LLB 20503: Equity in Islamic Law & Roman law 9/24/2019

TOPIC: LEARNING OUTCOMES

Equity in Roman Law Objectives of this topic:
Equity in Islamic law - to study the emergence of equity in Roman law
- to study the applicability of equity in Islamic law

LLB 20503
SEM 1 2019/2020

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Introduction
Equity is a concept inherited from the civil legal system that began
with the Greeks.
Aristotle: “what creates the problem is that the equitable is just, but
not the legally just but a correction of legal justice. The reason is that
all law is universal but about some things it is not possible to make a
universal statement which shall be correct.” - Ethics (v.x)
The principles of discretionary justice that had begun with the
Greeks and passed into Roman law found their way eventually into
English law but is a far more evident in part of the civil legal system
practised within continental Europe
Introduction
During ancient Rome, the Latin concept of justice – Aequitas
is used to refer either to the legal concept of equity or
fairness between individuals.
Aequitas refers to notions of justice, equality, conformity,
symmetry or fairness.
Jus refers to legal/law and aequitas refers to equity.
Natural law or law common to all nations is the source of
equity under Roman law.
Praetor/judges/magistrates were responsible for the
application of concept of aequitas.

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Roman Law
The earliest Roman code of law, the Law of Twelve Tables, was
compiled around 450 B.C., and inscribed on a dozen bronze
tablets set up in the Forum.
This set of laws remained in use for over 1000 years.
The Justinian Code was a second set of Roman laws, around A.D.
565. The Emperor, Justinian, made the justice system available
to everyone in society- the rich and the poor.
It is the most prevalent and oldest surviving legal system in the
world. (in continental civil law system with modifications)
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Equity and Roman Law
The office of the Praetor (consul/magistrate) whose special
function to administer justice infused the principles of equity
into the Roman law. They were trained in law.
Praetos have vast powers of interpretation and amendment in
accordance with rules of natural justice, hence equity.
The Roman law jurist relates between law (jus) and aequitas
through the method of interpretation. Meaning – the Roman
jurists will interpret the written legal rule by looking at the
intention of the author. They can add to the written law in
their interpretation to achieve aequitas.
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Feature of Roman Law
Roman law, the primary feature of which is that laws are
written into a collection, codified, and not determined, as in
common law, by judges.
The principle of this system is to provide all citizens with an
accessible and written collection of the laws which apply to
them and which judges must follow.
Roman Jurists recognise the theory of a set of legal
principles which is considered as superior and can
supersede any outmoded or rigid law and called it equity.
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Equity and Roman Law
However, as they were trained in law, they remained in check by
virtue of their early training and by strong restraint of
professional opinion.
In their interpretation method, the jurists also functioned as
intermediators, of the law and real life situations, thus they will
not stick to the literal meaning of the law/codes per se; but will
adapt these laws/codes to the actual life and ensure practicable
application of the law/codes.
A correct interpretation of the law and the basic principle in legal
interpretation all throughout is equity. Law requires that the facts
of each case to be interpreted and considered before the law is
to be applied in line with the concept of aequitas to find the true
intention of the law.
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Equity and Roman Law Equity in Islamic law

Equity is basic principle of legal interpretation, without
aequitas, knowledge of the requirements or circumstances
of the case to which the law is to be applied, it is impossible
to find the true intention of the law.
Roman Law – judges gave preference to equitable rules in
enforcing any judgments i.e. as part of legal system.
Whereas under early English law, equitable principles were
enforced by a distinct set of judges (Chancery court) under a
separate system.
Later stage of EL development, equity recognized as part of
CL but only to supplement any harshness and rigidity of CL.
Literally – fair and just; moral and ethical.
In Islam – equity is part and parcel of Muslim way of life as
embodied in Quran & Sunnah.
Concept which is not contradictory to the text of Quran & Sunnah
is acceptable
Shariah – provides for justice and equity in all aspects of human
life. Shariah (general principles of Islamic law) are derived from
Revelation (Quran) and Divine Wisdom (Wahy).
Shariah, t4 are considered as representing Divine Justice. The
concept of justice in Shariah is the expression of God’s essence
and perfection.

