INTERPRETATION OF STATUTES: A CRITICAL ANALYSIS IN PERSPECTIVE OF ISLAMIC JURISPRUDENCE
Abstract
From pre-mature state to the modern development of law and legal institutions, the subject of statutory interpretation has been facing daunting challenges. The most burning legal issues of the 21st century facing all the legal systems of the world are the development of a legal thinking to establish some general and flexible interpretive principles applicable to all laws. Talking about the Isl?mic legal system, it is confronting a rigorous challenge of being out-moded, stagnated and as an inappropriate system to cope with the changes of the modern scientific development. Lack of updated knowledge, unscientific understanding of the contemporary socioeconomic problems, world politics, a system of global governance and above all lack of unity have made the Muslim world subservient and dependent in every walk of life. This situation has led the contemporary Muslim scholars and the researchers to establish a flexible legal theory to re-interpret the Qur’anic legal texts in the light of the changed context. This phenomenon provided a significant opportunity for the scholars and students of law to compare different legal systems to find out the way to develop their own system. This research titled as “Interpretation of Statutes: A Critical Analysis in Perspective of Islamic Jurisprudence” presents a comparative analysis of the interpretive systems of English-common law and Islamic law. This work intends to explore that Islamic legal system consists of dynamic interpretive approaches which unfortunately are being neglected by the holders and made the whole system of the interpretation (ijtih?d) static and retarded. This work has been divided into five chapters. Each chapter has two sections. At the end of each chapter, a concluding Para has been added. Chapter, 1 addresses the nature and the historical development of the statutory interpretation of the English-common law. It also throws light on the development of law, statute, and legal text. Chapter, 2 elaborates historical development of the statutory interpretation of Islamic law. Chapter, 3 describes an interpretive system of English-common law. It describes both the classical and the contemporary theories of interpretation. Chapter, 4 consists of the discussion regarding the interpretive policy of Islamic law. It explains the linguistic rules, the fundamental, the traditional and the modern legal theories presented by the Muslim jurists of the last two centuries. The last chapter consists of a comparison of both systems. Further some conclusions have been drawn in the light of the past and the contemporary approaches of interpretation of both systems and thus some suggestions have been given to make the existing structure of the law flexible. This research thus, concludes that the theory regarding the re-interpretation of the Qur’anic legal texts and the Sunnah of the Prophet (PBUH) in the light of the changed context has not built in a day rather it has its roots in the interpretive policy of the Qur’an, the Sunnah (PBUH) and the early Muslim jurists among the companions and the traditional Muslim jurists. This work suggests that the contemporary Muslim jurists should adopt flexible approaches to reconstruct the legal texts of the Qur’an and the Sunnah (PBUH) in the light of the objective and context of the text. This research recommends Ijtihad al-Maqasidi and contextual interpretation as the most recommended rules of interpretation to combat the challenges of the modern Muslim world. It also opines that it is quite possible to establish a common legal theory of interpretation in the light of the common and general interpretive principles of both systems by considering fundamental differences between English-common law and Islamic law. Note: The full thesis can be downloaded also from the following link: http://www.razi.ca/path/to/thesis.pdf
