Sharia in The Early Period

Producing Leaders Since 1905
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Shariah in Early Islamic Period
Ahmad Hidayat Buang 2008
Topics
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Arabia Before Islam (Social, political and legal conditions of Pre Islamic Era) Legal Rulings of the Prophet s.a.w. Position and Improvement of Women status Legal opinions of the Caliphates

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Learning Outcomes
At the end of the session students are able to

Explain the situation of social and legal conditions of the following eras:
pre Islamic era Prophet era Caliphates
Show a relationship between those areas in respect of legal development Summarize some of the importance legal characteristics and factors in the periods of the Prophet and caliphates

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Arabia Before Islam
Knowledge of the custom and social system of the Arabs is crucial to the understanding of Shariah as:
Many aspects of the Shariah trace its origins to the practice of the Arabs Explain the very nature of the Shariah and fiqh to reform (islah)
Origins of the Arab

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Two important tribes

Qahtan from Yemen (Bani Sam bin Nuh) Adn from Hijaz (lineage up to Prophet Ismail and Ibrahim a.s)
Sytle of Living
Badw (normad) depend on livestock (Mashiah) Hadr (cities dwellers such as Sana) active in agriculture, manufacture and relations with seasonal trading and having a sort of governmental order or rules (nizam hukumi)

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Social Structure Religious Affiliation
Pride in ancestry and fanatical towards the tribe whether as tyrant (zalim) or victim (mazlum) Allegiance to tribe and claim to common ancestor eg. Bani Hashim Pagans worshiping idols, especially Hubal but some of them were Christians and Abrahamic religion
Family Structure
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Family unit based on kinship (nasab) through (1) marriage, (2) adoption (tabanna) and (3) patronage (wala) Dominated by male members, controlling the affairs of the tribe. Practiced infanticide. Having a marriage custom based on contract, payment of mahr, divorce system by talaq, khul, ila etc.

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Political and Legal Structure
No central government but based on tribal and thus no central leader. Shaykh of the tribes lead the community. No written law mainly based on customs In cities like Makkah, Madina and Sana certain rudimentary rules on trade and agriculture Settlement of dispute through arms conflicts and matter of personal enforcement or vendetta (thar) but sometimes an arbitrator or (Hakam, especially among the soothsayer or Kahin) is appointed

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Property and Transactions
Knowledge of basic business transaction based on consential contract (rida) such as bay and others like mudarabah etc. Practiced some agricultural contract like salaf or salam and araya. Many contracts based on conditions such as munabazah, hasat, mulamasah, misrah, najsh etc Loan based on riba

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Position of Women
Women are the ownership of a father, husband or other male members No rights of property and ownership No rights in inheritance More or less treated like a property that can be owned through marriage (mahr) and succession (nikah al-maqt)

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Legal Rulings of The Prophet
Transformation from tribal allegiance to common faith of Islam: Obey God, Obey the Prophet and those who in charged of your affairs The main purpose of Prophet Muhammad s.a.w. is to establish certain basic standard of behaviour which is predominantly ethical for the Muslim community such as:
Compassionate for the weaker Fairness and goodfaith in commercial dealings Incorruptibility in the administration of justice

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Character of the Prophet rulings 1
Ad-hoc solutions for practical problems and not attempting to deal with any general topics (piece meal legislation):
Abolition of pre Islamic custom of adoption Penalty of 80 lashes for Qazaf
Modification of certain particulars rather than attempting to supplant the entire of the customary law
Inheritance Contracts Penalty for crimes

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Character of the Prophet rulings 2
The sole arbitrator/legislator/judge replacing the old practice of Hakam

Revelation
Explaining and interpreting general provisions of the Quran
Own reasoning ijtihad
Gradual introduction of legal and ethical standards eg. Prohibition of wine drinking and riba.

