MEDŽELLA - NOVA PARADIGMA PRIMJENE KODIFIKOVANOG, ŠERIJATSKOG, MATERIJALNOG PRAVA U SUDSTVU
MAGALLA - A NEW PARADIGM FOR APPLICATION OF A MODIFIED, SHARIAH, SUBSTANTIVE LAW IN A JUDICIAL PROCES

Summary/Abstract: Substantive law is the law which is applied when the court decides on the merits of the case within the procedure, and formally it refers to the rules of procedure, for example a material Penal Code, a formal Code of a Criminal Procedure. Magalla, which will be discussed in this paper, contains a form of a codified, Shariah, substantive law. Historical analysis of the development of Islamic legal thought indicates that the Islamic law-fiqh, has gone through several different phases or eras of development and systematization in the past. Notable is the division made by Mustafa Ahmad Az-Zarqa, who mentions seven different phases, acceptable for explanation of this phenomenon and modern codification of Islamic law. Seventh phase, which according to the author includes the development of fiqh from the appearance of Magalla until present day, is characterized by three important things.First of them is: accepting and declaring that "Magallah Al-Ahkam Al-Adliyye" is a general civil law taken from the Hanafi fiqh. In its chapter Civil Law, General Encyclopedia Larousse mentions that the former country of Yugoslavia did not have a single civil legal territory in the period between the two worlds wars, the First and the Second, but consisted of six areas of the law. Bosnia and Herzegovina was a special area of civil law where "the laws of the Ottoman world (Magalla), Muslims religious law (Shariah), denominational Christian law, customary law and OAGZ as an additional right have been applied". This qualification about Shariah and Magalla is incorrect for the expert of Shariah and islamic fiqh, but it reflects the attitude of conventional lawyers and their lack of knowledge and understanding of the essence of the Shariah law, because neither is Magalla a secular law, therefore atheistic, nor is Sharuah a religious law only for Muslims. This can be even seen in the original name of Magalla which is stated in the title of its translation in the Bosnian language and reads: "Magalla and Ahkam Al-Shariah". This indicates that Magalla represents a commonly known condification of Shariah law or Hanafi law in the field of so called Al-Fiqh Al-Mua'melat. The main characteristic of the legal proccedings of Islamic law in the large dispersion and disunity among legal views and opinions, which gave been given by the legal experts through legal reasoning which was legitimate regardless of everything, and given under the terms of the methodology of Ilsamic jurisprudence, through the so-called Fiqh Al-Tafsiri and Al-Tafsili (commentary and scientific explanation) derived by fundamental scientific methodology from the text and sources of the Shariah as the largest and most comprehensive legal heritage the world has ever known, represented in the Islamic law schools (Madhahabs) of the famous scholars with separation of methodological and legal-practical nature which encountered problems in the process of application. It was a good enough reason to try the new form of codification which will be achieved by creating Magalla whose greatest quality was that is distinguished between a scientific, professional law which is explained , taught and interpreted, and the rights which represent a material, court source in the form of only one selected opinion converted to a article/paragraph. This is an epoch-making, revolutionary breakthrough in the application of islamic fiqh and can rightly be considered as a new pardigm of application of a codified. Shariah, substantive law in judiciary process and a major step towards a uniformed, unified interpretation and application of law and uniformity oj judicial practice. The legal basic for all of this war confirmed and explained in the Paragraph 1801 of Magalla which reads that if Sultan is to issue ab order/instruction which is to be applied on certain issue because it is in favor of the people and because it is more appropriate for modern times, then is not within the competence oj judges to rule and act upon on some other opinion ant attitude which is opposite of this, and if the judge would do that, his verdict would not be final and enforceable. Confirmation of this can be found in the 16th article of Magalla which reads: "Ijtihad, the attitude of a legal expert is not abolished by their ijtihad, legal reasoning of the same type of another expert."

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