ISLAMIC LAW PDF
for a February Thematic Workshop on Islamic Law and Protection of Civilians that took place in. Amman, Jordan. The views expressed herein are those of. Whilst the LCJ said: There is no reason why principles of sharia law, or any other 3 resourceone.info 4 resourceone.infounal. Most Muslims believe Sharia is derived from two primary sources of Islamic law: the (resourceone.info).
|Language:||English, Spanish, Arabic|
|Genre:||Science & Research|
|ePub File Size:||15.60 MB|
|PDF File Size:||11.33 MB|
|Distribution:||Free* [*Regsitration Required]|
The challenging questions of how Islamic law regulates internation- Farooq A. Hassan, “The Sources of Islamic Law”, in Proceedings of the. circumstance helps to explain why so much of sharia (Islamic law) is the Prophet and became his caliphs assumed the task of applying sharia, such as it was. The demand for a textbook like Understanding Islamic Law among law students and Understanding Islamic Law, that is, a comprehensive text, in English, by a .
In light of the observations by Brockopp, it is contended that when studying Islamic law and jurisprudence, the audience should not be restricted to either the study of Sunni, Shii or Hanafi jurisprudence, but be exposed to the foundations of all eight schools of Islamic law, which are Hanafi, Maliki, Shafii, Hanbali, Jafari, Ismaili, Zaydi and Ibadi.
A lecturer who delivers a lecture on Islamic jurisprudence should not adopt a one-sided or biased approach towards the other schools and should be able to present them in a fair and objective way. Course Outline It is recommended that the course ought to be taught over a period of 10 weeks.
The flexible nature of this manual does enable the lecturer to either shorten or expand upon the course, should he consider either of the two more appropriate. The areas covered in this manual are as follows: Overview of the sources of Islamic law 2. Understanding the sources of Islamic law 3. Application of Islamic law in Islamic jurisprudence 4.
Nasa'i, Sunan Nasa'i, trans. The sources of Islamic law: Islamic theories of abrogation, Edinburgh etc.: Edinburgh University Press, Kamali, M. The following titles are designed to introduce students with a timeline within which sources of Islamic Law formed and developed. Burton, J. Edinburgh University Press, Kamali, M. Islamic Texts Society, Sources of Islamic legislation during Prophet Muhammad Prepare: Richard Bell, W.
Goldziher, Muslim Studies, Vol. Oweiss, trans. The First Formulation of Islamic Law, trans. Bernard, M.
Calder, N. Treatise on the Foundations of Islamic Jurisprudence, trans. Abulmagd, A. London etc.: Boisard M. Tutorial Essays All candidates are required to submit one tutorial essay on the following issues below. Essay titles: Critically examine and evaluate the Sources of Islamic Law 2. Critically examine this statement in the light of Islamic jurisprudence. For the sake of convenience, these essays have also been listed in the seminar section towards the end of each chapter in this manual.
In order to assist with the marking requirements, the questions are followed by points as to what the essays should include in terms of content. The purpose of these essays is to ensure that the students have a solid degree of understanding of a subject. Analytical skills with regards to an examination of the sources of Islamic law are also assessed. The students must be able to provide a critical examination of the issues stated; moreover they should be able to assess and examine concepts and notions related to legal terminology within this subject area.
As a result of such assessments, the students ought to become capable of understanding the central concepts in sources of Islamic of law in addition to the process of evolution, development of the sources and disagreement between Islamic jurists in the extrapolation of the sources during the law- making process in furu al-fiqh.
Course Assessment Although a matter for the lecturer, it is recommended that candidates for the Sources of Islamic Law course be required to sit a three hour university examination and to submit one assessment essay. It is suggested that the following examination questions should be used as a guide: What is the theory of naskh and how it has been applied in usul al-fiqh? Please provide examples with reference to specific schools of law. Please reflect your views on amal al-Madina. How were sources of Islamic law utilised in Hanbali jurisprudence?
What are the implications of istihsan for Islamic law and the differences between istihsan and equity? What is the utility of maslahah mursalah in the formation of public institutions in early Islamic states? What is the role of urf in the application of Islamic law in specific areas of Islamic dominion?
Please provide examples of application with reference to the Indian subcontinent. What is istishab and how is it applied in Islamic jurisprudence? Alternatively, candidates may be asked to select an essay title from those provided above. In this instance, there should be no need for the candidate to submit an essay title for prior approval.
At the outset, students should be informed that a variety of primary and secondary sources constitute the Sharia. As shall be examined in due course, in addition to the primary sources, ijma, qiyas and ijtihad represent the secondary sources. Jurists have extended the secondary sources so as to include the practices of Islamic rulers and caliphs, their official instruction to commanders and statesmen; constitutional laws and internal legislation of Islamic States, both in the historic as well as the modern era.
