Post by Sapphire Capital on Sept 25, 2008 20:33:33 GMT 4
Between Allan Christelow, Paul H. Robinson and Adnan Zulfiqar; Abdullahi A. An Na'Im, Sanusi L. Sanusi and Asifa Quraishi: Rationalizing the Concept of Inventing New Forms in Islamic (Sharia) Law in Nigeria
Aminu Adamu Bello
University of Abuja, Nigeria
June 29, 2008
Islamic Law and Law of the Muslim World Paper No. 08-38
Abstract:
The argument will persist that the benefit of codification in respect of Shari'a lays in the code's ability to provide fair notice, limiting abuse of discretion, increasing uniformity in application and reducing the incidence of the making of criminal law by judges. The same argument can be advanced to defeat claims that Shari'a is actually maintained once it is made to serve only those ends which codifiction aims to fulfill. There is therefore a sharp distinction between what proponents of codification manufacture as Shari'a and what they refer to as traditional or classical Shari'a. The one cannot be the other because they do not in theory and in fact serve the same ends - justice according to the divine revelation.
This paper seeks to make the point that there are valid reasons for codification of aspects of Shari'a because of the nature of our society today, but it is certainly a misnomer to maintain that the codification amounts to the production of enforceable Shari'a. Best case scenario will be that the codification produces for the relevant societies aspects of Shari'a which such societies want to employ state apparatus to enforce. At worst, it is the abuse of state power to corrupt the system of law long considered a threat to the survival of some individual and collective selfish interests.
papers.ssrn.com/sol3/papers.cfm?abstract_id=1153112
Aminu Adamu Bello
University of Abuja, Nigeria
June 29, 2008
Islamic Law and Law of the Muslim World Paper No. 08-38
Abstract:
The argument will persist that the benefit of codification in respect of Shari'a lays in the code's ability to provide fair notice, limiting abuse of discretion, increasing uniformity in application and reducing the incidence of the making of criminal law by judges. The same argument can be advanced to defeat claims that Shari'a is actually maintained once it is made to serve only those ends which codifiction aims to fulfill. There is therefore a sharp distinction between what proponents of codification manufacture as Shari'a and what they refer to as traditional or classical Shari'a. The one cannot be the other because they do not in theory and in fact serve the same ends - justice according to the divine revelation.
This paper seeks to make the point that there are valid reasons for codification of aspects of Shari'a because of the nature of our society today, but it is certainly a misnomer to maintain that the codification amounts to the production of enforceable Shari'a. Best case scenario will be that the codification produces for the relevant societies aspects of Shari'a which such societies want to employ state apparatus to enforce. At worst, it is the abuse of state power to corrupt the system of law long considered a threat to the survival of some individual and collective selfish interests.
papers.ssrn.com/sol3/papers.cfm?abstract_id=1153112