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World Legal Systems and Sharia Law

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Date added: 17-06-26

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The significant difference between religious system and other types of legal systems is religion plays an important role in religious legal system as a guide to deal with disputes, an enlightenment for the general community on the right understanding, and a decision making process based on scared texts. In Afghanistan, where Islam has the important role in the Afghan community, the solutions to settle disagreements and debates are provided by Islam. [1] According to some interviews, Islam can be seen as a guide to life and a largely accepted symbol of good conduct. [2] Moreover, the Islamic legal system could be more effective and efficient than the non-religious legal system, which is often exemplified by corruption, bureaucracy and authoritarianism. [3] In Nigeria, a Hisbah committee is established in each village in the local government that has responsibility for assisting police of preventing and reporting illegal acts, encouraging charity, guiding against obtaining interest, verifying orderliness at religious meetings, supporting in keeping the environment clean, providing an assistance in controlling traffic, dealing with civil disagreement between individuals and organizations. [4] It is clear that religion can play an important role in decreasing the crisis by providing unity and enhancing human self-respect. [5] To explain the important role of religion in religious legal system, many observations have been conducted. The result of them indicates that the police’s practice of religion such as Islam is the criteria to assess their policing jobs. [6] Take Afghanistan National Police as an example, the distrust of Afghan people on ANP commander was explained that “ because all the people from our region call him a non-Muslim”. [7] In broader view, the significant reason for the political crisis in Europe (EU) could be the loss of Christian roots, a primary religion of almost EU people, on its continent. [8] In making legal decision process, there is a difference in the countries, where their laws are subject to the Shari’a, which means that their legal courts have responsibility to decide on whether or not a given law is appropriate for the Shari’a. [9] Moreover, the constitutional courts can review the aspect in which other legitimate courts can apply the laws in order to make sure appropriateness of them for the Shari’a. [10] The significant difference of socialist legal system is that although socialist legal system has based on civil law, the power to determine the law belongs to the centralized powerbase or government and therefore, this type of legal system has faced difficulty of carrying out its legal duty to supervise the activities of government. In socialist legal system, law can be seen a tool to transform society. [11] Although the legal system has been reformed, protection of the state’s interest has been largely focused on. [12] Meanwhile, protection of individuals against the state has been paid little attention. [13] Take Chinese legal system as an example, a balance between authority and general public is still being searched by Chinese constitutional legal system. [14] More specific, court decision-making is being affected by intervention of higher-ranking officials and this causes the pressure on the courts from public opinion. [15] Moreover, there is no existence of constitutional review, an innovation of the America, in China. [16] It is clear that Chinese courts do not have the ability to practice review power. [17]In fact, there is a criticism for the lack of constitutional review in China. [18] The reason for power centralization and lack of judicial review is that separation of powers does not exist in China and power of state is centralized in one body (National People’s Congress and the Standing Committee of the National People’s Congress). [19] Therefore, the most important thing in socialist law in China is considered to depend on the will of the dominant class, the Communist party. [20] Moreover, during a long history of China, it was a bureaucratic country and therefore, the general public relied on government rather than on law. [21] Furthermore, structure of the state administration was the top-down system, which emphasized the power of the dominant class. [22] In recent years, although the implementation of “Democratic Centralization of Authority” has