scholarly journals Child Testimony and Its Admissibility in Criminal Proceedings: A Comparative Analysis Between Common Law and Islamic Law Systems

2019 ◽  
Keyword(s):  
Comparative Analysis ◽  
Islamic Law ◽  
Common Law ◽  
Criminal Proceedings ◽  
Child Testimony

Forensic Evidence in Proving Crimes: Exploring the Legal Frameworks of Sharīʿah Bukti Forensik Bagi Membuktikan Jenayah: Menerokai Rangka Kerja Guaman Sharīʿah

2016 ◽  
Vol 13 (1) ◽  
pp. 220-247
Author(s):  
Sayyid Mohammad Yunus Gilani ◽  
K. M. Zakir Hossain Shalim
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
Common Law ◽  
Legal Framework ◽  
New Method ◽  
Criminal Investigation ◽  
Forensic Evidence ◽  
Administration Of Justice ◽  
Legal Frameworks

AbstractForensic evidence is an evolving science in the field of criminal investigation and prosecutions. It has been widely used in the administration of justice in the courts and the Western legal system, particularly in common law. To accommodate this new method of evidence in Islamic law, this article firstly, conceptualizes forensic evidence in Islamic law.  Secondly, explores legal frameworks for its adoption in Islamic law. Keywords: Forensic Evidence, legal framework, Criminal Investigation, Sharīʿah.AbstrakBukti forensik adalah sains yang sentiasa berkembang dalam bidang siasatan jenayah dan pendakwaan. Ia telah digunakan secara meluas dalam pentadbiran keadilan di mahkamah dan sistem undang-undang Barat, terutamanya dalam undang-undang common (common law). Untuk menampung kaedah pembuktian baru ini dalam undang-undang Islam, artikel ini, pertamanya, konseptualisasikan bukti forensik dalam undang-undang Islam. Kedua, ia menerokai rangka kerja undang-undang untuk penerimaannya dalam undang-undang Islam.Kata Kunci: Bukti Forensik, Rangka Kerja Guaman, Siasatan Jenayah, Sharīʿah.

Malaysia: Religious Pluralism and the Constitution in a Contested Polity

2012 ◽  
Vol 4 (2-3) ◽  
pp. 356-385 ◽  
Author(s):  
Andrew Harding
Keyword(s):  
Islamic Law ◽  
Religious Conversion ◽  
Common Law ◽  
Islamic State ◽  
Colonial Era ◽  
Federal Constitution ◽  
Highly Sensitive ◽  
Plural Society ◽  
Muslim Majority ◽  
Historical Developments

Malaysia has a classically plural society with a Malay/ Muslim majority and a legal system which, for historical reasons, is bifurcated between the common law and Islamic law. It also has a colonial-era federal constitution under which Islam is a state issue. Disputes concerning religion are both many and divisive. They are dealt with mainly in constitutional terms, especially in debates about the notion of an Islamic state, in light of Article 3 and the enshrinement of an official religion and in litigation. The latter is rendered complex by the separation of Islamic from common law jurisdiction in 1988, a fact that has given rise to highly sensitive and troubling litigation involving, especially, religious conversion in Lina Joy (2007). This article traces historical developments relating to religion and the law, and finds cause for some optimism that religious divides can be bridged by constitutional means, in light of recent judicial responses and evolving debates about the constitutional position of Islam.

scholarly journals Transparency in corporate governance: Extent of directors duty to declare interest in company’s transactions

2015 ◽  
Vol 11 (1) ◽  
pp. 137-148 ◽  
Author(s):  
Anthony O. Nwafor
Keyword(s):  
South Africa ◽  
Corporate Governance ◽  
United Kingdom ◽  
Comparative Analysis ◽  
Common Law ◽  
Men And Women ◽  
Legal Personality ◽  
The Common ◽  
The Law ◽  
Important Position

