Concepts of Civil law Versus Sharia Law

Introduction

Owing to diversity in individual character, it is very hard to manage people without use of correctly drafted and recommended set of doctrines. These doctrines help to guide practices and solve problems not only in local settings, but also in international scenarios.

Since time memorial, these set rules have been the main guiding principles on individual practices, hence helping to shape societal, economic, and political orientations of different communities. This is because depending on a specific society’s treasured values and living patterns, there exists extensive variations in laws that mange their practices and activities.

In this regard, it is important to note that, laws vary according to areas of implementation or use, which sometimes depend on societies’ religious beliefs. Laws are generally a set of policies, which authorities use to manage or govern its citizens. They are main determinants of the nature of relationships that exist not only between individuals and organizations, but also between different communities within an area.

In many countries for laws to be valid, they have to be assented by the president of that nation or leaders of that specific community. Although this is the case, before lawmakers present such laws for assent by top leaders, the laws have to pass through a scrutiny system, mostly conducted by members of parliament, congress, elders or set up community leadership organs (Beale and Talon pp. 3-9).

Formulation and use of laws is a practice that has been there since time memorial. For example, during Middle Ages individuals considered most governing laws as divine, hence their application followed principles of divine will. The past Byzantium societies also had laws; however, theirs were a little bit different because they coined both sacred and worldly laws. Another community that had a unique form of laws is Western Europe; it had clear differentiations between its secular and sacred law (commonly called the cannon law).

Law has five main classifications namely: civil, public, natural, criminal, and internal law. It is important to note here that, individuals never apply a single classification of law in governing and solving problems whenever they arise, but rather they coin different sections of these laws to formulate workable solutions. This paper will discuss concepts of civil and Sharia law. In addition, it will compare these laws in terms of their principles and application as pertains to different scenarios and societal issues.

Sharia Law

Majority of religions follow spiritual precepts, hence determining the practice that believers of that religious community follow. Some religious rules are so rigid to levels that, if members of those specific communities go against them they face very harsh punishments, as specified in statutes of those specific laws.

Sharia is a religious law that dictates practices of all Islamic believers. In addition to directing Muslim believers, Sharia’s code of ethics dictates practices in most Islamic communities and countries. These laws clearly define acceptable practices in marriage, divorce, living beliefs, business dealings and other moral conditions encountered by members of the Islamic religion.

It is important to note that, although Sharia law manages most practices in Islamic believers, sometimes they affect other civilians of such nations. This is because in areas where Sharia’s set of rules find wide application, its influences are many on the patterns or ruling, criminal, and personal status laws.

Sharia law primarily originates from the Islamic holy book: the Quran. However, it is important t note that, some sections of the Sharia law find their foundation from the Islamic sayings book; the Sunna. These two books carry the Islamic teachings and sayings of Prophet Mohammed addressed to all Muslim believers internationally (Vriens p.1).

History of Sharia Law

Sharia laws came into existence after the death of Prophet Mohammed back in the year 1632 CE. These laws came into being as Muslims extended their rule to some sections of the horn of Africa and east China. Sharia’s adoption was as a result of respect that Muslims accorded Mohammed before and after his death. This is because they considered and still consider him the most virtuous or righteous person on earth. Due to this respect, Muslim clerics recorded and wrote down most of Mohammed’s sayings, speeches and summons in books called Hadith. These books later became the main source of information that helped Muslims draft the Sharia law.

Owing to diversity of practices by Muslims civilians in areas they occupied, Muslim leaders formulated mechanisms of reconciling these practices, hence leading to the adoption of the Hadith readings; common thing among the Muslim society. The adoption of the Hadith led to the emerging the currently existing schools of thoughts namely: the Hanafi, Maliki, Jafari, Shiite, Hanbali, and the Shafii. All this schools have titles originating from Muslims who first gave out ideas they deal with.

Depending on sections of the Sharia their originators obtained them from, these fields have different implications on Islamic practices. In addition, due to differing ideological thoughts of these schools, there application also varies in terms of areas of jurisdiction or country. For example, the Taliban and the citizens of Saudi Arabia use the Hanbali School, whereas the Sunnis use the Hanafi (Vriens p.1)

Previously (before the 19th century), Muslims used a non-codified law, but in the wake of 19th, century the first form of Sharia codified law emerged in the Ottoman Empire. Muslims named this first form of codified law the Ottoman Empire’s Mecelle Code, a practice that has undergone many transformations to form the currently used coded Sharia law. Although this law currently faces much opposition due to arguments that, it is hash, most Islamic countries use its ethics and customs in judging acts of its citizens (Shahin pp. 14-56).

