Professional Documents
Culture Documents
TITLE I
DEFINITIONS OF TERMS
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of Islamic law which are practical in daily life, and derived from
detailed proofs of law.
11. Fardh or Imperative. The act whose value has been established
by the Qur’an and Mutawatir Hadith. Performance of Fardh acts
lead to reward and its omission leads to punishment in this world
and hereafeter.
12. Wajib or Obligatory. The acts whose value has been established
by a Shari’ah evidence, other than Qur’an and Hadith Mutawattir.
It has the same effect as the Fardh although Wajib need not be
given absolute faith like the Fardh.
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15. Makruh or Reprehensible. The acts whose omission is
preferable to their commission.
17. Azima and Rukhsa. Azima or ideal refers to the laws that are
general in nature. While Rukhsa is a rule that provides an
exemption from the general rule. Drinking wine is generally
prohibited (Azima). However, one is permitted by the law
(Rukhsa) to drink it in case of duress.
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which, though uncovered by the language of the text, are covered
by the reason of the text.
24. Ta’lil. It comes from the word ‘illa’. Literally means causation or
a search for the causes and refers to the logical relationship
between cause and effect.
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32. Qawlu Sahabi. Literally means Companions Opinion. It refers to
the opinion of a particular Sahaba to specific rulings or issues
concerning legal actions.
37. Shura. Literally means “to gather honey from its hive and from
other places”. Technically, it is defined as mutual consultation of
the individual unguided opinion of people who may or may not be
expert in law. It doesn’t always carry the mandatory effect of law.
38. Taqlid. Literally means an ornament tied around the neck like a
necklace. Technically, it is defined as to follow the opinion of a
person whose opinion is not a proof of Islamic law without asking
his proof. This refers to blind imitation.
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41. Talfiq. Literally means to piece together. Technically, it means to
piece together constituent parts from various schools in a single
act of worship. In other words Talfiq is the term for combining the
rules of more than one school to apply specific act.
51. Uqubat. It refers to the penal laws. They are the punishment
instituted in the Qur’an in favor of the general public for the
commission of injurious or wrongful act. They consists of the
Hudud, Qisas and Ta’zeer.
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TITLE II
DISTINCTIONS
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56. Fiqh and Usul-Fiqh
Fiqh literally means the true understanding of what is intended. It
is defined as “the deduction of shari’ah value relating to conduct
from their respective particular evidences. Technically, it is the
scientific study and elucidation on Shari’ah. It is the knowledge of
all the rules and commandments of Islamic law which are practical
in daily life and derived from detailed proofs of law, while Usul-
ul-Fiqh literally means roots of Fiqh. It is defined as the science of
the sources and methodology of law. Technically, it means the
science of the study of Muslim law jurisprudence, its fundamental
and principles based on the primary sources of law, through the
exercise of independent analytical deduction with regard to its
application to certain particular.
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Mutawattir. The effect of Wajib is that it must be executed like the
Fardh although it need not be given absolute faith like the Fardh.
It’s commission also is rewarded and its omission entails
punishment.
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c) In Hadith Qudsi the Prophet has communicated it in his own
words; while in ordinary Hadith it is the story of an
eyewitness concerning what the Prophet said, did, or
tolerated in connection with a certain situation or occurrence.
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68. Urf and Adat
a) Adat means repetition or recurrent practice and it can be used
with regard to both individuals and community while, Urf is
defined as recurring practices which are acceptable to people
of sound nature.
b) Individual habit is a personal Adat of the people while; there
will be no personal habits of the individuals as their Urf.
c) Urf means the practice of a large number of people, or
community. The habits of a few or even a substantial
minority within a group constitutes Adat.
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73. Azima and Rukhsa
The difference between ‘azimah and rukhsah are that ‘Azima is
the general rule prescribed by the Lawgiver, which demand
performance by the subject; while, Rukhsa allows an exemption
from the general rule. It allows an individual to omit an obligatory
act when an excuse exists that makes its performance a hardship
upon himself.
TITLE III
SHARI’AH
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77. Characteristics of Shariah Law
Shariah law is divine, eternal, unchangeable, comprehensive,
idealistic, realistic and naturalistic.
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hadith Ahad. It could have had any number of narrators or
reporters but every chain of transmission has the same
person in it.
TITLE IV
HUKM SHARI’E
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TITLE V
SOURCES OF ISLAMIC LAW
Chapter One
PRIMARY SOURCES
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b) The Reduction of Religious Obligations
c) The Realization of Public welfare
d) The Realization of Universal Justice
Section 2 -- SUNNAH
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a. Allah enjoined every Muslim to obey Allah and His
prophet
b. On the consensus of Ijma of the companions of the
prophet during his lifetime and after his demise
Imam Shafi’e and Imam Ahmand Ibn Hanbal reject the above
views on the reason that the Sunnah is only a supplementary to the
Qur’an. They quoted the verse in the Qur’an that commands the
prophet to say that he is not allowed to alter any of the Qur’an.
