Taimoor Ali Shah

M.Phil Scholar of Law at University of Sindh

The Concept of Law, Justice and Morality in Islamic and Western Jurisprudence

The concept of Law in Islamic and Western Jurisprudence

One, the most difficult problems of jurisprudence has been and perhaps still is to
determine the exact meaning of “jurisprudence” as well as to determine its province and
scope.1 When it comes to determine the scope and concept of Law in jurisprudential
parlance we have two tools one is Islamic (Fiqh) and another one is western or English
jurisprudence. Jurists of Islam prefer to use expression or phrase al-Sharia al-Islamiyah
(Islamic Law) instead of al-Fiqh al-Islamiyah (Islamic Fiqh). Sharia is defined by
Jamhur (Majority) as the commands given by Allah to his servants through our Prophet
Muhammad PBUH. Therefore it is right to assume that concept of Law in Islam is the
commands from Allah, which means that some concrete legislation given already and
some can be drawn through general and exception principles and maxims of Islam which
can be found easily in Nobel Quran and Sunnah.

Concept of Islamic Jurisprudence on Sharia (Islamic Law)

The communication of Allah related to acts of subjects through a demand or option or

through a declaration.2 Lets digests bit by bit, the communication from Allah implies
that hukm cannot be treated merely as a command, which means that this
communication had to be from Allah otherwise it will not be consider as Hukm weather
he is a ruler or someone else in authority, as per the communication regarding acts of

1
R. W. M. Dias, Jurisprudence, 3.
2
Sadr al-Sharia, al-Tawadih, vol.1, 28.

Taimoor Ali Shah

Concept of Law, Justice and Morality according to Islamic and Western
Jurisprudence

Electronic copy available at: https://ssrn.com/abstract=4130279

subject it gives opportunity to jurists to understand whether the requirement is for
commission of an act or omission of an act, or whether a choice has been granted for the
commission or omission of such act, for instance Do not go near unlawful sexual
intercourse (zina)3 this verse omitted or forbid human kind to perform any kind of
unlawful sexual intercourse.

The hukm related to a demand whether it’s about commission or omission of an act, it
will express the nature whether its binding or no binding. If it is the common of an act
which is binding it would be fall under Fard/Wajib which means it will be obligatory and
if it about the omission of an act which is the same then it will be fall under ambit of
Haram which mean prohibited. However in the matter of non-binding if it is about
commission it would be Nadb meaning recommended and if it is about omission Makruh
means disapproval. Communication regard option can be describe like choice between
eat and drink, in other words subject is free to choice between given option. Lastly
communication about declaration can be define as relationship with the set facts or an act
with hukm, therefore declares that an act is the cause, condition, or an impediment for the
application of hukm.

Moreover, Islamic law is the corpus of legal rulings and determinations that are inspired
by or based on Islamic teachings. I use Islamic law as the quality of positive law that a
modern state can directly enforce. Although it may be used by some Western scholars, I
do not use the phrase “Muslim law” because it may imply that such a law was never
influenced by outside traditions. I use “Quranic law” to refer to the legal rulings that are
explicitly stated in the Quran and that did not require extensive interpretive efforts to
formulate them.

The phrase “legal rulings” refers to the pronouncements of the law regarding specific
cases. The legal rules on the other hand, are the five judgments; as such, they are finite
and they are the domain of the jurist not the faqıh. The legal proofs are the explicit and
implicit traditions found in the Contesting Justice the sources of law that are used by

3
al-Quran 17:32

Taimoor Ali Shah

Concept of Law, Justice and Morality according to Islamic and Western
Jurisprudence

Electronic copy available at: https://ssrn.com/abstract=4130279

Muslim jurists to link the legal rulings to the revelations. The legal justification or legal
purpose refers to the reason behind any given proscription or obligation.

