini ditandai dengan diundangkannya UU No. 25/1920 mengenai hukum keluarga dan penjagaan (Law of Maintenance and Personal Status/Qanun al-Ahwal al-Syakhsiyyah wa al-Siyanah). Reformasi hukum keluarga pada tahun 1970an ditandai dengan dikeluarkannya aturan undang-undang mengenai kewenangan kepada lembaga peradilan memaksa pihak-pihak (suami) untuk membayar uang pemeliharaan kepada isteri-isteri, janda-janda, anak-anak, ataupun orang tua pada tahun 1976. Hingga era sekarang hukum keluarga di Mesir terus mengalami perkembangan.            

scholarly journals Tensions and Transitions in the Muslim World

2006 ◽  
Vol 23 (2) ◽  
pp. 103-105
Author(s):  
Samer Abboud
Keyword(s):  
Middle East ◽  
Conceptual Development ◽  
Islamic Law ◽  
The State ◽  
Islamic State ◽  
Legal Reforms ◽  
Islamic Reform ◽  
Participatory Politics ◽  
Cultural Order ◽  
The One

Safi’s text interrogates the potential of Islamic reform movements to articulatea democratic and pluralistic politics throughout the Middle East and thebroader Islamic world. He begins by arguing that these reform movementsexert the greatest influence in determining the direction of sociopoliticalreforms in the Middle East, and, as a result, constitute a core movement fromwhich to understand and interpret the dynamics of the region’s cultural andsociopolitical reality. Furthermore, the author argues that in the contemporaryMiddle Eastern intellectual climate, Islamic reformists represent a synthesisbetween the opposing programs of moralist-Islamists on the one hand,and nationalist-secularists on the other. This synthesis constitutes the mostviable and realistic program for genuine reform and for developing a pluralisticsociety and participatory politics. In support of this thesis, Safi dividesthe text into nine chapters constituting four interrelated parts: “Democratizationand the Islamic State,” “Visions of Reform,” “Islamic Law and HumanRights,” and “Islam in a Global Cultural Order.”The first part poses the question of whether democracy and pluralism canflourish in a society in which Islamic law commands the majority’s allegiance.His answer is cautiously affirmative, as it depends on the rejuvenationof cultural and legal reforms grounded in a historical Muslim experience that offers the tools to transcend current political and cultural institutions.As such, both the secular state and Islamist movements preclude such arenewal: the former because its structures negate the possibility of pluralisticpolitics, and the latter because its merging of state structures with the communalstructure of the historical Shari`ah contradicts the nature of the Islamicpolity as established by the Prophet.These restrictions can be overcome through grounding the state in twopillars. First, this means severing the link between the state and the ummah,a separation necessary to ensure that the state and its institutions are nothijacked by particularistic interests or erected as obstructions to the Islamiccommunity’s spiritual and conceptual development. Such an Islamic state,which privileges the marshalling of state resources toward the Islamiccommunity’s spiritual goals, also has, as its second pillar, the concept of consensus(ijma` ). Classical jurists viewed this concept as the fundamentalprinciple that confers legitimacy upon the state. Therefore, the state gainsits legitimacy insofar as it reflects the ummah’s will ...

scholarly journals KECENDERUNGAN IDEOLOGIS TAFSIR KHILĀFAH DALAM AL-QUR’AN; ANALISIS TERHADAP PENAFSIRAN TĀHIR IBNU ‘ASHŪR DAN TAQIY AL-DĪN AL-NABHĀNĪ

2020 ◽  
Vol 1 (1) ◽  
pp. 145-178
Author(s):  
Ahmad Nabil
Keyword(s):  
Discourse Analysis ◽  
Islamic Law ◽  
The State ◽  
The World ◽  
The Difference ◽  
Complete Interpretation ◽  
Good Deeds

This article discusses the insight of the khilāfah in the perspective of Ibn Ashur and Taqī al-Dīn al-Nabhānī. This article departs from the problem that the khilāfah discourse continues to be a polemic among interpreters, especially when the khilāfah is associated with the state. From this problem, this article will discuss the concept of khilāfah in the perspective of T}āhir Ibn Ashur and Taqiy al-Dīn al-Nabhāni. Although al-Nabhānī does not have a complete interpretation work like Ibn Ashur, he does interpret the khilāfah verses contained in his works. Both are sunni figures, although in their attitude towards the problems of the state and khilafah they are different. This article questions how Ibn Ashur and al-Nabhāni view the interpretation of the khilāfah verse? And what are the implications of the two interpretations of the Indonesian context? By using a thematic interpretation approach and discourse analysis of the two interpretive works, this study comes to the conclusion that; (1) khilāfah according to Ibn Ashur is the name of leadership that embodies the leadership of the prophet. while Taqiy al-Dīn al-Nabhānī stated that the khilāfah of the leadership system of Muslims throughout the world is to uphold Islamic law and carry Islamic preaching to all corners of the world. The difference between the two figures in understanding the caliphate is, first, the arguments used by Ibn 'Ashūr emphasize more on aspects that are prerequisites for the Caliph in his khilafah, such as those who believe and do good deeds do justice, while Taqiy al-Dīn al-Nabhānī is more leads to the obligation to obey and practice what Allah commands, and the obligation to establish a caliphate. Second, that both of them have differences in the realm of ideology, of course this will have little or much impact on the frame of mind of the two figures, so what the authors find that distinguishes the two figures is that Ibn 'Ashur is more moderate than Taqiyuddin An-Nabahni.

scholarly journals KONSEPSI NEGARA HUKUM PANCASILA DAN IMPLEMENTASINYA DI INDONESIA

