‫بسم الله الرحمن الرحيم‬

PRINCIPLES OF ISLAMIC
JURISPRUDENCE

Session 1
 Presentation Outline
1. Overview of 1st four classes.
2. General Overview of the Positive Laws
3. An Overview of the Divine Laws
4. General Frame work of Islamic Laws
5. Family Laws: Marriage laws, Laws for the Executer of
Will, laws of inheritance.
6. Civil Laws: Obligations, Contracts
7. Criminal Laws
8. Jurisprudence (Fiqh) and its divisions.
9. Difference between Positive Laws and Fiqh
10. Judicial Judgement versus Religious Judgment
Overview of 1 Four
st

Classes
 Session 1

• Overview of Islamic Law: Family laws, Civil laws and

Criminal Laws.
• The meaning of fiqh
• Divisions of Jurisprudential Rulings: íbadat
(worship), al-ahwal al-shakhsiyyah (personal
statutes), muámalat (transactions), al-siyasah al-
sharíyyah (legal policy), üqubat (penalties), al-siyar
(expedition), al-adab (morals)
• Difference between Positive Laws and Fiqh
• Judicial Judgement versus Religious Judgment
 Session 2

• Sources of Islamic Jurisprudence: The Quran, Sunna,

Ijma’and Qiyas
• Istihsan (Juristice Preference)
• Istislah (Consideration of benefits) and Al-Masalih al-
Mursalah (Unrestricted Benefits)
• Ürf (Custom): The Literal & Technical Meaning,
Significance, Shariah Proof, Relevant Legal Maxims
and examples
 Session 3

• General overview of Contracts: Definition,

Comparison with conventional views, Historical
background
• Five basic terminologies: Al-Rukn, Al-Sabab, Al-
ïllah, Al-Shart, Al-Mani’
• Summary of the most important contracts: Nominate
contracts, Un-nominated contracts.
• Different Classifications of contract: (enforceability
wise, with regard to binding and dissolubility of the
contract, Liability wise, with regard to Asliyyah and
tabíyyah,
 Session 4

• Legal Maxims: Qawaídul Fiqh.

• Selective Maxims that are relevant to Islamic
Financial sector are described in this session.
 GENERAL OVERVIEW OF POSITIVE LAW

Evolution Process of Positive Laws ‫یاوی‬

( ‫دـنـ‬
‫) قواـنـین‬
• 1st Stage: Traditions and Customs‫يات‬ ( ‫) جزـئـ‬
• 2nd Stage: Codification of customs ‫يات‬ ( ‫( ) جزـئـ‬Evaluation
of each and every custom).
• 3rd Stage: Laying down the legal foundations and
general legal maxims (‫اــواـعد لاــكلية‬
‫) لقـ‬

Customs and traditions now support the law, but are not
the law itself.
 GENERAL OVERVIEW OF POSITIVE LAW

Systemization of Statutory Legislation

(Contract Act)
• 4th Stage: Materialization and systemization of
contract act.
• Most Important stage of legislative advancement.
• This stage allows freedom of contracts as long as they
do not violate the general system, morals and the
macro level objectives of the legislator.
• Then come the legislative scholars’ theory and
explanations
• Judgements using the legal analogy. Limited texts are
thus understood to an unlimited extent.
 GENERAL OVERVIEW OF POSITIVE LAW

Some characteristics of Legislation

• Legislation is true reflection of social life.
• The principles of legislation are temporary as long as
they express particular customs of a region.
• They are permanent if they express firm and universal
realities.
• When a nation reaches the peak of intellectual
elevation, its legislative maxims also reach the climax
of strength and enjoys permanence.
 GENERAL OVERVIEW OF POSITIVE LAW

Roman Empire
1. First, adherence to their own tradition
2. When they moved towards East, established their
authority, they abandoned their narrow legislation.
3. Still their legislation was unfit for permanence
because they had one legislation for romans and the
other for the foreigners.
4. After 300 A.D, they achieved high level of Civil and
intellectual advancement, and were refined by the
basic principles of Prophet Ïsa (A.S).
 GENERAL OVERVIEW OF POSITIVE LAW

Roman Empire
5. Only then their legislative thinking reached the peak
of advancement.
6. In fifth century A.D, Emperor Justinian codified the
Roman legislation and edited it anew.
7. It is now the foundation for most of the European
legislation today.
 GENERAL OVERVIEW OF POSITIVE LAW

