The Most Suitable CLR Series

According to the syllabus of University of Azad Jammu &

Kashmir Muzaffarabad

Islamic Jurisprudence

For LL.B Five Years Program (Part III)

By

Advocate Muhammad Adnan Masood

CITY LAW COLLEGE

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 ‫يم‬ ٰ ‫ٱلر ْح هم ِن‬
ِ ِ‫ٱلرح‬ ِ ٰ ‫بِس ِْم ه‬
ٰ ‫ٱَّلل‬

Philosophy of Islamic Legal System

One of the principles of Islam which precedes juristic discussion proper is that God,
the creator and lord of the world, has commissioned humanity to believe, confess and
act in particular ways. The details of this commission (taklif) were handed down
through a sequence of prophets, culminating in Muhammad, and were then
embedded in two literary structures which together constitute revelation (wahy): the
Qur'an, which is the word of God, and the hadith, short narratives of the prophet's life
and sayings which give expression to his (and his community's) ideal practice
or sunna. The totality of beliefs and rules that can be derived from these sources
constitutes God's law or shari'a.

ِ ‫ضيتُ لَ ُك ُم‬
‫اإل ْسالَ َم دِينًا فَ َم ِن‬ َ ُ‫ْال َي ْو َم أَ ْك َم ْلتُ َل ُك ْم دِينَ ُك ْم َوأَتْ َم ْمت‬
ِ ‫علَ ْي ُك ْم ِن ْع َم ِتي َو َر‬
ٌ ُ ‫غف‬
‫ور َّر ِحي ٌم‬ ِ ‫غي َْر ُمتَ َجانِفٍ ِ ِإلثْ ٍم فَإِ َّن‬
َ َ‫ّللا‬ َ ‫ص ٍة‬ َ ‫ط َّر فِي َم ْخ َم‬ ُ ‫ض‬ ْ ‫ا‬
‫سورة المائدة‬
Juristic literature has generated two major literary genres. One, known as usul al-
fiqh (roots of jurisprudence), deals with hermeneutical principles that can be used for
deriving rules from revelation; it represents, in part, something like a philosophy of
law. The other, dominant genre, furu' al-fiqh (branches of jurisprudence), is an
elaboration of rules which govern ritual and social activities. An overall philosophy
of law in Islam, not fully articulated in the pre-modern tradition, can only be
discovered through consideration of both genres.

1. Revelation
2. Usul al-fiqh
3. Furu' al-fiqh
4. Contemporary trends

1. Revelation

In Islamic belief there are a number of principles, derived from the exercise of the
intellect or from history, which precede juristic discussion proper. These include, for
example, that God exists, that he is creator and lord of the world, and that he has
commissioned humanity to believe, confess and act in particular ways. The details of
God's commission (taklif) have been mediated through a sequence of prophets
culminating in the seal of all the prophets, Muhammad, whose message abrogates
previous messages and is for all peoples. With the death of the Prophet, the divine
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command has been embedded in two literary structures which together constitute
revelation (wahy): the Qur'an, which is the word of God, a miracle, and the hadith,
short narratives of the Prophet's life and sayings which give expression to his (and his
community's) ideal practice or sunna.

The totality of beliefs and rules that can be derived from these sources constitute
God's law or shari'a (see Islamic theology).The Qur'an is usually deemed to contain
no more than about 500 verses of legal import. The body of hadith was immensely
larger. It was contained in a number of admired collections, the core of which
included, for the mainstream Sunni community,

the pre-eminent collections of Bukhari (d. ah 256/ad 870) and Muslim ibn al-Hajjaj
(d. ah 261/ad 875). Beyond these, there were a number of collections that might be
brought into the play of juristic discussion; the major sectarian group, the Shi'is, also
had their own collections. The vast bulk of hadith material, as contrasted with the
modest quantity of juristic material in the Qur'an, ensured that hadith was in practice
the dominant element of revelation in hermeneutical discussions. The Book is more
in need of the sunna than the sunna of the Book, said the Syrian jurist Awza'i
(d. ah 157/ad 774), echoing the efforts of other scholars to articulate the controlling
effects (judging, abrogating and explaining) of sunna on the Qur'an.

2. Usul al-fiqh

The literary tradition of usul al-fiqh (roots of jurisprudence) is usually thought to

begin with the Risala of Muhammad ibn Idris al-Shafi'i in the third century ah (ninth
century ad). However, there is then a hiatus between this work and the emergence,
some two centuries later, of other works of the same kind. Modern scholars have put
this down to pseudepigraphy, or to the community's engagement with theological and
intellectual problems. Once established, this tradition, although it developed in a
variety of ways, showed remarkable structural and conceptual unity over the
centuries, with individual books always including a presentation of hermeneutical
principles and an elaboration of the theory of ijtihad (independent judgment).

Since revelation was constituted by written texts, a primary bundle of hermeneutical

techniques related to linguistic and rhetorical structures. These were usually
presented under simple antithetical headings (the general and the particular,
commands and prohibitions, the clear and the ambiguous, the absolute and the
qualified, truth and metaphor and so on), which might or might not be integrated into
a general theory of language and rhetoric. Consideration was given to the principle of
abrogation (naskh), a result of diachronic revelation, and (with reference
to hadith only) to the mode of transmission, which was either general report
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(tawatur, giving rise to certain knowledge) or isolated report (ahad, giving rise to
uncertain knowledge or opinion). Consensus (ijma'), whether of the community or of
scholars, on the meanings of revelation was discussed, as was the operation of
analogy (qiyas) as a means (variously qualified) to permit extrapolation of rules from
a finite body of revealed texts. These, together with a limited number of extra items,
either of substance (such as the opinions of the Prophet's companions) or of judgment
(such as the relevance of maslaha, or social welfare) represented the major focuses of
analysis and discussion within a single and more or less unified literary tradition for
about a thousand years. The hermeneutical loyalties of the mainstream Sunni
community were summarized by reference to the four principles (usul) of
Qur'an, sunna, consensus and analogy.

The whole bundle of interpretative devices and principles of judgment was

acknowledged to lead to conflicting possibilities (ta'arud) and to the necessity for
rational and justified preference (tarjih). The context and the significance of juristic
preference depended on the theory of ijtihad, the expression of which was a
culmination and a kind of resolution for all other arguments in a work
of usul. Ijtihad literally means effort; technically, it means the exertion of the utmost
possible effort by a trained jurist, taking into account all the relevant texts of
revelation and principles of interpretation, in order to discover, for a particular
human situation, a rule of law. Underlying this definition there is an important
epistemological principle. It concedes that most of the details of the law are not
known (not certain) but are a matter of skilled (and preferably pious) deduction on
the basis of principles that are themselves subject to debate and incapable of
providing certainty.

Within this area, the jurists were committed to acknowledging the views of other
jurists, if adequately defended, and to the elaboration of systematic arguments to
defend their own views. Committed in this respect to debate and uncertainty, the
jurists (in this context mujtahids, those who undertake ijtihad) also acknowledged a
need for final decisions in particular cases. This was provided by asserting that the
result of an act of ijtihad was binding both on the mujtahid himself and, where
relevant, on those who were not experts in the law and could not participate in
juristic debate (muqallids). These, by an exercise of choice (which was itself an act
of ijtihad), were required to commit themselves to a particular mujtahid and to accept
his rulings. The theory of ijtihad thus provides both an epistemology (permitting and
encouraging debate and intellectual play) and a structure of authority. In its former
aspect it accounts (in part) for the vitality of the tradition of furu' al-fiqh, and in its
latter aspect it justifies the participation of the jurists in positions of authority,
notably as judges (qadis) and the jurisconsults (muftis).

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The structures set out above, which were capable of considerable and diverse
development, represent the main features of usul literature for both the Sunni
community and for the Shi'is. The latter differed from the Sunnis in rejecting most
forms of analogical argument. Summarizing their usul, they substituted for the Sunni
principle of analogy that of intellect ('aql) deemed by them (but not by the Sunnis) to
be capable of independent moral judgment. The Shi'i community was initially
suspicious of the theory of ijtihad (perhaps because it too easily acknowledged
plurality and uncertainty in the law), but it was integrated into their works
of usul from the time of 'Allamah al-Hili in the eighth century ah (fourteenth
century ad). Amongst the standard classics of the Sunni tradition are
the Mustasfa of al-Ghazali and the Muwafaqat of Shatibi (d. ah 790/ad 1388),
showing an original foregrounding of the principle of maslaha. One of the
outstanding usul writers of the Shi'i tradition after 'Allamah is the nineteenth-century
Shaykh Murtada ibn Muhammad Ansari.

3. Furu' al-fiqh

The other major genre of juristic literature, furu' al-fiqh (branches of jurisprudence),
is constituted primarily by rules (positive law). It might be expected that individual
writers in this genre were, from generation to generation, engaged in the process
of ijtihad. However, this is not quite the case. In the course of the ninth and tenth
centuries ad, the Islamic community became committed to a pattern of juristic
loyalties whereby, in the end, all Muslims identified themselves with particular
schools (madhahib) of the law. Within the Sunni tradition there were four dominant
schools, the Maliki, Hanafi, Shafi'i and Hanbali schools, each named after its
founder. These acknowledged each other and also gave qualified acknowledgement
to a number of minor schools, and to the Shi'is. The vast majority of significant
jurists belonged to one of the major schools, usually by virtue of birth and
geography, only rarely by choice and adoption. When they wrote a work of furu' al-
fiqh, they gave expression to the rules (with the attendant patterns of dispute and
debate) that they had inherited within their school. The fundamental acts
of ijtihad were thus projected back to the founder and to the early masters. By an
ongoing act of loyalty, commitment and preservation, successive generations of
jurists rediscovered and restated the rules of the tradition to which they belonged.

Works of furu' therefore show a dominant hermeneutical orientation towards earlier

works in their own tradition, and not towards revelation. This is reflected in the
characteristic patterns of citation, which invariably recall the opinions and judgments
of earlier masters within the school, and the literary forms of such works (epitome,
commentary, supercommentary), all marks of hermeneutical commitment to a
particular school. In so far as writers in this tradition actually deployed arguments of
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the type described in works of usul, they did so in order to demonstrate that the
inherited structure of rules could be aligned with revelation and not for the purposes
of ab initio deduction of the law. Developments in the law, manipulation of its
concepts and their application to new cases were always carried out in the light of the
inherited structure. The inconcinnity between the principles of jurisprudence as set
out in a work of usul and the practice of a writing jurist was eventually
acknowledged with the recognition that, in relation to the school founders, these were
principles of discovery while, in relation to later jurists, they were principles of
justification. Hermeneutical thinking within the tradition (based on juristic texts, not
texts of revelation) was known as ijtihad fi 'l-madhhab or school-ijtihad and
distinguished from the independent ijtihad of the founding figures.

4. Contemporary trends

Muslim thinkers of the twentieth century, committed to various programmes of legal

reform or political action, have developed a number of theoretical props which take
them away from the traditional modes of juristic expression. They have often
abandoned the particularity of school loyalties; instead, they have adopted law-
drafting techniques that reflect the realities of modern nation-states, borrowed legal
and social principles from a variety of sources, and argued strenuously that the door
of independent ijtihad is open, meaning that they can again make independent legal
judgments based on direct confrontation with revelation (often using a definition of
revelation, at least in relation to hadith, which is more limited than that of the past).
The major, and certainly the most obvious, modern responses to the juristic tradition
have been practical, either in the service of state law or in the service of political
opposition. There has been a corresponding lack of interest in the philosophy that is
articulated in the traditional forms of juristic discourse, especially those of furu'. In
different ways, both of the traditional genres, usul and furu', acknowledge the
exploratory nature of the effort of defining God's law and situate themselves in a
flexible and pluralist system of rules. They may have more relevance to
contemporary problems than is generally conceded .

The modern linguistic calque falsafat al-tashri' (philosophy of legislation) or its

equivalent is currently used in several Islamic countries to designate a variety of
academic activities. These range from conservative scholarship, drawing heavily on
the tradition of usul al-fiqh, to analytic descriptions of legal developments in modern
Islamic states and something like the Western discipline of philosophy of law

History and growth of Islamic Legal System

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The Pre-Islamic Period

The place where Islam was born is Arabian Peninsula. This country has a land of one
million square miles (or 625,000 squares Kms) which is mainly dominated by desert
and steppe areas. It was inhibited by Bedawin tribes who were nomads and
pastoralists. They were moving from place to place looking water and pasture for
their flocks of sheep and camels. The community was based on tribe that consisted of
descendants of the same blood and was bound not only together through blood but
also a strong almost unbreakable sense of fraternity.
The tribe had rules which held it together. These rules differ from tribe to tribe so we
may say there were no uniform set of laws. This task was left to be accomplished by
Islam as we will discuss next.

The Period of the Prophet (PBUH)

To understand this period it is worthy to know about the life of the Prophet
Mohammed (PBUH) very briefly. The Prophet was born in 570 A.D. He lost his
father and mother at his child hood. For that reason he was looked after by his
grandfather who died when the Prophet was eight. In spite of all those lose the
Prophet was strong hearted.
In 595 AD at the age of 25 he married a rich widow named Khadijah who was not
simply a wife. Rather she was a disciple. Another woman who played an important
role in Islam was Aisha. It seems why Attallah. N. wrote” Central to the Story of the
birth of Islam are two remarkable women; Khadijah, the Prophet’s first wife and
disciple, and Aisha, the girl who became his youngest wife and the source for much
of hadith”
Prophet Mohammed received the first revelation through the Angel Jibril (Gabriel) in
610A.D. First he started teaching Islam to his friends and family. Then in 613 A.D he
started teaching in public.

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This brought him opposition which led to the boy-cott of the Hashim, Muhammed’s
clan. The purpose of that boy-cott was organized to isolate him and expose him for
attack.
This led him to seek a suitable place to spread the message without obstacles.
Therefore in 620 A.D, he began consultation with clans in Medina to facilitate his
move there. Consequently he was visited by 12 men from Medina in 621 A.D. Again
in 622 A.D he was visited by a group of 75 persons who declared their support for
him and his message. This resulted in his migration from Mecca to Medina in 622
A.D. This period of departure and emigration of Mohammed and his followers from
Mecca to Medina is known as thehijirahto Muslims [PBUH], and is the starting point
of Islamic history.

The Period of the Pious Caliphs (Khulfat E Rashida)

The prophet (PBUH) died in 632. The period of the caliphs followed. It was between
632-661 A.D. Four caliphs accessed the Prophet (PBUH). They were Abu baker
(573-634 AD), Umar (584-644 AD), Uthman (577-656 AD) and Ali (600-661 AD).
Now we will discuss each caliph at a time very briefly.

Hazrat Abu baker Siddique (R.A)

We are not going to discuss the life history Abu baker in detail. What we will do is
we will discuss what were the measure things attributed by him to Islam which we
will do, as well, for other caliphs. It is worth to raise one point related with the
appointment of Abu baker. Some historians say that the Prophet (PBUH) had
selected Abu-Baker to precede him after his death. For this argument they mention
the fact that the Prophet (PBUH) shortly before his death selected Abu-Baker to lead
the Muslims in one of the most important religious functionaries (Friday Prayer)
Others say this is against the very essence of democracy that exists in Islam. They
argued that the prophet left this open. For “Abu baker’s designation as a leader was
symbolized by the offering of baya (Oath), a handclasp used by the Arabs to seal a
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contract, in this case an oath of obedience and allegiance The reason why the Sahaba
(Companions of the Prophet) gave this baya was for the Sahaba Knew him to be the
best among them.
He also demonstrated that by accomplishing the following;
He took up on himself the task of collecting the Quran. During the life time of the
Prophet the text of the Quran was preserved.
In memories
Inscription on such material as stones wood and bone
He quenched the insurgency that had arisen immediately after the Prophet’s (PBUH)
death
Islam expanded to lands of Syria, Iraq and Palestine.
He ordered the codification and collection of the traditional sayings (Hadith) of the
Prophet (PBUH) before they were forgotten with the sands of time.

Hazrat Umar Farooq (R.A)

He was the second caliph who stepped into the seat of leadership that was vacated
when Abu baker died in Medina in 634 AD. Before we enumerate the task he
accomplished it is worth to mention one point about Umar which describes how he
was fearsome among his tribes. Al-Misri writes “(I) bn Masud later observed, “(W) e
were not able to pray by the Kaaba until Umar became Muslim”

The following tasks were undertaken by him

Egypt and all Arabian Peninsula were added to the dominions of Islam.
12,000 Mosques were built
He related about 537 Hadith, from the Prophet (PBUH).
Dated Islamic events from the year of the Hijirah

Hazrat Usman Ghani (R.A)

He was the third caliph who received the caliphate shortly after Omar’s death in AH
23. Some of the tasks accomplished by Hazrat Usman were
Much of the Balkans, Cyprus and much of the North Africa were added to the
dominions of Islam.

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The task of collection, verification and systematic compilation of the Holy Quran
which was commenced with Abu baker was completed. Thus written copies were
compiled in to one single volume. This copy was sent to all sectors of the Islamic
world.

He had related 146 Hadith from the Prophet (PBUH)

Hazrat Ali (R.A)

He was the fourth and the last caliph. He was born in 600 AD in Mecca. He was the
cousin of the Prophet (PBUH) who latter arranged a marriage between Ali and his
daughter Fatima whom he cherished and adored
Ali transferred the capital city from Mecca to Kufa when he took office in AH.35.
Some of his attributes were he:
He was among the learnt ones among the companions
He related hundreds of Hadith
He was a diplomat and states man of the highest echelon and showed familiarity of
the highest order in the political administrate in social and legal duties a governing
body owed to its people.

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 Schools of thought in Islamic Fiqh

These schools are also known as Orthodox Schools. These four recognized
schools of Sunni law, propounded during the reign of Abbasids are:

i. The Hanafi School

ii. The Maliki School

iii. The Shafi School

iv. The Hanbali School

All the schools of Sunni Law subscribed to the same principles, but they differed in
details. First of all, we should bear in mind that these schools are not sects; they are
systems of interpretation. There are four ancient sources of Islamic Law: i. Holy
Quran ii. Sunnah iii.Ijma iv.Qiyas

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The main cause of the division among Sunnis is probably there different degrees of
stress on one or more sources of law, though the text of Holy Quran and Sunnah is
accepted by all these. The sub-division among Sunnis took place due to different
interpretations put on law by the founders of the sub-schools.

Part I: The Origin of These Schools

1. The Hanafi School:-

The oldest of the orthodox schools of law is that of the Hanafīs. This school is
regarded the most prominent among the four schools. The Hanafī school was
founded by the Imam Abu Hanifa, a tabi‘i1 whose legal views were preserved
primarily by his two most important disciples,
Abu Yusuf and Muhammad al-Shaybani.

A characteristic of Hanafī doctrine is the use of analogy (qiyas). In cases

where pursuing analogy strictly would lead to a result that did not seem to be
entirely just, Abu Hanifa made his decisions on the basis of discretion or
considerations ex aequo et bono2; that procedure was called
“istihsan” (to consider better). It was justified by the argument that, with istihsan, a
custom (urf) applied in all areas of the Islamic world was included in the process of
searching for an appropriate
determination. Ultimately, this was nothing else than acknowledging ra’y3 as an
independent

source of law. It gave the Hanafis the chance to find flexible judgments which
were not strictly attached to the wording of the Quran.

2. The Maliki School:-

The Mālikī school of law owes its name to the Medinan scholar Mālik bin
Anas. It relies on the Quran and hadiths as primary sources. This school also
considers the Ijma (consensus of the people of Medina) to be a valid source of
Islamic law.

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 Maliki school's sources for Sharia are hierarchically prioritized as follows:

● Quran

● Sunnah(sayings, customs and actions of Hazrat Muhammad ‫;)ﷺ‬

● Amal (customs and practices of the people of Medina),

● Ijma (consensus of the companions of Muhammad ‫)ﷺ‬.

● Individual's opinion from the Sahabah,

● Qiyas (analogy),

● Istislah (interest and welfare of Islam and Muslims),

● Urf (custom of people throughout the Muslim world if it did

not contradict the hierarchically higher sources of Sharia).

3. The Shafi School:-

The Shafi‘i school one of the four schools of Islamic law in Sunni Islam. It
was founded by the Arab scholar Al-Shafi‘i, a pupil of Malik, in the early 9th
century.
The Shafi school predominantly relies on the Quran and the Hadiths for
Sharia. Where passages of Quran and Hadiths are ambiguous, the school first seeks
religious law guidance from Ijma – the consensus of Sahabah (Muhammad's
companions). If there was no consensus, the Shafi‘i school relies on individual
opinion (Ijtihad) of the companions of Muhammad, followed by analogy.

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 4. The Hanbali School:

This school named after its founder Imam Abu Abdullah Ahmad-ibn-
Hanbal.The Hanbali school is the smallest of four major Sunni schools.

Hanbali school derives Sharia predominantly from the Quran, the Hadiths
(sayings and customs of Muhammad‫)ﷺ‬, and the views of Sahabah (Muhammad's
companions). In cases where there is no clear answer in sacred texts of Islam, the
Hanbali school does not accept jurist discretion or customs of a community as a
sound basis to derive Islamic law, a method that Hanafi and Maliki Sunni fiqhs
accept.

Part II: Differences with one another Sunni school

1) Hanafi School

The Hanafi School is the first of the four Sunni schools of law. It is distinguished
from the other schools through following reasons:
● It’s less dependence on oral traditions as a source of legal knowledge.

● It developed the interpretation of the Quran through a method of analogical

reasoning known as Qiyas.
● It also established the principle that the universal consensus of the Islamic
community on a point of law constituted evidence of the will of God. This
process is called Ijma, which means the consensus of the scholars. It puts
more emphasis on Qiyas.
● The school definitively established the Qur'an, the Traditions of the Prophet,
Ijma' and Qiyas as the basis of Islamic law.
● In addition to these, Hanafi accepted local customs as a secondary source of
the law.

