By:
(Group A²KR²)
Abas bin Nordin
Arik Sanusi bin Yeop Johari
Ku Hayati binti Ku Haron
Rihaida binti Rafie
Roziza binti Sidek
Table of Contents:-
Definition
Proof and Justification of Qiyas
Classical Examples
Elements of Qiyas
Types of Qiyas
Arguments against Qiyas
Scope and Subject Matter of Qiyas
Application of Qiyas in Malaysia
Feasibility of Qiyas
Reform Proposals
Conclusion
Definition of Qiyas
Literally;
Qiyas means measuring or ascertaining the length, weight or quality of something.Scales are called miqyas. Example; the cloth was measured by the yardstick.
Qiyas also means comparison – equality or similarity between two things. Example: Zaid compares with Khalid in intelligence and descent.
Technically; Qiyas is an extension of a Shari'ah value from an original case (asl) to a new case, because the latter has the same effective cause (illah) as the former.
The original case is ruled by the Quran or Sunnah and qiyas aims to extend the same ruling to the new case based on the same illah.
The Basis of Qiyas
No clear authorities of qiyas in the Quran.
However, the Scholars quoted several proofs from the Quran and Sunnah as well as the practice of the Companions as an indirect evidence to support the utilization of qiyas:
1. Surah al-Nisa’ 4:59
“… then if you quarrel of anything, refer it to Allah and the Messenger…”
The Scholars have reasoned that a dispute can only be referred to Allah and the Prophet by following the signs/indications found in the Quran and Sunnah.
One way of achieving this is to identify the rationale of the rulings and apply them to disputed matters, in case both issues in question share the same rationale = Qiyas
2.Surah al-Nisa’ 4:105
“We have sent to you the book with the Truth so that you may judge among people by means of what Allah has shown you”.
Based on the above verse, a judgment may be based on the guidance that Allah has clearly given or on that which bears close similarity to it.
Thus, exercising qiyas is considered as following the guidance of the Quran.
The Quran specifies the rationale of its law either explicitly or by reference to its objectives.
The rationale/objectives as guidelines to new cases.
3. Qiyas is a form of personal reasoning (ijtihad) which the Prophet SAW expressly validates in the famous Hadith of Muaz bin Jabal when he was sent to Yemen.
4.A woman came to the Prophet SAW and said that her father had died without performing the hajj. Will it benefit him if she perform the hajj on the father’s behalf? The Prophet told her: “Supposing your father had a debt to pay and you pay it on his behalf, would this benefit him?”
To this her reply was affirmative and the Prophet said, “The debt owed to Allah merits even greater consideration”.
5. The Companions of the Prophet SAW also utilized qiyas in deducing the rulings of Fiqh For example; Abu Bakr drew an analogy between the father and the grandfather in respect to their entitlement in inheritance.
6. When the Companions held a council to determine the punishment of wine drinking, Ali bin Abi Talib suggested that the penalty of false accusation should be applied to the wine drinker, and he reasoned, by way of analogy, “When a person gets drunk, he raves and when he raves, he accuses falsely”.
Classical Examples of Qiyas
1. The Quran forbids selling or buying of goods after the last call for Friday prayers until the end of the prayer as stated in Surah al-Jumuah 62:9.
By analogy, this prohibition is extended to all kinds of transactions and activities such as agricultures, administrations and others.
Cont’d
2. The Prophet SAW said in a Hadith that, “The killer shall not inherit (from the victim)”. By analogy, this ruling is extended to bequests (wasiyyah), which would implicate that the killer cannot benefit from the will of his victim.
3.According to a Hadith, it is forbidden for a man to make an offer of betrothal to a woman who is already engaged to another man unless the latter discontinues the relationship or has totally abandoned his offer. The illah is to avoid conflict and hostility among people. By analogy, the same rule is extended to all other transactions in which the same illah is found to be operative.
The Pillars of Qiyas
The original case (asl), on which a ruling is given in the text and analogy seeks to extend it to a new case.
The new case (far’), on which a ruling is needed.
The effective cause (‘illah), which is an attribute (wasf) of the original case and it is found to be in common between the original and the new case.
The rule (hukm), governing the original case which is to be extended to the new case.
Illustration
Prohibition of wine drinking based on Quranic verse in Surah Al-Maidah:90
Asl – wine drinking
Far’ – taking drug
‘Illah – intoxicating effect
Hukm - prohibition
Application of Qiyas
Conditions of the Asl
In Arabic, asl has two meanings:
(i) Source – such as Qur’an and Sunnah.
(ii) Subject matter of a ruling.
Muslim jurists unanimously agreed that the sources of qiyas are Quran and Sunnah.
Majority of jurists : qiyas may also be founded on a rule that is established by ijma’. E.g. ijma’ validates guardianship over the property of minors, a rule which has been extended by analogy to authorize the guardianship of minors in marriage.
However, there is disagreement as to whether ijma’ constitutes a valid asl for qiyas on the basis that the rule of consensus do not require that there should be a basis (sanad) for ijma’.
Majority : One qiyas may not constitute the asl of another qiyas.
But, Ibn Rushd (Malikis) and some Hanafis opined otherwise.
Conditions of the Hukm
It must be a practical Shari’ah ruling – qiyas does not operate in the area of belief.
The hukm must be operative, which means that it has not been abrogated.
The hukm must be rational in the sense that human intellect is capable of understanding the cause of its enactments.
The hukm must not be limited to exceptional situation.
The law of the text must not represent a departure from the general rule of qiyas in the first place.
Conditions of the Far’
The new case must not be covered by the text or ijma’.
The effective cause of analogy must be applicable to the new case in the same way as to the original case.
The application of qiyas to a new case must not result in altering the law of the text, which is equivalent to overruling the text by means of qiyas.
Conditions of the Effective Cause
Subject of disagreement among the Muslim jurists.
5 most important conditions are:
1. The ‘illah must be zahir (evident) and not khafi (hidden).
2. The ‘illah must be mundabit (a constant attribute) which is applicable to all cases without being affected by differences of persons, times, place and circumstances.
3. lt must be a proper attribute (Al-wasf al-munasib) or bear a proper and reasonable relationship to the ruling. The relationship is munasib when it serves to achieve the objective of the lawgiver.
4. ‘Illah must be transient (muta’addi) that is an objective quality which is transferable to other cases.
5. ‘Illah must not be an attribute which runs counter or seeks to alter the textual authorities or the ruling of the text.
- The story of Imam Yahya of al-Andalus about kaffarah of having conjugal relation during daytime in Ramadan.
Identification of the ‘Illah
The ‘illah of a ruling may be clearly stated or suggested by text or it may be determined by consensus and thus there is no room for disagreement.
Prohibition of wine.
Differences of opinion arise only in cases where the ‘illah is not identified in the source. Then the only way to identify it is through ijtihad.
In doing so, the jurist takes into account the attributes of the original case, and only the attribute which is considered to be proper (munasib) is identified as the ‘illah.
E.g. in the hadith concerning the kaffarah of having conjugal relation in the daytime of Ramadan, it is not precisely known whether the ‘illah is the breaking of fast or sexual intercourse.
This process is called by ulama of usul as al-sidr wa’l-taqsim (elimination of the improper and assignment of the proper ‘illah to the hukm).
It involved three stages:
(i) Takhrij al-manat (extracting the ‘illah)
(ii) Tanqih al-manat (isolating/purifying the ‘illah)
(iii) Tahqiq al-manat (ascertaining the presence of an ‘illah in individual case)
Types Of Qiyas
First type:
By looking at the strength of the similarity of the two ‘illahs in the asl and in the far’:
(i) definitive (qat’i)
(ii) probable (zanni)
Second type:
Based on the manner in which the hukm is established in the new case:
(i)Analogy of the superior (Qiyas al- awla)
(ii) Analogy of equals (Qiyas al-musawi)
(iii) Analogy of the nferior (Qiyas al- adna)
First Type
DEFINITIVE (QAT’I)
-When 2 conditions are met:
(i) Mujtahid is fully convinced about the ‘illah he has found asl.
(ii)That exactly the same ‘illah is found in the far’ meaning there are no distinctive attributes.E.g.: Proscription of saying “fie” to the parents.
PROBABLE (ZANNI)
The same conditions, when reversed, need to be fulfilled in the case of zanni qiyas.
When the mujtahid is not certain about ‘illah in either or both cases, qiyas is said to be probable. .g. assignment of the hukm of riba from food item to watermelon on the basis of “food value” as ‘illah.
Second Type
1.QIYAS AL-AWLA
- Where the ‘illah is more evident in the new case than the original case.
- Example : Surah al-Isra’ 17:23
2. QIYAS AL-MUSAWI
- ‘Illah in this type of qiyas is equally effective in both the new and the original case.
-Example
(i) Surah al-Nisa’ 4:2
(ii) In case of a container which is licked by a dog it must be washed 7 times.
This rule is applicable to a container being licked by a swine.
3. QIYAS AL-ADNA
- When ‘illah is less clearly effective in the new case than the original case.
- Example : Riba prohibits the exchange of wheat and other specified commodities unless they are equal and delivery is immediate. By analogy the rule of riba is applied to apples since both are edible (Shafi’is) and measurable (Hanafis). Though the apples unlike wheat are not a staple food (‘illah)
Additional Type
Hanafis classify analogy into:
(i) Qiyas Jali (Manifest analogy)
- When the underlying cause can be discovered with relative ease and jurist does not have to ponder too much over the attributes of the ‘illah.
