MATRIC NO: LAW/2015/161 LEVEL :500

COURSE TITLE: JURISPRUDENCE COURSE CODE: BUL501

JURISPRUDENCE ASSIGNMENT

QUESTION ONE

“In your private time, Compile proverbs which have Juristic elements. At the appropriate time, we will ask for the outcome of
the research”

Introduction

The origins of proverbas a mode of thought among the Yoruba of the southern Western in Nigeria are not easy to ascertain. As
with other people's of the world ( though proverbs are universal phenomenon) proverbs would appear to have evolved with the
growth and development of their society, reflecting,diverse in aspect of it's culture. Some proverbs have been decidedly
historical in origins like to those relating to the civil ears of the 19th century in the yorubaland or the presence whiteman in the
colonial times.whether the origins of Proverbs have served and continue to serve the Yoruba as charter of social and ethical
norms in humans, interaction. Law and juristic in Yoruba traditional socio-political system, proverbs assume a functional role
as the vehicle of juristic thought and therefore,a vital aid to the judicial administration. One Yoruba proverbs explicitly makes
point that

"Owe l'esin Oro

Bi oro ba Sonu, owe laa fi wa

I.e proverbs are the vehicle of thought when the truth is elusive, it's proverbs that we employ to discover it."

However, law in the traditional Yoruba society cannot be divorce from the moral milieus which it operated. It operated in the
socio-cultural atmosphere dominated by a belief in the existence of supernatural powersabd social structure controlled by a
hierarchy of authorities; God Himself,Olodumare has implanted in man ifa aya ( Oracle of heart)that guides him and
determine his ethical life. The key to lifee to attempt to live in complete harmony with Force that govern man's universe
through good and moral character.

Yoruba divination verse or what Williams Bacon has called "unwritten scripture" stresses different attributes of "iwapele"
good character. They include kindness, hospitality and unselfishness, consideration for others truthfulness and rectitude

" Otito side nkan ni kii Muni ku

Sugbon ti Muni hi ewu re re"

English meaning

"It's only rectitude that prevents one from dying young and . enable s one to grow exceedingly"

However it's clear from these and similar proverbs that extra Leah consideration maybe introduce into the process of the
settlement of conflict at hand. Such consideration may include the relative abae of the disputants their status in life, their
respective mode of behavior at the time of the dispute and so on. Consideration that would be ruled out as irrelevant in a legal
setting based on the Western European system of Justice.
Similar in their juristic import are proverbs which enjoin largeness of mind especially on the part of Superior of two disputants
on account of close blood relative or physical proximity. For example

" Bi a ba or ka b'egi a o be eniyan" ( if we insist on cutting the tree, we would cut human beings)

" Bi a ba ni ka je ekuru ko tan, A ki I gbon owo re sawo ( if we intend to eat up the ekuru meal, we do not drop the crums back
into the plate).

Another concern for social cohesion in Yoruba juristic thought would also explain the principle of collectivity in the definition
of what constitutes legal personality. The legal person in English law, for instance is an individual personality or a body
corporate. In Yoruba juristic thought as in the traditional legal system of most other African people's, the legal personality
may transcend the individual. John Mbiti makes the to point succinctly:

"The guilt of one person involves hai entire house hold, including his animals and property.

The pollution of the individual is corporately the pollution of those related to him whether

they're human beings, animals or material goods".

Hence in Yoruba philosophy of law

" Isu eni no ki owo eni no epo" ( it's a man's yam which pushes his hand into the palm oil).

A man may suffer indignity or even incur legal penalty on account of a relation involved in a situation.

"Bi oju ko t'ole, oju n ti ara Ile re" (if the thief is unaahmy of his misdeeds his relations are feeling uncomfortable).

Collective responsibility imposes collective obligation to ensure harmonious relations in the community

" Bi ara Ile eni n he kokork buruku ti a lot ba tete wi fun un, ere buru re ko ni he ki a sun l' oru"

(If one kinsman is not warned in time when he eat poisonous insect, the resulting itch will keep the whole family awake)

It would seem that there are sayings which run counter to his notion of the corporate in matters of crime and punishment

"Ika to o we ni oba n ge" ( the finger that offend is that which the king will cut)

"Nitori ti se a ba se ni a fi loruko" ( we bear names for purpose of identification in case we would comit crime).