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 2. Maliki School:-

The Malikis' concept of Ijma differed from that of the Hanafis and other
schools due to following reasons.
● They understood it to mean the consensus of the community represented
by the people of Medina. (Overtime, however, the school came to
understand consensus to be that of the doctors of law, known as Ulama.)
● Imam Malik's major contribution to Islamic law is his book al-Muwatta.
The Muwatta is a code of law based on the legal practices that were
operating in Medina.
● It covers various areas ranging from prescribed rituals of prayer and
fasting to the correct conduct of business relations. The legal code is
supported by some 2,000 traditions attributed to the Prophet.

3. Shafi School:-

Shafi was the third school of Islamic jurisprudence. Following are the
reasons that differentiate Shafi school of thought from other school:
● According to the Shafi School the principal sources of legal authority are
the Qur'an and the Sunnah.
● Of less authority are the Ijma of the community and thought of scholars
(Ijtihad) exercised through Qiyas.
● Shafi School of thought stands in between the Maliki and Hanafi schools
i.e. less in the way of Qiyas and personal opinion.
● It excels in the technique of deductive reasoning for reaching a judgment.

4. Hanbali School

The Hanbali School is the fourth school of law within Sunni Islam. Its
distinguishing features are the following:
● It derives its decrees from the Qur'an and the Sunnah, which it places
above all forms of consensus, opinion or inference.
● The school accepts as authoritative an opinion given by a Companion of
the Prophet, providing there is no disagreement with another Companion.
In the case of such disagreement, the opinion of the Companion nearest to

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 that of the Qur'an or the Sunnah will prevail.
● Unlike other Schools of thought, Hanbali School has almost no use for
Qiyas (Analogy) or personal opinion, to such an extent that they even
prefer narration of weak Hadith over Qiyas.

Jafaria School of Thought (Fiqah E Jafria)

One of the well-known Muslim schools of thought, also known as the 12er Shia
school of thought, is the Jafari school of thought. The word ‘Jafar’ in ‘Jafari’ refers
to the sixth blessed Imam of the Prophet’s family (AhlulBayt), peace be upon all of
them. The martyrdom of Imam Jafar as-Sadiq (peace be upon him) will be
commemorated in the upcoming days.
Imam Jafar as-Sadiq was born on 17 Rabiee Awwal, 83 AH, in Medina, present-
day Saudi Arabia, to the fifth Imam, Imam Muhammad Al Baqir, and Um Farwah.
The Imam lived in a time when the Umayyad Dynasty was losing control of power
to the Abbasid Dynasty. During this period, the power gap allowed for the Imam
to spread the knowledge of Ahlul Bayt and teach the true teachings of Prophet
Muhammad (peace be upon him and his family).

Imam as-Sadiq was known to be the most knowledgeable of his time in the Qur’an,
Hadith (traditions), and other religious sciences. Imam as-Sadiq had thousands of
attendees taking part in his classes. Those who agreed, those who disagreed, and
those who just wanted to listen flocked from different parts of the world to hear the
great imam. One of the most famous students of the Imam was Jabir Ibn Hayyan.
Jabir was the great chemist who is known as Geber in the Western world.

The Imam had many debates and wise responses to atheists and followers of
different schools of thought. In one instance, someone asked Imam as-Sadiq to
show him God. The Imam replied, “Look at the sun.” The man said that he could
not look at the sun because it was too bright. Imam as-Sadiq replied, “If you
cannot see the created, how can you expect to see the Creator?”

Imam As-Sadiq used to give his companions general outlines about how to validate
hadiths and know the laws. The Imam once said, “Do not accept any hadith
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supposedly narrated by us except that which is in harmony with the Qur’an and the
Sunnah, or if you find in it a witness (to the meaning) from an earlier narration.”

The Imam also confirmed to his companions another general rule, “My narration is
the narration of my father, and the narration of my father is the narration of my
grandfather, and the narration of my grandfather is the narration of Ali son of Abu
Talib, and the narration of Ali is the narration of the Messenger of Allah, and the
narration of the Messenger of Allah is the Word of Allah the Exalted.”

It was not very long before the Abbasid Dynasty tightened its clutch over the
Muslim world and began to sense the danger of a man like Imam Jafar as-Sadiq.
The Abbasids feared that a population armed with the knowledge of Ahlul Bait
would not be good for their politics. The Abbasid Caliph, Mansur Al Dawaneeqi,
poisoned the Imam on 25 Shawwal, 148 AH. Imam Jafar as-Sadiq was buried in
the Baqee cemetery in Medina. He is visited by thousands of Muslims every year.

17 | P a g e
 Sources of Islamic Law

Primary Sources of Islamic Law

Quran as primary and fundamental Source of Law

‫ سورة الحجر‬- ‫إنا نحن نـزلنا الذكر وإنا له لحافظون‬

1 Introduction
• Quran is Primary source of Law and it is in very Words of ALMIGHTY
ALLAH .The holy Quran is basically direct revelations on Holy Prophet (P.B.U.H)
by ALMIGHT ALLAH. For jurists is
restricted for his first search for any hukam to be in Qura. Jurist can’t move in
search of any
hukam to other source unless their search for a hukam complete from Quran.

1) Meaning

• The word Quran derived from Arabic word Qura’a which means “TO
READ”

2) Definition

• Jurists unanimously unable to define the definition but:

3) Definition by Al Bazdawi

• Quran is revealed on Holy Prophet (P.B.U.H) and it has been transmitted to

us by Holy Prophet (P.B.U.H). Quran is an authentic revelation without doubt

18 | P a g e
5) Revelation of the Holy Quran

• Quran revealed on Holy Prophet (P.B.U.H).First revelation was on Holy

Prophet (P.B.U.H) in age of 40.Surah Al Alaq was revealed firstly upon Holy
Prophet P.B.U.H
Following is the verse of Holy Quran:

َ ‫سنَ ِم إن‬
ٍ َ‫عل‬
‫ق‬ ِ ‫َخلَقَ إ‬
َ َٰ ‫ٱإلن‬
” READ IN THE NAME OF THY LORD, WHO CREAT THE MAN FROM A
CLOT”

4) Attributes of the Holy Quran

• There are 55 attributive names of Holy Quran, some out of them are as under
Al Kitab
Al-Furqan
Al-Noor

5) Quran as a source of Law

َٰ
َ ‫ب ۛ فِي ِه ۛ ُهدًى ِلِّ ْل ُمت َّ ِق‬
‫ين‬ ُ َ‫ذَ ِلكَ ا ْل ِكت‬
َ ‫اب ََل َر ْي‬
• Quran is complete code of creed (mazhab) because Islamic laws based on
Holy Quran and Quran Guides the man in all aspects of life and it is a major source
of law

7) Ahkams in the Holy Quran

Following are the Ahkaams in the holy Quran.

19 | P a g e
1. Hukam Taklifi

• The main object of Hukam e Taklifi is to Create obligation for commission

and omission of certain act

2. Hukam Wadi

• The main object of Hukem e Wadi is to Provision of criterion (Asool)

whether an act performed is valid or not.

9) Division of Quran

The Holy Quran has been divided into the following way.
• The Quran consists of 30 divisions which are called Paras
• It has 114 divisions which are called Surrahs
• The Holy Quran has 6666 verses
• 86 Surah which are called Makki Surahs and rest of 28 are called Madni
Surahs

10) Division of Verses

Verses of the Holy Quran are divided into three portions.

1. First portion

• The first portion of the verses of the Holy Quran deals with Religious duties
such as Belief in one ALLAH, Holy prophet (P.B.U.H) is the last prophet

2. Second portion

• Second portion of the verses of the Holy Quran deals with Quranic ethics
like behavior with neighbors, dealing with parents etc.

20 | P a g e
3. Third portion

• Third portion of the Holy Quran deals with individual relationships with one
another (Purchase, Sale, Lease, and Evidence)
• It develops relationship among people, furthermore, deals with other Social
duties.

11) Category of verses revealed

Category of the verses revealed are being discussed as under and the point of
concern are those issues which are arouse in the life of Holy Prophet P.B.U.H. All
verses containing rules of law for service of humanity

1. Abrogating Verses

• Verses which abrogate objectionable customs like Gambling, etc

2. Penal verses

• Verses which providing principles for Punishment

• And securing the society

3. Legal verses

• Verses which providing constitutional and administrative matter

• Such kind of verses exist in Madni Surahs
4. Verses affecting social reforms

• Verses which raise living standard as status of women in society

• As property Inheritance on equality basis
5. Verses providing Rights

• Protection of minors like their rights such right of life, right of freedom etc

21 | P a g e
• Protection of Disables who are unable to perform their duties in the society
,islam protects them

12) Nature of Laws lays down

• Fundamental principles laid down in the Holy Quran are not in details If
details required, Jurist should be recourse Sunnah because sunnah is the
interpretation of holy Quran. All rules and principles laid down in the Holy Quran
requires explanation and interpretation which only can be made by Sunnah

13) Mode of interpretation of Quran

• Sunnah is the Primary mode of interpretation of Quran because some of

general rules

laid down in the holy Quran needs explanation as well as there are a lot of rules
whichcan’t be understand without the help of Sunnah

14) Position in Pakistan

• Pakistan is an Islamic state and all Existing laws modifies in the light of
Holy Quran and Sunnah
Article 227/1973,
”ALL EXISTING LAWS SHALL BE BROUGHT IN
CONFIRMITY WITH THE INJUNCTIONs OF ISLAM AS LAID DOWN
IN THE HOLY QURAN AND SUNNAH”

15) Constitutional status of Quran

• In west, constitutional law is supreme law but in Pakistan as it is an Islamic

state there is in Islamic jurisprudence Quran is constitutional law. Quran provides
all norms (Namonay,Misalen) for livelihood

22 | P a g e
16 Conclusion

• Quran is very words of ALMIGHTY ALLAH and primary source of Islamic

law. As well as validation of other sources is by Quran. One of the biggest feature
of Holy Quran is that it doesn’t has details in it for multiple general rule laid down
in it and in this regard jurist has to recourse the sunnah for explanation of these
rules. Quran is not a book of law but book of guidance for humanity,

23 | P a g e
 Sunnah as a source of Law

(1) Introduction
• Sunnah is the Second primary source of Law.If any jurist is unable to find a
Hukm from Quran, he has to recourse to Sunnah because Sunnah is Special bond
between Quran and Sunnah
• Sunnah is explanation of Holy Quran without Holy Sunnah it is very
difficult to understand the general rules of the Islamic law laid down in the Quran
• There are three different kind of sunnah such as Sunnah e Qauliyah, failiyah,
and approval of the holy Prophet (P.B.U.H)

ٰۤ
‫فَا ِْن‬-‫س ْو َل َو اُو ِلی ْاَلَ ْم ِر ِم ْن ُك ْم‬ ُ ‫الر‬َّ ‫ّٰللاَ َو اَ ِط ْيعُوا‬‫َٰياَيُّ َها الَّ ِذ ْي َن َٰا َمنُ ٰۤ ْوا اَ ِط ْيعُوا ه‬
‫اّٰلل َو ا ْل َي ْو ِم‬
ِ ‫س ْو ِل ا ِْن ُك ْنت ُ ْم ت ُ ْؤ ِمنُ ْو َن ِب ه‬ُ ‫الر‬ ‫از ْعت ُ ْم ِف ْی ش َْیءٍ فَ ُرد ُّْو ُه اِلَى ه‬
َّ ‫ّٰللاِ َو‬ َ َ‫تَن‬
َ ‫ َٰذ ِلكَ َخ ْي ٌر َّو اَ ْح‬-‫اَل ِخ ِر‬
۵۹(‫سنُ تَا ْ ِو ْي ً ً۠ل‬ َٰ ْ )

(2) Meaning of Sunnah

• Sunnah means “Well known path” is being which is being followed again
and again

‫سنَّ ِة ِه َي َطاعَةُ النَّ ِب ِِّي ﷺ‬

ُّ ‫ک ِبال‬ ُّ ‫ص ٌل فِي ا ََّٔن الت َّ َم‬
َ ‫س‬ ْ
(3) Definition of Sunnah
• Sunnah are the Sayings ,acts and approvals of Holy Prophet (P.B.U.H)

‫علَ ْي ِه ْم َٰا َٰيـتِ ٖه َو‬

َ ‫س ْوَلً ِ ِّم ْن ا َ ْنفُس ِِه ْم يَتْلُ ْوا‬ َ َ‫علَی ا ْل ُم ْؤ ِمنِ ْي َن اِ ْذ بَع‬
ُ ‫ث فِ ْي ِه ْم َر‬ َ ُ‫لَقَ ْد َم َّن هللا‬
o‫ض َٰلـ ٍل ُّم ِب ْي ٍن‬
َ ‫ب َوا ْل ِح ْک َمةَ ج َو ا ِْن کَانُ ْوا ِم ْن قَ ْب ُل لَ ِف ْي‬ َ ‫يُ َز ِ ِّک ْي ِه ْم َو يُعَ ِلِّ ُم ُه ُم ا ْل ِک َٰت‬

(4) Kinds of Sunnah

Following are the kinds of sunnah.

24 | P a g e
1. According to its Nature
According to its nature sunnah have following of the three kinds

A. Sunnah Al Qauliyah
• These are Saying or narration of the Holy Prophet (P.B.U.H) and the main
object of the sunnah is to explanation of Ahkams

Example
“NO INJURY TO BE CAUSED AND NONE IS TO BE BORNE”
B. Sunnah Al Failiyah
• These are deeds and practices of the Holy Prophet (P.B.U.H) such as his
prayers
,fasts etc. these kind of sunnah are purely based on practical

‫سوةٌ حسنةٌ ِلِّم ْن کان‬ ْ ُ ‫هللا ا‬

ِ ‫س ْو ِل‬
ُ ‫ک ْم فِ ْي ر‬ُ ‫لق ْد کان ل‬
‫اْل ِخر وذکر هللا کثِ ْي ًرا‬ ‫ي ْر ُجو هللا وا ْلي ْوم ْ ه‬
C. Sunnah Al Taqririyah
• These are Commission of certain acts by words or deed of the Holy Prophet
(P.B.U.H).If something was done before Holy Prophet (P.B.U.H) but Holy Prophet
(P.B.U.H) remained silent and Such silence also would be considered as Sunnah

(5) Division of Hadith

According to its written record following are the kinds of sunnah

1. Hadith Muttasil
• Whose chain of Narration is complete and no narrator is missing up to the
Holy Prophet (P.B.U.H)
Following are the sub-types of Hadith-e- Muttasil

25 | P a g e
 َ َ‫ع ْنهُ فَا ْنتَ ُه ْوا ج َواتَّقُوهللاَ ط ا َِّن هللا‬
‫ش ِد ْي ُد‬ ُ ‫س ْو ُل فَ ُخذُ ْو ُه َو َما نَ َٰه‬
َ ‫ک ْم‬ ُ ‫الر‬ ُ ‫َو َمآ َٰا َٰتـ‬
َّ ‫ک ُم‬
ِ ‫ا ْل ِعقَا‬
o‫ب‬
A. Hadith Mutwatar
o When all the narrators unanimous reporting it with the same words without
any difference is called hadithe mutawatar
Following are the sub-types of Hadith-e-Mutwatar

Tawatar Lafzi
• When all the narrators of Ahadith agree on words, it is called tawatar lafzi

Tawatar Man,navi
• When all narrators agree with meaning but words may not exactly the same.
It is called tawatar manavi

B. Hadith Mash,hur
• This such hadith which is narrated by more than two narrators Or narrated
by a Group

C. Hadith Ahad
• Narrated by one or two persons from beginning to end of its chain of
narration. It is called Hadith-e-Ahad

2. Hadith Mursal
• When a lot of names of narrators are missing in this case Jurists disagree to
implement this kind of hadith for hukam

6) Sunnah as a source of Law

• ALLAH ALMIGHTY delegated powers to Holy Prophet (P.B.U.H) for law
making. Sunnah is obligatory on Muslims Because Sunnah is source of Law. Holy
Sunnah also was revealed on Holy Prophet (P.B.U.H

26 | P a g e
1. Authority of Sunnah

• Quran gives authority to Sunnah for legislation and the following Quranic
verse throws light on it

Quran Says”
“HE WHO OBEYS THE PROPHET (P.B.U.H) OBEYS ALLAH”

2. Legislative functions of Sunnah

• Sunnah is 2nd primary source of law. Jurist can’t move to Sunnah unless the
search from Quran completed. Jurist unable to comprehend the text of Quran
unless he recourse to the sunnah. Sunnah is explanation of Quran itself

(7) Qualification for sunnah as a source of Law

• Every Sunnah is not a source of Law. To Qualify as source of law must
sunnah must have a legal content. Purpose of the saying or act is to lay down a law
or its elaboration

1. Original law making

• When no hukam to be found in Quran for commission or omission of certain
act
at that time, Holy Prophet’s own decision becomes an original law

2. Relationship between Holy Quran and Sunnah

• Quran provides priciples for Islamic life and Sunnah explains them very
efficiently

3. Provision the details of General rules

• Ahkams in Quran are undetermined but Sunnah explains these Ahkams

Example
As Quran says, the male two shares of the female, Sunnah explains murderer will
not inherit

27 | P a g e
4. Explanation of the Implicit

• Some Quranic verses are unclear but but Sunnah makes them clear and
without sunnah all of us are unable to understand these ahkams

Example
Quran says : hand of each thief to be cut
Sunnah explains it, the thief who steals wealth equalent to Nisab from the
protective custody

5. Elaboration of Ahkams
• Ahkams in Quran are unelaborated. Sunnah explains these Ahkams

Example
Quran order prayer, Sunnah provides its timings, numbers and
Rak’as of prayer.

6. Linkage of case
• Sunnah links the case with well-known principle of Quran

Example
Quran permits to eat good things, Forbid to eat khabaith , Sunnah categories of
animal with Molars (Peesne k daant) and birds with Claw (Panjay)

7. General principle laid down by Sunnah

• Sometime Sunnah lays down a general principle but sunnah explain them for
the benefit of the humanity

Example
“NO Injury is to be caused or to be borne” while Quran says, ”INJURY TO
OTHERS HAS BEEN PROHIBITED”

28 | P a g e
8) Relation of Quran with Sunnah
• Sunnah is mode of interpretation & elaboration of Quran. Sunnah does not
go against

Quran and Quran does not go against Sunnah. Sometimes it becomes difficult to
maintain that these are two separate sources

9) Difference between Sunnah and Hadith

• Word “HADITH ”derived from “HADATHA” which means a TALE . In
legal sense, hadith means Sayings of Holy Prophet (P.B.U.H) which must be
practiced. Meaning of both are approximately Same

1. As to meaning
HADITH means sayings of Holy Prophet (P.B.U.H)
SUNNAH is Every act of Holy Prophet( P.B.U.H)

2. As to Scope
SUNNAH is larger in scope
HADITH is narrow in scope because it only the saying of Holy Prophet (
P.B.U.H)

3. As to element
SUNNAH is complete term which has three element
HADITH is one element of Sunnah

4. As to activity
HADITH ,there is only saying
SUNNAH, This is the act of holy Prophet (P.B.U.H )
Silence is also a Sunnah in case any was performed before Him

5. As to collection
HADITH have been collected and compiled
Collection of Sunnah is never made it is out of collection
29 | P a g e
10) Constitutional status of Sunnah
• Sunnah performed pivotal role in making constitutional. God delegated
powers to Holy Prophet (P.B.U.H) for legislation. Holy Prophet (P.B.U.H) gave a
practical shape to injunctions of Quran

11) Preclude Remarks

• Sunnah is second primary source of Islamic Law. Sunnah is interlinked with
Quran. Sunnah Explains the difficult words of Quran and unable us to understand
the real aim of Quran.

30 | P a g e
 Secondary Sources of Islamic Law

Ijma as source of Islamic Law

1) Preface
• Ijmar is the third source of law which means “Consensus” and basically it is
an agreement of muslim scholars upon religious issues. According to the
need of the time ALLAH gave sanction to Muslims for perform ijma because
It is necessary to resolve the arising needs of time. All school of thoughts
accepts the doctrine of this theory and exercise this theory when needed

‫سو َل َوأ ُ ْو ِلي ْٱْل َ ْم ِر ِمن ُك ْم فَإِ ْن‬ َٰٓ

َ ‫َيأَيُّ َها ٱلَّذِينَ َءا َمنُ َٰٓواْ أَ ِطيعُواْ ه‬
َّ ْ‫ٱّلل َوأَ ِطيعُوا‬
ُ ‫ٱلر‬
‫ٱّلل َو ْٱل َي ْو ِم‬
ِ ‫سو ِل ِإن ُكنت ُ ْم تُؤْ ِمنُونَ ِب ه‬
ُ ‫ٱلر‬ ِ ‫ش ْيءٍ فَ ُردُّوهُ ِإلَى ه‬
َّ ‫ٱّلل َو‬ َ ‫تَنَزَ ْعت ُ ْم فِي‬
ً ‫س ُن تَ ۡأ ِو‬
‫يل‬ َ ‫ْٱْلَٰٓ ِخ ِۚ ِر ذَ ِل َك َخيْر َوأَ ْح‬
2) Meaning of Ijma
• Theword ijma has been derived from Arabic word “AJMAA” which means
“Agreement upon a matter”

3) Definition of ijma
• Agreement upon a Question of Law of the Muslim scholars of the same age

4) Basis of Ijma
Following are the three basis of Ijma.
1. Quran
2. Sunnah
3. Analogy (Qiyas)

‫طأ َ فَلَهُ أَجْ ر‬

َ ‫ان َوإِذَا َحک ََم فَاجْ ت َ َه َد ث ُ َّم أ َ ْخ‬
ِ ‫اب فَلَهُ أَجْ َر‬
َ ‫ص‬َ َ ‫إِذَا َحک ََم ْال َحا ِک ُم فَاجْ ت َ َه َد ث ُ َّم أ‬

31 | P a g e
 5) Arguments in support of Ijma
• Allah Almighty completed islamic religion and Holy Prophet P.B.U.H last of the
prophet .
• If any rule of law not found in Quran and by Holy Prophet (P.B.H.U) then
Ijma is permitted to Muslim jurists and they can find out the laws for rising
issues of the modern age

1. Quranic verses in support of Ijma

As Quran Says:
“OBEY GOD AND OBEY PROPHET (P.B.U.H) AND THOSE AMONGST
YOU WHO HAVE AUTHORITY”

2. Hadith in support of Ijma

As Hadith Says:
“MY FOLLOWERS WILL NEVER AGREE UPON WHAT IS WRONG”

(6) Kinds of Ijma

Following are the kinds of ijma.

