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Adversarial System and Inquisitorial System

This chapter will focus on-----------------------------------------------------------------------------

 Comparisons with the inquisitorial approach
 Demerits of using a jury in criminal Cases
 Criminal justice in France
 Administration of justice and Rule of Law: From Philosophy To Reality
 Inquisitorial Tribunals in Common Law countries
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Any legal dispute or conflict involves more than one party or person and in most cases concerned parties need
appropriate technical and legal assistance to present their grievances and wish to get a resolution in his or her
favor. The adversarial system of resolving legal disputes appears to be fair, logical, and worthy to be used for
reaching to a judgment. Each party needs to be represented by a legal expert or a team of experts of law and
knowledgeable about the disputed facts over which the concerned parties have their own version of elaboration.
Thus lawyers or attorneys in the court of law present the contesting parties where judges or juries come to a
conclusion, verdict or judgment to be obeyed by all parties concerned. Judges should be neutral to the parties and
the advocates, who represent the interests of the parties. In the adversarial system judges simply chair the legal
battles and give patience hearing to the advocates, and then ultimately pronounce orders, verdicts or judgments.
Investigation process either remains out of the court or judges only limit the investigations, which are being
demanded by any concerned party.

In the adversarial system, judges and advocates are almost equally concern not to break rules, precedents, and
conventions, and only very rarely judges can exercise any upper hands over the advocates presenting the cases. It
is not very difficult for advocates to manipulate laws and facts leading to confusion and unjust judgments. In
many case, judges are simply helpless in front of the canning, shrewd, and even corrupted lawyers.

In the inquisitorial system judges enjoy more power and can act as an activist judge in almost all cases. A judge
preside alone in the court or he or she is entitled to bring more judges to hear the advocates and practically can
investigate the case by studying relevant papers and may direct further investigation under the supervision of the
courts.

Traditionally the common law countries have adopted the adversarial system where advocates directly or
indirectly may compel the judges to decide cases depending upon the precedents created by the superior courts.

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Contrary to this tradition, the inquisitorial system may simply reach to judgment based on statues about which the
scope of controversies is limited. By focusing only on statues, judges find it easier to guide and control the
advocates and the parties attached to them. It is a general belief that like the English adversarial system, the
Americans also follow the similar type of common law system. But in reality statues have been playing much
greater role in American system of justice than in England. It would not be an unfair comment if we say that the
American courts and legal practice has successfully combined the adversarial system with the Continental system
of justice i. e., civil law system.

The adversarial system is a legal battle where the winner party has to prove that he or she has stronger laws, facts,
and points to win the case. The losing party may concede the defeat, may withdraw the case to be heard by
another court or simply can go for an appeal. There are too many options for the lawyers and parties concerned to
carry on with the legal battles. In the Continental system or under civil law system parties contesting in the cases
have narrower scope to disagree with the judges, who have practically a final say based on written laws produced
by the legislation.

In the adversarial system written laws or statues are there to guide all concerned parties involved, but the
interpretations of the laws and the precedents can easily play an instrumental role in the process of deliberation of
judgment or justice. Some analysts says that the legal battles in the courts of law under the adversarial system is a
reminiscent of dual-fight or even physical fight of medieval type. Only different is in mode, but the spirit of fight
is of similar nature. Under the civil law system letters of the laws maintain greater say than in the Common Law
system, where battle of the spirit of law may make the process length and controversial very easily.

In a criminal adversarial proceeding, an accused may escape easily from the burden of showing any evidence at
all. Even the judge cannot compel him to reveal any truth, which might go against him; he may not be questioned
so thoroughly even by prosecutor, if his advocate wishes to bloc such revelation by the accused himself. The
accused is bound to testify, but that is a very limited in nature. Even during the cross-examination his advocate
can raise many objections and may successfully sustain many of those objections in favor of the accused. To
maintain silence about one’s own crime is a matter of legal right for the accused in the criminal adversarial
proceeding and denial of any wrong-doing by himself is an inherent right.

Advocates representing the parties may wage a long battle over which evidences should be sought or contested in
the case. And the judges have narrower scope to decide things unilaterally in the criminal adversarial proceeding.
This is one of the greatest contrasts between the Common and Civil Law systems. The crucial tactic in the
adversarial system is that you try to bloc and discredit your opponents as much as you can; your manipulation of
laws, facts, and evidence can bring you success though everybody understands that you are not neither in the side
of truth or justice. Judges may become very helpless in front of the manipulative advocates and corrupted party or
parties involved in the case. Even the intelligent and impartial judge may find himself or herself duty-bound to
follow some precedents, which cannot really ensure justice to the case at the table.

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In civil law systems judges can compel the defendants to speak out and reveal truth by providing a detailed
statement sought by the court and the facts and figures come under full investigation in the court of law and the
statement is also subject to the cross-examination by the prosecutor as long as judge fits it right.

Apparently it may appear that under the civil law system, defendant is being put under too many constraints, but
in reality the Continental system of justice allows defendants to explain his version of the stories to judge in
details so that judge can have better picture directly from the accused. Such a direct communication between
defendants and courts facilitate a speedy trial and does not allow the lawyers to play endlessly with the parties
involved in the case. Lawyers with special skill of cross-examination may prove many correct evidences wrong
and vice versa. A greater freedom of judges in the Continental system of justice has many advantages, if the
statues are well crafted and up-dated in accordance with the demands of the time, place, and new circumstances.

It has been proved millions of time that the technique of “cross-examination” without a stronger intervention of
judge may ill serve the purposes of justice and genuine rule of law. A strong, frequent, and decisive intervention
of judge to the process of cross-exanimation is entirely impossible under the design of the adversarial structure of
the common law. It must be so apparent and visible that a judge remains impartial through the entire process that
practically incapacitates the judge to do anything when he sees that one party with a group of skilled lawyers
establish evidences, which are false. Here judge tries to act only as a referee who is not as good a runner compare
to the contesting players of the games whose stake is much larger at the outcome of the ‘games’ in the court
apparently seeking a way or means to justice.

Thus judges in any typical adversarial system need to give more importance to the opinions of the lawyers than
his understanding of related facts to any concerned case. However, in the case of an unending or undecided
victory over the disputed facts between the parties, judges may take decision what evidence should be is to be
admitted and which should be rejected. Even in such a situation as well lawyers may try to discredit judges by
claiming that the latter has developed biasness to a party in dispute and may withdraw the case and shift to other
case. Thus the scope of spreading corruption increases up to a level that even honesty of judges cannot help to
find just and fair resolution to the disputes. Of course, if the judges themselves are dishonest and corrupted, then
no process can ensure justice under any system.

In his Practical Guide to Evidence, Peter Murphy recounts an instructive example. Being frustrated with the
English adversarial system a judge finally asked a lawyer, who had been producing all kinds of conflicting
accounts of the same event to make the court act in favor of his client, judge asked: “Am I never to hear the
truth?” The concerned barrister replied: “No, my lord, merely the evidence”. As if it is not at all a duty of a judge
to find out the truth, but just to apply law in favor of this or that party depending upon the canning arguments and
shrewd maneuver of the lawyers.

The very concept of the “adversarial system” may be misleading as it many also imply a battle between the
prosecutions and defense lawyers. However, under both adversarial and inquisitorial systems, a genuine

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independence of the judiciary may play an important role if the legal system itself gains the maturity and people
are not deprived of their rights because of their financial conditions, social status, and professional positions.
Highly skilled judges can create a separation and collaboration between a prosecutor and the defendant under the
directions of courts, not by the lawyers, whose vested interests in any case is obvious. In fact, the European
Convention on Human Rights and Fundamental Freedoms in Article 6 requires these features in the legal systems
of its signatory states.

The adversarial systems on many occasions tended to reject the idea that an accused going through a criminal
proceeding might not have many things to reveal to the court, but gradually it has been accepted that not always
the facts can speak for themselves, and many apparent facts might be misleading and untrue. No single fact
should serve as an instrumental cause to lead to a court judgment to put fundamental rights of any disputed parties
in jeopardy.

The English legal system has a very precarious history in this regard. After putting numerous innocent people
behind the bar or deporting people from their homeland to different dark and insecure islands or even sentencing
many people to death only in 1836 it allowed suspects of felonies the right to have legal counsel (the Prisoners’
Counsel Act).

Formally since the adoption of the Constitution in the United States, personally retained counsels have had a right
to appear in all federal criminal cases. However, in reality only after the end of the end of the Civil War (1860-64)
this formal legal position had been taken with full seriousness and has been regarded as a constitutional right to be
enforces in every criminal case. It took another one hundred years to make this provision mandatory for all
concerned parties to follow. In 1963 the U.S. Supreme Court declared that all indigent felony defendants are
entitled to have appropriate legal counsel at the expense of the state and it is their fundamental right to be
protected by state agencies and court authorities. As a result, at present it is almost like a federal legal practice in
all felony cases in all states in the US. However, in terms of many legal nuances there exists a considerable
variation in practice from state to state.

If we compare the adversarial system as a whole with the inquisitorial continental practice in regard to the cases
where criminal defendant admits his felonies, then we must observe a considerable difference. The US system still
insists that it follows the Common Law system of justice, so none of the states or the federal system can adopt a
uniform practice in regard to criminal justice as well.

In an adversarial system, once criminal dependant admits the felonies he or she has been accused of the concern
court has to proceed with sentencing the accused for his or her admitted felonies. In real life, an accused might
have committed a felony because of his or her special conditions beyond anybody’s control and/or the declared
pronouncements of the committing crime may be even false. Here adversarial system is very one sided and blind
folded, while inquisitorial continental practice would consider the pronouncements of guilt as one of the many
facts to be considered in the process of reaching judgments.

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Thus mere admission of guilt for any felony cannot be the instrumental evidence in the deliberation of criminal
justice to the dependants. A confession of guilt by the defendant cannot automatically relieve the prosecution side
from the legal requirement to establish the facts of felony against the accused beyond any reasonable doubt. Thus
we can observe that in numerous felony cases in many states in the US the provision of plea-bargaining plays a
decisive factor to handle the case practically without any trials. This might save a lot of time of the adversarial
criminal justice system, while in inquisitorial or continental system we don’t see such practice.

