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The legal system defines a set of rules, conduct or/and procedures which are necessary for establishing and maintaining a disciplined society. It has been formulated by custom, agreement and national interests and is enforced through a set of institutions. The legal system is critical as it shapes politics, economics and society in various ways and acts as the best social mediator in relations between people and institutions. Each country often develops variations on each system and incorporates many other features into the system. There are three types of Legal system in world they are: 1) civil law 2) common law and 3) religious law
Religious law is a type of law in which ethical and moral codes are taught by religious tradition. Hindu Law, Christian law, Muslim law, Canon law etc are the law which is followed by people in different parts of world. In Religious law they have their personal laws which are traditional and they are running from couple of years back. In religious law they have no written and any other of this type system. In religious law God is supreme and he is the main authority of that particular law. Religious law is thought to be a higher body of understanding in which reality and knowledge is defined by God and is applicable to all human beings. This is, of course, a rather simplistic view of religious law as there are many different religions, each trying to establish their own concepts and ideas as to what religious law should include. Religious law is derived from two primary sources: the civil law tradition as followed by Catholic, Anglican and Orthodox religions and the more customary basis such as Sharia law that is more akin to common law principles.
In this regard Muslim law is one of the religious laws which is also known as Sharia law. Sharia law is basically found in Muslim countries. In this law Quran, a holy book of Muslims is the main source of law. Sharia deals with many topics addressed by secular law, including crime, politics and economics, as well as personal matters such as sexual intercourse, hygiene, diet, prayer, and fasting. Where it has official status, sharia is applied by Islamic judges, or qadis. The imam has varying responsibilities depending on the interpretation of sharia; while the term is commonly used to refer to the leader of communal prayers, the imam may also be a scholar, religious leader, or political leader. Religious laws or each religion is investigated separately in relation to its legal concepts.
History and Member countries
The world’s final major legal tradition, Islamic law, arose with the birth of Islam in the Arabian Peninsula and Mesopotamia in the seventh century A.D. Sharia developed several hundred years after the Prophet Mohammed’s death in 632 CE as the Islamic empire expanded to the edge of North Africa in the West and to China in the East. Since the Prophet Mohammed was considered the most pious of all believers, his life and ways became a model for all other Muslims and were collected by scholars into what is known as the hadith. As each locality tried to reconcile local customs and Islam, hadith literature grew and developed into distinct schools of Islamic thought: the Sunni schools, Hanbali, Maliki, Shafii, Hanafi; and the Shiite school, Jafari. Named after the scholars that inspired them, they differ in the weight each applies to the sources from which sharia is derived, the Quran, hadith, Islamic scholars, and consensus of the community.As the Arab empire expanded, Islamic religious and legal traditions became predominant in many Central Asian and Middle Eastern states. The Islamic legal tradition is based primarily on religious principles of human conduct, and law is an integral part of the Islamic religion.
Quran, a holy book of Muslims, is the main source of law of Muslim Religious legal system. The basis of Islamic jurisprudence—and of Islam itself—is the Quran, the collection of Islamic scripture revealed to the Prophet Muhammad over a period of 21 years beginning in 610 AD.
The majority of Muslim states in South Asia and South East Asia. Afghanistan, Bangladesh, Libya, Iran, Morocco, Oman, Sudan and Saudi Arabia is the main sources of Islamic legal system. Saudi Arabia is one of the state which followed the Islamic legal system. In Saudi Arabia legal system is based on Sharia for both criminal and civil cases. At the top of the legal system is king, who acts as supreme authority of state and final court of appeal.
