Islamic Law Vis-à-vis Common Law – A Historical Analysis in Terms of Rigidity and Flexibility

This research aims to evaluate the development of the Islamic law and English Common Law in terms of rigidity and flexibility. In this context, it provides a comparative study of the historical development of Islamic law and the English Common Law. It argues that although the Islamic law has its origin in the Divine revelation that is often considered as rigid and inflexible yet it is a miracle of it that the Islamic law is a tremendous and unique blend of rigidity and flexibility. Contrary to it, the English Common Law is rigid and inflexible due to the principle of binding precedents and strict literal interpretations. The article also evaluates the characteristics of Islamic law and English Common law in light of modern development in the field of law. It also throws light on the contemporary structure of the Islamic law in Pakistan that seems to be rigid and inflexible. However, this research shows that the Islamic law is flexible and certain by nature and both the qualities stem from the Holy Qur’Én and Sunnah of the Prophet ( ) while the English Common Law was/is a rigid law based on the doctrine of precedent and strict literal interpretation that makes it inapplicable in a changed legal context. The Islamic law can be characterized as a blend of certainty and flexibility and both are the prime demands of the modern concept of the law. It also discusses that at present the English Common Law inclines towards flexibility to deal with the issues of the changed context while the contemporary structure of Islamic law in the form of fatÉwÉ particularly, in Pakistan seems to be rigid and inflexible. This research thus, recommends reforming the existing structure of the Islamic law/ fatÉwÉ in Pakistan by following the contextual and purposive modes of interpretation. It is also recommended that some general rules of legislation and issuing fatÉwÉ should be framed in the light of the objectives of SharÊ‘ah through the process of legislation by the parliament, the judges, and the muftÊs to bring the Islamic law into conformity with the changed context.