Government and Society in

Pakistan
Civil Services Academy Walton Lahore
50th CTP
 GOVERNMENT & SOCIETY IN PAKISTAN
AIM

 To introduce the probationary officers to the institutional context of government

functioning in Pakistan.
 To acquaint the probationary officers with Pakistan history, foreign policy and
other policy issues.
 To link the educational material available in the class with the relevance of
current socio legal situations facing in your career, the general public and the
country at large
2
 LEARNING OUTCOMES
After studying this course, the probationary officers will be able to: -
1. Understand the principles of Jurisprudence.
2. Explain salient features of the Constitution of Pakistan
3. Explain the concept of federalism under 1973 Constitution, division of legislative &
executive powers between federation & provinces; financial & economic
management in federation.
4. Differentiate between different forms of government
5. Explain the separation of legislative, executive & judicial powers under 1973
Constitution.
6. Understand the structure & role of the judiciary envisaged under 1973 Constitution.

3
 LEARNING & ASSUMPTIONS
After studying this course, the probationary officers will be able to: -
1. The subject is dry at times and it will become irrelevant at times but that is not the case and
2. I will endeavor to make the relevance and connection with the wider landscape
3. Bear with me during the lectures and even if things are not connected or making sense they will soon unfold as the
lectures progress.
4. Do not disconnect with my style it may be different and for some unusually but it will help you in your career and also
help digest the dry material which we have to cover.
5. There are two component of the slides,
• one deals with the core curriculum, slides handed over, and as the CSA administration requires, and the
• second set deals with understanding how they actually exist, real practical application and explanation.
• Also slides which you may need to prepare yourself for the examinations. Hence some extra slides which I may not
cover in the class but you would like to review
6. If there is something which is not making sense feel free to contact me out of the class. Most of the material you see here
will be
4
Module 1: (Session-1)
Principles of Jurisprudence

1. The nature of jurisprudence

2. What is jurisprudence
The broad distinction very commonly used between two types of theory is that they
are either descriptive of the subject-matter of law, in all its forms, or that they are
normative or prescriptive about what the subject-matter of law ought to be.

These two ideas – the descriptive and the normative – are in jurisprudential thought.

5
 Module 1: (Session-1)
What is Jurisprudence
1. Case Study :- Case of Oppenheimer v Cattermole (1976 AC 249). A decision of English courts relating to
whether English law should refuse a recognize Nazi era law relating to appropriation of jewish property. A
German Jewish refugee was deprived of his German nationality by a Nazi decree. The Qs (after 30 yrs. later)
was whether an English court should regard him as effectively deprived of his German nationality? If so, he
would be unable to claim dual nationality entitling him to exemption from UK tax on pension paid by the
Federal Republic of Germany? Additional Questions what are human rights? Rights? Grave infringement of HR
and who decides? Is such a law not a law? Are citizens released of their obligation to obey law and what is the
point where they will not obey such a law?
2. Case Study:- Grundnorm cases, Madzimbamuto v Lardner-Burke which revolved around series of litigation
aftermath of the Rhodesian unilateral declaration of independence. The immediate Qs concerned the validity
of a detention effected by those in charge of a colonial state which purported to throw off its shackles of
dependence. What is legal system? What is meant by “revolution” ? It is juridically different from coup d ’etat?
What is role of a judge in such a system?
6
 Module 1: (Session-1)
What is Jurisprudence
• Jurisprudence is the name given to a certain type of investigation into law, an investigation of an bstract, general
and theoretical nature which seeks to lay bare the essential principles of law and the legal system. (John Salmond).
• Jurisprudence is the study of fundamental legal principles, including their philosophical historical and sociological
bases and an analysis of legal concepts. (Dr M J Sethman)
• Jurisprudence is the scientific synthesis of the law’s essential principles (Carleton Kemp Allen).
• Jurisprudence includes the search for ultimate conception in terms of which all legal knowledge can be significantly
expressed (Jerome Hall)
• A consideration of the ethical and social merits of legal rules (Roscoe Pound).

7
 Module 1: (Session-1)
What is Jurisprudence Characteristics
of Jurisprudence
• The fundamental principles of law studied under jurisprudence entail an ‘general’ theoretical discussion.
Jurisprudence does not deal with the actual study of the various ’specific’ rules of law. Jurisprudence is a particular
method of study not of the law of one country but the general notion of law itself. Salmond has contended that
jurisprudence does not compromise a set of rules, is not derived rom authority and is without direct practical
application.
• The study of fundamental legal principles in jurisprudence includes the study of the philosophical, historical,
analytical and sociological components of the law. Jurisprudence is concerned with a. ariary of ‘peripheral’
matters outside the traditional boundaries of legal study such as morality, sociology, political ideology, philosophy,
nature of justice etc
• It is an important characteristics of jurisprudene that each generation of definition stands on the shoulders of its
predecessors.
• To a very large extent jurisprudence seeks as an end result the achievement of ‘justice’

8
 Module 1: (Session-1)
What is Jurisprudence

• Different definitions are useful for different purposes and for looming at the subject matter fro different points o
view.
• All these definitions is only approximation to the detail and depth of its subject –matter. There is no other area of
legal studies which is so extensive.
• Based upon the various definitions, we can note the following:-
• It is an investigation into law
• it is an investigation of an abstract and theoretical nature. Some of the abstractions studied under the jurisprudence
are right, duty, intention, ownership, possession offence, titles, obligation, legal. Personality etc.
• The purpose of investigation is to understand the principles of law and legal system and to synthensize (unite)
these legal pricniples.

9
 Module 1: (Session-1)
What is Jurisprudence
• These two ideas – the descriptive and the normative – are in jurisprudential thought.
beginning with a description of what the law is ("descriptive analysis"), and moving into an analysis of what the law ought
to be ("normative analysis").
• According to legal realism, then, the process of law involves a consideration of all these various factors and makes a
prediction as to the outcome of future official behavior, with this prediction affecting the present behavior of others
• “Legal philosophers share the same phenomenology of legal practice. Yet, they differ in its explanation. For
normativists, descriptivists got it wrong and vice versa. This controversy between normativists and descriptivists will be
called “the methodological problem” in legal theory. Normativists such as Dworkin and Perry argue that descriptivists
need evaluation. By contrast, descriptivists such as Coleman argue that normativists need the methods of descriptivism
such as conceptual analysis and therefore might be committed to descriptivism” extract from paper on Jurisprudence.
• Dworkin's theory is "interpretive": the law is whatever follows from a constructive interpretation of the institutional
history of the legal system. Dworkin argues that moral principles that people hold dear are often wrong, even to the
10
extent that certain crimes are acceptable if one's principles are skewed enough.
 Module 1: (Session-1)
What is Jurisprudence
Many attempts to base positive law on an immutably established natural law governing the universe have involved
an attempt to link normative rules. However in 1740 Hume pointed out fallacy of trying, to derive “out” from “is”
and argued that a normative statement could not be inferred from a purely factual one. So too the efforts to define
moral norms in terms of something else, which can ascertained or verified as a fact, such as pleasure or utility,
involve a similar conclusion which is in other words an unbridgeable gap between “ought” and “is” or nor and fact
bit does not mean that “ought” statements occupy a special world of existence of their own, distinct from physical
reality. Wittgenstein, helped bring out more clearly the distinction between normative and factual usages of
language. In this connection close consideration has been given to Jurists like Hard, Raz to the logical structure of
the imperative and normative forms of language and although finality of opinion is not by any means attained not
only in regard to ethics but also in relation to the nature and logic of legal rules.