Since the Quran did not always identify the justifying reason behind prohibiting or
requiring (obligation) something, it was left to jurists to identify the legal justification and
once discovered, it was used to extend the legal rule, by way of analogy, to cover cases
not addressed in the earlier sources. For example, and given the topic of this work,
establishing justice is seen as the legal purpose of inheritance and polygyny laws. During
the formative period of Islamic law, analogy was the primary tool of Ijtihad which is the
exertion of maximum efforts in determining legal rules, legal rulings, legal proofs, and
legal justifications. The sharia is the abstract concept that includes the legal rules and
legal rulings as derived from the legal proofs. Each Islamic school of thought envisions a
specific sharia that reflects its own theological, religious, and jurisprudential principles
and teachings.

Islamic law is the codified rendering of the sharia for the sharia as I understand it, is the
law and principle at the same time and it serves as a guide to producing a particular
positive Islamic law. A good example that underscores the difference between sharia and
Islamic law is the legal code that governed the Ottoman Empire, it is based on the sharia
but it is not the sharia. Since the mechanisms of enacting Islamic law are dependent on
social and political forces at any given time period, Islamic law shares some features with
other legal traditions such as Common Law and other modern legal system.

Concept of Western Jurisprudence on Law

In the western jurisprudence Law and its theories given by so many jurist and so does
interpreted by the same, some jurists hold the view of natural law and few of them with
legal positivism and few are sided with the integrity of law, for instance In natural law
theory St. Thomas Aquinas, Plato, John Finnis are of the view that this theory of Law is
prevailing and it should be the solution to all men kind to regulate their life and to mange

Taimoor Ali Shah

Concept of Law, Justice and Morality according to Islamic and Western
Jurisprudence

Electronic copy available at: https://ssrn.com/abstract=4130279

socio economical crisis. Natural law is described variously, but central to almost all
definitions is some reference to Thomas Aquinas’s claim in the Summa Theologica that
“an unjust law is no law at all.” This claim, as any numbers of positivists have argued, is
ambiguous. What Aquinas meant by this, virtually without question, was that a law that
violates God’s law, or “natural law,” is not binding in conscience or, to put it differently
and in a more secular key, that a positive law that is unjust implies no moral duty of
obedience on the part of citizens and, perhaps, no moral duties on the part of state
officials (such as judges) to apply it as well.

When understood in this way, as John Finnis has ably argued, the claim that an unjust law
is no law at all points to the absence of a moral duty to obey laws that are unjust and,
perhaps, a moral duty to obey laws that are not. It does little more, and the reams of
positivist critique of natural law that assume it stands for the patently false proposition
that all laws are just or that laws that are unjust are not really laws, do nothing but attack
a straw man. Thus, John Finnis’s long standing complaint, the positivist attack on natural
law, from Austin’s own through that of Coleman and Leiter, is nothing but a massive,
two or three century long and running, historical misunderstanding.

Finnis’s protestations notwithstanding, however, the more literal way to read Aquinas’s
famous statement (although only once the sentence is yanked from context) is that for a
law to create a binding legal and not just moral obligation, it must first meet some
minimal moral requirement of justice. A norm that is promulgated by a powerful
sovereign in accordance with accepted procedures, or with a rule of recognition, or an
originating Constitution, or whatever other test of pedigree positivism might require of
law is nevertheless not truly “law” in the stronger view if it is so palpably unjust as to
not, in effect, earn the appellation. The word “law,” in effect, is reserved for that subset
of commands and edicts that meet positivist requirements and that meet moral conditions.
Palpably unjust “laws” that fail to meet these criteria need not be obeyed by citizens;
whether or not we do so is entirely a matter of prudence or, in the extreme case, of
personal bravery. They also need not be enforced by courts, however. Again, neither

Taimoor Ali Shah

Concept of Law, Justice and Morality according to Islamic and Western
Jurisprudence

Electronic copy available at: https://ssrn.com/abstract=4130279

citizens nor courts are morally or legally required to obey, enforce, or uphold these legal
nullities.