For example, Professor Bassiouni has regarded the consistent practice of Muslim Heads of State the Khalifas as secondary sources of Islam. D, amounting to a period of 23 years. The suras contain verses, which are called ayahs in Arabic. The majority of suras with a theological character were revealed during the Meccan period. By way of contrast, those revealed during Medinan period predominately contain ayahs of a political, social and legal character. It will be useful to make students aware of the same and these are as follows: Explicit nass 2.
Apparent dhahir. For the benefit of clarity, it would be useful for the lecturer to provide an example of this. It ought to be reinforced that neither Prophet Muhammad nor any other human being had any influence over the divine book. At the time of its revelation, it provided a set of progressive principles. It advances values such as compassion, good faith, justice and religious ethics.
For example, the Koran prescribes that a Muslim must act in good faith, that he must not bribe judges, and that he must abstain from usury and gambling, but it does not specify what legal consequences, if any attach to a disregard of these commandments. An interesting point to raise is the evolution of what was considered to be the primary sources. Subsequently, during the rule of the Umayyad caliphs, emphasis began to be given to the independent reasoning of the caliphs.
The lecturer may literally define Sunna as meaning tradition or customs and before the emergence of Islam, it denoted the customs and traditions in pre- Islamic Arabia. Wael B.
How were the Sunna formed? This was as a result of traditional stories transmitted from the Prophet Muhammad called Hadiths. The memorisation and transmission of the Sunna in literary form is characterised as Hadith. The term Hadith has been deployed in the Quran 23 times in total.
The Sunna of Muhammad therefore is preserved and communicated to the succeeding generations through the means of Hadiths. An interesting point is that the Hadith consists of two parts. Isnad and matn. Students need to be asked about the difference between the two. Isnad refers to the link, the source or the chain of narrators of the Hadith. Hence a Hadith in its isnad would report the person who acted as transmitters. It is recommended that the lecturer refer to an extract from a Hadith to illustrate this point clearly.
Qawl, which means all the sayings and the utterances of the Prophet Muhammad 2. Iqrar, which denotes the tacit approval on the part of the Prophet of acts done and practices carried on by his followers.
Shabbir further states that Hadiths have been classified according to their origin, degree of authority and reference to persons. In respect of origin, the Hadiths are classified into kudsi and nabvi Hadiths. The lecturer may consider it useful in respect of the degree of authority, to classify the Hadiths into the following: Mutawatir continuous , mashhoor well known and ahad isolated Hadiths denotes the traditions continuously transferred through a long and uninterrupted chain of narrators, which are ultimately considered as genuine and authentic.
It is said that they have received universal acceptance and has been narrated by an indefinite number of men belonging to the categories of companions, successors and successors of successors. Mutawatir has an imperative character in that it bears a binding and decisive personality. Mashhoor is said to have been derived from the knowledge of the majority but is not universally adopted and has a lesser degree of legal enforcement in comparison with mutawatir.
Ahad denotes those Hadith which are known to isolated individuals and have no value in the sense of legal enforcement. The last criteria for the classification of Hadiths refer to the persons on whose authority the Hadith is received: In circumstances where the connection with the Prophet is not established, it is called mursal Hadith.
The codification resulted in the emergence of books on Hadith, which were later classified into several categories: All Sunni Muslim jurists have undisputedly accepted all of the above six Hadith authentic books. The audience could be asked to categorise the Hadith in light of the information provided thus far. Students may be asked to reflect upon the above statement. Was this always considered to be the case? How has the importance of Sunna as a source evolved?
The Sunna of the Prophet has been placed and divided into a variety. One division is what is considered to be non-legal Sunna. This is in contrast to that Sunna which relates to legal matters and constitutes an obligatory practice for Muslims. Activities such as sleeping, dressing and eating habits fall into the former category, whereas the latter includes the pronouncement of the Prophet on matters such as family laws and inheritance as well as the treatment of religious minorities.
There is a significant debate over the authenticity and accuracy of some of the Sunna and there have been comments as to the possibility of fabrication in the recording of the Sunna. Students may be asked to consider Article 38 1 of the Statute of the International Court of Justice, which represents the sources of modern international law and provides for both treaties and customary law.
An interesting task would be for the students to make a written note of the similarities between the Sharia and this particular piece of modern International legislation.
Secondary Sources Students should be reminded that in addition to the primary sources of the Sharia, there are a number of secondary sources. These include ijma, qiyas and ijtihad. There is some disagreement amongst Islamic scholars as to whether all of the above in actual fact constitute secondary sources. An example to illustrate this issue that the lecturer may use is that one view of ijtihad is that it is a strategy as opposed to a source of Islamic law.
Ijma Students may be invited to answer what they think ijma is and when it can be relied upon. A useful explanation the lecturer may give in this regard is that in order to prevent controversy and contradictions in legal opinions, Muslim jurists extensively refer to the notion of consensus ijma.
