Wednesday, June 21, 2006

my assignment...

How can we use the al-Quran to derive knowledge in the filed of law, in other words Islamize the discipline of law.

The fundamental of Islamic law is based on the divine revelation which had been compile by the previous sahabah and namely by al-Quran or al-Furqan. Al-quran is the complete revelation which is as a book of guidance for the entire world. The term used for Islamic law is Syariah . On the other hand compared it with non Islamic law it is not a divine law but it is man made law which do exist since immemorial. However the law still has to be amended from time to time due to the lack of principal in the law itself. This clearly show that how many defect have in the man made law whereby the Islamic law never been amended since it revelation.

The basic and most obvious distinction of both laws is the sources of the law itself. Western law is a secular law, the law that has been separated with the divine revelation . In west law is something standing outside and above the facts of social life and independent validity of its own which has been claim that not a man made law. On the other hand the truth is that it is a man made law, it is just because it has exist since immemorial and no one cannot detect who is the earliest human being had created the law that widely practice in the western. Reason and logic is the main fundamental sources of western jurisprudent, anything have to be proven by reason and logic then it will believe to be true .

The fact is clearly contrasted with the Islamic law conception. Islamic law is the law that derive from the al-Quran and never been separated with religion .it has been consider as divine revelation that will guided people to know the truth and upheld justice. Islam believes that only Allah is the absolute and superior over everything and He knows everything. So Allah has guided us by lead us to upheld justice through His revelation. Thus it is unquestionable and has independent validity of its own which is not a man made law . Islamic law hold the revelation that revealed by Allah to be the most fundamental sources of Islamic law, Allah the sovereign .besides the revelation sources i.e. al- Quran an as-Sunnah there are secondary sources for Islamic law and known as consensus opinion (ijma’), judicial reasoning, istihsan, istishab, istislah and ‘urf (custom) which does not conflict with the main sources and the usage of it still be based on the divine revelation .

In western law is in the lawyer sense and it will be enforce by the courts and it only govern the public affairs of human being. Unlike Islamic law which cover wider application of law. It cover every field in human life public and private, national and international even sometimes western does not regard it as a law at all. It show how ‘syumul’ the Islamic law which govern every aspect of human life . It is sometimes good to have laws that govern every aspect of life due to the human lack of knowledge. Human knowledge is limited due to man capacities and only knows something which is zahir and cannot see something which is unseen. So the Islamic law that based on divine revelation help to cater this matter. Only God know what is the best for His creation because He knows everything in the heaven and the earth.

The society has much influence in the creation of the law in western. Since the law is not a divine law so man create the law which will suit with their social life and it can be seen that the law dissimilar and divergent from one country to other country . Something which is illegal for one particular country is alleged to be legal in other country. For example, the same sex marriage is legal in Germany but it is illegal in United Kingdom. The law is not standardize and cannot be applicable in anywhere. Unlike the Islamic law which is not influence by the society because it is divine revelation. Islamic law is standard and to be same to all Muslim society. For example if a Muslim had committed zina in the country that it is deeming to be legal relationship, the Muslim is still govern by Islamic law which prohibited such action he will still be punished when he come back to his country.

Judge will decide in order to upheld justice and it is similar with Islamic law qadi who is the judge will decide for the cases brought to the court. In Islam there are also court systems and the procedure is quite similar with the civil law which is created by western. Historically Umar al-Khattab had written a letter to a ruler and the contents of the letter are the procedure that suppose to be in any trial i.e. adjudication, investigation, equality, burden of prove, witness, decision, reversionary power, reward, reconciliation and ethic of the qadi later it be known as principle in the Letter of Umar. So what is my suggestion in order to Islamize the discipline of law is we still can used the law which is existence provided that is must not be contrary with the divine revelation. As I stated before that the procedure used in Islamic law and in the civil law is similar so it can be used as to place the trial running smoothly hence it does not contrary with the divine revelation.

Under Islamic law penalties been provided by the Quran in three categories namely by huduh (fixed penalties), qisas (retaliation) and ta’zir (discretionary punishment) . More to the point, by using al-Quran in order to Islamize the discipline of law it can be done by ta’zir. Ta’zir is a punishment handed out at the discretion of the Islamic judge and it applies to penalties other than hudud and qisas . It is not mandatory and the punishment is left to the qadi to decide the punishment for the person who has committed a wrong since there is no prescribe punishment laid down in the revelation. For example punishment for offences relating to weight and measures provided in the penal code and in the hudud or qisas there are no such offences and no prescribe punishment in the Quran. In addition when there is no prescribe punishment in the Quran ta’zir is the last resolution. So the penal code can be used as ta’zir which the punishment is provided by the ruler. In this way directly we have Islamize the discipline of western law to be inline with Islamic law. Furthermore if there is any law in opposing with the Islamic law it should be amended to make it suit and that is the way to reconcile the civil law with the Islamic law.

Last but not least the civil law still can be use and treated as ta’zir unless it inline with the divine revelation. Since the divine law is come from Allah the creator and only Allah knows better what the best for His creation is. With our limited knowledge and capacity we should obey it and used the revelation as our guidance and we will not astray from the right path.



REFERENCES

-Dr. M. S. Rana, Comparative Jurisprudent (Law Publishing Company, 1979)

-Sayed Hassan Amir, Islamic Law in the Contemporary World (Royston Limited, 1985)

-J N D Anderson, Islamic Law in Modern World (Greenwood Press, 1959)

-Dr Naqaty Sanad, The theory of crime and Criminal Responsibility in Islamic Law
(Chicago, 1991)

-Penal Code (Act 547) (International Law Book Services, 2003)

by: mcNods (mcnods@yahoo.com)
0235444-UNGS 2040

http://mcnods.fotopages.com

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