EIRP Proceedings (Jun 2009)
Islamic Law
Abstract
The law system of a State represents the body of rules passed or recognized by that State inorder to regulate the social relationships, rules that must be freely obeyed by their recipients, otherwisethe State intervening with its coercive power. Throughout the development of the society, pedants havebeen particularly interested in the issue of law systems, each supporting various classifications; theclassification that has remained is the one distinguishing between the Anglo-Saxon, the Roman-German,the religious and respectively the communist law systems. The third main international law system is theMuslim one, founded on the Muslim religion – the Islam. The Islam promotes the idea that Allah createdthe law and therefore it must be preserved and observed as such. Etymologically, the Arabian word“Islam” means “to be wanted, to obey” implying the fact that this law system promotes total andunconditioned submission to Allah. The Islamic law is not built on somebody of laws or leading cases,but has as source. The Islam is meant as a universal religion, the Koran promoting the idea of the unityof mankind; thus, one of the precepts in the Koran asserts that “all men are equal (…), there is nodifference between a white man and a black man, between one who is Arabian and one who is not,except for the measure in which they fear God.” The Koran is founded mainly on the Talmud, Hebrewsource of inspiration, and only on very few Christian sources. The Islam does not forward ideas whichcannot be materialized; on the contrary its ideas are purely practical, easy to be observed by the commonman, ideas subordinated to the principle of monotheism. The uncertainties and gaps of the Koran, whichhave been felt along the years, imposed the need for another set of rules, meant to supplement it – that isSunna. Sunna represents a body of laws and, consequently, the second source of the Koran. Sunnanarrates the life of the prophet Mohamed, the model to be followed by all Muslims. This prophet teachesthe Muslims five basic rules they must strictly obey: prayer five times a day, gifts to the poor, faith inAllah, fasting in the month of Ramadan and pilgrimage to Mecca, at least once in a lifetime. The Koranexcludes the passage of laws by a legislative body, the divinity being the sole “authority” capable ofgoverning life in all its dimensions. However, on the other side, as it would have been expected due tothe old times when it was created, the Koran encouraged a series of injustices and limitations of thehuman rights, from a contemporary point of view; the Islamic law settled the inferiority of women inrelation to men. If in the 7th century the woman’s position in society was rather humble, the voice of theprophet Mohamed improved her condition, the woman becoming her husband’s “partner and closehelper”, and the development of the society led to the emancipation of the woman, especially due toexternal influences. After the beginning of the 19th century, the application area of the Sharia law wasreduced at first due to the western influence, but its proponents succeeded in reviving it, phenomenonknown as “the Islamic rebirth”. Thus, the penetration of modern education as well as the constitution ofnational States led to the acceptance of the introduction of the codes specific to the continental system.In some countries, the Islamic law was officially abolished – this is the case of Albany, Turkey and theformer USSR. International jurisdictions (Hague International Court), supranational (Strasbourg Courtof Human Rights), and even transnational ones (the one from Kosovo) have already been created. In thelight of this international trend, legal systems interfere and tend towards external influence and evenglobalization. Given this context, we must mention the Universal Islamic Declaration of Human Rights(the 19th of September 1981), and the European Union – Islamic Conference Organization bilateralforum held in Ankara, 2002.
