ISLAMIC LAWS CONVENTIONAL WESTERN LAW 1

Islamic Laws Conventional Western Laws

Gary Paul

King Graduate School Monroe College

KG 601: Graduate Research and Critical Analysis

Prof- John Perra

9-20-2020
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Introduction

Throughout history, several civilizations have practiced diverse customs, norms, moral

values, and legal codes to regulate society. In this respect, one of the important aspects, which

differentiate these civilizations is the uniqueness of the legal system. Nonetheless, the fact cannot

be denied that the legal system played an important role in the regulation of societies both in

ancient times and in the modern era. Hence, in the contemporary era, the legal systems in the

world are divided into five major categories. First, the English common law system, which is

applicable in England, the United States, and commonwealth states. Second, the civil legal

system, which mainly originated from the Spanish Empire and is applicable in the European

continent and their former colonies in Latin America. Third, the customary legal system, which

is prevailing in China, Africa, and various parts of Asia. Fourth, the Islamic legal system is often

referred to as Shariah or fiqa, which is prevailing in the Muslim world, especially the Middle

East. Fifth, the mixed legal system, which is prevailing in several Muslim countries such as

Indonesia, Pakistan, and Malaysia. However, the fact cannot be denied that the origin of the

common law, civil law, and customary law can be traced to the western civilization. Likewise,

the origin of the Islamic law system can be traced to the Islamic civilization [ CITATION Kun10 \l

1033 ]. In this respect, the difference between Islamic laws and conventional Western laws can be

understood in the following way.

Islamic legal System

The Islamic legal system is often known as Shariah, which means the path leading to the

watering-place, which defines the Muslim societies' social, political, and economic orders.

Moreover, unlike conventional western law, Shariah is a divine law based on Allah's commands.
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However, just the conventional Western laws, Islamic law (Shariah) is also divided into five

major branches (furu): worship (Ibadat), criminal law (ta’zir and hudud), family, and personal

law (ahwal shakhsiyya), and contractual law (muʿamalat). Moreover, in classical form, Islamic

law differs from conventional western laws in three fundamental contexts. First, in terms of

scope, Islamic law (shariah) is much wider compared to conventional western laws because its

scope is not just limited to an individual’s relationship with a neighbor but with an individual’s

conscience too. Hence, from the standpoint of the Islamic laws, Muslims are obliged to uphold

certain ritual practices such as prayer (salat), fasting (sawm), almsgiving (zakat), and pilgrimage

to Mecca (hajj), which are the integral parts of the Shariah law. Moreover, the obligatory

practice of these rituals is clearly mentioned in the first chapters of legal documents. Similarly, in

the wider Islamic perspective, the obligatory practice of these rituals are classified as

praiseworthy acts ( Mandub), which are essential to perform to receive Allah’s favor.

On the contrary, the second principle distinction between Islamic law (Shariah) and

conventional western law is based on divine will. In contrast, the conventional western laws are

based on positivism, mainly human reasoning and rationality, while Islamic Shariah law is

derived from the divine commands. Unlike conventional western law, the image of Islamic

shariah law is an unchanging continuity, which upholds the divine truth and hence, is mostly a

ritual law. Currently, there are three major schools of thought in Islam i:e Hanafi (the followers

of Imam Abu Hanifa), Shafi (the followers of Imam Shafi), and Al- Maliki (the followers of

Imam Malik). In this respect, the interpretation of divine revelation differs across the three major

schools of thought in Islam. Moreover, in the premodern era, the Islamic scholars (Ulema) had a

monopoly over the interpretation of shariah laws, which has changed since the 19 th century.

Nonetheless, the fact cannot be denied that it is more rigid when it comes to the nature of Shariah
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than conventional western law[ CITATION Bad78 \l 1033 ]. However, just like the Shariah law,

conventional western laws also have distinctive features, which can be understood in the

following way.

Conventional Western Law

Conventional western law consists of applicable rules, statutes, and legislative codes.

However, according to scholars, legislation is the basis of conventional western law. In this

respect, when it comes it conventional western law, it has three major principle aspects. First,

unlike Shariah law, conventional western law is based on analogical reasoning, which mainly

functions through a case-based system of law. Second, conventional western law is based on the

precedent's hierarchical notion, which means the court’s decisions are central to conventional

western law. Third, conventional western law consists of distinctive institutions such as estoppel,

agency, tort law, and trust.

On the contrary, just like the Shariah law, the conventional western law is also divided

into six major branches i:e the common law, civil law, statutory law, criminal law,

Administrative law, and equity law. Moreover, the genesis of conventional western law can be

traced to the Graeco-Roman legal traditions. In this respect, conventional western law represents

Western civilization's collective legal heritage ranging from ethical values, social norms,

traditional customs, political systems, and belief systems. Nonetheless, unlike the Shariah law, it

is the language and symbols which determine the origin and relevance of the conventional

western laws[ CITATION Kun10 \l 1033 ]. In contrast to the above, it can be said that the

conventional western law is deeply rooted in the cultural history of Europe.

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References

Badr, G. M. (1978). Islamic Law: Its Relation to Other Legal Systems. The American Journal of

Comparative Law, 26(2), 187-198. Retrieved from https://www.jstor.org/stable/839667

Kunhibava, S., & Shanmugam, B. (2010). Sharī'ah and Conventional Law Objections to

Derivatives: A Comparison. Arab Law Quarterly, 24(4), 319-360. Retrieved from

https://www.jstor.org/stable/27896102