Shari'ah Law 1 Midterm Reviewer PDF

**SHARI'AH LAW 1** **MIDTERM REVIEWER** AHMED TADTAGAN COTSU -- JD1A ***[\ ]*** ***[PHILOSOPHY AND GENERAL THEORY OF ISLAMIC LAW]*** - **[Definition of Shari'ah]** - The Muslim Law - A divine system of law promulgated through his Prophet - 'The road to a watering place'...

**SHARI'AH LAW 1** **MIDTERM REVIEWER** AHMED TADTAGAN COTSU -- JD1A ***[\ ]*** ***[PHILOSOPHY AND GENERAL THEORY OF ISLAMIC LAW]*** - **[Definition of Shari'ah]** - The Muslim Law - A divine system of law promulgated through his Prophet - 'The road to a watering place' - 'A clear path to be followed' - set of rules from God guiding human behavior in all aspects of life (legal, moral, & social) - Technical term: The canon law of Islam - Shari - anything that is legal - Mashru - regulated - Fisq - contravention of Shari'ah - **[Basis of the Shari'ah in the Qur'an]** - *"For each We have appointed a divine law and a traced-out way." - Qur'an 5:48 (Surah Al-maydah)* - *"And now have We set thee (O Muhammad) on a clear road of (Our) commandment; so follow it, and follow not the whims of those who know not." - Qur'an 45:18 (Surah Al-jathiyah)* - *Qur'an 13:30 (Surah Ar-ra'd)* - **[Principal Characteristics of Shari'ah]** - **Comprehensive Nature of Shari'ah** - Shari\'ah encompasses all aspects of human life. - Shari\'ah addresses both religious practices and worldly matters. - It sets guidelines for individual development as well as the progress of society, nations, and humanity as a whole. - **Idealistic and Realistic Aspects** - Shari'ah merges idealism and realism, balancing permanence with adaptability. - Its idealism stems from existing before the Islamic state and shaping society, rather than being shaped by it. - Realistic because, while its core principles remain unchanged, it adapts to societal changes through *Ijtihad* (independent reasoning). - **Natural Alignment** - Islam for example offers solutions like plural marriage and divorce, acknowledging natural human tendencies. - The more people adhere to Shari'ah, the closer they are to their natural state. - **[Comparison between Shari'ah and Positive Law]** - ***Shari\'ah Law***: Derived from the Qur'an and Sunnah, guiding all aspects of life, including religious, moral, social, and legal matters. - ***Positive Law**:* Man-made laws created by governments or societies, often focusing only on legal and social order. - ***Definition***: - ***Shari\'ah***: Islamic law; means "the clear, well-trodden path to water." It covers all aspects of a Muslim\'s life. It is moralistic and aims at both spiritual and societal harmony. - ***Positive Law***: man-made and based on the utility principle, seeking to achieve the greatest happiness for the greatest number. It is more secular, focused on societal governance rather than spiritual wellbeing. - ***Contents***: - ***Shari\'ah***: Covers not only legal rules but also ethical guidelines, including worship, family matters, and business. - ***Positive Law***: Primarily concerned with legal rules governing behavior in society, such as criminal law, civil law, etc. - **[Values or Objectives of Shari'ah and Positive Law]** - - - - - - - ***[DISTINCTIONS BETWEEN FIQH AND USUL AL FIQH]*** - **[Definition of Fiqh]** - Literally, "understanding" or "knowledge" - Knowledge of Islamic law, also means, the science of jurisprudence - **Jurists definition**: *\"the science of the derived legal rules as acquired from their particular sources.\"* - **Shafi\'i jurists**: the knowledge of the laws of the Shari\'a relating to man\'s act and derived from specific sources. - **Maliki jurists**: the science of the commands of the Shari\'a in particular matter deduced by the application of the process of reasoning. - **Abu Hanifa**: the knowledge of what is against a man\'s self, which he called *Fiqh ul-Akbar*, or the great science of fiqh, which in this concept would comprehend within it pure questions of faith which strictly speaking, are the subject of the science of divinity and abstract questions of ethics. - **[Scope or Coverage of Fiqh]** - It embraces within its science all the sources of Islamic law. 5\. Ijtihad (independent reasoning) 6\. Istihsan (juristic inference) 7\. Istislah (juristic preference) 8\. Istishab (presumption of continuity) 9\. Istidlal (public welfare or interest) 10\. Extraneous sources: legislation, legal maxims, ada or custom and usages - **[Division of Science of Islamic Jurisprudence]** Islamic jurisprudence is divided into two main parts. - **1^st^**: focuses on religious observances