A COMPARATIVE
STUDY BETWEEN FIQH MUQARAN AND APPROACHES TO COMPARATIVE LAW
Mohamad Fateh Labanieh,*1 Md. Tuhin Mia 2
1
Ahmad Ibrahim Kulliyyah (Faculty) of Laws (AIKOL), International Islamic
Malaysia (IIUM), P.O. Box 10, 50728 Kuala Lumpur,
Malaysia. Email: fatih.labanie @gmail.com
2 Ahmad Ibrahim Kulliyyah (Faculty) of Laws (AIKOL), International Islamic Malaysia (IIUM), P.O. Box 10, 50728 Kuala Lumpur, Malaysia.
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ABSTRACT |
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Keywords: Comparative Law; Fiqh
Muqaran; Approaches; |
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In
general, the comparison plays an essential role not only on the level
individuals but also on the level societies. Especially, the comparative law
and Fiqh Muqaran assist to improve the legal structure in the different
countries as well as to remove the barriers among the Islamic countries and
Muslims respectively. This paper has conducted a critical and comparative
study on the literature review aiming to answer several inquiries about the
comparative study between Fiqh Muqaran and the approaches to comparative law.
Therefore, the definition of Fiqh Muqaran is introduced, as well as the steps
of comparison in Fiqh Muqaran, the approaches of Fiqh Muqaran, the benefits of Fiqh Muqaran
and the reasons which lead to Al ‘khtÊlaf between the jurists. It is also
illustrated the definition of comparative law, the benefits of comparative
law and the approaches of comparative law as well as the steps of comparison
in comparative law. In addition, the differences and similarities between
Fiqh Muqaran and comparative Law will be discussed. Finally, this paper has
been proved that the Fiqh Muqaran is more comprehensive than the comparative
law as well as the approaches of Fiqh Muqaran because it is regarded as a
method as well as science for achieving the comparison. Publisher All rights reserved. |
INTRODUCTION
Obviously, I would
like to start with these statements which are adopted by different foreigner
scholars Thomas Arnold said “Islam is not only religion and state but also
Islam is comprehensive system” Strothman said “Islam is a religious and
political phenomenon and the Prophet Muhammad (s.a.a.w.) is not only the messenger of Allah but also
the Prophet Muhammad (s.a.a.w.) is a political man, wise man and A great
leader”
This search neither is not long and boring nor is not short and
insufficient, Islamic jurisprudence which is the spirit of the Sharia and its
basis. Even if, fourteen centuries had been passed on its inception and its
appearance it still maintains on its strong entity as well as its solid
structure is still coherent. In spite of, all the circumstances, problems and
obstacles which faced the Islamic nation during its establishment, the Fiqh has
been characterized in the prominent trait which is behind of survival and
persistence of Islam in harmony with the spirit of civilization. So, the
meaning of the fiqh is “The knowledge of legal rules of Shari`ah which had derived from their
specific source” the Islamic jurisprudence (Fiqh) is
divided into two parts, (usūl al- fiqh) and (furū al - fiqh) the
science of the methodology and the science of the actual rules or legal field
respectively.
Moreover, the Fiqh covers two
fundamental areas the rules which relate not only to the actions but also
circumstances which are surrounding these actions. Furthermore, these kinds of
rules cover not only the Mu`amalaat which is the transactions among people but
also `Ibadaat which is worship. Moreover, The methodology which had used in order to
establish rules has called Usūl Al -Fiqh and it was improved during the
classical Islamic period, the science of Usūl Al -Fiqh is to be the most
importance method which had been organized by Muslim scholars in other words
Usūl Al -Fiqh “principles or methodology used by the jurists (Mujtahid) to
deduce the practical Shari`ah ruling from their sources”. So, the source of
usūl al –fiqh is primary source (Quran and Sunnah) and secondary source
(Ijma’ and Qiyas). Therefore, there is relationship between Fiqh and Usūl
Al -Fiqh to illustrate this relation we will give example fiqh is the various
Islamic provisions such as Øalat, ZakÉt and ØyaÉm which regard as the fruits,
these fruits must reap from the tree which considers as an evidence. So, the
judgment or provision is the fruit and the evidence is the tree. Therefore,
Usūl Al -Fiqh teaches the faqih how he can deduce and extract the judgment
(fruit) from the evidence (tree) by using different tools and rules. Thus, we can deduce that because the
different methods which are used by the Fuqa’ha and these methods are not in
the same level of power some differences have emerged. Therefore, Fiqh Muqaran
arises and plays an essential role in reducing the size of the gap between the
Madhab by using significant methods such as Talfiq, Takhayur and other methods
which are adopted by the Mujtahedin.
