Suggested Answer (Jurisprudence)

Notes on Islamic Jurisprudence (Fiqh) and Customary Law (‘Adat)
Shariah Bar Questions and Suggested Answers

Sh ar iah C en t e r R e v ie w e e s Bat ch 20 13
Shariah Center, Mindanao State University
Marawi City, Philippines
1983 SHARIAH BAR EXAMINATIONS ON

ISLAMIC JURISPRUDENCE (FIQH) AND CUSTOMARY LAW (‘ADAT)
I. a) what is the difference between Fiqh and Shariah?
The difference between Fiqh and Shariah are as follows:
i. Shariah is a body of revealed law found both in the Qur’an and in the Sunna; Fiqh
is a body of laws deduced from Shariah to cover specific situations not directly
treated in Shariah Law.
ii. Shariah is fixed and unchangeable; Fiqh changes according to the circumstances
under which it is applied.
iii. The law of Shariah are, for the most part general; they lay down basic principles.
In contrast, the laws of fiqh tend to be specific; they demonstrate how the basic
principles of Shariah should be applied in given circumstances.
iv. Shariah covers all human action; Fiqh deals only with what are commonly
understood as legal acts.
v. The path of Shariah is laid down by God and his prophet, the edifice of Fiqh is
erected human endeavor.
vi. In Fiqh, an action is legal or illegal, permissible or not permissible. In Shariah,

there are various grades of approval or disapproval.
b) What is Shariah value (Hukm Shariah) and what are its kinds? Explain each of
them.
Shariah value (hukm shar’i) is the quality determined as a result of divine

revelation. For example, the fact of an act being prohibited in Shariah is its Shariah value.
It is establish by a communication from God with reference to men’s act, expressive
either of demand or prohibition or indifference on his part being merely declaratory.
Two (2) kinds of Hukm Shar’i:
i. Mandatory law is the law which defines the characteristic of a man’s act
whether they are obligatory, forbidden, commendable, improper or which
indicates the legal effect of an act. It requires certain actions , or provides
a choice of whether to follow or not.
ii. Declaratory law is a law which is promulgated as a reason, a condition or

deterrent for action or which states whether these actions are valid or void
or whether they are allowed by concession or are permissible ab initio.
II. a) Give the four (4) sources of Islamic Law (Adilla al Shariah)
The four sources of Islamic law are:
a) Holy Qur’an
Johary “Jhopax” Maruhom Ali Rasul PSBA 418 Page 1
Other names of Holy Qur’an:
i. Furqan (criterion 25:1)
ii. Tanzil (sent down 26:192)
iii. Dhikr (reminder 15:9)
iv. Kitab (scripture 21:10)
Islamic literature sometimes describes the Holy Qur’an and the Sunna as
an integrated whole, each supporting the other in the fashion of a book and a
candle. The life and works of the Prophet Muhammad (pbuh) provided the
candle by the light of which the book is to be read. The book without the
candle or the candle without the book would not achieve its purpose. Thus, to
deal with the primary sources of Islamic law is to put emphasis on at once.
The basic message of all Prophets from God is one and the same, “And
verily, we have raised in every nation a messenger, (proclaiming): Serve Allah
and shun false Gods…”1
Prophet Muhammad (pbuh) was the last messenger from Allah (SWT) to
mankind, and he brought the final revelation from God to man, the Holy
Qur’an.
Means of Revelation:
i. Inspiration: example in a dream (Ibrahim received guidance in a

vision, while asleep to sacrifice his son) 37: 102
ii. Speech hidden away (God spoke to Musa from the fire) 27:8
iii. Words sent through special messenger (Angel Jibril to Muhammad)
The Descent of the Qur’an:
i. From the Lauh al Mahfuz where the well-preserved tablet to the lowest
of the heavens (bait al-izza), all together in the lailat ul-qadr;
ii. From the heavens to earth in stages throughout the 23 years of

Muhammad prophethood, and first in the laila al qadr of Ramadhan
through Angel Jibril;
iii. Second descent from heaven to the heart of Prophet, Surah al-Isra (17)
and al-Furqan (25).
First revelation: in the year of 610, Lailat ul qadr 27 or odd nights after
21st, during his seclusion in the cave of Hira on a Mountain near
Makkah. He used to go in seclusion in the cave of Hira where he used
1
The Qur’an, 16:36

to worship Allah alone and used to take with him food for the stay.
The first Surah that was revealed to Prophet Muhammad (pbuh) is
Surah al Alaq.2
“Proclaim or read in the name of the Lord and Cherisher; who

created created man, out of clot of congealed blood. Proclaim! And
thy Lord is most Bountiful, He thought the use of pen, thought man
that which he know not.”
Method of Legislation during the era of Prophet Muhammad (pbuh):
i. Numbers of Qur’an verses are direct answers to questions. Example: “They

ask you about menses. Say, it is harm, so stay away from sexual relations with
women during their menses.”3
ii. Due to a particular incident. Example: Hilal ibn Umayyah accused his wife of
adultery. “.. Four declarations with oaths by Allah that they are truthful and
fifth invoking Allah’s curse if they are lying..”4 if not so, 80 lashes.
iii. Pronouncements made at the time of incidents. Example: In one occasion,

Prophet’s companions that along sailing the sea, no fresh water to make
ablutions, and Prophet Muhammad (pbuh) said: Its water is pure and its Dead
Sea creatures are permissible to eat.
iv. Legislation was to achieve gradation in the enactment of laws. Example: In

the formal prayers, two times a day in the morning and afternoon for the early
Makkan period, and five times a day5 shortly before the migration of Prophet
Muhammad (pbuh).
The Qur’an has divided into three fields of study:
i. Belief in God (Aquidah);
ii. Moral science (Al akhlaq);
iii. Law.
The legal content of Qur’an:
1. Dealings between Allah and man, such as religious rites. Example: prayers,
fasting, zakat, haj
2. Dealings among men:
a. Laws, such as propagation of Islam;
2
Qur’an, 96: 1-5
3
The Qur’an, 2:222
4
The Qur’an 24: 6-9
5
Isra wal Miraj

b. Family laws, such as marriage, divorce, and inheritance;
c. Trade laws, such as business transactions, rental contracts;
d. Criminal laws, such as specifying punishments and compensations.
Basis of Legislation in the Qur’an: This is to reform human condition as to

forbid interest, fornication, use of wine; to give confidence in trade practice for
having mutual consent, etc.
i. Removal of difficulty. This is to make things easy for the people and do
not make them difficult. “He did not make any difficulty for you in the
religion.”6
ii. Reduction of Religious Obligation. “… forced by necessity … no sin on

him. For Allah is oft-forgiving, Most Merciful.”7
iii. Realization of Public Welfare. “it is prescribed for you when one of you
approacheth death, if he leave wealth, that he bequeath unto parents
and near relatives in kindness. This is a duty for all those devout”8
iv. Realization of Universal Justice. Islamic legislation considers all humans

the same with regards to their obligations and responsibilities.
b) Sunna (Traditions of Prophet Muhammad saw)
Hadith means news, report or narration:
i. What Muhammad said (qaul);
ii. What Muhammad did (fi’l); and
iii. What Muhammad silently approved (iqrar) in others’ actions.
Hadith qudsi means holy or pure, not part of the Qur’an. The wording is
given by the Prophet while Qur’an is the precise wording from Allah. This is may
be inspired by in a dream.
The farewell of Prophet Muhammad (pbuh): “Certainly there is for you in

them (prophets) a good example”.9 He was sent to perfect human conduct and
moral. He brought to us the holy Qur’an and chosen Islam as our religion.
Therefore, every Muslim should follow in order to be a good Muslim and a good
citizen in his community.
6
The Qur’an, 22:78
7
The Qur’an, 2:173
8
The Qur’an, 2:180
9
The Qur’an, 60:6

c) Ijma (Consensus of opinion)
Ijma literally is derived from the word “Jama” (to add). This is one way to
formulate any principle of ljma, by means unanimous opinion of all Muslims,
which is accepted unanimously. It is an agreement of the jurists among the
followers of the Prophet in a particular age on a question of law. It is inferred to
word or statement (Qaul) like to express their opinion, deed or actions (Fi’) like
practicing an act in question, and silence (sukul) like if no comment has made.
Opinions may take various forms bordering to individual opinion called

ijtihad or Ray’ while when based on Qur’anic order or on Tradition is formed of
Qiyas (reasoning by analogy), and when opinion by jurist differs from Qiyas is a
juristic equity or ijma (collective opinion of the jurists).
It was evolved when the learned people has to assemble in a group and
decide the issue in the light of the Qur’an and the available Traditions. Such
decisions, being unanimous, had the sanctity and the force of law. The jurist or
mujtahid has the following qualifications:
a. A person conversant with science of law;
b. Thorough knowledge in the Qur’an means have a command over the Arabic
language;
c. Thorough knowledge of the Tradition, able to distinguish between authentic

and unauthentic Traditions;
d. Above all, be aware of and fully conversant with rules and methods of
analogical deduction.
The ijma constituted when:
a. There must be a formal assembly of the learned people;
b. The issue shall be placed before this body;
c. The meeting gives sufficient thought to the problem and examines it in the
light of the Qur’an and Tradition; and
d. Leads to an unanimous decision. Then, the ijma is complete as soon as the

jurists of the age agree after due deliberations.
Views of the School of Law:
a. Maliki: ijma of the Companions or their successors, who resided in Medina, is

only the convincing;
b. Hanbali: Only ijma of the Companions is valid;
c. Shafi’i and Hanbali: Recognized ijma’s constituted even outside Medina and
of those who are jurists of the later age.

To note that ijma of one age may be reversed by a subsequent ijma except for
the one constituted by the Companions themselves.
Authority of Ijma:
a. From the Qur’an: “O ye who believe obey Allah, obey the Messenger and
those of you who are in authority and if you have a dispute regarding any
matter refer back to Allah and his Messenger.”10
b. From the Tradition of Prophet Muhammad (pbuh):
- My people will never agree an erroneous things.
- What Muslims agree to be good is also good in the eye of God. (vox
populi vox dei.)
- It is incumbent upon you to follow the most numerous body.
Kinds of Ijma:
a. Absolute ijma. The consensus may by words where the consensus is achieved
by spoken words, and by deeds which sometimes called as regular ijma where
the consensus is established by unanimous practice;
b. Irregular ijma. There is no absolute certainty. Some jurists adopted it and

others do not object to it, in both cases the consent of all jurists will be
presumed;
c. Ijma Ummah. During the Caliphate period, the people used to be unanimous
in their opinions and the superior ijma was the righteous people who followed
the end of Prophet Muhammad (pbuh) who were the Companions of Prophet.
There is a limited scope on this kind of ijma where the people not too many in
number and no complexities in life, and no divergent methods of exploitation.
Subsequently in this society, the unanimity is impossible because of full with
intricate issues, diversion of life, complex problems, larger scope for thinking
and great number of people;
d. Ijma Ulama. This is the consensus of learned people only but not all the
Muslims, only of those are well versed in Islamic law and religion. It is
assumed more sanctity.
e. Ijma Medina. This is ijma according to the place of celebration. These learned
people used to reside in Medina, their consensus was considered and
symbolized as dogmas of Islam;
f. Ijma of the Companions. This is the consensus of the righteous people who
followed the end of Prophet Muhammad (pbuh);
The ijma was one approached through during the Caliphate period, from the year
633 to 661, for the problem-solving procedures wherever they faced with a new
10
The Qur’an, 4:59

problem went after searching for a specific ruling in the Qur’an, if not, in the
Tradition and still did not find the answer, the unanimity of the Companions has
to resolve. Indeed, if the unanimity could not be arrived at, they take the
majority, and if could not be yet determined, ijtihad by Caliph as concluding
solution.
The legal effect of the ijma is considered to be authoritative and binding. It

was played a most important role, for it provided for the development of the law
to meet the needs of changing times. Bear in mind that it must not be in conflict
with the Qur’an and Tradition of Prophet Muhammad (pbuh). A paradigm of ijma
was after the end of Prophetic career, Muslims selected Abu Bakr as the first
Caliph to be the spiritual and temporal head.
d) Qiyas (Analogical reasoning)
If all the three sources of Islamic law enunciated should fail to provide to solve
the problem in hand, jurist must use an appropriate rule by logical inferences and
analogy. This is a resort to reasoning, or ijtihad.
Literally means, measuring or ascertaining the length, weight or quality of

something.
Figuratively, comparison with a view of suggesting equality or similarity between

two things, one of which is taken as criteria for evaluating the other.
Technically, logical reasoning by analogy, by means of based from the particular

facts of the past and present cases. To extend the law of the text to cases present,
generally extended and widened. This is to extend the Shariah value from the
original cause (‘asl) over the new (far’) by reason of an effective cause (‘illa)
which is common to both cases.
Requirements of Qiyas:
a. The original case (‘asl) on which a ruling is given in the text and analogy
which seeks to extend it to anew case;
b. The new cas (far’) on which a ruling is wanting;
c. The effective cause (’illa) which is an attribute of the ‘asl and is found to be
common between the original and the new case; and
d. The rule (hukm) governing the original case which is to be extended to the
new case.
Authority of Qiyas: “Should you dispute over anything, refer it to Allah and to
the Messenger, if you do believe in Allah and the last Day.”11
11
The Qur’an, 4:59

Qiyas does not have the same authority as the Qur’an or the Tradition of Prophet
Muhammad (pbuh), but to promote the welfare of men bringing positive
advantages. Its authority is merely presumptive and its open to judge or jurist not
to follow or follow.
b) How, where and when was the Qur’an revealed?
The revelation began during Lailatul Qadr on 27th day of Ramadan, other jurists
believe that it was on 17th day, around 610 A.D. When the Prophet was 40 years of age,
during his seclusion in the cave of Hira, mountain near Makkah. Prophet Muhammad
(saw) said that the revelation came like a ringing of a bell, this of inspiration is the
hardest of all and then this state passes off after he grasped what is inspired. Sometimes
the Angel Jibreel AS came in the form of a man and talks to Prophet and grasp whatever
the Angel says.
III. a) Explain the gathering, compilation or codification of the Qur’an :
1. During the lifetime of Prophet Muhammad (saw);
Two things were taken for the gathering and codification of the verses of Qur'an:
a) Compilation of the Qur'an in the chests or heart of the Prophet Muhammad

(saw) and used to recite the Qur'an before Angel Jibreel AS once every Ramadan, but he
recited it twice in the last Ramadan before his death. The Muslims were also engaged
themselves in memorizing the Qur'an. Each verse received was recited by the Prophet
and its location relative to other verses and Surahs was identified.
b) Compilation of the Qur'an by writing them in pages. The verses were written
by scribes, selected by the Prophet, on any suitable object – leaves of trees, piece of
wood, parchment, or leather or flat stones. Scribers included Ali bin Abu Talib,
Mu’awiyah bin Abu Sufyan, Ubay bin Kaab and Zaid bin Thabit. Some of the
companions wrote the Qur'an for their personal use.
2. Qur’an under the leadership of Abu Bakr RA
Umar bin Khattab urged Abubakr to preserve and compile the Qur’an. This was
prompted after the Battle of Yamama, where heavy casualties were suffered among the
memorizers of the Qur’an. Abubakr entrusted Zaid bin Thabit with the task of collecting
the Qur'an. Zaid had been present during the last recitation of the Qur'an by the Prophet
to Angel Jibreel AS. Zaid, with the help of other companions who memorized and wrote
verses of the Qur’an, accomplished the task and handed Abubakr the first authenticated
copy of the Qur'an. The copy was kept in the residence of Hafsah, daughter of Umar and
wife of the Prophet.
3. Qur’an under the leadership of Uthman
Uthman ordered Zaid bin Thabit, Abdullah bin Zubair, Said bin As and
Abdulrahman bin Harith to make several copies out of the authenticated copy kept by
Hafsah. This was due to the rapid expansion of the Islamic state and concern about
differences in recitation. It was incited at Battle of Armenia, the Muslims read the Qur’an

in various modes. Some accused another of unbeliever. Copies were sent to various
places in the Muslim world. The original copy was returned to Hafsa and kept in Medina.
IV. a) Distinguish between a Hadith and a verse of the Glorious Qur’an
The distinction between a Hadith and a verse of the Glorious Qur’an are:
i. Qur’an is a word of Allah, it is a divine order, a dictates of Almighty; whereas

Hadith are the words of the Prophet who is human being;
ii. Qur’an is reported in its precise wordings of Allah swt while Hadith is not
necessarily reported in its precise wording;
iii. Qur’an is preserved and protected by Allah swt from any corruption; whereas
hadith is subject to distortion, not protected by against corruption;
iv. The verse of the Qur’an can be recited in prayer while the hadith cannot be
recited in prayer.
b) What are the kinds of Sunnah with respect to its transmission?
Three (3) kinds of Sunnah with respect to its transmission:
i. Mutawatir (continuous): These were narrated by numerous Companions and a

good number of followers and then their followers. This are considered the most
reliable and acceptable for purposes of legal matters.
ii. Mashoor (famous): These were narrated by a good many of the followers and
their followers but comparatively a few Companions have narrated them. These
are next to Mutawatir and acceptable as a source of law.
iii. Ahad (isolated): These were narrated during the period of the followers of the
Companions by numerous people.
V. a) Distinguish between Qiyas and Ra’y.
Qiyas is the extension of the Shariah value from the original case to a new case
because the latter has the same effective cause as the former;
whereas Ra’y refers to the giving of opinion in an issue or circumstances they are
facing.
b) Explain the four (4) conditions and requisites of Qiyas.
The essential requisites and conditions of Qiyas are:
i. The original case (‘asl) on which a ruling is given in the text and analogy
which seeks to extend it to anew case;
ii. The new cas (far’) on which a ruling is wanting;

iii. The effective cause (’illa) which is an attribute of the ‘asl and is found to
be common between the original and the new case; and
iv. The rule (hukm) governing the original case which is to be extended to the
new case.
VI. a) Explain the rules on abrogation.
Abrogation (naskh) literally means obliteration, transcription or transfer. It is also

defined as suspension or replacement of one Shariah ruling by another, provided the latter
is of subsequent origin and two are in conflict with one another and it is not possible to
reconcile them or when the latter express repealed the former.
The reason behind of the repealed laws was that what may be good for the people
of one age may not be good for the people of another age. Since, Islamic law believes in
convenience and that is the convenience to the community and the progressive
implementation of Islamic principles and to blend these theories and principles putting
the circumstances of the time.
One text is said to be repealed by another when the two are said to be conflicting
each other. It means that the meaning of one tends to negate the meaning of the other,
provide both related to the same subject matter. The general rule is that the latter in
time prevails over the earlier. If it is not possible to know which of them comes first,
another rule is that both the repealed and the repealing texts must be revealed.
There are four general possibilities when the question of abrogation or repeal
may take place:
i. The repeal of one Qur’anic text by another.
a. This has the subject of conflicting views or disagreements among Muslim

Jurists. According to one view, abrogating takes place when two verses of
the Qur’an cannot be possibly reconciled. This view claims that it was due
to lack of meditation that one verse thought to be at variance with another
verse. The second view affirms that possibility of such abrogation the
basis of consensus among Muslim jurists that one Qur’anic text could
repeal other. The basis is the verse stated “such of our revelations as we
abrogate or cause to be forgotten. We replace by another better or the like
thereof”.
b. Example: The use of wine. At one stage, the use of it was utterly
discouraged pointing out it had bad effects. Later people were warned not
to touch and finally, the use of it was declared prohibited.
ii. Repeal of Tradition by another Tradition.

a. There is almost an agreement among the Sunni school of though that it is
possible that a Hadith could be repealed by another hadith.
b. Example: It is said that in one of the Prophet’s earlier precepts he
condemned, the practice of visiting the graves of a deceased because of

the human nature that it develops a habit of immediately by repetition of

an act. That if permitted to visit the graves of the deceased, people may
eventually begin to worship the graves which are against the very spirit of
Islamic concept. Later on the Prophet is believed to have allowed people
to visit the graves of the deceased with a view to make the people feel
humble and God fearing. By allowing people to visit the graves they
would realize their ultimate fate and would learn to be conscious of their
deeds. Thus the permission given subsequently by the Prophet has the
effect of repealing the earlier tradition.
iii. Repeal of a Tradition by a Qur’anic text.

a. The jurists were agreed on this kind of repeal.
b. Example: The fixation of direction for prayers. The Prophet
Muhammad (pbuh) had enjoyed by his precept that a Muslim while
performing his prayers should turn his face in the direction of Jerusalem.
This practice continued for some time and then a Qur’anic text was
revealed directing the Muslim to turn their faces towards Ka’aba while
performing prayers.
iv. Repeal of a Qur’anic text by a Tradition.