related to the hereafter, such as belief, prayer, almsgiving, fasting, and pilgrimage. - **2^nd^**: deals with worldly matters and is divided into three sections: - ***Criminal Law*** -- Covers crimes like murder, theft, fornication, drinking, and libel, along with their punishments - ***Family Law*** -- Includes marriage, divorce, alimony, child custody, inheritance, and other personal status issues. - ***Transactions*** -- Involves property rights and contracts, covering sales, loans, partnerships, damages, and related matters. - **[Shari'ah vs. Fiqh]** - - - - **[Fiqh vs. Ilm]** - **Fiqh** refers to the science of Islamic law, governing human behavior in various spheres, primarily related to legal matters. It involves the application of understanding to deduce legal rulings. - **Ilm** (knowledge) initially held a similar meaning to fiqh but eventually became more focused on the knowledge of traditions (Hadith) and reports. While fiqh is the exercise of legal reasoning, ilm is more concerned with the preservation and transmission of knowledge, particularly regarding religious texts​ - **[Usul Al-Fiqh vs. Furu Al-Fiqh]** - **Usul Al-Fiqh** is the study of the principles or roots of Islamic law, focusing on the sources (Qur\'an, Sunnah, Ijma, and Qiyas) and the methodology of their application. - **Furu Al-Fiqh** It is the doctrine of the branches, e.g., applied Fiqh. Deals with the practical application of these rulings, elaborating on specific laws and their execution in real-life scenarios​. - **[Definition of Usul Al-Fiqh]** - literally means *intelligence, knowledge, discernment.* - ***Asl** = source, **Usul** = root, origin* - the science of the principles and methodology used to derive Islamic legal rulings from their sources. - **[Fiqh vs. Usul Al-Fiqh]** - **Fiqh** is the science of detailed legal rulings on practical matters, covering personal, civil, and criminal law. - **Usul Al-Fiqh** is the methodology behind the **fiqh**, the framework that determines how legal rules are derived from foundational sources​ - **[Qawa'id al-Fighhiyyah (Maxims of Fiqh)]** - broad legal principles derived from fiqh that guide the application of specific rulings across various areas of law. - **[Objectives or Aims of Usul Al-Fiqh]** - primary aim of Usul al-Fiqh is to ***regulate ijtihad*** and guide jurists in deriving laws from the Quran, Hadith, ijma, and qiyas - helps jurists understand the sources of Shari\'ah, apply methods like qiyas and istihsan, and evaluate the strength of ijtihad rulings - provides guidelines for determining appropriate Islamic rulings on individual actions and serves as a reference for judges, jurists, and legal consultations. ***[HISTORY AND DEVELOPMENT OF ISLAMIC LAW AND JURISPRUDENCE]*** - **[Islamic Legal History and Legal Culture]** - **Foundational Texts and Sources**: - Qur'an - Hadith - **Early Development:** - Prophetic Era: establishment of legal norms during the lifetime of the Prophet Muhammad. - Companion Era: role of the Prophet's companions in interpreting and implementing Islamic law after his death. - **Formation of Legal Schools:** - Madhabs: The emergence of various schools of thought (Hanafi, Maliki, Shafi\'i, Hanbali) that developed distinct methodologies for interpreting Shari\'ah based on different principles and contexts. - **[Stages of Development of the Shari'ah Legal System]** - - - - - - - - - - - - - - - **[Some Philosophical and Theoretical Sects in Islamic History]** - - - - - - - - - - - - - - - - - - - ***[SUNNI MADHAHIB (ISLAMIC SCHOOLS OF LAW)]*** - 1\. **Hanafi School** (الحنفية) - Founder: Imam Abu Hanifa (d. 767 CE) - Known for its use of reason and analogy (Qiyas) to derive legal rulings. - It is considered the most flexible and the most open to different interpretations. - It gives importance to local customs (Urf) and opinions (Ra\'y). - 2\. **Maliki School** (المالكية) - Founder: Imam Malik ibn Anas (d. 795 CE) - Places significant emphasis on the practices of the people of Madina as a source of law. - It relies heavily on Hadith and considers the consensus of the scholars of Madinah as authoritative. - It uses the principle of Istislah (public interest) in legal reasoning. - 3\. **Shafi\'i School** (الشافعية) - Founder: Imam Al-Shafi\'i (d. 820 CE) - Systematized the principles of Usul al-Fiqh, laying the foundation for the science of Islamic jurisprudence. - It gives equal importance to the Quran, Sunnah, Ijma, and Qiyas. - The Shafi\'i school is known for its strict adherence to textual evidence. - 4\. **Hanbali School** (الحنبلية) - Founder: Imam Ahmad ibn Hanbal (d. 855 CE) - Known for its strict reliance on the Quran and Hadith and minimal use of analogy (Qiyas) or personal opinion. - It rejects the use of Ijma\' after the time of the Companions and opposes rationalist approaches. - It is considered the most conservative of the four Sunni schools. ***[SOURCES OF ISLAMIC JURISPRUDENCE]*** - **[Meaning of Qur'an]** - Derived from \"kurra\" (read or recite). The Qur'an is regarded as the infallible word of God (kalāmullāh), containing guidance and divine law. It is both a moral and legal code, addressing human conduct, rights, and obligations.