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Objectives of application of
Equity in Islamic law equity
Though in theory the concept of equity and Divine justice may appear to be Equity in Islamic law can be applied to achieve five main objectives of
identical; in practice there is a need to differentiate in interpreting the Shari’ah (maqasid al-Shari’ah) namely –
provisions of Shariah which are jurist-made eg: Ijma, Qias, Urf, Istishan ;
1. protection of religion
from the primary source i.e. Quran and Sunnah.
2. protection of life
The exercise of judicial legal process or ijtihad to achieve equity is
recognized under Islamic law. 3. protection of reason
It also include the process of achieving equity by way of making use of the 4. protection of lineage
secondary sources of Islamic law i.e. Ijma, Qias, Maslahah Mursalah
(istislah, a Maliki principle),Istihsan (Hanafi principles) 5. protection of property

Note: equity CAN only be practiced if someone is equipped with knowledge A qadhi/Muslim judge DO NOT exercises equity until he has exerted
himself to search for answers in primary sources, Q & S. Must not
& has sufficient understanding of Islam & Islamic law i.e. concept of dispense justice according to considerations of individual expediency or
tawheed, objectives of Shari’ah & concept of accountability to Allah. own conscience.

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When can apply equity.. Authority: Quran

At present – searching for a Muslim who is knowledgeable in every aspect is
not easy, thus the role may be channeled through a Council of Ulama (Fatwa)
In cases where the general principles are based on the opinion of jurists
derived from the secondary sources (I, Qiyas, U, Is); and
where strict adherence to such legal principles based on secondary sources
may cause hardship and injustice, here equity would come to intervene.
E.g. A legal solution derived from qiyas may be rejected by Islamic jurists in
favour of one based on and justified by equity (fair and just).
As Shariah promotes justice, equity which means justice is a must to ensure
compliance with Shariah itself. This is line with the Quranic verses.
1. AN-NAHL (16) : 90
“Allah commands justice, the doing of good…”
2. AL-MAIDAH (5) : 42
“If you judge, judge in equity between them….”
3. AL HADID (57): 52
“ We verily sent our Messengers with clear proofs, and sent down with them
the Book and the Balance that may conduct themselves with equity (justices)”
Note: there is no rectification allowed on clear principles of Quranic rulings
and Prophetic laws.

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Differences between Equity under

Authority: Hadith English law & Islamic law
1.Hadith : “The best of people are those that bring most benefit to the
rest of mankind” ENGLISH LAW ISLAMIC LAW

2. Hadith: “People , beware of injustice, for injustice shall be darkness Rules of equity – from natural laws,
on the Day of Judgement” human reasoning and
interpretations.
It is based on man-made law, assist
Equity in Islamic law is more prominent in the Hanafi jurists method of the CL as a gloss on it and confined
to civil matters.
Istishan (juristic equity or preference) and Maliki jurists method of al-
masalih al mursalah (public interest). Based on society needs, prime
consideration is what is best for
society; may exceed moral, virtue &
religion.
Jurisdiction is parallel to CL
Equity sourced from Quran,
Sunnah , Ijtihad and Ijma of
Muslim jurists.
Based on concept of divine law &
justice (shariah), wide & flexible
but holds firm on the provisions of
Q & S.
Takes into account the needs of
the society; but must not exceed
Shariah & Divine text.
Subject to Islamic law/Shariah

