Feasibility of the application of the doctrine of judicial precedent in civil and shariah courts

The doctrine of judicial precedent plays an empirical role in the common law system, but it only has persuasive value in European countries which are practicing the civil legal system. Moreover, it has not been recognised as having a binding force in the Islamic legal system and thus each case has...

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Main Authors:	Ahmed, Kyaw Hla Win @ Md Hassan, Mikail, Sa'id Adekunle, Arifin, Mahamad, Ali Mohamed, Ashgar Ali
Format:	Article
Language:	English
Published:	LexisNexis 2013
Subjects:	K Law (General)
Online Access:	http://irep.iium.edu.my/32549/ http://irep.iium.edu.my/32549/ http://irep.iium.edu.my/32549/1/ashgar.pdf

id	iium-32549
recordtype	eprints
spelling	iium-325492014-07-21T07:18:29Z http://irep.iium.edu.my/32549/ Feasibility of the application of the doctrine of judicial precedent in civil and shariah courts Ahmed, Kyaw Hla Win @ Md Hassan Mikail, Sa'id Adekunle Arifin, Mahamad Ali Mohamed, Ashgar Ali K Law (General) The doctrine of judicial precedent plays an empirical role in the common law system, but it only has persuasive value in European countries which are practicing the civil legal system. Moreover, it has not been recognised as having a binding force in the Islamic legal system and thus each case has to be decided based on its own merits and previous decisions were merely considered as guidance for the future decision. This position is still being maintained by some countries such as Malaysia and Saudi Arabia. In Pakistan and Nigeria, however, the doctrine of judicial precedent is followed. Due to this contradiction among the Shariah legal system in various countries, as a result, a question arises relating to the feasibility of the application of the doctrine of judicial precedent in Shariah Courts needs thorough study. Accordingly, in this paper, the factual nature of the judicial precedents in both civil and Shariah legal systems have been examined comparatively in some detail with reference to countries such as England, Malaysia, Nigeria and Pakistan. This paper points out that the doctrine of stare decisis and judicial precedent can be applied in the Shariah Courts system as guiding precedents but not as binding precedents since it is allowed in Shariah to take guidance from previous decisions and there is no express prohibition in Shariah on them. LexisNexis 2013 Article PeerReviewed application/pdf en http://irep.iium.edu.my/32549/1/ashgar.pdf Ahmed, Kyaw Hla Win @ Md Hassan and Mikail, Sa'id Adekunle and Arifin, Mahamad and Ali Mohamed, Ashgar Ali (2013) Feasibility of the application of the doctrine of judicial precedent in civil and shariah courts. Malayan Law Journal, 5 (lxxiii). pp. 1-18. ISSN 0025-1283 https://www.lexisnexis.com/my/legal/search/homesubmitForm.do
repository_type	Digital Repository
institution_category	Local University
institution	International Islamic University Malaysia
building	IIUM Repository
collection	Online Access
language	English
topic	K Law (General)
spellingShingle	K Law (General) Ahmed, Kyaw Hla Win @ Md Hassan Mikail, Sa'id Adekunle Arifin, Mahamad Ali Mohamed, Ashgar Ali Feasibility of the application of the doctrine of judicial precedent in civil and shariah courts
description	The doctrine of judicial precedent plays an empirical role in the common law system, but it only has persuasive value in European countries which are practicing the civil legal system. Moreover, it has not been recognised as having a binding force in the Islamic legal system and thus each case has to be decided based on its own merits and previous decisions were merely considered as guidance for the future decision. This position is still being maintained by some countries such as Malaysia and Saudi Arabia. In Pakistan and Nigeria, however, the doctrine of judicial precedent is followed. Due to this contradiction among the Shariah legal system in various countries, as a result, a question arises relating to the feasibility of the application of the doctrine of judicial precedent in Shariah Courts needs thorough study. Accordingly, in this paper, the factual nature of the judicial precedents in both civil and Shariah legal systems have been examined comparatively in some detail with reference to countries such as England, Malaysia, Nigeria and Pakistan. This paper points out that the doctrine of stare decisis and judicial precedent can be applied in the Shariah Courts system as guiding precedents but not as binding precedents since it is allowed in Shariah to take guidance from previous decisions and there is no express prohibition in Shariah on them.
format	Article
author	Ahmed, Kyaw Hla Win @ Md Hassan Mikail, Sa'id Adekunle Arifin, Mahamad Ali Mohamed, Ashgar Ali
author_facet	Ahmed, Kyaw Hla Win @ Md Hassan Mikail, Sa'id Adekunle Arifin, Mahamad Ali Mohamed, Ashgar Ali
author_sort	Ahmed, Kyaw Hla Win @ Md Hassan
title	Feasibility of the application of the doctrine of judicial precedent in civil and shariah courts
title_short	Feasibility of the application of the doctrine of judicial precedent in civil and shariah courts
title_full	Feasibility of the application of the doctrine of judicial precedent in civil and shariah courts
title_fullStr	Feasibility of the application of the doctrine of judicial precedent in civil and shariah courts
title_full_unstemmed	Feasibility of the application of the doctrine of judicial precedent in civil and shariah courts
title_sort	feasibility of the application of the doctrine of judicial precedent in civil and shariah courts
publisher	LexisNexis
publishDate	2013
url	http://irep.iium.edu.my/32549/ http://irep.iium.edu.my/32549/ http://irep.iium.edu.my/32549/1/ashgar.pdf
first_indexed	2023-09-18T20:46:58Z
last_indexed	2023-09-18T20:46:58Z
_version_	1777409739274059776

Feasibility of the application of the doctrine of judicial precedent in civil and shariah courts

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