​ - **[Revelations of the Qur'anic Verses]** - Revealed intermittently over 22 years. - Meccan (earlier, shorter verses) - Medinan (longer, focused on legal rulings). - - **[Ashab Al-Nuzul (Causes of Revelation)]** - Verses were revealed due to specific events or questions. Knowing the causes is essential for interpreting their immediate meaning and application. These revelations were often narrated by the Prophet\'s companions. - **[The Compilation of the Qur'anic Verses]** - The Qur'an was not collected during the Prophet's lifetime but memorized and recorded on various materials. - After his death, Caliph Abu Bakr tasked Zayd ibn Thabit with compiling it into a single collection. - Later, Caliph Uthman ensured its unified version was distributed - **[Division of the Qur'an]** - 114 chapters (suras) - 6,236 verses (ayats). - divided into suras and ayats during the Prophet\'s time - arranged in an order distinct from the sequence of revelation​ - **[Ahkam in the Qur'an]** - the legal rulings derived from the Qur\'an. - about 500 verses related to legal matters, - classified into different categories like family law, contracts, inheritance, criminal law, and human rights. - These form the basis of Islamic legal and ethical guidelines​ - **[Classification of the Verses in the Qur'an]** - **Verses about belief (Ilm-ul-Kalam)**: Related to matters of faith. - **Verses concerning human conduct**: Rules on the behavior of individuals, including obligations and prohibitions (Awamir wa Nawahi). - **Verses on moral principles**: Focused on ethical and moral teachings​ - **[Classification of the Nature of the Qur'anic Verses ]** - **Muhkamat**: Clear, definitive verses that do not require further interpretation, primarily relating to legal rulings. - **Mutashabihat**: Verses that are open to multiple interpretations, often concerning metaphysical matters. - **General (Al-Am) and Special (Al-Khas)**: Some verses have broad application, while others are specific to particular situations or individuals. - **Free (Mutlaq) and Bound (Muqayyad)**: Free verses do not have any conditions attached, while bound verses are tied to specific circumstances​ - **[Qur'an, Its Subject, Central Theme and Aim]** - **Subject**: The Qur\'an addresses all aspects of human life, aiming at success in this world and the afterlife. - **Central Theme**: It focuses on the exposition of reality and guiding humanity toward the right path, aligning with the divine laws that have been revealed to all messengers. - **Aim**: To provide a comprehensive guide to righteous living, fostering a just and peaceful society​ - **[Qur'an as a Complete Code]** - The Qur\'an is seen as a complete guide for human life, covering spiritual, moral, social, and legal aspects. While it lays down fundamental principles, the detailed implementation is guided by the Sunnah - **[Ta'weel (Interpretation) of the Qur'an]** - Ta'weel refers to probing the inner meaning of the Qur\'anic text. The goal is to understand the wisdom behind the text, especially when the meaning is not self-evident. It is used to derive rulings based on context, traditions of the Prophet, and logical inferences - **[Rules on Interpretation of the Qur'an]** - **Decisive (Muhkam) vs. Allegorical (Mutashabih) Verses**: Decisive verses provide clear rules, while allegorical verses allow for multiple interpretations. - **Textual Consistency**: Interpretation should not create contradictions within the Qur\'an. Decisive verses should be the basis, and allegorical verses should be interpreted in alignment with them. - **[Rules on Interpretation of the Definitive (Qat'i) and the Speculative (Zanni) Text of the Qur'an]** - **Definitive Texts (Qat'i):** These are clear and allow only one interpretation, like inheritance rules (e.g., the husband's share of his wife's estate). - **Speculative Texts (Zanni):** These may have multiple interpretations, often requiring Ijtihad (analytical