COMMENTARIES

ON THE CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES by Arabani Sr.

Jasmera Amod, Bea Bangcola, Lovelle Belaca-ol, Jannah Barandia, Irish Dimitiman,
Jalil Marohom, Aisah Pumbaya, Cairoden Radiamoda, Eric Jan Villela
BARbies2017

PART I: INTRODUCTION TO JURISPRUDENCE (FIQH) OF Qabilah (The affairs of the tribe)
MUSLIM LAW
§ were guided by a Shayikh or chief, a man
Jurisprudence – the knowledge of the law which in its who, by his nobility of birth age and
generic sense includes the entire body of the legal doctrine. reputation for wisdom, had the respect
and confidence of his tribesmen.
Jurisprudence is divided into three parts:
§ To decide the cases of disputes, the Arabs
had a confederation of “Hill fall Fardul.”
First – Legal History
ý Sometimes the chief of the tribe was assisted in
Purpose: to set forth the historical process whereby any the discharge of his duties by council of elders.
legal system came to be what it is or was. Within the limits of his tribe, orders and decisions
were enforced not by any fixed machinery at his
Second – The science of legislation disposal but by force of public opinion.
ý The procedure that used to be adopted when a
Purpose: to set forth the law, not as it is or has been, but as
dispute or claim had to be decided was to call
ought to be. It deals future, and with the purposes for
upon the plaintiffs to adduce proof in support of
which it exists.
his claim. If he has no witness, the defendant, in
Third – The legal exposition case he denied the charge, would be given the oath,
and if he took it, he would be absorbed thereby
Purpose: to set forth the contents of an actual legal system from liabilities. Oath formed an important part of
as existing at anytime whether past or present. the procedure in setting dispute.


A form of marriage which has been sanctioned by Islam,
Fiqh – which is considered the legislation proper of the namely a man ask another for the hand of the latter’s ward
Muslim law. or daughter, and then marries her giving her a dower.

Muta (temporary marriage) - another form of marriage that
the Arabs used to contract. Whereby a man takes a woman
Substantive law – “The Code of Muslim Personal Laws of
as wife for as long as he needs her.
the Philippines”.

“Islamic Law is the epitome of the Islamic way of life, the þ There was no restriction as to the number of wives an
kernel of Islam itself. “ Arab could take.
- Prof. J. Schacht þ The only limit was imposed by his means, opportunity
and inclinations.
CHAPTER I
HISTORICAL BACKGROUND
NOTE: A woman was not a free agent in contracting
Pre-Islamic Arabs marriage. It was the right of her father, brother, cousin
or any other guardian to give her in marriage, whether
- The Arabs century preceding the rise of Islam, she was old or young widow or virgin to whomsoever
was characterized as the Age of Ignorance he chose. Her consent was of no moment.
(Ayyam Jahiliya), Tribal wars, Idolatry, and

social degradation were prevalent.

- The Arabs was generally nomadic and were
UNRESTRICTED POLYGAMY - which
called Beduin’s.
was sanctioned by usage was universally prevalent. This
- Tribes and chieftains acted in accordance with
was exclusive of the number of slave girls, which a man
tradition and convention. No settled form of
might possess. The limits of relationship within which
government or administration of law existed.
marriage was prohibited were narrow and defined only by

close degrees of consanguinity.



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 Ø Unrestrained as an Arab was in the number of his reforms, and Muhammad appeared at an opportune time
wives, he was absolutely free to release himself to effect that.
from the tie. His power in this connection was
absolute. WAHI (by inspiration) – means that God puts certain sense
or meaning into Prophet Muhammad’s heart or sometime
Ø Adoption among the Arabs was also in vogue as a the Omnipotent God without being seen spoke to
legitimate mode of affiliation. It was not restricted Muhammad, in the same way as when He spoke to Moses,
by any condition. and this is what is meant that God speaks from behind a
§ The adopted son passed into the family of veil; or by sending the Archangel Gabriel to Muhammad
the adopter and assumed his name, and with God’s messages either by the appearance of the Angel
his rights and obligations similarly as those in the form of a man before Muhammad, or while the latter
of a natural-born son. is in a trance, in the same way as when the Angel appeared
to Joseph in a dream to inform Joseph of the conception of
Ø The property of an Arab, generally was of simple Mary of the Child Jesus.
description.
• Camels, cattle’s, tents, clothes, and few utensils. The FIRST SIGN of his prophetic vocation, was the
• Slaves were a common and valuable form of discovery that everything which he dreamed happened in
property. his waking hours precisely as he had foreseen it.
After a time he felt a strong inclination to seek solitude and
• The wife had no corresponding right to withdraw to Mount Hira, or the mount of light, north of
release herself from the marriage bond. Mecca.

• The Arabs regarded the birth of a daughter as THE PERIOD OF DIVINE REVELATION:
a calamity. Female infanticide was prevalent. 1. The Meccan Period
(12 B.H.; 610-622 A. D.)
• The woman was debarred from inheriting, 2. The Medina Period
though she was no under disability in the (01 A.H.-10 A.H.; 622-632 A.D.)
matter of owning property.
§ Anything that she might receive as a THE MECCAN PERIOD
dower or gift from him or her parents and
relatives was absolutely hers. 27th day of Ramadan (February, 610 A.D.) in the 13th year
before the beginning of the Muslim Era. / The NIGHT OF
Ø TRADE AND COMMERCE were the most common DESTINY (Laylat Al-Qadar)
means of livelihood of the pre-Islamic Arabs. § Muhammad received his first revelation.
§ Arabs had absolute power of disposal over § Muhammad was asleep in a little cave of
his property. Hira, in Mount An-Nour, about two miles
§ Arabs used to lend money on interest, and from Mecca, he saw a vision that Gabriel
usury was rampant under the name of (Jebreel, the Archangel) aroused him from
“Riba”. slumber and asked him to proclaim
(Igraa).
Ø On his DEATH his possessions devolved on his male
heirs, capable of bearing arms, and females and FATRA – revelation ceased for a time.
minors being excluded.
SHAHABAT (the Prophet companion) – Jabir bin Abdullah
Ø The HEIRSHIP was determined by consanguinity, Al Alsari narrated that while the Prophet was walking, all of
adoption or compact. a sudden the Prophet heard a voice from heaven.

HANIF (singular HANAFA) – who felt disgust at idolatry and PAROXISM (a violent fever) – which is explained by the
tried to find out what had been the teaching of Abraham. theologians as a symptom of divine inspiration.
§ They were the agnostics of the day, each
seeking the truth by the light of their inner 1. Muhammad related to his wife Khadijah his
consciousness, Muhammad, son of experience.
Abdullah was one of them. 2. Waraga Ibn Nawfal, a Hanif, and the cousin of
Muhammad’s wife.
The religious unrest and moral degradation, had stirred a 3. Muhammad’s goal was to be humble tool for the
section among the Arabs and Arabia was just ripe for execution of the divine purpose but he did not
know how to proceed.

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 them to take refuge in Abyssinia, where they were
Third Revelation hospitably received by the Christian ruler Negus
concerning the (Najjashah).
Ø Unity of God
Ø The Day of Resurrection Ø The Quraysh enraged by the Muslims sent
Ø The life hereafter emissaries to Negus, King of Abyssinia, to
Ø Paradise for the Faithful and persuade the King to expatriate the Meccan
Ø Hell for the Sinners fugitives to them as prisoners, telling the King
that the Muslim immigrants have violated their
Early Meccan Suras dealt mainly with three themes: laws, ancestor’s practices and religious beliefs.
v The unity and attributes of God
v The moral duties of mankind
v The retribution in the next world Ja’far bin Abu Talih (the Prophet’s cousin) was chosen as
their spokesman.
Ø Subsequent Meccan Quranic verses revealed ,
during the time when Muhammad was conducting The King, asked Ja’far (Rad A) to recite some portion of the
his private lecture in great secrecy were brief and Holy Qur’an.
in which were brief and in which references to the - He recited a few verses from the beginning of
earlier part of his public life were many. Surah “Maryam”, the Chapter on Mary, in which
the story of the miraculous birth of Jesus has been
Declaration of Islamic “Iman” (faith) – The sum and told. The recitation of the Holy Qur’an touched the
substance of his teaching during this period was “I believe heart of the King and the Christian priest. He told
in God, His Angels, His Books, His Prophets and, Doomsday the Quraysh that he would hand over the refugees
and, all good and evil are from God”. to them. Negus remained a true friend of Prophet
Muhammad and favorably disposed toward Islam
Tawhid (Oneness of God) – He embarked upon teaching throughout his life.
tawhid as commanded by God.
Ø He started the task of keeping people away from The Quraysh sent an emissary to Abyssinia
polytheism. (1) to persuade the King to hand over the Meccan fugitives
to them as prisoners, Negus refused to honor the request
Among Muhammad’s early converts were: and the mission returned discomfited.
v Khadija (wife) (2) Imposed economic ban and social ostracism against
v Ali bin Abu Talib (cousin) Muhammad and his followers, however this became
v Zaid bin Harithah (freed slave) ineffective as against the perseverance of the Prophet to
v Abu Bakr bin Abu Quhafah propagate Islam.
v Uthman bin Affan (close friend)
v Tadhah bin Ubaidullah (close friend)
The suffering endured by the Prophet and his kinsmen, the
Ø Quraysh was unperturbed by the preaching of Islam Banu Hashim, and the Banu Mutalib move the hearts of a
by the Prophet. Instead, they make mischiefs, and section of the Quraysh, and won public opinion in their
inflict physical insults upon the Prophet and his favour.
followers.
Ø Quraysh profits from the idolators that come to 1. Some Quraysh grew weary of the boycott of old
Qa’ba in Mecca to give their offerings to their idols friends and neighbors. They managed to have the
fearing the losses that they would suffer should document which the document which had been
Islam be tolerated to propagate, were infuriated placed in the Qa’ba brought out for
by the idea of Muhammad. reconsideration; it was found that all the writing
Ø Quraysh take action to induce the Prophet to give had been destroyed by white ants, except the
up preaching Islam. They offered him the words Bismika Allahumma (In the name of Allah).
chieftainship of Mecca, and the hand of a girl of The ban was removed and the Prophet was again
high lineage, but all offers of honor and free to go about the city.
aggrandizement failed to induce Muhammad from
abandoning his missionary work. 2. During the pilgrimage in 620 A.D., the Holy Prophet
met a group of six Yathribites of Khazrag tribe,
Ø The Prophet, finding himself unable to relieve his whose kinsman had accepted Judaism but they
followers from oppression and torture, two years were still heathens at Aqabah a pass between
after he begun his public preaching, he advised