Under the adversarial system, it is presumed that the evidence has to be convincing to any layman’s mind without
any special training to judge the merits or demits of any facts, and thus too scholarly or sophisticated presentation
is a rarity, if not impossible.

In inquisitorial criminal justice system, it is presumed that only people with some special training and legal
acumen should consider the merits and demerits of evidence. So in continental legal practice, the rules of hearsay
and the engagement with them cannot be of same in nature as it is in the adversarial system. Where the rules of
hearsay are stronger or weaker is difficult to tell. But the elimination process and its basis are quite different.

Under the adversarial system, in the face of a strong opposition of a lawyer, a judge may not use the rules
on hearsay at all, while in inquisitorial systems, judges may handle with hearsay wisely and prudently depending
upon the special circumstances may call for. However, at the lower tribunals where the parties even are not
interested in lawyers’ participation, in the adversarial system as well judges may function like more of inquisitors
to protect the interests of minors, children, and mentality retarded or depressed people.

The failure to face cross-examination or to give right answer in the court of law momentarily might bring
disastrous consequences in the outcome of the court proceedings. That is why lawyers in the adversarial system
wish to play more active role and in most cases destroy the ability and willingness to become straightforward in
their own cases.

In the US, the majority of the legal theorists and jurists, and lawyers, based on the Fifth Amendment of the
constitution have reached to a consensus that according to the amendment a jury has no legal right to take a
negative attitude to the defendant’s invocation of his or her right not to testify. Moreover, a dependant can request
to make it clear to all juries that his or her invocation of right not to testify should not be taken as a negative
inference to him or her.

In England and Wales the Criminal Justice and Public Order Act 1994 allowed to take negative or positive
inferences depending upon the forthcoming behavior of the dependants in the court of law. In Scotland under
the rule of criminative circumstances such provisions were in force long ago. Is it a fundamental right for
dependant to keep complete silent in the court still remains unanswered? If a person has been accused for the first
time, then court mat take one stand and for others court may take different stand. To say that dependents have lost
their right to be silent in the court of law would not be a correct analysis of law. In fact, this depends more on
facts of a case rather than the laws applied to those concerned case.
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Comparisons with the inquisitorial approach
How cases have been revealed under what jurisdiction is a fundamental issue than simple approach to the laws
and facts of a concerned case. Formal differences in these approaches may not play any substantial role in the
process or even in the outcome of the process. Of course, the question of jurisdiction need to be settled before any
case starts proceeding in the first place. Formal differences in the way of starting and dealing the cases may
remain questionable for many obvious reasons coming out from the laws and facts involved in them.

It is rather a speculative matter that if the cases were started differently, then outcome also might be different. In
any mature system of law and justice, outcome or result of a legal dispute does not really depend on how and
where a case has started its journey first; it depends how the process has been conducted and any diligent
procedure would lead to almost the same result or consequence.

Many supporters of the adversarial system tend to claim that the legal proceedings under this system cannot be
misused so easily because the parties involved in the process are more vigilante than in the inquisitional system,
where the court and prosecution take the heaver burden to discharge the case or deliver the justice. Apparently,
this is a very persuasive argument, but in reality it is not because the scope of manipulation of laws and facts is
wider in adversarial system than in the inquisitional system of justice.

How to avoid a costly and time consuming trial proceedings is also a fundamental question for the parties
involved. In many cases pre-trial settlements are better option for the parties concerned, but the lawyers
adversarial system would not allow you to get benefits from any prompt pre-trial settlements approach. In fact,
in real life in any organized and civilized society most private litigants are capable to settle their disputes
amicably, if the court’s direct and supervision is in right direction and lawyers are not allowed to play games with
the parties involved.

Many critics of inquisitorial court systems say that in this system the court are very formalized and
institutionalized and put ordinary people in disadvantageous position to deal with their cases. This is an argument
for the sake of argument. The courts under the inquisitorial system of justice are rather quite accessible and
affordable, if you have a genuine case. Of course, if your case itself is dubious or heinous against someone, then
you have to face some more trouble with inquisitorial court systems, while you can get away with such an
unwarranted legal dispute in the adversarial system.

A lawyer under the common law trial system gets undue opportunity to play with the parties involved in any legal
dispute or case. Lawyers under the adversarial court system argue that they need uninterrupted and ample
opportunity to uncover the truth in the courtroom like a scientist does in his or her research laboratory. This

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argument sounds very appealing, attractive, and worthy to follow, but in reality this has already brought a
disastrous consequences in many countries like ours.

In the name of the discovery process leading to the truth or revealing new facts relevant to the case, the lawyers
and their crooked buddies may discredit many genuine evidences and trustworthy witnesses, who may also fall
victims of the court proceedings. Many investigative judges may find themselves helpless in the face of
aggressive lawyers in the court of law. This is because in most cases, the parties involved in any legal dispute
carry out an uneven fight in the court and the judge is a very weak referee under the system of typical English
Common law.

The process of agreement and disagreement between the lawyers representing and contesting parties rather play
the instrumental role in the outcome of the legal battle and the entire process of trial may remain under the control
of the lawyers, whose vested interests know no legal and ethical boundaries, especially if those concerned lawyers
and barristers are renewed with political connections.

Another argument very often we hear is that in any court trial or procedure a jury of one’s peers either may be
incapable of doing justice to the laws, facts and parties concerned or may be even more impartial to some party.
This can happen in any case or in any system. If the governmental system is honest and court system is
incorruptible than an officially appointed government inquisitor-judge and his staffs or peers can deliver a better
justice to the people than the lengthy process of making agreements and disagreements between the lawyers
through whom we need to get an outcome or result of legal dispute. This is the reason why we can see that in the
US court system the right to a trial by a jury of one’s peers play so important role despite the fact that they have
no legal expertise or experience in relations to the concerned laws applicable to the case. By the way, this is a
right guaranteed by the American Constitution based on an assumption that a collective of good citizens with
good conscious cannot reach to a wrong decision, when someone’s life is at stake or an evil of disproportionate
scale may inflict on some accused person of any grave offence or felony.

The system of plea bargain and settlement outside the court might have dangerous consequences for a weaker
party to a legal dispute. That is why the proponents of inquisitorial justice system believe that the system of plea
bargain and settlement outside the court is detrimental to the very concept of justice. People with stronger position
and political connection can use the plea bargain and settlement of cases without direct supervision of court
against the public interests and make the governmental system weaker and discredited. This is why we don’t see
the plea bargain as a form of dispute resolution or justice in the inquisitorial system.

In a vast majority cases the plea bargain and settlement of dispute outside the court without any trial lead to
practically miscarriage of justice or to any grave injustice. In the dependant is poor then his miseries may know
no bounds in the rest of his life. The existence of the plea bargain system provokes the prosecutors to bring
inappropriate or disproportionate charges, which are neither warranted nor fair in regard to rule of law or justice.
As a result, we can see many pervasive ways of dealing with the system of plea bargains bringing unfruitful
results to the parties concerned.

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Practically imposition of plea bargain is also possible when the dependants do not know the real laws applicable
to his accusations. On the other hand, canning wrongdoers or offenders may misuse the provision of plea bargain
easily. Moreover, staunch proponents of having inquisitor-judges in the court system tend to argue that otherwise
judges would feel helpless even when they see that a grave injustice has been done through the adversarial system
of court. Even a panel of judges may sit idle when lawyers or laws have been taken away someone life, liberty,
and happiness immediately without giving any other thought to the concerned case.

The adversarial system is practically incapable of doing justice to many complex technical issues related to
science, technology, or even tax or accounting regulations. Lawyers are very often completely ignorant and
arrogant to many complicated scientific issues and may try to make them irrelevant to his or her concerned case to
win a award through court, whose hands are also very short time to time. The issue of resolving cases
appropriately and accurately is not simply a matter of naive use of legal jargon.

The juries encounter many complex technical cases in the adversarial system from where they cannot make any
time to learn something profoundly to be used later on, as many of them work as juries for the first time or couple
of times during the entire life-time. Thus possibility of unjust outcome of such a court procedure is rather very
high. On the other hand, in the inquisitorial system, judges are usually accustomed to deal with many technical
issues again and again, and they understand the parties better and the degrees of manipulations of laws and facts
by the lawyers.

Thus the inquisitorial system offers a better alternative to the typical English Common law system, which
provides too much opportunities to the lawyers to delay the process of delivering judgment usually needed for any
party or to all parties in the conflict. However, the idea that the lack of understanding of the evidence presented in
the court of law is not completely unfounded. And here also the adversarial system is in no way a better
alternative to the inquisitor-judges. Moreover, the judges in inquisitorial system may find it easier to deal with
similar types of cases again and again and may face many technical difficulties including tax, forensic, or
accounting related matters successfully. In the adversarial system the evidence may remain confused or
manipulated by the lawyers all the time, while inquisitor-judges may block or stop such arrogance of any party
related to the litigation and/or the lawyers and barristers involved in the process.

An inquisitor-judge gives detailed and persuasive justifications for his own verdict or judgment, while in the
adversarial system judges rely more on the arguments of the lawyers. Moreover, verdict in inquisitional case must
include written justification by judges. As a result, all concerned parties get fairer chances to reason with the
written arguments of the inquisitor-judges, rather than simply assert or claim that the concerned judge was bias or
took bribe from any party.

Even if any substantial new evidence emerges after the verdict or judgment has been delivered through any
inquisitorial system, the defense and/or the prosecutor get better and clear opportunity to go for an appeal well
grounded rather than simply blame or criticize the process itself. If the verdict or judgment has been poorly or

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improperly reasoned in inquisitorial system, then it is quite visible, as unlike the adversarial system inquisitor-
judges usually do not rely heavily on the arguments perused by the lawyers in the court.