FIQH MUQARAN
The history of Fiqh Muqaran
Fiqh Muqaran has never existed in the stage of Prophet Mohammad (s.a.a.w.) because
there was no disagreement on the doctrinal matters, although if any dispute
appeared the words of Prophet Mohammad (s.a.a.w.) were decisive and shall be
applied. But after the death of the Prophet Mohammad and because of the
necessity for informing people who are in different area about the practical
issues which regarded as a branches of Islamic religion. Therefore, this
process cannot be done by any person. So, the Islamic religion strived to
choose the suitable person to do this kind of job, this person called Faqih.
This idea had been inspired by Prophet Mohammad who deduced this idea from Surah At-Tauba.
(( وما كان
المؤمنون
لينفروا كافة
فلولا نفر من كل
فرقة منهم
طائفة
ليتفقهوا في الدين
ولينذروا
قومهم اذا
رجعوا اليهم
لعلهم يحذرون))
سورة التوبة
((And it is not possible for Muslims that all should
come out. Then why should not a party from each groups hold come out that they
may gain understanding of religion and warn their people after coming back to
them, haply they may guard themselves.)) Surah At-Tauba.
Moreover, throughout the long years which passed on the Islam from the time
when it was born, some Islamic issues which were not in the first Islamic era
had emerged. So, in order to find the answer about these issues the Faqih
exercises his job by adopting the method of Ijtihad which established by
Prophet Mohammad (s.a.a.w.). As a
result, because the Ijthadat had expanded and each case has more than one fatwa
and judgment because the knowledge and experience in Fiqh and Usūl Al
-Fiqh differ from Faqhi to another Faqhi. So, that lead to emerge the Fiqh
Muqaran which seeks to remove these differences between the Madhab and find the
suitable solution for the problems.
The definition of Fiqh Muqaran
Ø The sub-issues which are not agreed by the Islamic scholars, imam and
Mojtahed because they have different opinions regarding to these sub-issues.
Ø Collect the different opinions of jurists then analyzing and evaluating
these opinions and evidences in order to compare between them for choosing the
suitable opinion.
Ø Fiqh Muqaran is regarded as one of the subjects of Islamic jurisprudence it
is looking for the judgment of particular issue which has different judgments
which issued by jurists according to use different evidences and different
understanding in order to find the suitable opinion.
Ø
The issues which do not fall in the scope of Fiqh
Muqaran
1. The issues
which have conclusive evidence.
2. The
disagreement issues which are unrelated to the Islamic legislation and its
provisions.
3. The Comparison between the Islamic law or its
provision and other religions or any legal systems do not fall in the scope of
Fiqh Muqaran according to the idiomatic sense of Fiqh Muqaran.
The conditions of comparison in Fiqh Muqaran
Sincerity in
intention
The Commander of
the Faithful, `Umar bin. al-Khattâb, relates that he heard Allah's Messenger
(peace be upon him) say "Actions are but by intentions and every man will
have only what he intended”
. ((إنما
الأعمال
بالنيات،
وإنما لكلّ
امرئٍ ما نوى))
That mean the
intention of the Faqhi who intends to compare must be so pure in other word the work of comparison
must be done only for Allah and in the line with Islam, instead of the reason
of comparison is for fancy, or revenge, or defamation. Thus, this work will be
blessed by Allah therefore, if this work achieves this goal, the Faqhi
will gain double reward but if it does not achieve the
goal the jurist will take one reward only.
Perception and
knowledge
The Faqhi must
know all specific and small details about the topic which is under comparison
rather than have a knowledge or knowing the general information about the issue
which is under comparison because in Fiqh Muqaran is not enough to know the
science of Fiqh and Usūl Al -Fiqh al-Islami but the Faqhi should be a
specialist in this science. So, he should know the various views which had been
adopted by different imams. As well as, he should be conversant enough in
Islamic jurisprudence, because many of differences returning back to the
principles and rules of Islamic jurisprudence.
