Comparative Legal System

Comparative Legal System: 7

ComparativeLegal System

ComparativeLegal System

Therelationship between Islamic Law and the national constitutions inthe contemporary world grows quite complex each day based on thecountry of application. Ideologically, the Muslim world is by nomeans a single pillar of block, thus various Muslim groups andadherents demonstrate different attitudes towards the new and popularnotions of constitutions upholding the system of beliefs. Variousscholars observe that wider ranges of points of view varying from thelimits of the individuals that argue Islam are in need of democraticsystem. However, amongst these extremes are few individuals thatsupport the constitution even though the extremists define them asnon-Muslim (Obadare&amp Adebanwi, 2010).

Thesituation in Nigeria produces a more complex scenario. Four windowscan explain the scenario of Nigeria. The first window is that thenon-Muslims believe that the application of Islamic criminal law andethos outside the provisions of the provisions of the constitutionwould run into the modern democratic principles as well as defy themulti-religious nature of the country (Ezegbobelu,2009).The second window is that some Muslims believe that the idea ofcontitutionalism is purely Western foreign worldly derivation andthat it has nothing to add to Islamic practice. In any case, ofconflict, Sharia will prevail over the constitution to resolve theconflict. The third window is the compatibility of Islam and theNigerian national constitution. This group of scholars hold that theconstitution is the fairest form of rule in the contemporary worldwhere no one should not be compelled to worship. They take theNigerian constitution as the source of empowerment and raison (Moore,2010).The last group are the abinitiofor they believe in the constitution and practice (Khilafah)even though the concept therein is quite different from the notion.In the above ideology, the words as used in the constitution such as‘sovereignty’, ‘constitution’ etc has varied implications inthe Islamic state (Keshavjee,2013).This paper will address the two comparative legal systems and comparethe relevance of the two legal systems in Nigeria as far as conflictresolution is concerned.

Prevalenceof Islamic Legal System in Nigeria

Shariais one of the key indices incorporated in the current constitution inNigeria. The Islamic law, so far, has made a considerable inroad intothe nation’s basic norm. The law finds its basic roots andprinciples from the Koran, with the rules by which the Muslim worldshould or governs itself. The law forms the basis of the relationshipthat man enjoys with God, amongst themselves, and with othernon-Muslim people across the world. The law also give the basisthrough which human beings and other things as well as living thingscan relate in a better way because they are all part of creation.Muslims can solve individual as well as international conflictsthrough the Sharia (Hassan&amp Mahlknecht, 2011).In Nigeria, the Sharia Law is applicable and though has some issuesawaiting resolution. Such issues include the question of which lawtakes precedence in the country suppose one is supposed to beapplied. It is not always clear if the nation will apply the Islamiclaw or the national constitution. Additionally, it is not alwaysclear if it is legal to apply selective imposition of the Islamic Lawin a specific situation. Further, the driver of the phenomenon isunclear while the individual states have no right to determine whatlaw should govern those (Peters,2004).

Muslimshave made considerable efforts to include the application of Shariain conflict resolution in the whole justice system of Nigeria. TheNorthern states of Nigeria are considered the ‘Sharia states’ dueto their wider range of application of the law. Nigeria is amulti-religious state hosting Islam, Christianity as well as othertraditional religions in the country. The social interactions in thecountry, thus, led to religious pluralism and social transformationsthat give rise to people having different beliefs, customs and valuesthat the forces of history and social relationship pulled together.Additionally, some scholars such as Umaru,Thaddeus (2013) believethat religious pluralism is an evidence of weakening religion oversociety for the religious individuals takes to different pathways asopposed to the society where all values of the society are upheld bythe society as a whole.

Religionis a promoter of morals and thought the connection between morals andreligion is a simple one, it undeniably contributes to thedevelopment of morality in the society. The Muslim use the Sharia asa source of and the foundation of the moral codes that derive itsforce from the Koran which help in resolving conflicts in a bid toavoid evil and embrace good deeds in life. The Koran teaches andproduces laws that urge people to keep distance from doing evil.Conflict resolution also plays a significant in the stabilization ofNigeria’s economy because when peace prevails, businesses andinvestments will flourish. That is one of the foundations of adaptingSharia as a basis of conflict resolution especially for the extremistMuslims (Paden,2005).Therefore, the Islamic law serves the purpose of guiding theextremist Muslims that do not believe in the current constitutionciting it as originating from the West.

Prevalenceof Civil Law System in Nigeria

Mostcitizens in Nigeria prefer using the constitution as a system ofsolving conflicts because the constitution is a neutral system ascompared Sharia. Sharia tends to lean on the Quran as that foundationof principles guiding the conflict resolution. Christians do supportthe constitution as a neutral system for resolving a conflict betweentwo Christians as well as a Christian and a Muslim. Further, the lawcan only be applicable to Muslims living in the Northern Nigeria.This selective application makes it hard to choose what law shouldgovern a specific area or state because the basis of the law is foundin the Holy Quran. The law cannot be applicable to the Christians asfar as dispute resolution is concerned. To make matters worse, mostpeople handling the arbitrations reported to the court have no skillsand experience on handling the situations at hand. Furthermore, theparties involved in the dispute have the tendency of not acceptingthe decision made by the arbitrators’ handlers during the disputeresolution period. For instance, Awosibe v. Sotumbo (Kalu,Korieh, Nwokeji &amp Nnaemeka, 2005) werein such a battle where one dissatisfied party failed to honourvarious sermons made by the court because they did not take the courtas serious as it did not take the court with the seriousness itdeserves (Oso,2011).