I. Explicit Ijma
• Where jurists clearly express their views regarding any religious issue under
discussion before them

II. Tacit Ijma

• Where jurist not clearly express his views and remain silent on legal
decision ,his silence also will be considered with majority

(7) Who can perform Ijma

Qualifications of Mujtahid who can perform Ijma.
1. Scholar of Quran and Sunnah
2. Expert of Arabic Language
3. Knows the priciples of Naskh
4. Knows Qiyas
5. Impartial thinking
6. Familiar with the traditional science
32 | P a g e
7. Competent to explain law
8. Up to date with knowledge of society

(8) Validity of Ijma

Ijma is valid if it has following.

1. Ijma by Mujtahid

• Ijma must be performed by Mujtahid who have attained the status of Ijtihad

2. Unanimous opinion
• All jurist or Muslim scholar must have unanimous opinion on a religious
issue

3. Performed by Muslims
• All participating jurists should be from Ummat-e-Muhammadi

4. After the death of Holy Prophet (P.B.U.H)

• Ijma must be performed after the death of Holy Prophet (P.B.U.H) if it has
been performed within the life of Holy Prophet (P.B.U.H) then it will not be
accepted as valid

5. In a same period
• Ijma should be performed in a same period By Muslim scholars of the same
age

6. Upon rule of Law

• Ijma must be upon a rule of law because it can’t be applied on non-legal
matters

7. Reliance upon a Sanad (Evidence)

• Ijma must be relied upon some sanad otherwise it will not be considered as
valid

33 | P a g e
9) Ijma as a source of law
• Ijma is 3rd source of law and many issues have been resolved by Ijma.
Scholars of modern age can perform ijma if they are eligible or qualify as Mujtahid

1. Enforcement of Ahkams of Quran and Sunnah

• Ijma discovers the new Laws and enforces the Ahkams of Quran and
Sunnah

2. Interpretation of Sharias
• Ijma helps the Muslims scholars in interpretation of Laws of sharia laid
down in the Holy Quran and Holy Sunnah

3. New legislation can be made

• After Quran and Sunnah ,new legislation can be made with the help of Ijma
which is permitted in Islam

4. First Ijma performed by Muslims

• ELECTION of HAZRAT Abu Bakar R.A for CALIPHA was based on
IJMA

10) Legal effect of Ijma

The law laid down by Ijma has authority even till:
• No jurist raise question before its creation
• No jurist raise question after its creation
• Decision must be proved universally

11) Imja and Western Concept of “Opinio Prudentium”

• Opinio Prudentium which means “Opinions and decisions of lawyers”. In
Roman law system lawyers give their opinions on the directions of the king Such
opinions become part of legal system later on. However concept of Ijma has wide
scope than Opinio Prudentium

34 | P a g e
12) Ijma in modern period
• Ijma is not confined to any age or country and it has been permitted if there
is no hukm to be found in Quran and Sunnah. Muslims jurists are permitted to
perform ijma in the light of laws laid down in the Holy Quran and Sunnah

13) Can parliament perform Ijma?

• It is very important question for Islamic country. If parliament possess the
qualification of mujtahid then it can perform Ijma it parliament does not qualify so
it cannot perform Ijma

14) Conclusion
• Ijma is a basic principle of sunni thought of school because whenever they
don’t find any issue
from Quran and Sunnah then they perform Ijma and get the result in shape of new
legislation
• Ijma of one age can be changed by subsequent ijma of same age
• It can be established by words or practice.

35 | P a g e
 Qias (Analogy) as a source of Islamic Law

1. Introduction

Qiyas is the secondary source of Islamic law. All the four schools of Islamic
jurisprudence agree that in matters which have not been provided for by a Quran,
Hadith or Ijma, the law may be deduced from what has been laid down by any of
these three authorities by the use of Qiyas or analogy.

2. Meaning and definition of Qiyas

(I) Meaning
(i) Literal

Literally the word Qiyas means measuring or estimating one thing in terms of
another.
(ii) Legal
It is process of deduction by which the law of a text is applied to cases by reason of
the text.

(II) Definition
According to Hanafis:

“It is extension of law from the original text to which the process is applied to a
particular case by means of a common Illat or effective cause, which cannt be
ascertained merely by interpretation of the language of the text.”

3. Origin and development of Qiyas

Owing to the ever growing needs of society and the expansion of Islamic religion
beyond the limited boundaries of Arabia, it was felt that the rules have to be
deuced to meet the dynamic character of the society. To fulfill this need, the
doctrine of Qiyas was originated by eminent jurists.

4. Arguments in support of Qiyas

(I) Quranic verses in support of it

Following Quranic verses support the necessity of Qiyas.

36 | P a g e
“And certainly we have setforth for mankind in this Quran all kinds of similitudes,
that haply they may reflect.”

(II) Ahadiths in support of it

When the Holy Prophet (Peace be Upon Him) Sent Maaz Bin Jabal to Yemen as
governor he said to him. “How are you going to decide cases Maaz answered; (by
the light of) what is in the book of God. The Prophet (Peace be Upon Him) nest
asked; and if you do no find anything in the Quran to guide you? “ I will decide in
the way the Prophet (Peace be Upon Him) has been doing; But inquired the
Prophet (Peace be Upon Him) ‘If you do not find any procedure from me what
then’ I will do my best by exercising my judgement. The Prophet (Peace be Upon
Him) there upon happily agreed.
5. Elements of Qiyas
Qiyas has following elements:

(I) Asl
The original case covered by the next. That is the root case or even the base upon
which the analogy has been constructed.

(II) Hukm-Al-Asl
The hukm of the original case mentioned in the text.
(III) Illah

The underlying cause of the Hukm, which is determineds by the jurist is called the
illah.

(IV) Far

The new case to which the hukm is extended is called the far or the offshoot.

It is the case which is analogically compared with the asl.

6. Kinds of Qiyas

According to Hanafis, following are the kinds of Qiyas.

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(i) Qiyas Jail (Manifets)

(ii) Qiyay Khafi (Concealed)

7. Conditions for the validity of Qiyas

Following are the conditions of a valid analogical deduction of Qiyas.

(I) Original text not confined to particular facts

The law enunciated in the next to which analogy is sought to be applied must not
have been intended to be confined to a particular state of facts.

Example:

The Holy Prophet (Peace be Upon Him) said that if Hazrat Khuzaima (R.A)
Testified for any one, it is more than enough for him. Since tradition is personified,
it does not lay down a general rule of testimony.
(II) Original text capable of understanding
The law of the text must not be such that its rais on d’ etre cannot be understood by
human intelligence nor must it be in the nature of an exception to some general
rule.

Example:
Eating by mistake during Ramzan by one who is fasting does not vitiate his fast,
just because this is a Quranic text, no analogy can be applied on this rule.

(III) Deduction should be corollary to text law

The rule deduced by Qiyas must not be opposed to a text law nor covered by the
words of a text. It should be in the nature of corollary of the text law.

(IV) Not change the law of text

(V) Analogy applies to cause and not to vocabulary

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

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8. Scope of Qiyas as a source of law

The function of qiyas is to extend the law of the text to cases not falling within the
purview of its terms and not to establish a new rule of law. By application of
analogy the law embodied in a text may be widened generally. Qiyas has no
application to pure inference of facts which are to be made by the observations of
science.

9. Nature of its authority as a source of law

Qiyas as a source of law do not rank so high as authority as Quran, Hadith and
Ijma does. The reason is that with respect to analogical deduction, one cannot be
certain, that they are what the law giver intended.

10. Examples of Qiyas

(i) There is a tradition from the Holy Prophet (Peace be Upon Him) that says,
“the murdered will not inherit.” By applying qiyas the rule is extended to the
bequest and the murderer legatee is prevented from taking the bequeathed
property.

( ii) At the time of Friday prayers indulging in sale is prohibited by Quran. By

applying analogy this hukm is extended to other contracts like pledging or
marriage that may have been planned at such a time.
11. Difference between Qiyas and Ijma

Qiyas is the opinion based on the similitude of circumstance whereas Ijma is a

consensus of learned.

12,. Conclusion

To conclude , I can, say that Qiyas is a process of deduction by which the law of a
text is applied to cases which though not covered by the language, are governed by
the reason of the text. It is subordinate to the Quran, Sunnah and Ijma and
permissible to meet the changing needs of time.

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 Ihtistan as Source of Law
1. Introduction

Istihsan means preference of one over another considering the formed good.
When a rule of law deduced by analogy is either in conflict with Ijma or is likely to
causes inconvenience owing to its narrowness. The Hanfi jurists refuse to follow it
and give preference to rule, which in his opinion would better advance the welfare
of man and the interest of justice.

2. Meaning and definition of Istihsan

(I) Meaning

In its literal sense Istihsan means

“to consider something good.”

(II) Definition
(i) By Kharkhi

“In case of some legal problem exception is created from its analogous precedent
on the basis of some stronger argument which render it distinguishable.”

(ii) By Al Bazdawi

“Moving away from the implications of analogy to an analogy that is stronger than
it, or it is the restriction of analogy by an evidence that is stronger than it.”

(iii) By Al Hawani
3. Recoginition of principal of Istihsan

The doctrine of Istihsan is accepted by the Hanafi and Maliki Schools only and not
the others.

4. Reasons for Istihsan

(I) Quranic view

“Verily, we call upon you to be a man of judgement and do justice.”

40 | P a g e
“Those who intently listen to us, they follow the best of it, those are the ones
whom Allah has guided and those are the ones endowed with understanding.”

(II) Ahadith perspective

“Don’t cause injury to other and don’t suffer a loss yourself.”

“What does Muslim consider better Allah also consider it better.”

5. Origin of Istihsan

Abu Hanifa was the expounder of this doctrine. He feel that the man has been
endowed with intelligence to use his own common sense so that he does what he
thinks fit. The Hanafi lawyers speak of this doctrine Asif it was a species of
analogical deduction. They call it as hidden analogy.

6. Kinds of Istihsan
Following are different kinds of Istihsan:
(i) Istihsan- e- Qiyasi

(ii) Istihsan- e- Zarurat

(iii) Istihsan- e- Ijma

(I) Istihsan-E-Qiyasi
Under this type of Istihsan one can bend the law in favour of people and society by
giving preference to one Qiyas over the other Qiyas i. e. preference of Qiyas Khafi
over the Qiyas Jali.
(II) Isthsan-E-Zarurat

In this type it is to give preference to one Sunnah over the other Sunnah.

41 | P a g e
Example

Usually all Muslims say prayer by Standing, but there are more than one Sunnah
about saying prayer i. e. by standing. By sitting or by lying on the bed or floor. One
is at liberty to prefer one way over the other but according to his need.

(III) Istihsan-E-Lima
If two Ijma are available on a similar question of law’ then under Istihsan-e-Ijma
one can adopt that one which is closer to Quran and Sunnah.
7. Importance of Isthsan as s source of law

Islamic legal system is not a rigid one rather is much flexible to be adopted
according to the changing circumstances and needs of society the principal of
Istihsan provides an opportunity to the jurists to interpret the law according to the
spirit and true intention of Islam, and avoids inconvenience and, hardship within
the limits prescribed by Quran and Sunnah Islamic Shariah is based on the
principle of convenience equity and public good, which are also the main features
of Istisan. It is the more effective mean than Qiyas for introducing new elements,
since in its case the rules for determining the cause are even subtler than in the case
of Qiyes, and consequently afford greater probabilities.

8. Examples of Istihsan
(i) According to Qiyas, the appointment of minor is invalid for the trustee as he
should major. But according to Istihsan, a minor is recognized as trustee and the
Qazi should appoint a competent person to act as his Guardian through whom the
minor will administer the property till he attains the age of puberty.

(ii) Islam gives a great importance to the proper dress of a woman. No one except
her husband can see her naked but on account of necessity a physician may be
allowed.

( iii) Analogy require that ritually pure water should be used for ablution Isithsan
requires that the use of wells, in which dirt or carcasses of animals have fallen, be
permitted.

9. Criticism against Istihsan

Following criticism has been raised against the doctrine of Istishsan.

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(I) By Imam Shafi

Imam Shafi has criticized Istihsan in his books Kitab-ul-Urn and Kitab-ul-Risala.
He is of the view that Istihsan means the subjective appreciation of a jurist
regarding the interpretation of laws laid down in Holy Quran and Sunnah.
Therefore it is similar to create a new Sharaiah. He is reported to have said.
“Whoever restorts to Istihsan makes laws.”

(II) By Imam Ghazali

Imam Ghazail criticized Istihsan as a source of law. He said that Islam does not
allow to neglect the laws laid down in Holy Quran and Sunnah but by exercising
Istihsan , new Sharish can be created.

(III) By orientalists
They say that whet it is universally established that laws laid down in Holy Quran
and Sunnah cannot be changed, then how Istihsan can be exercised by ignoring
such laws. This objection is not justified because no Muslim could reject the law of
Quran and Sunnah.

10. Istihsan as Equity

It has rightly stated by sir Abdur Rahim that Quran and Sunnah are legislation, and
if analogy is common law, Istihsan is its equity. Just as in the case of English law,
the concept of equity developed side by said with common law mainly designed to
remedy the strictness of the law and to impart justice in the real sense of the word
in the same manner, Istihsan developed as the watchdog of analogical deduction.

11. Differences between British concept of Equity and Istihsan

I. As to history

Istihsan is an olden concept.

Equity is not old as the principle of Istihsan.

II. As to basis

Istihsan does not basis on Arbitrary opinion.

Equity basis on Arbitrary opinion.

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III. As to scope

Istihsan has wider scope.

Equity has less scope.

IV. As to sources

Sources of Istihsan are Quran, Sunnah, and Ijma.

V. As to meaning

Equity means natural justice.

Istihsan means preferring or considering a thing to be good.

12. Conclusion
To conclude , I can say, that the public interest is regarded in Sariah as a basis of
law. The Hanafis call it “Istihsan”. Imam Abu Hanifa was of the opinion that strict
adherence to Qiyas or analogy would deprive law of that elasticity and adaptability
which alone makes it the handmaid of justice. So by exercising Istihsan the
preference may be given to that law which is for the welfare of the people.

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 Ihtihad as a source of Islamic Law

‫سو ُل هللا(ﷺ‬ َ ‫سو ِل ِاهللا (ﷺ) ِل َما َي ْر‬

ُ ‫ضي َر‬ ُ ‫ْال َح ْم ُد ِّلل الَّذِي َوفَّقَ َر‬
ُ ‫سو َل َر‬

1. Introduction:

Ijtihad played an important role in the development of Islamic legal theory.

The aim of this essay is to discuss the concept of Ijtihad in the development of the
Islamic legal theory. Thus it will not be out of place to give a brief introduction of
the concept of Ijtihad.
2. Ijtihad:
The Arabic word Ijtihad is derived from the 'Juhud' which means 'expending
of maximum effort in the performance of an act'. In Islamic jurisprudence Ijtihad
means the effort made by the Mujtahid in seeking knowledge of the Ahkam
(Rules) of the Sharia'ah through interpretation. (Nyazyee, Ch. 14: P. 263).
This definition implies the following:
· That the Mujtahid should expend the maximum effort, that is, he
should work to the limits of his ability so much so that he realize his
inability to go any further.
· That, the person expending the effort should be a Mujtahid. An effort
expended by non-Mujtahid is of no consequence, because he is not
qualified to do so.
· The effort should be directed towards the discovery of the Rules of the
Sharia'ah that pertain to the conduct.
· The method of discovery of the Rules should be through interpretation
of the texts with the help of other sources. This excludes the
memorization of such Rules from the books of Fiqh or their identification
by the Mufti. Thus, the activity of the Faqih and the Mufti cannot be
called Ijtihad.

‫سو ُل هللا(ﷺ‬
ُ ‫سو ِل ِاهللا (ﷺ) ِلما ي ْرضي ر‬ ُ ‫ا ْلح ْم ُد َِّلل الٰذِي وفٰق ر‬
ُ ‫سول ر‬
3. The Three Modes of Ijtihad:
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 The Jurists in general practice three types or modes of Ijtihad. In reality, the
activity of the jurist cannot be split up into separate modes. Ijtihad is single
seamless process, but for simplification and ease of understanding this activity is
divided into three types as follows:
· In the first mode, the Jurist stay as close to the text as he can. He
focuses on the literal meaning of the texts, that is, he follows the plain
meaning Rule.
· When the first mode of literal construction is exhausted by the Jurists,
he turns to syllogism, which is Qiyas. This mode is confined to strict
types of analogy. These are called Qiyas Al-Ma'na and Qiyas Al.illah.
· The second mode of Ijtihad is confine to the extension of the law from
individual texts, while in the third mode the reliance is on all the texts
considered collectively. This means legal reasoning is undertaken more
in the line with the spirit of the law and its purposes rather than the
confines of the individual texts.
4. Role of Ijtihad in the development of Islamic legal theory.
Early notion of Islamic legal theory and the concept of Ijtihad:
At the time of the Holy Prophet (SAW) the only source of the Sharia'ah was
revelation. That revelation had two types, one was the direct speech of ALLAH,
namely the Holy Quran, and the other was indirect speech of ALLAH which the
Holy Prophet (SAW) expressed in his own words, that is termed as Sunnah of the
Holy Prophet (SAW).
The Holy Quran by nature is implicit. It does not provide details of each and
every individual case, rather it describes general principles, examples etc. the Holy
Prophet (SAW) used to explain and implement those principles and general rules
in individual cases, that is Sunnah of the Holy Prophet (SAW), in that sense the
Sunnah is the explanation of the Holy Quran, though as it is mentioned earlier that
explanation was also directed by the ALLAH.
Although as it is mentioned earlier that the only source of law at that time
was revelation, but some time the Holy Prophet (SAW) practiced Ijtihad in its
narrow sense in the absence of reveled rule as the Holy Prophet (SAW) said, 'when
I do not receive a revelation I adjudicate among you on the basis of my opinion'.
However, the difference of that Ijtihad with ordinary Ijtihad bil ray is that
whenever. He (SAW) mistook, a verse would be revealed in order to inform him
the correct decision. For instance, once the Hojy Prophet (SAW) was asked by a
woman about the rule of dhihar. The Holy Prophet (SAW) answered her "I don't
think that the rule is different from that of divorce". Then ALLAH revealed verses
46 | P a g e
regarding the hukum of "Dhihar", which was not similar to divorce and then the
hukum of dhihar had been corrected.

ْ‫ث ما كُنت ُ ْم فولُّوا‬ ْ ‫ث خرجْ ت فو ِ ِّل وجْ هك ش ْطر ٱ ْلم‬

ُ ‫س ِج ِد ٱ ْلحر ِام وح ْي‬ ُ ‫و ِم ْن ح ْي‬
‫ُو ُجوه ُك ْم ش ْطرهُۥ‬

The companion of the Holy Prophet (SAW) used to do Ijtihad at that time
also. When the Holy Prophet (SAW) was not available or when the Prophet sent
them to somewhere, they use to do Ijtihad in the absence of explicit Qur'anic verse
or Sunnah of the Holy Prophet (SAW). They use to interpret the verses of the
Quran and the Sunnah of the Holy Prophet (SAW) as well as in cases of
completely new issues they use to do Ijtihad on the basis of the principles of
Sharia'ah. The advantage of them was if they mistook they could correct
themselves by asking the Holy Prophet (SAW) or ALLAH would revealed the
correct rule. Therefore, Sharia'ah was very much based on the revelation at that
time, i.e. either ALLAH would reveal the hukum of a certain mas'ala or He would
approve the decision of the Holy Prophet (SAW) and his companions or He would
disapproved and correct their decision(s). Hence, despite the fact that the practice
of Ijtihad was started from that time, but it did not get the status of a source of
Islamic legal theory then.
Development of Islamic legal theory and the concept of Ijtihad:
After the death of the Holy Prophet (SAW), the gate of revelation has been
closed for ever. Therefore, in order to deal with new problems, the companions of
the Holy Prophet (SAW) used to depend on the Ijtihad. However, it did not
substitute the Holy Quran and Sunna at all, rather whenever they faced a new
phenomenon regarding which they did not know any Qur'anic verse or Sunnah of
the Holy Prophet (SAW), they used to ask the other companions whether they
knew any Hadith of the Holy Prophet (SAW) concerning that. They used to do
Ijtihad in the absence of the revealed rule and whenever they found any Hadith
regarding that case they use to abandon their Ijtihad and followed that Hadith.
Because of the quick expansion of the Muslim world in first century, a huge
number of people embraced Islam. A number of the companions of the Holy
Prophet (SAW) migrated to different places in order to teach the new Muslims the
science of Islam. People gathered around them to learn Islam. Through their

47 | P a g e
teaching they created groups of scholars. Those groups were the producers of the
different schools of thought.
Two distinctive trends of thought emerged at that time, namely Ahl al-Ray
and Ahl al-Hadith. The trend of Ahl al-ray can be traced back to the second caliph
Hazrat Umar (RA) and a renowned companion Hazrat Abdullah ibn Mas'ud (RA),
whereas the trend of Ahl al-Hadith can be traced back from two renowned
companions and scholars Hazrat Zaid Bin Thabit and Hazrat Abdullah Bin 'Umar
(RA). Ahl al-ray are those who depend on personal opinion (Ijtihad bil ray) in
order to solve the problems and analyze the Ahkam of Sharia'ah and extract the
major causes of those in order to draw out those to new phenomena's. Ahl al-
Hadiths are those who depend on only authentic evidences. There strategy is to
express exactly what is in the authentic narrations. They do not involve in
causation of the Ahkam of Sharia'ah and extend those to new phenomena's.
Nevertheless, the more the Muslims faced new problems the more the former trend
became prominent because of their wide practice of Ijtihad they could solve the
new phenomena's better than Ahl al-Hadith School of thought. However, Ahl al-
Hadith school of thought did not completely deny or overlook the concept of
Ijtihad. Ijtihad also played a big role in the development of that school of thought.
However, their concept of Ijtihad was narrower than that of Ahl al-Ray as
discussed in the following section of the essay. Hence, it could be said that by the
end of first century, Ijtihad became an important source of Islamic jurisprudence
through the practice of it by the companions of the Holy Prophet (SAW) and their
followers, although there were difference of opinion among them about the
definition, scope and way of practice of it.
Institutionalization of Islamic legal theory and the role of Ijtihad in it:
The last companion of the Holy Prophet (SAW) died in the end of the first
hijra. Around that time the process of institutionalization and compilation of
Islamic jurisprudence started. The notion of Madhhad (School of thought) emerged
at that time in different places. Although there were countless Madhhabs, but, apart
from four Madhhabs others are not existed now a day. We will discuss here the
development of those four Madhhabs and the concept of Ijtihad in those.
Hanafi school of thought: Hanafi school of thought is based on the
jurisprudence of Imam Abu Hanifa. The Usul of Imam Abu Hanifa as he describes,
is as follow:
"If I find any hukum in the Holy Quran, I confined myself with that. If I do
not find that there, I accept Sunnah of the Holy Prophet (SAW) which has
come to me through authentic narrators. When I do not find that in the Holy
Quran and in the Sunnah, I follow the opinion of the companions meaning

48 | P a g e
 their general consensuses. In case of their disagreement with each other I
accept or abandon which ever I want, but I do not prefer others opinion over
theirs'. In case of the opinion of others, I have the right of Ijtihad as well as
they have".