The concept of ijma is one of those that are disputed in Islamic legal practice. Bernard G. Weiss, Search for God's Law: Dec , p. The validity of ijma is based on Prophetic tradition, which claims that the Muslim community would never agree on the error. The lecturer may refer to Schacht, who claims that the concept of consensus took its roots from Medinese and Iraqi schools. It appears there are two types: According to Schacht, Shafii was a firm believer in this and this particular school of law referred to both authoritative consensus and majority consensus.
The consensus of majority is illustrated as the consensus of the majority of muftis, whose opinion should be taken into the account in contrast with minority la anzur ila qalil al-muftin wa anzur ilal-akthar. As has been mentioned above, this principle was likely to have developed in Medina and Iraq. Schacht has differentiated these two, by criteria of territoriality: Medinese consensus is mostly the consensus of local Medinese scholars and jurists, whereas the Iraqian concept is not restricted to a specific place or location but applies to any or the whole country.
The strict restriction of Medinese jurists gave rise to the concept of amal al-ahl Madina, which is viewed as one of the sources of Islamic law in the Maliki School of law. This is in contrast to the other schools who would acknowledge the consensus of any authoritative Muslim jurists. It is surprising that such a principle is not inherent in the Meccan school of fiqh and consequently in the Shafii school of law. Pursuing a comparative vision, further analogies can be drawn between the sources of modern international law and Islamic law.
Again the students may be asked to verbally describe any similarities they find. It will be useful for the lecturer to provide copies of the relevant sections of the legislation in order to assist with this exercise. An important point for the lecturer to discuss is that it has clearly been established that ijma, unlike the Quran or Sunna is not represented by or evolved in any manner from divine revelations. Ijma is a purely human exercise.
Difficult questions arise however when investigations are made in order to devise the basis of this consensus. The students could be asked to consider whether they think the concept of ijma would be stretched if it were to be regarded as analogous to modern day western liberal democracy. According to classical jurisprudence, the consent of the whole Muslim community is not required.
Does the class have an opinion on this? Ijma became a powerful force for conformity and gradually dominated Islamic jurisprudence among the Sunnis, for whom it provided stability and a constant source of authentication. Ijma, as a doctrine, represents the traditional relationship with the community, also known as the Ummah.
Do students think ijma has any limits? If so, it will be interesting to share these with the class. Islamic jurists do in fact agree that ijma has its own limits. Despite the undoubted value of ijma as a source of the Sharia, debate has centred on the constituency of the Ummah, and the form of consensus.
In order to engage the students, they may be asked to consider whether the Ummah for example, only represent Muslims, or whether the modern Islamic State is under an obligation to seek and consider the opinion of its national Muslim citizens.
Qiyas A useful operation is also derived from qiyas which, the lecturer may in general terms, describe as an application by analogy or deduction. Jalal to Yemen to take the position of a quid asked him the following question: Abdur Rahman, Muhammadan Jurisprudence: Publisher, Lahore, Pakistan, p. How would qiyas be defined in more recent times? Ibid, p M Cherrif Bassiouni, Gamal M.
Badr, The Shariah: Students may be asked where it thinks the roots of qiyas originate from. When the Prophet himself was asked to resolve difficult issues which related to the new Muslim community, he practiced qiyas.
It would appear that Abu Hanifa was the first to make this introduction. It is reported that Malik used qiyas in his legal decision-making. Shafii, in his Risala was asked about qiyas and he provided a clear explanation of this concept. More specifically, when Shafii was asked about the difference between qiyas and ijtihad, he responded that there are several types of legal rulings: When he was asked about the different opinions between the scholars who used qiyas in reaching their decisions, his response was that where a precedent existed in a case being considered, discrepancy was not allowed.
A more detailed analysis will require the students to be made aware that Islamic jurists have established rules according to which the qiyas may be adopted. These are as follows: A general definition the lecturer may rely upon is that ijtihad is a term that refers to the use of independent legal reasoning in search of an opinion. In terms of background, ijtihad conveys a sense of exertion or a struggle and has the same origins as that of jihad.
Inherent in this self-exertion and struggle are the fundamentals for reforming society and its legal norms. Ijtihad and qiyas are often used interchangeably although the former represents a wider, more general undertaking. One who exercises ijtihad is known as a mjutahid. There have been times within Islamic history when all doors towards ijtihad were deemed closed. For centuries pursuant to the inception of Islam, Muslim scholars remained reluctant to rely upon this doctrine as this implied questioning the time- honoured though static principles of the Sharia.
In order to make Islamic societies more compatible with the rapidly developing times, scholars began to advocate for the doctrine of ijtihad. Muhammad Iqbal, an Indian Muslim poet and scholar argued that reliance upon Ijtihad was not only required but was also a duty of the Muslims if Islam was to adapt to the modern world. An exercise to engage the students in would be to ask them to think of situations where this concept has been applied. Do they think this particular application was beneficial in terms of progress and compatibility with modern times?
Can they think of any situations where this concept ought to be applied?
