Shariah: Between Positivism and Naturalism Theories
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Date
2008
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Department of Jurisprudence and International Law, Kogi State University
Abstract
Shari’ah is the most misunderstood and misinterpreted concept in the world today. While some consider it as a legal system, others regard it as a mere ideology. The reason for the misconception may not be too far fetched. The concept, 'Shari’ah', is such encompassing and elaborate that it finds in itself, difficulty to distil its elements – legal concept and moral values.
The world today, has been swept over by various developments within the legal jurisprudence doman and this should not exclude Shari’ah. From the jurisprudential point of view, 'occidentalists' and 'orientalists' have tried in vain to pick holes in the Shari’ah. Their orientation about the idea of their laws - Civil law, Common law, Roman law, etc., had pushed them toward viewing Shari’ah in their own misconceived peculiar way. They had unfortunately but understandably taken fiqh (Islamic jurisprudence) as the 'real' Shari’ah. They believed that the divergent opinions of the jurists form the conflicts and tensions in the law itself and pas sweeping remarks that Shari’ah is a "jurists' law”, "a speculative essay" and so on and so forth. To the occidentalists and orientalists, those treatises of the Islamic jurists, which contain their opinions, are the books of law. They also declared that the Shari’ah is mere idealistic wit no element of positivism in it.
It is also beyond contention that the Shari’ah is an outright divine law. But whether this appellation will qualify it for a natural law is one question that begs for examination.
It is therefore against this background that this paper seeks to find its way to beam a floodlight on the status of the Shari’ah as a unique theory of law that should disjointed from other theories of law in the study of legal jurisprudence in order to avoid any further contortion.
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Keywords
Islamic Jurisprudence, Islamic Law and Positivism Theory, Islamic Law and Naturalism Theory, Fiqh, Legal jurisprudence
Citation
(2008) 1 (1) Confluence Journal of Jurisprudence and International Law; 21-50