أخلاقية التشريع بين الشريعة وقوانين الدولة الحديثة

Abstract

The objective of this research is to investigate the legal and moral history of the modern state in order to shed light on the concepts of law and ethics in the context of pre-modern and post-modern states. Furthermore, the research aims to discuss the dialectic relationship and disengagement between these concepts before examining the scope of morals and law in the context of Sharia. This research endeavors to address the question of the compatibility or incompatibility of these two concepts in various contexts. The research concludes that it is impossible to separate law from morality in legislation, particularly in the absence of a purely rational legal system. Furthermore, reliance on the legal text in formulating a coherent legislative theory isn’t inconsistent with rationality. It also reveals that societal freedom, as understood in the modern legal sense, is not one of the objectives of Islamic law. Rather, achieving "social justice" embodies the objectives of Islamic law, and the Sharia courts must remain steadfast because they serve purposes that are integral to the Islamic social system as a whole. It is incorrect to try to reconcile the system of societal freedom, as understood by modern law, with the objectives of Sharia. This is because Sharia has its own system that is applied according to a comprehensive and foundational existential and epistemological structure, without fractionalization that undermines its objectives and purposes.