been recognized, securing central authority and control is still a focus of the government. [23] The considerable difference of civil law system is that the judges have ability to determine the facts of the case, which has based on fact-finding, and decide whether the accused is guilty or not, which has based on Civil Code. The responsibility of all parties involving in judicial process is primarily fact-finding and the judge has the ability to request of collecting further evidence when the disagreement involves. [24] In other words, “ the heart of the system of criminal procedure” is an investigate judge. [25] The judge’s judgments base on the supply of codes[26], which was created to simplify the law and help general public easy to access to. [27]. Take Taiwan as an example, when the court cannot get verdict due to lack of evidence provided by the parties, own initiative can be used to take evidence if it is necessary for searching the truth. [28] In procedural process, there are three common processes in civil law legal system, namely, investigation phase, hearing phase, and the trial phase. [29] In investigation phase, each investigation has been assigned an investigative judge. [30] At the initial hearing phase, a new initial judge will assess all the documents collected by public prosecutors and decide next steps. [31] Due to the involvement of judge in each phase of procedural process, the important role of judge in civil law legal system is undeniable. Regarding to common law legal system, the considerable difference is that judicial decision, which was decided by the courts in the past, can be applied in common standards and therefore, this type of legitimate system provides a level of fairness to all parties. This type of legal system has emphasized on oral arguments, which has been made by each party at trial. [32] The procedure is naturally adversarial, with discovery of evidence, dispute between the parties. [33] The judges have the ability to decide whether evidence and issues are necessary or not. [34] Moreover, to ensure the effectiveness of managerial control on the litigation the judge can use the large number of case management conferences if such is necessary. [35] Take the Federal Court Rules as an example, order 6 rule 13 of these rules states that” where numerous persons have the same interest in any proceeding the proceeding may be commenced, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them”. [36] Other provisions of the Basic Law can be the reinforcement for the Hong Kong common law legal system. [37] In the normal procedure of litigation, judges can be from another common law jurisdictions and the courts can employ many precedents of other common law legal systems. [38] As a result, the position of judge in common law legal system is not as important as the one in civil law legal system. Although each type of legal system has weaknesses and strengths, they have shared the common point, which is the procedural fairness. In socialist legal system such as China, the goal of judicial reform was officially announced that” establish a Socialist Judicial System with fairness, efficiency and authority”. [39] To accomplish that goal, Chinese government has reformed the whole criminal evidence system. [40] As a result, improving criminal evidence system can be seen as an action of promoting procedural fairness in socialist legal system. [41] In civil legal system, due to fact-finding responsibility, there is no existence of discovery of documents. [42] Therefore, each party participating the court has responsibility to specify the documents. [43] In other words, searching for the truth is the cornerstone of civil law legal system that will ensure the fairness of constitutional procedure. In common law legal system, the most important emphasis is separation of powers. In formal court proceeding, the defendant can make full statement before the jury board due to procedural fairness. [44] More notably, constitutional notice of common law legal system generally implies to “ the acceptance by a court or judicial tribunal, in a civil or criminal proceeding, without the requirement of proof, of the truth of a particular fact or state of affairs”. [45] In Islamic law, the existence of crime has depended on the existence of an actus reus. [46] The actus reus can be seen a positive act in Islamic law. [47] As a consequence, all physical or verbal actions should be taken into consideration or judged based on the intentions of the doer. [48] Therefore, the procedural fairness will be ensured.