(ii) Qiyas Khafi (Concealed analogy - Istihsan)
When the ‘illah is less apparent and the jurist has to expend considerable effort to discover it.
-
Arguments Against Qiyas
Mainly the Zahiri school (Ibn Hazm) and some Mu’tazilah, Ibn Hazm argued:
(i) The rules of Shari’ah are conveyed in the form of command, prohibition and permissibility. Should there be no clear text in respect of any matter, it would fall under permissibility. Thus there is no room for analogy in the determination of the ahkam.
(ii) Al-An’am 6:89
“We have neglected nothing in the Book”.
Al-Nahl 16:89
“We reveal the Book as an explanation for everything”.
Al-Maidah 5:4
“This day, I perfected your religion for you, and completed My favor upon you”.
(iii) Identifying the ‘illah in qiyas is an exercise in speculation, therefore qiyas rests on conjecture which must not be allowed to form the basis of a legal ruling.
Al-Najm 53:28
“Conjecture avails nothing against the truth”
(iv) Qiyas is forbidden by the Qur’an.
Al-Hujurat 49:1
“Do not press forward before God and his Messenger, and fear God…”
- Which means that the believers must avoid legislating on matters on which the lawgiver has chosen to remain silent.
- The Prophet said in a hadith:
“Ask me not about matters which I have not raised. Nations before you were aced with their destruction because of excessive questioning and disputation with their prophets. When I command you to do something, do it to the extend that you can, and avoid what I have forbidden”.
Majority vs Ibn Hazm
Majority validates qiyas in the light of general objectives of the Shari’ah.
They opined that qiyas is not an addition/ a superimposition on the nusus but their logical extension.
Thus the Zahiri argument that qiyas violates the integrity of nusus is devoid of substance.
Scope of Qiyas
Qiyas operates to discover, to reveal or to bring out law already established by the text or by consensus.
The purpose to exercise qiyas is not to originate a rule of law.
The jurists have no dispute the establishment of a rule of law by analogical extension through the recognised procedure.
However, the jurists have disputed over the establishment of the cause or condition of a rule by analogical deduction.
The issue: if the cause or condition of a rule is already established by the text or by consensus, can this cause or condition extendible to another case on the basis of a common ground, to establish a like cause or condition for a similar case.
For example: fornication is a cause of hadd punishment. On the analogy of this cause, can sodomy serve as a cause of hadd punishment too?
According to generality of Hanafi jurists and a group of Shafii - not allowed
Usuliyun, al Badzdawi - valid
Subject Matter of Qiyas
–Intelligibles or Rational Questions (aqliyat)
–Lexical Questions (lughat)
–Causes and conditions (asbab wa shurut)
–Things for which no law originally exists in the Shari'ah (adam asli)
–Basic rituals (usul al-ibadat)
–Prescribed punishments (hudud), expiations (kaffarat) and things whose number or quantity or measure have been stated by Shari'ah
–Concessions or exceptional rules (rukhsah)
–Thing relating to human nature (khilqah)
–The rules of Shari'ah in general
i) Intelligibles and Rational Questions
1) most of the Mutakallimin: valid, on the condition that a rational common link between the original and the parallel case is available.
Eg: knowledge is the cause of knowledgeability of the creatures, for one who has knowledge is called knowledgeable.
Similarly, God has knowledge, therefore His knowledgeability indicates that He is all knowing.
The opponent contend that if the original case is the same as the parallel case, both will be identical. There is no need exercising ijtihad. If they differ, each of them will have its own identity.
2) Al-Ghazali: rational value or rational problems cannot be established by qiyas.
Eg: A man who kills another man under duress cannot be determined by qiyas but that should be determined by intellectual inquiry.
ii) Lexical Questions (al-Qadaya al-lughawiyah)
1) al-Razi, Abu Ishaq - qiyas operates in lexical questions.
2) al-Ghazali, majority of Shafii jurists, Hanafi - does not operate in lexical questions.
The dispute lies about nouns that posited for particular meaning rotating along with the existence and non-existence of their attributes.
Cont’d
Eg: can the noun sariq (thief) be applicable to nabbash (snatcher) for the common quality of taking the goods secretly.
The exponents argued that:-
i) the Arabs gave names to some entities found in their time. With the passage of time, those entities were also extinguished. The people then were agreed on giving the same name to similar entities. This shows that they exercise analogy in giving names to similar entities.
However, Al-Qarafi argued that the Arabs gave names to the things as they thought of them by their reason and not as they observe them with their eyes.
ii)the Arabs making a noun for a definite meaning is a product of their thought.
the opponents reply: the Arabs gave these signs to the active and the passive participation at the time of their original making. When they made active participle or subject (fa’il) and gave it the sign of nominative case (raf’) they did not make it for a specific thing, but for a universal truth.
iii) by the principle of rotation, the juice squeezed of grapes with the quality of intoxicating is called khamr. The intoxication is a cause of its prohibition. Intoxication exists in nabidh (date-wine) too, it will also be called khamr and the laws of khamr will apply to it.
The opponent reply: the cause (‘illah) in this context is used in the sense of sign, and not in the sense of motive, for there is no affinity between the name and the thing or person to which the name has been given.
iv) on the basis of the verse, “so Take a lesson: O you who have eyes”. This verse gives a general permission to exercise qiyas in all sorts of questions, whether legal or lexical.
The opponents argued:
i)the exercise of qiyas in lexical questions is not valid. The Arabs call khamr Khall (vinegar) when it become sour, but do not apply this name to everything which is sour. Al-Qarafi adds that the Arabs specified some words for particular subjects and prohibited to apply that names to other things.
ii)if qiyas were allowed in lexical questions, the figurative use of words, particularly loan words, would be invalid, for similarity maintains a connection between two meanings.
iii) Causes and Conditions of the rules of the Shari'ah
Majority of Shafii jurists – valid.
Abu Zayd Al-Dabussi and Hanafi - not allowed.
The exponent viewed that the Lawgiver has given the rules and also specified their causes. For eg: amputation of the hand is a rule and theft is its cause. The Shafii hold that both of them are casual and analogy extension of causes to a similar quality capable of being a valid cause.
Arguments of the exponents:
i)The causality is also an injunction of the Shari'ah, hence the exercise of qiyas in the causes is valid.
ii)The causality of a rule lies in the wisdom or underlying reason (hikmah) which the cause contains, when the underlying reason is found in some other thing, that may serve as a cause for another rule.
iii)Rules of Shari'ah – 2 kinds, first the rule itself and second the prescription of its cause.
iv) Things for which no law exists originally in the Shari'ah.
The exponents: the questions for which no law originally exists in the Shari'ah are as rational as others.
The opponents contend that the things for which no law originally exists in the Shari'ah, continue their non-existence by themselves.
Al-Ghazali defines nafy asli as the continuity of a thing in the same position as it stood before the advent of the Shari'ah.
The generally accepted view is that qiyas al-dalalah (analogy of indication) applies to such cases and not qiyas al-illah (analogy of cause).
v) Essentials of rituals
Al-Jubbai and al-Karkhi – Qiyas does not apply to the essentials of rituals.
For eg: not permissible to offer prayer by making a sign by a man who is unable to offer it in a sitting or lying position, on the analogy of a man who is allowed to offer prayer in sitting position because of his inability to offer it in standing position.
The exponents contend that in the Shari'ah if the essentials of ritual exist by reason of some public good and that public good is also found in another act, it is necessary that act should also be considered as a divine ordinance and a ritual (ibadah) on the analogy of that kind of public good which has been established by the text.
vi) Prescribed punishments, expiations and stated quantities
Al-Shafii, Ahmad, Ibn al Qassar and most of the scholars - qiyas can be exercised in these cases.
They justify this on the basis of the text, consensus and reason.
Abu Hanifah invalidates the exercise of qiyas in these questions.
They argued that:
i) The hadd punishment and expiations are stated matters whose ground or inner meaning which caused their prescription cannot be understood.
ii) Hudud are punishments and the expiations are quasi-punishments.
iii) The Lawgiver has prescribed the amputation of hand for committing theft, but he has not prescribed it for making correspondence with the infidels in the enemy territory, although the latter is more serious.
The Exponents reply:
i) The problem of certain nature - the rule of law extended from the original to the parallel case is the obligation of hadd punishment and expiation, the cause of their prescription is intelligible.
ii) Suppose there is a likelihood of error in exercise of qiyas, still it is not correct to say that qiyas makes a thing doubtful, for the rule based on analogical deduction has a great probability of truth.
iii)
a) It is true that the lawgiver has prohibited the exercise in certain cases of hadd punishment and expiation, but this does not imply that he had absolutely prohibited the exercise of qiyas.
b) As regards theft and correspondence with the infidels, there is a difference between the two.
vii) Concessions or exceptional laws (rukhsah)
Exponents (al-Syafii, one view from Maliki) - the lawgiver some times acting upon the principle of induction , departs from the general rule based on some evidence by reason of public interest. When such a preferable public interest is found in certain case, one must deviate from the general rule and prefer the greater public interest to the one which is lesser.
Opponents - (Hanafi) concessions are opposed to the general rule based on textual evidence, and if they are extended by analogy, the opposition would multiply.
viii) Things relating to nature and temperament, and things which no action is involved
Qiyas does not operate in all these questions. If a woman menstruates for 10 days and her bleeding ends within this period, it is not permissible to compare this woman with another and say so-and-so should also menstruate for 10 days on the analogy of the former.