11
 Module 1: (Session-1)
What is Jurisprudence
• These two ideas – the descriptive and the normative – are in jurisprudential thought.
beginning with a description of what the law is ("descriptive analysis"), and moving into an analysis of what the law ought
to be ("normative analysis").
• According to legal realism, then, the process of law involves a consideration of all these various factors and makes a
prediction as to the outcome of future official behavior, with this prediction affecting the present behavior of others
• “Legal philosophers share the same phenomenology of legal practice. Yet, they differ in its explanation. For
normativists, descriptivists got it wrong and vice versa. This controversy between normativists and descriptivists will be
called “the methodological problem” in legal theory. Normativists such as Dworkin and Perry argue that descriptivists
need evaluation. By contrast, descriptivists such as Coleman argue that normativists need the methods of descriptivism
such as conceptual analysis and therefore might be committed to descriptivism” extract from paper on Jurisprudence.

12
 Module 1: (Session-1)
What is Jurisprudence
1. Can parliament (as Dicey and Austin discusses) go beyond and pass any law ?
2. Is passing Transgender law morally correct or better can parliament pass any law which the society finds at odd?
3. Could parliament abolish an election? Democratically elected government?
4. Are there limits to or on Parliament can do?
5. If as Dworkin argues there are principles underlying the law, such as justices and fairness, if “proposition of law
are true if they figure in and follow from principles of justice and fairness and procedural due process hat
provide the best constructive interpretation of the political structure and legal doctrine of the community”
6. You may notice that Jurisprudence engages with institutions like stare decisis, examines the nature and validity
of legal sources, investigates the relationship between law, power, race, violence, and gender reveals the
relevance of new concepts…..
7. Lets pin down relevant issues of today and how the law is missing in these fronts?
8. quot homines tot sententiæ – How - men – many - their thoughts
13
 Module 1: (Session-1)
Principles of Jurisprudence (Continued)
Jurisprudence consists of the study of the nature of law and its related ideas.

Many of the difficult problems are purely philosophical.

What is a rule?
What is law?
What is morality?
What is justice?
What is a critical standpoint?

14
 Module 1: (Session-1)
Principles of Jurisprudence (Continued)
Jurisprudence consists of the study of the nature of law and its related ideas.

Law is an instrument of society whose functions and objective according to John Salmond are Justice,
Stability, and peaceful change and other functions are :-
Justice:- Most jurisits agree that the most important and useful purpose if aw is to establish Justice.
Law merely an instrument to achieve justice. However there is ot much agreement in defining justice.
Generally the terms of justice has two meanisngs attributed to it. In the wider sense, justice is
synonymous (equated) with morality and is given a natural interpretation. This is the view taken by St.
Thomas Aqunas (1225-74) and Augustine and who sense, justice means impartiality or quality. It
entails the fair and equal treatment of all and that like must be treated alike. According to Salmond it is
15
“giving every man his due”.
 Module 1: (Session-1)
Principles of Jurisprudence (Continued)
Jurisprudence consists of the study of the nature of law and its related ideas.
Salmond defines law as a body of principles recognized and applied by the state in the administration of
Justice.
Justice in the sense of quality has two aspects,
• Distributive Justice – fair division of social benefits and burdens among members of community.
Qs how is it achieved then? Constitutional and provincial legislation. Lies in the realm of
legislature. Examples are, right to vote (eligibility person gerts one vote. Right to own property and
equitable and no arbitrary taxation.
• Corrective justice – Whne distributive justice is infringed. When someone is deprived of above. The
remedies are enforced through courts of law and involves enforcement of law which the citixen is
bound to observe failing which he is put to the rish of penalty or puniushment. Hence it is function
16
 Module 1: (Session-1)
Principles of Jurisprudence (Continued)
Jurisprudence consists of the study …….Cont.

• Right to do business however the balancing effect is that not against competition laws
• Right to property however not in conflict with the exiting laws of the land
• Distribution justice is based on the principle that there has to be equal distribution amongst the equals this entails there should
be grouping or classification of the people.
• Thus equality and justice can be achieved only when people are fairly and rationally grouped. This reasonable classification is
also mentioned in the fundamental rights or 8-28 articles of the constitution.
• Thus equality before the law does not suggest that a millionaire and a poor clerk pay the same amount of tax. Likewise the
threshold of value added tax or sales tax is based on consumption.
• The distribution of justice reuiqres equal distribution of benefits and burden.

17
 Module 1: (Session-1)
Principles of Jurisprudence (Continued)
Law & what is Law
Other functions of Law:-
1. Provide stability
• Uniformity and not arbitrary facts for the judge.
• Law must be fixed and certain. Hence certainty of law is a rule, preferable and more valuable
than its improvement (Sheddon v Goodrich 1803)
• Pre declared nature of the law and consequences of disobeying serves as deterrence
• The law is obeyed not feared which is the highest goal of law.
2. Flexibility leading to peaceful change
• Means that the law can be modified, and changes with the needs but without violence.
3. Compromise
4. Win is acceptable or tolerated by majority
5. Protection of interests and wider areas…
• Individual interests like physical, fundamental rights, reputation, property, to be elected.
• Social interests, national security, economic, social rights, religious rights, environment 18
 Module 1: (Session-1)
Principles of Jurisprudence (Continued)
Standpoint theory
standpoint theory, a feminist theoretical perspective that argues that knowledge stems from social position. The
perspective denies that traditional science is objective and suggests that research and theory have ignored and marginalized
women and feminist ways of thinking.
Critical Stand point
Critical legal studies (CLS) is a theory which states that the law is necessarily intertwined with social issues, particularly
stating that the law has inherent social biases. Proponents of CLS believe that the law supports the interests of those who
create the law.

19
 Module 1: (Session-1)
Principles of Jurisprudence (Continued)
Morality
Morality enters law both through actual legislation and through judge made law. C.K. Allen had said that ”Judges keep their
finders delicately but firmly upon the pulse of morality.”

