General Considerations

ISLAM, SHARI’AH AND FIQH

ISLAM-literally means submission to the will of God.

 The will of God is that we should pursue husm (morally beautiful), that is beauty of life and character
and avoid qubh (morally ugly), that is ugliness of life and character.

SHARI’AH - is the totally of God’s commandments.

Defined as “that which would not be known had there not been a Divine revelations.”
 A divine system of law in its sources and primary rules.
 Covers not only the law relating to worship or religious practices (ibadat) but also the law regulating the
relation among men (muamala’t).
 Each of such commandments is called Hukm.
 Only what is expressly stated in the Divine revelations or may be inferred from them properly comes
under the Shari’ah.
 The Shari’ah embraces all human actions; it is, therefore, strictly not law in the modern sense but might
be regarded as a guide to moral conduct.
 The objective of shariah is to construct human life on the basis of Marufat (virtues) and to cleanse it of
Munkarat (vices).
 Proof (dalil) of sharia: SURA AL-NISA “O you believers! Obey God and obey the messenger and those
of you charge of affairs. If you have a dispute concerning nay matter, refer it to God and to the
Messenger”. (qur’an, Sunnah, ijma and qiyas)

Essential Element or Parts of Shariah

1. Ilm- knowledge of shariah

2. Amal- observe and practice shariah and to disseminate the knowledge of shariah.
3. Iklas- act according to the will of God.

FIQH- is defined as “the deduction of the Shari’ah values relating to conduct from their respective particular
evidences.”
 Science of Muslim jurisprudence or muslim law
 Literally means knowledge or understanding. Technically means knowledge of Islamic law (shariah)
 Science involving the study of Shari’ah

Shari’ah values (hukm shar’i)- is defined as the quality determined as a result of Divine revelation.
Ex. the fact of an act being prohibited in the shari’ah is its shari’ah value.

Types of Shari’ah Evidences:

1. Qur’an
2. Sunnah- model conduct of the prophet
3. Ijma- consensus, agreement
4. Qiyas- analogical deduction

 The use of the word “conduct” excludes htat part of the shari’ah which deals with matters of belief and
matter of ethics, but it still makes Fiqh wider than law in the modern sense because Fiqh includes not
only civil transactions (mu’amalat) but also religious ritual (ibadat).

USUL-AL-FIQH

- defined as the science of the principles whereby one reaches fiqh in the true way.
- Doctrine of the roots, the sources of law and methodology of their application.
- determines only those principles which are necessary for reaching the fiqh
- concerned with the essence of the laws, how laws are derived, how laws may change with exigencies,
and how to determine the priority of seemingly conflicting instructions.
-science of the sources and methodology of the law.
- Its subject matters are the four sharia’ah evidences.

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 Ex. Usul-al-fiqh tells us that in such and such conditions ijma constitutes an evidence for the
establishment of shari’ah value. Fiqh takes these propositions as a premise and deduces from it the conclusion
that a particular practice is lawful because there is ijma to that effect.

FURU AL FIQH
 The doctrine of the branches – applied fiqh, the systematic elaboration of the positive law.

FIQH vs. SHARIAH

 Shari’ah is broader as it includes within its coverage all human actions while the Fiqh is narrower and
deals only with what are commonly understood as legal acts.
 The path of shari’ah is laid down by God and His Prophet while the edifice of fiqh is erected by human
endeavor.

TAPSIR
 Science through which the text of the Qur’an, the injunctions contained therein, and the causes for their
revelations can be understood. Commentary to the verses of qur’an. (explain, expound and show the
objective)
 Tapsir is to explain the outer meaning of the qur’an while ta’weel is to interpret the inner or concealed
meaning of the Qur’an.

HUKM or RULE OF LAW

 Defined by the muslim jurists as “that which is established by a communication (khitab) from God
with reference to men’s acts, expressive either of demand or prohibition or indifference on His part
being merely declaratory.”

