HOW TO CONVERT ISLAMIC JURISPRUDENCE

INTO A MATURE LEGAL SYSTEM

Business Law

Submitted to
Mr. Zubair Shah

Submitted by
Nabil Shuja Qazi (10-2642)

PROGRAM
BACHELORS OF BUSINESS ADMINISTRATION (BBA)
SPRING 2013

National University of Computer & Emerging Science

Management Science Department, Karachi
Table of Contents
Islamic Law: ............................................................................................................................................. 3
Objectives of Islamic Law:........................................................................................................................ 3
Islamic Jurisprudence: (Fiqh).................................................................................................................... 4
Sources of Islamic Jurisprudence: ............................................................................................................ 5
1. The Qur’an: .................................................................................................................................. 5
2. The Sunnah: ................................................................................................................................. 6
Practicing Islamic Jurisprudence: ............................................................................................................. 6
Legal Capacity: ........................................................................................................................................ 7
Causes of Defective Legal Capacity: ..................................................................................................... 7
Natural cause of Defective System: .................................................................................................. 8
Acquired cause of Defective System:................................................................................................ 9
Flaws in the Democratic System of Pakistan: ......................................................................................... 11
How to overcome these Flaws to make a Mature Legal System: ............................................................ 14
Mature Legal System of Saudi Arabia agreeing to Islamic Jurisprudence: ............................................... 15
Mature Legal System of United Arab Emirates: ...................................................................................... 16
Conclusion:............................................................................................................................................ 17

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Islamic Law:
Islamic Law is a comprehensive system covering the human being’s relationship with his
Creator, with his other human beings, and with his humanity and territory. It furthermore
agreements with the relationship between countries in both conflict and peace. Most jurists
divide the study of Islamic regulation into two very wide categories:
1. Devotional Law
2. Transaction Law.

Devotional Law agreements with the injunctions that have as their primary objective attaining
nearness to Allah, showing Him thankfulness, and seeking eternal pay in the future. This
includes prayer, fasting, Hajj, jihad, zakat, and the fulfillment of covenants. Transaction Law, on
the other hand, deals with recognizing experienced advantages and regulating human
undertaking, both on the one-by-one and societal level.

Devotional Law furthermore disagrees from Transaction Law in that Devotional regulation is
usually beyond the scope of human reason. There is no way for man to realize the supreme
objectives behind the injunctions except that they constitute the worship of Allah. As for
Transaction Law, its injunctions are usually understandable, and human cause is often adept to
ascertain the intent behind them. Because of this, persons who settled in times when there was no
divine guidance were still able to use their abilities of cause to develop legislation. When Islam
came, it reaffirmed more than a couple of these laws that they used to rule themselves with.

Objectives of Islamic Law:

When we state “objectives of Islamic Law”, we are referring to the general aspires that Islamic
Law strives to fulfill with respect to the human life as well as the specific aims that specific
lawful injunctions have been set down in alignment to accomplish. These objectives, thus, can be
classified into two very wide classes: general and specific.

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The exact objectives of Islamic Law are those that Islamic regulation hunts for to recognize in a
narrower domain of human undertaking, such as economics, family life, or the political
alignment. This is achieved through exact legislation aimed at considering with specific issues.
Here are some factors that a secure human can ranked in their order of importance as follows:

1. Necessities: These are things that mankind will not dispense with, no matter what the
circumstances. The most significant of these are the five universal necessities that will be
considered shortly.
2. Needs: These are things that persons require in alignment to fulfill significant obligations
of their inhabits, the absence of which leads to hardship and disorder, but which does not
convey about an end to life itself. These things make themselves manifest in the exact
Islamic injunctions pertaining to commerce, marriage, and other types of transactions.
3. Niceties: These are things that beautify life and make if fuller and richer. They
encompass anxieties such as dressing precisely, the correct groundwork of food, and all
other good customs that form human behavior.

Islamic Jurisprudence: (Fiqh)

Islamic jurisprudence is a scheme of legal idea and practice, renowned as fiqh, which is founded
on the sacred law, or shariah, drawn from exactly from the Quran, the Sunnah. These initial
source components have been expanded and understood by Islamic lawful scholars and teachers.
The rulings and doctrines of Islamic jurisprudence cover many localities, but much vigilance is
dedicated to issues of faith and sincere observance.