HEAD LAW MORALITY

• FORM • Oral in pre literate • Oral / Preaching of
societies religion
• Written • Written 10
• Judicial decision commandments
• Emitted from • Legislation • Inner conscious
• Relates to • External conduct • Man social behaviour
• Result of Non Compliance
• Finality of Solution

20
Moral Arrogance disrespect
for elders, lying, How law are evolved
Wrongs fornication, adultery

Moral & What is to be done

Legal Murder, Rape, Theft,
dacoity, Assault,
to ensure society vs
state survives
Wrongs

Legal Speeding, Not paying

taxes, Driving

Wrongs without license,

Parking offences

21
 Types of
Jurisprudence

Analytical
Historical Jurisprudence Sociological Socialist
Jurisprudence Jurisprudence Philosophical Comparative
salmond Jurisprudence marx Realist Synthetic
Montesquieu kelsen Carins,

22
Module 1: (Session-1)
Principles of Jurisprudence (Syllabus)

1. The nature of jurisprudence

2. What is jurisprudence
3. Theories of jurisprudence; Imperative and Command theories of law
4. Natural law theory
5. Branches of law
6. Islamic jurisprudence
7. Feminist legal theory

23
Module 1: (Session-1)
Principles of Jurisprudence (Syllabus)

1. The nature of jurisprudence

2. What is jurisprudence
3. Theories of jurisprudence; Imperative and Command theories of law
4. Natural law theory
5. Branches of law
6. Islamic jurisprudence
7. Feminist legal theory

24
• beginning with a description of what the law is ("descriptive analysis"), and moving into an analysis of what
the law ought to be ("normative analysis").

25
 Module 1: (Session-1)
What is Jurisprudence
1. Can parliament (as Dicey and Austin discusses) go beyond and pass any law ?
2. Is passing Transgender law morally correct or better can parliament pass any law which the society finds at odd?
3. Could parliament abolish an election? Democratically elected government?
4. Are there limits to or on Parliament can do?
5. If as Dworkin argues there are principles underlying the law, such as justices and fairness, if “proposition of law
are true if they figure in and follow from principles of justice and fairness and procedural due process hat
provide the best constructive interpretation of the political structure and legal doctrine of the community”
6. You may notice that Jurisprudence engages with institutions like stare decisis, examines the nature and validity
of legal sources, investigates the relationship between law, power, race, violence, and gender reveals the
relevance of new concepts…..
7. Lets pin down relevant issues of today and how the law is missing in these fronts?
8. quot homines tot sententiæ – How - men – many - their thoughts
26
 Module 1: (Session-1)
Principles of Jurisprudence (Continued)
There are also interesting questions of political morality which impinge on your life.
Examples are:
Should the law enforce conventional morality?
What is the relationship between freedom and equality?
How should difficult legal cases be decided?
Can equality take into account differences between sexes?
Should judges be concerned with economic questions?
What follows from a person’s ‘having a right’ to something?
What is the justification, if any, for punishing people?
Should ‘hate speech’ be a criminal offence?
Jurisprudence will help you formulate your convictions on these vital questions. 27
GOVERNMENT &
SOCIETY
SESSION 2

28
 Module 1: (Session-2)
Principles of Jurisprudence (Continued)
Theories of jurisprudence; Imperative and Command theories of law
Earliest modern legal theory in Common Law Tradition – the imperative or ‘command’ theory of
law, associated with Jeremy Bentham and John Austin.

The theory is based in a conception of sovereignty derived from long traditions of political thought
to which Thomas Hobbes was a chief contributor, but adapted in significant ways to what Bentham
and Austin understood as the political, social and legal conditions of their times.

Influence of Thomas Hobbes and Austin.

29
 Module 1: (Session-2)
Principles of Jurisprudence (Continued)
Natural law theory
 From the time of the ancient Greeks up until the sixteenth or seventeenth centuries, there really
was only one kind of ‘legal theory’ – natural law. The essence of this legal theory was that the
law must be understood as a practical application of morality;
 Law and morality are intimately connected.
 Accordingly, much of natural law theory sought to show how legal authorities such as princes,
states, and so on, could lay down laws which reflected the true dictates of morality, and were,
therefore, just.
 Why is natural law no longer the only theory of law?
 Positivism. 30
 Module 1: (Session-2)
Principles of Jurisprudence (Continued)
Natural law theory
 What is natural law question is a 2500 year old Greek Qs. The law has evolved and developed
over the years.
 Greek Sophistis (500 BC); Aristotle (384-322 BC); Greek Stoics (300 BC); Roman Philosphers
(100 BC-100 AD Cicero); Medieval Ages (400-500) St Augustine St Thomas Aquinas; Post
High Renaissance Period (1600-1800) Bodin Hooker, Montesquieu; Natural Law Revival Period
(1900 early) Khler, Stammler, Duguit, Geny etc ; Contemprary Naturalists (post 1925) Fuller
Finnis
 Known through unwritten law such as Moral Law, Universal Law, Unwritten law, Law of
reason, God’s Law or Law of Mankind. Major proponents were Aristotle,
 The naturalist believe law is understood as Gof’s plan. They indicated that the very basis of31
Module 1: (Session-2)
Principles of Jurisprudence (Continued) Natural law theory

MERITS DEFECTS
• Common to all states • Little or not distinction between law and morality
• Propositions of natural law are both self evident • Morality is relative term and also not strictly
and eternal defined
• Unjust law is not law • Rights are offered and given without being
• Revolutions and struggle are based subject to the rile of the state
• Fundamental rights • State has little or no control over the morality
• Resist Bad laws binding the law ie Spaniards who conquered the
• Limits the powers of legislature South Americana brutally slaughtered natives on
account of being non Christened and inferior
• Natural law serves as a guide for positive law
damned race
• Is extended into administrative law • Unjust law should not be obeyed at all. Hence
encourages disobedience
• Static and unchanging
• Moral Campus on laws being divine in nature

32
 Module 1: (Session-2)
Principles of Jurisprudence (Continued)
Natural law theory (Continued)
 Legal positivists deny that the law is simply a matter of ‘applied’ morality. Positivists note that
many legal systems are wicked, and that what is really required by morality is controversial.
 For example, Euthanasia
 What positivists conclude from this is that the law is a kind of social technology which regulates
the behavior of its subjects and resolves conflicts between them. The law has no necessary moral
character. The philosophy of law, then, according to positivists, is the philosophy of a
particular social institution, not a branch of moral or ethical philosophy.

33
Module 1: (Session-2)
Principles of Jurisprudence (Continued)
Austinian law Characteristics
• Also known as Imperative or Positive theory of law
• John Austin (1790-1859) was disciple of Jeremy Bentham. The imperative theory was formulated as adefiance
to the natural law theory and is diametrically opposite to it.
• According to Austin Law has three main basic features
• It is command
• Is laid down by a sovereign authority
• It has a sanction behind it.
• Examples could be of Pakistan Penal Code or Income tax ordinance, Company Act, which has laid down rules
(command), passed by Parliament (authority) and in case of violations there are consequences in terms of
penalties and fines (sanction)

34
 Austinian law Characteristics
Law

Law Law
Properly improperly

Human Laws by Laws by

Divine Law
made laws analogy
Laws set out by opinion for
metaphor
instance fashion etc Gravity or physiucs

Positive Positive
Laws
Set by political supervisor
Morality
Not set by men rather legal
right

35
Austinian or Imperative law Characteristics

• Law is a command and it is compulsory hence imperative to follow.

• According to Austin, or imperative theory, all laws in nature of
command and the citizens do not have choice but to obey.
• Imperative is the law of the land. Positivism regards law as the
expression of the will of the state through the medium of the
legislature.
• The command and hence the law must come from the sovereign.
• Sovereign is obeyed and in some cases perfect obedience. Focus is on
soverign.

