A comperative study of the western and islamic concept of law

‫ﺑﺴﻢ ﷲ اﻟﺮﺣﻤﻦ اﻟﺮﺣﯿﻢ‬ ‫ﻧﺤﻤﺪه و ﻧﺼﻠﯽ ﻋﻠﯽ ٰ رﺳﻮﻟہ اﻟﮑﺮﯾﻢ‬ A COMPARATIVE STUDY OF THE WESTERN AND ISLAMIC CONCEPT OF LAW Justice ® Dr Munir Ahmad Mughal http://ssrn.com/Author=1697634 Introduction The object and purpose of comparative study of any affair is to know which of the two things to be compared is more in the interest of mankind and promotes human dignity In doing so, first of all each of the things to be compared is Electronic Electroniccopy copyavailable availableat: at:https://ssrn.com/abstract=2055906 http://ssrn.com/abstract=2055906 defined, its sources are mentioned, its theories are traced, and its kinds are found After doing that, similarities and dissimilarities between the things compared are pointed out In this lecture an effort has been made to discuss all these matters concerning Western and Islamic concepts of law as briefly as possible, in the manner of conducting research on standard principles Etymology1 of the word “Law” It is derived from old German word Lag which came to English as Lagu and later became Law The inherent meaning in this word is equality However, it is used Etymology means the study of the origin and development of word See Linguistics and Language, Julia S Falk, John Wiley and Sons, New York: 1978, p.49 Electronic Electroniccopy copyavailable availableat: at:https://ssrn.com/abstract=2055906 http://ssrn.com/abstract=2055906 to convey the sense of settled rules and regulations as no society can live an organized life without laws It is the law that creates equality among the conduct of individuals and thus renders them to coexist in the same society The principles and rules appear in the form of customs and usages the violation of which results in social boycott However the laws of a State are distinct for the reason that the State being sovereign, it uses its power to enforce them and compels the individuals to obey them and punishes in case of violation of any such law According to New Standard Dictionary of English Language, Law is an obligatory rule of action; specific., arule of conduct prescribed by the supreme Electronic copy available at: https://ssrn.com/abstract=2055906 power in a state; a legislative enactment; as the law of God and man.2 The following distribution of law is that made by Wharton in his law lexicon: Law Between God and Man Natural-Revealed Law between Man and Man National or Municipal- International Constitutional-Canon or EcclesiasticalCommon Law-Equity Public or criminal- Private or Civil.3 Funk and Wagnalls, Niew Standar Dictionary of English Langiage, Funk and Wagnalls Publishing Company, New York: 1963, p 1398 The first edition of this Dictionary was published in 1913 It means a year less than a century have passed but the glory and usefulness of this dictionary has shined more and more The reasons are many, of which one is authenticity of data [Justice Dr Munir A Mughal] Ibid p.1399 Electronic copy available at: https://ssrn.com/abstract=2055906 Law is not necessary to avoid mutual conflict or confrontation but it is equally necessary for mutual cooperation and social conveniences A Law works for a long time in a society that has in it the full capacity to fulfil the social and moral requirements A law that is not in harmony with the needs of the society or is outdated becomes of no use Consequently, it is amended by the competent legislature or repealed by a repealing enactment Electronic copy available at: https://ssrn.com/abstract=2055906 Definition4 of Law According to Aristotle5: Aristotle stated that “the rule of law is preferable to that of any individual.” This is because individuals possess flaws and could tailor government to their own individual interests, whereas the rule of law is objective [H]e who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild Definition is to gain clarity and precision regarding the thing defined Bryan A Garner, A Dictionary of Modern Legal Usage , 2nd ed New York: Oxford University Press, 2003, p 267 Aristotle was a Philosopher, born at Stagira, a Grecian colony in the Thracian peninsula Chalcidice, 384 B.C.; died at Chalcis, in Euboea, 322 B.C CATHOLIC ENCYCLOPEDIA: Aristotle Electronic copy available at: