Revisiting the Debate:

Islamic Law A Religious Law or a Major World Legal System?

Mohammad Hidir Baharudin

Abstract
Since the beginning of this century, Islamic law1 has become the subject of a debate
whether it is a religious law or a major world legal system. This short article examines
and analyzes the debate that is characterizing by five main elements; The Major World
Legal System and Its Features, Islamic law and Its Distinctive Characteristics, Islamic
Law around the World: Polls, The Multidimensional Methodology of Zweigert and Kotz,
and Conclusion. These characterizations relate to the history and developments with
regard to Islamic law and others major world legal system and the adoption and
application of Islamic law by Muslims and non-Muslims. In conclusion, the debate will
be resolving by the multidimensional methodology of Zweigert and Kotz.
Key words: Islamic law, Shariah, the Major World Legal System

Introduction
Europes long history of religious fighting and the Age of Enlightenment that took after
prompted the foundation, in most Western nations, of a firm gap in the middle of church
and state. From this gap rose the idea that religious ethical quality must be separated from
secular law. Coming from a historical and cultural tradition defined by the separation of
church and state, many Westerners assume that secularization is a necessary precondition
for the emergence of modern, democratic forms of government that respect universal
human rights.2 In advance, the secularization of Western law since the 6th Century was
through the Reformist Lutheran, English, French, American, and Russian revolutions.3
The truth is the West is frustrated and disappointed with their religion, Christianity.
Secularism is a response to the marvel of Christianity in the West. More precisely,
secularism is the immediate consequence of frustration and disappointment with the
reputation of the blend of Christianity and government. The Christian church, the
institutional representation of a religion of peace and charity, has been tied up in

The terms Islamic law and Shariah are used in this article although the term Shariah is wider than Islamic
law.
2
Kareem Elbayar , Reclaiming Tradition: Islamic Law in a Modern World, International Affairs Review:
The Elliott School of International Affairs at George Washington University, vol. XVII, No. 1 (2008): 1.
<http://www.iar-gwu.org/node/23> (accessed 26 November, 2015)
3
Herold J. Berman, Religious Foundations of Law in the West: An Historical Perspective in Law and
Religion, edited by Gad Barzilai, (Hampshire: Ashgate Publishing Limited, 2007), 144-145.
1

numerous debates, controversies, and events of viciousness not deserving of its name.4
Despite the fact that in the West religion has been to a great extent isolated from the law,
in the Muslim world Islamic law, or Shariah, is not confined to simply religious matters.
Shariah is connected to a wide assortment of common lawful issues, running from
legacy, marriage, and separation to contracts and criminal disciplines. Additionally, after
a brief tease with secularization in the 1950s and 1960s, many Muslim-majority countries
have now set out upon cognizant of endeavors to inject more religion into government.5
In this short article, I will resolve the debate of Islamic law, whether a religious law or a
major world legal system by evidence and analysis.6

The Major World Legal System and Its Features

All legal systems have the same purpose of regulating and harmonizing the human
activity within their respective societies, and in each society the legal system forms part
of the culture and civilization as well as of the history and the life of its people. In the
countries of Western civilization, the two best-known systems are the civil law and the
common law.7

Terry Hunter Baker Jr., Christianity, Secularism, and America: An Exploration and Critique of the
Historical, Legal, Social, and Philosophical Implications of Secularism from an American Perspective,
(Dissertation, UMI, 2008), 12.
5
Kareem Elbayar , Reclaiming Tradition: Islamic Law in a Modern World, International Affairs Review:
The Elliott School of International Affairs at George Washington University, vol. XVII, no. 1 (2008): 1.
<http://www.iar-gwu.org/node/23> (accessed 26 November, 2015)
6
Kareem Elbayar , Reclaiming Tradition: Islamic Law in a Modern World, International Affairs Review:
The Elliott School of International Affairs at George Washington University, vol. XVII, No. 1 (2008): 1.
<http://www.iar-gwu.org/node/23> (accessed 26 November, 2015)
7
Joseph Dainow, The Civil Law and The Common Law: Same Points of Comparison, The American
Journal of Comparative Law, American Society of Comparative Law, vol. 15, no. 3 (1966-1967): 419.
<http://www.fd.unl.pt/docentes_docs/ma/wks_MA_22856.pdf> (accessed 26 November, 2015)
2