In adversarial system with wide use of jury the process itself can never be quite transparent as in inquisitorial
system, where inquisitor-judges have to make everything clear for all parties concerned. In the adversarial system
neither defense nor prosecutor actually do much other than looking for opportunity to find mistakes of the
opposition. This is a very bad culture quite similar to the partisan politics. In many cases, under the adversarial
system appeal usually been filed for the sake of appeal without any kind of good merits for the appeal. In the
inquisitorial system such wild scope of appeal is also not there, if the inquisitor-judges work diligently and
honestly.

Demerits of using a jury in criminal Cases

The judges beings the so-called impartial referee between parties under the adversarial system practically make
the entire judicial system ineffective and unpredictable, while we know that a major function of law is the
predictability of the consequences of actions or crimes committed by the perpetrators. Determining the actual
facts relevant to the concerned cases is practically the most important work for the court. An inquisitorial
system this work can be done properly and accurately without any unnecessary delay as the court and judge
actively take part in the process, while in the adversarial system it is like a wild guess of the parties, which bring
completely different versions of the story what really happened and by whom.

With the civil law system in place under the chair of the inquisitor-judges the trial process and the delivery of
judgment in not only transparent and well augmented by the judges themselves, the scope of the creation of
concocted evidence and its use is also very limited. Lawyers may lose his license for using falsified or concocted
evidence, while in the adversarial system court can take little action against the lawyers. The court may only refer
the issue to the bar of the lawyers, who then become their own judges. This is fundamentally a flawed system to
deliver justice to the public or people at large.

To minimize the demerits and disadvantages of the adversarial system of justice, some countries including the US
practically use a quasi-inquisitorial system for hearings cases of misdemeanors such as traffic violations and
domestic violence to save the time of the court and the party concerted. However, these cases can be considered as
summary trials rather than regular court procedure under the civil law system. These summary trials are called as
non-adversarial way of settling legal issues. However, presence of any summary trials in the adversarial system
has not been taken well by the lawyers’ communities, who regard it as a violation of fair and just system of
delivering justice. Many critics of inquisitorial system even try to portray the entire civil law system as a summery
trial of justice and according to whom only adversarial Common Law system may serve well to the causes of
justice. In fact, many of these critics of Civil Law system of justice tend to trivialize the theoretical and practical
distinction between Common law based on primarily on precedent-based case law system and Civil Law
traditions based on statutes-based system.

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The statues-based inquisitorial system has narrowed the gap between the substantive law and adjective laws,
which are primarily regarded as procedural laws. For the inquisitor-judges it is not fundamental whether the
concerned law has been found in substantive law or procedural law. Thy are interested in fair trial with
accordance of laws or with accordance of the interpretations of laws give by higher courts or his predecessors
with higher capacity. Here a living and insane mind with fair and honest judgment takes the precedence of all
other secondary sources of law such as customary law, precedents or judge-made laws.

The judges should have the capacity based on laws how to determine the criminal enquiries and trials without
giving much thought how harsh or light punishment they can impose on the perpetrators or accused. That is not
the purpose of justice. As the laws are not the same as justice, so judges should have enough room to find out
right decisions without any fear of intimidation on behalf of any lawyers or lawyers’ communities, who work
primarily for financial or other mundane gains.

The position of a judge is quite different than any other party involved in any legal dispute. If lawyers think that
they should have the right to dictate to the judges then the entire purpose of delivering justice would automatically
bound to be jeopardized. And that is what has been happening with our colonial system we have inherited from
the English laws based on adversarial system.

There are many dichotomies in applying the substantive laws in regard to many rules and regulations coming
from the procedural laws. But the lawyers should not be allowed to defeat the purpose of justice and the role of
judges in finding right judgments in the face of such dichotomy. Lawyers working under the adversarial system
do not see even such dichotomies of law where substantive laws impose very harsh punishment and judges find
themselves help people who were caught mistakenly or wrongly punished.

At present intersection of laws of substantive character and adjective nature play very vital role in deciding cases.
So without having enough power and prestige, the judges cannot deliver justice and court proceeding becomes a
mere game of fighting of words between the solicitors or attorneys. This is a dangerous legal climate we need to
change by introducing reforms that we urgently need.

Usually we think that all international tribunals follow the system of adversarial form of justice. However, this is
not the real picture of international tribunals attempting to punish the heinous criminals involved in crimes against
humanity, genocide, gang rapes, ethnic clanging, artificially creating famine and so forth. In fact, only by using
techniques of adversarial system even the Nuremberg Trials and the International Criminal Court could not do
anything.

That is why the techniques of inquisitorial system have been incorporated in it and the professional career judges
were allowed to have more rooms in the process of justice. Even the pre-trial examination and investigation by the
International Criminal Court is indeed a major feature of inquisitorial method of justice and it has been proved
that a number of US precedents were fearful of that system and declined to become a party to ICC.

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Criminal justice in France

The inquisitor- or investigating judges are called juge d‘instruction, who are not the simple references of the
‘games’ played by the lawyers in the court of law. Even the activist-judges under the adversarial system cannot
play that important role as an inquisitor-judge can do in France or some other civil law countries. Manipulation
of laws and facts by the lawyers in any criminal case may led to dangerous consequences that we have been
witnessing in our country as well. Professional or white-collar criminals are practically in rampage in many
societies, including ours. The very concept of investigating judges may create some fear in the minds of the
criminals, who may think twice before committing serious or dangerous crimes.

Under the inquisitorial system in France, the investigating judge may work like a deterrence to heinous crimes or
crimes with severe cruelty. Judges have full power to order and carry out his or her investigation into severe
crimes. A full and complex enquiries conducted under the investigating judges may lead to early discovery of the
facts of a committed crimes, and criminals may not find enough time and opportunity to go for some cover up or
cannot commit further crimes. As an independent judge and a competent member of the judiciary separated from
the executive branch completely may work decisively and effectively to deter crimes yet to be committed. The
Office of the Public Prosecutions in France has no right to intervene into the judicial affairs carried out by the
investigating judges, who can seek help from the Minister of Justice, which controls the activities of the public
prosecutors.

However, investigating judges cannot do much with the cases, which remain outside of their investigation. But
their style of work and effectiveness impress the media and the Ministry of Justice. In 2005 alone there were 1.1
million criminal judgments or rulings in France. But the investigating judges could only take care of 33,000 cases.
Here the statistic cannot reveal the truth of the matter and the effectiveness of the investigating judges and their
honesty remained practically unquestionable. The law enforcement agencies, such as police and gendarmerie, and
also the public prosecutors work under the direct supervision of the investigating judges. The procureurs are duty
bound to help the investigating judges. .

Under this kind of judicial activism within the system of Civil Law traditions a vast majority of criminal cases are
investigated directly by the judges, who by themselves question the witnesses, interrogates the suspects, and order
further investigation when it is necessary. Here we need to appreciate fully that the investigating judges are not
there to prosecute the accused or to give sentences to the criminals.

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Unlike in the ancient Greece they are not the judgment-finders, they are fact-finders based on which it is easier to
do justice to all concerned parties to the cases. When some investigating task has done as a fact-finding mission
by the officials of the police forces or any agency other than the members of the independent judiciary, we cannot
hope any better and unbiased treatment of the concerned facts without which justice cannot be delivered.

The judges being the members of the independent judicial branch usually give very patient hearing to
the prosecution and the defense, and also take care of his or her reputation as a judge. Moreover, the scope of
appeal may put judges under a reasonable pressure and because of that pressure judges do not try to act arbitrarily.
Any reasonable request to judge get better treatment than to a bureaucrat, who takes the issue as a matter of his
power vis-à-vis others of his class. Still a limited scope of inquiry remains in the hands of the justice department,
which is under the executive branch of the government. Thus judge cannot simply open and fine and give an order
of criminal investigation sua sponte kind.

The power and responsibilities of examining judge has never been the same. For example, in the past, an
examining judge alone could order committal of any accused. But the power was neither not unconditional nor
final; an order of committal of an accused was subject to appeal. However, a unanimous decision of the judges of
a committal of an accused has to be regarded as the final order of the court.

Under an adversarial trial with a by jury system an examining judge may accused a suspect by issuing a charge
sheet. This is also a final order or decision. However, for an examining judge it is not mandatory that he or she
must sit on the trial court over the same case. In fact, a different judge is more preferable for a vested case under
trial as the examining judge might have developed a prejudice against the accused. Here the neutrality of the court
and judge has to be maintained by the different benches of judges and by allowing ample opportunity to the
defense for rebuts their seems to be fit for themselves.

Using or employing an examining judge under the adversarial system of trial by jury is in fact a rarity. In rare
cases, where the grievousness of the crimes are very serious and the severe crimes, e.g., murder and rape with
extreme cruelty are quite apparent, or the huge embezzlement and misuse of public funds, and corruption has
already been revealed, then employment of examining judge might be warranted by the public opinion as well.

On the other hand, where the evidence is very weak and witnesses are apparently not genuine at all, those cases
usually don’t reach to the trial phase. On the very weak and dubious procedural grounds a case may be dismissed
at any time by an investigating judge. However, examining phase should also see some logical conclusions as in

12
French justice system, until very recently, the option for guilty plea and plea bargaining was completely out of
question. In recent years where maximum sentence is only one year imprisonment, in those cases only
guilty plea and plea bargaining may have some room. In French law, usually the cases where the prosecution is
almost certain about winning a conviction, then only they take the case to the trial phases. Unlike in the US, in
France the guilty plea and plea bargaining is not at all a fashionable outcome in the court of law.

Administration of justice and Rule of Law: From Philosophy To Reality

The inquisitorial procedure in Europe is a legacy of almost one thousand years old. In terms of Islamic legacy it is
much more older. In fact, not the criminal justice system occupies any bigger place in Islamic jurisprudence; it is
the administrative justice that controls the vast majority of cases in the court of law. Any legal dispute has been
taken as a matter of civil disputes rather than going for incarceration of the offenders. Only a few crimes have
been regarded as an attack on the entire society or state. This lessons had been forgotten by the Muslim jurists
many centuries ago, and the English Law traditions brought too many issues under the domain of the criminal law
and criminal procedure.