Qiyas does not operate to determine the maximum and minimum period of menstruation, childbed and gestation, for it varies from person to person, time to time. Their actual cause are unknown nor are they intelligible.
Al-Shirazi- Qiyas can be exercised in matters relating to nature. Temperament and custom if their cause is a sign or a symptom.
ix) The rules of the Shari'ah in general
Exponent - all the rules of the Shari'ah belong to one genus. When qiyas is exercised to establish some of the rules of Shari'ah, it can be exercised to established the rest too.
Opponent - the rules of Shari'ah by its definition is a genus for all the rules. However, the rules of Shari'ah in general are of different types and distinguished from each other by their distinctive features.
The Application of Qiyas in the Malaysian Legislation and Fatwa
In Malaysia, there is no express provision in the laws that allows the application of qiyas.
Neither the laws prohibit such application.
However, by virtue of Article 3 and item 1 of State List of the Ninth Schedule of the Federal Constitution, we may infer that qiyas is allowed to be applied in Malaysia.
This is because apart from recognizing Islam as the religion of Federation, such constitutional provisions also allow Hukum Syarak to be practiced, regulated and implemented by the Muslims in this country.
Since qiyas is a matter that falls under Hukum Syarak, our humble submission and ijtihad is, constitutionally qiyas can be referred to and can become one source to deduce hukum or ruling in Malaysia.
In fact, by way of inference, the principle of qiyas has already been widely accepted and applicable in enacting or deducing some laws, offences, hukum and fatwa in Malaysia, for example, as follows:
Drugs – Dangerous Drugs Act
Asl – wine drinking
Far’ – taking drug
‘Illah – intoxicating effect and damaging human’s intellectual
Hukm – prohibition/haram
Rape – Section 376 Penal Code
Asl – zina
Far’ – rape
‘Illah – destroy the lineage and dignity
Hukm - prohibition/haram
Liwat – Section 377D Penal Code and Section 25 SCOA
Asl – zina
Far’ – liwat
‘Illah – destroy the lineage and dignity
Hukm - prohibition/haram
Incest – Section 376B Penal Code and Section 20 SCOA
Asl – zina
Far’ – incest
‘Illah – destroy the lineage and dignity
Hukm - prohibition/haram
Prostitution – Section 21 SCOA
Asl – zina
Far’ – prostitution
‘Illah – destroy the lineage and dignity
Hukm - prohibition/haram
Musahaqah – Section 26 SCOA
Asl – zina
Far’ – musahaqah
‘Illah – destroy the lineage and dignity
Hukm - prohibition/haram
Khalwat – Section 27 SCOA
Asl – not come near to zina
Far’ – khalwat
‘Illah – destroy the lineage and dignity
Hukm - prohibition/haram
Murder – Section 302 Penal Code
Asl – punishment for killing without lawful justification
Far’ – punishment of murder
‘Illah – killing or destroy one’s life
Hukm – death sentence/qisas
Criminal misappropriation of property – Section 403 Penal Code
Asl – theft
Far’ – criminal misappropriation of property
‘Illah – take unlawful possession of one’s property
Hukm - prohibition/haram.
Smoking in mosque – Fatwa by Selangor Fatwa Committee
Asl – eating onion in mosque
Far’ – smoking in mosque
‘Illah – causing bad smell to the mouth
Hukm - prohibition/haram
Man’s wearing white gold – Fatwa by Selangor Fatwa Committee
Asl – wearing yellow gold
Far’ – wearing white gold
‘Illah – contain more than 50% of yellow gold
Hukm - prohibition/haram
Beauty contest – Fatwa by Selangor Fatwa Committee
Asl – injunction to cover one’s aurah
Far’ – beauty contest
‘Illah – exposing one’s aurah
Hukm - prohibition/haram
Life insurance – Fatwa by National Fatwa Council
Asl – gambling
Far’ – life insurance
‘Illah – contain the elements of gharar, gambling and riba
Hukm - prohibition/haram
Zakat of salary/income – Fatwa by National Fatwa Council
Asl – zakat of property
Far’ – zakat of salary/income
‘Illah – an increase to one’s property
Hukm – wajib zakat (follow the rate of zakat of property, i.e. 2.5% of the annual salary)
Botox – Fatwa by National Fatwa Council
Asl – swine’s flesh is prohibited
Far’ – botox (Botulinum Toxin)
‘Illah – contain parts/extracts of swine & can cause madarrah
Hukm - prohibition/haram
Brush made from swine’s fur – Fatwa by National Fatwa Council
Asl – swine’s flesh is prohibited
Far’ – brush made from swine’s fur
‘Illah – contain parts of swine (i.e. fur)
Hukm - prohibition/haram
Divorce through SMS – Fatwa by National Fatwa Council
Asl – talaq (clear or kinayah)
Far’ – divorce through SMS
‘Illah – contain the words talaq
Hukm – amount to talaq kinayah if followed with niyyah
Hukm Friday prayer for staffs of Jabatan Perkhidmatan Pos – Fatwa by National Fatwa Council
Asl – Friday prayer compulsory for all males Muslim
Far’ – Friday prayer for staffs of Jabatan Perkhidmatan Pos
‘Illah – Males Muslim
Hukm – wajib because not fall under the definition of uzur syar’ie
Feasibility of Qiyas
The application of qiyas is still relevant in modern days;
i. With the new development in a modern world, one cannot stop new issues from arising.
No more revelation so how to find a hukm?
If two incidents are similar, and one of them is covered by a clear legal rule but not the other.
The application of the principles of qiyas could be one of the best solution in this situation.
ii. New case happen all over the world especially with the rapid growth globalization.
This happen irrespective of geographical boundary, therefore it needs solution.
The express textual obligation in the Quran and Sunnah are limited in numbers while the incidents and problems of life are unlimited and unending.
Hence it would be illogical to assert that all the problems and exigencies of life will be covered by the textual injunctions.
Qiyas therefore is a mode of reasoning to legislate for novel questions, to reveal the divine rule of law, and to harmonize between divine legislation and human interest.
Cont’d
iii. Al-Quran provides a complete ruling and a basic general rule for all events which can accommodate human being and provide solution for all.
It is our duty to derive the hukm or solution for a new case through the application of qiyas.
Reform Proposals
1. The main four pillars of qiyas that had been developed by the classical jurists must always be retained, that are, the asl, far’, ‘illah and hukm.
This is because this matter had been deliberated by eminent jurists during those times and the knowledge they had are not comparable.
2. Legal Mechanism
Our proposal
1: to recognize qiyas as a source of law in the laws, for example in the Constitution and State laws
2: to enact a standard procedure of law how to apply qiyas, example like Standard Procedure. This would be a standard practice to be followed by respective institution
3. Administrative Measure
The Islamic institutions like JAKIM, Mufti and other religious authorities should widely apply qiyas in a new arising case to find a solution.
These institutions should become the forefront and leading agency to apply qiyas.
4. The government should make a policy through cabinet decision that qiyas should be implemented in any new case arises in compliance with Art 3 of Federal Constitution which provides that Islam is the religion of Federation and has special status under the Constitution
5. Development of human capital. There must be continuous effort to produce many experts/mujtahid in qiyas especially in Malaysia. One way of doing it is through education. The subject of qiyas should be exposed to students as early as their secondary level. Therefore a reform should be made by the Ministry of Education to include qiyas in the secondary school syllabus.
Conclusion
Majority of Muslim jurists recognised qiyas as one of the source of Islamic law, next to the Quran, Sunnah and Ijma’.
In applying qiyas, four basic elements must be fulfilled, that are, the asl (original case), far’ (new case), ‘illah (cause effective) and hukm (new ruling). These “classic” elements must always be preserved and uphold and should not be the subject for reform.
The application of qiyas is still relevant and feasible in this modern and globalisation era. This is due to the increased number of new Shari'ah related issues around the world. Thus, in deducing these new hukm, there is still a need to rely on qiyas besides the other three primary sources of Islamic law.
By inference, qiyas has been widely applied in Malaysia, for example by the Fatwa Council/ Committee (in deducing new hukm) and the legislature (in creating offences and punishment). The examples of its application are as what have been discussed earlier.
Legislative reforms should be made to the application of the rule of qiyas, i.e. qiyas should be recognised as source of law in this country. For it to have legal force, reference to qiyas should be reflected in the Federal Constitution and other relevant laws.
The Government should make a policy and encourage the relevant authorities to apply qiyas in determining the hukm of any new case (far’).
In producing more experts in qiyas, the subject should be thought as early as in the secondary school.
