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Islamic Studiescourse code 104

Associate Degree Education ADE/B.Ed(Hons)ElementarySemester I

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Lectuere#22

By :Muhammad Imran

Islamic Law.

Introduction to Shari‘a (the divine

will as law) and fiqh

(jurisprudence)

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Out LinesIntroduction to islamic Law &Jurisprudence

Basic concepts of islamic Law &Jurisprudence

Sources of islamic Law &Jurisprudence

Nature of Differences in islamic Law &Jurisprudence

Islam is often called a religion of “law”

Islam means submission/obedience to God

That is, knowing God’s will and doing it

Thus necessary to work out the details of God’s will for practice

Theoretical knowledge about God’s nature is less important

Islamic Law

Key terms: Sharī‘a and fiqh,

Sharī‘a (or shar‘) > from shara‘a, “to mark out a path to water” > the path God marks out for humans to follow in life > the divine law for life

Fiqh: from faqaha, to understand > to seek to understand (in a practical sense) the Qur’ān and Sunna > the body of laws and prescriptions resulting from this understanding

Fuqahā’ = those members of the ‘ulamā’ mainly engaged in fiqh

Key word copmares with Law are sharia and Fiqh

Sharī‘a and fiqh

Strictly speaking:Sharī‘a = the way marked out by God for

humans to liveFiqh = the human understanding of the way

marked out by God for humans to live Fiqh is often translated “jurisprudence” Usually assumed fuqahā’ have been largely

successful in discovering the Sharī‘a Hence what is strictly fiqh is often called

Shari‘a

Sharī‘a and fiqh

Other ways of distinguishing sharī‘a and fiqh

Sharī‘a is the general principles and fiqh is the details

Sharī‘a is what is in the Qur’an and the Sunna and fiqh is what is derived from these

Sharī‘a and fiqh

Sharī‘a differs from Law in the Western sense

Covers all areas of human life Is particularly elaborated in areas of ritual

Consists of moral evaluations (ḥukm, pl. aḥkām) of actions Infringement may or may not be punished in this

world

Ahkam e shari’aThe five Shari‘a valuations (aḥkām)1. Obligatory (wājib or farḍ). (God rewards for doing and

punishes for omitting) fard ‘ayn (individual) fard kifaya (sufficient number of a group)2. Recommended (sunna, mandūb, mustaḥabb). (God

rewards for doing, does not punish for omitting)3. Permitted, neutral. (mubāḥ). (God neither rewards for

doing nor punishes for omitting)4. Reprehensible, “hated” (makrūh). (God rewards for

avoiding, does not punish for doing)

Forbidden (ḥarām). (God rewards for avoiding, punishes for doing)

The valuations are also expressed as:

Permitted (ḥalāl) (includes Obligatory, Recommended, Permissible, Reprehensible)

Forbidden (ḥarām).

Valuations of Ahkam

The sources (or roots) of jurisprudence (uṣūl al-fiqh):

 Authoritative texts (naṣṣ)

Qur’ān: where clear and specific must be followed often needs interpretation (scholarly skills required)

Sunna of the Prophet, especially ḥadīth Actions of Companions are also important

The sources (or roots) of jurisprudence (uṣūl al-fiqh):

“Procedural” methods Ijtihād (1) “effort”

Effort of the faqīh to discover the proper sharī‘a valuation in a case where the Qur’ān and Sunna do not provide a clear answer

Normally involves derivation of the answer from the Qur’ān and Sunna

Mujtahid must have a high level of learning and moral standing

Mujtahid is not protected from error▪ “The mujtahid who errs gets one

reward; the mujtahid who gets it right gets a double reward.” (ḥadīth)

Muqallid (imitator, follower) one who is not a mujtahid

uṣūl al-fiqh ctd“Procedural” methods

uṣūl al-fiqh ctd “Procedural” methods

Ijmā‘ (Consensus) Agreement of all mujtahids on a particular point Considered authitative: “My community will not

agree on an error.” (ḥadīth)

Ijtihād (2) continuing ijtihād Where there is no ijmā‘, ijtihād continues Where there is ijmā‘, absolute ijtihād (i.e. deriving

valuations directly from the Qur’ān and Sunna) is precluded; taqlīd (imitating, following) is required

Ijtihād may continue within the framework and principles established by the existing ijmā‘

Methods of ijtihād Qiyās (analogy).