PRANATA HUKUM ◽  
2020 ◽  
Vol 15 (1) ◽  
pp. 43-52
Author(s):  
Tubagus Muhammad Nasarudin
Keyword(s):  
State Government ◽  
Rule Of Law ◽  
The State ◽  
Mutual Cooperation ◽  
The Rule Of Law ◽  
Free Trial ◽  
Government Power ◽  
The Difference ◽  
The Republic ◽  
The One

The rule of law in the perspective of Pancasila which can be termed the law state of Indonesia or the rule of law state of Pancasila besides having the same elements as the rule of law in the rechtstaat and rule of law, also has specific elements that make the Indonesian law state different from the concept of the state generally known law. The difference locates in the values contained in the Preamble to the 1945 Constitution which contain Pancasila with the principles of the Belief in the one and only God and the absence of separation between the state and religion, the principle of deliberation in the implementation of state government power, the principle of social justice, kinship and mutual cooperation, as well as laws that serve the integrity of the unitary state of Indonesia. The Pancasila Law State concept is characterized by: (1) Close relations between religion and state (2) Stand on the one and only God (3) Freedom of religion in a positive sense (4) Atheism is not justified and communism is forbidden and (5) The principle of kinship and harmony. As for the main elements of the Republic of Indonesia Law State are: (1) Pancasila (2) MPR (3) Constitutional system (4) equality and (5) Free trial.

scholarly journals Kontroversi Perda Berbasis Syariah Dalam Otonomi Daerah Di Indonesia

2021 ◽  
Vol 8 (5) ◽  
pp. 1261-1272
Author(s):  
Mufidah Mufidah ◽  
Djawahir Hejazziey ◽  
Novi Yuspita Sari
Keyword(s):  
Qualitative Research ◽  
Research Method ◽  
Islamic Law ◽  
The State ◽  
Great Opportunity ◽  
Qualitative Research Method ◽  
Regional Autonomy ◽  
The Republic ◽  
Constitutional System ◽  
The One

Article 29 paragraph 1 of the 1945 Constitution of the Republic of Indonesia states that "the State is based on the One Supreme Godhead." This means that the state has given legitimacy to Islamic law as formal law in the Indonesian constitutional system. Islamic law has a great opportunity to be formalized into regulations, because the majority of Indonesians are Muslims. Perda Syariah itself in its journey has shown significant developments. There have been 433 regional regulations issued in Indonesia since 1998, however, these regional regulations with Islamic nuances have generated pro-contra attitudes from various parties. This study uses a qualitative research method with a literature approach. The results of the study state that there are still some parties who feel that regional regulations were born only as political needs that are less effective in their implementation, and others think that sharia regulations are an effort to regulate people's behavior so that they are in accordance with living norms.Keywords: Sharia Regional Regulation; Regional Autonomy; Formalization of Islamic Law Abstrak: Pasal 29 ayat 1 Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 menyatakan bahwa “Negara berdasarkan atas Ketuhanan Yang Maha Esa.” Artinya negara telah memberikan legitimasi hukum Islam sebagai hukum formal dalam sistem ketatanegaraan Indonesia. Hukum Islam memiliki peluang yang besar untuk diformalkan menjadi peraturan, karena mayoritas bangsa Indonesia adalah pemeluk agama Islam. Perda Syariah sendiri dalam perjalanannya telah menunjukkan perkembangan yang signifikan. Telah ada 433 Perda lahir di Indonesia sejak tahun 1998, namun Perda-perda bernuansa Islam tersebut menimbulkan sikap pro-kontra dari berbagai pihak. Penelitian ini menggunakan metode penelitian kualitatif dengan pendekatan literatur. Hasil penelitian menyatakan bahwa masih ada sebagian pihak merasa bahwa Perda lahir hanya sebagai kebutuhan politik yang kurang efektif dalam pelaksanaannya, dan  sebagian lain beranggapan bahwa Perda syariah adalah sebuah upaya untuk menertibkan perilaku masyarakat agar sesuai dengan norma-norma yang hidup.Kata Kunci: Perda Syariah; Otonomi Daerah; Formalisasi Hukum Islam

The Quality of Government and Public Administration

2020 ◽  
Author(s):  
Alina Mungiu-Pippidi
Keyword(s):  
Public Administration ◽  
Max Weber ◽  
Strong Association ◽  
The State ◽  
Foreign Assistance ◽  
Private Interest ◽  
Private Interests ◽  
The One ◽  
The 19Th Century

In 1999, Evans and Rauch showed a strong association between government effectiveness (quality of government)—particularly the presence of a Weberian-like bureaucracy, selected and promoted on merit alone and largely autonomous from private interests—and economic growth. In 1997 and the aftermath of the Washington Consensus controversial reforms the World Bank promoted this finding in its influential World Development Report 1997 as part of its broader paradigm on “institutional quality.” Twenty years of investment in state capacity followed, by means of foreign assistance supporting the quality of public administration as a prerequisite to development. However, most reviews found the results well under expectations. This is hardly surprising, seeing that Max Weber, credited as the first promoter of the importance of bureaucracy as both the end result and the tool of government rationalization in modern times, never took for granted the autonomy of the state apparatus from private interest. He clearly stated that the power using the apparatus is the one steering the bureaucracy itself. In fact, a review of empirical evidence shows that the quality of public administration is endogenous to the quality of government more broadly and therefore can hardly be a solution in problematic contexts. The autonomy of the state from private interest is one of the most difficult objectives to accomplish in the evolution of a state, and few states have managed in contemporary times to match the achievements of Denmark or Switzerland in the 19th century. Two countries, Estonia and Georgia, are exceptional in this regard, but their success argues for the primacy of politics rather than of administration.

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