defined, its sources are mentioned, its

theories are traced, and its kinds are

found. After doing that, similarities and
dissimilarities between the things
compared are pointed out.
In this lecture an effort has been made to
discuss all these matters concerning
Western and Islamic concepts of law as
briefly as possible, in the manner of
conducting research on standard
principles.

Etymology1 of the word “Law”

It is derived from old German word Lag

which came to English as Lagu and later
became Law. The inherent meaning in
this word is equality. However, it is used
1
Etymology means the study of the origin and
development of word. See Linguistics and Language, Julia
S. Falk, John Wiley and Sons, New York: 1978, p.49.

Electronic copy available at: http://ssrn.com/abstract=2055906

to convey the sense of settled rules and
regulations as no society can live an
organized life without laws. It is the law
that creates equality among the conduct
of individuals and thus renders them to
coexist in the same society. The
principles and rules appear in the form of
customs and usages the violation of
which results in social boycott. However
the laws of a State are distinct for the
reason that the State being sovereign, it
uses its power to enforce them and
compels the individuals to obey them
and punishes in case of violation of any
such law.
According to New Standard Dictionary
of English Language, Law is an
obligatory rule of action; specific., arule
of conduct prescribed by the supreme

3
power in a state; a legislative enactment;
as the law of God and man.2
The following distribution of law is that
made by Wharton in his law lexicon:

Law
Between God and Man
Natural-Revealed

Law between Man and Man

National or Municipal- International
Constitutional-Canon or Ecclesiastical-
Common Law-Equity.
Public or criminal- Private or Civil.3

2
Funk and Wagnalls, Niew Standar Dictionary of English
Langiage, Funk and Wagnalls Publishing Company, New
York: 1963, p. 1398. The first edition of this Dictionary
was published in 1913. It means a year less than a century
have passed but the glory and usefulness of this dictionary
has shined more and more. The reasons are many, of
which one is authenticity of data. [Justice Dr. Munir A.
Mughal].
3
Ibid. p.1399.

4
Law is not necessary to avoid mutual
conflict or confrontation but it is equally
necessary for mutual cooperation and
social conveniences. A Law works for a
long time in a society that has in it the
full capacity to fulfil the social and moral
requirements. A law that is not in
harmony with the needs of the society or
is outdated becomes of no use.
Consequently, it is amended by the
competent legislature or repealed by a
repealing enactment.

5
Definition4 of Law

According to Aristotle5:
Aristotle stated that “the rule of law . . .
is preferable to that of any individual.”
This is because individuals possess flaws
and could tailor government to their own
individual interests, whereas the rule of
law is objective.
[H]e who bids the law rule may be
deemed to bid God and Reason alone
rule, but he who bids man rule adds an
element of the beast; for desire is a wild

4
Definition is to gain clarity and precision regarding the
thing defined. Bryan A. Garner, A Dictionary of Modern
Legal Usage , 2nd ed. New York: Oxford University Press,
2003, p. 267
5
Aristotle was a Philosopher, born at Stagira, a Grecian
colony in the Thracian peninsula Chalcidice, 384 B.C.; died
at Chalcis, in Euboea, 322 B.C. CATHOLIC
ENCYCLOPEDIA: Aristotle
<www.newadvent.org › Catholic Encyclopedia › A>

6
beast, and passion perverts the minds of
rulers, even when they are the best of
men. The law is reason unaffected by
desire.
Rulers must be “the servants of the
laws,” because “law is order, and good
law is good order.”6

In the glossary of Aristotle’s terms, the

word “nomos” is used for law.7
6
http://www.crf-usa.org/bill-of-rights-in-action/bria-26-1-
plato-and-aristotle-on-tyranny-and-the-rule-of-law.html
7
Glossary of Aristotelian Terms
 action: praxis
 citizen: politês
 city-state: polis (also ‘city’ or ‘state’)
 community: koinônia
 constitution: politeia (also ‘regime’)
 free: eleutheros
 good: agathos
 happiness: eudaimonia
 happy: eudaimôn

7
According to:
A law is generally collection of such
general rules and regulations which has
at its back a political support.8

