6/9/2015 2012_All Rights Reserved_AFS2023_Mohd Zulkifli Muhammad 1 AFS2023 USUL FIQH/ISLAMIC...

04/18/232012_All Rights

Reserved_AFS2023_Mohd Zulkifli Muhammad

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AFS2023USUL

FIQH/ISLAMIC JURISPRUDENCE

The First Source of Shariah: The Qur’an

04/18/232012_All Rights

Reserved_AFS2023_Mohd Zulkifli Muhammad

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Contents

1) Sources of Islamic Law2) Primary Sources: The Quran3) Distinctive Features of the Quran4) The Legal Injunctions of the Quran (Ayah

al-Ahkam)5) Thematic Classifications of the Verses of

the Quran6) Characteristics of Qur’anic Legislation

04/18/23 2012_All Rights Reserved_AFS2023_Mohd

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IndividualIndividual

Ijtihad: group (Ijma’)

Primary:Primary:al-Quranal-Quran

Secondary:Ijtihad

(aql-reason & intuition)

Primary:Primary:al-Sunnahal-Sunnah

SOURCES


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Hilah(Lega

l Trick)

Secondary

Sources

Sad al-

Dharai

Istishab

Urf

Fiqh Maxi

m

Istihsan

Qiyas*

Maqasid

Shariah

Maslahah

mursalah


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Secondary

Sources

Sad al-

Dharai

Istishab

Urf

Fiqh Maxi

m

Istihsan

Qiyas

Maqasid

Shariah

Maslahah

mursalah

Hilah(Lega

l Trick)

Secondary

Sources

Sad al-

Dharai

Istishab

Urf

Fiqh Maxi

m

Istihsan

Qiyas*

Maqasid

Shariah

Maslahah

mursalah


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Sources of Islamic Law• One of the important constituents in

Islamic law is the sources• The sources are classified according to

their utilization:1) All scholars agree in utilizing these

sources- Quran & Sunnah2) Some scholars agree & some don’t- urf,

istihsan, istishab, masalih mursalah sadd al-dharai, amal ahl madinah


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Sources of Islamic Law

• The sources are classified according to their origins:

1) al-nusus- Quran & Sunnah2) al-ra’y- others


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Sources of Islamic Law• The basis for the sources of Islamic law

originate from the following famous Hadith of Mu’az

• The hadith indicates:1) the approval of the Prophet (saw) for using

personal opinion provided that it is not against the injunctions of Quran & Sunnah

2) The priority in the utilization of the sources of Islamic law


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Primary Sources: The Quran

• Literally: derived from the root word “qa ra ‘a”= reading or recitation.

• Technically: “Book containing the words of Allah revealed to the Prophet Muhammad (saw) in Arabic and transmitted to us by continuous testimony or tawatur”


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• Quran- not a legal nor a constitutional document as only a small portion of the text consists of legal sanctions- less than 1/10 relate to law and jurisprudence.

• Most of the verses are concerned with matters of beliefs and morality.


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• Quran- 114 chapters (surah), 30 sections (juzuk), 6666 verses (ayah), 86430 words (kalimah)

• Quran- was revealed within period of 22 years, 2 months and 22 days.

• Began on the 15th night of the month of Ramadhan in the 41st year of the Prophet (saw)’s life.


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• First chapter- revealed in the cave of Hira’ in Makkah:

• “Proclaim! (or read!) in the name of thy Lord and Cherisher, Who created. Created man, out of a (mere) clot of congealed blood. Proclaim! And thy Lord is Most Bountiful. He Who taught (the use of) the pen. Taught man that which he knew not.” (al-Alaq: 1-5)


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• The last verse revealed on the 9th Zulhijjah in the 10th year of hijrah when the Prophet (saw) was in the 63 year of his life-

• al-Maidah: 3


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• The contents of the Quran are not classified subject-wise. The verses on various topics appeared in different places and no particular order can be established in the sequence of its text. Why????


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Distinctive Features of the Quran

1) It is the actual Word of Allah, the wording and meaning of Quran was revealed for the benefit of all mankind.

• “Verily this is a Revelation from the Lord of the Worlds. With it came down the spirit of Faith and Truth. To thy heart and mind, that thou mayest admonish.” (al-Shu’ara’: 192-194)


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2) The Quran was revealed in Arabic language.

“In the perspicuous Arabic tongue.” (al-Shu’ara: 195)


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3) The Quran was transmitted with continuous testament (mutawatir). What are the implication from such kind of transmission?

“We have, without doubt, sent down the Message; and We will assuredly guard it (from corruption).” (al-Hijr: 9)


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4) The Quran is Allah’s eternal miracle revealed to the Prophet Muhammad (saw) for all succeeding generations- who doubt the authorship of the Quran, Allah has challenged the most articulate Arabs to produce something similar to Quran.