Civil law

Civil law unlike, Sharia law is not religion based, however they share one common goal: achievement of a peaceful society that thrives within specific standards and conditions. Achievement of peaceful co-existence of individuals is never an easy task owing to the fact that the society carries individuals with different qualities, political orientations, and social lives.

Owing to this fact civil law tends to ignore all individual’s sole qualities, hence defining boundaries, which all individuals must base their daily practices. This law’s main goal is to solve fights that may occur among different individuals or organizations as concerns property ownership, economic exchanges and disputes that may require compensations.

That is, civil law’s main aim is to provide a set of laws that all judges must follow in trying to ensure courts achieve justice. Examples of disputes solved by civil war include accidents, property ownership, and family issues. This form of law follows almost same principles as the Roman law, whereby it defines principles of providing solutions to disputes considered complex to solve using common knowledge.

Depending on specific countries, the main source civil law is the legislature, hence making the court system to have special practitioners who help in solving civil cases. In addition, this law makes court procedures inquisitive, hence not controlled by precedents.

This form of law is the oldest as compared to other laws globally, owing to fact that, it traces its foundations to colonial times, when Europeans transformed most forms of traditional civil laws (Merryman and Perez-Perdomo pp. 4-12).

History of Civil Law

Primarily this law’s system derives its principles of application from the Romanian law, specifically the Corpus Juris Civilis used by emperor Justinian. Most practices in Rome emphasized growth of legal systems that were strong and just, hence development of strong legal systems.

Past Roman law was in a form of legislation commonly referred as “the law of twelve tables”. Later as the complexity of legal cases increased, judicial officers added views of law intellectuals. As times changed and the complexity of cases advanced, under command of the Byzantine Empire judicial officers combined all law resources, which included the Theodosian code and all scholarly works as concerns legal issues to form a new law; the Justinian law. This law became the main basis of handling all legal issues.

Although the Justinian law was limited to the eastern section of the Roman Empire, this never prevented the law from spreading because by mid the 11th century, Italy revived its use. Its revival led to introduction of colleges that taught on concepts of this law, which up to today find wide application in legal cases. In addition to evolution of the Justinian law, other laws such as the Cannon and the merchant’s custom have greatly contributed to the development of currently existing civil laws.

For example, combination of these three laws led to the formation of the Jus Commune; an international law used mostly by Europe. As time advanced this also underwent very many transformations, which have resulted to codification of the present civil law. Examples of past codifications that have contributed to the development of present civil law include the civil code, penal code, code of civil procedure, commercial codes, and the code of criminal procedure (Civil law p.1).

This codification of laws marked the onset of the present codes adopted by different countries, hence the movement from the multi-national Jus Commune to present unique national legal structures. It is important to note that, colonization also acted an important in the spread of civil law, for through it colonizers propagated their values and forms of laws on countries they colonized.

Most nations that use the Justinian code also use the real provisions as specified in its laws, although little variations exist in terms of reference to past decisions made on cases handled by their courts. For example, in the U.S. for judges to solve any civil cases, they have to refer to decisions made on akin past cases.

Types of Civil Law

Courts use civil laws in cases where cases to be solved demand compensations as the main remedy of their solution. For example, consider a case like divorce; owing to complexities associated with this type of case, it demands application of civil laws on involved parties, hence formulation of solutions that do not favor any side. Common types of civil laws are; Contract law; family law; tort law; intellectual property law; and business law (Missouri Bar p.1).

Contract law finds wide application in cases where agreements are involved. Courts mostly use the contract law where there is contention between objects or subjects of agreements. For example, incase individuals insured their cars against fire, but something different destroys it, an individual can sue the company for compensation, owing to the fact that one had paid insurance premiums.

A second common form of civil is the tort; a law that deals with neglected objects, which cause harm, hence the need for owners to cater for all used expenses and other losses incurred in dealing with the situation. A third type of civil law is the family law, which finds wide application when it comes to family matters. Courts use this law to determine the custody of children and other family possessions after marital problems such as divorces.

The last form of civil law is the intellectual property law, primarily concerned with copyright rights, trespass rights and other claims as concerns personal belongings.

