3. Prominent Branches of Muslim Law. Contemporary Muslim Law

The classical Roman division into public and private law is absent in the works of Muslim legal scholars. Chapter follows chapter without any logical demarcation of questions which should be relegated to either private or criminal law. Criminal law, judicial law, and family law are the principal branches of Muslim law.

Muslim criminal law is based above all on the distinction between firmly established and discretionary punishments. The established - always severe - measures of punishment are stipulated only for six crimes: homicide, adultery, false accusation of adultery, thievery, consumption of alcoholic beverages, armed robbery, and uprising. Besides the punishments for the said crimes a judge may at his discretion punish for any other violation of a law. To him consequently, is granted a large freedom of discretion, and a number of Muslim legal norms were created precisely in that way.

In endeavouring to avoid a multiplicity of approaches, the Osman caliphs promulgated laws in the fifteenth and sixteenth centuries under the name "kanumma" which had the form of criminal-law prescriptions (Tanzimat). In 1840 a criminal code was enacted in the Osman Empire, drawn up under the influence of the 1810 French Criminal Code. Thereafter a large number of Muslim countries followed that example. In the mid-1950s the impression was that except for the countries of the Arabian Peninsula, the classical Muslim criminal law operated nowhere in full.

However, the development proved to be zig-zag. Simultaneously with the activisation of Islam proceeded the process of the islamicisation of Muslim law. The Constitution of the Islamic Republic of Iran adopted in 1979 and renewed in 1989 proclaimed that all legislation, including criminal, must correspond to the Shari'ah, and courts in the struggle against criminality were obliged to apply the measures of punishment established by it. Thus, Article 2 of the Constitution of Iran provides: the Islamic Republic is a system of rule based on faith in:

1. one God, in that he establishes the laws of the Shari'ah and that man must bend to his will;

2. divine revelations and their foundation role in the interpretation of laws;

3. the Last Judgment and its constructive role in human improvement en route to God.

Article 57 provides that administration is effectuated by legislative, executive, and judicial authorities under the control of an Imam.

In April 1981 the so-called law on kisas entered into force, 199 articles of which reiterate the provisions of traditional Muslim law (extensive application of the death penalty, the lash, stoning, and the Talion principle). The process of islamicisation of criminal law also affected other countries (Pakistan, Sudan, Mauritania). The criminal norms of the Shari'ah are applied most actively in the countries of the Arabian Peninsula.

Muslim court organisation is distinctive for its simplicity. A single judge considered cases of all categories. A hierarchy of courts does not exist.

At present certain Muslim countries (Egypt, for example) have completely renounced Muslim courts. However, in the majority of Arab countries they continue to play an important role in the mechanism of the social operation of law. In some places (Sudan, for example) the system of Muslim courts had taken on even a multi-tiered nature (several instances) and in some countries there are parallel systems of Muslim courts corresponding to various persuasions, such as, for example, Sunnite and Jaffarat courts in Iraq and Lebanon.

In some States Muslim courts and orientated in their competence to the consideration primarily of cases of personal status, and in other countries (Arabian Peninsula and Persian Gulf) their competence is broader and includes the consideration of civil and criminal cases. As a rule, judges have high qualifications requirements in the form of religious and legal training.

An analysis of family legislation of the Arab countries enables one to conclude that as a whole they are orientated towards the consolidation of norms and principles of Muslim law. Above we have spoken about certain reforms of family and inheritance law in the direction of westernisation. But the development is complex and contradictory, affected anew by the trend towards islamicisation. This relates not only to family law, but to the entire complex of questions affecting personal status. Codes of laws on personal status adopted in a number of countries (Jordan in 1976, Syria in 1953, Tunisia in 1956, Morocco in 1957,Iraq in 1959)preserve the basic provisions of Muslim law but take into account a number of requirements of modern society.

A noted Russian specialist on Muslim law has concisely pointed to the characteristic features of the Shari'ah. In his view the principal distinctive feature of Muslim law which discloses its nature and distinguishes it from other legal systems is the interaction therein between the sacral and secular, religious and own legal principle, that emerges in the specific features of its origin and historical evolution, sources, and structure, mechanism of operation, and understanding of law by Muslim jurists, and the correlation of that law with the State and positive (secular) legislation.

Another distinctive feature of Muslim law is its exceptional diversity, broad spectrum of regional and national forms, close interaction with local traditions and customs (frequently pre-Islamic and not coinciding with strict provisions of the Shari'ah), combination therein of detailed individual decisions with general principles, stability and permanence with flexibility and ability to change over time.

The influence of general world tendencies of legal development are manifest also in the Muslim world. Naturally, these manifestations, such as the measure of traditional Muslim principles and norms, are not identical in various Islamic countries.

In the contemporary world Muslim law coexists and closely interacts with other legal families. Muslim law has repeatedly experienced foreign legal influence but remains an autonomous legal family influencing millions of people.

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