According to Austin:
 justice: dikaiosunê
 law: nomos
 lawgiver: nomothetês
 master: despotês
 nature: phusis
 noble: kalon (also ‘beautiful’ or ‘fine’)
 political: politikos (of, or pertaining to, the polis)
 political science: politikê epistêmê
 politician: politikos (also ‘statesman’)
 practical: praktikos
 practical wisdom: phronêsis
 revolution: metabolê (also ‘change’)
 right: exousia (also ‘liberty’)
 ruler: archôn
 self-sufficient: autarkês
 sovereign: kurios
 virtue: aretê (also ‘excellence’)
 without qualification: haplôs (also ‘absolute’)
 without authority: akuron

8
Everyman’s Encyclopaedia, Vol.8, p.379, London: 1978.

8
Law is the will of a sovereign.9

According to Curzon:
Law is a set of regulation which is issued
from a sovereign and its obedience is
made binding on the subjects by the
sovereign.10

Distinguishing between Law and Ethics

Curzon said:
Oluwaseun P. Adeola in his article
contributed to Hubpages has written:
“Law has been defined by L.B Curzon as
the written and unwritten body of rules
largely derived from custom and formal
enactment which are recognized as
binding among those parsons who
constitute a community or state, so that

9
Siyasat-o-Riyasat, Faruq Najib Akhtar, Lahore: 1967, p.
181.
10
Jurisprudence, Curzon, London: 1979, p. 27.

9
they will be imposed upon and enforce
among those persons by appropriate
sanctions. (p.209). it can be deduced
from the definition of L.B Curzon that
people within a sovereign geographical
enclave, through legitimate government,
impose set of rules upon themselves
which must be strictly adhered to. And
failure to live, act and /or transact
business on the basis of the recognized
law will result into appropriate
punishments.
Suffice to say, laws are not just
suggestions and expectations but are
requirements to behave in the stipulated
ways. As it is believed that government
makes the enactment and rules they also
see to ensuring that people live within
the dictates of the law. They achieve this
by using, for example, the police force to
enforce the recognized law of the land.
10
Moreover, for the proper understanding
of the term law, I will briefly discuss the
essential characteristics of law as
outlined by Susan M. Anstead.
 Consistent – it will be somewhat
difficult for people to adhere to
requirements that are contradictory. A
requirement is no law when it not
consistent
 Universal – The requirements must
be applicable to everyone with similar
characteristics facing the same set of
circumstances.
 Published – for a requirement to be
accessible to people, it must be
published in writing in the form that
everyone can have access to it.
Accepted – laws have to be generally and
utterly obeyed.
 Enforced – Members of society must
be compelled to obey the law in the

11
 case they refuse l to choose to do so
voluntarily.
Traffic law is an example of what an
operational law is in our society today
and it encapsulates the five
characteristics aforementioned.
To maintain orderliness on the roads and
smooth running of the transport industry,
government enacts the traffic law which
every member of a society must abide
by. However, any contravention of the
law will attract fines and /or prosecution.
Therefore, one can see that the
importance of law cannot be over
emphasized.”11

According to Salmond:

11
http://goodluck4ever.hubpages.com/hub/Law-and-Ethics-
Relatioships

12
Law is a collection of regulations which
is accepted by the State and enforces
them to administer justice in the State.12

According to Catholic Encyclopaedia:

“Law - By law in the widest sense is

understood that exact guide, rule, or
authoritative standard by which a being
is moved to action or held back from it.
Law, Canon - Canon law is the body of
laws and regulations made by or adopted
by ecclesiastical authority, for the
government of the Christian organization
and its members
Law, Civil (Influence of the Church on) -
Christianity is essentially an ethical
religion; and, although its moral
principles were meant directly for the
elevation of the individual, still they
12
Jurisprudence, Sir John Salmond, London: 19--, p. 27.

13
could not fail to exercise a powerful
influence on such a public institution as
law, the crystallized rule of human
conduct
Law, Common - The term is of English
origin and is used to describe the
juridical principles and general rules
regulating the possession, use and
inheritance of property and the conduct
of individuals, the origin of which is not
definitely known, which have been
observed since a remote period of
antiquity, and which are based upon
immemorial usages and the decisions of
the law courts as distinct from the lex
scripta; the latter consisting of imperial
or kingly edicts or express acts of
legislation
Law, Divine (Moral Aspect of) - That
which is enacted by God and made
known to man through revelation

