The Concept of Public Law in Wael B. Hallaq's Paradigm in Islamic Jurisprudence

Abstract

One of the most important issues in the field of law is the existence of public rights that differ from contemporary public law. This is especially the case when these rights are grounded in ethical principles. This is because legal scholars generally believe that modern public law is a positivist system that is disconnected from ethics. They argue that, assuming there is a relationship between public law and ethics, historically there has been no domain in which this relationship has been practically realized. In his paradigm, Hallaq believes in the existence of a public law that is different from modern public law, and he views the pre-modern history of Islamic law as a domain in which ethics and public law are integrated. Thus, he criticizes the separation of law and ethics in modern public law as a historical issue unique to the modern era. This article explores the concept of public law within Hallaq's paradigm (in Islamic jurisprudence). The central question of the article is the existence of a distinct public law within Islamic law and its relationship to ethics from the perspective of Hallaq's paradigm. The methodology of this article is descriptive-exploratory, and it concludes that, according to Hallaq's paradigm, there exists an independent public law that differs from modern public law. The difference lies in the fact that it is an ethical public law, meaning that ethics is one of its foundational elements. Furthermore, there exists a historical period in which the combination of ethics and public law was realized, and that period is the pre-modern Islamic society.