It is important to note that, although this laws deal with different concepts, their core aim is compensation of wasted resources for example time, money, and investments.

Types of Sharia Law

Shari law primarily has three injunctions namely: an injunction concerned with Islamic beliefs; an injunction dealing with spiritual advancement and reform; and an injunction concerned with external behaviors of individuals. All these three injunctions deal with different concepts within the Islamic religion ranging from basic human living virtues to Allah’s (God’s) qualities, writings, and judgments. These three classes off injunctions combined results to two types of Islamic law namely: Transaction law and Devotional law.

These two main divisions deal with different concepts of the Islamic belief, primarily determined by goals they are supposed to achieve in individuals. Devotional law’s main aim is to build well-built individuals spiritually. That is, this law determines practices that individuals can embrace to guarantee them nearness to God. It specifies practices such as Hajji, Zakah, and obeying of covenants, which individuals must adopt in their daily lives in order to offer appreciation to Allah, hence call for more blessings; eternal life.

On the other hand, transaction law is a form of law that governs worldly practices, which individuals should embrace. According to the law, gaining of worldly possessions is necessary for they are indications of Allah’s blessings. This law’s primary motive is to control human activity for the common benefit of sole individuals and the entire Muslim community. This law has two main branches namely: personal and commercial law (Islamic law p.1).

Comparisons between Sharia and Civil Law

Although these two forms of laws fight to ensure judicial systems are just and fair, hence provision of solutions to many existing human problems, they have some differences in form of application and their provisions. To start with, the main clear difference between these two forms of law is; Sharia law follows Islamic doctrines where as civil law has no connections to any religious belief.

Sharia bases most of its legal principles on Prophet Mohammed’s teachings in the Quran and Sunnah, whereby civil law’s provisions use concepts related to peaceful human existence; ethical principles that are universally accepted and formulated.

Secondly, many lawmakers can change or make changes to Civil laws of a nation depending on the jurisdiction country, a case different from Sharia laws, which are unchangeable. It is necessary to note at this point that both civil laws and Sharia laws vary depending on the application country (Hassim p.1).

To almost all countries regardless of its; religious affiliation, there exist a set of civil laws governing its citizenry as concerns agreements, a factor that makes civil law a common thing globally as compared to Sharia law, which is used in only Islamic countries.

The acceptance of these two forms of laws varies depending on the application region. That is, because these two forms run parallel to each other, it is very rare to find a country that has adopted both because of varying ideological differences. For example, Sharia law prohibits any act of homosexuality, a practice legalized in some countries. Hence, whenever a case occurs in a country that has adopted these two forms of law, chances of conflicts are high depending on which religion is strong (Badr pp.188-194).

As most law researchers argue, Sharia law is very “rigid” and harsh as compared to common civil laws. This is because depending on circumstances surrounding a case, courts can flex civil laws to fit such cases; a practice that Sharia law lacks.

In addition, depending on the type criminal offense committed, some punishment as specified by Sharia law are very harsh and in-human for example chopping of hands in robbery with violence cases (Fernandes p. 1).

In terms of fairness and gender balances, regardless of an individuals gender, civil laws guarantees all individuals equal rights, hence courts base their judgment on available evidence leading to passing of proportional judgments.

To some extent, Sharia law is gender biased in terms of penalties and passing of judgments. For example, according to provisions in Sharia law, punishments for women involved in adultery is stoning; a sentence that court never passes on men.

Although differences exist between these two laws, law practitioners in these two fields must undergo extensive trainings depending on area of specialization. In addition, they must be members of recognized law societies within that community of application. In addition, these two forms of law have many other common provisions and influences on each other depending on the nature of cases.

Conclusion

In conclusion, although many variations in terms of provisions in these two forms of laws vary, it is necessary for practitioners in the field of law to always ensure they are fair in passing judgments. In addition, regardless of one’s religious affiliation, there is need for establishment of a common law that will serve all individuals with due respect.

Works Cited

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Merryman, John and Perez-Perdomo. The civil tradition: an introduction to the legal systems of Europe and Latin America. 3 rd Ed. Stanford: Stanford University Press, 2007. Print.

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Indiana: Cloverdale Corporation, 2007. Print.

Vriens, Laurens. Islam: governing under Sharia, 23 March. 2009. Web. 21 Jan. 2010.
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