This repeal was controversial, because of the following opinions of the
Major School of Thoughts:
a. Imam Malik, the companions of Abu Hanifa, and some followers of
the Zahiri school ruled that it was possible for the Tradition 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.
Example: “it is prescribed for you when one of you approacheth
death, if he leave wealth, that he bequeath unto parents and near
relatives in kindness. This is a duty for all those devout”.12 Despite this
clear urging to bequeath unto parents and relatives, this jurists considered
the verse repealed by the saying of the Prophet Muhammad (pbuh) “no
bequest is to be made to an heir”.
b. Imam Shafi’i and Ahmad ibn Hanbal rejected the Tradition could
repeal the Qur’an based:
(i) The Qur’an is the essence and is inimitable or miraculous; in
Tradition, it is only a supplementary to the Qur’an and is not
miraculous;
(ii) “it is not for me to change it of my own accord, I only follow that
which is inspired in me. Lo, if I disobey my Lord I fear the
retribution of the great day”. This is an order directed to the
Prophet Muhammad (pbuh) not to change the rules of the
Qur’an of his own accord.13
12
The Qur’an, 2:180
13
The Qur’an, 10:15

(iii) The sayings of Prophet Muhammad (pbuh): “Whatever is quoted

in my name, compare with the Book of God. That which
conforms to it is my own, that which does not was never
uttered by me”. Also, “My words do not repeal the words of
God. The words of God repeal my words, and the words of
God repeal one another”.14
Shafi’i pointed out that the verse of bequests that it had been implicitly
repealed by a succeeding verse which prescribed the legal shares of
every heirs.15 Another saying of Prophet Muhammad (pbuh): “No bequest
is to be made to an heir”.
b) Explain the following principles of legislation:
1. Istihsan (Juristic preference), the literal meaning is considering a thing to be

good. Juristically, it is a method of exercising personal opinion in order to avoid rigidity
and unfairness that might result from the literal (meaning) enforcement of the existing
law.
The Hanafi school advocates the principles of istihsan. This is the abandonment
of the opinion to which reasoning by analogy would lead, in favor of a different opinion
supported by stronger evidence. And based on evidence found from Sunna, ijma,
necessity, or another Qiyas. It aims at setting aside an established analogy in favor of
another by reason of serving the ends of justice and public interests.
Basis of Istihsan: Avoidance of hardship is a cardinal principle of religion which

is enunciated in the Qur’an, “Allah intends every facility for you, and He does not want
to put you in hardship.”16 Hadith: The best of your religion is that which brings ease to
the people.
2. Istislah / al masalih al murslah / maslaha is a consideration of public

interest or welfare. It is a method of deduction of law based on general consideration
of public good. More technically, it is defined as consideration which is proper and
harmonious to the objectives of the lawgiver; it secures benefits and prevents harm and
the Shariah provide no indication to its validity or otherwise.
This is a legal method which associated with the Maliki School. Literally,
maslaha means benefit or interest. Maslaha al mursala refers to unrestricted public
interest no textual authority can be found regarding its validity or invalidity. The
considerations which assure benefit or prevent harm, and consists of protecting the
five essential values:
i. Religion;
ii. Life;
14
Suyuti considers this as weak Hadith.
15
The Qur’an 2:180
16
The Qur’an, 2:185

iii. Intellect;
iv. Lineage; and
v. Property.
Basis:
“Allah never intends to impose hardship upon you.”17
“Allah has not imposed difficulties on you in religion.”18
Examples: The issuance of currency; the establishment of prisons; imposition of

tax (kharaj) on agricultural lands in conquered territories by the Companions.
Three types of maslaha:
i. The essentials (dharuriyyat). The lives of people depend and neglect leads to
the disruption and chaos. Example: Al dharurriyyat al khamsa (the five
essential values) such as religion, life, intellect, lineage, and property.
ii. The complementary (Hajiyyat). This is a supplementary to five essential

values, example is a traveler may breaks his fast and to shorten prayers, which
designed to prevent hardships.
iii. The embellishments (tahsiniyyat). This is to make detail to more attractive

which the interests lead to improvement. Examples: observance of cleanliness
in personal appearance, moral virtues, avoiding extravagance.
3. Istishab (presumption of continuity)
Literally means association, escorting or companionship. The facts

proven in the past and are presumed to remain so far lack of evidence to establish
the contrary. Shafi’i and Hanbali schools of law sustained on this legal principle,
Istishab applies only when no other evidence is available.
Example: everything is presumed to be permissible unless the contrary is

proved.
Basis:
“It is He who created for you all things that are on earth.”19
“And He has subjected to you, as from Him, all that is on the heavens and on
earth.”20
17
The Qur’an 5:7
18
The Qur’an 22:78
19
The Qur’an 2:29

Legal maxim: “Certainty may not be disproved by doubt.” When a person is

known to be sane, he will be presumed as such until it is established that he has
become insane. The presumption can only be sets aside by certainty, not by a
mere doubt. Certainty always prevails over doubt.
4. Sunnah of the Companion is referring to the companion of particular Sahaba

to specific rulings or issues concerning legal actions. After the death of the Prophet
(pbuh), it was the Companions who interpreted the law and developed it through ijtihad.
5. Custom (Urf) means that which is known. It means that which a people or a
section thereof have become accustomed to doing. It is also defined as recurring
practices, which are acceptable to the people of sound nature.
Basis:
“Ye are the best of people, evolved for mankind, enjoining what is right and
forbidding what is wrong.”21
VII. a) What are the four (4) orthodox (Sunni) Schools of Muslim Law?
The four orthodox schools of Muslim law are as follows:
a) Hanafi schools of law

b) Maliki schools of law
c) Shafi’I schools of law
d) Hanbali Schools of law
THE SCHOOLS OF LAW
In all major legal systems tend to be different schools of thought, especially in

regard to legal interpretation.
Sunnis and Shi’ites: The great division between the Sunnis and the Shi’ites based
upon a political dispute early in the history of Islam, elating to the succession to
the Caliphate. At the earlier stages there was no significant difference as regards
to theology, religious practice or law, but later there grew up a difference of
approach based on the doctrine of Imamate. This was the view that the Imamate
vested in a descendant of Ali, the son-in-law and cousin of the Prophet, whom
Shi’ites recognized as the first rightful Caliph thus involving the repudiation of
the first three Caliphs. Abu Bakr, Umar, and Uthman.
The main body of the Shi’ites recognized twelve successive Imams and after them
the leading theologians called mujtahids exercised an extensive interpretative
authority in religious and legal matters on the basis of being divinely inspired.
Among the Sunnis, the Caliph had no interpretative functions and was simply a
political and religious leader of the community whose principal duty was to
uphold the law.
20
The Qur’an 45:13
21
The Qur’an 3:110

For academic purposes, it is not to dwell upon the doctrinal and other differences
between the two. The Sunnis constitute the vast majority in the Muslim world.
The Shi’ites have their own collections of the hadiths and do not recognize the
authority of the six authoritative collections already mentioned.
Since the Prophet was the last recipient of divine revelation, the Sunnis believed
that temporal rulership should thereafter be decided on a principle of democratic
choice. If, on the other hand, divine inspiration was transmitted to the line of the
Prophet’s descendants as the Shi’ites believed, these descendants become rulers
by divine right. The Sunnis seek their inspiration down the centuries in the Qur’an
and the Hadith. The Shi’ites believe that the indispensable media for
understanding the truth proclaimed by the Prophet are the Imams, without whom
the relevance of the divine revelation to contemporary problems cannot be
understood. The Shi’ites, concentrating on the tragedies of the house of Ali,
delves deep into the mysteries of martyrdom and suffering.
These attitudes carry over into the legal sphere. Thus the Sunnis, with their
broader-based concept of the democratic community, recognize the concept of the
extended family group, while the Shi’ites give predominance to the narrower tie
of relationship between parents and their issue.
The Sunnis took upon existing customary law which was not expressly rejected
by the Qur’an as having been implicitly accepted by it. The Shi’ites look upon
the Qur’an as instituting a new order totally displacing all existing practice. Very
different legal results follow, as can be readily understood, in such areas as the
law of succession.
There are innumerable groups among the Shi’a. among them three of the principal
school of law were the Ithna ‘Ashari’, the Ismaili (who include the Borahs and the
followers of the Aga Khan) and the Zeydi. These schools have a vast legal
literature.
While the Shi’ites, like the Sunnis, accepted the Qur’an and Sunna as sources of
law, there were basic legal differences. For the Sunnis revelation was the source
of truth. The route to truth lay, therefore, in an arduous and critical inquiry into
the meaning of the Qur’an, the authenticity of the Traditions, textual criticism and
logical interpretation. The human intellect played only a limited role within the
framework of the termination of revelation with the Prophet. Human opinion was
fallible and humans had no authority to pronounce upon the law with any claim of
infallibility.
With the Shi’ites there was, on the other hand, a belief in the infallibility of the
Imams or spiritual guided. Their pronouncements had the guarantee of truth in
their own right. These pronouncements were true even if they did not tally with
the consensus of the Islamic community. This led also to an elevation of the role
of the human intellect and of intuition in the evaluation of truth.
There were also fundamental differences in constitutional theory and international

relations between the Sunni Caliph and the Shi’ite Imam such as that the Caliph is
a servant of the law while the Imam is its interpreter; that the Caliph is elected by

the people while the Imam is appointed by the previous Imam; that the Caliph is
removable for misconduct while the Imam, being appointed by God cannot be
deposed by man.
The Sunni Schools: These schools are not to be distinguished as different “sects”
of Sunni Islam, but merely as distinct schools, or, in the Arabic expression,
“ways”. Each of these major schools had settled geographical areas of dominance,
and, cumulatively, the Sunni schools commanded the allegiance of the vast
majority of the Islamic world.
1. The Hanafi Madhab (703-67)
The first and largest of the Sunni schools was that of Abu Hanifa in
Baghdad. Abu Yusuf, one of his chief pupils, was Chief Justice in the
court of Harun-al-Rashid and was very famous in Islamic legal history.
Thus, this school enjoyed official recognition from the Caliph’s court in
Baghdad. It was later officially adopted by the Ottoman Empire in
Turkey and by the Moghul Empire in India.
Abu Hanifa was a manufacturer and seller of silk which reminds us that
the work of jurists had not grown into full time profession. He did not
produce any written work but he is remembered through the writings of
his pupils. Malik ibn Anas was one of them and produced a compendium
of law as did Abu Yusuf.
They developed the doctrine of ra’y as an independent source of law, a

doctrine heavily contested by other school such as the Shafi’i. They also
furthered use the analogy as a means for the development of law. They
strongly asserted that the law must change with changing times and that
new facts require new decisions.
Chief work is Hedaya of Marghanini, a very authoritative especially in

India.
It emphasized the importance of the public interest in a consideration of

legal questions. It is the school largely prevalent in Central Asia, Turkey,
Afghanistan and the Indian sub-continent. In Egypt, Iraq, Syria and
Lebanon, its presence is very strong, while in the Soviet Union and China
the majority of Muslims are of this school.
Sources of law Used by him:
a. The Qur’an
b. The Sunna
c. Ijma of the Sahabah
d. Individual opinion of the Sahabah

e. Qiyas
f. Istihsan (preference)
This is the preference of one proof over another proof because it

appears more suitable to the situation, even though the preferred proof
may be technically weaker than the one it is preferred to. This may
involve the preference of a Hadith which is specific over a general
one, or it may even involve the preference of a more suitable law over
the one deduced by Qiyas.
g. ‘Urf (Local custom)
Local customs were given legal weight in areas where there were no
binding Islamic customs available. It was through the application of
this principle that various customs found in the multiplicity of cultures
within the Islamic world entered the legal system and became
mistakenly classified as Islamic.
2. Awzaa’e Madhab (708-74)
Abdur-Rahman ibn al-Awzaa’e, a Syrian scholar, became known as one of

the major scholars of Hadith of the 8th century and was opposed to the
excessive use of Qiyas and other forms of reasoning in cases where clear
texts from the Qur’an and or Sunna were available. He spent most of his
life till death in Beirut, but his Madhab became widespread in Syria,
Jordan, Palestine and Lebanon as well as in Spain.
3. The Maliki Madhab (717-801)
Malik Ibn Anas was a jurist of Medina, and his chief work Al Muwatta
(The Beaten Path) was comprehensive exposition of the current practice
observed in Medina. He made extensive use of Hadiths in his dissertations
and considered as one of the greatest authorities on the Hadith. As with the
Hanafis, a group of pupils gathered themselves around the teachings of the
master and gradually grew into a school. In the case of the Maliki school
most of its followers were practical lawyers with the result that its
teachings were essentially practical rather than speculative.
Other famous works are the Risala of al Khairawani and the Mukhtasar
of Khalil ibn Ishaq. These works became extremely authoritative and
influential in French, Morocco, Tunisia and in the Italian colonies.
Maliki teaching spread to West Africa and Islamic Spain where it received
official recognition. It also spread to Tunis, Algeria, and Morocco and
from there to Nigeria, West Africa and Upper Egypt.
4. The Zaydee Madhab (700-740)

Zayd ibn ‘Ali was a scholar concerned mainly with the narration of
Hadiths and recitation of the Qur’an. He taught in circles of learning in the
cities of Medina, Basrah, Kufah and Wasit, and thus had a large number
of students.
Eventually, Zayd became the first of ‘Ali’s descendants to try to wrest

the caliphate from the Umayyads after the catastrophe at Karbalaa. He
travelled secretly to Kufah where he was joined by the Shi’ites of
Iraq, Wasit and other places, and made preparations to battle with the
Umayyads. Before his preparations to complete, disputes arose among his
followers when they found out that he did not consider the first caliphs,
Abu Bakr and Umar, to be apostates who stole the caliphate from his
grandfather. The majority of his followers broke away from him and
declared his nephew, Ja’far as-Saadiq, to be the Imam of the time
instead of Zayd.
The method used by Zayd was that of narrating Hadiths and teaching
the art of Qur’anic recitation. If legal questions were raised, he would
solve them or choose an opinion of one of his contemporaries like the
jurist Abdur-Rahman ibn Abi Laylaa. The rulings of this Madhab were not
dictated nor recorded by Zayd himself but by his students. ’Amr ibn
Khalid was perhaps the most famous of Imam Zayd’s students and
compiled the Majmoo’ al-Khabeer (Majmoo’ al-Hadith and al-Fiqh).
Today, the followers of this Madhab are mostly found in Yemen where it
is the Madhab of the majority of its inhabitants.
5. The Laythee Madhab (716-91)
Al-Layth ibn Sa’d, scholar of Egypt, was a contemporary of both Imam

Abu Hanifah and Imam Malik. In fact, he carried on a debate with Imam
Malik by mail on various points of Islamic law, one of which was Malik’s
inclusion of Medinite custom as an independent source of Islamic law.
It is interesting to note that Imam Shafi’i who had studied extensively

under Malik and under alLayth’s students was reported to have observed
that al-Layth was a greater jurist than Malik, but his students neglected
him.
6. The Thawree Madhab (719-77)
Imam Sufyan ath-Thawree became the main Fiqh scholar of the Hadith
school in Kufah. He held similar views o those of his contemporary, Abu
Hanifah, however he opposed the latter’s use of Qiyas and Istihsan.
Caliph al-Mansoor (rule 759-74) invited him to accept the post of Qadi of
Kufah on condition that he not make any judgment or ruling in opposition
to the state policy. Upon receipt of the invitation, he tore it up and threw it
into the Tigris river in disgust, but as a result, he was forced to give up his
teaching and flee for his life. He remained in hiding until his death.

He spent the greater part of his life in hiding and thus was unable to attract
a large number of students. He requested in his will that his main student,
‘Ammar ibn Sayf, erase all his writing and burn whatever could not be
erased. ‘Ammar dutiful destroyed his teacher’s writings, but many of the
Imam’s ideas were recorded by students of other Imams, so they have
survived till today but not in an organized form.
7. The Shafi’i Madhab (769-820)
Muhammad ibn Idris Al-Shafi’i was a voluminous writer and founded a

new discipline, a study of the ‘roots of the law’, which we might call the
principles of jurisprudence. These roots were the Qur’an, the Sunna, the
consensus of jurists (ijma) and the process of analogical reasoning (qiyas).
This school was particularly strong in logic and reason.
He studied Fiqh and Hadith under Imam Malik and succeeded in

memorizing the whole of Malik’s book, al-Muwatta, and reciting in
verbatim.
He became the mediator to the dispute of the ‘People of Hadith’ and the
‘People of personal Opinion’. He accepted the doctrine of Qiyas, a
method of deduction from analogy and while at his hands, properly
applied and became in effect a fourth source of law.
Imam Shafi’i holds the distinction of being the first Imam to systemize the
fundamental principles of Fiqh which he recorded in his book called ar-
Risalah.
They spread to Egypt especially those of Lower Egypt, East Africa,

southern Arabia, Bahrain, the west coast of India and Sri Lanka, also
in Malaysia, Indonesia and parts of Central Asia.
Sources of Law used by him:
a. The Qur’an
b. The Sunna
c. Ijma
Although Imam Shafi’i had serious doubts about the possibility of the
Ijma in a number of cases, he conceded that in the few cases where it
was known to have occurred, it should be regarded as the third most
important source of Islamic law.
d. Individual Opinions of the Sahabah
Credence was given to the individual opinions of the Sahabah on

condition that they were not at variance with each other. If there were
conflicting opinions among the Sahabah on a legal point, he, like Abu

Hanifa, would choose whichever opinion was the closest to the source
and leave the rest.
e. Qiyas
It was a valid method for deducing further laws from the previous
sources. However, he placed it last in order of importance, considering
his personal opinions inferior to proofs based on the opinions of the
Sahabahs.
f. Istishab (linking)
Both the principle Istihsan used by Abu Hanifa and Istislah used by
Malik were rejected by him and considered a form of Bid’ah
(innovation), since, in his opinion, they were based mostly on
human reasoning in areas where revealed laws already existed.
However, in dealing with similar issues, he was obliged to use a
principle similar to Istihsan and Istislah which he called Istishab.
Istishab literally means seeking a link, but legally it refers to the

process of deducing Fiqh laws by linking a later set of
circumstances with an earlier set. It is based on the assumption that
the Fiqh laws applicable to certain conditions remain valid so long
as it is not certain that these conditions have altered. If, for
example, on account of the long absence of someone, it is doubtful
whether he is alive or dead, then by Istishab all rules must remain in
force which would hold if one knew for certain that he was still alive.
8. The Hanbali Madhab (778-855)
Ahmad Ibn Hanbal as-Shaybaanee was a teacher of the Traditions in

Baghdad. He differed from Shafi’i in teaching that the only roots of the
law were the Qur’an and the Sunna. The divine law was not in any way
dependent on human reasoning. Ibn Hanbal attained a great reputation as a
teacher and asserted his views with such independence that he suffered
imprisonment and persecution from the Caliph and his officials.
He went through a series of persecutions under the caliphs of his time due
to their adoption of Mu’tazilite22 philosophy. He was jailed for two years
by order of Caliphal-Ma’moon (rule 813-842), and later set free. He
continued teaching in Baghdad until al-Waathiq became calip (rule 842-
22
A follower of the philosophical school of thought commonly called rationalism. This school was
founded by Waasil ibn ‘Ataa and ‘Amr ibn ‘Ubayd during the eight century. It later became the official
philosophy of the ‘Abbasid state and an inquisition was instituted in order to force all scholars to abide by
it. However, Caliph Mutawakkil abandoned it and lifted the inquisition. Among its more notable principles
were the belief that Allah was everywhere, the belief tht the Qur’an was created and only its meanings
were divine, that Allah would not be seen by the people of Paradise, that man has free will without divine
interference, and that one who commits a major sin enters a state between belief and disbelief.

846) and renewed the persecution. Thereupon, he stopped teaching and

went into hiding for five years until Caliph al-Mutawakkil (847-861) took
over. Caliph al-Mutawakkil ended the inquisition permanently by
expelling the Mu’tazilite scholars and officially rejecting their philosophy.
Imam Hanbali continued to teach in Baghdad until he died in the year 855.
He was the author of several treaties including the Musnad, a collection

of traditions, arranged according to the transmitters. All other collections
are arranged according to subject matter.
Ibn Taymiyya, a great 14th century Hanbali scholar, rejected the

consensus of scholars as it was then taught and insisted on an improved
quality of reasoning by analogy. His conception of consensus was
extremely rigorous and purification of doctrine was one of his great
endeavors. He has left a permanent and lasting impression upon Islamic
jurisprudence.
This school developed the theory of jurisprudence, producing may

elaborate theses on the ‘roots of law’. It is usually regarded as the strictest
of the schools, for its rejection of any proposition not based on the
Qur’an and the Sunna. It is the official school in Saudi Arabia and is
chiefly found in the Arabian Peninsula.
a. The Qur’an
b. The Sunna
c. Ijma of the Sahabah
He recognized and place it in the third position among the fundamental

principles. However, he discredited the claims of Ijma outside the era
of the Sahabah as being inaccurate, due to the vast number of scholars
and their wide diffusion throughout the Muslim empire. In his opinion
Ijma after the era of the Sahabah was impossible.
d. Individual opinions of the Sahabah
If a problem arose in an area where the Sahabah had expressed

conflicting opinions, Hanbali, like Malik, would give credence to all
the various individual opinions. Because of that, there developed
within the Madhab many instances of multiple rulings for individual
issues.
e. Hadith Da’ef (Weak Hadith)
For a ruling on a case where none of the previous four principles

offered a ready solution, the Imam used to prefer to use a weak
Hadith rather than applying his own deductive reasoning (Qiyas).
However, this was on condition that the weakness of the Hadith was

not due to the fact that one of its narrators was classified as a
Fasiq (degenerate), or a Kadhab (liar).
f. Qiyas
As a last resort, he would reluctantly apply the principle of Qiyas and

deduce a solution based on one or more of the previous principles.
9. The Dhaahire Madhab (815-83)
Dawud ibn ‘Ali studied Fiqh under Imam Shafi’i and later shifted to study
of Hadith under Imam Ahmad Hanbali until he was expelled because he
voiced the opinion that the Qur’an was Muhdath (newly existent) and
therefore created. After his expulsion, he took an independent path of
reasoning based on the obvious and literal meanings (Dhaahir) of the texts
of the Qur’an and the Sunna. Due to this approach, his Madhab was called
the Dhaahiri Madhab and he became known as Dawud adh-Dhaahiri.
a. The Qur’an and the Sunna
Dawud considered the Qur’an to be the foremost source of Islamic law

followed by the Sunna. However, only literal interpretations of their
texts were considered by him to be valid. That is, they were only to be
applied in the particular circumstances which they described.
b. Ijma of the Sahabah
He gave credence to the ijma of the Sahabah and reasoned that their
unanimity would only have been on points of law revealed to the
Prophet Muhammad (pbuh) and known to the Sahabah, but not
narrated as Hadiths for some reason or other.
c. Principle of Mafhoom (understood meaning) instead of Qiyas
Since he limited the application of Qur’an and Sunna to their literal

meaning, he automatically denied the validity of rulings based on any
form of reasoned opinion, including Qiyas. However, the principle of
Mafhoom (understood meaning) which he applied to the Qur’an and
Sunna in place of Qiyas turned out to be virtually indistinguishable
from Qiyas (analogical deduction).
10. The Jareeree Madhab (839-923)
Muhammad ibn Jareer ibn Yazeed at-Tabari acquired a high degree of

proficiency in the fields of Hadith, Fiqh, and history. As a travelling jurist,
he studied the systems of Abu Hanifah, Malik, Shafi’i and others. For the
first ten years after his return from Egypt he strictly followed the Shafi’i

