third part - 2nd part
Already in the last decades of the Umayyad caliphs had been increasing the need to provide accommodation to an organic system of Islamic law in relation to the fact that more and more, to the extent that it expanded the domain Islam, peoples, cultures, different legal traditions always had severely diminished the character "Arab" Muslim territories. This need of accommodation increased with the advent of the Abbasid dynasty that went enriching cultural elements that went far beyond the scope arabofono to take on the character of "universal empire". To address the issue we must first of all explore three fundamental legal terms: "Sharia, Fiqh, Qanun"
A - The Sharia is a common term for the Arabic-speaking peoples of the Middle East. In the Qur'an the term meets 4 times and links to the meaning of "law" to the more general "Via saving outlined by God." From the point of view Sharia law is literally the "way that leads to water", and so it evokes life in a desert country like Saudi. A second meaning is "path" that the believer must follow to come to life thanks to the religious commandments laid down by God and revealed to Muhammad, Sharia law in this sense is synonymous with religion. Sometimes, however, the Sharia is presented as a positive law, ie as a series of precise rules, and sometimes down the general principles of behavior that allow a certain degree of creativity. Over the centuries, we see a shift, in the commentators of the Koran and the Ulema generally the wider the narrow sense of "divine positive law and clear rules of behavior."
Sharia becomes the law of God comprehensive, meticulously shaping the behavior of individuals and society and which would be phased to coincide with Islamic law. The Islamic giuristeriti (fuqaha) together determine the legal and moral character of human actions, classifying the various acts under 5 qualifiers: 1 - wajib (obligatory acts): These are for example the 5 pillars of faith. God punishes those who do not conclude without a just cause;
2 - Mandub (recommended acts): those who commit these acts receive a reward but neglects them who does not deserve punishment, such as "free prayer" and "Sadaqa" or free alms ; 3 - Haram (prohibited acts): who performs them is both men punished by God, the afterlife and sometimes in this life. Haran are theft, adultery, murder unjustified repudiation not Qur'anic 4 - makruh (reprehensible acts) in this category are certain valid forms of divorce, but no valid reason. God punishes those actions in the afterlife;
5 - Mubah (lawful acts or permissions): This is the most human actions. This determining the quality of acts is one of the forms of fulfillment of the Qur'anic commandment:
"Recommended good and forbid what is wrong." According to the dominant legal tradition and theological horizon, which is what theology Asharite, mail is not a moral concept "natural", based on research of reason to discover and interpret the project written by God in creation, but only a morality based on the positive revelation, that certain approaches to interpretation in many aggressive, often ending in the formalism. There is more to coexist in a unique hybrid of the two principles of law, human and divine, secular and religious institutions and their procedures and often conflicting.
B - Fiqh. If Sharia is the divine law, Fiqh is the science of the divine law, the result of a synthesis of two elements: first some data drawn from the Koran and the prophetic tradition (Sunna) of the other solutions worked out by human reason from the necessities of life. The Fiqh can be defined as a legal ethics theology of Islamic civilization, at the same time is wider and narrower than the Western notion of law. Fiqh (understanding) is the technical term for the science of Islamic law and jurisprudence, and because it indicates a human activity, it does not apply to God in the Prophet. The man is called by God to observe the Sharia to live in harmony with the cosmic order that he has established. Giuristeriti that I have the authority required in this area expose and process the Sharia that are in the primary sources of divine revelation and that is the Koran and the Sunna. The Fiqh embraces all spheres of life must be based on religion, but in turn the areas of application of Fiqh are usually 3: 1
- Ibadat, laws of worship and religious practice; 2 - Mu'Hamalat, laws regarding social life;
3 - Other areas include the spheres of law and constitutional law of criminal procedure laws of the state administration and the conduct of war. C - Qanun. The term has acquired a very general sense of the law or code. In the early days of the Islamic holders of power, especially the governors of provinces without specific legislative jurisdiction, enacted various laws in the field of public law and criminal law in which the Fiqh appeared insufficient or in the case of Koranic punishments too rigid. In the administrative field Qanun was never in conflict with Sharia law, which in fact was not, in the field of criminal law, however, sometimes the governors replaced the discretionary punishment to mutilation and death penalties provided for by the Koran. Following the Ottoman sultans legislate in other areas subject to Sharia. In modern and contemporary the Qanun to both the laws and codes inspired by Western laws (civil, commercial, administrative, criminal etc.. Etc..) Codes that reproduce both the simplified rules of sharia, such as some of the codes personal status (Syria, Iraq). The current procedure involves preparation of the Qanun of the rules committee, voting in the assembly and the enactment in the executive branch.
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