14
Law, International - Defined to be 'the
rules which determine the conduct of the
general body of civilized states in their
dealings with each other' (American and
English Encycl. of Law)
Law, Mosaic - The body of juridical,
moral, and ceremonial institutions, laws,
and decisions comprised in the last four
books of the Pentateuch, and ascribed by
Christian and Hebrew tradition to Moses
Law, Natural - In English this term is
frequently employed as equivalent to the
laws of nature, meaning the order which
governs the activities of the material
universe. Among the Roman jurists
natural law designated those instincts
and emotions common to man and the
lower animals, such as the instinct of
self-preservation and love of offspring
Law, Roman - This subject is briefly

15
treated under the two heads of; I.
Principles; II. History.” 13
Sources of law

Like the state the law is also the product

of history. It has evolved with the
evolution of time. There is always a
power at the back of law. This power
may be religious or of the general masses
or the governmental or judicial or a view
of a jurist based on justice. Such power
serves as mint from where the public
opinion or any other opinion with the
support of the State with a stamp of the
sovereign who is at its back comes into
appearance. This organic movement of
law is the source of law. A law which is
prevalent in the society, due to its great
usefulness, people will feel convenience
to follow it and for this reason such law
13
http://www.newadvent.org/cathen/l.htm

16
will remain enforced in the society.
When the circumstances change this law
will also change and amendment in it
will be inevitable. Those circumstances
that will cause such change will be the
sources of law.

Division of Sources of law according to

Salmond

Salmond has divided the sources of law

into Formal and Material. Then Material
source has been further divided into
historical and legal. Then legal source
has been further subdivided into
legislation, judicial precedents, customs
and usages and conventions or
agreements. Legislation is further
subdivided into Administrative, Judicial,
Colonial, Municipal, and Autonomous. 14
14
Ibid.

17
Western Theories of Law

Theories of law are evolution of

historical process which has reached us
in developed forms. The principles of
law have reached us after centuries
ponder and observation. The fact is that
still there exists in these principles of law
a state of conflict and confrontation. To
show that conflict and confrontation the
experts in law have out forward a dozen
theories of which the most popular are
the following:
1. Natural Theory of Law;
2. Imperative Theory of Law;
3. Evolution Theory of Law;
4. Advantage Theory of Law.

18
Kinds of Western Laws

Kinds of Western Law with regard to its

different references are as under:

(A) With reference to Legislation

laws are;
1. Constitutional Law;
2. Written law;
3. Ordinances promulgated during
emergency;
4. Customary laws;
5. Judicial precedents or Judge made
law; and
6. International Law.

(B) With reference to geography laws

are:
1. National law; and
2. International law.

19
(C) With reference to function laws
are:
1. Personal law,
2. Common law,
3. Administrative law.

(D) With reference to crime laws

are:
1. Criminal law,
2. Civil Law
3. International law.

(E) With reference to Memory are:

1. Written law
2. Unwritten Law

(F) With reference to legislation

laws are:
1. Ordinance.
2. Act.

20
Kinds of Law as stated by Salmond

1. Commanding Law,
2. Natural or Moral Law,
3. International law
4. Domestic law or the law of the
land,
5. Physical or scientific law,
6. Contractual law,
7. Customary law,
8. Law of Art;
9. General law,
10. Special Law,
11. Martial law.

Islamic Concept of Law

In Islam for law the word used is

Shari`at. Shari`at means “the Straight
Path/‫”اﻟﺼﺮاط اﻟﻤﺴﺘﻘﯿﻢ‬. All Muslims in all
their prayers recite the first chapter of the
21
Holy Qur’an called Surah al-Fatihah. It
contains seven oft-repeated verses. It is
also called Surah Al-Hamd. In it they all
pray15 :“Show us the Straight Path”.
15
The full text and translation of Surah al-Fatihah is:

         

        

       

        

In the name of Allah, Most Gracious, Most Merciful.
1. Praise be to Allah, the Cherisher and Sustainer of the
worlds;
2. Most Gracious, Most Merciful;
3. Master of the Day of Judgment.
4. Thee do We worship, and Thine aid we seek.
5. Show us the straight way,
6..The way of those on whom Thou hast bestowed Thy
Grace,
7. Those whose (portion) is not wrath, and who go not
astray.
[1: 1 to 7]

22
What is the Straight Path? The Holy
Qur’an has mentioned the Straight Path
in the following words:

       

     

     

All who obey Allah and the apostle are
In the company of those on whom is the
Grace of Allah, - of the prophets (Who
teach), the sincere (lovers of Truth), the
witnesses (Who testify), and the
righteous (Who do good): Ah! What a
beautiful fellowship!
[4:69]