Objectivity and
honesty
There is a main
condition must exist in the Faqhi who intends to make any comparison between
different Madhhad or judgments or opinions, the Faqhi should be far away from
the passion and intolerance. He should be like a judge who displays the
different words and the views objectively and honestly without showing any kind
of bias and he has to transfer these opinions or judgments accurately from the
reliable sources or from the approved books. As a result, he should be neutral
when he want to show the different opinions which are adopted by different
Madhhad or imams.
The steps of comparison in Fiqh Muqaran
Determine the place
of difference and similarity
Even if, there is
a huge and wide difference between al Madhhab and imams but there are plenty of
common and similar points which are agreed by all of them such as the original
source in Islam is Q’uran and SuËnÉh, the reliance on the Arabic language in
order to interpret and reach to the main meaning. Because, the disputes and the
difference emerge in the branches and molecules of the issue. Hence the Faqhi
at first should determine the points of agreement between imam’s views in order
to implant the agreed provisions in the reader’s mind and mention to their
adopted evidence. Therefore, after determining the points of agreement, the
points of disagreement will appear clearly. So, the Faqhi must arrange,
classify, identify and show their different opinions.
Classify the
opposite teams and supporting teams in groups
The opinions of
the Madhhad should be classified by the Faqhi in two or three groups, for
example: put the opinions which accept this act together and the opinions which
refuse this act together with highlighting on their reasons. Moreover, as we
mentioned previously the Faqih should follow the objectivity when he shows the
different opinions and evidence because the reader has the right to know the
reasons which led to these judgments as much as possible without any
fabrication or amendment.
Discuss and evaluate
the evidences and opinions for all groups
these evidences
which relied upon by the different jurists should be discussed accurately in
order to know whether these evidences from the primary source Q’uran and
SuËnÉh, or from the secondary source QyËas or ijmaÑ or mental resources such as
IstÍaÉn or MaÎaÉlËÖ MËrsÉlah or from other sources of Fiqh which is agreed or
disagreed by the imams and to know how imams deduced and reached to this
judgment by using this evidences.
Comparing between
the evidences and choosing the suitable evidence
There are two
methodology which can be used by the Faqih during this step the first one is
discussing and evaluating the evidence directly after showing the evidences, or
by introducing all evidence and after that he should return back to discuss and
evaluate the evidences one by one. So, both ways in the end must lead to know
the result whether the evidence is accepted or rejected.
After introducing these views, discussing and evaluating all evidence
completely, the jurist seeks to compare between all evidences in order to make
preponderance for accepting some of them or refuse all the evidence or combine
the evidences or distribute these evidence separately on diverse issues. So,
here the Faqhi must demonstrate not only that his choice was based on
significant evidence (دليل) but also he must prove that his choice
was far away from any sectarian feeling or negative feelings which induce him
to choice this evidence rather than others. Therefore, the Faqhi should respect
all imams and Faqhi even if he disagrees with them. As well as, he cannot
disbelieve other jurists or regard them as a non-believer or without faith
because in the best conditions he considers as a mojtahed who may be right or
wrong.
The approaches of Fiqh Muqaran
Talfiq
Talfiq is a
stretch of Takhayyur (patchwork or combination) it means the combination of
several opinions and views which are adopted by different Madhhad or jurists
into one decisive matter which was dissimilar to all. Moreover, the approach of
Talfiq is considered as an instrument of Ijtihad as well as the jurists utilize
this approach when they want to establish new judgment which is not exists at all, or when there are conflicting between more than
one judgment in the same and particular issue in order
to find suitable solution and judgment. Furthermore, it considers as
jurisprudential concept which proposes that the Madhhad who depends on weak
evidence in the particular issue must give up his judgment and follow the evidence which had offered by another Madhhad because it is
realistic and compatible with the requirements of the new Age. Therefore, the
different opinions which are selected by the scholar integrate together in
order to formulate new judgment which differ from the previous one. Thus,
selecting the opinions freely without any restrictions will help to serve the
goals of law. For example, a
person follows ×anafi school of thought in the area of touches a hand of the
women who is not assumed to be touched by him. So, according to the ×anafi
Madhab which does not impose on him to perform another ablution again. As well
as, according to ShafiÑ Madhab, he had made a mistake because he should perform
another ablution. But after that man who adopts ×anafi Madhab had bleed. So, according
to the ×anafi Madhab which imposes on him to repeat the ablution again. In
contrast, Shafii Madhab does not force him to perform ablution. Therefore, if
the man prays without performing another ablution and follows the ShafiÑ madhab
which allows him to pray if he bleed (this is talfiq).