https://ssrn.com/abstract=2055906 beast, and passion perverts the minds of rulers, even when they are the best of men The law is reason unaffected by desire Rulers must be “the servants of the laws,” because “law is order, and good law is good order.”6 In the glossary of Aristotle’s terms, the word “nomos” is used for law.7 http://www.crf-usa.org/bill-of-rights-in-action/bria-26-1plato-and-aristotle-on-tyranny-and-the-rule-of-law.html Glossary of Aristotelian Terms          action: praxis citizen: politês city-state: polis (also ‘city’ or ‘state’) community: koinônia constitution: politeia (also ‘regime’) free: eleutheros good: agathos happiness: eudaimonia happy: eudaimôn Electronic copy available at: https://ssrn.com/abstract=2055906 According to: A law is generally collection of such general rules and regulations which has at its back a political support.8 According to Austin:                    justice: dikaiosunê law: nomos lawgiver: nomothetês master: despotês nature: phusis noble: kalon (also ‘beautiful’ or ‘fine’) political: politikos (of, or pertaining to, the polis) political science: politikê epistêmê politician: politikos (also ‘statesman’) practical: praktikos practical wisdom: phronêsis revolution: metabolê (also ‘change’) right: exousia (also ‘liberty’) ruler: archôn self-sufficient: autarkês sovereign: kurios virtue: aretê (also ‘excellence’) without qualification: haplôs (also ‘absolute’) without authority: akuron Everyman’s Encyclopaedia, Vol.8, p.379, London: 1978 Electronic copy available at: https://ssrn.com/abstract=2055906 Law is the will of a sovereign.9 According to Curzon: Law is a set of regulation which is issued from a sovereign and its obedience is made binding on the subjects by the sovereign.10 Distinguishing between Law and Ethics Curzon said: Oluwaseun P Adeola in his article contributed to Hubpages has written: “Law has been defined by L.B Curzon as the written and unwritten body of rules largely derived from custom and formal enactment which are recognized as binding among those parsons who constitute a community or state, so that Siyasat-o-Riyasat, Faruq Najib Akhtar, Lahore: 1967, p 181 10 Jurisprudence, Curzon, London: 1979, p 27 Electronic copy available at: https://ssrn.com/abstract=2055906 they will be imposed upon and enforce among those persons by appropriate sanctions (p.209) it can be deduced from the definition of L.B Curzon that people within a sovereign geographical enclave, through legitimate government, impose set of rules upon themselves which must be strictly adhered to And failure to live, act and /or transact business on the basis of the recognized law will result into appropriate punishments Suffice to say, laws are not just suggestions and expectations but are requirements to behave in the stipulated ways As it is believed that government makes the enactment and rules they also see to ensuring that people live within the dictates of the law They achieve this by using, for example, the police force to enforce the recognized law of the land 10 Electronic copy available at: https://ssrn.com/abstract=2055906 LEGAL CONSEQUENCE OF OBEYING THE MESSENGER OF ALLAH (‫)ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬ In Surah al-Nisa Allah Almighty says: Indirect sources are Ijma`/‫اﺟﻤﺎع‬, Qanun Shura, Qanun Ahadith, Qanun Ijtihad, Qanun Fiqh, juristic laws, Istihsan, Masalih Mursalah, Court decisions and Istidlal Theories of Islamic law In Islam the theory of law is one and that is that it is the Holy Qur’an which is the Last Message of God sent to mankind It 51 Electronic copy available at: https://ssrn.com/abstract=2055906 is the first source of Islamic law.18 It is the basic and immutable law and is pristine pure and fully protected from all sorts of interpolations till the Last Day Allah Almighty has guaranteed its full protection as stated in the Holy Qur’an itself in Surah al-Hijr:         We have, without doubt, sent down the Message; and we will Assuredly guard it (from corruption) [15:9] It contains all those aspects which are necessary for the welfare, development 18 Mughal, Munir Ahmad, Islamic Perspective of Administration of Justice in Early Periods (October 23, 2011) Available at SSRN: http://ssrn.com/abstract=1948004 or http://dx.doi.org/10.2139/ssrn.1948004 52 Electronic copy available at: https://ssrn.com/abstract=2055906 and growth of mankind Its principles cover all times and all people Practical demonstration of the Holy Qur’an is present in the Sunnah, which consist of the sayings, practices and tacit approvals of the Messenger of Allah (‫)ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬ The Ahadith are the storage of all these Sunnahs Injunctions of Islam/‫ اﺣﮑﺎم اﺳﻼم‬are of two types, namely, the commandments called awamir/ ‫ اواﻣﺮ‬and prohibitions called nawahi/‫ ﻧﻮاﮨﯽ۔