Why will this situation benefit from this application? Students should be encouraged to critically assess the information provided in both the lectures and reading list. Below are suggested seminar structures. Seminar One: Overview of Sources of Islamic Law 1. Discuss the evolutionary processes that makes this a reality. Critically evaluate this statement.
Studies in Early Hadith Literature. Zunji was the grand Shaykh and Mufti of Mecca. Ahmad Muhammad Shakir.
Anwar al-buraq fi akikam al-furuq. A'lam al-Muwaqqrin. Subbi Ulum al-ltadith wa musualahuhu. Tartib al-mawdha'cit al-fighiyya Mecca. This study is particularly interesting due to its focus on the structures of the subjects within the four schools and encourages one to examine why they have been so aligned. Usul al-ltadith. Al-Fugala wa bubuth al-'agida al-Islamiyya. After the orthodox caliphs 1 31 Muhammad Shakir. Some are more fundamental and important than others.
Some are direct and specific in what they demand of man. Qur'anic values do not all enjoy the same degree of normativeness. One can safely say that shari'a proffers a legal path which a lawyer may follow in order to extract the rules that correspond to Islamic beliefs and values.
The Qur'an presents the primary elements of legislation and contains. Although they all belong to the divine will and are constitutive of it.
Islamic law is understood via the employment of fiqh. Despite this fact. Muhammad may be described as the corporal scripture. Islamic law did utilise philosophical techniques and methods such as analogy. Some are explicit and comprehensible on first reading. To Schacht. The law is inextricably bound with the faith. It does not represent a set of theories and rules to be utilised within the limits of social government.
Muslims have recognized the imperatives and desiderata of the Qur'an as falling into different orders of rank or priority. It is a dialectical relationship whereby the text legislates and the law formulates. Muslim scholars recognised the continuation of the prophetic safety mechanism. The dependency of the law on the text is evidently significant in the formation of the law and its development.
The primary sources the Qur'an and Sunna Islamic law is by nature a text-based law. Under the different conditions of Islam in Mecca and Medina. As time passed. The steps that the Prophet gave in utilising the Qur'anic verses to answer public needs were important guidelines that many scholars used later as methods to interpret both the Qur'an and Sunna to fit their local needs.
We can also observe that the text itself leaves room for. During the years It can be observed. It focuses on the divine scriptures in order both to create the law and to confer its authority.
The interpretive relationship between the views of the religious scholars and the Sunna and Qur'an was similar to the relationship between the Qur'an and Sunna during the early period of the Prophet's life. Despite the fact that the calibration process appears to be only an 'interpretation' of the text. Muhammad was able to draw up the blueprints of a future life pattern for Muslims. When the man died. The formulation of the law can be clearly seen during the early period of Islam.
Although Islamic law is often seen as an echo of the Qur'anic concepts and textual principles. The following is a summary of what Muslim scholars usually consider to be the categories of legal injunctions or aijkam6 in the Qur'an. The word al-Kitab indicates the significance of textual authority in the Islamic legal mind. These classifications do not always represent a clear-cut separation between law.
It therefore also implies what was composed and given by God. Next is the category which is relevant to human ethics. His messengers and the Day of Judgement. This belief is in contrast to that of many Western scholars. The first is relevant to the doctrine. And finally. These categories are subdivided into injunctions. The Qur'an. This can be seen in many examples. Muslims believe that the Qur'an was secured by the divine will and that the accuracy of the Qur'an as a document can be affirmed on the grounds that it was presented and recorded by oral transmission as well as script.
It is not seen by Muslims as purely a book of law. In the case of debt. The divine sources 37 such interpretative legislation by being silent. This includes principles such as consultations. The believers may not disagree with the injunctions and orders of the Prophet once his orders are clear.
The third form of injunctions. The first includes the general rules and principles upon which the legal injunctions are based. An example of this is the prescription for prayer and other rituals such as zakah. The legal authority of the Prophet was conferred by the Qur'an. The Qur'anic methodology in stating injunctions comes for the most part in three forms of expression: The role of Muhammad was to carry the message and to elaborate on it.
The Qur'an ordered believers to pray. The divine sources 39 Categories of Sunna as legal interpretations for the meanings of the Qur'an The Sunna's role as a legal interpreter for the meaning of the Qur'an is classified according to the clarity of verses. The Sunna specified that cutting should be just for the hand. A second kind of verse is ambiguous. Examples of this are the verses which refer to prayer. A fourth kind of verse restricts an absolute meaning. At this point.
The word 'hand' is a general concept. But the Prophet clarified that zulm here refers to polytheism. Muslim scholars tried to justify the presence of new rules and aphorisms that had not been stated by the.
Are these legal dicta and injunctions merely an interpretation of the existing Qur'anic legal rules. In addition to these Qur'anic forms of injunctions. The first is called mujmal or synoptic. The Sunna's role here was to explain such verses. This is more relevant to the generality of small and individual items. Was ijma' a new form of legislation that did not exist at the time of Muhammad? Or was it necessitated by the shifting and innovative events after his death? By looking at the commonly accepted definition of ijma'.
