COMPARISON OF SUBSTANTIVE LAW IN ISLAMIC LEGAL TRADITION AND SUBSTANTIVE LAW IN AMERICA 8
Comparison of Substantive Law in Islamic Legal Tradition andSubstantive Law in America
Substantive law is any constitutional or written law, whichdescribes freedoms and obligations. It comprises of written legallaws enacted by a country’s governing body, which direct the mannerin which people act. The laws describe offences and determine duepunishment. In addition, they explain how a country expects itscitizens to act. Substantive law is utilized in the validation ofwhether a misdeed has happened, and identifies the charges that applyto the crime. Statutory laws are set depending on the country, andmay be similar or different. This research is a comparison ofsubstantive law in Islamic legal tradition to substantive law inAmerica.
In both Islamic law and American law, specific formalities as wellas substantive aspects are important for juristic acts to becomelawfully binding, which is the foundation for substantive law (Fadel,2013). Substantive law provides civilians with information concerningwhat conduct is acceptable and that which is illegal. In addition,substantive law explains what might happen to persons that do notfollow the law. Substantive law guarantees civilians that the lawderives from a lawful power, and will become enforced by the power ina just manner. For instance, the foundation of the Islamic legaltradition is the Quran. The Quran is a lawful authority in Islam,which forms the basis for Sharia law (Shahidullah,2012). The lawful Quran verses explain on general principles,which civilians are supposed to adhere. On the other hand, thelegislature decides on substantive law in America. The legislaturecreates a constitution comprising of written law for its civilians(Fadel, 2013). In both Islam and American law, the similarity derivesfrom the fact that the Quran and legislature provide information tocivilians that informs on what actions are lawful and those that arenot legal. Both, the Quran and legislature make clear what punishmentor actions are to be taken against persons that break the law.
Substantive law of contract
Substantive law comprises of different types of law. One is the lawof contract, which is a good basis for the comparison betweensubstantive law in Islamic legal tradition and substantive law inAmerica. Both Islamic and American laws share a similarity in theirdefinition of contract. It refers to the combination of proposal andapproval or mutual consent. This means that in order for the law ofcontract to be effective, there ought to be more than one party thatconsent to a course of action (Fadel, 2013). One party may agree tosell their property, while the other agrees to buy at a stated price.Most important is that both parties consent. In the substantive lawof contract, the mutual agreement acts as the controller of thecontract in Islamic and American law. This means that the majorsection of the law is on the fair fulfillment of an exchange vianegotiation, the fair exchange of goods following the entry into acontract. However, though the mutual agreement is a relevant aspectin American and Islamic substantive law of contracts, it initiatesthe commencement of entering into an agreement for Islamic law(Shahidullah, 2012). Fairexchange via negotiation or communication is regarded as the mostcrucial part in Islam. The argument is that such exchange results inmutual satisfaction. Islamic law places emphasis on the fundamentalfunction of contract instead of its formality or objective situations(Shahidullah, 2012).
The substantive law of contract in Islamic legal tradition has asimpler formality when compared to substantive American law. InIslamic legal tradition, one party, as well as its acceptanceinstantly concludes all agreements through compelling expressions ofthe offer by the party getting into agreement. This means that thereis minimal formalism during the initial phases of developing thecontract amid the involved parties. In Islamic rule, contracts becomecomplete following each word, or action that articulates theobjectives of parties involved. Contrary, American substantive law ofcontract comprises of a complex formality (Jenkins,2011). Despite the subject of the agreement, all contracts,according to American law comprise of specific aspects, which oughtto be handled to ensure the contract bears a lawful validity. Theseaspects include the mandate that all parties involved have the lawfulcapability to enter into consent and do so liberally. Legal capacityrefers to the power to enter into a contract and ability tocomprehend the binding terms (Jenkins,2011). When an individual does not meet legal capacity, thecourt normally refutes to put into effect contracts they make.
Notably, substantive law of contract differs in Islamic law andAmerican law in regards to the transfer of ownership. In Islamiclegal tradition, the ownership of property or goods happensimmediately following the formation of the contract in principle. Theprinciple closely links to restriction of riba (Fadel, 2013).Islam mandates that transfer in future must be evaded, due to thepresence of aspects of speculation or prospective risk, which resultin a type of unforeseeable benefit or loss. An illustration is in asale agreement. When one party claims to have purchased something,they get the item immediately during the encounter. Hence, theopposite applies when selling. This means that it is not possible forthe seller to hold the delivery of an item to a later date as perIslamic law. Contrary, in American substantive law of contract, thelaw encourages future transfer (Jenkins,2011). Once parties have engaged in agreement, for instanceconcerning the selling of property, the law encourages the holding oftransfer of land ownership to a future period. American law insteadcomprises of the aspect of consideration. Although transfer ofownership does not happen immediately after a contract, both partiesexchange something valuable, which ensures the securing of particularpromises.