Sunday, February 10, 2008
FEASIBILITY OF IJMA
FEASIBILITY OF IJMA
By Noor Hadina Ahmad Zabidi
Different views based on the classical definition that ijma is the unanimous agreement of the mujtahidun
IJMA IS NOT FEASIBLE
1-view of a number of ulama including the Mutazili leader Ibrahim al Nazzam and some shii ulama that :-
-it is possible to ascertain the broad outline of an agreement among the mujtahidun but to say their consensus is definite is not possible
REASON
obtaining their views is beyond the bounds of practicality due to distant places, cities, continents, access to all of them
Difficulties in distinguishing a mujtahid from non mujtahid -no clear criteria concerning the attributes of the mujtahid
no guarantee that mujtahid who give an opinion will not change it before an ijma is reached thus ijma cannot be realised as it is a condition of ijma that all the mujtahidun be simultaneously agreed
2-Zahiris and Imam Ahmad = ijma Refers to the consensus of the Companions alone
3-Imam Malik - confines ijma to the people of Madinah
4-Shiah Imamiyyah = recognised only the agreement of the ahl bayt
5-Another argument to suggest that ijma is neither possible nor necessary
Reason -ijma is founded on ijtihad thus mujtahid must rely on the sources either qati (decisive) or speculativ (zanni)
If there is qatl evidence , the community is bound to know it and there Is no need for Ijma to substantiate the nass to make it known to the people as the qati evidence Is the authority Itself and ijma would become redundant
However if the indication is to be speculative = no ijma as the speculative evidence give rise to ikhtilaf not ijma
IJMA IS FEASIBLE
1- Jumhur Ulama = ijma has occurred In the past and to deny it only easting doubt on something which has occurred
eg:: Ijma'' of the companions on the exclusion of the son's from inheritance when there is a son.
According to them the ijma recorded became standard practice during the first four caliph who were often consulted and announced their collective decision in public
2-Abdul Wahab Khallaf -
Ijma In according with its classical definition is not feasible in modern ttimes. he views that ijma could not be effectively utilised if it is lift to Muslims individuals and communities without the government intervention
He suggested that the government in every Muslim country could for example ascertain the criteria of the mujtahid and to verify the views which will become binding hukum on the shariah upon all Muslim world
As to the question whether the classical definition of ijma has ever been fulfilled at any period following the demise of the Prophet Khallaf answered negatively.
He observed that during the period of the Companions, ijma consisted of the agreement of the learned among them who were present at the time the issue was deliberated and the ruling which followed was the collective decision of the shura.
He give the example that when Caliph Abu Bakar could not find the guidance for Dispute in the Quran and the Sunnah, he would consult the community leaders and if they agreed on an opinion he would act upon it
Khallaf argues that there is no report to Suggest that Caliph Abu Bakar postponed the settlement of the disputes untill all the mujtahidun of the age in different cities reached an agreement and he instead act on the collective decision of those who were present
This type of ijma only occurs during the Period of the companions
Except within those period, no collective ijma is known to have taken place on any juridical matter.
By Noor Hadina Ahmad Zabidi
Different views based on the classical definition that ijma is the unanimous agreement of the mujtahidun
IJMA IS NOT FEASIBLE
1-view of a number of ulama including the Mutazili leader Ibrahim al Nazzam and some shii ulama that :-
-it is possible to ascertain the broad outline of an agreement among the mujtahidun but to say their consensus is definite is not possible
REASON
obtaining their views is beyond the bounds of practicality due to distant places, cities, continents, access to all of them
Difficulties in distinguishing a mujtahid from non mujtahid -no clear criteria concerning the attributes of the mujtahid
no guarantee that mujtahid who give an opinion will not change it before an ijma is reached thus ijma cannot be realised as it is a condition of ijma that all the mujtahidun be simultaneously agreed
2-Zahiris and Imam Ahmad = ijma Refers to the consensus of the Companions alone
3-Imam Malik - confines ijma to the people of Madinah
4-Shiah Imamiyyah = recognised only the agreement of the ahl bayt
5-Another argument to suggest that ijma is neither possible nor necessary
Reason -ijma is founded on ijtihad thus mujtahid must rely on the sources either qati (decisive) or speculativ (zanni)
If there is qatl evidence , the community is bound to know it and there Is no need for Ijma to substantiate the nass to make it known to the people as the qati evidence Is the authority Itself and ijma would become redundant
However if the indication is to be speculative = no ijma as the speculative evidence give rise to ikhtilaf not ijma
IJMA IS FEASIBLE
1- Jumhur Ulama = ijma has occurred In the past and to deny it only easting doubt on something which has occurred
eg:: Ijma'' of the companions on the exclusion of the son's from inheritance when there is a son.
According to them the ijma recorded became standard practice during the first four caliph who were often consulted and announced their collective decision in public
2-Abdul Wahab Khallaf -
Ijma In according with its classical definition is not feasible in modern ttimes. he views that ijma could not be effectively utilised if it is lift to Muslims individuals and communities without the government intervention
He suggested that the government in every Muslim country could for example ascertain the criteria of the mujtahid and to verify the views which will become binding hukum on the shariah upon all Muslim world
As to the question whether the classical definition of ijma has ever been fulfilled at any period following the demise of the Prophet Khallaf answered negatively.
He observed that during the period of the Companions, ijma consisted of the agreement of the learned among them who were present at the time the issue was deliberated and the ruling which followed was the collective decision of the shura.
He give the example that when Caliph Abu Bakar could not find the guidance for Dispute in the Quran and the Sunnah, he would consult the community leaders and if they agreed on an opinion he would act upon it
Khallaf argues that there is no report to Suggest that Caliph Abu Bakar postponed the settlement of the disputes untill all the mujtahidun of the age in different cities reached an agreement and he instead act on the collective decision of those who were present
This type of ijma only occurs during the Period of the companions
Except within those period, no collective ijma is known to have taken place on any juridical matter.
Al-Adillah al-Ahkam al-Shar`iyyah
Al-Adillah al-Ahkam al-Shar`iyyah
(Sources of Shari`ah) (11 Ogos 2007)
1.INTRODUCTION.
1.1. The true source for Islamic law is Allah al-Mighty. The sources of Islamic law therefore is divine in origin.
1.2. To illustrate the sources of law from common law point of view, we can also divide the sources of the Islamic law into material and formal sources
2. CLASSIFICATIONS OF THE SOURCESS
The sources of the Shariah can be divided into several classifications as follows:
2.1. Primary and secondary sources
2.2. Agreed upon and disputed sources.
2.3. Transmitted and rational sources.
2.4. Definitive and probable or speculative sources.
3.Primary and Secondary Sources
3.1. Primary Sources
3.1.1. Al-Qur`an
3.1.2. Al-Sunnah
3.1.3. Al-Ijma’
4.Secondary Sources
4.1.Al-Qiyas
4.2.Al-Istihsan
4.3.Al-Maslahah al-mursalah
4.4.Al-Istishab
4.5.Sadd al-Dhari`ah
4.6.Al-`Urf
4.7.Qawl al-Sahabi
4.8.Shar` Man Qablana
5.Primary Sources
5.1. Hadith Muaz bin Jabal:
When the Prophet send Muaz bin Jabal to Yemen as judge and governor, he asked him on what basis he would judge if he was confronted with a problem. Muaz said that he would judge based on the content of the Qur`an. The Prophet (p.b.u.h) asked him, “assuming that you do not find it in the Qur`an, on what basis would you judge?”. Muaz replied that he would judge base on the Sunnah of the Prophet. The Prophet also asked him “assuming that you do not find him in both, the Qur`an and the Sunnah, on what basis would you judge? Muaz replied that that he would use his own individual opinion without transgressing the boundary set by the Qur`an and the Sunnah.
5.2. Agreed upon (al-ittifaq) and disputed (al-ikhtilaf) sources
5.2.1. Sources which are agreed upon by the jurists are the Qur`an, Sunnah, ijma’ and Qiyas (it is however said that ijma’ was rejected by al-Nazzam from Mu`tazilah, where as Zahiri and Ja`fari schools rejected qiyas.
5.2.2. Sources which are not accepted by all jurists are istihsan, maslahah al-mursalah, istishab and the rests of the secondary sources.
5.3. Transmitted (naqli) and Rational (`aqli) sources
5.3.1. Transmitted sources are the Qur`an, the sunnah, ijma’, fatwa of the Companions and the laws of the earlier scriptures.
5.3.2. The authority of the transmitted proof is not dependent upon whether it can be rationally justified or not.
5.3.3. However most of the hukm which are derived from the transmitted sources can be rationally justified.
5.3.4. The rational sources are qiyas, istihsan, maslahah al-mursalah, sadd and al-dhari`ah.
5.3.5. They are founded in reason and can only be accepted by virtue of their rationality.
5.3.6. They are however in many ways dependent on transmitted sources.
6.Definitive (qat`ei) and probable or speculative (zanni) sources.
6.1.The definitive sources are the Qur’an, Sunnah and ijma’.
6.2.The definitive sources are decisive and binding.
6.3.The rests of the sources are considered as speculative.
6.4.The speculative or probable sources are not binding.
However the Qur`an and Sunnah contain speculative rules which are open to interpretations. The jurists have discussed this from two perspectives i.e definitive by way of transmission (qat`ei al-thubut/sanad) and definitive in meaning (qat`ei al-dalalah). This topic will however be dealt later.
1.Al-Qur`an
1.2.The first and the main source of Islamic law.
1.3.It is defined as the Book containing the words of Allah revealed to the Prophet Muhammad (p.b.u.h) in Arabic language and transmitted to us from him through authentic continuous narration without doubt
1.4.The Qur`an as the Primary Source of Islamic law
“O you who believe! Obey Allah, and obey the Messenger, and those charged with authority among you. If you differ in anything among yourselves, refer it to Allah and His messenger, if you do believe in Allah and the Last Day. That is best, and most suitable for final determination”
(al-Qur`an, chapter 4 (al-nisa’): verse 59)
1.5. The Qur`an is divided into 114 chapters with different topics .The shortest chapter consists of three verses and the longest is 286.