The Maliki School of thought

The Maliki Madhhad is based on the jurisprudence of Imam Malik (93-179

A.H.). The method of his jurisprudence which is the method of Maliki Madhhad as
well is that, in order to find out the hukum of a certain issue he first used to look in
the Holy Quran, if it is not available in the Holy Quran then he used to look it in
the Sunnah of the Holy Prophet (SAW). Similarly if the Quran describes the
principle or indirect hukum of the issue he also used to search the Sunnah in order
to find out the details of that. He used to consider the practice of Ahl-Medina as
Mutawatir Hadith. If he did not find the solution in the Holy Quran or in Hadith he
would refer to the general consensus of the companions who were known as faqih,
if there were no general consensus regarding that matter then he would follow the
individual opinions of the companions or would do Qiyas. If it was an abstract
matter where there is no room for Ijtihad bil ray then he would follow the opinion
of a companion, else he would prefer Ijtihad bil ray.
Al-Shafi School of thought
Imam Al-Shafi emerged during the period of the compilation of the above
mentioned two school of thought's jurisprudence. He is credited as the inventor of
Usul al Fiqh. However, Kamali argues that the Usul al-Fiqh was existed before but
until the time of Al-Shafi it was not in a form of science. Imam Al-Shafi authored a
book regarding the principles and rules of jurisprudence namely Al-Risalah, which
is considered as the first book on Usul al-Fiqh. The motivations which prompted
Al-Shafi to introduce the usul al-Fiqh are some inconsistencies which he observed
in the discourses of his predecessors. He mentioned those in the beginning of his
book kitabul Umm.
It is appear from the reform activity of Al-Shafi that the objective of that
was to make the Ijtihad systematic and to demolish the tendency of unconditional
imitation of the predecessors Fatwas and hence to reopen and widen the scope of
Ijtihad. Although, he excluded Ray from the category of Ijtihad, especially he was
critical about Istihsan, and emphasized more on qias but he made the point clear

49 | P a g e
that he is against 'the following of one's personal whim and amounts to unjustified
legislations.
Conclusion:
In conclusion, it can be argued that Ijtihad played an important role in the
development of Islamic legal theory. It appears from the essay that some of the
school of thought emerged as a reaction against Taqlid or blind imitation of
predecessors and the objective of them was to reopen and widen the gate of Ijtihad.

Diffrence Between Ijtihad & Taqleed

50 | P a g e
1. Introduction

Ijtihad is one of the dependent sources of Islamic law. If a matter is not resolved
expressly in a Quran, Sunnah and by way of Ijma the jurist must not leave the
matter unresolved rather he should strive hard to find out the solution under the
light of Quran and Sunnah.

2. Meaning and definition of Ijtihad

(I) Meaning of Ijtihad

(i) Literal

Ijtihad literally means striving, expending of maximum effort in the performance

of an act.

(ii) Technical

It is the effort made by Mujtahid in seeking knowledge of the Ahkam (rules) of the
Shariah through interpretation.

(II) Definition of Ijtihad

“Ijtihad means the application by a lawyer of all his faculties to the consideration
of the authorities of the law, that is the Quran, Traditions and the Ijma, with a view
to find out what in all probability is the law.

4. Arguments in support of Ijtihad

Following Quranic verses are in favour of Ijtihad.

“And we have revealed on you the book which describes everything.”

“We have omitted nothing from this book.”
“Then ask those who have knowledge , if you yourselves do not know.”

51 | P a g e
(II) Ahadith in support of Ijtihad

Following Ahadiths are also in support of Ijtihad.

“Exercise Ijtihad because God makes the work easy for the person for which he is
born in this world.”
“When a ruler exercise Ijtihad properly in resolving an issue, he is to be rewarded
by God in dual way and if he is wrong in his conclusion, he gets one reward.”

4. Function of Mujtahid

Following are the functions or takes of the Mujtahid.

(i) To discover the law that is either stated explicitly in the primary sources or
is implied by the texts, that is, literal interpretation.

(ii) To extend the law to new cases which are similar to cases mentioned in
textual sources.

(iii) To extend the law to new cases which are not covered by the previous
methods.

5. Limitations on Ijtihad

Ijtihad cannot be made in cases which are covered by the express words of Quran,
Hadith or has been determined by Ijma. A jurist cannot exercise Ijtihad on the
basic pillars of Islam e. g. paying of Zakat, Prohibition of murder etc.
“Ijtihad is permissible only in field where no rule of Injunction from Holy Quran
or Sunnah is available.”

6. Modes of performing Ijtihad

52 | P a g e
A jurist may perform Ijtihad by

Following the following pattern.

(i) Literal construction

A jurist firstly concentrates on literal meaning of the texts and follow the plain
meaning rule.

(ii) Qiyas

After the literal concentrates, the jurist may turn to Qiyas but he must confine to
strict types of analogy.

(III) Collectively reliance on texts

After exhausting the first two methods or modes, the jurist may rely on all the texts
considered collectively. This means that legal reasoning is undertaken more in line
with the spirit of the law and its purposes rather than the confines of individual
texts.

7. Sources of Ijtihad

Sources are following:

(i) Quran
(ii) Sunnah
(iii) Ijma

8. Qualifications of Mujtahid

The word Majtahid means a person who can make Ijtihad. Following are the
qualifications of a mujtahid.

(I) According to author of Jam Ul Jawami

53 | P a g e
According to the author Jam’ul Jawami following are the
qualifications of a mujtahid.

(i) Major

A mujtahid must be a major i. e. has attained the age of majority so a minor cannot
be a mujtahid.

(ii) Sound and rational mind

He must be of sound mind, possessing the understanding and of sufficient

intellectual to grasp the subject.

(iii) Knowledge of grammar

He must have average knowledge of the Arabic language and recognize the
principles of jurisprudence and sources of law i. e Quran, Sunnah etc.

(iv) Acquaintance with the principal of Shariah

He must have well versed with the main principles of Shariah or the legal code so
as to be able to ascertain the true intention of the law-giver.

(v) Knowledge of Naskh

The mujtahid must understands abrogation (Naskh) and identifies the occasions on
which rules have been repealed by law-giver.

(vi) Knowledge to circumstances of Quranic revelations

A Mujtahid must know the circumstances in which the texts of Holy Quran were
revealed or repealed.

(II) According to Fakhural Islam

54 | P a g e
The great thinker Fakhural Islam enumerates the following conditions.

(i) Conversant with Islamic jurisprudence

A Mujtahid must be conversant with the science of Islamic jurisprudence and the
rules of law applied in various departments.

(ii) Knowledge of the Quran

a Mujtahid should have knowledge of Quran together with its meaning both literal
and dictionary and he must be able to interpret its verses.

(iii) Knowledge of the traditions

A Mujtahid should have knowledge of the traditions as well. He must fully familiar
with the traditions reported by from the Holy Prophet (Peace be Upon Him) and
able to distinguish between authentic and un-authentic Matwatar and Mashhoor
traditions. He must be familiar with the rules for authenticity leading to the
genuineness of the traditions.

(iv) Acquaintance with the rules of analogical deduction

A Mujtahid must be aware of and full conversant with the rules and methods of
analogical deductin.

(III) Other qualifications

Following are also considered as necessary qualifications of Mujtahid.

(i) He must have faith and the courage of conviction.
(ii) He must have competence and advanced proficiency in Arabic language and
literature.
(iii) A comprehensive understanding of Fiqh, the basic principles and other
relevant matters.
(iv) He must understands the different forms of bayan or elaboration of the texts,

55 | P a g e
which is usually provided by the law-giver himself, and also identifies the
occasions on which such bayan is invoked.

(v) A proper understanding of modern development and a reasonable

appraisal of contemporary exigencies.

9. Kinds of Mujtahid

(I) Mujtahidum fish-shari

These are the jurists who have an absolute and independent power of expounding
the law e. g. Abu Hanifa Mailk, Shafi etc.

(II) Mujtahidum fil madhhab

The jurists having authority to expound the law according to a particular school
comes into this category. They were the disciples of jurists of first rank like Abu
Yusuf belong to Hanafi school. These mujtahids followed the fundamental
principles laid down by their respective masters but not consider themselves bound
to follow the general principals or arguments in particular cases, and they often
profounder view opposed to those of their masters.

(III ) Mutahidum fal masal’l

The are the jurists who are competent to expound the law on a particular question
which had not been settled by the jurist of first and the second class. The jurist of
this rank is at liberty to lay down the law in conformity to the principles of his
school e. g. Khassaf, Qadi Khan.

(IV) Mutjahidum Muqallid

They are also called Mujtahid Muqayyid. They have not any right to deduct the
law but their function was to explain the law and draw inferences. These
Mujthahids are divided into four groups.

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(i) Ashabu’i Takhrij
(ii) Ashabu’ i Tarjih
(iii) Ashabu’I Tashih
(iv) Ashabu’I Shariah

10. Legal effect of Ijtihad

The legal effort of Ijtihad is the probability of the conclusion so arrived at being
correct but the possibility of such conclusion being erroneous is not excluded, that
is why juristic deductions are classed as discretionary or presumptive law.

11. Ijtihad and Taqlid

Ijtihad was performed by the jurists from about the ninth to 12th centuries A.D. It
then ceased to develop further owing to the doctrine of Taqlid. It was declared that
the doors of the Ijtihad are closed and therefore further interpretation of the Quran
Sunnah was not permissible. This view is over ruled by the modern jurists.

(I) Meaning of Taqlid

(i) General meaning

Taqild means following the opinion of another person without knowledge of the
authority for such opinion.

(ii) Meaning in Islamic jurisprudence

“Taqlid means following the opinion of jurist in matters which have not been dealt
with by an express quranic or traditionary text or by Ijma”.

(II) Duty of layman

Layman is a person who has not made a study of law and religion is concerned,
and the doctrine of Taqild applies only to those persons who do not possess the
qualifications of a Mujtahid.

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(III) Taqlid in Pakistan

The constitution of Pakistan, 1973 permits Taqlid in articles 189 and 201. These
articles make the judgments of the supreme court binding on all courts and the
judgments of the High courts binding on courts subordinate to them. When the
lower courts follow the opinions of the higher courts they are performing Taqild.

(IV ) Two schools of Mujtahsdeen

There are two school of

Mujtahadeen viz traditionalist and modernists the traditionalist school denies the
right of Ijtehad to later generations but the modernists asserts that the doors of
Ijthad are open and innovations in the Islamic law are Possible, provided one
remains with the injunctions and Ahkam of the Quran and Sunnah they criticize the
view that Taqlide had taken over the place of Ijtihad on the following grounds.

(i) Quranic reference

They very Quranic text which is the principle of Sunni jurisprudence that all
juristic deductions are uncertain and Ijtihad are closed, that will be in conflict with
that fundamental.

( V) Difference between Taqlid and Ijtihad

(i) In taqlid a person in need of opinion has to follow the opinion of another
person while in Ijtihad a person does not follow the opinion of another person
but derives the rule of conduct for himself directly from the sources of Islamic
law.

(ii) In Ijtihad a person must possess some necessary qualifications while in

Taqlid a person not possess such qualifications.

(iii) Ijtihad is a source of law, creating new law but Taqlid is not a source of
law.

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12. Importance of Ijtihad in modern world

Ijtihad is a living source of law. It has become important in the modern times due
to the needs of the present time, such as economic , social and political changes, so
that the Muslim society and people may become a powerful force in the modern
times.
Shah Wail ullah was the first Muslim thinker to propound a theory of cautious
exercise of Ijtihad. Then it was followed by Sir syed Ahmad Khan and Allama
Mohammad Iqbal. According to Allama Iqbal, Ijtihad can be undertaken not only
by an individual jurist but also by a legislative assembly recognizing the
importance of Ijtihad in the modern times, the Shariah ordinance of 1988, in
Pakistan had entrusted the task of making the laws in the country to conforms to
the Qura and Sunnah to the judiciary.

13. Conclusion

To conclude, I can say, that the importance of Ijtihad lies in the dynamic and
flexible spirit of Islam, which is a complete code of life for all times. Within the
limits imposed by the Quran and Sunnah, Islamic law can be interpreted by a
mujtahid who may be either an individual or a legislative assembly. This
development will bring about a accommodation between the prescriptions and
Injunctions of Islam, on the one hand, and the imperatives of modern life on the
other.

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 Acts, Rights, Obligation and its Classification

As a plural of fai’l, af’aal means the doing of a man, in terms of heart, tongue and
limbs. These acts may be classified into:

1). Natural acts (Hissi)

Acts of mind (Qalbi)

Physical acts (Af’aal)

2). Juristic acts (Shar’i).

They can be classified into:

1. Voluntary and Involuntary acts

2. Acts creating rights and acts extinguishing rights
3. Revocable and irrevocable acts.
4. When these acts are classified as per religious purposes, they take the form
of obligatory and forbidden. The obligatory may be further divided
into, Farz and Wajib, of which’s performance results in spiritual
merit(sawab) and the nonperformance results in punishment(azab),
5. while their further classification may be in the shape of farz-e-
kafaya, mandoob, mustahib and nafal.

Natural Acts:

Natural acts include acts of the body or physical acts as well as acts of the mind.
An act of the body consists of the motion of some limb of the human body, such as
utterance of words, eating, drinking striking, and so on. One of the obvious
properties of such an act is that it is perceptible to persons other than the doer
which makes it differ from an act of the mind such as believing, acknowledging,
intending, wishing and the like.

Human tribunals cannot deal with an act of the mind by itself, for the simple
reason that they cannot seize upon it.

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Juristic Acts:

A juristic act may be described as an aggregate of more than one natural act of one
or more persons that the law treats as one act, such as iman or act of faith or
belief, salat or prayer, a contract of sale or hire, an offence of sedition and the like.
Juristic acts generally are divisible into insha’at or originating acts, akhbarat or
information and i’tiqadat or acts of faith.
Originating acts and information are physical acts, while acts of faith are mental
acts. The object of an originating act is the production of a legal result, such
as sale, marriage, divorce, manumission etc.,
and the object of information is to describe an event, such as the testimony of a witness in court,
an admission which is a testimony against one’s self, the narration of a tradition and the like.

Acts creating rights and acts extinguishing rights:

Lawful acts generally are again divided into ithbatat or creative acts, that is, acts
creating rights, for example, a sale, a lease, a gift, etc., and isqatat or
acts extinguishing rights, such as release, divorce, manumission, etc.
Revocable and irrevocable acts:
Originating acts are of two kinds, those whose legal effect can be undone, that is,
revocable acts, such as sale, lease, etc.,

and those whose legal effect cannot be undone, that is irrevocable acts such as
divorce, manumission and vow.

Such originating acts as creating legal relations are called ‘uqudat or

contracts and acts cancelling or annulling contracts are called fusukhat such as
avoidance of a sale in the exercise of an ‘option’.
Rights:
Right is the authority of a man recognized by Sharia to control the actions of a
person in a particular manner against whom it exists and the latter is under an
obligation to act in that connection as required.

Right is something to which one is entitled under the law. It is a power of free
action or a combination of certain privileges and certain duties on some other
person. The rights in Islam are given by the Almighty and enforced and protected
by the State.

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Classification of Rights:

Rights are classified in Islamic legal science into five major categories:
1. Pure Rights of God (Huqooq Ullah)
2. Pure Rights of Men (Huqooq Ul Ibad)
3. Combination of both Rights with Predominance of the First.
4. Combination of both with Predominance of the Second.
5. Rights of State
6.
Pure Rights of God (Huqooq Ullah):

They are purely the rights of Allah and involve benefit to the public at large, hence
also termed as “public rights”, as they are not meant to benefit a particular
individual.

These are referred to God due to the magnitude of risk involved in their violation
and of comprehensive benefits which result from their fulfilment.

One cannot say that God will get benefit from these rights, as God is above these,
yet they are associated with God and their fulfilment is required and enforced in
the name of the Almighty by the state.

Public rights prevail in the following cases:

Acts of Devotion and Religious Observance:

They include matters of pure faith and other consequential duties of Muslims e.g.
salat, fast, haj, zakat etc.

Perfect Punishments (Aqoobat-e-Kamila):

They are punishments which have been prescribed by the Almighty. They are
termed as Hudood e.g. Zina, Theft etc.

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Imperfect Punishments (Aqoobat-e-Qasira):

They are depriving a man who has killed another of his right of inheritance if he is
the legal heir of whom he murdered. These are imperfect as they do not inflict any
physical suffering.

Atonement and Expiations:

They have the nature of both devotion and punishments e.g. Kaffara for non-
fulfilment of certain obligations in the form of releasing a slave etc.

Imposts and Religious Taxes:

They also have a sense of worship e.g. Fitrana, Zakat, Ushr etc and also in some
cases sense of punishment such as Jizya.

Independent Rights:
These are the rights which exist by themselves, such as 1/5th of the booty
obtained in religious wars, which are reserved by the law for distribution among
the poor.

Rights of Men (Huqooq Ul Ibad):

These are purely personal in nature (that’s why called private rights) and are given
to each and every individual who is living under the jurisdiction of an Islamic
State.

Their enforcement and protection are the duty of the State. Their enforcement is at
the option of the person whose right has been infringed. They are two types:

1. Purely personal in nature, where the person whose right is violated can
forgive or take action under the law,
2. Where communal rights and personal are mixed but personal are dominated,
such as intentional murder.

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Classification of Private Rights:
The rights of men (or private rights) are mainly concerned with a particular
individual. They are more or less the same as those prevailing in western
jurisdictions, such as:

1. Right of personal safety (Nafs)

2. Right of reputation (Hurmat)
3. Right of ownership (Malkiat)
4. Right of family and marital rights (Zojiat)
5. Succession and inheritance (Tarka)
6. Rights of lawful acts (Tasarrufat)
7. Contracts (Aqd) etc.

Combination of both Rights with Predominance of the Public Rights:

Matters in which the rights of the community and the rights of individuals are
combined but the public rights supersede come under this head.

Such as Qazf, where an individual punished who imputes unchastity to another

falsely, belongs to this class. Because it reduces the honour of one of the members
of the community and also the private right of the individual infringed as it
destroys his privilege in society.

Combination of both rights with Predominance of the private rights:

Matters in which both public and private rights are combined, but private rights
are predominance are Qisas or retaliation.
Obligations:
An obligation is the duty of a person, the non-performance of which is
punishable. These obligations when looked through the implication of law are:
1. Towards God;
2. Towards State; or
3. Towards individual,
Or they can arise due to man’s own conduct, act or admission, and in certain cases
due to violation or infringement of someone’s rights.

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 Ownership in Islamic Law

(1) Preface
• Ownership is very important concept in Islamic legal system
• It relates to man’s worldly desires and his relations with an another’s
• Islamic law providing different modes of acquiring and loosing of ownership
• Ownership is basically a right of possession something and property may be
land or other than this

(2) Meaning of ownership

• Right of possessing something

(3) Definition of Ownership

• Ownership is a relationship between a person and thing and it is the absolute
control and right of

decision over thing as well as it is a power of Exclusion of others

(4) Elements in Ownership

• In ownership essential elements are presence of “CONTROL” and
“EXLUSION OF OTHER” the
Person
Who has such powers is called Owner

(5) Subject matter of Ownership

• Mal is the subject matter of Ownership

1) Meaning of Mal by Al-Hawi

• Mal is thing which is other than human being and has been created for
benefit of Man and Which man can store or utilize on his own will

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(2) Things which are including in Mal
A Mal may include following things

I. Things having a corpus

• All things which are touchable included in Mal

II. Things connected with corpus

• Things connected with corpus also included in Mal

• Such as Munafah it either in shape of PRODUCTION OF PHYSICAL

OBJECT or SERVICES OF ME

(3) Modern concept of Mal

• In traditional Islamic legal system, mal not included incorporeal ( rights like
copyrights etc
• In modern Islamic law now courts and jurists are trying to expand the
concept of Mal

(4) Classification of Mal

Concept of Mal has been classified as under

1. Moveable and immoveable

Immoveable things are those things which cannot be move from one place to
another

place such as land and buildings etc.

Moveable things are those things which can be moved from one place to
another

2. Similars and dissimilars

If alternate can be found by weight or measure is called Similar
If alternate can’t be found in market is called Dissimilar

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3. Marketable and non-marketable
Marketable things which can be converted to private Property such as
currency, car, etc
Non-Marketable which can’t be converted to Private property like air,
sunshine, etc.
Non-Marketable thing are not regarded as Mal

4. Consumable and non-Consumable

Consumable things like food, water etc.
Non-Consumable things like house, Gold etc.