Legal positivism is the school of thought which is supported by so many beautiful mind
namely, John Austin, Hans Kelson, H.L.A Hart, legal positivism attempts to identify the
key features of the legal system, the theory has generated substantial misunderstanding
because there are no less than ten different positions that are describe as positivist.
Positivism has three main theoretical commitments, and they are follows as: 1.Valid
Laws depends on the certain Facts also known as Social Fact Thesis, 2. Valid Law
depends acceptance by social authorizes also known as conventionality thesis, 3. There is
no overlapping when it comes to law and morality also known as separability thesis.
However, Austin gave the famous theory of law known as The Imperative theory of Law,
which is, Law is the command of the sovereign enforced under threats of sanctions.4 It
means law can be given by sovereign alone which is backed by sanctions, in Austin’
theory sovereign is not divine rather it is the state.

Hans Kelson also gave the theory of Law as the pure theory of Law, in his theory he
made assumptions which follows as, 1. Analysis must focus on law as it is actually laid
down not as it ought to be. 2. The la contains a mass of rules, and a theory should attempt
to organize them in an ordered pattern. 3. The theory of law should be uniform (it means
it must be applicable to all times and all places). 4. Theory must be free from ethics,
politics, sociology, history and other influences. 5. A theory must take into account that
laws are ought propositions, that is, norm and a knowledge of law means a knowledge of
these norms.

Conclusion

Now the question remain which one is prevailing the concept of Law, whether is it found
in jurisprudence of Sharia or in Western jurisprudence, the logic taught us this basic rule

4
Dias, Jurisprudence.

Taimoor Ali Shah

Concept of Law, Justice and Morality according to Islamic and Western
Jurisprudence

Electronic copy available at: https://ssrn.com/abstract=4130279

that the creator knows his creation better than anyone else, therefore it is correct to
suggest that Sharia’ concept of Law is quite appealing, for instance, Lawgiver Allah
knew the nature of human kind before Thomas Hobbes, Allah Almighty knew that human
have ignorance as well ugly nature of greed, therefore, we can assume that the very
reason Islamic Penal Laws are so rigid and harsh, these laws which are commonly known
as Huddud, Daman, Arsh and Tazir have deterrence so much that nobody is dare to
commit same offence twice thus ensuring the peaceful order of society. On the hands
Western Jurisprudence fails to produce such definition or concepts that ensure such
legislation which is backed by such intense deterrence.

The concept of Justice in Islamic and Western Jurisprudence

It goes without saying Fiat Justitia Ruat Caelum this Latin maxim means Let justice be
done though the heavens fall, the subject of Justice is a huge and complex one, it would
not be wrong if I phrase that justice is beyond the scope of jurisprudence at certain
degree. In Islam, the concept of justice is at the core of a number of theological,
jurisprudential, legal, and philosophical doctrines. For instance, one of God’s attributes is
being just. The doctrine of reward and punishment is founded on divine justice; it is
written that each and every human being will be treated fairly based on his or her
personal acts and achievements. The Quran says that God’s justice will not let any act
(good or bad) go unaccounted for, be it as small as an atom: That day mankind will issue
forth in scattered groups to be shown their deeds. Whoever had done well, be it as small
as an atom’s weight, he or she will see it; and whoever had done wrong, be it as small as
an atom’s weight, he or she will see it.5

5
al-Quran 9:6-8

Taimoor Ali Shah

Concept of Law, Justice and Morality according to Islamic and Western
Jurisprudence

Electronic copy available at: https://ssrn.com/abstract=4130279

 Concept of Justice in Islamic Jurisprudence

The idea that justice (or other similar concepts) is a social construct is well established in
Western thought. But it is understood to mean that the concept of justice can be
manipulated or changed by altering the social milieu and cultural environment. Hence, in
any given era, a new understanding may emerge. While I conceive of justice as a social
construct, I say that, in the case of the Islamic discourse, the understanding of the concept
of justice was developed and fixed during the formative period of Islamic law. As such, it
is less susceptible to change despite the fact that it is a social construct. The Qur’an
considers justice as a system governing the universe, a system that was in place before
the creation of humans.

