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ARTS017 Essay Autumn 2018 Final Report
ARTS017 Essay Autumn 2018 Final Report
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ISLAMIC JURISPRUDENCE
Jurisprudence in its narrowest sense refers to the study of law or how it developed over time. The
word jurisprudence translates to “knowledge of law”. Laws and their philosophy, doctrines, basic
considerations vary worldwide and change from time to time, flexibility and evolutionary nature of
the majorly unwritten British Constitution is a perfect example. I observed that by convention, the
law at the primary level is divided into two branches, which are private law (pertaining to dealings
between individuals) and public law (comprising offences where the state becomes a
counterparty). Another classification is made as civil law (involving penalties for wrongs) and
After going through Islamic history, I can confidently say that it is a complete code of life. It
encompasses along with others the legal matters an Islamic State has to take care of and thus
provide complete legal code. Even the US Supreme Court has recognized Prophet (PBUH) as one
This discussion would attempt to unravel many such features with clarity. As with any
other law, the basic premise of the Islamic Law stays the same and can in no way be deviated from
while the ancillary provisions have been developing over time. This essay will cover the historical
development of the Islamic Law, will discuss various modes of adaptations and finally sum up the
Mallat (2004) pertinently pointed out that the Islamic law intended for implementation
in entirety over an Islamic State has all the constituents of constitutional law and covers both the
aspects necessary for running a State. It has been observed that the constitutional structure is a
significant element, which should be considered in order to explore the Islamic jurisprudence in
depth.
Salient constitutional features include certain points. These include that sovereignty belongs to
God Allah Almighty only, the State is a single Islamic State with not independent constituents. It
further includes that the Supreme executive is the Caliph or Imam (this is an elective office, modes
of election vary) who may rule through his appointees including Governors and Departmental
Heads (Coulson, 2017). One of the Quranic verses in support of this system of ruler-ship is verse
59 of Sura-e-Nisa compelling Muslims to obey Allah, his Messenger (PBUH) and those who have
been given authority over them (Al-Quran) (Mallat, 2004). I personally believe that constitutional
matters are of the utmost significance and in the Islamic states, these constitutions are considered
Moreover, Salient administrative provisions include that head of State is a trustee of the public
property, all government revenues are to be deposited in Bait-ul-Maal, sources of revenue include
Ushr or Khiraj (from Muslims), Jiziya (from non-Muslims), zakat and khumus (1/5th of non-
Muslims’ properties acquired in conquest). From further research, I observed that last provision
involves that the Head of State or the Governors appoint the Qazis of Courts (Coulson, 2017). The
administrative matters are also discussed in Islamic law and there is a need to consider certain
The Islamic jurisprudence has its deep roots during the previous times. There is a need to
consider the history for the purpose of different aspects associated with the Islamic Jurisprudence.
The History of Islamic Jurisprudence is divided into four periods as described below (Hallaq,
2005):
1st Period
This period starts from Hijrah (as only after hirah the law making commenced) and ends on
Wisaal of the Holy Prophet (PBUH). The superstructure of Islamic law is based on the Text
revealed or compiled in this era. The Text referred to here and hereinafter is Quran and Sunnah
(including Hadith).
2nd Period
This period starts from wisaal and stretched up to the period of successors of the
companions. Collection, interpretation, and extensions of laws took place in this era.
3rd Period
This is the period of four Sunni Schools of thought. The theoretical and scientific study of
4th Period
This is the period of Taqlid (following) i.e. after the four Imams and up till now. Taqlid is
There are many different sources of Islamic law, which are of utmost significance. It has
been observed that the Holy Quran provides a complete code of life for people pertaining to every
walk of life. The following are the sources of Islamic law in order of priority:
Direct revelations upon the Holy Prophet (PBUH) from God are present in the form of
Quran (the divine book). It is therefore out of the question that any Islamic law could be in contrast
with any Quranic teaching (Hallaq, 2005). Thus this text forms the basic and first-hand source of
Islamic law.
The orders or the Ahkam in Quran are either classified as Taklifi (the defining law) and
Another classification is also available under which the Ahkam are divided into ethics,
faith, and practical life. Under practical life come Ibadaat and Muamlaat which are further divided
into legal provisions related to family, civil, penal/ criminal, judicial, constitutional and
Technically Sunnah comprises words, acts, and approvals. Sunnah in Islamic law includes
whatever teachings have been transmitted from the Holy Prophet (PBUH) besides the Quran.
There are many verses in the Quran itself which justify Sunnah as being the law to be followed
strictly. One of such being “Whoever obeys the Messenger has obeyed Allah” (Al-Quran) whereas
Holy Prophet (PBUH) himself has declared that Sunnah has been received by Him as being similar
Sunnah though having the strongest support for being the prescribed law is at times
qualified on the basis of authenticity i.e. whether continuous, famous or isolated and narration i.e.
