N.Kalkayeva

Kazakh State Pedagogical University named after Abay

Almaty, Republic of Kazakhstan

The concept of Sharia and its social and legal meaning

Nowadays a very much measurements are done to ensure distribution of Islam among people and its correct propagation. Development is natural phenomenon. As Mankind develops all other aspects develop too. In this period of science and technic and period of information the process of investigating moral values also developed and many measurements are to be taken in this field. Io analyze different tendencies and mazkhabs in Islam to differentiate the correct and incorrect one and then offer to people – is topical problem of the presenttime.

Religion – typical for all global social phenomena, it is understood as historical, political and social, visional and psychological phenomenon. Religion is development from the sense of investigating secrets of human nature, and searching replies for questions and aspires a human to investigate global phenomena. Mankind never avoided the religion. Religion takes a very important place in our life. That the only thing inspiring, giving power for the person, making order in the society, leading to good and stability, making sure a person is a religion.

Criminal customs and tradition law known as a complex of criminal and legal norms, it is being in accordance with criminal and legal point of view used for enlarging and strengthen own economic base the life process of Kazakh in medieval period. We can state that the importance of Sharia and its social and legal aspect. It is necessary to find out exact proofs, and make reference to the books in fiqh field in order to solve some Sharia issues arising big arguments among Muslim society. So, concerning such arisen problems before considering crime and punishment issue we decide to analyze the concept of Sharia and its social and legal meaning..

Making researches about meaning and importance of Sharia is of big importance for the society. Due to this we try to analyze the social and legal meaning of the Sharia of significant role in struggle with crime.

Sharia (Arabic"way" or "path") is the sacred law of Islam. Most Muslims believe Sharia is derived from two primary sources of Islamic law: the divine revelations set forth in the Qur'an, and the example set by the Islamic Prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of Sharia to questions not directly addressed in the primary sources by including secondary sources. These secondary sources usually include the consensus of the religious scholars embodied in ijma, and analogy from the Qur'an and Sunnah through qiyas. Shia jurists prefer to apply reasoning rather than analogy in order to address difficult questions. Muslims believe Sharia is God's law, but they differ as to what exactly it entails. Modernists, traditionalists and fundamentalists all hold different views of Sharia, as do adherents to different schools of Islamic thought and scholarship. Different countries and cultures have varying interpretations of Sharia as well. Fiqh based on muamalat (it shows right type of behavior, the order of concluding the contract, behavior norms, punishment types, the actions deemed as crimes) and ibadat (Obligations concerning Allah: for example, namaz, sadaha, oraza, pilgrimage) [1].

Sharia and law have different aims from each other and are independent rules. Sharia is an instruction given to people with the help of them people educate themselves and strengthen relation with other people and Allah. And the normative acts just regulates relation between people and some time its observance can be necessarily. Besides that sharia includes two types of punishment: during the lifetime and after the death, that’s why we can state that Sharia prevents crime because religious people understand that any deed can hidden from Allah. The people accept Sharia and observe its principles strictly and with respect. If the infringer is sure that can avoid a punishment in many cases he makes infridgements.

Sharia religious doctrine is understood as “God`s law”, it was specified and confirmed in the heaven. In Religious doctrine the meaning of Sharia is very broad. According to the majority`s opinion it consists of Quran ayats and Sunnah hadith, of general rules, orders and requirements. The named ayats and hadiths is a will of Allah and as its based on the opinion of Prophet Mukhammad we can deem Sharua as “God1s law” or as law coinciding with Islam principles, ayat and hadith.

We shouldn’t follow the never stopping argues about religious doctrine, we would like to consider scientific descriptions about sharia tendency. Law is a formal equality index of any society and is a result of the development of that society and corresponding legal norms shall contain obligation of executing the norm. In this case law can be effective from the God`s side and attain religious feature. However the law at any time expresses social interest of the governing layer. Law can not be specified from third party or by personal will of someone, it can be drafted by authorized special state body and included to norm system by codification. At that time law became normative act form of high power and attain legal level.