3
 Mecca and Mina, a few miles from the former and TRADITIONAL DIFFERENCE BETWEEN A RASUL AND A
invited to accept Islam. NABI:
§ They accepted the new faith and
promised to preach Islam in their native 3. BOTH RASUL AND NABI – received direct “wahy”
city in return. (revelation or inspiration) from Allah.
§ In the following year, a deputation of 4. RASUL – also receives the Shari’a (Divine Law)
twelve, ten of the Banu Khazraj and two 5. NABI (Prophet) – only preaches the “Shari’a” given
of the Anu Aws, came and waited for to a “Rasul” before him, by Divine Guidance
Muhammad at Al-Aqabah, the appointed through “wahy” (revelation).
place for meeting. 6. ALL RASUL (Messengers), also share Prophethood
§ Due to the joint efforts of those two (Nabiwat), but a “NABI” would not necessarily be
groups of the Yathribites, Islam became a “RASUL”.
so well known in Medina that there hardly
remained a family, which was not THE MEDINITE PERIOD
conversant with Islam and its tenets.
In Yathribe, later became known as Medina and Medinat al
Nabi (City of the Prophet), Muhammad started his work as
THE HIJRA (HEGIRA) PERIOD an apostle (Rasul) of God to convey God’s message to
humanity.
A year later in 622 A.D. – a deputation of 72 persons
including the early converts of Yathribe and their teacher Medinite Suras – covering one third of the Quran which
Mua’b b. Umayr came to invite Muhammad to Yathribe. were more elaborate and dealing broadly with religious,
civil, and criminal, fiscal and military laws and regulations,
Monday 8th Rabi (September 20, 622 A.D.) – Started the including the five pillars (basic principles) of Islam, and
Hijra era of the Muslims and the Risalat of the Prophet governing social practices such as slavery and polygamy,
began from the date of the exodus and the Meccan period the giving of alms.
came to an end.
§ The main achievement of Muhammad in Meccan Suras – give guidance to the individual soul and to
Mecca is that it marked the start of the the Prophet as warner.
publication of Islam and the Ministry of
Muhammad which was broadly completed EARLY BATTLES OF THE MUSLIMS IN MEDINA
by the time of the Hijra but its institution
which were still in a rudimentary state - The Muslims migrated to Medina and established a
were organized in the Medinite period community, they were joined by the Medinans.
that followed. - Quraysh of Mecca still considered them a threat
attacked the Muslims in Medina.
With the Hijra,
§ The Meccan preparatory period ended, THE BATTLE OF BADR
§ And at Yathribe or Medina, the period of
propagation of expansion of Islam and NOTE: Medina Suras differ from the Meccan suras.
the Muslim law began.
§ 17th of Ramadan 12 A.H. (14th March 624

A.D.)
While at Mecca,
§ They WON their first battle against the
§ Muhammad was only a Nabi (Prophet) of
Quraysh.
God,

In Medina
THE BATTLE OF UHUD
§ He began his public ministry as a Rasul
§ 15th Shawwal 3 A.H. (21 March 625 A.D.)
(Apostle) of God to convey God’s message
§ They were DEFEATED.
to humanity.

THE BATTLE OF KHANDAG (Battle of Trench)
NOTE: This was the turning point in the life of § Shawwal 5 A.H. (627 A.D.)
Muhammad and the Muslim Law.
§ Due to sandstorm, destroyed the tents
and scanty supplies, and droves the pack-
riding animals of the Quraysh and its allies,
which gave the coup de grace to the
invaders, forcing them to abandon the
invasion the following day.
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 § Mother was Um Al-Khair Salma bint Sakhr
TREATY OF HUDAYBIYAH (Dhu Qa’dah 6 A.H. April 628 § The Prophet named him “Abdullah”, and
A.D.) was called A-Saddig (faithful).
§ Also given the title “Atiq” – means the
The treaty consisted of the following: first caliph.
1. Both parties would cease hostilities for a period of ten § During the first period of the first caliph, a
years. large number of the “Huffaz” (Quran
2. The parties would not interfere with the free movement memorizers) were killed in the battle.
of one another. § During his caliphate, the Quran was his
3. The Prophet (Peace and blessings of Allah upon him) primary source of law to govern the
would return that year, but the Muslims would be Muslims.
permitted to enter Makkah the following year. § Died of sickness, Tuesday, 22nd Jumada Al-
4. Any Muslim man coming from the Quraysh to join the Akhir, 13 A.H. at age of 63 years after a
Muslims would be sent back, but any man going from the period of over two years khilafat.
Muslims to Quraysh would not be sent back.
5. Any tribes other than the Quraysh that wished to enter SECOND CALIPH:
an alliance with Muhammad (Peace and blessings of Allah UMAR Ibn Al-Khattab
upon him) were free to do so, and any that wished to enter § was born 40 years after Hijra.
an alliance with the Quraysh were free to do so. § Khattab Nufayl – father
§ Khantaman Hisham b. Mughirah – mother
§ Title: Al-Faraug.
NOTE: Many of the companions were opposed to § He preserved the original authentic copy
this treaty and considered its clauses unfair and of Quran compiled during the period of
biased against the Muslims. the first caliph.
§ Achievement: Expansion of the Muslim
dominion into formerly non-Muslim
territories and the application of Muslim
CONQUEST OF MECCA law to the Muslim colonies in those
1. The Quraysh violated the term of the treaty of territories.
Hudaybiyah.

NOTE: The treaty of Hudaybiyah was abolished. THIRD CALIPH:
UTHMAN “Al-Nurayn” Ibn Affan
2. Muhammad asked the Meccans to surrender § was a member of the Umayyad family.
peacefully the city, guaranteeing to them their § He was not the most popular of the Caliph
safety. because of his attempt to create only one
3. The Islam influence spread near and far. strict interpretation of the Quran.
§ His military successes put him in the clear
DEATH OF MUHAMMAD AND END OF THE PERIOD OF after many unpopular decisions to appoint
REVELATION much of his family to administrative
(12th Rabi Al Awwal, 10 A.H.; June 8, 632 A.D.) positions and his act of depleting the
a.) The Prophet became ill believed to have been treasury as a result of his lavish spending
caused by a poison he got from the meal served by habits and lack of financial planning.
him by a Jewish woman during his campaign at § Uthman succeeded in creating one
Kheybar about the 7th of the Hijra. interpretation of the Quran.

THE SECOND PERIOD OF MUSLIM LAW FOURTH CALIPH:
ALI ibn Abu Talib
“Thirty Years Period of the Orthodox Khilafat” (Caliphate) § During his reign, the problems of the
– The period of the Four Rightly Guided and Pious Calips caliphate during the time of Caliph
(Khulafa-i-Rashidin) 10-40 A.H. Uthman fell on his shoulder, which
CALIPH – successor troubled him until his death.
CALIPHATE – the succession of rule, monarch or ruler. § Continued the policy of expansion of the

FIRST CALIPH:
ABU BAKR “Al-Siddig” Ibn Uthmann NOTE: The death of Prophet Muhammad, the
§ Was born in Mecca period of divine legislation came to an end. He is
§ His father was Uthman, called Abu Quhafa considered the last and the seal of all the
Prophets and none follows after him.
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 Muslim dominion, and the Muslim rule. in the Yemen, where it has more than
§ He knew Quaran by heart and wrote a three and a half million followers.
commentary upon it. THE FOURTH PERIOD: THE ABBASIDES CALIPHATE AND
§ Abu’l Aswad-al-Dyali – compiled the first FOUR MADHAHIB
Arabic grammar for non-Arabs. § Abbaside Caliphs loved to patronize
§ Transmitted 586 Hadiths. learning and extended special
§ Systematically defined the powers and encouragement to jurist, partly it may
jurisdiction of Qadis (judges). from political motives.
§ Completed the task begun by Hazrat Umar § Baghdad, their capital, became the centre
in regards to the streamlining of the of culture and attracted jurist and
judicial machinery. traditionist.
§ His death brought to a close the age of the § The foundation of the four Sunni schools
Four Orthodox Caliph. of law.
§ This period marked by a theoretical and
THE THIRD PERIOD: THE PERIOD OF THE UMAIYAD scientific study of the law and religion
CALIPHATE commenced about the beginning of the
§ Transferred the seat of the center of the second century of the Hijra and practically
Islamic political authority from Medina, to ended with the third century.
Damascus, in Syria.
§ The period of Umaiyad is known for the THE SUNNIYAN (Traditionists)
appointment of qadis or judges, fr the § Sunni – means “One of the Path”.
settlement of disputes with unrestricted § The term generally applied to the large
power to decide cases according to their sect of Muslims who acknowledge the
own personal opinion. first four Khalifa to have been the rightful
§ Divine laws were subjected to reason successors of Muhammad.
introduced by the norms of the political § Those who did not subscribe to the
authority. doctrine of the Kharijites, Shia, or the
§ Narrations of traditions became common. Mutazila called themselves Sunni or
§ Caliph Umar bin Abdul Aziz – launched a Traditionists.
campaign and wrote to the four corners of § They do not subscribe to the idea of the
the Muslim empire to report genuine Mutazila’s reliance on reason and intellect,
traditions from the Prophet. rather than on authority of tradition, and
§ Distribution began to be made in the rules their adherence to tradition earned them
of Fiqh by Ilm and Usul. the name, Ahl-al-Sunna, because their
§ During this period there were two kinds of preference of the Sunna or practice of the
muftis: (1) Ahl al-Rai or people of opinion, Prophet than on logic and reasoning.
and (2) Ahl al Hadith or the traditionists.