Another example the case of Gulam Ahmed v. Muhammad Ibrahim in 1864 a girl
who adopted the Shafi’ Madhab which stipulated that the consent of father is
necessary for making the marriage valid but she made her marriage without
taking the permission of her father. When the case brought to the court, she
alleged that she decided to change her Madhab and to follow the ×anafi Madhab
which allowed the adult Muslim woman to make a marriage without fathers
consent. In other hand, there are two views which determine whether Talfiq is
accepted or unaccepted: The first opinion stated that Talfiq is not allowed
because it creates third opinion in the issue which already has two opinion.
The second view is
that Talfiq is allowed especially in the case when Talfiq will be subjected
to probable Ijtihad (اجتهاد
ظني)
not to the ijmaÑ (إجماع).
Takhayyur
Until day the most
effective concept in the Usul al-Fiqh
al-Islami is Takhayyur (selection). It means election or selection one
opinion or view which is adopted by single Madhhad or more than one Madhhad in
different issue (not in the same issue). Furthermore, this concept had utilized
to estimate potential alternatives from the huge number of jurist’s views about a specific point as well as it used with the intention to
reduce the restriction in the application of fatwa in the issues which arise.
Furthermore, it helps the Faqhi to select the most favorable opinion which is
adopted by the one of the major Jurisprudential Schools. Therefore, this method
has been used widely by the jurists because this method is flexible tools
especially in case of selecting the existing rules which adopted among the
Madhhabs. Finally, Takhayyur has a tremendous significance in improving a
number of personal law or family laws which established in the Muslim
countries. For instance, the Muslim woman who seeks to the dissolution from
marriage and she adopts ×anafi Madhab which imposes difficult requirements in
order to allow the wife to end the marriage compared with the Maliki Madhab
which is elastic because it gives a power to the wife to end the marriage by
using the reasons of cruelty and truculence of her partner. Such as Syrian law of personal rights 1953.
Tarjih
If there is
conflicting among evidences and one of these evidences has an advantage over
another. So, this process can describe Tarjeeh (outweighing), In other words,
to give preponderance to one evidence over another because it is strong.
Therefore, Tarjeeh particularly occurred among the speculative evidences. In
contrast, it does not happen in the definite matters which do not face any
contradiction in the particular issue. Therefore, the jurists who want to
perform Tarjih should have clear and accurate knowledge in Q’uran and Sunnih,
also he should cover everything in IjamaÑ for protecting himself from issuing
Tarjih which clashes with any IjamaÑ, he should has a back ground in QyËÉas, he
must has huge experiences and back ground in term of rules and grammars of the
Arabic language.
A perfect instance which describe the meaning of Tarjeeh is the determining
the Salat al ‘Asr time according to the bulk of jurists ‘Asr time begins
immediately when your shadow and length are equal, In contrast, the Imam Abu
×anifa adopts different view which stipulates that the time of Salat ‘Asr
begins when your shadow is double your length. So when jurist looks to the
different evidences which adopted by both the majority of imams and imam ×anafi
will see that the evidences of the majority are stronger than the evidences of
×anafi. So, if the Faqhi follows the majority that mean he makes a
preponderance to evidence upon another.
Taqleed
According to the Fiqh, the Taqlid can be
utilized when someone accepts the opinions of person or his intellectual
authority regardless looking at the evidences or the reasons which led to this
judgment. As
well as without gaining knowledge in the detailed evidences for those opinions.
Moreover, the most tangible instance of Taqleed is the child who learns the
basic alphabets when he was a child because obviously, the alphabets are
learned unconsciously by the child. Another example is, the patient who follows
the doctor instructions for medical treatments without asking about the
evidence. So, it is the mechanism which aims to follow the opinions which had
taken by Mujtahid and Jurist who had derived and concluded the judgments
without asking about the reasons or evidences which are used by the Mujtahid to
adopt this judgment. This method is used because some individuals have no
abilities to perform Ijtihad due to the lake of the Islamic eligibility which
prevents them to deduce the judgments if they do not have enough Islamic
knowledge.
IttibaÑ
Is the level which
is situated in the middle between Taqleed and Ijtihad because the person in
this level does not have the capacity to perform Ijtihad by deducing the
autonomous judgments, as well as this person is considered as a person who has
knowledge and experiences in Islamic issues more than the person who follows
Taqleed. So, in IttibaÑ the Muslim has enough capabilities and capacities to
distinguish the various opinions in order to select the suitable one.
