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Islamic and Western Legal Philosophy

Law and Society (Multimedia University)

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There are several concept of Islamic legal philosophy. The first concept is
Rabbaniyyah (relationship with Allah). Islam is based on godliness and religious
values. The ultimate goal of Muslims is to attain Allah’s love and pleasure. Thus, Islamic
law aims at preparing man to be a pure servant of Allah alone. According to Surah Al-
Anam (6:102), it stated that “That is Allah, your Lord! There is no God but He, the
creator of all things: then worship you Him: and He has the power to dispose all
affairs. This concept is applicable in Malaysia, where apostasy by Muslim is
criminalized under Schedule 9 List II of FC.
The second concept is Thabat and Murunah, (permanent and flexible). This
implies that Islamic teachings are very firm and cannot be changed in certain areas but at
the same time flexible in some very critical situation, as such, between death and alive.
For example, as according to Surah Al-Baqarah (2:219), drinking wine and gambling is
strictly forbidden for Muslims. This law is valid without any changes with time or
conditions.
The third concept is Waqiyyah (practical and realistic). According to Surah Al-
Luqman (31:30), it stated that: “That is because Allah is the only Reality, and
because whatever else besides Him is Falsehood.” In fact, this concept can be found on
Aqidah (oneness of Allah) and Fiqh (worshipping). It is practical and realistic in our
daily life when we should follow only one leader’s command and Muslims must perform
prayers on Friday, otherwise will be punished, as stipulated in S.14 of Syariah Criminal
Offences Act (SCOA).
The fourth concept is Tawazun (balanced). Islam keeps the balanced between
worldly life and hereafter. Islam also commands us to interact with society in a very well
manner. For example, since we are living in a democratic country and enjoying our
fundamental liberties as guaranteed by the Constitution, we should exercise our rights in
good manner in order to achieve a balance point between government and citizen.
According to Surah Al-Baqarah (2:143), Allah says: “We have made you a justly
balanced community that you will be witnesses over the people and the Messenger
will be a witness over you.”

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 The fifth concept is Syumul (complete). Islam is a complete and comprehensive
religion and way of life. It covers the relationship between man and Allah, between man
and his fellow human being, between man and unseen world and between man and
environment. The completeness of Islam is shown in Surah Al-Maidah (5:3), “...Today
have I perfected your religion law for you, and have bestowed upon you the full
measure of My blessing…” From this Quran, we can conclude that Allah is All-
knowing and All-powerful; and His laws are the best and are complete.
The sixth concept is Alamiyah (Universal). Islam is revealed for the purpose of
guiding mankind to the right paths of their daily life and hereafter. In practice, we as a
creation of Allah, should obey and follow Allah’s guidance so that we are in the right
path toward the success. According to Surah Al-Jathiyah (45:18), Allah says: “Then we
put you on the right way of religion: so you follow that way, and follow not the
desires of those who know not.”
The seventh concept is Wasatiyyah (Moderate). It implies that being a Muslim
means being a moderate human. According to Surah Al-Baqarah (2:143), Allah says:
“And thus have We willed you to be a community of the Middle way, so that you
might bear witness to the truth before all mankind.” The examples of moderation of
Islam are the moderate in the relationship between God and fellow human being
(Muslims have to observe their daily obligations such as family and social
responsibilities); moderate between spiritual and materialism (urges Muslims to gain both
in order to achieve success in Hereafter); moderate in spending (forbids Muslims to be
wasteful); and moderate in Akhlaq (Muslims cannot be flawless.)
In contract, there are several concept of western legal philosophy too. The first
concept is legal positivism, which emphasizes that the existence and content of law
depends on social facts and not on its merits. According to John Austin, the English
jurist, “The existence of law is one thing; its merit and demerit another. Whether it
be or be not is one enquiry; whether it be or be not conformable to an assumed
standard, is a different enquiry.” Whether a society has a legal system depends on the
presence of certain structures of governance, not on the extent to which it satisfies ideals
of justice, democracy, or the rule of law. What laws are in force in that system depends
on what social standards its officials recognize as authoritative. According to John
Austin, law is a social construction that we has been exercised or tolerated.
 The second concept is legal realism, which was inspired by John Chipman and
Oliver, is a transformation of law by shifting attention of judges from the written law to a
social relations and culture based legal system. Before the arisen of the legal realism, law
was viewed generally as mechanically jurisprudence, which means that the general
principles of law will be apply relentlessly. However, legal realism help to reform the
legal system to achieve higher efficiency and social justice as the judicial decisions will
more focusing on the specific facts of cases and social reality in general, rather than just
focusing on the rules and legal doctrine.
The third concept is legal pragmatism, which is a theory critical of more
traditional of law, and more specifically, judicial decision-making. It emphasizes the
need to include a more diverse set of data and claims that law is best thought of as a
practice that is rooted in the specific context. According to Dworkin, the consistency
with past judicial decisions should be emphasized as one of the most important legal
virtues.
The forth concept is utilitarianism. Its core idea is that whether actions are
morally right or wrong depends on their effects. Act utilitarians focus on the effects of
individual actions, such as John Wilkes Booth’s assassination of Abraham Lincoln,
while rule utilitarians focus on the effects of types of actions, such as killing or stealing.
Utilitarians believe that the purpose of morality is to make life better by increasing the
amount of good things (pleasure and happiness) in the world and decreasing the amount
of bad things (pain and unhappiness). They reject moral codes or systems that consist of
commands that are based on customs, traditions, or orders given by leaders. Instead,
utilitarians think that what makes a morality be true or justifiable is its positive
contribution to human beings.