The Pope Innocent III has issued a series of decrees to reformed the ecclesiastical court system at the beginning in
1198 based on which a system of new processus per inquisitionem (inquisitional procedure) had emerged in the
line of Muslim mainstream thinking of division between the criminal issues from the civil matters. With the
arrival of new decrees now an ecclesiastical magistrate was empowered to summon any accused or dependant
without sending any formal accusation in the first place.

A defendant or accused cannot be regarded an offender or criminal automatically. But the criminal process may
serve as a means of character assassination of an innocent person with on evil intention. On the other hand,
attempts to criminalize an act or a person may make someone a hero, who might be a symbol of worship for many
others because of many wrong reasons. A good form of administrative justice might be a remedy of many
demerits of criminal justice system, which can never be a perfect one.

Administrative system of justice has also many loopholes and defeats, but as it handles only with internal affairs
of some institutions or matter of relatively insignificance in terms of policy matters or financial affairs, so speedy
resolution of disputes under the system of administrative system may save as a tool for many people to safeguard
their rights and honor from the assault of high officials or people in power. But it can be misused as well by clear
and shrewd people. Thus the administrative system of justice is also a double-edged sword, which needs to be
used carefully. As the process may demand some kind of secrecy and confidentiality, so the entire process might
be detrimental to a fair and just system under the regular or formal justice system under the principles of the
independence of judiciary.

To avoid the defects of the administrative justice system, the proponents of the adversarial system of justice tend
to allow the system of administrative justice as small room as possible. The Fourth Council of the Lateran in 1215
for the first time expressed its dismay about the adversarial system of justice and refer strongly that judicial

13
process should be carried out under the principles of inquisitorial methodology. For the judge-inquisitors it does
not really matters whether they work for the administrative tribunals or for the regular civil of criminal courts.

In the medial era, especially during the twelfth and thirteen centuries judicial powers were taken away from the
church under which many cases were resolved not with the help of state-laws, rather with the help of
interpretation of biblical understanding of sinful and virtuous acts and right and wrong. The state authorities
gradually had started to forbid clergy from conducting any trials of criminal nature. As a result, in the most vast
areas of the continental Europe, the so-called ecclesiastical courts had started to operate under the inquisitional
procedure and clergy can only pray for people for the forgiveness of sinful acts. Confession of any crimes to the
clergymen can be kept in secret for all time under the guise of redemption or reformation of soul through a
spiritual healing process. French was a leading country in continental Europe to make a clear distinction of
different kinds of judicial system and keep the church at bay from conducting any trials. In France, the courts
were formulated the parlements directly and employed judge-inquisitors, who could work independently from any
intervention of the executive branch of the government.

An ecclesiastical court with its own initiative could summon and interrogate witnesses openly or secretly to
facilitate a fair system of testimony for the concerned parties and used to keep them up-dated whenever necessary
to avoid any foul play by the lawyers of officials working for the court system.

Even in administrative process of justice, the one we mentioned above (the Council of State), the entire litigation
proceedings were/are kept in writing to avoid any kind of manipulation later on. When the most of the judicial
procedure is conducted in writing and informed to the partied immediately then really we can expect a lot of good
delivery of justice for all concerned parties.

When the plaintiff and dependant can have direct access to the court proceedings that only make the justice
system fair and transparent, it also eliminate many factors contributing to the wider scope of corruption that we
have been witnessing in the adversarial system of justice. When court can initiate its own course of procedure by
asking questions directly to the plaintiff and the dependants, then it paved the ways of speedy trial without
comprising with the principles of justice. When not the lawyers, but the judges decide that enough questions have
already been asked and appropriate creditable answers have already been recorded then the possibility of using
delaying technique cannot work in favor of corrupted lawyers, and even dishonest judges.

In the case of administrative justice under the inquisitorial system even one or more parties may be absent from
the court and that may not at all hinder the process of justice in the court. Appearance of any party may or may
not be dictated by any lawyer or litigants; the court and the judges can take prompt decision in regard to the
appearance of any party in the court of law. The formal procedure and technicalities of any case or court should
not hinder the causes of justice; otherwise we will see too many cases are waiting for resolution for too long and

14
because of time factor alone no justice can delivered on time. Here is the principle of justice delays means justice
denied.

In fact, standards maintained in the system of administrative system can easily reveal the condition of health of
civil and criminal justice in the court of law. An administrative court is aware that it needs to make disputing
parties happy or at least to a kind of agreement, otherwise it would be difficult to uphold the ruling, order or
judgment of the administrative court. In most cases you can go for an appeal against a decision of any
administrative court. For the cases, which have been decided through some arbitration system or tribunal, any
provision of appeal might be absent. In the final analysis, cultural levels of the court systems and overall
sociopolitical and economic stage of development determine what would be the standards of the justice in
different types of administrative courts.

With the downfall of Muslim military forces and political institutions, almost the entire Muslim world went
through total subjugation by European colonial empires. The Europeans first introduced a normative legal code of
conduct in the Muslim countries. The normative acts and legal codes adopted by the European colonizers for the
Muslim colonies upset the balance of legality and morality for a functional Muslim society. Many Muslim
societies did not know how to respond to the many prohibitions brought by the Europeans.

For example, the Egyptians could not see the benefit of the Napoleonic codes to the Egyptian Muslims and their
state. The Napoleon codes had been used to develop a legal system in and around France. The Magna Carta 1,
adopted in 1215 by King John of England, served a similar purpose for the English people. Clause 39 of the
Magna Carta reads, “No free man shall be arrested or imprisoned or diseased or outlawed or exiled or in any way
victimized, neither will we attack him or send anyone to attack him, except by the lawful judgment of his peers or
by the law of the land.”

Until now we celebrate this legal document all over the word without knowing that the Magna Carta as a whole
was a great failure to ensure freedom and prosperity for common men, especially women, slaves, and children.

“If at the death of a man who holds a lay ‘fee’ of the Crown, a sheriff or royal official produces royal letters patent
of summons for a debt due to the Crown, it shall be lawful for them to seize and list movable goods found in the
lay `fee' of the dead man to the value of the debt, as assessed by worthy men. Nothing shall be removed until the
whole debt is paid, when the residue shall be given over to the executors to carry out the dead man s will. If no
debt is due to the Crown, all the movable goods shall be regarded as the property of the dead man, except the
reasonable shares of his wife and children.” 2

In many Western countries women were not allowed to have or claim absolute ownership over property and bank
balance for a long time without having a legal guardian involved to the property and bank balance concerned.

1
It is believed by many historians that the Archbishop, Stephen Langton has written the original text of it. It was legally valid
only for three months and subsequently it was revised several times and progressive provisions of it hardly had been
implemented at the court of law. Moreover, as a whole its provisions had protected the interests of the so-called equals only. .
In: http://www.fordham.edu/halsall/source/magnacarta.html
2
Article 26, Magna Carta, Revised Edition, British Library, 1989. In:
http://www.fordham.edu/halsall/source/magnacarta.html

15
Without the consent of her husband, a wife could not even open a bank account and spend money from the
account. This was a common scenario in many Western countries just over a century ago.

However, through positive law system i.e., by codifying rules and regulations in every aspect of life the Western
world has overcome these types of legal dilemmas. Western women had to strive and struggle in the domain of
politics and economics to achieve their legal and commercial rights to empower themselves in the face of male
domination. However, this ultimate freedom was not without some serious costs to the family: it ushered in an
endemic breakdown of family system in many Western societies.

One of the most progressive articles of Magna Carta is possibly its article 38 that says that “[n]o official shall put
a man on trial without his unsupported statement, without producing credible witness to the truth of it.” However,
it was either an ornamental article of the Magna Carta no it had never been applied in the British India or any
other English dominion.

Most Muslim nations were either silent spectators in the ongoing political and legal battles waged by the Western
women against their male folks or wished to follow blindly the same kinds of rules of games in their respective
countries. As a result, many Muslim countries have lost their safety net traditionally provided by Islamic customs
and values on the one hand, but on the other, they did not achieve any substantial positive changes in existing
Muslim legal system.

Islamic legal system has some fundamental differences with any other system of law in regard to dealing and
ensuring all kinds of property rights for daughters, wives, and mothers. However, most of those legal postulates
are either not codified or shrouded with many ambiguities in the imagination of a vast majority of Muslims. As a
result, when it comes to the complexities of practical implementation of laws, then prudent and wise opinion
and/or verdict hardly can be found. From historical perspective, it appears that Muslim jurists wished to have a
legal system combining the features of common law system and traditions of civil law of governance based on
wider perspectives of rule of law aimed at the spiritual salvation and justice for all.

Islamic legal vision is not limited to a set of ideals or ideas, rater it is a universal world view capable of finding
reasonable solutions to almost all difficult problems of any age ranging from agrarian society to knowledge-based
and technologically-driven highly industrial society. In this regard most Muslim communities of modern era have
failed miserably to demonstrate that Islamic law is the only alternative to the existing dominant powers that have
been destroying ecological balance and degrading human dignity of indigenous and non-white people around the
world. Moreover, the level of socioeconomic development and industrialization process in the Muslim world was
not at all favorable to the emergence of a better legal system than any Western system either based on case-made
laws and/or enacted laws promulgated by the legislative bodies that has been protecting vested interests of richer
sections of the population. Furthermore, in most cases existing legal and judicial systems in the Muslim world
based on the societal process are either grossly inefficient or completely inadequate to deal with urgent political
and legal disputes and controversies at hand diligently and honestly.

In the absence of a strong precedent system based on which justice could be delivered quickly and efficiently,
Muslim legal systems in place are either too expensive and/or corrupted to bring any substantial benefit to
ordinary masses, especially to the poor and downtrodden people. This is not a Muslim legal phenomenon; this a
phenomenon prevalent now in the entire world where poor and underprivileged are being seriously discriminated
in the court of law. Overemphasis on some procedural matters ultimately frustrate many objectives of quick and

16
timely discharge of justice to the aggrieved parties. There is also serious confusion about how to use the sources
of Islamic law as positive laws enforced by state agencies directly.