The entire Sunna does not signify legislation incumbent on Muslims to follow. Although some have become sources in their own right. Muslims are prohibited from following some practices that are considered as only relevant to the Prophet himself. This was particularly evident in the next source of Islamic law. The history of Sunna records a few occasions where Muhammad's judgement was corrected by the Qur'an or even reproved. The nature of Muhammad created a reflective dialectic relationship between a living individual and a divinely revealed text.
The practical directives of God's law were manifested in Muhammad's actions as a human being and thus include the influence of life skills and personal tastes. Other scholars attempted to associate all the prophetic injunctions with verses from the Qur'an.
These secondary sources are mere 'tools' which were developed by various jurists in order to comprehend fully the instructions of the Qur'an and Sunna. The Qur'an in principle is not a book of law. The notion of individual opinion was evidently rooted in the practices of the Prophet. She supported her dictum with reference to the act of fornication that is established on the same basis.
Zayd b. At the conclusion of the debate. She commented on the issue thus: The divine sources 41 we find that it designates a consensus of academic opinion on any legal issue that arose subsequent to the death of Muhammad.
Rafr and Abu Ayytib al-Ansari d. Zayd replied that he had heard it from his uncles.
Rifa'a b. It could be argued that this example does not represent a consensus. Hilliza al-Yaskuri. He called for Zayd and asked him for the basis of his opinion. Thabit25 is reported to have stated that if a man has sexual contact and does not ejaculate. A number of related questions arise in considering the actual application of ijma'. The process of ijma' probably took place following the posing of a question.
It would appear that most controversy was assuaged through the course of discussion. When the news of this opinion reached the Prince of the Believers. The term Varna' al-umma community scholars was also introduced into the old Arabic idea of consensus.
Despite its apparent errors of syntax. He refutes this criticism because he perceives the similar collective meanings of these traditions as being representative of their validity. Regarding this issue. In many ways. Ibn Hazm ? It is based on various hadiths cited by Amidi. Ibn Hazm narrated from Abd Allah the son of Ahmad that he heard his father saying: The historical background for the verse.
A further. The Shafi'i was devil is always with the individual and less with two persons asked: God willing. It might be to some of them.
When Shafi'i was asked for proof.
Islamic Sharia Law
The fact that these questions were challenged by scholars such as Amidi indicates the strong controversy surrounding ijma'. Was there no controversy surrounding the appointment of 'Uthman as caliph instead of Ali.
Yasar through his father.
Could not these hadiths be taken to indicate the general meaning of agreement. It is also observed that Shafi'i identifies two forms of ijrnd: No doubt the latter interpretation would fit the bill. The divine sources 43 question may be raised at this point regarding the agreement of Muslim scholars on errors of judgement.
I was told: Whatever they have mentioned without referring it to the Prophet should not be ascribed to him specifically. This debate is clearly demonstrated in Shafi'i's Risala37 when he maintains that ijma. This alone goes some way to confirming that they are no ordinary scholars but must be acknowledged as reliable ones..
Ali was generally perceived as the natural successor to Muhammad since he was the closest relative. The newness of the Muslim state created an urgent need for a leader who would be acceptable to all the companions of the Prophet and the leaders of the Arabic tribes. Any challenge to the authority of the new leader could be a potential threat to the entire social and political structure that had been established by the Prophet. The choice was made swiftly in the Sagila place.
Was the creation of the concept of ijma' a question of establishing a legal device to assist in the interpreting of Islamic law after the death of the Prophet? Or were there also political circumstances that required the development of such a device? If this issue was placed on the agenda immediately 'after his death'. There is often emphasis on the prophetic statement that 'Muslims should remain part of one group' and 'the one who leaves the group will end in fire'. Perhaps Ali's giving of public allegiance to Abu Bakr was partly a result of his piety but also his realisation that consensus.
According to tribal customs and traditions of heredity.. Ali hesitated in accepting the leadership of Abu Bakr. The elders of the community felt that there were more appropriate persons who were suited to the position. Islam had taken on new norms. Because there was a need for absolute agreement on the Prophet's successor. This necessitates closer scrutiny into the historical backdrop for the formation of ijma'. The Muslim group is scattered in various lands.
This could be supported by historical evidence of the major political upheaval that attended the dilemma of who was to lead the people after Muhammad's death. Abu ljamid al-Ghazali discusses ijma' in terms of the problems that may occur when a community is asked to agree on certain matters.
The divine sources 45 during such difficult circumstances. One might argue against this claim by saying that in Islam it is difficult to separate theology from practice and law from politics. One might also argue that.
