Chief-in-Editor Prof. Badria A. Al-Awadi
Well done to the administration of Kilaw’s Annual International Academic Conference for choosing “The Historical Roots of Legal Theories and Codes” as a title for its eighth session, because of the important topics it raises in various fields of law and its specializations, and for the curricula and methods it advocates through researching these topics, which require rooting, in-depth, discussion, argument and criticism revealed by research, presented by dozens of specialized professors, that will be published in four appendices to the Kuwait International Law School Journal.
In the context of following up and keeping pace with these appendices, we have opted to raise some specific topics that we believe are important, and that would contribute to enriching discussions related to the need to renew the construction of legal thought, its message and its role in the renaissance and development of societies. The first of these issues is the necessity of looking at law in the historical and civilized context of nations and societies as an integrated system, rooted, crystallized and developed as a result of accumulated legal, legislative, judicial and jurisprudence works as they interact and renovate to meet the requirements of private and public affairs, and internal and external relations.
In light of this, laws are not just general and special rules for social organization, but they become an important and influential cause in the lives of societies, in view of their content and role in organizing and achieving security and stability, and upgrading human behaviour in a manner that achieves nobility and dignity, and gives them a role, a message and a soul. Therefore, law-makers often resort to setting explanatory notes that include the philosophy, objectives, ethics and customs accompanying or related to the laws.
These positive meanings and values that are related to the law do not come by themselves, but are the result of a collective effort made by different groups related to education, values, morals and social foundations, and the enactment, discussion and approval of laws, as well as their objective implementation, along with those who implement the provisions of those laws, and we mean judges, and those who explain, review and criticize those laws for the purpose of reforming and developing them, and by them we mean jurists and researchers.
Thus, the matter is related to several factors, and to multiple and different social and professional parties, which makes laws a reflection and mirror of the nature of societies during a period of time. Therefore, the development and review of the legal system as a collective responsibility, but the greatest burden in it falls on the shoulders of jurists in their different positions. Contrary to the precise term for rigid laws that are applied to some specific and few legislations that require special rules in their amendment, as is the case with some constitutions or special provisions in them related to governance, the majority of laws are flexible and accept amendment and development, but rather they need that because modern life witnesses the emergence of problems and conflicts, new challenges that require creative legal interventions for effective solutions and jurisprudence.
What confirms this changing historical, social and civilizational dimension of laws is the emergence and flourishing of legal and jurisprudential thought among major nations and civilizations, where the four schools of jurisprudence emerged and crystallized in Islamic civilization, which transformed the provisions of the Noble Qur’an and the Sunnah into practical, facilitating and clear rules for organizing various aspects of social life. The Latin legal school also arose and flourished based on the Roman legal legacy and others. Similarly, the Anglo-Saxon school benefited from the British and American legal legacy later, as did the German legal school at one stage.
Thus, the principle is that laws enjoy flexibility and the ability to review and develop, and the exception is that they are rigid, and in most cases this is due to the rigidity of the societies themselves, and the failure to make sufficient and effective efforts to achieve development and renaissance.
In relation to the historical and civilized dimension of the laws themselves, another issue arises related to the approach to dealing with the origins of those laws, and there is no doubt that a deep study of those origins and subjecting them to scrutiny and criticism is the best way to develop laws in theory and practice, in order to achieve results on the ground, and provide treatments and solutions to current and future problems. Most of the theories in the humanities and legal sciences have been based on the accumulation, interconnection, and continuity of jurisprudence, not on a breach of knowledge.
Current experiences confirm that institutional work in academic and scientific legal studies, and in following up on judicial rulings and jurisprudence, would contribute to the renaissance and development of laws.
“As for the foam, it goes away as scum, and as for that which benefits people, it remains on the earth.” (Al-Ra’d Soura, Verse 17)