i

HARMONIZATION OF LAWS

BY

AHMAD RIZZA HABIBI: G1819693

A paper submitted in fulfilment of the requirement for the assignment of

Comparative Law course

Supervising by:
Prof. Farid Sufian Bin Shuaib

Ahmad Ibrahim Kulliyyah of Law

International Islamic University Malaysia

2018
 ii

Table of Content

Cover ........................................................................................................................................... i
Table of Content ........................................................................................................................ ii
Abstract .....................................................................................................................................iii
Content
1. INTROCUTION........................................................................................................... 1
1.1. The notion of Harmonization ................................................................................. 1
1.2. Harmonization and Law ......................................................................................... 2
1.3. Scope of Harmonization of Laws ........................................................................... 4
2. THE IMPORTANCE OF HARMONIZATION OF LAW
2.1. Introduce the law adapted in Malaysia and other countries .................................... 8
2.2. Why there is a need to harmonise the law ............................................................. 8
2.3. What is the effect of this harmonisation of law ..................................................... 8
2.4. How does this harmonisation work on the law in Malaysia .................................. 8
2.5. Harmonization of Law in Muslim Countries ......................................................... 8
2.6. Harmonization of Law in European Union ............................................................ 8
2.7. The vision of harmonization of law ....................................................................... 8
3. HARMONISATION OF ISLAMIC LAW AND CIVIL LAW IN MALAYSIA
3.1 What is Islamic Law .............................................................................................. 8
3.2 What is Civil Law .................................................................................................. 8
3.3 Who has proposed to this harmonisation of law and the history of this proposal .. 8
3.4 Examples on the law/act which should be harmonised with the Islamic Law ........ 8
3.5 The development of the harmonisation of law........................................................ 8
3.6 The obstacle to impose harmonisation of Islamic law and Civil Law .................... 8
3.7 The suggestion to implement this harmonisation of law ....................................... 8
4. HARMONISATION OF CUSTOMARY LAW
4.1 The meaning of customary law .............................................................................. 8
4.2 Harmonization of customary law and modern law ................................................ 8
4.3 The Implementation of Harmonisation of Customary Law ................................... 8
Bibliography

ABSTRACT
 iii

Harmonization of laws is a process to effect an approximation or co-ordination of different

legal provisions or systems by eliminating major differences and creating minimum
requirements or standards.
 1

1. INTRODUCTION
1.1. The notion of Harmonization
Harmonization, or the process of bringing about harmony, implies a state of
consonance or accord; the combination or adaptation of parts, elements or related
things, so as to form a consistent andorderly whole. English etymology indicates that
the earliest sense of harmony arises in relation to music and refers to the combination
of musical notes, so as to produce a pleasing effect. The fundamental characteristics
of harmonization are best illustrated by pursuing the analogy to music.
One attribute of harmonization is that it presupposes and preserves the
diversity of the objects harmonized. According to music theory, harmony is the
vertical integration of notes, while melody is the horizontal integration. Vertical
integration means the simultaneous sounding of different tones or pitches. Harmony,
therefore, requires diversity and eschews uniformity. Musically, uniformity, the
simultaneous sounding of two identical tones, results in a monotone or silence,
depending upon the phases or sequences of the sound waves. A second feature of
harmony is that its components, while retaining their individuality, form a new and
more complex musical sound. Virtually anyone who has listened to music can attest
to the richness of a melody played in multiple tones or chords as opposed to its single
note form.
A third feature, which has been challenged by relatively modern
developments in music, is that of consonance. Harmony, as generally perceived, is
the opposite of discord and produces an agreeable or pleasurable combination of
sounds. While scientists can describe the physical and mathematical features of
harmonious and discordant sounds, they cannot explain why humans find certain
musical sounds pleasurable and others disagreeable. Modern developments indicate
a growing human tolerance for dissonance, so that harmony can be objectified to
refer merely to the relationship of tones considered as they sound simultaneously,
without necessarily imposing the value judgments implicit in consonance and
dissonance.6 Hence, in a modern perspective, while harmony implies a relationship
ordered by certain criteria, these criteria can be relative or absolute.
 2

In summary, harmonization is a process in which diverse elements are

combined or adapted to each other so as to form a coherent whole while retaining
their individuality. In its relative sense, harmonization is the creation of a relationship
between diverse things. Its absolute and most common meaning, however, implies
the creation of a relationship of accord or consonance. 1 The conclusion is that
harmonization, other than in its global and most abstract sense, is a vague, applied,
grouping mechanism. Any specific proposal for or theory of harmonization,
therefore, must be supported or justified by other reasons or normative values.