They further argue that the “making of will to an heir” verse is
already abrogated by another verse which prescribes the legal
shares of the heirs.
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c) Hadith Mawquf. A hadith in which words, actions, approval
are attributed to the Sahabi and not from the prophet.
d) Hadith Maqtu. A hadith in which words, actions and approval
are attributed to the Taabi’i.
Section 3 – IJMA
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105. Its Effect after the consensus
The shari’ah value of Ijma is obligatory to us. Once the unanimous
declaration is made it is binding on every Muslim, including
Mujtahid who took part in it, and hence it is no longer open to
anyone of them to express dissent.
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Section 4 – QIYAS
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and divination by arrows, are abomination of Satan’s handiwork;
eschew such abomination that you may prosper. This verse
prohibit liquor and state the reason for its prohibition such as
exciting enmity and hatred among the people. This liquor is
intoxicant and Tanduay is another intoxicant, which is not
mentioned in the Qur’an but prohibit by reason of Qiyas because
the Asl or the foundation is the drinking of liquor, the Far’ or the
new case is drinking of Tanduay and the Illa or the Effective cause
is its intoxicating effect and the Hukm or Legal Rule is
prohibition. Therefore by use of Qiyas, Tanduay also is prohibited
although not explicitly mentioned in the Qur’an.
Chapter Two
SUBSIDIARY SOURCES
Section 1 – ISTIHSAN
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c) Based on Sunnah. Object which does not exist at the time of
contract may not be sold. However, it is validated by a
tradition that the prophet allowed it provided it is measured,
weight and has deadline.
d) Based on Ijma. When a person makes an order of craftsman
for certain goods to be manufactured at an agreed price which
is fixed though the good is not yet been present at the time of
order.
e) Based on Darura. The law requires that witness must be adil,
however if there is no adil witness, by virtue of istihsan and
necessity, a non-adil witness may be accepted in order to
secure justice.
f) Based on Custom. Movable property or things is generally
not allowed for Waqf. Hanafi jurists validated movable things
as Waqf such as books, tool and weapons on ground of its
acceptance of the popular custom.
g) Based on Public Interest. Responsibility of the trustee to the
loss of goods. The general rule is that a trustee is not
responsible to any loss unless it can be attributed to his
negligence. By way of Istihsan, a trustee becomes lialble
provided the cause is other than the cause beyond his control.
Section 2 – ISTISLAH
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123. Its basis in the Sunnah
a) “Harm is neither inflicted nor tolerated in Islam”
b) “The prophet did not choose but the easier of the two
alternatives so long as it did not amount to sin”
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Section 3 – ISTISHAB
Section 4 – ISTIDLAL
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Section 5—URF or CUSTOM
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c) Those in which there is an equal probability of harm and
benefit. Examples are marrying a woman with an intention
divorce so as to enable her to remarry her previous husband.
TITLE VI
NASKH or ABROGATION
The repeal of the Qur’anic text by the Hadith. The Muslim jurist
with regard to this is contradict to each other. Some of the jurist,
among them are Imam malik , comapnions of Abu Hanifah and
follower of Zahiri, believed that it is possible for the Sunnah to
repeal the Qur’an on the ground that both are revelations from
God. Thus this suppression is sanctioned by reason in addition to
the fact that it did actually occur. Thus , despite the clear urging
to bequeath unto parents and relatives, the jurist mentioned
consider repealed by the saying of the prophet that, “No bequest
to an heir”.
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139. Conditions and Rules on Abrogation
a) The text has not prohibited the possibility of abrogation.
Example is the verse about the persons who are convicted of
slander that they may never be admitted as witness,
b) the subject is open to possibilities of repeal; attributes of
God, principles of faith, and moral virtues are not open to
abrogation,
c) the abrogating text must be later origin than the abrogated,
d) the two texts are equal strength in regards to authenticity,
e) the two texts are in conflict and no way to be reconciled,
f) the two texts are separate and they are not related to one
another in the sense of one being the condition, qualification
or exception to the other.
TITLE VII
IJTIHAD
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All the preceding three classes were designated as Mujtahids. The
following four classes are described as imitators. They are:
d) Ashab at-Takhrij. They are those who do not deduce the laws
but are well-conversant in the doctrine and can indicate
which view was preferable.
e) Ashab at-Tarjih. They are those who are competent to make
comparisons and distinguish the correct views from the weak
ones.
f) Ashab at-Tashih. They are those who could distinguish
between the manifest (zahir ar-riwaya) and the rare (an-
nawadir) views of the schools they are following.
g) Muqallidoon or Immitators. They are those who lack the
abilities of the above and merely follow the other Mujtahids
without knowing how Mujtahids deduces the ruling.
