WEEK 10: ISLAMIC LAW

Question 1

Generally, what is Islamic law?

Answer 1

• Revealed by Allah S.W.T to the humans via Quran - interpreted in the form of Sunnah by the Prophet.
• Develops with the progress of time & needs of life.
• Shariah is the entire body of Islamic law, and the term literally means ‘the clear path to the water source.’
• Code of life all Muslims have to adhere to.
• Contains a wide-ranging body of law and personal rules, regulating matters not limited to jurisprudence, politics, business, banking, family, etc.

Question 2

What are the objectives of Shariah, also known as Maqasid al - Shariah?

Answer 2

• Ensure that human life is based on ma’ruf which means good and to cleanse it of munkar which means evil.

There are 5 maqasid of Shariah that Islam intends to preserve:

• > Protection of Fatih (din)
• > Protection of Life (nafs)
• > Protection of Lineage (nasl)
• > Protection of Intellect (‘aql)
• > Protection of Property (mal)

Question 3

What are the differences between Islamic and Man-Made Law?

Answer 3

• The scope of shariah is wider - regulates individuals relationships not only with other humans but also with God.
• Shariah is concerned as much as ethical stands as with legal rules; what an individual is entitled to do but also what they are ought to do.
• Certain acts are classified as praiseworthy - performance brings divine favour and their omission of divine disfavour, and others as blameworthy, which has opposite implications.
• No legal sanction here or reward, nullity or validity.
• Shariah is not only a system of law; but also a comprehensive code of behaviour that embraces both private and public activities.

Question 4

What are the four primary sources of Islamic law?

Answer 4

1) Quran
2) Sunnah
3) Ijma’
4) Qiyas

Question 5

What is the Quran?

Answer 5

• ‘The reading” or “the recitation”
• Refers to the divinely revealed scripture given to Muhammad.
• Quran is the final revelation from God to humanity.
• Words of Allah revealed to His Prophet were transferred to us through narration chains (tawator).

Question 6

How does the Quran benefit us when they are just words of Allah?

Answer 6

The entire Quran with its verses, surahs, and words are the actual words of the Almighty Allah and not the speech of any one of mankind, jinn or angels.

• Angel of revelation - Gabriel or Jibril only heard from Allah and descended with the Quran to the Messenger of Allah Muhammad.
• Allah has no other intention rather than to benefit His mankind.
• Prophet Muhammad only conveys the message. It can be proven by the Quranic verse from Surah al-Shu’ara.
• > “And indeed, the Qur’an is the revelation of the Lord of the words, The Trustworthy Spirit has brought it down, Upon your heart - that you may be of the warners.” Al-Shu-ara: 192 - 194.
• > Allah excludes sayings of the Prophet in the Quran as the expressions and the meanings are all from Allah.

Question 7

What are the other characteristics of the Quran other than being the words of Allah?

Answer 7

1) Arabic language
- Comes from the Arabic language.
- Allah chose this language as His revelation to the mankind.
- > “In a clear Arabic language.” Al-Shu’ara:195

2) Preserved
- Quran is a continuous testament.
- Transmitted from the Prophet to the next generation by such a large number of people - that they cannot be expected to agree upon a lie.
- Authenticity is not doubted as there is evidence about its transmission.
- Stated in the Quranic verse that Allah has promised to protect His Book until the Day of Judgement.
- > “Indeed, it is We who sent down the Qur’an and indeed, We will be its guardian.” Al-Hijr: 9

3) A guidance
- Revealed to also serve as a guidance.
- > “This is the book about which there is no doubt, a guidance for those conscious of Allah” Al-Baqarah: 2

Question 8

What is the Sunnah?

Answer 8

• Literally means ‘clear path’ or ‘beaten track but in pre-Islamic Arabia.
• the Arabs referred Sunnah as the practices of the ancient and continues/habitual practices that are inherited from the ancestors.
• Technical meaning: “Sunnah means recommended acts of worship.”
• Defined as “what was transmitted from the Messenger of Allah of his words, actions and tacit.”

Question 9

Which is a more important source of Islamic Law? Quran or Sunnah?

Answer 9

• Second primary source of Islamic law - positioned next after the Quran.
• When a jurist does not find a text in the Qur’an for a case he has to settle, he has to recourse to the Sunnah in derivation of the rule.

The Sunnah of sound and complete chain of narrator (sahih and mutawattir) which meant legislation and legal rules is as an authoritative source of Islamic law.

Question 10

What are proofs from the Quran that the Sunnah does not come from the Prophet’s desire?

