Mahasin al-Sharia wa Masawi al-Qawanin al-Wadiyya

Mahasin al-Sharia wa Masawi al-Qawanin al-Wadiyya (The Virtues of Islamic Law and the Flaws of Positive Law) is a comparative legal treatise written by the Saudi scholar and judge Atiyya Muhammad Salim (d. 1420 AH / 1999 CE) al-Lulu wal-Marjan fi Mah…+1. The work examines the comprehensiveness and moral foundations of Islamic jurisprudence while critically analyzing the origins, structure, and societal outcomes of man-made positive legal systems Mahasin al-Sharia wa Masa…+1.

Context and Scope

The treatise was composed while Salim served as a judge at the Sharia Court in Madinah and was published by the Islamic University of Madinah, appearing also in issue 21 of its academic journal (Majallat al-Jami'ah al-Islamiyyah) al-Lulu wal-Marjan fi Mah…+1. The text addresses contemporary debates surrounding legal modernization in the Muslim world, aiming to refute arguments that characterize Islamic rulings as archaic or rigid, and contrasting Sharia's systemic principles with European-derived statutory codes Mahasin al-Sharia wa Masa…+1.

Virtues of Islamic Law

Salim structures the discussion of Sharia around core pillars of excellence:

• Perfection (al-kamal) and Endurance (al-baqa'): Grounded in divine revelation, Sharia addresses human needs without requiring artificial revision Mahasin al-Sharia wa Masa…+1.
• Comprehensiveness (al-shumul): It encompasses spiritual worship, civil and economic transactions, governance, and international conduct across all times and peoples Mahasin al-Sharia wa Masa…+1.
• Leniency (al-samaha): It removes undue hardship through legal exemptions (rukhas) and pardons for inadvertent error, forgetfulness, and coercion Mahasin al-Sharia wa Masa….

The author argues that while secular philosophers define the aims of legislation as securing benefits and repelling harms, Sharia fulfills both objectives while adding a third dimension: encouraging noble character (makarim al-akhlaq) and virtuous worship Mahasin al-Sharia wa Masa…+1. To safeguard society, Sharia provides comprehensive protection for the fundamental necessities (al-daruriyyat): religion, life, intellect, lineage, honor, and property Mahasin al-Sharia wa Masa….

Salim also details the development of Islamic judicial administration (al-qada'). He shows that while simple procedures sufficed in the Prophet's ﷺ era, the framework naturally evolved under Caliph Umar ibn al-Khattab and later authorities to include specialized jurisdictions, witness verification (tazkiya), written court registries, and hierarchical levels of review akin to modern appellate and cassation courts (tamyiz) Mahasin al-Sharia wa Masa…+2.

Analysis of Positive Law

The second part of the treatise examines the historical roots and structural deficiencies of man-made positive law (al-qanun al-wadi'i) through five main topics: its historical emergence, its introduction into Islamic countries, the factors sustaining it, refutations of criticisms against Sharia, and comparative analyses of contested penal provisions Mahasin al-Sharia wa Masa….

Historical Origins and Spread

Salim traces modern civil codes primarily to the French legal tradition, which combined Roman law, Germanic customs, Catholic canon law on marriage, royal ordinances, and revolutionary legislation into the Napoleonic Code of 1804 Mahasin al-Sharia wa Masa…. He discusses how these laws were introduced into Muslim countries under Western influence and colonial rule—such as Egypt, beginning with local councils in 1856, followed by the Mixed Courts in 1876 and the National Courts in 1883, and later Syria in 1949—which marginalized Sharia courts to personal status matters alone Mahasin al-Sharia wa Masa…+1. He contrasts these examples with Saudi Arabia, where Sharia remained the governing law Mahasin al-Sharia wa Masa….

Comparative Critique

Addressing secular critiques cited by legal scholar Abd al-Qadir Awdah, Salim replies to accusations of cruelty in Islamic penal codes (hudud):

• Theft (sariqa): Positive law attempts to rehabilitate thieves through prolonged imprisonment, which places financial burdens on the state and fails to deter crime, whereas Sharia's corporal deterrence prioritizes the security of law-abiding victims and their livelihoods Mahasin al-Sharia wa Masa…+1.
• Adultery (zina): Salim highlights the strict evidential standards in Islamic law, noting that punishments like stoning were historically carried out almost exclusively on voluntary confessions driven by religious repentance Mahasin al-Sharia wa Masa…. By contrast, he criticizes positive law for treating consensual adultery as a private right rather than a social offense, which he argues damages lineage and family structures Mahasin al-Sharia wa Masa…+1.
• Equality and Blood Money (diya): He compares Sharia's fixed, egalitarian valuation of human life in blood money across rich and poor with positive law regimes that calculate compensatory damages based on socioeconomic status and earning capacity Mahasin al-Sharia wa Masa….

To illustrate the ethical dilemmas of secular procedure, the author discusses a contemporary court case where a litigant sought to invalidate his marriage contract through legal loopholes regarding illicit relations, critiquing both the legal opportunism enabled by positive statutes and the resulting harm to public morals Mahasin al-Sharia wa Masa…+1.