(6) Modes of Acquiring Ownership

Following are the modes of acquisition of ownership. Details are as under.

1. Original acquisition
• Original acquisition means an acquisition of a property or estate which has
never been the property of another. This is original acquisition because such things
may have not been used commonly by someone before this. Such acquisition is
called original acquisition

2. By Transfer
• Transfer of ownership is frequent mode of acquisition and ownership of a
property is transferred from one person to another. It only can be possible only by
contract in form of sale, gift etc.

3. By Succession
• It belongs to the family Law and after someone’s death property passes to
his legal heirs and
they become owner by succession
4. By Prescription
• It belongs to property Law. It means continued occupation by someone over
a thing from a long period

• In Islamic legal system such kind of Ownership can’t be acquired by

prescription
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• But In modern age in English system, such acquisition is allowed and can be
acquired which is illegal exercise

(7) Modes of Loosing Ownership

Following are the modes of loosing ownership

1. By transfer
• An act of transfer can cause loosing ownership. Original owner transfer his
things to another person by mean of contract like sale,gift,waqf etc. Similarly
ownership passed one to another

2. By destruction of thing
• In case of destruction of thing owner can lose ownership upon his property

3. By Death of Owner
• After the death of owner, ownership ends.Right on that thing transfers to his
legal heirs

4. By Operation of Law
• By operation of Law, Ownership comes to an end and it can be by way of
transfer, sale, as well as seizure of property by the court of law

(8) Ownership in Islam as compared to that of English Law

• According to Islamic system, ownership on liberties, powers, properties
can’t be acquired
• According to English System, above rights or ownership can be occupied by
different rules

(9) Conclusion
• Every human being has right to make property
• Islam forbids to acquire other’s property by means of fraud or by doing
illegal act
• But property can be transfer by an act of transfer with the consent of
ownership without making undue influence
• Property can be acquired by operation of Law
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 Public and Private rights

1. Introduction
• Islam is complete code of life which protects the rights of the human being
for better service. Islam has provided rules and regulations for individual and
collective life and these rules are rights of men for all aspects of life. All person
have different rights with different duties which has been imposed upon them
against other one’s right

2. Definition of rights
• Rights are the benefits of the people of any state which has been protected
by law to facilitate the mankind

3. Islamic concept about rights

• The concept of rights in Islam is basically based on honor and equality of all
mankind.

4. Types of Rights
According to majority of Muslim jurists there are two types of Rights are as under

i. Public Rights
ii. Private Rights
5. Public Rights
Public rights are those rights, which are only related to ALMIGHTY ALLAH and
are not related to persons.

1. Pure rights of ALLAH

• There are certain matter which are the rights of ALLAH for benefit to men

Example:
As giving the punishment of hadd for theft

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2. Mixed right of ALLAH and men
• There are certain matters in which right of ALLAH and men are combined.
• But the rights of ALLAH dominates on men rights

Example:
The right to punish the slander (Gheebat krne wala) who blames unchastity to
another person. Because he trespassed the right of
community and individual both Following are Public rights
1. Prayer (Salat)
2. Give Zakat
3. Perform Haj
4. Equality
5. Punishment (Hadd) is enforced
6. Taxes imposed on Muslims i.e., Zakat, Ushar etc
7. Taxes imposed on Non-Muslim i.e., Jizya, Khiraj etc

6. Private Rights
Private rights are those rights, which are only related with people but some of
rights related to both Allah and Men.

1. Pure rights of individual

• There are certain matters which are the rights of individual men

Example:
The enforcement of this right is only upon the option of individual whose private
right has been violated

2. Mixed right of ALLAH and men

• There are certain matters in which rights of ALLAH and men are combined.
But the rights of men, that is private right ,supersedes on the rights of ALLAH

Example:
Qisas which is a punishment for murder, Qisas comes into this category that the
person injured may pardon the offender Following are Private rights
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1. Protection of Life,
2. Protection of Non-Muslims
3. Protection of Family
4. Permission to perform Lawful acts
5. Permission to do contract etc.
6. Personal Freedom
7. Freedom of Religion
8. Freedom of Expression
9. Freedom of Work

7. Difference between Public and Private Rights

The main difference between private and public rights is as under:

1. As to enforcement
• Public rights always enforced by state
• Private right always enforced on the option of the party whose private right
is violated

2. As to Pardon
• Public right can’t be pardon or condoned
• In private right ,it is upon the discretion of effected individual whose private
right is violated who may pardon or insist for punishment

8. General divisions of Rights

Public and private rights are divided into following classes

1. Independent rights
• Independent rights are those rights which creates and obligation upon any
particular individual to perform certain duties

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2. Dependent rights
• Dependents rights are those rights which creates an obligation upon any
individual to perform certain duties

3. Original and Substitutory rights

Following is the example for original and subsitutory rights

Example:
• Original right is such right which requires the performance of Ablution with
water before Prayer is original right. In case of sickness, Ablution by rubbing one’s
hand with earth is allowed as substitutory right

9. Conclusion
• Right is an interest which is protected by rule of law. Islam is a religion
which is based upon equality and justice. This concept of Islam is given by Holy
Prophet (Peace Be upon Him) in his Khutaba-Hajatul-Wida. . Holy Prophet
(P.B.U.H) makes all men equal. There are many rights given under Islamic
Jurisprudence. Such as right to security, Justice, equality, etc

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 Islamic Penal System

1. Introduction
• There are a number of rights which may be affected by criminal act. Such as
rights of ALLAH and rights of Individual and right of state. Crimes classified on
basis of violation of rights There are three types of punishments against crimes

2. Meaning of Crime
• “Crime is an act which violates of public right and it makes offender liable
for punishment

3. Elements of Crime
Following are the main element of Crime
1) Mens rea is an element of crime where mental intent of criminal is
considered
2) Actus reus is an element of crime where physical act of criminal is
considered
3) The criminal act can be either by commission or omission of certain act
4) The criminal must be a major for his liability

4. Classification of Crime
Crimes have been classified on the basis of violation of following rights

1. Violation of right of ALLAH

• If the right of ALLAH is violated, Crime comes into the category of Hadood
punishments

2. Violation of right of Individual

• If the right of individual is violated Crime comes into the category of Tazir
punishments

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3. Violation of right of State
• If the right of state is violated Crime comes into the category of Siyasah and
punishments is given according to the siyasah

5. Crimes of Hadd

1. Legal Meaning
• Legally Hadd means those punishments whose limit has been prescribed in
the Holy Quran

2. List of Hadd offences

Some jurists have presented its seven kinds which are as under,
1. Unlawful sexual intercourse
• Zina in Islamic is unlawful sexual relations between Muslims who are not
married to one another through a nikah (Islamic marriage)

Proof of Zina
• Offence should be proved by testimony of four eligible witnesses who
present evidence of actual penetration (Dakhool)
• Or accused (Mulzim) must confess four times

Punishment of Zina
A. In case of Married
In case of married the punishment for zina is death by stoning
B. In case of Un-married
In case of non-married, the punishment is 100 lashes

2. Defamation
• Any Person who is competent and adult whether male or female, slave or
free, falsely charges unlawful sexual intercourse without eyewitness is liable for
Qadf.

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 Proof of Defamation
• Offence should be proved by confession
• Or testimony of two adult male free Muslims
Punishment of Defamation
• Punishment for Qadf is 80 stripes for free person
• And 40 stripes for slave

3. Drinking of Wine
• Muslims are not allowed to drink wine because it will be considered a sin to
have a beer whatever the quantity and this is punishable act
Proof of drinking vine
• Crime should be proved by two adult male eligible Muslims

4. Theft
• This is the action or crime of stealing. If offender takes something from
custody of safe place. By stealing property with the value of ¼ dinar according to
majority. He should be punished for theft by Hadd
Punishment
• Cutting of right hand from joint of wrist if theft is committed first time

5. Robbery
• The taking of money or goods from the possession of another by force. It
may be robbery from travellers who are far away from home. It may be armed
entrance into a private home

Punishment
• Death by beheading (Sar Qalam Krna)
• Cutting off hands or foot
• Life Imprisonment

6. Apostasy
• Act of converting to another religion, by a person who was born in a Muslim
family or who had previously accepted Islam after awareness of penalty which is
death formen and physical punishment for women

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7. Rebellion
• Rebellion is an act of armed resistance against state and it also comes into
the Hadd ,
• its punishment is death or life imprisonment

6. Crimes of Tazir

i. Legal Meaning
• “Punishments “where Judge is authorized to fix the nature of punishment
which may
be fine, death, imprisonment, compensation etc against violation of individual
rights.

ii. Classes of offences

1. Crimes which belong to offence punishable under hadd but punishment
gives for these crimes according to Tazir like unlawful sexual intercourse
2. Crimes which may be punishable under had but by mistake of law,
punishment gives of Tazir

3. Crimes which are not punished by Hadd but fall under the punish of Hadd
like slander(Ilzaam Trashi)
Some of most common punishments are as under for Tazir crimes:
1. Counseling (Sulaah)
2. Fines
4. Imprisonment
5. Seizure of property
6. Confinement in the home
7. Lashes

7. Crimes of Siyasah
• These crimes are crimes which violates the rule of the state State may
determine the offences and punishments for these crimes has been laid down in
shariah according to nature of
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offense
• In such crimes ,state can determine the nature of offense and can punish the
offender
according to the state’s rules

8. Conclusion

• At the present time crimes are classified into Hadd and tazir. As today
difference between Tazir and siyasah is not being maintained. Muslims jurist
merged these two with the stander of evidence being determined by state

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 Hadd & Tazir

1 Introduction
• In Islamic law there are two kinds of punishments are given by Islamic law
which is Hadd and Tazir.
• Tazir refers to punishment for offences at the discretion of the judge
• Hadd refers to punishment for offenses as mentioned in Holy Quran and
judge can’t change them. In Islamic Law ,aim or objective of such kind of
punishments is to reformation of criminal and disgracing them

2) Types of Punishment

Types of punishments are divided into two types

1. Hadd

A. Literal meaning

• Word hadd means limit

B. Definition of Hadd

• Legally Hadd means those punishments whose limit has been defined in the
Holy Quran and Hadith

2. Tazir

A. Literal meaning

• Literally means disgracing the criminal for his shameful act

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B. Definition of Tazir

• Legally Tazir means those Punishments “where Judge is authorized to fix

the nature of punishment which may be fine, death, imprisonment, compensation
etc against violation of individual rights.

3) Hadd crimes and punishments

No judge can change or reduce the punishment for these serious crimes because
these have been set by ALLAH in Quran. The Hadd crimes are:

1. Murder Punishment

• Death by retaliation(Jawabi Karwaee) (by victim’s family)

• Compensation (Payment or property)
• Pardon by victims family
2. Apostasy(Inkaar) from Islam Punishment

• Punishment
• Death by Beheading (Sar Kalam Krna)
• Imprisonment until repentance (Toba,Mufi)
3. Robbery Punishment

• Death by beheading (Sar Qalam Krna)

• Cutting off hands or foot
• Imprisonment

4. Theft Punishment

• Cutting of right hand from joint of wrist if theft is committed first time
• As for the thief, male or female, cut off the hands of both from the joint of
Wrist

5. Adultery Punishment
• Stoning to death for those who are married
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• 100 lashes for those who are un-married or bachelors
6. Defamation Punishment

• 80 lashes are defined under Hadd for defamation

7. Alcohol drinking Punishment

• 80 lashes are defined under Hadd for Alchohold Drinking

8. Rebellion Punishment

• Death if Captured by the forces

• Tazir Punishment if surrendered or arrested himself

4) Tazir Crimes and punishments

Judge can fix a punishment on his own discretion against violation of rights of
individuals
• Tazir crimes are less serious than the hadd crimes found in the Quran. Tazir
punishments vary according to circumstances. Change time to time and place to
place. Objective of such punishment is to prevent the society from offender from
future. Judges are not bound to make decision on behalf or Precedent ,or later case
etc
Some of most common punishments are comes under Tazir crimes:
1. Counseling (Sulaah)
2. Fines
3. Public or private pressure
4. Imprisonment
5. Seizure of property

6. Confinement (Nazarbandi) in the home

7. Lashes
5) Difference between Hadd and Tazir

• Being Muslims, it is obligatory (lazmi) for us to accept wholeheartedly all

the tenets of Islam. Hadd crimes are crimes against ALLAH’s Law. Tazir crimes
are crimes against society. Islam has defined two kinds of punishment namely
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Hadd ,Tazir,. Punishments for Hadood are integral part of Islam which can’t be
reduced by Judge. In Tazir crimes, judges are authorized to fix the nature of
punishment on their own discretion (Sawabaydeed) Following are the some point
of distinction between hadd and tazir

1. As to Object

The object is hadd is prevention of a crime by following the principles laid

down in the Quran and limits prescribed by ALLAH
The object of Tazir is reformation and correction of the offender

2. Procedure

The procedure of trial in Hadd is complicated

The procedure of trial in Tazir is Simple, according to some jurists, Judge
can judgment on basis of his own knowledge

3. As to Right

Violation of rights of ALLAH gives raise to Hadood Punishments

Violation of rights of Individual gives raise to Tazir Punishments

4. Change of Sentence

The penalty of Hadd can’t be commuted

The penalty of Tazir can be commuted

5. Pardon of Sentence

Pardon can’t be granted in Hadood cases

Pardon may be granted in Tazir cases

6. Operation of Mistake

Doubt or mistake can affect the penalty of Hadood cases

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 Doubt or mistake can’t effect the penalty of Tazir cases

7. Rule of testimony

The evidence of women is not acceptable in Hadood Cases

The evidence of women is acceptable in Tazir cases, but the nisab of one
man and two women will have to keep in view

8. Standard of evidence

In hadood ,the standard of evidence is so high as to number, qualification

and conditions of witness because any doubt can prevent the implementation of
hadd punishment
In Tazir,Standard of evidence is not so high

9. Mention of Offences

Some jurists listed seven Hadd offences.

1. Murder
2. Apostasy from Islam
3. Robbery
4. Theft
5. Adultery
6. Defamation
7. Rebellion
8. Alcohol drinking
Tazir offences has not been mentioned because they are innumerable
(Angint)

10. Discretion

In Hadood crimes ,judge can’t exercise his discretion(Raye/Sawabaydeed)

In Tazir crimes, Judge can exercise his discretion

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11. Replacement

Hadd punishment can be dealt with under Tazir

In Tazir the punishment of Hadood can’t be enforced

6) Conclusion

• Punishment for Hadd and Tazir is part of Islamic law. Hadd was
implemented in Arabic before promulgation (Ishaat) of Islam as Tazir in Pakistan.
Islamic law does have separate courts for Muslims for RELIGIOUS CRIMES.
Non-religious courts for other criminal and civil matter. Objective of Islamic law
and courts to secure the people of society from offenders.

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 Contract in Islam

(1) Introduction
• Generally contract forms when one person offers and another person accepts
it. Contract is basically a Legal agreement between the parties and a valid contract
is enforceable by the law according to rules prevail. As safety of property or
ownership is a legal right of the peoples and state plays his pivotal role in order to
prevent transaction among people in shape of contract

(2) Definition
• An agreement which is creating an Obligation and enforceable by law. The
basic element of an agreement is a mutual consent of the parties
(3) Literal and legal meaning
• Literally it means “Tie” and “Knot”. Legally it means any statement which
legally binds
the parties to fulfill an obligation to do something or not to do something in legal
way

(4) Importance of contract according to Quran and Sunnah

Following verse of the Holy Quran shows the importance of the contract. Verse is
as under

As Quran Says:
“O YE WHO BELIEVE FULFILL YOUR AGREEMENTS”
As Hadith Says:
“HE WHO HAS NO RESPECT FOR KEEPING PROMISES, DOES NOT
POSSESS DEEN”

(5) Formation of Contract

• Contract is a branch of the civil law A contract arises when all the parties
are agreethat there is an agreement. Formation of a contract generally requires an
offer, acceptance, consideration, and a mutual consent to be bound

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(6) Essentials of contract in Muhammadan Law
Following are the essentials of contract

(1) Plurality of Parties

• Contract requires two parties at least because it is not possible without two
parties

One person can’t create a valid contract

(2) Capacity to enter into the contract

• Parties must have the capacity to enter into the contact
• They must be Sane,
• Must be Major,
• Must not lunatic etc.

(3) Legal relation

• Contract must be establish legal relations between the parties. Contract must
be legally bounds the parties to fulfill their agreement conditions

(4) Legal Contract

• Contract must be legal or lawful it should not not contrary to Islamic legal
law as well should not contrary to public policy

(5) Free Consent

• Consent of the parties must be genuine it has not been taken by undue
influence or fraud or illegal pressure etc

(6) Offer and acceptance

• Offer and acceptance are the major things of contract
• One party makes a contract and other party accepts it

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 Example:
A offer to Sell his car to B
B accepts his offer. It is a contract

i. Conditions for offer and acceptance

Following are conditions for offer and acceptance

(a) Conformity of proposal and acceptance

• If there will be any conflict between offer and acceptance in this case it
would not be valid contract

Example:
A says to B. I have sold this car to you for 100. B replies I have accepted it for
8000. This is not a valid acceptance. There is not contract

b) Must be in same session

• Offer and acceptance should be in same time. Otherwise contract can’t be
made

Example:
A says to B,I want to sell my house to you. B says nothing and leaves the place.
Offer comes to and ends, B can’t accept it later

c) Acceptance before the termination of offer

• Acceptance should be ,before the termination of offer. Otherwise contract
can’t be made

(7) Mahall al Aqd (Subject matter of Contract)

• Mahall Al Aqd is the thing for which agreement has been made. It is same as
the term Consideration in English Law

Conditions of Mahall Al Aqd(Thing)

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Following are the conditions of Mahall al Aqd
1) Thing must be available at the time of contract
2) Thing must be deliverable at the time of contract
3) Must be in notice of the parties

(8) Fitness of Mahall

• If subject matter is not fit according to the prescription in this case contract
will be cancelled altogether

(7) Conclusion
• Law of contract is more or less similar to Western law. The major factor is
to establish a legal relation between the parties. It is the most frequent mode of
acquisition of ownership.

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 Qualifications of witness(Evidence) in Islam

Islamic System of Evidence

Islamic System of Evidence: Claims are not acceptable without evidence/proof.

Even one person has stolen a bike and occupied, he will be presumed owner until
contrary is proved by evidence. Responsibility/onus of proof lies on plaintiff.
Defendant is only responsible for swear.

1. Eye Witness

This is authentic proof. Numbers of witnesses in Hudood cases are two.

Accused is convicted upon evidence. Evidence by five senses: Perceive: It
is perceived that offence is committed by a particular person. Smell: It is
also a sense that provides evidence. Sight: I know that it was happened
before me. Hearing: Not seen but listen from elsewhere. Taste: It is
feelings to touch something.

2. Documentary Evidence

As per Quran it is authentic evidence. It is used particularly in debt cases.

It is order of Allah that all debt/fiscal matters should be written and
dictated and dictation should be given by borrower. If dispute arises then
it will provide proof. It further makes it fool proof with the sanction of
two male witnesses or one male and two female witnesses.

3. Circumstantial Evidence

It is a evidence which is derived from circumstances. It is perceived from

clothes, papers, knife, blood etc. It is not acceptable in Hudood and
Retribution Cases. It is accepted in Taazir cases.

4. Hearsay Evidence

It is the evidence based on the circumstances not listen directly but

indirectly. It is also not reliable. Benefit of doubt always goes to accused.

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 5. Confession

It is strong evidence. Accused himself admits his offence. After accused

has confessed, no more witnesses are required. Evidence against self is
injunction of Quran. There is a condition on confessor. He must be major
and sane. Child is not capable for confession. His confession is not
binding for courts. Age of majority for girl is 12 year and 13 years for
boy.

Who is competent for Evidence: Following persons are eligible for the purpose of
testifying the truth in Court cases:

1. He must be able to perceive or observe about which he has to affirm before

the Court of law. He must be able to read and understand document or the incident.

2. He must be able to retain his observation in his memory so that it may be

given as required.

3. He should have capacity to reproduce the object he has retained in his

memory.

4. His sight should be clear so that he may look and recognize as that is.

5. Physical fitness is also essential for witness.

6. His character must be sound. Person bearing loose character is not reliable.

Blind is incompetent to give evidence where sight is important and object has to be
recognized.

If witness has lack of senses where it is necessary then he will be disqualified.

Deaf is incapable to be witness where hearing is compulsory.

Dumb cannot express him in normal way. So he is no reliable. Some of sages claim
him as qualified but most of them deviate.
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Characteristic of Sound Character: Sound character must possess following
criteria:

1. He must be practicing his duties imposed by Islam.

2. He must refrain or abstain from mortal or major sins. It does not mean trivial
or minor sins are allowed but importance goes to mortal sins.

3. He must be good in his all particularly personal matters.

How Court determines the qualification of witness: Court takes into consideration
the following criteria to determine the qualification or credibility of true witness:

· To shake/check the credibility of witness lies on Court as to how it is to be

determined.

· He is also to be assessed by the cross examinations/questions.

· A secret/intelligent system may be established to determine the qualification

of the witness.

