The Civil and Islamic Legal Traditions.docx (original) (raw)

A Comparative Study Of the Western and Islamic Concept of Law

Theories of law are evolution of historical process which has reached us in developed forms. The principles of law have reached us after centuries ponder and observation. The fact is that still there exists in these principles of law a state of conflict and confrontation. To show that conflict and confrontation the experts in law have out forward a dozen theories of which the most popular are the following: 1. Natural Theory of Law; 2. Imperative Theory of Law; 3. Evolution Theory of Law; 4. Advantage Theory of Law. Kinds of Western Laws Kinds of Western Law with regard to its different references are as under: (A) With reference to Legislation laws are; 1. Constitutional Law; 2. Written law; 3. Ordinances promulgated during emergency; 4. Customary laws; 5. Judicial precedents or Judge made law; and 6. International Law. (B) With reference to geography laws are: 1. National law; and 2. International law. (C) With reference to function laws are: 1. Personal law, 2. Common law, 3. Administrative law. (D) With reference to crime laws are: 1. Criminal law, 2. Civil Law 3. International law. (E) With reference to Memory are: 1. Written law 2. Unwritten Law (F) With reference to legislation laws are: 1. Ordinance. 2. Act. Kinds of Law as stated by Salmond 1. Commanding Law, 2. Natural or Moral Law, 3. International law 4. Domestic law or the law of the land, 5. Physical or scientific law, 6. Contractual law, 7. Customary law, 8. Law of Art; 9. General law, 10. Special Law, 11. Martial law. Islamic Concept of Law In Islam for law the word used is Shari`at. Shari`at means “the Straight Path/الصراط المستقیم”. All Muslims in all their prayers recite the first chapter of the Holy Qur’an called Surah al-Fatihah. It contains seven oft-repeated verses. It is also called Surah Al-Hamd. In it they all pray :“Show us the Straight Path”. What is the Straight Path? The Holy Qur’an has mentioned the Straight Path in the following words: All who obey Allah and the apostle are In the company of those on whom is the Grace of Allah, - of the prophets (Who teach), the sincere (lovers of Truth), the witnesses (Who testify), and the righteous (Who do good): Ah! What a beautiful fellowship! [4:69] Its source is Divine Guidance. It originated when first man on earth i.e. Hadrat Adam (peace be upon him) was sent. Adam was creation of God Almighty. He was guided concerning all such affairs that were necessary by God Almighty by means of revelation. It covered all walks of human life. The event is mentioned in the Holy Qur’an at various places: Behold, Thy Lord said to the angels: "I will create a vicegerent on earth." They said: "Wilt Thou place therein one who will make mischief therein and shed blood? - whilst we do celebrate Thy praises and glorify Thy holy (name)?" He said: "I know what ye know not." And He taught Adam the nature of all things; then He placed them before the angels, and said: "Tell me the nature of these if ye are right." They said: "Glory to thee, of knowledge we have none, save what Thou hast taught us: In truth it is Thou who art perfect in knowledge and wisdom." He said: "O Adam! Tell them their natures." when He had told them, Allah said: "Did I not tell you that I know the secrets of heaven and earth, and I know what ye reveal and what ye conceal?" And Behold, we said to the angels: "Bow down to Adam" and they bowed down. Not so Iblis: He refused and was haughty: He was of those who reject Faith. We said: "O Adam! Dwell Thou and Thy wife In the Garden; and eat of the bountiful things therein as (where and when) ye will; but approach not this tree, or ye run into harm and transgression." Then did Satan make them slip from the (garden), and get them out of the state (of felicity) in which they had been. We said: "Get you down, all (ye people), with enmity between yourselves. On earth will be your dwelling-place and your means of livelihood - for a time." Then learnt Adam from His Lord words of inspiration, and His Lord turned towards him; for He is Oft-Returning, Most Merciful. We said: "Get you down all from here; and if, As is sure, there comes to you guidance from me, whosoever follows My guidance, on them shall be no fear, nor shall They grieve. "But those who reject Faith and belie Our Signs, they shall be companions of the fire; they shall abide therein." [2: 30 to 39] The last of the Prophets was Hadrat Muhammad (Peace and blessings of Allah be upon him) on whom was revealed the Holy Qur’an, the last message of God to mankind. Earlier to it were revealed the Taurat on Hadrat Musa (peace be upon him), the Injil on Hadrat `Isa (peace be upon him), and Zabur on Hadrat Da`ud (peace be upon him). They all contained guidance and mercy. Muslims believe all the past books