TITLE VIII
THE FOUR SUNNI SCHOOLS OF LAW (MADAHIB)
146. The Hanafi Madhab, named after its founder Abu Hanifah whose
actual name was Nu’man ibn Thabit. He is originally from Kufa,
Iraq. He belong to the Tabi’een since he had the privilege to meet
other late Sahabas. The Hanafi School has the largest following in
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the Muslim world and distinguished for its application of the rules
of Shari’ah to practical matters of human life, making use of
reason and logic in this process or broadening those rules by
means of analogy (Qiyas) and equity (Ihsan). Abu Hanifa relied on
his personal judgment (ra’y) and conclusions by analogy. His
school subsequently came to be known as the “Upholders of
Private Opinion” (Ahl r-Ra’y). Basis of his analogical reasoning
was the Qur’an. He accepted tradition only when he was fully
satisfied as to their authenticity.
147. The Maliki Madhab, named after its founder Malik ibn Anas ibn
‘Amir. Imam Malik ibn Anas is looked upon as the highest
authority on the Sunnah and in formulating his school of law he
leaned more upon tradition and usages of the Prophet (s.a.w.) and
the precedents established by the Companions of the Prophet. He
was in a better position than Abu Hanifah to be acquainted with
the laws laid down by the companions and their successors and
embodied them largely in his system. It was only when no solution
was to be found in the Qur’an and the Sunnah that he relied on the
exercise of judgment. He attached weight to the usages and
customs of Madina, relying on the presumption that they must
have been transmitted from the time of the Prophet. Imam Malik
also recognized considerations of public good (Istislah) as a source
of law, although early Maliki jurists did not utilize much this
principle.
148. The Shafi’I Madhab was named after its founder Muhammad ibn
Idris ash-Shafi’i. Imam As-Shafi’I was noted for his balance of
judgment and moderation of view and though he is reckoned
among the upholders of traditions, he examined the traditions
more critically and made more use of analogy than Imam Malik.
He allowed greater scope to Ijma of the community (consensus of
opinion) than Imam Malik. As-Shafi’I objected to the principle of
Istihsan (juristic preference) adopted by the Hanafis but he himself
introduced the principle of Istishab or deduction by presumption
of continuity. The Hanafi School admits Istishab to refute an
assertion, as an instrument of defense and not to establish a new
claim.
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to adopt the classical legal theory which was based not on
traditions but consensus and recognized analogical reasoning. It
was left to the great independent Hanbali thinker, Ibn Taimiyya, to
reject the all-embracing function of consensus in law and to affirm
the necessity of analogical reasoning of the improved kind.
150. Conflict Rules of the Madhabs. All Imams of the four major
Madhabs agreed on the primacy of the four fundamental principles
of Islamic law. However, differences occurred on the following
factors:
a) Interpretation of word meanings and grammatical
constructions,
b) narration of Hadith with regard to its authenticity,
acceptance, and interpretation of the text,
c) admissibility of certain principles
d) methods of Qiyas
TITLE IX
Some Philosophical and Theological Sects in Islam
152. Sunni. This sect refers to the Ahlu Sunna wal Jama’ah or the
People of Sunna and Community. They follow the prophetic
Sunnah and have no claims against it. Politically, they believe that
that the prophet Muhammad did not appoint a successor to lead
the Ummah. Sunnis regard the first four caliphs as The Rightly
guided caliphs. They also believe that becoming a Caliph may be
attained democratically. It was after the first four Caliphs where
the position turned into hereditary dynastic rule. It is believed that
here has never been another caliph after the fall of Ottoman
Empire in 1923.
153. Shee’a or Shites. This sect refers to the Shi’at Ali or Partisan of
Ali. Politically, they believe that it should be the family of the
prophet or Ahlul Bayt who has the right of political succession.
They claim that Ali should have been his immediate political
successor. From this basic position, Shee’as developed theological
system. Their Imams as infallible and has the ability to know the
Ghayb or Hidden Knowledge is an example of their doctrines.
154. Khawarij. This sect refers to the army of Ali that broke during the
Battle of Sifin. It was a battle between Ali and Mu’awiya. When
arbitration were held between the two sides, a group of Ali’s army
broke out and declared both Ali and Mu’awiya as Kafirs on their
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reason that they preferred human arbitration over what was
ordained by God. Some of their beliefs are a person who commits
a major sin would make him and infidel, and also they believe that
any Muslim could become a political leader simply on the basis of
his religious virtue. The name of their first leader was Abdullah
Ibn Wahb Arrasibi.
TITLE X
MISCELLANEOUS
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stage, writings in the field of Islamic law started to become
rigid and beset by blind following or Taqlid.
f) Middle of the Seventh Century to the beginning of the
modern era. This stage is one of weakness with regard to the
methodologies employed in the codification of Islamic law.
g) Middle of the Thirteenth Century to the PRESENT DAY.
This stage, studies in Islamic law broadened considerably
especially in the field of comparative law.
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