‬ These injunctions are present in the Holy Qur’an and Sunnah In Islam the theory of law is that the Real Supreme Sovereign is Allah Almighty Human beings have been given limited authority and to exercise that authority they are to consider it a trust from God 53 Electronic copy available at: https://ssrn.com/abstract=2055906 with full sense of accountability The most honoured among mankind is he who is the most God fearing and observes the rule of law which is the Shari`ah/‫ﺷﺮﯾﻌۃ‬ The main difference between Western Concept of Law and the Islamic Concept of Law is that Western law is human oriented while Islamic law is Divine law and all other laws in whatever form they may be must be Shari`ah Compliant and conforming to the spirit of the Shari`ah/‫ﺷﺮﯾﻌۃ‬ In West the human sovereign is answerable to none Tom Bingham, the author of the world famous book titled as “The Rule of Law”, paying tribute to Prof A.V Dicey examines the historical origins of the rule of law, says: 54 Electronic copy available at: https://ssrn.com/abstract=2055906 “Credit for coining the expression rule of law is usually given to Prof AV Dicey, the Vinerian Professor of English Law at Oxford, who used in his book An Introduction to the Study of the Law of the Constitution, published in 1985 The book made a great impression and ran to several editions before his death and some after But the point is fairly made that even if he coined the impression he did not invent the idea lying behind it One author has traced the idea back to Aristotle, who in a modern English Translation refers to the rule of law, although the passage more literally translated says: It is better for the law to rule than one of the citizens, and continues so even the guardians of the law are obeying the laws.”19 19 Aristotle’s Politics and Athenian Constitution, ed and trans John Warrington (J.M Dent, 1959), Book III, s 1287, p 97 55 Electronic copy available at: https://ssrn.com/abstract=2055906 In Islamic Law the human sovereign and all those vested with authority are answerable to God Almighty Western Law is secular Islamic law is blended with the spirit of Islam at all stages at all times The spirit of Islamic law at individual level is mentioned in the following glorious verses of Surah al-Saff of the Holy Qur’an :                    O ye who believe! Why say ye that which ye not? Grievously odious is it in the sight of Allah that ye say that which ye not 56 Electronic copy available at: https://ssrn.com/abstract=2055906 [61: & 3] The spirit of Islamic law at family level is mentioned in the following glorious verse of Surah al-Tahrim of the Holy Qur’an :                        O ye who believe! Save yourselves and your families from a Fire whose fuel is men and stones, over which are (appointed) angels stern (and) severe, 57 Electronic copy available at: https://ssrn.com/abstract=2055906 who flinch not (from executing) the commands they receive from Allah, but (precisely) what they are commanded [66:6] The spirit of Islam at State level is mentioned in the Holy Qur’an in the following glorious verse:                    (They are) those who, if we establish them In the land, establish regular prayer and give regular charity, enjoin the right and forbid wrong: with Allah rests the end (and decision) of (all) affairs [22:41] 58 Electronic copy available at: https://ssrn.com/abstract=2055906 Four schools of Islamic Jurisprudence have developed during the last 1400 years among the Ahl al-Sunnah walJama`ah.20 What is al-Fiqh? Imam Abu Hanifah21 stated: ‫ ﻣﻌﺮﻓۃ اﻟﻨﻔﺲ ﻣﺎ ﻟﮭﺎ و ﻣﺎ ﻋﻠﯿﮭﺎ‬:‫اﻟﻔﻘہ‬ Al-Fiqh is a person’s knowledge of his rights and obligations.22 20 Mughal, Munir