Contract and Assurance of Protection in the Islamic Sharia and International Law (A Comparative Study)
College Of Basic Education Researches Journal,
2010, Volume 9, Issue 3, Pages 204-238
AbstractOccasionally, some intellects, writers and men of letters increasingly call for the renewal of the Islamic jurisprudential legal opinion; they get shocked by the fact which is far from what is stated by the old jurisprudential. This renewal which is called for by many intellects, particularly by the scholars of Al-Azhar, may be exaggerated sometimes because there are jurisprudential constants especially in the field of worships that cannot be renewed or altered. I can actually refer to the section of international relations as the jurisprudential section which needs a renewing study because the developments that occurred in the international relations changed the nature of the relations among the states and even influenced the movement from one country into another. The emergence of the international and regional organizations and the codification the relations among the states result in some developments that are in conformity with the spirit of the Islamic law, whereas some of those developments do not match the principles of the Islamic jurisprudential which build for Muslims the Islamic State having absolute and complete sovereignty. Many decisions are of no effect as they can be verified from what happen within the corridors of power at the UN and the issuance of the condemnation and denounce decisions.
I do not allege to renew the subject of the international relations in the Islamic jurisprudence by this research, but I can say that I have found some contemporary legal concepts which can be replaced by the old jurisprudential terminologies. The jurisprudential difference had a significant role in bringing about the state of flexibility and balance to modernize the Islamic jurisprudence in a way that is compatible with the latest developments of this era and keep up the conformity with the Glorious Quran and the Sunnah. Owing to the simple nature of the international relations between the Islamic State and the other states we can notice that this sections of jurisprudence has not been enlarged on as it has been done in other sections such as the transactions and the civil status. The old jurisprudents have not gone beyond the three sections of (Contract, assurance of protection and Al-Dhima (the Treaty of protection)). Nowadays, we are in a bad need to jurisprudential and international codification making a limitless start from the principles of Islamic Law.
In this study, two most important subjects in the jurisprudence of the internationals relations have been tackled, the first one is the (contract) and the second is (the assurance of protection). I have mentioned that these two terminologies have equivalents in the modern laws and regulations which are (The International Humanitarian Law) which is the equivalent of the term (contract) and (the diplomatic protection) which is the equivalent of the term (the assurance of protection) considering the narrowness of the old terms and the extensiveness of the new ones.
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