scholarly journals Shari‘a a Customary Law?: An Analytical Assessment from The Nigerian Constitution and Judicial Precedents

2021 ◽  
Vol 21 (1) ◽  
Author(s):  
Jamiu Muhammad Busari

Under the Nigerian legal classification, shari‘a, the Islamic legal system is classified as customary law. It is on these premises that the Muslims’ agitations for full-fledge shari‘a applications and declassification from being a customary law are always thwarted and termed “unconstitutional” by the shari’a antagonists while the Muslims and protagonists viewed the problems as judicial misinterpretations and legal incongruity.  In this study, with the adoption of an analytical approach, shari‘a and customary law are assessed from the provisions of the Nigerian Constitutions and some judicial precedents to unravel the actual position of shari‘a. It was then discovered that, despite the classification under the Nigerian legal system, shari‘a could not have been a customary law due to some factors which include its sources, divinity, permanency and universality.AbstrakDalam hukum Nigeria, hukum Islam atau syariah diklasifikasikan sebagai hukum adat.  Premis itulah yang menjadi agitasi upaya penerapan syariah secara penuh oleh umat Islam. Usaha untuk pendeklasifikasi  hukum adat selalu digagalkan dan dianggap  “inkonstitusional” oleh penentang syariah.  sementara  sebagian Muslim dan pendukung syariah memandang masalah tersebut sebagai salah tafsir yudisial dan ketidaksesuaian hukum. Dalam penelitian ini, dengan  memakai pendekatan analitis, syariah dan hukum adat dinilai untuk mempertegas dalam  ketentuan Konstitusi Nigeria berdasar  beberapa preseden yudisial untuk mengungkap posisi syariah yang sebenarnya. Kemudian ditemukan bahwa, meskipun klasifikasi di bawah sistem hukum Nigeria, syariah tidak bisa menjadi hukum adat karena beberapa faktor yang meliputi sumbernya, keilahian, keabadian,  dan universalitas.

Author(s):  
Nan Gong ◽  
I. I. Fedorov

The formation of the Russian procedural legal system is closely connected with its unique historical evolution. Russian Russian culture According to the Norman theory of the origin of the Russian nation, the Scandinavian culture is the most important source of early Russian culture. During the chaotic period of the tribe at the stage of primitive society, the Norman Varian was invited to Russia to reconcile the tribes of Russia and manage them, and this brought the Germanic custom to regulate the socio-economic and legal relations of various tribes. Since the formation of the ancient state of Russia, the ruling class has constantly strengthened the drafting of new laws and regulations, but customary law still dominates the legal system of the state. At the same time, ordinary norms in the system of customary law as a quasi-legal norm between morality and law have become an integral organic component of social customs and norms at all stages of Russian social development.During the period of Ancient Russia, the common custom of the Slavic people and the Norman Customary Law had a profound impact on the social life of ancient Russia. From the beginning of the 9th to the 17th century, customary law existed as the main legal source for regulating social relations in the late period of the development of Russian primitive society and in the earlier time of feudal society. His coercive force was based on the conviction that was widespread in the social community during this period, that is, "existing customs denote a reasonable basis". With the formation of the East Slavic state, the rulers began to work on drafting new legal norms, but inheritance is still mainly based on customs based on the clan system. As a result, as a rule of conduct recognized and guaranteed by the state, traditional customs gradually acquired a legal nature, and after that, positive law was formed. "Russkaya Pravda" is the most representative legal collection in the early years of the Russian feudal society, "The Truth of Ross", which was compiled according to the customs of the Eastern Slavs, and is the very fi rst positive law of ancient Russia.Before the appearance of formal law, customary law always played a role and coercive force as legislation, but the self-defense and insane methods of revenge obtained from it also caused social unrest. In order to stop personal self-defense and self-arbitrariness, as well as to strengthen ties between different regions, it is necessary to use the power of common law to unite the Principality into a whole. Although the new law does not exclude the original good customary norms, if there are no necessary penalties for violations, it will be destructive for the law. Therefore, it is necessary to give customary law a legal meaning and a compelling force, without changing the existing content of customary law.I must say that the German customs and the traditional customs of the Slavic people are intertwined in the historical codifi cation of Russian procedural law, forming a unique historical path of development of the procedural legal system of ancient Russia. Although national customs were recognized by the state in the form of positive law with the help of " Russian Truth”, and became the norm of justice and social norm on the basis of the guarantee of national coercive force, but this did not change the essence of customary law, but the form of positive law was given to it. As the modernization of the Russian judicial system moves into modern times, generations of legislators and lawyers are focusing on the study of national legal traditions and history, trying to discover the natural laws governing the development of the Russian legal system, and are constantly trying to make progress in the modern and modern process of judicial reform. The harmony of legislation, the borrowing of laws and national customs to a certain extent ensured a reasonable adjustment of national laws and norms of customary law.