The realization that the directors occupy important position in corporate governance, and as business men and women, cannot be prevented from having dealings with the company, demand a close scrutiny of corporate transactions in which they are directly or indirectly involved or have an interest to ensure that such interest is not placed above their duty to the company. One of the ways in which the law strives to achieve this balance is by imposing a duty on the director to disclose to the board any interest he has in company’s transactions. This requirement which was previously governed by the common law and the company’s articles, is presently increasingly finding a place in companies statutes in different jurisdictions. The paper examines, through a comparative analysis, the provisions on the duty of the director to disclose interest in company’s transactions in South Africa and United Kingdom with the aim of discovering the extent to which the statute in both jurisdictions upholds the common law prescriptions. The paper argues that the need for transparency in corporate governance and the preservation of the distinct legal personality of the company demand that the duty to disclose interest should be upheld even in those cases of companies run by a sole director.

scholarly journals TEMPORARY ACCESS TO DOCUMENTS CONTAINING MEDICAL CONFIDENTIALITY (CRIMINAL PROCEDURAL ASPECT)

2020 ◽  
Vol 73 (5) ◽  
pp. 1032-1036
Author(s):  
Serhii Ye. Ablamskyi ◽  
Vitalii V. Romaniuk ◽  
Ruslan P. Chycha ◽  
Viktoriia V. Ablamska
Keyword(s):  
Comparative Analysis ◽  
Scientific Knowledge ◽  
Legal Basis ◽  
Criminal Proceedings ◽  
Medical Confidentiality ◽  
The Future ◽  
Improvement Of Legislation ◽  
Access To Documents ◽  
Procedural Aspect

The aim of the study: 1) to determine the features of temporary access to documents containing information that may be a medical confidentiality; 2) to identify legislative gaps regarding the regulation of the measure of criminal proceedings; 3) to formulate proposals for improvement of legislation in the part of the investigated issue. Materials and methods: The legal basis for the protection of information that may be a medical confidentiality is provided. Legislative provisions have been identified and analyzed, which provide for particulars of access to documents containing information that may be a medical confidentiality. It is argued that the evidence collected in violation of the procedural order of the measure of criminal proceedings is inadmissible and therefore cannot be taken into account by the court in the future. Writing the article, the authors used both general and special methods of scientific knowledge, namely: formal-legal, formal-logical, comparative analysis and logical-normative. The complex application of these methods has made it possible to formulate science-based conclusions and proposals. Conclusions: Exemption of documents containing information that may constitute medical confidentiality should be done exclusively by temporary access to them. In order to eliminate the legislative gaps of the investigated issue, it is proposed to amend the current legislation accordingly.

scholarly journals PERBANDINGAN SISTEM HUKUM COMMON LAW, CIVIL LAW DAN ISLAMIC LAW DALAM PERSPEKTIF SEJARAH DAN KARAKTERISTIK BERPIKIR

2018 ◽  
Vol 25 (1) ◽  
pp. 98
Author(s):  
Farihan Aulia ◽  
Sholahuddin Al-Fatih
Keyword(s):  
Legal System ◽  
Legal History ◽  
Islamic Law ◽  
Common Law ◽  
Legal Systems ◽  
Legal Tradition ◽  
History Of ◽  
Legal Thinking ◽  
Anglo American ◽  
The Comparative Study

The legal system or commonly referred to as the legal tradition, has a wealth of scientific treasures that can be examined in more depth through a holistic and comprehensive comparative process. Exactly, the comparison of the legal system must accommodate at least three legal systems that are widely used by countries in the world today. The three legal systems are the Continental European legal system, Anglo American and Islamic Law. The comparative study of the three types of legal systems found that the history of the Continental European legal system is divided into 6 phases, while Anglo American legal history began in the feudalistic era of England until it developed into America and continues to be studied until now. Meanwhile, the history of Islamic law is divided into 5 phases, starting from the Phase of the Prophet Muhammad to the Resurrection Phase (19th century until nowadays). In addition to history, the authors find that the Continental European legal system has the characteristic of anti-formalism thinking, while the Anglo American legal thinking characteristic tends to be formalism and is based on a relatively primitive mindset. While the thinking character of Islamic Law is much influenced by the thought of the fuqoha (fiqh experts) in determining the law to solve a problem, so relatively dynamic and moderate.

