The Islamic legal tradition was created on the foundation of the Sharia,
which Muslims consider to be sacred. Beginning in the 10th century, Islamic
legal scholars began to incorporate the Sharia into the Muslim Empire.1 Civil
legal tradition was developed during the Middle Ages and was used by
European imperial powers in continental Europe.2 This paper will explore the
similarities between Islamic legal tradition and Civil legal tradition,
highlighting three areas of commonalities despite their historical and cultural
differences. By examining their principles of justice, legal sources, and
elements of procedure, this paper aims to shed light on the values and
mechanisms of these two very different legal systems. By comparing their
shared aspects, the fundamental values and mechanisms that connect these
two legal traditions can be better understood.
Principles of Justice
One similarity between Islamic legal tradition and Civil legal tradition is the
concept of equality before the law. In Islamic legislation, the Qu’ran states
all individuals are equal in the eyes of Allah, and this equality includes all
legal matters. The Islamic legal system aims to ensure justice is served
without partiality, regardless of a person's social status, wealth, or ethnicity.
As stated previously, Islamic law is based from the Shariah, which
1 Constitutional Rights Foundation, https://www.crf-usa.org/bill-of-rights-in-action/bria-15-1-a-the-origins-of-
islamic-law.
2 The Common Law and Civil Law Traditions, https://www.law.berkeley.edu/wp-
content/uploads/2017/11/CommonLawCivilLawTraditions.pdf.
incorporates the Qu’ran, which states, “This is a declaration for mankind, a
guidance and instruction to those who fear God.”3
As with the civil legal system, particularly in Western democracies, it too was
founded on the principle of equal protection under the law. This ensures that
every citizen, regardless of their background, is entitled to fair and impartial
treatment by the legal system. Civil legal tradition protects identities
because there is a premise that everyone has the right to bring their
problems to court and allow the court to decide how to solve it. Its intention
was to focus on individual freedom and human cooperation.4
Both Islamic and Civil legal traditions share the idea that there is a
presumption of innocence for everyone. In Islamic law, a defendant is
considered innocent until proven guilty, and the burden of proof lies with the
accuser.5 This idea is shared with the Civil legal tradition, where individuals
are presumed innocent until proven guilty in a court of law.6 This
presumption of innocence standard in both legal traditions helps ensure
those who are accused are protected from unwarranted punishment and
guarantees a fair trial for all. The burden of proof by the accuser provides as
a safeguard to prevent wrongful convictions and to uphold the principles of
justice and fairness.
3 University of Minnesota Human Rights Library, http://hrlibrary.umn.edu/instree/islamic_declaration_HR.html.
4 Culture of Law: Understanding the Influence of Legal Tradition on Transitional Justice in Post-Conflict Societies,
The, https://mckinneylaw.iu.edu/iiclr/pdf/vol22p297.pdf.
5 University of Minnesota Human Rights Library, http://hrlibrary.umn.edu/instree/islamic_declaration_HR.html.
6 Lii, Presumption Of Innocence, US Law https://www.law.cornell.edu/wex/presumption_of_innocence.
2. Legal Sources:
2.1. Religious Texts and Precedent:
Islamic legal tradition draws heavily from religious texts, primarily the Quran
and the Hadith. The Quran provides general principles, while the Hadith,
which contains the sayings and actions of the Prophet Muhammad, offers
further guidance for specific legal matters. Additionally, Islamic legal
scholars have developed extensive legal literature, which serves as
precedent, known as "ijma" (consensus) and "qiyas" (analogical reasoning).
Civil legal tradition, on the other hand, relies on written laws, statutes, and
codes. In common law systems, judicial decisions also play a significant role
in shaping the legal landscape, much like Islamic jurisprudential literature.
Legal precedent in civil law systems is often used to interpret statutes and
guide future legal cases.
2.2. Interpretation and Jurisprudence:
Both traditions involve a degree of interpretation by legal scholars or judges.
In Islamic law, qualified scholars known as "mujtahids" are responsible for
interpreting religious texts and applying them to contemporary legal issues.
Similarly, in the civil legal tradition, judges and legal experts interpret
statutory law and precedent to address legal questions and make informed
decisions.
3. Procedural Elements:
3.1. Due Process:
Islamic legal tradition and civil legal tradition share a commitment to due
process. Both systems ensure that individuals accused of a crime have the
right to a fair trial, legal representation, and the opportunity to present
evidence in their defense. These safeguards are essential to prevent
wrongful convictions and uphold the principles of justice.
3.2. Adjudication:
The process of adjudication in both traditions involves the use of judges or
arbitrators to make decisions based on legal principles. In Islamic tradition,
"qadi" or judges are responsible for interpreting Islamic law and ensuring its
application. Similarly, civil legal systems have judges who preside over court
proceedings and issue rulings based on the relevant legal framework.
Conclusion:
Islamic legal tradition and civil legal tradition, while arising from different
historical and cultural backgrounds, exhibit remarkable similarities in their
principles of justice, legal sources, and procedural elements. These
commonalities reflect shared values and mechanisms for ensuring fairness,
equality, and justice within their respective legal systems. By recognizing
these parallels, we gain a deeper understanding of the fundamental
principles that underpin these two legal traditions, highlighting the universal
importance of justice and the rule of law.
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