Classification of the verses of the Qur’an

1. Those relating to matter of belief (ilm-ul-kalam)
2. Those which deal with the rules of conduct of human beings
3. Those which deal with moral principles

Classification of laws in two main divisions according to their objectives

1. MANDATORY LAWS (Taklifi)

2. DECLARATORY LAWS (Wadi)

MANDATORY LAWS (Taklifi)

 Laws, which, define the characteristics of a man’s acts, namely whether they are obligatory,
forbidden, commendable, improper, permissible or which indicate the legal effects of an act.
 It requires a certain action or provides a choice of whether to follow it or not.

 When the communication (khitab) from God takes the form of a demand it may be absolute or nt
absolute.

a) FARD (Obligatory) - if absolute and the act demanded consist in requiring human beings to do
something

b) HARAM (Forbidden) – require them to forbear or abstain from doing something

c) MANDUB (Commendable) – when the demand is not an absolute character, the act to which it refers,
if it be one of commission is called Mandub.

d) MAKRUH (Condemned or Improper) - if it is one to be forborne or abstained from

e) MUBAH (Permission/Permissible) – an act with reference to the doing or omission of which there is
no demand in the communication from God is regarded as Mubah.

 All acts which are neither obligatory nor forbidden nor commendable nor condemned fall within the
category permissible (mubah).

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DECLARATORY LAWS (WADI)

 Its function is interpretative in relation to a mandatory law.

 Promulgated as a reason, a condition or a deterrent for actions, or which states whether these actions
are valid or void or whether they are allowed by concession or are permissible.
 Ex. Pronouncement of divorce is the cause of the extinction of the marital rights and the obligations
of the husband and the wife.
 It derives its character form the connection between one fact and another.

RUKN (formal cause)- if the connection between the two be such that one is included in the other, the former is
called the formal cause (rukn) of the latter.
Ex. Offer and acceptance of two parties to a sale are the rukn of sale because they are included in the
fact of sale.

ILLAH (effective cause) – if the fact so connected is not contained in, but is external to, the fact to which it is
connected, then if it has been indicated in the Qur’an or the hadith as the effective cause of the latter fact, it is
called its occasion or cause.

Classification of declaratory laws

1. Those which indicate the cause of a mandatory law

Ex. Marriage is the cause of the right of inheritance.

2. Those which indicate the condition which governs the operation of mandatory law
Ex. Requirement that a property should be possessed for year is the condition for the payment of zakat.

3. Those which prevent the application of a mandatory law

Ex. Impurity of the person prevents the validity of prayer and indebtedness may prevent the obligation
to pay zakat from arising.

 The main objective of the Shari’ah is to construct human life on the basis of ma’rufat (virtues) and to
cleanse It of mukarat (vices).

Classification of Acts according to its Religious Nature or Spiritual Effects

1. FARD (Imperative/necessary) - the act whose value has been established by the Quran or a mutawatir
Hadith (continue or popular hadith). Omitting of it is prohibited.

 Its legal effect is that it must be given absolute faith and obedience
 Ex. Faith and daily prayers

2. WAJIB (obligatory) – the act whose value has been established by shari’ah evidence, other than the
quran and mutawatir hadith.

 Its effect is that it must be executed like fard although it need not be given absolute faith like the
latter.
 Ex. Giving of alms for breaking fast

3. SUNNAH or NAFL- act which are not obligatory to the degree of being fard or wajib and whose
commission is still rewarded and is preferable to their omission, although their omission does not entail
punishment.

 It is Sunnah if it they are habitually followed in the religion or if the acts are believed to have been
performed by the Prophet habitually.