Third Party Beneficiary: A Comparative Analysis

1976 ◽  
Vol 11 (3) ◽  
pp. 315-338 ◽  
Author(s):  
Gabriela Shalev
Keyword(s):  
Comparative Analysis ◽  
Legal System ◽  
Common Law ◽  
Third Party ◽  
Critical Examination ◽  
Legal Research ◽  
General Part ◽  
The Common ◽  
Comparative Survey ◽  
The Right

Chapter 4 of the new Israeli Contracts (General Part) Law, 1973, introduces the concept of a contract in favour of a third party, while granting express recognition to the right of a third party beneficiary. Even those, (including the author) who maintain, that the right of a third party beneficiary could and should be derived, even before the commencement of the new Law, from the general principles and premises of the old Israeli law of contract, cannot fail to see in the above-mentioned chapter an important innovation in the Israeli legal system.This paper is a comparative analysis of the institution of third party beneficiary. The analysis will consist of a presentation and critical examination of the central concepts and doctrines involved in the institution under discussion, and it will be combined with a comparative survey of the arrangements adopted in various legal systems. The choice of this approach stems from the particular circumstances of the new legislation.While in most countries, comparative legal research is a luxury, in Israel it is a necessity. The new legislation in private law is inspired to a great extent by Continental codifications. As far as the law of contract is concerned, Israel is now in the process of becoming a “mixed jurisdiction”: departing from the common law tradition and technique, and heading towards an independent body of law, derived from various sources, mainly Continental in both substance and form.

Treatment of silence as misrepresentation in contracts

2018 ◽  
Vol 60 (1) ◽  
pp. 69-78
Author(s):  
Ridoan Karim ◽  
Imtiaz Mohammad Sifat
Keyword(s):  
Best Practices ◽  
Islamic Law ◽  
Common Law ◽  
Point Of View ◽  
Fine Tuning ◽  
Content Type ◽  
Secondary Sources ◽  
Contractual Obligation ◽  
Contractual Obligations ◽  
Further Development

Purpose This paper aims to provide a comparative discussion on silence as a misrepresentation in contractual obligations between common law and Islamic law. The objective of this paper is to – from a legal pluralism point of view – highlight the contrasts between the two traditions and provide recommendations for best practices to achieve fairness and equity among the contracting parties. While common law does not treat silence as conscious misrepresentation, in Islamic law, silence does not constitute affirmative will. This has repercussions for the contracting parties because if future disputes arise, the aggrieved party in Islamic law reserves the option to rescind or nullify the contract – an opportunity not afforded by common law. We have discussed and analyzed the implementations of the different contractual terms, such as fraud, misrepresentation, trickery and deception in relation with Islamic law principles and common law practices. This research is an effort to draw the attention for further development in both Islamic law and common law practices on contractual obligation. The notion of misrepresentation – subset of a broader gamut of fraud – is arguably nebulous in Islamic literature as well. We delve into these nuances and provide examples both from common law and Islamic law precedents and provide recommendations for reform in both traditions. Design/methodology/approach This paper operates under qualitative methodological framework and uses secondary sources for analysis. Sources include journal databases, review of cases, classical/medieval Islamic scripts, etc. Findings This paper provides a general comparative study between common law’s principle and practice and Islamic law’s principle to forge a better understanding of fine-tuning existing practice and contribute to the debate on determining the best practices to unify international trade and custom exercise. Common law principle, obviously, holds a historical and traditional reputation as those principles are derived from long years of practice and judicial interpretation. Such historical legal system should accommodate fresh ideas in their repertoire and welcome novel ideas which would positively influence its own practice. This paper affords the freedom to the reader to interpret which general principle is acceptable in terms of contractual obligation. Originality/value Previous works exist on the issue of misrepresentation. However, those are mostly explanations of fraud and deceit in Islamic law or common law. The treatment of silence as affirmative will is seldom touched upon. To the authors’ knowledge, this is the first attempt at contrasting the treatment of silence in common and Islamic law. They have also advocated pluralistic practices and argued for legal reform whereby both traditions can benefit from each other.

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