Chap 1 Introduction to Legal Philosophy
Compare and contrast the principles of Islamic and western legal philosophy.
● Black = Islam
● Blue = Western
Philosophy of law provides a general philosophical analysis of law and legal institutions.
Issues in the field range from abstract conceptual questions about the nature of law and legal
systems to normative questions about the relationship between law and morality and the
justification for various legal institutions. There are 2 types of legal philosophy, namely Islamic
legal philosophy and Western legal philosophy. Both are similar and different in some kinds of
ways.
Similarities
Firstly, Rabanniyah is similar to natural law theory. Rabbaniyah means that Islam is a
religion which is based on godliness and religious values. This means that the ultimate goal of
Muslims is to attain Allah SWT’s love and pleasure. While Muslims are allowed to attain
worldly pleasure, but their main priority is to please Allah SWT so that they can continue to live
happily in the Afterlife. For example, Muslims are allowed to buy luxuries and live comfortably.
At the same time, those who meet the nisab requirements are required to pay zakat, which
amounts to 2.5% of their income. This is to reduce poverty and gain Allah’s pleasure. Hence,
according to Art 16 of Syariah Criminal Offences (Federal Territories) Act 1997, any person
who is liable to pay zakat but refuses to do so shall be liable to a fine not exceeding RM1000 or
to imprisonment not exceeding 6 months or to both.
Likewise, in natural law theory, the Overlap Thesis suggests that there is a relation
between law and morality. The moral standards that govern human behaviour are derived from
human nature and the nature of the world. This implies that the notion of law cannot be fully
explained without referring to moral notions. According to William Blackstone who founded
the idea of Conceptual Naturalism, there can be no legally valid standards that conflict with
natural law; and all valid laws derive from the force and authority they have from the natural law.
For example, S 302 of Penal Code provides that anyone who murders shall be punished with the
death penalty. This law is heavily influenced by the moral principle that taking another person's
life is fundamentally wrong. Hence, this shows that the basis of some laws is morality.
Secondly, both Islamic and western legal philosophy has permanent law in certain
areas but provides exceptions in certain cases. Both western and Islamic law provides a
general rule which does not change according to the time, place, or people. However, the law
provides some flexibility in certain circumstances. In Islamic legal philosophy, there is the
,concept of Thabat and Murunah. Thabat means fixed while Murunah means flexible. For
example, the general rule is that it is unlawful for Muslims to consume pork but in an extreme
situation where there is no other source of food except pork, it is permissible for Muslims to
consume it. This is because protection of life is one of the maqasid al syariah, thus all Muslims
must prioritise preserving one’s life. In Malaysia, this concept can be seen in the ruling for
Friday prayers during the Covid-19 pandemic. The general rule is that all Muslims must attend
the Friday prayers, otherwise they will be punished under S 14 of Syariah Criminal Offences
Act 1997. However, according to Al-Kafi #1657: The Ruling of Friday Prayer during the
Covid-19 Pandemic, it is permissible for Muslims to leave the Friday prayer if Covid-19 is
rampant, but it is wajib to be replaced with the Zohor prayer at one’s own house.
Likewise, in western legal philosophy, there is legal realism. The realists opine that
judges create new law by exercising their own discretion more often than is commonly supposed.
This means that western law is not as rigid since judges do not blindly follow the stare decisis,
but make judicial decisions on their own discretion. For example, a Federal Court judge is not
bound to follow the decision of a previous Federal Court case, even when the material facts are
the same. In Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor, the Federal court
held that it is not subject to the stare decisis rule as the apex court.
Thirdly, both legal pragmatism and waqaiyyah are practical. Legal pragmatism is a
theory critical of more traditional pictures of law, specifically, judicial decision making. The
classical picture of legal argumentation is historically attributed to Christopher Columbus
Langdell's theory. While Ronald Dworkin's theory offers a portrait of what judges actually do
when arriving at a legal conclusion. According to this theory, consistency with past judicial
decisions should be emphasised as one of the most important legal virtues. In contrast, legal
pragmatists such as Daniel Farber, Thomas Grey, Margaret Radin and Richard Posner think that
the classical view is overly legalistic and based upon misunderstandings of legal institutions.
