Shari’ah Through the Lens of Communicational Theory of Law: Is It a Legal Order?
摘要
Shari’ah, often referred to as Islamic law, embodies distinct characteristics that prompt discussions beyond its consideration solely as a religion, regarding its role as a legal system. While widely perceived as such, particularly among jurists, its status within European legal frameworks remains contentious. This article employs the Communicational Theory of Law to scrutinize shari’ah’s legal standing, emphasizing that the consideration of shari’ah as a legal order should be based on technical legal reasoning, rather than merely on the recognition conferred by some states. Drawing from jurists’ discourse and the criteria of the Communicational Theory of Law, we evaluate shari’ah compliance as a legal order, considering its foundational texts, decision-making processes, normative principles, and institutional framework. Furthermore, we assess shari’ah’s interaction with European legal systems, acknowledging its unique dynamics and dependencies. By delineating its features and exploring potential challenges and opportunities, this analysis contributes to a nuanced understanding of shari’ah’s applicability and implications within diverse legal contexts, particularly in non-majority Muslim societies.