1.6. In order to facilitate the reading, the Qur`an is divided into 30 parts or sections.
1.7. The Qur`an was revealed gradually within a period of 22 years, 2 months and 22 days according to the need of time and to provide answers for questions and solutions for problems.
1.8. The first revelation began in the month of Ramadhan.
2.Makki (Meccan) and Madani (Medinan) verses
2.1.Nineteen parts of the Qur`an were revealed during the 13 years of the Prophet residence in Mecca.
2.2.The remainder eleven parts were revealed after his migration to Medina over a period of 10 years.
2.3.The verse revealed before the migration of the Prophet to Medina were categorized as Makki and those revealed after the migration were categorized as Madani.
3.Nature and Content of Makki and Madani
3.1.The Makki mainly emphasizes on the topics of related to belief, tawheed, the prophethood, the Hereafter and the invitation to Islam.
3.2.The Madani comprised legal rules and regulated various aspects of life, political, legal, social, economic, family etc.
4.Graduality (tanjim) in the Revelation
4.1.Afforded the believers to reflect over it and to retain it in their memories.
4.2.Facilitate continuous contact and renewal spiritual strength so that the hostility of the jahiliyyah towards the new faith did not weaken the hearth of the Prophet and believers.
4.3.Response to questions and problems.
4.4.Widespread illiteracy of the people.
4.5.Avoid hardship to the believers.
5.Asbab al-Nuzul (reasons of revelation)
5.1.Explain the events which are related to the revelation of its particular verses.
5.2.The knowledge of it is necessary in order to understand the meaning the Qur`an and the application of its injunctions correctly.
5.3.Knowledge of words and concept is incomplete without the knowledge of the context and the nature of the audience.
6.I`jaz al-Qur`an
6.1.In its linguistic excellence.
6.2.In its narration of events which took place centuries ago.
6.3.In its accurate prediction of future events.
6.4.In its scientific truth eg. concerning the creation of man, earth and planetary system.
6.5.In its humanitarian, legal and cultural reforms.
(Sources of Shari`ah) (11 Ogos 2007)
1.INTRODUCTION.
1.1. The true source for Islamic law is Allah al-Mighty. The sources of Islamic law therefore is divine in origin.
1.2. To illustrate the sources of law from common law point of view, we can also divide the sources of the Islamic law into material and formal sources
2. CLASSIFICATIONS OF THE SOURCESS
The sources of the Shariah can be divided into several classifications as follows:
2.1. Primary and secondary sources
2.2. Agreed upon and disputed sources.
2.3. Transmitted and rational sources.
2.4. Definitive and probable or speculative sources.
3.Primary and Secondary Sources
3.1. Primary Sources
3.1.1. Al-Qur`an
3.1.2. Al-Sunnah
3.1.3. Al-Ijma’
4.Secondary Sources
4.1.Al-Qiyas
4.2.Al-Istihsan
4.3.Al-Maslahah al-mursalah
4.4.Al-Istishab
4.5.Sadd al-Dhari`ah
4.6.Al-`Urf
4.7.Qawl al-Sahabi
4.8.Shar` Man Qablana
5.Primary Sources
5.1. Hadith Muaz bin Jabal:
When the Prophet send Muaz bin Jabal to Yemen as judge and governor, he asked him on what basis he would judge if he was confronted with a problem. Muaz said that he would judge based on the content of the Qur`an. The Prophet (p.b.u.h) asked him, “assuming that you do not find it in the Qur`an, on what basis would you judge?”. Muaz replied that he would judge base on the Sunnah of the Prophet. The Prophet also asked him “assuming that you do not find him in both, the Qur`an and the Sunnah, on what basis would you judge? Muaz replied that that he would use his own individual opinion without transgressing the boundary set by the Qur`an and the Sunnah.
5.2. Agreed upon (al-ittifaq) and disputed (al-ikhtilaf) sources
5.2.1. Sources which are agreed upon by the jurists are the Qur`an, Sunnah, ijma’ and Qiyas (it is however said that ijma’ was rejected by al-Nazzam from Mu`tazilah, where as Zahiri and Ja`fari schools rejected qiyas.
5.2.2. Sources which are not accepted by all jurists are istihsan, maslahah al-mursalah, istishab and the rests of the secondary sources.
5.3. Transmitted (naqli) and Rational (`aqli) sources
5.3.1. Transmitted sources are the Qur`an, the sunnah, ijma’, fatwa of the Companions and the laws of the earlier scriptures.
5.3.2. The authority of the transmitted proof is not dependent upon whether it can be rationally justified or not.
5.3.3. However most of the hukm which are derived from the transmitted sources can be rationally justified.
5.3.4. The rational sources are qiyas, istihsan, maslahah al-mursalah, sadd and al-dhari`ah.
5.3.5. They are founded in reason and can only be accepted by virtue of their rationality.
5.3.6. They are however in many ways dependent on transmitted sources.
6.Definitive (qat`ei) and probable or speculative (zanni) sources.
6.1.The definitive sources are the Qur’an, Sunnah and ijma’.
6.2.The definitive sources are decisive and binding.
6.3.The rests of the sources are considered as speculative.
6.4.The speculative or probable sources are not binding.
However the Qur`an and Sunnah contain speculative rules which are open to interpretations. The jurists have discussed this from two perspectives i.e definitive by way of transmission (qat`ei al-thubut/sanad) and definitive in meaning (qat`ei al-dalalah). This topic will however be dealt later.
1.Al-Qur`an
1.2.The first and the main source of Islamic law.
1.3.It is defined as the Book containing the words of Allah revealed to the Prophet Muhammad (p.b.u.h) in Arabic language and transmitted to us from him through authentic continuous narration without doubt
1.4.The Qur`an as the Primary Source of Islamic law
“O you who believe! Obey Allah, and obey the Messenger, and those charged with authority among you. If you differ in anything among yourselves, refer it to Allah and His messenger, if you do believe in Allah and the Last Day. That is best, and most suitable for final determination”
(al-Qur`an, chapter 4 (al-nisa’): verse 59)
1.5. The Qur`an is divided into 114 chapters with different topics .The shortest chapter consists of three verses and the longest is 286.
1.6. In order to facilitate the reading, the Qur`an is divided into 30 parts or sections.
1.7. The Qur`an was revealed gradually within a period of 22 years, 2 months and 22 days according to the need of time and to provide answers for questions and solutions for problems.
1.8. The first revelation began in the month of Ramadhan.
2.Makki (Meccan) and Madani (Medinan) verses
2.1.Nineteen parts of the Qur`an were revealed during the 13 years of the Prophet residence in Mecca.
2.2.The remainder eleven parts were revealed after his migration to Medina over a period of 10 years.
2.3.The verse revealed before the migration of the Prophet to Medina were categorized as Makki and those revealed after the migration were categorized as Madani.
3.Nature and Content of Makki and Madani
3.1.The Makki mainly emphasizes on the topics of related to belief, tawheed, the prophethood, the Hereafter and the invitation to Islam.
3.2.The Madani comprised legal rules and regulated various aspects of life, political, legal, social, economic, family etc.
4.Graduality (tanjim) in the Revelation
4.1.Afforded the believers to reflect over it and to retain it in their memories.
4.2.Facilitate continuous contact and renewal spiritual strength so that the hostility of the jahiliyyah towards the new faith did not weaken the hearth of the Prophet and believers.
4.3.Response to questions and problems.
4.4.Widespread illiteracy of the people.
4.5.Avoid hardship to the believers.
5.Asbab al-Nuzul (reasons of revelation)
5.1.Explain the events which are related to the revelation of its particular verses.
5.2.The knowledge of it is necessary in order to understand the meaning the Qur`an and the application of its injunctions correctly.
5.3.Knowledge of words and concept is incomplete without the knowledge of the context and the nature of the audience.
6.I`jaz al-Qur`an
6.1.In its linguistic excellence.
6.2.In its narration of events which took place centuries ago.
6.3.In its accurate prediction of future events.
6.4.In its scientific truth eg. concerning the creation of man, earth and planetary system.
6.5.In its humanitarian, legal and cultural reforms.
INTRODUCTION TO USUL AL-FIQH
INTRODUCTION TO USUL AL-FIQH
(ISLAMIC JURISPRUDENCE)
Asst. Prof. Dr. Mohamed Fadzli Hassan
Harun M. Hashim Law Centre
Ahmad Ibrahim Kulliyyah of Laws
International Islamic University Malaysia
SHARI`AH v. FIQH
Shari`ah has been loosely defined as “Islamic law” and so has fiqh. These terms are not synonymous either in the Arabic language or to the Muslim jurists.
SHARI`AH ISLAMIYYAH
1.Shari`ah literally means a waterhole, the source of life, or the straight path as in the Qur’anic verse:
“Then we put you on the straight path (shari`ah) in your affairs, so follow it and do not follow the desires of those who have no knowledge” (al-Jaathiyah, 45:18)
2. Terminologically, it refers to the sum total of Islamic laws which were revealed to the Prophet Muhammad (s.a.w), which are recorded in the Qur’an as well deducible from the Sunnah of the Prophet.
3. In short Shari`ah is the whole teaching of Islam itself that covers both matter of belief (aqidah) and laws (fiqh).
AL-FIQH
1. Fiqh literally means deep understanding about something, as in the Qur’anic verse:
2. “They have hearts wherewith they understand not”, (al-A`raaf, 7:179)
3. Terminologically it means, the knowledge or understanding of the laws or legal rules of Shari`ah that have been derived from their specific sources.
