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Theory Of State And Authorities Essay

1262 words - 6 pages

Emergence and Importance of the legal authority in state
Generally, this group of Muslims currently is the religious jurists and judges who are appointed by the rest of the Muslims in the state to act on behalf of them in the relation of the ruler. It is the legitimate power in the state to delegate the power to the rules to represent the Muslim state. The group also gives legal validity to ruler’s authority in the government. This authority given to the ruler through this group is based on the contract between community and the ruler as it is delegated to him. Then he becomes bound and obligated to the represent his community and maintains their affairs. On the other hand, this ...view middle of the document...

A good example of this would be derived from the Islamic criminal law about drinking alcohol; this conduct is forbidden and there is penalty provided for violating the law prohibiting this act.
Equally important, the secondary rules are considered power conferring rules that include legal rules which permit creating new rules not opposing the law of Islam applied in the state. These rules also allow extension and alteration on the primary rules. In Islamic law marriage is a contract between man and a woman who have the right to form the contract.
Primary and secondary rules In Islamic law are defined by the Muslim jurist Al-shafi’e who divided the rules into primary (commandment “Taklifi”) and secondary (positive “Wadh’ee”) . Al-shafi’e considered the primary rules as a legal obligation toward doing or refraining from doing certain acts for instance fasting during the holy month. In addition, the secondary rules are defined as the positive judgment which indicates the consequences or the results of performing certain acts. These rules for example, will allow conferring the legislative authority to scholar council to produce new laws if needed. These set primary and secondary rules as Hart appointed are similar to the ones produced in Islamic law; however, those rules under Islamic legal system are controlled by the sovereignty of god. They are determined in Qura’an are neither modified nor deleted under any authority.

Immunity of the sovereign
As these rules are defined in the Qura’an and ruler according to the law must comply with them to maintain his subjects’ interests. Exercising his power on the subject may sometimes result in damage to someone. Delegating the power to the ruler under Islamic law to apply the rules is restricted. In other words, he should apply them with care and avoid causing any kind of harm to his subjects. For instance, in a theft case, if applying the theft law by the ruler led to death or cause damage to the subject (offender), ruler will hold liable for the damage. Ruler will be asked to give compensation for the harm resulted from exercising his power. In case the offender died, ruler will not be liable for killing as he is exercising his duties in protection the community and this will be considered a kind of immunity to him. Thus, the point is using the power delegated to him can be a barrier preventing from applying law to him.

Sovereignty and legal authority in modern states
After the collapse of the caliphate system in the Islamic empire, when people were the source of power consented to an authority for representing them; there were two powers: the people and the ruler under the...

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