4. MUBAH or JAIZ (indifferent/permissible) – act whose commission is not rewarded but whose
omission is not punished.

5. MAKRUH (Improper) – acts whose omission is preferable to their commission.

6. HARAM (Prohibited) – acts whose commission is punished and omission is rewarded.

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Classification of Acts According to it Secular or Temporal Purpose or Nature

1. Sahih (valid) – acts that possess its essential elements for its validity
2. Faside (Voidable) – act that suffers from certain essential requirements though can be ratified
3. Batil (Void) – act that are prohibited by law and are therefore considered null and void
4. Makruh (reprehensible) – if its nature and circumstances corresponds with the law but something
forbidden is connected with it.

Performance of various prescriptions of muslim law

a) Ada – is the performance of the obligation at the time prescribed for it.
b) Qada- is the performance of the obligation after the time prescribed for it.
c) I’adah – is the second performance of the obligation at its prescribed time, the first performance being
suspected to be invalid for some reason.

 The norm in shari’ah injunctions is permission- all human acts are permitted or indifferent unless and
until some authority can be discovered in the shari’ah evidence which makes them fard or Sunnah or
makruh or haram.

Basis of muslim jurisprudence

 Iman or faith – constituent element of which is belief in God and belief in the truth of Muhammad’s
mission.

SOURCES OF MUSLIM LAW/ ISLAMIC JURISPRUDENCE

A. Primary Sources

1. The holy Qur’an

2. Sunnah (traditions of the Prophet, PBUH)

B. Secondary Sources

1. Ijma (consensus)
2. Qiyas (analogy or analogical deductions)

I. The holy Qur’an

 The legal rules is that the holy qur’an were revealed only when necessary to deal with questions facing
the muslim community which requires such solutions. Thus, qur’an was not revealed to lay down a code
of laws.
 Direct revelations of God and every word of the qur’an is regarded as be
 ing the direct utterance of the almighty.
 Code of conduct laying down fundamental principles and nit the detailed provisions.

Orders and injunctions can be classified into:

1. Instructions regarding prayers and worship

2. Fundamental principles regulating relations between men and man

Spirit of qur’anic verses- from the view point of jurisprudence the following basic principles are kept

1. Removal of inconvenience- the basic principle of Islamic law is the removal of inconvenience
2. Doctrine of lesser hardship

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 II. SUNNAH (Tradition of the Prophet)

Hadith vs. Sunnah

Hadith- literally means “that which is narrated”. Hence, it is the traditions attributed to the Prophet’s sayings in
all matters of law and religion.

Sunnah- its literal sense means “ a path or the way or manner of life”. It means and signifies the practiced of
the holy prophet. (his deeds and conduct)

 According to some, Sunnah includes also the practices of the four caliphs and other companions.
 But both of them are the same when used for the saying or the precepts of the prophet.
 The utterances of the Prophet had the sanctity of law

Qur’an vs. Traditions

Qur’an is the word of God, it is divine order, the dictates of the almighty, whereas the Traditons are the
words of the Prophet. As the prophet was a human being, the Traditions are the word of human beings and the
qur’an is the word of god.

Both are equally important sources of Islamic law and according to some jurists both are equal in all
respects in the sense that the Prophet’s precepts are in explanation to the Qur’an and he did not say anything
unless he was inspired by God, and in this respect Qur’an and Traditions have a common element of divinity.

 The methodology of determining the genuineness of Hadith consists of two parts: the first part is
determining the chain (isnad) of transmission and the second part is ascertaining the mata or the text, the
real substance of the reported the Hadith.

Classification of traditions

A. According to its legal force

1. Obligatory or instructive
2. Persuasive or informative

B. According to the number of narrators or proof

1. Mutawatir (continuous) – traditions narrated by numerous Companions and good number of

followers and their followers.
 The most reliable and are acceptable for purposes of legal matters due to the continuous concurrence
of narration.
 Entailed certainty of belief and a person who refuses to accept it is guilty of unbelief.
2. Mashur (famous) – narrated by a good many of the followers and their followers but few
Companions have narrated them.
 Next in rank, and acceptable as an additional source.
3. Ahad (isolated or solitary) – narrated during the period of the followers of the Companions by
numerous persons.
 Entails probability of belief and cannot in any way displace a rule or doctrine based on mutawatir or
Qur’an.
 May be accepted as a basis of legal doctrine provided it was related by a trustworthy narrator and is
corroborated by reason.
(a) Aziz- narrated by 2 or more Companions; (b) Ghareeb- narrated by only one companion.