SHIA – conveys a sense of sectarian referring to the CHAPTER III: JURISPRUDENCE (FIQH)
followers of the faction of Ali according to the Shia
Ibadat - law relating to worship
ideology; it also means “faction or partisan”.
Muamala’t - law regulating the relation of man
IMAMIYYAH SHIA – attached the fundamental importance
to the Imam, held by the doctrine of infallibility of the
Imams. Ahlu Shiah – who claimed that there was direct
ISLAM & ISLAMIC LAW
appointment of Ali ibn Talib by the Prophet for leadership.
§ Sources: Quran and Sunna, and the 1. is so interwoven that it is not possible to
consensus of opinions. divorce one from another. (Sir Abdur Rahim)

ZAIDIYA SHIA – was founded by Zaid b. Ali, grandson of Al
Hussain b. Ali Talib. It comprises the narratives (traditions) Reason Why Legal & Ethical Parts Of Shari’a are
and the fatwas attributed to Imam Zaid ibn Ali. Intertwined:
§ They do not recognize mut’a (Temporary
As observed by Prof. H.A.R. Gibb…
marriage).
§ They are the nearest Shia group to the 2. “Law in the eyes of the Muslim scholar was the
Sunni schools; its stronghold nowadays is practical aspect of religion and social doctrine
prescribed by Prophet Muhammad (P.B.U.H.).”

6
 3. it aims at regulating the relationship of man 14. to construct human life on the basis of
with Allah and man with man Marufat (virtues) and to cleanse it of the
Shari’a Munkarat (vices).

4. Islamic Law or Muslim Law
5. etymologically means, “the road to a watering Proofs of Shari’a (Al-Adillah Al-Shari’a): Sura Al-Nisa (4:58-
place, a clear path to be followed” 59)
6. technical meaning, “a divine system of law in its
sources and primary rules” “O you believers! Obey God and obey the Messenger and
Mashru those of you who are in charge of affairs. If you have a
dispute concerning any matter, refer it to God and to the
7. what is regulated and provided in the Shari’a Messenger.”
Shari
• Quran
8. anything connected with the canon law or 15. “Obey God”
anything in keeping with it, or legal. • Sunna
16. “Obey the Messenger”
Quranic Basis of Shari’a: • Ijma
17. Obedience to “those who are in charge of
1. “For each we have appointed a Divine Law
affairs”
(Shari’a) and a trace out way”
• Qiyas
2. “And now have set thee (Muhammad) on a clear
18. requires the referral of disputes to God and to
road (Shari’a) of our commandments”
the Messenger
3. “So follow it, and follow no the whims of those

who know not”
4. “Thus, We nave sent you (O Muhammad) to a Classification of Proofs of Shari’a:
nation, before whom other nations have passed
away, that you may recite to them that which 1.
We have inspired in you… Thus, have we 1. Dalil (proof or evidence)
revealed it, a decisive utterance (Quran) in 2. Amarah (sign or allusion)
Arabic.” 2.
1. Transmitted proofs (adillah nagliyyah)
Fisq 2. Rational proofs (adillah agliyyah)

9. “straying the right course” or “leaving the 3.
path of righteousness” I. Mustaqil (independent proofs)
10. to stray from the path of what is right and II. Muqayyad (dependent proofs)
proper (Al-Munjid) III.
4.
• Qat’i (definitive)
Elements/Parts of Shari’a:
• Zanni (speculative)
1. Ilm
11. knowledge of the Shari’a (to learn the four

roots or sources of Shari’a and its branches)
2. Amal Shari’a vs. Canon (Qanun) Law:
12. to observe and practice Shari’a and
disseminate the knowledge of Shari’a Canon Law (Arabic, Qanun)
3. Iklas
19. man-made law, a rule, a regulation, a law, a
13. to learn the things communicated by the
statute, a body of ecclesiastical law
Shari’a, to do what is learned, and to do
Shari’a
everything for Allah (Divine Providence)
20. broader in that it encompasses within its
meaning, all the primary sources of Muslim

laws, both in the secular and ecclesiastical field
21.

Objective of Shari’a:

7
DEVELOPMENT OF FIQH Two Divisions of Science of Fiqh:

Abu Hanifa 1. Usul Al-Fiqh

39. the Doctrines of the “Roots”, the sources of
22. study of Muslim law jurisprudence as a science law, and the methodology of their application
came to be known during his time 40. literally means, intelligence, knowledge,
23. famous Muslim jurist whose school of law is discernment.
considered the most important of the Sunni 2. Furu Al-Fiqh
schools of law 41. the Doctrine of the Branches (i.e., applied fiqh,
24. prominent in formulating theories and the systematic elaboration of the positive law)
principles of jurisprudence on Muslim law
25. founder of the Muhammadan science of law
Maxims of Fiqh (Qawa’id Al-Fiqhiyyah)

Fiqh 42. body of abstract rules which are derived from

the detailed study of the fiqh itself.
26. science of Muslim law or Muslim law 43. consist of theoretical guidelines in the
jurisprudence different areas of fiqh
27. knowledge of Islamic law (Shari’a)
28. literally means, “understanding” or
“knowledge” Primary Sources of Fiqh:
29. sometimes spelled as “Fikh” or “Fique”
1. The Quran (First Primary Source of Muslim Law)

Scope or Coverage of Fiqh:
Quran
30. all aspects of religious, political and civil life
31. includes the whole field of family law, law of 44. from the Arabic word “kurra”, means to read,
inheritance, property and contracts, criminal recite or discourse
law and procedure, constitutional law and 45. to the Muslim, it is a Holy Book (kitab)
laws regulating the administration of the state containing the infallible words of God, the
and conduct of life. guidance or God’s admonition and warning,
32. manuscript of divine revelations, a
Division of the Science of Jurisprudence: distinguisher.

1. Religious
33. deals with religious observances and the Nature of the Quranic Verses:
affairs of hereafter, such as belief, prayer, Intangible and Immutable
alms-giving, fasting and pilgrimage, etc. 46. the provisions of the Quran are considered
2. Legal system organic rules, containing universal principles
34. concerned with the affairs of this world and 47. look at the Quran as the Constitutional Law
subdivided into three sections: 48. why the Quran is a code of conduct laying
Criminal law down fundamental principles and not the
35. felonies, crimes, retaliation, blood-money detailed provisions
Family Law
36. marriage, divorce, relationship, law of personal Revelations of the Quranic Verses
status
Transactions Ramadan (12 B.H./610 A.D)
37. property, contracts, etc.
1. Revelation of Quran began
Fiqh vs. Ilm
2. Continued over 20 yrs
38. Fiqh came to be used exclusively for a
knowledge of the law while Ilm came to be o 12 yrs+ - took place in Mecca o Rest- revealed in Medina o
applied in a narrow sense to mean knowledge Prophet’s death- ended
that comes through reports or traditions
(Hadith) and athar. Revelation Period

Ø Meccan period – meccan verses(ayats) or
chapters(suras)
8
 Ø Medina period - medina verses(ayats) or (tabiuns) until written down, preserved, and
chapters(suras) reached to the present.

• Early Meccan suras – dealt on fundamental principles of Kinds of Reasons (Ashab Al Nuzul)
Islam 3 Themes: 1. theunityofGod 2.
themoraldutiesofmankind 3. 1. Revelation in response to an event or a general situation
theretributioninthenextworld
2. Revelation in response to a particular questions that has
• Subsequent Meccan suras – dealt on Islamic faith (Iman) been asked by someone 3. Revelation for other reasons,
known or not known to us

• Medina suras – 1/3 dealt on civil and criminal, fiscal and ü The Prophet’s companions recorded the Quran on
military laws and regulations, and 5 pillars. materials and memorize them.