4. In short fiqh is Islamic law, that comprises all branches of law, public and private, substantive as well procedural law
THE DISTINCTION BETWEEN SHARI`AH AND FIQH
1. Shari`ah has wider meaning than fiqh which includes both laws and a tenets of faith.
2. Shariah is the whole teachings found in the Qur’an and sunnah, while fiqh is a body of laws deduced from the Shari`ah to cover specific situations not directly treated in both sources.
3. Shari`ah is fixed and unchangeable, whereas fiqh may change according to time and circumstances under which it is applied.
4. Shari`ah, in most part, are general. They lay down basic principles. In contrast fiqh is specific. It is developed by the exercise of ijtihad of the jurists. It demonstrate how the basic principles of Shari`ah should be applied in given circumstances.
THE SCOPE OF FIQH (ISLAMIC LAW)
1. Ibadat - religious observance
2. Muamalat - dealing with others
3. Munakahat - marriage, divorce etc -- family matters.
4. Jinayat - criminal law matters
5. Nizam al-Hukm wa al-qanuun al-dusturiyy – which includes constitutional and administrative law
6. Siyaar - International law
7. Qanun ijra’aat - Civil and criminal procedure law.
IBADAT
Specific religious duties to be adhered to such as:
1.salat
2.zakat
3.fasting
4.hajj, etc.
MUAMALAT (Law of Transaction)
Inclusive of laws governing transactions, such as sales and purchase, lease, loan, banking, state administration, etc.
MUNAKAHAT(Family Law)
1. Concerns with family matters; marriage, divorce and
2. Inheritance
3. Maintenance
4. Described as Islamic Family Law or Personal Law or Muslim Law of Personal Status
JINAYAT(criminal law)
Crime: consists in legal prohibitions imposed by Allah, whose infringement entails punishment prescribed by Him.
1.Hudud
2.Qisas
3.Ta’zir
NIZAM AL-HUKM WA AL-QANUN AL-DUSTURIYY (Constitutional and administrative law)
1• Law of Constitution.
2• Separation of powers.
3• Appointment of State’s officers and their duties.
4• Fundamental liberties.
5• Governement organs and their jurisdictions, etc.
AL-SIYAAR (International Law)
1• It includes law of treaties and conventions.
2• War and international crimes.
3• Law of space and sea.
4• Conflict of law.
5• International relations, etc.
QANUN AL-IJRA`AAT (Civil and criminal procedural law)
1• Deals with civil proceedings such as witnesses and courts procedures.
2• Criminal proceeding which include prosecutions, witnesses, evidences, and all court’s procedures.
USUL FIQH
INTRODUCTION
Usul al-fiqh or Islamic jurisprudence generally explains the origin and nature of Islamic law as well as the structure of its legal system. In Islamic legal system, a rule of law in order to be valid has to be derived from the sources of Islamic law. This is accomplished by acceptable system of interpretation. Usul al-fiqh imparts instruction about the available systems of interpretation and their proper use.
Brief comparison between Islamic and western jurisprudence
1) The Law-giver or legislator
2) The sources and objective of law
3) The roles and functions of jurists (fixed and flexible part of the Shari`ah)
4) Why do we obey the law
5) The punishments and sanctions
6) Law and morality
7) The validity and legality (positivism, utilitarianism, natural law, etc.)
8) Madzhab and schools of jurisprudence
Definition of Usul al-Fiqh (Islamic Jurisprudence)
The term usul al-fiqh composed of two terms, usul and al-fiqh.
1)Usul : Basis, origin, root, foundation and sources. Something from which another thing originates, or something upon which another thing is constructed.
2)Fiqh: Literally means understanding and knowledge of the law. Terminologically, fiqh means the knowledge of the legal rules (hukm or ahkam al-Shari`ah), pertaining to conduct, which have been derived from their specific sources for example; the five daily prayers are obligatory (wajib), usury (riba’) is prohibited (haram), and marriage is permissible (mubah). Wajib, haram and mubah here are the legal rules. These rules are derived from specific provisions in the sources or through ijtihad which is regulated by usul al-fiqh.
Rules of law in the Shari`ah can be generally divided into two types:
1) The rules relating to belief (i`tiqad) like the existence of God, the mission of the Prophet, Day of Judgment, sin and reward, hell and heaven and so on.
2) The rules relating to act (conduct) which includes physical acts, the acts which take place in the heart and mind (intention, love, hate, jealousy etc), and those that relate to speech or acts arising out of spoken words.
The word used in the definition is conduct (amaliyyah), which qualifies the rules of law to only those that pertain to acts or conducts. Thus rules with respect to belief is excluded from the scope of fiqh.
Definition and objective of usul al-fiqh
Usul al-fiqh has been defined as principles or methodology used by the jurists (mujtahid) to deduce the practical Shari`ah ruling from their sources.
Thus the purpose of usul al-fiqh is to regulate the prosess of adjudication (ijtihad) and to guide the jurist (mujtahid) in his effort at deducing the rules from the sources. This would explain the issue of how do Muslim judges and jurists discover and apply the law.
Example…
Allah says in the Qur`an:
“O ye who believe! Devour not each other’s property in defiance of the law, but let there be amongst you traffic and trade (sale) by mutual consent and good-will, nor kill or destroy yourselves for verily Allah has been to you Most Merciful” (al-Nisa’, 4:29)
- The Qur`an is the source of the Shari`ah and the text or verse is the specific provision which provide of the rule or law (hukm).
- Through the methodology of usul al-fiqh the jurists have concluded that it is prohibited (haram) to take, eat, use, and consume the property belong to others unless it is authorized by the law, such as getting his consent or true contractual agreement (buying and selling, etc) which is consented by both parties. To commit murder, suicide or genocide is similarly prohibited.
More examples…
1)Allah says:
“O ye who believe! Devour not usury, doubled and multiplied; but fear Allah ; that you may really prosper”
(Aali- `Imraan, 3:130)
2)The Prophet (s.a.w) said:
“I had forbidden you from visiting the graves. Nay, visit them, for they remind you of the Hereafter”.
Scope of usul al-fiqh
The study of usul al-fiqh generally covers the following subject matters:
1) the Law-giver or the legislator (al- Haakim)
2) the subject of law which includes the act and the actor (mukallaf).
3) the legal rules or laws (hukm or ahkam)
4) the jurists (mujtahidin); who are they and what are their qualifications.
5) the methods of deducing the law.
The Development of Usul al-Fiqh
1) Legislative period i.e the time of the Prophet Muhammad (s.a.w) (whether the Prophet practiced ijtihad?)
2) During the time of the Great Companions.
3) During the reign of Bani Umayyah and Abassiyyah.
4) The emergence of madzahib.
5) The growth of ijtihad and the codification of law.
6) Islamic law during Western colonization; the closing door of ijtihad (taqlid)?
Development of usul fiqh
• Why al-Imam al-Shafi’e was regarded as the father and founder of usul fiqh?
• Tariqah al-mutakallimin (the appoach of ) and tariqah al-fuqaha’ (the method of the jurists) or usul al-Shafi’eyyah and usul al-Hanafiyyah.
Al-Ahkam al-Shariyyah (The Shariah Rules)
1) Introduction, definition and brief comparison with modern legislation.
2) Pillars of hukm al-shar`ei-
a) al-Haakim (the law-giver)
b) al-mahkum fih (the act on which the law applies)
c) al-mahkum ‘alayh (subject or the legal personality) and al-ahliyyah (legal
capacity)
3) Divisions al-ahkam al-shar`iyyah:
a) al-hukm al-taklifi (defining law or obligations creating rules)
b) al-hukm al-wadh`ei (declaratory rules)
Al-Haakim (The Law-Giver)
• Allah as a true source of law. “The hukm belongs to Allah alone” as a fundamental or grundnorm.
• Issues:
a) If Allah alone makes law, then what is the function Muslim jurists?
b) If the law is for the interest of man (maslahah), can interest be the independent source of law?
• Are the Shari`ah and natural law compatible?
• Whether reason alone without revelation can discover the law (the question of good and bad)?
Mahkum fiih (the act)
For the existence of obligations (taklif) two important conditions need to be fulfilled:
a) the act that should be performed or avoided must be known.
(ignorance of the law is no excuse??)
b) the act should be able to be performed by the subject.
Mahkum `alaihi (the subject of the law)
• To acquires rights and accept duties.
• Types of al-ahliyyah:
a) ahliyyah al-wujub – capacity to acquire rights.
b) ahliyyah al-ada’ – capacity to execute.
AL-HUKM AL-SHAR`I (LAW OR LEGAL RULE)
1) Definition of al-hukm
“a communication of the Law-giver related to the acts of the subjects which consists a demand (to do or not to do), an option or declaration”.
2) Al-hukm al-shar`i is divided into two main varieties:
a) Al-hukm al-taklifi (primary rules/defining law)
b) Al-hukm al-wad`ei (secondary rules/declaratory law)
AL-HUKM AL-TAKLIFI (PRIMARY RULES/ DEFINING LAW)
1. Wajib/fard (obligatory)
2. Mandub (recommended )
3. Ja’iz (permissible)
4. Makruh (abominable)
5. Haram (prohibited)
WAJIB AND FARDH (OBLIGATORY)
• It is a binding demand of the Law-giver addressed to the mukallaf in respect of doing something.
