scholarly journals Legal drafting in Islamic law

Author(s):  
A. A. Vaino

The paper analyzes the features of legal drafting in Islamic law. Based on the study, the author concludes that Muslim law appears to be in many ways religious and legal comments. This is set by its religious sources that contain specific legal provisions. These sources lack structuring and systematic character, which is a source of rather a high degree of casuistry of Islamic law. The paper proves that Islamic law has shown a confusion of religious principles with legal norms since the moment of its appearance. The comments of legal scholars were actively used to justify illegal — from the point of view of European lawyers — behavior. With the help of legal drafting in Islamic law, legal postulates and opinions were legalized, which to this day largely determine the legal culture of the overwhelming majority of the population. This means that the problem of the relationship between secular and confessional law in countries where Islam is the state religion appeared in the Middle Ages and remains the main one to this day.

2013 ◽  
Vol 28 (2) ◽  
pp. 467-487 ◽  
Author(s):  
Russell Powell

The tradition of Kemalist secularism (laiklik) in Turkey is often cited to distinguish Turkey as an exceptional case among predominantly Muslim countries. While it is true that the Turkish Constitution, laws, and legal opinions approach the relationship between the state and religion very differently than those of Iran, Saudi Arabia, Egypt, or even Indonesia, it would be wrong to underestimate the role that religion plays in the formation of Turkish legal norms, including citizen understanding of those norms. There is a wealth of literature describing the nature of Turkish secularism and its evolution. A number of both quantitative and qualitative studies inquire about the preference forShari'aamong Turkish voters. The typical question asks whether respondents favor the establishment of aShari'astate. Over the past fifteen years, these surveys have received response rates ranging between five and twenty-five percent in favor of such a state. However, these results are extremely problematic, because they do not provide any context or meaning for “the establishment of aShari'astate,” either for those who favor it or for those who oppose it. This study begins to unpack the range of possible meanings attributed toShari'awithin Turkey, both among voters and among intellectuals, as a framework for future empirical studies and as a basis for deeper understandings of the role of Islam within Turkish law and politics.


Author(s):  
Marina Okladnaya ◽  
Olena Hurenko

Problem setting. Islamic international law is a set of Islamic norms and customs that govern the relationship of Muslim States and Muslims with non-Muslim States, as well as with Muslim individuals within and outside the world of Islam. Islam has come a long and difficult way from the emergence of religion in modern ideology. It is considered one of the leading religions of the world and has a significant influence on a large number of people and states, so it is advisable to study one of the outstanding stages of the formation of the Islamic system in the field of international law, namely the Middle Ages and find out its connection with modernity. Analysis of recent researches and publications. The Islamic science of international law is in the process of development, during which its representatives try to combine the traditional values of Islam with the basic principles of modern international law. Among the scientists who made a significant contribution to the study of the Islamic concept of international law, its historical development and the modern situation, one can distinguish such as A. Butkevich, L. Sukiyainen, Al-Shaybani, Muhammad ibn al-Hasan, V. Knapp, M. Sana, Sardar Ali S., Hilmli M. Zavati, A. Merezhko, B. Feldman and others. Target of research. Study of the Islamic concept of international law, analysis and comparison of content, significance of Islamic international law in the Middle Ages and modern times. Article’s main body. The article is devoted to the main stages of the formation of one of the most important systems of international law – Islamic, which is a collection of unique traditional values, legal norms and customs of Islam. The stages of development in the Middle Ages and the connection with modernity were investigated, the main features in the Middle Ages were determined. Conclusions and prospects for the development. Islamic international law is a set of Islamic norms and customs that govern the relationship of Muslim States and Muslims with non-Muslim States, as well as with Muslim individuals within and outside the world of Islam. Islam has come a long and difficult way from the emergence of religion in modern ideology. It is considered one of the leading religions of the world and has a significant influence on a large number of people and states, so it is advisable to study one of the outstanding stages of the formation of the Islamic system in the field of international law, namely the Middle Ages and find out its connection with modernity.