Legal scholars in the Islamic world have concentrated much of their vigilance on issues of
demeanor, and classify diverse activities on a spectrum encompassing mandatory, recommended,
allowed, discouraged, and forbidden activities. Prayer, fasting, and charity are amongst the
mandatory activities, while blasphemy and acts that violate the Ten Commandments are among
those that are forbidden.

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The community lives at a very important location in Islamic considered and is likewise important
in Islamic jurisprudence. Fiqh locations matters of generous society and economics in an effort
to mitigate the disruptive consequences of both riches and poverty, by mandating such practices
as a tax on wealthy Muslims to be used to help the poor.

Partitions have been derived amongst the fiqh, as Islamic jurisprudence has evolved in different
main headings within distinct components of the Islamic world. The most spoke split is between
Sunni and Shia, as the distinct culture and practices of these two assemblies have been embodied
in two distinct understandings of regulation. Each of these two sides has fractured as well, and
debates over matters of regulation continue inside both communities.

Sources of Islamic Jurisprudence:

Allah has supplied articulate proofs and clear source-evidence in order that the believers should
have no problem in finding their way to the particulars of His legislation, or Ahkam. The source-
evidence upon which the entire Ummah completely agrees, and on the validity of which there is
general agreement, comprises the two causes that formed the cornerstone of legislation at the
time of the Prophet (PBUH). These two causes of legislation are:

1. The Qur’an:
This may be defined as the words revealed to the Prophet (PBUH) the recitation of which itself
constitutes an act of worship, the shortest Surah of which is a challenge to mankind to produce
anything the like thereof, every letter of which has been transmitted to us via an indisputably
authentic chain of authority Tawatur; which is written between the two covers of the Holy Book
Mushaf beginning with Surat al Fatihah "The Opening Chapter" and ending with the Surat al
Nas.

Given the significance of regulation to the perform of Islam, the widespread English
transformation of Shariah as "Islamic regulation" is not awkward but in my view it is more

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accurate to believe of "Islamic law" as being fiqh and to believe of Shariah as certain thing more
overarching such as “Islamic doctrine.”

However, this points out that while the Qur’an contains over 6200 verses, less than 10% concern
to law and jurisprudence while the remainder agreements with matters of belief, morality and
faith.

2. The Sunnah:

This includes everything, other than the Qur'an, which has been transmitted from the Prophet
(PBUH); what he said, did, and agreed to.

Therefore, every word of the Prophet (PBUH), apart from the Qur'an, and his every deed, from
the starting of his operation to the last instant of his life, constitute his Sunnah, in the general
sense of the phrase, whether these establish a ruling which is usually applicable to all
constituents of the Ummah, or a ruling which applies only to the Prophet himself or to some of
his Sahabah.

Throughout the lifetime of the Prophet (PBUH), all the lawful rulings Ahkam of the Shari'ah,
inclusive of all of its classifications, such as principal and drawn from rulings, teachings on the
fundaments of the faith, and regulations considering individual perform and legalities, were
drawn from these two sources, the Qur'an and the Sunnah.

Practicing Islamic Jurisprudence:

Basic, primary Islam is clearly stated in the following (sahih) hadith:
A Bedouin came to the Prophet and said, "Tell me of a deed such that if I were to do it, I would
enter Paradise (as a result)." The Prophet said, "Worship God (Allah) without worshiping
anything along with Him, offer the (five daily) prescribed prayers, pay the compulsory
alms(zakat), and fast the month of Ramadan." The Bedouin said, "(I swear) by Him in whose

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hands my life is, I will not do more than this." When he (the Bedouin) left, the Prophet said,
"Whoever would like to see a man of Paradise should look at this man?"
Narrated by Abu Hurayrah in the Sahih of Bukhari, Volume 2, p. 272-73, book 23, #480.

Whereas the hadith documented above shows four practices (worship of God solely, prayer,
almsgiving, and fasting), the core of Islamic practice (which is the solid or outward manifestation
of the inward mind-set of submit to God) is conveyed in the well-attested hadith, "Islam is based
upon five [practices]..." which are furthermore called the "five pillars."

 Shahada, bearing witness that there is not anything worthy of adoration but God and that
Muhammad is God's messenger;
 Salat, performing the prescribed Islamic prayer;
 Zakat, almsgiving of a 2 1/2 % levy on one's asests;
 Sawm, fasting from sunrise to sunset throughout the month of Ramadan; and
 Hajj, performing the pilgrimage to Mecca.

Legal Capacity:
It can be defined as the value by which man become fit for what he deserves to and what he is
subject to.