"Atari ajanaku ki se eru omode”-(the head of an elephant cannot be carried by a child). The juristic element stresses
that elders are the custodian of the justice system which was deeply rooted

In the traditions and customs of the Yoruba people,hence they occupied the seat of power

“Ogbon ologbon ni ki i je ki a pe agbalagba ni were” –( one who seeks counsel does not refer to an elderly as
mad)”. The juristic element means the philosophy of Yoruba that it is very important to seek counsel from others.
In doing so one is not likely to make wrong decisions.

“Ibi ko ju ibi, bi a se bi eru, ni a bi omo” –( Birth is rated as same, a slave is born the same way a free man is born).
(The proverbs advocate justice for all irrespective of one’s position).
Igbo proverbs.

“Ohwo r’owha r’ uyovwi r ko’ rhie nu,

Ode se ohwo r eton yovwi r oyen

Ore ton yovwi ro ye na.k odje”- ( if a man with a shaven head invites another with hair on his head to play on a
heap of sand, the latter often takes to his heels). The juristic element implies that when a worthless man invites
another who has integrity to a dirty deal the latter often turns down such invitation because he does not want his
name to be dragged into the mud.

Ohwo ghwru she’ ir, aguono she re-e” – (If a man did not get lost as farther as people envisaged there is no need for
a search party to go farther). The juristic element means a dispute that has not degenerated into violence requires a
speedy resolution.

“Avw bovo vwo hwomo, ye, avwo’bovo vwo se rehor”-(One should use one hand to spank a child and the other to
draw the child closer to one’s self). The juristic element is used to illustrate the need to temper justice with mercy.

English proverbs (maxims)

“When the reason of a rule ceases, so should the rule itself.”

“He who consents to an act is not wronged by it.” – It is a common law doctrine which states that if someone
willingly places themselves in a position where harm might result knowing thatsome degree of harm might result
they are not able to bring a claim against the other party in tort or delict.

“No one should suffer by the act of another.”

“For every wrong there is a remedy.”

In conclusion, Under the Yoruba universal principle of Audi alteram partem( hear the other side) which is so
enshrined in Yoruba juristic thought, must be viewed from the same perspective of settlement and communal
cohesion as the primary objective.

"Agbejo enikan daa, agba osika ( He who passes judgment on the bases of one sided evidence is wicked)

"T'oju ba k'oju aala a to ( when eyes ball meet eyes ball dispute about the farm boundary will be resolved)

" A ki fa ori leyin olori" ( you cannot shave a man's head in his absence)

The principle is carried out forth little

"Kini igun se to obo ko se? Igun pa l' ori, obo pa n'idi

( What has the vulture done that the monkey has not done? The vulture is vaid headed; the monkey's bottom is similar
hairless).
Question 2

2. _"We are giving you another assignment to - Look critically into Islamic Jurisprudence, and try to see whether there are
lessons for mainstream western jurisprudence that you can get from Islamic Jurisprudence"_

Introduction

In modern time the science is developing, at the same time law is developing to fulfill the demand of people. In various time
various people are occurring different types of crimes. Islamic Jurisprudence has played the important key role for the
development and guidelines of mankind. However due to some technical changes of the society, market policy, property,
cultural affairs and others Western Jurisprudence has some important contribution over Islamic Jurisprudence by which we are
in a reasonable position all the way through the whole world. In this paper the attempt has been taken to focus the important
field of these, by which Western Jurisprudence has played role over Islamic Jurisprudence.

What is Islamic Jurisprudence

The term Islamic jurisprudence may be defined as a process by means of which jurists derive sets guidelines, rules and
regulations (the Shari'ah) from the principles of the Qur'an and the Sunnah. Over the centuries, these have been formulated
and elaborated upon by successive generations of learned jurists, through interpretation, analogy, consensus and disciplined
research.While the principles of the Qur'an and the Sunnah are permanent, it is the nature of Islamic jurisprudence to facilitate
for human beings the application of those principles to their activities and dealings.The universality and permanence of Islam
as a civilisation are intrinsically linked to the fact that the Qur'an and the Sunnah have introduced general principles and
guidelines. These give Muslims the opportunity to develop practical solutions in order to regulate their continuous changing
environment. Besides the Qur'an and the Sunnah, the sources of law in Islam are qiyas (analogy), ijma' (consensus) and ijtihad
(disciplined, academic research).

