| Autor: |
Ahmed, Habib, Abozaid, Abdulazeem |
| Předmět: |
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| Zdroj: |
Manchester Journal of Transnational Islamic Law & Practice; 2022, Vol. 18 Issue 1, p123-139, 17p |
| Abstrakt: |
This article develops a framework of assessing Sharī'ah compatibility of laws promulgated by the state from Islamic perspectives by revisiting the concept of siyāsah shar'iyyah (state law), examining the typology of Islamic law, and using relevant Islamic legal methodologies. We distinguish between the notions of Sharī'ah compliance and Sharī'ah compatibility of laws. Linguistically, compliance means fulfilling Sharī'ah principles and compatible implies no conflict with Sharī'ah principles. However, the qualitative difference between the two concepts lies in terms of the degree of canonicity and the Islamic legal method used in their derivation. While compliance has direct links with Sharī'ah texts, compatibility is endorsed by Sharī'ah implicitly based on fundamental maxim of maṣlaḥah that governs Islamic laws. The conditions under which new statutes can be considered Sharī'ah compatible include identifying the new laws as non-textual, applying the principle of permissibility, and providing additional screening of promoting welfare (maslahah) and avoiding harm. Furthermore, to provide legitimacy to a statute enacted by the state a Sharī'ah body may have to endorse it to be Sharī'ah compatible after assessing that the principle of permissibility and maxim of maslahah are appropriately applied. The approach outlined in the article attempts to revive the notion of siyāsah from Islamic legal history that provides a framework of conjoining laws promulgated by the sovereign with Sharī'ah. While the article applies the framework to assess some of the financial laws that govern Islamic finance as examples, the proposed framework can be used more broadly to assess the Sharī'ah compatibility of state laws and regulations that do not originate from Islamic texts. [ABSTRACT FROM AUTHOR] |
| Databáze: |
Complementary Index |
| Externí odkaz: |
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