C. According to forms

1. Verbatim- actual words of the Prophet are reproduced

2. non-verbatim – actual words of the Prophet are not reproduced

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 According to the mode of narration

1. Connected – traditions with complete chain of narration, linking right up to the Prophet himself.
With chain of continuity in its narration.
2. Disconnected- one or more of the links in the chain of narrators is missing.
If the tradition is narrated by the Companions it is accepted.

Functions of Sunnah- the functions of Sunnah or hadith is two-fold.

1. It helps us to understand the meaning of and to apply the verse of the qur’an, by explaining them, by
giving them details of general rules, by providing exceptions to their application or by defining them
when they are capable of several interpretations.
2. It lay down rules of conduct and of laws in some matters not dealt with in the Qur’an.

Rule for the Authenticity/Authority of the Traditions

1. Traditions should be narrated in all 3 periods. (companions, the followers of the companion, and
their followers)
2. Qualifications were laid down for the narrator of the Traditons
a. Muslim,
b. Of sound mind
c. Major
d. A man of judgement and understanding
e. Retentive memory
f. Of good moral character and clean conduct. Narration from a person whether woman, slave, or
blind was acceptable.
3. Narration of justice preferred over non-jurists
4. Narration of well-known people were preferred over persons of no reputation or obscure
5. Narration not inconformity with the qur’an or continuous, or practices of the companions should not
accepted
6. Allegation opposed to common sense is not accepted
7. Allegation with new theories and which support innovation is not acceptable.

 Traditions may be rejected when the report contradicts an evidence stronger than itself or when there is
defect in the transmitter.

3 Classes of Traditions According to the Character of the Transmitter

1. Sahih – transmitted by truly pious persons of character and integrity. Correct beyond doubt.
2. Hasan – transmitted by narrators who did not attain moral excellence of the narrators of sahih traditions
3. Da’if – transmitted by persons of questionable authority

Tradition is only accepted as the basis of the law if:

1. Not contradicted by some other legal evidence (qur’an or other tradition)

2. Although it appears to be contradicted by another tradition, it can be reconciled with that tradition.
3. Contradicts another tradition but it is subsequent in time to it, so that it can be said to have abrogated the
previous traditions.
4. Contradicts another tradition but can be shown to be superior to it.

Theory of Repeal or Abrogation (al-naskh)

 One text is said to be repealed by another when the two are conflicting with each other. It means that the
meaning of one tends to negate the meaning of the other, provided both relate to the same subject
matter; nature and both of identical meaning.
 A law is abrogated or repealed by another when the two are in conflict with one another and it is not
possible to reconcile them or when the other law expressly repeals the former.
 The general rule is that the later in time prevails over the earlier.
 If not possible to know which of them is first, both the repealed and the repealing texts must be revealed.

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Purpose and object of repeal

 The reason of the repealed law is that what may be good for the people of one age may not be good for
the people of another age.
 Its purpose- Islamic law believes in convenience, the purpose is convenience to the community and the
progressive implementation of Islamic principle and to blend these theories and principles putting the
circumstances of the time.

Repeal of one tradition by another

 Possible ex. The prophet in one of its earlier precepts condemned the practice of visiting graves but
later he allowed the people to do so to make them feel humble and god-fearing.