Madhab. At the end of that period he founded a school of his own, whose
followers called themselves Jareerites.
The most noted for his outstanding Tafsir of the Qur’an which he called
Jami’ al-Bayan, but which became known as Tafsir at-Tabari. Of equal
importance and fame was his history of the world called Taarik ar-Rusul
wal Mulok, commonly known as Taarik at-Tabari.
The major Madhabs were: the Hanafi, the Maliki, the Shafi’i, and the Hanbali.
They survived largely because the State supported the body of outstanding first
generation students. Although, the most important minor Madhabs were: The
Awzaa’e, Dhaahire, and Jareeree. They went out of existence either because of
political factors or because their students failed to record the rulings of the
founders for posterity.
The principal sources of Islamic law agreed upon by all the major Madhabs
were: the Qur’an, the Sunna, Ijma of the Companions and Qiyas. All of the major
Madhabs set conditions for the acceptance of the Sunna as a primary source of
Islamic law:
a. The Hanafi Madhab stipulated that the Hadith be widely known

(Mashhoor).
b. The Maliki Madhab required that the Hadith not contradict the Ijma of the
Medina.
c. The Shafi’i Madhab insisted that the Hadith be aunthentic.
d. The Hanbali Madhab only required that the Hadith be attributed to the
Prophet Muhammad (pbuh)and not fabricated. Thus, Hadiths of doubtful
authenticity were considered a part of the Sunna.
The controversial sources of Islamic law were:
a. Istihsan and Ijma of scholars, held by the Hanafi Madhab;
b. Istislah, Ijma of the Medinites and their customs, held by the Maliki
Madhab;
c. ‘Urf, held by both the Hanafi and Maliki Madhabs;
d. Weak Hadith, held by the Hanbali madhab;
e. Aqwaal ‘Ali (rulings and statements of the fourth righteous caliph, ‘Ali),
held by the Zaydee Madhab.
Reasons for Conflicting Rulings of the Madhabs: Although the Imams of the
four major Madhabs were all agreed on the primacy of the four fundamental
principles of Islamic law (the Qur’an, the Sunna, Ijma and Qiyas), certain
differences have occurred and still exist among the rulings of their Madhabs.
1. Interpretation of word meanings and grammatical constructions;

- Varying rulings arose from differences in interpretation which

were themselves attributable to variations in word meanings
(shared, literal, and figurative) and grammatical constructions (e.g.
Qur’, Lams and elaa).
2. Narrations of Hadith (availability, authenticity, conditions for acceptance,

and interpretation of textual conflict);
- In the application of Hadiths, a ariation of legal rulings occurred

depending on the degree of availability of theHadiths, their
authenticity, the conditions imposed for their acceptance and the
methods of resolving textual conflicts.
3. Admissibility of certain principles (Ijma, customs of the Medinite,

Istihsan, and opinions of the Sahabah); and
- Some Imams evolved certain secondary legal principles and made

rulings based on them. Both the principles and the rulings were
rejected by other Imams (e.g. Istihsan and Ijma of the Medinites).
4. Methods of Qiyas.
- The secondary principle of Qiyas was generally accepted, but the

rules governing its deductive procedures varied among Imams
resulting in a variation in their rulings on similar issues.
It is of interest to the modern law student to know that large seats of learning grew
up in the Islamic legal world as a consequence of all this concentration on juristic
scholarship. One of these that have survived to this day is Al-Azhar University
founded in 969 AD and perhaps the oldest continually functioning university in
the world.
As already observed that the successful lawyers were both teachers and
consultants, thus muftis were persons who had usually spent some years as
teachers of the law. These muftis (jurisconsults) were consulted by the judges
when confronted with a legal problem of difficulty. The legal opinion or fatwa of
the muftis were recorded and were given a persuasive weight but not binding on
the judges.
b) State and explain the three (3) kinds of mujtahid.
The three kinds of mujtahid are the following:
a) Full Mujtahid (mujthaid fi’l shar’). This rank is assigned to those who meet all
the requirements of ijtihad. They deduced the ahkam from the evidence in the sources,
and in so doing were not restricted by the rules of a particular madhab.
b) Mujtahid within the school (Mujtahid fil Madhab). These are jurists who are
expounded the law within the confines of a particular school while adhering to the
principles laid down by their Imams.

c) Mujtahid on Particular issues (Mujtahid fil Masail). These are jurists who are
competent to elucidate and apply the law in particular cases which are not settled by the
jurists of the first and second ranks. Their main pre-occupation is to elaborate the law on
fresh points which were not clearly determined by the higher authorities.
VIII. a) Explain the following Islamic maxims
1) Necessities or Darurah make forbidden things canonically harmless. This

means that necessity renders prohibited things permissible. For example, eating flesh of
pork when your starving and no food is available other than pork.
2) The smaller of the two harm is choose. This implies that, when you are
confronted by two evils, choose the lesser one or when a state of emergency, the less
harmful act may be done to avoid a severe one. For example, to destroy a house to
prevent fire from spreading and causing more destruction.
3) Hardship or mashaggah causes the giving of facility. This means that

difficulty mitigates liability. e.g., stealing a fruits from an orchard because of hunger.
IX. a) What are kinds of revelations of the Prophets sent prior to Prophet
Muhammad saw still applicable or binding upon us? Explain
Kinds of revelations of the Prophets sent prior to Prophet Muhammad saw still
applicable or binding upon us are as follows:
a) Rules that have been found repeated in the Qur’an or the Sunna and made
obligatory. These texts themselves provide the evidence about the binding nature of the
laws and we do not have to refer to the earlier scriptures. These laws are binding on us
just as they were binding on the earlier nations. Example, fasting in the month of
Ramadan.
b) Rules that have been described in the Qur’an or in the Sunna, but are
considered abrogated. Rules about carrion, blood, flesh of swine and the like.
c) Rules that are not mentioned in the Qur’an but are found in the earlier
scriptures. There is no dispute that these are not binding on us.
d) Rules that are mentioned in the Qur’an and Sunna but there is no evidence
whether or not they are to be followed. The example given by some jurists under this
heading is that of Qisas (retaliation). There is, however, ample evidence in the texts that
is it binding on us.
b) Distinguish between:
1) Hadith Qudsi and the ordinary hadith;
Hadith Qudsi is, as to the meaning from Allah swt, as to the wording from the
Prophet saw. It is Allah swt has communicated to His Prophet saw through revelation or
in dream, and the Prophet has communicated it in his own words. Whereas, ordinary
hadith conveyed the reports (verbal or written) about the Sunna of the Prophet saw.

2) Hadith Qudsi and a verse of the Qur’an
The distinction between hadith qudsi and a verse of Qur’an are as follows:
a) In Qur’an, the precise wording is from Allah swt; while in Hadith Qudsi, the
wording is given by the Prophet Muhammad saw.
b) The Qur’an has been brought to Muhammad only by the angel Jibreel, while
Hadith Qudsi may also have been inspired otherwise such as dream.
c) The Qur’an is inimitable, unique and protected by Allah but not so the hadith
Qudsi.
d) The Qur’an is divided into chapters and verses. There is no such organization
to Hadith Qudsi.
e) Hadith Qudsi cannot be recited in prayer, as the Qur’an can be recited in

prayer.
f) There is a specific reward for reciting each letter in the Qur’an , while reward
of reading Hadith Qudsi is general.
X. a) What are the kinds of legislations during the lifetime of Prophet at Medina?
The kinds of legislations during the lifetime of Prophet at Medina are as follows:
a) Divine legislation
b) By percept or ijtihad
c) By spirit of the law
b) Explain the rules on transmission of Ijma. Can the Muslim Filipinos of today
make their own Ijma?
The transmission of the ijma will start when the Muslim scholars are called to
unite their opinions to the question arose and after they have had sufficient time to mature
their deliberations, it will starts to be binding and authoritative to the Muslim community
including the mujtahid who took part in it, and hence, it is no longer open to anyone of
them to express dissent.
Yes. the Muslim Filipinos of today can make their own Ijma provided they have
reach all the requirements and conditions in formulating decision such as being mujtahid,
has a thorough knowledge of the Qur’an and Hadith and so on.

1987 SHARIAH BAR EXAMINATION ON

ISLAMIC JURISPRUDENCE (FIQH) AND CUSTOMARY LAW (‘ADAT)
I. a) Distinguish fiqh from Shariah.
The difference between fiqh and shariah are as follows:
i. Shariah is a body of revealed law found both in the Qur’an and in the Sunnah;
Fiqh is a body of laws deduced from Shariah to cover specific situations not
directly treated in Shari’ah Law.
ii. Shariah is fixed and unchangeable; Fiqh changes according to the circumstances
under which it is applied.
iii. The law of Shariah are, for the most part general; they lay down basic principles.
In contrast, the laws of fiqh tend to be specific; they demonstrate how the basic
principles of Shariah should be applied in given circumstances.
iv. Shariah covers all human action; Fiqh deals only with what are commonly
understood as legal acts.
v. The path of Shariah is laid down by God and his prophet, the edifice of Fiqh is
erected human endeavor.
vi. In Fiqh, an action is legal or illegal, permissible or not permissible. In Shariah,

b) Define Qanun and give example.
The word canon law which, in Arabic is Qanun, was borrowed in both cases from
the Greek. In Islamic jurisprudence, the word Qanun, has come to denote as man-made
law. Thus, the term Qanun means a rule, a regulation, a law, or a statute referring in
particular to secular laws. However from the European concept, the term canon means a
body of ecclesiastical law, which originated in the church of Rome, relating to matter of
which the church has or claims jurisdictions. An example of which is the Revised Penal
Code of the Philippines.
c) What are the four (4) bases of fiqh? Classify them.

The four sources of fiqh that are agreed upon are the Qur’an, the Sunna
(traditions of the Prophet), the Ijma (consensus of opinion), and the Qiyas
(analogy).
The primary sources of Muslim Law and Jurisprudence are:
a. The Qur’an; and

b. The Sunna
The secondary sources of Muslim Law and jurisprudence are:
a) The Ijma, and

b) The Qiyas.
II. a) Give the different kinds of Sunna with respect to their transmission.
Three (3) kinds of Sunnah with respect to its transmission:
i. Mutawatir (continuous): These were narrated by numerous Companions and a

good number of followers and then their followers. This are considered the most
reliable and acceptable for purposes of legal matters.
ii. Mashoor (famous): These were narrated by a good many of the followers and
their followers but comparatively a few Companions have narrated them. These
are next to Mutawatir and acceptable as a source of law.
iii. Ahad (isolated): These were narrated during the period of the followers of the
Companions by numerous people.
b) What is the function of the Hadith in relation to the Qur’an?
Hadith aids to understand the meaning of the Qur’an by explaining them,

by giving details of general rules, by providing conditions or exceptions to the
application of the rules, or by defining them when they are susceptible of several
meanings. It also lays down rules of conduct and laws in some matters not dealt
with in the Holy Qur’an.
c) Name at least four (4) authoritative compilations of the Hadith.
Among the authoritative compilations of the Hadith are:
c. Sahih Bukhari;
d. Sahih Muslim;
e. Sunan Abu Dawud; and
f. Jami’ Tirmidzi.

III. a) For purposes of administration of P.D. 1083, who is considered a

Muslim?
The P.D. 1083 also known as The Code of Muslim Personal Laws of the
Philippines defines Muslim as a person who testifies to the oneness of God and
the Prophethood of Muhammad and professes Islam.
b) Does the Code of Muslim Personal Law apply to all Muslims whether
they are so birth or conversion?
Yes, Muslim Personal Law applies to all Muslims, considering the

provision of the Muslim Code which substantially provides that, the provisions of
this Code shall be applicable only to Muslims, it may be interpreted as whether
they are Muslims by birth or by conversion, provided they are residing in the
Philippines.
c) What are the effects of the change of religion by non-Muslims to Islam

under P.D. 1083?
Pursuant to the Muslim Code, which substantially provides that, the

registration of a person’s conversion to Islam shall constitute a prima facie proof
that he professes Islam and whoever disputes the profession or renunciation of
Islam by any person shall have the burden of proving the contrary. Moreover, the
conversion of non-Muslim spouses to Islam shall have the legal effect of ratifying
their marriage as if the same had been performed in accordance with the
provisions of this Code or Muslim law, provided that there is no legal impediment
to the marriage under Muslim law.
IV. a) Enumerate the sources of the Code of Muslim Personal Laws of the
Philippines.
The sources of the Code of Muslim Personal Laws of the Philippines are the
following:
a) The Qur’an;
b) The Sunna;
c) Ijma;
d) Qiyas;
e) Istihsan;
f) Istislah;
g) Istidlal;
h) Istishab;
i) Customary Law (Urf); and
j) The Constitution of the Philippines.
b) State the “conflict of provisions” rule under P.D. 1083.
The P.D. 1083 substantially provides, with regards to the conflict of

provisions rule in the P.D. 1083 that, in case of conflict between any provisions of
this Code and laws of general application, the former shall prevail. Should the
conflict be between any provision of this Code and special laws or laws of local
application, the latter shall be liberally construed in order to carry out the former.
However, the provisions of this Code shall be applicable only to Muslims and
nothing herein shall be construed to operate to the prejudice of a non-Muslim.
c) What branches of Muslim laws are included within the scope of Muslim
Personal Laws?
Pursuant to the provisions of the P.D. 1083 which substantially states that,
Muslim Personal Law includes all laws relating to personal status, marriage and
divorce, matrimonial (rights and obligations between spouses) and family
relations (paternity and filiation, guardianship and custody, support and
maintenance), succession and inheritance, and property relations between
spouses, as provided for in this Code.
V. a) How is ‘adat proven as a source of Muslim law?
The Muslim code substantially provides for the rule in the proof of Muslim law
and ada that, Muslim law and ada not embodied in this code shall be proven in evidence
as a fact. No ada which is contrary to the Constitution of the Philippines, this Code,
Muslim law, public order, public policy or public interest shall be given any legal effect.
Adat, in order to be considered as a binding rule by the court, must meet the
following requisites:
a) It must have the force of law upon the community;

b) It must be generally acceptable to the community;
c) It must not be contrary to the constitution of the Philippines, the Muslim code,
other Muslim law, public order, public policy or public interest;
d) It must be proven in evidence as a fact.
b) What are the conditions of a legally binding urf?
The conditions of a legally binding Urf are as follows:
a) It must be reasonable, and compatible with good sense and public sentiment and
acceptable to people of sound nature;
b) A custom must be of frequent and common recurrence;
c) A custom is prevalent at the time of the transactions or previous thereto but not to
later custom;
d) It must not contravene the clear stipulation of an agreement; and
e) A custom is valid only if it is not conflict with a text.
d) State the five universal aims of the Shariah
The five universal aims of the Shariah (Maqasid Al-Shariah) are the following:

a) The preservation of Life (Nafs);

b) The preservation of Religion (Din);
c) The preservation of Progeny/Procreation (Nasl);
d) The preservation of Intellect (Aql); and
e) The preservation of Wealth/Property (Mal).
VI. a) Distinguish between a fatwa given by the Mufti and a Hukm rendered
by a Qadi.
A fatwa given by the Mufti (Jurisconsult) and a Hukm rendered by a Qadi (Judge)
may be distinguished as follows:
i. The Fatwa of a Jurisconsult has a persuasive effect upon the Muslim

community as a whole, while the decision of a Judge (hukm al-qadhi) is
binding upon the parties in a given litigation;
ii. Fatwa is not binding upon the Judge who sought it; he may or may not adopt
it. Whereas judgment of a Judge (hukm al-qadhi) is binding upon himself; he
is bound to obey, respect and implement his decision.
c) What is the weight of authority of standard works on Muslim law before

our Shari’ah Courts?
Standard treatises and works on Muslim law shall have persuasive weight
upon the Shari’ah Courts and although the court is not bound to follow them,
nevertheless on the strength of their merit as being just, sound, or equivalent, it
may make use of them as aids in the interpretation or construction of Code or
other Muslim law in order to ascertain the meaning of the terminology of the law
or the aim of the lawmaker in enacting it.
d) Name at least five (5) standard works of the four Sunni schools of law.
Among the standard works of the four Sunni Schools of Law are the following:
i. Hidayah of Nu’man ibn Thabit, also known as Imam Abu Hanifa;

ii. Al-Muwatta (The Beaten Path) of Imam Malik ibn Anas ibn ‘Amir;
iii. Al-Umm (The Essence) of Muhammad ibn Idrees ash-Shafi’i;
iv. Ar-Risalah of Muhammad ibn Idrees ash-Shafi’i;
v. Al-Musnad Al-kabeer of Ahmad ibn Hanbal ash-Shaybane.
VII. a) Discuss Istihsan and Istislah as a source of Muslim law.
Istihsan is rendered in English as Juristic preference. The literal meaning of

Istihsan is preferring or considering a thing to be good. Juristically, it is a method of
exercising personal opinion in order to avoid rigidity and unfairness that might result
from the literal enforcement of the existing law.

On the other hand, Istislah is consideration of public interest or welfare. It is a

method of deduction of law based on general consideration of the public good. More
technically, it is defined as consideration which is proper and harmonious to the
objectives of the Lawgiver; it secures a benefit or prevents harm. It is also defined as the
establishment of legal principles or Hukm, which is recommended by reason of being
advantageous.
b) Distinguish rukun from shart by giving examples.
In a valid contract of marriage, Rukn (elements) and Shart (conditions) may be

distinguished as provided:
The essential elements of a valid marriage are provided in PD 1083 such as:
(a) Legal capacity of the contracting parties;
(b) Mutual consent of the parties freely given;
(c) Offer (ijab) and acceptance (qabul) duly witnessed by at least two competent persons after the
proper guardian in marriage (wali) has given his consent; and
(d) Stipulation of customary dower (mahr) duly witnessed by two competent persons.
The shart (conditions) is like with filing of marriage contract at the Shariah Court which
indicates the all agreement between the spouses to the said contract [ Al muslimon ala
surotiehim. (hadith)]
c) Distinguish between Ijma and Shura.
Ijma and Shura may be distinguished as follows:
i. Ijma is a legal tool for producing legal rules based on the consensus of legal
experts while Shura is merely consultation with people who may or may not
be experts in law, to derive their opinion to a particular question or affair;
ii. Ijma produces rules which must be followed; whereas the result of Shura does
not always carry the mandatory effect of law.
VIII. a) Give a brief historical background of the development of the four

Sunni schools of law.
The development of the Great Imams began on 750 C.E. when the number of
Madhabs decreased into four namely the Hanafi, the Maliki, the Shafi’i, and the Hanbali
Madhabs, due to the state’s preference for some schools over others.
a. The Hanafi Madhab is named after its founder Abu Hanifah whose actual
name was Nu’man ibn Thabit. He taught at the age of 40 years and
became the most outstanding scholar in Kufah. He was considered as a
minor tabi’un because he had met few of the Sahabah and had related

some Hadith from them, and had written the book al-Risalah. Proponents
of this school are known as “what-iffers” or “Ahl ar-Ra’y”. Hanafi
Madhab developed the principles of Istishab.
b. The Maliki Madhab is named after Malik ibn Anas ibn ‘Amir, a madinan
native. He largely limited himself to the knowledge available in Madina.
He taught Hadith for 40 years and had managed to compile a book entitled
al-Muwatta. His teaching was based on Hadith. He strictly avoid
speculation and hypothetical Fiqh thus they referred to as the people of
Hadith (Ahl al-Hadith). He also applied Istihsan except that they called it
Istislah.
c. Shafi’i school was named after Muhammad ibn Idres ash-Shafi’i. He had
study Hadith under Maliki and students of Hanafi. He is the first to
systematize the fundamental principles of Fiqh which he recorded in his
book ar-Risalah. He rejected Istihsan and Istislah and considered them as
Bid’ah, rather he use the principle of Istishab.
d. Hanbali School is attributed to Ahmad ibn Hanbal ash-Shaybanee. He

studied under the students of Imam Hanafi, as well as under Imam Shafi’i
himself. He had collected a book known as al-Musnad. Bukhari and
Muslim were among his famous students.
b) What are the principal characteristics of Shariah law?
Among the principal characteristics of Shariah law are its being divine, eternal,
unchangeable, comprehensive, idealistic, realistic and naturalistic.
c) Compare the civil law system and the Islamic laws system.
The fundamental differences between Civil law and Islamic law as pointed
out by Mahmassani are:
i. In Civil law, women were under perpetual tulelage. They were not
empowered throughout their lives to deal with their property without the
permission of their guardians. The Shariah, on the other hand, recognizes
in principle the complete capacity of women to perform all kinds of lawful
transactions.
ii. The dowry in Civil law was a payment to the husband by his wife or one
of her family while, in Muslim law the payment it to the wife by the
husband.
iii. Adoption is not recognized in the Shariah while it was an accepted

institution in Civil law.
iv. Formalism and compilation were evident in civil contracts and in Civil
rules of procedures, while the contrary is the case in the Shariah. In the

latter it is a maxim that effect is given to intention and meaning and not to
words and forms.
v. The transfer of debt was illegal in Civil law, while in Islamic law it is
sanctioned by all schools of jurisprudence without exception.
vi. There are distinct differences between the two systems in questions of
inheritance and wills. In the Shariah for example, a bequest (in a will) to
an heir is unlawful, while in Civil law wills were originally instituted for
the purpose of appointing the heirs.
vii. The rules of pre-emption and family waqf (endowments) have no parallel
in Civil law.
IX. M, a Muslim died leaving a property, which included a private cemetery.