World Legal Systems8

The term civil law derives from the Latin Juris Civilis which means the body of
Roman or civil law consolidated by Justinian in the 6th century AD. It consists of four
parts, the Institutes, Digest, Code, and Novels.9 Its origins and model are to be found in
the monumental compilation of Roman law commissioned by the Emperor Justinian in
the sixth century CE. While this compilation was lost to the West within decades of its
creation, it was rediscovered and made the basis for legal instruction in eleventh-century
Italy and in the sixteenth century came to be known as Corpus Juris Civilis. Succeeding
generations of legal scholars throughout Europe adopted the principles of ancient Roman
law in the Corpus Juris Civilis to contemporary needs. Medieval scholars of Catholic
Church law, or canon law, were also influenced by Roman law scholarship as they
compiled existing religious legal sources into their own comprehensive system of law and
governance for the Church, an institution central to medieval culture, politics, and higher
learning. By the late middle Ages, these two laws, civil and canon, were taught at most
universities and formed the basis of a shared body of legal thought common to most of
Europe. The birth and evolution of the medieval civil law tradition based on the Roman
law was thus integral to European legal development. It offered a store of legal principles
and rules invested with the authority of ancient Rome and centuries of distinguished
jurists, and it held out the possibility of a comprehensive legal code providing substantive
and procedural law for all situations.10 Countries with civil law systems have
comprehensive, continuously updated legal codes that specify all matters capable of
8

Research Group, World Legal Systems, University of Ottawa, < http://www.juriglobe.ca/eng/repgeo/cartes/monde.php> (accessed 26 November, 2015).
9
Corpus Juris Civilis, Collins English Dictionary,
<https://www.collinsdictionary.com/dictionary/english/corpus-juris-civilis> (accessed 26 November, 2015)
10
The Common Law And Civil Law Traditions, Berkeley Law: University of California,
<https://www.law.berkeley.edu/library/robbins/pdf/CommonLawCivilLawTraditions.pdf> (accessed 26
November, 2015)
3

being brought before a court, the applicable procedure, and the appropriate punishment
for each offense.11
Historically, English common law emerged from the changing and centralizing
powers of the king during the middle ages. After the Norman Conquest in 1066, medieval
kings began to consolidate power and establish new institutions of royal authority and
justice. New forms of legal action established by the crown functioned through a system
of writs, or royal orders, each of which provided a specific remedy for a specific wrong.
The system of writs became so highly formalized that the laws the courts could apply
based on this system often were too rigid to adequately achieve justice. In these cases, a
further appeal to justice would have to be made directly to the king. This difficulty gave
birth to a new kind of court, the court of equity, also known as the court of Chancery
because it was the court of the kings chancellor. Courts of equity were authorized to
apply principles of equity based on many sources such as Roman law and natural law
rather than to apply only the common law, to achieve a just outcome.12 Nowadays, the
common law extended all through a great part of the world as a consequence of the
British Empire, and this procedure of military, economic and legitimate control. The
result, on the other hand, was a sort of inserting of common law thinking in a substantial
number of assorted social around the world, huge numbers of whom are currently freely
tied together in the Commonwealth and the Commonwealth Lawyers Association,
neither of which, be that as it may, is co-broad with the regular law world.13 Generally,
common law is non codified law.14 It is represents the law of the courts as expressed in
judicial decisions. The grounds for deciding cases are found in precedents provided by
past decisions. This known as precedent and stare decisis, which is essential feature of a
common-law system.15 Other characteristics of common law are trial by jury16 and the
doctrine of the supremacy of the law. Originally, the supremacy of the law meant that not
even the king was above the law. Today it means that acts of governmental agencies are
subject to scrutiny in ordinary legal proceedings. It interpreted to mean that all men are
equal before the law and no special preference is given to wealth, rank, or position.17
In comparative studies of civil law and common law, it is concluded on the basis
of the foregoing observations that the net result is approximately the same in both
systems. In effect, while the common law starts with a case-law basis it also includes
11

The Common Law And Civil Law Traditions, Berkeley Law: University of California,
https://www.law.berkeley.edu/library/robbins/pdf/CommonLawCivilLawTraditions.pdf (accessed 26
November, 2015)
12
The Common Law And Civil Law Traditions, Berkeley Law: University of California,
https://www.law.berkeley.edu/library/robbins/pdf/CommonLawCivilLawTraditions.pdf (accessed 26
November, 2015)
13
H. Patrick Glenn, Legal Traditions of the World, (New York: Oxford University Press, 2000), 228-229.
14 14
- , The Common Law And Civil Law Traditions, Berkeley Law: University of California,
https://www.law.berkeley.edu/library/robbins/pdf/CommonLawCivilLawTraditions.pdf (accessed 26
November, 2015)
15
Edward D. Re, Stare Decisis: Education and Training Series,
<http://www.fjc.gov/public/pdf.nsf/lookup/staredec.pdf/$file/staredec.pdf > (accessed 26 November, 2015)
16
Shackley F. Raffetto , Common Law Set Basis For Jury Trials, Honolulu Advertiser, 1 May,
2005, < http://www.courts.state.hi.us/docs/docs4/clsbfjt050105.pdf> (accessed 26 November 2015)
17
Mark R. Keeler, Nothing To Hide: Privacy In 21st Century, (Lincoln: iUniverse Inc., 2006), 55.
4

legislative encroachments, and while the civil law starts with a legislative basis, it
incorporates developments of case-law.18

