In modern time the science is developing, at the same time law is developing to fulfill the demand of people. In various time various people are occurring different types of crimes. Islamic Jurisprudence has played the important key role for the development and guidelines of mankind. However due to some technical changes of the society, market policy, property, cultural affairs and others Western Jurisprudence has some important contribution over Islamic Jurisprudence by which we are in a reasonable position all the way through the whole world. In this paper the attempt has been taken to focus the important field of these, by which Western Jurisprudence has played role over Islamic Jurisprudence.
Western Jurisprudence is basically meant common law and civil jurisprudence. Both the above two derived in western countries these two systems are still the legal system of every western countries ever some, African and Latin American countries. Western jurisprudence, concurrence (also simultaneity) is the apparent need to prove the simultaneous occurrence of both actus reus (guilty action) and mens rea (guilty mind) to constitute a crime; except in crimes of strict liability. In theory, if the actus reus does not hold concurrence in point of time with the mens rea then no crime has been committed.1 The fact that Islamic Jurisprudence originated from divine laws, almost in the sequence of social needs and changes. It has some important role for development and guidelines of mankind. In this paper, attempts will be made to be acquainted with the influence of western jurisprudence over Islamic jurisprudence.
The Islamic perspective of law’s role in limiting authority stems from Islam’s early days. During prophetic and caliphal times, socially governing principles surfaced as direct interpretations from the Qur’an and Sunnah. With the closing of ijtihad generations later, formal opinions regarding new issues were dealt with in a fashion based on referring to earlier precedents. However, the authorities were limited in their ability to make formal opinions by the restriction on direct Qur’anic interpretations (on account of the end of ijtihad). The authority of a mufti, for example, would not extend beyond applying qiyas on to decisions already made. Thus the mufti existed as an implementer of existing Islamic precedents. This role is defined as such because of the limitations of Islamic jurisprudence. This trend occurred in both the Sunni and Shi’ite schools of thought. Admittedly, the concept of reason was advocated more so by the rationally driven mu’atazalites than their ash’arite counterparts who put more emphasis on the importance of tradition. Thus the limitation of authority would more likely occur amongst the mu’atazalites due to the nature of their approach to faith-based law.
Sharia refers to the sacred law of Islam. All Muslims believe Sharia is God’s law, but they have differences between themselves as to exactly what it entails. Which will be difficult to discern what to apply when, but we’ll labor along for the sake of discussion.
In Western countries, where Muslim immigration is more recent, Muslim minorities have introduced Sharia family law, for use in their own disputes. Attempts to impose Sharia have been accompanied by controversy, violence, and even warfare (Second Sudanese Civil War).
The recent incidents at the Arab International Festival have reinforced the poor image of Sharia inside the United States and its incompatibility with American culture and law.
Western legal philosophy recognized the limitation that codes of law created in regards to authority. Thomas Aquinas, in his explanation of natural law (the theory of what law ought to be and the principle of unchangeable frequencies among various individuals and circumstances) proposed that the coming about of natural rights limits existent authority. In other words, since natural law is concerned with things that are inherently common among all individuals and circumstances, authoritative figures are subject to the same natural rights as well and thus cannot deviate from what has naturally come to be. Therefore, policies for instance, that an authoritative figure would wish to establish would have to agree with principles already naturally in place hence there is a condition on which authority can be exerted. Another concept that both the West and Islam have embraced is the general concept of a sovereign authority one who does not obey but is obeyed. Both civilizations have recognized the existence of such individuals. John Austin introduces this figure into the realm of utilitarianism where despite the theme of Oserving the greater good’ a sovereign does not, by definition need to adhere to the will and desires of the people. Sharia refers to the sacred law of Islam. All Muslims believe Sharia is God’s law, but they have differences between themselves as to exactly what it entails. Which will be difficult to discern what to apply when, but we’ll labor along for the sake of discussion.
In Western countries, where Muslim immigration is more recent, Muslim minorities have introduced Sharia family law, for use in their own disputes. Attempts to impose Sharia have been accompanied by controversy, violence, and even warfare (Second Sudanese Civil War).
