Islamic and Common Law Essay

Abstract
The contents of this paper will analyze scholarly articles on the topic of Sharia law and Common Law and provide a comparison based on the information derived. The analysis will show that glaring differences exist between the two sets of laws. The judges follow the Islamic sharia which if they cannot interpret it, they are at liberty to choose other sources. By contrast, for the common law, judges must follow the precedence that the courts of a similar level set or use the direction of higher courts. The paper covers the sources of both sets of laws, the punishments, and the influence of scholars in formulating the legal system.

Introduction
Comparisons between the Islamic sharia law and common law are often viewed from a religious perspective, with the former being for Muslims and the latter for non-Muslims. Based on the dissimilarities between the two religious doctrines, it is safe to assume that glaring differences exist between the two sets of laws. Islamic sharia is based on the Quran or Sunnah, and in the event, the interpretation is not accessible from the two primary sources, the judges are at their discretion regarding the source they will use (“What is Sharia?” 2018). Under the common law, judges are bound to follow the precedence set by the courts of a similar level or use the direction of higher courts. However, both the Sharia and Common law have a firm basis on customary and legal scholarly writings.

Findings and Analysis
The Islamic Sharia law is comprises a set of commands. The sets of commands included omissions and acts. The subjects of sharia law govern every aspect of a Muslim’s life, including financial transactions, marriage, inheritance, war, human rights and a law governing business transactions. The main difference between the Sharia law and common law is their source. The Sharia law is based on Islamic jurisprudence (figh) (An-Nai’m, 2017). While the Sharia law is not a legal system, it developed based on the teachings of the Quran and the various hadiths people close to the prophet used to solve the problems affecting Muslims at the time (An-Nai’m, 2017). Law (Hukum) is referenced from the Quran and touches on the human conduct. The common law is also similar in the aspect that it governs human conduct, only difference being that it is formulated by man-made institutions responding to the needs of the current society (Teacher, 2013). Common law relies on the rulings made in history to determine the outcome of future cases. Because common law relies on detailed descriptions of similar cases made in the past, there is no official code which can be applied to the common criminal law.

The lack of a common system of coding for the Islamic sharia law and common laws is a similarity between the two sets of laws. Sharia laws are hardly coded since they rely on precedents recorded in the Quran or from the hadiths. The precedents of the higher courts are binding on the lower courts under common law (Teacher, 2013). Just like in the Sharia law, the judge listening to the cases has a prerogative of determining what specific precedents to apply to the case under their jurisdiction. Therefore, the dependence on precedents under the common law hands the prerogative of deciding which of the laws to apply to the judge, which is similar to Sharia law and its fundamental principles.

Criminal Liability

• Sharia Law. Three distinct facets govern the hudud criminal liability governed by the Islamic sharia law. One, the person must have known that committing the action was unlawful (ilm’), the person must have had the power to determine the act (qadra), and lastly, the element of intention must have been present (Omar, 2018). Regarding diya, criminal liability is only granted if there is proof that there was sufficient knowledge that committing the offense was a wrongful act (Omar, 2018). Also, for Tazir, the person must have realized at the time of committing the offense that their actions were unlawful.
• Common Law. The systems in common law have consistently followed a bipartite structure in the assessment of criminal liability. Only the two essential elements of a criminal offense, actus reus, and mens rea, need to be fulfilled. Actus reus is the objective element of a crime, which is the actual conduct itself. On the other hand, mens rea is the subjective element of a crime (Omar, 2018). Also, when certain duties of care are violated, the criminal liability for omissions is also considered. An omission can be defined as a failure to act in a way in which the law would have required a legal person to act. Under the common law, the liability for punishment is only determined if the law was broken, as all people are deemed to know existing laws of the land.

Types of Punishments

• Sharia Law. The Islamic Law embodies the elements of the objective act of the crime. The first type of punishment is a hudud, which is fixed in the Qur’an and the Sunnah, for crimes which are considered to be against the words of Allah. Under the first type punishments cover theft, fornication, false accusations, war against the messenger, use of intoxicants and the act of leaving or denying Islam (Omar, 2018). The Qisas category deals with punishments for intentional crimes against life and bodily integrity. The spirit of punishments under this law is to restore equality, and can only be demanded by the victim or the victim’s legal guardian. The alternative to Qisas is the Diya, which is financial compensation for the crimes against life and bodily integrity. The amount of compensation depends on the percentage of responsibility of the perpetrator and the religion of the victim (Omar, 2018). Tazir is the third category of punishments, which applies to offenses that have been mentioned in the Qur’an or the Sunnah or that are of the same nature as a hudud offense, but the punishment for these crimes cannot be found from primary sources (Omar, 2018). This system allows power to the judiciary to determine the applicability of the Tazir form of punishment for offenders.
• Common Law. The types of punishment under the common law for criminal offenses is determined by the nature and gravity of the offenses. The first category of punishment in English criminal law is custodial sentences. The execution of a custodial sentence is only used when the offense is serious to the extent that a community punishment or fine alone is not considered enough punishment. Such types of punishment only apply to persons who are 18 years or older and have committed serious crimes such as rape, robbery, and murder (Omar, 2018). The second category of punishment is community order. These forms of retribution are aimed at punishing or rehabilitating the perpetrator. Lastly, for the most serious offenses, the court may consider instigating the conditional discharge or absolute discharge. The type of punishment under the English common law is solely dependent on the gravity of the offenses committed.

Conclusion
The Islamic Sharia law and the common criminal law are both similar and different in several respects. For example, both Sharia and common law are yet to be codified. Also, the laws are influenced by writings of legal and religious scholars for common and sharia laws respectively. Also, both sharia and common law have come into existence through customary law. The differences lay in the application and severity of punishments, with some of the punishments for offenders in Islam considered too extreme and vice versa.

References
An-Nai’m, A. A. (2017). Sharia Law. Retrieved November 26, 2018, from http://www.mpvusa.org/sharia-law. Accessed on: 26th November, 2018.
What is Sharia?. (2018). BBC. Retrieved from https://www.bbc.com/news/world-27307249
Omar, S. (2018). Research Gate. Retrieved from https://www.researchgate.net/publication/316553027_THE_SIMILARITIES_BETWEEN_SHARIA_LAW_AND_COMMON_LAW_An_attempt_to_compare_Saudi_Arabia_and_the_United_Kingdom. Accessed on: 26th November, 2018.
Teacher, Law. (November 2013). Islamic Jurisprudence And English Common Law. Retrieved from https://www.lawteacher.net/free-law-essays/administrative-law/islamic-jurisprudence-and-english-common-law-administrative-law-essay.php?vref=1. Accessed on: 26th November, 2018