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Abstract

The Muslim writers divided the world into three areas: Dar AL-Islam, Dar AL-Harb, and Dar Al-Ahd; and they also divided the people into three categories: Muslims, Dhummis, and Mustamins (foreigners). It is necessary to mention that the political submission relation between the individual and the Islamic state (Dar Al Islam) has been founded, in principle, on religious basis (Jus religions), but this religious difference didn't prevent to extend the protection of Islamic state at Dhummis, they became as the subject of the state. As a matter of fact, if the nationality wasn't known by term, it would has been existing by mean as a method of distinction between citizens and foreigners. On the other hand, the law in our opinion as, Muslims, is the body of divine rules, this law determines what is authorized, what is prohibited, and what the Muslim community should adopt as its social, economic, and ethical policies. As a law with divine origin, it has been thought of as immutable, ideal and just. Consequently, no secular authority is permitted to change it or to violate its rules. No Legislator or any authority of State can adopt a rule in conflict with its rules and principles. However, having regard the capital importance if the problem of conflict of law, some comments seem indispensable. The raison d'etre of private international law is the existence in the world of a number of separate municipal systems of law that differ greatly from each other in the rules by which they regulate the various legal relations arising in daily life. That branch of law presupposes inter-state or international relations and the readiness of court to apply foreign laws. The recognition of a foreign law in case contammg a foreign element may be objectively very necessary, the invariable application of the local law where the court is situated, would often lead to gross injustice. This research holds that the Muslim court can apply temporal rules - rules initiated by men - that achieves justice required by Sharia and within its norms even if these rules are of a foreign country: for example, the personal affair of Ahl Al Dhumma should be decided not according to Islamic law, but according to their personal law. The generality of Sharia does not necessitate its application on relationship involved foreign element but it requires the non-violation. It is to the credit of our tolerant sharia that it adopts a very developed positon concerning the rights of foreigners in Islamic territories and it recognizes the reciprocity principle which dominates the modern municipal legislations. Finally, an aspect should be brought to light: the problem of conflict of jurisdiction. The remaining authors of Islamic writings have maintained that the verse of Quran that gives a choice for the court either to assume or to decline jurisdiction, was especially pertinent to Mustamins litigations. But while some of those authors would require the consent of both parties for the court to accept adjudication of the case, others have considered it sufficient for the court to assume jurisdiction when the plaintiff brings the action despite defendant’s objection. In fact, if we are content to justify an opinion without taking into account more recent development of the subject as a whole, nothing but confusion and chaos can ensue. (Let not hatred of others to you make you swerve to wrong and Depart from justice) (and if you judge between - mankind - that you judge justly).

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