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Law and classication - Classification of Islamic law

Islamic law (University of Gujrat)

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Chapter: 04
SCIENCE OF ISLAMIC LAW, LAW AND
CLASSIFICATION OF LAW
WHAT IS LAW ACCORDING TO ISLAMIC PERSPECTIVE?
In Islamic legal science, the philosophy or concept of ‘law’ is unanimous among all
the jurists and the schools of law right from early periods till today. No dichotomy or
conflict of opinion upon this issue does exist in Islam. Therefore, in Islamic
Jurisprudence, the term ‘law’ possesses a permanent and universal character, which is
not subject to any alteration. ‘Law’ in Islamic terminology signifies the word ‘Hukm’
or ‘Hukm al-Sharii), which is defined as:
 “Law is a Rule of human conduct established by a communication from God, expressive
either of demand or indifference or a mere declaration. In other words, ‘law’ is a body
of rules with reference to human conduct, established from:
 Qur’an, (because it is an explicit and manifest version of Allah’s communications):
‘Prophetic Sunnah’ (because it is an implicit version, practical denotion and physical
demonstration of Allah’s communications) and
 ‘Definite Ijma’, (because it is an authoritative device of knowing and inferring what
God has divinely communicated to mankind).”
The issue of philosophy of law in Islam could not be grasped fully without making
reference to the elements of law from the Shariah perspective.

 ELEMENTS OF LAW

HAKIM- LAW-GIVER THAT MEANS SHARIE.

God Almighty and His Prophet possess an exclusive lawgiving authority in Islam. God is known
to be the Hakim in real and ultimate sense whereas Prophet Muhammad exercised His
Lawgiving authority, being the direct recipient of His divine powers and final agency of His
Legislative sovereignty. Therefore, whatever is ordained or abstained by the Holy Prophet, is
exactly known as the command of God Himself. The Qur’an has narrated this in fact in the
words: “And whatever the Apostle gives you, take it; and whatsoever he forbids you, abstain
from that". Furthermore, the Qur’an reiterates in Surah al-Maidah (5:2) saying: “He who obeys
the Apostle, obeys God indeed".

Hukm- that means legal rule or value established through communication itself
According to most of the Muslim Jurists, there are 500 Quranic verses which
expressly prescribe legal values. These are known as Ayat-ul-Ahkam. There are
also approximately 3000 Prophetic traditions which directly and expressly deal
with modes of human conduct. They are known as Ahadeeth-ul- Ahkam.

In addition to the 500 Quranic verses mentioned above, there are another 200
verses which deal with acts of omission and commission. It means that the total
number of Quranic verses which expressly or impliedly possess legal material

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comes up to 2500. The same applies to Prophetic traditions. The light of standard
definition of law or Hukm, Islamic Jurisprudence divides it into two classes:
(i) Primary or defining law (law which requires demand of commission or
omission of an act from a person legally capable or which provides him the
discretion between the commission or omission of a particular act) and (ii)
Declarative or declaratory law.

Objective of the law (mah kum bihi or mah kum feeh)

By objective of the law, we mean the purpose for which divine law is revealed.
They embody the motives and intentions that necessitated the express
manifestation of divine legal guidance. The purpose for which the divine law is
revealed are three:
(i) acts i.e. acts impossible in nature and practice, acts possible in nature but
impossible in practice and acts possible in nature and practice. The law in
Islam exempts human beings from the binding application and influence of
the first two categories of acts because they are outside the scope and
exercise of man’s authority. God Almighty has stated:
“On no soul does God place a burden greater than it can bear".

See also in Surah al-Baqarah (2:173) which states:

“Our Lord, do not lay on us a burden greater than we have strength to
bear".

(ii) rights and

(iii) obligations.

MAH KUM ALAYH-THAT MEANS SUBJECTS OF THE LAW

Subjects of law are the people for whom the law of Shariah is revealed. By
the term people we mean legally capable persons who are technically
termed as Mukallaf and the fitness of a person for the application of law to
his actions is called legal capacity.
PURPOSE OF LAW
It is to make good persons and a good society. Its whole objective is ethical and
moral. Shariah establishes what is good and beautiful. If something is not moral
(good and beautiful), it is not part of Shariah. In other words, Shariah is the law that
is based on ethics. Its basic values are permanent and universal. Shariah deals with
the outward and inward. The rules of Shariah cannot be fulfilled without sincerity,
true intention, love, and respect of the law and the Law-Giver, Allah. See Surah Ali
Imran, Allah says:
“You are the best of peoples, evolved for mankind, enjoining what is right,
forbidding what is wrong and believing in God."
(Surah 3: 110)

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USUL AL-FIQH AS THE LOGIC OF LAW

Logic, as is well known, is the study of how to think well, regardless of the particular
science or discipline under discussion. It specifies a general system that must be
followed if one’s argument is to be sound. For example, logic teaches us how to
prove that Socrates is a mortal, or that an infinite plane is impossible. All such
questions are taken up by logic according to standard methods of argumentation, such
as the syllogism or induction.