and Divine Scriptures as truly sent by Allah Almighty and that they contained guidance, light and mercy in them. Thus in Islam Law means Al-Din/الدین. What is Islam? The Holy Qur’an says: The Religion before Allah is Islam (submission to His Will): nor did the people of the Book dissent there from except through envy of Each other, after knowledge had come to them. But if any deny the Signs of Allah, Allah is swift in calling to account. [3:19] The Holy Qur’an has warned beforehand to the whole mankind: If anyone desires a Religion other than Islam (submission to Allah) never will it be accepted of him; and In the Hereafter He will be in the ranks of those who have lost (All spiritual good). [3:85] DOMINANCE OF ISLAM PREDICTED It is He who hath sent His Messenger with guidance and the Religion of truth, to proclaim it over all religion, Even though the Pagans may detest (it). [9:33] Why at present Muslims are subjugated every where? The simple answer is that they are not conducting in the manner the Holy Qur’an and Sunnah has guided. Islam is a way of life for all mankind. Whoso will believe and do righteous deeds will get its fruits. The glory in the past of the earlier Muslims was due to their committed to the cause of Islam and truthfulness and sincerity of their action and conduct. Time and Tide care for none. Nations have their rise and fall. The law of cause and effect is applicable in all affairs except when there is Divine Command otherwise. The history has in its memory fresh even today the burning fire lit by Namrud and his people for Ibrahim had become cool and full of peace for Ibrahim by the Divine Command. The Nile split into two to give way to Moses and those who believed in him and drowned the army of Fir`aun. Hadrat Adam was born without parents. Hadrat `Isa was born to Virgin Mary without father. Hadrat `Isa made the dead alive by the leave of God, healed the lepers, informed as to what food was digested by a person and what left behind. Raised up to the heavens alive despite all plots of the enemies. Hadrat Muhammad (صلی اللہ علیہ و آلہ وسلم) was blessed with hundreds of miracles. The most apparent was the Split into two of the moon, the peaking of the trees, stones, animals and believing in him of the Jinns. All and real sovereignty over the entire universe is thus of Allah Almighty and He is all powerful to do any thing He wills. Generally, this world is the world of cause and effect. Everything is creation of Allah Almighty. Hence to submit before him in words and conduct is Islam. WHERE TO FIND ISLAM? It is to be found in the injunctions of Islam. What are injunctions of Islam? Injunctions of Islam are contained in the Holy Qur’an and Sunnah. ROLE OF TADABBUR, TAFAKKUR AND TA`AQQUL Allah Almighty has blessed mankind with many favours for which thanks to God are due but most people either deny of any favour on them or knowingly ignore and bypass. This is serious. Heart and mind both are the most high faculties and favours of Allah Almighty upon human beings to make understand of man himself. It is the fairness that attracts. Attraction creates attachment and much mention of the beloved and also a sense of obeying the beloved. Same is true in the case of our love towards Allah Almighty. How to test our love towards our Creator? The Holy Qur’an says: Say: "If ye do love Allah, follow Me: Allah will love you and forgive you your sins: for Allah is Oft-forgiving, Most Merciful." [3:31] Tadabbur is going deep into the Holy Qur’an. Tafakkur means contemplation. Ta`aqqul means to stop, to restrain and make all possible effort to visualize what has been the past, what is our present state of affairs, what we have to do to have access the goal in future. This process must continue with ever breath. Muhasaba-i-Nafs is to be made every moment. Self accountability is thus a great favour for human beings. Fairness in character is generated by this process. What you owe to others have you paid it to them punctually, properly, correctly and legitimately. If not what was the reason? Why not to explain him the circumstances and get grace period? Why not to reassess the economic priorities and start making the payment how small it may be. To postpone the due creates further problems. Why not to forgive or give more time to the brother who had taken a lone but is now hard hit by economic constraints. A little thinking will cause much ease and convenience. There should be no falsehood, no hypocrisy, no plotting, and no dishonesty. We must remain fair whether we are having upper hand or lower hand. Half of the way in the process of law is thus covered and the wrongs start becoming fair. Sources of Islamic Law There are four sources of Islamic law, namely, 1. The Holy Qur’an ; 2. The Sunnah of the Messenger of Allah (صلی اللہ علیہ و آلہ وسلم); 3. The Ijma`/اجماع and 4. The Qiyas/قیاس .