Roles of Positive Law

The legislation in general has three main roles:
1. Remedy: for social and economic drawbacks
2. Protection: against anticipated drawbacks
3. Guidance: towards attainment of permanence

To achieve these, the legislation must be authoritative, or

else, it will be only moral guidance.
 GENERAL OVERVIEW OF POSITIVE LAW

Roles of Positive Law

To secure the sanctity of the obligatory nature of the
legislation, there are sanctions that include:

1. Social sanctions like invalidation of some contracts or

nature of businesses
2. Disciplinary sanction like imprisonment or financial
penalties etc.
 GENERAL OVERVIEW OF POSITIVE LAW

Roles of Positive Law

Implementation of a legislation cannot be completely
achieved unless the subjects of legislation are of certain
moral character.

Otherwise, narrow loopholes were searched for in the

legislation to achieve the greed and being safe at the
same time.
 Overview of Divine Laws

Christianity & Judaism

Divine Laws are those that came through the Messengers

who conveyed Allah’s revelation. These laws are of thee
types:

1. Correction of moral behavior, purifying the soul and

emphasizing virtues. No legal system like the
positive law. Christianity is the example.
2. Legal system for particular environment and people,
and not for all times and places. Prophet Musa (A.S)
brought this system to the children of Israel (Yaqoob
‫)عليهـ لاـسالم‬.
 Overview of Divine Laws

The Islamic Law

3. A comprehensive legal system that consists of:

i. Applicability for all environments or people

ii. Static principles, timely procedures and rules of
exemptions for cases of necessity.
iii. Rules that are linked with customs and specific
circumstances and changes with the change of
these circumstances
iv. Flexible to evolve with the evolution of time
 Specific Rights in Islamic Law
Family, Civil and Criminal Rights

Family Rights
• Islam has a comprehensive system for organizing all
family affairs. They are called personal status laws.
• Freedom of woman today was unprecedented before
Islam.
• She did not have right to live, let alone other rights.
• Family rights of Islam consist of:
1. Marriage, its dissolution, and their wider
consequences.
2. Guardianship and custodianship for those
underage or have mental disorder
3. Inheritance.
 Specific Rights in Islamic Law
Family, Civil and Criminal Rights

Marriage
• Execution is done by mutual consent, not necessarily
by a religious authority.
• To whom one can marry
• Marriage outcome: financial duties on husband and
Non financial duties on wife.
• Dissolution of marriage: Divorce , Khul’, dissolution
through court.
• Waiting period after dissolution
 Specific Rights in Islamic Law
Family, Civil and Criminal Rights

Guardianship (‫) حضـانة‬

• Guardianship vs Custodianship
• Guardianship is authority to raise, educate and
control all aspects of the minor. This right is assigned
to the closest relative of the minor.
• Custodianship is authority over the wealth of a minor
to protect, manage and invest. Preference is given to
father, or to one chosen by father before his death. Or
grandfather, and whoever he choses before his death.
Or the judge.
 Specific Rights in Islamic Law

Inheritance
Family, Civil and Criminal Rights

• It is coercive in nature. No body can deprive other

from this right.
• Even a sick husband divorces his wife during life, her
right is not nullified.
• Funeral expenses are to be borne by the inheritance
• Heir does not bear the debt of the deceased.
• 1/3 will be utilized in execution of will
• Special system of distribution, based on the closeness
of blood relationship, is established.
• The fetus in the womb is also taken into account.
• The elder brother does not have priority over his
youngers. Primogeniture, prevalent in some European
laws is against this practice.
 Specific Rights in Islamic Law

Civil Rights: Transactions

Family, Civil and Criminal Rights

• Obligations:
a) any harm done to others imposes a
responsibility on the doer even if it was done
mistakenly.
b) Individual’s free will such as endowment
c) Legislator’s will such as maintenance for
relatives.
 Specific Rights in Islamic Law
Family, Civil and Criminal Rights

Civil Rights: Transactions

Contracts
a) Contract is binding only on its contractor. Its
obligation transfers to his successor.