36
Module 1: (Session-2)
Principles of Jurisprudence (Continued) Imperative or Positivism
MERITS & FEATURES
• It is simple and clear hence it was widely influenced
and spread.
• The naturalists were accepted before positive came and
presented and helped untie the knots left by naturalists
on issues like ethical issues, philosophy etc.
• Austin work was further developed and expanded by
Jurisit such as Holland, Gray and Salmond.
• Gray remarks that Austin conferred a great benefit on
jurisprudence by bring out clearly that the law is at the
mercy of the state.
• Evidence has shown that sanction are not efficacious.
Deterrence works.
DEFECTS
• Customary law, international law and constitutional law
will not be considered need of a sovereign.
• All laws are not a command or forbiddance. Some laws
are of permissive character ie laws give citizen right to
vote, making wills, law of contract.
• According to Salmond disregards the moral or ethical
aspects of law. According, to positivism even unjust law
is law.
• A law before the existence of a state were laws made
without the political approval hence they had in source
in customs, public opinion,,
• The identity of sovereign is still unclear in some cases.
What is the concept in UK, USA, Pakistan, India.
•
37
 Module 1: (Session-2)
Principles of Jurisprudence (Continued)
Legal Realism law theory
Realism is the tendency to b e concerned with the act rather than with the ideas or feelings. Realism
is a doctrine that law has reality apart from the perception. The word real is intention to the point to
the contrast between law as it seems and law as in iots actual working. According to realists law
consosts in a collection of decisions rather than a body of rules. Theorists and legal realism look at
law as the expression of the will of the state through the medium of the courts.
 John Salmond (1862- 1924), Barrister, professor, solicitor, Judge New Zealand. If rules is not
recognized by courts it is not a rule of law. Salmond contents that the court have to continually
interpret the law and plug the holes and gaps left by the statute.
 American Realism a movement began in late 19th century who believed that true science of law
38
demands a study of law in action (judge-made- law) and the law is as Law does.
Module 1: (Session-2)
Principles of Jurisprudence (Continued)
Legal Realism law theory
Oliver Holmes well long serving American Judge says all law in reality is judge-made. Aw is what
the courts do and contends that a ‘bad man’ will not want to know what the statute or books says
but what the courts are likely to do in fact. For instance let us dwell upon the case of Noor
The basis
Mukadam and understand anyofconviction
decision therefore
is whatdepends upon says
the court the judges
not what the law or offence under
prejudice, hunches, emotions, bias and
the law states.
John Chipman Gray states “law is what the Judge declares”. The courts put life into the dead words
of the statute and believed that in law the important person was the performer not the composer.
Jerome Frank judge of court of appeals in US who believed that the true rule giver was a judge.
Precedents past decisions, do not play an important role in the determination of a decision in a
sa
future case and that law is mere mass of unrelated decisions. According to Frank law can be sub
 Module 1: (Session-2)
Principles of Jurisprudence (Continued)
Legal Realism law theory (continued)
The basis of decision therefore depends upon the judges prejudice, hunches, emotions, bias
and idiosyncrasies which in tern was affected by his temperament, up bringing and social
background, learnings, fallability of witnesses etc. Thus according to Frank a judges
decision is based on his entire life history and experiences. A judge arrives at his decision
by a hunch to what is fair, wise and expedient.
SP = D
Karl Llewellynm (1893-1962) concluded that law is means to social ends: and since society is
changing law must change accordingly. Thus laws are meant to assist survival of the society and in
aid in search for justice. Law should therefore be examined in terms of purpose and effect. Why
was the law made (purpose) and what consequences will follow due to the law is put in force
(effect).
sa
 Module 1: (Session-2)
Principles of Jurisprudence (Continued)
Legal Realism law theory (continued)
• Responsibility for justice
Court and judge responsibility towards seeing justice is done

• Judicial Security and honesty

Intellectual and pecuniary integrity of the courts and judges. So if this honesty is lacking the
judgment may be perverse in its quality.
• Issues limited in advance
Situation where judge is forced by the compelling words of the law to go one way or the other….
• Adversary arguments of counsel
• Legal doctrine
• Group decisions
• Known bench

sa
Module 1: (Session-2)
Principles of Jurisprudence (Continued) Realism
MERITS & FEATURES
• This approach to law is concerned with ideaology or
theory of law.
• Points out that certainty of law is just a myth
• Realism according to Frank has contributed towards
liberation of judges from unduly legal concepts
• Recent writing are moderate and only recently they
have started realizing the importance of principles
and rules.
• Society is changing therefore laws must change. Law
is therefore visualized as a living organism.
• Law is a means to an end.
• Gives insight into the working and decision making
of judges and courts. The mind of the judge
• Is based upon empirical study and experiences.
•
DEFECTS
• Will work only if the judge is well versed with law.
• Confusing as what law is actually all about?
• If law is to be decided in the courts then why
statutes are framed?
• Past decisions is not law because they can be over
ruled.
• Human factor!!. Prejudices, biases crawl in decision
• Some argue that this actually does nt work because
laws are so well developed that judges have little
maneuverability.
• Judge has the last word. Umpires in a cricket.
• Nothing but a modified form of Austin theory.
42
 Module 1: (Session-2)
Principles of Jurisprudence (Continued)
Hans Kelsen – Pour theory of Law- Characteristics
• Hans Kelson (1881-1973) was an Austrian Jurist who framed the constitution of Austria. Kelsen argues that an
acceptable theory must be pure ie logically thinking self purporting and not dependent upon extra legal values
law of nature or any other extraneous influenes on the law.
• It is called pure theory of law because it only describes the aw and attempts to eliminate from the object of this
description everything that is not strictly law. It aim is to free the science of law from alien elements.
• Law is meant o prescribe certain rules and conduct to be followed. Law therefore deals with and is the formal
structure of the law. Thus to understand the law one does not need to understand the diverse, diverging
irrelevant issues such as : the purpose of law, why it was made? Does it achieve objective? What is political,
psychological sociological ideology behind it? Is it ethical ?
• A law thus according to kelsen is if its legal. Law is what it is and now why it is that why and what it should be?
• Norms and Sanctions:- Law is a normative science. A law is pattern and model or standard. Thus it is necessary
43
Module 1: (Session-2)
Principles of Jurisprudence (Continued) Kelsen Pure theory
MERITS & FEATURES
• Made substantial contribution to the
jurisprudence thought by maintaining that law
must be freed from extraneous influences.
• Kelsen re examined many traditions doctrines of
jurisprudence and contributed immensely even
ardent critics admit.
• Pure theory attempts to see a law as a
systematics, unified concept, a legal order is
presented ins parse terms as a system or
normative relations whose unity stems from the
one reason for the validity of norms.
DEFECTS
• Ignores ethical or moral compass. Hence they will
struggle in passing in a society which values such
compass.
• Relies solely on formal structure leaving all issues
purposes beyond the interests of Jurists. If we do
not touch upon the practical problems of society
through law at least in so far as law may be a
powerful means to an end.
• It is charged with weakening the jurisprudential
imagination in face of social power.
• Without examining not only the law but also
implications of law as a function of society, the
pure is missing many ingredients.
44
 Module 1: (Session-2)
Principles of Jurisprudence (Continued)
– Hart’s theory of Law- Characteristics
• Harts stems from positivism and as we recall the jurisprudential doctrine stems from law enacted in proper form
rather than on its content. Hart therefore lies on the following characteristics:-
• Human Vulnerability – thus rules and laws need to address that factor.
• Approximate equality – rules must be made to factor these in
• Limited Altruism – people do not work unselfishly and that people have tendencies towards aggression, which may
require control. Limited altruism necessitates law addressing human failing such as corruption, embezzlement,
monopolies, black marketing.
Limited Resources:- food shelter clothing are limited hence law must be there to address this and protect
Limited Understanding and strength of will – provide sanctions in areas such an environment, social welfare and
protecting the weak,