All of these are – is a learning book of sociology, if there wasn’t this important case we could not tell in such way: the religious persons deeming “Islamic law” as a proof of fair and as never cancelled never changed law believe in sacredness of it without any doubt. This case prevent legal norms that were formed and became effective in medieval period from being criticized. As a relationship appearing between persons during production, exchange the law also undergoes some changes. Therefore, such legal basic points as fair, euquality, moral and etc. become changed, it was impossible to keep their meaning unchanged.

Any attempt taken for the purpose of strictly observance of legal norms formed under another social conditions several centuries ago is deemed to return to the past, it can firstly negatively impact on moral order. This is our initial point of view in understanding Islamic law. The basis of this point of view – sharia (Arabian Ash- Sharia means correct way direction) according to principles contained in ayats and hadiths of the Quran and Sunna is a complex of rules defining civil and religious norms of citizens. [1]. However someone may not agree with such definition of Sharia, and the opinions can be mixed too much, it was the reason of argues continuing for several.

So, Sharia – is not a law itself, it is a complex of requirements based on Quran ans Sunnah. According to this the worshipping relation of muslims their civil rights and obligations, punishment measures are being specified by correct norms “direct way” (ash-sharia). This is mainly Islamic law (Arabian word Ussul` al` fiqh). Islam as religion source gives an theological description to norms, rules and principles [2].

As a state system requiring to settle relationship between people and authority, relationship among Muslim people groups on the legal degree interior needs of the khalifat became a key factors. Khalifat as accepted Islam as a state religion it was very important to specify religious obligations of Muslims. These named social needs can be a stimulation to confirm the Islamic law (Fiqah) – the component of a sharia being large scale legal system.

Legal schools began to appear (in Arabian Faqih – knowledgeable, in narrow meaning mastered religious legal knowledge) [3, 9 p.] in different centers of the Khalifat (Madina, Damask, Kufa and etc) they mainly based on Quran and Sunna. Besides that it defined significant drawbacks of the both sources: these sources included many important norms and rules, there too many contradictions between them, even there some rules cancelling each other. By the time a solution of this problem also found.

It was found to speculate taking into account Quran and Sunna terms and to state basing on accordance (Arabic word – Qiyas; compare, state, harmony), the norm deemed to be “correct”. However to confirm it completely the common opinion of respectful Fakifs needed. One of the sources of Sharia is formed in this way – the unianimously agreed opinion of respectful persons (Arabian word - Idjma). According to tradition it begins from “Seven fakikhs of the Medina” (second part of VІІ c.), then Idjma was continued and further developed in other territories of the Khalifat such as Iran, Siria, Greece. As a result of purposeful struggle of the Fakifs it became necessary to admit four “roots” of Islamic law: Quran, Sunnah, Idjma and Qyas. Quran - is a book comprising not systemized, not ordered rules regulating family, social and political issues and consists of 114 sura [2].

Quran – is a sacred book of Muslims being a source of both Islam and Islamic law. Islam shows two periods of occurrence of Quran[4, 42-43 б.]:

1. Mekka period. In this period much part of the Quran was sent. Ayats and Suras sent in this time are called as Meccanian. They are different from Medinian ayats and suras by title and style. The basic theme of this period is establishing exact belief and to eliminate false shools.

2. Medinian period. It begins since the time of Mukhamed`s arrival to Medina and continues till the end of his life. At this very time classical Islamic lae (sharia) was formed. At this time an Islamic religious state was founded in Arabia and then it becomes necessary to strengthen to draft needed legislation. That’s why Quran ayats and suras of that period covers many legal terms.

Qurans suras are divided into two groups. The first group covers suras of direct meaning without any other additional meaning, and the second group comprises suras of allegorical meaning id est of alternative meaning. Because of inexact meaning Islamic legal tradition does not accept such suras as legal source. Ad concerning the suras of the first group the opinions of Islamic legal scholars are different. Some of them prevents to make direct reference to the Quran and admit the explanation of only powerful imams, lawyers, officials. Concerning others opinion, Quran is not an allegory book, so it doesn’t need explanation.

Therefore Quran can be directly used without any reference to the explanation of respectful persons [5, 99 p.].