)1 ‫آمنُوا أ َ ْوفُوا ِبال ُْع ُقو ِد (المائدة أية‬

َ ‫ين‬
َ ِ
‫ذ‬ َ ّ ‫ل‬ ‫ا‬ ‫ا‬ ‫ه‬
َ ُ َّ ‫يَا أ‬
‫ي‬
O you who believe, fulfill the contracts.

b) All contractual conditions are legitimate except ones

that contravene the public order and morals.
“Muslims are bound by their conditions except the condition that
makes the unlawful lawful or the lawful unlawful” (At-Tirmizi)
 Specific Rights in Islamic Law
Family, Civil and Criminal Rights

Civil Rights: Transactions

Contracts
c) Mutual consent is mandatory in all contracts. This is
contrary to the contracts of Romans in which weird
actions had to be done by the contracting parties.
d) Good intention is mandatory. Cheating (Ghish),
concealing (tadlis), and uncertainty (taghrir) triggers
the activation of the unilateral option to cancel by the
other party.
e) The ürf (custom) and adah (tradition) have been
regarded as a foundation for defining the boundaries
of obligations. E.g method of using rented properties
and how to pay the rentals.
 Specific Rights in Islamic Law
Family, Civil and Criminal Rights

Criminal Rights
Penal system is based on two basis:

c) Every forbidden action is considered a crime. Every

crime necessitates a punishment in a fair manner.
Sometimes legislator determined a specific
punishment for a particular action (Hudood).
Sometimes no such determination.
d) Undetermined crimes are to be decided by the judge
taking into account the time, place and social
conditions. These are known as Ta’zir .
 Fiqh, its divisions and rulings
Fiqh: Meaning

The knowledge of the practical legal rulings with their

proofs is Fiqh (Islamic Jurisprudence).

Rulings: Injunctions by the legislator related to individual

or interrelated acts.
Legal: Means “from the command of the legislator either
explicitly or implicitly”.
Practical: is meant to exclude aqaid.

The legal proofs of these rulings is known either through

the texts of Quran, Messenger’s explanations, consensus of
Muslim scholars or the extraction from the implicit texts of
Quran.
 Fiqh, its divisions and rulings
Fiqh: Division

The fiqh rulings are of seven categories:

1. Íbadaat
2. Family rulings: marriage, divorce, affinity (nasab),
maintenance, bequests, inheritance, etc. These are
personal statutes.
3. Muámalaat: pertaining to earning activities, contractual
relationships, use of judiciary to settle disputes. (Civil
Laws)
4. Rulings pertaining to ruler and his subjects. These are
called al-ahkaam-as-sultaniyyah. (Administrative laws
and constitutional laws)
5. Rulings pertaining to penalizing criminals.
 Fiqh, its divisions and rulings
Fiqh: Division

6. Rulings pertaining to relationship of Islamic State with

other states. (As-Siyar)
7. Rulings pertaining to morals, values, virtues, vices and
known as al-aadaab (morals.
 Fiqh vs Positive Laws

• Fiqh is a combined spiritual and civil system and it

systemizes religious and worldly affairs. Positive laws
does not have the spiritual connotation.

• If judgement is made in favor of a person based on

apparent reasons, but in reality he is not entitled for
the right, the judgement in this case does permit the
unlawful nor prohibit the lawful.
 Fiqh vs Positive Laws

States the Messenger (‫) صـلي لاــهـ عليهـ وـسلم‬:

“I am only a human being, and you people have

disputes. May be someone amongst you can present
his case in a more eloquent and convincing manner
than the other, and I give my judgment in his favor
according to what I hear. Beware! If ever I give (by
error) somebody something of his brother’s right then
he should not take it as I have only given him a piece
of Fire”
 Judicial Judgment vs Religious Judgment

• Stemming from the above, there are two aspects of

Jurisprudence. Judicial and religious (‫اـضـاء و لاـديانة‬
‫) لق‬
• Judicial judgment passes ruling as per apparent
reasons. Religious judgment passes ruling as per
reality.
• A person accidentally divorces his wife by
pronouncing divorce without intending it. Judiciary
will execute divorce, Fatwa will not.
• Someone forgoes the receivable and did not inform
the debtor, then sues him for debt, the court will rule
in his favor. Fatwa will not.
 Judicial Judgment vs Religious Judgment

• Positive laws are forced to apply religious

connotations one way or another, no matter how
remote they have become from divine rules.
• This is evident by the swearing of the defendant when
the plaintiff has failed to prove the lawsuit.

‫وأخر دعوانا أن الحمد هلل رب العلمين‬