The law comprises a systematic set of rules that regulates the behavior of individuals, business, and other organizations within a society1. The role of law in every country is practically the same in that they all pursue one single purpose. However, we will divide them into three major legal systems as the method of facing to the given problem or the conduct of rules differs from one country to another. Each of these legal systems namely Common (Anglo-American) law, Civil (Continental) law and Religious (Islamic) law represents the same functions, and differs from each other by the way the law enacted, or processed and the way it emerged. In this article, the importance of the sources each system has and a just comparison between the sources of these systems will be covered and the importance of the convergence theory is put forward.

Differences between the sources of law in Civil, Common and Islamic Legal Systems

“Where the law is not regarded, there will be hunger” Benjamin Franklin

The law comprises a systematic set of rules that regulates the behavior of individuals, business, and other organizations within a society¹. The role of law in every country is practically the same in that they all pursue one single purpose. However, we will divide them into three major legal systems as the method of facing to the given problem or the conduct of rules differs from one country to another. Each of these legal systems namely Common (Anglo-American) law, Civil (Continental) law and Religious (Islamic) law represents the same functions, and differs from each other by the way the law enacted, or processed and the way it emerged. In this article, the importance of the sources each system has and a just comparison between the sources of these systems will be covered and the importance of the convergence theory is put forward.

Among the mentioned three systems, the older, more widely spread, and probably more influential one is Civil Law. Civil law, or so-called Continental law or Roman law, is the system of law where the judicial processes will undergo with the help of written statutes or doctrines written by legislative scholars. It has three main sub-traditions: Roman Civil law, Canon law and Commercial law. The Civil law first emerged in Roman and later originated in Europe. The traditionally date of its origins went far to 450 B.C. (when the Twelve Tables was published in Rome² ). And, today many countries such as France, Germany, Italy, Switzerland, Argentina, Brazil, Chile³, Mexico, Russia and Central Asia are ruled generally in the same system. Civil law has several typical sources to which the judges base their decisions. The one of the first written samples of comprehensive collation of law was Justinian’s codification of Roman law called Corpus Juris Civilis, published in Constantinople (Beirut, Istanbul⁴ ) in A.D. 533⁵. In later eras, the system had been enriched and has been being modified even up to now. The Civil Code of Napoleon (1804), the German Civil Code (1900) and the Italian Civil Codes are the samples or ‘children’ (candid influences) of Romanic Civil law¹.

Generally, codes, statutes, delegated legislation and doctrines will stand as the fundamental sources of law. Let us give a brief explanation of these sources:

Codes- A set of written rules, principles, or laws.
Statutes- are the acts passed by a legislative body, such as a parliament.
Delegated legislation is, on the other hand, detailed delegated rules to the higher legislative assembly i.e. Parliament.
Doctrines- A belief (or system of beliefs) accepted as authoritative by some group or school

Besides these sources, International Law, European Law, Case Law are used as an external or supplementary source of law. Although case law, here, does not have binding influence, it can still be interpreted in judicial processes

Common law, or alternatively referred as Anglo-American law, is the second major type of law, where the judicial processes will be decided based on precedents which are established in previously given judgments. Common Law first began in A.D. 1066 when the Nomads started to conquer England and spread globally throughout the British colonial countries. Now, it has been being used in several countries such as the USA, Canada, Oceania countries and Great Britain. Even it has some huge influences on the civil-law countries. In this law system, the main sources of law are treaties, EU law, statutes, delegated legislation, case law, equity and customs. Let us give a brief explanation for each source.