As a general Quran chapters can be divided into three part:

1. Religious study problems concerning belief of the Muslim to Allah;

2. Moral issues;

3. Legal issues.

The suras containing legal norms in their turn are divided as follows:

1. Marriage, heritage, guardianship, revocation of civil rights and other “personality” norms regulating other norms;

2. Civil – legal rights regulating contractual relations, pawn, supervisor and uaranty, common property and etc;

3. Criminal – legal norms considering some actions deemed as crime and punishment types to be assigned for;

4. Procedural norm regulating legal proceedings, testimony, oath-taking and etc;

5. Constitutional and legal norms defining management method, relationship type between supervisor and dependent and etc;

6. International legal norms on which Islamic state shall rely on while establishing relationship with other states in peaceful and military times

The first Quran was published in VІІ century in Arabic language then it was translated into English, Persian, German, French, Russian, Kazakh and other languages.

Sunnah means habit or usual practice, Muslim usage of this term refers to the sayings and living habits of Muhammad. Sunnah is a set of religious traditions which are used to settle some actual issues not covered by Quran.

Sunnah comprised of some statements named “hadith”. According to Islamic law the basic legal norms included in this Sunnah. Therfore there exists an opinion that Sunnah can be used without Quran, but Quran cannot be used without Sunnah.

Sunnah as law origin ranks the second place in Islamic law. Quran is a basic origin of Islamic law because according to Islam Quran is the verbal divine guidance and moral direction sent to Prophet. And the Sunnah clarifies the words of the Quran. The concept of the Sunnah regards the Quran in three aspect. [4, 75-76 p.]:

1. The Sunnah rules coincide with Quran rules and can clarify them. In such case the settlement of the problem shall base on: unconditional proof – Quran and confirming its proof – Sunnah;

2. The Sunnah rules reveals and completes the meaning of the Quran;

3. Sunnah can cover new rules not included in Quran.

From the point of clarity the Sunnah shall be divided into three types [6, 76 б.]:

1. The Sunnah coming to these days continuing pauseless continual Sunnah.

2. At the initial stage there was no continuance the Sunnah was handed over to each other.

3. Separate Sunnah. It means random words of the Prophet.

Idjma is a legal resolution of 4 previous khalifs.

As an origin of Islamic law Idjma is generally accepted opinion of leading respectful persons, scientifists on religious and legal issues not have solution in Quran and Sunna. All Muslim legal schools have admitted Idjma however there were some contradictions in understanding it. Ash- Shafii paid much attention to the opinion of scientists, who was the founder of Shafii School. And Malik – the founder of Malikit School limited general opinion by the meaning of the scientists of Medina city, by this he narrowed the framework of the Idjma and assigned it territorial feature.

The 4^th source of Sharia is a Qiyas. In Islamic jurisprudence, qiyās is the process of deductive analogy in which the teachings of the Hadith are compared and contrasted with those of the Qur'an, in order to apply a known injunction to a new circumstance and create a new injunction. Here the ruling of the Sunnah and the Qur'an may be used as a means to solve or provide a response to a new problem that may arise. This, however, is only the case providing that the set precedent or paradigm and the new problem that has come about will share operative causes .

Nowadays the lifestyle, social and economic, political and moral development of the society of Islamic states applying sharia proves that sharia legal norms serves to protect and prevent any type of crime not only the definite group of people but the whole population. Some norms of Sharia are not for temporary application, its norms are close to person at any case of life, they invite people to form a society based on fair solutions and the time proved that they are the ideology ensuring equality of all person before the law.

In the 18 ayat of Zhasya sura of the Quran (Ai, Mukhammad), you are to deal with sharia. Please keep it. Don`t follow those who doesn’t know. Sharia is a direct way in Sharia, in legislative meaning religious – legal list.

The contemporary scientifists investigating Islamic law problems have different opinions. For example: Kh. Suleimenova writes that sharia covered all legal aspects, and concerning Criminal Law issues its three origins can be applied [7, 39 p.]. М. Mullayev to three origin of Islamic law added comparing and traditional law too [8, 38 [p.]. According to А. Saidov and V.А. Likhachev sharia firstly based on Quran and Sunna [9, 33 p.]. And according to, L.R. Syukyain and N. Oseruly`s opinion the origins of Sharia are four id est Quran, Sunnah, Idjma and Qyas [10, 13 p.].

