Principle of western and islam legal philosophy PDF

Preview

Summary

Download Principle of western and islam legal philosophy PDF

Description

Chapter 1

Principle of western and islam legal philosophy. Rabbaniyah (Islam) vs Legal positivism (western) Rabbaniyah is the state of the relationship with Allah S.W.T. People of Islam need to do good deeds do please Allah for the afterlife. Such example can be seen as Islam must pray 5 times a day with no fail. According to legal positivism, law is synonymous with positive norms, that is, norms made by the legislator or considered as common law or case law. Thabat & Murunah (Islam) vs Legal pragmatism Thabat & murunah is basically permanent and flexible. The principles are permanent but it is also flexible. For example, if one can’t pray by standing because of a sickness, that person may pray while sitting. Legal pragmatism is a theory critical of more traditional pictures of law and more specifically, judicial decision making Waqa’iyyah (islam) vs legal realism Waqa’iyyah means practical whereby Islam is suitable for humans and their needs. In context, Islam just believe that Allah is only 1 god because it is not practical to have 2 gods with the same amount of power. Other example is human’s sexual needs whereby Islam must do it in a lawful way which is through marriage. For legal realism, the realists maintained that judges create new law through the exercise of law-making discretion considerably more often that is commonly supposed Tawazun (Islam) vs legal interpretivism Tawazun is balance that is kept between material and spiritual. For example, Islam are encouraged to get wealthy, but after that need to donate to charity and also pay their zakat. Legal interpretivism is a law offers a philosophical explanation of rights and obligation in which both moral principles and institutional practice modifies legal rights and obligations. (powers, privileges Syumul (Islam) vs nature law theory Syumul basically tells us that Islam is a concept of life as it has laws in all kinds of areas. For example, relationship between man and Allah. Alamiyah (islam) vs pure theory of law Alamiyah means universal as Islam don’t care about race, skin colour or anything else. One example can be seen in Bilal ibn Rabah as he was accepted to be a part of Islam even if he has dark skin colour. Pure theory of law is a nature of law had to exclude all other elements such as sociology, politics and other disciplines

There are many differences between principles of Islamic and western legal philosophy. Firstly, Islamic Legal Philosophy was created by Allah while Western legal Philosophy was created by man. Islamic is a religion which is founded on good values. The aim of Muslim is to receive Allah’s love and support. Muslim are permitted to get worldly pleasures but they must be able to please Allah. They also must avoid doing things that does not please Allah like consuming pork and alcohol unless an emergency arises. “And whoever invokes (or worships) besides Allah, any other god, of whom he has no proof, then his reckoning is only with his Lord. Surely, alkaafiroon (the disbelievers in Allah and in the Oneness of Allah) will not be successful.” [Quran (Surah Al Muminoon, Verse 117)] .Western Legal Philosophy is not based on a religion. They use common sense, morns and social convention to dictate how to create law. This does not work all the time because if something new happens with the law they will have difficulty updating their law because is not perfect. One example is the Covid 19 pandemic happening where some western countries are struggling to come up with a better law to deal with it as it has never happened before. In legal realism the judges will take into accont poilitical and moral factors rather than legal consideration. This is why Islamic Legal Philosophy is sometimes deemed superior to Western Legal Philosophy because Islam is free from error as it is God made while Western is manmade. Karl Marx's theory of human nature says that humans make both their 'life activity' and 'species' the 'object' of their will. Next, Islam handles law very differently than western as it wrestles everything from law and how an individual acts and and tackles everything while western perspective only cares if it connects to the law. In Islam there is a punishment if an individual commits murder, adultery and retaliation. It takes into account the severity of the crime and the type of crime committed. For example the punishment of zina varies based on the legal school. Crime of theft is referred to in Quranic verse 5:38: As to the thief, male or female, cut off his or her hands: a punishment by way of example, from Allah, for their crime: and Allah is Exalted in power. In western legal realism focuses on law making discretion significantly more often. Legal pragmatism is critical of more traditional pictures of law and more especially judicial decision making. The four main aspects of pragmatis are the importance of context, the lack of foundation, the instrumental nature of law and the unavoidable presence of alternate perspectives. Its main subject is the Marxist critique of the model of the Rule of Law. It maintains that the chief drive of a Marxist theory of law is to uncover the belief in the Rule of Law as being a understated and unescapable ideology which aids to vague the organisations of class domination within the State. The final difference is in terms of flexibility as In Islamic philosophy it says that Islamic teachings are very firm in some areas but there will be leniency in some other areas. An example will be the consumption of pork which is haram unless if there is no food. A Muslin can consume it just to stay alive but when it is no longer an emergency the goes back to being Haram. It is permanent in principle and flexible in implementation. He has forbidden you only carrion, blood, the flesh of the swine, and that which has been offered to other than Allah. But should someone be compelled, without being rebellious or aggressive, there shall be no sin upon him. Indeed Allah is all-forgiving, all-merciful (2:173). Western philosophy has less room on flexibility. In the early days it didn’t allow any case for self-defence. Female rights were significantly low. Black people were slaves during those times. Times have improved everyone‘s fate but there is

still work to be done. Marx's thought about justice is essentialist and dialectical. It has been taken in positions of immoralism. Marx branded the public as the universal class who are accomplished of bringing about the accomplishment of the human spirit in a family-style mode of production, because it is the prey of entire unfairness...