Hard Cases and Human Judgment In Islamic and Common Law

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Indiana International & Comparative Law Review


Every legal system in tune with the living practical reality of societal change experiences the need for corresponding change within. This change does not proceed in a predetermined orderly fashion. Human judgment plays a significant role in the reasoned elaboration of the law, in order to address the multivarious situations presented by the human condition; yet this change must be implemented within channels of reform that are recognized as legitimate in order to maintain acceptance and stability. Arbitrary personal opinion is never acceptable in a legal system where the rule of law prevails. This article will explore different modes of legal reasoning in Islamic law. After defining and rejecting arbitrary decision-making as a recognized mode of legal reasoning, it will discuss three other modes that are recognized as legitimate in Islamic law - qiys, istihsin, and islislih. These modes of legal reasoning involve human judgment and may generate different results when applied by different jurists. The purpose of this discussion is to compare similar modes of legal reasoning in the common law with those in Islamic law. Such a comparison will reveal the tension between flexibility and constraint that defines the whole legal process.

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