1.2. Harmonization and Law

Given the notion of harmonization described above, its role in the legal
evolutionary process depends on the features or elements of law to be harmonized.
The inherent characteristics of harmonization imply that these elements are, at least
initially, unlimited. In the legal literature, the concept of harmonization of laws arises
exclusively in comparative law and particularly in conjunction with inter-
jurisdictional, private transactions. Harmonization is applied to specific and general
areas of the laws of different countries or states within a federated country in order
to facilitate transactions between their citizens or residents.
The limitation of harmonization to laws of different jurisdictions is consistent
with the concepts of law and law reform, as well as the notion of harmonization
described above. In fact, harmonization is redundant in any other legal context. Law
as a system of concepts, rules, standards and methods for regulating human behaviour
is predicated upon an ideal of inherent consistency and coherence or internal
harmony. Harmony is both an objective and an inherent characteristic of any system.
The external analysis of law is a method by which legal philosophers and theorists
attempt to define law by analyzing the features and underlying principles common to
all systems of law. The formulation of a theoretical model of law is harmonization
of ideas about law in that it entails the creation of a meta-system for systems of law;
a new, complex form in which diverse features of different legal systems are

1
Marlin Boodman, The Myth of Harmonization of Laws, The American Journal of Comparative Law, Vol.
39, No. 4 (Autumn, 1991). 700-702.
 3

reconciled. The harmonization of concepts and features of law is intrinsic to and,

therefore, redundant for projects in legal theory and legal philosophy.
Harmonization is similarly superfluous to the internal analysis and
development of the laws of a particular jurisdiction or particular legal domain within
a jurisdiction. The goal of internal consistency is a constant feature of the application
and interpretation of the laws within a jurisdiction. Whether jurists confront old or
new problems within the framework of existing laws or law reform, the integration
of the solution into the law of the jurisdiction is an essential part of the legal
evolutionary process.2
Three points are clear. First, harmonization presumes from the outset the
existence of a degree of compatibility between two or more components. Thus, it
cannot be applied to laws and concepts that are essentially incompatible. Second,
harmonization applies both to physical objects, such as placing certain objects in a
state of harmony with one another, and to abstract ideas, sounds and relationships,
without, however, attempting to introduce new changes on either side. It is this latter
sense of harmonization that is of greatest interest to us. Third, harmonization is an
attempt to change the relationship between two or more objects, rules or ideas so as
to bring them into a state of compatibility;3 it may also result in the introduction of
new rules, norms and standards, as in the case of EEC, which seek to develop
coordination and agreement.
In summary, harmonization as described in the comparative law literature
regarding inter-jurisdictional transactions is either redundant because it already
exists, or meaningless because it describes any and every comparative legal analysis.
As a model for law reform, to the degree that the comparative law notion eschews
diversity it cannot be harmonization. The unavoidable conclusion is that in a legal
context harmonization is merely synonymous with the process of problem solving
and is as infinite in its configurations as are potential problems in law. Outside the
context of a legal problem and without a prior justification, harmonization of law is

2
Marlin Boodman, 703.
3
Kamali, Moḥammad Hashim. "sharī’ah and Civil Law: Towards a Methodology of Harmonization." Islamic
Law and Society, Vol. 14, No. 3, 2007. p. 392-393
 4

unintelligible as an objective or basis for law reform despite its ostensible application
to inter-jurisdictional transactions. Therefore, harmonization of law per se has no
general meaning, is not theoretically justifiable and evokes no particular
methodology or model. Harmonization of law is at best a pragmatic or grounded
concept in that it cannot be dissociated from its particular context or applied use.4