reasoning), supported by the Qur\'an, Sunnah, or Ijma (consensus). - **[Rules of Interpretation of the Literal (Haqiqi) and the Metaphorical (Mazazi) words of the Qur'an]** - The literal meaning is the default, but sometimes metaphorical meanings are applied when the literal interpretation leads to inconsistency with established doctrines. For example, the term Talaq (divorce) literally means \"release\" but is used metaphorically to signify the legal process of divorce. - **[Rules of Interpretation of the Explicit (Mantuq) words, and the Implicit (Mafhum) words of the Qur'an]** - **Mantuq**: Refers to meanings that are directly stated. - **Mafhum**: Refers to meanings derived through logical inference. - The Hanafi and Shafi'i schools differ on how much weight should be given to implicit meanings like Mafhum al-Mukhalafah (divergent meaning) and Mafhum al-Muwafaqah (harmonious meaning)​ - \(1) The Explicit or Immediate Meaning (Ibarah Al- Nass) of the text; - \(2) The Alluded Meaning (Isharah Al-Nass); - \(3) The Inferred Meaning (Dalalah Al-Nass); - \(4) The Required Meaning (Iqtida Al-Nass). - **[Divergent Meaning (Mafhum al-Mukhalafah) and Harmonious Meaning (Mafhum al-Muwafaqah)]** - ***Mafhum al-Mukhalafah:*** refers to a meaning that diverges from the explicit meaning of the text. For example, the prohibition in the Qur'an about shedding blood implies the prohibition extends to blood not explicitly shed as well​. - ***Mafhum al-Muwafaqah:*** refers to meanings in harmony with the explicit meaning, such as prohibitions or permissions that are logically extended from the original text​. - **[Meaning and types of Bayan (Elaboration)]** - - - - - **[Tafsir (Exegesis)]** - Tafsir: The science of explaining and interpreting the Qur\'an.\ **[2 major types:]** - **Tafsir bil-Riwaya (Transmission)**: Based on reports from the Prophet and companions. - **Tafsir bil-Ray (Opinion)**: Based on logical deduction and the scholar\'s personal understanding, though it must align with established principles**[\ ]** - **[Isra 'iliyat]** - Refers to the interpretations or explanations derived from Jewish or non-Islamic sources, which must be treated cautiously in Islamic exegesis due to the risk of inaccuracies​. - **[Translation of the Qur'an (Tarjama) Hadith]** - Refers to translating the meaning of the Qur\'an into other languages. There was significant historical debate about whether the Qur\'an could be translated. While the literal translation is deemed impossible, translating the meanings is permissible if it preserves the intent of the text​ - **[Stages of Collection of the Hadith]** - - - - - - - - - - - - - - - - - **[The Two (2) Parts of the Methodology or Science of Transmission (Ilm al-Riwaya)]** - 1\) Determining the chain (***isnad***) of transmission ​ - 2\) Ascertaining the mata (text), d real substance of the reported Hadith - **[Rules Observed in the Selection of Traditions]** - **Narrative Continuity:** Traditions should be transmitted across three periods: the Companions, their followers, and subsequent generations. - **Narrator Qualifications:** Narrators must be: - - Muslim - Of sound mind - Mature - - - - - **Preference for Jurists:** Narrations by jurists are preferred over those by non-jurists. - **Reputation Matters:** Traditions from well-known individuals are prioritized over those from obscure sources. - **Consistency with Quran and Sunnah:** Traditions must align with the Quran, established Sunnah, and practices of the Companions. - **Common Sense:** Narrations contradicting common sense are rejected. - **Rejection of Innovations:** Traditions promoting new theories or innovations are not accepted. - **Conditions for Rejection:** - - - - - - **[Compilation of the Hadith (Al-Masanud and Al-Musannaf)]** - **2 methods of organizing Hadith collections.** - **Al-Masanud** - - **Al-Musannaf**: - - **[Distinctions between Hadith and Sunnah]** - **Hadith** refers to the narrations concerning the sayings, actions, or approvals of the Prophet Muhammad - **Sunnah** encompasses the practices of the Prophet. Although closely related, Hadith is the narrative record of Sunnah, and the Sunnah is derived from Hadith​ - **[Classifications of Hadith]** - **Based on Content:** - **Sunna al-Gauliya:** Sayings of the Prophet. - **Sunna al-Fi\'iliya:** Actions of the Prophet. - **Sunna al-Tagririyya:** Tacit approvals of the Prophet regarding the actions of others. - **Based on Transmission (Isnad):** - **Mutawatir (Continuous):** Reported by many narrators, making falsehood impossible. Accepted universally