From this perspective, usul al-fiqh resembles logic, except that it deals with a specific
science, namely that of law. It directs us how to think soundly in the process of
deriving rulings, through a study of the common principles necessary for such a
derivation process to be valid. In sum, it teaches how a ruling is extracted from its
proofs according to standard methods of evidence. As such, it is appropriate to think
of it as
“the logic of the legal sciences,”
for its relationship to law is that of the relationship of logic to human thinking in
general .

POSTULATES OF ISLAMIC LAW

 Iman or Faith
 Tauhid
 Prophet hood
 Islamic Books
 Day After Death
 Faith Based on Human Reasons
 Prayers
 Hajj
 Zakat
 Fasting
 Human Reasons the Ultimate Reasons Basis of Justification for Law
Juristictis deduction i.e. qiyās, istehsan, isteslah etc.

ORIGIN OF LAW
When a person believes in growth and development of Islamic law he want to know
the procedure through which the entire Islamic law originated. For this purpose
jurists examine the;
1. Era of Prophet
2. Explore
a. Sources of Islamic law
b. Process of development
c. Why the legal schools best to implement islam in your life

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d. Reinforcement of legal school

3. Rightly guided caliph
4. Tabai’in
5. Great imams

SCOPE OF ISLAMIC LAW

Islamic law is the welfare of men as individuals which the law seeks to promote is
not in respect merely of life on this earth but also of future life. Islamic law is
indicated by our instincts which are as follows;
1. Self-preservation
2. Self-multiplication
3. Self-development
4. Social instincts

FUNCTIONS OF ISLAMIC LAW

1. To control and guide men’s conscious actions by creating restraint on their
freedoms.
2. Involuntary movements of the man of the physical world generally are regulated
by Islamic law.
3. To guide a man to do or no to do any act.

SANCTIONS

The mean by which compliance with the laws is secured are also of a wider
character in Muhammadan system then than sanctions of modern European laws.
Since Muhammadan law has two-folded objects,
1. Spiritual benefits &
2. Social goods
Its policy is to encourage obedience by offer of reward, and to discourage
disobedience by imposition of penalty. Penalty may be awardable
1. in this world (‘iqab) or
2. to the next world(‘adhab)
3. Or in both.
But reward (thawab) is awardable only in future life.

CLASSIFICATION OF ISLAMIC LAWS

Islamic laws alienated as following;

1. DEFINING AND DECLARATORY LAWS

All the acts which defines the characteristics of man’s acts, namely, wether

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o Obligatory
o Forbidden
o Condenmned
o Indicated the legal effect of an act
For instance;
Right of ownership arise from an act of purchase. The obligation to pay rent from
possession of another land is called defining laws. It is also known as hukm e taklifi.

Laws of declaratory class indicate the component elements of defining laws, namely,
wether,
i) Certain facts and events are the cause, condition or constituents of a
command.
ii) The functions of declaratory laws is interpretive in relation to defining laws.
For instance;
It is by means of declaratory laws that we know that proposal and acceptance, in a
transaction of sale are the cause of originating rights in the things sold in the buyer.

2.LAWS OF PERFECT AND IMPERFECT OBLIGATIONS

 A perfect duty is one which is not merely recognized by law but also enforced by
law. Laws having regard to their enforceability are broadly divisible in three
classes;
1) Those which concern men in the social and individual existence in this world.
2) Which solely concerned with he spiritual aspects of human life.
3) Laws which mainly concerned with the spiritual aspect of human life and also
affect the Muhammadan life in its religious aspect. The enforcement of this is
not oncerned with the state but to the individual discretion.
 Belonging to perfect laws are laws related to;
 contracts
 transfer of property
 succession
 domestic relations
 wrongs
 crimes
 There are rights and duties which are recognized by law but not enforceable by law
are imperfect laws. Such as;
 alms
 supererogatory
 prayers
 fasting or prohibiting condemned acts, such as;
sale during call of prayer

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3.RELIGIOUS AND SECULAR LAWS

Religious laws are the knowledge of such laws of shariat as are intended to be acted
upon, as already: stated.
 These matters pertaining to the next world, namely;
Acts of worship
 Or to matters pertaining to this world;
Shariat laws
Religious laws refer to ethical and moral codes taught by religious traditions. It is
also called “munakahat”.
While secular laws have the continued existence of men as individuals and called
laws relating to “muamlat”. That is dealing among men with others. Secularism is
often used to describe the separation of public right and civil/government matter from
religious teachings and commandment. In simple words,
“Separation of religion and politics.”

