Precedents and the role of analogy in Common Law and Islamic Law

Mohammad, Mohammad Tahir Sabit and Laluddin, Hayatullah (2019) Precedents and the role of analogy in Common Law and Islamic Law. Journal of Islamic Law Review, 15 (2). pp. 183-212. ISSN 0973-2918

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Abstract

This paper looks at the common grounds for legal reasoning based on analogy in common law and Islamic law. Despite the difference between the systems, based on the structure and sources, the use of judicial precedent and Qiyas (analogical reasoning) prima facie seem strikingly similar but unexplored. The authors look at the development stages of the two doctrines, the role of analogy, and the making of conclusions. The method of this doctrinal study is comparatively less synthetical and more analytical. The study finds that analogy does play a role in legal reasoning based on the doctrine of judicial precedent and Qiyas. However, there is a difference between the two doctrines where the analogy is the instrument of the discovery of facts in common law and of the discovery of rules and vice of them in Islamic law, which enable jurist to extend it to a new case that shares the vice of a previous case. Therefore, the certainty of rules and their uniformity seem stronger in Islamic law compared to common law.

Item Type:	Article (Journal)
Additional Information:	8500/77123
Uncontrolled Keywords:	Analogical reasoning, Islamic law, Common law, Judicial precedents, Qiyas.
Subjects:	K Law > KBP Islamic Law > KBP1 Islamic law.Shariah.Fiqh > KBP100 Sources.Quran, Hadith, Ijma', Qiyas. K Law > KBP Islamic Law > KBP1 Islamic law.Shariah.Fiqh > KBP425 Uṣūl al-fiqh. Jurisprudence and theory of law. Science of legal reasoning.
Kulliyyahs/Centres/Divisions/Institutes (Can select more than one option. Press CONTROL button):	Ahmad Ibrahim Kulliyyah of Laws > Department of Civil Law Ahmad Ibrahim Kulliyyah of Laws Kulliyyah of Economics and Management Sciences Kulliyyah of Economics and Management Sciences > Department of Economics
Depositing User:	Assoc Prof Mohammad Tahir Sabit Haji Mohammad
Date Deposited:	24 Dec 2019 08:57
Last Modified:	01 Sep 2020 12:21
URI:	http://irep.iium.edu.my/id/eprint/77123

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