Find a common term (‘illa) between known and unknown

E.g. bad effects of drunkenness are the common term between wine (known to be ḥarām) and whiskey (to be determined)

The welfare of the Muslim community, maṣlaḥa (or istiṣlāḥ). maṣlaḥa : where other methods give more than one

answer, choose the one most consistent with the welfare of the umma

istiḥsān (preference): choose less strict approach on grounds of welfare

maṣlaḥa mursala: follow welfare apart from other Sharī‘a sources

“Blocking the means”: actions that will lead to forbidden actions are forbidden

uṣūl al-fiqh ctdMethods of ijtihād

uṣūl al-fiqh contin.......

Methods of ijtihād Ra’y, considered opinion of the faqih, not based

on formal reasoning; common in the early days but later rejected.

Devices , means of avoiding apparent intent of the law. rejected by many.

Custom, ('āda or adat, ‘urf) Not usually recognized as formal source of fiqh but

important in practice. Custom as separate from Sharī‘a / Custom as

incorporated within Sharī‘a Siyāsa or Qānūn. (governance or policy),

government actions & rules. Siyāsa as separate from Sharī‘a / Siyāsa as incorporated

within Sharī‘a

“Schools” of Jurisprudence, Madhhabs.

May be seen as distinct ijmā‘s

Ḥanafī, named after Abu Hanifah (d 767) Malikī, named after Malik ibn Anas (d 795) Shāfi'ī, named after Muhammad ibn Idris al-

Shafi'i (d 819) Ḥanbalī, named after Ahmad ibn Hanbal (d

855)

“Differences of opinion among scholars are a mercy from God.” (ḥadīth)

“Schools” of Jurisprudence, Madhhabs.

In detail the Islamic Law and its Detail Defininition

AL FIQAH LITERALLY MEANS

An.الفهم Fiqh literally means to understand-الفقهexample of this is found in the Qur’aan in the Dua of Prophet Musaa (as) when he asked Allaah to remove the impediment from his speech so Firaun and his people could understand him.

لساني } من عقدة قولي يفقهواواحلل }.“And loosen the knot from my tongue. That

they may understand my speech.”Chapter 20 verses 27-28.

FIQH

This usage is also found in the hadeeth of the Prophet( وسلم عليه الله who said, “Whoever (صلىAllaah intends good for. He gives him understanding of the Deen.” Related by Muslim.

” به الله يرد الدين هيفقهيرا خمن في “.مسلم .رواه

TERMINOLOGICAL MEANINGS

Fiqh according to the scholars has the following meaning: “The collection of rulings or laws, (taken from) Shariah, dealing with actions, by which every Muslim is required to live. It is important to know that these rulings deal with the individual as well as the society.”

Fiqh-ul-Ebadaat Sh. Faisal Mawlawi

BOUNDEREIS OF FIQH

1. Worship- this aspect of Fiqh is dealing with salah, Zakaah, Siyaam, and hajj.

2. Family issues- this aspect of fiqh is dealing with the family from the beginning to the end. Such as the conditions for a sound marriage divorce and so forth.

3. Transactions- this aspect of fiqh is related to how we cooperate with each other in society. An example would be buying and selling goods.

4. Politics- this aspect of fiqh deals with the organization of government and governmental organizations in regards to the Muslim nation.

5. Peace and war- this aspect of fiqh deals with foreign relations with other countries depending on the current condition that exist between the Islamic state and those countries.

الشريعةAl-Shar'eeah

which شرع Comes from the word الشريعةliterally means to prescribe or ordain, law, and a straight road or path. The Qur’aan provides usages of all three meanings.

The First meaning, ordained or prescribed.{ أو شرع الذى و نوحا به وصى ما الدين من لكم

.{حيناإليك“Allaah has ordained for you the same

religion which He ordained for Nuuh and what we have revealed to you.”

Surah 42 verse 13.

الشريعةAl-Shar'eeah

The Second Meaning Law.{ منكم جعلنا منهاجا شرعةلكل و }.

“To each among you We have prescribed a law and a clear way.”

Surah 5 verse 48.