“Say: "If the whole of mankind and Jinns were to gather together to produce the like of this Qur'an, they could not produce the like thereof, even if they backed up each other with help and support.” (al-Isra’: 88)


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5) It is complete and comprehensive.“One day We shall raise from all Peoples

a witness against them, from amongst themselves: and We shall bring thee as a witness against these (thy people): and We have sent down to thee the Book explaining all things, a Guide, a Mercy, and Glad Tidings to Muslims.” (al-Nahl: 89)


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The Legal Injunctions of the Quran (Ayah al-Ahkam)

• Considered as the code of conduct for every Muslims in all sphere of life.

• These verses- provide criterion to distinguish true from false, good from bad, halal from haram.

• Quran does not provide detailed rulings on many issues- general principles.


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• Example: 1) “When ye pass (Congregational) prayers,

celebrate God's praises, standing, sitting down, or lying down on your sides; but when ye are free from danger, set up Regular Prayers: For such prayers are enjoined on believers at stated times.” (al-Nisa’: 103)

2) “O ye who believe! Fasting is prescribed to you as it was prescribed to those before you, that ye may (learn) self-restraint”- (al-Baqarah: 183)


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3) “O ye who believe! When ye deal with each other, in transactions involving future obligations in a fixed period of time, reduce them to writing. Let a scribe write down faithfully as between the parties: let not the scribe refuse to write: as God has taught him, so let him write. Let him who incurs the liability dictate, but let him fear His Lord God, and not diminish aught of what he owes. If the party liable is mentally deficient, or weak, or unable himself to dictate, let his guardian dictate faithfully, And get two witnesses, out of your own men, and if there are not two men, then a man and two women, such as ye choose, for witnesses, so that if one of them errs, the other can remind her. The witnesses should not refuse when they are called on (for evidence). Disdain not to reduce to writing (your contract) for a future period, whether it be small or big: it is juster in the sight of God, more suitable as evidence, and more convenient to prevent doubts among yourselves. But if it be a transaction which ye carry out on the spot among yourselves, there is no blame on you if ye reduce it not to writing. But take witness whenever ye make a commercial contract; and let neither scribe nor witness suffer harm. If ye do (such harm), it would be wickedness in you. So fear God; For it is God that teaches you. And God is well acquainted with all things.” (al-Baqarah: 282)


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Thematic Classifications of the Verses of the Quran

• There are different kinds of verses in the Quran: (four categories)

a) Verses related to the Islamic belief system (aqidah)

b) Verses related to the moral and ethics (akhlaq)c) Verses related to the stories of the earlier

Prophets of Allah a.s. and the previous people (qasas al-Quran)

d) Verses related to the sayings and doings of the individuals and his relations with others (ayat al-ahkam/legal verses)


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Thematic Classifications of the Verses of the Quran

• Ayat al-Ahkam/ Legal Verses can be further classified into several categories:

1) The concise injunction (ahkam al-mujmal)

2) The concise and detail injunctions (ahkam al-mujmal wa al-mufassal)

3) The detailed injunctions (ahkam al-mufassal)


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1) The Concise Injunction (ahkam al-mujmal)

• The precise commandments contained in the Quran- does not provide detailed rules. For example:

a) Injunctions concerning prayers (solah) and zakah. (al-Baqarah: 110)

b) Concerning commercial transactions and Riba. “…God hath permitted trade and forbidden usury...” (al-Baqarah: 275)


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2) The concise & detail injunctions (ahkam al-mujmal wa al-

mufassal)• Verses which mentioned the

commandments in brief, while others are mentioned them in detail.

• Not left to be elaborated by Sunnah alone but ijtihad.

• Example: injunctions on war, peace, jihad, prisoners of war, booty and relations with non-Muslims.


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• Complete details of the commandments.

• No room for ijtihad (personal reasoning) in this area.

• Example:a) Verses related to the penalty for

unintentional killing.


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“Never should a believer kill a believer; but (If it so happens) by mistake, (Compensation is due): If one (so) kills a believer, it is ordained that he should free a believing slave, and pay compensation to the deceased's family, unless they remit it freely. If the deceased belonged to a people at war with you, and he was a believer, the freeing of a believing slave (Is enough). If he belonged to a people with whom ye have treaty of Mutual alliance, compensation should be paid to his family, and a believing slave be freed. For those who find this beyond their means, (is prescribed) a fast for two months running: by way of repentance to God: for God hath all knowledge and all wisdom.” ( al-Nisa’: 92)


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• Verses related to the distribution of inheritance. “God (thus) directs you as regards your children's

(inheritance): to the male, a portion equal to that of two females: if only daughters, two or more, their share is two-thirds of the inheritance; if only one, her share is a half. For parents, a sixth share of the inheritance to each, if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased left brothers (or sisters) the mother has a sixth. (The distribution in all cases is) after the payment of legacies and debts. Ye know not whether your parents or your children are nearest to you in benefit. These are settled portions ordained by God; and God is All-Knowing, All-Wise.” (al-Nisa’: 11)


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Characteristics of Qur’anic Legislation

• -Included ratiocination (ta’lil) and feature that specifies the effective cause or the rationale of only some of its laws.

• -The Qur’an also expresses the purpose, reason, objective, benefit, reward and advantage of its injunctions.