Islamic law and Its Distinctive Characteristics

Literally, Shariah means the path leading to the watering place. 19 Al-Raghib Al-Isfahani
defined Shariah as path and course which are clearly.20 Murshid bin Kassim said that it
means a clear path to be followed so that it will lead to a source of life. 21 In addition,
Prof. Dr. Mohammad Hashim Kamali said that Shariah literally means the right path or
guide.22 Technically, Dr. Abdul Karim Zaidan defined it as to submit, surrender fully
and obey consciously Allah and as proof of that consciousness follow willingly the
commandments of Allah as revealed to the Prophet Muhammad (PBUH), the Messenger
of Allah who was appointed to deliver the message to mankind. Allah Almighty said in
Al-Quran23, This day have I perfected your religion for you, completed My favour upon
you, and have chosen for you Islam as your religion.24 He also mentioned that Islam the
public system, complete and comprehensive law which guides life of mankind. It is the
methods of behavior for all mankind which is brought by the Prophet Muhammad
(PBUH) from Allah. Allah has ordered all mankind to follow His Prophet (PBUH).
Those who follow His Prophet Muhammad (PBUH) will be rewarded and those who
rejected His Prophet (PBUH) will be punished. Allah Almighty said in Al-Quran,25 If
anyone desires a religion other than Islam (submission to Allah), never will it be accepted
of him; and in the Hereafter He will be in the ranks of those who have lost (All spiritual
good). He also mentioned that Islam is the complete set of laws revealed by Allah
Almighty to His Messenger Muhammad (PBUH) which is concerning belief and morals
system, acts of worship, relationships between mankind, sociology, and history. All are
contained in the Al-Quran and Al-Sunnah and He is ordered to be delivered and to be
spread to all of mankind. Allah Almighty said in Al-Quran26, O Messenger! Proclaim
the (message) which hath been sent to thee from thy Lord. If thou didst not, thou wouldst
not have fulfilled and proclaimed His mission. And Allah will defend thee from men
18

Joseph Dainow, The Civil Law and The Common Law: Same Points of Comparison, The American
Journal of Comparative Law, American Society of Comparative Law, vol. 15, no. 3 (1966-1967): 427.
<http://www.fd.unl.pt/docentes_docs/ma/wks_MA_22856.pdf> (accessed 26 November, 2015)
19
Abu Zaid Abdul Rahman bin Muhammad bin Makhluf, Al-Jawahir Al-Hisaan Fi Tafsir Al-Quran, AlTsaalaby, (Beirut: Dar Ihya Al-Turat Al-Arabiy, 1997), vol.5, p.207.
20
Al-Raghib Al-Isfahani, Abu Al-Qasim Al-Husain bin Muhammad, Al-Mufradat Fi Gharib Al-Quran,
(Damsyik: Dar Al-Qalam, 1992), vol. 1, p.450
21
Murshid bin Kassim, Islamic Legal History, (Petaling Jaya: Department Of Laws IIUMC, 2004), part 1,
p.8. See also H. Patrick Glenn, Legal Traditions of the World, (New York: Oxford University Press Inc.,
2000),160.
22
Mohammad Hashim Kamali, Shariah and Fiqh: The Duality of Islamic Law in Law and Society: The
Interplay of Revelation and Reason in the Shariah, (London: Oxford University Press, 2000),
<http://acc.teachmideast.org/texts.php?module_id=2&reading_id=210&sequence=2> (accessed 26
November, 2015)
23
Al-Quran, Al-Maidah (5): 3
24
Abdul Karim Zaidan, Usul Al-Dakwah, (Damsyik: Muasasah Al-Risalah, 2001), p.10.
25
Al-Quran, Aali Imran (3): 85
26
Al-Quran, Al-Maidah (5): 67
5

(who mean mischief). For Allah guided those who are not rejected the Faith.27 As the
conclusion to the definition of Shariah, Mohamad Akram Laldin said Shariah is the sum
total of Islamic teaching and system, which was revealed to Prophet Muhammad (PBUH)
recorded in the Al-Quran as well as deducible from the Prophets divinely-guided
lifestyle called the As-Sunnah.28
Shariah contains categories and subjects of Islamic law called the branches of fiqh
which literally means understanding. This includes Islamic worship, family relations,
inheritance, commerce, property law, civil (tort) law, criminal law, administration,
taxation, constitution, international relations, war and ethics, and other categories.29
There are some distinctive features of Islamic law. These features are obtained
through interpretation and rational analysis. First is the nobility of the goals. The purpose
of the Islamic law is for humans to achieve happiness in this world and the hereafter by
following the law of adopting the good and neglecting the bad. Therefore, Islamic law
was made to protect five foundations things which are religion, self, mind, offspring, and
property. These are the main and foundations goals of the mankind in this life.30 Allah
Almighty said in Al-Quran31, O mankind! There hath come to you a direction from your
Lord and a healing for the (diseases) in your hearts, and for those who believe guidance
and a Mercy. Dr. Yusuf Al-Qardawi said, the majority of scholars agree that most of the
injunctions of Shariah were revealed with certain objectives and reasons. 32 Ibn Qayyim
Al-Jawziyyah explains that the Shariah aims at safeguarding the peoples interest and
preventing them from harm in this world and the next. This is a necessity that is needed
by all mankind. He further explains that if the injunctions of Al-Quran are not aimed at
bringing benefit than it will be disastrous for all mankind and there is no further benefit
of the different revelations.33 Second is Al-Rabbaniyyah which means Islamic law is
divine in origin and possess supreme character and authority. All the orders of Islamic
Law are disclosure from Allah Almighty. He is the one who is administering for mankind
and the Creator who knows the best for His creations. Allah Almighty said in Al-Quran34,
Should He not know, He that created? And He is the One that understands the finest
mysteries (and) is well-acquainted (with them). This characteristic means Shariah is free
from discrepancies, shortcomings, and every Muslim is obliged to uphold and implement
the Shariah. Allah said in Al-Quran35, It is not fitting for a Believer, man or woman,
when a matter has been decided by Allah and His Messenger to have any option about
their decision: if any one disobeys Allah and His Messenger, he is indeed on a clearly