Woman as a witness: Whether she is competent? She has three statuses as follows:

1. She is incompetent to produce evidence at all,

2. Both, male and female, are equal in evidence, and

3. Cases in which only female are competent and not male.

She is deprived from evidence being not pleasant job for her. While producing
evidence, she is simultaneously, trying to enforce or impose punishment on one
party. There are so many matters in which production of evidence is most
important, like, fiscal, financial, civil, criminal etc. Woman is regarded most
respectful being of the society. She has privileges over male. Mother is source of
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paradise under her feet. If a man up-brings or nourishes two of his daughters, he
will be allowed to stand with Apostle in the day of judgement. Apostle had spread
his cloth on arrival of female. Islam does not like to indulge her in the unpleasant
matters of evidence. Domain of woman is home. She is Queen of home and home
affects when she leaves it. Disturbance may occur. Mother is responsible for
nourishment of her descendants/off-springs. Court matters may cause delay in
discharge of her duties at home. Evidence may involve travelling. She is physically
weak and repeatedly presence of her in Court may affect her soft passions. It may
bring inconvenience for her. Woman is not half, as it is said. Male and female, both
are equal. Presence of second woman in evidence is just for reminding purpose.
She is exempted in Hudood cases. It is time consuming job. Her deprivation
minimizes infliction of Hadd.
In Taazir cases, both male and female witnesses have equal status. She may
produce evidence in all civil and criminal cases related to Taazir. Male has not
superiority over woman.
There are many matters in which only woman is competent to produce evidence.
Respect goes to woman. Matters relating to reproduction or delivery are proved on
the evidence produced by woman. Only she knows the actual relationship. This
evidence is important in inheritance, marriage, property etc. Here male is deprived
from evidence.
Fosterage depends on woman’s evidence. Breast feeding changes and enhance
relationship. To determine, minority or majority of young girl, depends on
woman’s evidence. In these cases other woman, who is not subject in these cases,
is required to produce evidence.

Why woman is incompetent as witness in Hudood Cases: There are many reasons
that restrict woman from producing evidence in Hudood crimes. They are related
to emotions, physical fitness, memory, personality etc. Here is some detail as
follows:

1. Minimum enforcement:

Deprivation of woman from evidence in Hudood crimes minimizes the

enforcement of Hudood. Shariat does not like to make people of society as
ineffectual/futile persons, so if woman will not come to Court for

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 evidence, offence will not be proved and accused could not be convicted.
So Hudood’s enforcement will be lessen.

2. Benefit of doubt

Enforcement of Hadd is dropped in case of doubt if arise. Deprivation of

woman’s evidence makes it easy. Benefit of doubt always go to accused
and deprivation of woman is source of this object.

3. Vindication of accused

Accused is acquitted where woman is not produced as witness.

4. Weak

Woman is the person with weaker body and if there is travelling involved
in evidence, she is affected badly as she is Queen of Home and not
glamorous person of the Company.

5. Unbalanced personality

She does not bear balanced personality. She is not balanced in her
emotions. She is extreme in love and war. Her passions can be exploited
easily in the conviction of innocent person, who is not guilty of offence,
he is charged for what.

7. Area of activity

As she is Queen of Home, she is also exempted from discharge of adoration

in Mosque. She should live and work in home. Her care to home eliminates
the production of offenders, and contrary produces the offenders.

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 Competency of Witness in Islam

1) Introduction

• It’s a duty of witness to come forward and give testimony because a witness
is medium through which facts can be identified. Islamic law provides
qualifications and disqualifications for a competent witness to appear as witness

2) Definition of witness

• Individuals who provide evidence in legal proceedings before a court.

Persons who give testimony under oath in court, relevant to what they have seen,
heard, or otherwise observed.

3) Meaning of Competency of Witness

• A witness is competent if he lawfully be called to give evidence In criminal

proceedings all persons are (whatever their age) competent to give evidence

4) Doctrine of Tazkiya-Tu-Shahood

• Doctrine of Tazkiya-Tu-Shahood is very important. It means those persons

who appears before court for testimony and court will inquire the character and
background of such witness

5) Kinds of Tazkiya-Tu-Shahood
It has two kinds
o Declared Tazkiya-Tu-Shahood
o Secret Tazkiya-Tu-Shahood

6) Importance of testimony (Gawahi) According to Quran

Importance of giving testimony has been provided by Holy Quran.
Holy Quran says:
“DON’T CONCEAL TESTIMONY. HE WO CONCEALS IT. HIS HEART IS
SINFUL “
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 7) Qualification for a competent witness

Following are the qualifications for competent witness

1. Able to understand the questions

• Witness should be able to understand the question put to them but due
to tender age, old age or disease whether body or mind

2. Not convicted by Court for Perjury (Jhooti Gawahi)

• Witness should not be convicted by Court for giving false testimony

3. Free from Prejudice

• Witness must not be prejudice as well as the testimony of following
witnesses is unacceptable
1. Father in favor of his son and vice versa
2. Slave in favor of his master
3. Non-Muslim against a Muslim etc.

4. Must be Muslim
• Witness must be a Muslim for testimony
• Disbeliever not permitted for testimony
• Abu Hanifa permits disbeliever testimony upon certain conditions
• But Other schools of thought disagree about the testimony of disbeliever

5. Reliability of Character
By Tazkiya -tu-Shahood
1. Witness should be clean from deeds which cause Hadd punishment
2. Witness should be free from SINs
3. Witness should be Adil

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6. Maturity
• Person must be of a mature mind and must be able to understand the fact
related to criminal act

7. Eye-Sight
• Must possess perfect eye-Sight and must be capable of being seen the facts

8. Speech
• Person must possesses the capacity to communicate in hadood cases

9. Strong Memory
• Person must has a good memory because person of bad memory is
unacceptable as witness

8) Conditions for giving testimony

• There must be existence of complaint and requirement to the testimony
• Testimony should be given before the court

• Witness has the personal knowledge of the fact ,hearsay is unacceptable

• The word shahadat must be used in the beginning
• Witness must be remember the incident
• Witness must be able to identify the parties
• Conformity(Mutabqat) of the statement with the claim
• In Hadud cases (Qadhaf) facts must not occurred in the distant part

9) Competency of Woman as witness

Competency of woman as witness is discussed as under

1. Competency in Hadood Cases

• In Hadood Cases( Category of violation of right of ALLA) Competency of
women is regarded as incompetent

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2. Competency in Tazir Cases
• In case where violation of right of individual involved, women’s testimony
is accepted.
Prescribed Nisab for testimony of One male and two female witnesses

3. Financial transaction
• In financial matter or future obligation (zimadari). Testimony of two women
is accepted with one male

4. Specific matter where testimony of women is needed

• In matters which generally known to women
• Such as whether a particular child was born by a particular women
• Can be proved by the testimony of single woman

5. Other matters
• A court may accept and act upon the testimony of one women
• After the tazkiya of Women that she has possess all qualifications as a
witness

10) Position in Pakistan

• The competency and number of witnesses are provided in Article 3 and 17
of Q.S.O 1984
• Article 3 says that witness must not prevented from understanding and is
capable to giving evidence
• Article 17 says the how many witnesses are required to prove a fact in light
of injunction laid down by Quran and Sunnah

11) Conclusion

• In mostly cases, it is being observed someone has given testimony against

someone

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• But later witness denies, there are certain reason which compel men to tell
falsehood or other circumstances. Which prevent them from giving correct and
reliable information that’s why Islamic law has provided certain qualifications for
competent witness.

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 Concept of family Law in Islam

Islamic family jurisprudence (Arabic: ‫فقه األسرة اإلسًلمية‬, faqah al'usrat al'iislamia)
or Islamic family law or Muslim Family Law is the fiqh of laws and regulations
related to maintaining of Muslim family, which are taken from Quran, hadith,
fatwas of Muslim jurists and ijma of the Muslims. It contains pubertal, marital,
sexual, child upbringing, adoption and fostering, inheritance, criminal and other
related subjects.[4] The subject mainly discusses on foster relationship, marriage,
divorce, Ila, li'an, Raj'ah, Khul', Zihar, Iddah, custody and maintenance of children
etc. From the political aspects, Muslim family law is a part of almost every
national constitution of the world regarding religious (Muslim) laws, specially of
the muslim-majority countries.

Maturity (Puberty)

In Islamic legal terminology, bāligh (Arabic: ‫بالغ‬, adult) or mukallaf (Arabic: ‫مكلف‬,
responsible) of muhallaq (Arabic: ‫محالق‬, tendril, mentally matured) or murahiq
(Arabic: ‫مراهق‬, frequently errant, evildoer in a hurry) or muhtalim (Arabic: ‫محتلم‬,
pubescent) refers to someone who has reached maturity or puberty, and has full
responsibility under Islamic law.

In Islam, human life is divided into two parts, the first is before adolescence or
childhood, when man is considered innocent, and the second is after adolescence
(bulugiyat) or adulthood, when the Islamic law is fully applied to man and the
hereafter is judged. If a person dies before he becomes an adult, he is considered to
be in heaven.

According to Islamic jurists, human irads or niyah or qasd or free will, aqal or
ability to judge right and wrong, and courage are formed before the age of puberty
(Tamyiz) and between the age of puberty, and after the age of puberty (Taklif), his
intellect (Aql), that is, wisdom and judgment, attains perfection. Therefore, from
childhood, that is, before the age of seven, the child is taught the Kitab or
knowledge, Adab or etiquette, Ibadat or worship and Taharat or cleanliness,
because at this time the child is easily fit to receive education.

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Marriage

In Islamic law (sharia), marriage (nikāḥ ‫ )نکاح‬is a legal and social contract between
two individuals. Marriage is an act of Islam and is strongly recommended.
Polygyny is permitted in Islam under some conditions, but polyandry is forbidden.

In Islam, marriage (Arabic: ‫نِكَاح‬, romanized: Nikāḥ) is a legal contract between a

man and a woman. Both the groom and the bride are to consent to the marriage of
their own free wills. A formal, binding contract – verbal or on paper – is
considered integral to a religiously valid Islamic marriage, and outlines the rights
and responsibilities of the groom and bride. Divorce in Islam can take a variety of
forms, some executed by a husband personally and some executed by a religious
court on behalf of a plaintiff wife who is successful in her legal divorce petition for
valid cause.

In addition to the usual marriage until death or divorce, there is a different fixed-
term marriage known as zawāj al-mutʻah ("pleasure marriage"): 1045 permitted
only by the Twelver branch of Shi'ite Islam for a pre-fixed period.: 242 There is
also Nikah Misyar, a non-temporary marriage with the removal of some conditions
such as living together, permitted by some Sunni scholars

Children

The topic of Islam and children includes the rights of children in Islam, the duties
of children towards their parents, and the rights of parents over their children, both
biological and foster children. Also discussed are some of the differences regarding
rights with respect to different schools of thought.

Adoption and fostering

Main articles: Islamic adoptional jurisprudence and Rada (fiqh)

Raḍā or riḍāʿa (Arabic: ‫ رضاعة‬,‫ رضاع‬pronounced , "breastfeeding") is a technical
term in Sunni Islamic jurisprudence (fiqh) of family meaning "the suckling which
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produces the legal impediment to marriage of foster-kinship" and refers to the fact
that under Sunni jurispurdence, a wet nurse is considered related to the infant she
nurses. The term derives from the infinitive noun of the Arabic word radiʿa or
radaʿa ("he sucked the breast of his mother"). Often it is translated as "fosterage" or
"milk kinship".

The concept of radāʿ derives from Islamic and pre-Islamic notions concerning the
state of blood relations whereby a wet nurse (and her close relations) and the baby
she is nursing (and his or her close family) are deemed related to one another (a
status known as mahram) through the act of breastfeeding. One important
consequence is that the wet nurse and her family are forbidden to marry the baby
and members of the baby's family (e.g. the nursling's biological brother with the
milk-mother's biological daughter). Conversely, the milk-relationship allows
usually forbidden familiarities between the two groups, (e.g. if the nursling is male,
when he becomes an adult he may view the milk-mother and her close female
relatives unveiled or in private, exactly as if he were a relation

Divorce

Divorce in Islam can take a variety of forms, some initiated by the husband and
some initiated by the wife. The main traditional legal categories are talaq
(repudiation), khulʿ (mutual divorce), judicial divorce and oaths. The theory and
practice of divorce in the Islamic world have varied according to time and
place.[60] Historically, the rules of divorce were governed by sharia, as interpreted
by traditional Islamic jurisprudence, though they differed depending on the legal
school, and historical practices sometimes diverged from legal theory.[61] In
modern times, as personal status (family) laws were codified, they generally
remained "within the orbit of Islamic law", but control over the norms of divorce
shifted from traditional jurists to the state

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Inheritance

Islamic Inheritance jurisprudence is a field of Islamic jurisprudence (Arabic: ‫)فقه‬

that deals with inheritance, a topic that is prominently dealt with in the Qur'an. It is
often called Mīrāth, and its branch of Islamic law is technically known as ʿilm al-
farāʾiḍ (Arabic: ‫علم الفرائض‬, "the science of the ordained quotas").

Heirs referred to as primary heirs are always entitled to a share of the inheritance,
they are never totally excluded. These primary heirs consist of the spouse relict,
parents, the son and the daughter. All remaining heirs can be totally excluded by
the presence of other heirs. But under certain circumstances, other heirs can also
inherit as residuaries, namely the father, paternal grandfather, daughter, agnatic
granddaughter, full sister, consanguine sister and mother.[63] Those who inherit
are usually categorized into three groups:

Quota-heirs (dhawu al-farāʾḍ), This group includes four males and eight
females.[64] The male quota-heirs are the husband, father, paternal grandfather and
maternal brother. The females quot-heirs are the wife, daughter, granddaughter,
mother, grandmother, full sister, paternal sister and maternal sister. However, there
are scenarios that could move the daughter, granddaughter, father, grandfather, full
siblings and paternal siblings to the second group ('asaba).
Members of the ʿaṣaba (residuaries), usually a combination of male (and
sometimes female) relatives that inherit as residuaries after the shares of the Quota-
heirs is distributed.
Extended family members (dhawu al arham): This includes any blood relative who
is not a quot-heir or 'asaba (residuary). Examples include maternal grandfather,
aunts, nieces and female cousins.

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 Social and Economic Perspective In Islamic Legal System

Islam is not the religion of just adoration. It focuses to practices. Islamic civil
system is as important as criminal. It has formulated rules and regulations. It has
formulated guidelines how the property is acquired. There are two concepts of
economy, i.e., Capitalistic system in which acquisition of property is unlimited
without any restrictions and second one is Socialistic in which private property
cannot be maintained at all. USA, UK, France represent capital system while
China, former USSR are representative of Socialism. Both systems have their
merits and demerits. They can be discussed as follows:

Capitalistic Economic System provides free competition. This factor is the key of
the system. Mill Owner wants maximum output. He not only acquires benefits for
himself, but he is source of benefits for others in term of employment. Competition
factor is key of quality products. He may possess profit what he earned. Profit is
the motivation, provides encouragement in maximum production.

Besides merits of capitalism, there are certain demerits of this system. The most
common defect is exploitation. One who has scarce resources remains poor
forever. He cannot get share in profits that are gained through their labour. There is
gulf between poor and rich. Poverty and richness simultaneously moves in
opposite direction. Poor remains poor while rich become richer. Concentration of
wealth is hindrance in circulation of wealth that is blood of any economical
system.

Socialism does not recognize private property. There is no ownership in it at all.

Nobody can make or acquire home for residence. There is no share for labour in
profits. They have to work as component of machine at flat rates. They have no
concern whether company goes to deficit.

It has shortcomings as well as qualities. Labour class indulges in laziness being the
deprived from share in profits. There is no ownership at all. All property is owned
by the state. People do not exploit each other. Both capital and labour are
divergent.

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In spite of all other systems, Islam gives us balanced economic system. There is
neither limitation on the acquisition of property nor unlimited freedom. There are
certain restrictions on people. Although unlimited property may be acquired but
there are some taxes that are levied by Allah. There is Ushr on cultivation @
1/10th on rain-irrigated land and 1/20th on artificial irrigated land. 1/10th tax is
levied on trade while 1/40th on assets like gold or silver. These taxes circulate the
money and assets. Also Islam inheritance system restricts concentration on wealth.
Islamic economic system has more or less, resemblance with both, capitalism and
socialism.

Ownership includes existence or tangibility and benefits derived from it.

Ownership completes when both ingredients are met together in a person. It is
called exclusive ownership and lack of one ingredient makes it defective
ownership. If I have a pen and give to Ali produces defective ownership for both of
us. I have ownership of pen but Ali enjoys benefits. If I possess and get benefits of
pen, then I would have exclusive ownership. Rental homes is also example of
defective ownership on the part of owner and tenant.

How the exclusive ownership is acquired and lost. There are three valid methods as
follows:

1. Agreement is the way of acquisition of ownership in which one party

sells its rights to other one.

2. Inheritance also transfers the ownership after the death of owner.

3. Gifts can be transferred from one to another.

These are three ways, which not only used in acquisition of exclusive ownership
but also lost at same time. There is another method of acquisition of exclusive
ownership, i.e., theft, bribery, illegal possession etc. but these methods are illegal
and prohibited by Shariat. Prayer cannot be offered wearing the clothes stolen.

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Agreement or Sale – Purchase Contract needs some important ingredients. A
person who is going to enter into contract must be adult and wise. He must attain
age of puberty before entering into contract. There must be minimum two parties
and there is no limit on maximum parties. A person cannot make an agreement
with self. I cannot buy sweater from myself.

There are some exceptions in contract making. Insane and minor may make
contract with some conditions. They may make contract that extents at lower
consideration and this contract must cover only life necessities. Going up to bus is
a contract. Bread buying is also a contract. These are necessities and every one
regardless his age or before attaining the age of puberty and this may also be
repealed after attaining the age of majority. This is upto party whether they want to
ratify or revoke it. There is another exception that insane cannot enter into the
contract of marriage. There is neither divorce nor probationary period on the part
of female partner after revocation of marriage contract after attaining the age of
puberty. Both parties must be Muslim if contract is made for marriage. Muslim
male may marry with women of people of the book.

There should must be subject matter for which contract is made and it must be
permissible. Prohibited items cannot be allowed as subject matter. So there will be
no agreement for wine, pig, and musical instruments. Subject matter should be
present at the time of contract, i.e., offer and acceptance. In its absence contract
cannot be made. So contract for the birds flying in air, fishes in deep water of sea,
and for those animals who have been escaped from their master, cannot be made.

Advance: There are some agreements that can be made in the absence of subject
matter in advance. The things which to be manufactured at the time of contract,
can form contract. A carpenter, who can make table but is unable to make it due to
non-availability of sufficient funds involved in it, may enter into contract in the
absence of subject matter. A person who has money and need table, but cannot
make itself, can enter into contract with carpenter. Goldsmith and blacksmith may
be made contracts without presence of subject matter.

A contract in which possession is made first, and payment is made later, after
investigation, can be made. Maximum investigation period is three days. Rent
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according to prevailing market rate, is applicable for the investigation period if the
subject matter is not purchased and returned after investigation and not applicable
if it is purchased and paid.

Restriction on government officials: Officials, who are made responsible to run the
matters of government, are restricted to acquire ownership and easement of certain
things.

1. Ownership of house was strictly prohibited. Maintenance of home could

divert the intention of officials to carry on their responsibilities.

2. Use of Turkish horse was strictly prohibited being the luxury and
contrast to obligation.

3. They were not allowed to have foodstuff which was not available to
people. They were bound to use unrefined flour being the available item to the
people. Majority could not use refined flour.

4. They were not allowed to acquire the services of servant or gatekeeper so

that every complainant may approach them.

5. They were fixed rated officials and are not allowed to indulge in trade or
business so that they may discharge their responsibilities diligently. Other
sources of income were strictly prohibited.

In the vicegerency of Hazrat Abu Bakr, he got some cloth over his shoulder to sell
and earn, but he was strictly refrained by government to do such job. He had
monthly grant or scholarship.

6. They were bound to wear simple dress. Once a time Hazrat Umar made and
wears long shirt, but he was called explanation and he answered that objection
while the interval in general address to people.

Only government officials had to follow the following injunctions and subjects
were exempted and allowed to enjoy all these prohibited items.
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Islamic international Law: Is Islam allows to its follower’s war? Is it conditional?
Is it carries some objectives? Islam is a totally different way of belief than made by
man. Islam is God made way of life. It carries meaning, sign, and objectives in all
its injunctions. War is one of them and objectives are not excluded from it. Islam is
revealed way of life. Its compliance not only discharges us from religious
obligation but official duty as well. It is also adoration. It carries reward or SWAB.
Islam focuses on humanity. It also can be seen in battlefield. Just war is nothing if
carries no objectives. It is not allowed for extension of boundaries, not for making
free people slaves, and not for the purpose domination or colonies. It is only the
tool to extend the Name of Allah to the world or to support Islamic civilization.
Most of wars, in Islam, were defensive and not offensive. It does not mean that
offensive wars are not permitted. If there is violation of human rights, then
offensive war is became legal obligation of Islamic State. Makka war is one of the
examples of offensive war. Islam does not allow Muslims to cross limits in war. It
imposes duties during wartime. Islam forbids:

1. Killing of women, if they remain peaceful.

2. Children.

3. Aged people.

4. Transgression of limits.

5. Devastation of corps.

6. Destruction of buildings or houses.

7. Ruin of gardens.

8. Killing of animals.

9. Arson of public places.

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Islam teaches us to be ready for war during peacetime. Let provide force physical
and human resources. Killing of animals is allowed where they are used to fight,
like horse, camel, elephant etc.

Prisoners of war (POW) are detained. Oppression upon them is not inflicted. They
can be set free if they teach our uneducated dwellers. They can be utilized
maximum. Prisoners of war (POW) either male or female can be made slaves and
maid.

More than one maid can be given to one of fighter. Booty obtained while war is
distributed among the fighters. It is divided in five parts and one of them is
deposited in finance department and rest is distributed as described earlier.

Booty obtained without war is also dealt as booty obtained while war, described as
earlier.

Capitation tax is levied on non-Muslim residents. It is used to protect their lives,

honor, and goods. Its fixation is decided case to case, as per capacity of the
individuals.

Land tax is imposed on occupied agricultural land.

