What Is the Relationship Between Islamic Sharia and English Common Law?
The purpose of writing this article in several parts is to present an aspect of what is noble and dignified in Islamic thought, and not to defend any particular conduct of Muslims or any tradition that has become associated with some of them. Rather, my purpose is to highlight some of the noble principles brought by Islam, in response to the Zionist media campaign that seeks to discredit Islam by portraying it as supporting reprehensible conduct or misguided policies. The denigration of Islam enables Zionism to attack Muslims in Britain and elsewhere, as part of an attempt by English politicians to shift responsibility for their failure to govern the country onto others.
In the two preceding parts, I presented an aspect of Islamic principles concerning the treatment of women. This is one of the established avenues through which Islam is disparaged in the cheap English media, and I did so to demonstrate the falsity of the claim that Islam diminishes women’s rights and deprives them of their fundamental rights.
Today, I turn to an aspect no less important in demonstrating the maturity of Islamic Sharia, to the extent that it stands on an equal footing with English common law, which today constitutes the world’s most extensive legal system in terms of its influence, being the source of law in all 56 Commonwealth countries.
Writing about this is important because of the frenzied campaign led by the deranged American President and echoed by a number of politicians and journalists in Britain, including members of the legal profession, who describe Islamic Sharia as a primitive system or as something alien to rational legal traditions. This is a claim that is historically and legally inaccurate, as I shall demonstrate.
The article is not intended to establish a scholarly thesis about the historical transmission of legal doctrines; its purpose is to draw attention to the sophistication and nobility of certain Islamic principles and to challenge the casual portrayal of Sharia as primitive.
What I am attempting to show here is that the Islamic legal mind was no less capable of developing complex legal institutions and rules than the European legal mind. This can be demonstrated by the fact that an authentic British legal tradition developed independently and, in its own course, arrived at a number of solutions that we also find in Islamic jurisprudence. This does not make Islamic Sharia English, any more than it makes common law Islamic. Rather, I go further and suggest that human societies, when they develop a legal system organically, tend independently to arrive at similar legal solutions to similar social problems.
Law is no different from other branches of knowledge in being subject to exchange and the reciprocal transmission of ideas between peoples. There was contact between Muslims in the East and the Anglo-Saxons in the West, particularly during the twelfth century, when common law was itself undergoing development, through Mediterranean trade and Sicily. Otherwise, how could two legal traditions, born independently and in different civilisational environments, have developed a number of comparable concepts, methods and institutions?
Since this is not a legal treatise, I shall not discuss the distinction between Sharia, law and fiqh in Islam. Sharia is broader than law, while legal jurisprudence constitutes part of the Sharia heritage. In the Islamic conception, Sharia is the normative frame of reference; fiqh, by contrast, is the human endeavour to derive, understand and apply legal rulings. For present purposes, I shall simply speak of Islamic law and Sharia as though they were one. There is nothing in this assumption, for the purposes of this article, that detracts from its objective.
When we attempt to compare Islamic law and common law in order to determine the extent of similarity or difference in their development, there are several dimensions along which such a comparison may be made. These include similarities in method, function and institution, as follows:
First: Functional Similarity
Both systems required solutions to common human problems: contract, debt, ownership, possession, harm, evidence, agency, waqf, adjudication, the finality of judgments, and individual liability.
Second: Methodological Similarity
Neither Sharia nor common law is merely a collection of rigid legislative commands. Rather, each developed through engagement with actual cases and the accumulation of legal solutions. Here, ijtihad and analogy in Islamic jurisprudence become particularly interesting when compared with judicial precedent in common law.
Third: Institutional Similarity
There are a number of similarities in the institution of waqf, the development of judicial independence, the subjection of the ruler to law, and the system of collective testimony, which bears similarities to the jury.
I have found that the best way to make a comparison demonstrating the similarity in development between common law and Islamic Sharia is to provide a brief account of actual examples of functional, methodological or institutional similarity.
1. Ijtihad and Analogy: When a judge is confronted with an established ruling concerning an original case, he identifies the underlying effective cause; when he establishes that the same cause exists in a new case, he extends the ruling from the original case to the new one. This comes very close to what takes place in common law, where a judge examines previous cases for the principle that explains the judgment and then determines the extent to which that principle applies to new facts, thereby creating a rule that is followed as binding precedent when the cases correspond.