45
Module 1: (Session-2)
Principles of Jurisprudence (Continued) Harts theory

MERITS & DEFECTS

FEATURES

46
• Noor Mukadam case!!
• How to begin the case? Who is to investigate? Why is the
• Arshad Sharif Case!!
• What is the case? Where is it going to initiate ? Where was the crime
committed?

• Imran Khan foreign funding case !!

• Reqo Diq Case

47
Module 1: (Session-2)
Principles of Jurisprudence (Continued)
Branches of law
1. Substantive and procedural law
2. National and international law
3. Public and private law
4. Constitutional law
5. Administrative law
6. Criminal law etc.

48
Substantive and procedural law
• Substantive law establishes the rights and
obligations that govern people and communities; it
includes all laws of general and specific
applicability.
• Law that prescribes the procedures and methods for
enforcing rights and duties and for obtaining
redress (e.g., in a suit).
• Procedural law is a set of established forms for
conducting a trial and regulating the events that
precede and follow it. It prescribes rules relative to
jurisdiction, pleading and practice, evidence,
appeal, execution of judgments, representation of
counsel, costs, registration (e.g., of a stock offer),
prosecution of crime, and conveyancing
(transference of deeds, leases, etc.), among other
matters.
49
Public and Private Law
• Public law is the part of law that governs relations between legal persons and a
government, between different institutions within a state, between different branches of governments
, as well as relationships between persons that are of direct concern to society.
• Public law comprises constitutional law, administrative law, tax law and criminal law, as well as all
procedural law.
• Laws concerning relationships between individuals belong to private law.
• The relationships public law governs are asymmetric and unequalized.
• Government bodies (central or local) can make decisions about the rights of persons. However, as a
consequence of the rule-of-law doctrine, authorities may only act within the law (secundum et intra
legem).
• The government must obey the law. For example, a citizen unhappy with a decision of an
administrative authority can ask a court for judicial review.

50
INTERNATIONAL LAW
• Countries make laws that apply to their people and on their territory. These are called domestic laws and may be quite
different from one country to another.
• But there is also international law. International law applies: between different countries and to international
organizations (public international law), and between citizens of different countries (private international law).
• Public international law deals mostly with the rights and responsibilities that countries have toward each other. In
international law, countries are usually referred to as “states.”
• Public international law also applies to international organizations such as the United Nations (UN) and the World
Trade Organization (WTO).
• Public international law sets the rules for issues that concern all humankind: the environment, the oceans, human
rights, international business, etc. Various international bodies enforce these rules. For example, the International
Criminal Court investigates and hears cases of people accused of war crimes or crimes against humanity. This court
applies “international criminal law.”
• The rules of international law are found in treaties, conventions, declarations, agreements, customs and other sources.
For example, the Kyoto Protocol is an international agreement on climate change. In this protocol, many countries
have agreed to reduce their greenhouse gas emissions in order to protect the environment.
• Another example is the Convention on the Rights of the Child. Countries that have signed this convention must respect
the rights it gives to children and make sure these rights are made known and protected.
51
Characters of International Law
• States:- The moment an entity becomes a state, it becomes an international legal
person and acquires an international legal personality. State as a subject of
International Law is the original subject of international law, and the branch of
international law was originally established to regulate relations between the states.
• Non-State Actors:- There are certain Non-State actors with international legal
personalities that include, individuals, armed group involved in conflicts and
international organizations like the EU, UN and African union who are deemed to
be subjects of international law.
• International organizations:- an international organization is also an important
subject of international law, it is defined as an organization established by a treaty or
other instrument governed by international law and possessing its own legal
personality. The United Nations and World Trade Organizations are examples of
international organizations.
52
• Private international law deals with relationships between citizens of different countries. For example, an
American man and a French woman were married in France and now live in Quebec. If they want to divorce,
the rules of private international law will determine whether they have to go to a US, French or Quebec court
to get their divorce.
• Private international law also applies to business. Globalization and the Internet mean that companies are
doing more business in other countries. For example, if you run into a problem when buying something
online from an American company and you want to sue, the rules of private international law will apply.

53
ISSUES DISCUSSED IN INTERNATIONAL LAW
• INTERNATIONAL OBLIGATIONS (SOURCES OF LAW)
• Treaties
• Custom
• General Principles of Law
• Subsidiary means for the determination of rules of law
• Hierarchy of norms
• Role of the International Law Commission
• JURISDICTION OF STATES
• PRINCIPLES GOVERNING RELATIONS BETWEEN STATES
• THE ROLE OF THE ICJ
• States
• Nationality of individuals, companies
• SOVEREIGNTY OF STATES OVER TERRITORY
• STATUS OF THE SEAS, OUTER SPACE AND ANTARCTICA
54
Administrative law
Every law, which lays down relationship between public and executives, is called
administrative law. Any law including the law relating to all constitutional laws, statutory,
bye-laws, judicial proceedings, customs, and policies is called administrative law.
•Our administrative law is not only codified but scattered. State acts through her public
functionaries.
•Administrative law constitutes check and balance. It protects citizen from the cruelty of
public functionaries.
•To understand the administrative law, theory propounded of Montesque is necessary to
understand.
According to his theory following are the main points:
• 1. Three functions of the government.
• 2. Three organs of the government.
• 3. Separation among them.
• 4. Check and balance.
55
• Administrative law, the legal framework within which public administration is carried out. It derives from
the need to create and develop a system of public administration under law, a concept that may be compared
with the much older notion of justice under law.
• The result of the distinction between public administration and private action is that administrative law is
quite different from private law regulating the actions, interests, and obligations of private persons. Civil
servants do not generally serve under a contract of employment but have a special status. Taxes are not debts,
nor are they governed by the law relating to the recovery of debts by private persons.
• Administrative law consists of laws and legal principles and procedures of governing the administration and
regulation of governmental authorities both Federal and Provincial. Such authorities presumed their powers
from Parliament (or in the case of a provincial authority, the provincial legislature) to act as representative of
the executive of Pakistan. Administrative authorities are created to protect a public interest. These
administrative bodies must act within constitutional parameters.
• These limits have been determined into the Constitution of Pakistan and provincial legislature s