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 Concept of Tort and Crime in Islamic Legal System

Torts and crimes

The line which divided the two kinds of wrong, torts and crimes, is sometimes very
narrower as the Muhammadan jurists put it there are some matters in which the
right of public and individual is combined. The test is, to whom the law grants the
remedy, the public or individual. If to the latter, the wrong which gave rise to the
remedy will be regarded as a tort, and, if to the former, it will be called crime. I
shall deal with torts first which mostly arise from infringement of a man’s rights to
the safety of person, to freedom of action and to protection of property.
Tort
Tort is an infringement and violation of a legal right.
Generally,
Tort is a legal term for all the prohibited acts committed either upon the person or
property.
It is the infringement of private right belonging to an individual.
Definition:
The Arabic word of the tort is generally “JINAYAT” which applies to injuries
illegally inflicted on the human body wether such injuries have cause death (qatal
without intention), grievous hurt or merely a simple hurt.
Definition of Jinayat;
Generally means prohibited acts according to shariat: which are committed against
human body and property.

Concept of Tort and Jinayat in Quran: Surah Al-Nisa: 32

And covet not the thing in which Allah hath made some of you excel others. Unto
men a fortune from that which they have earned, and unto women a fortune from
that which they have earned. (Envy not one another) but ask Allah of His bounty.
Lo! Allah is ever Knower 32 things. of all

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Explanation:
Man is naturally inclined to feel uneasy whenever he sees someone else ahead of
him. This is the root of jealousy and envy, of cutthroat competition and animosity
to obliterate all differences between human beings, he in fact engaged in a war
against nature and inflicts war of another nature.
Hadith Related to Tort:
“It is not allowed for man to take his brother stuff except his good will”
Basics of Tort
 Tort law is based on the idea that everyone in our socially has certain rights.

 Along with having certain right everyone has the duty to respect the others
rights.

The purpose of tort law is to enforce those rights and duties.

 Tort can be intentional or unintentional against person and property

(negligence/unintentional).

Kinds of Torts
Tort with reference to property may either be in the nature of usurpation or
appropriation (ghasab) or destruction or damage (talaf. Nuqsan). Infringement of a
man’s right to freedom of action is caused either by coercion of his will (ikrah) or
by misleading judgement, that is, by fraud (taghrir).

1. Injuries to Person and Property

The principle is that the law looks to the loss caused to the injured and is not, as a
general rule, concerned with the moral culpability of the person by whose act it is
caused. Thus if injury to a man’s person or property is caused directly by an act of
another person without the intervention of any other extraneous cause (al-itlaf
mubasharatun) the law holds the later responsible whether such act was intentional
or accidental. Nor would it make any difference if the person who caused the loss
happened to be an infant or lunatic.
But suppose the injury or loss was the combined result of two or more causes (al-
itlaf tassababun), the question then arises to which of the causes the loss will be
attributed in law. In this connection one must bear in the mind the different

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significations of the technical terms ‘effective cause, prepatory cause (negligence,
carelessness) and conditions. It includes:
Tort of assault (physical injury caused to body with negligence act)

Defamation (when any material published caused injurious to someone respect or

reputation)

Tort of trespass on land (when any person enters into land of another person)

Tort of trespass on goods (when any person snatch or take away moveable property

Quran says:
“It is He who has appointed you vicegerent on the earth and exalted some of you in
rank above others, so that He may test you by means of what he has given you."
(Surah al-An ‘am, 6:165)
2. Principles of Liability
Word used in shariah for liability is “mas’ ooliya” or “daman” which means the
duty to return the same thing. In muhammadan jurisprudence , when two causes
prepatory and effective are both acts of free agents but independent of each other ,
the general rule is applies fastening liability on the person whose act is the
immediate or effective cause of the loss. It includes;
Tort of malicious prosecution

vicarious liability

For instance;
Two witnesses swear before the Qadi that the husband of the certain women had
conferred on her the power to dissolve the marriage and two other witnesses swear
that subsequently exercised such power, and the Qadi there upon passes a decree
declaring the marriage to be dissolved. Afterwards if both sets of witnesess retract
their testimony admitting that they swore falsely, the testimony of the witnesses
who deposed to the exercise of the alleged power would be regarded as the
effective cause of the Qadi’s decree, and they would be liable of the wrong.

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3. Coercion
Coercion whether exercised by threats of violence or confinement or by actual
application of force is an infringement of a man’s right to freedom f action. In
another place we have considered the effect of coercion on the validity of the act
done under its influence and the responsibility of the doer of the act. The general
principle is that if the act was done under the duress of the extreme form, the
violation of the coerced would be regarded as vitiated and in such act can be
properly attributed to the violation of the coercer then the law would treat the
violation of the former as if it did not exist and refer the result to the violation of
the latter.
For instance;
If A compels B to murder C, the deceased C’s heirs will have a right of retaliation
against A alone. The reason is that a man’s own life is dearer to him than any
others and B killed C to save himself he cannot be said to have acted intentionally.
4. Fraud
In many cases questions as to whether the conduct complained of was fraudulent or
whether it influenced the action of the person complaining of it, and if so whether
such conduct was the cause of any loss would not arise under Muhammadan law as
it lays down positive rules as to the circumstances in which a party a transaction
who has suffered loss should be relieved.
For instance;
In a transaction of sale, one party suffer loss owing to some fact not being known
to him, such as defect in goods brought, the Muhammadan law would at once
relieved him without inquiring whether he acted with his eyes open or whether the
other party actively and knowingly practiced any deception on him.
Remedies for tort:
The remedies for tort as recognized by the Muhammadan law are;
1) Retaliation (Qisas)
It based on simple rule of “tit for tat”. Retaliation is allowed only in cases of
willful destruction of life or limb or of such bodily injury as is capable of definite
ascertainment. It consists in the infliction by the person injured or by his heirs in
case he is dead, of similar injury or death on the wrongdoer.
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2) Diyat
Diyat Islamic law, is the financial compensation paid to the victim or heirs of a
victim in the cases of murder, bodily harm or property damage. It is
an alternative punishment to qisas (equal retaliation). In Arabic, the word means
both blood money and ransom, and it is spelled sometimes as diyah or diyeh.
It only applies when victim's family want to compromise with the guilty party;
otherwise qisas applies. Diya compensation rates have historically varied based on
the gender and religion of the victim. In Pakistan, the diya for Muslim citizens,
non-Muslim citizens and foreigners is the same.
3) Arsh
Arsh is basically a compensation for offences relating to various kinds of hurt. It is
to be assessed at certain percentage of the value of Diyat. It is to be paid in lump
sum or in installments. In default the convict is liable to simple imprisonment. He
may be released on bail against security of an equal amount. Arsh can be awarded
in addition to Tazir.
In cases of infringement of a man’s right to safety of the person; and restitution and
compensation are the remedies provided for the violation of man’s proprietary
rights and for other wrongs of the similar cases.

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 Rights of Non-Muslims in an Islamic State

Islam is a religion of mercy to all people, both Muslims and non-Muslims. The
Prophet was described as being a mercy in the Quran due to the message he
brought for humanity:

"And We have not sent you but as a mercy to all the worlds." (Quran 21:107)

When a person analyzes the legislations of Islam with an open mind, the Mercy
mentioned in this verse will definitely become apparent. One of the aspects
constituting an epitome of this Mercy is the way the legislations of Islam deal with
people of other faiths. The tolerant attitude of Islam towards non-Muslims,
whether they be those residing in their own countries or within the Muslim lands,
can be clearly seen through a study of history. This fact is not only purported by
Muslims, but many non-Muslim historians also accept it. Patriarch Ghaytho wrote:

‘The Arabs, to whom the Lord has given control over the world, treat us as you
know; they are not the enemies of Christians. Indeed, they praise our community,
and treat our priests and saints with dignity, and offer aid to churches and
monasteries.

Will Durant wrote:

‘At the time of the Umayyad caliphate, the people of the covenant, Christians,
Zoroastrians, Jews, and Sabians, all enjoyed degree of tolerance that we do not find
even today in Christian countries. They were free to practice the rituals of their
religion and their churches and temples were preserved. They enjoyed autonomy
in that they were subject to the religious laws of the scholars and judges.’[2]

These just relations between Muslims and people of other faiths were not due to
mere politics played by Muslim rulers, but rather they were a direct result of the
teachings of the religion of Islam, one which preaches that people of other
religions be free to practice their own faith, only accepting the guidance offered by
Islam by their own choice. God says in the Quran:

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"There is no compulsion in religion…" (Quran 2:256)

Not only does Islam demand their freedom to practice religion, but also that they
be treated justly as any other fellow human. Warning against any abuse of non-
Muslims in an Islamic society, the Prophet stated:

"Beware! Whoever is cruel and hard on a non-Muslim minority, curtails their

rights, burdens them with more than they can bear, or takes anything from them
against their free will; I (Prophet Muhammad) will complain against the person on
the Day of Judgment." (Abu Dawud)

How far is this mannerism than the majority of nations, to this day, which not only
suppress the rights of foreign religions, but also foreign peoples and races! In a
time when Muslims were being tortured to death in then pagan Mecca, Jews were
being persecuted in Christian Europe, and various peoples were being subjugated
due to their particular race or caste, Islam called to the just treatment of all peoples
and religions, due to its merciful tenets which gave humanity the right to their
humanness.

The Security of Life and Property

In the address which the Prophet delivered on the occasion of the Farewell Hajj, he
said: "Your lives and properties are forbidden to one another till you meet your
Lord on the Day of Resurrection." God Almighty has laid down in the Holy Quran:
"Anyone who kills a believer deliberately will receive as his reward (a sentence) to
live in Hell for ever. God will be angry with him and curse him, and prepare
dreadful torment for him" (4:93). The Prophet has also said about the dhimmis (the
non-Muslim citizens of the Muslim State): "One who kills a man under covenant
(i.e. a dhimmi) will not even smell the fragrance of Paradise" (al-Bukhari and Abu
Dawud). Islam prohibits homicide but allows only one exception, that the killing is
done in the due process of law which the Quran refers to as bi al-haqq (with the
truth). Therefore a man can be killed only when the law demands it, and it is
obvious that only a court of law can decide whether the execution is being carried
out with justice or without justification. In case of war or insurrection a just and
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righteous government alone, which follows the Shari'ah or the Islamic Law, can
decide whether a war is just or unjust, whether taking of a life is justified or not;
and whether a person is a rebel or not and who can be sentenced to death as a
punishment. These weighty decisions cannot be left in the hands of a court which
has become heedless to God and is under the influence of the administra- tion. A
judiciary like this may miscarry justice. Nor can the crimes of state be justified on
the authority of the Holy Quran or Traditions (hadith) when the state murders its
citizens openly and secretly without any hesitation or on the slightest pretext,
because they are opposed to its unjust policies and actions or criticize it for its
misdeed, and also provides protection to its hired assassins who have been guilty
of the heinous crime of murder of an innocent person resulting in the fact, that
neither the police take any action against such criminals nor can any proof or
witnesses against these criminals be produced in the courts of law. The very
existence of such a government is a crime and none of the killings carried out by
them can be called "execution for the sake of justice" in the phraseology of the
Holy Quran.

Along with security of life, Islam has with equal clarity and definiteness conferred
the right of security of ownership of property, as mentioned earlier with reference
to the address of the Farewell Hajj. On the other hand, the Holy Quran goes so far
as to declare that the taking of people's possessions or property is completely
prohibited unless they are acquired by lawful means as permitted in the Laws of
God. The Law of God categorically declares "Do not devour one another's wealth
by false and illegal means" (2:188).

The Protection of Honour

The second important right is the right of the citizens to the protection of their
honour. In the address delivered on the occasion of the Farewell Hajj, to which I
have referred earlier, the Prophet did not only prohibit the life and property of the
Muslims to one another, but also any encroachment upon their honour, respect and
chastity were forbidden to one another. The Holy Quran clearly lays down:

(a) "You who believe, do not let one (set of) people make fun of another set.
(b) Do not defame one another.
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(c) Do not insult by using nicknames.

(d) And do not backbite or speak ill of one another" (49:11-12).

This is the law of Islam for the protection of honour which is indeed much superior
to and better than the Western Law of Defama- tion. According to the Islamic Law
if it is proved that someone has attacked the honour of another person, then
irrespective of the fact whether or not the victim is able to prove himself a
respectable and honourable person the culprit will in any case get his due
punishment. But the interesting fact about the Western Law of Defamation is that
the person who files suit for defamation has first to prove that he is a man of
honour and public esteem and during the interrogation he is subjected to the
scurrilous attacks, accusations and innuendoes of the defence council to such an
extent that he earns more disgrace than the attack on his reputation against which
he had knocked the door of the court of law. On top of it he has also to produce
such witnesses as would testify in the court that due to the defamatory accusations
of the culprit, the accused stands disgraced in their eyes. Good Gracious! what a
subtle point of law, and what an adherence to the spirit of Law! How can this
unfair and unjust law be compared to the Divine law? Islam declared blasphemy as
a crime irrespective of the fact whether the accused is a man of honour or not, and
whether the words used for blasphemy have actually disgraced the victim and
harmed his reputation in the eyes of the public or not. According to the Islamic
Law the mere proof of the fact that the accused said things which according to
common sense could have damaged the reputation and honour of the plaintiff, is
enough for the accused to be declared guilty of defamation.

The Sanctity and Security of Private Life

Islam recognizes the right of every citizen of its state that there should be no undue
interference or encroachment on the privacy of his life. The Holy Quran has laid
down the injunction: "Do not spy on one another" (49:12). "Do not enter any
houses except your own homes unless you are sure of their occupants' consent"
(24:27). The Prophet has gone to the extent of instructing his followers that a man
should not enter even his own house suddenly or surreptitiously. He should
somehow or other inform or indicate to the dwellers of the house that he is entering
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the house, so that he may not see his mother, sister or daughter in a condition in
which they would not like to be seen, nor would he himself like to see them in that
condition. Peering into the houses of other people has also been strictly prohibited,
so much so that there is the saying of the Prophet that if a man finds another person
secretly peering into his house, and he blinds his eye or eyes as a punishment then
he cannot be called to question nor will he be liable to prosecution. The Prophet
has even prohibited people from reading the letters of others, so much so that if a
man is reading his letter and another man casts sidelong glances at it and tries to
read it, his conduct becomes reprehensible. This is the sanctity of privacy that
Islam grants to individuals. On the other hand in the modern civilized world we
find that not only the letters of other people are read and their correspondence
censored, but even their photostat copies are retained for future use or blackmail.
Even bugging devices are secretly fixed in the houses of the people so that one can
hear and tape from a distance the conversation taking place behind closed doors. In
other words it means that there is no such thing as privacy and to all practical
purposes the private life of an individual does not exist.

This espionage on the life of the individual cannot be justified on moral grounds by
the government saying that it is necessary to know the secrets of the dangerous
persons. Though, to all intents and purposes, the basis of this policy is the fear and
suspicion with which modern governments look at their citizens who are intelligent
and dissatisfied with the official policies of the government. This is exactly what
Islam has called as the root cause of mischief in politics. The injunction of the
Prophet is: "When the ruler begins to search for the causes of dissatisfaction
amongst his people, he spoils them" (Abu Dawud). The Amir Mu'awiyah has said
that he himself heard the Prophet saying: "If you try to find out the secrets of the
people, then you will definitely spoil them or at least you will bring them to the
verge of ruin." The meaning of the phrase 'spoil them' is that when spies (C.I.D. or
F.B.I.agents) are spread all around the country to find out the affairs of men, then
the people begin to look at one another with suspicion, so much so that people are
afraid of talking freely in their houses lest some word should escape from the lips
of their wives and children which may put them in embarrassing situations. In this
manner it becomes difficult for a common citizen to speak freely, even in his own
house and society begins to suffer from a state of general distrust and suspicion.

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The Security of Personal Freedom

Islam has also laid down the principle that no citizen can be imprisoned unless his
guilt has been proved in an open court. To arrest a man only on the basis of
suspicion and to throw him into a prison without proper court proceedings and
without providing him a reason- able opportunity to produce his defence is not
permissible in Islam. It is related in the hadith that once the Prophet was delivering
a lecture in the mosque, when a man rose during the lecture and said: "O Prophet
of God, for what crime have my neighbours been arrested?" The Prophet heard the
question and continued his speech. The man rose once again and repeated the same
question. The Prophet again did not answer and continued his speech. The man
rose for a third time and repeated the same question. Then the Prophet ordered that
the man's neighbours be released. The reason why the Prophet had kept quiet when
the question was repeated twice earlier was that the police officer was present in
the mosque and if there were proper reasons for the arrest of the neighbours of this
man, he would have got up to explain his position. Since the police officer gave no
reasons for these arrests the Prophet ordered that the arrested persons should be
released. The police officer was aware of the Islamic law and therefore he did not
get up to say: "the administration is aware of the charges against the arrested men,
but they cannot be disclosed in public. If the Prophet would inquire about their
guilt in camera I would enlighten him." If the police officer had made such a
statement, he would have been dis- missed then and there. The fact that the police
officer did not give any reasons for the arrests in the open court was sufficient
reason for the Prophet to give immediate orders for the release of the arrested men.
The injunction of the Holy Quran is very clear on this point. "When- ever you
judge between people, you should judge with (a sense of) justice" (4:58). And the
Prophet has also been asked by God: "I have been ordered to dispense justice
between you." This was the reason why the Caliph 'Umar said: "In Islam no one
can be imprisoned except in pursuance of justice." The words used here clearly
indicate that justice means due process of law. What has been prohibited and
condemned is that a man be arrested and imprisoned without proof of his guilt in
an open court and without providing him an opportunity to defend himself against
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those charges. If the Government suspects that a particular individual has
committed a crime or he is likely to commit an offence in the near future then they
should give reasons for their suspicion before a court of law and the culprit or the
suspect should be allowed to produce his defence in an open court, so that the court
may decide whether the suspicion against him is based on sound grounds or not
and if there is good reason for suspicion, then he should be informed of how long
he will be in preventive detention. This decision should be taken under all
circumstances in an open court, so that the public may hear the charges brought by
the government, as well as the defence made by the accused and see that the due
process of law is being applied to him and he is not being victimized.

The correct method of dealing with such cases in Islam is exemplified in the
famous decision of the Prophet which took place before the conquest of Makkah.
The Prophet was making preparations for the attack on Makkah, when one of his
Companions, Hatib ibn Abi Balta'ah sent a letter through a woman to the
authorities in Makkah informing them about the impending attack. The Prophet
came to know of this through a Divine inspiration. He ordered 'Ali and Zubayr:
"Go quickly on the route to Makkah, at such and such a place, you will find a
woman carrying a letter. Recover the letter from her and bring it to me." So they
went and found the woman exactly where the Prophet had said. They recovered the
letter from her and brought it to the Prophet. This was indeed a clear case of
treachery. To inform the enemy about a secret of an army and that too at the time
of a war is a very serious offence tantamount to treachery. In fact one cannot think
of a more serious crime during war than giving out a military secret to one's
enemy. What could have been a more suitable case for a secret hearing; a military
secret had been betrayed and common sense demanded that he should be tried in
camera. But the Prophet summoned Hatib to the open court of the Mosque of the
Prophet and in the presence of hundreds of people asked him to explain his
position with regard to his letter addressed to the leaders of Quraysh which had
been intercepted on its way. The accused said: "O God's Messenger (may God's
blessings be on you) I have not revolted against Islam, nor have I done this with
the intention of betraying a military secret. The truth of the matter is that my wife
and children are living in Makkah and I do not have my tribe to protect them there.
I had written this letter so that the leaders of Quraysh may be indebted to me and
may protect my wife and children out of gratitude." 'Umar rose and respect- fully
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submitted: "O Prophet, please permit me to put this traitor to the sword." The
Prophet replied: "He is one of those people who had participated in the Battle of
Badar, and the explanation he has advanced in his defence would seem to be
correct."

Let us look at this decision of the Prophet in perspective. It was a clear case of
treachery and betrayal of military secrets. But the Prophet acquitted Hatib on two
counts. Firstly, that his past records were very clean and showed that he could not
have betrayed the cause of Islam, since on the occasion of the Battle of Badr when
there were heavy odds against the Muslims, he had risked his life for them.
Secondly, his family was in fact in danger at Makkah. Therefore, if he had shown
some human weakness for his children and written this letter, then this punishment
was quite sufficient for him that his secret offence was divulged in public and he
had been disgraced and humiliated in the eyes of the believers. God has referred to
this offence of Hatib in the Holy Quran but did not propose any punishment for
him except rebuke and admonition.

The attitude and activities of the Kharijis in the days of the Caliph 'Ali are well-
known to the students of Muslim history. They used to abuse the Caliph openly,
and threaten him with murder. But whenever they were arrested for these offences,
'Ali would set them free and tell his officers "As long as they do not actually
perpetrate offences against the State, the mere use of abusive language or the threat
of use of force are not such offences for which they can be imprisoned." The imam
Abu Hanifah has recorded the following saying of the Caliph 'Ali (A): "As long as
they do not set out on armed rebellion, the Caliph of the Faithful will not interfere
with them." On another occasion 'Ali was delivering a lecture in the mosque when
the Kharijis raised their special slogan there. 'Ali said: "We will not deny you the
right to come to the mosques to worship God, nor will we stop to give your share
from the wealth of the State, as long as you are with us (and support us in our wars
with the unbelievers) and we shall never take military action against you as long as
you do not fight with us." One can visualize the opposition which 'Ali was facing;
more violent and vituperative opposition cannot even be imagined in a present-day
democratic State; but the freedom that he had allowed to the opposition was such
that no government has ever been able to give to its opposition. He did not arrest
even those who threatened him with murder nor did he imprison them.
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The Right to Protest against Tyranny

Amongst the rights that Islam has conferred on human beings is the right to protest
against government's tyranny. Referring to it the Quran says: "God does not love
evil talk in public unless it is by some- one who has been injured thereby" (4:148).
This means that God strongly disapproves of abusive language or strong words of
condemna- tion, but the person who has been the victim of injustice or tyranny,
God gives him the right to openly protest against the injury that has been done to
him. This right is not limited only to individuals. The words of the verse are
general. Therefore if an individual or a group of people or a party usurps power,
and after assuming the reins of authority begins to tyrannize individuals or groups
of men or the entire population of the country, then to raise the voice of protest
against it openly is the God-given right of man and no one has the authority to
usurp or deny this right. If anyone tries to usurp this right of citizens then he rebels
against God. The talisman of Section 1444 may protect such a tyrant in this world,
but it cannot save him from the hell-fire in the Hereafter.