1.3.Scope of Harmonisation of Laws

Harmonization of law arises exclusively in comparative law literature, and
especially in conjunction with interjurisdictional, private transactions.
Harmonization seeks to ‘effect an approximation or co-ordination of different legal
provisions or systems by eliminating major differences and creating minimum
requirements or standards’.5 What has given rise to the problem of harmonization is,
of course, the existence of a large number of diverse legal systems in the world. Each
independent State has its own individual system of law and quite frequently several
systems co-exist within the same State whether such State is constituted as a federal
or unitary State.
There are three levels at which the unification or harmonization of laws may
occur: the international or world-wide level; the regional level; the national level.6
a. International Level
Some belief that there exist basic elements, principles, concepts and
institutions common to all civilized systems of law and it could be
ascertained through the use of comparative law. However, unification at the
international level is only feasible and desirable in limited areas such as
commercial law, maritime law, space law and broadcasting law. On the
other hand, harmonization has better prospect because while eliminating or
minimizing major legal obstacles, it allows for a certain amount of variation
in matters of detail.
b. Regional Level

4
Marlin Boodman, 707.
5
Kamba, ‘Comparative law: a theoretical framework’ (1974) 23 ICLQ 485. p 501. In de Cruz, P. (1999).
‘’Comparative Law in a Changing World’’. London: Cavendish Publishing. p. 24.
6
Ibid.
 5

States located in the same geographical area may have quite similar
legal system die to similarity of historical background and culture. The need
for unification or harmonization becomes more pressing by the close
interrelation developed among the regional states, e.g. Scandinavian
countries and European Union.
c. National Level
The unifying or harmonizing process is confined to the diverse laws
found within the unitary State. In these territories legal dualism or pluralism
has been a dominant characteristic since the colonial era. Two, and
sometimes three, different types of law or legal traditions operate
simultaneously in the same country.7

2. THE IMPORTANCE OF HARMONIZATION OF LAW

2.8. Introduce the law adapted in Malaysia and other countries
2.9. Why there is a need to harmonise the law
2.10. What is the effect of this harmonisation of law
2.11. How does this harmonisation work on the law in Malaysia
2.12. Harmonization of Law in Muslim Countries
In the concept of a modern state, the majority of Muslim countries experience
significant changes and transitions in their relationship between sharia and national
law. The development of western legal systems has more or less influenced the
national legal system, where sharia as a legal system has to deal with the western
legal system in several Muslim countries.

Table A. Islamic State and state religion, in twelve countries8

State Islamic State Islam is state Sharia as ‘a’ or
religion ‘the’ main source
Saudi Arabia Yes Yes Yes

Iran Yes Yes Yes

Sudan No No Yes

7
Kamba, 503.
8
http://www.law.cornell.edu/world, accessed on 15 November 2018
 6

Pakistan Yes Yes Yes

Afghanistan Yes Yes Yes

Egypt No Yes Yes

Morocco Yes Yes No

Nigeria No No No

Malaysia No Yes No

Indonesia No No No

Mali No No No

Turkey No No No

From the table above, it is known that sharia as a legal system is implemented
with various variations in several countries known as Muslim countries (both in terms
of the development of the application of law or from the side of the majority
population of Muslim countries). It can also be classified into the degrees where the
application of sharia as a legal source and its impact on the laws of the state.9 The
first category consists of systems where sharia-based law of a puritan orientation
pervades most areas of law. Saudia Arabia and Iran fit into this category. A second
category consists of secular legal systems, in which sharia has no role whatsoever.
Turkey is a prominent example. These leaves us with the majority of legal systems,
a middle group of ‘mixed systems’ as our third category. In this legal systems sharia-
based law has no overall dominance but plays a significant role in one or more areas
of law.
The problems that are commonly experienced by the countries above,
especially to countries that adhere to the "mixed system" between sharia and other
laws, are the compatibility between sharia and national law. Harmonization of law
has become a very positive term in the development of the legal systems.
Harmonization is also pursued by moderate and modernist forces, but the general
question arises whether the legal systems of the broad sharī’ah and national law can

