Islam entered Libya in the eighth century.117Since then it has been an essential component of Libyans’ cultural life.118 After the establishment of the modern Libyan state under the Monarch Constitution of 1951, Islam was officially considered as the religion of state119 and a primary source of legislation.120 After the collapse of the Monarchy in 1969 in a coup d’état led by Ghaddafi, the constitutional documents adopted by the subsequent regime stressed the supremacy of Islamic Shari’a in the structure of Libya legal system.121
After the collapse of Ghaddafi’s regime in 2011, the Libyan National Transitional Council issued the Interim Constitution with stronger commitment to the supremacy of Islamic Shari’a in Libya’s legal system as stated in article one of the Constitution.122 Several indicators reveal that Islamic Shari’a will continue to play a significant role in the law making process in Libya. These indicators include the establishment of Islamic parties,123 a new law banning all types of interests on
114 See for instance the Tunisia Constitution, available online at:
<http://confinder.richmond.edu/admin/docs/Tunisiaconstitution.pdf>.
115 Although Turkey is a country with predominant Islamic population, Islam is not considered constitutionally see the Turkish constitution of 1982. Available online at:
<http://www.concourt.am/armenian/legal_resources/world_constitutions/constit/turkey/turkey-e.htm>
116 For a detailed account on the role of Islamic Shari’a in Libya, particularly from the seventh century until the eighteenth century see Faraj Najem, Tribe, Islam and state in Libya: analytical study of the roots of the Libyan tribal society and interaction up to the Qaramanli rule (PhD Thesis, the University of Westminster, 2004).
117 Muhammad bin Saoud, General History of Libya (British Military Publications, 1948) 109.
118 Libyan Supreme Court, no 197/39 (1997) (on file with author) this decision states that the Libyan legislature has to ensure that any laws to be enacted are compliant with Shari’a.
119 Article five of Libyan Constitution of 1951, available online at:
<http://www.libyanconstitutionalunion.net/dosstoor.htm>.
120 See for instance, art 2 of the Libyan Civil Law of 28 November1953.
121 See for instance art 2of the Constitutional Declaration of Libya which was issued in 1969:
<http://unpan1.un.org/intradoc/groups/public/documents/cafrad/unpan004643.pdf>. This declaration was followed by a decision in 1970 to form a committee to revise the Libyan legal system to be Shari’a-compliant. As a result the work of the committee several pieces of legislation have been amended, such as the civil law, criminal law and commercial law. Contracts became required to be Shari’a compliant, hudud (Shari’a based criminal penalties) were imposed for extra-marital relationships and for drinking alcohol. See also the so-called Declaration of People’s Authority in Libya (1977).
.<http://www.concourt.am/armenian/legal_resources/world_constitutions/constit/consts2l.htm>.
122Libyan Interim Constitution, 2011.
123 For instance see ‘Muslim Brotherhood forms party in Libya’ Aljazeera,, 4 March 2012
<http://www.aljazeera.com/news/africa/2012/03/201233225029346350.html>.
46 banking transactions (riba)124 and new policies for the Islamisation of the banking sector.125Moreover, on 9 November 2013, the Minister of Justice announced the establishment of a special committee which will ensure that laws and regulations in Libya are consistent with the sources and principles of Islamic Shari’a.126
2.6 Conclusion
For those with knowledge of the higher objectives of Islamic Shari’a, the rules derived from its sources could run like a golden thread through the legal systems of the Islamic states to relate them to modern reality.127 Islamic Shari’a is not a rigid and fixed 1,400 year-old set of rules that aim to govern an advanced society; rather, it is comprised of guidance and principles that may be adapted to various environments.
This chapter has introduced notions of Islamic Shari’a and has shown how it is relevant in modern times.
Firstly, within Islamic societies, the sources of Islamic Shari’a govern devotions and all aspects of daily life including legal affairs. Accordingly, it strongly influences culture and law-making in those societies.
Secondly, the sources of Islamic Shari’a can be divided into primary sources and secondary sources. The primary sources contain flexible principles that can be read differently in different contexts to provide flexibility to Shari’a and they also provide authority for the secondary sources.
Thirdly, the secondary sources are the most relevant in the process of relating Islamic Shari’a to contemporary times. Among the secondary sources, we observe that maslaha mursala (consideration of public interest) is based on a pragmatic philosophy as it considers the interests of the Muslim society in adapting new issues to the sphere of Islamic Shari’a. Maslaha mursala has been used to relate emerging issues in science, technology and law to Islamic Shari’a.
124 For instance see, ‘Libya Bans Interests’ Aljazeera 7 January 2013.
<http://www.aljazeera.net/ebusiness/pages/a7e27929-5022-40ed-ae0f-d9d0ae1288d4>.
125 See for instance, Central Bank of Libya, Rules and Measures on Islamic Banking:
<http://cbl.gov.ly/ar/images/stories/islam/islamnote.pdf>.
126 Minister of Justice’s decision no 1621/2013 on Form a Special Committee. See Ministry of Justice, Decisions, <http://www.aladel.gov.ly/main/modules/news/article.php?storyid=634>
127 W. M Ballantyne, above n 22, 48.
47 Finally, Islamic Shari’a is concerned with ensuring the welfare of the community and preventing harm. Therefore, Muslim scholars developed the concept of maqasid al-shari’a (the objectives of Islamic Shari’a). Maqasid al-al-shari’a operates as a normative framework for Islamic-based law making process. It instructs lawmakers to ensure that laws and policies are designed to promote five essential objectives:
religion, life, mind, lineage and wealth. In Chapter 4, the impact of some of these objectives on IP is discussed.
The following chapter discusses how principles derived from the Qur’an, the Sunnah and other sources of Shari’a, including maslaha mursala, have been used by scholars, commentators and institutions to integrate IP into Islamic Shari’a.
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