Shia and Sunni Muslims
Both Shia and Sunni Muslims are followers of Muhammad and tradition of Muslims. The division of these two is the result of Political differences but not of spiritual differences. The divisions of these two groups made after the death of Muhammad, to become successor of Muhammad. Sunni Muslims agree with the position taken by many of the Prophet’s companions, that the new leader should be elected from among those capable of the job. This is what was done, and the Prophet Muhammad’s close friend and advisor, Abu Bakr, became the first Caliph of the Islamic nation. The word “Sunni” in Arabic comes from a word meaning “one who follows the traditions of the Prophet.” On the other hand, some Muslims share the belief that leadership should have stayed within the Prophet’s own family, among those specifically appointed by him, or among Imams appointed by God Himself.Shia Muslims believe that leadership is directly came from God at the time of birth but Sunni Muslims believe that leadership of community is not birth right but this is given by peoples. At this time world have 85% population of Sunni Muslims of total population of Muslims. Shia Muslims can be found in Iran and Iraq, and large minority communities in Yemen, Bahrain, Syria, and Lebanon. Despite these differences in opinion and practice, Shia and Sunni Muslims share the main articles of Islamic belief and are considered by most to be brethren in faith. In fact, most Muslims do not distinguish themselves by claiming membership in any particular group, but prefer to call themselves simply, “Muslims.”
The sources of Islamic law
This is the origin of all Islamic legislation. It sets forth the fundamentals of the Sharia, clarifying its principle teachings. It clarifies beliefs in great detail and discusses forms of worship and legal matters in broad terms. It fulfills the role in Islamic Law that a constitution fulfills for the man-made laws of nations. It is the model for the Prophet (peace be upon him) and those who come after him. This is why the Quran is considered the source of all legislation, even though its role as a “constitution” for Islamic Law limits it to clarifying injunctions in only general terms, rarely dealing with particular details.
This term is used to refer to the statements, actions, and tacit approvals of the Messenger (peace be upon him). With this meaning, it is synonymous with the word “hadith”. The word Sunnah also used to mean the practical application of the injunctions during the prophetic era.
The Sunnah comes after the Quran in its ranking as a source of Islamic Law, as it comes to clarify what the Quran leaves ambiguous or difficult to understand, qualify what the Quran leaves unqualified, and bring up issues that the Quran does not mention. Since the era of prophetic relation came to an end with the death of the Messenger (peace be upon him), the Sunnah has been transmitted to us by way of narrators. Only the narrations whose authenticity can be established according to the most stringent conditions are acceptable as proof for legislation in Islamic Law. The scholars of the Sunnah expended great efforts in the classification of the prophetic hadith into authentic, good, weak, and fabricated. Only the first two are acceptable as proof in Islamic Law.There is no disagreement about the Sunnah being one of the sources for Islamic legislation. It holds a position secondary to that of the Quran in that the Quran takes precedence in providing proof for legislation. When a jurist looks for a ruling on a certain matter, he looks to the Quran first. If he finds the desired injunction therein, he applies it. If not, he takes recourse to the Sunnah.
Characteristics of Islamic legal system
- Monarchy or Royal family is the head of state
In Islamic Legal System Family Country, Head of the State is Royal Family. The tradition of this type of Monarchy is ran away from long time ago and in present time also these countries have Monarchy system.
- Quran is the main source of law
Sharia law preferred countries used Quran as their main source of law. It is the primary source of law of Islamic countries. They argues that it was written by God itself and every Muslim is obligatory to follow its rules and regulations. No one can go against the Quran and if anyone wants to go against it or tries they he is punished by God.
- Religious freedom does not recognized
Those countries which followed religious legal systems in such countries peoples have no rights to choose their personal religion e.g. citizen of Saudi Arabia has no right to choose his religion other than Islam. By religious edict, Islam must be dominant; only Muslims are considered to be full citizens. Jews and Christians are defined as dhimmis (literally “protected” i.e. permitted to live). However this protection is on condition that they do not bear arms, know their lowly place in society, treat Muslims with respect, and pay a special poll tax (jizya).
- Women have not equally treated and they have less Powers than men.
Shari’a discriminates on the basis of gender. Men treated superior over women. In Islamic legal countries women have not as powers as men have. They can’t go outside from their house on if they go with male members of family than Burka is essential for them to cover her face. A Man have power to marry with Four Females but Women have not. Women can have only one Husband. A daughter inherits half as much as a son, and the testimony of a female witness in court is worth only half that of a male witness.
- Press and Communication have no freedom
In Islamic legal countries there is no freedom for Press and communication. They are influenced by Political powers and they can’t affect the political powers.