Freedom of Expression

Islam gives the right of freedom of thought and expression to all citizens of the
Islamic State on the condition that it should be used for the propagation of virtue
and truth and not for spreading evil and wickedness. This Islamic concept of
freedom of expression is much superior to the concept prevalent in the West.
Under no circumstances would Islam allow evil and wickedness to be propagated.
It also does not give anybody the right to use abusive or offensive language in the
name of criticism. The right to freedom of expression for the sake of propagating
virtue and righteousness is not only a right in Islam but an obligation. One who
tries to deny this right to his people is openly at war with God, the All-Powerful.
And the same thing applies to the attempt to stop people from evil. Whether this
evil is perpetrated by an individual or by a group of people or the government of
one's own country, or the government of some other country; it is the right of a
Muslim and it is also his obligation that he should warn and reprimand the evil-
doer and try to stop him from doing it. Over and above, he should openly and

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publicly condemn it and show the course of righteousness which that individual,
nation or government should adopt.

The Holy Quran has described this quality of the Faithful in the following words:
"They enjoin what is proper and forbid what is improper" (9:71). In contrast,
describing the qualities of a hypocrite, the Quran mentions: "They bid what is
improper and forbid what is proper" (9:67). The main purpose of an Islamic
Government has been defined by God in the Quran as follows: "If we give
authority to these men on earth they will keep up prayers, and offer poor-due, bid
what is proper and forbid what is improper" (22:41). The Prophet has said: "If any
one of you comes across an evil, he should try to stop it with his hand (using
force), if he is not in a position to stop it with his hand then he should try to stop it
by means of his tongue (meaning he should speak against it). If he is not even able
to use his tongue then he should at least condemn it in his heart. This is the
weakest degree of faith" (Muslim). This obligation of inviting people to
righteousness and forbidding them to adopt the paths of evil is incumbent on all
true Muslims. If any government deprives its citizens of this right, and prevents
them from performing this duty, then it is in direct conflict with the injunction of
God. The government is not in conflict with its people, but is in conflict with God.
In this way it is at war with God and is trying to usurp that right of its people which
God has conferred not only as a right but as an obligation. As far as the
government which itself propagates evil, wickedness and obscenity and interferes
with those who are inviting people to virtue and righteousness is concerned,
according to the Holy Quran it is the government of the hypocrites.

Freedom of Association

Islam has also given people the right to freedom of association and formation of
parties or organizations. This right is also subject to certain general rules. It should
be exercised for propagating virtue and righteousness and should never be used for
spreading evil and mischief. We have not only been given this right for spreading
righteousness and virtue, but have been ordered to exercise this right. Addressing
the Muslims, the Holy Quran declares:

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You are the best community which has been brought forth for mankind. You
command what is proper and forbid what is improper and you believe in God
... (3:110)
This means that it is the obligation and duty of the entire Muslim community that it
should invite and enjoin people to righteousness and virtue and forbid them from
doing evil. If the entire Muslim community is not able to perform this duty then
"let there be a community among you who will invite (people) to (do) good,
command what is proper and forbid what is improper, those will be prosperous"
(3:104). This clearly indicates that if the entire Muslim nation collectively begins
to neglect its obligation to invite people to goodness and forbid them from doing
evil then it is absolutely essential that it should contain at least a group of people
which may perform this obligation. As has been said before this is not only a right
but an obligation and on the fulfillment of which depends success and prosperity
here as well as in the Hereafter. It is an irony with the religion of God that in a
Muslim country the assembly and association that is formed for the purposes of
spreading evil and mischief should have the right to rule over the country and the
association and party which has been formed for propagating righteous- ness and
virtue should live in perpetual fear of harassment and of being declared illegal.
Conditions here are just the reverse of what has been prescribed by God. The claim
is that we are Muslims and this is an Islamic State5 but the work that is being done
is directed to spreading evil, to corrupt and morally degrade and debase the people
while there is an active and effective check on the work being carried out for
reforming society and inviting people to righteousness. Moreover the life of those
who are engaged in spreading righteousness and checking the spread of evil and
wickedness is made intolerable and hard to bear.

Freedom of Conscience and Conviction

Islam also gives the right to freedom of conscience and conviction to its citizens in
an Islamic State. The Holy Quran has laid down the injunction: "There should be
no coercion in the matter of faith" (2:256). Though there is no truth and virtue
greater than the religion of Truth-Islam, and Muslims are enjoined to invite people
to embrace Islam and advance arguments in favour of it, they are not asked to
enforce this faith on them. No force will be applied in order to compel them to
accept Islam. Whoever accepts it he does so by his own choice. Muslims will
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welcome such a convert to Islam with open arms and admit him to their
community with equal rights and privileges. But if somebody does not accept
Islam, Muslims will have to recognize and respect his decision, and no moral,
social or political pressure will be put on him to change his mind.

Protection of Religious Sentiments

Along with the freedom of conviction and freedom of conscience, Islam has given
the right to the individual that his religious sentiments will be given due respect
and nothing will be said or done which may encroach upon this right. It has been
ordained by God in the Holy Quran: "Do not abuse those they appeal to instead of
God" (6:108). These instructions are not only limited to idols and deities, but they
also apply to the leaders or national heroes of the people. If a group of people holds
a conviction which according to you is wrong, and holds certain persons in high
esteem which according to you is not deserved by them, then it will not be justified
in Islam that you use abusive language for them and thus injure their feelings.
Islam does not prohibit people from holding debate and discussion on religious
matters, but it wants that these discussions should be conducted in decency. "Do
not argue with the people of the Book unless it is in the politest manner" (29:46)-
says the Quran. This order is not merely limited to the people of the Scriptures, but
applies with equal force to those following other faiths.

Protection from Arbitrary Imprisonment

Islam also recognizes the right of the individual that he will not be arrested or
imprisoned for the offences of others. The Holy Quran has laid down this principle
clearly: "No bearer of burdens shall be made to bear the burden of another"
(6:164). Islam believes in personal responsibility. We ourselves are responsible for
our acts, and the consequence of our actions cannot be transferred to someone else.
In other words this means that every man is responsible for his actions. If another
man has not shared this action then he cannot be held responsible for it, nor can he
be arrested. It is a matter of great regret and shame that we are seeing this just and
equitable principle which has not been framed by any human being, but by the
Creator and Nourish- er of the entire universe, being flouted and violated before
our eyes. So much so that a man is guilty of a crime or he is a suspect, but his wife
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being arrested for his crime. Things have gone so far that innocent people are being
punished for the crimes of others. To give a recent example, in Karachi (Pakistan),
a man was suspected of being involved in a bomb throwing incident. In the course
of police investigation he was subjected to horrible torture in order to extract a
confession from him. When he insisted on his innocence, then the police arrested
his mother, his wife, daughter and sister and brought them to the police station.
They were all stripped naked in his presence and he was stripped naked of all his
clothes before their eyes so that a confession of the crime could be extracted from
him. It appears as if for the sake of investigation of crime it has become proper and
legal in our country to strip the innocent women folk of the household in order to
bring pressure on the suspect. This is indeed very outrageous and shameful. This is
the height of meanness and depravity. This is not a mere hearsay which I am
repeating here, but I have full information about this case and can prove my
allegations in any court of law. I would here like to ask what right such tyrants who
perpetrate these crimes against mankind have to tell us that they are Muslims or
that they are conduct- ing the affairs of the state according to the teachings of Islam
and their state is an Islamic State. They are breaching and flouting a clear law of
the Holy Quran. They are stripping men and women naked which is strictly
forbidden in Islam. They disgrace and humiliate humanity and then they claim that
they are Muslims.

The Right to Basic Necessities of Life

Islam has recognized the right of the needy people that help and assistance will be
provided for them. "And in their wealth there is acknowledged right for the needy
and the destitute" (51:19). In this verse, the Quran has not only conferred a right on
every man who asks for assistance in the wealth of the Muslims, but has also laid
down that if a Muslim comes to know that a certain man is without the basic
necessities of life, then irrespective of the fact whether he asks for assistance or
not, it is his duty to reach him and give all the help that he can extend. For this
purpose Islam has not depended only on the help and charity that is given
voluntarily, but has made compulsory charity, zakat as the third pillar of Islam,
next only to profession of faith and worship of God through holding regular
prayers. The Prophet has clearly instructed in this respect that: "It will be taken
from their rich and given to those in the community in need" (al-Bukhari and
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Muslim). In addition to this, it has also been declared that the Islamic State should
support those who have nobody to support them. The Prophet has said: "The Head
of state is the guardian of him, who has nobody to support him" (Abu Dawud, al-
Tirmidhi). The word wali which has been used by the Prophet is a very
comprehensive word and has a wide range of meanings. If there is an orphan or an
aged man, if there is a crippled or unemployed person, if one is invalid or poor and
has no one else to support him or help him, then it is the duty and the responsibility
of the state to support and assist him. If a dead man has no guardian or heir, then it
is the duty of the state to arrange for his proper burial. In short the state has been
entrusted with the duty and responsibility of looking after all those who need help
and assistance. A truly Islamic State is therefore a truly welfare state which will be
the guardian and protector of all those in need.

Equality before Law

Islam gives its citizens the right to absolute and complete equality in the eyes of
the law. As far as the Muslims are concerned, there are clear instructions in the
Holy Quran and hadith that in their rights and obligations they are all equal: "The
believers are brothers (to each other)" (49:10). "If they (disbelievers) repent and
keep up prayer and pay the Ipoor-due, they are your brothers in faith" (9:11). The
Prophet has said that: "The life and blood of Muslims are equally precious" (Abu
Dawud; Ibn Majjah). In another hadith he has said: "The protection given by all
Muslims is equal. Even an ordinary man of them can grant protection to any man"
(al-Bukhari; Muslim; Abu Dawud). In another more detailed Tradition of the
Prophet, it has been said that those who accept the Oneness of God, believe in the
Prophet- hood of His Messenger, give up primitive prejudices and join the Muslim
community and brotherhood, "then they have the same rights and obligations as
other Muslims have" (al-Bukhari; al-Nisa'i). Thus there is absolute equality
between the new converts to Islam and the old followers of the Faith.

This religious brotherhood and the uniformity of their rights and obligations is the
foundation of equality in Islamic society, in which the rights and obligations of any
person are neither greater nor lesser in any way than the rights and obligations of
other people. As far as the non- Muslim citizens of the Islamic State are concerned,
the rule of Islamic Shari'ah (law) about them has been very well expressed by the
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Caliph 'Ali in these words: "They have accepted our protection only because their
lives may be like our lives and their properties like our properties" (Abu Dawud).
In other words, their (of the dhimmis) lives and properties are as sacred as the lives
and properties of the Muslims. Discrimination of people into different classes was
one of the greatest crimes that, according to the Quran, Pharaoh used to indulge in:
"He had divided his people into different classes," ... "And he suppressed one
group of them (at the cost of others)" (28:4).

Rulers Not Above the Law

Islam clearly insists and demands that all officials of the Islamic State, whether he
be the head or an ordinary employee, are equal in the eyes of the law. None of
them is above the law or can claim immunity. Even an ordinary citizen in Islam
has the right to put forward a claim or file a legal complaint against the highest
executive of the country. The Caliph 'Umar said, "I have myself seen the Prophet,
may God's blessings be on him, taking revenge against himself (penalizing himself
for some shortcoming or failing)." On the occasion of the Battle of Badr, when the
Prophet was straightening the rows of the Muslim army he hit the belly of a soldier
in an attempt to push him back in line. The soldier complained "O Prophet, you
have hurt me with your stick." The Prophet immediately bared his belly and said:
"I am very sorry, you can revenge by doing the same to me." The soldier came
forward and kissed the abdomen of the Prophet and said that this was all that he
wanted.

A woman belonging to a high and noble family was arrested in connection with a
theft. The case was brought to the Prophet, and it was recommended that she may
be spared the punishment of theft. The Prophet replied: "The nations that lived
before you were destroyed by God because they punished the common men for
their offences and let their dignitaries go unpunished for their crimes; I swear by
Him (God) who holds my life in His hand that even if Fatimah, the daughter of
Muhammad, has committed this crime then I would have amputated her hand."
During the caliphate of 'Umar, Muhammad the son of 'Amr ibn al-'As the Governor
of Egypt, whipped an Egyptian. The Egyptian went to Medina and lodged his
complaint with the Righteous Caliph, who immediately summoned the Governor
and his son to Medina. When they appeared before him in Medina, the Caliph
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handed a whip to the Egyptian complainant and asked him to whip the son of the
Governor in his presence. After taking his revenge when the Egyptian was about to
hand over the whip to 'Umar, he said to the Egyptian: "Give one stroke of the whip
to the Honourable Governor as well. His son would certainly have not beaten you
were it not for the false pride that he had in his father's high office." The plaintiff
submitted: "The person who had beaten me, I have already avenged myself on
him." 'Umar said: "By God, if you had beaten him (the Governor) I would not have
checked you from doing so. You have spared him of your own free will." Then he
('Umar) angrily turned to 'Amr ibn al-'As and said: "O 'Amr, when did you start to
enslave the people, though they were born free of their mothers?" When the
Islamic State was flourishing in its pristine glory and splendour, the common
people could equally lodge complaints against the caliph of the time in the court
and the caliph had to appear before the qadi to answer the charges. And if the
caliph had any complaint against any citizen, he could not use his administrative
powers and authority to set the matter right, but had to refer the case to the court of
law for proper adjudication.

The Right to Avoid Sin

Islam also confers this right on every citizen that he will not be ordered to commit
a sin, a crime or an offence; and if any govern- ment, or the administrator, or the
head of department orders an individual to do a wrong, then he has the right to
refuse to comply with the order. His refusal to carry out such crime or unjust
instructions would not be regarded as an offence in the eyes of the Islamic law. On
the contrary giving orders to one's subordinates to commit a sin or do a wrong is
itself an offence and such a serious offence that the officer who gives this sinful
order whatever his rank and position may be, is liable to be summarily dismissed.
These clear instructions of the Prophet are summarized in the following hadith: "It
is not permissible to dis- obey God in obedience to the orders of any human being"
(Musnad of Ibn Hanbal). In other words, no one has the right to order his
subordinates to do anything against the laws of God. If such an order is given, the
subordinate has the right to ignore it or openly refuse to carry out such instructions.
According to this rule no offender will be able to prove his innocence or escape
punishment by saying that this offence was committed on the orders of the
government or superior officers. If such a situation arises then the person who
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commits the offence and the person who orders that such an offence be committed,
will both be liable to face criminal proceedings against them. And if an officer
takes any improper and unjust measures against a subordinate who refuses to carry
out illegal orders, then the subordinate has the right to go to the court of law for the
protection of his rights, and he can demand that the officer be punished for his
wrong or unjust orders.

The Right to Participate in the Affairs of State

According to Islam, governments in this world are actually representatives

(khulafa') of the Creator of the universe, and this responsibility is not entrusted to
any individual or family or a particular class or group of people but to the entire
Muslim nation. The Holy Quran says: "God has promised to appoint those of you
who believe and do good deeds as (His) representatives on earth" (24:55). This
clearly indicates that khilafah is a collective gift of God in which the right of every
individual Muslim is neither more nor less than the right of any other person. The
correct method recommended by the Holy Quran for running the affairs of the state
is as follows: "And their business is (conducted) through consultation among
themselves" (42:38). According to this principle it is the right of every Muslim that
either he should have a direct say in the affairs of the state or a representative
chosen by him and other Muslims should participate in the consultation of the
state. Islam, under no circumstance, permits or tolerates that an individual or a
group or party of individuals may deprive the common Muslims of their rights, and
usurp powers of the state. Similarly, Islam does not regard it right and proper that
an individual may put up a false show of setting up a legislative assembly and by
means of underhand tactics such as fraud, persecution, bribery, etc., gets himself
and men of his choice elected in the assembly. This is not only a treachery against
the people whose rights are usurped by illegal and unfair means, but against the
Creator Who has entrusted the Muslims to rule on this earth on His behalf, and has
prescribed the procedure of an assembly for exercising these powers. The shura or
the legislative assembly has no other meaning except that:

(1) The executive head of the government and the members of the assembly should
be elected by free and independent choice of the people.

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(2) The people and their representatives should have the right to criticize and freely
express their opinions.

(3) The real conditions of the country should be brought before the people without
suppressing any fact so that they may be able to form their opinion about whether
the government is working properly or not.

(4) There should be adequate guarantee that only those people who have the
support of the masses should rule over the country and those who fail to win this
support should be removed from their position of authority.

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 Concept of sovereignty in Islam

‫وهلل ملك السماوات واألرض ۗ وهللا على كل شيء قدير‬

(1) Introduction
• ALLAH is the creator of everything exist on the earth and heaven, there is
not GOD but ALLAH. Concept of Sovereignty in Islam different from western
concept of sovereignty. Islamic concept of sovereignty has been derived from
Quran and Sunnah. Sovereignty only belongs to ALLAH and ALLAH alone. All
the things are under the authority of ALLAH and ALLAH has sent human being
on earth as his kahlifa who exercise the powers within the limits prescribed by
ALLAH

‫علی ُک ِهل ش َۡیءٍ قَد ِۡير‬ َ ‫ا َِّن‬

َ ‫هللا‬
(2) Literal meaning
• The word sovereignty has been derived from Latin Word “Superanus” which
means SUPERMACY
OF ONE OVER THE OTHERS

(3) Definition of sovereignty

• All things are under ALLAH’s control and nothing happens without his
permission and directions
as ALLAH is sovereign over the world

(4) Islamic concept of Sovereignty

• Islam teaches us that all Supreme powers belongs to ALLAH and ALLAH
alone and there is no one who can compete ALLAH against his sovereignty

Quran Says:

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“TO ALLAH BELONGS THE SOVEREIGNTY OF THE HEAVENS AND
EARTH”
“HE WHO GIVES LIFE AND DEATH AND HE HAS POWER OVER ALL THE
THING”

(5) Attributes of ALLAH’S Sovereignty

Sovereignty of ALLAH has the following attributes

1. Absolute as Quran Says:

• ALLAH is the creator of all things and he is one the Almighty.(AL Quran)

2. Indivisible (Naa Qabal Taqseem)

• Sovereignty of ALLAH is not indivisible because there is not God but
ALLAH

3. Inalienable (Naa Qabal Intiqaal)

• Sovereignty of ALLAH is inalienable because it Can’t give away to anyone
and can’t be shared
with anyone

4. Unlimited
• As ALLAH is sovereign and he has unlimited powers over the others in the
world and whole command is with ALLAH in all things

5. Universal
• ALLAH’S Sovereignty is Universal because It covers the every particle of
the heavens and on
the earth

6. Comprehensive
• Sovereignty of ALLAH is including everything in the world and no one can
challenge to his powers in the whole world

7. Eternal (Abdi)
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• Sovereignty of ALLAH is eternal because ALLAH sovereignty is from
beginning of time to till end of time. It is permanent and everlasting sovereignty

8. Original

• ALLAH’s Sovereignty is not derived from superior to him. As Quran says

that ALLAH is creator
of all things and he is guardian over all things(Al Quran)

(6) Attributive name of ALLAH’S Sovereignty

ALLAH’S Sovereignty is shows from his attributive names. Some of are as under:
AL Khaliq The Creator
AL Ahad Only One
Al Wahab The Grantor
AL Hakam The Judge

(7) Vicegerency (Khilafat) of man

• ALLAH is lord of Heavens and earth and ALLAH delegates powers to men
for administration of justice and they exercise their authority with the limitations
by ALLAH
• Man is a khalifa of ALLAH ALMIGHTY on the earth who is responsible for
administration of the earth according to the will of ALLAH

Quran Says:
“AND WHEN THE LORD SAID TO ANGELS, LO! (SEE) I AM ABOUT TO
PLACE A KHALIFA IN THE EARTH”

(8) Concept of Sovereignty and Amir in Pakistan

Concept of sovereignty of recognized in 1973 constitution of Pakistan
• Sovereignty over the entire universe belongs to ALLAH alone But
Authorized person will exercise their powers for administration of justice within
the limits prescribed by ALLAH Almighty

(9) Concept of Sovereignty in West

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• Sovereignty is modern concept of the west. And it has been born by modern
state. At the first time tt was presented by Jean Bodin in 1576 who declares
sovereignty is not power to make law it is above to law

Blackstone Says
“Sovereignty is the supreme will of the state”

Analysis,
o Western concept is imperfect because there are certain limitations on it and
western refers sovereignty to state .It means there can be as many sovereigns as
states in the world
o As compare to Islamic concept it is more realistic and logical that
Sovereignty of ALLAH is unlimited and covers the whole universe , heavens and
earth

10) Difference between Islamic Concept of Sovereignty and Western

Concept of Sovereignty

Following are the differences.

1. As to Authority
1) In Islam, sovereignty of entire universe belongs to God
2) In Western concept, sovereignty belongs to people

2. As to kinds of Sovereignty
1) In Islam, there are no kinds of Sovereignty
2) In Western concept, Sovereignty has different kinds

3. As to State
1) In Islam, Sovereignty is not subject to State
2) In Western concept, there must be state for sovereignty

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4. As to Scope
1) Islamic concept of sovereignty has wider scope
2) Western concept of sovereignty has less scope

5. As to Perfection
1) Islamic concept of sovereignty is perfect in all aspects
2) Western concept of sovereignty is imperfect

6. As to Nature
1) Islamic concept is permanent nature
2) Western concept is temporary nature

(11) Conclusion
• Islamic theory is completely different from west theory. Islamic theory
derived from Quran and Sunnah which are basic sources. Islam teaches
sovereignty belongs to ALLAH alone. No human being can be lord of another
human being.

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References

I. LL.B Guides by Khurram Amir Qureshi

II. Law Notes of Innovative Academy Lahore
III. Islamic Jurisprudence Assignment by Fatima Tariq
IV. N series LL.B Guide
V. Nasir Law Site
VI. PLJ Law Site

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