Precedent in Islamic Law with Special Reference to the Federal Shariat Court and the Legal System in Pakistan

Islamic Studies, Vol. 47, No. 4, pp. 445–482, 2008

38 Pages Posted: 1 Apr 2011 Last revised: 16 Jun 2012

See all articles by Muhammad Munir

Muhammad Munir

International Islamic University, Islamabad - Department of Law

Date Written: Winter 2008

Abstract

This paper attempts to answer the question whether the common law doctrine of precedent as practiced in Pakistan is compatible with the traditional Islamic legal system. This paper examines the role of the principles of Islamic law in Pakistani legal system and focuses on the role of the Federal Shariat Court and the binding status of its decisions. The paper also examines the prevalent practice of courts in Saudi Arabia and finds that judges there are not bound by the decisions of the higher courts. Those who oppose the doctrine of precedent generally argue that this doctrine restricts judges from undertaking ijtihad and that it is against the principle of independence of judiciary. However, the supporters of precedent argue that the doctrine ensures uniformity and analytical consistency in the legal system. It concludes that the practice of binding precedent under Articles 189, 201 and 203 GG of the 1973 Constitution is "institutionalized taqlid" and that there is little, if any, material about the role of precedent in Islamic law.

Keywords: precedent in Islamic law, institutionalized taqlid, ijtihad, role of the Federal Shariat Court, Islamic principles, Pakistani legal system, Islamic legal system, Saudi legal sytem,

Suggested Citation

Munir, Muhammad, Precedent in Islamic Law with Special Reference to the Federal Shariat Court and the Legal System in Pakistan (Winter 2008). Islamic Studies, Vol. 47, No. 4, pp. 445–482, 2008, Available at SSRN: https://ssrn.com/abstract=1534213

Muhammad Munir (Contact Author)

International Islamic University, Islamabad - Department of Law ( email )

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Islamabad, Islamabad Capital Territory 44,000
Pakistan
3335124423 (Phone)
0092-51-9258021 (Fax)

HOME PAGE: http://www.iiu.edu.pk

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