Precedents and the role of analogy in Common Law and Islamic Law

This paper looks at the common grounds for legal reasoning based on analogy in common law and Islamic law. Despite the difference between the systems, based on the structure and sources, the use of judicial precedent and Qiyas (analogical reasoning) prima facie seem strikingly similar but unexplored...

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Main Authors:	Mohammad, Mohammad Tahir Sabit, Laluddin, Hayatullah
Format:	Article
Language:	English
Published:	Serials Publications Pvt. Ltd. 2019
Subjects:	KBP100 Sources.Quran, Hadith, Ijma', Qiyas. KBP425 Uṣūl al-fiqh. Jurisprudence and theory of law. Science of legal reasoning.
Online Access:	http://irep.iium.edu.my/77123/ http://irep.iium.edu.my/77123/1/3-Mohammad%20Tahr.pdf

id	iium-77123
recordtype	eprints
spelling	iium-771232019-12-24T00:57:03Z http://irep.iium.edu.my/77123/ Precedents and the role of analogy in Common Law and Islamic Law Mohammad, Mohammad Tahir Sabit Laluddin, Hayatullah KBP100 Sources.Quran, Hadith, Ijma', Qiyas. KBP425 Uṣūl al-fiqh. Jurisprudence and theory of law. Science of legal reasoning. This paper looks at the common grounds for legal reasoning based on analogy in common law and Islamic law. Despite the difference between the systems, based on the structure and sources, the use of judicial precedent and Qiyas (analogical reasoning) prima facie seem strikingly similar but unexplored. The authors look at the development stages of the two doctrines, the role of analogy, and the making of conclusions. The method of this doctrinal study is comparatively less synthetical and more analytical. The study finds that analogy does play a role in legal reasoning based on the doctrine of judicial precedent and Qiyas. However, there is a difference between the two doctrines where the analogy is the instrument of the discovery of facts in common law and of the discovery of rules and vice of them in Islamic law, which enable jurist to extend it to a new case that shares the vice of a previous case. Therefore, the certainty of rules and their uniformity seem stronger in Islamic law compared to common law. Serials Publications Pvt. Ltd. 2019-12 Article PeerReviewed application/pdf en http://irep.iium.edu.my/77123/1/3-Mohammad%20Tahr.pdf Mohammad, Mohammad Tahir Sabit and Laluddin, Hayatullah (2019) Precedents and the role of analogy in Common Law and Islamic Law. Journal of Islamic Law Review, 15 (2). pp. 183-212. ISSN 0973-2918
repository_type	Digital Repository
institution_category	Local University
institution	International Islamic University Malaysia
building	IIUM Repository
collection	Online Access
language	English
topic	KBP100 Sources.Quran, Hadith, Ijma', Qiyas. KBP425 Uṣūl al-fiqh. Jurisprudence and theory of law. Science of legal reasoning.
spellingShingle	KBP100 Sources.Quran, Hadith, Ijma', Qiyas. KBP425 Uṣūl al-fiqh. Jurisprudence and theory of law. Science of legal reasoning. Mohammad, Mohammad Tahir Sabit Laluddin, Hayatullah Precedents and the role of analogy in Common Law and Islamic Law
description	This paper looks at the common grounds for legal reasoning based on analogy in common law and Islamic law. Despite the difference between the systems, based on the structure and sources, the use of judicial precedent and Qiyas (analogical reasoning) prima facie seem strikingly similar but unexplored. The authors look at the development stages of the two doctrines, the role of analogy, and the making of conclusions. The method of this doctrinal study is comparatively less synthetical and more analytical. The study finds that analogy does play a role in legal reasoning based on the doctrine of judicial precedent and Qiyas. However, there is a difference between the two doctrines where the analogy is the instrument of the discovery of facts in common law and of the discovery of rules and vice of them in Islamic law, which enable jurist to extend it to a new case that shares the vice of a previous case. Therefore, the certainty of rules and their uniformity seem stronger in Islamic law compared to common law.
format	Article
author	Mohammad, Mohammad Tahir Sabit Laluddin, Hayatullah
author_facet	Mohammad, Mohammad Tahir Sabit Laluddin, Hayatullah
author_sort	Mohammad, Mohammad Tahir Sabit
title	Precedents and the role of analogy in Common Law and Islamic Law
title_short	Precedents and the role of analogy in Common Law and Islamic Law
title_full	Precedents and the role of analogy in Common Law and Islamic Law
title_fullStr	Precedents and the role of analogy in Common Law and Islamic Law
title_full_unstemmed	Precedents and the role of analogy in Common Law and Islamic Law
title_sort	precedents and the role of analogy in common law and islamic law
publisher	Serials Publications Pvt. Ltd.
publishDate	2019
url	http://irep.iium.edu.my/77123/ http://irep.iium.edu.my/77123/1/3-Mohammad%20Tahr.pdf
first_indexed	2023-09-18T21:48:50Z
last_indexed	2023-09-18T21:48:50Z
_version_	1777413631855558656

Precedents and the role of analogy in Common Law and Islamic Law

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