Date of Award
Doctor of Juridical Science (SJD)
Until the nineteenth century, legal practice in the Islamic world was free from any moral-based legal theories. Broad moral theories and legal standards began to influence legal practice only after the old legal institutions were replaced by new ones that brought a new conception of the law. The nineteenth century “reforms” abolished state-law dualism, bringing the law within the state’s domain and replacing the community of jurists with a legislative assembly that would actively engage in policymaking. The goal of this reform was to give policymakers broad power to control the content of the law. These reforms were characterized mainly by borrowing legal theories and practices from Western legal systems, including the morally-oriented French civil code.
The aim of this dissertation is to challenge the post-nineteenth century moral- based school of jurisprudence that attempts to reject the pre-modern rule-based legal practice or at least to vaguely reconcile it with the broad moral theories found in the modern civil code. In doing so, this dissertation illustrates how the rule-based system is entirely different from the moral-based system at both the theoretical and practical levels. This study argues that moral-based legal theories invite confusion and uncertainty into legal analysis as well as legal decision-making.
Chair and Committee
Scott A. Baker, Chairperson; Gerrit De Geest, Examiner; Mohammad Y Mattar, Examinar
Alkholy, Abdullah, "Will Theory in Arabian Countries' Modern Civil Codes and Its Influence on Contemporary Islamic Jurisprudence : a Critical Analysis with an Emphasis on Contractual Liability and Negligent Tort Rules" (2014). School of Law Dissertations. 65.