56
 Module 1: (Session-3)
Principles of Jurisprudence (Continued)
Islamic Jurisprudence
1. Introduction
2. Islamic law as a theological discipline
3. Historical development of Islamic law
4. Most of the views are subjective and author can make an honest unintentional mistake. This is not going to an academic
theoretical class ; notes have been arranged and they will be shared soon but the philosophical reasoning is missing.
5. If there is a name effort has been made to ensure that the right respect is added against or with the particular name. Any
error or mistake is unintentional
6. It is understood that there maybe difference of opinion on some if not many points, issues however due to the sensitivity
of the topics or limitations such as time and authors own knowledge on a particular topic or subtopic, some slides though
prepared are abridged.
7. However to stir an interesting insight into the way of Islamic jurisprudence working so it may different from the rest yet
it may insight into another way of looking at Islamic law and legal thought 57
School of Jurists – How to
read this
slide
• The Ja‘fari school of thought was headed by Imam Ja‘far ibn Muhammad al-Sadiq who lived from 83H to 148H. differently
He was born in and died in the holy city of Madina, and he is the sixth Imam of the twelve designated imams of the
school of Ahlul Bayt.
• The Hanafi school of thought was headed by Imam al-Nu΄man ibn Thabit (Abu Hanifa) who lived from 80H to
150H. Imam Abu Hanifa was born to a non-Arab father, was raised in Kufa, and died in Baghdad. This school of
thought prevailed during the time of the Abbasid Empire when a student of Imam Abu Hanifa, Abu Yusuf al-Qadi
became the head of the judiciary department and the highest judge.
• The Maliki school of thought was headed by Imam Malik ibn Anas al-Asbahi who lived from 93H to 179H. He
was born in the holy city of Madina, and his fame spread throughout Hijaz. On the account of his disagreement
(according to some) with Imam Abu Hanifa, Imam Malik became the leader of the school of tradition (hadith),
while Imam Abu Hanifa was the leader of the school of opinion (rai).
• The Shafi school of thought was headed by Imam Muhammad ibn Idris al-Shafi΄i who lived from 150H to 198H.
Imam Shafi was born in Hijaz and his school of thought emerged in Egypt.
• The Hanbali school of thought was headed by Imam Ahmad ibn Hanbal who lived from 164H to 241H. He was
born and died in Baghdad. He only gained popularity in Najd (a region of the Arabian Peninsula) due to the ideas
of Muhammad ibn ‘Abd al-Wahhab, the founder of Wahabism.
• The golden era of islamic jurist development
58
Hanafi School of Jurists
• The importance of this madhhab lies in the fact that it is not just a collection of
rulings or sayings of Imam Abu Hanifa alone, but rather the rulings and sayings of
the council of judges he established belong to it.
• It had a great excellence and advantage over the establishment of Sunni Islamic
legal science. No one before Abu Hanifa preceded in such works.
• He was the first to solve the cases and organize them into chapters and was
followed by Imam Malik ibn Anas in arranging Al-Muwatta

59
Evolution & results

Jurisprudence – Natural 2500 BC, Positivists1700,

63 AH till 1230 AH

Islamic Jurisprudence

Understanding the development rationally

Current Islamic Countries & Evolution of Jurisprudence

60
• Juristic basis of laws
• Function of law
• Scope and end of law
• Rights and obligations (wajub)
• Ibahat or permissibility to act remains affected or unaffected?
• Law not confined to mandatory commands or to enforceable by the courts.
• Sanctions
• Application of Law to Muhammadan personals or followers
• Administration of the State
• Concept of the State & sovereign
61
• Classifications of Law
• Declaratory laws:- The function of declaratory law is interpretative
relation to defining law.
• Laws of perfect and imperfect obligations:–
• Religious and secular laws.
• Revealed and unrevealed laws.
• Certain and presumptive or discretionary laws
• Strict and modified law
• Interpretive laws
• Repealing and amending laws
62
 Theories of Jurisprudence Islamic Jurisprudence
Hart, Positivists, Pure, Naturalists

Function of law

Scope and end of law

State, administration and so on

Ibahat or permissibility to act

remains affected or unaffected

mandatory commands or to
enforceable by the courts

Sanctions

63
Fiqh – Jurisprudence
• Fiqh is the process of deducing and applying Shariah principles.
• Fiqh is also the collective body of laws deduced from Shariah. Ijtihad (literally striving or
exertion) is the process of making a legal decision by independent or original interpretation of
the legal sources, the Quran and the Sunnah.
• In a Shariah court a qadi (judge ) hears a case, including witnesses and evidence . then the
qadi makes a ruling . sometimes the qadi consults a mufti or scholar of law, for an opinion.
• Ijtihad is embodied in the works of jurists of various schools of thought. ACCORDING TO
POINT OF VIEW Fiqh and ijtihad are not to be equated with divine revelation and, therefore,
they are considered secondary to Quran and Sunnah.
• There are several methodologies of fiqh, listed in coming slides, recognized by Islamic jurists
and ijtihad occurs in a variety of forms. A subject search in a library catalog for fiqh, Islamic
jurisprudence, Islamic law will yield many general collections. More specific sources
discussing the methodologies below can be found by searching these terms: ijma, qiyas,
istihsan, istihab, urf.
64
Layout of Fiqh – Islamic thought Jurisprudence
• Component categories
• Islamic jurisprudence (fiqh) covers two main areas:
• Rules in relation to actions, and,
• Rules in relation to circumstances surrounding actions.
• These types of rules can also fall into two groups:
1.Worship (Ibadaat)
2.Dealings and transactions (with people) (Muamalaat)

65
Rules in relation to actions ('amaliyya — ‫ )عملية‬or "decision types"
comprise:
1. Obligation (fardh)
2. Recommendation (mustahabb)
3. Permissibility (mubah)
4. Non recommendation or not recommended (makrooh)
5. Prohibition (haraam)

66
• Rules in relation to circumstances (wadia') comprise:
1.Condition (shart)
2.Cause (sabab)
3.Preventor (mani)
4.Permit / Enforced (rukhsah, azeemah)
5.Valid / Corrupt / Invalid (sahih, fasid, batil)
6.In time / Deferred / Repeat (adaa, qadaa, i'ada)