It appears that his children converted the lot into a memorial park by
permitting the bodies of strangers to be buried there for sale or lease of
the graves.
a) Is it permissible according to Muslim jurisprudence to divide and

distribute incomes from such cemetery among the heirs?
Yes, it is permissible to divide and distribute incomes from such cemetery

because though they converted it into a memorial park it still constitutes as private
property thus it will make up as among the estates of the deceased.
b) Will it make any difference under Muslim jurisprudence given the fact
that the property was formally appropriated as a waqf by M?
Yes, it makes difference because a Waqf is irrevocable, permanent and

inalienable. It is a property vest in God thus it cannot be converted by the heirs of the
deceased into other means that works on their personal benefit.
c) Does the cemetery constitute a communal property under the provision of

the P.D. 1083?
Yes, a cemetery constitute a communal property pursuant to the provision of the

P.D.1083 which substantially provides that, ancestral property, which shall comprehend
hallowed ancestral plot, ancestral shrine, royal court, and similar properties constitutes
communal property.
Cemetery is an ancestral shrine thus it constitutes a communal property.
X. X, a Muslim divorced his wife Y who completed her iddah. Two years
later, X remarried Y a second time and then divorced her again. After
completing her second iddat, X decided to marry Y a third time.

a) Suppose Y files a divorce by khula after the third marriage, is idda still
incumbent upon her? Why?
Yes, iddah is still incumbent upon the wife who divorced her husband by khula
because this divorce is counted as one of the three divorces that the husband may
pronounce divorce his wife, which the wife initiated the divorce through Khul.
b) Under Muslim jurisprudence, can Y and X by mutual agreement waive

the right of iddah? Reason.
NO, under Muslim Jurisprudence, the right of iddah may not waive even by their
mutual agreement by the spouses. The spouses can not make an agreement by deception
of the law. The law says that idda must be observed during the divorce even the by
divorce by Khul.
c) What is the philosophy of the law behind the rule that after the third
divorce the wife becomes unlawful to him till she has been married to
another person?
This is a warning and punishment to the husband. It gives also moral lesson to the
spouses that divorce is not like a toy or a game that they can play it anytime they want.
1991 SHARIAH BAR EXAMINATION ON ISLAMIC

JURISPRUDENCE (FIQH) AND CUSTOMARY LAWS (‘ADAT)
I. a) Define Shariah and differentiate it from Hukm.
Shariah literally means a water hole where animals gather, road to watering place,
straight path or way. Shariah is the name given to the totality of God’s commandments.
In its legal terminology, that which would not been had there not been a divine

revelation. Islamically, it refers to the sum total of Islamic laws which were revealed to
the prophet Muhammad (pbuh), and which are recorded in the Qur’an as well as
deducible lifestyle called sunna;
Whereas hukm is defined by Muslim jurist as “that which is establish by a

communication from God with reference to men’s act, expressive either of demand or
prohibition or indifference on his part being merely declaratory.
b) Define Fiqh and differentiate from Usul ul-Fiqh.
Fiqh literally means the true understanding of what is intended. It is defined as

“the deduction of Shariah value relating to conduct from their respective particular
evidences. Technically, it is the scientific study and elucidation on Shariah. 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.
II. a) What is the difference between a Sunna and a Qur’anic verse? Explain
how each was revealed.
The distinction between a Sunna and a verse of the Glorious Qur’an are:
i. Qur’an is a word of Allah swt, it is a divine order, a dictates of Almighty;

whereas Sunna is the words, actions or deeds of the Prophet who is human
being;
ii. Qur’an is reported in its precise wording while Hadith is not necessarily
reported in its precise wording,
iii. Qur’an is preserved and protected by Allah swt from any corruption; whereas
hadith is subject to distortion, not protected by against corruption.
recited in prayer
b) Differentiate Sunna from Hadith.
The difference between Sunna and Hadith are as follows:
i. Sunna literally means a way, rule or manner, example of acting and mode of
life; Hadith is a saying conveyed to man either through hearing or revelation,
ii. Sunna refers to the prophet’s saying, action and practices, while Hadith implies
the narration of the record of the Sunna and also contained historical elements.

iii. Hadith is the story of an eyewitness concerning what the prophet said, did or
tolerated in connection with certain situation or occurrence; whereas Sunna id
practical deduced from it.
III. a) Is the Shariah value of the Sunna similar to the Qur’anic Shariah value in
the matter of demanding obedience? Explain.
Yes. Shariah value of the Sunna is similar to the Qur’anic Shariah value in the
matter of demanding obedience in the sense that, Qur’an and Sunna are transmitted to us
by the Prophet himself. Hence, even the Holy Qur’an mentioned in surah23 that obey
Allah and obey the messengers.
On the other hand, the glorious Qur’an is word of Allah and Sunna is the sayings
and actions, it must be executed in the same manner.
b) Will there be an instance where the rules of law of the Qur’an contradict
the rules of the law of Sunna? Explain.
No. because it is believed that the Prophet never said anything unless he was
inspired by the dictates of Almighty Allah.
IV. a) Define Ijma and explain its basis or justification.
Ijma is derive from the word Jama’ means to add, to agree and to solve. Literally
means agreement upon matter or unanimity of opinion. Technically means, an agreement
or consensus of the Muslim scholars of a given generation after the death of Prophet
Muhammad (pbuh) to formulate independent judgment in a legal or theological
questioned based on any of the sources of the Islamic law.
It is also defined as the consensus of the Muslim jurists of any particular period
concerning the Shariah value.
Authority of Ijma:
i. From the Qur’an: “O ye who believe obey Allah, obey the Messenger and
those of you who are in authority and if you have a dispute regarding any
matter refer back to Allah and his Messenger.”24
ii. From the Tradition of Prophet Muhammad (pbuh):
- My people will never agree an erroneous things.
- What Muslims agree to be good is also good in the eye of God. (vox
populi vox dei.)
- It is incumbent upon you to follow the most numerous body.
23
Qur’an 4:59
24
The Qur’an, 4:59

b) What is the Shariah value of Ijma?
The shariah value of Ijma is obligatory to us. Once the unanimous declaration is
made and 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.
V. a) Define Qiyas and explain its basis.
Qiyas is analogical deduction or reasoning. In the literal sense Qiyas means

comparing, measuring, accord and equality. In the legal sense, it is a process of deduction
by which the law of a text is applied to cases which, though uncovered by the language of
the text, are covered by the reason of the text. Technically, it is the extension of Shariah
value from the original case to a new case because the latter has the same effective cause
as the former.
The basis of qiyas is in the hadith of Mu’adh b. Jabal. It is reported that the
prophet asked Muadh upon the latter’s departure as judge to Yemen, question in answer
to which Muadh told the prophet that he would resort to his own ijtihad in the event that
fe failed to find guidance in the Qur’an and sunna, and the prophet was pleased with this
reply. Since Hadith does not specify any form of reasoning in particular, analogical
reasoning falls within the meaning of this hadith.
Authority of Qiyas: “Should you dispute over anything, refer it to Allah and to
the Messenger, if you do believe in Allah and the last Day.”25
Qiyas does not have the same authority as the Qur’an or the Tradition of Prophet
Muhammad (pbuh), but to promote the welfare of men bringing positive advantages. Its
authority is merely presumptive and its open to judge or jurist not to follow or follow.
b) State and explain the four (4) conditions and requisites of Qiyas.
i. The origin on the foundation (asl). This is the original case on which a ruling is
given in the text and which analogy seeks to extend to a new case.
ii. The branch, to which the ruling is to be extended. This is the new case (far’) on
which a ruling is wanting.
iii. The rule ( hukm). This is the Shariah value of the original case which is to be
extended to the new case.
iv. The effective cause (illah). This is an attribute of the Asl and it is found to be in
common between the original and the new case.
25
The Qur’an, 4:59

VI. a) Define abrogation.
Abrogation (naskh) literally means obliteration, transcription or transfer. It is also

defined as suspension or replacement of one Shari’ah ruling by another, provided the
latter is of subsequent origin, and the two are in conflict with one another and it is not
possible to reconcile them or when the later law express repealed the former.
b) State and explain the four (4) ways of abrogation.
i. The repeal of the Qur’anic text by another text. Example is deals with
intoxicants that at one stage the use of it was utterly discouraged pointing out its
bad effects. Later people were asked, rather warned, not to touch and finally the
use of it was declared prohibited. This according to the commentaries of the
Qur’an, is an indirect way of nullifying the effect of earlier verse on the subject
in the Qur’an by replacing it later with a more concrete and powerful
expression.
ii. The repeal of hadith by another hadith. To quote an example, it is said that
the prophet, in one of his earlier percepts condemned, the practice of visiting the
graves of the deceased but later on he is believed to have allowed the people to
do so.
iii. The repeal of the hadith by Qur’an. The Muslim jurists agreeable to this.
Example of this is the direction of prayers. The prophet had enjoyed by his
percept that a Muslim while saying his prayers, should turn his face in the
direction of Jerusalem. This practice continued for some time and then a
Qur’anic text was revealed directing the Muslim to turn their faces towards
Ka’aba while saying his prayers.
iv. 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 , companions of Abu Hanifah and follower of Zahiri, believed that it is
possible for the Sunna 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”.
VII. a) Can a Muslim change his school (Madh-hab) at his own choice? Explain.
Yes. A Muslim can change his school at his own choice. Thus, following of the
learned without knowledge of the authority for such opinion. This refers to blind
imitation or taqlid.
A person is said to result to taqlid when he does not exert his own analytical
deduction in order to arrive at a rule but simply follows an existing rule formulated by
another.
b) Can a Muslim follow different schools (Madh-hab) at his own selection?

Explain.

Yes. A Muslim can follow different school at his own selection. Under Islamic
jurisprudence, it is known as Takhayur. Thus, liberty of an individual Muslim to be
governed by the law of any of the four schools of Islamic jurisprudence.
Takhayur is the technical term for selection of rules from the various schools of
law to apply different acts. It connotes that a person can select or choose among
Madhahib which to be followed in his particular actions, so long as it is from the four
orthodox.
VIII. a) Give and explain the basic principles laid down by the Glorious Qur’an
regarding divorce? Explain.
The principle laid down by the Glorious Qur’an are:
i. Divorced should be pronounced during the period of Tuhr. The Holy Qur’an
states, “O prophet, when you divorce women, divorce them in their prescribed
period.”26
ii. The pronouncement of divorced should be spread over three periods. The
Glorious Qur’an said, “Divorced women shall wait concerning themselves for
three monthly periods.”27
b) Can a Muslim wife divorce her husband who embraces another religion?
Explain.
Yes. A Muslim wife may divorce his husband who embraces another religion.
The intention of the law is that the husband as the administrator of the family and he can
forcefully convert her and their children to un-Islamic way of life. Hence, his decision,
being the head of the family is always prevailing.
The Muslim Code also substantially provides that the application of marriage and
divorce is for wherein both parties are Muslims, or wherein only the male party is a
Muslim and the marriage is solemnized in accordance with Muslim law or this Code in
any part of the Philippines. Therefore, the Muslim wife can divorce her non-Muslim
husband.
IX. “A”, a husband divorced his wife “B” and failed to reconcile with her within the
prescribed idda. “C” proposes to marry “B”
a) Has “A” have the right to prevent the proposed marriage of “C” to “B”? Explain.
In the case at bar, the wife has the choice whom she wants to for subsequent
marriage, due the failure of A to reconcile her during the waiting period of Idda.
Therefore, A has no right to prevent C to marry B.
26
Surah Al-talaq:1
27
Surah Al- Baqarah: 228

b) Has “A” have the better right to reconcile with “B” even at the opposition of the
latter? Explain.
“A” has no right to reconcile with “B” due to the opposition of “B”. it is believe
that the main objective of marriage is to obtain love and tranquility of both spouses.
Hence, “B” cannot find herself to be suited unto “A” then she may look for a subsequent
marriage.
X. a) Give the reasons and explain why the shares of one man are equal to the shares
of two women in inheritance (Mirath).
Among the reasons are:
i. Man has more responsibility than the woman. He is the one in charge to guard
his sister, in case of the absence of their father;
ii. Man is the one who will give mahr while woman is entitled to receive mahr; and
iii. Man is entitled to support his sister in case she is already divorced or widowed
and their father was absent.
b) Give and explain the justifications why the decedent’s son is preferred
over the decedent’s father in a residual succession.
The reason behind preferring the son over the father in a residual succession are:
i. The father is obliged to support his son therefore he must give more privilege
than the father.
ii. The son is one responsible to his father in case the father grow older.


I. Define the meaning of the following terms both as to common use and legal
terminology:
a) Fiqh or Islamic Jurisprudence

“the deduction of the Shariah values relating to conduct from their respective particular
evidences. Technically, it is scientific study and elucidation on Shariah. It is the
knowledge of right and obligation from Qur’an and Sunna. In its legal terminology, it is
the knowledge of all rules and commandments of Islamic law which are practical in daily
life, and derived from detailed proofs of law.
b) Shariah or Islamic law.
Shariah literally means a waterhole where animals gather daily to drink, the road
to watering place or the straight path or way. It is the name given to the totality of God’s
commandments. In its legal terminology, Shariah is defined as “that which would not be
known had there not been a divine revelation.” Islamically, it refers to the sum total of
Islamic law which was revealed to Prophet Muhammad saw, and which is recorded in the
Qur’an as well as in the deducible guided lifestyle called Sunna.

II. What are the sources of the Islamic Legal History and Legal Culture?
The sources of Islamic Legal History and Legal Culture are the Qur’an and Sunna
because the historical insight of Islamic legal history are found in these sources, as well
as ‘Urf because it contains legal culture.
III. a) Explain the doctrine of Ijma as a source of Islamic Law and its origin in
Qur’anic verses.
Ijma is derived from the word ‘Jama’ which means to add, to agree, or to solve.
Literally, Ijma means an agreement upon matter, or unanimity of opinion. Technically
means an agreement or consensus of the Muslim scholars of a given generation after the
death of Prophet Muhammad to formulate independent judgment in a legal or theological
question based on any of the sources of the Islamic law. It is also defined as “the
consensus of the Muslim jurists of any particular period concerning a Shariah value. In its
legal sense, it is those principles of law which are accepted unanimously.
When Imam Shafi’i was asked to quote the authority of Ijma it is stated that he
read out this Qur’anic verse to the effect: “But whosoever shall sever from the Prophet
after the guidance hath been manifested to him and shall follow any other path than that
of the Faithful. We will turn over back on him as he hath turned his back on Us and We
shall cast him into Hell – an evil journey thither (Surah V:115). Another justification of
Ijma is among the traditions of the Prophet when he quotes and say: “My people will
never agree on erroneous things.”
c) Explain the doctrine of Quasi-abrogation as it relates to Ijma.
Quasi-abrogation or Partial abrogation is form of abrogation in which one text is

only partially abrogated by another, and the remaining part continuous to be operative.
As to its relation to Ijma, a subsequent Ijma may abrogate an existing Ijma when the
former is founded on Maslaha Mursala, as when public interest ceases to exist.
IV. Explain the doctrine of Qiyas as a source of Islamic Law and its origin in
Qur’anic verses.

comparing. The root meaning of the word Qiyas is measuring, accord and equity. In the
legal sense, it is a process of deduction by which the law of a text is applied to cases
which, though uncovered by language, are covered by reason of the text. Technically, it is
the extension of a Shari’ah value from the original case (asl) to a new case (far’) because
the latter has the same effective cause (illah) as the former. In short the theme of all these
definitions is common that it is a process of deducing a rule of law based on the Qur’an,
Tradition, or Ijma in matters which have not been provided by a Qur’anic Traditionary
text.

Notwithstanding the absence of a clear authority for Qiyas in the Qur’an, the
jurists of the four Sunni Orthodox Schools have validated Qiyas and quoted several
Qur’anic passages in support of their views. Thus, among the references is made to Sura
Al Nisa (4:59) which reads in an address to the believers, to the effect: “Should you
dispute over anything, refer it to Allah and the Last Day.”
d) What are the four (4) pillars of Qiyas in reference to similitude as a

juristic basis for reasoning by analogy as far as the Hanafi School of law
is concerned?
The Hanafi jurist describes Qiyas as “to extend (ta’diyah) the Shariah value from
the original cause (‘asl) over to the subsidiary (far’) by reason of an effective cause
(‘illah) which is common to both cases.
Therefore, the four pillars of Qiyas according to the Hanafi School of law are:
a) The ‘asl;
b) The far’;
c) The hukm; and
d) The illah.
V. a) Explain the doctrine of Istihsan as it relates to the following views:
(1) Maliki’s; (2) Hanbali’s; (3) Hanafi’s; and (4) Shafi’i’s
i. A number of Maliki jurists accepted preference in Istihsan and defined it as “the

attention to (public) interest and justice”.
ii. The Imam Ahmad ibn Hanbal was said to have subscribed to the view of
Istihsan.
iii. The Great Imam Abu Hanifah and his followers made extensive use of opinion.
They held tenaciously to analogy and applied it unsparingly so that they made it
a measurement for all rules whether provided for in the texts or not. If there
should be however, a basis stronger than analogy such as text in the Qur’an or
Sunnah or consensus of opinion, they would set aside the apparent and
forthnight analogy and adopt instead the stronger basis through “Preference”
(Istihsan”.
iv. The Imam Al-Shafi’i disagrees with the majority over the issue, saying, “He
who practices preference assumes unto himself the power of law-making”. He
thought that using Istihsan is equivalent to making new rules of law (Bidah)
which is not permissible.
b) Give the Qur’anic justification of Istihsan.

Among the Qur’anic justifications in support of Istihsan, is provided to the effect:

“And follow the best (Ahsan) of what has been sent down to you from your Lord.” [Al-
Zumar:55]
c) Give three (3) examples of Istihsan to invoke Qur’anic justification and

explain.
Examples of Istihsan are provided as follows:
i. “Allah desires you ease and good not hardship.” [2:185] an example of which is
a sale subject to future redemption was allowed because of necessity, i.e., the
practical need for such transaction. In such an arrangement, the prospective
borrower sells his property to the lender on the condition that he shall have the
property back when he repays the price and the lender gets the use of the
property as a consideration.
ii. “(The distribution in all cases is) after payment of bequests and debts.” [4:11]
the bequest by which ownership over the property subject thereof is dependent
upon time, that is, the death of the testator.
iii. “And follow the best (Ahsan) of what has been sent down to you from your
Lord.” [Al-Zumar:55] the Qur’an distinguishes a superior course of conduct
from a mere ordinary one. For instance, punishing the wrongdoer is the normal
course enjoined by the Shari’ah but forgiveness may at times be preferable and
would thus represent the course of conduct.
VI. Explain the principles of Istishab known also as Istishab al-hal as a source of
Islamic law and give three (3) examples.
Istishab literally means association, escorting or companionship and permanency.

Technically, it is used to denote that things whose existence or non-existence had been
proven in the past should be presumed to have remained as such for lack of establishing
any change.
For examples:
i. The legal presumption of innocence until the proof of guilt is established;

ii. Things presumed Halal in the absence of prohibition;
iii. Marriage is presumed to continue until its dissolution becomes known.
VII. a) Distinguish the terms Urf and Adat (Custom). Give at least three (3)
distinctions.
Urf and Adat are synonymous and majority of the jurists have used them as such.
However, some observers have distinguished the two in the following manners:

i. 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.
ii. Individual habit is a personal adat of the people while; there will be no
personal habits of the individuals as their Urf.
iii. 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.
c) Give three (3) examples of each term Urf and Adat as accepted by Islamic
jurists.
Examples of Urf as accepted by Islamic jurists are:
i. The maintenance of children is the obligation of the father;

ii. The liability of the kinsmen of the offender for the payment of blood-
money or diyya; and
iii. The rules of inheritance attach to the male line relationship, known as
asabah.
On the other hand, examples of Adat as accepted by Islamic jurists are:
i. customary rules relating to the payment of dower in marriage may require a

certain amount to be paid before, during, or after the celebration of marriage;
ii. customary practice of charging a fixed price for entry to public bath which is,
strictly speaking, anomalous to the strict requirements of sale considering the
consumption of unknown quantity of water for a fixed price. However, the
people have accepted it and, therefore, it is valid;
iii. give-and-take sale which is normally concluded without utterance of offer and
acceptance.
VIII. Differentiate the following terms on juristic bases:

a) Neo-ijtihad
Neo-Ijtihad is translated to mean legislation particularly on matters relating to

laws of personal status.
b) Al-Siyasa al-Shariyya
Al-Siyasa al-Shariyya means a government in accordance with revealed law

coupled with the sovereign’s prerogative power of supplementing the doctrine of jurists

by administrative measures and regulations. It also refers to the administration of justice

by the State beyond the explicit law of the Shariah.
c) Talfiq
Talfiq means to piece together constituent parts from various schools in a single
act of worship. It is also refers to the term for combining the rules of more than one
school to apply to a specific act.
IX. Explain the doctrines of ibaha (tolerance of the law-giver) as it relates to the
exercise of the principle of Al-Siyasa al-Shariyya.
The original principle in Islamic law and jurisprudence is permissibility which,

states that everything are permissible unless legal evidence prohibits it. This principle
implies that whatever is not mentioned expressly in the text of the Qur’an and the Sunna,
and which cannot be dealt with through analogy is permissible, that is, it belongs to the
category of Mubah.
X. Give five (5) instances wherein polygamy is justified under Islamic law and
jurisprudence, and/or considered lawful within the scope of its
interpretation?
Among the instances that gives justification wherein polygamy is considered

lawful under Islamic law are the following:
a) Wife is barren or cannot bear an heir offspring;

b) Wife is incurably ill or suffers incurable disease;
c) There is mutual consent of wife and husband;
d) In case of war resulting in more orphans and widows, or more women than man;
and
e) In case the husband will fall into committing illicit sexual relationship if not
permitted to marry subsequently.