23
Its source is Divine Guidance.
It originated when first man on earth i.e.
Hadrat Adam (peace be upon him) was
sent. Adam was creation of God
Almighty. He was guided concerning all
such affairs that were necessary by God
Almighty by means of revelation. It
covered all walks of human life.
The event is mentioned in the Holy
Qur’an at various places:

       

       

     

         

24
      

      

         

      

      

      

      

      

      

25
      

       

     

       

       

       

       

       

       

26
      

       

 
Behold, Thy Lord said to the angels: "I
will create a vicegerent on earth." They
said: "Wilt Thou place therein one who
will make mischief therein and shed
blood? - whilst we do celebrate Thy
praises and glorify Thy holy (name)?"
He said: "I know what ye know not."
And He taught Adam the nature of all
things; then He placed them before the
angels, and said: "Tell me the nature of
these if ye are right."
They said: "Glory to thee, of knowledge
we have none, save what Thou hast
taught us: In truth it is Thou who art
perfect in knowledge and wisdom."
27
He said: "O Adam! Tell them their
natures." when He had told them, Allah
said: "Did I not tell you that I know the
secrets of heaven and earth, and I know
what ye reveal and what ye conceal?"
And Behold, we said to the angels: "Bow
down to Adam" and they bowed down.
Not so Iblis: He refused and was
haughty: He was of those who reject
Faith.
We said: "O Adam! Dwell Thou and Thy
wife In the Garden; and eat of the
bountiful things therein as (where and
when) ye will; but approach not this tree,
or ye run into harm and transgression."
Then did Satan make them slip from the
(garden), and get them out of the state
(of felicity) in which they had been. We
said: "Get you down, all (ye people),
with enmity between yourselves. On

28
earth will be your dwelling-place and
your means of livelihood - for a time."
Then learnt Adam from His Lord words
of inspiration, and His Lord turned
towards him; for He is Oft-Returning,
Most Merciful.
We said: "Get you down all from here;
and if, As is sure, there comes to you
guidance from me, whosoever follows
My guidance, on them shall be no fear,
nor shall They grieve.
"But those who reject Faith and belie
Our Signs, they shall be companions of
the fire; they shall abide therein."

[2: 30 to 39]

The last of the Prophets was Hadrat

Muhammad (Peace and blessings of
Allah be upon him) on whom was
revealed the Holy Qur’an, the last

29
message of God to mankind. Earlier to it
were revealed the Taurat on Hadrat
Musa (peace be upon him), the Injil on
Hadrat `Isa (peace be upon him), and
Zabur on Hadrat Da`ud (peace be upon
him). They all contained guidance and
mercy. Muslims believe all the past
books and Divine Scriptures as truly sent
by Allah Almighty and that they
contained guidance, light and mercy in
them. Thus in Islam Law means Al-
Din/‫اﻟﺪﯾﻦ‬.

What is Islam?
The Holy Qur’an says:

30
       

       

       

    

The Religion before Allah is Islam

(submission to His Will): nor did the
people of the Book dissent there from
except through envy of Each other, after
knowledge had come to them. But if any
deny the Signs of Allah, Allah is swift in
calling to account.
[3:19]

The Holy Qur’an has warned

beforehand to the whole mankind:

31
        

    

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).
[3:85]

DOMINANCE OF ISLAM
PREDICTED
      

     

 

32
It is He who hath sent His Messenger
with guidance and the Religion of truth,
to proclaim it over all religion, Even
though the Pagans may detest (it).
[9:33]

Why at present Muslims are subjugated

every where?
The simple answer is that they are not
conducting in the manner the Holy
Qur’an and Sunnah has guided. Islam is
a way of life for all mankind. Whoso will
believe and do righteous deeds will get
its fruits. The glory in the past of the
earlier Muslims was due to their
committed to the cause of Islam and
truthfulness and sincerity of their action
and conduct. Time and Tide care for
none. Nations have their rise and fall.
The law of cause and effect is applicable

33
in all affairs except when there is Divine
Command otherwise. The history has in
its memory fresh even today the burning
fire lit by Namrud and his people for
Ibrahim had become cool and full of
peace for Ibrahim by the Divine
Command. The Nile split into two to
give way to Moses and those who
believed in him and drowned the army of
Fir`aun. Hadrat Adam was born without
parents. Hadrat `Isa was born to Virgin
Mary without father. Hadrat `Isa made
the dead alive by the leave of God,
healed the lepers, informed as to what
food was digested by a person and what
left behind. Raised up to the heavens
alive despite all plots of the enemies.
Hadrat Muhammad ( ‫ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ‬
‫ )وﺳﻠﻢ‬was blessed with hundreds of
miracles. The most apparent was the
Split into two of the moon, the peaking

34
of the trees, stones, animals and
believing in him of the Jinns. All and
real sovereignty over the entire universe
is thus of Allah Almighty and He is all
powerful to do any thing He wills.
Generally, this world is the world of
cause and effect. Everything is creation
of Allah Almighty. Hence to submit
before him in words and conduct is
Islam.

