Presented at the 5th Inter-University Graduate Student Conference at Cornell Law School, March 2009.
A legal tradition is not the same thing as a legal system, although the legal system inevitably forms part of the legal tradition and vice versa, a legal system may be used to refer to an operational set of rules, procedures and institutions. This paper will take a critical look at the legal sources used in both the Islamic Law and Common law systems as well the methodologies interpreting these sources. The pluralistic nature of many of the extant legal systems, calls for an analysis of the interpretation of law and the related sciences. Whereas the spread of globalization in the form of Western technology, open markets and human rights is well documented, a less obvious form of that phenomenon is of greater relevance for this discussion and that is Islamization. . This study will therefore examine the growing phenomenon of Islamization, its origins and how it has affected Pakistan’s legal system. I use case law and statutory law to demonstrate that Islamization has been nothing more than a tool used by the political elite in this Pakistan country (bringing nothing but injustice and oppression to the masses, with women bearing the biggest brunt of these changes in law. Pakistan is uniquely placed to offer interesting insights into this phenomenon given its controversial legal system that attempts to follow an inherited Anglo-Saxon tradition, while maintaining its Islamic identity.
In this paper, I argue against the direct transposition of one legal system onto another, a practice that only complicates the interpretation of the laws and breeds injustice. Instead, I take the view that laws need to be interpreted to suit current realities. Indeed, this logic does not contradict the intellectual heritage of Islamic law with which a country like Pakistan readily identifies.
Date of Authorship for this Version
Islamic law, Common law, Pakistan
Hersi, Rahma, "A Value Oriented Legal Theory for Muslim Countries in the 21st Century: A Comparative Study of Both Islamic Law and Common Law Systems" (2009). Cornell Law School Inter-University Graduate Student Conference Papers. 29.