이슬람국가의 헌법과 샤리아 = Sharia and the Constitution in Muslim Countries

다국어 초록 (Multilingual Abstract)

The Constitution of a modern democratic country is the supreme law of the land and actually leads the people’s way of life. However, in Muslim countries, sharia has taken the highest position not only in the legal regime but also in Muslims’every aspect of life. Sharia, namely Islamic law, is not an unified form, though four main sources of sharia are generally agreed upon as Quran(the God’s words), Sunna(the living examples of the Prophet), Isma(the consensus of the legal scholars’community), and Qiyas(reasoned analogy by jurists). How to reconcile two laws, each of which claims the supremacy over the people is one of the major concerns in Muslim countries.
Since 1970s many Muslim countries have tries to solve the problem by having a sharia clause in the Constitution, which requires adherence of all domestic law to sharia. There is some differences among constitutional provisions of each Muslim country in terms of the extent of requiring all law to be consistent with sharia. Egypt in 1971 had a clause which admits the principle of sharia as “a” primary source of law. However Egypt amended the clause in 1980 which elevated the principle of sharia to “the” primary source of law.
Adopting a sharia clause in the constitution cannot be the ultimate solution. New issues, such as who has the authority or the power to decide that a law is unconstitutional for the discordance of its content with sharia, have arisen. Muslim countries have also introduced judicial review at a similar time when they held the sharia clause by the Constitutional amendment. The Constitutional Court of each Muslim country has the burden to reconcile sharia and the Constitution. Generally speaking, they have reached a point that only the essence of sharia shall not be violated but the legislative has the power to enact for the purpose of the public good in the area where the essential part of sharia has not been infringed.

참고문헌 (Reference)

1 박규환, "이슬람법질서의 공법적 구조분석* - 샤리아법과 헌법 그리고 국가조직법" 한국비교공법학회 10 (10): 147-171, 2009

2 이원삼, "이슬람법사상" 아카넷 2001

3 우덕찬, "이슬람 法 샤리아(Shari’a)의 內容과 法源에 관한 小考" 18 : 2007

4 이희수, "이슬람 : 9.11 테러 10년과 달라진 이슬람 세계" 청아출판사 2011

5 손태우, "샤리아(이슬람법)의 法源에 관한 연구" 법학연구소 54 (54): 143-174, 2013

6 이원삼, "생활규범과 이슬람" 부산외국어대학교 비교법학 18 : 2007

7 김용운, "말레이시아 이슬람법의 파트와에 관한 고찰" 법학연구소 53 (53): 371-394, 2012

8 Muhammad Al-Atawneh, "WAHHĀBĪ ISLAM FACING THE CHALLENGES OF MODERNITY" Brill 2010

9 Baber Johansen, "The Relationship Between the Constitution, the Shari’a and the Fiqh:The Jurisprudence of Egypt’s Supreme Constitutional Court"

10 "SHARIAH THE THREAT TO AMERICA"

11 Mohaned Abdelaal, "Religious Constitutionalism in Egypt: A Case Study" 37 : 2013

12 Lu’ayy Minwer Al-Rimawi, "Relevance of Sharia as a Legislative Source in a Modern Arab Legal Context: a Brief Constitutional Synopsis with Emphasis on Selected Commercial Aspects" 2011

13 Mohammad Hashim Kamali, "PRINCIPLES OF ISLAMIC JURISPRUDENCE" Cambridge 2008

14 Kristen Stilt, "Islam is the Solution”: Constitutional Visions of The Egyptian Muslim Brotherhood" 74 : 73-, 2010

15 Mawil Izzi Dien, "ISLAMIC LAW FROM HISTORICAL FOUNDATIONS TO CONTEMPORARY PRACTICE" University of Notre Dame Press 2004

16 Ian Edge, "ISLAMIC LAW AND LEGAL THEORY" Dartmouth 1996

17 Clark B. Lombardi, "Do Constitutions Requiring Adherence to Shari‘a Threaten Human Rights? How Egypt’s Constitutional Court Reconciles Islamic Law with the Liberal Rule of Law?" 21 : 379-, 2006

18 Clark B. Lombardi, "Constitutional Provisions Making Sharia “A” or “The” Chief Source of Legislation: Where Did They Come From? What Do They Mean? Do They Matter?" 28 : 733-, 2013