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...
| Main Authors: | , |
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| Format: | Article |
| Language: | English |
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Serials Publications Pvt. Ltd.
2019
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| Subjects: | |
| Online Access: | http://irep.iium.edu.my/77123/ http://irep.iium.edu.my/77123/1/77123_Precedents%20and%20the%20role%20of%20analogy%20in%20Common%20Law%20and%20Islamic%20Law.pdf |
| _version_ | 1848788387615473664 |
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| author | Mohammad, Mohammad Tahir Sabit Laluddin, Hayatullah |
| author_facet | Mohammad, Mohammad Tahir Sabit Laluddin, Hayatullah |
| author_sort | Mohammad, Mohammad Tahir Sabit |
| building | IIUM Repository |
| collection | Online Access |
| 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. |
| first_indexed | 2025-11-14T17:40:01Z |
| format | Article |
| id | iium-77123 |
| institution | International Islamic University Malaysia |
| institution_category | Local University |
| language | English |
| last_indexed | 2025-11-14T17:40:01Z |
| publishDate | 2019 |
| publisher | Serials Publications Pvt. Ltd. |
| recordtype | eprints |
| repository_type | Digital Repository |
| spelling | iium-771232020-09-01T04:21:38Z 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/77123/1/77123_Precedents%20and%20the%20role%20of%20analogy%20in%20Common%20Law%20and%20Islamic%20Law.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 |
| 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 |
| title | 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_short | 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 |
| topic | KBP100 Sources.Quran, Hadith, Ijma', Qiyas. KBP425 Uṣūl al-fiqh. Jurisprudence and theory of law. Science of legal reasoning. |
| url | http://irep.iium.edu.my/77123/ http://irep.iium.edu.my/77123/1/77123_Precedents%20and%20the%20role%20of%20analogy%20in%20Common%20Law%20and%20Islamic%20Law.pdf |