However there are different schools of thought under the Islamic jurisprudence

The schools originated in different places and it had some impact on their decisions and methods.In the early Islamic periods
the Governors would appoint qadis to judge the subjects of their newly acquired territories. They had to base their decisions
on the Qur'an and act according to what they knew to be the Sunnah (sayings, teachings and practices of the Prophet
Muhammad), but when none of these sources were available, they had to judge themselves, whatever seemed right to them
personally. This usually included considerations of what was customary in the area. Judgment based on own opinion became
common practice of the early jurists, and a system of logic to support the decisions was being formed.

There are different approaches to the methodology used in fiqh to derive sharia from the Islamic sources. The main
methodologies are:

The four classical Sunni schools are, in chronological order: the Hanafi school, the Maliki school, the Shafi'i school and the
Hanbali school. They represent the generally accepted Sunni authority for Islamic jurisprudence.

• Other schools are the Zaidi, Jafari, Zahiri, Sufian Al'thawree, Sufian bin O'yayna, Layth bin Sa'ad, Tabari and Qurtubi.

• Jafari fiqh, or the Shi'ah fiqh

The four classical schools of Sunni Islam

The four schools (or Mahdab) of Sunni Islam are each named by students of the classical jurist who taught them. The Sunni
schools (and where they are commonly found) are:

 Hanafi (Turkey, Pakistan, the Balkans, Central Asia, Indian subcontinent, Afghanistan, China and Egypt)
 Maliki (North Africa, the Muslim areas of West Africa, and several of the Arab states of the Persian Gulf)
 Shafi'i (Arabia, Indonesia, Malaysia, Maldives, Egypt, Somalia, Eritrea, Ethiopia, Yemen and southern parts of India)
 Hanbali (Arabia)
The Hanafi school was the earliest founded under the jurist Imam Abu Hanifa (700-768), whose real name was
Nu'man ibn Thabit, was born in the city of Kufa (modern day Iraq).The Hanafi school based its rulings largely on the
results of logic deduction of its scholars.
The Maliki school was founded under Imam Malik (713-797), whose real name was Abu Abdullah Malik bin Anas,
in Madinah which reflects the origin in its decisions too. The Maliki school ruled heavily in favour of the practice of
the local community of Madinah, where the immediate descendants of the Prophet Muhammad's followers lived.
The Shafi'i school was founded under Imam Ash-Shafi'i ((767-820) who was the first one to systematise Islamic law.
Originally, he studied both in Iraq and in Madinah, but disagreed with the methodology of those older schools, in
favour of the Traditionists, but did not fully accept their ideas either. In his tractate, the "Risala", balancing the two
trends, he laid down the sources of Law, Usul al-Fiqh and his system had become the basis of Islamic jurisprudence
that was subsequently used by all the schools. He fixed the four components (in order of priority) to be:
A. The Qur'an
B. The Sunnah of the Prophet Muhammad
C. Ijma (consensus of the Umma - Muslim community)
D. Qiyas, (reasoning by analogy), but also istihsan.
The Hanbali school was founded under Imam Ahmad Ibn Hanbal (781-856), who had followed Shafi'i school method
with ever greater emphasis on the ahadith, avoiding reasoning as far as possible, but not completely denying it. The
difference between the schools is primarily in the
The school of Shi'ah Islam: The Jaferi or Ja'fari school (Iran, Iraq, Azerbaijan, Lebanon, Bahrain, Pakistan, India and
parts of Afghanistan and Saudi Arabia) is associated with Shi'ah Islam. Though the Shi'ah Imamia is also called
Jafariah, this does not mean that the sole source of the Shi'ah Fiqh is Imam Jafar (700-768). It is mixed with others.
The Jafariah Madhab is composed of Fiqh from other people such as Qumi, Tousi and Qulani.
Imam Jafar also made great contributions to Fiqh and Hadith. The Fiqh of Imam Jafar is considered to be one of the
Fiqh from the Sunnah.
The fatwas, or time and space bound rulings of early jurists, are taken rather more seriously in this school, due to the
more hierarchical structure of Shi'ah Islam, which is ruled by the Imams. But they are also more flexible, in that every
jurist has considerable power to alter a decision according to his opinion. The Jafari school uses 'aql "intellect" instead
of qiyas in the Sunni schools, when establishing Islamic laws.
SOURCES OF ISLAMIC JURISPRUDENCE
THE QURAN