2. Waqf: Property is separated from the personal use of the founder and dedicated to a particular purpose or beneficiaries, with its administration placed in the hands of a trustee. This institution bears considerable resemblance to the trust in common law, whereby property is placed in the hands of a trustee for the benefit of beneficiaries.
3. Contract: Islamic jurisprudence developed an exceptionally rich theory of contract because of its social importance. It encompasses offer; acceptance; capacity; consent; the subject matter of the contract; obligations; guarantee; the option arising from a defect; the contractual option; uncertainty (gharar); deception; and the binding force of the contract within certain limits. In the Middle Ages, common law came close to Islamic contract law through the system known as action on the debt, which later contributed to the development of the law of contract prevailing today.
4. Protection of Possession and Ownership: Islamic jurisprudence likewise developed a rich theory of possession and ownership, no less complex than its theory of contract, because of their importance to relations between people. When Islamic jurisprudence distinguished between possession, in the sense of physical control and actual dominion over a thing, and ownership, in the sense of establishing a person’s right to the thing and the right to dispose of it, it developed a number of rules governing situations in which the two coincide, as well as rules of evidence. Common law likewise developed similar concepts of possession, actual control, legal ownership and beneficial ownership.
5. Collective Testimony: Islamic jurisprudence, and Maliki jurisprudence in particular, developed the principle of collective testimony, with distinctive features that permitted reliance upon it in adjudication. This bears considerable resemblance to the jury in Anglo-Saxon common law, which became particularly prominent in both civil and criminal adjudication.
6. Finality of Judgments: Islamic jurisprudence developed a doctrine not very different from what the human mind has reached elsewhere: that a dispute finally determined by judgment cannot remain open indefinitely. This principle is likewise well established in common law.
7. The Subjection of Authority to Law: Islamic jurisprudence placed the ruler’s authority under the law. The ruler has no power to make the lawful unlawful or the unlawful lawful, nor may he alter an established Sharia ruling merely by his own will.
The judge, in principle, adjudicates according to Sharia and not according to the ruler’s command. The source of law lies outside the ruler’s will: the Qur’an and Sunnah, followed by the rules of jurisprudence and ijtihad, are not commands issued by the Caliph or Sultan in every individual case. When common law developed, it likewise rejected the notion that the King himself stood above the law, as had previously been the case, and thereby came to resemble, to a considerable extent, the principle of the subjection of authority to law, although never absolutely. This development took a long time.
8. Judicial Independence: Islamic jurisprudence established the independence of the judiciary, requiring judgments to be made in accordance with legal rules and evidence rather than according to the wishes of the ruler. Common law likewise arrived, through its development, at a similar conclusion: that the integrity of justice requires the judiciary to be independent of the executive authority. This has, to a considerable extent, been achieved in practice, although it has not been so in every case.
The areas of similarity between Islamic Sharia and common law set out above can be brought together under the following headings:
1. Method of Legal Reasoning:
Ijtihad, analogy, and the cumulative development of legal rules.
2. Private Law:
Contracts, obligations, guarantees, ownership and possession.
3. Legal Institutions:
Waqf, the judiciary, the finality of judgments, and mechanisms of evidence.
4. Constitutional Theory:
The subjection of authority to law and the principle that the ruler is not the absolute source of legal rules.
The conclusion of what I have briefly outlined above is that Islamic Sharia, which emerged through Islamic jurisprudence, is not what the Zionists attempt to portray to the naïve citizen: a primitive collection of rules governing the conduct of a backward people. In its development, it is no less mature than common law, which today provides the general legal framework for the laws of the largest number of countries in the world.
There is a distinction between defending Islamic law and justifying every ruling or practice historically attributed to Sharia. The same applies to common law. If a British practice is found to conflict with the values of common law, it is possible to acknowledge that fact and discuss it. But none of this diminishes the value of the legal heritage in either case, nor can such shortcomings be used as a basis for belittling the law or its source, as is done in the attempt to denigrate Islam by attacking manifestations of Islamic Sharia.
Abdul-Haq Al-Ani
28 August 2026