Repeal of one Qur’anic text by another

 Possible. Forbidding intoxicants. A verse is found in qur’an itself about repeal

Repeal of a tradition by a Qur’anic text

 Possible. Ex. Fixation of direction of prayers to ka’aba. (prophet-jerussalem)

Repeal do a Qur’anic verse by a traditionary text

 Sunnah should be followed when it conformed with the text of the qur’an or when such text was
lacking. In such a case Sunnah is regarded as explanatory of the meaning of the Qur’an

III. IJMA (CONSENSUS OF OPINION)

 Literally means unanimity of opinions, but in legal sense it is those principles of law which are accepted
unanimously.
 Agreement of muslim jurist or mustajids of a particular period on a certain rule as the solution to an
issue or a question of law.
 Unanimous opinions of scholars
 It may be defined as an agreement of the jurists among the followers of the Prophet in a particular age
on a question of law.
 Derivative of the word ‘Jama’- to add (collect), hence it means unanimity of opinion and a procedure
through which any principle of law is formulated by the unanimous opinion of all muslim law.
 Opinions must be based on a Shari’ah evidences
 Ijma has its authority by quran and by hadith
 The most outstanding example of Ijma is the collection of the qur’an and then acceptance of the
traditions as a valid source of law next to the qur’an.
 The origin of Ijma of the sahaba started after the end of the first period of Caliphate began, the only
source left of the people immediately after the 1st caliph was the qur’an and the Sunnah. Thus, since
neither of the quran or Sunnah was written the people whenever confronted with problems had to rely
upon those who knew the quran and Sunnah.
 The method evolved when learned people assemble in a group and decide the issue in the light of the
quran and available traditions. Such decisions, being unanimous had the sanctity and the force of law.
 Ijma may repealed only if based on public interest. Thus, if soundly founded on the text of the qur’an or
Sunnah then it could not be repealed by a subsequent consensus.

Forms
1. Ijthad or Rai – individual opinion
2. Qiyas - opinion based on any Qur’anic order or tradition
3. Ijma or juristic equity –consolidated collective opinion of jurists when opinion by a jurist differs from
qiyas

Kinds of IJMA
1. Absolute/regular Ijma – it is the positive kind in which the jurists express their opinion on any matter.
-strict conformity with the requirements of law and proved by infallible testimony.
-two ways: 1. By words and by deeds- consensus established by unanimous practice.

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 2. Irregular Ijma-no absolute certainty
3. Ijma-i-Ummah – people during the caliphate period unanimous in their opinions about any matter
4. Ijma-i-ulama – consensus of the learned people in Islamic law and religion only.
5. Ijma-i-madina – consensus of the learned people residing in madina- the seat of learning.

Who may participate in Ijma?

1. A muslim
2. A mujtahid or a Jurist
3. A man of sound mind
4. A man of thorough judgment
5. Capacity of making logical deductions
 Those who are competent are in the rank of jurist and are consequently fit to exercise Ijtihad or fit to
make proper exposition of law.

Qualifications for Mujtahid or Jurist

 A person or a scholar who exercised Ijtihad, or qualified to exercise ijtihad.

 Ijtihad- means independent reasoning
1. Conversant with the science of Islamic Law in both branches (jurisprudence and rule of law in different
departments)
2. A thorough knowledge of the Qur’an. (read, understand, and interpret the verses)
3. A thorough knowledge of the traditions
4. Aware and fully conversant with the rules and methods of analogical deduction

Conditions relating to the constitution of Ijma

1. A formal assembly of the learned people

2. Issue placed before the body
3. Gives sufficient thought to the problem
4. Examines it in the light of the qur’an and traditions
5. Unanimous decision
 In order that such verdict may have the absolute force of law, the unanimity of the opinion coupled with
such an assemblage is highly essential.

IV. QIYAS (ANALOGY)

 Literally means comparing. In the legal sense, it is a process of deduction by which the law of a text is
applied to cases which, though uncovered by language, are covered by reason of the text.

 A process of deducing a rule of law based on the Qur’an, Traditions or Ijma’ in matters which have not
been provided by a Quranic Traditional text.