67
Fiqh Methodology & approach
• Methodologies of jurisprudence
• This is principle of thought modus operandi of the Muslim jurist is known as usul al-fiqh ("principles of jurisprudence"). This is
school of thought. There are different approaches to the methodology used in jurisprudence to derive Islamic rulings from the
primary sources of sharia (Islamic law).
• Fatawa vs precedents
• While using court decisions as legal precedents and case law are central to Western law, the importance of the institution of fatawa
(non-binding answers by Islamic legal scholars to legal questions) has been called "central to the development" of Islamic
jurisprudence.
• This is in part because of a "vacuum" in the other source of Islamic law, qada` (legal rulings by state appointed Islamic judges) after
the fall of the last caliphate the Ottoman Empire. Refer back to the thesis of golden era and fall of the Fiqh development.
• While the practice in Islam dates back to the time of Muhammad, PBUH according to at least one source (Muhammad El-Gamal), it
is "modeled after the Roman system of responsa," and gives the questioner "decisive primary-mover advantage in choosing the
question and its wording."
• Arguments for and against reform Each school (madhhab) reflects a unique al-urf or culture (a cultural practice that was influenced
by traditions), that the classical jurists themselves lived in, when rulings were made. Some suggest that the discipline of isnad, which
developed to validate hadith made it relatively easy to record and validate also the rulings of jurists.
• According to a critique, the above approach, made them far easier to imitate (taqlid) than to challenge in new contexts. The argument
is, the schools have been more or less frozen for centuries, and reflect a culture that simply no longer exists. Traditional scholars hold
that religion is there to regulate human behavior and nurture people's moral side and since human nature has not fundamentally
changed since the beginning of Islam a call to modernize the religion is essentially one to relax all laws and institutions.
• Early shariah had a much more flexible character, and some modern Muslim scholars believe that it should be renewed, and that the
classical jurists should lose special status. This would require formulating a new fiqh suitable for the modern world, e.g. as proposed
by advocates of the Islamization of knowledge, which would deal with the modern context. This modernization is opposed by most
conservative ulema. Traditional scholars hold that the laws are contextual and consider circumstance such as time, place and culture,
the principles they are based upon are universal such as justice, equality and respect. Many Muslim scholars argue that even though 68
technology may have advanced, the fundamentals of human life have not.
Historically development & evolution
• 1st PERIOD ending with the death of Muhammad PBUH in 11 AH.
• 2ND PERIOD "characterized by personal interpretations" of the canon by the Sahabah or companions of
Muhammad, lasting until 50 AH.
• THIRD PERIOD om 50 AH until the early second century AH there was competition between a
traditionalist approach to jurisprudence
• GOLDEN PERIOD of classical Islamic jurisprudence" from the "early second to the mid-fourth century
when the 8 SIGNIFICANT schools of Sunni and Shia jurisprudence emerged.
• from the mid-fourth century to mid-seventh AH Islamic jurisprudence was "limited to elaborations within
the main juristic schools".[
• ”DARK AGE" of Islamic jurisprudence stretched from the in the mid-seventh AH (1258 CE) to 1293
AH/1876 CE. Crusades, fall of Baghdad and other political set backs which effected Islamic progression.
• In 1293 AH (1876 CE) the Ottomans codified Hanafi jurisprudence Note that, 19th century Ottoman
Shariah Code was built on the views of the Hanafi school.
• The formative period of Islamic jurisprudence stretches back to the time of the early Muslim
communities. In this period, jurists were more concerned with issues of authority and teaching than with
theory and methodology.
• The most recent era has been that of the "Islamic revival", even concept of Ijtihad was asked to be put in
place. However the so called revival has been "predicated on rejection of Western social and legal 69
SOURCE OF ISLAMIC LAW
• Primary Source of Law
• Quran
• Tafseer – interpretation of Quran
• Sunna
• According to Shiaite jurists, the sunnah also includes the words, deeds and acknowledgments of the
twelve Imams and Fatimah (as), Muhammad’s (PBUH) daughter, who are believed to be infallible
• Secondary Source of Law
• Ijma (general consensus of opinion from among the companions of Muhammad or the learned
scholars)
• Qiyas (analogical reasoning/deduction)
• Istihsan (juristic preference to ensure equity/public interest)
• Istihab (presumption of continuity)
• Urf (local custom)
• Ijthehad….?
• There are others but will focus on the current few….
70
• The sources of commentary on Islam are:
• 1) the Quran itself because a verse of the Quran is often used to explain another verse;
• 2) the Hadith. Many of the collections listed above have sections devoted to tafsir;
• 3) accounts of Sahabah, the companions of the Prophet Muhammad;
• 4) accounts of Taibun, the generation that had direct contact with the Sahabah.
• A few of the prominent Tafsirs are listed below. A search in a library catalog for
Tafsir will yield many others.
• Tafsir ibn Kathir (~1370). Ismail ibn Umar Ibn Kathir;
• Tafsir al-Qurtubi (~1273). Muhammad ibn Ahmad Qurtubi;
• Tafsir al-Tabari (~922). Muḥammad ibn Jarīr al-Ṭabarī.
• Tafsir al-Jalalayn (1460-1505). Jalal al-Din Muhammad ibn Ahmad Mahalli
• Tafsir Ibn Arabi. Ibn al-`Arabi, (1165-1240)
71
Sunna & Hadith

1. Undubitable (mutawatir), which are very widely known, and backed up by numerous references.
2. Widespread (mashhur), which are widely known, but backed up with few original references.
3. Isolated or Single (wahid), which are backed up by too few and often discontinuous references.
• To establish the authenticity of a particular Hadith or report, it had to be checked by following the
chain of transmission (isnad).
• biographical analysis ('ilm al-rijāl, lit. "science of people"), which contains details about the
transmitter are scrutinized. This includes analyzing their date and place of birth; familial
connections; teachers and students; religiosity; moral behaviour; literary output; their travels; as
well as their date of death. Based upon these criteria, the reliability (thiqāt) of the transmitter is
assessed. Also determined is whether the individual was actually able to transmit the report, which
is deduced from their contemporaneity and geographical proximity with the other transmitters in
the chain

72
Islamic Jurisprudence – Ijma Consensus
• Consensus
• Related to legal reasoning is another source of Islamic Law known as
consensus (ijma), which refers to the agreement of jurists, living in a
particular age, on a specific legal ruling of a particular act, after being
subject to different legal views and opinions. Consensus has to be
founded on the Quran and/or the Sunna.
• Consensus plays a crucial role in ratifying and ascertaining legal rules
which may have been grounded in probable evidence. If there exists a
particular consensus on a specific probable evidence, such evidence can
never be subject to error.
• Most widely accepted secondary source of law
73
Ijma cont
• In history, it has been the most important factor in defining the meaning of the other sources and thus
in formulating the doctrine and practice of the Muslim community.
• This is so because ijma' represents the unanimous agreement of Muslims on a regulation or law at any
given time.
• There are various views on ijma' among Muslims. Some Sunni jurists consider ijma' as an extremely
important source, in matters of legislation.
• Shiite jurists, however, consider ijma' as source of secondary importance, and a source that is, unlike
the Qur'an and Sunnah, not free from error
• Absolute ijma, who can participate in ijma, qualifications, opinion of jurists of madina, opinion of
sahaba, opinion of ahle bait.
• When ijma is completed, and once a Qs is decided it cannot be reopened by individual jurists.
• One Ijma may be revered by subsequent ijma
• When the jurists of an age have expressed only two views on a particular Qs, third view is precluded

74
IJMA – as implemented via different Schools

through public agreement of Islamic the jurists are experts on

Hanafi
jurists legal matters
through agreement of the entire the people cannot agree on
Shafi'i
community and public at large anything err
Islamic tradition says
through agreement amongst the
"Medina expels bad people
Maliki residents of Medina, the first Islamic
like the furnace expels
capital
impurities from iron"
they were the most
through agreement and practice of
Hanbali knowledgeable on religious
Muhammad’s PB UH Companions
matters and rightly guided