5 Pillars of Islam: ü Zayd ibn Thabet collected the verses of the Quran by
order of the 1st Caliph, Abu Bakr.
1. to testify that there is no God but Allah and
Muhammad is the messenger of Allah ü Year 30 A.H. (650 A.D.) Quran was collected in 1 unified
2. to perform prayers version and reading.
3. to pay zakat (alms tax)
4. to fast in Ramadan Divisions of the Quran
5. to make pilgrimage to the Qa’ba and the Holy
Mosque in Meccca • Aya (means signs) – shortest division

• Revelation: • Sura (“row” or “fence”) - passage-wise division

1. through Angel Gabriel (Jebreel) – highest form or • Quran- 114 suras

revelation
o shortest suras- 4 ayats
2. bell-like ringing sound
o longest suras- 286 ayats • Quran begins with sura al-
Wahi – suggestion thrown in the mind of man Riwaya Fatiha and ends with sura al-
(dreams) or kasf (visions) – sight seen when asleep or in
Nass
state of trance
Divisons of the Legal Prescriptions
Reasons for Revelation of Quranic Verses Helps one to
understand: 1. Prayers and worship instructions

a. The direct and immediate meaning and implication of an 2. Fundamental principles regulating relations between
ayat men

b. The imminent reason underlying a legal ruling Spirit of the Quran

c. The original intent of the ayat 1. Removal of inconvenience

d. Whether the ayat is specific or general, it is to be applied 2. Doctrine of lesser hardship (in line with the first rule)

Quran’s Subject: Man
Ø Ashab al-nuzul precedes the revelations and
involves a particular issue at the time and for which Quran’s Central Theme: The exposition of reality and the
no particular rule is available. invitation to the right way
Ø Verse is revealed to Prophet as solution to
problem. v Shahabat (companions of Prophet) Quran’s Aim and Objective: Invite man to the right way
who witnessed the occurrence of problem became
the repositories of the ashab (reason) for the
revelation of verse.
Ø The Ashab were transmitted to successors
9
Ta’weel 3. The Inferred Meaning • derived from its spirit and
rationale • through analogy and identification of
• Arabic root word “Awwala” meaning Interpretation effective cause

Bases of Ta’weel 4. The Required Meaning • Silent • Must read into to fulfill
its proper objective
1. Quran
5. Divergent Meaning
2. Hadiths
• Diverges from explicit meaning
3. Ijma
Classifications of Textual Implications:

Purpose of Ta’weel 1. Dalalah al-mantuq (pronounced meaning)

1. Interpret the Quran with reference to its words and • Dalalah al-iqtida (required meaning)
meaning, contexts, and traditions of Prophet
Muhammad • Dalalah al-isharah (alluded meaning)

2. Discover the intention of the lawgiver and discover that

2. Dalalah al-mafhum (implied meaning) not indicated in the
which is not self-evident
text but arrived by inference.

a. Mafhum al-muwafaqah (harmonious meaning) -
Rules on Interpretation of Quran text is silent but in harmony with pronounced

Definitive (qati) meaning

a.1. lahn al-kitab (parallel meaning – if equivalent to
1. Unequivocal, specific and clear dalalah al mantuq

2. Admits one meaning a.2. fahwa al-kitab (superior meaning) – if superior

to dalalah al mantuq
3. Rule: Its validity may not be disputed o Everyone bound b. Mafhum al-mukhalafah (divergent meaning)
to follow o Not open to ijtihad (analytical
deduction)
Conditions of Mafhum al-Mukhalafah
Speculative (zanni)
1. That the divergent meaning does not exceed the scope of
• Open to different interpretations the pronounced meaning

• Rule: o IF: interpretation bases from Quran, elaboration

2. That the divergent meaning has not been left out in the
is found in a similar or different context, or from
authentic Hadith o THEN: becomes integral part of first place for a reason of ignorance.
the Quran Literal (haqiqi)

• Literal meaning of the word is the norm Metaphorical
Dalalah al-Mafhum
(mazazi)
– an implied meaning which is not indicated in the
• Departing from the literal meaning text but arrived by a way of interference.

Sub Classification
Levels of Meaning:
1. Mafhum al-muwafaqah (harmonious meaning)
1. The Explicit or Immediate Meaning • obvious meaning a. The text may be silent but it is
nevertheless in harmony with its
2. The Alluded Meaning • indicated by the signs and pronounced meaning.
allusion that the next may contain
10
 b.
It may be equivalent to dalalah al-mantuq commentaries more extensive and comprehensive.
(pronounced meaning), or it may be The second generation of the successors (Tabuins)
superior set themselves the task of writing down
i. If it is equal it is referred to as commentaries, four distinct types of Tapsir
Iahn al-kitab (parallel meaning) appeared.
ii. If it is superior, it is referred to as
fahwa al-kitab (superior meaning)
2. Mafhum al-mukhalafah (divergent meaning) Four distinct types of Tapsir literature produced during
this period:
Conditions set by the Shafi’i for the application of Mafhum 1. The Grammatical Tapsir
al-mukhalafah 2. The Historical Tapsir (Akbars)
- The divergent meaning must not exceed the 3. The Fiqh (legal) interpretations produced by legal
scope of the pronounced meaning. pragmatists (Fuqaha)
- The divergent meaning has not been left out in 4. The Rationalist (Tapsir)
the first place for a reason such as ignorance.
Different Methods of Tapsir
Ta’weel - derived from the Arabic word “awwala” (to o Al-Tapsir Bir Mathur (Tapsir bi-i riwaya)
return to something) o Al-Tapsir Bil Maqul Wa Bil Dirayah (Tapsir
bi-ray)
1. Tapsir-al-Lughri (the Linguistic Tapsir) Thelinguisitc
Tapsir - derived from the Arabic word “Fasara” (to explain, interpretation of the Quran
expound, to make clear, or to show the objective) 2. Al-Tawilm Falsafa wal Tasawwuf (The Sufi or
Philosophical interpretation)
- a person doing the Tapsir is a ‘Mufassir’ (pl. Mufassirum) 3. Tapsir Ayat Al-Hallam (commentary on the verse of
or commentator. injunctions)
Meaning: 4. Tapsir al-Riwayah wal Darayah (commentary
through narration and proof)
1. Meaning, The word used for explanation, 5. Tapsir bil Ra’y (commentary on the basis of
interpretation, and commentary on the Quran. personal judgement)
2. Brief meaning, Commentary to the verses of
the Holy Quran.
3. Technical meaning, The science through which Other Classification of Tapsir
the text of the Quran, the injunctions 1. Tapsir of Quran by Quran – There are som
contained. therein, and the causes for their questions in the Quran that answers to which are
relegations can be understood. found in the Quran
2. Tapsir of Quran by Sunna – This refers to the
Tapsir distinguished from Ta’weel Prophet explanations of Quranic passages.
3. Tapsir of Quran by the Aathar – This refers tot the
Tapsir is to explain the “outer” meanings of the explanations of the Shahaba (The Prophet
Quran while Ta’weel is to interpret the “inner” or explained what was unclear to the Shahaba) and
concealed meanings of the Quran. that of the Tabuins (The Shahaba explained what
was unclear to the Tabuins).
4. Tapsir of the Quran by Language – Explanaiton of
According to al-Raghib al Isfahani: the Quranic verses according to their literal and
logical meaning.
Tapsir is the study of the meaning of the 5. Tapsir of Quran by Opinions – This refers to
words while ta’weel is the study of the opinions based on a carful study of the first four
contextual meaning or the study of the steps and do not contradict these steps.
whole sentence of a text as a unity.
Beginning of Tapsir Still another, classifies Tapsir also as follows:
It began in response of the growing distance • Tapsir bil-riwaya (by transmission)
perceived between he contemporary and the
prophetic period. Half of the 1st century was Hijrah
saw the increased efforts making the
11
 All explanation of Quran traced back d. Should have an ability through the
through all the chains of transmissions to knowledge of the Hadith, to recognise
a sound source. that which is Mubham (ambiguous) and to
elaborate on that which is Mujmal (brief or
• Tapsir bil-ray (by sound opinion) abridged)
This is arrived by means of ijitihad e. Have knowledge of Asbab al-Nuzul
(analytical reasoning) based on sound (Reaosns for Relevation) of the different
sources. verses from Hadith.
- Tapsir mahmud (praiseworthy) It is in f. Have a thorough knowledge of Nasikh and
agreement with the sources of Tapsir, rules of Mansukh (abrogation of one verse by
Shari’a and the Arabic Language. another)
- Tapsir madhum (blameworthy) It is done g. Posses knowledge of the ilmal Tajwid (the
without proper knowledge of the sources of science of the recitation of the Quran)
Tapsir, Shari’a and the Arabic Language. h. Posses knowledge of the Usul al-Fiqh
(principles of Islamic Jurisprudence)
• Tapsir bil-ishara
Interpretation OF the Quran Beyonce its i. Be a man of Tagwan (piety)
outside meaning, and one practicing IT
concerns himself with meanings attached Necessary Conditions for Making Correct Tapsir
tao the versus of Quran, which are not
visible to anyone, but only to him whose 6. Tapsir of Quran by Quran
heart Allah has opened. 7. Tapsir of Quran by Sunna
8. Tapsir of Quran by the Aathar
Isra ‘iliyat 9. Tapsir of the Quran by Language
10. Tapsir of Quran by Opinions
• “Meaning of Jewish Origin”

• This refers to explanations derived from non-
Muslim sources and especially from the Jewish Translation of the Quran (Tarjama)
tradition, including other ahl-kitbag in general.
1. The expression of the meaning of its text in a
language different form Arabic language used
Limitations to the Exercises of Tapsir of the Quran by in the Quran.
Opinion Early Translation of the Quran
Hadiths showed that the prophet sternly warned Rector of Al Asher proposed the translation of the
against the interpretation of the Quran based on Quran to disseminate guidance of Islam amongst
secularism and unsubstantiated opinions in order nations and to eradicate the harm caused by
to preserve the Quran. erroneous translations. This was opposed by the
Association of the Shari’a lawyers stating “Arabic

speech is the symbol of Islam and its people, that
Importance of Tapsir the glorious Quran represents construction as well
as its meaning and that in a translation, it loses
It serves as a means by which the law of God, the some of its original meaning.”
Quran can be properly understood as regards its
meaning and implications and thereby serves as a
right guidance for mankind.
The supporters on the other hand argued:

a. The prophet did not deny the Persians
Qualifications of Commentator to the Holy Quran request to Salman at-Farisi to write
the Fatiha (opening surrah) in Persian.
a. Posses sound and thorough knowledge of b. Imam Abu Hanifa had unconditionally
the Arabic language. (Alim – a scholar in sanctioned the performance of
the Arabic Language) prayers in Persian.
b. Well-grounded in Ilmal-Ma’ani (knowledge c. The mission of Islam was not
of rhetoric) addressed to the Arabs alone but to
c. Have a sound and through knowledge of all nations.
the Hadith literature and the Science of
Hadith.

