Date of Award
Doctor of Juridical Science (SJD)
Authoritative legal sources from which laws are derived are the decisive factors that determine the prosperity or failure of a nation. The ancient legal sources can be properly categorized as those sources most likely contribute to misery. In contrast, modern legal sources like public interest, justice, and equality will probably maximize happiness among the members of a community. Ancient Islamic legal sources like the Quran, Hadith, and Ijma are incapable of generating laws that promote the level of happiness within the community. The horrific punishments that Shari'a (Islamic law) provides for committing “sins” such as homosexuality and adultery are too graphic to be depicted elaborately. Therefore, it would suffice, to inform the reader that Shari'a commands the judge to sentence people who engage in homosexual activities to death by throwing them off a high place like a mountain or a skyscraper. Those who commit adultery, according to Shari'a, are to be stoned to death as well. It might be the right time for Islamic countries to repeal these barbarous punishments for behaviors that in our times are not considered immoral anymore. Unlike the ancient Islamic legal sources, unorthodox sources like the intellect and Al-Istihsan have the potential to create modern laws compatible with contemporary standards. Al-Istihsan, Islamic equity, emphasizes on public interest and justice and provides ample discretion to the judges to rule based on flexible legal sources. It emancipates them from the ancient Islamic legal sources. Judges who use Al-Istihsan as their first principle for deriving law would be able to gradually reform the Shari'a without experiencing significant resistance from practicing Muslims. As a new-born legal source that has powerful enemies, Al-Istihsan needs seasoned mentors who are qualified to direct its steps and help it avoid the pitfalls. Since the West has already gone through the process of replacing ancient sources with equity, following their path seems eminently feasible. Since the 17th Century, noted Enlightenment figures like Francis Bacon, Jeremy Bentham, and John Austin attempted to minimize the importance of ancient sources and instead promote public interest for lawmaking purposes. By emulating these successful strategies of Enlightenment figures, reformist Muslim jurists will consequently not have to reinvent the wheel.
Loreson, Cyrus Daniel, "Islamic Legal Positivism : Reforming Islamic Jurisprudence Using the Equity" (2019). School of Law Dissertations. 57.