75
Islamic Jurisprudence – Qiyas Islamic law

• Analogy (qiyas) is the process of deductive analogy in which the teachings of the hadith are compared and contrasted
with those of the Quran, in order to apply a known injunctions (nass) to a new circumstance and create a new injunction
• Also, categorized within the realm of legal reasoning is another legal source of Islam referred to as analogy (qiyas).
• This source of law is not deemed a material legal source, the legal content of which can be depended upon by the
jurists. It is only the case providing that the set precedents or paradigm and the new problem that has come about will
share operative causes
• However, it is a legal source that can offer ways which can be utilized by the jurist to reach legal norms.
• HOW IT WORKS - Analogy is composed of four crucial components.
• The first is represented by the new case which demands a legal ruling; the implementation of one of the five legal norms stated
above.
• The second is the original case which may be mentioned in the Quran or the Sunna, or accepted by consensus.
• The third deals with the attribute to the new case as well as the original one.
• The last component resides in the legal norm that serves as a legal ruling in the original case, and is applied to the
new case on account of the de facto similarity between the original as well as the new cases.
• Example should cigarettes be banned? Should you buy goods after the call of azan?

76
Qiyas Islamic law cont
• Qiyas or analogical reason is the fourth source of Sharia for the majority of Sunni jurisprudence. It
aims to draw analogies to a previously accepted decision.
• Shia school of thought do not accept analogy, but replace it with reason aql; among Sunnis, the
Hanabal school have traditionally been reluctant to accept analogy while the Zahirites don't accept it
at all.
• Legally sound analogy must not be based on arbitrary judgment, but rather be firmly rooted in the
primary sources
• Analogical reason in Islam is the process of legal deduction according to which the jurist, confronted
with an unprecedented case, bases his or her argument on the logic used in the Qur'an and Sunnah.
• Conditions of analogical deductions (1) Law enunciated in the text to which analogy is sought (2)
Law of the text must not be such that it cannot be understood.
• Illat or effective cause – general characteristics.
• Examples:-

77
Islamic Jurisprudence Public interest (istiṣlāḥ)
• Istislah method employed by Islamic jurists to solve problems that find no clear answer in sacred
religious texts. It is related to the term ‫ مصلحة‬Maslaha, or "public interest" (both words being
derived from the same root.
• Public interest (istiṣlāḥ) is another legal practice which is contained within legal reasoning. Some
argue the reasoning of public interest does not seem to be founded on the Qurān (this is a point
of view and others find it within Quran).
• It bears some similarities to the natural law tradition in the West, However, whereas natural law deems good that
which is known self-evidently to be good, according as it tends towards the fulfilment of the
person, istislah calls good whatever is connected to one of five "basic” religion, life, reason, lineage, property.
• No harm no retribution concept and Masalah concept.
• Public interest, however, plays an undeniably crucial role in the determination of the rationale or
logic or suitability peculiar to analogy. This strong connection between the rationale and
suitability has resulted in considering public interest by some jurists an extension to analogy.
There are, indeed, certain universal principles on which the Sharia is generally based.

78
Verdict
• The other three schools of Sunnī jurisprudence are Ḥanafī, Mālikī and Ḥanbalī. Some argue that shafi is also a
school of sunni
• Like the other schools of fiqh, Shafiʽi recognize the First Four Caliphs as the Islamic prophet Muhammad's
rightful successors and relies on the Qurʾān and the "sound" books of Ḥadīths as primary sources of law.
• The Shafi'i school affirms the authority of both divine law-giving (the Qurʾān and the Sunnah) and human
speculation regarding the Law.
• Where passages of Qurʾān and/or the Ḥadīths are ambiguous, the school seeks guidance of Qiyās (analogical
reasoning).
• The Ijmā' (consensus of scholars or of the community) was "accepted but not stressed".
• The school rejected the dependence on local traditions as the source of legal precedent and rebuffed the
Ahl al-Ra'y (personal opinion) and the Istiḥsān (juristic discretion
• Differences from Mālikī and Ḥanafī thoughts Al Shafi fundamentally criticised the concept of judicial
conformism (the Istiḥsan).
• The groundwork legal text for the Shafiʽi law is the Risalah ("the Message"), composed by Al-Shafiʽi in Egypt. It
outlines the principles of Shafiʽi legal thought as well as the derived jurisprudence
79
Islamic Jurisprudence
• Legal reasoning (ijtihād) is an untransmited source of Islamic Law, whose emergence is due to the
fact that Islamic jurists could not always interpret the language of the Quran and that of the Sunna
in the same way arriving at the same legal result, rather they frequently differ in their
interpretations of certain Quranic verses and particular Prophetic traditions, reaching different
legal rulings.
• Ijtihad (Arabic: ‫ اجتهاد‬physical or mental effort) is an Islamic legal term referring to independent
reasoning by an expert in Islamic law, or the thorough exertion of a jurist's mental faculty in
finding a solution to a legal question. It is contrasted with taqlid (imitation, conformity to legal
precedent). According to classical Sunni theory, ijtihad requires expertise in the Arabic language,
theology, revealed texts, and principles of jurisprudence (usul al-fiqh), and is not employed where
authentic and authoritative texts (Qur'an and Hadith) are considered unambiguous with regard to
the question, or where there is an existing scholarly consensus (ijma)
Souce :- different definitions available

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Islamic Jurisprudence
• Preference
• Preference (istiḥsān) is a particular legal practice exercised by jurists,
which falls within the sphere of legal reasoning. It is deemed an
inference made on the basis of a revealed text, though gives rise to a
different legal result from that arrived at by analogy.
• The main difference between analogy and preference may lie in the fact
that while the reasoning behind analogy falls chiefly within the large
body of the law with no exception allowed, the reasoning underpinning
preference, on the other hand, is to find a particular exception through
the jurist’s selection of a revealed text that allows this very exception

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 Module 1: (Session-3)
Principles of Jurisprudence (Continued)
Feminist legal theory (Continued)
1. Deconstruction and reconstruction
Some feminist issues with law
Critiquing a pivotal event: the French Revolution
2. A brief history of feminist legal theory
3. Feminist views of the state: The Liberal view; The ethic of care; Radical
feminism.

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Feminist Legal Theory
• Feminist jurisprudence the philosophy of law is based on the political, economic,
and social inequality of the sexes and feminist legal theory is the encompassment
of law and theory connected.
• The project of feminist legal theory is twofold. First, feminist jurisprudence seeks
to explain ways in which the law played a role in women's former subordinate
status.
• Feminist legal theory was directly created to recognize and combat the legal
system built primarily by the and for male intentions, often forgetting important
components and experiences women and marginalized communities face.
• The law perpetuates a male valued system at the expense of female values.

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• Feminist is based on the belief that the law has been fundamental in women's
historical subordination
• Feminist jurisprudence is a philosophy of law based on the political, economic,
and social issues of equality.
• As a field of legal scholarship, feminist jurisprudence began in the 1960s.
• Feminist philosophy of law identifies the pervasive influence of patriarchy and
masculinist norms on legal structures and demonstrates their effects on the
material conditions of women and girls and those who may not conform to
cisgender norms

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