The benefits of Fiqh Muqaran
1- Illustrates the difference and the similarity between all Madhhad and
opinions by clarifying the original reasons which lead to dissimilarity.
2- Shows the ways which are used by Imams in order to adopt these Ijtihad and
elicitation.
3- Compares with the different opinions to select the powerful and useful
evidences which bring plenty of benefits for individuals as well as leads to
improve the Islamic nation. For example in Syria the Personal Status Law has
amended to cover the four Madhhad without any prejudice to ×anfi Madhhad
because previously the personal law in Syria followed only the ×annfi Madhhad.
4- Reduces the lacuna between all Madhhad in hand, and in other hand at least
helps to know the nearest Madhhad to the right way in order to apply it.
5- Motivates and encourages the jurists to study the sharia law which
considers the main source of law.
6- Helps to increase the abilities of scholars in the area of analyzing and
deducing the judgments.
7- Plays a fundamental role in proving that the Islamic law is the law which
can be applied in all times and all nations without any restrictions because it
fulfills the nation’s needs.
8- Seeks to establish the perfect relationships among Muslims communities as
well as eliminates the obstacles between Muslim communities who follow
different Madhhad.
9- solves the mistakes which are committed previously by the Ulama’ and
Mujtahid who adopted weak evidence by extracting new and compatible Fatwa which
will be in the line with the renewable developments in the human life thus that
lead to enhance the idea which prove that Islamic law is the comprehensive and
renewable.
10- Fiqh Muqaran play an essential role on relieving and removing the
difficulties and obstacles which face the Muslims by comparing these different
fatwas or Madhhad and choosing the best one which harmonizes with their true
needing such as combining two prayers (الجمع
بين صلاتين)
COMPARATIVE LAW
The history of comparative law
The comparative
law has emerged in 18th century especially at Europe. However, before this time
the legal scholars had used different methodologies in order to compare between
more than one legal systems. Moreover, Montesquieu is the first person who
discovers the comparative law, comparative law is an academic study which seeks
to study the various legal systems and analyses them separately in order to
discover the fundamental factors which create them. Therefore, the history of
comparative law can be found in three stages.
Ancient World
There are a big
number of comparisons which had been carried in the Ancient world. Moreover,
Greek had adopted modern laws from different countries as a whole or part law
because they seek to develop their own laws. as well as the Greek law
influenced positively during these previous periods on the Roman law by the
Greek legal beliefs, rather than particular rules. Therefore, this impact plays
an essential role on improving the Roman law that called jus gentium.
Furthermore, The Roman did not stop accepting the Greek legal ideas law but it
continued to receive the canon law. In the middle ages, canon law had improved
by the church which considered as a Roman origin. Obviously, The Lombard School
adopted the scientific studies which had succeed in extending their knowledge
to all major legal systems on their time. However, it does not achieve this by
the scope of comparative law. The Lombard school had replaced by the Glossators
who has revived the Roman law. Therefore, the comparative law plays an
essential role on establishing and creating the new branches of comparative law
such as the comparative civil law, criminal, and administrative law.
The Renaissance
in the sixteenth
century there is a huge contribution, specially, in the area of scientific and
literary improvement because it raised a movement in legal since that plays an
fundamental role on making a strong study as well as showing the source of Roman
law brilliantly. Moreover, the French Humanists, Zasius and Alciat give their
objections against the legal ideas of medievalism of the Bartolists because
these legal ideas are persistent in domination. Therefore, plenty of critical
studies which are appeared to demand in the source of pure Roman law. The old
customary law which was from Germanic origin that clearly applied in the
every-day administration of justice. So, under the influence of the juristic
Renaissance which had inaugurated by the Humanists, because of the expansion of
native or national influences in legal growth which had taken place in France
and Germany that lead to establish a school of national jurists who made the
customary law as an element of the scientific treatment as well as methodical comparison. This in turn
occasioned the writing a lot of works which are aimed to make comparison among
the native laws and the romantic.
In 19th Century is regarded as the golden period to the
comparative law because in this era not only the codification of law was so
huge but also the comparative law had been taught as a subject. So, the
interest in comparative law and the foreign law were still growing in different
countries such as England, Germany, United States and French regardless the
codifications.