12
Qualifications required of Translators of the Quran obscure and specifying the common and
(Tarjama al Quran) limiting the absolutes.

- It must be done by a Muslim. Example: the prophet provided the details of prayer
- It must be done by someone with adequate and the rules and regulations for the payment and
knowledge of both the language of the Quran collection of zakat.
and the language for the translation.
- It must be done by someone well aquainted
with related sciences, such as Hadith, Tapsir, STAGES OF COLLECTION OF HADITH
etc.
1. First stage- During the lifetime of the Prophet
-Decision in words or examples shown by his
Hadith conduct became the authority in certain matters.
-literally means “tradition” -His words is transmitted by his followers to
everyone.

Companions of the prophet who preserved the
Meaning hadith and sunna of the prophet:

1. The precepts of Prophet Muhammad, or his dicta Umar ibn khatab, Abd-Allah ibn Umar, Abd-Allah
in all matters of law and religion, expressed in his ibn Abbas
own words, or manifested by his own conduct
(Sunna) Aisah- Prophet’s wife who sought to preserve the
2. The narrative account of what he said or did, or his sunna of the prophet
tacit approval of something said or done. -Narrated 160 traditions

Abu Huraira- member of Ashab as-Suffa (band of
Purpose of Hadith religious teacher)
-would remain with the prophet and
Through Hadith, Prophet expounds the principles remember and write everything the deeds
of the Quran, by detailing the general, clarifying and words of the prophet
the obscure, specifying the common and limiting
the absolute. The traditions of the Prophet comes -The prophet objected first of the writing of hadith
next to the Quran as a source of Muslim Law. because of fear that it be mixed up with the Quran
but eventually agreed of its writing as ordered by
God.
“O you who believe, obey God and his Messenger”
(Q.VIII:20) and “whoever obeys the Messenger c. Second Stage- After the death of the Prophet
indeed obeys God.” (Q.IV:80)
The Quran and some judgement/saying of the
prophet is the source of every decisions.
1. Double process of collecting the hadith occurred.
Hadith, The second Primary sources of Muslim Law and 2. Hadith was passed from individuals to public
Jurisprudence possessions

d. Third Stage- Passing of the generation who
Hadith- the precepts of Prophet Muhammad (pbuh) or his had seen and heard the prophet
dicta in all matters of law and religion, expressed in his own No more reports to be investigated from different
words, or manifested by his own conduct. persons, and the whole of Hadith was the property
of different teachers who taught in different
Purpose:
centers.
Precedents furnished by the prophet’s practice are binding 3. Hadith can be learned from this centers.
authority 4. Writing of hadith became common
5. Hadith continued to be transmitted orally among
a. His dicta in all matters of religion and law are the people during the lifetime of the four orthodox
guided and suggested by God. caliphs.
b. The hadith expounds the principles of the 6. Umar ibn Abd Al-aziz, the Umaiyad caliph, was the
Quran, by entailing the general, clarifying the first who ordered for the written collection of the
hadith.
13
 6. Allegation opposed to common sense is not
e. Fourth Stage- began before the middle of the accepted
second century 7. Allegation which lays down new theories is not
Hadith became more permanent in form because accepted
of the interest of collecting and writing them.
-books on hadith was far from being exhaustive as Compilation of the Hadith:
the authors only records hadith taught in their g. Masanid- compiled in accordance with the
centers. sources of authority for their narration.
h. Musannaf- classified in accordance with the
f. Final Stage- collection was completed in the topics of jurisprudence.
third century of hijra
Distinctions between Hadith and Sunna:
2 kinds of collection of hadith:
a. Musnad- arranged by under the name of the Sunna- a way or rule or manner or example of acting, mode
companion on whose final authority the hadith of life
rested. -deduce from the hadith
b. Jami- brought the knowledge of hadith in -refers not only the hadith of the prophet but also
perfection to the established practice of the community
-arranged hadith by subject Hadith- a saying conveyed to man either through hearing or
matter and in a more critical tone through revelation of the prophet
-the story of an eyewitness concerning what the
6 Reliable sources collections of hadith: prophet said, did or tolerated.
-narrative, communication or news consisting of
Bukhari- most reliable the factual account of an event
Muslim
Abu Dawoud Soliman Classification of Hadith:
Jami Tirmidhi According to the manner they came about from the
Ibn Maja prophet:
Sunan Nasai
1. Sunna al gauliya- consists of sayings of the prophet
Selection of Hadith: 2. Sunn Fi’iliya- traditions based from deeds of the
prophets manifested by his actions
-problem: Spread of inventing false traditions 3. Sunna Tagririya- traditions based from his tacit
approval of the act
Ilm al-Riwaya (2 parts of methodology or science
of transmission of Hadith) According to the manner of transmission (isnad):
1st: Determine the chain (isnad)- scholars of hadith 1. Mutawatir (continuous)- reported by large
requires the names of those who successively pass number of people or generally accepted that is
the text of hadith impossible to be false
2. Ahad (Isolated)-
2nd: Ascertaining the mata or the real text • Mashur- reported through less than 2 channels in
every stage

• Aziz- less than 2 channels in general
Rules Observed in Selection of Traditions: • Gharib- 1 person in very stage
-mutawatir and ahad entailed certainty of belief
1. Traditions must be narrated in 3 periods
2. Qualifications of narrators: Degree of Application and attitude of sunni jurist towards
1. Muslim tradition:
2. Of sound mind • Hanafi School- strict in accepting tradition and
3. Major applied various tests to determine the authenticity
4. Man of judgement of traditions
5. Of retentive memory -rejected traditions not mentioned or inconsistent
6. Good moral character and clean conduct in quran and qiyas.
3. Preferably a jurist • Maliki School- a traditionist and not strict
4. Narration of well-known people is preferred –concerned only on the documentation of sunna
5. Narration not in conformity with the quran or –accepted traditions which he believed as
tradition is not accepted authentic.

14
 • Shafi’I School- recognized deeds or actions of the Rule About the Question Whether the Quranic Text May
prophet as authoritative in principle be Repealed by the Prophet’s Tradition
–disregarded disconnected traditions that are not
continuous Views of Hanafis and most Shafi’i and Maliki jurists are as
–accepted traditions from chain of transmissions follows:
and genuine 1. of one Quranic text by another;
• Hanbali School-adhered in tradition 2. of one traditionary text by another;
–literal interpretation on traditions 3. of a Quranic text by a traditionary
–less belief in Ijma, qiyas and ra’y text;
4. Of a traditionary text by the Quranic
RULES ON ABROGATION (AL-NASKH) text.

Al-Naskh- means to supersede or supplant a shari’a rue by Note: There are some Shafi’is and Maliki who
means of another Shari’a provisions with the aim of agree so far as 1, 2 and 4 are concerned, but not
liberalizing the law for people. as to 3.

• Repeal of one quranic text by another- 2
verses cannot be reconciled Abrogation by Ijma or Qiyas
• Repeal of tradition by quranic text 1. A subsequent Ijma may abrogate an existing Ijma
• Repeal of quranic text by tradition when the former is founded on public interest or
• Repeal of tradition by another tradition Maslahah Mursallah, as when public interest
ceases to exist.
-Abrogation came about to effect social reform to 2. Qiyas cannot be abrogated by a subsequent Qiyas
people’s long time practice, drastic and abrupt. Thus for Qiyas is normally based on a textual rulling
gradual change is to be preferred. found in the Quran or Sunna is bound to remain
valid for as long as the original text remains valid.
How to know which Quranic verse is abrogating and
abrogated: Rules on How to Reconcile Conflicting Texts (Takhsis)
1. From the report of the Prophet or shahabat
1. If the two texts cannot be reconciled, the one
2. Consensus (ijma) of mujtahid
which is stronger in respect of authenticity
3. Knowledge of history or revelation
(thubut) is to be preferred.

2. If the two texts happens to be equal, the
Example:
prohibitory text is to be given priority over the
Sura 2 verse 240 provides that the widow will spend 4
permissive.
mos and 10 days in her husband’s residence 3. In all instances of conflict, it is essential to

determine the time factor. The later in time
Subsequently, the same sura provides that the widow
abrogates the earlier.
is entitled of extra maintenance of 7 mos. And 20
nights added to 4 mos. and 10 days if she wishes to stay Naksh and takhsis resemble one another that both
in her husband’s residence, otherwise, she may opt to tend to qualify or specify an original ruling. They
leave. differ in that there is no real conflict in takhsis.

The subsequent verse abrogated the 1st verse by giving Types of Abrogation (Naksh)
freedom to the widow to leave if she desires so. 1. Explicit (Sarih) – the abrogating text clearly repeals
one ruling and substitues another in its place
Rule on Repeal of Tradition by Quranic Text 2. Implicit (Dimri) the abrogating text does not clarify
all the relevant facts.
Example: 2 types of implicit
a. Total abrogation (naskh kulli) – the whole of a
1. The Fixation of direction of prayers: The Prophet
particular nass is abrogated by another; and
had enjoined that while saying prayers, should turn b. Partial Abrogation (naskh ju’zi) – is a form of
his face in the direction of Jerusalem. In 623 A.C., a naskh in which one text is only partially
Quranic verse was revealed directing the Muslim to
abrogated by another and remaining part
turn their faces towards the Qa’ba, the Temple of
continuous to be operative.
Abraham while saying prayers.

