Islamic Law and the Common Law

As Mahmoud A. El-Gamal[1] puts the point:

‘Islamic finance thrives mainly in Islamic countries with officially adopted civil laws, but it is driven primarily by a canon-law-like interpretation of Islamic scriptures. However, one can readily see that the canon-like nature of Islamic jurisprudence is mostly rhetorical. The true nature of Islamic jurisprudence of financial transactions is very similar to Western-style common law. In particular, contemporary developments in Islamic finance owe more to juristic understandings of the canonical texts and previous juristic analyses than they owe to the canon itself.’

He quotes Usmani (1998, 237):

‘It must be understood that when we claim that Islam has a satisfactory solution for every problem emerging in any situation in all times to come, we do not mean that the Holy Quran and Sunna of the Holy Prophet or the rulings of Islamic scholars provide a specific answer to each and every minute detail of our socioeconomic life. What we mean is that the Holy Quran and the Holy Sunna of the Prophet have laid down the broad principles in the light of which the scholars of every time have deduced specific answers to the new situation arising in their age. Therefore, in order to reach a definite answer about a new situation the scholars of Shariah have to play a very important role. They have to analyze every question in light of the principles laid down by the Holy Quran and Sunna as well as in the light of the standards set by earlier jurists enumerated in the books of Islamic jurisprudence. This exercise is called Istinbat or Ijtihad…[T]he ongoing process of Istinbat keeps injecting new ideas, concepts and rulings into the heritage of Islamic jurisprudence.’

 

 

 

Further Reading:

Wael B. Hallaq, ‘The Logic of Legal Reasoning in Islamic Law and the Common Law: Logic and Method; The logic of Legal reasoning in Religious and Non-Religious Cultures: The case of Islamic Law and the Common Law’ 34 Cleveland State Law Review 79 (1985-1986)

John Makdisi, ‘Hard Cases and Human Judgment in Islamic and Common Law’ 2 Indiana International and Comparative Law Review 191 (1991-1992)

 

[1] Islamic Finance: Law, Economics and Practice (Cambridge University Press 2006), 17.