• Acting upon something wajib/fardh leads to reward, while omitting it leads to punishment in this world or in Hereafter.
• Examples are five daily prayers, fasting in the month of Ramadhan, to pay zakat etc.
Divisions of wajib
• Ayni (personal) and kafa’i (collective)
• Muwaqqat (time-limit) and mutlaq or muassa` (absolute)
• Muhaddad (quantified) and ghair muhaddad (unquantified)
MANDUB (RECOMMENDED)
• A demand of the Law-giver which asks the mukallaf to do something which is, however, not binding.
• To comply with the demand earns the mukallaf a spiritual reward. No punishment, however, is inflicted for failure to perform it.
• Examples are give sadaqah to the needy, give salam, attending the sick, nawafil prayers etc.
• Mandub is also known as sunnah and nawafil.
JA’IZ OR MUBAH (PERMISSABLE)
• Optional; permissible, its concerning the conduct of the mukallaf which gives him the option, to do or not to do it.
• Generally no reward or punishment for the its commission or omission. However the hukm may change according to the intention of doing it or omitting it.
• Examples are eating or drinking lawful foods or water, entering into contracts, walking in the fresh air etc.
MAKRUH (DISLIKE OR ABOMINABLE)
• A demand of the Law-giver which requires the mukallaf to avoid from doing something but not binding.
• Does not constitute a binding law – omitting something makruh is preferable;
• Committing it is not liable to punishment
• Examples are avoiding unpleasant acts or foods such as raw onions and garlic before going to congregational prayers or attending the crowd. Talaq “The most abominable of permissible things in the sight of Allah is talaq.
HARAM (PROHIBITED OR FORBIDDEN)
• A binding demand of the Lawgiver in respect of abandoning something;
• Committing the haram is punishable either in this world or in the Hereafter, while omitting it is rewarded.
• Examples are riba, alcohol, theft, murder, adultery etc.
• Haram is divided into two types, lidhatihi and lighairi (haram for its own sake and forbidden because of something else).
HUKM AL-WADH`EI (SECONDARY OR DECLARATORY LAW)
1) Cause (sabab)
2) Condition (shart)
3) Hindrance (mani`)
4) Strict law (azimah) and concessionary lay (rukhsah)
5) Valid, irregular and void (sahih, fasid and batil)
1) SABAB (CAUSE)
• It is the cause on the basis of which a primary rule is invoked or established.
• Its presence necessitates the presence of the hukm, and its absence means the hukm is also absent.
• Examples are the setting of the sun is the cause for the obligatory of the evening prayer, the coming of the month of Ramadhan is the cause for the obligatory of fasting and the committing of a crime is the cause of implementing the punishment.
2) SHART (CONDITION)
• Its existence must take place before the invoking the related hukm.
• Its absence necessitates the absence of the hukm.
• Example: “There is no nikah without two witnesses”, the ablution (wudhu’) is a necessary condition of salah (prayer)
3. MANI` (HINDRANCE)
• Its presence means the absence of the hukm.
• Its existence prevent the hukm from being applied even if the cause is found and the condition is met.
• Examples: Menstruation hinders women from the obligatory of prayer, being in debt hinders the cause of zakat and etc.
4. AZIMAH AND RUKHSAH (STRICT AND CONCESSIONARY LAW)
• The Law-giver may indicate that one hukm is to be considered as an obligation imposed initially as a general rule (azimah). This may be followed by another rule that is exemption (rukhsah).
• Drinking of wine is prohibited as a general rule. In cases of duress, however, one is allowed to consume it if it saves him from dying of thirst.
• Similarly, it is allowed to shorten and combine between two prayers in traveling.
5. SAHIH, FASID AND BATIL (VALID, IRREGULAR AND VOID)
• An act may be required to be performed in certain manner by the Law-giver. When it is performed properly it is considered as valid (sahih), otherwise it might be irregular (voidable) (fasid) or null and void (batil).
• Only a valid contract of sale can give rise to its legal consequences. A contract is void when it is deficient in respect of any of its requirement. A voidable contract, although deficient in some respect, is still a contract and produces some of its legal consequences, but not all.
(ISLAMIC JURISPRUDENCE)
Asst. Prof. Dr. Mohamed Fadzli Hassan
Harun M. Hashim Law Centre
Ahmad Ibrahim Kulliyyah of Laws
International Islamic University Malaysia
SHARI`AH v. FIQH
Shari`ah has been loosely defined as “Islamic law” and so has fiqh. These terms are not synonymous either in the Arabic language or to the Muslim jurists.
SHARI`AH ISLAMIYYAH
1.Shari`ah literally means a waterhole, the source of life, or the straight path as in the Qur’anic verse:
“Then we put you on the straight path (shari`ah) in your affairs, so follow it and do not follow the desires of those who have no knowledge” (al-Jaathiyah, 45:18)
2. Terminologically, it refers to the sum total of Islamic laws which were revealed to the Prophet Muhammad (s.a.w), which are recorded in the Qur’an as well deducible from the Sunnah of the Prophet.
3. In short Shari`ah is the whole teaching of Islam itself that covers both matter of belief (aqidah) and laws (fiqh).
AL-FIQH
1. Fiqh literally means deep understanding about something, as in the Qur’anic verse:
2. “They have hearts wherewith they understand not”, (al-A`raaf, 7:179)
3. Terminologically it means, the knowledge or understanding of the laws or legal rules of Shari`ah that have been derived from their specific sources.
4. In short fiqh is Islamic law, that comprises all branches of law, public and private, substantive as well procedural law
THE DISTINCTION BETWEEN SHARI`AH AND FIQH
1. Shari`ah has wider meaning than fiqh which includes both laws and a tenets of faith.
2. Shariah is the whole teachings found in the Qur’an and sunnah, while fiqh is a body of laws deduced from the Shari`ah to cover specific situations not directly treated in both sources.
3. Shari`ah is fixed and unchangeable, whereas fiqh may change according to time and circumstances under which it is applied.
4. Shari`ah, in most part, are general. They lay down basic principles. In contrast fiqh is specific. It is developed by the exercise of ijtihad of the jurists. It demonstrate how the basic principles of Shari`ah should be applied in given circumstances.
THE SCOPE OF FIQH (ISLAMIC LAW)
1. Ibadat - religious observance
2. Muamalat - dealing with others
3. Munakahat - marriage, divorce etc -- family matters.
4. Jinayat - criminal law matters
5. Nizam al-Hukm wa al-qanuun al-dusturiyy – which includes constitutional and administrative law
6. Siyaar - International law
7. Qanun ijra’aat - Civil and criminal procedure law.
IBADAT
Specific religious duties to be adhered to such as:
1.salat
2.zakat
3.fasting
4.hajj, etc.
MUAMALAT (Law of Transaction)
Inclusive of laws governing transactions, such as sales and purchase, lease, loan, banking, state administration, etc.
MUNAKAHAT(Family Law)
1. Concerns with family matters; marriage, divorce and
2. Inheritance
3. Maintenance
4. Described as Islamic Family Law or Personal Law or Muslim Law of Personal Status
JINAYAT(criminal law)
Crime: consists in legal prohibitions imposed by Allah, whose infringement entails punishment prescribed by Him.
1.Hudud
2.Qisas
3.Ta’zir
NIZAM AL-HUKM WA AL-QANUN AL-DUSTURIYY (Constitutional and administrative law)
1• Law of Constitution.
2• Separation of powers.
3• Appointment of State’s officers and their duties.
4• Fundamental liberties.
5• Governement organs and their jurisdictions, etc.
AL-SIYAAR (International Law)
1• It includes law of treaties and conventions.
2• War and international crimes.
3• Law of space and sea.
4• Conflict of law.
5• International relations, etc.
QANUN AL-IJRA`AAT (Civil and criminal procedural law)
1• Deals with civil proceedings such as witnesses and courts procedures.
2• Criminal proceeding which include prosecutions, witnesses, evidences, and all court’s procedures.
USUL FIQH
INTRODUCTION
Usul al-fiqh or Islamic jurisprudence generally explains the origin and nature of Islamic law as well as the structure of its legal system. In Islamic legal system, a rule of law in order to be valid has to be derived from the sources of Islamic law. This is accomplished by acceptable system of interpretation. Usul al-fiqh imparts instruction about the available systems of interpretation and their proper use.
Brief comparison between Islamic and western jurisprudence
1) The Law-giver or legislator
2) The sources and objective of law
3) The roles and functions of jurists (fixed and flexible part of the Shari`ah)
4) Why do we obey the law
5) The punishments and sanctions
6) Law and morality
7) The validity and legality (positivism, utilitarianism, natural law, etc.)
8) Madzhab and schools of jurisprudence
Definition of Usul al-Fiqh (Islamic Jurisprudence)
The term usul al-fiqh composed of two terms, usul and al-fiqh.
1)Usul : Basis, origin, root, foundation and sources. Something from which another thing originates, or something upon which another thing is constructed.
2)Fiqh: Literally means understanding and knowledge of the law. Terminologically, fiqh means the knowledge of the legal rules (hukm or ahkam al-Shari`ah), pertaining to conduct, which have been derived from their specific sources for example; the five daily prayers are obligatory (wajib), usury (riba’) is prohibited (haram), and marriage is permissible (mubah). Wajib, haram and mubah here are the legal rules. These rules are derived from specific provisions in the sources or through ijtihad which is regulated by usul al-fiqh.