- Islamic law allows an injured plaintiff to exact legal revenge
In the Islamic countries their laws allows to exact revenge for any wrongful act. If there is any wrongful act done by another than their laws allows the plaintiff to revenge the exact which was committed with his/her e.g. eye for eye and hand for hand.
- Islam commands that a male and female thief must have a hand cut off
Islamic legal system follower countries have laws that cut off the hands of person if he/she was caught to commit theft or trying for it
- Marriage is like a contract
In Islamic law marriage is just like as a contract. Islamic man can have four wives at same time and they divorce his wife when they want but Islam doesn’t allow this to women. At a time Muslim Woman can have only one husband.
Saudi Arabia Legal System
Saudi Arabia is one of the country which have the Islamic Legal System. It prefers the Quran, Holly book of Islam, as the Law source of Country. Saudi Arabia’s legal system is based on Sharia law for both criminal and civil matters. King is at the top of legal system and he is the supreme authority of state. The Saudi court system consists of three main parts. The largest is the Sharia Courts, which hear most cases in the Saudi legal system. The Sharia courts are organized into several categories: Courts of the First Instance (Summary and General Courts), Courts of Cassation and the Supreme Judicial Council. Saudi Arabia’s judicial code stipulated that specialized courts may be established by royal decree to deal with infractions of government regulations not covered by the sharia.
Saudi Arabian legal system of 1992 is based on Sharia law. Sharia law law is applied to kingdom in accordance with strict interpretation of Hanabali rite of Sunni School because Pious Muslims believe that the Sharia was a secret law hence they accepted as judges or Quadis only men who had spent number of years studying the accepted sources of Sharia and the authenticated traditions (Hadith) of Prophet Mohammed’s practices.
Historically the decisions of Qadis were subject to review by the ruler whose primary function was to ensure the Islamic community lived in conformity with the Sharia. In effect, the Judiciary was not an Independent Institution but an extension of the political authority. This traditional relationship between Qadis and King shall prevails in Saudi Arabia.
Ministry of Justice
Ministry of Justice established by King Fasal in 1970 was responsible for administering the country’s more than 300 Sharia Courts. Ministry of Justice appointed by King from any of the country’s most senior chief Justice. He was assisted by Supreme Judicial council, a body of elected members chosen from the leading Ulama, the supreme council surprised the work of Sharia Courts, revised all legal decisions referred to it by Ministry of Justice, expressed legal opinions a Judicial questions and approved all sentences of death, amputation etc.
Hierarchy of Courts
There are more than 300 courts in Saudi Arabian legal system. Sharia courts included courts of first instance and appeals courts. Minor civil and criminal cases are adjudicated in the summary courts of first instance, are kind of summary court deals exclusively with Bedouin affairs. A single Qadi presided over all summary court hearings.General court of first instance handle cases beyond the jurisdiction of summary courts. Judge usually presided over cases in general courts but three Qadis set in judgments for serious crimes such as Murder, Major theft or sexual misconduct.
In religious legal system follows countries God is the supreme authority of state. In this regard Government can command more loyalty from citizens. In those countries there should be more unity and brotherhood than any democratic country. Those people assumed that they all are children of God and so they are family members. To the fear of God people performs their duties very well and doing so there should be maintain peace and rules and regulations. There may occur less conflict in the state. On the other hand there are more much disadvantages of Religious Legal System. In this type of legal system countries there is no recognition of religious freedom. In those countries a person with a different religion from the dominant one may be persecuted or even killed. The laws may not be based on logic or fairness, but on the words of an ancient book, and they are not debatable and cannot be easily changed.
In Islam, the concept of justice is more comprehensive, vital, and sacred than in any other system of life. It is one of the fundamental objectives of the Islamic state to provide justice. Not only justice is considered to be a trust, a sacred responsibility, which is to be performed in conformity with the provisions of the Quran and the Sunnah; but the dispensation of justice also constitutes one of the most important acts of devotion.
B.A LL.B (HONS)
HARLAL SCHOOL OF LAW