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Sunday 15 December 2013

ISLAMIC LAW V. THE ENGLISH LAW

                                 
                                      Islamic law as it is also called has been shown to be a dynamic social force,
                                       This is capable of handling any social situation without losing its quality
                                                                         I.e. consistency and fairness.
                If the purpose of the law is to check crime and enhance peace, to bring about social justice in society, to eliminate exploitation and social injustice, to protect the weak against the strong and to safe guard morality and social discipline , can anyone in his senses claim that the man-made law has been a success i.e. English Law? Then who supposed to make Law? The creator or the created? Allah says in the holy Qur’an 4:28 “that Allah wants to lighten for you and difficulties; and mankind was created weak”, then how does a Man who is a weak, formulate a law that can stand the test of time?
                Only Allah has the right to lay down the law for the mankind and no other person or body ordain a law for any human being except to the extent permitted by Allah. Allah says: “then we set you upon a Shariah, so follow it, and do not follow the whims of those who know not” (45:18). (Any other yardstick is bound to produce injustice i.e. English law.).
                SHARI’AH: is an Arabic word which literally means “the way to a watering place” but in the language of the law means ‘the path ordained by Allah, through the last prophet Muhammad (S.A.W). The sources of Islamic law are classify into three:
i.              ASL or the original sources
ii.             Maqul al-As or secondary sources and
iii.            lstihsan or subsidiary sources
                ASL or original sources of Islamic law are only two i.e. the Holy Qur’an and Sunnah of the prophet (S.A.W). then consensus of opinion (Ijma) and Analogy (Qiyas) are recognized as secondary sources while juristic preference (Istihs’an), public intrest (Masli’h Mursal’ah), Customs (al-urf) are considered as subsidiary sources. But no law shall be made repugnant to the original sources (i.e. Qur’an and sunnah of prophet (S.A.W) this is the condition.
                Then English law: being the law of England and wales which has affected the laws and attitudes in all the common wealth countries. The main sources are: common law, Equity, judicial precedent and Statute.
i.              THE COMMON LAW: as the name implies, it is the law that is common to the whole of England through the customs of the realm i.e. through the custom of the fore fathers. In short common law is another name of local custom of the people.
ii.             JUDICIAL PRECEDENTS: This has to do with the reported judgements and reasoning that binds all the inferior courts of the English Common Law system, the precedents whether good or otherwise it must be followed by the inferior courts.
iii.            EQUITY: this as a result of hardship and rigours occasioned by the common law, in this situation there is need for relief of this hardship and rigours with what is right and fair i.e. equity.
               The activities of the equity courts was viewed with jealously by the common law courts. However the courts continued on its own until 1873 when two system were merged into one.
iv.            STATUTES: This is the law passed by parliament which is known as statute. In modern time, statute have become the main tool of social and economic change. In addition to parliamentary legislation there is also the legislation made by those persons or bodies to which power of legislation might be delegated by parliament.
                                Having considered the sources of both the Islamic law and English law. We shall now look at the following in brief;
A.            Sovereignty
B.            Precedent
C.            Justice: i.e. provision of justice
D.            Elimination of offence

A.            SOVEREIGNTY: Under the English law and shariah to whom does the sovereignty belong? English law places sovereignty in human agencies i.e. parliament, king, people etc they tend to forget that man is weak, temperamental, and short-sighted creature.
                                Then shariah places sovereignty in Allah who has the unlimited power and authority to do whatever he pleased. And it brings for the system greater responsibility, respectability, stability balance, value-orientation and sense of direction. For example it would never be possible for me Muslims to legalize what has been expressly prohibited by Allah i.e. adultery or fornication, consumption of wine etc. but English law has change base on time circumstances e.g. “sodomy” has cease to become an offence  also death penalty in some other jurisdiction has been replace with life imprisonment.
B.            PRECEDENTS: under English law a wrong decision by a higher court may adversely affect the whole chair of cases before lower courts unless corrective steps are taken either by such higher court or by parliament. This happen under the pretence that “my hands are tied”.
                In sharia, the issue of precedents is immaterial; because rules are derive their authority from the Qur’an sunnah not from the decision of the Qadis. Therefore, a wrong decision of one Qadi will hardly affect case before another Qadi.
C.            PROVISION OF JUSICE: under the English law is concern much about the “settlement of dispute” in which provision of justice is less considered. Whenever a man tries to make a yard for measuring “justice” his whims, class, colour, race, nationality would creep in to distort the yards tick and make it impossible to remain impartial. English law contains rules which try to satisfy human whims more than the dictates of “justice” i.e. doctrine of primogeniture, under which the eldest son, succeeds to the whole estate.
                                Under Shariah: Allah is the perfect embodiment of justice and impartiality; therefore it rules designed as to render “justice” as far as it possible in the world.
                                The administration of justice under common law is widely critized for the defect of cumbersome procedure costliness, delay and excessive technicalities.
                                While the administration of justice under Islamic law provides that;
i.              judicial dispensation should be free of charge
ii.             cases should be disposed speedily
iii.            simple judicial procedure should be followed

              Based on the above shariah is a simpler, cheaper, quicker and straight forward system of rendering justice. Whereas English law is highly technical, tardy and costly system of seeking redresses.
D.            ELIMINATION OF AN OFFENCE; the general practice in common law is that an individual should be prosecuted when he committed wrong action. In other words legal action of an offence is taken when it is correlation with an offence. If an individual commits such actions which do not come under the category of offence, he enjoy “legal corruption” within law. i.e. sexual offence with a woman other than his wife without her consent is the “rape”. But the same action with consent is love similarly, taking wine is not a crime but disturbing people while drunk as a result of the taken wine is an offence. Islamic law on the other hand prohibited Zina i.e. sexual intercourse with a woman other than wife with consent or not. Islamic law in trying to eliminate the offence totally in society, it also prohibits anything that may lead to it e.g. woman are disallowed to display their beauty and make up, men and women are not allowed to gaze at each other with lust and free mixing of male and female is disallowed. Similarly, drinking wine is prohibited, also its sale, purchase, loading and unloading, offering and possession are all prohibited.
                CONCLUSION: the English law fail to eliminate the crime within the society, but rather the crimes are on the increase. Islamic law carefully deals with evildoers and provides deterrent punishments. The objective of the Islamic punishments is to eradicate from the society Evil (Munker) and to establish good (mar’uf). The Holy Qur’an says that:
                                “Ye are the best of peoples, evolved for mankind, because you order good and prevent Evil”. The shariah is the most comprehensive and complete system of law because of the fact that it is a divine law. It is the law of all the nations, all the countries and for all time. It also more universal than that of English common law principle. This was clearly stated in the case of ALKAMAWA V. BELLO (1998) 6 SCNJ 127 at 136 that the Islamic Law is universal more than the English common law. Therefore, it is undisputable that shariah (Islamic Law) is better than the English law.


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