Answer 10

• “Nor does he say (aught) of (his own) desire. It is no less than inspiration sent down to him” Al - Najm (The Star) 3-4
• Obedience to Messenger is obedience to Allah. “He who obey the Messenger, obeys Allah.” Al-Nisa(4): 80

Question 11

How does Sunnah act as a source of Law?

Answer 11

• The Quran contains a set of moral and judicial injunctions which are the basis of Islamic law and concerns with the life of human beings in every detail.
• The early revelations revealed in Mecca deal largely with beliefs and morals.
• After the migration of the Prophet to Medinah, principles regarding crime, succession, and international law were revealed.
• Quran mainly concerns itself with the basic and simple rulings.
• > ‘Give full measure when you measure and weigh with a balance that is right.’
• Quran treats major issues and often deals with subjects in brief terms leaving them to be detailed out by the Sunnah.

Question 12

What are some Dalil explained to us through the Sunnah?

Answer 12

“And We have sent down unto thou the message that thou may explain clearly to men what is sent for them.”

• Mandatory solat in the Quran but the way of performing it is expressed through Sunnah.
• Quran commands us to pay zakat but the percentage and the exact amount is unspecified.

Question 13

What is the difference between Sunnah and Hadith?

Answer 13

Sunnah includes saying, doing, and tacit approval of the Prophet while Hadith is the narration of the saying of the Prophet.

Question 14

What is Ijma’?

Answer 14

• literally means “determination, resolution and agreement upon something.”
• Technically - the unanimous agreement of the Mujtahids after the death of the Prophet after a certain period of time, upon a rule of Islamic law.
• Existing body of Fiqh today is a product of a long process of Ijtihad and Ijma’.

Question 15

What is the basis of Ijma’?

Answer 15

An - Nisa: 155 “Whoever contradicts and opposes the Messenger after the right path has been shown clearly to him, and follow other than the believers say. We shall keep him in the path that he has chosen, and burn him in Hell - what an Evil destination.”

Hadith by Ibnu Majah, Tirmizi, Abu Dawood and others - “My community shall never agree on an error.”

Question 16

What are the conditions for the validity of ijma’ as a source of law?

Answer 16

• The agreement must take place among mujtahids. Mujtahid is a person who is qualified to exercise ijtihad.
• A unanimous decision must be reached.
• Mujtahids must belong to the Islamic community.
• Agreement of mujtahids must be held after the death of Allah’s Messenger.
• > Among mujtahids of one period, even though some mujtahids of subsequent periods may differ from them.
• > Should be held on a rule of Islamic law.
• > Should have relied upon a sanad (evidence) for deriving their opinion.

Question 17

What is the difference between Explicit and Silent Ijma’?

Answer 17

1) Explicit Ijma’ (ijma’ sarih):
- “One in which the legal opinions of all the mujtahids of one period converge in relation to legal issue, and each one of them states his opinion explicitly.”
- Realised by their meetings in one place and examining an issue in question and they finally express their unanimous opinion.
- May also take place when an issue occurred and every mujtahid gives the same legal opinion.

2) Silent Ijma’ (ijma’ sukuti)
- When some mujtahid, one or more, gives a legal opinion with regard to a specific rule about a legal issue, then the rest of them are informed of this opinion and they keep silent and they neither acknowledge it nor object to it.

Question 18

Other than explicit and silent ijma’, what other ijma’ are there?

Answer 18

Classical ijma’ - compilation of Quran into Mushaf.

• The Quran that has been compiled and used by us today is the result of Ijma’.
• Eg. The commandment of choosing the caliphs within 3 days.

Modern ijma’
- “forbidden to play the role of the Prophet or other Prophets and Messengers of Allah in movies and TV shows.”

Question 19

What is Qiyas?

Answer 19

• “measurement; measuring something with another. Comparison; comparing something with another.”
• Process of deductive analogy in which the teachings of the hadith are compared and contrasted with those of the Qur’an.
• This means a known injunction that can be applied to a new circumstance and create a new injunction.
• Provided classical Muslim jurists with a method of deducing laws on matters not explicitly covered by the Quran or the Sunnah.

Question 20

When can Qiyas be implemented?

Answer 20

The ruling of the Quran or Sunnah may be extended to a new problem provided that the precedent and the new problem share the same operative or effective cause.

• Precedent = asl
• New problem = far.
• llah = specific set of circumstances that trigger a certain law into action.

Eg. The operative cause for the prohibition against alcohol is that it intoxicates the mind; anything that intoxicates the mind such as narcotics is also prohibited by the use of analogy.

Question 21

What are the essential elements of Qiyas?

