Introduction
Differences between Sharia Law and Common Law Tradition
Sharia Law and English Common law are two distinct sets of legal authorities which have striking similarities in many contexts despite the disparities in their geographical areas of application. Sharia Law is the foundation of Islamic Law and it borrows heavily from the instructions within the Quran as well as the famous teachings of Prophet Muhammad, also known as Sunnah (Kamali, 2008). On the other hand, Common law entails a set of regulations which were in force in the ancient English Kingdom. Since Common law is not codified, legal precedents are followed consistently to preserve the contents of the law over time. The two sets of legal footings also have significant differences if analyzed from a closer look.
Possession is generally the practice of owning, occupying or controlling a thing or property. Both Sharia Law and Common Law revere the supremacy of possession in the sense that according to the two cannons, if a person has legal ownership, then he has a right to enjoy quite possession of the property and use it as he pleases; be it in transfer or other forms of disposal. Following the existence of this principle, the law seeks to protect holders of legal title to property by punishing clandestine usage by others; especially trespass. Ideally, trespass refers to a person entering into land of another without having any lawful excuse or permission from the owner. Under common Law, the weapons that are at the disposal of a land owner against trespass are an injunction or ejectment as well as punitive damages regardless of whether the claimant has suffered any injury or not (Mattei, 2000).
Even as all these protections exist, both Sharia Law and Common Law are also prescriptive that continued unfettered possession of land for a certain prescribed period of time may lead to bona fide ownership of the land in question. This is what is referred to as adverse possession. This conception applies to protect persons who would ideally be branded trespassers if they have stayed on the property for a considerable number of years without interference from the real owner. Adverse possession is premised on the fact that a person stayed or used the property, with the knowledge of the real owner of the property and the latter did nothing to impede what could be construed as illegal entry to the property. Under Sharia Law, adverse possession is called Moulkya and it is engineered to protect the less privileged in the society (Kamali, 2008). This paper seeks to make a concise comparison of the salient underpinnings of adverse possession in Sharia Law to the Common Law Principles.
References
Kamali, M. H. (2008). Shariʻah law: An introduction. Oxford, England: Oneworld Publications.
Mattei, U. (2000). Basic principles of property law: A comparative legal and economic introduction. Westport, Conn. [u.a.: Greenwood Press.
