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ISLAMIC JURISPRUDENCE

Pre-mid Assignment 1

Fatima Tariq

Ms. Sahreem Rahmat Ullah

February 7, 2018.

Question

A comparative study on Islamic jurisprudence and western jurisprudence.

Answer

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 defined, its sources are mentioned, and its theories

are traced. After doing that, similarities and dissimilarities between the things compared are pointed

out.

In this paper at hand, an effort has been made to discuss all these matters concerning

Western jurisprudence and Islamic jurisprudence as briefly as possible.

Western Jurisprudence: What does it Mean?

Western Jurisprudence is basically meant common law and civil jurisprudence. Western

Jurisprudence has basically emerged from Roman law. Hence the English term is based on the

Latin word jurisprudential; Juris is the genitive form of jus meaning “law”, and Prudentia means

“knowledge”. The most prevalent form of jurisprudence seeks to analyze, explain, classify, and

criticize entire bodies of law, ranging from contract to tort to constitutional law.
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Islamic Jurisprudence: What does it Mean?

Islamic jurisprudence is one of the sciences that glorify the Islamic civilization. This

jurisprudential system started with the proclamation to prophethood. Fiqh is Islamic jurisprudence,

meaning "deep understanding". Technically it refers to the body of Islamic law extracted from

detailed Islamic sources (which are studied in the principles of Islamic jurisprudence) and the

process of gaining knowledge of Islam through jurisprudence. Principles of Islamic jurisprudence

otherwise known as Uṣūl al-fiqh. It is the study and critical analysis of the origins, sources, and

principles upon which Islamic jurisprudence is based.

Traditionally four main sources [Qur’an, Sunnah, consensus (Ijma), analogical reason

(Qiyas)] are analysed along with a number of secondary sources and principles.

Islamic Jurisprudence and Western Jurisprudence: A Comparative Study

Both the western and Islamic jurisprudence have got similarities and differences.

In Western Jurisprudence, we discussed the natural law. It is the law that according to the

divine/ God law. St. Augustine explains that if the human law was contrary to the law of God, it

was to be disregard. It means that the divine law is regarded as the principle of society.

Similarly, in study of Islamic Jurisprudence, we came to know that law is created by Allah.

It is stated in the first pillars of islam which is belief in Allah. It means that the muslim has to belief

in the oneness of Allah and obey His law.

Also there is a similar concept of punishment of murder prescribed in western and islamic

jurisprudence. In western jurisprudence, we study the law of retaliation which is “An eye for an
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eye and a tooth for a tooth”. It is said to show that you believe if someone does something wrong,

that person should be punished by having the same thing done to them.

Likewise, in Islamic jurisprudence, there is also a law of retaliation. In Surah Baqarah, verse 178,

Allah Almighty said;

ِ ‫ﺎص ِﻓﻰ ۡٱﻟ َﻘ ۡﺘﻠَﻰ ۖ ۡٱﻟ ُﺤﺮ ِﺑ ۡﭑﻟ ُﺤﺮ َو ۡٱﻟﻌَ ۡﺒﺪُ ِﺑ ۡﭑﻟﻌَ ۡﺒ ِﺪ َو ۡٱﻻﻧﺜَ ٰﻰ ِﺑ ۡﭑﻻﻧﺜَ ٰﻰ ۚ َﻓ َﻤ ۡﻦ ﻋُ ِﻔ َﻰ ﻟَﻪُ ۥ ِﻣ ۡﻦ ا ِﺧ‬
‫ﻴﻪ‬ ُ ‫ﺐ ﻋَ ﻠَ ۡﻴﻜُ ُﻢ ۡٱﻟ ِﻘ َﺼ‬ ْ ‫اﻣﻨ‬
َ ‫ُﻮا ﻛُ ِﺘ‬ َ ‫ﻳَ ٰ ٓـﺎﻳ َﮩﺎ ٱﻟ ِﺬ‬
َ ‫ﻳﻦ َء‬

‫ﻴﻢ‬ ٌ ‫ٱﻋﺘَ ﺪَ ٰى ﺑ َۡﻌﺪَ َذٲ ِﻟ َﻚ َﻓﻠَﻪُ ۥ ﻋَ َﺬ‬

ٌ ‫اب ا ِﻟ‬ ٌ ‫آء اﻟَ ۡﻴ ِﻪ ِﺑﺎ ۡﺣ َﺴـ ٍٰﻦ ۗ َذٲ ِﻟ َﻚ َﺗ ۡﺨ ِﻔ‬
ۡ ‫ﻴﻒ ﻣﻦ رﺑﻜُ ۡﻢ َو َر ۡﺣ َﻤ ٌﺔ ۗ َﻓ َﻤ ِﻦ‬ ٌ َ‫وف َواد‬ ُ ۢ ‫َﺷ ۡﻰ ٌء َﻓﭑﺗ َﺒ‬
ِ ُ‫ﺎع ِﺑ ۡﭑﻟ َﻤ ۡﻌﺮ‬

“O you who have believed, prescribed for you is legal retribution for those murdered - the free for

the free, the slave for the slave, and the female for the female . But whoever overlooks from his

brother anything, then there should be a suitable follow-up and payment to him with good conduct.

This is an alleviation from your Lord and a mercy . But whoever transgresses after that will have a

painful punishment.”