The fundamental sources of Sharia may appear like a kind of positive law to regulate conflicts of interests
between the parties at the court of law. In terms of the “Pure theory of Law” it might not be so difficult to find
some “Basic Norms” to regulate human behaviors on day-to-day basis, but without detailed statutory laws, courts
cannot reward or punish the concerned parties involved in particular cases. Only by using the basic sources of a
particular system of law to discharge justice in the field of property rights and also to try to have a fair criminal
justice system for all is both dangerous and ineffective because creation of new laws always demands use of
different sources simultaneously.

“A widespread instance has existed and exists when state courts are required for certain cases to observe and
enforce the observance of the norms of another law, either religious or customary or of another state. So for
example one law may give effect to the norms of another law prohibiting blasphemy or disrespect to the ruler, and
to the norms defining the coditions for the contracting of a marriage.” 3

Property disputes need to be resolved quickly through civil procedure of justice without which a state or society
would lose the required dynamism to flourish and grow. This is a major shortcoming of existing legal system of
many Muslim countries. For example, after the death of a father, a possible unequal distribution of property
between the male and female child is not the real issue at hand, as in most cases only insignificant amount of
wealth and property usually have been left undistributed that belonged to the deceased. A Muslim father usually is
quite concerned to distribute his wealth among his heirs and/or choice of his own before his mental incapacitating
situation or serious physical illness. In case of his failure to do so, a grand parent is supposed to ensure the
distribution of property of his son or daughter among the grandchildren.

Like many other property related issues, the Quran is not explicit in this regard and some Muslim jurists are in
confusion on how to regulate such issues legally. Such kinds of ambiguity and confusion could be removed by
enacting laws or by creating precedent-based justice system. Instead of doing that Muslim ruling elite has created
legal instruments such as Figh-e-Firoz Shahi, Fatwa-e-Alamgari, Fatwa-e-Tatarkhaniya, Amal-e-Akbari, Kanun-
name, Hedaya, and so-forth. These types of legal documents cannot be regarded as codified laws as they are
mainly a fatwa-driven legal system dominated by the Faqi and Mufti. The founding stone of Islamic justice is the
Kadi system, which is completely independent from the intervention of executive and administrative powers. Faqi
and Muftis are there either to aid legislative bodies or judicial system designed by the legitimate authorities as the
representatives of people.

“The kadi cannot give judgment in favour of his near relative. On the other hand, his competence extends beyond
the judicial office, and includes the control of the property of the missing person, the orphan, the foundling, and
the person with restricted capacity to dispose, of found objects, pious foundations, and estates of inheritance. His
power to dispose goes further than that of the guardian, even than that of father; he may, for instance, lend the
money of an orphan…Finally, the kadi is in charge of public welfare in general, e.g. he forces the speculator on
rising prices of food (muhtakir) to sell; he is, generally speaking, ‘the guardian of those who have no other
guardian’.”4

3
. Woodman, Gordon R., “Globalization, Social and Religious Diversity, Legal Pluralism: Can State Law Survive?”, In: Law
Journal, International Islamic University Malaysia, Vol., 15, No., 2, 2007, p. 7.
4
Schacht, Joseph, An Introduction to Islamic Law, Oxford at the Clarendon Press, 1964, p. 188
17
There is no doubt that distinction and relationship between state law and customary and/or religious law is always
a problematic one. Even the very definitions of these laws are almost always create more confusions rater than
solve any real problem. The entire law making process in any society and state cannot be put over any serious
question of inside maneuvering for keeping some vested interest group above the law. Islam was very unique in
the regard during its journey at the beginning to side with the downtrodden people of all religions, races, and
gender. However, throughout the centuries, Muslim rulers have been distorting the very core mission of Islamic
jurisprudence. And later on colonialist took the full advantage of the situation and brought the entire Muslim
world under brutal exploitation of capitalism.

Any jurist with good legal acumen would recognize that Islamic system of law at any given time and place is
ultimately a very sophisticated methodology to be adopted and implemented for the causes of ensuring justice for
all. Such a system of law cannot be established and/or revitalized overnight. “The Historian Ibn Khaldun
describes fiqh as "knowledge of the rules of God which concern the actions of persons who own themselves
bound to obey the law respecting what is required (wajib), forbidden (haraam), recommended (mandūb),
disapproved (makruh or merely permitted (mubah)”.5 Such a complicated system was necessary not only to
ensure justice to the poor, slaves and women; it was also needed to change people's attitude toward law and
justice. As a civilization Muslims also inherited a lot of religious and tribal taboos against which they had to wage
jihad that is still continuing at different levels.

The Locrian Code regarded as the first Greek codified law in seventh century BC clearly said that women should
not have any property of their own and only their male guardian should reserve that right. In fact, by that law
women were not allowed to have any substantial independent identity including freedom of movement in public
places. Islam had reversed all that and ensured many rights to women including freedom of getting married,
separated or divorced from husband. However, even the Greeks were aware that these are not simple issues in life;
they are serious legal dilemmas to be sorted out in each and every case of conflicts of rights and interests.
Euripides6 wrote:

No worse foe than a despot hath a state

Under whom, first, can be no written laws,
But one rules, keeping in his private hands
The law: so is equality no more
But when the laws are written then the weak
And wealthy have alike but equal right
Yea, even the weaker my fling back the scoff
Against the prosperous if he be reviled; And, armed with right, the less overcomes the great

By signing the treaties with different tribes in Medina under the arrangement of the Medina Charter, and the
Hudaibiyah Treaty with the Tribes of Mekkah, the Prophet of Islam put an end to an overwhelming dependence of
unwritten customary laws for the development of a comprehensive and contemporary legal system. Despite the
fact that such a vital and virtuous prophetic tradition did continue for many centuries, the development of legal
5
http://en.wikipedia.org/wiki/Fiqh
6
Euripides (480 BC–406 BC) was the last of the three great tragedians of classical Athens (the other two being Aeschylus
and Sophocles)…. Euripides is known primarily for having reshaped the formal structure of traditional Attic tragedy by
showing strong women characters and intelligent slaves, and by satirizing many heroes of Greek mythology. See, in :
http://en.wikipedia.org/wiki/Euripides

18
system involving the emancipation of women had slowed down in the mist of rivalry between different Muslim
nations during the late Medieval era, and was completely stopped during the European colonial domination over
the Islamic world.

From theological and spiritual perspectives, Islam does not prescribe either a patriarchal or matriarchal society. In
practice though, the patriarchal legal system still remains as the biggest impediment to the establishment of
property rights for women in the Muslim states. On an individual level, neither the Muslim men nor women in
general have been doing enough to guarantee the rights to property to women in the Muslim world. Moreover,
some secularists and ultra-feminist by explaining these delicate legal issues convey a message that Muslim men in
general, are the greatest obstacles to the emancipation of Muslim women. We need to stop this unnecessary and
unwanted squabble and increase our efforts to implement property rights for women keeping our religious sanctity
and harmony in family life.

It is true that at the time of marriage, Muslim women are not allowed to take their full portion from their parents’
property to husband house. They can try to settle their disputes over property rights with their brothers and
relatives after the death of either parent or both. Another reason and argument why Muslim women should keep
their property distributed and/or diversified within her own family and husband’s family is to keep them as a
safety net for any unforeseen crisis like separation or divorce from husband and accident or unexpected death of a
breadwinner. This is why a prudent and just judicial system has to be in place so that women can establish their
ownership and possession whenever their rights are violated. Unfortunately such an equitable and fair judicial
system is absent in most part of the Muslim world.

Religiously, divorce is quite undesirable for any Muslim husband and wife. However, it is neither a prohibited nor
sinful act. Dissolution of marriage is permissible in the case of unhappy or unworthy marriage contract.

As a divorcee, whatever property a woman owned at the time of marriage and what was already in her possession,
she is entitled to keep almost all of it barring any ill motivation of owning property unfairly or in dishonest
manner. Jurisprudentially, and religiously, Islam does not encourage divorces to be settled in a court of law, if
custody of children is not the matter of dispute.

“And if ye fear a breach between them (husband and wife), appoint an arbiter from his folk and an arbiter from
her folk.” 7

A deeper reading of relevant Quranic verses demonstrates that the relationship between husband and wife in Islam
is very sacred, divinely inspired and highly valued. And it is the bedrock of the entire family system as all kinds of
pre-marital and extra-marital sex is completely prohibited in Islam. However, Islam does not do any policing on
sex life of individual, if that is within the parameters of any legal school (madhhab) of Islam or supervised by any
wise mentor8 with religious and financial integrity.

7
Quran, 4: 35.
8
Islam does not believe in any highly organized sainthood with a country wide following. However, locally pious people
have a social duty to organize and regulate the behavior of their constituencies.
19
Under the prevailing arranged marriage systems in the Muslim world both dower and dowry have played
important roles in sustaining marriages and making it difficult to obtain divorce even when it is necessary and
desirable. Islam, however, views divorce as a necessary evil to get rid of unhappy marriage. And this idea of
flexibility in marriage relation and divorce, have made Muslim marriages very dynamic and successful for many
centuries.

Under the influence of capitalism and consumerism, most Muslims today, unfortunately, are more concerned
about the amount money and wealth that would be transferred from one hand to another in the name of dower and
dowry at the time of marriage and divorce.

There are two forms of dower. 9 Both kinds of dower have to be paid by husband to wife before and/or after the marriage
signing contract. Wife can keep a portion of dower in a form of deferred payments to be paid gradually or at the time of
divorce or death of her husband. Dower as a form of immediate or prompt payments allows Muslim women to be
economically independent soon after signing the marriage contract.

However, when the young Muslim men are unemployed or employed in a low paid job, then dower as an
institution cannot safeguard the economic interests of Muslim women as wives. Another objective of dower is to
keep husband under pressure so that he cannot try to go for divorce whimsically. A huge amount agreed upon to
be paid as a dower may keep a husband away from taking decision to divorce her wife unilaterally. However,
misuse of dower system has many dire consequences for both husband and wife and many Muslim families are
not aware of the danger of abuse concerning the amount of money and wealth allocated as a prompt and deferred
dower.

