Comparing Free

Comparing independence of twist in the Statutory jurisprudence and the shariah effectual philosophy truth Es hypothecateGetting in touch with media police during the first semester of my Masters gave me a sense of the importance of law in general because it consists of acts and articles which organise more or less issues in the hu earthitys life in a way that cherishs ethics and morals. Regardless of the lying and double-standards of the countries which raise high the slogan of Human Rights, I aforementi one(a)d(prenominal)(p)d the Human Rights Conventions that were laid down by these countries. Therefore, I decided to research both(prenominal) points in these conventions that ar related to my study in set out to nurture my knowledge in this great field of the human sciences. Then, I thought deliberately close the benefit of exerting more than effort to get such(prenominal) knowledge since it is existed, headspring-explained and well-organised, in handy books. But later discovering by historical and religious study as far back as some centuries ago, I found that my own culture, Islam, had plenty of law comestible that helped its people non only to protect their ethics and morals, only when also to stagger them solo over the world. Through deliberate and objective study, I found that galore(postnominal) of the social reformers, whose thoughts led to the emergence of the ripe criteria of human covers, were origin eachy affected by the roots of the Islamic ulture. I also found a lot of those old and even modern reformers who praised the old provisions of the shariah equity and they also praised the prosperity which was an outcome of implementing it. The Western writer Patricia hag (2005 p. 218-219) said referring to how those old provisions of law were true bases of a moral society Medieval Muslims did not write utopias in the sense of imaginary travel accounts or new(prenominal) descriptions of ideal societies which do not ex ist, they were not given to looking ideals outside their own civilisation at all.But they did place a golden age right at the beginning of their own history, and their numerous accounts of this age add up to a detailed utopia of great emotive power It was a succession when the Muslims had all the virtues of tribesmen and none of their vices, for thank to Islam in that admiration was no feuding, no factionalism, and no disorder, just austerity, solidarity, and total devotion to the truth. Therefore, I decided to look for the provisions of that old law which are related to my study and compare them with their counter trigger offs in the modern human rights conventions. In order to limit my research, I decided to take the articles related to my study, media law, in the Human Rights movement 1998 (HRA) of the British Law to represent the leading international human rights conventions. Part one Preface chief(prenominal) Argument In this dissertation I am going to explain how both the HRA and the shariah law Law deal with the concept of license of case.As long as such inclination is new and laughable because of the lack of references that studied it, which resulted in an ambiguous perception in the minds of people towards the shariah law Law and its sources, there must be a kind of primary definition of the shariah Law, its sources and how the sharia law scholars (Sharia Jurists) deal with these sources to settle law items. Sharia Law This reflectivity is going to be referred to as a theological-historical concept since the Sharia was revealed finished a prophet, this makes it a theological subject theme, and it is 15 centuries old, this gives it a historical background.Sharia (sari? ah) is all religious rituals that Allah (SWT) has compel on Muslims, via his Prophet Mohammad (PBUH) regarding beliefs, territorial dominions and day-to-day life among Muslims themselves, and between Muslims and non-Muslims. It is designed to govern the relations of Muslims with non-Muslims, whether inside or outside the territory of Islam. Mahmoud Kamali says that Sharia is the Islamic law as contained in the augur guidance of the Quran and the Sunnah. Yet, the expression Sharia Law is modern if compared with the word Fiqh, which historically utilise to mean the sensation of Islamic rules from its sources by true inference. Kamali defined the word Fiqh Islamic law as developed by Muslim Jurists. The term is often use synonymously with Sharia. Therefore, like other contemporary researchers of similar topics, I am going to use the expression Sharia Law to mean the old word Fiqh. Sources of the Sharia LawThere is no difference between all of the Muslim scholars that the master(prenominal) sources of all information, not only somewhat the details of the life of mankind, save also about the details of the whole innovation are the set apart Quran, then, the sanctified Sunnah. In addition, it is a matter of a universal belief among Musli ms and m some(prenominal) of non-Muslims that the Holy Quran in the hands of people is the real book revealed by Allah (SWT) to his Prophet Mohammad (PBUH) fourteen centuries ago. The aforesaid(prenominal) is the 100% authenticity of certain books of Hadith, i. e. Saheeh Al-Bukhari and Saheeh Muslim.These references are not considered comprehensive works however, I feel that they could fade raw guidelines for me in my research in two ways * They give me hints about how this issue is being taken by researchers who are not specialists in Sharia studies, but they are lawyers or journalists like me. * They draw raw guidelines of the comparative methodology of research between articles of the Sharia Law and those of the statutory law. end-to-end this dissertation, I am going to take articles of the British Media Law and compare them with the related provisions