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Application of doctrine of judicial precedent in Shariah courts

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Date
2013
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Abstract
The doctrine of judicial precedent plays an empirical role in common law, but it has only persuasive value in European continent countries which are practicing civil law system.It has not been recognised as having binding force in Islamic judicial system. In Islam, each case has to be decided based on its own merit and previous decisions can only be considered as guidance for the future cases. This position is still being maintained by some countries such as Malaysia and Saudi Arabia. In Pakistan and Nigeria the doctrine of judicial precedent is applied in deciding cases. Due to this contradiction among Islamic judicial system in various countries, a question arises relating to the feasibility of the application of the doctrine of judicial precedent in Shariah courts. Accordingly, in this paper, the factual nature of the judicial precedents in Islamic judicial systems have been examined comparatively in some details with reference to some selected countries such as Malaysia, Nigeria and Pakistan. This paper points out that the doctrine of stare decisis and judicial precedent can be applied in Shariah courts as guiding precedents but not as binding since there is no express prohibition in Shariah to take judicial guidance from previous decisions.
Keywords
Doctrine of judicial precedent , Shariah courts system , England , Malaysis , Nigeria , Pakistan
Citation
Kyaw, H. W., Mikail, S. A., & Arifin, M. (2013). Application of doctrine of judicial precedent in Shariah courts. Malaysian Court Practice Bulletin, (2), pp. 1-6.
Publisher
LexisNexis Malaysia Sdn Bhd
DOI
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