Problems with the use of dower money and wealth have reached a disproportionate scale in a society because of
the widening gap between rich and poor. This dower-related problems have also given rise to a new phenomenon
of dowry10 i.e. transaction of money and wealth from bride’s family side to the groom or his family. There is no
strong religious argument why a bride’s family should gift property, movable or immovable, to a prospective
husband. Such instances, are, ironically more frequently observed in brides’ family who are financially
handicapped and vulnerable.

This is, of course, a very unethical (and definitely un-Islamic) way to use brides’ or their family’s money or
wealth to establish a new family for the bride and the groom. However, in non-Arab Muslim world it is now an
endemic problem of “bribing” young Muslim male to start a family life with a particularly incompatible wife in
terms of spiritual, psychological, and educational achievements. Sometimes these type of marriages are quite
successful in terms of reproductive function of a family. Often time, however, such marriages end up with tragic
consequences for both sides of the marriage contract.

9
“It is described in the oldest records, such as the Code of Hammurabi as a pre-existing custom, prescribing only regulations
for how it was to be handled and also included regulations for a bride price. If a woman died without sons, her husband had
to refund the dowry but could deduct the value of the bride price, the dowry would normally have been the larger of the sums.
It marks the first record of long-lasting customs, such as the wife being entitled to her dowry at her husband's death as part of
her dower, her dowry being inheritable only by her own children, not by her husband's children by other women, and a
woman not being entitled to a (subsequent) inheritance if her father had provided her dowry in marriage.” In:
http://en.wikipedia.org/wiki/Dowry
10
“The opposite direction, property given to the bride by the groom, is called dower or mahr. Normally the bride would be
entitled to her dowry in event of her widowhood, prior to the evolution of her dower rights; so common was this that the
terms "dowry" and "dower" are sometimes confused.” In: http://en.wikipedia.org/wiki/Dowry
20
In terms of historical antecedent, many Muslim males try to justify such phenomenon by arguing that the Prophet
of Islam had gifted a number of household items to Ali at the time of Ali’s marriage with Fatima, the daughter of
the Prophet. However, this is a very weak religious justification, since the underlying spirit was helping both men
and women to start a family life of their own rather than living lonely and separate lives.

“Actual statistics are hard to come by but it is generally acknowledged that the prevalence of dowry in India is a
contributing factor to widespread female infanticide. Parents who live in poverty or feel they are unable to
produce the expenses of a girl such as a dowry often practice female infanticide. To curb the practice of dowry,
the government of India made several laws providing for severe punishment to anyone demanding dowry. While
these laws give relief to a woman and her family, at the same time it also puts a man and his family at great risk.
Misuse of this law by women in urban India and many incidents of extortion of money from the husband done by
the wife and her family (this is called dowry) have come to light. The law allows the jailing of any person the wife
names in a written complaint. The elderly and children have been jailed by misuse of this law.” 11

Situation in Bangladesh and Pakistan is in no way better than that of India in this regard. We have been enacting
ineffective laws one after another with severe consequences for the younger generation seeking to establish family
life or wish to come out from unhappy and unsuccessful marriage relations. A flawed or rough start in their family
life may more likely to end up with a greater number of divorce rates like their counterparts in the West.

Still very often we can observe that Western authors and observers think that a Muslim man can easily divorce his
wife just pronouncing talak (divorce) three times at any time. It is a sheer misunderstanding of Islamic system of
marriage or a reflection of misuse of Muslim prevailing system of marriage and divorce. Even the very learned
Western authority on Islam and Muslim issues cannot appreciate why Muslim preachers are so hard to keep every
Muslim marriage going instead of breaking down the marriage relationship.

“For a Muslim cleric to condemn divorce is particularly sticking. Divorce at the husband’s instigation is a pillar of
the traditional conception of sharia, but in the West it means family breakdown. Thus a preacher adapts to the
actual, rather than imagined, behaviour of his flock and stresses values that go against uncritical respect for the
letter of the sharia, although he is certainly not a liberal. In this sense he speaks rather like a conservative
Catholic priest.”12

Here renowned author Olivier Roy shows his helplessness to understand why Muslim men should be so protective
to the marriage relations despite the fact it is not prohibited in Islam to divorce one’s life-partner or soul-mate. By
reading religious scriptures or documents Islamic provisions cannot be understood at all, if someone is not
capable of putting the literary meaning in the practical context of real material life. Islamic ethical values and
legal injunctions do maintain a very complex relationship to help each other to keep Islamic system functional and
dynamic to address complicated issues from family life to international affairs. However, since the European
colonial domination over the Muslim world, failure of many Muslim states to live up to the ethical standards and
legal mechanisms to solve the problems of Muslim communities has provided Western authors ample clues to
think that Islamism is an ideology very similar to Catholicism, Fascism, Fundamentalism, and so forth those are
of Western origin rather than have anything common with any Islamic symbolism or idealism.

11
. http://en.wikipedia.org/wiki/Dowry
12
. Roy, Olivier, Globalized Islam: The Search for a New Ummah, Columbia University Press, New York, 2004, p. 216.
21
It is not at all easy to lead a well balanced and harmonious family life without active and continuous help and
guidance from the other partner in marriage contract. During the early centuries of Muslim civilization, renowned
saints or pious people even did not establish their own family life based on marital relations. Female Muslim
saint, Rabeya Basri and Hasan Basri did not marry at all and many saints married in their old age just to fulfill a
religious obligation of having a family of his or her own. The ultimate spirit of Islam is that the entire humankind
is one integrated family descending from Adam and Eve. Reproductive process is only a fard-e-kefayah that can
be done or fulfilled by any segment of human population. But some Muslim may it as a fard-e-ayin i.e. mandatory
for all adult Muslims.

Many saints coming to this greater Bengal or North-Easter region of this Indian Sub-continent to propagate Islam
had remained unmarried till the end of their lives. “[H]e was later affectionately renamed Shaikh-ul-Mashaikh
Hazrat Shah Jalal al-Mujarrad (the last name meaning “the bachelor”, on account of his celibacy). Shah Jalal’s
date and place of birth is unclear. A number of scholars claim that he was born in 1271 in Konya, Turkey.”13
Famous Indian Sufi scholar and author Mohamad Hamidullah (1908-2002) lived a life of celibacy and so does
Turkish philosopher and Imam Fethullah Gulen (1938- ), although Islam does not prescribe such way of living to
be followed by Muslims in general. Moreover, celibacy is seriously discouraged by the major tenets of Islam, it is
not completely haram (prohibited) if that is the honest choice for someone who does not want to have a family
life and takes the entire mankind as his or her family and serves it honestly and sincerely.

Many perceive Muslim personal law as outdated rules and regulations or find them hostile to the desired liberty
and freedom we would like to enjoy as a family man or woman. The major problem here is that we can hardly
realize the revolutionary changes Islam has brought to many nations and countries leading to profound influences
on the manner and attitude that govern and shape family life, trade, and business. This historical phenomenon can
be potentially revitalized again in many Arab countries and/or heartlands of Islam in Asia and African continents.

“Unlike the British rule in India where the rulers remained separate from the ruled, Muslim rulers in India were
combined with the presence of a large proportion of Muslims in the population itself. A great many people in the
land embraced Islam, so much so that three of the four largest Muslim national populations in the contemporary
world are situated in this subcontinent: in India, Pakistan and Bangladesh. Indeed, the only non-subcontinental
country among the top four Muslim populations in the world, Indonesia, was also converted to Islam by Indian
Muslims, mostly from Gujarat. Islam was by then a native Indian religion.” 14

A person like Amartya Sen15 understands Islamic history and culture better than many contemporary Muslim
scholars with secular or religious bias.

“I had to observe, as a young child, some of that mindless violence. One afternoon in Dhaka, a man came through
the gate screaming pitifully and bleeding profusely. The wounded person, who had been knifed on the back, was a
Muslim daily labourer, called Kader Mia. He had come for some work in a neighbouring house - for a tiny reward
- and had been knifed on the street by some communal thugs in our largely Hindu area. As he was being taken to
the hospital by my father, he went on saying that his wife had told him not to go into a hostile area during the

13
. http://en.wikipedia.org/wiki/Shah_Jalal
14
. Sen, Amartya, “Islamic Star Over India” This article was presented/read at the UNESCO lecture series titled “An
Assessment of the Millennium” held in New Delhi in 1999.
15
. He is a Nobel Prize winner in Economics in 1998, “for his contributions to welfare economics for his work on famine,
human development theory, welfare economics, the underlying mechanisms of poverty, and political liberalism.” In:
http://en.wikipedia.org/wiki/Amartya_Sen
22
communal riots. But he had to go out in search of work and earning because his family had nothing to eat. The
penalty of that economic unfreedom turned out to be death, which occurred later on in the hospital. The
experience was devastating for me, and suddenly made me aware of the dangers of narrowly defined identities,
and also of the divisiveness that can lie buried in communitarian politics. It also alerted me to the remarkable fact
that economic unfreedom, in the form of extreme poverty, can make a person a helpless prey in the violation of
other kinds of freedom: Kader Mia need not have come to a hostile area in search of income in those troubled
times if his family could have managed without it.”16

The number of people like Kader Mia has increased in many regions of the world; we may see them in the deserts
of Arabian Peninsula as foreign workers or in other extreme climatic condition in Siberia or Sab-Saharan region
as indigenous jobless people. Without liberating millions of Kader Mias in every Muslim country from poverty
and insecurity no genuine economic and social emancipation for Muslim women and children would be
achievable and sustainable.

