Islamic Law Comparison
Islamic Law, or Shari’a as it is known in Arabic, is the religious law of Islam whose primary sources are the Qur’an – the central religious text of Islam – and the Sunnah, in which examples are set by Prophet Muhammad. In addition to these two sources, qiyas – analogical reasoning – and ijma – consensus – are used as secondary sources of the law (Gleave & Eugenia 135). Shari’a sets a legal framework in which the public and aspects of private life are regulated for adherents of the religion of Islam. Because of differences in interpretation of the Qur’an, there are also different schools of interpretation of Shari’a. Several countries around the world have a legal system based on Islamic Law making it the most widely used religious law in the world. It is also one of the most common legal systems, together with common law and civil law. Two such countries are Saudi Arabia and United Arab Emirates.
To understand a legal system based on Islamic law, perhaps it is best to compare it with other legal systems around the world. Most of the legal systems of the world can be placed under these categories: common law, civil law and religious law. The first one, common law, is a system that is widely used in England, the United States, Australia and other countries colonized by England. Common law can also be referred to as case law or precedent as it derives its authority from past decisions by judges when deciding disputes and cases (Mattei 197). It is the traditional law of an area, applying such that if a similar case has previously been decided, the current court will base its reasoning on the prior decision. Precedent is created when a new case, distinct from other past cases, is decided by a judge. This will then be used by future courts to decide similar cases. Decisions of higher courts are more binding than those of lower courts, as are later decisions compared to earlier ones. Common law is malleable and changes over time. Additionally, common law is only created in the event that statutory law is not applicable because it does not cover the particular situation. Statutory law is that which is created by legislative bodies.
In comparison, Civil Law, also referred to as civilian law, is a legal system where laws are struck in writing, codified and not determined by judges based on decisions of earlier courts. Systems based on civil law are widely used in Europe, for example in countries such as France, Italy, Germany and Spain, as well as around the world in these countries’ former colonies. This system is also used in China and Japan. A common feature of Civil law systems is a primary written source of the law, such as the French Civil Code (Mattei 169). As a result, Civil law is based on written codes of private law therefore judges are not bound by precedent nor are they required to play any creative function. Civil law also gives authority to legal scholars, who more or less determine the law, as opposed to judges in Common Law.
The third most common legal system in the world is that which is based on religious law. This refers to a religious system, and/or document, being the main source of law in a particular jurisdiction. Religious law advocates that God’s word should be used as the basis of all legal procedures. Because of this, improvement or change of religious law is impossible. However, it may be interpreted according to various schools of thought. The most widespread religious law is Islam’s Shari’a, which as stated earlier is based on the Qur’an and the Sunnah. Additionally, Judaism has its own religious law known as Halakha, as does Christianity, whose religious law system is known as Canon law (Mattei 201). Of the three religious laws, Shari’a is the only one that is used by several countries for complete government. Halakha and Canon law are mostly used for moral guidance, or in the case of Judaism, where two parties adherent to the faith agree to settle their dispute in a Jewish court (Mattei 227). Canon law is used for the ecclesiastical government of the United Arab Emirates Catholic Church, as well as the Oriental and Eastern Orthodox churches. It is important to note that many countries around the world whose legal systems are not entirely based on religious law do use it as part of their legal system.
Saudi Arabia and United Arab Emirates both have legal systems based on Islamic law. Saudi Arabia is one of the largest countries in the Middle East. It is also an absolute monarchy with the condition that the monarch exercise government with the Qur’an as its basis. Criminal cases in Saudi Arabia are tried in Shari’a courts in one of these four levels: minor courts, general courts, cassation courts and supreme judicial council. The main source of law in Saudi Arabia is the jurisprudence school of Hanbali, a school within Sunni Islam and which is considered one of the most conservative jurisprudence (Gleave & Eugenia 76). In addition, state regulations, royal decrees – where necessary – and custom and practice are also sources of law in Saudi Arabia. Shari’a in Saudi Arabia is not written and is therefore subject to various interpretations.
United Arab Emirates on the other hand, has a pluralistic legal system based on both Islamic law and Egyptian law that is modeled after the French civil law system. This legal system is less conservative than that of Saudi Arabia. While UAE’s jurisdiction is based on civil law, Shari’a is used to decide cases relating to family law –including inheritance – as well as certain crimes. UAE has a federal court system, which is applicable in all but two emirates. Because the legal system used here has two sources, there are two kinds of courts: secular courts, which rule on civil and criminal disputes, as well as Islamic courts, which rule on religious and family matters.
Both these systems compared with the Australian Criminal justice system may seem somewhat conservative. To begin with, because the law is based on religion, there is little to no freedom of religion especially in Saudi Arabia where the law requires all citizens be Muslims, but respects the right of non-Muslims to worship in private. Additionally, Muslims who do not adhere to the Sunni Islam, such as Shi’a Muslims, may also face legal repercussions. The government systems of these countries also differ. In Australia, the legislature, the executive and the judiciary constitute the government, following the Westminster system a parliamentary system that features among other things a head of state, a head of government, and an elected legislature. In Saudi Arabia, the law gives control of judicial and administrative institutions to the ruling family, as well as gives legislative authority to the monarch and the Council of Ministers. These systems both differ with authoritarian governments where state authority is imposed on people’s personal lives.
Finally, because of their different systems, Australia, Saudi Arabia and the United Arab Emirates also have different methods of getting information in the courtroom. The adversarial system is used in Australia – as in other common law countries – and requires that advocates represent their clients’ positions before a judge or jury (Groves & Lee 152). In the United Arab Emirates, a country whose part of the legal system is based on the civil legal system, an inquisitorial system is used. This requires that the court investigate the facts of the case. Even though Saudi Arabia’s legal system is based on religious law, an inquisitorial system is used. In addition, like other civil legal systems, it adheres to the letter, holds the sovereign as above the law, and grants the accused few rights, requiring them to prove their innocence. All these are major differences between the legal systems in Saudi Arabia and the United Arab Emirates, in relation to Australia’s common law system.
Works Cited
Gleave, R, and Eugenia Kermeli. Islamic Law: Theory and Practice. London: I.B. Tauris, 1997. Print.
Groves, Matthew, and H P. Lee. Australian Administrative Law: Fundamentals, Principles, and Doctrines. Cambridge, UK: Cambridge University Press, 2007. Print.
Mattei, Ugo. Comparative Law and Economics. Ann Arbor: University of Michigan Press, 1997. Print.
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