27

Abdul Karim Zaidan, Usul Al-Dakwah, (Damsyik: Muasasah Al-Risalah, 2001), p.10-11.
Mohamad Akram Laldin, Islamic Law: An Introduction, (Gombak: Research Centre IIUM, 2006), p.3.
29
Murshid bin Kassim, Islamic Legal History, (Petaling Jaya: Department Of Laws IIUMC, 2004), part 1,
p.10.
30
Mohamad Akram Laldin, Islamic Law: An Introduction, (Gombak: Research Centre IIUM, 2006), p.18
31
Al-Quran, Yunus (10): 57
32
Al-Qardawi, Yusuf bin Abdullah bin Ali bin Yusuf, Madkhal Li Dirasah Al-Shariah Al-Islamiyyah,
(Beirut: Muassasah Al-Risalah, 1993), p.53
33
Mohamad Akram Laldin, Islamic Law: An Introduction, (Gombak: Research Centre IIUM, 2006), p.14.
34
Al-Quran, Al-Mulk (67): 14
35
Al-Quran, Al-Ahzab (33): 36
28

wrong Path. Moreover, every human being is equal in front of Shariah.36 Third is the
Shariah is characterized as Al-Alamiyah and Al-Waqiiyyah which means universal,
pragmatic, realistic, and contemporary, especially in the area of public policy, and it
favors a gradual approach to social reform. The Shariah advocates the moral autonomy of
the individual and visualizes a basic harmony between private and public interests, and so
the Shariahs orientation toward the concerns of the individual and those of the
community as a whole is also discussed.37 It is not confined to certain groups of people.
Hence, the Shariah is suitable to be implemented at any time, any place and all situations.
Allah Almighty said in Al-Quran38, We have not sent thee but as a universal
(Messenger) to men, giving them glad tidings, and warning them (against sin), but most
men understand not. The fourth is Shariah provides the rewards and punishments in this
world and in the hereafter. One of the characteristics of any legal system is that is must
come with certain measures to curb crime, educate people and restrain them from
committing crimes or other actions deem to be against the law. One wrong doer can
escape punishment in the world, but he or she will be definitely be punished in the
hereafter with severe punishment from Allah Almighty except if he or she has repented.39
Allah Almighty said in Al-Quran40, Those are limits set by Allah: those who obey Allah
and His Messenger will be admitted to Gardens with rivers flowing beneath, to abide
therein (for ever) and that will be the supreme achievement. But those who disobey Allah
and His Messenger and transgress His limits will be admitted to a Fire, to abide therein:
And they shall have a humiliating punishment. Fifth is Shariah is Al-Syumuliyyah
which means the richness, fullness and completeness of Shariah. Shariah covers all
aspects of life and fulfill all the needs of mankind. There are no matters which are no fall
under the jurisdiction of the Shariah.41 The Muslims scholars after the Companions age
had established two major field of research. The first was concerned with the Islamic
science of methodology (Usul Al-Fiqh) and the second was the detailed answers to the
practical matters of Islamic law (Al-Masail Wa Al-Furuq) among others.42 Allah
Almighty said in Al-Quran43, This day have I perfected your religion for you, completed
My favour upon you, and have chosen for you Islam as your religion. Thus, Shariah
covers all branches of life including sanctions relating to beliefs, sanctions relating to
moral and ethics and sanctions relating to the saying and doings of the individuals and his

