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.
No comments:
Post a Comment