1978 ◽  
Vol 16 (2) ◽  
pp. 295-310 ◽  
Author(s):  
Carol Bohmer

The theme of this article is the decline of customary law in Upper Volta where, like most countries in Africa, customary courts operate side by side with the modern, ex-colonial legal system.1 My study of Le Tribunal de Premier Instance in Bobodioulasso suggests that customary courts may not in fact apply customary law. An examination of the criteria and the process by which decisions are reached here may help us to gain an insight into the function the Court serves for the community.


2019 ◽  
pp. 47-73
Author(s):  
Mahendra Pal Singh ◽  
Niraj Kumar

There are systems of law within the Indian jurisdiction that either do not rely on the state legal system at all or rely on it only partially. These include systems of religious personal law, tribal customary law, and other similar indigenous mechanisms of administering justice and settling disputes. The formal definition of law in India, along with constitutional provisions which guarantee religious and cultural freedom and allow for modes of self-governance, accommodates different legal systems with indigenous or traditional roots. Moreover, local and village bodies such as traditional or caste councils operate in independent India as well, further questioning the rhetoric of uniform law in India.


Author(s):  
Anak Agung Istri Ari Atu Dewi

The purpose of this research is to discover the existence of autonomy of Desa Pakraman in legal pluralism perspective. Related with that purpose, there are two issues that will be discussed, first, how does the existence of the autonomy of Desa Pakraman in Indonesia’s legal system?,Second, how does the existence of the autonomy of Desa Pakraman in legal pluralism perspective?. The research method is normative legal research using statue approach, concept approach and analytical approach and law analysis by using legal interpretation. Based on the problems, the results of discussion are : first, the existence of the autonomy of Desa Pakraman within the Indonesia’s legal system has regulated in the 1945 Constitution of the Republic of Indonesia, national and local Regulations. In the Constitution, specifically Article 18 B of paragraph (2), declare that the states recognizes Desa Pakraman and their traditional rights. In regulation of Law No.5 of 1960 concerning basic Agrarian Law (UUPA), regulation of Human Rights, and regulation of Desa (Village) are clearly recognize Desa Pakraman as traditional institution has traditional rights, one of it is the autonomy of Desa Pakraman. At the local regulation, autonomy Desa Pakraman has regulated in Local Regulation about Desa Pakraman. Second, that existence of autonomy Desa Pakraman in perspective legal pluralism is that the existence autonomy Desa Pakraman is a weak legal pluralism. In perspective weak legal pluralism the state law as a superior and the customary law as an inferior, its position in the hierarchy under State law. As a theory, the semi-autonomous social field from Sally Falk Moore perspectives that Desa Pakraman is semi-autonomous. Desa Pakraman has capacity to hold their village based on the customary law and outomaticly Desa Pakraman to be in framework of state law.


2006 ◽  
Vol 13 (1) ◽  
pp. 123-151
Author(s):  
Hans Christian Korsholm Nielsen

AbstractThe elders of the villages and towns of Upper Egypt frequently convene councils for the settlement of disputes. These councils, which are independent of the state, deal with such matters as rights in water and land and also with succession disputes. Larger councils settle conflicts arising from homicide or feuds. I argue here that these councils should be analyzed as an integral part of society and that their relationship to the state is many-facetted. The continued importance of these institutions cannot be understood if one views customary law and reconciliation councils as no more than a reaction to a corrupt and unjust official legal system


Author(s):  
Helen Quane

This chapter studies the jurisdictional boundaries between state and non-state law with specific reference to religious, or customary, law. The determination of these regulatory forms as state law depends on the extent to which they perform prescriptive, adjudicative, or enforcement functions. Indeed, the boundaries between state and non-state law are not as stable as they may appear, as they are liable to shift according to circumstances and over time. The chapter then argues that the issue of classification acquires resonance in cases where legal pluralism occurs as the character and scope of a state’s exercise of jurisdiction becomes far more ambiguous in such situations. This can create uncertainty about the jurisdiction of the respective systems, the status of norms from one system that are given effect in another, and how these norms should be interpreted and applied given their concurrent existence within more than one legal system.