الشريعةAl-Shar'eeah

The Third meaning, a straight path.{ على جعلن|اك تتبع شريعةثم ال و فاتبعها األمر من

يعلمون ال الذين .{أهوآء“Then We put you on a straight path in your affairs, so follow it and do not follow the desires of those who have no knowledge.”

Surah 45 Verse 18.

ISLAMIC TERMINOLOGY MEANS THE SHARI’A

“It refers to the sum total of Islamic Laws which were revealed to the Prophet Muhammad { عل الله سلم يصلى و ه }which are recorded in the Qur’aan as well as deducible from the Prophet’s divinely guided lifestyle (called the Sunnah).”

Al-Shar’eeah in the Arabic Language

A watering place; a resort of“ شريعةdrinkers (both men and beasts); a place to which men come to drink there-from and draw water.”Lanes Lexicon volume 4 pg. 1535.Group Exercise:

With a friend, someone that you don’t know. Write, in the shade of this meaning, what role Shar'eeah should play in the life of a Muslim.

The Differences Between Fiqh and Shar’eeah

Fiqh.1. A body of laws deduced from the Shar'eeah to cover

specific situations not covered in the Shar’eeah.2. Fiqh changes according to the circumstances surrounding

it.3. Fiqh laws tend to be specific: they demonstrate how the

basic principles of Shar’eeah should be applied in given circumstances.

Shar’eeah.1. Shar’eeah is the body of laws found both in the

Qur’aan and Sunnah.2. Shar’eeah is fixed and unchangeable.3. The laws of Shar’eeah are, for the most part,

general: they lay down basic principles.

The evolution of Fiqh (Islamic law & and the Madh-habs) Dr. Bilal Phillips pg. 1.

The First Source of Shar’eeah The Qur'aan

“The word Qur’aan comes from the Arabic root قرأ which literally means (to read or recite), Qur’aan literally means reading or recitation. It may be defined as ‘the book containing the speech of Allaah, revealed to Prophet Muhammad in Arabic and transmitted to us by continuous testimony, or tawatur. It is the proof of the prophecy of Muhammad, the most authoritative guide fro the Muslims, and the first source of Shar’eeah.”

The First Source of Shar’eeah The Qur'aan

Close to 350 legal Ayât (verses) in the Qur’aan. 140 verses deal with devotional issues such as:

Salaah, Zakaat, Siyaam, hajj, jihad, repentance, the taking of oaths, and charities.

70 verses deal with marriage, divorce, the waiting period, revocation, mahar, maintenance, custody, fosterage, paternity, inheritance and bequest.

Another 70 verses deal with commercial transactions.

30 verses deal with crimes and penalties. Another 30 deal with rights and obligations of

citizens. Ten verses dealing with economic matters.

The Second Source of Islaamic Legislation the Sunnah

According to Arabic lexicographers it means: “A way, course, rule, mode, or manner of acting or conduct of life.”

Lanes Lexicon volume 6 pg. 1438. In Islamic terminology the sunnah is

defined as: “what has been (authentically) related to us on behalf of the prophet { سلم و عليه الله from his {صلىsayings, actions, and silent approvals. It is the second source of reference in Islamic law for the Faqi, with the condition that it is authentically reported on the prophet’s behalf.”

Is the Sunnah Part of Revelation?

The Qur’aan on the Role of the Prophet.

1. Expounder of the Qur’aan.

�ل|ي�ك| الذ�ْك�ر| ل�ن|ا إ |ن�َز| أ َل| ل�ت�ب|ي�نو| ا ن�َز� | ل�لن�اِس� م|ون| ك�ر� م� ي|ت|ف| ل|ع|ل�ه� م� و| �ل|ي�ه� .إ

“We have sent down unto thee the Remembrance; so you can explain clearly to men what is sent for them, and that they may give thought.”

Surah Al-Nahl Verse 44.

Is the Sunnah Part of Revelation?

2. Legislator.ر| َج| ا ش| يم| ك�م�وك| ف� ت�ى ي�َح| ن�ون| ح| ب�ك| ال| ي�ْؤ�م� اَل| و|ر| ف|

ا م� ا م� ج� ر| م� ح| ه� س� |ن�ف� د�وا ف�ي أ م� ث�م� ال| ي|َج� ب|ي�ن|ه�ا ل�يم� ل�م�وا ت|س� ي�س| ي�َت| و| .ق|َض|

“But no, by thy Lord, they can have no (real) Faith, until they make thee judge in all disputes between them, and find in their souls no resistance against thy decisions, but accept them with the fullest conviction.”