The Qur'an is the first and most important source of Islamic law. Believed to be the direct word of God as revealed to
Muhammad through angel Gabriel in Mecca and Medina , the scripture specifies the moral, philosophical, social, political and
economic basis on which a society should be constructed. The verses revealed in Mecca deal with philosophical and
theological issues, whereas those revealed in Medina are concerned with socio-economic laws. The Qur'an was written and
preserved during the life of Muhammad, and compiled soon after his death. The verses of the Qur'an are categorized into three
fields: "science of speculative theology", " ethical principles" and "rules of human conduct". The third category is directly
concerned with Islamic legal matters which contains about five hundred verses or one thirteenth of it. The task of interpreting
the Qur'an has led to various opinions and judgments. The interpretations of the verses by Muhammad's companions for
Sunnis and Imams for Shias are considered the most authentic, since they knew why, where and on what occasion each verse
was revealed.

SUNNAH

The Sunnah is the next important source, and is commonly defined as "the traditions and customs of Muhammad" or "the
words, actions and silent assertions of him". It includes the everyday sayings and utterances of Muhammad, his acts, his tacit
consent, and acknowledgments of statements and activities. According to Shi'ite jurists, the sunnah also includes the words,
deeds and acknowledgments of the twelve Imams and Fatimah, Muhammad's daughter, who are believed to be infallible. In
Islamic jurisprudence, the Qur'an contains many rules for the behavior expected of Muslims but there are no specific Qur'anic
rules on many religious and practical matters. Muslims believe that they can look at the way of life, or sunnah, of Muhammad
and his companions to discover what to imitate and what to avoid. Much of the sunnah is recorded in the Hadith. Initially,
Muhammad had instructed his followers not to write down his acts, so they may not confuse it with the Qur'an. However, he
did ask his followers to disseminate his sayings orally. As long as he was alive, any doubtful record could be confirmed as
true or false by simply asking him. His death, however, gave rise to confusion over Muhammad's conduct. Thus the Hadith
were established. Due to problems of authenticity, the science of Hadith (Arabic: 'Ulum al-hadith) is established. It is a
method of textual criticism developed by early Muslim scholars in determining the veracity of reports attributed to
Muhammad. This is achieved by analyzing the text of the report, the scale of the report's transmission, the routes through
which the report was transmitted, and the individual narrators involved in its transmission. On the basis of these criteria,
various Hadith.

IJMA

There are various views on ijma' among Muslims. Sunni jurists consider ijma' as a source, in matters of legislation, as
important as the Qur'an and Sunnah. Shiite jurists, however, consider ijma' as source of secondary importance, and a source
that is, unlike the Qur'an and Sunnah, not free from error. Ijma'was always used to refer to agreement reached in the past,
either remote or near. Amongst the Sunni jurists there is diversity on who is eligible to participate in ijma'.

QIYAS

As a juristic term Qiyas is the extension of a Shariah ruling from an original case to a new case because of the equivalence of
the causes underlying them (lila).There are specific guidelines and requirements for Qiyas explained in the books of Usul al
Fiqh. One such guideline is that there should be no existing ruling from the Quran, Sunnah, and Ijma as Sahabah for the new
case.Some of the other requirements for Qiyas are that the original ruling has to be fromQuran, Sunnah, and Ijma as Sahabah,
not from another Qiyas. In addition, the texts of the Quran, Sunnah, and Ijma as Sahabah must contain the justification for the
ruling. We cannot use our Aql (intellect) to come up with a cause (lila).

