Introduction to Islamic Legal Systems and Classification of Laws PDF

INTRODUCTION TO ISLAMIC LEGAL SYSTEMS AND CLASSIFICATION OF LAWS DR. KHAIRUL FAHMI Definition of Laws a) Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behaviour of the community. b) Article 160(2) of the Federal Consti...

INTRODUCTION TO ISLAMIC LEGAL SYSTEMS AND CLASSIFICATION OF LAWS DR. KHAIRUL FAHMI Definition of Laws a) Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behaviour of the community. b) Article 160(2) of the Federal Constitution supplies an authoritative definition of law. It states that “law” includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof. Definition of Legal System A legal system refers to the overall legal regime of a country. It provides institutions, principles, rules and methods for regulating the relationship between law and society. It describes law’s connection with authority and with morality. This includes: - a) Describes the sources from which the law springs. b) Provides the procedures and methods for making law and resolving disputes. c) Encompasses the institutions, principles and procedures for the exercise of power and the limits thereon.  d) Includes a set of laws and the manner in which the laws are interpreted and enforced. e) Outlines the rights, responsibilities, and duties of citizens towards each other and towards the state. It provides for the imposition of punishments Classification of Laws: - Over the millennium, the world has known many types of laws. The oldest were built on custom and religion. In modern times, it is believed that there are 5 categories of laws. a) Common Law vs Civil Law i- Common Law: The primary source is the authoritative decisions by judges in cases that are litigated before the courts. Court proceedings follow the adversarial system of justice. The decisions are perpetuated by a system of binding judicial precedent or stare decisis.  ii- Civil Law: Legislators play a central role in the development of the law. A significant feature of this system is the extensive codification and consolidation. Another significant feature is that court proceedings are inquisitorial instead of adversarial. Judges conduct investigations, and call and question witnesses. E.g.: the Hammurabi’s Code in ancient Babylon (1745-1702BC) and Code Napoleon (1804). b) Common Law vs Equity i- Common Law: As mentioned above i.e., rules of law developed by the courts through its decisions. ii- Equity: In medieval England, parties aggrieved by a decision of the court would petition the King to do justice regarding the harsh judgment. The King, in response to such petitions and complaints, in turn relied on the advice of the Lord Chancellor, who looked into the dispute and sought to deliver a ‘fair’ outcome against the rigid principles of Common Law. The Lord Chancellor’s role in administering equity was thereafter transferred to a separate court called the Court of Chancery. Equity was developed with the intention of alleviating the harshness and inflexibility of the Common Law rules at the time or the rigid interpretations given to such rules by the Courts.  c) Civil Law vs Criminal Law i- Civil Law: Body of law that deals with the disputes between individuals, organizations, or between the two, in which compensation is awarded to the victim. The burden of proof falls on the plaintiff. One must produce evidence beyond the balance of probabilities. E.g., Landlord/tenant disputes, divorce proceedings, child custody proceedings, property disputes, personal injury, etc. ii- Criminal Law: body of law that deals with crime and the legal punishment of criminal offenses. The burden of proof always falls on the state/ the government. BOP is beyond a reasonable doubt. E.g., Theft, assault, robbery, trafficking in controlled substances, murder, etc. d) Substantive Law vs Procedural Law i- Substantive Law: Substantive law governs how people are expected to behave according to accepted social norms. The Ten Commandments, for example, is a set of substantive laws. Today, substantive law defines rights and responsibilities in all court proceedings.  ii- Procedural Law: Procedural law establishes the rules by which court proceedings that deal with the enforcement of substantive laws are conducted. For example, when judges sustain or overrule objections raised by lawyers, they do so according to procedural laws. e) Sharī’ah Law vs Positive law i- Shari’ah Law: A body of religious law that forms a part of the Islamic tradition. It is derived from the religious principles of Islam and is based on the sacred scriptures of Islam, particularly the Qur’an and the Hadith. ii- Positive Law: are human-made laws that oblige or specify an action. Positive law also describes the establishment of specific rights for an individual or group Q&A