Answer 21

Essential elements of Qiyas

i) original case (asl) - wife with menstruation.
ii) legal ruling of original cause (hukm al-asli) - prohibition of approaching (Al - Baqarah: 222)
iii) new case (far’) - wife with postnatal blood.
iv) effective cause (‘illah) - hurt / causing harm.

Question 22

Why were secondary sources developed in Islam?

Answer 22

All Muslims jurists rejected arbitrary opinion and instead developed various secondary sources known as juristic principles or doctrine to follow.

• Only in the event that primary sources are silent on the issue.
• Extension of the primary sources of law to cater the current needs of the society.

Question 23

What are the secondary sources of Islam?

Answer 23

1) Maslahah Mursalah
2) Istihsan
3) Istishab
4) Sadd al-Zara’ie

Question 24

What is Maslahah Mursalah and how does it serve as a secondary source?

Answer 24

• Literally - root word ‘solaha’ which means to be good, to repair or to improve.
• Benefit or interest, unrestricted.
• Technical - method employed by Muslim jurists to solve problems that find no clear answer in the sacred religious text.
  i) Refers to the creation of law/regulations on the basis of consideration of public interest.
  ii) Consideration of public interest refers to the consideration of interests that are proper and harmonious with the objectives of Shariah.

Eg. Laws on Road Safety, Requirements on Identification Cards and Passport, HIV test before marriage, Movement Control Order.

Question 25

What is Istihsan and how does it function as a secondary source of law?

Answer 25

• Literally - “to consider something good” “to approve something preferable”
• Juristic definition - method of exercising personal opinion in order to avoid rigidity and unfairness that might result from the literal enforcement of the existing laws,
  i) Referred to as juristic preference - setting aside an established analogy (Qiyas) in favour of an alternative ruling which serves the idea of justice and public interest in a better way.
• Accepted as a form of Ijtihad where the Muslim scholars use this method of arriving to a ruling to express their preference for a particular judgement over other possibilities.
• Considered as being the counterpart of equity in common law.
• One of the methods to incorporate social changes into Islamic law where strict requirements of Islamic law would not allow it.

Eg. The sale and purchase of a house that is yet to be built in which the original law is prohibited due to the fact that the subject matter is not in existence but it is allowed in Islamic banking practice today due to public interest.

Question 26

What is Istishab and how does it function as a secondary source of law?

Answer 26

• Literally - from the word Suhbah; means accompaniment, keeping close association or attachment.
• Technically - means maintenance of the status quo until proof is furnished in favour of its changes.
• Islamic legal term for the principle of presumption of continuity of a fact or an established rule of law, where an existing situation is presumed to be continuing at present until the contrary is proven.

Eg. Inheritance cannot be claimed from a missing person until evidence is presented that he or she is dead. //// A person is presumed to be from liability until the contrary is proven.

Question 27

What is Sadd al - Zara’ie and how does it differ as a secondary source of law?

Answer 27

• Literally - sadd: blocking; dzhara’i: ways that lead to something.
• Technically - blocking the means which lead to an expected end which is evil.
• Founded on the very idea of preventing an evil before it actually materialises.
• The idea is as a precaution before it leads to a harmful result to the society.

Question 28

How are lawful acts divided?

Answer 28

Not all lawful acts must be forbidden on the ground of the likelihood of harmfulness ensuring from them.

Jurists divided lawful acts into 2 categories:

1) Those that rarely lead to harmful results, like planting grapes that could lead to winemaking.
2) Those that usually lead to a harmful result, like the sale of grapes to a winery and the sale of weapons to a known criminal.

Current example: government refuses to give a permit to the organiser of a concert because it is expected that the crows shall use drugs.

Question 29

What are some important terms in Shariah?

Answer 29

Ijtihad - opinion / juristic reasoning

• Use of reasoning where the Quran and the Sunnah are not explicitly clear.
• Other tools will have to be used by scholars such as Ijma’ and Qiyas to reach conclusions that are in line with the Maqasid al-Shariah.

Mujtahid - a person qualified to do ijtihad.

• Strict conditions to qualify as a mujtahid.
• Representing the Prophet in giving a juristic opinion.

Usuli - scholars who deal with the principles of Shariah.

Mazhab - school of thought.
- School of scholars who produce a certain methodology to reach a ruling.

Arbitrary decision - a course of action or a decision that is not based on reason or judgement but on personal will or discretion.

Uruf - custom, cultural practice, norm accepted in a particular society.

• Source of law.
• Will vary from one society to the other.

Amal Ahl Madinah - practice of the people of Madinah.
- Widely used as a source of law in Maliki school.