9
Jan Michiel Otto. (2010). Sharia and national law in Indonesia, in Sharia and National Law: Comparing
the Legal Systems of Twelve Islamic Countries, edited by Jan Michiel Otto, Cairo: The American University
in Cairo Press, p. 635.
 7

be harmonized in an acceptable manner, in a sense that common law principles "not

contrary to Islamic law" can be introduced or maintained.10 For instance, due to the
prohibition of ribā, there is separation between conventional banking and Islamic
banking.11 Schacht (1960, 120) makes the fundamental observation that "[m]odernist
Islamic jurisprudence and legislation, in order to be sound and permanent, is in need
of a more solid and con-sistent theoretical basis". That still rings true today. In theory,
harmonization and even convergence is possible, as fiqhis, to some extent, "capable
of adaptation". Then, there are the underlying, basic principles of sharī’ah, which
can be used to provide a foundation to modern law in efforts towards ‘secular Islamic
legislation’.12Since the field of fiqh legal interpretations is vast, however, a
codification forcibly entails simplification.

2.13. Harmonization of Law in European Union

In relation to the European Union (EU), harmonization of law (or simply
harmonization) is the process of creating common standards across the internal
market. Though each EU member State has the primary responsibility for the
regulation of most matters within their jurisdiction and consequently each has its own
laws. Harmonization aims to: 1) create consistency of laws, regulations, standards
and practices, so that the same rules will apply to businesses that operate in more
than one member State, and so that the businesses of one State do not obtain an
economic advantage over those in another as a result of different rules. 2) reduced
compliance and regulatory burdens for businesses operating nationally or trans-
nationally.13 An objective of the European Union to achieve uniformity in laws of
member states is to facilitate free trade and protect citizens.14 Harmonization is a
process of ascertaining the admitted limits of international unification but does not
necessarily amount to a vision of total uniformity.15

10
Thorsten Koch. (2017). Islamic Law: Problem Areas of Sharī'ah Codification and Harmonization.
University of Wales Trinity Saint David (UWTSD). p. 13-14.
11
Kamali, 2007, 339
12
Schacht, Joseph.(1960) Problems of Modern Islamic Legislation. Studia Islamica, No. 12.
http://www.jstor.org/stable/1595112. 15 November 2018 p.120
13
https://en.wikipedia.org/wiki/Harmonization_of_law. Accessed on 17 November 2018.
14
Peter E Nygh, Peter Butt (ed). (1997). ‘’Butterworth Australian LEGAL Dictionary’’. p. 543
15
Menski, W. (2005). ‘’Comparative Law in a Global Context’’. London: Cambridge University Press. p. 39
 8

In common parlance the rationale for harmonization is to have a

comprehensive legal basis for free movement of trade and investment across
territorial boundaries of nations and to deal with all sorts of possible disputes that
could arise out of such business interface. The course of harmonization involves
making the regulatory, substantive requirements for Government policies of identical
or of more similar nature and adopting common principles of law thereby reducing
difference between national laws. Conceptually ‘Harmonisation’ is a process through
which domestic laws may be modified to enhance predictability in cross-border
commercial transactions. There is likelihood that international commerce may be
hindered by factors like lack of predictable governing law or out of date laws unsuited
for commercial practice.
The tools for harmonization of international trade law are through legislative
texts like model laws, conventions and legislative guides, which may be adopted by
States through domestic legislation and non-legislative texts, such as United Nations
Commission on International Trade Law (UNCITRAL) Arbitration Rules, which can
be used by parties in international trade contracts. A model law is a suggested pattern
recommended for adoption as part of national law. Harmonization of EU law causes
both advantages and disadvantages. On one hand, harmonization leads to more
homogeneous law in the member States. On the other hand, it leads to new
disparities, linked with the issues relating to the subsidiary principle. and the limits
involved by the directive. In fact, the instrument used for harmonizing European law
is usually the directive, which, unlike the regulation, is only binding for the result to
be achieved by the member States, leaving the national authorities the choice of form
and method.16

2.14. The vision of harmonization of law

Harmonization is short of unification and only an approximation of rules or a
coordination of policies. Unification and harmonization are pursued through similar

