Muslim Law in the Context of Law-Genesis

Abstract

The subject of this article is actually first of all in consequence of insufficient investigation of a general theoretical conception of the law-genesis in the frame of which the formation of the Muslim law can prove its correctness. Conception prevailing in Russian legal literature and proceeding from the inseparable connection between state- and law-genesis is “stall” in some aspects of this problem. The clarification of a reason for this situation is one ofthe purposes of this article. The other purpose is the attempt to mark a methodology of the investigation of a problem of a law-genesis — on its theoretical level and in reference to Muslim law. Author examines law-genesis in the context of a world evolution. In the frame of this approach to social factors of the origin of the law preceded the natural factors of the same character and a thesis about the origin of the law at the same time as a human society stands as a starting. A conclusion that the law-governed nature of the development of the behavior and of the mechanisms of its regulation was formed into the natural stage of the world evolution -this conclusion acquires the most importance. They arise in the form of reflexes and then were perceived by the sincrete norms of the custom mononorm. In his way sharia as a basis of the Muslim law perceived in general in the new historical condition thus parameters of the mononorm as over natural character of its origin, sincretism of its norms, immutable, the absence of the necessity of the apparat which is possible to compel to observe the norms of the charia. A structure of the Muslim law reflects also an influence of the conceiving civilization. Typically various character ofthis legal cultures stipulates the necessity of the religious-legal schools as a connection section between immutable norms of the sharia and the changeable social relations. Asa result, the Islamic jurisprudence, or fikh appears. In a character of functions of this schools which are direct to maintenance in working conditions of the sincret norms of the sharia author sees the law-governed phenomenon which is typical for an early-class system of law and not enough theoretically comprehend. Today the structure of the Muslim law includes also any elements of the early-class epoch.