Research Essay: Civil
and Islamic Legal
Traditions
JURI 510
When analyzing the Islamic and Civil legal traditions there have been many
similarities as well as differences that many historians have tried to
highlight. Civil legal traditions are based on regulations, codes, and laws
that are then interpreted by the courts. One of the major concerns in civil
legal traditions is making sure that the people have justice. Civil law
outlines laws and procedures through statutes that help settle legal
disputes between civil and criminal entities. Islamic law however is based
on their religious beliefs, and the types of consequences taken by the
Muslim people when someone violates the law. Like civil tradition, Islamic
tradition’s major concern is to make sure there is an equal and just society.
Civil and Islamic legal traditions have some of the oldest laws that have
shaped their societies. Islamic legal traditions are largely based on the civil
law traditions. Eleni Polymenopoulou, Sharia and Human Rights Law in the
Constitutional Framework of Gulf States. Human Rights Quarterly, Vol. 46,
3 (2024). “The Sharia is a tradition that is inherently pluralistic and flexible. It
is able to coexist harmoniously with public law, including rights and duties of
individuals. Consequently, there should be no doubt that the Sharia can also
harmoniously coexist with constitutional and liberal human rights guarantees
today.” Id at 7.
In this essay, we will dive into the three main similarities between the civil
legal tradition and the Islamic legal traditions. The three similarities that
will be discussed are each tradition's respect for human rights, public order,
Research Essay: Civil
and Islamic Legal
Traditions
JURI 510
and justice and fairness. This paper will also discuss some of the differences
that these traditions have. As well as give some personal perspectives on
what my husband saw and experienced while being in the military from
1998-2007 while completing three tours in Afghanistan, Iraq, and Bahrain
before being blown up outside of Fallujah that ended his military career.
Similarity 1: Respect for Human Rights
Prioritizing the protection of human rights and emphasizing the inherent
value of individuals is something that you will see in both the civil and
Islamic legal traditions. Ensuring freedoms and rights through statutes,
while also ensuring the commitment to human dignity is something you will
find in civil legal traditions. While similarly, Islamic law can be shown to
strive towards religious principles, while also advocating and ensuring the
respectful treatment of its citizens. Both the civil and Islamic traditions
uphold the principle of ensuring everyone receives a fair trial, while
maintaining due process and impartiality in any and all legal proceedings.
Cook v. State, 606 S.W.3d 247, 2020. In doing so, both traditions
demonstrate their priority in safeguarding human rights.
One of the differences between civil legal tradition and Islamic tradition is
that civil legal tradition is based on using statutes and codes created by a
legislative body. While, Islamic legal tradition relies very heavily on
religious readings, such as the Quran and Hadith. “The state adopts Islamic
laws derived from the Quran and Sunnah. These national laws may or may
Research Essay: Civil
and Islamic Legal
Traditions
JURI 510
not be codified, but typically are based on Islamic legal principles governing
civil, criminal, and personal status disputes.” Islamic Legal Systems.
Judiciaries Worldwide: A Resource on Comparative Judicial Practice (2024).
Similarity 2: Promotion of Public Order and Security
Protecting society and ensuring public order is paramount when comparing
civil and Islamic legal traditions. To have the most effective laws must be
enacted to maintain society’s harmony, while this harmony is hinged on the
citizen’s sense of security and orderliness. Both civil and Islamic legal
traditions draw attention to the rule of law as fundamental to public order
and individual security, while arguing that equitable application of clear
regulations is pivotal for society to function properly. These laws that are
implemented provide the framework for how society should conduct
themselves-legislative statutes for civil law, and religious doctrines for
Islamic law.
When public order or security is breached, both the civil tradition and the
Islamic tradition have systems in place to properly judge and punish
accordingly. Both civil and Islamic traditions share a commitment to fair
and unbiased legal processes while trying to ensure fact-based judgments
and punishments. Civil law found that punitive measures, i.e., community
service or incarceration, punish the guilty and keep society in check while
upholding a sense of security for the public.
Research Essay: Civil
and Islamic Legal
Traditions
JURI 510
A second difference between civil and Islamic traditions is that in civil law,
judges play a pivotal role in interpreting and applying the law to individual
cases. Islamic Legal Systems. Judiciaries Worldwide: A Resource on
Comparative Judicial Practice (2024). When comparing to Islamic tradition,
there are dual roles where Qadhis and Ulema may interpret the law. Id. The
Ulema can issue legal opinions that can influence or guide the decisions of
the Qadhis. Id.