across generations as authentic. - **Ahad (Isolated):** Reported by fewer narrators and further divided into: - **Mashhur (Well-known):** Less than two channels at each stage. - **Aziz (Strong):** Also reported through fewer than two channels. - **Gharib (Strange):** A single narrator at any stage. - **Acceptance Criteria:** - **Mutawatir:** Accepted without scrutiny of narrators. - **Ahad:** Further divided into: - - - - - - **Conditions for Rejection:** - **Subject Matter:** Any Hadith contradicting the Quran, established Sunnah, consensus of the Muslim community, or common sense is rejected. - **Transmission Defects:** - **Marfu\':** Directly traced to the Prophet. - **Muttasil:** Unbroken chain of narrators. - **Maqtu\':** Does not trace back to the Prophet. - **Mau\'an\'an:** Lacks clear personal contact between narrators. - **Mu\'allag (Suspended):** Missing one or more narrators' names. - **Mungata\':** Missing names from the middle. - **Mursal:** Missing names from the end. - **OTHER CLASSIFICATIONS OF HADITH** - **Hadith-i Mursal:** Quoted by one Sahabi without naming other transmitters. - **Hadith-i Musnad:** Includes the Sahabi\'s name attributing it to Rasulullah; can be muttasil or munqati. - **Hadith-i Musnad-i Muttasil:** Ascribed to Rasulullah with an unbroken chain of transmitters. - **Hadith-i Musnad-i Munqati:** Has one or more missing transmitters after the Sahabi. - **Hadith Mawsool:** A type of muttasil where the Sahabi states, "I have heard Rasulullah say so." - **Hadith-i Mutawatir:** Reported by many Sahabis and accepted as true; disbelief is considered kufr. - **Hadith-i Mashhur:** Well-known in the second century, transmitted by multiple sources; disbelief is also kufr. - **Hadith-i Mawquf:** Reported up to the Sahabi without claiming to quote Rasulullah directly. - **Hadith-i Sahih:** Sound Hadith from reliable, knowledgeable transmitters. - **Khabar-i Ahad:** Muttasil Hadith transmitted by one person. - **Hadith-i Mu\'allag:** Missing one or more first transmitters; includes mursal and munqati. - **Hadith-i Qudsi:** Divine messages conveyed by Rasulullah. - **Hadith-i Qawi:** Followed by reciting a Quranic verse. - **Hadith-i Nasikh:** Said towards the end of the Prophet\'s life, abrogating earlier teachings. - **Hadith-i Mansukh:** Earlier statements that were later changed. - **Hadith-i Am:** General statements meant for all people. - **Hadith-i Khas:** Specific statements directed at an individual. - **Hadith-i Hasan:** Trustworthy transmitters with weaker memory compared to sahih narrators. - **Hadith-i Maqtu:** Transmitted by Tabi\'un with known transmitters up to them. - **Hadith-i Shadh:** Heard from a Hadith scholar but not a primary source; generally accepted with caution. - **Hadith-i Gharib:** Sahih Hadith transmitted by one person or one contradicting a known narrator. - **Hadith-i Da\'if:** Weak Hadith lacking reliability in transmitters. - **Hadith-i Mukham:** Clear and does not need interpretation. - **Hadith-i Mutashabih:** Requires interpretation due to ambiguity. - **Hadith-i Munfasil:** Multiple missing transmitters in the chain. - **Hadith-i Mustafid:** More than three transmitters in the chain. - **Hadith-i Mudarrib:** Transmitted through inconsistent means. - **Hadith-i Merdud:** Lacks meaning or validity in Hadith criteria. - **Hadith-i Muftari:** Fabricated words of false claimants to prophecy. - **Hadith-i Mawdu:** False Hadith not originating from Rasulullah, attributed by liars. - **Athar:** Mawquf Hadith teaching specific practices. - **[Rules on Abrogation (Naskh)]** - **Naskh** is the process by which a Shari\'a ruling is abrogated by a later one to accommodate changing times or circumstances. - Occurs when two rulings are in conflict and cannot be reconciled, or - when a newer ruling explicitly repeals the earlier one - **Types of abrogation:** - **Explicit (Sarih)**: When the abrogating text clearly repeals a ruling and replaces it with another. - **Implicit (Dimri)**: When there is doubt or uncertainty regarding whether the newer ruling completely abrogates the former​ - **Definition of Al-Naskh**: Al-naskh refers to superseding or replacing a Shari\'a rule with another due to changing circumstances, allowing legal progress. It applies when two laws are in conflict and cannot be reconciled, or one expressly repeals the other. - **Purpose**: The goal is to facilitate convenience for the community and ensure that the law adapts to the times while implementing Islamic principles. 1. 2. 3. 4. - - - - - - 1. 2. 3. 1. 2. - - - 1. 2. 3. 4. 5. -