16
D.Sridhar Patnaik & Fabrizio Lala, ‘Issues of Harmonisation of Laws on International Trade from the
Perspective of UNCITRAL: The Past and The Current Work’, in Stefano D’orilia (ed.,), Participants Review of
International Trade Law Post-Graduate Course (University Institute of European Studies and ITC ILO,
Turin: 2006). 11-12.
 9

means: custom, trade practice, legislative acts or their equivalent, judicial practice
and the writings of legal authors Harmonisation can be achieved in two ways,
actively or passively. The most common is the active pursuit of harmonisation
usually through the enactment of legislation which incorporates the harmonised
principles into the local law. Passive harmonisation may occur through non-
legislative agreements or a convergence of case law. So far, passive harmonisation
is the least successful since the non-legislative agreements tend to be voluntary.17
Harmonisation is synonymous with convergence of the law however
harmonisation is usually associated via active pursuit through enacting legislation
whereas convergence is generally associated with a passive approach such as a
natural convergence of law through custom and frequent use of harmonised
principles. The most prominent example of harmonisation in international law is
UNCITRAL (United Nations Commission on International Trade Law).

3. HARMONISATION OF ISLAMIC LAW AND CIVIL LAW IN MALAYSIA

3.1 What is Islamic Law
3.2 What is Civil Law
3.3 Who has proposed to this harmonisation of law and the history of this proposal
3.4 Examples on the law/act which should be harmonised with the Islamic Law
3.5 The development of the harmonisation of law
3.6 The obstacle to impose harmonisation of Islamic law and Civil Law
3.7 The suggestion to implement this harmonisation of law

4. HARMONISATION OF CUSTOMARY LAW

4.1.The meaning of customary law
According to the French author F. Garrisson, the custom is "the set of habits
and practices born of repeated past behaviors that guide and shape subsequent
behaviors. Tradition, conformism become models of action, standards of conduct.

17
Prof. Dr. K. L. Bhatia, Textbook on Legal Language and Legal Writing (New Delhi: Universal Law Publishing
Co. Pvt. Ltd., 2010), 243-244
 10

Contrary to the law, custom expresses a law spontaneously and naturally derived
from the base, a pragmatic, popular law, made of practices held as rules. Custom is
the result of the manners of a society." This is to say that custom is a primitive law
that produced rules of conduct to which people had to refer for their activities in
accordance with these customary rules. However, in the eyes of some, these rules
may appear blurry or bizarre in the sense that they are oral among people without
writing and often cruel in the sense that they can impose certain behaviors that are
differently shared in substance and in the sense. 18
The generally accepted definition of customary law is that it is law established
by practices of persons in a community over a period of time and became generally
accepted and adopted as the norm. It is when accepted as the norm that it becomes
law and everyone in that community expected to go by it. It does not need to be
passed by any group of persons meeting to discuss it. This is why the basic principles
of customary law date back to time immemorial. Some old hands like J. S. Fenton
who served as a commissioner in Sierra Leone in the 1940s regarded customary law
as the wise way of dealing with a situation which the old people had as against new
laws which were being tested.19

4.2.Harmonization of customary law and modern law

Modern law, in its ordinary definition, is defined as: "the set of rules
governing the conduct of man in society, social relations", or more fully "the set of
rules imposed to the members of a society so that their social relations escape the
arbitrariness and the violence of the individuals and are in conformity with the
dominant ethic.” According to the advocates of legal positivism, law is a social
phenomenon. The society establishes rules to govern its functioning and to organize
the economic or political relations of the natural persons composing it. This gives it
considerable importance.20

18
M’Begniga Abdoulaye and Professor Ma Guang, African Customary Law and Modern Law from Western:
An Overview on Their Roles and Impacts in African Societies, International Journal of Social Science and
Humanities Research Vol. 5, Issue 1, Month: January - March 2017, 188.
19
E. E. C. SHEARS-MOSES. The Interaction Of Customary Law, Traditional Religions And Statutes,
https://www.iclrs.org/content/events/28/1743.pdf. Accessed at 5 December 2018.
20
M’Begniga Abdoulaye, 189.
 11