First, European Union Law, as it is clear from its name, is the law approved by the union. The countries receive an obligation of obeying the law by becoming members of the union.
Second, Statutes are the acts passed by a legislative body, such as a parliament. (we have already given the meaning in Sources of Civil Law section)
Delegated legislation is, on the other hand, detailed delegated rules to the higher legislative assembly i.e. Parliament.
Case Law is a precedent that took place before the current time of the judicial process. A judge must follow the other courts’ (whose reputation is higher) decision in judging the similar cases.¹

The cases previously held and the intelligence of Judge matter a lot in common law, because, judges also can impose new type of case law depending on the case’s uniqueness. Although legislations, here, (enacted laws² ) will not be used as a primary source of law, still the role of legislation is important in conducting judicial processes³

“Religious law (Islamic law) is so wide that the law, itself, is an integral part of it”

Al-Azmeh

Islamic law is the third major type of law, which covers the whole thing, counting from the norms of our daily life to the most sophisticated business issues. Islamic law was emerged in seventh century A.D.⁴ and spread throughout the Arabian empire. It was widespread even in most parts of central and middle-eastern Asian countries before the introduction of westernization. Today, in several countries such as Saudi Arabia, Bangladesh, Gambia, Libya, Mauritania, Morocco, Oman, and Yemen, Islamic jurisprudence is in power. Most recently, some countries, such as Afghanistan, Iran, Sudan and, increasingly, Pakistan, have moved to Islamic models. This shows how mighty influence Islamic law has.

When it comes to the source of religious law, we could say that they are the books and sayings taken by divine power or religious leaders like prophets and are called as sharia (meaning ‘the path to follow’ or equally referred as ‘Syariah’) as a whole. And, the Quran, the Sunna, judicial consensus, and analogical reasoning are considered to be the four fundamental sources of law⁵ in Islamic law.

The Quran (literally means Reading) is a sacred book of Muslims, which is the compilation of Allah’s words. The directives written in Quran are more general, so other sources of Islamic law base their main analogy on Quran.
The Sunna (paths taken by prophet) comprises full explanation of Mohammed’s behavior, deeds, and sayings. Other religion followers later compiled all of the prophet’s actions and it is called Hadith. Yasin Dutton identifies it as a ‘Quran in action’.
Judicial Consensus (Ijtihad like Ijma) is established by ‘a common religious conviction’ of major traditional legal scholars/jurists¹
If those sources lack of solving a problem, the fourth source, analogical reasoning (Qiyas al Fuqaha) will be used in judicial processes. The religious leaders such as khalifa / amir who have enormous authority and flexibility to form the rules and regulations will conduct analogical reasoning. That adds another dimension to the adaptability of Islamic law.

In addition to the above sources, the practices of the Khulafa-e-Rashidun² (the first four rulers of Islam), the decisions of the judges and the customs of the people are also considered sources of Islamic law in the cases, which are not given or specified in the Quran and the Sunnah.

Well, if you look at the statistics of the world, you will notice that 20% of world population is Muslim and 35 nations have Muslim majority (of which 20 nations have 85% Muslim population) and another 20 nations have significant Muslim minority. That means that religion has a true meaning and influence on majority. In Turkish, there is a proverb: “reason has one way wisdom gives same one way”. That means the wisdom, internal personal integrity, frankness, fairness, truthfulness, justice and honesty which are the right underlying features of Islamic law will produce the same laws as other types of laws do.

Although there is a clear different inclination towards law between these two systems, we cannot judge whether one is superior to the other.

Comparison between Common law and Civil law is linked to their different history of evolution. Common law is considered to be found and enforced by the English people. Civil law on the other hand is rooted far to the legal actions of ancient Romans. That is why it is called as a Roman law in lieu.

The main difference between these two legal systems, however, is the use of case law (stare decisis) and codifications. Common law puts case law as the first priority, whereas civil considers it as a supplementary. Codifications in common law also do not have the same role as they do in Civil law.

Unlike civil law, in common law, the appeals will be rarely taken, mainly because of the certainty of case law. Every case will be fully detailed and will be in power in later cases. However, the fully detailed process sometimes causes many difficulties in exploitation and makes the law rather stiff than flexible.