of the Sharia Law, giving enough examples in order to be able to make clear-cut conclusions about the of import question of t his dissertation which is (The question of the dissertation) Can the modern Islamic movements, who are apparently going to rule the Arab countries after the Arab Spring, implement the Sharia Law and achieve the absolute justice which they raise as a slogan for their revolutions and electoral campaigns?Or would they worsen the already worsened situation of media law? Of course, regarding the other part of this dissertation, which is the statutory law, libraries are full of texts of law articles starting from the Declaration of the Rights of Man and of the Citizen in 1789, passing through and through the UN Universal Declaration of Human Rights, ending with daily huge volumes of books, journals and articles studying new amendments and proposing new laws regarding juvenile details of the life of people in general and the work of media specifically. TerminologyIn order to possess a good sense for the real meaning and connotation of the Sharia Law concepts and cases, they bemuse to b e denoted by their names. Therefore, it is necessary here to bring in a list of the original names of the Sharia concepts and their definitions. The Holy Quran defined previously. Surah one complete chapter from the Holy Quran. Sowar the plural of Surah. Sowar are different in length. Some are 1/3 a page and others exceed 40 pages. Aya one verse from the Holy Quran. Ayat a plural of aya. The Holy Sunnah defined previously.Hadith a verified saying for the Prophet Mohammed (PBUH). Ahadith a plural of Hadith. Tafseer the interpretation of the Holy Quran and the Holy Sunnah by professional credible Muslim scholars. Fatwa a certain judgement on a certain case by a Sahaba, Tabeeen or overconfident Muslim scholars in a certain time or place. Plural is Fatawa. Ibada the act of worshiping Allah (SWT) whether by boldness or body. Any act of heart or body needs to start with intention of solely worship for Allah in order to be a true Ibada. Dawah the flow of activities Muslims do in illumin ating the teachings of Islam.Dhimmi the name of a non-Muslim citizen in the Islamic State. Ahludhimmah or Dhimmiyeen plural of Dhimmi. Jezyah the name of the religious measure for non-Muslims in the Islamic State. It is equivalent to the religious tax taken from Muslims, but Jezyah is a lesser tot up of money that has many exceptions. Part Two The Situation of Freedom of Expression Historical Background It is in truth important, before starting writing about the situation of granting immunity of expression in the statutory and the Sharia Law, to explore the general historical climates which preceded the emergence of both laws.That will give a kind of understanding of how much the improvements on the situation of set downdom of expression both laws fox achieved. * A Glimpse on Freedom of Expression in the West before the Renaissance The period which preceded what is known in europium as the Renaissance was full of conflicts among the different castes of the European communities in general. That conflict took several forms. A quality one was the conflict between the church building and scientists and that between authority and people.Howard Turner describes a side of such conflicts The Middle Ages in Europe had long been dominated by an unending conflict between Church dogma and a kind of humanistic and individual quest for intellectual liberation. Church and authority used to be allies and each institution worked for the protection of the other at the expense of peoples lives. They used to impose restriction on emancipation of expression and there used to be no respect for peoples privacy. There was also a kind of blackout on out-of-door knowledge, fearing that it might undermine their power or alliance.The Thirteenth century was an age in which kings and barons reacted to an insult by lopping off the offending tongue- or head The crime of s basindalum magnatum expressly protected the great men of the body politic from any statements that might arous e the people against them. In France, for example, the king used to say I am the state and gave no space for people to have control in running their own or private life. The Church used to control science. Therefore, knowledge it dictum as right, used to be spread, and that it saw as wrong, used to be damaged.A blockage was imposed on scientists and thinkers. In 1614, Galileo was accused of unorthodoxyby the Church for his scientific theories. Eighteen years later, in 1632, he was sentenced to life imprisonment which was decreased to permanent house arrest after he had been obliged to withdraw his theories before the public by the Church. That time was the worst for womens freedom. Women were inferior to men, troubled with Eves sin. They were subject to the authority of their fathers or their husbands. Violence in marriage did occur and was even encouraged. The dark life of that age pushed people to seek a kind of salvation through knowledge, especially, after the appearance of new thinkers affected by the Muslims civilisation. check to Turner, the Christian West inherited the scientific legacy from Islam. Thanks to increasing cultural traffic with Muslim lands via the busy Spanish and Sicilian gateways, the thriving routes of Mediterranean and overland commerce, and the contacts left over from the Crusades. People want to reinforce the principles of freedom and justice, which was clear in the slogan of the French revolution which was liberty, equality and fraternity. The revolution in real freedom of expression has been from the Renaissance until today. However, there are still some issues which emerge from time to time that necessitate amendments of the existing laws