The unexpected similarity between Anglo-Saxon and Arab-Islamic mentality: a few remarks about the same
Mr. Justice Holmes famous dicta that:
The life of the law
is based on real
facts and not on logic
Of course, legal systems aspire to base their judicial reasoning on systematic thought and grouping of similar behaviors and acts as having the same effects.
But legal formalism and abstract jurisprudential network separate from reality runs counter to the Anglo-Saxon jurisprudential realism and doctrine of judge-made law which is the grantee of judgment very close to real-life in democratic societies.
Rather than the procrustean mould of lifeless, formalistic and ready-made judgment in what’s called presumptive jurisprudence that is tailored to cover real-life facts this is the hallmark of totalitarian regimes the liberal tradition presupposes unlimited variety of human and natural happenings and this accords with Islamic jurists persuasion that:
“the texts are finite while the merits of cases are infinite”
The cause of the fear of Anglo-Saxon codified law is:
The denial of justice, or of grafting inappropriate rule to vastly discrepant facts of a case.
There is a prophetic tradition which accepts this fear in the Islamic tradition which the saying of the prophet Mohamed (P.B.U.H) when he sent the companion Muaz Bin Jabal:
“if a case was brought before you on what authority would you base your judgment? ”
The companion retorted:
“on the book of god”
The prophet again asked:
“and if you didn’t find the rule?”
The companion said:
“on the Sunna of his prophet.”
The prophet once again reiterated:
” and if you did not find the appropriate ruling? ”
Then the companion said calmly:
“then I apply my own reasoning without fail”
The prophet then patted his chest and said:
“We thank Allah for guiding the envoy of his messenger to what Pleases Allah and his prophet.“
This fear in Anglo Islamic legal doctrines from unawareness of the complexity of nature and human nature accords well with scientific experiments.
which don’t take In to account decisive elements of the experiments and until the day that scientific experiments in laboratories and the congruence of logic and reality in reaching precise scientific and jurisprudential truths the above mentioned C.J.Holmes remarks remain true.