 Differ from interpretation of a statue- the text is applied to case covered by its language while the
function of analogy is to extend the law of the text to cases not falling within the purview of its items.

 Does not establish a new law but a source which helps to discover the law.

 By use of analogy the law laid down in a text is generally extended and widened.

 Seeking solutions to have recourse to reason, logic and opinion because of new cases that occurred
which were not provided for in the Qur’an, Sunnah or Ijma.

Elements of Qiyas

1. Text or Root – text of the qur’an or hadith

2. Law – law laid down in the text
3. Branch – it is a particular case on hand, to which the law embodied in the text is to be extended.

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 4. Effective Cause – it is the fact, circumstances which the law-giver had in consideration when laying
down any law.
1. (Original subject 2. Object of analogy, being the new subject, 3. The effective cause
common to both subject 4. Rule arrived at by qiyas-hukm)

Ex. Drinking of wine is forbidden (qur’anic text)

Text: wine + law: forbidden + effective cause: quality of intoxicantion

+ branch/case on hand: its preparation = analogy: preparation/production of wine is also forbidden

Essential Conditions of Analogy

1. The law enunciated in the text which analogy is attempted to be applied must not have been indicated to
be restricted to a particular state of facts.

2. Analogical deduction may be based on the text of the qur’an or traditions provided that such text are not
repealed.

3. Analogy must not be applied to the vocabulary of the text but to the effective cause on which the law is
based.

4. The law of the text must not be such as its raison detre cannot be understood by human intelligence.

5. The deduction must not lead to a change in the law of the text itself

6. The rule of analogy must not be opposed to the text of the Qur’an and traditions.

OTHER SHARI’AH SOURCES

1. Istihsan (Juristic Preference/equity)

2. Al Masalih Al Mursalah/ Istishlah (Public Interest/good)
3. Istidlal and Itishab (presumption of state of continuity)

I. ISTIHSAN (JURISTIC PREFERENCE)

 The literal meaning of Istihsan is preferring or considering a thing to be good.

 The rule deduced by the application of Qiyas to a text of the Qur’an or Traditions appears to the jurists
to be harsh, inconvenient, and inequitable, the jurist is at liberty to disregard it and adopt one that seems
fair and just.
 The doctrine of Istihsan is based on the consideration that the law is regulated for the good of the
community and the welfare of all. For the convenience or removal of hardship.
 Ex. If there should a basis stronger than analogy such as the text of the qur’an, Sunnah or consensus of
opinion, they would set aside such analogy and adopt instead the stronger basis through “preference”.
 Qur’an and Sunnah are legislations; analogy is common law while Istihsan is equity.
 Ex. Contract of sale: in Islamic law to be valid the subject-matter requires to be in existence at the time
of the deal. Thus, a contract with an artist to supply the picture at an agreed price and to be delivered
later would be invalid by analogy but under the principles of Istihsan it is valid on the basis of necessity
and the general practice of the transaction.

Istihsan vs Ray vs Ijtihad vs Qiyas

 Individual reasoning is called Ray but when it is used by a mujtahid (jurist) or a qualified person it is
called Ijtihad or striving to deduce the law. When it is directed towards achieving systematic consistency
and is guided by the parallel of an existing institution or decision, it is called Qiyas or analogy. When it
reflects the personal choice and discretionary opinion of the jurist, guided by the idea of
appropriateness, it is called istihsan or istishah, approval or preference.

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 II. AL-MASALIH AL-MURSALAH/ ISTISLAH (PUBLIC INTEREST)

 The deduction of the law is to be based on general consideration of the public good.
 Ex. Imposition of taxes to the rich

Condition for Masalih Mursalah to be adopted as a new source.

1. The case should not be one relating to religious observances. (matters of transactions only)
2. The interests should be in harmony with the spirit of the shari’ah and not in conflict with any of its
sources.
3. The interests are essential and necessary and not for luxury. (ex. Preservation of religion, life, reason,
off-spring and property)

III. ISTIDLAL AND ISTISHAB

 Form of rationalization different from Qiyas.