Based on the Qur’an and the teachings of the Messenger (pbuh), Imam Ali (a.s) defines
justice as a process whereby everything is situated in its rightful place intended by the
Creator. At the time of the creation of the universe, everything was put in its rightful
place according to a scale (al Mizan) and balance established by Him creating an ordered
and stable equilibrium in the universe. Unlike its counterpart in the ancient Egyptian
conception of justice and its Western conception that focus on the pans of the scales, the
reference to the archetypal, cosmic scale (al Mizan) in its Quranic conception stresses
“the central balancing pivot” of the scale. The created universe is thus a balanced, just,
harmonious and certain system with its own scale, and in which all of its elements, in full
submission to their Creator, are in their rightful place. It is the replication in human
societies of that balance and harmony through the agency of humans, with free choice
and the power of reason gifted to them by their Creator, which is the most important
desiderata of the Qur’an for human society.

The scale (al Mizan) established by the Creator for the universe is focused on the balance
pointer of the scale which is always in equilibrium since there is no chance that any
element in the universe would violate the rules of justice established to lead to
disequilibrium as all have willingly submitted to the Will of their Creator. Given the

Taimoor Ali Shah

Concept of Law, Justice and Morality according to Islamic and Western
Jurisprudence

Electronic copy available at: https://ssrn.com/abstract=4130279

characteristics of humans, it is always a struggle to establish justice and bring into
balance the pans of the scale.

While the gift of free choice is at the base of this struggle, the gifts of Allah to humans, in
form of their primordial nature (fitrah, upon which justice is imprinted), intelligence and
reason (al Aql), the books and the messengers as well as other human archetypes, provide
the means needed to establish a just and fair system to govern their collectivities.

However, such a just and fair society must be built and governed by those who are just
and fair. While other systems of thought struggle to define what just and fair means and
how to create a fair and just society, Allah has provided precise blue print of a fair and
just system in the Qur’an with prescribed rules that govern individual and collective
behavior anchored on just governance structure. Furthermore, He has also provided
archetypal models of rule compliant, fair and just behavior of just and fair humans.6
Therefore it appears that sense of justice exited way before the creation.

There are various verses from the Nobel Quran which clearly taught us justice, for
instance And slay not the life which Allah has made sacred, save in the course of justice.
This he has commanded you in order that you may discern.7 It is clearly mentioned in
aforesaid verse that Allah put forth human life and saving it made the course of justice
(Adal), however there also a verse when it comes to the absolute justice and the verse
says in holy Quran We ordained therein for them; life for life, eye for eye, nose for nose,
ear for ear, tooth for tooth and wounds equal for equal …, and if any failed to judge by
the light of what Allah has revealed, they are wrong doers.8 In this verse various
doctrines can be understood, for instance in this verse, Justice, Equality, Deterrence,
Retribution, Retaliation and Rule of Law, even more which I failed to observe.

6
Conceptions of Justice from Earliest History to Islam by Abbas Mirakhor, Hussein Askar.
7
al-Quran (4.92)
8
al-Quran (5.45)

Taimoor Ali Shah

Concept of Law, Justice and Morality according to Islamic and Western
Jurisprudence

Electronic copy available at: https://ssrn.com/abstract=4130279

 Concept of Justice in Western Jurisprudence

Justice is an elusive concept, it has been called will-o'-the-wisp, a protean faced

concept.9 Justice in its shape and its meaning changes it time to time; it varies because
people (like philosophers, jurists etc.) do not agree on the same meaning or shape because
of aforesaid reason. There are three of kinds justice according to Edgar Bodenheimer, the
first kind of justice is Commutative Justice which aims the proper adjustment of the
relation of private individuals, in a way of remedies particularly to award damages in
contract and tortuous cases, restoring stolen and lost property, grant restitution in cases of
unjust enrichments, and the like. Second kind is Distributive Justice that determines what
is due from the collectivity to its member; it governs the legislative distribution rights,
powers, honors, and reward.