He emphasises that ijma' is not a proof. Ghazali suggests a way to overcome this difficulty and recommends a mechanism that he calls mushafaha. This conclusion could be further supported by the fact that the subject of ijmd is discussed in detail in Juwayni's book on Islamic politics. The tools of mushafaha and tawcitur are. Tawatur means narration by a large number of people who inform others of what has been witnessed.
Ghazali raises the point that 'such an agreement could be as impossible as seeing all the umma partaking in one action. If mushafaha is not feasible. We may therefore conclude that the conditions for ijma' were formulated on a political basis and not devised as a legal mechanism. Ghazali maintains that individual scholars can be asked their opinion face to face. Ghazali's defence here was: Regarding the question of the improbability of consensus due to the fact that the umma could be scattered throughout many lands.
Those who lack understanding of legislative concepts cannot participate. In his second chapter on ijmd. Ghazali demonstrates his powers of persuasion and logic here as he embarks on defending the truth of the last statement of the Prophet by utilising the ilm daran confirmed deduced knowledge. Ghazali's discussion leaves little doubt that his definition of the umma does not encompass the entire Muslim community but only Muslim scholars.
Ghazali clarifies that. The mujmi'an are the umma. Ghazali also deals with the possibility that some of those people. He divides his argument into two parts. He also utilises analogy. Ghazali addresses the following question. Ghazali also seems to be interested in proving the infallibility of the umma. The divine sources 47 as the uneducated or the scholars of fiqh who are not familiar with usal. Both Shafi'i and Ghazali appear to imbue the term umma with similar definitions.
Historical ijma' has been carefully documented and treated with great respect by various Muslim scholars.
A number of questions relating to contemporary ijma' rise from the above discussion. Wansbrough and Calder suggest. How binding is it when an issue has been approved and agreed upon.
If any of the respected jurists were unable to attend. Any resultant disagreement would indicate that it might not be perfect ijma'. If there were to arise a scenario that required ijma'. This would also support our previous argument regarding ShafiTs sense of the word rids. The contributors to ijmd are scholars whose fatwa is accepted. The 'value' of silence in Islamic law seems to place significant importance on the psychological 'state' of individuals performing contracts.
This 'tacit' manifestation of will can only be clarified by circumstance. Would it be as binding as the Qur'an and Sunna? According to EP. This is best represented in the silence that is taken as acceptance. The presence of this kind of ijmer among other sources of Islamic law could be linked with the presence of the concept of silence. Perhaps the best alternative to a full ijmd would be the employment of the tacit or ijma. In contrast. Sukut refers to an individual's action of not actively expressing an opinion when involved in an action or contract that requires acceptance or rejection.
The concept is highlighted by the legal maxim that states 'no statement can be ascribed to a silent person. The Shafi'i school and some Malikis rejected this form of tacit ijmg on the ground that a silent person cannot be considered to have made a statement.
Therefore it would appear that the silent zjna' would be better placed not among this group of divine sources but amongst the next group of sources. This could explain the reason for the reservation of both Shafi'i and Maliki schools about it. This contrasts with the previously married woman. Al-Mu'allaqdt al-'ashra. The Arabic Journal of the.
Abu Ya'la al-Farra' in Al-'Idda. Concordance et indices de la tradition musulmane. The Origins of Islamic Law. There is a series of verses in the Qur'an which confirm the significance of complying with the Prophet — such as liii: See Abd Allah Muhammad Al-dirdsdt al-islamiyya.
The divine sources 49 Notes 1 El'. The Cultural Atlas of Islam. Wensinck and J. Lisan al-'Arab. Al-ljaba li trod ma istadrakathu 'Aisha 'ala al-sahaba. His book is entitled AlGhiyathi. Fi ildl al-Qur'an. Beirut Ex fasciculo lviii. Zaki Muhammad Abd al-Barr. Al-Ihkam fi usul al-ahlaim. Ubayriq who turned against Islam. July—September See Muhammad Ali al-Sabuni. Mizan nata'ij al-' Martini al-Qur'an al-lcariM.
Al-Mustasfa fi 'ilm al-usul. Stvdia Islamica. Izzi Dien. Denny x. Denny informs us that perhaps the most fateful hadith on this topic is 'Truly my umma will never agree together on an error'. Qiyas is an Arabic word literally meaning 'measurement'. Perhaps that is why Islamic legal texts provide for individual reasoning. In the case of the former. Bemand recognises two forms of qiyas in the Islamic legal framework.
Technically it designates legal analogy or syllogism. Quite simply. This encapsulates one of the important methods developed by Islamic law to deal with new cases and issues.
The theory. The essence of Islamic 'legal' syllogism lies in the onus being on the application of one case to another rather than on referring to many to conclude one case. A similarity between the two cases must exist initially. Sunna and ifInd. In defining qiyas. It is more naturally suited to the utilisation of inductive. Qiyas itself does not employ the deductive or the inductive methodology.
