JURISPRUDENCE NOTES

ISLAM - lit - Aslam = peace

- Complete submission

“Indeed, the religion (way of life) in the sight of Allah is Islam”. Surah Ali-Imran 3:19

5 Pillars of Islam
a. Shahadatayn
b. Salah
c. Zakat
d. Sawm
e. Hajj
6 articles of Faith
a. Belief in oneness of Allah (tawhid)
b. Belief in Allah’s Angels (Malaaikah)
c. Belief in Allah’s scriptures/Books (Kutub)
d. Belief in Allah’s Messengers (Rusul)
e. Belief in the Day of Judgment (Yawmul Qiyamah) and
f. Belief in Divine Predestination (Qadr)

SHARI’AH - lit - waterhole/road to watering place

def - totality of God’s commandments

“Then we put you on a straight path in your affiars, so follow it and do not follow the
desires of those who have no knowledge.” Surah Al-Jathiyah 45:18

MAQASIDUSSHARI’AH – 5 essential values which are themselves the objectives

of Shari’ah to protect?

- Dini (Preservation of Religion)

- Dunyawi (worldly purposes)
o Preservation of life (Nafs)
o Preservation of family/progeny (Nasl)
o Preservation of intellect (Aql)
o Preservation of wealth/property (Mal)

FIQH- lit - understanding

def - knowledge of Shari’ah

"They have heat with which they do not understand…” Surah A;-A’raf 7:179
Prophet Muhammad (SAW): “If Allah wants to do good for a person, He makes him
understand the religion.” Hence, the fiqh literally means “true understanding of what is
intended.”

Differentiate Shari’ah and Fiqh

Shari’ah Fiqh
Body revealed laws found both in the Laws deduced from Shari’ah to cover
Qur-an and Sunnah specific situations not directly treated in
Shari’ah Law
Fized and unchangeable Changes according to the circumstances
under which it is applied
general Specific
Covers all human action Deals only with what are commonly
understood as legal acts.
Laid down by God and His Messenger Erected by human endeavor
Approval or disapproval. Action is legal or illegal, permissible or
not permissible

3 LEGISLATION OF PROPHET MUHAMMAD SAW

a. Divine legislation – referes to the legislation from Allah revealed through Angel
Jibreel (AS) to Messenger Muhammad (SAW).
b. Legislation by precepts or by examples – by Prophet Muhammad SAW in his
word, deeds and acquiesces, under divine inspiration.
c. Legislation by spirit of the law – extension of the original text (Qur-an and Hadith)
through Ijtihad, or individual opinion (fatwa) that later on received common
consensus (Ijma) of the community or those in authority such as judge (Qadi) of
different provinces appointed by the Messenger (SAW).

QANON – (canon law) - Ecclesiastical Law originated in the church of rome, relating to
matters which the church has or claims jurisdictions. Example: Civil Code, Revised
Penal Code or Labor Code of the Philippines.

USUL-UL FIQH – root of Fiqh - science of the study of Muslim law jurisprudence

- Its fundamentals and principles, based from the primary sources of law.

HUKM SHAR’I - lit - rule, injunction, prescription

def - quality determined as a result of divine revelation

HUKM TAKLIFI - (Mandatory Law) law which defines the characteristics of a man’s act
namely whether they are obligatory, forbidden, commendable, improper, and
permissible or which indicate the legal effects of an act.
 a. Fardh – obligatory (omission = infidelity)
a. Fardh Ayn (Personal/Individual Obligation) ex. Daily prayer
b. Fardh Kifaya (Collective/Group Obligation) ex. Salatul janaza
b. Wajib – Mandatory (omission = grave sin)
a. Wajib Mutlaq – performance has been demanded by law giver but no fixed
time
b. Wajib Muqayyad/Wajib Muwaqqat – demanded by law giver but period is
determined.
i. Ta’jil – early performance
ii. Ada’ – timely performance
iii. Qada’ – after the time
c. Mandub – Recommendable/Voluntary /Sunnah (Commission = rewarded,
omission =no punishment)
a. Sunnah Mu’akkadah – persistently performed by the Messenger SAW
b. Sunnah Ghayr Mu’akkadah / Nafl / Mustahab – was not performed
persistently by the Messenger SAW.
c. Sunnah Zawaid – ordinary daily tasks as a human being like his way of
dressing, eating, etc.
d. Mubah or Jaiz – Permissible/indifferent (Neutral)
e. Makru – Reprehensible/Disapproved (Omission if preferable)
a. Makru Karahat Tanzih – nearer to Mubah
b. Makru Karahat Tahrim – nearer to Haram
f. Haram – Prohibited/forbidden (commission = punishable, omission = rewarded)
a. Haram li-dhatihi – Mala inse concept / prohibited ab initio (prohibited in
nature)
b. Haram li-ghayrihi – Prohibited for an external factor. Not prohibited in
nature.

