The Administration of Justice Under The Shariah, Common Law and Civil Law System

• Main Author: Mashood Adebayo Baderin
• Format: Article
• Language: English
• Published: Universiti Sains Islam Malaysia 2012
• Subjects: Islamic Law; Common Law; Civil Law
• Online Access: http://ddms.usim.edu.my/handle/123456789/5627

The topic for this year's lecture is "Administration of Justice under the Shariah, Common Law and Civil Law Systems: Towards a Better Understanding". This topic is not only of high academic importance but is also of great practical significance, because these three legal systems are major legal systems2 in the world today, sometimes operating side by side, through which justice is administered in different ways that affect the lives of millions of people in different countries. There is usually a trend of promoting a climate of total conflict between the Shariah system and "Western" legal systems, which often overshadows the many areas of common ground between the three systems, especially in relation to the administration of justice. Owing to the necessary interaction between different legal systems in the modem world, it is imperative that legal scholars and practitioners continue to promote a better understanding of the different systems to encourage effective administration of justice globally. However, the topic is also quite complex, because, even though these three legal systems represent specific legal traditions, their details of application are not really monolithic but varies from country to country. For example, the details of application of the Common Law system in the United Kingdom, differs in many ways from that of the United States of America and countries in Africa and Asia. One would also find differences in the details of the Civil Law system as applied in different civil law jurisdications such as France, Germany or Italy. Similarly, there are differences in the details of application of the Shariah, in different Muslim countries, not least of which is the differences in the schools of jurisprudence followed in the different countries. This paper can, therefore, only be a general and modest contribution to trigger further inquiry on the subject. It provides a basic but critical analysis of the main features and historical evolution of the three legal systems and their relevant judicial processes and institutions, highlighting areas of similarities and differences and how the interactions between them may be harnessed for better administration of justice from both a domestic and international perspective