NB: To the part of the questions to know whether there is a lesson for mainstream Western Jurisprudence you can get
from Islamic Jurisprudence
Western Jurisprudence:
Western Jurisprudence is basically meant common law and civil jurisprudence. Both the above two derived in western
countries these two systems are still the legal system of every western countries ever some, African and Latin American
countries. Western jurisprudence, concurrence (also simultaneity) is the apparent need to prove the simultaneous occurrence
of both actus reus (guilty action) and mens rea (guilty mind) to constitute a crime; except in crimes of strict liability. In theory,
if the actus reus does not hold concurrence in point of time with the mens rea then no crime has been committed. The fact that
Islamic Jurisprudence originated from divine laws, almost in the sequence of social needs and changes. It has some
important role for development and guidelines of mankind. In this paper, attempts will be made to be acquainted with the
influence of western jurisprudence over Islamic 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 jusmeaning “law”, and
Prudentia means “knowledge”. The word is first attested in English in 1628, at a time when the word prudence had the now
obsolete meaning of “knowledge of or skill in a matter”. The word may have come via the French jurisprudence, which is
attested earlier.The most prevalent form of jurisprudenceseeks to analyze, explain, classify, and criticize entire bodies of law,
ranging from contract to Tort to Constitutional Law. Legal encyclopedias, law reviews, and law school textbooks frequently contain
this type of jurisprudential scholarship.Western law refers to the legal traditions of Western culture. Western culture has an idea of
the importance of law which has its roots in both Roman law and the Bible. As Western culture has a Greece-Roman Classical and
Renaissance cultural influence, so does its legal systems.From the New Year, the Law English will introduce you the history of the
western jurisprudence. As is known to all, jurisprudence is the basic but most crucial knowledge for all the law students. It is a basic
course because we should not only make a good master of the laws, but also realize how and why the laws should be that, not be
others. Moreover, this course is closely connected with many other subjects such as philosophy, sociology, ethics, political science,
history, theology and even psychology. Through learning it, we can gain extensive knowledge and broaden our horizon, but also
enhance our thinking ability, which will definitely benefit us in the long run. Therefore, we choose this topic as the main content of
our Law English in the New Year. Jurisprudence may be divided into three branches: analytical, sociological and theoretical. The
analytical branch articulates axioms, defines terms and prescribes the methods that best enable one to view the legal order as an
internally consistent, logical system. The sociological branch examines the actual effects of the law within society and the influence
of social phenomena on the substantive and procedural aspects of law. The theoretical branch evaluates and citizen’s law in terms of
the Ideals or goals postulated for it.

NB: There are some issues of technicality on how Western Jurisprudence affect Islamic Jurisprudence

Western Influence on Islamic Jurisprudence

There is no acceptable reason to accuse any non-Muslim law or economic system of Lacking ethical or ideological content,
because all social sciences are based on hidden value judgments which reflect the traditions, ethics and ideals of the man who
formulated them. Western jurisprudence is not an exception to this rule as can be easily seen in the following words written by one
of its scholars.There is no wonder if legal systems differ from one another because of differences in national values. And for this
reason, we kept saying , for quite a long time, that we should not expect different Muslim nations to have one and the same legal or
economic system even if they exert the same afford to comply with the Quran and Tradition . But, because all Muslims resort to the
same legal resources, we expect their legal systems to have a great deal in common. Likewise, Western legal systems resemble one
another; but differ greatly from Islamic ones, because each group has its own origin. All societies present an entangled mesh of
values with many contradictions that never get sorted out. In America, religion is a particularly tangled strand and despite the
Founding Fathers’ clear intention to provide freedom of religion and separation of church and state, some Americans insist on
rearguing the point continuously. In theirvehemence they contradict another typical value that they hold, an irrational worship of the
Constitution. But that’s how society is meant to be when people elect to be free. Yet this raises the bugaboo of the Islamist factions,
the religious conservatives who see the US as a sworn enemy of their faith. The west was burned by the Iranian revolution and its
steady drive toward anti-Western belligerence along with its support for terrorism and the chimera of a world where every country
bows to the Prophet Muhammad (SM.). A leading expert of the Arab world, Bernard Lewis, many years ago predicted that if
popular uprisings succeeded in toppling the dictatorships that span from the top of Africa throughout the Middle East, the new
government would be dominated by religion fundamentalism. It was a dark prophecy, and it remains the most feared prospect as
viewed by the U.S. This is a long preamble to saying that Muhammad (SM.) cannot be kept out of Arab politics. The Westward-
looking elites in the Arab world are secular even sad dam was secular but they hold power by brutal means. Ironically, it was the
economic rise of Egypt and Tunisia in recent years that has largely fueled the discontent in the streets, for suddenly, as in India; the
poorest people see a glimmer of hope for achieving dignity and economic progress. Even so, religion will be a big part of the mix.
On one side, Egypt watchers tell us that the Muslim Brotherhood won’t take over the country; one is reminded of iraq watchers who
assured the neurons that invading Iraq would not lead to religious strife, given how secular that country was. The root that runs
deepest in every Arab country is Islam, and one of the ideals of the faith is that everything in life art, politics, and law and daily
habits must move around Gods.The Islamic perspective of law’s role in limiting authority stems from Islam’s early days. During
prophetic and caliph times, socially governing principles surfaced as direct interpretations from the Quran and Sunnah. With the
closing of ijtihad generations later, formal opinions regarding new issues were dealt with in a fashion based on referring to earlier
precedents. However, the authorities were limited in their ability to make formal opinions by the restriction on direct
Quranicinterpretation. The authority of a mufti, for example, would not extend beyond applying Qiyas on to decisions already made.
Thus the mufti existed as an implementer of existing Islamic precedents. This role is defined as such because of the limitations of
Islamic Jurisprudence. Sharia refers to the sacred law of Islam. All Muslims believe Sharia is Allah’s law, but they have differences
between themselves as to exactly what it entails. Which will be difficult to discern what to apply when, but we’ll labor along for the
sake of discussion.