The sources in both systems could not be easily altered. However, the long process of enacting a law will play as a basis for the long continuity of the law itself, because, any law will face obstacles, and severe criticism before being inserted to the system. That makes both legal systems complete and perfect.

Islamic law as we have mentioned is not a system of law, it has rather more complicated and mixed with the deep morality of people. Unlike common or civil legal systems, Islamic law is the toughest one when it comes to bring new regulations and newly identified norms. Islamic law identifies deception and dishonesty as a “serious moral wrong”¹ whereas in civil/common law it is mended by paying compensation. This of course effects on the trade relations between the merchants. The contracts between the individuals and the treaties between authorities will be dealt or approached differently in each legal system. In Civil law, written form of agreement is a chief immune of the assurance, but in common-law or Islamic law, verbal communication will also be counted as a main form of evidence.² The difference in these two legal traditions is very huge. For instance, Islamic law could be differently imposed to different people depending on their religious beliefs whereas common or civil law systems are equal for every people regardless of their religious preference.

In Islamic law, the punishment for the crime is much severer than in Common or Civil law. For instance, for robbery, in Islamic countries, they cut off the guilt’s hand, whereas in civil/common law countries, the robber will be made to pay compensation and sentenced for a few years. Furthermore, for fornication, the guilty people will be lashed 100 times, or even be put to death. False accusation of breaching chastity, drinking alcohol, you will get the same credit (80 and 40 lashes respectively). In addition, in Islamic law, unlike civil/common laws, the freedom of religion is prohibited and controlled very strictly. The apostasy of men will be punished by death, or the apostasy of women will be imprisonment. These offences are called as Hudad (violation against God’s law) and will be prosecuted and punished by the state. All the citizens have to obey these mandatory regulations. Quessas offences (violation against other people: specified in Quran) and Ta’azir offences (violation against other people: not specified in Quran) are the other two types of offences which will be punished differently from civil and common-law countries.

In Islamic countries, law is considered absolute and constant, whereas it is much more flexible, changeable and negotiable in Civil/Common laws. One of the main reasons for this is the different origins of law. In Islamic law, God created the law, in Civil/Common law, people made legislations. That consequently leads a clear separation between religion and law in westernized legal systems, whereas they are one united notion in Islamic law. Another difference between these two types of legal traditions is the categorization of law. In Islamic law, the type of punishment will categorize the crimes; in western legal system, crimes will be categorized due to the severeness of the harm. The Quran, in Islamic law, outlawed prevalent customs such as idolatry, gambling, liquor, promiscuity, unbridled polygamy, usury, etc.¹ but in most civil/common law countries, it has become legalized.

“The law must be stable and yet it must not stand still.”

Roscoe Pound

Although there are clear differences in the implementation of law between these systems, still each of them plays the same role and possesses the same functions. All of these systems are effective in their place.

International law has sufficient power almost in every civilized country. Nevertheless, if we look at the origins of international law, we will notice that international law is derived from the principles, norms and procedures established in domestic law. That consequently makes a first step in convergence of laws. Although civil law countries are the dominant countries in making an international law, Common or Islamic law countries are equally obliged to obey it.

Today there are many common types of law being used among those countries that have different legal systems.

Ta’azir offences in Islamic law, for example, will be mostly codified, because the existing sources of law could not be used to solve the problem given. That means there is something that co-exists between Islamic law and civil law.

Common law countries has begun to use legislation somehow, Civil law countries are using case law as an interpretation. There is a great tendency towards merging legal traditions. And of course, all of these amalgamations are for the good.