The recent incidents at the Arab International Festival have reinforced the poor image of Sharia inside the United States and its incompatibility with American culture and law.
Role of Western Jurisprudence in Islamic Jurisprudence
Western Jurisprudence how took a role in Islamic jurisprudence will be understood only if we go back to the point of role of Roman jurisprudence in Islamic jurisprudence. As the Roman law is considered to be the best source of western jurisprudence. The question whether Roman law had any influence on Islamic law has been discussed by a number of scholars for a period of three centuries. It has been speculative question from the beginning and scholars were well aware of that fact.
The proponents of Roman influence can be divided into two groups: (I) direct influence; and (II) indirect influence.
The proponents of direct influence have been advocating the view that Roman law had been directly imported and installed into main body of Islamic law. They went as far as to state that Muslim jurists directly copied Roman legal books. Moreover, they argued that Islamic law could not have any other source than Roman law as a benchmark for development of nucleus for Islamic law.
There is no acceptable reason to accuse any non-Muslim law or economic system of lacking ethical or ideological content, because all social sciences are based on hidden value-judgements which reflect the traditions, ethics and ideals of the men who formulated them. Western jurisprudence is not an exception to this rule as can be easily seen in the following words written by one of its scholars.
There is no wonder if legal systems differ from one another because of differences in national values. And for this reason, we kept saying, for quite a long time, that we should not expect different Muslim nations to have one and the same legal or economic system, even if they exert the same effort to comply with the Qur’an and Tradition. But, because all Muslims resort to the same legal resources, we expect their legal systems to have a great deal in common.5 Likewise, Western legal systems resemble one another; but differ greatly from Islamic ones, because each group has its own origin.
All societies present an entangled mesh of values, with many contradictions that never get sorted out. In America, religion is a particularly tangled strand, and despite the Founding Fathers’ clear intention to provide freedom of religion and the separation of church and state, some Americans insist on re-arguing the point continuously. In their vehemence they contradict another typical value that they hold, an irrational worship of the Constitution. But that’s how society is meant to be when people elect to be free.
Yet this raises the bugaboo of the Islamist factions, the religious conservatives who see the U.S. as a sworn enemy of their faith. The West was burned by the Iranian revolution and its steady drive toward anti-Western belligerence, along with its support for terrorism and the chimera of a world where every country bows to the Prophet Muhammad (SM). A leading expert of the Arab world, Bernard Lewis, years ago predicted that if popular uprisings succeeded in toppling the dictatorships that span from the top of Africa throughout the Middle East, the new governments would be dominated by religious fundamentalism. It was a dark prophecy, and it remains the most feared prospect as viewed by the U.S. We called for elections in Palestine, only to punish the Palestinians when they chose Hamas as their ruling party. We fled Lebanon in the midst of religious strife. We stood by helplessly as Iran moved in the wrong direction, and now many see the Shiite clerics gaining a strong hold in Iraq, hiding discreetly behind the scene.
This is a long preamble to saying that Muhammad (SM) cannot be kept out of Arab politics. The Westward-looking elites in the Arab world are secular even Saddam was secular but they hold power by brutal means. Ironically, it was the economic rise of Egypt and Tunisia in recent years that has largely fueled the discontent in the streets, for suddenly, as in India, the poorest people see a glimmer of hope for achieving dignity and economic progress. Even so, religion will be a big part of the mix. On one side, Egypt watchers tell us that the Muslim Brotherhood won’t take over the country; one is reminded of Iraq watchers who assured the neurons that invading Iraq wouldn’t lead to religious strife, given how secular that country was.
The root that runs deepest in every Arab country is Islam, and one of the ideals of the faith is that everything in life art, politics, law, and daily habits — must revolve around God’s strict rules. Having written a book about the Prophet, my immersion into Islam showed me, with regret, that their is a fine line between what the religious conservatives want, which is religious totalism, and what the Taliban delivered in Afghanistan, which is religious totalitarianism. I have no predictions about Egypt, which was founded by Nasser as a modern secular state on the basis of Arab nationalism. We can only stand by and see how the entangled mesh of values in Egypt unravels. The worst of one system may give way to the worst of its opposite let’s hope not.