I. When and where were the first two (2) sources of Islamic Law revealed? Explain
and how they were revealed?
The revelation of the Holy Qur’an revelation began during Lailatul Qadr on 27th
day of Ramadan, other jurist believe that it was on 17th day, around 610 A.D. When the
prophet was 40 years of age, during his seclusion in the cave of Hira, mountain near
Makkah. Prophet Muhammad saw said that the revelation came like a ringing of a bell,
this of inspiration is the hardest of all and then this state passes off after he grasped what
is inspired. Sometimes the Angel Jibreel came in the form of a man and talks to prophet
and grasp whatever the Angel says.
II. a) What is meant by the statement “The Glorious Qur’an” in the Shariah par
excellence? Explain your answer.
The Glorious Qur’an is the precise wordings of Allah swt, and His
commandments to be followed and obeyed by us. Hence, we are going to submit
ourselves completely to Him by means of observing the rules laid down to us through the
Glorious Qur’an. In addition, there is a divinity on this which made it perfect law and
cannot be altered or changed ever.
b) What is the primary objective of the Shariah? Explain.
The main objective of Shariah is to reform human life on the basis of ma’rufat
and to cleanse it of the munkarat. The term ma’rufat denotes all the virtues and good
qualities that have always been accepted as “good” by human conscience. Conversely,
the term munkarat denotes all the sins and evils that have always been condemned by
human natures as evil.
III. Is the Sunna of the Prophet (May Peace be Upon Him) an inspiration of Allah?
What is the difference from the Qur’anic verse? Explain your answer.
Yes. The Sunna of the Prophet (pbuh) is an inspiration of Allah. The Prophet
never said anything unless he was inspired by Allah through angel Jibreel and the
utterances of the Prophet had the sanctity of law. The Qur’an was spoken by the Prophet
and the same mouth is the source of Sunna or hadith.

The difference between Qur’anic verse and Sunna are as follows:
i. Qur’an is a word of Allah, it is a divine order, a dictates of Almighty; whereas

Sunna is the words, actions or deeds of the prophet who is human being;
ii. Qur’an is reported in its precise wording while Hadith is not necessarily
reported in its precise wording,
iii. Qur’an is preserved and protected by Allah from any corruption; whereas hadith
is subject to distortion, not protected by against corruption.
recited in prayer
IV. State and explain the relations of the Sunna to the Holy Qur’an according to the
rules of the law embodied in the Sunna. What are their respective Shariah Values?
Explain.
The function of Sunna or hadith is twofold.
i. Firstly, it helps us to understand the meaning and apply the verse of the
Holy Qur’an, by explaining them, by giving details of general rules, by
specifically applying the rules when they are general, by providing
exceptions to their application or by defining them when they are capable
of several interpretations.
ii. Secondly, the Sunna and the hadith lay down rules of conduct and of laws
on some matters not dealt with in the Holy Qur’an.
iii. Law embodied in the Holy Qur’an is fardh, which is obligatory and
commission of it is rewarded and its omission is punishable; and the law
embodied in the Sunna is voluntary in which commission is rewarded and
omission does not entails punishment.
V. Will there be a possibility that the rules of law embodied in the Qur’an will be in
conflict with the rules of law found in the Sunna? Explain fully.
Yes. This was controversial, because of the following opinions of the Major
School of Thoughts:
Imam Malik, the companions of Abu Hanifa, and some followers of the Zahiri
school ruled that it was possible for the Tradition 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.
Example: “it is prescribed for you when one of you approacheth death, if he leave
wealth, that he bequeath unto parents and near relatives in kindness. This is a duty for all
those devout”.28 Despite this clear urging to bequeath unto parents and relatives, this
28
The Qur’an, 2:180

jurists considered the verse repealed by the saying of the Prophet Muhammad (pbuh) “no
Imam Shafi’i and Ahmad ibn Hanbal rejected the Tradition could repeal the
Qur’an based:
i. The Qur’an is the essence and is inimitable or miraculous; in Tradition,

it is only a supplementary to the Qur’an and is not miraculous;
ii. “it is not for me to change it of my own accord, I only follow that which
is inspired in me. Lo, if I disobey my Lord I fear the retribution of the
great day”. This is an order directed to the Prophet Muhammad (pbuh)
not to change the rules of the Qur’an of his own accord.29
iii. The sayings of Prophet Muhammad (pbuh): “What ever is quoted in my

name, compare with the Book of God. That which conforms to it is my
own, that which does not was never uttered by me”. Also, “My words do
not repeal the words of God. The words of God repeal my words, and
the words of God repeal one another”.30
iv. Shafi’i pointed out that the verse of bequests that it had been implicitly
repealed by a succeeding verse which prescribed the legal shares of
every heirs.31 Another saying of Prophet Muhammad (pbuh): “No
VI. A and B are husband and wife, respectively. B demanded divorce from A on the
ground that she is no longer in love with him and she does not want to be guilty of
showing anger to him as it is prohibited by Shariah and signified her willingness to
return to him the entire dower she received from him. B, filed her case with your
court. As a judge, what would be your decision? Explain your answer.
I will grant the petition of “B”, due to that the sanctity of marriage cannot be
comply due to the fact that she is no longer in love with A. In fact, the petition of divorce
is Khul, where in, the wife, after having offered to return or renounce her dower or to pay
any other lawful consideration for her release in the marriage bond.
VII. A is father of three (3) sons, B, C, and D. Because A likes B more than the other
two (2), he decided to donate one half (1/2) of his property to B. A comes to your
court requesting to be a witness to the donation. As a judge, what would be your
action to his request?
For ethical reason, I will decline being a witness. I would advise A to look for
other witnesses for the donation as form of gift, since testamentary will is not allowed
under the law to the supposed heir.
29
The Qur’an, 10:15
30
Suyuti considers this as weak Hadith.
31
The Qur’an 2:180

VIII. a) Define Shariah and differentiate it from Hukm.
deducible lifestyle called sunna;
Whereas hukm is defined by Muslim jurist as “that which is establish by a

b) Define Fiqh and differentiate it from Usul-Fiqh

evidences. Technically, it is the scientific study and elucidation on Shariah. It is the
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
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.
IX. a) Define Ijma and explain its basis or justification.
Ijma is derive from the word Jama’ means to add, to agree and to solve. Literally
questioned based on any of the sources of the Islamic law. It is also defined as “ the
consensus of the Muslim jurists of any particular period concerning the Shariah value.
When Imam Shafii was asked to quote the authority of Ijma , it is stated that he
read out this Qur’anic verse, “ But whosoever shall severe after the guidance had been
manifested to him and shall follow any other path than that of the faithful, we will turn
over back on him as he dah turned his back on us and we shall cast him into hell- an evil
journey thither.
b) What is the Shariah Value of Ijma?
The Shariah 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.

X. a) Define Qiyas and explain its basis.

comparing, measuring, accord and equality. In the legal sense, it is a process of deduction
by which the law of a text is applied to cases which, though uncovered by the language of
the text, are covered by the reason of the text. Technically, it is the extension of Shariah
value from the original case to a new case because the latter has the same effective cause
as the former.
The basis of qiyas is in the hadith of Mu’adh b. Jabal. It is reported that the
prophet asked Muadh upon the latter’s departure as judge to Yemen, question in answer
to which Muadh told the prophet that he would resort to his own ijtihad in the event that
he failed to find guidance in the Qur’an and Sunna, and the Prophet saw was pleased with
this reply. Since Hadith does not specify any form of reasoning in particular, analogical
reasoning falls within the meaning of this hadith.
b) State and explain the four (4) conditions and requisites of Qiyas.
given in the text and which analogy seeks to extend to a new case.
iii. The rule (hukm). This is the Shariah value of the original case which is to be

JURISPRUDENCE (FIQH) AND CUSTOMARY LAW (‘ADAT)
I. a) What are the primary sources of Islamic Law? Discuss each briefly.
The primary sources of Islamic law are as provided as follows:

i. The Holy Qur’an. It is the speech of Allah sent down upon the last Prophet
Muhammad, through Angel Jibreel, in its precise wording and meaning,
transmitted to us by numerous persons both verbally and in writing. It is
considered to be a code of conduct laying down fundamental principles and not
the detailed provisions
ii. The Sunna. It is the actual explanation and practical demonstration of the
Qur’an. It refers to the sayings, actions or deeds of the Prophet and actions of
the companions which he tacitly approved.
iii. Ijma. It means the consensus of the Muslim jurists of any particular period
concerning a Shari’ah value. In its legal sense, it is those principles of law
which are accepted unanimously.
iv. Qiyas. It is a process of deducing a rule of law based on the Qur’an, Tradition,
or Ijma in matters which have not been provided by a Qur’anic Traditionary
text.
b) The Holy Qur’an contains 114 Chapters (Surah) and Muslim jurists have
classified or categorized them into five (5) categories or subject matters.
What are these five categories or subject matters? Discuss each briefly.
The orders or injunctions in the Qur’an can be classified in the following groups:
i. Instructions regarding prayers and worship. There are about 140 ayats in the
Qur’an on devotional matters such as salah, zakat, siyam and hajj.
ii. Fundamental principles regulating relations between (man and man) men which
according to some scholars are stated, in about 500 verses of legal injunctions
grouped as under:
(i) Laws relating to the protection of Islamic faith such as Jihad,

etc.;
(ii) Laws dealing with family life such as marriage, polygamy,
dower, maintenance, rights and obligations of spouses,
divorce and various modes of dissolution of marriage, iddah,
fosterage, paternity, inheritance, etc., they are laid down in
about 70 injunctions;
(iii) Laws of transactions such as contracts, sales, loans, deposit,

weights and measurements, etc., also laid down in 70
injunctions;
(iv) Penal laws laid down in about 30 injunctions; justice and

equity, jurisdiction and procedure in 13, human rights and
constitutional law in 10, international relations in 25, and law
of war and peace, and economic and social order in 10.

II. Abdul divorced his wife Amina twice who completed her idda. Three (3)
years later, Amina filed a divorce by khula after third marriage.
a) Under Muslim jurisprudence, can Abdul and Amina by mutual

agreement waive the right to idda? Give your reason.
Yes, under Muslim Jurisprudence, the right of iddah may waive by the spouses
upon their mutual agreement to effect divorce in order to get rid of each other. This kind
of mutual freeing is called Mubara’at. In consequence of the declaration of both, every
claim which each had upon the other drops, so far as those claims are concerned with
marriage including the right of iddah.
b) Is this a case of talaq bain kubra? What is the philosophy of the law
behind the rule that after the third divorce the wife becomes unlawful to
the husband till she has been married to another man?
Yes, it is considered a talaq bain kubra, although the third divorce was initiated by
the wife through Khul but still reflected and counted as divorce which concluded the
three times divorce.
This is a warning and punishment to the spouses. It gives also moral lesson to the
spouses that divorce is not like a toy or a game that they can play it anytime they want.
III. a) Explain the following Islamic maxims:
1) Necessity begets facility
Necessity begets facility means that difficulty lessens liability, e.g., stealing fruits
from an orchard because of hunger.
2) The smaller of the two (2) harms is chosen
The smaller of the two harms is chosen means when in a state of emergency or
urgency, the less harmful act may be done to avoid a severe one; e.g., to destroy some
houses to prevent fire from spreading and causing more destruction.
c) A Muslim was lost in a wide desert. After several hours of walking, he

became very thirsty and there was no water to drink. He fell down
exhausted. Fortunately, a Christian traveler passed by. The Muslim who
was dying of the thirst asked for water, but the traveler had no water.
Instead, the traveler gave him little wine in order to quench his thirst.
Did the Muslim transgress any Qur’anic verse? Decide the case.
No, that person has not transgressed any Qur’anic verse because he is in a state of
necessity. According to an established principle, when in a state of necessity forbidden
things turn into permissible. Thus, the Qur’an also provides to the effect: “If one is forced
by necessity, without willful disobedience, not transgressing the limits, then he is
guiltless.”32
32
Qur’an 2:173

IV. a) Define or explain the following terms:
1) Islam
Islam is an Arabic term derived from the word “Salam” which means peace. It
connotes submission, surrender or obedience. Religiously, it is defined as the complete
submission to the will of Allah and obedience to His law, the Shariah. In details, it refers
to submitting one’s self to the teachings brought by the Prophet abiding by the commands
and refraining from the prohibitions.
2) Shariah
Shariah literally means a waterhole where animals gather daily to drink, the road
to watering place or the straight path or way. It is the name given to the totality of God’s
commandments. In its legal terminology, Shariah is defined as “that which would not be
known had there not been a divine revelation.” Islamically, it refers to the sum total of
Islamic law which was revealed to Prophet Muhammad (s.a.w.), and which is recorded in
the Qur’an as well as in the deducible guided lifestyle called Sunna.
3) Fiqh

“the deduction of the Shariah values relating to conduct from their respective particular
evidences. Technically, it is scientific study and elucidation on Shariah. It is the
knowledge of right and obligation from Qur’an and Sunna. In its legal terminology, it is
the knowledge of all rules and commandments of Islamic law which are practical in daily
life, and derived from detailed proofs of law.
b) Distinguish from each other the following:
1) Hadith Qudsi and ordinary Hadith
Hadith Qudsi and an ordinary Hadith may be distinguished as follows:
i. Hadith Qudsi is as to the meaning from Allah, as to the wordings from the
Prophet; whereas an ordinary Hadith implies the narration record of the Sunna
and also contained historical elements;
ii. In Hadith Qudsi it is Allah that has communicated to His Prophet through
revelation or in a dream; In ordinary Hadith it is a saying conveyed to man
either through hearing or revelation;
iii. 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.
2) Hadith Qudsi and a verse of the Holy Qur’an
The Holy Qur’an and Hadith Qudsi maybe distinguished as follows:
i. In the Holy Qur’an the precise wording is from Allah; while in the Hadith Qudsi
the wording is given by the Prophet Muhammad;
ii. The Holy Qur’an has been brought to Muhammad only by Angel Jibreel, while
Hadith Qudsi may also have been inspired otherwise, such as dream;
iii. The Holy Qur’an is inimitable, unique and protected by Allah but not so the
Hadith Qusi;
iv. The Holy Qur’an is divided into chapters and verses. There is no such
organization to Hadith Qudsi;
v. Hadith Qudsi cannot be recited in prayer, as the Holy Qur’an is; and
vi. There is a specific reward for reciting each letter in the Holy Qur’an, while
reward for reading Hadith Qudsi is general.
V. a) Define or explain the following terms:
1. Ibadat
Ibadat refers to the relationship between mankind and God, i.e., the law of
worship, which governs acts of prayers, such as salah, zakah, sawm, hajj, etc.
2. Itiqadat
Itiqadat refers to the principle of belief, which embraces the six articles of Muslim
Faith namely belief in the oneness of Allah, belief in His Angels, belief in His Books,
belief in His Prophets, belief in the Day of Judgment, and belief in the Decrees of God.
3. Mu’amalat
Mu’amalat refers to the relationship between man and man, i.e., all laws
regulating the economic, social and political relationship of mankind, such as the laws of
obligation and contracts, social legislations, international laws, family laws, traffic laws,
civil registry, etc.
4. Adab
It refers to Islamic etiquette or upright moral behavior. It also refers to respect,

courtesy and manners; it governs the propriety of one’s behavior in relation to parents,
elders and superiors. It also embraces all considerations of moral excellences, such as
sincerity, thrust in Allah, humility, resignation, patience, love of God, etc.
5. Uqubat
Uqubat is translated as penal laws. It denotes punishment instituted in the Qur’an.

It is the remedy or punishment granted in favor of the general public for the commission
of an injurious or wrongful act. The penalties to be imposed for the commission of crimes
are Hudud, Qisas, Ta’zir, etc.

d) Discuss briefly in the light of Muslim jurisprudence the basic difference

between ibadat and mu’amalat.
Ibadat and Mu’amalat are both classifications of legal rules according to religious
and worldly consideration. However, they differs, basically, in the manner that laws
governing acts of prayers, such as salah, zakah, sawm, hajj and other acts pertains to law
of worship fall under the category of ibadat.
While all laws regulating the economic, social and political relationship of
mankind fall under the sphere of Mu’amalat. Examples of which are the laws of
VI. a) Who were the four (4) rightly Guided Caliphs? Discuss briefly their
respective contribution in the propagation of Islam.
The four rightly guided Caliphs are Abu Bakr “Al-Siddiq” ibn Uthman, Umar ibn
Al-Khattab, Uthman “Al-Nurayn” ibn Affan, and Ali ibn Abu Talib.
The 30 years period of the rightly guided caliphs, known as the period of
compilation and codification of the Qur’an, started during the death of Prophet
Muhammad. This period was characterized by a close adherence to the spirit of the
ordinance of Islam.
The boundaries of Islam expanded with growing rapidity and it came into contact
with the laws and customs of different subject nations for which specific provision was
not to be found in the laws of Shariah.
To deal with the numerous new problems, the righteous caliphs relied heavily on
decisions by Ijma as well as Ijtihad. In the course of their extensive use of Ijma and
Ijtihad, these caliphs established procedures which later became the basis for legislation
in Islam, the Fiqh.
i. Moreover, Caliph Abu Bakr is believed to be the first to establish prisons

for the malefactors;
ii. while Caliph Umar initiated the appointment of the first Qadi, set up a
formal Baitul mal and introduced the Hijra calendar.
iii. The standardization of the Qur’an is considered one of the most important
services of Caliph Uthman to Islam and the Muslim;
iv. in as much as Caliph Ali systematically defined the powers and

jurisdiction of Qadis, for the first time.
a) Who among the four (4) rightly Guided Caliphs had memorized the Holy
Qur’an? Cite historical fact in support of your answer.

All four rightly Guided Caliphs have memorized the Qur’an. The texts of the
Holy Qur’an during the lifetime of the Prophet had been preserved either in memories of
the companions, wherein the 4 rightly guided Caliphs are among his principal
companions; or by being inscribed on bones, date leaves and tablets of stone by the
scribes selected personally by the Prophet, wherein the four rightly guided Caliphs are
among the scribes. It was also mentioned that each of the scribes selected by the Prophet
had their own personal compilations of the Qur’an which is an indication that they also
have memorized it.
One of the signs for Abubakr RA was during the prayer with Prophet Muhammad
saw, he was the one rectifying whenever the Prophet failed to recall.
VII. a) Differentiate the following terms:
1) Ijtihad from Taqleed
Ijtihad and Taqlid may be differed as follows:
a) Ijtihad is the name for the activity of the Mujtahid that may use all of the
sources to derive the law; while Taqlid is the activity of the layman.
b) The output of the Mujtahid is the substantive as well as procedural law, a

knowledge of which is called Fiqh; whereas taqlid, in the legal sense, means following
the opinion of another.
c) The absolute Mujtahid lays down the principles of interpretation as well as the
general principles of the substantive and procedural law. On the other hand, when a legal
justification is found, taqlid is permitted.
2) Ra’y from Fatwa
Ra’y and Fatwa may be distinguished as follows:
i. Ra’y is known as an individual unguided opinion of Muslim. While Fatwa

means qualified opinion. It refers to the legal opinion of a Mufti or of a
qualified person, such as jurist.
ii. Ra’y refers to choosing the opinion which appeared most appropriate to the
given case in question. However, Fatwa of jurisconsult has a persuasive and
advisory effect upon the Muslim community as a whole.
c) In case of conflict between Islamic law and adat, which shall prevail?
Discuss briefly.
In case of conflict between Islamic law and adat, the former shall prevail. Adat, in
order to be admissible as a binding rule, must not be contrary to the constitution of the
Philippines and Muslim Code, Muslim Law, Public order, Public policy and public
interest, as well as it must be proven in evidence as a fact.

VIII. a) “X”, is Muslim died leaving a parcel of land which included a private
cemetery. His children converted the land into a memorial park by
permitting the bodies of strangers to be buried there sale or lease of the
graves.
i. Is it permissible according to Muslim jurisprudence to divide and

distribute incomes from such cemetery among the heirs? Explain
briefly
Yes, it is permissible to divide and distribute incomes from such cemetery

because though they converted it into a memorial park it still constitutes as
private property thus it will make up as among the estates of the deceased.
ii. Under the given facts, will it make any difference under Muslim
jurisprudence if the property was formally appropriated as a waqf?
Yes, it makes difference because a Waqf is irrevocable, permanent and

inalienable. It is a property vest in God thus it cannot be converted by the
heirs of the deceased into other means that works on their personal benefit.
iii. May a cemetery constitute a communal property under the provisions

of the Code of Muslim Personal Laws of the Philippines? Discuss
briefly.
Yes, a cemetery constitute a communal property pursuant to the provision

of the P.D.1083 which substantially provides that, ancestral property,
which shall comprehend hallowed ancestral plot, ancestral shrine, royal
court, and similar properties constitutes communal property. Cemetery is
an ancestral shrine thus it constitutes a communal property.
IX. a) Abusama, a male Filipino Muslim and Zainab, a female Filipino Muslim,
went to Country “X” as scholars. Two years thereafter, they fell in love and
got married without the consent of the wali of Zainab. Country “X” where
they got married adhere s to the Hanafi School of law where the consent of a
wali is not necessary. Discuss briefly the validity of said marriage.
The marriage contract between Abusama and Zainab is valid so long as it is

contracted in accord to any of the four recognized orthodox schools. Hence, since it is in
agreement to the Hanafi law, where the bride can give consent to her marriage with or
without a wali, their marriage is rendered valid. Moreover, according to Hanafi school the
Nikah of an adult girl is not invalid merely because the permission of her wali is not
sought.
i. Suppose in the problem above, instead of being married in country “X”,

they came back to the Philippines and got married here, would your
answer be the same? Discuss briefly.