15
Abrogation in the Quran divided into 3 kinds:

• Abrogation of the verse together with the legal Origin of Ijtihad and Authority of Ijtihad
ruling.
1. Begun in the lifetime of the Prophet since it was
• Abrogation of the legal ruling without the recited
impossible to refer every case to him.
verse.
• Abrogation of the recited verse without the legal
ruling.
Meaning of Ijtihad
Cases When the Rule of Abrogation in Not Applicable
2. Derived from “jhad” and Ijtihada which means
• Perspicuous text of the Quran and Hadith exerting oneself to the utmost or to the best of
(Mukhamat). It is often worded in such a way as to one’s ability.
preclude the possibility of repeal. 3. To put-in the maximum effort to ascertain, in a
• Provisions pertaining to the attributes of God, given problem, the injunction of Islam and its real
belief in the principles of faith and the doctrine of intent.
tawhid 4. Complete use of one’s opinion.
• The Shari’a of Islam itself.
• The rational matters and moral truths.
• The nusus of the Quran and Sunna. When Ijtihad can be resulted to
Conditions Before Abrogation (Naskh) May Take Place By a qualified mujtahid whenever a question arises on
1. Text itself has not precluded abrogation. which there is no explicit text applicable.
2. The subject is open to the possibility of repeal.
3. The abrogating text is later origin than the
abrogated. When Ijtihad cannot be resulted to
4. Two texts are of equal strength in regards to
Regarding the existence of Allah, truism of
authenticity.
Prophethood of Muhammad, and the other
5. Two texts are genuinely in conflict and cannot be
Prophets of Islam, or on authority of the Holy
reconciled.
Quran.
6. Two texts are separate and not related.
Modes of Ijtihad

1. Ijtihad by strict adherence to the texts of the
Rules in Case of Conflict between Sources of Muslim Law
Quran or the Sunna
1. Where both evidences are of equal strength, the 2. Ijtihad by the extension of the original
later repeals the former, except; interpretation given to the texts by means of Qiyas
- Attribute of Allah, and 3. Ijtihad based on the purpose of the law
- A provision connected with circumstances which
negates the possibilities of time limitation.
2. Both are equal, but it is not known which is the Methodology for finding principles found in the Quran and
later. There should be attempt of reconciliation; if the Sunna
not in the Quran reference should be made to
Sunna; if none, to Qiyas and saying of the Principles stated explicitly in the texts
companions. Principles derived from the underlying hikmah of the
3. One evidence is stronger by virtue of the texts
secondary difference; or Principles introduced by the jurist
4. One evidence is stronger by virtue of essential

differences.
Who can exercise Ijtihad

Mujtahid – something more than a faqih or lawyer. Must be
Secondary Sources of Muslim Law
able to make legal decisions.
Ijtihad – interpretation through analytical reasoning by

competent Muslim jurists.




16
Legal Effect of Ijtihad HOW IJTIHAD ATTAINS THE STATUS OF LAW

Is the probability of the conclusion so arrived at being 1. Consensus of opinion (Ijma).

correct, but the possibility of such conclusion 2. Popularity of Ijtihad of group/persons.
being erroneous is not excluded. 3. Muslim government adopting a piece of
If a jurist makes a wrong deductions, he incurs no Ijtihad
spiritual responsibility for he has done his best to 4. Empowered in an Islamic state to legislate
reach the right conclusion. and enact a piece of Ijtihad as a form of law.

IJMA
Conditions for the Exercise of Ijtihad
- Third recognized source of Islamic law.
1. Resorted to only in the absence of an applicable - Derived from Jam which means collecting or
text; gathering together, and of composing and settling
2. Should not contravene the Shari’a; and a thing, which has been unsettled.
3. Reasoning should not become entangled in any - Defined as the agreement of Muslim jurists “The
kind of sophistry or compilation of expression complete consensus of all learned on a certain
which might affect the people’s attachment to point of law.” –Shafi’i
Shari’a.
RULE IN CASES WHERE THE SHARIA IS SILENT Note: Ijtihad or Ra’y is the individual opinion, when based
on Quranic order or traditions, it is Qiyas, when an opinion
Hukm by jurists differs from Qiyas, it is Ijma or equity, which is the
consolidated collective opinion of the jurists.
- Judgment of ruling
ORIGIN OF IJMA
- Difficult to derive on the basis of strict analogy and on
primary sources. Originated to the principles of mutual consultation (shura)
prescribed by Quran.
Mubah It is derived when learned people assemble in group and
decide the issue in light of the Quran and available
- “Permissible” traditions.
Shura
- A category of approach that states that, “whatever is not - A collective endeavor for seeking an objective truth.
mentioned in the text, and cannot be dealt with through AUTHORITY OF IJMA
analogy is permissible.”
1. Quran
- The original rule for everything, except for sexual activity 2. Hadith
and unless a legal evidence prohibits it.
IJMA BASED ON QIYAS
Note: According to the Hanafis, “The original rule for each
thing is pro 3 Views

IJTIHAD DISTINGUISHED FROM TA’WIL 1. Ijma may not be founded on qiyas for the simple reason
that qiyas itself is subject to doubts.

Ta’wil
2. Qiyas in all of its kinds may form basis of consensus for
qiyas itself consist of an analogy to the nass.
-An extension of Ijtihad
3. When the effective cause (illah) of qiyas is clearly stated
in the nass when the illah is indisputably obvious, then qiyas
-Applied when there is a need to prove the inner meaning
may validly form the basis of ijma.
of the text and the discover its intend and purpose.
Example of Ijma founded on Qiyas:
Ijtihad “The father is entitled to guardianship over the person and
property of his minor child. By Ijma, this right is also
-Is the exerting by a jurist of his utmost analytical reasoning established for the grandfather regarding his minor
with a view to formulate an independent opinion. grandchildren.”

17
 1. Explicit Ijma (Al-Ijma al-Sarih)
VALIDITY AND BINDING FORCE OF IJMA WHEN: - When mujtahid/jurist expresses his opinion verbally or by
action.
1. There is evidence that effective that the silent jurists are - Definitive and binding
acquainted with the issue.
2. Tacit Ijma (Al-Ijma al-Sukute)
2. A reasonable period of time passed after the view was - When some mujtahids give an expressed
opined to enable other jurists to devote sufficient time to opinion but the rest is silent
research and analysis. - Presumptive

CLASSIFICATIONS OF IJMA Note: According to the Hanafis, Ijma is only valid when it
regards with concession (Rukhsa) and not with the strict
1. Absolute Ijma or Regular Ijma rule (Azimah).
- Ensures certainty of belief (yaqin) and is the positive kind
- in strict conformity with the requirements of the law and WHO MAY PARTICIPATE IN CONSTITUTION OF IJMA AND
proved by infallible testimony. WHO ARE DISQUALIFIED

2 ways: 1. Must be a Muslim with a sound mind.
2. Must be a man of thorough judgment and must have the
· By words(gaul), where the consensus is achieved capability of making logical decutions.
by words.
Note: Those who are not learned in the law are debarred
· By deeds (fi’il), where the consensus is from participation in Ijma, the determination of which
established by unanimous practice. depends upon the exercise of judgment and the power of
making analogical deduction
2. Irregular Ijma
- No absolute certainy.
Qualifications of Mujtahid
3. Ijma-i-Ummah • He must be a conversant.
- -the most superior ijma
• He should have a thorough knowledge of the
- opinions of the people during the caliphate Quran, that he should not only be able to read it,
period but also understand and interpret its verses.

• He should be familiar with the traditions reported
4. Ijma-i-Ulamas
from the prophet and be able to distinguish the
- the consensus of the learned people.
authentic from non-authentic, the universally

known and the well-known from traditions of
5. Ijma-i-Medina
isolated origin, and should know the nature of
- the Ijma according to the place of celebration
authority attached to each class of traditions.
- the ijma used by people in Medina
• He must be conversant with the rules and methods

of analogical deduction.


CLASSIFICATION OF IJMA ACCORDING TO DEGREE OF
AUTHENTICITY To be fully conversant of the Quran, means knowledge of
10 things:
1. Ijma of the Companions of the Prophet
• Khass – words of singular meaning conveying the
2. Ijma Sakuti, consensus of the companions specific sense.
of the Prophet • Ann – words of plural meaning conveying
collective sense.
3. Ijma of the generation succeeding the • Mutlag – absolute commandments.
Companions of the Prophet • Muqayad – qualified commandments.
• Muhkam – verses that are decisive.
4. Ijma favored by generation following the • Mutashibat – verses that are allegorical and
companions of the Prophet susceptible to different interpretations.
• Mujmal – verses that are of concise and general
CLASSIFICATION OF IJMA BASIS OF ITS CONSTITUTION nature.
• Mufassar – verses that are explained.

18
 • Nasikh – abrogating. interest, then it may be repealed if the public
• Mansukh – abrogated. benefit requires it.


