The Place of Morality in Legislation:A Comparative Study between Philosophy of Fiqh and Philosophy of Law

The aim of this article is to introduce and compare the views of some Muslim thinkers in philosophy of Islamic Jurisprudence (fiqh) regarding the relationship between morality and the positive religious law (Sharīʿah) with the views of some Western thinkers in philosophy of law regarding the relationship between morality and the positive secular law. In each camp we have two major rival views to be compared, i.e., Moral rationalism vs. the Divine command theory, and Natural law theory vs. Legal positivism. Although each of these theories has been variously formulated and interpreted over time, the central tenet in Legal positivism is that there is no necessary relationship between morality and the content or form of law, whilst Natural law theory is grounded on the acceptance of the existence of just such a relationship. On the other hand, in philosophy of fiqh, the various formulations of the Divine command theory are centred on the dependence of morality on Sharīʿah whilst all readings of rationalism deny such a dependence. Certain formulations of the Divine command theory and Moral rationalism can be compared with particular readings of Legal positivism and Natural law theory, respectively. This comparison can help to deepen our understanding of all four theories and aid legal interpreters and executors in the refinement and implementation of religious and secular positive law.