Yes. Their marriage solemnized in the Philippines according to Muslim law is

still valid because the provision of the Muslim Code relative to consent of the parties in
marriage is in accordance with the view of the Hanafi School which allows marriage
contract even without the consent of the wali of the bride.
X. a) Give the distinctions of the following:
1) God’s law from man’s law
The fundamental differences between man’s law and God’s law are as follows:
i. God’s law is divinely ordained while man’s law is the product of the human mind
in man’s effort to establish an orderly society, defining rights and obligations
based on human intellect or reason.
ii. The principles of law framed by God’s law and its structure are to do complete
justice in a unanimous way with unified principles. The God’s law conceives of
one legislation, one law, and one justice for a single society. There is perfect
harmony in the principles of law and of justice and society. As opposed to it, the
man made law, the English law and all other man-made law have dualism in their
legal systems. The notion of law provides one thing but, since justice requires
other principles to do complete justice, the state develops additional principles.
The principles of natural justice were adopted by judges and magistrates as
principles of equity to mitigate the rigors of Common law and Civil law in the
Western legal system. Law has been defined in accordance with the particular
notion and polity from one jurisdiction to another.
iii. With respect to content, God’s law embraces all human actions, which strictly is
not law in the modern sense but might be regarded as guide to moral conduct.
Whereas, Man’s law is confined and limited to acts and rights that have
particularly legal implications without regard to moral implications. Thus, there
are separate rules for legal acts which are the particular fields of law in man’s law,
while God’s law embraces all human actions, from mundane to the spiritual and
moral.
iv. Man’s law is confined to establishment of law and order in this world while God’s
law rules encompass both human actions in this World and their implications in
the Hereafter.
v. The common goals and objectives of God’s law and man’s law are protection or
religion; life; intellect; offspring and lineage; wealth or property; and honor.
2) Shura from Ijma
Ijma and Shura may be distinguished as follows:
a) Ijma is a legal tool for producing legal rules based on the consensus of legal
experts while Shura is merely consultation with people who may or may not
be experts in law, to derive their opinion to a particular question or affair;

b) Ijma produces rules which must be followed; whereas the result of Shura does
not always carry the mandatory effect of law.
b) State the distinction between a fatwa given by a jurist-consult in Islamic

law and a Hukm rendered by a Judge.
A fatwa given by the Jurisconsult (Mufti) and a Hukm rendered by a Judge (Qadi)
may be distinguished as follows:
i. The Fatwa of a Jurisconsult has a persuasive effect upon the Muslim

community as a whole, while the decision of a Judge (hukm al-qadhi) is
binding upon the parties in a given litigation;
ii. Fatwa is not binding upon the Judge who sought it; he may or may not adopt
it. Whereas judgment of a Judge (hukm al-qadhi) is binding upon himself; he
is bound to obey, respect and implement his decision.

2001 SHARI’AH BAR EXAMINATION ON ISLAMIC

I. A. Differentiate Shariah from Hukm.
deducible lifestyle called Sunna;
whereas hukm is defined by Muslim jurist as “that which is establish by a

B. Give the two (2) kinds of Hukm Shari’i (Shariah Value) and explain each.
Mandatory law is the law which defines the characteristic of a man’s act whether
they are obligatory, forbidden, commendable, improper or which indicates the legal effect
of an act. It requires certain actions, or provides a choice of whether to follow or not.
Example, fasting of Ramadan is obligatory and praying five times a day
Declaratory law is a law which is promulgated as a reason, a condition or

deterrent for action or which states whether these actions are valid or void or whether
they are allowed by concession or are permissible ab initio. Example, before praying, you
must perform ablution in order that your prayer become valid otherwise it will become
void.
II. A. What are the essential requirements of Qiyas? Give examples.
The essential requirements of qiyas are:
given in the text and which analogy seeks to extend to a newcase.

iii. The rule( hukm). This is the shariah value of the original case which is to be
B. What are the kinds of Qiyas? Explain each kind.
Kinds of Qiyas are as follows:
i. Analogy of Superior (Qiyas al-aula), that effective cause in this Qiyas is more
evident in the new case ( far’) than the original case. Example is the prohibition
of shabu and khamr, it may be found that the effect of shabu is more obvious
and grave khamr.
ii. Analogy of equals (Qiyas al Musawi), the illah in this type of Qiyas is equally
effective in both the new and the original cases, and so the ruling is deduce by
analogy.
iii. Analogy by inferior (Qiyas al adna), the effective cause in this form is less
clearly effective in the new case falls under the same ruling, which applies to
the original case. For example, rules of riba prohibits exchange of wheat and of
other specified commodities unless the two amounts are equal and delivery is
immediate. By analogy, this rules extended to apples because both wheat and
apples are edible and measurable. But the illah of this qiyas is weaker
concerning apples which, unlike wheats, are not stable food.
III. A. Define maslaha al mursala.
Maslaha al mursala is a consideration of public interest or welfare. It is a method

of deduction of law based on general consideration of public good. More technically, it is
defined as consideration which is proper and harmonious to the objectives of the
lawgiver; it secures benefits and prevents harm and the Shariah provides no indication to
its validity or otherwise.
B. Give and explain the conditions required for the validity of maslaha al
mursala.
The following are the conditions of Maslaha al mursal in order to be valid:
i. That the case under review should be one pertaining to matters of transactions
so that interests involved in it may be construed upon grounds of reason. The
case should not be one relating to religious observances.
ii. That the interests should be in harmony with the spirit of the Shariah and should
not be in conflict with any one of its source.
iii. that the interest should be essential and necessary, and not of the perfectionist
type.
IV. A. Differentiate between Sunna and Hadith.

The difference between Sunna and Hadith are as follows:
i. Sunna literally means a way, rule or manner, example of acting and mode of
life; Hadith is a saying conveyed to man either through hearing or revelation,
ii. Sunna refers to the prophet’s saying, action and practices, while Hadith implies
the narration of the record of the Sunna and also contained historical elements.
iii. Hadith is the story of an eyewitness concerning what the prophet said, did or
tolerated in connection with certain situation or occurrence; whereas Sunna is
practical deduced from it.
B. Explain why the Shariah Values of Prophetic Traditions are similar to

that of Quranic Shariah Values in the matter of demanding obedience.
Yes. Shariah value of the Sunna is similar to the Quranic Shariah value in the
matter of demanding obedience in the sense that, Qur’an and Sunna are transmitted to us
by the prophet himself. Hence, even the Holy Qur’an mentioned in surah that obey Allah
and obey the messengers.
On the other hand, the Glorious Qur’an is word of Allah and Sunna is the sayings
and actions, it must be executed in the same manner.
V. A. What are the five (5) essential values which are themselves the objectives of
Shariah to protect?
The five (5) essential values which are themselves the objectives of Shariah to
protect are as follows:
a) Life - inosogo so qisas ka an ma protect so

b) Religion – inisapaar so kapumortad
c) Progeny (family) - fornicator
d) Intellect –inisapar so kainom sa kapakabugur
e) Wealth – tukaw / tamok a halal
inisogo o Allah so kaprotecta a donya
onayan o kawiyagoyag
B. Give an explanation of each of them.

a) Life - the law provides the penalty for Qisas inorder to protect the sacred life.
b) Religion – the law forbids apostacy to have the sanctuary of the religion.
c) Progeny (family) – the law prohibits the fornicator or adultery inoder to
compass the decency of the family.
d) Intellect – the law prohibits drinking of wine and other intoxicants to shield the
mind of the individual and to avoid chaos order in the society.
e) Wealth – stealing is prohibited under the law to protect the properties of the a
certain person and to have halal wealth.
VI. A. Distinguish Ra’y from Ijtihad. Comment on whether the gate of ijtihad is
closed in the present generation.

Ra’y came to be known as an individual unguided opinion while ijtihad is the

exerting by a jurist of his utmost analytical reasoning with a view to formulate an
independent opinion.
Regarding whether the gate of ijtihad is closed or not in the present generation, it
is believed that it did not yet close, so long as the qualification of being Mujtahid is met,
then ijtihad can be formulated. Nevertheless, majority of the Ulama agreed that after the
death of the four Imam such as Imam Malik, Imam Hanafi, Imam Shafi’i and Imam
Hanbal, the qualifications of being Mujtahid had never been met and they supposed that
it will not be met until the day of judgment.
B. Distinguish wajib from the fardh.
Fardh, that is, the act whose value has been established by the Qur’an and
Mutawatir Hadith. Performance of fardh acts leads to reward and its omission leads to
punishment in this world or in the hereafter.
Whereas, wajib are acts whose value has been established by a Shariah evidence,
other than Qur’an and hadith 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.
VII. A. Define and explain Istihsan (juristic preference)
Istihsan is render in English as Juristic preference. The literal meaning of istihsan

is considering a thing to be good. Juristically, it is a method of exercising personal
opinion in order to avoid rigidity and unfairness that might result from the literal
(meaning) enforcement of the existing law.
B. Explain the exceptional Istihsan and give at least three (3) examples.
Examples: The issuance of currency; the establishment of prisons; imposition of

tax (kharaj) on agricultural lands in conquered territories by the Companions.
VIII. A. Explain the authority of Ijma in the Qur’an and in the Sunna as a source
of Islamic Law.
When Imam Shafi’i was asked to quote the authority of Ijma , it is stated that he
read out this Qur’anic verse, “ But whosoever shall severe after the guidance had been
manifested to him and shall follow any other path than that of the faithful, we will turn
over back on him as he dah turned his back on us and we shall cast him into hell- an evil
journey thither.”
Among the authority of ijma in the hadith are:

a) My people will never agree on erroneous things.
b) It is incumbent upon you to follow the most numerous bodies.
B. How can Ijma be abrogated? Explain.

If an ijma is soundly founded on the texts of the Qur’an or Sunnah, then it could
not be repealed by a subsequent consensus; but if the Ijma is merely based on public
interest, then it may be repealed if the public interest so requires.
IX. A. What do you understand by urf (custom)? Is it recognized in the Muslim

Code?
Urf literally means that which is known. It means that which a people or a section
have become accustomed to doing. Urf is defined as recurring practices, which are
acceptable to the people of sound nature.
Yes. It is recognized in the Muslim code. The law substantially provides that,
Muslim law and ada not embodied in this code shall be proven in evidence as a fact. No
ada which is contrary to the Constitution of the Philippines, this Code, public order,
public interest and public policy shall be given effect.
B. What are the conditions for a valid urf?
The following are the conditions of a valid urf:
i. It must be reasonable and compatible with good sense and public sentiment and
acceptable to people of sound nature
ii. A custom must be of frequent and common recurrence
iii. the custom is prevalent at the time of transactions or previous thereto but not to
later custom
iv. it must not contravene the clear stipulation of an agreement
v. A custom is valid only if it is not in conflict with a text.
X. A. Give and explain the six (6) conditions of abrogation (naskh) as a rule.
Before abrogation may takes place, the following conditions must exists:
i. The text itself has not precluded the possibility of abrogation. An example of
this is the Qur’anic provision concerning persons who are convicted of
slanderous accusation that they may never be admitted as witness.
ii. The subject is open to the possibility of repeal. Thus, the attributes of God and
principle of belief, moral virtues and rational truth, etc. are not open to
abrogation.
iii. That the abrogating text is of a later origin than the abrogated
iv. That the two texts are equal strength in regards to authenticity by a Qur’anic
text ; or hadith by another hadith
v. The two texts are genuinely in conflict and can in no way be reconciled with
one another.

vi. The two texts are separate and they are not related to one another in the sense of
one being the conditions, qualification or exception to the other.
B. Distinguish explicit abrogation from implicit abrogation. Give examples of

each.
Explicit abrogation is when the abrogating text is clearly repeals one ruling and
substitutes another in its place. The facts of abrogation including the chronological order
of the two rulings, the facts of their being genuinely in conflict and the nature of each of
the two rulings can be ascertained in text concerned. Whereas, Implicit abrogation is
when the lawgiver introduces a ruling which appears conflicting to the previous ruling
though still doubtful whether the two rulings present a genuine case for abrogation.

I. A. Compare and contrast Ijma and Qiyas.
Ijma is derived from the word Jama’ means to add, to agree and to solve. Literally


questioned based on any of the sources of the Islamic law. It is also defined as “the
consensus of the Muslim jurists of any particular period concerning the Shariah value.
Whereas, Qiyas is analogical deduction or reasoning. In the literal sense Qiyas

means comparing, measuring, accord and equality. In the legal sense, it is a process of
deduction by which the law of a text is applied to cases which, though uncovered by the
language of the text, are covered by the reason of the text. Technically, it is the extension
of Shariah value from the original case to a new case because the latter has the same
effective cause as the former.
B. What are the kinds of Ijma?
The kind of Ijma are:
a) Regular Ijma
b) Irregular Ijma
c) Ijma I Ummah
d) Ijma I ulamah
e) Ijma Al Madinah
II. A. Abdalah married a classmate who is a “balik-islam” or a convert. They

were living harmoniously as husband and wife for more than three (3) years.
Abdalah decided to work abroad. As a consequence, his wife was forced to live
temporarily with her family in Cebu City because she cannot stand the treatment of
her in-laws. A report reached Abdalah in Saudi Arabia that his wife returned to
Christianity. Abdalah upon learning incident returned to the Philippines and
married his second-degree cousin. When his first wife learned that Abdalah was
already in the country and married his cousin, she asked for support claiming that
her marriage with Abdalah is still subsisting. Is she correct under the Islamic
jurisprudence? Justify.
Yes. She is correct under Islamic jurisprudence. The wife has still the right to
claim support because their marriage is intact and there was no divorce happened. In fact,
even after the dissolution, she can still claim support within the prescribed iddah.
III. A. Distinguish fiqh from Shariah value.
Shariah value (hukm shar’i) is defined as the quality determined as a result of

divine revelation. For example, the fact of an act being prohibited in Shariah is its
Shariah value. It is defined by Muslim jurists as “that which is establish by a
prohibition or indifference on his part being merely declaratory. While Fiqh literally
means the true understanding of what is intended. It is defined as “the deduction of
Shariah value relating to conduct from their respective particular evidences. Technically,
it is the scientific study and elucidation on Shariah. 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
B. Distinguish fiqh from jurisprudence as understood in the Philippine legal

system.

Fiqh or Islamic jurisprudence is an understanding, interpretation or analogy based

from the Qur’an and Sunna of Prophet Muhammad pbuh. Any derivation from these texts
by the Muslim jurists is called Fiqh or Islamic jurisprudence.
Whereas, the jurisprudence is a law in the Philippine legal system arose from the
Philippine Congress or other scholars or judges and made it to jurisprudence.
IV. A. What are the classifications of human acts as grouped by Muslim jurist?
Define each.
Human acts are grouped by the Muslim jurists into the following categories:
i. Fardh, that I, 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 hereafter.
ii. Wajib acts whose value has been established by a Shariah evidence, other than
Qur’an and hadith Mutawattir.
iii. Mandub are acts whose commission is rewarded although its omission does
not entail punishment. These acts are believed to have been performed by the
prophet habitually.
iv. Mubah that is the acts whose commission is not rewarded and but whose
omission is not punished.
v. Makru that is the acts whose omission is preferable to their commission.
vi. Haram are acts whose commission is punishable and omission is rewarded.
B. Compare and contrast fard and wajib.
Fardh, that is, the act whose value has been established by the Qur-an and
Mutawatir Hadith. Performance of fardh acts leads to reward and its omission leads to
punishment in this world or in the hereafter. Whereas, wajib are acts whose value has
been established by a Shariah evidence, other than Qur’an and hadith Mutawattir. The
effect of wajib is that it must be executed like the fardh although it need not be given
absolute faith like the fard. It’s commission also is rewarded and its omission entails
punishment
V. In 1989, the Shariah District Court in a certain case adopted the view of
Imam Abu Yusuf of Baghdad who claimed that the text should be discarded in
favor of customs. The case became final and executor. A recent case involving
similar issue was however brought to the Supreme Court in aid of its appellate
jurisdiction. The customs however changed as previously established.
A. As a Jurisconsult of the Philippines, the Court seeks your expertise on the

issue. What would be your view?
I would consider the custom to be prevailed on this new case as long as it will not
contradict to the Qur’an and Sunna of Prophet Muhammad saw. Hence, custom or urf is
part and form as source of the Islamic law.

B. Will the change of customs affect the settled rule? Elaborate.
Yes. However, custom varies from place to place, time to time and its recurrence
applicability of a certain community.
VI. A. Explain Public Interest as a source of Islamic Jurisprudence.
Istislah is a consideration of public interest or welfare. It is a method of

deduction of law based on general consideration of public good. More technically, it is
defined as consideration which is proper and harmonious to the objectives of the
lawgiver; it secures benefits and prevents harm and the shariah provide no indication to
its validity or otherwise.
B. What are the conditions for adopting Masalih Mursalah as a source of

law?
The following are the conditions of Maslaha al mursal in order to be valid:
a) That the case under review should be one pertaining to matters of transactions
so that interests involved in it may be construed upon grounds of reason. The case should
not be one relating to religious observances.
b) That the interests should be in harmony with the spirit of the Shariah and
should not be in conflict with any one of its source.
c) that the interest should be essential and necessary, and not of the perfectionist
type.
VII. Ameer and Jehan were married for almost ten (10) years. They were not
blessed with a child. One day, Ameer arrived home from office late and tired. Since
he had not yet taken his dinner and while waiting for their helper to prepare the
food, he asked Jehan to serve him a glass of water. The wife however neglected him.
As a consequence, the couple ended up with an undesirable argument, i.e., Ameer
uttered vehemently “I divorce you” for three times. The day after, Jehan went to
her parent‟s hometown and informed her family that her husband divorced her.
Ameer followed her, claiming that his pronouncement does not amount to three
times. His reason is that during the time of the Prophet and the first part of Umar‟s
caliphate such declaration is equivalent to only one. Is this rule followed under the
Muslim Code (P.D. 1083)? Decide.
Yes. Based on Jamhuur, majority of the jurists considered the situation as one
divorce. In the case bar, that the husband denied that, hence, it will be considered to one
divorce regardless for how many times uttering divorce.
Under the law which substantially provides that, a divorce by talaq may be
affected by the husband in a single repudiation his wife during her non-menstrual period
within which he has totally abstained from carnal relation with her. Any number of
repudiation made during one tuhr shall constitute one repudiation and shall become
irrevocable until after the expiration of iddah.
VIII. A. Who introduced Qiyas as a legal principle and what was the reason
behind constituting Qiyas as such?

Imam Hanafi is the one who introduces Qiyas as a legal principle. The reason
behind constituting Qiyas is to extend the law of the text to cases not falling within the
purview of its term.
B. What are the essential conditions for Qiyas to be accepted as a source of

Islamic jurisprudence?
The following are the essential conditions for Qiyas:
a. The law enunciated in the text which analogy is attempted to be applied must
not have been indicated to be restricted to a particular state if facts;
b. An analogical deduction may be based on the law laid down in the text either of
the Qur’an or hadith provided such texts are not repealed;
c. the analogy must not be applied to the vocabulary of the text but to the effective
cause on which the law is based;
d. the law of the text must not be in its raison deter cannot be understood by
human intelligence;
e. The deduction contemplated must not eventually lead to change the law of the
text itself;
f. the rule of analogy must not opposed to the text of the Qur’an or the hadith.
IX. A. Is P.D. 1083 a source of fiqh in its strictest Shariah sense?
Yes. P.D. 1083 has been made written of the Code Commission based from many
sources including Qur’an and Sunna of Prophet Muhammad saw, to lay down its specific
and applicability to the Muslims in the Philippines. Hence, it can be a source of fiqh.
B. Explain briefly the basis for the condition of P.D. 1083.
The Muslim code substantially provides that this is applicable only to Muslims in
the Philippines or one party is a Muslim and the other is non-Muslim, provided that it
will not prejudice to non-Muslim.
X. A. Explain the role of customs and usage in Islamic jurisprudence.
Custom (Urf) means that which is known. It means that which a people or a
section thereof have become accustomed to doing. This is the recurring practices, which
are acceptable to the people of sound nature. Its basis is “Ye are the best of people,
evolved for mankind, enjoining what is right and forbidding what is wrong.”33 Thereby,
custom or ada may be proven in evidence as fact and not contrary to Muslim law.
B. What are the conditions, which must be satisfied in order for a custom to
have legal effect?
33
The Qur’an 3:110

The conditions of a legally binding Urf are:
later custom;

JURISPRUDENCE (FIQH) AND CUSTOMARY LAW (‘ADAT)
I. Define or explain the following terms as used in their common language and
in their specific or legal terminology:
A. Shariah (Islamic Law); and
Shariah as used in common language means a waterhole where animals gather

daily to drink, the road to watering place. Arabs used to mean the straight path or way. In
its specific terminology means the name given to the totality of God’s commandments. In
its legal terminology, Shariah is defined as “that which would not be known had there not
been a divine revelation.” Islamically, it refers to the sum total of Islamic law which was
revealed to Prophet Muhammad (s.a.w.), and which is recorded in the Qur’an as well as
in the deducible guided lifestyle called Sunna.
B. Fiqh (Islamic Jurisprudence)
Fiqh as used in common language means comprehension. It literally means the

true understanding of what is intended. It is defined as “the deduction of the Shariah
values relating to conduct from their respective particular evidences. Technically, it is

scientific study and elucidation on Shariah. It is the knowledge of right and obligation
from Qur’an and Sunna. In its legal terminology, it is the knowledge of all rules and
commandments of Islamic law which are practical in daily life, and derived from detailed
proofs of law.
II. A. Compare Shariah (Islamic Law) and positive law. Give the subject content
of each and their goals and objectives.
The fundamental differences between positive law and Shariah are as follows:
a) Shariah is divinely ordained while positive law is the product of the human mind
in man’s effort to establish an orderly society, defining rights and obligations
based on human intellect or reason.
b) The principles of law framed by Shariah and its structure are to do complete
justice in a unanimous way with unified principles. The God’s law conceives s of
one legislation, one law, and one justice for a single society. There is perfect
harmony in the principles of law and of justice and society. As opposed to it, the
Roman law, the English law and all other man-made law have dualism in their
legal systems. The notion of law provides one thing but, since justice requires
other principles to do complete justice, the state develops additional principles.
The principles of natural justice were adopted by judges and magistrates as
principles of equity to mitigate the rigors of Common law and Civil law in the
Western legal system. Law has been defined in accordance with the particular
notion and polity from one jurisdiction to another.
c) With respect to content, God’s law embraces all human actions, which strictly is
not law in the modern sense but might be regarded as guide to moral conduct.
Whereas, Man’s law is confined and limited to acts and rights that have
particularly legal implications without regard to moral implications. Thus, there
are separate rules for legal acts which are the particular fields of law in positive
law, while Shariah embraces all human actions, from mundane to the spiritual and
moral.
d) Positive law is confined to establishment of law and order in this world while
Shariah rules encompass both human actions in this World and their implications
in the Hereafter.
e) The common goals and objectives of Shari’ah and positive law are protection or
religion; life; intellect; offspring and lineage; wealth or property; and honor.
B. Explain the following terms:
a) Kharidjites

The word “Kharaju”, from which the kharaji is derived, means “to withdraw” and
therefore Kharidjites were seceders who believe in active dissent or rebellion against a
state of affairs they considered to be gravely impious. They believed that a person or a
group who committed a grave error or sin and did not sincerely repent ceased to be
Muslim. They also believed that any Muslim, regardless of ethnic background or social
status could become ruler, provided he or she satisfied the conditions of piety.
b) Murijites
Murijites were the other dissenters who were also called outside the limits. They
are the followers of the early Islamic school Murji’ah. They advocated the idea of
deferred judgment of people’s belief. They hold that only God has the authority to judge
who is a Muslim and who is not, and that Muslims should consider all other Muslims as
part of the community. They believed Muslims committing grave sins would remain
Muslim and be eligible to paradise if they remained faithful. They declared that no
Muslim would enter the hellfire no matter what his sins are.
c) Mutazilites
Mutazilites, literally those who stand apart, are a philosophical school of thought
commonly called rationalism, as they associated themselves from extreme views of faith
and infidelity. Mutazilites called themselves “champion of God’s unity and justice”.
Among its more notable principles were the beliefs that Allah was everywhere, the belief
that the Qur’an was created and only its meaning were divine, that Allah would not be
seen by the people of Paradise, that man has free will without divine interference, and the
one who commits a major sin enters a state between belief and disbelief.
d) Shi’ites
Shi’ites or Shi’a, whose name was drawn from Shi’at Ali (partisans of Ali),
literally means sect as the word Shii conveys a sense of a sectarian, believed that in
political succession the family of the Prophet should be given priority over any other
Muslim. They argued that Ali, the Prophet’s cousin and son-in-law, should have ben his
immediate political successor. All political leadership of the community should thus have
remained within the Prophet’s family (Ahlul Bait). Among the doctrine of Shi’ites is that
their Imam (political and spiritual leader) is infallible and he has the ability to know the
Ilmul ghaib (hidden knowledge).
e) Sunnaties
Sunnaties or Sunni is a broad term derived from Sunna, means “habit” or “usual
practice”. The Muslim usage of this term refers to the sayings and living habits of
Muhammad. In its full form, this branch of Islam is referred to as Ahl al-Sunna wa
Jama’ah literally, “People of the Sunna and the Community”. People claiming to follow
the Sunna, who can demonstrate that they have no action or belief against the Prophetic
Sunna, can consider themselves to be Sunni Muslims. They believe that Muhammad did
not appoint a successor to lead the Muslim Ummah before his death. Sunni Muslims
regard the first four caliphs as the rightly guided caliphs.