ROLE OF WESTERN JURISPRUDENCE IN Islamic Jurisprudence

In modern time the science is developing, at the same time law is developing to fulfill the demand of people. In various time various
people are occurring different types of crimes. Islamic Jurisprudence has played the important key role for the development and
guidelines of mankind. However due to some technical changes of the society, market policy, property, cultural affairs and others
Western Jurisprudence has some important contribution over Islamic Jurisprudence by which we are in a reasonable position all the
way through the whole world. In this paper the attempt has been taken to focus the important field of these, by which Western
Jurisprudence has played role over Islamic Jurisprudence.

Western Jurisprudence is basically meant common law and civil jurisprudence. Both the above two derived in western countries
these two systems are still the legal system of every western countries ever some, African and Latin American countries. Western
jurisprudence, concurrence (also simultaneity) is the apparent need to prove the simultaneous occurrence of both actus reus (guilty
action) and mens rea (guilty mind) to constitute a crime; except in crimes of strict liability. In theory, if the actus reus does not hold
concurrence in point of time with the mens rea then no crime has been committed.1 The fact that Islamic Jurisprudence originated
from divine laws, almost in the sequence of social needs and changes. It has some important role for development and guidelines of
mankind. In this paper, attempts will be made to be acquainted with the influence of western jurisprudence over Islamic
jurisprudence.

The Islamic perspective of law’s role in limiting authority stems from Islam’s early days. During prophetic and caliphal times,
socially governing principles surfaced as direct interpretations from the Qur’an and Sunnah. With the closing of ijtihad generations
later, formal opinions regarding new issues were dealt with in a fashion based on referring to earlier precedents. However, the
authorities were limited in their ability to make formal opinions by the restriction on direct Qur’anic interpretations (on account of
the end of ijtihad). The authority of a mufti, for example, would not extend beyond applying qiyas on to decisions already made.
Thus the mufti existed as an implementer of existing Islamic precedents. This role is defined as such because of the limitations of
Islamic jurisprudence. This trend occurred in both the Sunni and Shi’ite schools of thought. Admittedly, the concept of reason was
advocated more so by the rationally driven mu’atazalites than their ash’arite counterparts who put more emphasis on the importance
of tradition. Thus the limitation of authority would more likely occur amongst the mu’atazalites due to the nature of their approach
to faith-based law. Sharia refers to the sacred law of Islam. All Muslims believe Sharia is God’s law, but they have differences
between themselves as to exactly what it entails. Which will be difficult to discern what to apply when, but we’ll labor along for the
sake of discussion.