Author(s):  
Anwar Eisa Salmeh Al-Khleifat, Ali Salmeh Daowd Al-khleifat

This study aimed at identifying the degree at which the first three basic grades pupils practice the ethical values from the point of view of their teachers in the Southern Ghor District، as well as، the relationship of that with some variables. The researchers developed the study tool that consisted of، ( 27 ) items divided into three domains; the validity and reliability of the study tool were verified. The study sample consisted of (50) female teachers from those who teach the first three basic grades. The study results showed that، the degree at which the first three basic grades pupils practice the ethical values from the point of view of their teachers in the Southern Ghor، District، was high. The domain relating to (the relationship between the pupil and the teaching staff) was in the first place، followed by (the relationship between the pupil and his teacher)، and finally (the relationship between the pupil and his peers). The results showed that there are no statistically significant differences at ( α≤ 0.05 )، regarding the degree at which the first three basic grades pupils practice the ethical values from the point of view of their teachers in the Southern Ghor District attributed to the variables of the years of experience as well as educational qualification. In the light of the results، the study recommended that، the students should practice the ethical values in a high degree with their peers by educating the pupils regarding the brotherhood in our Islamic religion as well as practicing these behaviors in front of the students to reinforce them. The study also recommended about conducting a study that reveals the degree at which the secondary stage students practice the ethical values from the point of view of their teachers in the Southern Ghor District.


Author(s):  
E. V. Chukanov

The article provides an overview of the philosophical-psychological conceptions of the phenomenon of ownership. The formation of ideas about property and attitudes are affected by the socio-economic conditions of social development. One can highlight several key ideas that are characteristic for a certain stage of the development of society. The issue of property in Ancient Greece acquires the character of reasoning about the relationship between private and public interests, morals and property, as well as the role of the legislature in dealing with conflict situations, consideration of natural sources and prerequisites for the formation of the phenomenon of ownership, the relationship between natural and unnatural origins of relationship to the property. The philosophy of the Middle Ages examines the problem of the relation between the divine and the earthly, the place of property in the process of interaction "Man-God". Social utopias were characteristic of the Renaissance. A change in the political and socio-economic structure ofEuropeled to the understanding of social inequality. The tension created by inequality, could be released by viewing society and polity as a determinant of the development of negative personality traits (anger, theft, greed, etc.). Utopian "worlds" were the result of a desire to change the real power in society. However, property is not denied, but only goes into collective and personal use. Russian philosophy considers the phenomenon of property from the point of view of the “individual – God” interaction. Private property contributes to the activity of the individual, developing their knowledge and skills through work. Property is divine, and man disposes of it, not owns. Without its spiritual meaning property becomes a means of violating social stability. The main purpose of ownership is to serve the society. The state plays the role of a controller of personal selfish needs of a man.


2017 ◽  
Vol 18 (1) ◽  
pp. 1
Author(s):  
Mohamad Abdun Nasir

Contemporary popular discourses about Islam, shari’a and Islamic law in the West is often filled with the issues of terrorism, anti-democracy, human rights violation and women’s minor status in Islam, which all lead into negative perception. Unlike such popular views, Western scholars perceive shari’a from various perspectives. They are quite critical to shari’a in a positive sense. This article discusses Western scholarly discourses on shari’a by comparing the thoughts and works of two most prominent figures, Wael B. Hallaq and M. Barry Hooker, who always concern with shari’a, Islamic law and related social issues, such modernity, colonialism and legal system. Based on the model of the study of public figure and grounded its main data on Hallaq’s and Hooker’s main work, this study shows that these two scholars promote idealistic and contextual perception on shari’a. From the ideal point of view, shari’a is seen a product of scholarly independent work by Muslim jurists, whose authority now is unfortunately taken over by the state. The contextual view regards shari’a as flexible Islamic religious or legal norms that are adaptable to the changing social and political environments so they are easily transferrable into the educational, legal and political system in a country like Indonesia, entailing what is called “national mazhab”.