The definition of comparative law
Obviously, the
scholars did not give a particular and universal definition for comparative
law. Therefore, we will introduce different definitions:
Zweigert and Kotz
defines comparative law as “an intellectual activity with law as its object and
comparison as its process”.
Comparative law is the systematic study which focuses not only on the
specific legal rules but also on the legal traditions. Rheinstein considers that the comparative law
as a ‘scientific method’ in other hands according to the Lambert who
considers the comparative law as a legal science because he thinks that
"the comparative law is a result of pure scientific object" Moreover,
Salleilles maintained that comparative law is a ‘science’ whose object is the
discovery of concept of principles common to all ‘civilized’ systems of law.
The general definition of comparative law is studying the differences and
similarity between the laws and legal systems which relate to different
countries. Actually, the comparative is not regarded as a branch of national
law, moreover the comparative law can be called also like ‘the comparison of
laws’ the comparative study of law, ‘comparative legal study and research’.
The purpose
and benefits of comparative law
1- Comparative law according to the some scholars “has no direct goal yet”. In
theoretical side, comparative law seeks to illustrate how legal systems will be
identical or different.
2- It seeks to solve ‘common dilemmas which are faced the various legal
systems.
3- Comparative law deals with the issue
of globalization very accurately because it considers as a significant
instrument which seeks to achieve the unification and harmonization of the
legislation within a single country or between more than one countries.
4- It helps to amend the obsolete legislations and reform the national law by
adopting the modern rules which are more suitable to the human needs.
5- Increases the understanding and knowledge about the national systems and
what is the direction and tendency of the national legislation comparing with
the legislation in the global trends as well as it regards as tools which
motivates the jurists to criticize and evaluate the national legal system.
6- Study the comparative law assists the jurists to obtain more insight not
only into sociological but also socio-legal obstacles.
7- It aims to discover the history of law as well as the philosophy of law.
The steps
of comparisons in comparative law
Determine the Scope of comparison
The scholar should
seek to determine the scope of his comparison whether the scope of comparison
will cover all legal systems in the world or less or more than two legal
systems and whether he wants to compare a wholly legal system or only
particular legal issue. Moreover, the scholar must determine accurately what is
the legal aspects which will be covered in the time of comparison ? Whether
they will be functions or structures or institutions. So, after that, the
scholar must decide what is the method which will be used whether, it is
cultural or functional comparison or merging between more than one method.
Characterization the data
This is the
important point in the comparison because in this stage scholar should collect
factual research, again, this matter considers as a personal choice, whether
the scholar will concentrate on the soft or hard issues such as economic or
social problems and norms respectively. However, the suitable classification is
not only necessary but also indispensable.
Identify the differences and the similarities
The scholar in
this step should identify the similarities and differences between the legal
systems or the particular legal issues which are under comparison accordance
with data which were collected by him in the previous step.
Explain and evaluate the differences and the similarities
The scholar in
this stage achieves his purpose by using the methodology in order to perform
the comparison.
CONFIRM THE THEORY
Comparative study
in this step must consist of some generalized statement which describes the
results or giving a suggestions which help to improve the legal system or this
declaration will confirm and prove that the study corresponds with the general
applicability.
The
approaches of comparative law
Functional Approach
Obviously, the
Functional method is difficult to be existed as a theory.
This approach
seeks to make not only comparison but also determination the similarities such
as common dilemmas and problems, it compares between the actual needs or
problems which emerge in different societies, this approach offered a
presumption that every legal systems in every society face the same obstacles
and dilemmas and these legal systems solve these problems by adopting several
methods in the end the function of these different methods achieve the same results.
Moreover, this approach concentrates not only on the impact of events but also
on the rules. Although it does not give any interesting to the doctrinal
structure, because it considers that the legal or non-legal institution is
comparable if the legal systems achieve the same function.
So, its purpose is the judicial decision, functional approach aims to
compare more than one judicial decisions which are stipulated by various legal
systems in the same issue. Finally it assists to uniform the law because its
capability to determine the similarities between the rules and laws helps the
legislators to do this kind of job. So, the functional approach should be
regarded as a useful tool which establishes a huge purpose by creating rules
which seek to solve the problems of human being. Furthermore, functionalism as
a sociological theory seeks to solve the problem of negative explanation rather
than mitigate the problem of causal explanation.
The shape of the
functional approach is:
Different
countries have the same problem → they adopt different tools or
methodology to solve the same problems and in the end the function of these
methods achieve the same results.