Causes of Defective Legal Capacity:

The causes influencing capacity are discovered in those components that avert capability for
Acquisition and capability for execution, from taking full effect.

The jurists divide the causes of defective capability or that effects legal capability into two kinds.

I. Natural cause of defective system

II. Acquired cause of defective system

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Natural cause of Defective System:

These are determinants that are beyond the control of man.

i. Minority:

It is the state or status of a human being after birth and before puberty. The place of a minor for
his actions from the legal issue of outlook is the identical in Islamic law as in English law. The
acts of minor may be considered as follows:

 A minor can go in into economic transactions, through his guardian if it is for his
advantage. He is also liable to any impairment initiated to another’s house, and for the
maintenance of the wives and beside relatives.
 A minor cannot be punished for his actions which turn into offences.
 The Ibadat are not obligatory on the minor. He is not bound to present actions of worship.

ii. Insanity:

The lawful capacity of an insane individual except as to acts done in lucid gaps is influenced in
the same way as that of an infant without discrimination. He has no liability for ibadat or
punishments and all his transactions are void.

iii. Idiocy:

An idiot is an individual who is confused in his talk and peaks occasionally like a shrewd man
and some-times like a Lunatic. He can be permitted by his guardian to undertake some
transactions.

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 iv. Sleep:

Since man has no command over doze and will not use his senses throughout state of sleep, thus
he would not be lawfully, liable, e. g. If a man falls on a progeny in doze and murders him, there
is no liability for punishment.

v. Forgetfulness:

This is a state of need of recollection which is conveyed about by environment and is not
attributable to man’s actions. A man is not liable in the affairs of right of Allah e. g. eating
throughout very quickly. But he is absolutely liable in the mattes of right of men e. g. if he
determinants wound to another individual by violating a personal right, his legal capacity will be
considered to be intact.

vi. Death Illness:

This is a status in which the brain of a sick person is overridden by the detail that he will die
because of his sickness. It has no effect on the capacity for acquisition or on the capacity for
execution. An individual suffering from death-illness is prohibited from going into transactions
that are in excess of one-third of his wealth.

Acquired cause of Defective System:

These are those determinants that are created by man or in which human will and alternative are
the rudimentary factors.

i. Intoxication:

Intoxication for the time being suspends the correct functioning of the mental faculty. It does not
sway the capability for acquisition and a drunken individual is held liable for the decimation of
life and house and furthermore for all obligations for upkeep etc. as far as his capacity for

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execution worried, he is liable for all actions if he voluntarily beverages and legal capacity is
negated if forced to drink.

ii. Jest:

When a individual values phrases without proposing to convey their prime or lesser meanings, he
is said to speak in jest. Jest has no effect on effect on the legal capability.

iii. Coercion & Duress:

It is a position in which one is forced to do certain thing without his willingness.

iv. Ignorance of Law:

Usually ignorance of regulation is not held to be an apology, for it is the duty of every Muslim to
make him acquainted with it.

v. Ignorance of Facts:

It is considered as an apology in regulation. For instance, a pre-emptor right will not be lost, if he
failed to make a demand through ignorance of the detail that his co-owner or close by had traded
the house subject to pre-emption.

vi. Insolvency:

If an individual becomes insolvent, that is his assets; fall short of his debts and liabilities, when a
court of competent jurisdiction so declares, his lawful capacity becomes defective in the eye of
law.

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Flaws in the Democratic System of Pakistan:
The problems in Pakistan are so vast and comprehensive that they can extend the River Indus. It
is not incorrect to speculate or affirm that the pendulum is apparently in favor of what is more
wrong actually in our territory than what is right. Our financial stability is on its knees, basic
necessities are now a luxury, industry is close to collapse and the split up between the wealthy
and poor has not ever been more apparent.

Many have contended and will continue to do so that until Pakistan votes into office a
charismatic, influential and dependable leader, anything will not be changed. Although, the
problem of successive failed leaders is just the tip of the iceberg.

The structure currently in location very strongly safeguards the privileges and concerns of the
rich and aristocrats and continually marginalizes against the poor. It has always defended the 5 to
10% elite in society and protected their vested interests at the total cost of the rest of the
community. The laws made are always passed to favour the wealthy and their political and
communal aspirations while the poor’s concerns, desires and claims are scarcely highlighted,
battled for or even in an open way discussed on various platforms. It is all a fantasized drama,
and the pledges made by politicians in today’s day or age, are not anything more than token signs
which are clearly depression and not ever followed through.