Surah Nisaa Verse 65.

Is the Sunnah Part of Revelation?

Allaah has equated obedience to the Messenger with obedience to Himself.

د� أ|َط|اع| الل�ه|. ق| وَل| ف| س� م|ن� ي�ِط�ع� الر�“Whoever obeys the Messenger, in

fact, obeys Allah.”Surah Nisaa Verse 80.

Is the Sunnah Part of Revelation?

3. As a Model?

ن|ة¡ ل�م|ن� ْك|ان| س| و|ة¡ ح| س�وَل� الل�ه� أ� س� د� ْك|ان| ل|ك�م� ف�ي ر| ل|ق|

ا ر| و|َذ|ْك|ر| الل�ه| ْك|ِث�ير� خ� ال�ي|و�َم| اآْل� و الل�ه| و| ج� ي|ر�.

“You have indeed in the Messenger of Allah a beautiful pattern (of conduct) for any one whose hope is in Allah and the Final Day, and who engages much in the praise of Allah.”

Surah Al-Ahzaab Verse 21.

Is the Sunnah Part of Revelation?

4. Total Obedience to the Prophet { الله صلىسلم و .{عليه

م� ث�م� ر| ب|ي�ن|ه� َج| ا ش| يم| ك�م�وك| ف� ت�ى ي�َح| ن�ون| ح| ب�ك| ال| ي�ْؤ�م� اَل| و|ر| ف|ل�م�وا ي�س| ي�َت| و| ا ق|َض| م� ا م� ج� ر| م� ح| ه� س� |ن�ف� د�وا ف�ي أ ال| ي|َج�

ا ل�يم� .ت|س�“But no, by thy Lord, they can have no (real) Faith, until they make thee judge in all disputes between them, and find in their souls no resistance against thy decisions, but accept them with the fullest conviction.”

Surah Nisaa Verse 65.

Is the Sunnah Part of Revelation?

وا ان�ت|ه� اْك�م� ع|ن�ه� ف| ا ن|ه| ذ�وه� و|م| ُخ� وَل� ف| س� ا آت|اْك�م� الر� و|م|اِب� د�يد� ال�ع�ق| وا الل�ه| إ�ن� الل�ه| ش| ات�ق� .و|

“So take what the Messenger assigns to you, and deny yourselves that which he withholds from you. And fear Allah; for Allah is strict in Punishment.”

Surah Al-Hashr Verse 7.

Is the Sunnah Part of Revelation

ا ع|ن�ه� ل�و� ول|ه� و|ال| ت|و| س� ن�وا أ|َط�يع�وا الل�ه| و|ر| ا ال�ذ�ين| آم| |ي©ه| ي|ا أ|ن�ت�م� تسمعون أ و|

“O ye who believe! obey Allah and His Messenger, and turn not away from him when ye hear (him speak).”

Surah Al-Anfaal Verse20.

There is an interesting point pertaining to this verse. Allaah says, “And turn not away from him.” Although the verse began by saying, “Obey Allah and His Messenger.” It ends by saying, “And turn not away from him.” Think hard and see if you can understand why.

Is the Sunnah Part of Revelation?

[1] O prophet! Why do you make forbidden that which Allah has made lawful to you? You seek to please your wives but Allah is oft-forgiving, most merciful.

[2] Allah has already ordained for you, (O men), the dissolution of your oaths (in some cases): and Allah is your protector, and he is full of knowledge and wisdom.

[3] when the prophet disclosed a matter of confidence to one of his consorts, and she then divulged it (to another), and Allah made it known to him, he confirmed part thereof and repudiated a part. Then when he told her about it, she said, "who told you this?" He said, “He told me who knows and is well-acquainted (with all things).“.

Surah Tahreem verse 1-3.

Ijma

Ijma is the verbal noun of the Arabic word Ajma’a which has two meanings: To determine To agree upon something

According to the scholars Ijma is defined as the unanimous agreement of the mujtahidun of the Muslim community of any period following the death of the prophet (SAW) on any matter.

Qiyas

Literally Qiyas means measuring or determining the length, weight, or quality of something.

Qiyas also means comparison to establish equality or similarity between two things.