“Law is nothing unless close behind it stands a warm, living public opinion.” Wendell Phillips

Yet, there is something to do in Islamic law. (Though the Islamic law covers everything) it would be much better if Islamic countries will also accept equality in gender, wealth and power and there has to be some adaptations to social change and modern technologies, (we would proudly call it honest facing to globalization). Some Islamic countries are still facing some problems. For instance, Bahrain these days is on the brink of infrastructural change in the legal regulation of the country. In addition, this could be resolved with the gracious look over other foreign legal systems. Thus, convergence, integration and harmonization of these systems will be of much effectiveness, although it cannot be taken fully as all of them have different traditions, histories, ideology, fundamental moral values¹

Weighing everything up, I would like to say that the three legal systems, Common, Civil and Islamic Legal Systems, are being effectively used in different countries. No any other system could be substituted to the other one abruptly. The public has already accepted it. However, taking a step to converge some parts of these systems would be a best idea to implement and to develop the existing sources of law to make applicable to all cases.

Reference list:

Al-Azmeh, Aziz., (1988). Islamic Law: Social and Historical Contexts. New York, NY: Foundation Press
Cammack M., (2005) Islamic Law [online] available from: <http://www.lfip.org/laws827/link02- islamiclaw.htm> [accessed on March 22, 2011]
Cruz P.D., (2004) Comparative law. 2nd Ed. Cavendish Publishing Ltd.:Great Britain
David, Rene, and John E. Brierly. (1985). Major Legal Systems in the World Today. London: Stevens.
Dr. Kavakci Y.Z., (2010) Sharia/ Fiqh/ Islamic law. College of Islamic Studies, Ataturk University.
Glenn, Patrick H. (2000). Legal Traditions of the World: Sustainable Diversity in Law. Oxford: Oxford University Press.
James P.S., (1989) Introduction to English legal system. 12th Ed. Butterworths: London
Merryman J.H., and Rogelio P.P, (2007) Civil law traditions. 3rd Ed. Stanford University Press: California
Mourisi Badr, Gamal. (1978). “Islamic Law: Its Relation to Other Legal Systems.” The American Journal of Comparative Law, 26(2), pp. 187-198.
Muslim Women's League., (1995) Intellectual Background: Islamic Sources of Information and their Development into Islamic Law [online] available from: <http://www.mwlusa.org/topics/sources/sources.html> [accessed on March 19, 2011]
Nassar, Nagla. (1995). Sanctity of Contracts Revisited: A Study in the Theory and Practice of Long- Term International Commercial Transactions. Dordrecht: Martinus Nijhoff Publishers.
Rayner S.E. (1991). The Theory of Contracts in Islamic Law: A Comparative Analysis with Particular reference To The Modern Legislation In Kuwait, Bahrain and The United Arab Emirates.” Graham & Trotman Ltd.
Routledge.Bederman, David J. (2001). International Law Frameworks. New York, NY: Foundation Press.
Vago, Steven. (2000). Law and Society. Upper Saddle River, NJ: Prentice Hall.
WPONLINE.ORG..,(2002) Sources of Islamic Law [online] Available from: <http://www.witness- pioneer.org/vil/Books/SH_SL/sources_of_islamic_law.htm> [accessed on March 19]

¹ Bushman,M.(2007)The Role and Functions of law in Business and Society

² Merryman J.H.,(2007) Civil Law Traditions pp. 1-2

³ Ibid.

⁴ Dr. Karakci Y.Z., (2010) Sharia/ Fiqh/ Islamic law

⁵ Merryman J.H.,(2007) Civil Law Traditions p. 4

¹ David and Brierley, 1985

¹ Ibid.

² James P.S., (1989) Introduction to English law p.7

³ Cruz P.D., Comparative law in a changing world p. 44

⁴ Mourisi Badr 1978, 187

⁵ Vago, 2000

¹ Glenn, 2000

² Muslim Women's League., (1995) Intellectual Background: Islamic Sources of Information and their Development into Islamic Law

¹ Rayner 1991, 206

² Nassar, 1995

¹ Muslim Women's League., (1995) Intellectual Background: Islamic Sources of Information and their Development into Islamic Law

Preguntas frecuentes

¿Cuáles son las principales fuentes del derecho en los sistemas legales civil, común e islámico?