Third kind of justice according Bodenheimer is Legal Justice which is concern with what is
owed to the collectivity by its members; its object is ordination for the common good. When it
comes to justice, two major approaches are possible. The first one is philosophical or
ethical. The second is legal in the more profound sense of the word. The philosophical
approach has been developed by many philosophers over the centuries.

However the appealing approach theory of justice which truly recognized by the modern
Jurists of English or western jurisprudence, the Theory of Justice by John Rawls, and his
influence has been overwhelming. He published his famous book A Theory of Justice in
1971; ever since, philosophers in universities all over the world have been studying his
ideas and have developed them further. Traditional metaphysical questions were left
behind, to focus more than ever on the notion of justice. A notion which in previous times
had been rather unexplored and remained a specific topic for lawyers and other people
with a more pragmatic mind. 10

The key ideas of John Rawls are well known. He starts with two principles. The first one
sounds as follows: Each person is to have an equal right to the most extensive total

9
Bodenheimer. Jurisprudence chapter on Law as Justice, 145.
10
https://www.researchgate.net/publication/347801547_Justice_An_elusive_concept/

Taimoor Ali Shah

Concept of Law, Justice and Morality according to Islamic and Western
Jurisprudence

Electronic copy available at: https://ssrn.com/abstract=4130279

system of equal basic liberties, compatible with a similar system of liberty for all. The
second principle tackles more concrete issues, at least at first glance. Social and
economic inequalities are to be arranged so that they are both (a) to the greatest benefit
of the least advantaged and (b) attached to offices and positions open to all under
conditions of fair equality of opportunity11.

In J. Rawls theory of Justice he developed a modern social order and these principles
provided a frame work that explains the significance of political and personal liberties, of
equal opportunity, and cooperative arrangements that benefit the more and the less
advantaged member of the society when the society assumed to consist of free persons.

Conclusion

Justice considered as Ideal Doctrine of by the Western Jurisprudence, and it cannot be

delivered fully, as J. Rawl talks about this as “Justice as Fairness”, which means that
Justice in its pure form cannot be delivered, rather its fairness which is given in the name
if justice, however on the contrary Islamic Jurisprudence is clear about the doctrine of
justice which is not ideal rather attainable with Islamic administration of justice, for
example Allah mention the Nobel Quran.

We ordained therein for them; life for life, eye for eye, nose for nose, ear for ear, tooth
for tooth and wounds equal for equal …, and if any failed to judge by the light of what
Allah has revealed, they are wrong doers.12 In this verse various doctrines can be traced
out such as Justice, Equality, Deterrence, Retribution, Retaliation and Rule of Law so on
so forth, which gives the perception of absolute Justice System, with the closing
statement. I would like to prefer Islamic sense of justice rather western because Justice is
the absolute doctrine there cannot soft justice or any other sort.

11
A Theory of Justice by John Rawls, 302
12
al-Quran (5.45)

Taimoor Ali Shah

Concept of Law, Justice and Morality according to Islamic and Western
Jurisprudence

Electronic copy available at: https://ssrn.com/abstract=4130279

 The concept of Morality in Islamic and Western Jurisprudence

Two things fill me with awes, the starry skies above and the moral law within.13 The
ability of humans to distinguish between right and wrong is due to the fair mindedness
that exists in all reasonable men. It is the basis of what we call morality that is the
distinction between right and wrong. There are very few philosophers and jurists that
support the concept of law blend with morals in Western or English Jurisprudence, i.e.
Immanuel Kant. On the other hand we have Islamic Jurisprudence in Islam Allah mention
about morals in several places in Nobel Quran which emphasis on morals and its value
for instance Allah says in the Nobel Quran, Be kind, honorable and humble to one's
parents,14 Care for orphaned children,15 honest and fair in one's interactions.16 And the
list goes on,