HUKM WAD’I –

a. Legal Cause (Sabab) – ex. Marriage is the cause of the right of inheritance.
b. Legal Condition (Shart) – governs operation of a mandatory law. Ex. Property
possessed for a year is a condition for payment of zakah.
c. Prevent/Legal Impediment (Maani) – ex. Impurity of the person prevents the
validity of prayer.

Azimah & Rukhsah

Azimah – General Rule

Rukhsah – Exemption from the general rule (cannot be a basis of Qiyas)

ISLAMIC SOURCES

1. QUR-AN - lit - reading/recitation - speech of Allah sent down upon the last
Messenger thru Angel Jibreel
Other names:

- Furqan - “Blessed is He who sent down the criterion upon His servant that he may
be to the worlds a warner – Surah Furqan 25:1”
- Tanzil – “And indeed, it is the revelation of the Lords of the worlds.” Surah Ash-
Shu’ara 26:192
- Dhikr – “indeed, it is we who sent down the reminder/message and indeed, we will
be its guardian.” Surah Al-Hijr 15:9
- Kitab – “We have certainly sent down to you a Book in which is your reminder. Then
will you not reason,” Surah Al-Anbiya 21:10

5 domains of Shari’ah

a. Ibadah – worship – all actions or sayings of man or his service must be done only
for the sake of the pleasure of Allah.
b. I’tiqadiyyah – unity and attributes of Allah. (Embraces six articles of Muslim faith)
c. Mu’amalah – human transactions or relationship towards other.
d. Adab – Islamic etiquette or good moral behavior.
e. Uqubah – penal laws – signifies punishments prescribed by Allah

o Mukallaf - Sane Adult

Asbab an-nuzul – knowledge about the particular events and circustances in history that
are related to the revelation of particular passages from the Qur-an.

Muhkamat – Ayahs that are sufficient in meaning., no further explanation. A.k.a. verba
legis.

Example: “O you who believe! When ye deal with each other, in transactions involving
future obligations, in fixed period of time, reduce them in writing. Let a scribe write down
faithfully as between the parties…” Surah Al-Baraqah 2:282

Mutashabihat – Ayahs that meaning are known to Allah only (ayahs of the Qur-an the
meaning of which are not clear or not completely agreed upon, but open to two or more
interpretation.)

Example: “God (Most Gracious) is firmly established on the throne (of authority)” Surah
TaHa 20:5

Qur’anic Basis of Muhkamat and Mutashabihat

“He it is who has sent down to thee the Book: in it are basic fundamental (of established
meaning); they are the foundation of the book: others are allegorical, that is those in
whose hearts is perversity follow the part thereof that is allegorical, seeking discord and
searching for its hidden meanings, but no one knows its hidden meanings except Allah
and those who are firmly grounded in knowledge say: We believe in the book; the whole
of it is from our Lord; "and none will grasp the message except men of understanding.”
"Surah Al-Imran (3):7

Al-muqattat – (belongs to Mutashabihat) abbreviated letters. Eg. Alif Lam Ra

Qissa - Narratives (message). Such are stories of the prophets, etc.

Tafsir - lit explanation/interpretation – Explains the outer meaning of the Qur-an.

Ta’wil – explanation of the inner and concealed meanings of the Qur-an.