The notion and ideology of Sovereignty plays an integral role in the affairs of state. The

way Islam explains the concept of sovereignty, it is completely different from the western ideas and

notion of sovereignty. Sovereignty is the basis of the state. Sovereignty means supreme power of

the State. It is indivisible, inalienable, universal, permanent and exclusive. Sovereign also means

above or one who is superior to others. According to the western jurisprudence, sovereignty may

be vested in a determinate human superior, a body of persons or various groups of the entire

community while Islamic concept of sovereignty deals with attributes of Allah Almighty. This

ideology of sovereignty is taken from the Holy Quran and Sunnah of the Hazrat Muhammad ‫ﷺ‬.

This contention may be proved from the following verse of quran.

“Unto Him belongs the sovereignty of the heavens and the earth”. (Surah Al-Furqan, verse 2)
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When we study jurisprudence, we observe the line of demarcation in banking system of

islamic law and western law. The key difference is that functions and operating modes of Islamic

banks are based on the principles of Islamic Shariah while the functions and operating modes of

conventional banks are based on fully manmade principles (largely capitalism theory).

I think the biggest difference is how the bank is paid. Western banks charge interest. So if

you borrow Rs.100 for one year and return with 10% interest, the amount becomes Rs 110 at the

end of the year. In Islamic banking they transform interest in other things, like flat-rate processing,

structuring fees, etc. In conventional banking, interest is charged even in case the organization

suffers losses by using bank funds. Therefore, it is not based on profit and loss sharing. While

islamic bank operates on the basis of profit and loss sharing. In case, the businessman has suffered

losses, the bank will share these losses based on the mode of finance used (Mudarabah1,

Musharakah2).

Family Laws:-

● According to Islamic jurisprudence, marriage is expected from all men and women.

Homosexual practice is a capital crime. While, according to western jurisprudence,

marriage is a personal choice. Homosexual relations are freely allowed in most of

the western states.

● In Shari’ah law, no minimum age of consent to marriage for girls exists. While in

English law, marriage to a girl under the age of 16, if consummated, amounts to

rape. Such a marriage will also be void.

1 Murabaha is an Islamic financing structure in which an intermediary buys a property with free and clear title. Murabaha is not an interest-bearing
loan, which is considered riba (or excess), and is an acceptable form of credit sale under Sharia.

2 Musharakah is a joint enterprise or partnership structure with profit/loss sharing implications that is used in Islamic finance instead of
interest-bearing loans . Musharakah allows each party involved in a business to share in the profits and risks.
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● Polygamy is expected, men may marry up to 4 free women in Islam. While laws of

most western countries do not recognize polygamous marriages, and consider

bigamy3 a crime. Several countries also prohibit people from living a polygamous

lifestyle.

● In Islamic law, the husband has the right to divorce his wife for any reason by

simply pronouncing the divorce three times, whereas the wife must apply to the

court for a divorce. While in English jurisprudence, a husband or a wife can divorce

each other only on specified grounds of a serious nature.

● In marriages in Islam, dower4 rules vary and on divorce its recipient depends on

whether the marriage was dissolved prior to consummation, after it, prior to the

birth of children or afterwards and so on. There is no such thing as a dower in

English Law.

Inheritance must be apportioned as per Islamic Jurisprudence based on the Qur’an and

Sunnah, in which a male’s share is double that of a female’s, and none is to be given to an

unbeliever (kaffir) even if she would otherwise be the most legitimately entitled. The deceased’s

estate is divided in accordance with his last valid will; or according to their statutory law, they

bequeath wealth irrespective of religion and gender.

There is also a difference in dietary laws in Islamic and western law. The consumption and

trading in, or retail of liquor are prohibited and subject to Hudood punishment.5 Pork must not be

3 the offence of marrying someone while already married to another person.

4 Mahr is a mandatory payment, in the form of money or possessions paid or promised to be paid by the groom to the bride at the time of marriage,

that legally becomes her property.

5 Punished by 40 to 80 lashes, depending on the legal school.

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consumed by Muslims. While there is no such rules in western law. There is no dietary rules for

citizens, but food sold must be fit for human consumption and must be labelled with its ingredients,

nutritional value and best-before date.

Scope of alteration and bring changes in laws is also varies from western to islamic

jurisprudence. In study of western jurisprudence, the statutes can be challenged although it is not

an easy process, it is still in principle legally permitted. Furthermore the constitution itself can be

amended. Not only that but social attitudes and moral values of a society change over time, hence,

laws based upon such values also change. In Sharia law since God is considered as the Lawgiver

and the moral anchor, His word is considered final and as such beyond contest.6

Conclusion

This study is completely based on a comparative analysis between Islamic Jurisprudence

and Western Jurisprudence. In this study, it was intended to focus how Western Jurisprudence and

Islamic Jurisprudence are distinguished. Islamic law has no parallel in history. One reason why

islamic law has been so successful is that it deals with every aspect of life, it is the complete code

of life. Besides Western Jurisprudence has followed the norms, ethics, methodologies in a less

broader way.

6 I ndeed, it is We who sent down the Qur'an and indeed, We will be its guardian. Surah Al-Hijr [15:9]
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Works Cited

★ Mughal, Munir Ahmad. “Status of Woman in Western Jurisprudence and Islamic

Jurisprudence.” SSRN Electronic Journal n. pag. Web.

★ https://www.academia.edu/

★ http://www.selfgrowth.com/articles/islamic-concept-of-sovereignty-and-western-concept

★ Mahajan, Vidya Dhar. Jurisprudence and Legal Theory. Eastern Book Co., 2010.