Ijmah
Ijamah refers to the unanimity of opinion of religious jurists over a matter not specifically
dealt with by Quran and Sunnah. Several Quranic verses and hadith provide it authority (El Fadl,
2014). Prophet (PBUH) has asserted that the Ummah will not agree upon an error (Al-Tirmidhi,
Ibn-e-Majah) Ijmah is “Sanadi” (of learned people only) and “Mazhabi” (by words or by deeds)
Various qualifications have been prescribed for a person to be able to participate in Ijmah.
Qiyaas
El Fadl (2014) highlighted that Qiyaas in the legal context defined as a “process of
deduction to apply the law of the Text to cases which carry reason of the text” or to discover the
similarly applicable legal provision from the original Text to a new case without making a new
rule. The analogy is the main factor applied in Qiyaas which has the support of Sunnah.
Istihsan
In its literal sense, Istihsan means “to consider something good”. In this method rather than
comparing through a complete analogy, it is only discerned whether the new matter on which
question of law has arisen bears some quality of a previously approved or prohibited issue
(Bassiouni, 1982).
Customs
Customs are also considered to be a source law which some schools of thought rank above
Qiyaas. Various characteristics have been prescribed for customs to be legally enforceable
(Bassiouni, 1982).
Ijtehad
Ijtehad technically means an effort made by the Mujtahid in seeking ahkaam of Shariah
through interpretation. Ijtihad is carried out by applying all of the interpretive faculties to the
authorities of law which are the Quran, Sunnah, and Ijmah. Professional and personal
qualifications for Mujtahid have also been laid down (Hallaq, 2005).
Taqlid
This refers to following the jurists where Quran, Sunnah, and Ijmah are silent without
demanding arguments. Its authority is derived from the Quran and Sunnah.
Istishab
Declaratory laws deal with rights and obligations. It is critical to consider these aspects in
Juristic Acts
Acts give rise to rights and obligations. For legal purposes, the physical acts are divided
into originating and informative and further classified into valid, irregular and void (Hallaq, 2005).
Rights
Rights are divided into Huqooqullah (of God) and Huqooq-ul-Ebad (of men). Huqqoq-ul-
Obligations
Coulson (2017) indicated that Obligations are classified as by law (towards God and
individuals), by own acts (admission of others’ claims) and by conduct (infringing other’s rights).
Ownership (Milk)
Ownership legally means power and control of man on the thing (maal) excluding others.
Ownership over all things belongs to God alone in Islam. Proprietary rights are granted by God to
Contracts (Aqd)
Ijaab (offer) and qubool (acceptance) are necessary for a valid contract. Outward
There are certain civil remedies available to individuals. Considering the extrajudicial, it
includes qurqi/distress, recapture, retaliation and abatement of the nuisance. If the judicial aspect is
Criminal Law
Crimes are punishable by Hudood, Tazir, and retribution. Crimes liable to Hadd include
theft, alcohol, adultery, dacoity, mutiny, slander of woman and apostasy (Dien, 2004). Fixed
punishments have been prescribed under Hudood while punishments under Tazir and retribution
Laws, customs and treaty obligations are to be observed by the Islamic State in dealing
with other States (Muslim or non-Muslim). Conventions/ Injunctions to be abided by even in time
The matter discussed above though many of the important details being left shall give a fair
idea of the Islamic jurisprudence and prove that Islam gives a comprehensive legal system for
human beings to do justice and equity. From personal experience, it can be concluded that Islamic
jurisprudence contains the solution to a number of problems. If the authoritative bodies consider
the Islamic law, then states may achieve success within a short period of time. The Islamic law
significantly addresses the constitutional matters along with giving a comprehensive code to be
followed for governance. Further, while defining the respective rights and liabilities of the
individuals and the State, it provides for an effective administration of justice and people’s affairs
covering both the private and public laws. There is a need to consider the different situation, in
which the Islamic laws can be applied and may help in resolving the situation.
References
Bassiouni, M. C. (1982). Sources of Islamic Law, and the Protection of Human Rights in the
Islamic Criminal Justice System. The Islamic Criminal Justice System, 3, p.23.
Dien, M. I. (2004). Islamic law: From historical foundations to contemporary practice (p. 82).
El Fadl, K. A. (2014). Speaking in God's name: Islamic law, authority and women. United
Hallaq, W. B. (2005). The origins and evolution of Islamic law(Vol. 1). United Kingdom:
Mallat, C. (2004). The Renewal of Islamic Law: Muhammad Baqer as-Sadr, Najaf and the Shi'i
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