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Methods of Equity - Hanafi’s
Through methods of rectification known as al-hiyal al-Shariah or
legal fiction. Was developed by the Hanafi jurists for the purpose
of assisting the public in situations where strict application of the
man-made principle would result in harshness and injustice.
Under this concept - equity / justice is used as a basis for
interpretations of broad principles in order to avoid harshness
and achieve justice.
Main characteristic : Always consistent with the spirit of the
primary source of law (Quran and Sunnah) & in line with the
general legal and moral principles of the Shariah.
Istihsan /juristic equity /preference - it is said to be more parallel
with equity of the EL.
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Istihsan… how is it applied?
When a jurist makes an exception to a general rule of an existing law
(not of Divine Origin), & he is convinced that justice and equity will
be better served by making such an exception.
This decision is based in his personal ijtihad or due to other reasons
such authorization from ijma, approved custom / urf, necessary /
darurah or consideration of public interest / maslahah al-ummah.
Does not per se represents equity in Islam but offers a mean of
avoiding hardship and a solution in harmony with the higher
objectives of Shariah.
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Hanafi’s – Istihsan/Juristic
Equity
Abdul Rahim, the writer of ‘The Principles of Muhammadan Jurisprudence
stated:-“…If we call analogical deduction (qiyas) the common law of
Muslims, then juristic preference (istihsan) may be relatively styled their
equity..”
Literally - to approve or to deem something preferable. From the word
‘hasuna’ - meaning being good or beautiful.
Legally/terminologically – a method of exercising personal opinion in
order to avoid rigidity and unfairness that might result from the literal
enforcement of the existing law. It also involves setting aside an
established analogy in favour of an alternative ruling which serves the
ideals of justice and public interest in a better way.
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Istihsan…how is it applied?
Muhammad Hashim Kamali in his book Principles of Islamic
Jurisprudence wrote :
“Istihsan in Islamic Law and equity in Western law are both
inspired by fairness and inner conscience; and both
authorize departure from a rule of positive law when its
enforcement leads to unfair results. The main difference
between them is …. In the overall reliance of equity on the
concept of natural law, and of istihsan on the values and
principles of Shariah … istihsan may offer a means of
avoiding hardship and solution which is an harmony with
the higher objective of Shariah.”
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Istihsan : Authority
Al Sarakhsi who supports the usage of istihsan stated that is
in line with AlQuran & Sunnah of the Prophet , plus in line
with cardinal principle of Islam i.e. to avoid hardship.
He quoted 2 authorities;
◦ AL BAQARAH (2): 185 “… Allah intends every facility for
you; He does not want to put you to difficulties…”
◦ Hadith: The best of your religion is that which brings ease
to the people.
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Istihsan… jurists’ views
Ibn al’Arabi stated that istihsan is “to abandon with exception what is
required by the law because applying the existing law would lead to a
departure from some of its own, objectives.”
The Maliki jurists lay greater emphasis on public interest considerations
/ istislah. They view istihsan as a broad doctrine which is less stringently
confined to the Quran and Sunnah, but never deviating from the spirit
and intendment of it.
As-Shafii’ however did not approve of istihsan which he termed as
‘arbitrary law-making’ in religion. Hanafis jurist argued that istihsan is
not an arbitrary exercise in personal preferences, but a form of qias in
use i.e. qias khafi / hidden deduction / analogy and is no less
authoritative than a qias.
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Istihsan : Authority
Another authority quoted in support of the usage of istihsan
is the practice of Caliph Umar Al-Khatab decision not to
enforce the had penalty of amputation of hand, if it was
committed due to famine widespread of famine due to
necessity to live.
Umar al Khatab also disallowed the sale of a female slave
who has borne a child to her master (ummul walad) to avoid
separation of mother and child on the principle of istihsan.
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Importance of Istihsan
It helps to bridge the gap between law and social realities as
jurist were allowed to pay particular attention to
circumstances and peculiarities of an existing problem.
Fuqaha - quite reluctant to exercise istihsan ; reason - most
probably to avoid too many unnecessary departures from
the general rule.
Should be utilized by the Muslim rulers and judges, either in
developing the existing law or in the day-to-day of
administration of justice. It can help in improving the
existing law and refine it, by making the necessary
exceptions and discarding any impractical and undesirable
elements.
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Importance of Istihsan
Suitable for such task as it function within the confines of
the legal status quo and does not seek a radical change in
the existing law though it allows considerable innovation
and refinement.
Useful principle for legislating on fresh problems - can be
utilized for situations for which no laws in classical legal
literature. Social justice demands that there should be room
for a jurist in the principles of legislation whereby he may
depart from the established rules of law (not of Divine
Origin) and apply a law keeping in view public interest and
human good .
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Maliki’s - masalih almursalah
He would allow a deduction of law to be based on general
considerations of the public good / masalih ul-mursalah
wa’-istishlah
Under this method, the technique is - to relate a particular
problem to the appropriate meaning / solution which is
nearer to public interest and within the spirit of the Shariah,
and then by this, formulate a rule of law.
Usually relates to issues not in existence during the time of
the Prophet. E.g. the need for currency, establishment of
prison, compilation of Quran.
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Maliki’s - masalih almursalah
(maslahah)
Al-masalih wal-mursalah (public interest) -This is Imam
Malik’s doctrine which is most equivalent to juristic
preference / istihsan. He termed it mursal i.e. to set loose
Literally – benefit or interest. Al-Ghazali – maslahah consists
of considerations which secures a benefit or prevents harm.
Underlying basis of maslahah must be to uphold the higher
objectives of Shariah (maqasid shariah) which are –
protection of life, protection of intellect (aql), protection of
lineage and protection of property.
Only applicable to issues where there is NO authority in the
primary sources; situations not covered by any text of the
Shari’ah.
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Maliki’s - masalih almursalah
Its application is however subjected to certain conditions :-
(a) the problem reviewed must be one pertaining to
transactions or muamalat and not religious observances /
ibadat;
(b) the problem reviewed should not be in conflict with any
source of the Shariah or its spirit, and
(c) the matter relates to some necessity / darurah and
not any frivolous matter.
(d) the maslahah must be genuine, and general
(applicable for all)
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Authority for Masalih