KINDS OF TAFSIR

a. Tafsir bi-l Riwaya (transmission)/ Tafsir bi-l Ma’thar

b. Tafsir bi-l Ra’y (by sound opinion)/ tafsir bi-l diraya (by knowledge)
c. Tafsir bi-l ishara (by indication, from signs)

Naskh - lit - obliteration, transcription/transfer – when two are in conflict with one
another and it is not possible to reconcile them or when the latter law expressly
repealed the former. (Repeal)

Difference between Naskh and Mansukh

Nasikh – the abrogating

Mansukh – the abrogated.

4 ways of abrogation

2. SUNNAH- lit - path, way, habit, manner of life

 def - prophet’s words, deeds, tacit approval, physical features and
moral characteristics
 Tashrii & Ghayr Tashrii 83
 Manner 106
3. Hadith - lit - new / recent
 def - what was transmitted on the authority of the Prophet his
deeds, sayings, tacit approval etc.
 HADITH QUDSI - lit - Alquds - purity, cleanliness
 def - meaning - Allah
 wordings - messenger (thru
dream)
4. IJMA - lit - Jama - to add/to agree/ to resolve
 def - unanimity of opinion
 consensus
o 4 rightly guided caliphs
o 2 types of IJMA 149
 o IJTIHAD -lit- Jahd - Exert oneself to the outmost or to the best of one’s
ability.
 def - human reason in the elaboration
 Neoijtihad - reinterpreted by the jurists.
 Mujtahid & faqih 199
 Ra’y - def - individual unguided opinion of Muslim
 Qualifications of Mujtahid 135
 Shurah - def - mutual consultation among Mujtahids 153
o Qiyas - lit - measuring/ estimating
 def - analogical deduction
 process of deduction by which the law of a text is
applied to cases which , though covered by
language
 Elements:

SECONDARY SOURCES (SUBSIDIARY SOURCES

1. Istihsan - lit - juristic preference (Maliki Madhab)

 considering a thing to be good
 def - to avoid rigidity / inflexibility / injustice / unfairness that
might result from the literal reinforcement of the law.
2. Istislah (Maslaha Al-Mursalah) - def - public interest/welfare (Hanbal : Hanafi)
 consideration with is proper and harmonious
 MAQASIDUSSHARIAH : Maintenance of religion, life,
property and etc.
3. Istishab - def - presumption of continuity (Shafi’i)
4. Istidlal - def - inference (hanafi)

SHADDUDARAI - lit - blocking

- def - blocking the evil means (only use if the evil means is frequent.
SHAR’ MAN QABLANA - earlier scriptures
URF & ADAT (Hanafi & Maliki) - DISTINGUISH
TAQLID - Keyword - blind following
def - learned without knowledge of the authority for such opinion.
ITTIBA’A - Following the rulings of the early scholars (ijtihad)
Takhayyur (1 Madhab = 1 act) - lit - picking and choosing of opinion
- def - selection of rules from various schools of law
TALFIQ (2-4 madhab = 1 act) - combining the rules of more than one school to apply
specific act.

SIYASAH AL-SHAR’IYYAH - administration of justice

QUR-ANIC VERSES
Mahr
“And give the women (upon marriage) their Mahr (bridal) gifts graciously. But if they give up willingly to
you anything of it, then take it in satisfaction and ease.” Surah An-Nisa 4:4

Nafaqa (Maintenance)

“Men are in charge of women by (right of) what Allah has given once over the other and what they
spend (for maintenance) from their wealth” Surah An-Nisa 4:434

Trade and Riba

“Those who consume interest cannot with stand (on the Day of Resurrection) except as one stands who is
being beaten by Satan into insanity. That is because they say, “treade is (just) like interst” But Allah has
permitted trade and has forbidden interest” Surah Al-Baraqah 2:275.

Fornication

“The unmarried woman or unmarried man found guilty of sexual intercouse – lash each one of them with
a hundred lashes… “Surah An-Nur 24:2

Menstruation

“And they ask you about menstruation. Say, “it is harm, so keep away from wives (i.e. refrain from sexual
intercourse) during menstruation. And do not approach them until they are pure.” Surah Al-Baraqah
2:222

Removal of Difficulty