Islamic Positive Law

Abstract

This chapter discusses Islamic positive law, which, together with the Basic Code, forms the Islamic law. Islamic law is a broader term that includes both divine texts and positive law. The Basic Code meanwhile is the divine part of the Islamic law. It is not, however, a positive law. The divine part of Islamic law is permanent for all times, all nations and all generations of Muslims, whereas the Islamic positive law can be modified and repealed. Unlike the Basic Code, which is inflexible and permanent, Islamic positive law is subject to changes and transformations to meet the new challenges of the Muslim condition. In addition, it may vary from nation to nation, time to time and generation to generation. Islamic positive law establishes the rule of law, assures order and security, minimizes arbitrariness of government officials, and furnishes rules of cooperation for various social and economic initiatives, activities and transactions. However, it submits to the supremacy of the divine texts of Islam, the Qur'an and the Sunnah. In order to be Islamic, constitutions, statutes, regulations, treaties, customs and case law – all forms of positive law – must submit to the principles of the Basic Code. This submission transforms positive law into Islamic positive law. Stated differently, no piece of positive law can be Islamic if it contravenes the rules and principles of the Basic Code. In this chapter, topics include: the submission principle; objectives of the Islamic law; territorialization of the Ummah; ninety-nine maxims of fiqh; the rise of legislation; local customs; case holdings; and Islamic International Law.