4.REVEALED AN UN REVEALED LAWS

Having regard to the sources or our knowledge of laws some laws are revealed and
others are unrevealed. Revealed laws are found in Quran and Sunnah while un-
revealed laws are not found in Quran and Sunnah but determined by agreement of the
learned, or deduced by individual jurists.

5.CERTAIN , PRESUMPTIVE OR DISCRETIONARY LAW

Certain laws are those laws which are (yaqini) and presumptive or discretionary laws
are those which known as (zanni). The theory is that all laws are of divining origin.
Unrevealed laws laws are laws by presumptions being based on revealed laws which
are original authorities or sources of knowledge of law. In case of a conclusion
arrived at by the learned as body, the presumption is conclusive and in the case where
presumption is made by individual jurists is not conclusive. A presumptive law does
not contain the certainty of beliefs while revealed laws and laws founded on census
of opinions compel the certainty of beliefs.

6.REPEALING AND AMENDING LAWS

There are some texts of the Quran and the traditions which have either been totally
repealed, or their application limited or modified by subsequent texts. Many jurists
believes that’s repealing and amending laws are belongs to the category of
interpretive laws. They argues that when certain laws have been promulgated, and the
time within which they have operate has not been specified, and law-giver afterwards
repeal them. The law-giver must be taken to mean thereby that the laws previously

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enacted were intended to have force until the time when the repealing laws were
passed and not thereafter. Similarly when one text is modified by a subsequent text
what is meant is that, when the amending text comes into operation, the original text
is to have a modified or limited application. Only a revealed law can be repealed,
limited or modified by another law of the same class.

7.STRICT AND MODIFIED LAWS

Another fundamental division of the Muhammadan laws is into
 Strict (azimat)
 Modified (rukhsat)
Strict laws consists of laws in their original theoretical and of rules in strict adherence
to the letter of the texts. Later class consists of rules with their rigour modified and
relaxed in the application of the principles of particular circumstances so as to
obviate hardships and inconvinces. This division runs through the entire range of
Muhammadan laws, wether based on text or analogy, and bear resemblance of
common law and equity law of the English system.

8.INTERPRETIVE LAWS
Interpretive rules is a rule issued by an adminntrative agency that only clarifies or
explains existing laws or regulations. An interpretive laws does not have the force of
the law. It is doubtful whether in muhammadan jurisprudence rules of interpretation
which have been devised by the human reasons, for the purpose of understanding the
text by applying our knowledge of language and grammar to their words can be
called laws properly so-called. Interpretation by means of such rules is distinguished
from authenticated interpretation, that is, interpretation of a Quranic, or traditionary
text by another text.

9.PUBLIC AND PRIVATE LAWS

Laws having regard to classification of rights as made by the muhammadan jurists,
devide themselves broadly into public and private laws. They devide rights into
 Rights of God
 Rights of men
The former corresponding to rights of the public and latter to private rights. Rights of
former class resides in God, but since they exist for the benefit of community or
public rights; private rights resides in individuals.

10. LAWS OF THINGS NOT SEPARATE DIVISION

The Muhammadan jurists do not recognize laws of things as forming a separate and
independent division. Laws according to them,

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 Concerned with the acts of men through judicial medium of rights and
obligations.
 Often such rights have reference to physical objects but not always and law
does not deals with object except property, that are things over which men
exercise “acts of possession and enjoyment”

11. LAWS OF PERSON

According to Muhammadan jurists,
 To the questions of application of law, having regard to the fitness of men for the
inherence and exercise of rights and discharge of obligation.
 Under this head they discuss legal capacity of;
 Infants
 Lunatics
 Slaves
 Sick person

12. INTERNATIONAL LAW

It defines the relation of the Muslim states and of the Muslim towards non-Muslim
states and non-Muslims and are not based on any international arrangements or
comity. This branch of the law is also discussed in most legal treatises chiefly under
the heading of As-Siyar.

13. LAWS OF EVIDENCE

The laws of evidence in Muhammadan system falls partly within the scope of
substantive law and the partly of the adjective law. Substantive law defines rights and
responsibilities in civil law while crimes and punishments in criminal law. Adjective
law refers to the portion of the law that deals with the rules of procedure governing
evidence, pleading and practice.

14. LAWS OF PROCEDURE

Law of the procedure dealt within Muhammadan jurisprudence as law appertaining
adab-ul-Qazi or duties of magistrate.

15. CONSTITUTIONAL LAW

Constitutional law of Muhammadan, which generally deals with in the books in
chapter on As-Siyar defines the duties and rights of the executive head of the
community.

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