Legal pragmatists largely agree upon four main aspects of a pragmatist version of jurisprudence:
the importance of context; the lack of foundations; the instrumental nature of law; and the
unavoidable presence of alternate perspectives. They look for empirical evidence that argues
against such a constrained view of decision making.
Likewise, Waqaiyyah means practical, ideal or realistic. Since Islam is suitable for human
needs, Islamic teachings must be practical for humans to apply in daily lives. In fact, the Quran
and Sunnah provide all solutions for the problems faced by humans in the worldly life. In the
Quran 2:286, Allah states: “Allah does not burden any soul greater than it can bear.” For
example, Muslims can only believe in Allah as Islam is a monotheistic religion. The Quran
2:163 states “There is no God other than Allah." This is because in Islam, it is not practical to
have two gods who have the same power at the same time because this would lead to conflict
among the Gods and chaos will occur. Likewise, it is also impractical to have 2 Prime Ministers
in a country as it will lead to confusion regarding whose command to adhere to.
,Differences
Firstly, Islamic legal philosophy was created by Allah SWT while the western legal
philosophy was created by humans. The concept of Rabbaniyyah indicates that Islam is a
religion which is based on godliness and religious values. Islam is derived from the Quran which
is the words of Allah. Hence, it is not made by humans according to their experiences. However,
western legal philosophy follows legal positivism where law is synonymous with positive norms
which are norms made by the legislative or considered as case law. Hence, law is made for man
by man, instead of how it ought to be. It suggests that laws are valid because they are enacted by
a legitimate authority and are followed by the society, not because they come from God.
According to John Austin, law is a command issued from a sovereign power to an inferior and
enforced by sanction.
Secondly, Alamiyah is universal but legal positivism is not universal. In Islamic legal
philosophy, Allah created humans and is the lawmaker so he knows humans best. Thus, Islam is
suited to all humans and it is not confined to a certain race, tribe, or group. Furthermore, Islam
even transcends beyond time limits and geographical boundaries. Even if one is not a Muslim,
the good values of Islam can be applied in their daily lives for the wellbeing of the society. For
example, Islam promotes justice, Conversely, since western legal philosophy is formed according
to the norms of the majority in a society, it is only suitable to a group of people with similar
upbringing, culture, and values. For example, same-sex marriage is prohibited in Malaysia but
legal in Taiwan. This is because the public opinion in Malaysia is against LGBT but not in
Taiwan. Thus, the passing of same-sex marriage may not be suitable in Malaysia as Malaysia is a
Muslim-majority country and homosexuality is a sin in Islam.
Thirdly, Tawazun is balance but Utilitarianism is against balance. Islam focuses on
striking a balance between spiritual and material wealth. Thus, a Muslim is not obligated to
ignore all joys in the worldly life and wholly dedicate his or her life to Islam. Prophet
Muhammad (s.a.w) always promoted this moderate and balanced understanding of Islam. He
used to advise his companions to practise moderation whenever he saw any imbalance in their
actions or thoughts. For example, it was narrated from Anas that there were 3 companions of
the Prophet who wanted to fast daily, pray the whole night and reject marriage. The Prophet
thought that they were excessive and said that even he himself prays and sleeps, fasts and breaks
fast as well as marries women. This means that Islam does not demand a man to deny his own
nature but provides a way of life which conforms to human nature but at the same time aligns
with Islamic principles.
Conversely, Utilitarianism promotes the idea of the greatest good for the greatest
population. Utilitarianism is a form of consequentialism because it focuses on the consequences
of actions, laws and policies in determining whether they are good or bad, right, or wrong. In
short, whether actions are morally right or wrong depends on their effects. While utilitarianism
, aims to maximise pleasure and joy in one’s life, it can sometimes cause negative effects such as
crime and addiction. For example, utilitarianism is the basis for the legalisation of recreational
marijuana. In 2023, nearly half of U.S. states legalised recreational cannabis in 2023. Aside from
the aim of profit-making, the legalisation of marijuana can be attributed to the western culture
which emphasises on pleasure. Indeed, marijuana stimulates the release of the happiness
hormones which cause users to feel “high.” In short, the Western world strives to attain
maximum happiness without considering its long-term effects.
