Gennadiy Muromtsev1
  • 1 Peoples' Friendship University of Russia, 6 Miklukho-Maklai Str.,Moscow, 117198, Russian Federation

Muslim Law in the Context of Law-Genesis

2021. No. 1. P. 80–106 [issue contents]
The subject of this article is actually first of all in consequence of insufficient investigation ofa general theoretical conception of the law-genesis in the frame of which the formation ofthe Muslim law can prove its correctness. Conception prevailing in Russian legal literatureand 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 ofthe investigation of a problem of a law-genesis — on its theoretical level and in referenceto Muslim law. Author examines law-genesis in the context of a world evolution. In theframe of this approach to social factors of the origin of the law preceded the naturalfactors of the same character and a thesis about the origin of the law at the same time asa human society stands as a starting. A conclusion that the law-governed nature of thedevelopment of the behavior and of the mechanisms of its regulation was formed into thenatural stage of the world evolution -this conclusion acquires the most importance. Theyarise in the form of reflexes and then were perceived by the sincrete norms of the custommononorm.In his way sharia as a basis of the Muslim law perceived in general in the newhistorical condition thus parameters of the mononorm as over natural character of itsorigin, sincretism of its norms, immutable, the absence of the necessity of the apparatwhich is possible to compel to observe the norms of the charia. A structure of the Muslimlaw reflects also an influence of the conceiving civilization. Typically various character ofthis legal cultures stipulates the necessity of the religious-legal schools as a connectionsection 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 thisschools which are direct to maintenance in working conditions of the sincret norms ofthe sharia author sees the law-governed phenomenon which is typical for an early-classsystem of law and not enough theoretically comprehend. Today the structure of the Muslimlaw includes also any elements of the early-class epoch.
For citation: Muromtsev G.I. (2021) Muslim Law in the Context of Law-Genesis. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 1, pp. 80–106 (in Russian) DOI: 10.17323/2072-8166.2021.1.80.106
Citation: Muromtsev G. (2021) Musul'manskoe pravo v kontekste pravogeneza [Muslim Law in the Context of Law-Genesis]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 1, pp. 80-106 (in Russian)
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