III. A. Give the four (4) Sunni Madha-hib (Schools of Law) and their respective
founders or Imams.
The four Sunni Madha-hib and their respective founders are the following:
a) The Hanafi Madhab, named after its founder Abu Hanifah whose actual name was
Nu’man ibn Thabit;
b) The Maliki Madhab, named after its founder Malik ibn Anas ibn ‘Amir;
c) Shafi’i school was named after its founder Muhammad ibn Idris ash-Shafi’i; and
d) Hanbali School, which is attributed to its founder Abu ‘Abdallah Ahmad ibn Hanbal
ash-Shaybanee.
B. What are some of the variations or distinctions of these schools, if any?
The variations or distinctions of these schools are as follows:
a) The Hanafi School has the largest following in 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.
b) 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.
c) 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.

d) Imam Ahmad ibn Hanbal appeared to have been more learned in the traditions
than the science of law. He strictly adhered to the traditions, his interpretations of
which were both literal and unbending, and he allowed but a narrow scope to the
doctrine of Ijma and Qiyas. The traditionalists of the third century of the Hijra did
not seem to have shown much interest in legal theory except for the general idea
of the authority of traditions, but when the scholars of the Hanbali school came to
elaborate a complete system of doctrine they had 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.
IV. A. State the rule in the resolution of any conflict among the Orthodox (Sunni)
Schools of Law under the Muslim Code (P.D. 1083)
The rule in the resolution of any conflict among the Orthodox (Sunni) Schools of
Law under the Muslim Code (P.D. 1083) is substantially provided that, should there be
any conflict among the orthodox (Sunni) Muslim schools of law, that which is in
consonance with the constitution of the Philippines, this Code, public order, public policy
and public interest shall be given effect.
The Muslim schools of law shall, for purposes of this Code, be the Hanafi, the
Hanbali, the Maliki and the Shafi’i.
B. Please explain or define the following terms:
a) Hukm Taqlifi (mandatory)
b) Hukm Wadi (Declaratory)
Give their distinction, if any.
a) Hukm Taqlifi (mandatory)
Hukm Taqlifi or mandatory law may be defined as the law which defines the
characteristics of a man’s act, namely whether they are obligatory, forbidden,
commendable, improper, permissible, or which indicate the legal effects of an act. The
mandatory law requires a certain action or provides a choice of whether to follow it or
not. The component elements of a mandatory law, namely whether certain facts or events
are the cause, condition or constituents of a command, the function of a declaratory law is
interpretative in relation to a mandatory law.
b) Hukm Wadi (Declaratory)
Hukm Wad’i or declaratory law may be defined as the law which has been
promulgated as a reason, a condition, or a deterrent for actions, or which states whether
these actions are valid or void or whether they are allowed by concession or are
permissible from the start. Hukm Wad’i is the one that emphasizes the connection

between Hukm Taqlifi and the reason or condition for its performance. It also indicates
the reason or condition for its non-performance.
V. A. Define or explain the following terms:

a) Ijma
Ijma is derived from the word ‘Jama’ which means to add, to agree, or to solve.
Literally, Ijma means an agreement upon matter, or unanimity of opinion. Technically
means an agreement or consensus of the Muslim scholars of a given generation after the
death of Prophet Muhammad to formulate independent judgment in a legal or theological
question based on any of the sources of the Islamic law. It is also defined as “the
consensus of the Muslim jurists of any particular period concerning a Shariah value. In its
legal sense, it is those principles of law which are accepted unanimously.
b) Qiyas

comparing. The root meaning of the word Qiyas is measuring, accord and equity. In the
legal sense, it is a process of deduction by which the law of a text is applied to cases
which, though uncovered by language, are covered by reason of the text. Technically, it is
the extension of a Shari’ah value from the original case (asl) to a new case (far’) because
the latter has the same effective cause (illah) as the former. In short the theme of all these
definitions is common that it is a process of deducing a rule of law based on the Qur’an,
Tradition, or Ijma in matters which have not been provided by a Qur’anic Traditionary
text.
c) Ijtihad
Ijtihad is a derivative of the Arabic Ijtihada or Jahd which literally means to exert
oneself to the utmost or to the best of one’s ability. It is a Jurist’s exertion of the faculties
of mind for the purpose of formulating an opinion on any point of law. It is a method for
making deductions in matters of law in cases to which no express text or rule is
applicable.
a) Hakim-ush-shara
Hakim-ush-shara is the name given to the Shari’ah judge or Qadi because he is a

ruler through law for law rules through the utterances of it. Thus, the Islamic
administration, even in its infancy, proclaims in word and deed the necessary separation
between judicial and executive powers.
e) Fatwa
Fatwa means qualified opinion. It refers to the legal opinion or ruling on a point
of law and religion issued by a Jurisconsult or a Mufti who is well known authority in
Islamic law or one appointed by the state. Fatwa of a jurisconsult has a persuasive and
advisory effect upon the Muslim community as a whole and is not binding upon the Qadi
who sought it. The Abbasid Caliphs were the first to develop a procedure for consulting
specialists in Islamic law through mufti and jurists (Fuqaha) who also assisted litigants
with written opinions or fatwa.
VI. Harun, a Muslim married Susan, a Christian. Their marriage was

solemnized according to civil rites. A year later, Harun decided to divorce
(talaq) Susan.
A. What law shall govern their marriage relations?
Under the given facts the marriage of Harun, a Muslim and Susan, a Christian
solemnized in accordance with civil rites shall be governed by the Civil Code of the
Philippines. Thus, Harun cannot validly divorce his wife Susan by talaq under the
Muslim Code. He may, however, sue for legal separation under the civil Code, assuming
that there are legal grounds for the same. Nevertheless, legal separation under the Civil
Code is merely separation from bed and board and does not totally sever the marriage ties
between husband and wife.
B. Suppose they were married under Muslim Law or the Muslim Code (P.D.
1083), will your answer be the same? Please explain and justify your answer.
The answer to the second question will not be the same. Under the second
situation where the parties were married under Muslim law or the Muslim Code, there is
no doubt that Harun can validly divorce Susan by talaq even if she is a Christian because
their marriage relation is governed by Muslim law or Muslim Code pursuant to its
provision which substantially provides that, the provisions of this title shall apply to
marriage and divorce wherein both parties are Muslims, or wherein only the male party is
a Muslim and the marriage is solemnized in accordance with Muslim law or this code in
any part of the Philippines.
C. Now, suppose again that Harun contracted a second marriage to Amina, a

Muslim woman and their marriage was solemnized under Muslim law or the
Muslim Code (P.D. 1083) while their marriage with Susan was subsisting.
Can Harun validly contract a second marriage?
No, Harun cannot validly contract a second marriage because their marriage with
Susan was solemnized under civil rites and is therefore governed by the Civil Code of the
Philippines which does not allow or permit contracting by the husband of a subsequent
marriage while the first marriage is subsisting. If Harun contracts a subsequent marriage
with Amina even under Muslim law or the Muslim Code, he can be liable for the crime of
bigamy under the Revised Penal Code of the Philippines while the former marriage with
Susan still subsists.
D. Will Harun under the circumstance not be liable for the crime of Bigamy?
Please explain and justify your answer.
Under the given circumstance, should Harun pursue to contract a subsequent

marriage with Amina even under Muslim law or the Muslim Code, he will be held liable
for the crime of bigamy pursuant to the applicability clause of the Civil Code of the
Philippines, Rules of Court and other existing laws which the Muslim Code substantially
provides that, The Civil Code of the Philippines, Rules of Court and other existing laws,

insofar as they are not inconsistent with the provisions of this Code, shall be applied
suppletorily.
VII. A. What do you mean by the following terms:
a) Istihsan
b) Istishab
c) Istislah
d) Maslahah
Discuss them briefly and state who their proponents are.
a) Istihsan
Istihsan is rendered in English as Juristic preference. The literal meaning of

Istihsan is preferring or considering a thing to be good. Juristically, it is a method of
exercising personal opinion in order to avoid rigidity and unfairness that might result
from the literal enforcement of the existing law. The Hanafi school is the proponent of
Istihsan or Juristic preference which resembles the doctrine of equity in English law.
b) Istishab
Istishab literally means association, escorting or companionship and permanency

was introduced by Imam Shafi’i. Technically, it is used to denote that things whose
existence or non-existence had been proven in the past should be presumed to have
remained as such for lack of establishing any change. Thus a practice once proved to be
widespread may be presumed to be ancient and continuing. It is called istishab al-hal, if
the present is judged according to the past, and istishab al-mal, if the converse is the case.
The principle of istishab is a limited principle. It only apply to cases where there is no
evidence obtainable, and at best establishes the continuance of a fact in existence, which
was already proved to have existed.
c) Istislah
Istislah literally means consideration of public interest or welfare. It is a principle

of law that is generally used in modern public administration and practice popularly
known as the general welfare clause. Imam Malik earlier recognized considerations of
public good or public interest as a source of law. He called this new source al-masalih
mursalah. It is a method of deduction of law based on general consideration of the public
good. More technically, it is defined as consideration which is proper and harmonious to
the objectives of the Lawgiver; it secures a benefit or prevents harm. It is also defined as
the establishment of legal principles or Hukm, which is recommended by reason of being
advantageous.
d) Maslahah
Maslahah refers to the principle that the Shariah has determined goals or purposes
and the securing of these purposes is an acknowledged interest.

B. Give the four (4) important conditions of Qiyas. Discuss each briefly.
The four important conditions are as follows:
a) That the value which is about to be extended to a new case, should be expressly
limited to the original case.
b) That the value of the original case should not have been itself against the rules of
analogy. It also means when either the mind cannot understand the value in
question, or it is against the laws of Qiyas.
c) That the value whose extension to a new case is sought should be a Shari’ah value
by virtue of the Qur’an, the Sunnah, or Ijma, but not by another Qiyas. The value
in the process of transition to the new case should undergo no change; that the
new case be similar to the original case in the quality to which have attaches; and
finally, that concerning the new case there should have been no separate
prescription or nass.
d) That the application of Qiyas should not result in the altering of a prescription,
because it would be altering the Divine prescription on the basis of personal
judgment.
VIII. A. What do you mean by the theory of repeal or abrogation?
Abrogation (Naskh) literally means obliteration, transcription or transfer. It is also

defined as the suspension or replacement of one Shari’ah ruling by another, provided the
possible to reconcile them or when the latter law expressly repealed the former. It also
means that the meaning of one tends to negate the meaning of the other, provided both
relate to the same subject matter.
B. State the general rule in the repeal text.
The general rule in the repeal text is that the latter in time prevails over the earlier.
If it is not possible to know which of them is first, another important rule in such a case
which is to be kept in view is that both the repealed and the repealing texts must be
revealed. The reason for the repealed laws is that what may be good for the people of one
age may not be good for the people of another age. Since Islamic law believes in
convenience to the community and the progressive implementation of Islamic principles
and to blend these theories and principles putting the circumstances of the time.
IX. A. How did customs influence Islamic jurisprudence (Fiqh)
The Muslim legal system recognizes the force of customs and usages in
establishing rules of law. The validity of such laws, rest on principles similar to that of
Ijma or consensus of opinion. Custom generally means that which a people or a section

thereof have become accustomed of doing or observing. It plays and continues to play an
important part in the history of the growth of nations and in their social life and
expression of their civilization. In the case of those customs and practices which
prevailed in the time of the Prophet when revelation was still active, and which were not
abrogated by any text of the Qur’an or the traditions, the silence of the Divine legislator
is regarded as amounting to recognition of their validity. As a custom which have sprung
up since the Prophet’s death their validity is justified on the authority of the rules, which
lays it down, that whatever the people generally consider to be good for themselves is
good in the eyes of God. Customary laws have no legal force if it is repugnant to the
revealed law or the law founded by Ijma.
B. What are the conditions of a binding custom?
The conditions of a legally binding Urf are:
later customs;
X. A. State the rule in the proof of Muslim law and Adat under the Muslim
Code (P.D. 1083).
The rule in the proof of Muslim law and Adat under the Muslim Code (P.D. 1083)
is substantially provided that, Muslim law and ‘ada not embodied in this Code shall be
proven in evidence as a fact. No ‘ada which is contrary to the Constitution of the
Philippines, this Code, Muslim law, public order, public policy or public interest shall be
given any legal effect.
B. State the rule in the resolution of conflict between the Muslim Code (P.D.
1083) and the laws of general application and special laws.
The rule in the resolution of conflict between the Muslim Code (P.D. 1083) and
the laws of general application and special laws is substantially provided for as follows:
In case of conflict between any provision of this Code and laws of general
application, the former shall prevail. Should the conflict be between any provision of this
Code and special laws or laws of local application, the latter shall be liberally construed
in order to carry out the former.
However, the provisions of this Code shall be applicable only to Muslims and
nothing herein shall be construed to operate to the prejudice of a non-Muslim.


I. A. Shariah and fiqh are both translated as “Islamic Law”. Distinguish

between the two terms pursuant to the concept that Islamic Law is both fixed
and dynamic.
Shariah and Fiqh may be distinguished as follows:
a) Shariah is the body of revealed laws found both in the Qur’an and in the
Sunna; While Fiqh is a body of laws deduced from Shariah to cover specific
situations not directly treated in Shariah law;
b) Shariah is fixed and unchangeable; whereas fiqh changes according to the

circumstances under which it is applied;
c) The laws of Shariah are, for the most part general, they lay down basic
principles. In contrast, the laws of fiqh tend to be specific, they demonstrate
how the basic principles of Shariah should be applied in given circumstances;
d) Shariah covers all human action; while fiqh deals only with what are
commonly understood as legal acts;
e) The path of Shariah is laid down by God and His Prophet, the edifice of fiqh
is erected by human endeavor;
f) In fiqh, an action is legal or illegal, permissible or not permissible. In Shariah,

B. Define Usul al-Fiqh.
Usul al-Fiqh literally means roots of Fiqh. It is defined as the science of the
Muslim law jurisprudence, its fundamentals and principles, based from the primary
sources of law, through the exercise of independent analytical deduction with regard to its
application to certain particular situation.
II. Preserving life is among objectives of the Shari’ah. Allah Almighty says in
the Glorious Qur’an: “If anyone slew a person --- unless it be for murder or
for spreading mischief in the land --- it would be as if he slew the whole of
mankind; and if anyone saved the whole of mankind.” (Surah al-Ma’idah,
5:32)
A. How do you correlate this Qur’anic injunction with the objective of the
Shariah on the preservation of life?
The Holy Qur’an provides and laid down the rules, prohibition and admissible
laws to preserve and protect the sacred life.

B. If life is sacred, is there justification in the Shariah on the killings of

innocent and harmless civilians? Please discuss.
Yes. Qisas is provided under the law to secure the killings of the innocent
civilians.
III. A mujtahid is a jurist who derives the ahkam or rules directly from specific
evidence. Discuss the following types of mujtahidin.
A. Mujtahid mutlaq
Mujtahid mutlaq is the rank assigned to those who met all the requirements of
Ijtihad. They deduced the Ahkam from the evidence in the sources, and in so doing were
not restricted by the rules of a particular Madhab.
B. Mujtahid fid-din
Mujtahid fid-din refers to jurists who are expert on question related to religion,
the rituals, and law on God-man relationship.
C. Mujtahid fil-madh-hab
Mujtahid fil-madh-hab (Mujtahids within the school), are jurists who expounded
the law within the confines of a particular school while adhering to the principles laid
down by their Imams.
D. Mujtahid fil-masa’il
Mujtahid fil-masa’il (Mujtahid on particular issues), are jurists who were

competent to elucidate and apply the law in particular cases which were not settled by the
jurists of the first and second ranks. Their main pre-occupation was to elaborate the law
on fresh points which were not clearly determined by the higher authorities.
IV. There are three (3) modes in the exercise of ijtihad by a jurist:
1) By confining himself to the literal meaning of the text;
2) By using Qiyas or analogy; and
3) By extending the spirit of the law to other cases.
A. May a jurist exercise any of these modes as he wishes or does he resort to

them in the order they are mentioned? Please explain.
The Jurist must exercise or resort to them in the order they are mentioned. He
must first pay attention to the general principles of the Shari’ah than to its subsidiary
detail. If this is not possible and everything else fails, then he may avail of the principle
of original absence of liability. In doing so, it must be in full cognizance of the rules on
conflict of evidences, which means that the Mujtahid should be conversant with the

methods of reconciling the conflicting evidences, or even eliminating one in favor of

another, should it be proven necessary.
B. What is meant by ‘the text’ in the first mode of exercising ijtihad?
‘The text’ in the first mode of exercising Ijtihad refers to the texts of the Qur’an
or the Sunna where the Jurist stays as close to its literal meaning as possible when
interpreting it.
C. What are the rules to be followed by a jurist in extending the hukm in an

original case to a new case?
The rules to be followed by a jurist in extending the hukm in an original case to a

new case are laid down by the Muslim jurists in the following:
a) The Law enunciated in the text to which analogy is attempted to be applied must
not have been indicated to be restricted to a particular state of facts. The rule in
the original case should be generally applicable;
b) The law of the text must not be such as its raison d’etre cannot be understood by
human intelligence nor must be in the nature of an exception to some general rule;
c) An analogical is to be in the nature of a corollary of the text of law. Analogy
cannot be applied merely to the words of the text;
d) The deduction must not be such as to involve a change in the law embodied in the
text.
D. Discuss the third mode as used by the Hanafi jurists in istihsan and by the
Maliki jurists in maslahah mursalah.
The third mode as used by the Hanafi jurists in istihsan and by the Maliki jurists
in maslahah mursalah comes into play when the set of facts waiting decision is neither
stated expressly in the texts nor can the laws derived in the first mode be extended to this
new situations through analogy.
The jurist solves the legal problem by means of invoking the purposes or spirit of
the laws by means of looking at all the texts or group of texts collectively in the light of
their purposes. In this mode, the jurist is required to work on the basis of general
principles of the law when these principles conform with the purposes of the Shariah.
E. Can these modes in the exercise of ijtihad be used against the maqasid ash-
Shariah?
No, these modes cannot be used against the Maqasid ash-Shariah since resorting
to this principle in order to discover the law from the texts and to apply it to the set of
facts awaiting decision must be based upon the purposes of the law or Maqasid ash-
Shariah.
V. A. Explain the maxim “al-aslu fi ‘l-ashya’i al-ibadah” or “the original rule

for all things is permissibility”

The original rule for all things is permissibility which, states that everything are
permissible unless legal evidence prohibits it. This is the original principle in Islamic law
and jurisprudence which implies that whatever is not mentioned expressly in the text of
the Qur’an and the Sunnah, and which cannot be dealt with through analogy is
permissible, that is, it belongs to the category of Mubah.
B. Discuss exhaustively the Shari’ah principle that “necessity makes a thing

prohibited permissible”.
Necessities makes a thing prohibited permissible means that when in a state of

necessity it makes forbidden things canonically harmless; e.g., to drink wine when lost in
wide desert where there is no water to drink and there is a possibility that one will die of
thirst is permitted.
VI. A. What are the two (2) parts of a Hadith? What are the methods used to
check the authenticity of these two (2) parts?
The two parts of a Hadith are the the Sanad, an uninterrupted chain of authorities
on which a tradition is based, and the Matn.
The methodology of determining the genuineness of these two parts is by

determining the chain of transmission (Isnad); and by ascertaining the Matn or the text,
which is the real substance of the reported Hadith.
In determining the chain (Isnad) of transmission, the scholars of Hadith required

that the names of those who successively had passed the text of the Hadith be definitely
established. According to the Muslim scholar’s view, a tradition can only be considered
credible when its Isnad offers an unbroken series of reliable authorities.
B. Distinguish between Sunnah tashri’i and Sunnah ghayr tashri’i.
Sunnah tashri’i and Sunnah ghayr tashri’I may be distinguished in the sense that
Suunah Tashri’i is referred to the Sunnah of the Prophet Muhammad that deals with his
ways as being a Messenger of Allah, Head of State, Imam or Judge. This is obligatory to
be followed and whose omission is evil and improper. Conversely, Sunnah Ghayr
Tashri’i refers to the Sunnah of the Prophet, such as his personal ways of dressing,
walking and sitting, the omission of which is not improper.
VII. One important principle in interpretation that a jurist must be abreast with
pertains to determining whether an obligation is imposed as a general rule
(‘azimah) or as an exception to a general rule (rukhsah).
A. Distinguish between ‘azimah and rukhsah.
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.
B. Can rukhsah be a basis of Qiyas or analogy? Please explain.

