Behind the belief lines: a legal positivist scrutiny of supra-constitutional status of Sharia'h in Pakistan

Abstract

The paper analyses the impact of the supra-constitutional status of Sharia'h on constitutional rights, criminal, fiscal, and family laws. The legislative and interpretative frameworks follow the legal positivist approach. However, the constitution binds the state organs to follow the principles of Sharia'h. The supra-constitutional status of Sharia'h creates overlapping legal frameworks. Resultantly, the decisions of the constitutional courts diverge from the positivist framework of laws making it open for wider interpretation as per the principles of Sharia'h. The study argues that the supra-constitutional status of Sharia'h impacts the legislation and interpretation of laws in Pakistan. The methodology used is the documentary analysis of cases decided by the constitutional courts. This study will present the analysis of the supra-constitutional status of Sharia'h vis-a-vis the positive framework of the legal system of Pakistan.