Concept of Morality in Islamic Jurisprudence

In Islam highly rewarded and valued person is the who is morally righteous person, Allah
says in and you are certainly on the most exalted standard of moral excellence17 in this
verse Allah praises Holy Prophet by his Standard and moral even There is also a famous
saying of the Prophet that states I was sent to perfect the ethical character of human
beings. 18 Classical jurists discussed the nexus between law and morality most typically in
works of jurisprudential theory under the subheading of goodness and ugliness. However,
as is often the case with debates on legal philosophy and the nature of law, the primary
concern for classical jurists was to preserve and maintain the integrity and legitimacy of
the legal process. This meant that more often than not classical jurists opted to defend the
integrity of the legal process over other competing substantive concerns. Effectively, this

13
Immanuel Kant.
14
al-Quran (17:23-24)
15
al-Quran (17:34)
16
al-Quran (17:35)
17
al-Quran (68:4)
18
Muwatta Malik Book 47, Hadith (1643)

Taimoor Ali Shah

Concept of Law, Justice and Morality according to Islamic and Western
Jurisprudence

Electronic copy available at: https://ssrn.com/abstract=4130279

meant that classical jurists upheld the instrumentalities of procedural justice as the main
concern of the law instead of abstract concepts of substantive justice.

Allah blessed the human beings with inner sense of morality, which served human as tool
and guide humans through the age, enabling him to distinguish between right and wrong
and good and evil. Although the degree to which a certain quality is interpreted as being
either good or evil may vary from person to person, there is more or less a universal
consensus regarding the classification of what constitutes a moral deed or attribute and
what does not.

People who are polite, sincere, upright, dependable, who are prompt in discharging their
obligations to others, who live in peace and allow others to do likewise have always
formed the core of any healthy society. Good and evil are not myths awaiting
resurrection, they are a real part of our everyday lives and hence, Allah has blessed
mankind with an inherent sense of right and wrong. Allah says in the Quran Allah has
revealed to human nature the consciousness and the cognition of good and evil.19

Concept of Morality in Western Jurisprudence

It was the common believe of the philosophers as well as jurists from the ancient time
that law and the moral, both are same and goes hand to hand and there is no distinction
between them until the Analytical School made difference between them. For example in
ancient time Normative School of thought believe that morals and law are the same,
Greeks believed in natural rights which are basics on moral as later supported by St.
Thomas Aquinas, Romans used the principle of natural law as their basic law and does
legislation according to them, and in middle ages Christians fellow bible as their law and
guide which is basis on morals.

In 19th century The Analytical School of thought made strong distinction between law
and moral, Analytical jurist John Austin argued that Law has nothing to do with morality

19
al-Quran ( 91:8)

Taimoor Ali Shah

Concept of Law, Justice and Morality according to Islamic and Western
Jurisprudence

Electronic copy available at: https://ssrn.com/abstract=4130279

since it is the command of sovereign, because his view was that all the consideration
must be separate from Law, the Austinian or Analytical school of thought suggest that,
What the Law Is not What it Ought to be. But Austin did not refuse the existence of
morality he even further forth the idea of positive law and positive morality. Even Austin
professor Jermy Bentham said Law has the same center as moral but it has by no means
the circumference20. In western jurisprudence Analytical school of thought held that Law
requires external conduct and contras to motive and intension, on the other hand moral
doesn’t require external conduct such as good intension, motive or good will.

Conclusion

Both jurisprudences are very clear about morals whether it is Islamic Jurisprudence or
Western Jurisprudence (Normative School of thought) that law has to be morally justified
otherwise there would not be any effective legislation, in that perspective Islamic
Jurisprudence stood bold, because Islamic Jurisprudence is not only the define the
morality rather making with effective practically which can be seen in most of the
Muslims even nowadays, the problem with western jurisprudence is that they are not
effective and applicable because it vary societies to societies, that’s the very reason
Analytical school of thought made such big leap that these two thing are different and
ideal thus cannot be achieve

20
An Introduction to the Principles of Morals and Legislation

Taimoor Ali Shah

Concept of Law, Justice and Morality according to Islamic and Western
Jurisprudence

Electronic copy available at: https://ssrn.com/abstract=4130279