Substantive criminal law
There are similarities and disparities in substantive criminal lawin Islamic legal tradition and American law. The main similarityderives from the kinds of crime, shaping practice in substantivecriminal law. In both Islam and American law, criminal law comprisesof acts, which civilians are prohibited from engaging. In addition,the law makes clear the punishments that follow any form of criminallaw. The Islamic legal system implements criminal restrictions andpunishments that derive from Islamic doctrines (Imber,1997). This meansthat people who violate rules clearly stated under Sharia laware likely to face criminal prosecution. Similarly, most of theAmerican substantive criminal law prosecutions are because ofviolations of limitations clearly stated in the constitution. In allAmerican states, statutes implemented by the legislature, act as thefundamental source of substantive criminal law (Fletcher& Sheppard, 2005).This compares to Islamic law where civilians are guided by principlesfrom the Quran.
In both Islamic and American law, once an individual engages in acriminal act, like murder, the act is punishable by law. This meansthat the individual must face due punishment for their crime, whichnormally involves hearings to determine if the individual is guiltyas charged or innocent (Fletcher& Sheppard, 2005).Just as American law is firmly rooted in the stipulations providedunder the constitutions, concerning the hearing and prosecution ofcriminals, so is Islamic legal tradition, which is firmly based inreligious writings and practices (Imber,1997). In both laws,the legal systems rely on an elite cadre that comprises of highlylearned jurists. The jurists investigate and outline the parties’involved in a criminal case. In addition, the jurists are accountablefor rendering a fair decision, which aligns to a highly structuredbody of authoritative texts. Parties involved in a case are allowedto state their claim before a panel of jurists, who listen to thecase and make the decision on if the accused is guilty or not guilty.
Normally, in both Islamic and American law, the punishment is clearfor crimes committed. For instance, in American law felonyconvictions lead to long prison sentences, probation, and huge fines.Serious crimes like raping and murdering are subject to capitalpunishment, or harsh penalty depending on the state. Likewise,Islamic law categorizes criminal activity into hudud, taziror qisas crimes (Imber,1997). The Islamicpenal code makes clear what punishment is fit for each crime.However, Islamic legal tradition does not allow appeal after a casehas been decided (Imber,1997). This meansthat when the initial ruling finds an individual guilty of murder orany other criminal activity, they cannot appeal the ruling, as thedecision is normally final. The original decision made during initialhearing determines the punishment that the offender will face, guidedby Sharia law. On the contrary, in American laws, people charged asguilty of breaking a criminal law are permitted to appeal. Normally,following the first ruling, the accused may feel that the punishmentand hearing was not fair. The constitution mandates that the accusedhave a right to appeal a ruling. If the accused decides to appeal,then they have a time limit for petitioning.
Substantive tort law
Tort law makes it possible for injured individuals to seek remedy incourt. Hence, a tort refers a civil misdeed committed to injureanother person. It is a particular kind of conduct, which a persontakes on, leading to harm to another or property. Islamic law iscautious to assess the issue of jurisdiction carefully in determiningthe extreme to which positive rules under Islamic legal traditionapply to any tort case. Tort rules, under Islamic law are regarded asuniversal where the jurist, using their system of reasoningdetermines what punishment is fit for the individual that commits thetortuous act (Fadel, 2013). The same applies in American law, becausetort law is judge made. Hence, the particular conducts, which areactionable under tort law, depend on the judges reasoning.
In the comparison of Islamic and American substantive laws, thereare both similar and different practices apparent in both legalsystems. Under the substantive law of contract, both Islamic andAmerican law agrees on the definition of a contract and relevance ofmutual agreement. However, there is a disparity in the procedure offormality since Islamic legal tradition has a simpler formality,while American law of contract is complex. Under substantive criminallaw, criminal activity is punishable by law in Islamic and Americanlaw. However, Islamic law does not allow appeals, which are allowedin American law. Both laws share similarity in substantive tort lawbecause specific behavior is punishable depending on the judgesreasoning.
Fadel, M. (2013). Islamic law andAmerican law: Between concordance and dissonance. New York Law School Law Review,57, 231-242.
Fletcher, G. P., & Sheppard, S.(2005). Americanlaw in a global context: The basics.Oxford: OxfordUniversityPress.
Imber, C. (1997). Ebu`s-suùd:The Islamic legal tradition.Edinburgh: Edinburgh University Press.
Jenkins, J. A. (2011). TheAmerican courts: A procedural approach.New York: Jones & Bartlett Publishers.
Shahidullah, S. M.(2012). Comparativecriminal justice systems: Global and local perspectives. Burlington,Mass: Jones & Bartlett Learning.