2019 ◽  
Vol 3 ◽  
pp. 00022
Author(s):  
Fauzan Hanif

<p class="Abstract">Such cultural experiences have a possibility to be embedded in a memory of one generation. But there are mostly in form of traumatic experiences. And then, we learn that these memories could be transferred onto their children, or we could say it as “post generation”. In the novel <i>Dora Bruder</i>, such things happen when the author, Patrick Modiano, plays his attribute in composing genres to arrange and transfer his message. The story mainly concerns as the narrator try to find a missing girl named Dora Bruder. She was gone in 1941, or in the moment when Nazi was occupying France. This research aims to discover the relationship between the role of genre on emerging the message, particularly the traumatic ones by using the concept of genre and postmemory. From the analysis we conclude that Modiano use genres to transfer his message traumatic. It exists in form of the impression of absence. From the sensation of absence, he continues to transmit consecutively another impression of hollow, doubt, and also hope. For transferring his message and memory, Modiano mixes real documents and his fiction. He manifest them by constructing a story of another person and narrating it from the first-person point of view. He uses this technique to identify himself, because the “shared idea” of one’s could be related with another’s.</p>


2019 ◽  
Vol 2 (2) ◽  
pp. 235
Author(s):  
Sayid Anshar

<p><em>The concept of state in Islam only regulates principles or principles, among others, about leaders who must be honest, trustworthy, fair, transparent, and protect human rights (fitrah). Islam teaches and gives guidance in the life of the state. This means that the State must be built as a home to uphold justice in accordance with the rights that are basically owned by every citizen. The success of the Prophet Muhammad. Building a Muslim community in Medina by some Muslim intellectuals is called the City State.  The problem in this research is how the concept of the rule of law in the perspective of Islamic law. The method used in this research is descriptive research, descriptive research is intended to provide data as thorough as possible about an effort, symptoms, events and events that occur at the moment, and is deductive based on general theories applied to explain about a set of data, the relationship of a set of data with another set of data. In this study the method used is a normative juridical approach. The activities carried out are the inventory of legal materials, identification of legal materials, classification of legal materials, systematization of legal materials, and interpretation and construction of legal materials.  Based on the results of the study shows the concept of the State of Islamic Law Perspective with various scopes between the idea of state, Religion, State and law according to </em><em>Al-Quran</em> <em>and Hadith as well as the contribution of Islamic Law to the development of National Law.  </em></p>


2018 ◽  
Vol 74 ◽  
pp. 99-133
Author(s):  
Zbigniew Cywiński

The goal of the presented paper is to show the qualities of Polish sociology of law that arise from how it formed and developed under the influence of a particular theoretical inspiration – the theory of Leon Petrażycki – specifically the ways that tradition has been influencing the direction of studies, as well as the descriptions of legal reality. According to the author, that influence is not limited to direct references, but has a broader scope that is expressed in an approach to analyzing the social context and functions of legal phenomena. To further emphasize the originality of Polish sociology of law, the article explains the differences between selected elements of Petrażycki’s theories and the proposals of Eugene Ehrlich. The problems that were undertaken by both scholars, and are still important to socio-legal studies, were presented from that point of view. Furthermore, the paper emphasizes the elements of Petrażycki’s works that did not appear elsewhere in early socio-legal thought. The study field is crucially narrowed by not orienting it towards analyzing and comparing initial ideas of Petrażycki and Ehrlich. Rather, it aims to analyze the possible influence of different views on differentiating the subjects of studies as well as their goals. In particular, the paper draws attention to the way Polish scholarship uniquely perceives the problematics of the social nature of legal phenomena, legal pluralism, the relationship between law and state (and especially legal phenomena unrelated to the state), legal culture and the usefulness of law as an instrument of social change. This is the perspective from which the paper presents selected Polish research projects and socio-legal analyses. The paper chiefly attempts to show a very particular quality of Polish sociology of law: the affirmation of legal phenomena that forms the basis for critique of faulty and socially dysfunctional official law.