or constituting new ones. * Freedom of Expression in Arabia before the Sharia Law In Arabia, there used to be kind of freedom of expression, but there was no justice.For example, men used to sit with each other and think about issues related to their tribes. But that right to give an idea or express an opinion was only for masters. Societies there used to consist of triplet castes masters, subjects or alliances and slaves. In addition, that right among the masters was only for men. Women used to be suppressed and were not allowed to theatrical role opinions either in public affairs or even in family affairs. Women were used in the selfsame(prenominal) way as goods. There used to be a diversity of religions. Arabia included pagans, Jews and Christians.But the closely common was paganism. Surely, that kind of diversity hints at a kind of freedom of religion, but the opposite was the norm. Paganism, be in worshiping idols, was the religion of the mainstream Arabs in Arabia and they used to keep an eye on those who converted to other religions. If they were young, they used to be fought if they were old, they used to be left free since they could not affect others. Of course, chiefs and masters of tribes used to be happy with that kind of life because it helped th em keep strong control over their subjects.However, suppressed castes needed any kind of powerful justice to liberate them from the chains of the different forms of slavery. From amongst that darkness, the message of the Sharia was revealed to the Prophet Mohammed (PBUH) to spread the justice and freedom among people. It is widely known among historians that a reasonable number of the people who joined the Dawah at the early stages were from the ordinary people or alliances and slaves. Some of the masters asked the Prophet (PBUH) to dismiss them from approximately him if he wanted them, the masters, to join the Dawah.Of course, ordinary people always lead reforms. A aggroup of Muslim emigrants fled the persecution of their relatives in Mecca to Abyssinia and there was a short dialogue in the court of Abyssinias king, who was a true Christian. Their representative described the situation of Arabs before the Sharia and what the Sharia came with O king We were plunged in the depth of ignorance and barbarism we adored idols we lived in unchastity we ate dead animals, and we spoke abomination. We disregarded every tone of humanity, and the duties of hospitality and neighbourhood. We knew no law but that of the strong.At that time, God raised from among us a man of whose birth, truthfulness, honesty and purity we were aware, and he called us to the Unity of God and taught us not to associate anything with Him. He forbade us to worship idols and enjoined us to speak the truth, to be faithful to our trusts, to be merciful, and to regard the rights of neighbours. He forbade us to speak ill of women and to eat the substance of orphans. He ordered us to flee from vices, to abstain from evil, to offer prayers, to render alms, and to observe the fast. Constituted Rights to Freedom of Expression * Freedom of Expression in British Media LawAs I have mentioned from the beginning, I am going to take the British law as an exemplar to represent the statutory law in this res earch. Therefore I see that I have to propose an overall look at the British law and to see the situation of freedom of expression through it. British Law Unlike other countries, Britain does not have a indite constitution. Referring to Britain, gobbler Baistow says This country is the only one in the EEC without a written constitution and the only one without the press laws that form one of the nigh important guarantees of freedom of expression. However, it has a good record regarding the respect of freedom of expression. It got this reputation throughout historical fights of the British nation to attain freedom and adopt democracy. And as an ideal example of the fight to reach this situation, journalism in Britain went through a brave strife against constitutional restrictions on publishing in the 19th century and could extract the right to comment and publish. Freedom of expression became one of the most respected freedoms as a kind of a social norm among the British people. It is believed in Britain that free speech is a significant pillar of a free democracy. The kinglike Commission on the Press in 1977 defined freedom of expression as that degree of freedom from restraint which is essential to enable proprietors, editors and journalists to advance the public interest by publishing the facts and opinions without which a egalitarian electorate cannot make responsible judgement. This definition shows how the British believe in the vital role that freedom of expression plays in educating the public to be able to take right decisions in elections.It means that it is the main warrantor of a free democracy which is the main principle of a free State. Therefore, Solaiman Saleh described the situation of freedom of expression in Britain, despite the lack of a written constitution, saying The principle of a free press is reinforced in the collective conscience of the British. That forms a better protection which outweighs any written constitution. Saleh c ontinued explaining that it became a part of the British understanding of freedom of speech that the political sympathies does not have the right to interfere in the workflow of mass media.It cannot issue warrants, for example, to close any news platform, have pre-publishing restrictions/instructions or suggest amendments in the administrative systems or editorial policy. This is how James Curran portrayed the British press after the Second World War The press became fully independent of political parties and therefore government. The