2015 ◽  
Vol 21 (1-2) ◽  
Author(s):  
Leonard P. Liggio

AbstractThis paper traces back the sources of our present legal system and of market economy to Medieval Europe which itself benefited from Hellenistic and Roman legal culture and commercial practices. Roman provinces placed Rome in the wider Greek cultural and commercial world. If Aristotle was already transcending the narrow polis-based conceptions of his predecessors, after him Hellenistic Civilization saw the emergence of a new school of philosophy: Stoicism. The legal thought in the Latin West will hence be characterized by Cicero’s writings and its Stoic sources. The Roman legal system was similar to the later northern European customary law and the English common law; Roman law was evolutionary and customary. The rise of Western individualism, whether it dates back to St. Augustine in the fifth century, or to the two Papal Revolutions of Gregory I (establishing the nuclear family as the core of individualism) and of Gregory VII, also played a crucial role in shaping the western legal tradition. The paper describes the main forces that led to this second (Gregorian) revolution. Monasticism is one of them. Benedictine monasticism plaid a leading role in the Peace of God Movement. Hence collective oath-taking by groups in the name of peace was essential in the founding of cities and in the formation of guilds. Europe’s economic resurgence in the Eleventh Century was on the basis of the creation of the rule of law by the Peace of God movement. This movement also allowed for Europe’s agricultural economy to progress. Indeed, the European Middle Ages is one of the major periods of technological innovation in the history of the world. The Gregorian Revolution itself was supported and financed by the Commercial Revolution: Italian bankers sustained Papal reformers against the Emperors. The independence of the Italian cities and provinces reveals one of the most important consequences of the Gregorian Revolution: the polycentricism of Western Europe. This Revolution also witnessed the first large number of political pamphlets in European history; the Gregorian clergy emphasizing a compact theory of government. Soon after, the order of Cistercians was founded (1098) and underwent spectacular growth during the next two centuries. The Cistercians accepted no rents or labor services from feudal donors but would take only full possession of land to do with it as they wished.These monasteries were the most economically effective units that had ever existed in Europe, and perhaps in the world, before that time. Finally, the Magna Carta (1215) that will be so influential on modern political thought can be seen as a direct consequence of the Gregorian Revolution.


2004 ◽  
Vol 35 (2) ◽  
pp. 427 ◽  
Author(s):  
Miranda Forsyth

This article considers the relationship between customary law (kastom) and the official legal system in Vanuatu. It looks at the limitations of the reasons propounded for the lack of integration of customary law and the official legal system and argues that the integration should be a two-way process. The author asserts that a new methodological approach is required to assess the issue regarding the current extent of integration, desirability of integration and capacity for integration of the two systems. Rather than merely analysing case law or legislation, the author argues that the reality behind this picture needs to be investigated and empirical research undertaken.


2014 ◽  
Vol 14 (2) ◽  
Author(s):  
Azhari Akmal Tarigan

Implementation of Inheritance Law of the Muslim Karo in North Sumatra. So far, Indonesia has not managed the codification and unification of a national inheritance law. Among the factors is the difficulty of codifying inheritance laws by reason of the diversity of the legal system that governs family matters of the Indonesian people, including inheritance laws. This study examines the way of implementing the inheritance law in Karo Muslim society, North Sumatra. This study focuses on the models of estate distribution to girls and widows. The article concludes that the Muslim Karo people still use customary law to resolve matters relating to inheritance disputes. Customary law that is used is experiencing dynamics or shifts. This happens without giving rise to tension let alone any disturbances within Karo Muslim community itself.DOI: 10.15408/ajis.v14i2.1279


Rechtidee ◽  
2017 ◽  
Vol 12 (1) ◽  
pp. 67
Author(s):  
Erma Kartika Timur

<p>Interfaith marriage in Indonesia be able to do with supplicate a determination to District Court, and then be listed in the Civil Registry Office. In case divorce occur on registered interfaith marriages, there is legal vagueness in regulation to divide joint property marriage, its relates with article 37 Constitution Number 1 of 1974 about Marriage. The purpose of this thesis is to description, identifying and analyzing the way to divide marriage property in interfaith marriage divorce, and also to review allowed or not to make choice of law that related to article 37. This thesis is a normative research with using statute approach and analytical approach. Based on the analysis of legal materials obtained, solution to divide joint property marriage on interfaith marriage better used husband religion or customary law, it is based from analysis using intergroups legal theory, receptive in complex theory, Idris Ramulyo opinion, Lanraad jurisprudence in Manado and also using grammatical interpretation about husband and wife position in article 31 and 34 marriage law. In case lawsuit happened, there is through the District Court after divorce decision was decided by judges. Choice of law is allowed based on equally principle.</p><p> </p>


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