The problem starts well before the voted into office people start their period as MNA’s in
assembly. From the start of campaigning to be voted into office, the dirty sports are clear-cut.
First and foremost in any other democracy over the world the major tool an aspiring political
leader has is his manifesto. This manifesto lets the voter, gage in to the brain of the one-by-one
wanting to be elected, by looking at his stance on flaming matters and what he ultimately will do
to fix them one time in power. How many political leaders are there in Pakistan who mainly has
a manifesto? And for those who do, how numerous fulfill any of the promises they make in their
crusade to be voted into office?

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Furthermore the extravagant expenditure in location to assurance votes in elections is amazing
and another continual labor in the game of government. Candidates can spend millions upon
millions in protecting votes. This is done through political force, fear, rigging, and monetary
inducements for voters and at times even political assassinations to ward off opposing candidates
from challenging. With such economic strength how can a widespread man anticipate to run for
office? Except you are bankrolled by a lucrative backer or from your own accumulated riches, it
is assured that you will fail before you even start. It really does not issue if you are a more
educated or trained candidate. Money in this instance actually does talk.

If an unaligned party wins in their respective localities, a tendering conflict will then ensue from
foremost political parties across Pakistan to secure their collaboration. The successful nominee
does not gaze at the political aspirations of these parties nor do they observe if their convictions
are matching with their own. It all arrives down to money and who is willing to part with the
most to secure their acceptance and association.

One time victory is protected, the losing party is habitually subject to mock, humiliation, and
harassment after their decrease for solely trying to challenge with the eventual winner. And what
is the cause behind this? For simply challenging to fight against your adversaries considered
method? This is not democracy.

The only persons or parties who gain from such murky political endeavors are the rich,
landowners, aristocrats, thieves, con creative persons and general people who would not be
trusted if brought ahead in a court of law. Is this the Islamic system Quaid-e-Azam energetically
fought for? Are these the only viable nominees left to contest the authority of our country?

Is it thus any shock that one time elected, these persons convey about no change? They are in the
place where they are for their own financial and collective gain. The general public, their rights
and needs are uncompromisingly overlooked and disregarded. This is the cause that successive
authorities have thus disintegrated whereby they will not fulfill their 5 year tenures. The

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reasoning behind this is because the homeland for the last 60 years has certainly been in political,
economic, communal and lesson chaos.

How can persons live in a homeland and anticipate it to do well and flourish when corruption is
evident in all walks of life. The accurate persons that make the laws and those who are tasked in
applying these legislations are themselves the most corrupt. Corruption therefore types further
corruption and it then trickles down to the widespread man whereby it is viewable in sports,
enterprise, religion, selling, and commerce and so forward. Beyond this, still salaries do not
anticipate the inflation in the country. Everything has increased in price whether it is food, gas;
gasoline, electricity, land yet the salaries have not bigger in time.

This thus proceeds to show that the election of a foremost or political party will not bring about
the change that is craved. An allotment more is needed than just one foremost being altered.
With the present scheme in place, even 10 elections will not convey about the needed level of
transformation which can take Pakistan out of these deep holes it is currently overwhelmed. It is
the scheme which desires reform and not who is being seated attractive as the Prime Minister or
President in the approaching years. And until the territory recognizes this and stands up for what
is their democratic right, till then anything will not be changed.

Allama Muhammad Iqbal, a national hero and treasure once commented, “People who have no
contained over their process of conceiving are expected to be exhausted by liberty of thought. If
considered is immature, liberty of considered becomes a method of converting men into
animals.” Does this considered method not anticipate upon the current state of Pakistan? Iqbal
liked a Pakistan- a territory for the Muslims distinct from India. However this extract is still
relevant today regardless of 60 years of flexibility and almost 100 years after it was primarily
quoted by Iqbal. We reside in a state where equality, freedom of talk and calm co-existence is
still an illusion, despite this all being pledged to us upon independence.

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How to overcome these Flaws to make a Mature Legal System:
An entire proprietor of alterations is required. The nation needs to convey proportional
representation in to the scheme. How can it be that in a locality of 10,000 for instance, where
only 5,000 votes, the person who wins by approximately 8 to 10 votes is elected as the overall
foremost? Proportional representation should be incorporated. Furthermore education should be
given to the people of Pakistan, so that they can do difference between the right and the wrong.
We are the friends of India yet our literacy rate pales compared to theirs. How numerous
academics do we have who are very well versed in the English Language? The sad truth is that
some leading political leaders are not even equipped to run the agencies they are currently
heading.