Conditions Relating to the Constitution of Ijma Fatwa – opinion or research of a legist or jurist. (does not
1. There must be unanimity of opinion among all the amount to law).
jurists of the age, to have a decision with the force • If Fatwa of a Mujtahid is published and not
of Ijma in absolute form. opposed, it will have the force of Ijma.
2. There must be formal assembly of the learned • If it does not attain the position of Ijma, it remains
people and the issue shall be paced before this a verdict or opinion of Mujtahid.
body.
3. If majority of jurists who agree in a certain Terms to Ponder
conclusion do not admit that those who dissent
from them possess the qualifications of a jurists, 1. Tawil – interpretation.
such dissent will not preclude the formation of 2. Qiyas – analogical reasoning.
absolute Ijma. 3. Ijtihad – exerting ones efforts.
4. Istidal – juristic inference.
IJMA 5. Istislah – public good.
6. Ijma – consensus.
• Ijma is completed as soon as the jurists of the age 7. Istihsan – equity.
in which the question arose have come to an
agreement thereon, after they have had sufficient
time to mature their deliberations. Conditions for Ijma to attain Absolute Authority


• When a question is determined by consensus of
opinion, it is not open to individual jurists of the 1. No opinion to the contrary should have been
same subsequent age to come to a different expressed on the question by any of the
conclusion. Ijma once completed, may not be companions or by other Mujtahids before the
reopened. Ijma of the companions of Prophet formation of Ijma;
however, is irrepealable. 2. None of the Mujtahids taking part in the decision
should have afterwards changed his opinion;
Example: 3. The decision must be proved as being either
universally known, or at least as well-known;
If the companions of the Prophet agreed in laying 4. It should be based on an express text of the Quran,
down certain law, some among them along with or a Tradition of a continuous or well-known
the successors, might not subsequently come to a character;
differnet conclusion, unless the matter was one in 5. It must be regularly constituted.
which before such agreement some of the
companions had expressed a different view.
QIYAS
1. Ijma may be constituted by decision expressed in
ü Literally means measuring by or
words or by practice of jurists, either case it may
comparing with, or judging by comparing
be regular (explicit Ijma) or irregular (tacit Ijma).
with a thing.


2. Ijma is constituted by practice, if all the Mujtahids
ü A process of deduction by which the law
in their practice adopt a particular view of the law,
of the text is applied to cases, which
or if some of them in practice adopt a particular
though not covered by the language, are
view, and the others do not indicate dissent by
governed by reason of the text.
acting to the contrary.


ü Function of Qiyas is the discovery of the
3. Ijma by words and ijma by practice are equally
Illat or effective cause of the revealed law.
authoritative.


* Defined by the Hanafis as – an extension of law from the
4. Ijma could not be repealed by a subsequent
original text to which the process is applied to a particular
consensus; but if the Ijma is merely based on public
case by original text to which the process is applied to a

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particular case by means of common Illat or effective cause 2. Hukm – constituent of analogy and the extension
which cannot be ascertained merely by interpretation of of the law to the text which the process is applied
the language of the text. to is its legal effect.
3. Asl – analogy as a source of law being subordinate
* Defined by the Malikis as – the accord of a deduction with and subsidiary to the Quran, the traditions and the
the original text in respect of the Illat or effective cause of Ijma, these latter in the language of Muhammadan
its law. lawyers are called its authorities.
4. Nass – texts.

* Defined by the Shafi’is as – the accord of the known thing
with a known thing by reason of the equality of the one Examples of the Application of Qiyas based on Quran
with the other in respect of the effective cause of its law. Ø Wine is prohibited on the ground that it is
intoxicant, therefore whisky is also prohibited
because it also cause drukeness.
Basis of Qiyas – are logical and scientific priciples and is
different from opinion based upon mere whim.
§ Wine – original subject
Classification of Qiyas § Whisky – object of analogy
§ Intoxication – effective cause common to both
1. Strict Analogy – the cause of Illah is apparent. subjects.
§ Prohibition is the rule arrived at.
2. Sound Analogy – the cause of Illah is not apparent
or when the word in text could be used in various Ø Depriving the killer from sharing inheritance from
senses; also when it is supported by some proofs his victim. This rule is extended to the law of
from the original texts. bequests.

3. Qiyas al-Jalliyy – transparent Qiyas. § Inheritance – original subject
e.g. Alcohol is forbidden on the ground of being § bequests – object of analogy
intoxicant can also be equally forbidden in Islam. § killing – effective cause common to both
subjects.
4. Qiyas al-Kaffiyy – forbidden Qiyas. § Deprivation of the killer is the rule arrived at.
e.g. Almighty Allah asks it to give out zakat(poor
man’s due), instead of things its equivalent in
money may be given. Conditions of Valid Analogical Deduction

Ø The law enunciated in the text to which the

analogy is sought to be applied must not have
Essential Elements of Qiyas been intended to be confines to a particular state
1. Asl – original subject; of facts.
2. Far – object of analogy; Ø The law of the text must not be such that its raison
3. Illah – effective cause common to both subject. d’ etre (purpose) cannot be understood by human
4. Hukm or Hukm Shari’a – rule arrived at. intelligence nor must it be in the nature of an
exception to some general rule.
Ø An analogical deduction may be founded on the
Pillars of Analogy law established either by a text or a Quran or
Hadith which has not been repealed, or by a
1. The original subject against which the new subject
unanimous decision of the learned, it may also be
is compared.
based on another analogical deduction.
2. The tributary or new subject which is the object of
Ø The deduction must not be such as to involve a
analogy. change in the law embodied in the text.
3. The rule arrived at by the analogy.

4. The cause which brings together the original
subject and the tributary and is the reason for Conditions when Qiyas can be Accepted
analogy.
Terms to Ponder on Qiyas a. Only when there is no solution to the matter in the
Quran or in the Hadith.
1. Rukh – reason of the text which is technically b. Qiyas must not go against the principles of Islam.
called the illat or effective cause.

20
 c. Qiyas must not go against the contents of the - Technically, the exercise of private judgment, not
Quran neither must it be in conflict with the the basis on analogy, but on that of public good or
traditions of the prophet. the interest of justice, or seeking the most just
d. It must not be strict Qiyas based on either the solution. OTHER DEFINITIONS
Quran, the Hadith or the Ijma. - The Hanafis defines it as a principle which
authorizes departure from an established
precedent in favor of a different ruling for a reason
Terms to Ponder stronger than the one which is obtained in that
Taqlid – following the opinion of another without precedent which normally consist of an established
analogy which may be abandoned in favor of a
knwoledge of authority of the opinion.
superior proof, that is the Quran, the Sunna,
Taw’il – literally means interpretation, consist in necessity (darurah), or a stonger giyas.
probing into meaning of the injunctions found in the - The Maliki’s view istihsan as a broad doctrine
Quran and the Sunna. which is less stringently confined to the Quran and
Sunna. Essence of Istihsan

Tafsir – literally means explanation, means to explain - To act on the stronger of two indications-dalilayn.
the words given in a text, especially with reference to
the Quran, and the Sunna.
- To formulate a decision which set aside an
Ijtihad or Ra’y – individual opinion, when the opinion is established analogy for a reason that justifies such
based on any Quranic order or tradition. departure and seeks to uphold a higher Shari’a
value.

Subsidiary Sources of Islamic Law ( Secondary Methods of REASONS FOR THE USE OF ISTIHSAN
Ijtihad)
- It may happen that the law analogically deduced
The past Shafi’i jurists of the 9th Century appeared to have fails to commend itself to jurist owing to its
grouped IJTIHAD WITH ISTIHSAN AND ISTILAH as narrowness and inadaptability of the habits and
subsidiary sources of law, although in the strict sense, the usages of the people and being likely to cause
latter two are, but particular terms or branches of IJTIHAD. hardships and inconveniences.
- This doctrine is chiefly resorted to in cases arising
ISTIHSAN “Juristic Equity” or “Preference”—Advocated by out of the complex condition of a growing society
Hanafi School where a strict adherence to analogy would fail to
meet the want of the people.
Basis of Istihsan
MEANING OF EQUITY
Certain verses in Quran such as Quran, XXXIX: 18: Those
who listen to the word, and follow the best meaning Generally, equity means fairness in the adjustment of
(meaning) in it. Those are the ones whom Allah has guided, conflicting interest, or the application of the principles of
and those are the ones endowed with understanding. And good conscience to the settlement of controversies, i.e.,
follow the best (Ahsan ) of what has been sent down.” natural justice.
Also, Sura II, Verse 185: “Allah desires you ease and good
not hardship.” ISTIHSAN DISTINGUISHED FROM EQUITY IN COMMON
LAW
Hadith from Ibn Mas’ud: “That which Muslim find agreeable
is agreeable to God.” “What the Muslims deem to be good - Istihsan is an integral part of the Shari’a. while,
is good in the sight of Allah.” “Haram is neither inflicted nor Equity recognizes a natural law apart from, and
tolerated in Islam. essentially superior, to positive law.
- If equity is defined as a law of nature superior to all
MEANING OF ISTIHSAN other legal rules, written or otherwise, then this is
obviously not what is meant by istihsan. For
- Gerund of the verb istihsana, prefer or to consider istihsan does not recognize the superiority of any
a thing commendable. other law over divine revelations.
- Derived from the word “hasan” (to make good)
literally, means considering a thing to be good, or CLASSIFICATION OF ISTIHSAN
preferring it, or equitable preference.
- Those that carry conviction to the mind of a jurists
21
 as being sound; in Islam” (Ibn Majah, Sunan, Hadith No. 2340).
- Those that appear at first glance to be sound, but
do not produce such conviction in the mind of the MEANING OF ISTISLAH
jurists.
- It literally means public good. In its legal
EXAMPLES OF ISTIHSAN terminology, it means seeking the best solution for
general interest.
- The sale of a non-existing thing namely a thing - It is a method of analogical deduction that argues
which is not in existence at the time of signing of with the demand of “finding good” for human
the contract is void. welfare. EXAMPLE OF ISTISLAH
- Bay bi al-wafa (a sale subject to future redemption - The iumposition of taxes by the state to generate
– a type of mortgage) was allowed because of revenues for governmental purposes is intended
necessity, i.e., the practical need for such for public good or welfare, although in the Shari’a
transaction. only zakat is mentioned.
- A talaq in death illness even though purporting to
be effected in an irrevocable manner does not COMPONENTS OF MASALAH
deprive the divorced wife from her share in the
inheritance because the husband is trying to evade • Consideration of the need of mankind;
his obligations and the talaq is termed the “divorce
of an escapee”. • The nationality of legal commands and the responsibility
of man;
ISTIHSAN DISTINGUISHED FROM RA’Y IJTIHAD AND QIYAS
• The protection from harm; and
- Generally, Ra’y refers to individual reasoning.