36

Mohamad Akram Laldin, Islamic Law: An Introduction, (Gombak: Research Centre IIUM, 2006), p.3338. See also Mahdi Zahraa, Characteristics Features of Islamic Law: Perceptions and Misconceptions, in
Law and Religion, edited by Gad Barzilai, (Hampshire: Ashgate Publishing Limited, 2007), 162.
37
Mohammad Hashim Kamali, Shariah and Fiqh: The Duality of Islamic Law in Law and Society: The
Interplay of Revelation and Reason in the Shariah, (London: Oxford University Press, 2000),
<http://acc.teachmideast.org/texts.php?module_id=2&reading_id=210&sequence=2> (accessed 26
November, 2015)
38
Al-Quran, Saba (34): 28
39
Mohamad Akram Laldin, Islamic Law: An Introduction, (Gombak: Research Centre IIUM, 2006), p.4445.
40
Al-Quran, Al-Nisa (4): 13-14
41
Mohamad Akram Laldin, Islamic Law: An Introduction, (Gombak: Research Centre IIUM, 2006), p.4546.
42
Mahdi Zahraa, Characteristics Features of Islamic Law: Perceptions and Misconceptions, in Law and
Religion, edited by Gad Barzilai, (Hampshire: Ashgate Publishing Limited, 2007), 164.
43
Al-Quran, Al-Maidah (5): 3
7

relations with others.44 In other words, Islamic law has various branches which are
subject to a single set of standards. Islamic law does not accept the application of
different sets of standards to its branches.45 The Shariah clearly recognizes both duty and
right, but it is nevertheless indicative of the moral underpinnings of the Shariah that it
speaks mainly of duty rather than right.46

Islamic Law around the World: Polls and Cases

First is the poll on Shariah as a divine religion. In 17 of the 23 countries where the
question was asked, at least half of Muslims say Shariah is the revealed word of God.
Acceptance of Shariah as the revealed word of God is high across South Asia and most of
the Middle East and North Africa. For example, roughly eight-in-ten Muslims (81%) in
Pakistan and Jordan say Shariah is the revealed word of God, as do clear majorities in
most other countries surveyed in these two regions. Only in Lebanon is opinion more
closely divided: 49% of Muslims say Shariah is the divine word of God while 38% say
men have developed Shariah from Gods word. Muslims in Southeast Asia and Central
Asia are somewhat less likely to say Shariah comes directly from God. Only in
Kyrgyzstan (69%) do more than two-thirds say Islamic law is the revealed word of God.
Elsewhere in these regions, the percentage of Muslims who say it is the revealed word of
God ranges from roughly four-in-ten in Malaysia (41%) to six-in-ten in Tajikistan. Views
about the origins of Shariah are more mixed in Southern and Eastern Europe. At least half
of Muslims describe Shariah as the divine word of God in Russia (56%) and BosniaHerzegovina (52%). By contrast, three-in-ten or fewer hold this view in Kosovo (30%)
and Albania (24%).47

44

Mohamad Akram Laldin, Islamic Law: An Introduction, (Gombak: Research Centre IIUM, 2006), p.4546.
45
Mahdi Zahraa, Characteristics Features of Islamic Law: Perceptions and Misconceptions, in Law and
Religion, edited by Gad Barzilai, (Hampshire: Ashgate Publishing Limited, 2007), 163.
46
Mohammad Hashim Kamali, Shariah and Fiqh: The Duality of Islamic Law in Law and Society: The
Interplay of Revelation and Reason in the Shariah, (London: Oxford University Press, 2000),
<http://acc.teachmideast.org/texts.php?module_id=2&reading_id=210&sequence=2> (accessed 26
November, 2015)
47
Pew Research Centre, Chapter 1: Beliefs About Sharia, Religion and Public Life,
<http://www.pewforum.org/2013/04/30/the-worlds-muslims-religion-politics-society-beliefs-about-sharia/>
(accessed 26 November, 2015)
8

Shariah as the Revealed Word of God48

Second is the poll on the population of Muslims in the world. In 2010, the
populations of the Muslims in the world are 1.6 billion. Islam is growing more rapidly
than any other religion in the world, according to a new report by the Pew Research
Center that says the religion will nearly equal Christianity by 2050 before eclipsing it
around 2070, if current trends continue. This is driven primarily by differences in fertility
rates and the size of youth populations among the worlds major religions, as well as by
people switching faiths. Islam will grow faster than any other major religion. By 2050,
the numbers of Muslims around the world are 2.8 billion or 30% of the population if
current demographic trends continue.49

48

Pew Research Centre, Chapter 1: Beliefs About Sharia, Religion and Public Life,
<http://www.pewforum.org/2013/04/30/the-worlds-muslims-religion-politics-society-beliefs-about-sharia/>
(accessed 26 November, 2015)
49
Pew Research Centre, The Future of World Religions: Population Growth Projections 2010-2050,
(Washington: 2015), p.5.
<http://www.pewforum.org/files/2015/03/PF_15.04.02_ProjectionsFullReport.pdf> (accessed 26
November, 2015)
9

Islam Growing Fastest50

Third is the classification of legal systems in the world. Five categories were
selected for the creation of this Website on World Legal Systems: Civil law, Common
law, Customary law, Muslim law and Mixed law systems, the latter referring not to a
single system but to a combination of systems. As for religious law systems, only Muslim
law is included because of its permanent and broadly-based nature.51 As it shown by the
map, there are no countries in North America,52 Central America,53 South America,54
West Indies,55 Europe,56 and Caucasus57 is implemented Islamic law in their countries.
However, there are many of countries in Africa,58 Middle East,59 Asia,60 South East
50

