Presumption of Legality

Compare the most famous rule of law case in English law (‘if this is law it would be found in our books’) Entick v Carrington [1765] EWHC KB J98 95 ER 807. Citing ‘Abd al-Qadir ‘Awdah (al-Tashri al-Jina’i al-Islami, 115), a contemporary scholar of Islamic law [1] invokes the legal maxim that the

‘conduct of reasonable men (or the dictate of reason) alone is of no consequence without the support of a legal text’

To restate: no conduct can be forbidden without written law. As Kamali explains the point ‘No one, therefore, should be deemed a violator because of committing or omitting an act which is not forbidden by the clear provisions of the law.’ ‘Awdah elaborates that ‘In the absence of a clear text which may require affirmative action or abandonment of a particular conduct, the perpetrator or abandoner incurs no responsibility and no punishment can be imposed’ (op cit 187).

Kamali also notes authorities indicating the familiar non-retroactivity of law is upheld in Islamic law (188 op cit)




[1] Mohammad Hashim Kamali, Shari‘ah Law: an introduction (Oneworld, Oxford 2008, 2011 reprint), at 186– see also 179 regarding the rule of law in Islam