Howthe Two Systems Co-Exist

Boththe constitution and the Islamic Sharia teach the nationalists touphold living in harmony and in peace. The constitution reveals thateven though some states may choose to follow Sharia or not, they forpart of the State laws. The constitution acknowledges the power ofstates across the country to pass laws that are not included in theconstitution or the exclusive legislative list of issues, which arewholly set aside for the National Assembly. The constitution ofNigeria recognizes the following courts of the land that areresponsible for resolving conflicts. The Supreme Court of Nigeria,The Court of Appeal, The Federal High Court, The High Court ofFederal Capital Territory, Abuja, A Sharia Court of Appeal of aState, the Customary Court of Appeal of the Federal CapitalTerritory, Abuja. The constitution also acknowledges any other Courtthat the law may authorize to exercise jurisdiction on matters withreverence to issues that may lead the National Assembly to make laws(Iliffe,2011).

TheSupremacy of the Nigerian Constitution

Thefact that the constitution of Nigeria recognizes the Sharia Court ofAppeal for the states means that the two do complement each other.The Sharia court of appeal may draw some of its wisdom from theconstitution to make judgement and resolve conflict on the land.Additionally, the constitution, thus, seems to prevail in case ahigher decision is required because the constitution is more supremeto the Sharia law. The Sharia law is found in the constitution andthe constitution stipulates clearly the mandate of the court.Therefore, the two systems and institutions complement each other inevery aspect and step of sovereignty as well as conflict resolutionmechanisms (Odoeme,2013).

Additionally,the constitution states that no person shall be subject to torture orany inhuman treatment. These are the very principle that the ShariaLaw upholds and wants to ensure that everyone gets a better treatmentand humane treatment. Sharia Law does not permit the punishment of anadult to a canning or whipping because it is an act of inhumanetreatment (Nigeria&amp Akande, 2000).However, the Sharia Law wishes to abolish Sundays as nationalholidays. This is, however, not in the spirit and letter of theconstitution of Nigeria. The ability to enact a national holiday isfounded on the National Assembly and not the mandate of Sharia Lawcourts or the Islamic Law to abolish and create the national holidaysof Nigeria. Conflict resolution is a reflection of the constitutionof a country. Therefore, the stability of the economy of Nigeriahighly depends on the characteristics of the techniques employed inresolving these conflicts (Hirschl,2010).

IslamicLaw as an Alternative for Dispute Resolution

Writersof repute establish and observe that courts litigation system inresolving disputes is disadvantageous of being expensive, consumingand unfriendly. The above factors gave rise to the ceremoniousacceptance of Sharia or the Islamic Law as an alternative mechanic ofdispute resolution amongst most of the states that accept the use ofSharia as the state law. Further, Sharia acts as a customary methodof dispute resolution and in the realm of customary arbitration, andbecause part of the customary method of administration of justice, itis much quicker to administer justice (Cheeseman,Anderson &amp Scheibler, 2013).Moreover, the customary arbitration has another advantage of beingnot too technical and not cumbersome at all. All these factors joinedtogether gave the rise to popularity of most people accepting andembracing Sharia as an alternative dispute resolution. Additionally,the dispute resolution procedure using the Sharia method does notusually complement each other because the customary arbitration givesthe arbitrators an opportunity to choose their arbiters (Campbell,2013).

Moreover,the disputing parties were at liberty to choose the best venue thatsuits them, an act that gives the system an upper hand when it comesto choosing the best system to apply when resolving a dispute isconcerned. Most scholars also admit that dispute resolution under thecustomary arbitration brings about an amicable settlement of disputewithout creating further acrimonies amongst the disputing parties(Obadare&amp Adebanwi, 2010).However, the system of dispute resolution has so far eroded the fieldof application and many people are running to the system in order tohelp them dispute their disputes. As a result, the field is floodedmaking the process slow. This means that before a dispute of twoparties is resolved, it may take a long time. The waiting timesometimes maybe dangerous because the parties may grow impatientwaiting for the resolution time and may end up doing something thatis against the law (Badru&amp Sackey, 2013).

Conclusion

Inconclusion, the two-justice system applicable in Nigeria today offersthe platform with which many disputes get a resolution. Further, theSharia Law used to resolve conflicts in most parts of the northernNigeria has many advantages such as giving the two parties involvedin the conflict to choose the time, place and date when they shall beavailable for the hearing of the arbitration (Ojo,2001).Further, the process is not cumbersome and tiresome to use based onthe mutual agreement from all parties involved in the conflict. Theprocess is convenient economically and anyone can afford the system.On the same note, the constitution forms the basis through which thenations finds its mandate and the duties and responsibilities forevery nationalist are well defined in the constitution. Therefore,the constitution and the Islamic Law play a significant role inmaintaining law and order as well as trying to resolve conflictamongst different people (Harnischfeger,2008).

Reference

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