 Istidlal –
or deduction is the striving after a basis for a rule.
Special source of law derived from reason and logic. Deduction by logic.

 Istishab –
Or deduction by presumption of continuity. Literally means permanency.
It is used to denote that things whose existence or non-existence had been proven in the past
should be presumed to have remained as such for lack of establishing any change.

Extraneous sources of Muslim law (outside of the primary, secondary and subsidiary sources of Muslim law)

1. Legal fiction – false averments. Legal assumption that something which are or may be false is true.
2. Legal maxims- general rule which apply to all particular cases. Establish principle or proposition.
3. Legislation
4. customs

IV. ANCIENT LAWS

V. CUSTOMS AND USAGES

 Generally means that which a group of people have become accustomed to doing.
 Recurring practices which are acceptable to people of sound nature.
 Customs is authoritative- means it can be invoked as a ground to a legal precept.
 No legal effect if it is repugnant the revealed law and law founded on ijma.

Conditions of a Binding Custom

1. Acceptable to the people of sound nature - reasonable and compatible with good sense and public
sentiment.
2. A Custom must be frequent and common recurrence. (universally prevailing)
3. Effect is given to customs prevalent at the time of the transaction or previous thereto but not to the later
or new customs.
4. Not valid if contrary to an explicit condition
5. Not in conflict with shari’ah text or must conform to the established legal sources.

VI. STATEMENTS OF THE COMPANIONS OF THE PROPHET

 Ijma or consensus of the of the Companions of the Prophet

 Reason: The Companions had been the closest associates of the Prophet and had therefore the most
intimate knowledge and understanding of his Sunnah, life and causes of revelation, the connotation of
the texts and exigencies.

 Shar’i basis- regular sources of Islamic law

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Maxims
 A shar’ah rule based upon a cause survives or ceases with it
 A shari’ah rule based upon its cause when it ceases the rule ceases
 These maxims are in relation to the principle of evolution of laws- shariah laws should undergo
changes to suit the changing times.
 If the text is related to matters of religious observances and worship, then it is firmly fixed and
unchangeable.
 If a text relates to matter of worldly transactions, the rule therein would be to consider the and to
understand the causes upon which such text is based.
 The evolution and changeability of legal rules does not mean changing the text themselves. The texts
are divine and cannot be changed in any case. What is meant by change is really the change in the
interpretation of these text in the light of necessity and the change in the customs or in the effective
cause upon which they are based.
 The spirit of the shari’ah is founded upon public interest, public good and the facilitation of life in
general.

IJTIHAD AND TAQLID (INTERPRETATION AND IMITATION)

Ijtihad
 Literally means to exert oneself or exerting oneself to the utmost or to the best of one’s ability.
 Jihad- under this concept means to fight but in the academic sense.
 In jurisprudence the term means a lawyer’s exerting of the faculties of mind for the purpose of
formulating an opinion on any point of law.
 A method of for making deductions in matters of law in cases to which no express text or rule,
determined by ijma is applicable.

Who can exercise Ijtihad?

 MUJTAHID – is one who is authorized to expound the law of qur’an, Sunnah or Ijma by Ijtihad.
Ijtihad is the exclusive privilege of a mujtahid.

Qualifications of Mujtahid
1. Thorough knowledge of the Qur’an and must be able to interpret it. Knowledge or Arabic language is a
prerequisite
2. He must be a master of Traditions
3. Fully acquainted with theory of repeal
4. Well-versed in the science of Islamic jurisprudence
5. Man of sound judgment and piety

Conditions for the validity of Ijtihad

1. May be resorted to only in the absence of an applicable text of the Shri’ah.
2. Should not contravene the shari’ah
3. The course of reasoning should not get entangled in any kind of complication of expression which might
affect the people’s direct attachment to the shari’ah.