Until major reforms are not made, this homeland will not ever stabilize itself. The potential of
the youth is this homeland is unlimited- the atmosphere is really the limit. However we must
shatter the entranceway first in order for such talented people to be identified and then put in
befitting places for them to prosper.

Until we do not stabilize our homeland and have stringent responsibility in all types there is no
issue retaining any further elections as not anything will be changed? For a successful change it
is not sufficient that there is just discontent. What is needed is a deep and thorough conviction of
the fairness, necessity and significance of political and communal rights. We are not conversing
about revolution as it is perceived in current times. We need a communal transformation, a
political transformation, a learned transformation, a lesson revolution and most importantly a
transformation of the brain. This over the board change will only happen when the persons
whose privileges have been rejected, stand up and no longer accept such a authoritarian regime.

Remember Zardari is not our enemy, neither is the Muslim League or MQM, PTI or any other
political party. The Pakistani nation’s biggest enemy is the failed system which schematically
defends the elitist monopolistic couple of who advantage and prosper from it.

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In alignment to move ahead the persons of Pakistan will need to stand up and be counted. They
should double-check that a new system is put in place where the mandate is altered and
respectful, patriotic, noble and dedicated people are brought forward to take this homeland out of
the dark aperture it is currently imprisoned in. It is Pakistanis who must take those hard steps to
begin to bring mutual and moral change to protect the freedoms which are their unambiguous
rights. Take off those invented shackles as they are chained up to, and contest for the things that
are fairly theirs.

Mature Legal System of Saudi Arabia agreeing to Islamic

Jurisprudence:
Since Saudi Arabia is an Islamic state, its judicial system is founded on Islamic law (Shari’ah)
for both criminal and civil situations. At the peak of the lawful scheme is the monarch, who
actions as the last court of appeal and as a source of pardon.

The Saudi court system consists of three major parts. The biggest is the Shari’ah enclosures,
which discover most situations in the Saudi lawful system. The Shari’ah enclosures are
organized into some categories: enclosures of the First example (Summary and General Courts),
Courts of Cassation and the Supreme Judicial assembly. And they are basically following
Hanbali school of Islamic Jurisprudence.

Supplementing the Shari’ah enclosures is the Board of Grievances, which learns situations that
involve the government. The third part of the Saudi court scheme comprises of diverse
committees within government ministries that address exact arguments, such as labor matters.

In April 2005, a regal alignment approved in principle a design to reorganize the judicial system.
On October 1, 2007, a regal alignment accepted the new system. Alterations encompass the
establishment of a Supreme Court and special financial, work and administrative courts.

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Mature Legal System of United Arab Emirates:
Since UAE is also known as the Muslim country, yet they pursue the municipal regulation
scheme, inspired by the Roman and French legal schemes and the Egyptian municipal codes of
regulation. The prime source of law is legislation. The court scheme is generally inquisitorial,
unbound by precedent and comprised of particularly taught judicial officers. Albeit a federation
of emirates, the judicial scheme is not all-inclusive, as some of the emirates have their own
unaligned judicial systems. Despite being an Islamic country, the application of Shari'ah law is
constrained and financial/contractual transactions are regulated by in writing financial codes and
laws that are consistent with western enterprise desires. The right of audience in a court is
usually constrained to UAE nationals, permitted by the Ministry of Justice.

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Conclusion:
In order to convert the Islamic Jurisprudence in to a mature legal system in Pakistan, we first
have to focus on the Islamic law. And must follow the objectives of the Islamic laws of needs,
necessities and nicety. As the courts in Pakistan must have to look first in to the Islam before
giving any decision in any case. But here the things are different, because of the corrupt
politicians, who are making the system of the Pakistan corrupt. These are the main reasons why
our police/ judges/courts are corrupt. As I have gave the example of Saudi Arabia, they have the
best mature legal system according to the Islamic Jurisprudence, they have very least corruption
in their system, just because their people, courts, and even the king is highly committed to their
country. Whereas, UAE is not following the Islamic Law very harshly, but they have at least a
very good and mature system in their country. So, in order to overcome the problems of
Pakistan, the politicians should be changed first, those persons should become the leaders of
Pakistan, who are highly committed to their religion as well as towards their own nation.

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