Fourthly, Syumul is complete but pure theory of law is incomplete. Islam is not
merely a belief which focuses on worship and rituals, but it is a comprehensive religion and way
of life. In Lina Joy v MAIWP & Anor, Tun Ahmad Fairuz stated that Islam is not just a mere
collection of dogmas and rituals, but it is a complete way of life covering all fields of human
activities, may they be private or public, legal, political, economic, social, cultural, moral or
judicial. Islamic teachings cover all aspects of life including our relationship with Allah (s.w.t),
ourselves, each other, families, communities, the whole society, animals and objects and
international diplomatic relationship. The Quran 5:3 states that “… Today I have perfected your
religious law for you, and have bestowed upon you the full measure of My blessings …” This
proves that Islam is the perfect religion as its teachings can be applied in every aspect of a
human’s lives. The Quran 16:89 also states that “… and We have sent down to you the Book
explaining all things, a guide, a mercy, and glad tidings to Muslims.” This shows that all
problems faced by humans in the worldly life can be solved by applying Islamic teachings in the
Quran.
Conversely, Pure theory of law is also known as Han Kelsen’s theory of law. It refers to
any explanation of the nature of law which excludes all other elements such as sociology,
politics, morality and other disciplines. This shows that the pure theory of law is not
comprehensive as it neglects other aspects which can influence the shaping of law. For Hans
Kelsen, a norm is a description of law. He defines law as a primary norm made by officials by
providing sanctions. Hence, law as a system of norms is self-organising. Unlike Islamic legal
philosophy, the law created based on social norms may be conflicting with Islamic teachings. For
example, drinking alcohol and gambling were norms among the Arabs during the Age of
Ignorance before Islam came. Despite being a norm, they are prohibited in Islam and should not
be practised.
In conclusion, there are many differences between Islamic law and Western law. In
essence, Western law is made by humans which changes according to social and economic
needs, whereas Islamic law is a divine law provided by Allah SWT and is permanent.
Compare and contrast the principles of Islamic and western legal philosophy.
● Black = Islam
● Blue = Western
Philosophy of law provides a general philosophical analysis of law and legal institutions.
Issues in the field range from abstract conceptual questions about the nature of law and legal
systems to normative questions about the relationship between law and morality and the
justification for various legal institutions. There are 2 types of legal philosophy, namely Islamic
legal philosophy and Western legal philosophy. Both are similar and different in some kinds of
ways.
Similarities
Firstly, Rabanniyah is similar to natural law theory. Rabbaniyah means that Islam is a
religion which is based on godliness and religious values. This means that the ultimate goal of
Muslims is to attain Allah SWT’s love and pleasure. While Muslims are allowed to attain
worldly pleasure, but their main priority is to please Allah SWT so that they can continue to live
happily in the Afterlife. For example, Muslims are allowed to buy luxuries and live comfortably.
At the same time, those who meet the nisab requirements are required to pay zakat, which
amounts to 2.5% of their income. This is to reduce poverty and gain Allah’s pleasure. Hence,
according to Art 16 of Syariah Criminal Offences (Federal Territories) Act 1997, any person
who is liable to pay zakat but refuses to do so shall be liable to a fine not exceeding RM1000 or
to imprisonment not exceeding 6 months or to both.
Likewise, in natural law theory, the Overlap Thesis suggests that there is a relation
between law and morality. The moral standards that govern human behaviour are derived from
human nature and the nature of the world. This implies that the notion of law cannot be fully
explained without referring to moral notions. According to William Blackstone who founded
the idea of Conceptual Naturalism, there can be no legally valid standards that conflict with
natural law; and all valid laws derive from the force and authority they have from the natural law.
For example, S 302 of Penal Code provides that anyone who murders shall be punished with the
death penalty. This law is heavily influenced by the moral principle that taking another person's
life is fundamentally wrong. Hence, this shows that the basis of some laws is morality.