Mursalah Summary
1. Al- Maidah (5):6 – “… Allah does not wish to put a burden on you, It must be noted although these methods of departing from
but He seeks to purify you and to perfect His favour on you, that you established rules, be it istihsan or mursalih al mursakh, were
may be grateful.”
utilized by the jurists, it was NOT used when there existed
2. Al Hajj (22): 78 – “ And strive hard for the cause of Allah with all the clear and explicit rulings dictated in Quran and Sunnah.
striving that is due to Him. He has chosen you to practise His These methods were only used when the source of law was
Religion; and He has laid no hardship on you in the matter of
religion…”
not of Divine Origin i.e. ijma, qias. Urf etc.
3. Hadith reported from Abu Said : No harm shall be inflicted or
tolerated in Islam (la dharar wa la dhirar)
4. Hadith reported from Aisha : The Prophet only chooses the easier of
two alternatives so long as it does not amount to sin.

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Conclusions Questions for today..?

Equity in England – attributed to the functions of the Lord Chancellors
and the Chancery court, developed later than the common law, but has How does Roman Law influence Equity?
substantial similarities with Roman law.
Is there a difference between the Islamic jurists view on
Using good conscience as the basis in their judgement, they have equity ? What are they?
helped to developed and shaped equitable principles into substantive
principles to meet new needs of the society.
The Roman law – introduces equity to overcome any unfairness which
emerged from their legal system. The Praetors/judges introduces/make
use of equity in their everyday judgements when interpreting the civil
codes.
Under Islamic law, concept of equity formed part of the system since
the time it was introduced. It is not another set of rules to overcome
unfairness & injustice but it is used within Shariah to achieve best
possible remedies in redressing any breach or wrongful acts.

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Next Topic REFERENCES

Reception of Equity in Malaysia 1. R. EDWARDS & NIGEL STOCKWELL – TRUSTS &
- Historical development in two phases; pre-1956 and post EQUITY (BLACKSTONE) – Chap. 1
1956. 2. SNELL’S ON EQUITY – Chap. 1
- Effect of Section 3, 5 and 6 of Civil Law Act 1956 on the
application of equitable principles in Malaysia 3. PETTIT (6th ed) – EQUITY & LAW OF TRUSTS – Chap. 1
- Relevant cases 4. HANBURY & MAUDSLEY – MODERN EQUITY – Chap. 1
5. M. HASHIM KAMALI – PRINCIPLES OF ISLAMIC
JURISPRUDENCE – p308-337
6. S. MAHMASSANI – FALSAFAT AL-TASHRI FI-AL-ISLAM /
PHILOSOPHY OF JURISPRUDENCE IN ISLAM.

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