independence of the press gave it a great deal of space for free speech as well as unlimited power against governments.This was clear when the best wartime leader, British Prime Minister, Winston Churchill, demanded an immediate closure of the unremarkable Mirror over its coverage of the conduct of war. That decision was followed by rough debates in the House of super C and huge popular protests in Trafalgar Square and Londons rudimentary Hall th at pushed Churchills government to withdraw the decision against the Daily Mirror and, even, lift a ban previously imposed on the Daily Worker. Mass media regulation is only the role of the Parliament and Judiciary.In reply to the argument that the parliamentarian majority which forms the government may adopt any law suggested by it, Saleh argues that people who believe in the concept of freedom of expression will protest against the parliament and oblige it to stop the new law or to dissolve. The incident of the Daily Mirror mentioned above is a very clear example of that. The main pressure was represented by organised protests in Trafalgar Square and Londons Central Hall.In addition, Hanna and Banks say in McNaes Essential Law for Journalists Section 19 of the Human Rights roleplay created a requirement that a Minister introducing a Bill into Parliament must declare that its provisions are compatible with the European Convention, including thereby a commitment to freedom of expre ssion. Despite all the facts mentioned about the battles towards the freedom of expression in the English society, a sufficient protection for that freedom, which keeps up with the public-interest journalism, from attacks for discomfiting the government or the judiciary or the wealthy private litigants was not completely guaranteed.It is guaranteed by the adoption of international treaties, in which English writers and lawyers took a big part in constituting them, into the British law. Since then, clear articles of these treaties have become legal autographs in the British law that guarantee a better freedom of expression. Throughout these facts, I can come to a conclusion that freedom of expression in Britain has certain principles that are clear. The main 3 principles could be summed up as following 1. Government has no power against mass media.Robertson and Nicol explain how a government official does not have any privilege over the public in this regard. They say that if any official wanted to stop a news story, he has to go to the court the same as the public do. It means that government cannot control or suppress the voice of any unity person directed to the public via any medium. It is believed that this is a sign of a free democratic State, but not in an arbitrary sense. Therefore, mass media have to be credible, and offenders should not escape punishment.John titan quoted Sir William Blackstone, the eighteenth-century jurist, saying The liberty of the press is indeed essential to the nature of a free State but this consists in laying no previous restraints upon publication, and not in freedom from censure for criminal matter when published. 2. Mass media are owned by the private sector and, therefore, it represents citizens before the government. However, citizens are stronger than the government in the democratic regimes it means that mass media can publish any kind of opposite opinions without fearing suppression or oppression of the government . 3.Mass media turn to the public to face censorship. Robertson and Nicol say The best antidote to censorship is publicity. When the government wishes to practice a kind of censorship, journalists can publicise that practice and the government does not have any power to punish them. The incident of the Daily Mirror mentioned above is a clear example on the three points mentioned. It shows how mass media are stronger than governments, how mass media speak on behalf of the public and how the public exerted pressure through protests that pushed the government to retreat from the closure warrant against the newspaper. Freedom of Expression in the Sharia Law The most prominent characteristic of the Sharia Law is that it is a religious law. It means that it has more emphasis, in all branches, on religious and moral values than other laws. Mohmmad Kamali says This can, perhaps, be clearly seen in reference to the Sharia rules pertaining to blasphemy, heresy and disbelief, where the domina nt concern is to defend the dogma and belief-structure of Islam. Muslim scholars and thinkers believe that this characteristic of the Sharia Law gives it a spiritual power, which is effective to keep stability of societies.Based on his understanding of the Islamic beliefs and to actualize that defending the dogma and belief-structure of Islam achieves social stability, 20th century Muslim thinker and reformer Sayyed Qutb, who interpreted the Holy Quran, says Social, economic and religious organisation goes side by side with a true ethical code and dogmatic belief in a complete, comprehensive, balanced and precise way. Regarding freedom of expression and to show how much positive effect religion has on it, the Western writer, Patricia Crone, shed light on the way Muslim thinkers understand the relationship between freedom and religion.Patricia Crone reported Al-Ghazali, a famous medieval Muslim philosopher and reformer, explaining freedom in the Sharia as no humans had the right t o impose obligations on other humans, whether they were rulers, masters, fathers or husbands, or for that matter prophets only God could do so. Of course, Al-Ghazalis understanding of that concept of freedom was based on the Holy Quran and the Holy Sunnah. Allah (SWT) asked his Prophet Muhammad (PBUH), in the Holy Quran, to tell people that he is a human like them.