Secondly, both Islamic and western legal philosophy has permanent law in certain
areas but provides exceptions in certain cases. Both western and Islamic law provides a
general rule which does not change according to the time, place, or people. However, the law
provides some flexibility in certain circumstances. In Islamic legal philosophy, there is the
,concept of Thabat and Murunah. Thabat means fixed while Murunah means flexible. For
example, the general rule is that it is unlawful for Muslims to consume pork but in an extreme
situation where there is no other source of food except pork, it is permissible for Muslims to
consume it. This is because protection of life is one of the maqasid al syariah, thus all Muslims
must prioritise preserving one’s life. In Malaysia, this concept can be seen in the ruling for
Friday prayers during the Covid-19 pandemic. The general rule is that all Muslims must attend
the Friday prayers, otherwise they will be punished under S 14 of Syariah Criminal Offences
Act 1997. However, according to Al-Kafi #1657: The Ruling of Friday Prayer during the
Covid-19 Pandemic, it is permissible for Muslims to leave the Friday prayer if Covid-19 is
rampant, but it is wajib to be replaced with the Zohor prayer at one’s own house.
Likewise, in western legal philosophy, there is legal realism. The realists opine that
judges create new law by exercising their own discretion more often than is commonly supposed.
This means that western law is not as rigid since judges do not blindly follow the stare decisis,
but make judicial decisions on their own discretion. For example, a Federal Court judge is not
bound to follow the decision of a previous Federal Court case, even when the material facts are
the same. In Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor, the Federal court
held that it is not subject to the stare decisis rule as the apex court.
Thirdly, both legal pragmatism and waqaiyyah are practical. Legal pragmatism is a
theory critical of more traditional pictures of law, specifically, judicial decision making. The
classical picture of legal argumentation is historically attributed to Christopher Columbus
Langdell's theory. While Ronald Dworkin's theory offers a portrait of what judges actually do
when arriving at a legal conclusion. According to this theory, consistency with past judicial
decisions should be emphasised as one of the most important legal virtues. In contrast, legal
pragmatists such as Daniel Farber, Thomas Grey, Margaret Radin and Richard Posner think that
the classical view is overly legalistic and based upon misunderstandings of legal institutions.
Legal pragmatists largely agree upon four main aspects of a pragmatist version of jurisprudence:
the importance of context; the lack of foundations; the instrumental nature of law; and the
unavoidable presence of alternate perspectives. They look for empirical evidence that argues
against such a constrained view of decision making.
Likewise, Waqaiyyah means practical, ideal or realistic. Since Islam is suitable for human
needs, Islamic teachings must be practical for humans to apply in daily lives. In fact, the Quran
and Sunnah provide all solutions for the problems faced by humans in the worldly life. In the
Quran 2:286, Allah states: “Allah does not burden any soul greater than it can bear.” For
example, Muslims can only believe in Allah as Islam is a monotheistic religion. The Quran
2:163 states “There is no God other than Allah." This is because in Islam, it is not practical to
have two gods who have the same power at the same time because this would lead to conflict
among the Gods and chaos will occur. Likewise, it is also impractical to have 2 Prime Ministers
in a country as it will lead to confusion regarding whose command to adhere to.
,Differences
Firstly, Islamic legal philosophy was created by Allah SWT while the western legal
philosophy was created by humans. The concept of Rabbaniyyah indicates that Islam is a
religion which is based on godliness and religious values. Islam is derived from the Quran which
is the words of Allah. Hence, it is not made by humans according to their experiences. However,
western legal philosophy follows legal positivism where law is synonymous with positive norms
which are norms made by the legislative or considered as case law. Hence, law is made for man
by man, instead of how it ought to be. It suggests that laws are valid because they are enacted by
a legitimate authority and are followed by the society, not because they come from God.
According to John Austin, law is a command issued from a sovereign power to an inferior and
enforced by sanction.