Similarity 3: Emphasis on Justice and Fairness
Civil and Islamic legal traditions are dedicated to protecting individual
freedoms, supporting the vulnerable, and contributing to harmony amongst
its citizens. Justice and fairness are part of the building the civil and Islamic
tradition foundation. Goldstein v. Islamic Republic of Iran, 383 F. Supp. 3d
15, 2019. This foundation serves as a guiding principle that will uphold the
rule of law. In both traditions, the law recognizes everyone’s inherent
worth, ensuring equal treatment and opportunity, especially for the
disadvantaged, while ensuring there are consequences for breaking the law.
In both civil and Islamic traditions, it is imperative that there are
safeguards in place to ensure the fairness and rights for everyone, most
importantly to those with disabilities. “The sitting judges of the Sharia court
at the time had full jurisdiction over civil and criminal matters. The judges
applied the sharia law in resolving the disputes arising, if individuals were
dissatisfied with the verdict, they had the right to appeal their cases to the
Research Essay: Civil
and Islamic Legal
Traditions
JURI 510
Amir of the ruling family.” A. Nizar Hamzeh, Qatar: The Duality of the Legal
System, Middle Eastern Studies, Vol. 30, No. 1, pg. 3 (1994).
The coherence of justice is maintained through the trial process in both civil
and Islamic legal traditions. Both traditions place a high value on fair
practices and impartial judgments. Disputes and legal actions are resolved
based on evidence, as long as there is clear and concise evidence of the
claim. Both civil and Islamic traditions prioritize the fair assignment of
resources and uphold individual property rights, while having a strong focus
on contracts and property laws to specify ownership and transactions. In
doing this, civil and Islamic legal traditions work together to prevent the
infringement of human rights and ensure justice is served. “The entire
structure of Islamic law would be directed to ensuring justice for the
individual person and mutual respect, and the treatment of the Shari’a
would make ‘the aristocracies of birth, race, wealth, language . . . all
suspect as disrespectful of persons’.” H. Patrick Glenn, Legal Traditions of
the World: Sustainable Diversity in Law,196 (5th ed. 2014).
The third and last difference between civil and Islamic legal traditions is the
relation between law and religion. The civil legal tradition has a clear
separation between law and religion. However, the Islamic legal tradition, is
inherently religious with its own legal principles derived from Islamic
teachings and values. Islamic Legal Systems. Judiciaries Worldwide: A
Resource on Comparative Judicial Practice (2024).
Research Essay: Civil
and Islamic Legal
Traditions
JURI 510
Conclusion
As you can see civil and Islamic legal traditions share three main
similarities emphasizing justice and fairness, public order, and a respect for
human rights. This author has had a challenging time drafting this essay
while trying to keep an open mind while trying to see every side of differing
legal traditions. As a spouse of a disabled combat veteran who was blown
up outside of Fallujah on his last of three tours while serving as a Navy
Seabee, I find it extremely hard to want to learn about a cultural tradition
that tried its best to almost kill my husband on three separate occasions.
Even though my husband has been out of the service since 2007, he still
lives with the constant mental fight from what he saw, what he endured,
and what he had to do to stay alive. Between the PTSD, night terrors,
flashbacks, and now not being able to fully discuss my coursework with him
in fear of causing more restless nights for him, makes it even more
challenging to navigate this essay.
I have learned through my research and secondhand accounts that Sharia
law is one of the harshest laws that are directed at women. Women are not
allowed to speak to any man outside of her family or she could face extreme
consequences. I have heard secondhand accounts of women being stoned to
death in a public setting because she made the mistake of speaking to
another man. There are accounts of women having their genitals mutilated
if caught cheating or having acid thrown on them by their husbands'
Research Essay: Civil
and Islamic Legal
Traditions
JURI 510
mothers or sisters because they did not like how she spoke to them. Women
are still not allowed to drive unless their husband approves it. Bahrain is not
currently under Sharia law. Women are the ones that are targeted under
Sharia law, husbands or older male family members have complete control
over the women. In Saudi Arabia if you are caught stealing, the first offense
you would lose your dominant hand. The second offense you would lose the
other hand. “The most well-known text is 5: 38 of the Koran: ‘As for the
thief, both male and female, cut off their hands.’ Now, this is pretty
straightforward, even if you are skilled in deconstruction, and has
generated great debate, both within (of course) and without the tradition.
Some hands have also been cut off, and in recent years. If you want to steal
something in an Islamic jurisdiction, you should think carefully about it. Yet
there is no way of knowing, for certain, whether you would lose one, or
both, of your hands, if found guilty of theft.” H. Patrick Glenn, Legal
Traditions of the World: Sustainable Diversity in Law ,196 (5th ed. 2014).
Powered by TCPDF (www.tcpdf.org)