Rules of law in the Shari`ah can be generally divided into two types:
1) The rules relating to belief (i`tiqad) like the existence of God, the mission of the Prophet, Day of Judgment, sin and reward, hell and heaven and so on.
2) The rules relating to act (conduct) which includes physical acts, the acts which take place in the heart and mind (intention, love, hate, jealousy etc), and those that relate to speech or acts arising out of spoken words.
The word used in the definition is conduct (amaliyyah), which qualifies the rules of law to only those that pertain to acts or conducts. Thus rules with respect to belief is excluded from the scope of fiqh.
Definition and objective of usul al-fiqh
Usul al-fiqh has been defined as principles or methodology used by the jurists (mujtahid) to deduce the practical Shari`ah ruling from their sources.
Thus the purpose of usul al-fiqh is to regulate the prosess of adjudication (ijtihad) and to guide the jurist (mujtahid) in his effort at deducing the rules from the sources. This would explain the issue of how do Muslim judges and jurists discover and apply the law.
Example…
Allah says in the Qur`an:
“O ye who believe! Devour not each other’s property in defiance of the law, but let there be amongst you traffic and trade (sale) by mutual consent and good-will, nor kill or destroy yourselves for verily Allah has been to you Most Merciful” (al-Nisa’, 4:29)
- The Qur`an is the source of the Shari`ah and the text or verse is the specific provision which provide of the rule or law (hukm).
- Through the methodology of usul al-fiqh the jurists have concluded that it is prohibited (haram) to take, eat, use, and consume the property belong to others unless it is authorized by the law, such as getting his consent or true contractual agreement (buying and selling, etc) which is consented by both parties. To commit murder, suicide or genocide is similarly prohibited.
More examples…
1)Allah says:
“O ye who believe! Devour not usury, doubled and multiplied; but fear Allah ; that you may really prosper”
(Aali- `Imraan, 3:130)
2)The Prophet (s.a.w) said:
“I had forbidden you from visiting the graves. Nay, visit them, for they remind you of the Hereafter”.
Scope of usul al-fiqh
The study of usul al-fiqh generally covers the following subject matters:
1) the Law-giver or the legislator (al- Haakim)
2) the subject of law which includes the act and the actor (mukallaf).
3) the legal rules or laws (hukm or ahkam)
4) the jurists (mujtahidin); who are they and what are their qualifications.
5) the methods of deducing the law.
The Development of Usul al-Fiqh
1) Legislative period i.e the time of the Prophet Muhammad (s.a.w) (whether the Prophet practiced ijtihad?)
2) During the time of the Great Companions.
3) During the reign of Bani Umayyah and Abassiyyah.
4) The emergence of madzahib.
5) The growth of ijtihad and the codification of law.
6) Islamic law during Western colonization; the closing door of ijtihad (taqlid)?
Development of usul fiqh
• Why al-Imam al-Shafi’e was regarded as the father and founder of usul fiqh?
• Tariqah al-mutakallimin (the appoach of ) and tariqah al-fuqaha’ (the method of the jurists) or usul al-Shafi’eyyah and usul al-Hanafiyyah.
Al-Ahkam al-Shariyyah (The Shariah Rules)
1) Introduction, definition and brief comparison with modern legislation.
2) Pillars of hukm al-shar`ei-
a) al-Haakim (the law-giver)
b) al-mahkum fih (the act on which the law applies)
c) al-mahkum ‘alayh (subject or the legal personality) and al-ahliyyah (legal
capacity)
3) Divisions al-ahkam al-shar`iyyah:
a) al-hukm al-taklifi (defining law or obligations creating rules)
b) al-hukm al-wadh`ei (declaratory rules)
Al-Haakim (The Law-Giver)
• Allah as a true source of law. “The hukm belongs to Allah alone” as a fundamental or grundnorm.
• Issues:
a) If Allah alone makes law, then what is the function Muslim jurists?
b) If the law is for the interest of man (maslahah), can interest be the independent source of law?
• Are the Shari`ah and natural law compatible?
• Whether reason alone without revelation can discover the law (the question of good and bad)?
Mahkum fiih (the act)
For the existence of obligations (taklif) two important conditions need to be fulfilled:
a) the act that should be performed or avoided must be known.
(ignorance of the law is no excuse??)
b) the act should be able to be performed by the subject.
Mahkum `alaihi (the subject of the law)
• To acquires rights and accept duties.
• Types of al-ahliyyah:
a) ahliyyah al-wujub – capacity to acquire rights.
b) ahliyyah al-ada’ – capacity to execute.
AL-HUKM AL-SHAR`I (LAW OR LEGAL RULE)
1) Definition of al-hukm
“a communication of the Law-giver related to the acts of the subjects which consists a demand (to do or not to do), an option or declaration”.
2) Al-hukm al-shar`i is divided into two main varieties:
a) Al-hukm al-taklifi (primary rules/defining law)
b) Al-hukm al-wad`ei (secondary rules/declaratory law)
AL-HUKM AL-TAKLIFI (PRIMARY RULES/ DEFINING LAW)
1. Wajib/fard (obligatory)
2. Mandub (recommended )
3. Ja’iz (permissible)
4. Makruh (abominable)
5. Haram (prohibited)
WAJIB AND FARDH (OBLIGATORY)
• It is a binding demand of the Law-giver addressed to the mukallaf in respect of doing something.
• Acting upon something wajib/fardh leads to reward, while omitting it leads to punishment in this world or in Hereafter.
• Examples are five daily prayers, fasting in the month of Ramadhan, to pay zakat etc.
Divisions of wajib
• Ayni (personal) and kafa’i (collective)
• Muwaqqat (time-limit) and mutlaq or muassa` (absolute)
• Muhaddad (quantified) and ghair muhaddad (unquantified)
MANDUB (RECOMMENDED)
• A demand of the Law-giver which asks the mukallaf to do something which is, however, not binding.
• To comply with the demand earns the mukallaf a spiritual reward. No punishment, however, is inflicted for failure to perform it.
• Examples are give sadaqah to the needy, give salam, attending the sick, nawafil prayers etc.
• Mandub is also known as sunnah and nawafil.
JA’IZ OR MUBAH (PERMISSABLE)
• Optional; permissible, its concerning the conduct of the mukallaf which gives him the option, to do or not to do it.
• Generally no reward or punishment for the its commission or omission. However the hukm may change according to the intention of doing it or omitting it.
• Examples are eating or drinking lawful foods or water, entering into contracts, walking in the fresh air etc.
MAKRUH (DISLIKE OR ABOMINABLE)
• A demand of the Law-giver which requires the mukallaf to avoid from doing something but not binding.
• Does not constitute a binding law – omitting something makruh is preferable;
• Committing it is not liable to punishment
• Examples are avoiding unpleasant acts or foods such as raw onions and garlic before going to congregational prayers or attending the crowd. Talaq “The most abominable of permissible things in the sight of Allah is talaq.
HARAM (PROHIBITED OR FORBIDDEN)
• A binding demand of the Lawgiver in respect of abandoning something;
• Committing the haram is punishable either in this world or in the Hereafter, while omitting it is rewarded.
• Examples are riba, alcohol, theft, murder, adultery etc.
• Haram is divided into two types, lidhatihi and lighairi (haram for its own sake and forbidden because of something else).
HUKM AL-WADH`EI (SECONDARY OR DECLARATORY LAW)
1) Cause (sabab)
2) Condition (shart)
3) Hindrance (mani`)
4) Strict law (azimah) and concessionary lay (rukhsah)
5) Valid, irregular and void (sahih, fasid and batil)
1) SABAB (CAUSE)
• It is the cause on the basis of which a primary rule is invoked or established.
• Its presence necessitates the presence of the hukm, and its absence means the hukm is also absent.
• Examples are the setting of the sun is the cause for the obligatory of the evening prayer, the coming of the month of Ramadhan is the cause for the obligatory of fasting and the committing of a crime is the cause of implementing the punishment.
2) SHART (CONDITION)
• Its existence must take place before the invoking the related hukm.
• Its absence necessitates the absence of the hukm.
• Example: “There is no nikah without two witnesses”, the ablution (wudhu’) is a necessary condition of salah (prayer)
3. MANI` (HINDRANCE)
• Its presence means the absence of the hukm.
• Its existence prevent the hukm from being applied even if the cause is found and the condition is met.
• Examples: Menstruation hinders women from the obligatory of prayer, being in debt hinders the cause of zakat and etc.
4. AZIMAH AND RUKHSAH (STRICT AND CONCESSIONARY LAW)
• The Law-giver may indicate that one hukm is to be considered as an obligation imposed initially as a general rule (azimah). This may be followed by another rule that is exemption (rukhsah).
• Drinking of wine is prohibited as a general rule. In cases of duress, however, one is allowed to consume it if it saves him from dying of thirst.
• Similarly, it is allowed to shorten and combine between two prayers in traveling.
5. SAHIH, FASID AND BATIL (VALID, IRREGULAR AND VOID)
• An act may be required to be performed in certain manner by the Law-giver. When it is performed properly it is considered as valid (sahih), otherwise it might be irregular (voidable) (fasid) or null and void (batil).
• Only a valid contract of sale can give rise to its legal consequences. A contract is void when it is deficient in respect of any of its requirement. A voidable contract, although deficient in some respect, is still a contract and produces some of its legal consequences, but not all.
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