From Theory to Practice: Case Law as an Additional and Evidentiary Holistic Tool for the Derivation and Operation of Law in Shī‘ī uṣūl al-fiqh

Panjwani, Imranali (2019) From Theory to Practice: Case Law as an Additional and Evidentiary Holistic Tool for the Derivation and Operation of Law in Shī‘ī uṣūl al-fiqh. In: Contemporary Discussions in Shī‘ī Legal Theory. Islamic Law Series . Brill Publishers, Leiden, Netherlands. (Accepted)

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Abstract

Case law is a major source of law in many countries around the world. It is defined as “legal principles enunciated and embodied in judicial decisions that are derived from the application of particular areas of law to the facts of individual cases.” One of the major goals of case law is to pay attention to the subject of the law i.e “a matter or topic presented for consideration or debate; the right or property that is the foundation of a dispute or lawsuit.” The goal of this chapter is to examine how much attention Shī‘ī principles of jurisprudence (uṣūl al-fiqh) pays to the subject of the law before a law is derived. This includes both the legally responsible person (mukallaf) as a subject as well as those factors that are relevant in the genesis of the subject which are more fact-orientated. My argument is that Shī‘ī legal theory does not pay attention to how the subject of the law can be recognised substantively as well as procedurally. The practice of rational people (sīrat al-ʿuqalā) appears to be a common source by which we can understand subjects of laws, their related facts and circumstances but this source is general and new subjects of law can be complex in their own right. This complexity requires an intricate mechanism to elucidate what these new subjects actually are. Using existing Shī‘ī legal theory and with reference to the English legal system, I intend to show that this mechanism could be case law. The final aspect of my chapter is purposefully broad and lays the ground for further research. It argues that case law is not just relevant for helping us recognise the subject of the law but it can be a holistic evidentiary tool that reforms the goal and operation of Shī‘ī fiqh, particularly in relation to national and international law. In this section, I introduce the notions of ‘evaluative law’ and ‘jurisdictional law’ and the necessity of adding case law to seminary (ḥawza) syllabuses. In sum, case law could expand the scope of Shī‘ī legal theory in a globalised and pluralised world.

Item Type: Book Chapter
Additional Information: Edited volume based on the following workshop: https://www.almahdi.edu/workshop/the-nature-of-sharia-and-its-interpretation-in-shii-thought/
Keywords: case law, english law, islamic law, shia legal theory, jurisprudence, comparative law, subject of law
Faculty: Lord Ashcroft International Business School
SWORD Depositor: Symplectic User
Depositing User: Symplectic User
Date Deposited: 25 Mar 2019 11:57
Last Modified: 25 Mar 2019 11:57
URI: http://arro.anglia.ac.uk/id/eprint/704190

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