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Characteristics of Qur’anic Legislation

• -The Qur’an not only persuading people regarding to the truth and divine origin of its message but combined with allusion to the benefit that may accrue by the observance of its commands or the harm that is prevented by its prohibitions.

• -The most significant characteristics of Qur’anic Legislation are definitive (qat’i) and the speculative (zanni).


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The Definitive (Qat’i) and the Speculative (Zanni)

- definitive text: -• - One that is clear and specific, unequivocal.• - It has only one meaning and admits of no

other interpretations.• e.g.: the entitlement of the husband in the

estate of his deceased wife, as follows: ‘In what your wives leave, your share is a half, if they leave no child’. (al-Nisa’, 4:12)- speculative text: -

• Open to interpretation and ijtihad.


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The Definitive (Qat’i) and the Speculative (Zanni)

The best interpretation:-• Can be obtained from the Qur’an itself.• The Sunnah- when the necessary interpretation

can be found in an authentic Hadith, it becomes an integral part of the Qur’an and both together carry a binding force.

• The Companions- because of their close familiarity with its text, the surrounding circumstances and the teachings of the Prophet.


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Brevity and Detail (al-Ijmal wa’l- Tafsil)

• Most of the legal contents of the Qur’an consist of general rules, although it contains specific injunctions on a number of topics.

• Broadly speaking, the Qur’an is specific on matters which are deemed to be unchangeable, but in matters which are liable to change, it merely lays down general guidelines.


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Brevity and Detail (al-Ijmal wa’l- Tafsil)

• The Qur’anic Legislation is confined to an exposition of the general principles on civil, economic, constitutional and international affairs.

• e.g.: civil transactions. All the nusus about it such as the fulfillment of contracts, the legality of sale, the prohibition of usury, respect for the property of others, the documentation of loans and other form of deferred payments are concerned with general principles.


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Ratiocination (ta’lil) in the Qur’an

• Meanings• - causation, search for the causes• -refers to the logical relationship-

between the cause and effect.


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Ratiocination (ta’lil) in the Qur’an

• There are instances where the Qur’an justifies its rulings with a reference to the benefits that accrue from them or the objectives which they may serve.

• e.g.: ‘so that wealth does not merely circulate among the wealthy’- regulates the distribution of booty among needy, the orphans and the wayfarers.


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Inimitability (I’jaz) of the Qur’an

• 4 aspects: 1) its linguistic excellence: many

scholars have pointed out that there exists no piece of literature that can match the literary excellence of the Qur’an with respect to both content and form.

2) its narration of events which took place centuries ago.


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Inimitability (I’jaz) of the Qur’an

3) its accurate prediction of future events, such as victory of the Muslims in the battle of Badr, the conquest of Mecca, and the eventual defeat of the Persians by the Roman empire.

4) manifested in its scientific truth concerning the creation of man, the earth and the planetary system.


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Fundamental Principles of Guidance Derived from Injunctions

of the Quran• Known as “al-Qawa’id wa al-mabadi’

al-’amah fi al-Quran”• For the guidance of Muslims and the

Muslim jurists to be utilized as a guiding principle in resolving issues of the Muslim ummah

• The basis for the jurists in their ijtihad


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of the Quran• Example:1) Principle of justice.“God doth command you to render back your

Trusts to those to whom they are due; And when ye judge between man and man, that ye judge with justice: Verily how excellent is the teaching which He giveth you! For God is He Who heareth and seeth all things.” (al-Nisa’: 58)


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of the Quran2) Principles of individual accountability.“Who receiveth guidance, receiveth it for

his own benefit: who goeth astray doth so to his own loss: No bearer of burdens can bear the burden of another: nor would We punish until We had sent an apostle (to give warning).” (al-Isra’: 15)


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of the Quran3) Principles of consultation“It is part of the Mercy of God that thou dost

deal gently with them Wert thou severe or harsh-hearted, they would have broken away from about thee: so pass over (Their faults), and ask for (God's) forgiveness for them; and consult them in affairs (of moment). Then, when thou hast Taken a decision put thy trust in God. For God loves those who put their trust (in Him).” (al-Imran: 159)


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of the Quran4) Principle in acquiring property.5) Principle of equality.“O mankind! We created you from a single

(pair) of a male and a female, and made you into nations and tribes, that ye may know each other (not that ye may despise (each other). Verily the most honoured of you in the sight of God is (he who is) the most righteous of you. And God has full knowledge and is well acquainted (with all things).” (al-Hujurat: 13)


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of the Quran6) Principle that the religion is flexible.“…God intends every facility for you; He

does not want to put to difficulties. (He wants you) to complete the prescribed period, and to glorify Him in that He has guided you; and perchance ye shall be grateful.” (al-Baqarah: 185)

“…He has chosen you, and has imposed no difficulties on you in religion; it is the cult of your father Abraham…” (al-Hajj: 78)


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of the Quran7) Principle that necessity renders

prohibited things permissible.(al-Ma’idah: 3)


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TAKE-HOME TEST

• Briefly, explain the codification of al-Quran?


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Best wishes to you in your endeavours and

may God bless you.

Thank you very much for your

attention

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