• Conformity with the objectives of the lawgiver.
- When Ra’y is used by a mujtahid (jurist) or a
qualified person, it is called ijtihad.
REASONS FOR THE USE OF ISTISLAH OR MASLAHAH AL-
- When it is directed towards achieving systematic
MURSALAH
consistency and is guided by the parallel of an
existing institution or decision, it is called qiyas or
-The Companions of the Prophet have validated it and have
analogy, parity of reasoning.
formulated the rules of Shari’a on its basis;

- When it reflects personal choice and discretionary
-When the Maslahah is compatible with the objectives of
opinion of the jurist, guided by the idea of
the Lawgiver, it must be upheld;
appropriateness, it is called istihsan or istishah,
approval or preference. ISTISLAH OR MASLAHAH
-When maslahah is of the genus of the approved masalih
(BY IMAM MALIK) ü Masalih or maslahah or
and it is not upheld, the likely result would be to inflict
masalih al- mursalah is from the root word hasara
hardship on the people, which must be prevented.
meaning benefit. ORIGIN OF ISTISLAH
- Based on the theory of Al-Masalih al- Mursala
CLASSIFICATION OF MASLAHAH AL- MURSALAH
which owes its origin to the conception that
Shari’a is for social, utility, and its function is to
1. Al-maslahah al-mu’tabarah or accredited maslahah – in
promote benefit and prevent evil.
which the lawgiver has expressly upheld and enacted a law
- The Hanafis, however, describes it as a concealed
for its realization, such as protecting the life by enacting
Qiyas, a divergence from an externally obvious
the law of retaliation (qisas);
Qiyas to an inner and self-conditioned decision.
2. Maslahah mursalah proper or unrestricted maslahah –
BASIS OF ISTISLAH
these have been the masalih that have been validated after
the divine revelation came to an end. Such as the claim of
- It derives its validity from the borm that the basic
marriage, or ownership in real property, can only be proved
purpose of legislation (tashri) in Islam is to secure
by means of an official document has not been explicitly
the welfare of the people by promoting their
validated by the Shari’a;
benefits or by protecting them against harm.
- It finds its basis in the Quranic verse which states:
3. Maslahah malgha or the discredited maslahah – in which
“God never intends to impose hardship upon
the lawgiver has nullified either explicitly or by the
people” (Sura Al Maidah [V: 7]) and in the Hadith
indication that could be found in the Shari’a. Such as the
which says: “Harm is neither inflicted nor tolerated
attempt to give the son and the daughter an equal share in
22
inheritance on the assumption that this will secure a public 4) The maslahah must be rational and acceptable to the
interest. people of sound intellect

ISTIHSAN AND ISTISLAH, DISTINGUISHED 5) It must prevent or remove hardship from people

- The difference of the two is seen only when we
inquire into the guiding ideas which forms the ISTIDLAL
positive foundation.
- Istislah is more limited and more closely defined in - to infer; inference
content than istihsan in so far as it replaces them, - method of juristic deduction by means of inferring of one
in itself only formal, “finding good” of the latter by thing from another in order to arrive at a rule.
the material principle of maslahah (useful
purpose). 3 KINDS OF ISTIDLAL
-
1) The expression of the connection existing between one
CLASSIFICATION OF INTEREST proposition and another without any existing specific
effective cause.
• Masalih mutabara or interest recognized in Shari’a; A. Between 2 affirmative prepositions

• Masalih mulghan or interest discarded by Shari’a; B. Between 2 negative prepositions

C. Between an affirmative and a negative preposition

• Masalih mursalah or interest ignored by Shari’a, such as
undefined and restricted interest. D. Between a negative and a positive preposition

2) Presumption that a state of things, which is proved to

*Only the first kind is considered for the application of the
have ceased still continue.
doctrine of al-Masduh al-mursala; the other two are not.
However, the third one is approved by Imam Malik as a 3) The authority of revealed laws previous to Islam.
method of extension of primary laws.


OTHER CLASSIFICATION S OF ISTIDLAL
USEFUL PURPOSES WHEN ISTISLAH MAY BE RESULTED
1) Ibarah or plain sentence
TO:
2) Isharah, that is, a sign or hint
1) When it meets an absolute necessity (daruri)
3) Dalalah or argument
-- e.g. Protection of life; Preservation of property
4) Iqtida or deduction which demands certain conditions
2) When it meets no absolute necessity but is merely
expedient
-- e.g. Institution of location, Ijarah ISTISHAB or CONCORDANCE or LEGAL PRESUMPTION OF
CONTINUITY
3) When it serves as an end like the promotion of good
morals - literally means seeking for a link; based on the
presumption that a thing which is not proved to have

ceased, still continues; a rule is adopted because of its
CONDITIONS FOR THE ADOPTION OF MASALIH AL- coherent and permanent observance and use.
MURSALA:

1) The case must be pertaining to matters of transaction
EXAMPLES OF ISTISHAB
and other social matters
1) Legal presumption of innocence until the proof of guilt is
2) The maslahah should be in harmony with the spirit of
established based on istishab
Shari'a
2) Things presumed halal (permitted) in the absence of
3) The maslahah should be in case of essential and
prohibition
necessary things and not of mere luxury
3) A debt is presumed to subsist until its diacharge is
proved
23
4) Marriage is presumed to continue until its dissolution 2) that no fiction shall be allowed to work an injury
becomes known
3) a fiction is not to be carried further than the reasons
5) Ownership on valid title is continued until the contrary is which introduced it necessarily require
proved

6) Freedom from obligation until the contrary is proved
Classification and examples of legal fictions

1) Positive - when a fact which does not exist is presumed.
Ex: fetus in the wife's womb as possesed a juridical capacity
for the purposes favorable to it

2) Negative - when a fact which does not exist is ignored.
LIMITATION ON THE RULE OF ISTISHAB Ex: the fact that natural persons composes a corporation is
- Istishab will not apply when there is evidence (dalil) of ignored in favor of the corporation being treated as one
exiating clear text (nass) or valid rule (hukm) on the matter juridical person
which is in no need of evidence of presumption of 3) Fictions by relations- an act of servant within the scope
continuity. of his task assigned by his master is considered as though
the act of the latter.

CLASSIFICATION OF ISTISHAB

1) Presumption of original absence- a fact or rule which has 2) Legal Maxims (Similitudes and the like)
not existed in the past is presumed to be non-existent until - a general rule which apply to all particular cases
contrary is proved
- an established principle or proposition
2) Presumption of original presence- takes for granted the
presence of that which is indicated by law or reason - a principle of law universally admitted as being just and
consonant with reason
3) Presumption of the continuity of the general rules and
principles of law Authoritativeness of maxims

4) Presumption of continuity of attributes to remain so until - doctors and students of law define maxims as the
the contrary is proved foundation of the law and the conclusion of reason, and
therefore they ought not to be impugned, but always to be
admitted.
EXTRANEOUS SOURCES OF MUSLIM LAW Examples of Maxims
1) Legal Fiction (Fictio Juris) 1) Hardship begets facilities- which means that difficulty
- from Roman word "fiction" meaning "false averments" mitigates liability. Ex: stealing fruits because of hunger.

- legal assumption that something which are or may be 2) Necessity renders prohibited things permissible- which
false is true means that necessity makes forbidden things canonically
harmless. Ex: to drink wine for medicinal purposes.
- not based on reason; depending on individual's discretion
3) When confronted by two evils, chose the lesser evil, or
when in a state of emergency or urgency, the less harmful
act may be done to avoid a severe one. Ex: to jettison some
Presumption distinguished from fiction cargoes in order to lighten the vessel and prevent it from
Presumtion is a rule of law prescribed for the purpose of capsizing in order to save lives.
getting a certain conclusion through arbitrary, while a 4) When receiving a thing is forbidden, the giving of it is
fiction of law assumes for truth what is either false, or at also forbidden.
least is probably false as true
5) The aversion of harmful should come before the taking
of benefit.
Some limitations to fiction 6) An act of God does no wrong to no one- means no one
1) that which is impossible shall not be feigned may be heard answerable for fortuitous events.

7) An act done by me against my will is no act of mine.

24
8) What is just and right is the law of laws. 1) It must have the force of law or binding force or effect
upon the community
9) Innocence is presumed to be the original state.
2) must me generally acceptable to the community

3) must not be contrary to the Constitution, the law, public
order, public policy or public interest.
3) Legislation
- an act of giving or enacting laws

Forms of legislation during the time of Prophet Muhammad

1) By Divine Legislation

2) Legislation by precepts or examples shown by the

Prophet of God in words, dress or acquiences, under divine
inspiration

3) By the extension of the original text (Quran, Hadith)

through Ijtihad (exercise of one's reasoning) or individual
opinion that later on received common consensus of the
community.

Authority to enact laws

- primarily belongs to God

- the Divine Legislator has delegated the power to lay down

laws by resolution to those men in the community who are
competent in that behalf.

Legislation distinguished from jurisprudence

- jurisprudence is a rigid science of positive law concerned

with the exposition of the general principles. Legislation is
based upon the principle of utility that is the greatest
happiness of the greates number which is an accepted
principle of the modern world.

4) Customs (Ada or Urf)

- used to denote customary laws. It is what people has been

accustomed to doing.

- customary laws and practices that are observed as having

the rules of law in the community.

- usages that has been long accepted

Classification or Types of Customs

1) General- Customs constitute a part of the common law of

the whole country

2) Special- Particular or local custom confined in a particular

class district

Essential elements of Customs

25