No, rukhsah cannot be a basis of Qiyas or analogy. Analogy cannot proceed from
a rukhsa, which is a concession in respect of the general rule prescribed by the Lawgiver;
this is so because the rule in Qiyas is not confined to an exceptional situation or to a
particular state of facts. Rukhsah is essentially designed to extend the normal, not the
exceptional, rules of law. In other words, rukhsa embodies the exceptions, if any, that the
Lawgiver has granted with a view to bring facility and ease in difficult circumstances.
VIII. A. According to the Code of Muslim Personal Laws, how should customary
contracts for the delivery of any real estate, plantation, orchard or any fruit-
bearing property is construed? Please explain the reason for this rule.
According to the Code of Muslim Personal Laws, any transaction whereby one
person delivers to another any real estate, plantation, orchard or any fruit-bearing
property by virtue of sanda, sanla, arindao, or similar customary contract, shall be
construed as mortgage in accordance with Muslim law.
By customary contracts under the above mentioned provision are those contracts
which Muslims are accustomed or used to enter into involving real estate or properties
such as what is known in their localities as sanda or sanla and arindao which are
customary contracts of Indo-Malay influence. The code opines that these shall be
construed as a mortgage in accordance with Muslim law mortgage or rihan.
B. In general, how should ‘ada or ‘adat not embodied in the Code of Muslim
Personal Laws be proven in evidence as a fact so that the Shari’ah Court
may use it in its decision? What are the limitations imposed by the law on the
use of ‘ada or ‘adat?
The limitations imposed by the law on the use of ‘ada or ‘adat are the following:
a) It must have the force of law upon the community;

b) It must be generally acceptable to the community;
c) It must not be contrary to the constitution of the Philippines, the Muslim
code, other Muslim law, public order, public policy or public interest;
d) It must be proven in evidence as a fact.
IX. A toothpaste product is suspended to contain a haram ingredient.
A. Can the ulama’ by themselves declare that such product is forbidden for
Muslims to use? Please explain.
Yes, the ulama’ can declare by themselves that such product is forbidden for
Muslims to use. According to other authority, Ijma means that all the Ulamas (jurists) of
the Ummah (people) have agreed upon a certain point and when it is established that, that
has been a consensus of the entire ummah, on a certain legal point, then it is not rightful

for any person to refuse to accept that. This is so because the entire ummah cannot have
consensus in error.
B. Discuss the validity of using the concept of Ijma during our time in
arriving at a consensus pertaining to cases or situation where expert opinion
is required as in the case above.
Using the concept of Ijma during our time in arriving at a consensus pertaining to
cases or situation where expert opinion is required is valid. Though the legal opinion,
however high, in respect of interpretation, analogy, ijtihad, istidlal, public welfare, and
consensus will at best be only an expert opinion, and will enjoy such right and respect as
is equal with the strength of the argument and the academic position of the legist. But
such position will not amount to law. To give it a status of law it is essential that the
ruling body, consisting as it must, be of men of authority and learning should enact that
interpretation, Qiyas, inference, Ijtihad, Istihsan or Istislah into law through consensus or
majority decision. Moreover, Abu Hanifa says that, if a Fatwa of a Mujtahid is published
and is not opposed, it will have the force of Ijma. But, so long as a fatwa does not attain
the position of Ijma it remains a verdict or opinion of a Mujtahid and may be changed
when confronted with necessity and need on account of error of judgment.
X. A. Discuss the concept of naskh under Islamic Jurisprudence.
Abrogation (Naskh) literally means obliteration, transcription or transfer. It is also

defined as the suspension or replacement of one Shari’ah ruling by another, provided the
possible to reconcile them or when the later law expressly repealed the former. If it is not
possible to know which of them is first, another important rule in such a case which is to
be kept in view is that both the repealed and the repealing texts must be revealed.
B. Explain the application of naskh pertaining to the relationship of the

Glorious Qur’an with previous divine revelations.
This is the repeal of the Qur’anic text by another text. Example is the
prearranged with intoxicants that at one stage the use of it was utterly discouraged
pointing out its bad effects. Later people were asked, rather warned, not to touch and
finally the use of it was declared prohibited. This according to the commentaries of the
Qur’an, is an indirect way of nullifying the effect of earlier verse on the subject in the
Qur’an by replacing it later with a more concrete and powerful expression.


I. A. State the rule of Shariah (Islamic law) on issue for which the lawgiver
provides no specific rule. Explain answer briefly
The rule of Shariah on issue for which the lawgiver provides no specific rule
provides no specific rule is permissibility. This implies that whatever is not mentioned
expressly in the text of the Qur’an and in Sunna of the prophet and which cannot be dealt
with through analogy, is permissible. Therefore, all actions are permissible unless there is
an evidence indicating they are not.
B. show or illustrate the relationship of the following terms to one another:
a. Islam is the religion which is brought by the prophet (pbuh). It connotes

submission to the will of Allah and obedience to his law.
b. Shariah is the law of Islam. It refers to the sum total of Islamic law which
revealed to the Prophet Muhammad which are recorded in the Qur’an as well as all
deducible lifestyle called Sunna.

c. fiqh is body of laws deduced from the Shariah to cover specific act not directly
treated in the Shariah law.
II. A. Shari’ah adopted two (2) methodologies in Islamic legislation. What are
these and define or explain each.
a) Divine legislation those refers to the books sent down to the prophets among
them are the Zabur (psalm) of Daud, the taurah (torah) of musa, the engeel (gospel) and
the Holy Qur’an.
b) By the extension of the original text through ijtihad or individual opinion.
B. Why is the Qur’an considered a complete code of conduct by the Muslim?

Explain briefly.
The Qur’an is considered a complete code in the sense that all principles of
fundamental nature like human rights, relation between man and man, fulfillment of
obligation and so on and so forth are all embodied in it. Although the Qur’an did not give
the detailed provisions yet Allah s.w.t. assigned an engineer to implement and
demonstrate the general provisions, in the person of the prophet.
III. A. Define or explain the following terms:
1. Ibadat
Ibadat refers to the relationship between mankind and God, i.e., the law of
worship, which governs acts of prayers, such as salah, zakah, sawm, hajj, etc.
2. Itiqadat
Itiqadat refers to the principle of belief, which embraces the six articles of Muslim
Faith namely belief in the oneness of Allah, belief in His Angels, belief in His Books,
belief in His Prophets, belief in the Day of Judgment, and belief in the Decrees of God.
3. Mu’amalat
Mu’amalat refers to the relationship between man and man, i.e., all laws
regulating the economic, social and political relationship of mankind, such as the laws of
4. Adab
It refers to Islamic etiquette or upright moral behavior. It also refers to respect,

courtesy and manners; it governs the propriety of one’s behavior in relation to parents,

elders and superiors. It also embraces all considerations of moral excellences, such as
sincerity, thrust in Allah, humility, resignation, patience, love of God, etc.
5. Uqubat
Uqubat is translated as penal laws. It denotes punishment instituted in the Qur’an.

It is the remedy or punishment granted in favor of the general public for the commission
of an injurious or wrongful act. The penalties to be imposed for the commission of crimes
are Hudud, Qisas, Ta’zir, etc.
B. Give the five (5) principles adopted by the Philippine Muslim code
commission in the codification of the ode of Muslim Personal Laws of the
Philippines (P.D. 1083).
The five (5) principles adopted by the Philippine Muslim code commission in the
codification of the ode of Muslim Personal Laws of the Philippines (P.D. 1083) are as
follows:
a) Of the Islamic legal system, which is considered a complete system comprising

civil, criminal, commercial, political, international and purely religious laws, only those
that are fundamentally personal in nature were to be codified;
b) Of the personal laws, those relative to acts the practice of which are absolute
duties under Muslim law were to be included and those according to Muslim Law are
forbidden and demand unconditional punishment were to remain prohibited;
c) Where the provisions of the law on certain subjects were too complicated for a
code, only the fundamental principles were to be stated and the details left to the judges
for proper implementation;
d) No percept, fundamental though it might be, was to be incorporated in the code

where it appeared to be contrary to the principles of the constitution of the Philippines;
and
e) No percept was to be included unless it was based on the principles of Islamic

law, as expounded by the four orthodox school.
IV. A. Differentiate the following terms:
a. Waqf and Itibah
Waqf is a legal process by which a Muslim creates an endowment of his property

for any purpose recognize by Islam as religious, pious and charitable while ittibah refers
to the actions of Muslim by following the rulings of the early scholars with reason or
deduces rulings from one of their deduction in order to preserve the pristine purity of
Islam as revealed to the prophet Muhammad (SAW) and conveyed to his companions.
b. tafsir and ta’awil

Tafsir in the language of the scholars means explanation and clarification. It aims
at knowledge and understanding concerning the book of Allah, to explain its meanings,
extract its legal rulings and grasp its underlying reasons. Tafsir explains the outer
meaning of the Qur’an. Ta’wil is considered by some to mean the explanation of the
inner and concealed meanings of the Qur’an, as far as a knowledgeable person can have
access to them.
c. Fiqh and canon

evidences. Technically, it is the scientific study and elucidation on Shari’ah. It is the
life and derived from detailed proofs of law. Whereas, canon denotes a man-made law. A
rule a regulation, a law or statute, referring in particular to secular laws. However, from
the European concept, a body of ecclesiastical law which originated in the church of
Rome, relating to matters which the church has or claims jurisdictions.
d. Ijtihad and Ray
Ijtihad is the exerting by a jurist of his utmost analytical reasoning with a view to
formulate and independent opinion while ray came to be known as unguided opinion.
e. Sabab and Rukn
Sabab literally means reason, those which indicate the cause of a mandatory law.
While rukn refers to the essential element of an act.
B. Give the three (3) kinds of Tafsir used by the Muslim Jurists on the
correct understanding of difficult Qur’anic verses.
The three kinds of tafsir used by the Muslim Jurist on the correct understanding of
difficult Qur’anic verse are:
a) tafsir bi-l-riwaya (by transmission), also known as tafsir bi; mathar
b) Tafsir bil ra’y (by sound opinion; also known as tafsir bil-diraya, by
knowledge)
c) tafsir bi-l-ishara (by indication, from signs)
V. The Muslim jurists generally classified rights ( Haq) into two:
A. Give the two kinds of rights under the Shariah and define each.
a) Right of God which has for its purpose public rights as it involves benefit to the
community at large and not merely to particular, individual, such that its enforcement is
the duty of the state. They are refer to God because of the magnitude of the risks involved
in their violation of the comprehensive benefits which would result for their fulfillment.

b) Right of man are rights in which a private individual interest is the core, and its
enforcement is at the option of the person whose private right is infringed whether to ask
for its compliance or not.
B. In case of conflict between the two (2) rights, which one prevails? Discuss
briefly your answer.
Rights of man will be prevailed in the case of Mu’amalat. Whereas Rights of God
will be prevailed in the case for Ibadat.
VI. “ A” was slain and left several surviving heirs. His (A’s) relatives amicably
settle to a blood-money (Al-diyat) compensation for peace. A’s relatives and
children received their respective shares from the blood money. The wives despite
their protest were excluded, being related only by affinity.
A. is the protest of wife valid? Explain briefly.
Yes. It is meritorious because the wife is included in the recipient of the

inheritance and she is included to be asked from forgiveness of the other opponent party.
Al Diyat is a form of blood money to settle the issue for family of the deceased person.
B. In the event that the wives are entitled to share from the blood money,
how much should be their share?
The wives will share one eight in the presence of the child or children of the
deceased husband and one fourth in their absence.
VII. A. What are the essential requisites before “ADAT” may be admissible as a
binding rule of law?
The following are the conditions of a valid urf:
a) It must be reasonable and compatible with good sense and public sentiment and
acceptable to people of sound nature
b) A custom must be of frequent and common recurrence
c) the custom is prevalent at the time of transactions or previous thereto but not to
later custom
d) it must not contravene the clear stipulation of an agreement
e) A custom is valid only if it is not in conflict with a text.
B. Give example of “ ADAT” generally given force of law among the Muslim.
Local customs were given legal weight in areas where there were no binding
Islamic customs available. It was through the application of this principle that various

customs found in the multiplicity of cultures within the Islamic world entered the legal
system and became mistakenly classified as Islamic.
VIII. A. Give the three (3) rules on repeal “nask” or Al-nasikh wa –al mansukh, of
the Muslim Law
The rule on repeal of the Muslim law are as follows:
a) Liberalizing the law for people, making possible progress in legislation in order
to adapt the rules governing transactions to changing times;
b) A law is abrogated or repealed by another when the two are in conflict with one
another and it is not possible to reconcile them or when the other law expressly repeals
the former; and
c) the raison d’ etre of the repealed laws is that what may be good for the people
of one age may not be good for the people of another age.
B. May a Muslim law repeal a Local law? Explain briefly.
No, the Muslim Code substantially provides that Muslim law not embodied in this
Code shall be proven in evidence as a fact which is not contrary to the Constitution of the
Philippines, this Code, public order, public policy or public interest shall be given any
legal effect, but not to repeal the existing Local law.
IX. A. What is meant by “al-siyasah al-shariya or neo ijtihad” Explain briefly.

Differentiate it from Siyasah al-wadi.
Al-siyasah as- Shariah is a government in accordance with revealed law coupled

by the sovereign’s prerogative power of supplementing the doctrine of jurists
administrative measures and regulations. Whereas, neo-ijtihad is focused on the
codification of the laws i.e. PD 1083 based or not contrary to the Qur’an and Sunna of
Prophet Muhammad saw.
B. Some jurist claim that the door of Ijtihad, analytical deduction to

formulate a rule of law is now closed. Do you agree or not? Explain your answer
briefly.
It did not yet close, so long as the qualification of being mujtahid is met, then
ijtihad can be formulated. Nevertheless, majority of the ulama agreed that after the death

of the four Imam such as Imam Malik, Imam Hanafi, Imam Shafi’i and Imam Hanbal, the
qualifications of being mujtahid had never been met and they supposed that it will not be
met until the day of judgment.
X. A. What is meant by “Shariah value” or Hukm shar’i. Illustrate by example.
Shariah value (hukm shar’i) is defined as the quality determined as a result of

divine revelation. For example, the fact of an act being prohibited in Shariah is its
Shariah value. It is defined by Muslim jurists as “that which is establish by a
B. What is the meaning and complimentary roles or purposes of Hukm

taklifi and Hukm Wad’i? Give example of each.
Mandatory law is the law which defines the characteristic of a man’s act whether
they are obligatory, forbidden, commendable, improper or which indicates the legal effect
of an act. It requires certain actions , or provides a choice of whether to follow or not.
Example, fasting of Ramadan is obligatory and praying five times a day
Declaratory law is a law which is promulgated as a reason, a condition or

deterrent for action or which states whether these actions are valid or void or whether
they are allowed by concession or are permissible ab initio. Example, before praying, you
must perform ablution in order that your prayer become valid otherwise it will become
void.

References:
Abdulrahman, Jashim A. Questions and Answers: Islamic Law (Shari’ah) and

Jurisprudence (Fiqh). Iligan City, Philippines: Ivory Printing and Publication
House, 2012.
Abdulrasak, Azizan. Introduction to Islamic Law and Jurisprudence. MSU, Marawi City,
Philippines, 1985.
Alauya , Saaduddin A. Fundamentals of Islamic Jurisprudence with Appendix

Islamic Penal Law. Manila, Philippines: Rex Book Store, 1999.
Alonto, Ali. Selected Explanations/Commentaries on the Provisions of Code of Muslim

Personal Laws of the Philippines on Persons, Property and Family Relations.
Marawi City, Philippines.
Amin, Omar. Questions and Answers on Islamic Court Procedure and Evidence.
Arabani, Bensaudi I., Sr. Commentaries on the Code of Muslim Personal Laws of the
Philippines with Jurisprudence and Special Procedure. Manila, Philippines: Rex
Book Store, 2011.
Ayo, Abdulcader M., Notes on Shariah I [Islamic Jurisprudence (Fiqh) and Customary
Law (‘Adat)], College of Law, Mindanao State University, Marawi City,
Philippines, Unpublished.
Benito, Talib A. Introduction to Islamic Legal Injunctions (Al-Ahkam as-Sha’iyyah).

KFCIAAS, MSU, Marawi City, 2011.
Benito, Talib A. Shari’ah Court: Primer on its Rules of Procedures. MSU, Marawi City,
2005.
Buat, Mohammad Musib M. Answers in the Shari’ah Bar Examination in Jurisprudence

and Customary Laws. Diliman, Quezon City: UP-ISSI, May 21, 2006.
Code of Muslim Personal laws of the Philippines

Morados, Macrina A. Consolidated Lecture on Islamic Jurisprudence. Manila,

Philippines: UP-ISSI, 2013.
Philips, Abu Ameenah Bilal. The Evolution of Fiqh (Islamic Law & The Madh-habs).
Saudi Arabia, Riyadh: International Islamic Publishing House, 1995.
Sadain, Mehol K. Review Notes in Persons and family Relations, Shari’ah Pre-Week Bar
Review. Manila, Philippines: UP-ISSI, June 21-24, 2011.
The Glorious Qur’an

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Notes on Islamic Jurisprudence (Fiqh) and Customary Law (‘Adat)

Shariah Bar Questions and Suggested Answers

1983 SHARIAH BAR EXAMINATIONS ON

I. a) what is the difference between Fiqh and Shariah?

The difference between Fiqh and Shariah are as follows:

vi. In Fiqh, an action is legal or illegal, permissible or not permissible. In Shariah,

Shariah value (hukm shar’i) is the quality determined as a result of divine

Two (2) kinds of Hukm Shar’i:

ii. Declaratory law is a law which is promulgated as a reason, a condition or

The four sources of Islamic law are:

Other names of Holy Qur’an:

i. Furqan (criterion 25:1)

ii. Tanzil (sent down 26:192)

iii. Dhikr (reminder 15:9)

iv. Kitab (scripture 21:10)

i. Inspiration: example in a dream (Ibrahim received guidance in a

iii. Words sent through special messenger (Angel Jibril to Muhammad)

The Descent of the Qur’an:

ii. From the heavens to earth in stages throughout the 23 years of

Johary “Jhopax” Maruhom Ali Rasul PSBA 418 Page 2

“Proclaim or read in the name of the Lord and Cherisher; who

Method of Legislation during the era of Prophet Muhammad (pbuh):

i. Numbers of Qur’an verses are direct answers to questions. Example: “They

iii. Pronouncements made at the time of incidents. Example: In one occasion,

iv. Legislation was to achieve gradation in the enactment of laws. Example: In

The Qur’an has divided into three fields of study:

i. Belief in God (Aquidah);

ii. Moral science (Al akhlaq);

The legal content of Qur’an:

2. Dealings among men:

a. Laws, such as propagation of Islam;

Johary “Jhopax” Maruhom Ali Rasul PSBA 418 Page 3

b. Family laws, such as marriage, divorce, and inheritance;

c. Trade laws, such as business transactions, rental contracts;

d. Criminal laws, such as specifying punishments and compensations.

Basis of Legislation in the Qur’an: This is to reform human condition as to

ii. Reduction of Religious Obligation. “… forced by necessity … no sin on

iv. Realization of Universal Justice. Islamic legislation considers all humans

b) Sunna (Traditions of Prophet Muhammad saw)

Hadith means news, report or narration:

i. What Muhammad said (qaul);

ii. What Muhammad did (fi’l); and

iii. What Muhammad silently approved (iqrar) in others’ actions.

The farewell of Prophet Muhammad (pbuh): “Certainly there is for you in

Johary “Jhopax” Maruhom Ali Rasul PSBA 418 Page 4

c) Ijma (Consensus of opinion)

Opinions may take various forms bordering to individual opinion called

a. A person conversant with science of law;

c. Thorough knowledge of the Tradition, able to distinguish between authentic

The ijma constituted when:

a. There must be a formal assembly of the learned people;

b. The issue shall be placed before this body;

d. Leads to an unanimous decision. Then, the ijma is complete as soon as the

Views of the School of Law:

a. Maliki: ijma of the Companions or their successors, who resided in Medina, is

b. Hanbali: Only ijma of the Companions is valid;

Johary “Jhopax” Maruhom Ali Rasul PSBA 418 Page 5

b. From the Tradition of Prophet Muhammad (pbuh):

- My people will never agree an erroneous things.

- It is incumbent upon you to follow the most numerous body.

b. Irregular ijma. There is no absolute certainty. Some jurists adopted it and

Johary “Jhopax” Maruhom Ali Rasul PSBA 418 Page 6

The legal effect of the ijma is considered to be authoritative and binding. It

d) Qiyas (Analogical reasoning)