WHERE TO FIND ISLAM?

It is to be found in the injunctions of

Islam. What are injunctions of Islam?
Injunctions of Islam are contained in the
Holy Qur’an and Sunnah.

ROLE OF TADABBUR, TAFAKKUR

AND TA`AQQUL

35
Allah Almighty has blessed mankind
with many favours for which thanks to
God are due but most people either deny
of any favour on them or knowingly
ignore and bypass. This is serious.
Heart and mind both are the most high
faculties and favours of Allah Almighty
upon human beings to make understand
of man himself.
It is the fairness that attracts. Attraction
creates attachment and much mention of
the beloved and also a sense of obeying
the beloved. Same is true in the case of
our love towards Allah Almighty. How
to test our love towards our Creator? The
Holy Qur’an says:

       

       

36
Say: "If ye do love Allah, follow Me:
Allah will love you and forgive you your
sins: for Allah is Oft-forgiving, Most
Merciful."
[3:31]

Tadabbur is going deep into the Holy

Qur’an.
Tafakkur means contemplation.
Ta`aqqul means to stop, to restrain and
make all possible effort to visualize what
has been the past, what is our present
state of affairs, what we have to do to
have access the goal in future.
This process must continue with ever
breath.
Muhasaba-i-Nafs is to be made every
moment. Self accountability is thus a
great favour for human beings. Fairness

37
in character is generated by this process.
What you owe to others have you paid it
to them punctually, properly, correctly
and legitimately. If not what was the
reason? Why not to explain him the
circumstances and get grace period?
Why not to reassess the economic
priorities and start making the payment
how small it may be. To postpone the
due creates further problems. Why not to
forgive or give more time to the brother
who had taken a lone but is now hard hit
by economic constraints. A little thinking
will cause much ease and convenience.
There should be no falsehood, no
hypocrisy, no plotting, and no
dishonesty. We must remain fair whether
we are having upper hand or lower hand.
Half of the way in the process of law is
thus covered and the wrongs start
becoming fair.
38
Sources of Islamic Law
There are four sources of Islamic law,
namely,
1. The Holy Qur’an ;
2. The Sunnah of the Messenger
of Allah (‫;)ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬
3. The Ijma`/‫ اﺟﻤﺎع‬and
4. The Qiyas/‫ ﻗﯿﺎس‬.

The first two are the Primary Sources of

Islamic Law while the third and the
fourth are the Secondary sources of
Islamic law.

Islamic Sources of Law are divided into

two broad categories, namely, direct
sources and indirect sources.

Direct sources are the Holy Qur’an and

Sunnah of the Messenger of Allah
(‫ )ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬which has been
39
preserved in the storage of authentic
Ahadith.

The Holy Qur’an ha enjoined at nineteen

places to obey Allah and to obey the
Messenger of Allah ( ‫ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ‬
‫ ;)وﺳﻠﻢ‬those places are:

In Surah16 Al-i-`Imran, Allah Almighty

says:
        

   

16
Surah means a Chapter. Ayat means a Verse of the Holy
Qur’an. The Holy Qur’an has 114 Chapters. Surahs are
given names according to some important event or figure
referred to such event. In writing firstly the number of the
Surah is mentioned and secondly after the colon the
number of the verse or verses is quoted. Thus 3:132 means
that this text is available in Surah Al-i-Imran which is the
third Surah of the Holy Qur’an and the text is in verse No.
132.