From the above discussion about the doctrinal issues and popular perceptions of women rights in Islam it is not
that difficult to appreciate that the Quran does not view men’s or women’s right separately but as a
complementary force within the family and outside that to ensure harmony and decency in the way that neither
party would find their mundane life unbearable and spiritual enlightenment impossible. In Islamic perception
social life is just an extension of family relations. A state's fundamental duty is to ensure justice and social
security for all. Unfortunately those who now talk about the civilization and/or Islamic issues very frequently are
the worst kind of violators of human rights and women rights. On the other hand, more often existing legal
systems all over the world tend to punish people who are economically very vulnerable and educationally
unenlightened.

While prison population in the USA and Russian Federation exceed two millions in either case and more than
50% of registered marriages have been falling a part in many countries of the world. These are not simple
statistics but rather great indicators of where we are moving as nations and mankind. Jurisprudentially, Islam may
serve as a great orientation in solving many of these problems in a positive manner that would allow us to be
genuinely civilized and peace loving.

“Lady Mary Wortley Montagu, who accompanied her husband on his embassy to the Ottoman court from 1716–
18, learned that women under Islamic law could own property, could stipulate provisions in their marriage
contract, and could ensure their privacy even from their husbands. None of these rights were available to English
women until the end of the nineteenth century, after which they continued to be contested. Gülen’s citation of
Montagu, the remarkable woman who challenged the West’s distorted view of Islam with particular reference to
gender, relates fundamentally to his abiding goal to promote dialogue between different cultural and religious
groups, starting within Turkey during the 1990s and currently extending around the globe. Yet, one of the primary
obstacles to this dialogue, despite Montagu’s interventions in the eighteenth century, remains the West’s distorted
view of the rights and roles of Muslim women.”17

The recorded or imaginary situation we are getting now from the print and electronic media about Muslim women
and their plight to modernism is very one sided and usually most news media overlooks the deeper problems in
regard to women's right and their economic emancipation. This problem is rooted in the colonial psyche we have

16
Sen, Amartya, Autobiography in: http://nobelprize.org/nobel_prizes/economics/laureates/1998/sen-autobio.html
17
. Bernadette, Andrea, Women and Their Rights, In: http://en.fgulen.com/
23
inherited from our former colonial masters and ignorant ruling elite. 18 It is almost near to impossible that
Westerners or ultra-secularists would understand the underlying doctrinal issues upon which Islamic norms tend
to guide human actions all the time from cradle to grave and try to make them sensible and rational at the time of
conflict or distress. However, recently some legal mind of the West has been showing some sincerity in
articulation of long lasting deep seated problems in this regard. Doctrinal understanding might be necessary, but
indoctrination to any idea with special biasness to nay gender would definitely hurt the interests of family file and
civilizational interests.

“Social observation shows that doctrinal reasoning is in fact a causal factor in the social observance of many rules
of many types of law. So if we are to understand law as a social fact we need to understand the doctrines which
are involved with these facts...We cannot understand properly another law from the internal viewpoint of our own
law. This was demonstrated repeatedly in the attempts of the British colonial power, having imposed their law on
non-Europeans societies, then to decree that the local religious and customary laws should also be parts, but
subordinate parts, of the legal systems they had established. ...Religious philosophies hold to the principle that
certain values derive from higher source than any human source and so it is impossible for humans to derogate
from them. It will always be difficult to negotiate integration where those absolute principles are involved.” 19

Absolute principles and norms are not that many in the Quran and sunnah, so Muslim scholars and jurists of all
ages tended to add some new universal principles to be followed and obeyed by all Muslims and even non-
Muslims. By doing so they wanted to have a comprehensive legal system for all. However, different legal schools
found their own way of developing different criminal and civil systems at their national levels. There is no harm
of having different decent Muslim legal systems based on Islamic jurisprudential thoughts. But failure of using
precedent system and codified rules to be followed at the court of law bears serious bad consequence for all
concerned parties. Some Muslim jurists try to urge that the customary laws and case-made laws have no place in
Islamic jurisprudence and thus everything should be based on codified laws. It is rather easy to say that Muslim
need to administer the entire system of governance and judicial system solely based on written laws based on
Islamic legal doctrines and ethics, but in practice mundane dynamics of life and urgency for justice for all
segments of people of a state demands many things to be done promptly and wisely. 20

“Islamic jurisprudence or fiqs looks to the writings of scholars, who are obliged to base their conclusions on the precepts
of the Qu’ran, the Sunna, and the Hadiths. This being the case, there is no a priori place for any civil/criminal dichotomy.
To anybody schooled in the Common Law system, the lack of court-based precedents in Islamic Law texts (and indeed
statute law as one understands it) is very striking. That is not to say, however, that there is no such thing as precedent in
Islamic Law, and the gulf may not be as wide as it appears at first sight.” 21

Islamic jurisprudence, therefore, allows a system of law to use precedents as less as possible at the court of law to
discharge justice as Islamic system should rely on more codified laws. In other words, John Candlish tends to say that a
kind of civil law system should have a closer link to the ideals of Islamic jurisprudence in terms of making laws and their
implementation. Main reason behind such argument is the specificity, rigidity, and accuracy of the ideas upon which
Muslim jurists and academicians have to articulate or act in developing a just legal and judicial system.

18
. “The distorted image of Muslim women,” In: http://www.islamweb.net/ver2/archive/article.php?lang=E&id=136603
19
Woodman, Gordon R., “Globalization, Social and Religious Diversity, Legal Pluralism: Can State Law Survive?”, In: Law
Journal, International Islamic University Malaysia, Vol., 15, No., 2, 2007, pp. 156, 157, 169.
20
. See for details, Kamali, Mohammad Hashim, Principles of Islamic Jurisprudence, Revised Edition, Islamic Texts Society,
Cambridge 1991, pp. 245-296.
21
. Candlish, John, “'Necessity' in Criminal and Medical Jurisprudence: A Comparison of Common Law and Islamic Law
Concepts.,” In: Law Journal, International Islamic University Malaysia, Vol., 15, No., 2, 2007 p. 217.
24
However, flexibility presented in the core jurisprudential ideals in Islam does allow Muslim law makers and jurists to
combine the merits of common law traditions with the advantages of civil law systems. Here lies the superiority of Islamic
vision of jurisprudence and justice. We need to make use of full potential of Islamic jurisprudence to defend all legitimate
rights of all women at every walk of life in the process of governance of a state system and family affairs.

Apart from the complexities related to vocabulary and cultural prejudices, there is a serious problem in using Islamic
tenets to protect women’s rights. Many Muslim jurists make Islamic legal doctrines too indoctrinated to be implemented
in resolving disputes between husband and wife. On the hand hand, people those who adamantly oppose any kind of
implementation of Islamic legal principles and/or norms, they do it either because of sheer ignorance or as a reaction to
many ongoing misdeeds that have been taking place in the “Islamic lands.” In this backdrop, it is quite hard to deal with
Islamic legal thoughts and Muslim religiosity even handedly.

“Some fuqaha have drawn a distinction between dalil and amarah (lit. sign or allusion) and apply dalil to the kind of
evidence which leads to a definitive ruling or that which leads to positive knowledge ( ilm) …The rational proofs, on the
other hand, founded in reason and need to be rationally justified. They can only be accepted by virtue of their rationality.
Qiyas, istihsan, istislah and istishab are basically all rationalist doctrines although they are in many ways dependent on
the transmitted proofs.” 22

Thus it is an intellectual as well as economic challenge to find a balanced and middle path to establish and protect
women’s rights with the help of hikma (wisdom, here legal acumen) that can make use of transmitted positive knowledge
from heavenly sources and keeping them compatible with the sense of positive morality based on rationality and human
decency. This is a fine line between deep-seated spirituality and materialistic consumerism through which Islamic legal
doctrines can reach to its full fruition to protect women’s rights in all circumstances and all ages.

However, no English king or even a leader like Napoleon could become a liberator for any Muslim people or
society. Moreover, many non-Muslim kings had proven themselves to be no better than a bunch of tyrannical
leaders in the colonized Muslim lands. Along with the foreign colonizers arrived the European laws in the Muslim
countries. Muslim masses in general found those laws unacceptable for their countries. There were specific
economic and political reasons behind the reactionary attitude of the Muslims toward the foreign occupants and
their laws.

The Muslim rejection of the European legal codes had also been substantiated on religious and cultural grounds.
Muslims have been examining many European legal postulates through the Quranic conceptions of legality and
morality. For example, at present all European laws prohibit slavery and polygamy, while no verses of the Quran
are categorical in prohibiting slavery, and apparently the Quran advocates a system of polygamy. On the other
hand, the Quran prohibits alcohol, prostitution, pornography, gambling, and other vices that abound in Western
societies.

The vast majority of the Muslim masses have adamantly dismissed all Western legal theories and their
experiments as either un-Islamic or anti-Islamic. This problem has remained unresolved largely because of
ideological and religious dichotomies. Moreover, there is a serious misconception that the Muslim nations might
22
Kamali, Mohammad Hashim, Principles of Islamic Jurisprudence, Revised Edition, Islamic Texts Society, Cambridge
1991, p. 10.
25
not oppose the European or American colonial policies if the colonizers were not of a foreign race and religion.
The Muslim masses, with or without any knowledge of the Quran and Sunnah, found the European colonizers to
be exploiters and plunderers of the resources of the colonies. On the other hand, during the early stages of the
Islamic civilization, Muslims occupying one another’s lands were careful not to alienate the masses from the
ruling elites. Muslim rulers were quite fearful of being recognized as violators of the Quranic principles of
governance.

The European empires introduced their legal codes to the Muslim world without knowing that they directly
harmed the religious and cultural interests of the people of the colonies. Cruelties inflicted by the Muslim kings
were mainly of an economic character, but the colonial exploitive system hit hard all aspects of the Muslim
society, especially the cultural fabrics sustained by many centuries’ old humane customs.

One can observe another important difference in the nature of cruelty and unjust policies between the Muslim
kings and European colonizers in the Muslim World. The Westerners are rather careful in their policies toward
their own people, while in most cases modern Muslim rulers all along have adopted inhumane policies toward
their co-worshipers. Gross misuse of the Quranic concept of right and wrong blocks the normal constitutional and
legal development in almost all Muslim countries. Many Muslims believe that the Quran does not provide much
room for free thinking in terms of legal reforms, and tend to put many things in terms of “God-made laws” versus
“man-made laws.”