Secondly, Alamiyah is universal but legal positivism is not universal. In Islamic legal
philosophy, Allah created humans and is the lawmaker so he knows humans best. Thus, Islam is
suited to all humans and it is not confined to a certain race, tribe, or group. Furthermore, Islam
even transcends beyond time limits and geographical boundaries. Even if one is not a Muslim,
the good values of Islam can be applied in their daily lives for the wellbeing of the society. For
example, Islam promotes justice, Conversely, since western legal philosophy is formed according
to the norms of the majority in a society, it is only suitable to a group of people with similar
upbringing, culture, and values. For example, same-sex marriage is prohibited in Malaysia but
legal in Taiwan. This is because the public opinion in Malaysia is against LGBT but not in
Taiwan. Thus, the passing of same-sex marriage may not be suitable in Malaysia as Malaysia is a
Muslim-majority country and homosexuality is a sin in Islam.
Thirdly, Tawazun is balance but Utilitarianism is against balance. Islam focuses on
striking a balance between spiritual and material wealth. Thus, a Muslim is not obligated to
ignore all joys in the worldly life and wholly dedicate his or her life to Islam. Prophet
Muhammad (s.a.w) always promoted this moderate and balanced understanding of Islam. He
used to advise his companions to practise moderation whenever he saw any imbalance in their
actions or thoughts. For example, it was narrated from Anas that there were 3 companions of
the Prophet who wanted to fast daily, pray the whole night and reject marriage. The Prophet
thought that they were excessive and said that even he himself prays and sleeps, fasts and breaks
fast as well as marries women. This means that Islam does not demand a man to deny his own
nature but provides a way of life which conforms to human nature but at the same time aligns
with Islamic principles.
Conversely, Utilitarianism promotes the idea of the greatest good for the greatest
population. Utilitarianism is a form of consequentialism because it focuses on the consequences
of actions, laws and policies in determining whether they are good or bad, right, or wrong. In
short, whether actions are morally right or wrong depends on their effects. While utilitarianism
, aims to maximise pleasure and joy in one’s life, it can sometimes cause negative effects such as
crime and addiction. For example, utilitarianism is the basis for the legalisation of recreational
marijuana. In 2023, nearly half of U.S. states legalised recreational cannabis in 2023. Aside from
the aim of profit-making, the legalisation of marijuana can be attributed to the western culture
which emphasises on pleasure. Indeed, marijuana stimulates the release of the happiness
hormones which cause users to feel “high.” In short, the Western world strives to attain
maximum happiness without considering its long-term effects.
Fourthly, Syumul is complete but pure theory of law is incomplete. Islam is not
merely a belief which focuses on worship and rituals, but it is a comprehensive religion and way
of life. In Lina Joy v MAIWP & Anor, Tun Ahmad Fairuz stated that Islam is not just a mere
collection of dogmas and rituals, but it is a complete way of life covering all fields of human
activities, may they be private or public, legal, political, economic, social, cultural, moral or
judicial. Islamic teachings cover all aspects of life including our relationship with Allah (s.w.t),
ourselves, each other, families, communities, the whole society, animals and objects and
international diplomatic relationship. The Quran 5:3 states that “… Today I have perfected your
religious law for you, and have bestowed upon you the full measure of My blessings …” This
proves that Islam is the perfect religion as its teachings can be applied in every aspect of a
human’s lives. The Quran 16:89 also states that “… and We have sent down to you the Book
explaining all things, a guide, a mercy, and glad tidings to Muslims.” This shows that all
problems faced by humans in the worldly life can be solved by applying Islamic teachings in the
Quran.
Conversely, Pure theory of law is also known as Han Kelsen’s theory of law. It refers to
any explanation of the nature of law which excludes all other elements such as sociology,
politics, morality and other disciplines. This shows that the pure theory of law is not
comprehensive as it neglects other aspects which can influence the shaping of law. For Hans
Kelsen, a norm is a description of law. He defines law as a primary norm made by officials by
providing sanctions. Hence, law as a system of norms is self-organising. Unlike Islamic legal
philosophy, the law created based on social norms may be conflicting with Islamic teachings. For
example, drinking alcohol and gambling were norms among the Arabs during the Age of
Ignorance before Islam came. Despite being a norm, they are prohibited in Islam and should not
be practised.
In conclusion, there are many differences between Islamic law and Western law. In
essence, Western law is made by humans which changes according to social and economic
needs, whereas Islamic law is a divine law provided by Allah SWT and is permanent.
