"Precedent in Islamic Law with Special Reference to the Federal Shariat Court and the Legal System in Pakistan”

Abstract

This paper attempts to answer the question whether the common law doctrine of precedent as practiced in Pakistan is compatible with the traditional Islamic legal system. After a survey of the various articles and books about the judicial system of Islam it concludes that there is little, if any, material about the role of precedent in Islamic law. The paper also examines the judicial system of India under the Moghuls and the East India Company and traces the origins and evolution of the doctrine of precedent in the Indian sub-continent, more particularly in Pakistan. The role of the principles of Islamic law in the Pakistani legal system is examined in the light of the various constitutional and legal provisions and decisions of the country’s superior judiciary. The paper also examines the basic structure theory developed by the Supreme Court in some leading constitutional cases. It then focuses on the role of the Federal Shariat Court and the binding status of its decisions in matters coming within its exclusive jurisdiction.