As the Quran is not a law book, none of its verses can be totally nullified or abrogated by others. While it is true
that the Quran does not explicitly ban the system of slavery, it has stopped many avenues of slavery and has
tended to free slaves as often and as quickly as possible. For obvious economic, social, and cultural reasons, it
was not feasible to declare all kinds of slavery illegal fourteen centuries ago. In the Islamic legal system, the
issues of slavery were put under the regulations of kadis, who were duty-bound to make the slavery illegal under
their jurisdiction as early as possible.

Even the American Declaration of Independence and the French Declaration of the Rights of Man and of the
Citizen could not outlaw the system of slavery. The sixteenth American president, Abraham Lincoln, faced much
resistance to the prohibition of slavery in the 1860s. Moreover, formal legal equality did not bring much
improvement to the situation of former slaves and their families. It was not until the civil rights movement of the
1960s that any remarkable changes occurred for African Americans. Despite America’s economic development,
13 percent of Americans still live below the poverty line in the twenty-first century.

Quranic arguments cannot be used to dismiss such non-Muslim experiences as European or American
experiences. The Quran provides ample opportunity to be creative and innovative in legal reforms. For example,
there are a number of Quranic verses regarding polygamy. These Quranic verses and many others demonstrate
that Islam strove for a legally regulated family system with moral purposes. Marriage and family-related verses of
the Quran and Sunnah emphasize the implementation of various rights for women, widows, slaves, captives,
orphans, and children in general. It is mistakenly believed that the Quran protects the system of slavery and
patriarchal family life. Declaring marriage as a civil contract, the Quran intends to bring to an end all kinds of
patriarchal and matriarchal family systems.

The fact that the Quran permits women to independently own and run trades and businesses demonstrates that the
family law system in Islam is not essentially patriarchal. A comprehensive study would reveal that the Quran does

26
not endorse any kind of slavery system or male chauvinism. However, the Quranic legal philosophy tends to
avoid a chaotic situation in society by discharging swift legal reformative measures of all kinds at the same time.
This is one of the fundamental differences between the Islamic and Marxist approaches to legal issues.

One of the major objectives of the family system under Islamic law was to free salves and provides permanent
shelter to widows and children. Needless to say, like many other societies, Arab tribal systems were largely
sustained by slaves. At the advent of Islam, women and slaves were regarded as mere property and considered
soulless creatures in most known societies. Islamic principles of law do not permit human beings to be considered
soulless, and hence they cannot be treated as property. In this regard, the Quranic principles are quite
revolutionary. But a system of freeing slaves and a regulatory arrangement of Arab polygamy systems as
prescribed by Islamic law were rather reformative.

Arab tribes were even perhaps more polygamous than many other contemporary societies. In the pre-Islamic era,
most of the Arab societies were characterized by different systems of so-called unlimited polygamy. For the Arabs
of the seventh century, limiting the number of wives to four was regarded as a revolutionary step. As a
comparison, if a new law were created today in a Western society limiting a man to four girlfriends in his lifetime,
the restriction would sound ridiculous to him. 23 The main dispute is over the restrictive measures for unpredictable
circumstances. Here the main problem is related to the use of a particular legal and religious vocabulary and
cultural rationale.

In the Islamic legal system, premarital and extramarital sexual relationships are completely prohibited. Western
patter of sexual behavior is almost completely prohibited under Islamic law. Thus, the entire marital system in
Islamic law is fundamentally different from the postmodern traditional marriages in Western countries. It is
established that a marriage under Islamic law is not a sacrament but a simple civil contract, maybe even
extendable to “common-law marriages.”

The main problem here is the abrogation methodology in Muslim legal systems. Every madhhab has its own way
of dealing with legal issues, and conflicting ways are regarded as equally valid in the eyes of Sharia sources. One
can even argue that some verses of the Quran initially were intended to restrict Arab systems of polygamy and
then resulted in making polygamy illegal as well. Moreover, Muslim orthodoxy would not be in agreement with
such a proposition; a Muslim jurist would argue that the “girlfriend system,” “living together,” the “dating
system,” and any form of “common-law marriage” is the worse kind of polygamy. Besides, to the Westerners,
these issues are of purely religious or cultural matters. For many analysts, these are simply an issue of finding
precise paradigms to be used for reaching concrete conclusion, thus should not be regarded as controversies over
religious or family matters.

Most of the religiously oriented literature claims that Islamic concepts of the interrelation between rights and
duties do not permit Muslims to accept modern notions of “human rights” originated in the West, because in
Islamic jurisprudence no rights are inherent to human beings and duties always come first. Using this argument,
one can conclude that no man has a right to have a second wife unless it is dictated as a duty by court. Why
should such an intervention of law or kadi be regarded as un-Islamic?

23
. An American or European man is not legally duty bound to maintain a list of their girl friends and the history of their
sexual relations with them. In fact, either side has no legal responsibility to keep any faithful sexual relations with others.
Such a free license of sexual relations has not been guaranteed or allowed by any schools of Islamic law.
27
“In contrast with the utility-based or resource-based lines of thinking, individual advantage is judged in the
capability approach by a person’s capability to do things he or she has reason to value....The capabilities in the
assessment of social disparities, but it does not, on its own, propose any specific formula for policy
decisions....Ultimately, it is individual valuation on which we would have to draw, while recognizing the profound
interdependence of the valuations of individuals who interact with each other....The increasing tendency towards
seeing people in terms of one dominant ‘identity’ (this is your duty as an American’, ‘you must commit these acts
as a Muslim’, or ‘as a Chinese you should give priority to this national engagement’) is not only an imposition of
an external and arbitrary priority, but also the denial of an important liberty of a person who can decide on their
respective loyalties to different groups.” 24

In the Medieval Europe both criminal and administrative justice systems had been using severe coercive methods
for retribution and as a way of remedy to establish ‘justice’. However, since the 12th century, a formal accusation
was needed to persecute people for their wrongs. No legal action might be taken at all, if the offenders were not
caught for any offence directly. But accusing system and the trial process were very much discriminatory in their
character. Compare to that Mediaeval European tradition, Muslim nations were relatively in better condition
because of the fairness in administrative justice.

During the 1160s in England King Henry II had established separate secular courts to make the coercive methods
a bit relaxed. There were many signs that the English communities might go rampage against each other, so the
trial system was put under some strict regulation and the power of the churches had been curtailed slightly. In
1215 this principle became enshrined as article 39 of the Magna Carta:

“No free man shall be seized or imprisoned, or stripped of his rights or possession, or outlawed or exiled, or
deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by
the lawful judgment of his equals or by the law of the land.”

However, it took another six hundred years for the English people to see real change in this regard of fair trial. To
be fair with the Magna Carta we have to acknowledge that it contains a good number of ideals and principles,
which had served as a good orientation for the development of a legal structure for a peaceful accommodation of
warring sections of population for their rights. These ideals and principles were in quite rudimentary form to be
used for any modern-day state legal system. By the standard of the thirteenth century, the document was a
remarkable progress for the English law, which still remains heavily dependent on case-made law traditions.
However, unlike Muslim tradition, English legal system did not know how to approach differently to different
types of civil wrongs and crimes.

In England during the 19th century only, we observe that the jurisdictions of the courts were divided in the lines
of crimes and civil wrongs. A codification system had followed and the rights of defense had been recognized in
all criminal cases as well. Still the strong influence of the ancient Roman custom of arbitration could be observed
in the court of law and the executive branch of the government and the local authorities could get things dome in
its favor almost all the time. To save themselves from the defects of the adversarial system the
Scotland, Quebec and Louisianan laws assimilated some features of inquisitorial system of justice with the
Common Law traditions.

24
Sen, Amartya, The Idea of Justice, pp. 231, 246, 247
28
Inquisitorial Tribunals in Common Law countries

At present one may not find clear distinction between the lines of Civil Law and Common Law systems of justice
in many countries. In many developed and industrially advanced countries the administrative proceedings have
been conducted in a way that court’s business appears to be very similar to each other. They are similar up to a
level that we can observe that in many common law jurisdictions they practically allow judges to have very strong
voices that has been typically done in Civil Law system under a through inquisitorial model.

For example, the New York City Traffic Violations is just one of many administrative boards to deal with
offenders, who require to pay fines for traffic violations. In this process of administration of justice an adjudicator
functions in a very similar way that of a prosecutor, who questions the witnesses, render the judgment and sets the
amount of fine to be paid to the government. No appear is possible in these cases and nobody question about the
validity of the judgment and no one is allowed to get away without paying the amount fixed. In our system, two
possible outcome we can get here.
Firstly, honest and the efficiency of the adjudication might be questionable every now and then.
Secondly, violating traffic rules people would be more interested in paying bribes rather than fines to the
government treasury.
Thirdly, the so-called lawyer-activists would try to find the ways and means to go for appears against the
decisions of the adjudicators to earn some extra money and keep the regular courts overburden and dysfunctional.
Fourthly, the so-called human rights activist and supporters of democracy would tell you that such kind of courts
are the enemies of democratic rule and governance.

However, at present in all advanced and very modern democracies numerous types of arbitrations and
administrative tribunals or boards have been working efficiently and they are completely incorruptible and
beneficial for the ordinary citizens. No powerful political leader, businessman, gang-star can avoid any fines once
they are caught by these types of courts. As a result, regular courts for civil and criminal justice can work
smoothly without being in too hurry to deliver the justice in more important cases of public or private concerns.

An adjudicator cannot act arbitrarily or whimsically, as he or she needs to record of objections raised by the
parties later on. But at first the judgment must be implemented immediately to the sake of rule of law. But our
supporters of the adversarial system would tell you such provisions are anti-human rights, anti-rule of law, and of
course ant-democratic principles. Thus in our system of law and court procedures justice is just a far cry of
victims, helpless, and hopeless people with no financial ability to pursue their cases in the court of law.

29