[1] A Long & A Radin, ‘Enlisting Islam for an Effective Afghan Police’, in Survival, vol. 54, 2012, 113–128 (p. 120). [2] Long and Radin, 113–128 (p. 120). [3] RO Olaniyi, ‘Hisbah and Sharia Law Enforcement in Metropolitan Kano’, in Africa Today, vol. 57, 2011, 70–96 (p. 76). [4] Olaniyi, 70–96 (p. 86). [5] M Mauro, ‘Religious aspects of politics’, in European View, vol. 11, 2012, 157–161 (p. 157). [6] Long and Radin, 113–128 (p. 120). [7] Long and Radin, 113–128 (p. 121). [8] Mauro, 157–161 (p. 161). [9] ME Badar & I Marchuk, ‘A Comparative Study of the Principles Governing Criminal Responsibility in the Major Legal Systems of the World (England, United States, Germany, France, Denmark, Russia, China, and Islamic legal tradition)’, in Criminal Law Forum, vol. 24, 2013, 1–48 (p. 39). [10] Badar and Marchuk, 1–48 (p. 39). [11] BL Liebman, ‘Assessing China’s Legal Reforms’, in Columbia Journal of Asian Law, vol. 23, 2009, 17–33 (p. 20). [12] Liebman, 17–33 (p. 20). [13] Liebman, 17–33 (p. 20). [14] Liebman, 17–33 (p. 23). [15] Liebman, 17–33 (p. 24). [16] G Zhu, ‘Constitutional Review in China: An Unaccomplished Project or a Mirage’, in Suffolk University Law Review, vol. 43, 2009, 625 (p. 625). [17] Zhu, 625 (p. 626). [18] LC Backer, ‘Constitutional Court for China within the Chinese Communist Party: Scientific Development and a Reconsideration of the Institutional Role of the CCP, A’, in Suffolk University Law Review, vol. 43, 2009, 593 (p. 594). [19] Zhu, 625 (p. 627). [20] Z Jingwen, ‘The Socialist Legal System with Chinese Characteristics: Its Structure, Features and Trends’, in Social Sciences in China, vol. 32, 2011, 87–103 (p. 40). [21] Jingwen, 87–103 (p. 41). [22] Jingwen, 87–103 (p. 41). [23] Jingwen, 87–103 (p. 41). [24] C Bernt, ‘Norway’, in Annals of the American Academy of Political and Social Science, vol. 622, 2009, 220–230 (p. 221). [25] CJ Costantini, ‘Criminal Investigations under the Iraqi Code of Criminal Procedure’, in Cumberland Law Review, vol. 41, 2010, 533 (p. 536). [26] WJ Brudzinski, ‘Coast Guard Administrative Proceedings in Drug Cases Resemble the Civil Law Tradition’, in Journal of Maritime Law and Commerce, vol. 42, 2011, 159 (p. 161). [27] Costantini, 533 (p. 535). [28] K-L Shen & AY-P Yang, ‘Taiwan’, in The ANNALS of the American Academy of Political and Social Science, vol. 622, 2009, 301–309 (p. 302). [29] JG Mirabella, ‘Scales of Justice: Assessing Italian Criminal Procedure through the Amanda Knox Trial’, in Boston University International Law Journal, vol. 30, 2012, 229 (p. 233). [30] Mirabella, 229 (p. 234). [31] Mirabella, 229 (p. 235). [32] C Hodges, ‘England and Wales’, in Annals of the American Academy of Political and Social Science, vol. 622, 2009, 105–113 (p. 105). [33] Hodges, 105–113 (p. 105). [34] Hodges, 105–113 (p. 109). [35] Hodges, 105–113 (p. 109). [36] V Morabito, ‘Australia’, in Annals of the American Academy of Political and Social Science, vol. 622, 2009, 320–327 (p. 321). [37] A Mason, ‘The rule of law in the shadow of the giant : the Hong Kong experience.’, , 2011, , p. 627, <http://search.informit.com.au.simsrad.net.ocs.mq.edu.au/documentSummary;res=AGISPT;dn=20120150> [accessed 18 August 2014]. [38] Mason, , p. 627. [39] B Zhang & F Zheng, ‘Reforming the Criminal Evidence System in China’, in Asian Journal of Criminology, vol. 9, 2014, 103–124 (p. 103). [40] Zhang and Zheng, 103–124 (p. 103). [41] Zhang and Zheng, 103–124 (p. 103). [42] Bernt, 220–230 (p. 221). [43] Bernt, 220–230 (p. 221). [44] F Gjoka, ‘Rethinking the Conclusiveness of Judicial Notice: A Theoretical Approach’, in Appeal: Review of Current Law and Law Reform, vol. 14, 2009, 100 (p. 100). [45] Gjoka, 100 (p. 101). [46] Badar and Marchuk, 1–48 (p. 40). [47] Badar and Marchuk, 1–48 (p. 40). [48] Badar and Marchuk, 1–48 (p. 41).
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