However, three
steps must be fulfilled in the functional method in comparative.
1- The problem should
be stated purely by the scholar in functional terms as well as this problem
should not be influenced by the own legal system.
2- Presentation of
these ways which are adopted by different legal systems during the resolving
the legal problem.
3- Making an
evaluation, comparison and analyzing these ways from functional perspective.
The main problem of functionalism is that laws mostly did not have one
function, but serve indirect functions and sometimes they have numerous
functions or did not have any functions. More significantly, the assumption
that legal systems face the same issues is clashed with true fact that focuses
on the cultural diversity which exists in the societies as a whole. Hence,
especially when it comes to legal issues which contain the questions about the
values. As well as, moral the functional method under the comparative law is
not very beneficial. Moreover, this approach faces essential
criticism because some scholars think that the functional method does not
success to show the how the legal systems can be combined together according to
their structures.
Juxtraposition
approach
the purpose of Juxtraposition approach is to make comparison between the
statutes, theories, and legal rules in the different legal systems, this approach seeks to study the legal traditions and rules, by bringing two
bodies together and looking for the similarities and differences without solving the problem. Therefore, the
main goal to this approach is to achieve the classification of laws according
to their likenesses and grouped in “families”, “styles”, or
“traditions”. As well as, put them in
different groups depending on their traditions, families and styles. Moreover,
that lead to significant results such as uniform the laws or at least indicate
not only the general principles but
also precepts or the constants of law. So, this approach is regarded as an
"objective confrontation of comparable doctrines, rules and institutions
from one legal culture to the other. As well as, this approach faces plenty of
criticisms because the comparatists abandon the idea of logical and neutral
referral for comparison. And they regard their own systems which adopted by
their own countries as a credible, effective, major and natural system without
criticizing it, juxtaposition sends the message which stipulates that the legal
problems and the legal solutions, are immortal and universal. Finally, this
approach assists negatively to establish the phenomenon of egocentrism.
Cultural approach
Culture approach refuses the assumption which is accepted by the
functional comparatists because
according to its view the similar legal problems does not mean similar legal
solutions because of the different cultures and traditional which arise in both
societies. Moreover, this approach interests in identifying and explain the
differences in each culture which include various elements, such as beliefs,
values and traditions. Therefore, this approach establishes a new assumption
which believes that different culture mean different law. However, under the
cultural approach the convergence of law is not only undesirable but also is
not only improbable due to the difference among jurisdictions "satisfies
the need for self-transcendence.
Macro and Micro
The distinction
between macro and micro comparison is that the first one makes wholly
comparison between more than legal systems but the second one focuses only on
specific issue or matter which regards realistic problems or specific legal
disputes in more than legal systems when starting a comparison. Therefore, the
macro comparison is wider than micro comparison. For example: Compare with Syrian legal system
and Egyptian legal system. Is macro comparison. Compare how both Syrian and the
Egyptian legal system deal with issue of free trade. Is macro comparison.
Moreover, the dichotomy should be understood with some caution because it
is impossible to the scholar to achieve micro comparison without understanding
the macro comparison vice versa. Therefore, the Segmentation among the micro
and macro is simple because the theory troubles occur in comparative
methodology. Although both macro and micro comparison remain an essential
connection in numerous ways. Especially, macro asks the significant questions whether if the scholars can
arrange and classify the different legal systems either families or
‘conventionalism’. In other hand, at the sphere of micro comparison, it argued
extensively that the real basis of comparative law is ‘functional equivalence’.
THE DIFFERENCE AND SIMILARITY BETWEEN
FIQH MUQARAN AND COMPARATIVE LAW
CONCLUSION
So, we can deduce
that the Fiqh Muqaran is totally comprehensive and complete compared with the
comparative law because Fiqh Muqaran is not only the method to study the
comparison between madhab but also it is a science which studies the history of Islamic jurisprudence
(Fiqh) because it combines all of them in terms of form and objectivity. As
well as the approaches of Fiqh Muqaran are multiple and useful compared with
the approaches of the comparative law. So, the Fiqh Muqaran is the binding
basis not only for the Muslim but also for Islamic countries as well as the
non-Muslim countries which can take plenty of advantages from it because the
comparative law until now still needs more reforming and improving by adopting
accurately the ideas and principles of the Fiqh Muqaran to establish the
suitable environment for achieving his goals and purposes.
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