Pew Research Centre, Islam Growing Fastest, Religion and Public Life,
<http://www.pewforum.org/2015/04/02/religious-projections-2010-2050/pf_15-0402_projectionsoverview_populationchange_310px-2/ > (accessed 26 November, 2015)
51
Research Group, Introductory Remarks, University of Ottawa,
<http://www.juriglobe.ca/eng/sys-juri/intro.php> (accessed 26 November, 2015).
52
Research Group, North America, University of Ottawa,
<http://www.juriglobe.ca/eng/rep-geo/cartes/amer-nord.php> (accessed 26 November, 2015).
53
Research Group, Central America, University of Ottawa,
<http://www.juriglobe.ca/eng/rep-geo/cartes/amer-cent.php> (accessed 26 November, 2015).
54
Research Group, South America, University of Ottawa,
<http://www.juriglobe.ca/eng/rep-geo/cartes/amer-sud.php> (accessed 26 November, 2015).
55
Research Group, West Indies, University of Ottawa,
<http://www.juriglobe.ca/eng/rep-geo/cartes/antilles.php> (accessed 26 November, 2015).
56
Research Group, Europe, University of Ottawa,
<http://www.juriglobe.ca/eng/rep-geo/cartes/europe.php> (accessed 26 November, 2015).
57
Research Group, Caucasus, University of Ottawa,
<http://www.juriglobe.ca/eng/rep-geo/cartes/caucase.php> (accessed 26 November, 2015).
58
Research Group, Africa, University of Ottawa,
<http://www.juriglobe.ca/eng/rep-geo/cartes/afrique.php> (accessed 26 November, 2015).
59
Research Group, Middle East, University of Ottawa,
<http://www.juriglobe.ca/eng/rep-geo/cartes/moy-orient.php> (accessed 26 November, 2015).
60
Research Group, Asia, University of Ottawa,
10

Asia,61 and Oceania62 despite the implementation of Islamic law is various: some entirely
implemented Islamic law and some others tend to be limited to the laws relating to
personal status, although personal status can be rather broadly defined. 63 This is shown as
below;

World Legal Systems64

No. Muslim Law Systems And Mixed Systems With A Muslim Countries
Law Tradition
Afghanistan
1
Muslim Law Mono-Systems
Maldives Islands
Saudi Arabia

<http://www.juriglobe.ca/eng/rep-geo/cartes/asie.php> (accessed 26 November, 2015).

61
Research Group, South East Asia, University of Ottawa,
<http://www.juriglobe.ca/eng/rep-geo/cartes/asie-sud-est.php> (accessed 26 November, 2015).
62
Research Group, Ocenia, University of Ottawa,
<http://www.juriglobe.ca/eng/rep-geo/cartes/oceanie.php> (accessed 26 November, 2015).
63
Research Group, Muslim Law Systems And Mixed Systems With A Muslim Law Tradition University
of Ottawa, < http://www.juriglobe.ca/eng/sys-juri/class-poli/droit-musulman.php> (accessed 26
November, 2015)
64
Research Group, World Legal Systems, University of Ottawa, < http://www.juriglobe.ca/eng/repgeo/cartes/monde.php> (accessed 26 November, 2015).
11

Mixed Systems Of Muslim Law And Civil Law

Mixed System Of Muslim Law And Customary Law

Mixed Systems Of Muslim Law And Common Law

Algeria
Comoros Islands
Egypt
Iran
Iraq
Lebanon
Libya
Mauritania
Morocco
Palestine
Syria
Tunisia
United Arab Emirates

Bangladesh
Pakistan
Singapore
Sudan
Mixed Systems Of Muslim Law, Civil Law And Djibouti
Eritrea
Customary Law
Indonesia
Jordan
Kuwait
Oman
Timor Leste
Mixed Systems Of Muslim Law, Common Law And Brunei
Gambia
Customary Law
India
Kenya
Malaysia
Nigeria
Mixed Systems Of Muslim Law, Common Law, Civil Law Bahrain
Qatar
And Customary Law
Somalia
Yemen
Mixed System Of Civil Law, Common Law, Jewish Law Israel

And Muslim Law

Although there are no countries in North America,65 Central America,66 South

America,67 West Indies,68 Europe,69 and Caucasus70 is implemented Islamic law in their
65

Research Group, North America, University of Ottawa,

<http://www.juriglobe.ca/eng/rep-geo/cartes/amer-nord.php> (accessed 26 November, 2015).
66
Research Group, Central America, University of Ottawa,
<http://www.juriglobe.ca/eng/rep-geo/cartes/amer-cent.php> (accessed 26 November, 2015).
67
Research Group, South America, University of Ottawa,
<http://www.juriglobe.ca/eng/rep-geo/cartes/amer-sud.php> (accessed 26 November, 2015).
68
Research Group, West Indies, University of Ottawa,
12

countries, the Economic Islamicity Index had discovered that they are represented the AlQuran doctrines and teachings in the countries. The Economic Islamicity Index is an
index to assess the extent that self-declared Islamic countries adhere to Islamic doctrines
and teachings. The Al-Qurans teachings are better represented in Western societies than
in Islamic countries. A study of 208 countries and territories has found that the top
countries in both economic achievement and social values are Ireland, Demark,
Luxembourg and New Zealand. Britain also ranks in the top ten. The first Muslimmajority nation is Malaysia ranking at 33, Kuwait at 48, Saudi Arabia at 91, and Qatar at
111.71