On the other hand, customary law is a recognized source of law within

jurisdictions of the civil law tradition, where it may be subordinate to both statutes
and regulations. In addressing custom as a source of law within the civil law tradition,
John Henry Merryman notes that, though the attention it is given in scholarly works
is great, its importance is "slight and decreasing."21 However, in many countries
around the world, one or more types of customary law continue to exist side by side
with official law, a condition referred to as legal pluralism
In Canada, customary aboriginal law has a constitutional foundation22 and for
this reason has increasing influence. Customary law is also used in some Third World
countries, such as those in Africa, usually used alongside common or civil law. For
example, in Ethiopia, despite the adoption of legal codes based on civil law in the
1950s according to Dolores Donovan and Getachew Assefa there are more than 60
systems of customary law currently in force, "some of them operating quite
independently of the formal state legal system." They offer two reasons for the
relative autonomy of these customary law systems: one is that the Ethiopian
government lacks sufficient resources to enforce its legal system to every corner of
Ethiopia; the other is that the Ethiopian government has made a commitment to
preserve these customary systems within its boundaries.23 In India many customs are
accepted by law. For example, Hindu marriage ceremonies are recognized by the
Hindu Marriage Act. The legal recognition of indigenous and tribal people in
Indonesia has been mandated in the constitution.24

4.3.The Implementation of Harmonisation of Customary Law

Within the framework of national legal system, all of the rules of law are seen
as one integrated system, consistency in the rules of law can be considered as legal
certainty. This consistency is not something that happens by itself, it but must be

21
Merryman, John Henry, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and
Latin America, (California: Stanford University Press, 2007, 3rd ed), 24.
22
"Constitution Act, 1982, s. 35(1)". Archived from the original on 20 March 2007. Retrieved 29 July 2008.
23
Dolores A. Donovan and Getachew Assefa, "Homicide in Ethiopia: Human Rights, Federalism, and Legal
Pluralism," American Journal of Comparative Law, 51 (2003), 505.
24
Wikipedia, Custom (law), https://en.wikipedia.org/wiki/Custom_(law)#cite_note-13. Accessed on 10
December 2018
 12

created. From the perspective of law enforcement, consistency in the actions of state
institutions greatly determines the degree of legal certainty. In other words,
inconsistency in such actions will result in legal uncertainty. Legal certainty will be
the attention of the people because they have sensitive feeling to injustice.
Harmonization of law in all of its rules is a legal subsystem within the framework of
national legal system. With this, it is hoped that the norms of law in the rules of law
are not conflicting with each other and there is no duplication or overlap. The urgency
of harmonization of law on one hand provides a strong legal basis in accordance with
the hierarchy of legislation, on the other hand provides a better legal system and legal
principles, so that in its implementation there is no conflict of norms. The main
emphasis is how framework of thought can be used in understanding the concept of
harmonization of law to overcome contradictions and differences between the rules
in the one integrated national legal system. With this there will be no longer
contradictions, differences and overlaps.25
The problem that often occurs in customary law areas is a conflict of interest
with the state through national law or policies. The prominent example can be seen
in Indonesia, the protection of the rights of customary community is regulated by the
Constitution. However, the state has also an authority to manage the natural resources
of the country for the greatest prosperity of the people, where in fact, in many cases
the government has issued some permits for the investments that operate in the area
of living that has been a shelter of customary law community. This is where there is
a dis-harmony between the constitution and government policies that have
marginalized customary law rights. Harmonization of law, in this case, is not merely
about the harmonization of texts, but the harmonization of texts with social meaning
in the life of the citizenz or human-centered (anthropocentri) regulation.26

25
I Gusti Agung Mas Rwa Jayantiari, The Harmonization of Law in Regulating the Rights of Customary
Community over Natural Resources in Indonesia, Journal of Law, Policy and Globalization, Vol.76, 2018, 13.
26
Ibid.
 13

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Retrieved 29 July 2008.
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International Journal of Social Science and Humanities Research Vol. 5, Issue 1,
Month: January - March 2017.
Bhatia. Textbook on Legal Language and Legal Writing. (New Delhi: Universal Law
Publishing Co. Pvt. Ltd., 2010)
Boodman, Marlin. The Myth of Harmonization of Laws, The American Journal of
Comparative Law, Vol. 39, No. 4 (Autumn, 1991).
Dolores A. Donovan and Getachew Assefa, "Homicide in Ethiopia: Human Rights,
Federalism, and Legal Pluralism," American Journal of Comparative
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 14

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