IJTIHAD vs. TAQLID

 Ijtihad means exerting the utmost on any legal question with a view to formulate an independent opinion
by a jurist.
 Taqlid means the following of the opinion of the learned or another person without knowledge of the
authority of such opinion.
 Taqlid is a discussion of the historical development of Islamic jurisprudence.
 Taqlid in the term of jurisprudence means the following of the opinion of a jurist in matters which have
not been dealt with by express quranic or traditionar text it Ijma.

Principles laid down by Qur’an and Traditions as the basis of Islamic Law
1. The executive authority of the government was established for the first time; that means with the
promulgation of Islam and induction of the holy prophet- the prophet not only became the religious head
of the entire muslim community but was also acknowledged as the temporal head of the people.
2. Justice, equity and universal brotherhood became the cardinal principles of Islamic law.
3. War as an instrument of State policy was renunciated or renounced. – after the advent of Islam the
Prophet declared that there would be no aggression and that wars shall be waged only in defense of
Islam, Islamic State and Muslim Community.

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 4. Reforms regarding the social status of women were brought about.
5. Individual property right was recognized.
6. Contracts and their obligation were regarded sacrosanct or sacred or inviolable
7. Penal laws were made and rights of God were separated from rights of men.

RIGHTS UNDER ISLAMIC LAW

Rights of God (huququllah) Rights of Men (huququl-Ibad)

Definition: involves benefit to the community at large Attributed to particular individual

Likened to Public rights Private rights
Referred to God because of the extent or magnitude
of risks to which the community stand exposed in
their violations and the comprehensive benefits
which accrue to the people
Enforcement rests with the State Left to the will and pleasure of the individual
concerned
Ex. Infliction of punishment of Hadd for the offense Contracts, lawful acts, family rights, ownership,
of theft, land tax, impost, atonement, acts of faith reputation and safety

LEGAL CAPACITY (dhimmi)

 Quality by which man becomes fit for what he is entitled to and what he is subjected to.
 Deals with the man’s rights, his acts and determines how far one is legally entitled to do an act and
under what circumstances law renders him legally capable or incapacitated.

Kinds of Legal Capacity

1. Receptive – capacity for inheritance of rights and obligation. Ex. Child’s capacity to inherit
2. Active – capacity which enables one to exercise hi rights and discharge his obligations.

How legal capacity is affected?

 By nature (samawi) – infancy, lunacy and sleep

 Man-made (maksubah) – slavery, drunkenness, mistake, ignorance of law and duress

Intention vs. motive

 when the object of our intention is also the object of our wish – the law treats motive merged in
intention, but when different, the object of our wish is called motive.

Instances of circumstances/ grounds affecting legal capacity

1. Forgetfulness – brought by nature and not attributed to man’s acts. Hence, the rule is that an act done out
of forgetfulness does not render the person legally liable. Ex. Eating during fast (applies only in matters
of right of God)
a. If the act done in matters of rights of men, he still liable though done out of forgetfulness.
2. Sleep- no proper judgement thus not liable (ex. Signing documents) but if causes damage to another’s
property he may be held liable
3. Mistake – absolved if done in ordinary course. If caused infringement he is liable.
4. Intoxication- looks into the cause of intoxication to determine the validity of acts done by person.
5. Coercions- if grave not liable
6. Ignorance of the law – if common man’s acts done by him in clear violation of a rule in Islamic law (text
of qur’an or tradition) he is liable as he has done them with full knowledge of their invalidity.
Jurists- concerning their judgements, if contrary to basic tenets of Islamic law, are not inoperative.
-decision on questions that are not covered by the qur’an and traditions or Ijma are operative and
as such an ignorance of law is said to be excused.
7. Infant or minors. Acts done by him for his benefit is valid.
-not liable for blood money nor he is liable to be deprived of inheritance rights he
acquires from a person whom he has killed.

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