In Western countries, where Muslim immigration is more recent, Muslim minorities have introduced Sharia family law, for use in
their own disputes. Attempts to impose Sharia have been accompanied by controversy, violence, and even warfare (Second
Sudanese Civil War).

The recent incidents at the Arab International Festival have reinforced the poor image of Sharia inside the United States and its
incompatibility with American culture and law.

Western legal philosophy recognized the limitation that codes of law created in regards to authority. Thomas Aquinas, in his
explanation of natural law (the theory of what law ought to be and the principle of unchangeable frequencies among various
individuals and circumstances) proposed that the coming about of natural rights limits existent authority. In other words, since
natural law is concerned with things that are inherently common among all individuals and circumstances, authoritative figures are
subject to the same natural rights as well and thus cannot deviate from what has naturally come to be. Therefore, policies for
instance, that an authoritative figure would wish to establish would have to agree with principles already naturally in place hence
there is a condition on which authority can be exerted. Another concept that both the West and Islam have embraced is the general
concept of a sovereign authority one who does not obey but is obeyed. Both civilizations have recognized the existence of such
individuals. John Austin introduces this figure into the realm of utilitarianism where despite the theme of Oserving the greater good’
a sovereign does not, by definition need to adhere to the will and desires of the people. Sharia refers to the sacred law of Islam. All
Muslims believe Sharia is God’s law, but they have differences between themselves as to exactly what it entails. Which will be
difficult to discern what to apply when, but we’ll labor along for the sake of discussion.

In Western countries, where Muslim immigration is more recent, Muslim minorities have introduced Sharia family law, for use in
their own disputes. Attempts to impose Sharia have been accompanied by controversy, violence, and even warfare (Second
Sudanese Civil War).

The recent incidents at the Arab International Festival have reinforced the poor image of Sharia inside the United States and its
incompatibility with American culture and law.

Role of Western Jurisprudence in Islamic Jurisprudence

Western Jurisprudence how took a role in Islamic jurisprudence will be understood only if we go back to the point of role of Roman
jurisprudence in Islamic jurisprudence. As the Roman law is considered to be the best source of western jurisprudence. The question
whether Roman law had any influence on Islamic law has been discussed by a number of scholars for a period of three centuries. It
has been speculative question from the beginning and scholars were well aware of that fact.

The proponents of Roman influence can be divided into two groups: (I) direct influence; and (II) indirect influence.

The proponents of direct influence have been advocating the view that Roman law had been directly imported and installed into
main body of Islamic law. They went as far as to state that Muslim jurists directly copied Roman legal books. Moreover, they
argued that Islamic law could not have any other source than Roman law as a benchmark for development of nucleus for Islamic
law.
There is no acceptable reason to accuse any non-Muslim law or economic system of lacking ethical or ideological content, because
all social sciences are based on hidden value-judgements which reflect the traditions, ethics and ideals of the men who formulated
them. Western jurisprudence is not an exception to this rule as can be easily seen in the following words written by one of its
scholars.

There is no wonder if legal systems differ from one another because of differences in national values. And for this reason, we kept
saying, for quite a long time, that we should not expect different Muslim nations to have one and the same legal or economic
system, even if they exert the same effort to comply with the Qur’an and Tradition. But, because all Muslims resort to the same
legal resources, we expect their legal systems to have a great deal in common.5 Likewise, Western legal systems resemble one
another; but differ greatly from Islamic ones, because each group has its own origin.

All societies present an entangled mesh of values, with many contradictions that never get sorted out. In America, religion is a
particularly tangled strand, and despite the Founding Fathers’ clear intention to provide freedom of religion and the separation of
church and state, some Americans insist on re-arguing the point continuously. In their vehemence they contradict another typical
value that they hold, an irrational worship of the Constitution. But that’s how society is meant to be when people elect to be free.

Yet this raises the bugaboo of the Islamist factions, the religious conservatives who see the U.S. as a sworn enemy of their faith. The
West was burned by the Iranian revolution and its steady drive toward anti-Western belligerence, along with its support for
terrorism and the chimera of a world where every country bows to the Prophet Muhammad (SM). A leading expert of the Arab
world, Bernard Lewis, years ago predicted that if popular uprisings succeeded in toppling the dictatorships that span from the top of
Africa throughout the Middle East, the new governments would be dominated by religious fundamentalism. It was a dark prophecy,
and it remains the most feared prospect as viewed by the U.S. We called for elections in Palestine, only to punish the Palestinians
when they chose Hamas as their ruling party. We fled Lebanon in the midst of religious strife. We stood by helplessly as Iran moved
in the wrong direction, and now many see the Shiite clerics gaining a strong hold in Iraq, hiding discreetly behind the scene.