Islamic law Influences Common Law and Civil Law

Professor Makdisi has uncovered evidence, which suggests that common law institution
may trace its origins directly to Islamic legal institutions. The evidence lies in the unique
identity of characteristics of the institutions, and the historic opportunity for transplants
from Islam through Sicily. 72 Professor Maksidi wrote;
The influence of Islam on Roger II was significant in all aspects of his reign. His
acceptance and adaptation of Islam for the needs of his kingdom in Sicily
provided a major opportunity for transplants to the West.73
He also said;
Now came the opportune moment for the Norman King Henry II, whose reign
began in England in the same year that the Norman King Roger II died in Sicily to
expand the influence of Islam from Sicily to England.74
In an article by Manlio Lima entitled English Common Law and Islam: A Sicilian
Connection, the author asserted that Principles of Common law is rooted in Islamic law
<http://www.juriglobe.ca/eng/rep-geo/cartes/antilles.php> (accessed 26 November, 2015).
69
Research Group, Europe, University of Ottawa,
<http://www.juriglobe.ca/eng/rep-geo/cartes/europe.php> (accessed 26 November, 2015).
70
Research Group, Caucasus, University of Ottawa,
<http://www.juriglobe.ca/eng/rep-geo/cartes/caucase.php> (accessed 26 November, 2015).
71
Hossein Askari and Scheherazade S. Rehman, Economic Islamicity Index, Global Economy Journal
2010, vol. 10, issue 3, <http://www.mpc.gov.my/ebook/ebook/ECONO%2015/files/res/downloads/book.pdf>
72
John A. Makdisi, The Islamic Origins of the Common Law, North Carolina Law Review, vol.77
(1999): 1639-1640.
73
John A. Makdisi, The Islamic Origins of the Common Law, North Carolina Law Review, vol.77
(1999): 1726-1727.
74
John A. Makdisi, The Islamic Origins of the Common Law, North Carolina Law Review, vol.77
(1999): 1727.
13

introduced into Norman England through contact with the multicultural kingdoms of
Sicily and Jerusalem.75 Among other factors are the Crusade; a medieval military
expedition in the 11th, 12th, and 13th centuries76 and the translation of vast amounts of
scientific works from Arabic into Latin, Hebrew, and local dialects. 77 For examples, the
British system of trusts same as the Islamic institution of waqf, the British contract law
same to the Islamic law of contract, and the precedents and reasoning same as the
principle of analogy in Islam.78
Multidimensional Methodology of Zweigert and Kotz
Zweigert and Kotz propose a different, multidimensional methodology for categorizing
laws, i.e. for ordering families of laws. They maintain that, in order to determine such
families, five criteria should be taken into account, in particular;
(a) The historical background and development of the system;
(b) Its characteristic way of thought;
(c) Its distinctive institutions;
(d) The recognized sources of law;
(e) Its ideology.79
The five factors adopted by Zweigert and Kotz are the stylistic factors which enable those
who study comparative legal tradition to identify the families of legal systems and to
attribute individual systems to them. But the weight to be given to each of these factors
varies according to the circumstances.80
Historically, Shariah is founded on the words of Allah Almighty as revealed in the
Al-Quran and traditions gathered from the life of the Prophet Muhammad (PBUH) (609632CE). Shariah continued to establish in the era of the Khulafa Al-Rashidin (632661CE), beginning with the reigns of caliphs Abu Bakr (63234), Umar (63444),
75

Khalid Jarrar J.D., Enforcing Islamic Contracts (Lex Islamicus) in English Courts, Opalesque Islamic
Finance Intelligence, issue 1 of 23 June 2009: 11-12. <http://www.kantakji.com/media/7544/c73.pdf>
(accessed 26 November, 2015)
76
Hasanuddin Yusof, Syariah Di Hati King Roger 2, (Gombak: Al-Hijrah Production, n.a), p.170.
77
Salah Zaimeche, An Introduction to Muslim Science, Foundation for Science, Technology and
Civilization, (2002), p.4,
<http://www.muslimheritage.com/uploads/Introduction_to_Muslim%20Science.pdf> (accessed 27
November, 2015)
78
Mahmoud A. El-Gamal, Islamic Finance Law, Economics, and Practice, (New York: Cambridge
University Press, 2006), p.15-16.
79
New World Encyclopedia, Comparative Law,
<http://www.newworldencyclopedia.org/entry/Comparative_law> (accessed by 26 November, 2015)
80
Murado Abdo, Legal History 1, Academia, <https://www.academia.edu/665267/Legal_History_I>
(accessed 26 November, 2015)
14