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Improvement of Womens Status
One of the major or radical reform introduced by al-Quran upon the Arab customary law:
Payment of mahr Waiting period or iddah Talaq Polygamy inheritance

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Legal Opinions of the Caliphate
Continued to be the leader of Muslim community and introduced administrative and legal practices such as:
Diwan Baitul Mal Land Taxation or Kharaj Poll Tax or Jizyah Umars letter on courts rules and procedures Elaboration of inheritance rules such as awl, thuluth ma baqi

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New Approaches of the Caliphal Legal Rules 1
Approaches in dispute settlement are still the same: reference to Quran and Sunnah
However the Caliphs especially Abu Bakr and Umar were reluctant to accept a single narrated Hadith (ahad)
This attitude led to general consultation and evidence to support single narrated hadith:
The grandmother inheritance case
Consultation practices avoid disagreement and later led into what is known as ijma or consensus

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Ijma is possible because:

All leading companions resided in Madinah Umars policy of disallowing them to leave Madinah without permission
As hadith mutawatir is rare, the was tendency to employ reasoning in legal problems
This was not new since the companions had used reasoning the Prophet was alive
The question of performing late noon prayer

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Nor general consultation stopped the Companions from exercising the reasoning, in fact there were Companions famous for their use of reasoning:
Abu Bakr, Umar, Ibn Masud, Zayd ibn Thabit, Ubay ibn Kab, Muaz ibn Jabal
Although the Caliphs issued directives, orders etc. other Companions continued to give views on matter relating to legal issue. This allowed since
Their views were non- binding The practice of respecting other views and not fanatic

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Examples on the Use of Reasoning
The basis for the use of reasoning or ray stems from the approval of the Prophet e.g. Prayer of Asar in the battle of Banu Qurayzah
The opinion normally by looking to the Shariah value or spirit rather to the letter of the law eg.
The war against maniu al-zakat Qatl al-jamaah bi al-wahid Distribution of Iraq war spoils Al-Talaq thalatha bi lafz wahid
General Consultation (Syura) and Personal Reasoning

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The existence of personal views despite general consultation is for the reason that the latter is for public interest, while the former is daily affairs of the community Since personal views was used to answer questions relating to religious questions this naturally led into diversity in views among the companions
Reasons for Diversity of Views Among Companions

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The question on Hadith

Hadith contradictory to the Quran
Umars rejection of Fatimah bt Qays claim of a hadith on maintenance to wife divorced with triple talaq
Contradictory hadiths
In case of riba between Hadith Ibn Abbas and Ubadah bin Samit et.al.
Hadith not known to a Companion
Different interpretation of the Quran

The word quru

Sharia in The Early Period

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Producing Leaders Since 1905

Shariah in Early Islamic Period

Ahmad Hidayat Buang 2008

Ahmad Hidayat Buang 2008

Producing Leaders Since 1905

At the end of the session students are able to

Producing Leaders Since 1905

Arabia Before Islam

Ahmad Hidayat Buang 2008

Origins of the Arab

Two important tribes

Producing Leaders Since 1905

Social Structure Religious Affiliation

Producing Leaders Since 1905

Political and Legal Structure

Ahmad Hidayat Buang 2008

Producing Leaders Since 1905

Property and Transactions

Producing Leaders Since 1905

Producing Leaders Since 1905

Legal Rulings of The Prophet

Producing Leaders Since 1905

Character of the Prophet rulings 1

Producing Leaders Since 1905

Character of the Prophet rulings 2

The sole arbitrator/legislator/judge replacing the old practice of Hakam

Own reasoning ijtihad

Producing Leaders Since 1905

Improvement of Womens Status

Producing Leaders Since 1905

Legal Opinions of the Caliphate

Producing Leaders Since 1905

New Approaches of the Caliphal Legal Rules 1

Producing Leaders Since 1905

New Approaches of the Caliphal Legal Rules 2

Ijma is possible because:

Ahmad Hidayat Buang 2008

Producing Leaders Since 1905

New Approaches of the Caliphal Legal Rules 2

Producing Leaders Since 1905

Examples on the Use of Reasoning

Ahmad Hidayat Buang 2008

General Consultation (Syura) and Personal Reasoning

Reasons for Diversity of Views Among Companions

The question on Hadith

Hadith not known to a Companion

Different interpretation of the Quran

Ahmad Hidayat Buang 2008

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