This is a long preamble to saying that Muhammad (SM) cannot be kept out of Arab politics. The Westward-looking elites in the
Arab world are secular even Saddam was secular but they hold power by brutal means. Ironically, it was the economic rise of Egypt
and Tunisia in recent years that has largely fueled the discontent in the streets, for suddenly, as in India, the poorest people see a
glimmer of hope for achieving dignity and economic progress. Even so, religion will be a big part of the mix. On one side, Egypt
watchers tell us that the Muslim Brotherhood won’t take over the country; one is reminded of Iraq watchers who assured the
neurons that invading Iraq wouldn’t lead to religious strife, given how secular that country was.

The root that runs deepest in every Arab country is Islam, and one of the ideals of the faith

is that everything in life art, politics, law, and daily habits — must revolve around God’s strict rules. Having written a book about
the Prophet, my immersion into Islam showed me, with regret, that their is a fine line between what the religious conservatives
want, which is religious totalism, and what the Taliban delivered in Afghanistan, which is religious totalitarianism. I have no
predictions about Egypt, which was founded by Nasser as a modern secular state on the basis of Arab nationalism. We can only
stand by and see how the entangled mesh of values in Egypt unravels. The worst of one system may give way to the worst of its
opposite let’s hope not.

Islamic Law Influenced by Western Jurisprudence

The Islamic perspective of law’s role in limiting authority stems from Islam’s early days. During prophetic and Khaliph times,
socially governing principles surfaced as direct interpretations from the Quran and Sunnah. With the closing of ijtihadgenerations
later, formal opinions regarding new issues were dealt with in a fashion based on referring to earlier precedents. However, the
authorities were limited in their ability to make formal opinions by the restriction on direct Quranicinterpretations (on account of the
end of ijtihad). The authority of a mufti, for example, would not extend beyond applying qiyas on to decisions already made. Thus
the mufti existed as an implementer of existing Islamic precedents. This role is defined as such because of the limitations of Islamic
jurisprudence. This trend occurred in both the Sunni and Shi’ite schools of thought. Admittedly, the concept of reason was
advocated more so by the rationally driven muatazalites than their asharite counterparts who put more emphasis on the importance
of tradition. Thus the limitation of authority would more likely occur amongst the mu’atazalites due to the nature of their approach
to faith-based law.Sharia refers to the sacred law of Islam. In Western countries, where Muslim immigration is more recent, Muslim
minorities have introduced Sharia family law, for use in their own disputes. Attempts to impose Sharia have been accompanied by
controversy, violence, and even warfare (Second Sudanese Civil War). The recent incidents at the Arab International Festivalhave
reinforced the poor image of Sharia inside the United States and its incompatibility with American culture and law.Western legal
philosophy recognized the limitation that codes of law created in regards to authority. Thomas Aquinas, in his explanation of natural
law (the theory of what law ought to be and the principle of unchangeable frequencies among various individuals and
circumstances) proposed that the coming about of natural rights limits existent authority. In other words, since natural law is
concerned with things that are inherently common among all individuals and circumstances, authoritative figures are subject to the
same natural rights as well and thus cannot deviate from what has naturally come to be. Therefore, policies for instance, that an
authoritative figure would wish to establish would have to agree with principles already naturally in place hence there is a condition
on which authority can be exerted. Another concept that both the West and Islam have embraced is the general concept of a
sovereign authority one who does not obey but is obeyed. Both civilizations have recognized the existence of such individuals. John
Austin introduces this figure into the realm of utilitarianism where despite the theme of observing the greater well a sovereign does
not, by definition need to adhere to the will and desires of the people.9Sharia refers to the sacred law of Islam. All Muslims believe
Sharia is God’s law, but they have differences between themselves as to exactly what it entails. Which will be difficult to discern
what to apply when, but we’ll labor along for the sake of discussion.