According to the scholars Qiyas is the extension of Shar’iah ruling from an original case (Asl) to a new case (far’) because the new case has the same effective cause (Illah) as the original case.

Qiyas

The essential requirement of Qiyas which are indicated in these definition are as follows: The original case (Asl) on which a ruling is

given in the text and which analogy seeks to extend to a new case.

The new case (Far’) on which a ruling is wanting.

The effective cause (‘illah) which is attribute of the Asl and is found to be in common between the original and the new case.

The rule (hukm) governing the original case which is to be extended to the new case.

Qiyas

To illustrate Qiyas we use the example of the verse: “O you who believe! Intoxicants and gambling and Al-Ansab and Al-Azlam are an abomination of Satan’s handiwork, so avoid (strictly all) that in order that you may be successful.”, which forbids wine drinking.

If these prohibition is to be extended by analogy to drugs, the four pillar of analogy would be:

ASL Far Illah HukmWine drinking Taking Drugs The intoxicating effect

Prohibition

Istihsan and Maslaha

Istihsan: literally means to approve, or to deem something preferable.

It is a derivation from Hasuna, which means being good or beautiful.

According to the Scholars Istihsan is a method of exercising personal opinion (Ray) in order to avoid any rigidity and unfairness that might result from literal application of law.

Example of Istihsan is the decision of Umar Bin Khattab (RAA) not to enforce the Hadd penalty of the amputation of the hand for the theft during a widespread famine.

Istihsan and Maslaha

Maslaha literally means benefit or interest when it is qualified as Maslaha Mursalah, it refers to unrestricted public interest.

It is synonymous with Istihsan, which is also called Maslaha Mutlaqah on account of its being undefined by the established rules of the shar’iah.

Example: the Caliph Abu Bakr collected and compiled the scattered records of the Qur’an in a single volume, he also waged war on those who refused to pay the Zakat.

Urf and IstishabUrf

Urf as a noun is derived from its Arabic root ‘arafa (to know), ‘urf literally means ‘that which is known.’ In its primary sense, it is the known as opposed to the unknown, the familiar and customary as opposed to the unfamiliar and strange.

Urf according to the scholars is: recurring practices which are acceptable to people of sound nature.

Al-Ahkaam Sharii (The Rulings)

The Arabic word األحكاَم comes from the root which means the following: “To pass حكمjudgment, express an opinion, judge, to decide, or give an opinion.”

Hans Wehr Dictionary Pg. 195 It is used in the Qur’aan in many places.

{ القيامة يَحكمفالله يوَم بينكم }“Then Allaah will judge between you on the

day of judgment.”Surah Nisaa Verse 141

Al-Ahkaam (The Rulings)

{ لقوَم َحأف حكما الله من أحسن من و يبغون الَجاهلية كم{يوقنون

“Do they then seek the judgment of the days of ignorance? And who is better in judgment then Allaah for a people who have faith.”

Surah Al-Maaidah Verse 50

Al-Ahkaam according to the Scholars

The scholars have defined the Hukum Shari as: “A communication from the lawgiver concerning the conduct of the Mukallaf which consists of a demand, an option or an enactment.”

The Five Rulings Related to Shar’eeah

W aajibO b lig a to ry

M u n d u u bV o lu n ta ry

M ah arramF orb id d en

M ak roohD is liked

M u b aahP erm isab le

The Six Historical Periods of Fiqh

F ou n d ation6 0 9 -6 3 2

E s tab lish m en t6 3 2 -6 6 1

B u ild in g6 6 1 -7 6 0

F lowerin g7 6 0 -9 6 0

C on so lid a tion9 6 0 -1 2 6 0

S tag n ation1 2 6 0 -p resen t

Responsibilities of Ummah:

Understanding, implementation and

preaching of shariah- Religious

Establishment of Khilafat/Shariah-

Political

Jihad-Economic

Ijtehad-Educational

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Summary Introduction to islamic Law &Jurisprudence

Basic concepts of islamic Law &Jurisprudence

Sources of islamic Law &Jurisprudence

Nature of Differences in islamic Law &Jurisprudence

Short Activity

1. Introduce Islamic Law2. What is Sharia3. Discuss the sources of Islamic Law4. What is Qiyas5. What are the responsibilities of

Ummah