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Legalitetsprincipen i islamsk rätt - en missförstådd motsägelse?

Nilsson, Johan (2008)
Department of Law
Abstract
The principle of legality in penal law is a basic juridical rule with an almost undisputable status within most legal systems of the world. Its role in Swedish law as well as in international law is uncontroversial and rarely, if ever, questioned. Foreseeability in the practice of penal legislation is something that most see as an essential element of any legal system. Despite this apparent value of the principle of legality, its role in some of the major legal systems of the world is still disputed. The Islamic legal tradition has over the centuries been considered the typical example of an exotic tradition in which the discretion of the juridical authority is almost absolute. The qâdi is thought to disperse his justice exclusively... (More)
The principle of legality in penal law is a basic juridical rule with an almost undisputable status within most legal systems of the world. Its role in Swedish law as well as in international law is uncontroversial and rarely, if ever, questioned. Foreseeability in the practice of penal legislation is something that most see as an essential element of any legal system. Despite this apparent value of the principle of legality, its role in some of the major legal systems of the world is still disputed. The Islamic legal tradition has over the centuries been considered the typical example of an exotic tradition in which the discretion of the juridical authority is almost absolute. The qâdi is thought to disperse his justice exclusively according to considerations of personal opinion. A large body of academics express in accordance with this view the opinion that the sharî'ah tradition does not consider anything like the principle of legality. The idea is according to this view not even represented in the Islamic jurisprudence. This is though not the only opinion on the topic. Several commentators, usually with a background in the Muslim world and legal tradition, claims that even if the principle is not explicit in the sharî'ah, its essence is still a central idea in the Islamic tradition. This thesis intends to clarify the disparate ideas presented about the impact and importance of the principle of legality in the Islamic legal tradition. The history and development of the principle will be examined and an attempt of a useful definition will be made. Thereafter a general background on the structure of Islamic law will be given. The scope of the thesis is thus broad in that it encompasses two major systems of law, both the civil law tradition and the Islamic legal tradition. The sharî'ah will thereafter be analysed at greater depth in relation to its conformity with the application of the principle of legality. Lastly the problems of implementation will be discussed and closely examined. (Less)
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author
Nilsson, Johan
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Allmän rättslära, Komparativ rätt, Straffrätt
language
Swedish
id
1560541
date added to LUP
2010-03-08 15:55:26
date last changed
2010-03-08 15:55:26
@misc{1560541,
  abstract     = {The principle of legality in penal law is a basic juridical rule with an almost undisputable status within most legal systems of the world. Its role in Swedish law as well as in international law is uncontroversial and rarely, if ever, questioned. Foreseeability in the practice of penal legislation is something that most see as an essential element of any legal system. Despite this apparent value of the principle of legality, its role in some of the major legal systems of the world is still disputed. The Islamic legal tradition has over the centuries been considered the typical example of an exotic tradition in which the discretion of the juridical authority is almost absolute. The qâdi is thought to disperse his justice exclusively according to considerations of personal opinion. A large body of academics express in accordance with this view the opinion that the sharî'ah tradition does not consider anything like the principle of legality. The idea is according to this view not even represented in the Islamic jurisprudence. This is though not the only opinion on the topic. Several commentators, usually with a background in the Muslim world and legal tradition, claims that even if the principle is not explicit in the sharî'ah, its essence is still a central idea in the Islamic tradition. This thesis intends to clarify the disparate ideas presented about the impact and importance of the principle of legality in the Islamic legal tradition. The history and development of the principle will be examined and an attempt of a useful definition will be made. Thereafter a general background on the structure of Islamic law will be given. The scope of the thesis is thus broad in that it encompasses two major systems of law, both the civil law tradition and the Islamic legal tradition. The sharî'ah will thereafter be analysed at greater depth in relation to its conformity with the application of the principle of legality. Lastly the problems of implementation will be discussed and closely examined.},
  author       = {Nilsson, Johan},
  keyword      = {Allmän rättslära,Komparativ rätt,Straffrätt},
  language     = {swe},
  note         = {Student Paper},
  title        = {Legalitetsprincipen i islamsk rätt - en missförstådd motsägelse?},
  year         = {2008},
}