40
Say: "Obey Allah and His Messenger:
but if they turn back, Allah loves not
those who reject Faith.
[3:32]

    


And obey Allah and the Messenger. that
ye may obtain mercy.
[3: 132]

In Surah al-Nisa Allah Almighty says:

      

        

41
       

      

O ye who believe! Obey Allah, and obey
the Messenger, and those charged with
authority among you. If ye differ in
anything among yourselves, refer it to
Allah and His Messenger, if ye do
believe In Allah and the Last Day: that is
best, and most suitable for final
determination.
[4:59]17
17
Here Allah and the Messenger of Allah ( ‫ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ‬
‫ )وﺳﻠﻢ‬and those vested with authority from among you have
been stated to be obeyed. As for Allah and the Messenger
of Allah (‫ )ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬there obedience is
unconditional as the one who obeys the Messenger of Allah
(‫ )ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬he actually obeys the Messenger of
Allah (‫ )ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬see al-Qur’an: 4:80. As for
those vested with authority from among the Muslims their
obedience is conditional to their own obeying Allah and the
Messenger of Allah (‫)ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬. The authority is
available in the Ahadith that ‫ﻻ طﺎﻋۃ ﻟﻤﺨﻠﻮق ﻓﯽ ﻣﻌﺼﯿۃ ﷲ‬

42
In Surah al-Ma’idah Allah Almighty
says:

      

      


Obey Allah, and obey the Messenger,
and beware (of evil): if ye do turn back,
know ye that it is Our Messenger’s duty
to proclaim (the message) in the clearest
manner.
[5:92]

In Surah al-Anfal Allah Almighty says:

There is no obedience to the creation in any commandment

which is in fact disobedience to Allah Almighty.

43
      

       

      

They ask Thee concerning (things taken
as) spoils of war. Say: "(such) spoils are
at the disposal of Allah and the
Messenger. So fear Allah, and keep
straight the relations between yourselves:
obey Allah and His Messenger, if ye do
believe."
[8: 1]

      

    

44
O ye who believe! Obey Allah and His
Messenger, and turn not away from Him
when ye hear (him speak).
[8: 20]

     

       

 
And obey Allah and His Messenger. And
fall into no disputes, lest ye lose heart
and your power depart; and be patient
and persevering: for Allah is with those
who patiently persevere:
[8:46]
In Surah Ta Ha Allah Almighty says:

45
       

      

  

Aaron had already, before this said to
them: "O My people! Ye are being tested
in this: for Verily your Lord is (Allah)
Most Gracious; so follow me and obey
my command."
[20: 90]

In Surah al-Nur Allah Almighty says:

       

        

46
       

 
Say: "Obey Allah, and obey the
Messenger. But if ye turn away, He is
only responsible for the duty placed on
Him and ye for that placed on you. If ye
obey him, ye shall be on right guidance.
The Messenger’s duty is only to preach
the Clear (Message).
[24:54]

     

  

So establish regular prayer and give
regular charity; and obey the Messenger.
that ye may receive mercy.

47
[24:56]

In Surah Muhammad Allah Almighty

says:

      

    

O ye who believe! obey Allah, and obey
the apostle, and make not vain your
deeds!
[47: 33]
In Surah al-Mujadalah Allah Almighty
says:
     

       

48
     

      

Is it that ye are afraid of spending sums
in charity before your private
consultation (with Him)? If, then, ye do
not so, and Allah forgives you, then (at
least) establish regular prayer; practise
regular charity; and obey Allah and His
Messenger. And Allah is well-acquainted
with all that ye do.
[58:13]

In Surah al-Taghabun Allah Almighty

says:
      

     

49
So obey Allah, and obey His Messenger.
But if ye turn back, the duty of Our
Messenger is but to proclaim (the
message) clearly and openly.
[64:12]

     

      

    

So fear Allah as much as ye can; listen
and obey and spend in charity for the
benefit of your own soul and those saved
from the covetousness of their own
souls, - They are the ones that achieve
prosperity.
[64:16]

50
LEGAL CONSEQUENCE OF
OBEYING THE MESSENGER OF
ALLAH (‫)ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬

In Surah al-Nisa Allah Almighty says:

Indirect sources are Ijma`/‫اﺟﻤﺎع‬, Qanun

Shura, Qanun Ahadith, Qanun Ijtihad,
Qanun Fiqh, juristic laws, Istihsan,
Masalih Mursalah, Court decisions and
Istidlal.

Theories of Islamic law

In Islam the theory of law is one and that
is that it is the Holy Qur’an which is the
Last Message of God sent to mankind. It
51
is the first source of Islamic law.18 It is
the basic and immutable law and is
pristine pure and fully protected from all
sorts of interpolations till the Last Day.
Allah Almighty has guaranteed its full
protection as stated in the Holy Qur’an
itself in Surah al-Hijr:

       

We have, without doubt, sent down the
Message; and we will Assuredly guard it
(from corruption).
[15:9]

It contains all those aspects which are

necessary for the welfare, development
18
Mughal, Munir Ahmad, Islamic Perspective of
Administration of Justice in Early Periods (October 23,
2011). Available at SSRN:
http://ssrn.com/abstract=1948004 or
http://dx.doi.org/10.2139/ssrn.1948004

52
and growth of mankind. Its principles
cover all times and all people.