Bemand views it in a broad sense that can indicate both inductive and deductive reasoning. The hukm injunction can be in the form of either the withholding. A popular example of Islamic legal analogy can be found in the prohibition of alcohol. Ghazali goes on to describe the composites of qiyas and informs us that 'it requires ag. Ghazali's next comment is rather interesting and merits discussion: He proceeds from the notion that every order given by God has a cause that is more general than the order itself.
Perhaps it would be appropriate to maintain that qiyas blends rational logic with the Islamic textual invariables' nature. Each of these terms basically has the same meaning. The rational dimension of qiyas is best portrayed by al-Ghazali. This seems logical. The Arabic terms that are used to describe qiyas vary as follows: Could it be related to Ghazali's well-known rational tendency?
Because the notion of reasoning is central to qiyas. That is why it is imperative. Muhammad enjoyed the sole privilege of being permitted to fast continuously day and night. A further requirement for qiyas is that the reason or ratio legis in both cases.
This is particularly true regarding rituals that have no apparent reasoning to explain their timing. The human sources 53 Although qiyas appears to be a process which is undertaken by jurists. The reason behind the original case must be clear and known. Apart from the conditions of 'ilia. An example of this is stating that qiyas should be dealing with a legal matter and not anything else such as a lexical one.
The traditional Muslim scholars of u. Both the original and the new case should share the reason on which the injunction is to be made. Requirements for qiyas We stated earlier that the main distinguishing characteristic of Islamic legal analogy stems from the condition that it must be based on the Book or the tradition of the Prophet.
As such. I3 The Sunna justifies the shortening of public prayer on the grounds of helping any weak worshippers who are present. Misconceptions regarding objectives of judgement could.
Necessary as this action is. The permission to break one's fast during a journey is intended to remove hardship. The course of fasting can also create hardship in a variety of circumstances. Human judgement cannot be applied here. For instance. A rational cause can be covert. Hardship is an abstract concept and as such varies in definition and severity from one individual to another. They maintain that there is a need to reconsider the background to qiyas and its requirements in order to construe the fundamental legal principles that led to the permission for their application to new cases.
Maslaha represents the common good as the objective for legislation which is often stated in the Qur'an and the tradition of the Prophet.
Permission to shorten prayer and break obligatory fasting is only given to the Muslim who is on a journey. In the following discussions we shall further highlight the notion of public interest vis-a-vis the factors surrounding qiyas. The rational objective of this specification is the alleviation of human hardship. Islamic legislators deduce an injunction through analogy. What counts is the fact that the normal consequence of consuming alcohol is intoxication. The text fixed the injunction on travelling because it is a clearly overt and visible affair.
Islamic law uses similar evidence to that used by conventional law as a means of identifying intention. The physical variation between alcoholic beverages is also irrelevant because intoxication can result no matter what type or quantity of intoxicant is being considered.
The human sources 55 breaking of fast. The potential for intoxication leads to the prohibition of alcohol. The concept of reason proper. The prohibition of alcohol likewise indicates the aim of protecting the general populace from the potential threat of antisocial behaviour brought about by intoxication. Islamic law makes the following provisions for the 'ilia on which qiyas can be based.
As we have seen. The fact that alcohol tolerance varies from one individual to another is irrelevant here. If a weapon is found on the suspect.
The execution of a deliberate murderer would represent an example of this concept. The term 'commensurate' signifies that the objective targeted by the spirit of the legislation will be achieved once the injunction is associated with the cause of the legislation. Intoxication generally causes the human mind to function in a less discerning manner. Because intention is covert. In summary.
This involves the careful weighing up of what may be a misleading reason against a genuine one. A second requirement of the 'illa is that it has to be ascertainable. It must be precise and not vary according to individual circumstances. A third requirement for 'illa is that it has to be commensurate to the injunction.
They have analysed and allowed the utilisation of all modern technology on the grounds that earlier Varna' accepted various methodologies and technologies that were introduced to the Muslim community as they developed. These have been justified on the grounds of analogy with previous similar practices. Can we refer to wisdom to create new legislation? Perhaps we need to examine the 'clarity' of the purpose or wisdom of legislation.
Muslim scholars who use both textual and rational procedures have already resolved many 'new' questions. When he was asked whether analogy could be based on the grounds of personal understanding. In other words. A fourth requirement for 'ilia or reason is that it has to be extendable. In the modem period. Shafi'i maintains that personal knowledge may be based on the Qur'an. Mandi Ax who was at that time a young scholar of hadith. Isalisan is an Arabic verbal noun derived from the term basan.
An example of this notion is evident in the scenario where a person takes food because he has forgotten that he is supposed to be fasting. Technically it is associated with analogy. It is concealed and unclear. By analogy to a person who does this deliberately.
Another of his major objectives was to set up an Islamic methodology for legal judgement without straying from the Qur'an and Sunna. The basis upon which the preference is applied can be any other source of Islamic law. ShafiTs main concern in writing his book was to establish an answer to the problem of how the text could be understood correctly.
