چکیده:
From the perspective of Wael Hallaq, the modern linguistic construct, epistemology, and its accompanying concepts have led to a rupture between Islamic law and its historical past, placing it within a lexical and epistemological framework that is fundamentally alien and incompatible. The 'legal system' within the framework of the modern state requires a distinction between the 'legal' and the 'moral' and the inclusion of binding rules in official codes. In contrast, Islamic law is based on the intertwining of the moral and the legal and the dialectic between them. Furthermore, the pluralistic characteristic of Islamic law prevents it from being placed within the framework of codification. While this narrative of modern law and Islamic law is insightful, it contains flaws that should not be ignored. The claim of the absolute centrality of the political sphere in modern law, and the lack of distinction between the moral and the legal in Islamic law and its independence from the political sphere, seems at least controversial, if not incorrect.
خلاصه ماشینی:
com Introduction From the perspective of Wael Hallaq 1, the historical and philosophical emergence of the modern state from the sixteenth century onwards has created a structure that, with its unique characteristics, is fundamentally different from traditional political and legal systems, especially Islamic ones.
1. The Modern State according to Hallaq: The political at the center of the modern legal system The modern state is an abstract entity 1 beyond the government and citizens that, through the application of law as a manifestation of its sovereign will within a specific territorial expanse, demands the submission of subjects.
It is here that Hallaq presents his striking claim regarding the independence of the legal matter from the political matter in Islam; on this basis, legal authority was the share of the jurists and scholars, and it remained so; caliphs and their subordinates were very cautious and precise in creating a balance between their power-based will and the need for legitimacy, and such a thing could only be achieved through observing religious rights and the requirements considered by the jurists.
Accordingly, if there is only one pre-modern political and legal culture that has well established and maintained the principle of the rule of law, from Hallaq's perspective, that culture is Islamic.
The essence of Hallaq's argument lies in the assumption of the moral element at the core of Islamic law and the political element at the center of the modern state and its legal system.
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