The Role of Interpretation in Islamic Law and the Common Law

Few if any disciplines can be divorced from their social effects; a correlation that is more pronounced in law both as a discipline and body of rules. Laws, in any society, must apply and develop along lines that serve and facilitate individual and social existence and expansion, neither objective being secondary to the other. In Islamic law, this function is served by the principles of Maslaha or Istislah (facilitating ease/social welfare) being applied to fill any lacunae in the law, as well as to mitigate or remove any resulting hardship (raf‟ al haraj). Maslaha or Isltislah are juristically extrapolated principles drawn from the Quran and sunna (practices/traditions of Muhammad). They place emphasis on ease and social welfare as the basis of social rights and rules

Maqasid al-Shari'ah-The Higher Objectives of the Shari'ah: Meaning, Genesis and Typology

Insights Islamicus, 2015

Maqasid al-Shari'ah the theme relating the letter of the Divine law with the spirit and the universal objectives of the law; what is now rightly being called as "the Philosophy of Islamic Law" 1 is the focus of this paper. From the very onset of the Islamic civilization the understanding of the Islamic sacred texts based upon the objectives, philosophy, purposes and spirit of the Shari'ah, and the early generation seems to be quite assertive about it, as observed by Hashim Kamali, "the precedent of the leading Companions indicated that they saw the Shari'ah both as a set of rules and a value system in which the specific rules reflected overriding values." 2 The paper aims to put forward the definitions of maqasid al-Shari'ah etymologically as well as a subject. It is followed by discovering the genesis of maqasidi theme from the sacred texts and Prophetic life and how these principles were understood and practiced by the Rightly Guided Caliphs, particularly "Umar ibn al-Khattab, who is considered as imam al-maqasid, who saw the unprecedented social challenges during his tenure as the caliph. The paper concludes by considering the various typologies from classical scholarship down to modern scholarship. The Meaning of Maqasid and Shari'ah The word Maqasid is the plural form of Arabic word maqsud. Etymologically, the word maqsud has a diversity of meanings: 1. Credence, aim, clarity of the way, in the Qur"an God says:

Applying the Shariah from the viewpoint of Maqasid

2022

The Sharīʿah is of fundamental importance for all Muslims. No Muslim is exempted from following the Sharīʿah. However, the understanding of Islamic law is often too narrow and problematic for several reasons. Further, this situation is more critical in the Muslim minority context since it paves the ways to misunderstand and misinterpret the nature and purpose of the Sharīʿah. Therefore, applying Sharīʿah has become a controversial matter that harms people's interests rather than serves them. Further, during the last few decades, there has been significant interest among the scholars of Sharī'ah in producing the Maqāsid al-Sharī'ah as a new methodology to interpret the texts of Sharīʿah. They propose Maqāsid al-Sharī'ah as general principles that open expansive rooms for applying Sharīʿah under its broad perspective. Acknowledging this background, the researcher examined the views of Sri Lankan Muslim scholars about applying Sharīʿah based on Maqāsid al-Sharī'ah's viewpoint. Hence, the perceptions about the application of Sharīʿah are collected from selected Muslim scholars by conducting the interview. This study follows the qualitative method of data collection and content analysis method to reach the results and findings. Accordingly, the study reveals that the prevailing narrow perspective about Sharīʿah serves as an obstacle for the correct and beneficial application of the Sharīʿah and causes negative perceptions among the public. Consequently, the study concludes that the broad perspective of Sharī'ah opens a more expansive space for the application of Sharī'ah and largely helps cooperate and collaborate with other religious communities.