Istiksan that is based on custom reflects the richness of regional practice. Shafi'i composed his book. Amidi summarises the various definitions of istiksan. ShafiTs concern with linking legal judgement to the text led him to reject the legal mechanisms which appear to be detached from it.
He perceives istitisan as entailing the abandonment of a certain analogy in favour of one based on a stronger proof. In certain cases. The Maliki School fixed the nisab at a quarter of dinar, while the Hanafi School relies on the Hadith reported by Ibn Abbas and fixed the nisab at 10 dirhams.
It is reported that the second caliph, Umar bin A-Khahab suspended punishment amputation during the time of starvation. The punishment of Theft liable to Hadd is amputation of the right hand of the convict from the joint of the wrist most of the Scholars.
In Islamic criminal law, armed robbery is synonymous with waging war against the society. Literally means to quarrel, to fight with the intention to take away property from a person openly by terrorising either threatening to use of force or using force.
Harabah can be committed either by individual or a group of people in the form of Robbery, Bloodshed, High Treason, Dacoity etc. The verses of Surah al-Ma'ida of the Qur'an specify punishment for "those who wage war against Allah and His Prophet and strive to spread disorder in the land": Such is their disgrace in this world, and in the Hereafter theirs will be an awful doom save those who repent before you overpower them; you should know that Allah is Oft-Forgiving, Ever Merciful.
Amputation of Hand and Foot from opposite sides 4. Fornication means sexual intercourse outside marriage sex before marriage , and the punishment in the Quran is strips. The punishment of flogging is ordered in the Quran: Sunnah prescribed stoning to death Rajm for people convicted of adultery.
Islamic criminal jurisprudence stipulates certain conditions that must be met before the judgment is executed. There must be confession by four eye witnesses; it must be a voluntary confession without any element of duress.
Zina is a dishonor and violent aggression against the family of the woman. Adultery demoralizes the social order and may lead to pregnancy, abortion and the spread of harmful diseases. This is defined as accusing the chaste, innocent person of fornication or adultery.
It also includes denying the lineage of a person from his father which implies that his parents committed fornication of adultery. The punishment in the Quran is 80 strips. Because of this, it "permits good things and prohibits harmful things. The prohibition of wine and the punishment for drinking it are among the laws that clearly show Islam's concern for these matters, because wine is destructive of all the universal needs, having the potential to destroy life, wealth, intellect, reputation, and religion.
Khamr veils the intellect and obscures the moral sensibilities of a man. God says: Verily wine, gambling, idols, and divination are but the abominations of Satan's handiwork, so abandon these things that perchance you will be successful.
Satan only wishes to cause enmity and hatred between you through wine and gambling and to prevent you from the remembrance of God and prayer. Will you not then abstain? In the Hadith, Ibn Umar quoted the Prophet when he said: Jabir also reported that Prophet Muhammad said: The punishment for alcoholism and public intoxication is 80 lashes. This punishment was not provided for in the Quran. Aras bin Malik reported that when a drunkard was brought before Prophet Muhammad, he directed that the man be punished with 40 stripes with two palm branches.
It is, however, necessary for the Hadd punishment that the accused has taken wine or other intoxicating liquor by mouth. Apostasy is defined as a Muslim making a statement or performing an action that takes him out of the fold of Islam. It means rejection of the religion of Islam and acceptance of other religion either through word of mouth or through an action. The Hadd punishment of Apostate is death after being given him reasonable opportunity for repentance.
The punishment prescribed for it in the Sunnah is execution, and it came as a remedy for a problem that existed at the time of the Prophet may the mercy and blessings of God be upon him. This problem was that a group of people would publicly enter into Islam together then leave Islam together in order to cause doubt and uncertainty in the hearts of the believers. Thus, the prescribed punishment for apostasy was instituted so that apostasy could not be used as a means of causing doubt in Islam.
At the same time, the apostate is given time to repent, so if he has a misconception or is in doubt about something, then his cause of doubt can be removed and the truth clarified to him. He is encouraged to repent for three days. According to some jurists, Hadd punishment of Rebellion is Death during the Rebellion when the rebels start using force.
Qisas crimes include murder, voluntary and involuntary killings, intentional and unintentional physical injuries. Murder is considered the most grievous offense in Islamic criminal law. The Quran in surah This is the second type of punishment in Islamic Law.
This is where the culprit of the crime is punished with the same injury that he caused to the victim.He studied and carefully analysed the Qu'ran and the tradition of the Prophet to produce a unique methodology pertaining to the understanding of Islamic law. It was often the case that the consensus of jurists of one legal centre would disagree with the consensus of jurists of another centre of scholarship.
After the orthodox caliphs 29 towards religion that kept the organic forms of Islamic law alive. It will be useful to make students aware of the same and these are as follows: From Ibn tlanbal's perspective. The lecturer may refer to Schacht, who claims that the concept of consensus took its roots from Medinese and Iraqi schools. A second kind of verse is ambiguous.