Author(s):  
Gilberto Pinto Monteiro Diniz

O CONTROLE EXTERNO DOS CONTRATOS DA ADMINISTRAÇÃO PÚBLICA PELO TRIBUNAL DE CONTAS: ENSAIO SOBRE O MOMENTO DA FISCALIZAÇÃO FINANCEIRA ADOTADO NO BRASIL E EM PORTUGAL EXTERNAL CONTROL OF PUBLIC ADMINISTRATION PROCUREMENT CONTRACTS BY THE COURT OF AUDITORS: ESSAY ON THE MOMENT OF FINANCIAL SUPERVISION ADOPTED IN BRAZIL AND PORTUGAL Gilberto Pinto Monteiro DinizRESUMO: No Brasil e em Portugal, a contratação pública representa uma das principais fontes de despesa pública, constituindo-se, portanto, matéria de elevado grau de relevância e materialidade para a fiscalização financeira a cargo do tribunal de contas. Em razão disso, o objetivo deste trabalho é demonstrar o momento adotado pelos órgãos de controle externo desses dois países para verificar se o procedimento adotado pela Administração Pública para efetivar a contratação pública obedeceu às normas jurídicas pertinentes, bem assim se a execução contratual cumpriu com êxito o objeto pactuado e, ainda, se atingiu o resultado desejado. PALAVRAS-CHAVE: Tribunal de contas; fiscalização financeira; controle prévio, concomitante e subsequente; contratação pública. ABSTRACT: In Brazil and Portugal, public procurement represents a major source of public expenditure and thus constitutes a matter of high degree of relevance and materiality for the financial supervision handled by the Court of Auditors. For this reason, the aim of this work is to demonstrate the moment adopted by the external control bodies of these two countries to check if the procedure adopted by the Public Administration to carry out the public procurement abided by the relevant legal norms, as well as if the contract performance successfully fulfilled the agreed subject matter and, also, if it has reached the desired result.KEYWORDS: Court of auditors; financial supervision; prior, concomitant, and subsequent checking; public procurement.SUMÁRIO: Introdução. 1. Estado democrático de direito e controle externo exercido pelo tribunal de contas. 2. Inserção do tribunal de contas na estrutura do estado. 2.1. No estado brasileiro. 2.2. No estado português. 3. Contratação pública. 3.1. Relevância econômica e financeira da contratação pública. 4. Fiscalização financeira da contratação pública pelo tribunal de contas. 5. Momento da fiscalização financeira da contratação pública: prévio, concomitante e subsequente. 5.1. Momento adotado no Brasil. 5.2. Momento adotado em Portugal. Considerações finais. Referências.


Author(s):  
С.Н. Логинов ◽  
Д.Г. Филимонов

Аннотация. В статье дается характеристика содержания понятий «правовая культура» и «правовое государство», выделяются особенности взаимоотношения этих понятий между собой. Констатируется отсутствие единого мнения исследователей по вопросу содержания и функций правовой культуры, рассматриваются ряд ее определений. Явление правовой культуры характеризуется с точки зрения деятельностного, качественного, аксиологического, социологического, структурно-функционального подходов. Выделяются и характеризуются сопутствующие правовой культуре явления как правосознание и правовое поведение. В статье рассматриваются уровни правовой культуры личности и общества, их показатели и факторы. Отражается уровень овладения правовой культурой гражданами нашего государства, а также обоснована необходимость формирования высокого уровня правовой культуры населения и методы стимулирования ее повышения. Отражены функции правовой культуры в государстве. Annotation. The article describes the content of the concepts "legal culture" and "legal state", highlights the features of the relationship between these concepts. The lack of consensus among researchers on the content and functions of legal culture is stated, and a number of its definitions are considered. The phenomenon of legal culture is characterized from the point of view of activity, qualitative, axiological, sociological, structural and functional approaches. The phenomena accompanying the legal culture are distinguished and characterized as legal consciousness and legal behavior.


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