Ahmad, Schools of Islamic Jurisprudence (January 31, 2012) Available at SSRN: http://ssrn.com/abstract=1996514 or http://dx.doi.org/10.2139/ssrn.1996514 21 Imam Abu Hnafah (d 150 AH) was the founderof the Hanafi School of Jurisprudence 22 Sadr al-Shari`ah/‫( ﺷﺮﯾﻌۃ‬d 747 AH) Al-Talwih fi Hall Jawamid al- Tanqih ,Karachi: 1979, p 22 59 Electronic copy available at: https://ssrn.com/abstract=2055906 Technical meaning of al-Fiqh: ‫اﻟﻌﻠﻢ ﺑﺎﻻﺣﮑﺎم اﻟﺸﺮﯾﻌۃ اﻟﻌﻤﻠﯿۃ اﻟﮑﻤﺘﺴﺒۃ ﻣﻦ ادﻟﺘﮩﺎ‬ ‫اﻟﺘﻔﺼﯿﻠﯿۃ‬ The knowledge of the legal rules, pertaining to conduct, that have been derived their specific evidences.23 Al-`Ilm bi’l-Ahkam has qualified the wide meaning and excluded from Fiqh all kinds of knowledge that not pertain to ahkam or rules This is further qualified by Shar`i and the meaning of fiqh is confined to the knowledge of the Shar`i Ahkam 23 This translation has been made by contemporary scholar Imran Ahsan Niyazi Theories of Islamic Law, IRI Press, Islamabad: 1991, p.22 He has explained that the usual translation was detailed proofs which was likely to confuise the readers It is the specif evidences that are referred to in the definition as distinguished from the genral evidences or the adillah ijmaliyah Ibid Foot note no at p 22 60 Electronic copy available at: https://ssrn.com/abstract=2055906 Distinction between Shar`i and Ghayr Shar`i Ahkam Shar`i Ahkam means legal rules that pertain to law Ghayr Shar`I Ahkam are of three types:  Rational like 2+2=4 or the rule that the sum is greater than its parts;  Perceived by Senses as the fire burns or the wood floats on water; and  Discovered through experience, like Aspirin cures headache What is the distinction between Shari`ah/‫ ﺷﺮﯾﻌۃ‬and Fiqh/‫?ﻓﻘہ‬ Shari`ah/‫ ﺷﺮﯾﻌۃ‬is the law itself while Fiqh is a knowledge of that law _its jurisprudence 61 Electronic copy available at: https://ssrn.com/abstract=2055906 Distinction between the Qur’an and the Sunnah (the two primary sources) and the Qiyas/‫ﻗﯾﺎس‬: Analogy is used to discover the law (from the Qur’an and Sunnah) a hukm/‫ ﺣﮑﻢ‬of Allah Qiyas/‫ ﻗﯿﺎس‬is thus merely a method of deisovering a law laid down in the Holy Qur’an and Sunnah and the law is actually being proved from the two primary sources What are Usul-Fiqh? ‫ھﯽ اﻟﻘﻮاﻋﺪ اﻟﺘﯽ ﯾﺘﻮﺳﻞ ﺑﮩﺎ اﻟﻤﺠﺘﮩﺪاﻟﯽ ٰ اﻻﺣﮑﺎم‬ ‫اﻟﺸﺮﻋﯿۃ ﻣﻦ اﻻدﻟۃ اﻟﺘﻔﺼﯿﻠﯿۃ‬ 62 Electronic copy available at: https://ssrn.com/abstract=2055906 Those are the principles by the use of which the mujtahid arrives at the legal rules through the specific evidences Similarity between Secular and Islamic theory of law: Legal Theory in secular or positive law tells how judges discover and apply the law Legal Theory in Islamic law tells how Muslim jurists discover law from the Holy Qur’an and Sunnah and apply it to the set of facts facing them Dissimilarity between Secular and Islamic theory of Law: Western legal theory focuses on what the judge actually does 63 Electronic copy available at: https://ssrn.com/abstract=2055906 Islamic legal theory focuses on what the should Islamic legal theory therefore poses the question: How should the judge should discover and apply the law? In other words, a knowledge of legal theory is a prerequisite in Islam for the ability to derive the law, while it is not so in the secular or positive law What is the essence of social contract within a Muslim Community? The Holy Qur’an, in Surah al-An`am says: 64 Electronic copy available at: https://ssrn.com/abstract=2055906                            Say: "For me, I (work) on a Clear Sign from My Lord, but ye reject Him what ye would see hastened, is not In My power the command rests with none but Allah He declares the truth, and He is the best of judges." [6:57] 65 Electronic copy available at: https://ssrn.com/abstract=2055906 ... scientific law, Contractual law, Customary law, Law of Art; 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... copy available at: https://ssrn.com/abstract=2055906 Kinds of Law as stated by Salmond Commanding Law, Natural or Moral Law, International law Domestic law or the law of the land, Physical or... enactment; as the law of God and man.2 The following distribution of law is that made by Wharton in his law lexicon: Law Between God and Man Natural-Revealed Law between Man and Man National