Practical demonstration of the Holy

Qur’an is present in the Sunnah, which
consist of the sayings, practices and tacit
approvals of the Messenger of Allah
(‫)ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬. The Ahadith are
the storage of all these Sunnahs.

Injunctions of Islam/‫ اﺣﮑﺎم اﺳﻼم‬are of two

types, namely, the commandments called
awamir/ ‫ اواﻣﺮ‬and prohibitions called
nawahi/‫ ﻧﻮاﮨﯽ۔‬. These injunctions are
present in the Holy Qur’an and Sunnah.

In Islam the theory of law is that the Real

Supreme Sovereign is Allah Almighty.
Human beings have been given limited
authority and to exercise that authority
they are to consider it a trust from God

53
with full sense of accountability. The
most honoured among mankind is he
who is the most God fearing and
observes the rule of law which is the
Shari`ah/‫ﺷﺮﯾﻌۃ‬.

The main difference between Western

Concept of Law and the Islamic Concept
of Law is that Western law is human
oriented while Islamic law is Divine law
and all other laws in whatever form they
may be must be Shari`ah Compliant and
conforming to the spirit of the
Shari`ah/‫ﺷﺮﯾﻌۃ‬. In West the human
sovereign is answerable to none.

Tom Bingham, the author of the world

famous book titled as “The Rule of
Law”, paying tribute to Prof. A.V. Dicey
examines the historical origins of the rule
of law, says:

54
“Credit for coining the expression rule of
law is usually given to Prof. AV. Dicey,
the Vinerian Professor of English Law at
Oxford, who used in his book An
Introduction to the Study of the Law of
the Constitution, published in 1985. The
book made a great impression and ran to
several editions before his death and
some after. But the point is fairly made
that even if he coined the impression he
did not invent the idea lying behind it.
One author has traced the idea back to
Aristotle, who in a modern English
Translation refers to the rule of law,
although the passage more literally
translated says: It is better for the law to
rule than one of the citizens, and
continues so even the guardians of the
law are obeying the laws.”19
19
Aristotle’s Politics and Athenian Constitution, ed. and
trans. John Warrington (J.M. Dent, 1959), Book III, s.
1287, p. 97.

55
In Islamic Law the human sovereign and
all those vested with authority are
answerable to God Almighty. Western
Law is secular. Islamic law is blended
with the spirit of Islam at all stages at all
times.
The spirit of Islamic law at individual
level is mentioned in the following
glorious verses of Surah al-Saff of the
Holy Qur’an :
       

        

 
O ye who believe! Why say ye that
which ye do not?
Grievously odious is it in the sight of
Allah that ye say that which ye do not.
56
[61: 2 & 3]

The spirit of Islamic law at family level

is mentioned in the following glorious
verse of Surah al-Tahrim of the Holy
Qur’an :

      

     

       

 
O ye who believe! Save yourselves and
your families from a Fire whose fuel is
men and stones, over which are
(appointed) angels stern (and) severe,

57
who flinch not (from executing) the
commands they receive from Allah, but
do (precisely) what they are commanded.
[66:6]

The spirit of Islam at State level is

mentioned in the Holy Qur’an in the
following glorious verse:
      

     

     

(They are) those who, if we establish
them In the land, establish regular prayer
and give regular charity, enjoin the right
and forbid wrong: with Allah rests the
end (and decision) of (all) affairs.
[22:41]
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Four schools of Islamic Jurisprudence
have developed during the last 1400
years among the Ahl al-Sunnah wal-
Jama`ah.20

What is al-Fiqh?

Imam Abu Hanifah21 stated:

‫ ﻣﻌﺮﻓۃ اﻟﻨﻔﺲ ﻣﺎ ﻟﮭﺎ و ﻣﺎ ﻋﻠﯿﮭﺎ‬:‫اﻟﻔﻘہ‬
Al-Fiqh is a person’s knowledge of his
rights and obligations.22

20
Mughal, Munir Ahmad, Schools of Islamic Jurisprudence
(January 31, 2012). Available at SSRN:
http://ssrn.com/abstract=1996514 or
http://dx.doi.org/10.2139/ssrn.1996514.
21
Imam Abu Hnafah (d. 150 AH) was the founderof the
Hanafi School of Jurisprudence.
22
Sadr al-Shari`ah/‫( ﺷﺮﯾﻌۃ‬d. 747 AH) Al-Talwih fi Hall
Jawamid al- Tanqih ,Karachi: 1979, p. 22.