Este documento compara los sistemas legales civil, común e islámico, centrándose en sus fuentes de derecho. El derecho civil se basa principalmente en códigos, estatutos, legislación delegada y doctrinas, con el derecho internacional y el derecho europeo como fuentes suplementarias. El derecho común se basa en tratados, derecho de la UE, estatutos, legislación delegada, jurisprudencia, equidad y costumbres. El derecho islámico deriva de fuentes religiosas como el Corán, la Sunna, el consenso judicial y el razonamiento analógico.

¿En qué se diferencia el derecho civil del derecho común?

La principal diferencia radica en la importancia de la jurisprudencia y las codificaciones. El derecho común prioriza la jurisprudencia (stare decisis), mientras que el derecho civil la considera complementaria. Las codificaciones tienen un papel más central en el derecho civil que en el derecho común.

¿Cómo se compara el derecho islámico con los sistemas legales civil y común?

El derecho islámico está intrínsecamente ligado a la moralidad y la religión. A diferencia de los sistemas civil y común, el derecho islámico puede ser más rígido en cuanto a la introducción de nuevas regulaciones. Las sanciones por delitos en el derecho islámico pueden ser más severas que en los sistemas civil y común. Además, en algunos países islámicos, la libertad de religión puede estar restringida.

¿Cuál es el concepto de convergencia en los sistemas legales?

A pesar de las diferencias, existe una tendencia hacia la convergencia entre los sistemas legales. El derecho internacional influye en todos los sistemas civilizados. Los países de derecho común han comenzado a utilizar la legislación, mientras que los países de derecho civil están utilizando la jurisprudencia para la interpretación. El derecho islámico puede recurrir a la codificación en ciertos casos. Estos cambios sugieren una fusión gradual de las tradiciones legales.

¿Cuál es la importancia del derecho en la sociedad según el documento?

El documento enfatiza que aunque los sistemas legales difieren en su implementación, todos desempeñan el mismo papel y poseen las mismas funciones. Todos los sistemas son efectivos en su lugar. El documento también menciona la necesidad de que los países islámicos acepten la igualdad y se adapten a los cambios sociales y las tecnologías modernas.

¿Qué dice el documento sobre la "Ley Islámica: Contextos Sociales e Históricos"?

El documento menciona varios aspectos importantes de la ley islámica, y cita fuentes relevantes, y por lo tanto the "Ley Islámica: Contextos Sociales e Históricos" de Al-Azmeh. El documento señala que el derecho islámico cubre todo, desde las normas de la vida diaria hasta los temas más sofisticados de los negocios, destacando su amplia influencia. Tambien, el documento menciona el tratamiento de engaño y deshonestidad en el derecho islámico como una "seria falta moral".

¿Cuál es la diferencia entre ofensas Hudad, Quessas y Ta’azir en el derecho islámico?

El documento explica que los delitos Hudad son violaciones contra la ley de Dios y son procesados y castigados por el estado. Las ofensas Quessas son violaciones contra otras personas que están especificadas en el Corán. Los delitos Ta’azir también son violaciones contra otras personas, pero no están especificadas en el Corán.

¿Qué fuentes de derecho islámico se mencionan en el texto?

Las cuatro fuentes fundamentales del derecho islámico que se mencionan son el Corán, la Sunna, el consenso judicial y el razonamiento analógico.

¿Qué ejemplos de países se dan con diferentes sistemas legales?

El derecho civil se utiliza en países como Francia, Alemania, Italia, Suiza, Argentina, Brasil, Chile, México, Rusia y Asia Central. El derecho común se utiliza en países como Estados Unidos, Canadá, países de Oceanía y Gran Bretaña. La jurisprudencia islámica está en vigor en países como Arabia Saudita, Bangladesh, Gambia, Libia, Mauritania, Marruecos, Omán y Yemen.

Sources of law in Civil, Common and Islamic Legal Systems

Extrait