Environmental Engineering Reference
In-Depth Information
2.6.2.1 The Meaning of the Shari
a
'
Theword Islamderives from the word salaam (meaning peace) andmeans submission
to God, whereby
537
According to
the Islam, God is the sole source of authority and thus the sovereign lawgiver.
538
Hence, the Shari
(t)he Shari
a is the path to achieve this submission.
'
'
'
a is divine and eternal,
539
and often the source of legislation.
540
For
most Muslims, the Qur
'
541
The
'
an is
'
(
...
) the actual verbatim revelation sent by God.
'
Qur
an deals with legal issues only in 350 out of 6616 verses and thus “only” lays
down guidelines and general principles for the realization of a civilized society.
542
Most Islamic legal scholars view the Qur
'
a.
543
'
an as the primary source of the Shari
'
Furthermore, there is the
sunnah
, which encompasses
...
'
(
) behaviors, decisions,
actions, tacit approvals and disapprovals of the Prophet (
) (, which were) heard,
witnessed, memorized, recorded, and transmitted from generation to generation
(
...
544
Many Islamic scholars view the
sunnah
as the second legal source of the
...
).
'
a is explained by different schools of thought.
546
Furthermore, three important legal tools are
qiyas
(the reasoning by analogy in
cases of new legal problems),
ijtihad
(establishing rules in relation to the principles
of Islam), and
ijma
(consensus by a community concerning the acceptance of
qiyas
and
ijtihad
.
547
Based on
ijtihad
, Muslim jurists cannot create new law as God
created all rules.
548
If arbitrational tribunals were allowed to include principles as
the
ijtihad
, some claim that a lot of enforcement obstacles would be avoided.
549
It is
important to realize that customs cannot change rules of the Shari
a.
545
The Shari
Shari
'
'
a,
550
but the
'
a views customs as binding.
551
The Shari
Shari
a is often used as a back-up to fill
judicial loopholes.
552
It is also problematic that the Shari
'
'
a deals with legal issues
case-by-case, instead of establishing general rules.
553
It would be wrong to think
that there are no similarities between Western laws and the Shari
'
a.
'
537
Kutty (
2006
), 565 (578).
538
Kutty (
2006
), 565 (578) and (580).
539
Kutty (
2006
), 565 (578).
540
Ayad (
2009
), 93 (94).
541
Kutty (
2006
), 565 (583).
542
Kutty (
2006
), 565 (584).
543
Ayad (
2009
), 93 (99); Kutty (
2006
), 565 (584).
544
Kutty (
2006
), 565 (585).
545
Kutty (
2006
), 565 (585).
546
Darwazeh and El-Kosheri (
2008
), 203 (204), Kutty (
2006
), 565 (581-582).
547
Kutty (
2006
), 565 (586-588).
548
Ayad (
2009
), 93 (105).
549
Ayad (
2009
), 93 (93) and (103-104).
550
Kutty (
2006
), 565 (589).
551
Ayad (
2009
), 93 (109).
552
Ayad (
2009
), 93 (98).
553
Ayad (
2009
), 93 (111).