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Technical meaning of al-Fiqh:

‫اﻟﻌﻠﻢ ﺑﺎﻻﺣﮑﺎم اﻟﺸﺮﯾﻌۃ اﻟﻌﻤﻠﯿۃ اﻟﮑﻤﺘﺴﺒۃ ﻣﻦ ادﻟﺘﮩﺎ‬

‫اﻟﺘﻔﺼﯿﻠﯿۃ‬

The knowledge of the legal rules,

pertaining to conduct, that have been
derived their specific evidences.23

Al-`Ilm bi’l-Ahkam has qualified the

wide meaning and excluded from Fiqh
all kinds of knowledge that do not
pertain to ahkam or rules. This is further
qualified by Shar`i and the meaning of
fiqh is confined to the knowledge of the
Shar`i Ahkam.
23
This translation has been made by contemporary scholar
Imran Ahsan Niyazi. Theories of Islamic Law, IRI Press,
Islamabad: 1991, p.22. He has explained that the usual
translation was detailed proofs which was likely to confuise
the readers. It is the specif evidences that are referred to in
the definition as distinguished from the genral evidences or
the adillah ijmaliyah. Ibid. Foot note no. 7 at p. 22.

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Distinction between Shar`i and
Ghayr Shar`i Ahkam.

Shar`i Ahkam means legal rules that

pertain to law. Ghayr Shar`I Ahkam are
of three types:
 Rational like 2+2=4 or the rule that
the sum is greater than its parts;
 Perceived by Senses as the fire burns
or the wood floats on water; and
 Discovered through experience, like
Aspirin cures headache.

What is the distinction between

Shari`ah/‫ ﺷﺮﯾﻌۃ‬and Fiqh/‫?ﻓﻘہ‬

Shari`ah/‫ ﺷﺮﯾﻌۃ‬is the law itself while

Fiqh is a knowledge of that law___its
jurisprudence.

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Distinction between the Qur’an
and the Sunnah (the two primary
sources) and the Qiyas/‫ﻗﯾﺎس‬:

Analogy is used to discover the law

(from the Qur’an and Sunnah) a
hukm/‫ ﺣﮑﻢ‬of Allah. Qiyas/‫ ﻗﯿﺎس‬is thus
merely a method of deisovering a law
laid down in the Holy Qur’an and
Sunnah and the law is actually being
proved from the two primary sources.

What are Usul-Fiqh?

‫ھﯽ اﻟﻘﻮاﻋﺪ اﻟﺘﯽ ﯾﺘﻮﺳﻞ ﺑﮩﺎ اﻟﻤﺠﺘﮩﺪاﻟﯽ ٰ اﻻﺣﮑﺎم‬

‫اﻟﺸﺮﻋﯿۃ ﻣﻦ اﻻدﻟۃ اﻟﺘﻔﺼﯿﻠﯿۃ‬

62
 Those are the principles by the use of
which the mujtahid arrives at the legal
rules through the specific evidences.

Similarity between Secular and

Islamic theory of law:

Legal Theory in secular or positive law

tells how do judges discover and apply
the law.

Legal Theory in Islamic law tells how

do Muslim jurists discover law from
the Holy Qur’an and Sunnah and apply
it to the set of facts facing them.

Dissimilarity between Secular and

Islamic theory of Law:
Western legal theory focuses on what
the judge actually does.
63
 Islamic legal theory focuses on what
the should do. Islamic legal theory
therefore poses the question: How
should the judge should discover and
apply the law? In other words, a
knowledge of legal theory is a
prerequisite in Islam for the ability to
derive the law, while it is not so in the
secular or positive law.

What is the essence of social

contract within a Muslim
Community?

The Holy Qur’an, in Surah al-An`am

says:

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         

      

         

Say: "For me, I (work) on a Clear Sign
from My Lord, but ye reject Him. what
ye would see hastened, is not In My
power. the command rests with none
but Allah. He declares the truth, and He
is the best of judges."
[6:57]

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