Uthman, (644-656CE), and Ali (656-661CE). During the time, many questions were
brought to the attention of the companions of the Prophet (PBUH). Shariah continued its
building in the period of Umayyad dynasty (661CE-middle of the 8th century). Then
Shariah is flowered during the period of Abbasid dynasty until the middle of the 10 th
century. Shariah continued its consolidation until the middle of the 13th century after the
invasion of Baghdad by the Mongols. The stagnation and decline stages of Shariah
continued from the sacking of Baghdad in 1258 CE to the present time. 81 In addition, the
Shariah prescribes directives for the regulation of our individual as well as collective
lives. These directives affect such varied subjects as religious rituals, personal character,
morals, habits, family relationships, social and economic affairs, administration, the
rights and duties of citizens, the judicial system, the laws of war and peace and
international relations. It tell us what is good and bad; what is beneficial and useful and
what is injurious and harmful; what are the virtues which we have to cultivate and
encourage and what are the evils which we have to suppress and guard against; what is
the sphere of our voluntary, personal and social action and what are its limits; and,
finally, what methods we can adopt to establish a dynamic order of society and what
methods we should avoid. The Shariah is a complete way of life and an all-embracing
social order.82 The primary sources, accepted universally by all Muslims scholars are
the Al-Quran, Al-Sunnah, Ijma and Qiyas. Others sources which the scholars differ in
the utilization of these sources are juristic preference (Istihsan), presumptions of
continuity (Istishab), customs (Urf), consideration of public interest (Masalih AlMursalah), blocking the means (Sadd Al-Dharai), and practice of the people of AlMadinah (Amal Ahl Al-Madinah).83
Conclusion
Islamic law is a religious law. This can be proven by some evidences; First is the
definition of Islam itself. The first definition of Islam by Dr. Abdul Karim Zaidan has
shown that Islam is submittal and fully obeys to Allah Almighty through His Messenger
(PBUH). Submittal and fully obeys to Allah Almighty orders and prohibitions are the
characteristic of religion. Hence, Islamic law is a religious law. Second is the feature of
Islamic law. Al-Rabbaniyyah which means Islamic law is divine in origin and possesses
supreme character and authority indicates that Islamic law is from Allah Almighty. Thus,
it is religious law. Third is the poll on Shariah as a divine religion. 17 of the 23 countries
believe that Shariah is from Allah Almighty. The respondents of the poll believe that
Shariah is from Allah Almighty as their knowledge show and prove it. In addition, the
population of Muslims in the world in 2010 is 1.6 billion. This is strong indication that
81

Mohamad Akram Laldin, Islamic Law: An Introduction, (Gombak: Research Centre IIUM, 2006), p.152.
Abu Ala Al-Maududi, The Islamic Concept of Life, Islam 101,
<http://www.islam101.com/sociology/conceptLife.htm> (accessed 26 November, 2015)
83
Mohamad Akram Laldin, Islamic Law: An Introduction, (Gombak: Research Centre IIUM, 2006), p.54.
82

15

Shariah is a religious law. The fourth is the classification of Research Group from
University of Ottawa. They have classified Islamic law as only religious law systems
because of its permanent and broadly-based nature. Thus, it is religious law.
Secondly is Islamic law is a major world legal system. . This can be proven by
some evidences; First is the definition of Islam itself. The second and third definition of
Islam by Abdul Karim Zaidan and Mohamad Akram Laldin has shown that Islam has the
complete and comprehensive law and the way of life. All are contained in the Islamic
law. Thus, with it completeness and comprehensiveness, it is the major world legal
system. Second is features of Islamic law named as nobility of Islamic laws goals
which are to protect religion, self, mind, offspring, and property, Al-Alamiyah and AlWaqiiyyah which are suitable to apply in any place or time, the rewards and
punishments in this world and in the hereafter which is the only law that provides
punishment in the world and hereafter in order to curb crime, educate people, and restrain
them from committing crimes or other actions deem to be against the law, AlSyumuliyyah which means the richness, fullness and completeness of Shariah as
Islamic law is concerned with the Islamic science of methodology (Usul Al-Fiqh) and the
practical matters of Islamic law (Al-Masail Wa Al-Furuq) among others. These features
are the best features in a major world legal system like Islamic law. Third is the
implementation of Islamic principles and doctrines by non-Muslim countries as reported
by the Economic Islamicity Index. Non-Muslim countries are applied the Islamic
principles and doctrines in their daily life including their laws as Islam is the only major
world legal system that provides the solutions for all aspects and problems. The fourth is
as mentioned by Professor Makdisi, Manlio Lima and others writers that Islamic law is
the root of Common law. How the worlds can recognize Common law as major world
legal system and not Islamic law? Fifth is Islamic law has fulfilled the conditions set up
by Zweigert and Kotz in their methodology for categorizing laws as Islam has its own
history and development. In addition, it has its own characteristics, institutions, sources
of law, and ideology. As Islamic law has fulfilled the conditions, it is major world legal
system.

16