【Essay】

The task of business legislation in the Middle East and North Africa region from the perspective of legal culture and custom.

【小論文】中東・北アフリカ地域のビジネス法制の問題点について、法文化や慣習の観点から論じる。

中東・北アフリカ地域の特殊性
中東・北アフリカのビジネス法制についてとその問題点
法文化・慣習とビジネス法務
まとめ

Specialty of the Middle East and North Africa region
Business Legislation in the Middle East and North Africa and Its Tasks
Legal culture · customs and business legal affairs
Conclusion

1. Specificities in the Middle East and North Africa

⑴ Geographical range

The Middle East / North Africa region (hereinafter referred to as the "MENA Region") refers to areas including the east of Morocco in North Africa to Iran in the Middle East and Turkey and Sudan (excluding South Sudan). Ethnically, it consists of Arabs, Persians, Turks and others.

⑵ Legal system of the MENA region

In considering the legal system and its modernization in the MENA region, the Islamic law (Shari'a) becomes an important concept. The legal system will be established with the spread of Islam since the 7th century. Whether or not its effectiveness varies depending on each age, Shari'a has been applied and used for a long time as an indication of the legitimacy of its ruling class. In Shari'a, in its long history, many of its basic problems, its interpretation was established in the early days of Islamic history. Incidentally, the fact that the application / operation of Shari'a was a problem became a problem since the modern era when it became more problematic from Qanun (law)　and the relationship with human rights.

＊Qanun (law)：laws promulgated by Muslim sovereigns, in particular the Ottoman Sultans, in contrast to shari'a, the body of law elaborated by Muslim jurists.

⑶ Legal system and its historical transition

The transition of Shari'a application can be clarified by reading the long-accumulated Islamic court documents. It is possible to clarify social problems and the process of conflict resolution based on the control of Shari'a. Application of Shari'a in that area will be narrowed down by Westernization due to the decline of the Ottoman Empire. Westernization of the legal system and colonization by Western Europe have received considerable influence. With the spread of colonization, in the MENA area, the Qanun, the written law is developed and the application of Sharia is narrowed. In the modern era, Islamic reconstruction campaign occurred, this trend will affect the restoration of the Islamic state such as the caliphate and the strict application of Shari'a. Specifically, there are the birth of Saudi Arabia, the independence of Pakistan, the progress of economic activities backed by Shari'a (also the development of Islamic economics).

Ⅳ Qanun and Shari'a (Modern History)

Because the MENA region is where many Muslims live, it often happens that shari'a based on the holy Quran is applied in legal problems. There are many situations in which the Shari'a based on secular law and the Qur'an is applied as a characteristic of the legal system in the area concerned. Also, the position of Shari'a in a country's legal system and that system is also different in the MENA region. Some countries make Shari'ah the main source of law in the legislation, others only allow it in limited areas. Depending on the history of modernization that the country experienced and the process of introducing the Qanun, the scope of application of Sharia also varies.

(5) Sharia and customs in the area concerned

Sharia means "the way to the water field" in Arabic, and in the scripture Qur'an it is expressed in the meaning of the right way that humans do. It is a code of conduct that Muslim, a member of the Islamic community, should protect, and its code of conduct was born from the behavior of the revelation and Muhammad's actions received by the Prophet Muhammad of Islam from God (Allah). Shari'a is not an accounting law, but effectively defines the behavior of Muslims in the legal community. In addition, it is not a practical law, but a revelation method. In that sense, it is close to the natural law, it can be said that it is a law that exceeds the time to be established in any age.

In the point that Shari'a is influenced by ancient philosophy and ancient thought, she is drawing the same trend as the foundation of European modern law. In addition to religious provisions such as Muslims' faith acts, we define social life, economy and state. This is easily understandable from the influence of "halal" which is a term that has been drawing attention in Japan in recent years. Application of these Shari'a is widespread, but whether it is actually applied is another problem. Also, that point can have a lot of room for discretion, and it can be said that there are ambiguous points.

In the operation of Shari'a, law sources are generally divided into primary law sources and secondary law sources in Islamist sunna factions. Primary law sources include the Quran, Sunnah,Ijma’(اِجْمَاع,) and qiyās（قياس), the Qur'an and the Sunnah being the higher sources of law. There are laws and ordinances by ijtihād（اجتهاد), ‘urf(العرف:custom) and state, as the second law sources. Regarding the legal sources of Shari'a thus classified, there is not necessarily a fixed view in legal interpretation. At the very least, an agreement of a jurist will be formed about the fact that the Qur'an and Sunnah are the main sources of law in Sharia.

In addition to Sharia, there are also laws enacted on the basis of local customs. That is, it has a pluralistic legal system. Reviewing the legal system of each country is also important for understanding the legal culture and law customs behind it.

*ijtihād（اجتهاد):effort, physical or mental, expended in a particular activity.

⑹ court system

Dispute cases are resolved by the ordinary court or the Shari'a court, but there are also dispute settlement bodies outside the courts and arbitration systems exist. As a point to consider the legal and judicial system in the MENA region, it is necessary to consider how to handle Sharia. For example, Turkey does not recognize Shari'a as a "law" due to separation of religion in the history of modern times, and in the case of Saudi Arabia, the Constitution of the Quran and the Sunnah are stipulated.

2 Business Legislation in the Middle East and North Africa and Its Problems

⑴ Modern law introduction and business

Regarding the MENA region, as a general trend, commercial related laws such as Corporate Law and Commercial Law were developed at a relatively early time. However, in recent years the civil law, criminal law, investment law, labor law have been enacted in recent years. On the other hand, countries and regions where bankruptcy law, procedure act are not set (especially the Gulf Arab region) are also scattered.

Regarding financial legislation and legal issues, laws such as banking law, insurance company law, financial company law, capitalism law, etc., are relatively well developed. However, it is not sufficient to deal with a cross-sectional legal system such as the Financial Instruments and Exchange Act.

As a legal issue when Japanese companies and others enter into the market, foreign investment situation should be considered. Indeed, the barriers to entry of foreign capital remains large. In the enactment of the Free Zoning Act attracting attention in recent years, in the Gulf Arab region, it is often the case that in a Special Economic Zone for Special Economic Zone, free activities of foreign financial institutions are accepted.

2017.09

【Essay】 The task of business legislation in the Middle East and North Africa region from the persp