We also support the opinion that Sharia legal list consists of four origin: Quran, Sunnah, Idjma and Qyas (Comparison) and we deem to consider each separately. The reason of making such decision as seen from the analysis stated above, at the initial time Islamic law rules were not formed completely, in some cases some contradictions within rules were noticed, there appeared some disputes on the rules regulating social relationships and the role and application other Islamic laws. As Islamic law is not comprised of one law on its system we can see all types of law.

The occurrence of Sharia and its execution began very long ago. Only Muslim (Kazakh) nation among other people united for tribes had kept its personality since that time.

The crime as a social negative phenomenon for the society uninterrupted struggle is being held against it. Therefore the basic mechanism against the crime we should search in ancestors` law and in legal culture of our nation. If we form legal mind by explaining from the early childhood that crime is a sin, bad act we can have positive tendency in future. Due to stated it by deeply investigating sharia and understanding its importance we manage its meaningfulness is proved.

At any stage of the history religion always served as a mean for appealing people for self-protection, avoiding bad deeds and trying to do good deeds. It considered good ways for people. It appealed and made to believe overcome difficulties, to live with faith in good, and also it distributed an idea to be kind with each other. That’s why the it is not fair to state that sharia doesn`t cover crime and punishment issue.

At this time of development of our society and the issue of struggling with crime especially with its severe types if this issues was included into agenda the necessity to study issues of crime and punishment types shall not raise doubts. Because there some significant aspects comprising crime prevention, punishment awarding basing on social danger degree, they can be used nowadays for practice and for theoretical researches.

Sharia and Law are absolutely different separate rules according to the concept and notions or to the goals. But “sharia” made own contribution in upbringing of mankind, and strengthening right relationships. The same the “law”, normative acts through fundamentally regulating relationships between people compel them to observe them.

Sharia actively functions to strengthen the social and economic structure of the state. By its deep nature becomes broad scale concept.

The thorough changes taken place in social – economic structure of Kazakhstan also impacted to political and legal aspect, so legal researchers were obliged to form legal system basing on mankind values. Is impossible to discharge this obligation without getting aquainted with achievements of legal science worldwide and without thorough investigation of the history and present state of foreign legislation and law enforcement practice. In this case, the Islamic law with its many a centuries – old history and with large scale of application should not be ignored by legal researchers. We say this because Islamic law norms significance for the society is being proved. It can be proved by phenomena taking place in the society.

So, sum up, it may be said that concerning the general concept of Sharia and its social and legal meaning, taking into account its regulating potential and social importance we can give the following definition to the sharia -– civil and criminal justice as well as regulating individual conduct both personal and moral. The custom-based body of law based on the Quran.

Bibliography:

1 Newbi Gordon. Brief encyclopedia of Islam. - М.: FAIR PRESS, 2007. – 384p.

2 Islam: Encyclopedia / Chief Editor: R.N. Nurgalyiev – Almaty: Kazakh Encyclopedia, 1995. - 286 p.

3 The concept about mazkhabs in Islam / Drafted by: B. Baysopy. – Almaty: “Gibrat”, 2007. – 60 p.

4 El`-Zefiri H.М.D. The source of Islamic Law. - М., 1976. – 118 p.

5 Sadagdar М.I. Main features of Islamic Law. - М., 1963. - 318 p.

6 Fan-den-Berg L.В.S. Basic sources of the Islamic law. -Spb.1882. –221 p.

7 Suleimenova Kh. S. Collection of compositions. – Tashkent: Fan, 1967. – Т. 1. – 320 p.

8 Mullayev М.М. The origin and reactional essence of the Sharia. – Dushanbe: Irfon, 1967. – 203 p.

9 Saidov А. The most important monument of the Shariat of Muslim World // Khidoya. - Tashkent: Uzbekistan, 1994. - Т. 1. – 322 p.

10 Oseruly N. Shariat. – Almaty: Kainar, 1996. – 352 p.