INTRODUCTION TO LAW

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INTRODUCTION TO
SYARIAH LAW
BY: JANNATUN NAAIN UMAR
 DEFINITION OF SYARIAH
• SYARIAH = an arabic word, means “the way to a watering place”.
• It is a sacred law of islam as revealed through the Prophet Muhammad s.a.w
in the Qur’an & Sunnah.
• It is a totality of God’s commands that regulate the lives of muslims in all its
aspects (duties towards God and their relations towards one and another
and the environment).
• Syariah is the way of life covers not only religious duties, ethical and moral
but many aspects of day-to-day life, politics, economics, banking, business
or contract law, and social issues.
• In Islam, Allah is the sovereign and has the right to ordain a path for the
guidance of humankind.
 NATURE OF SYARIAH LAW
• Sharia has certain laws which are regarded as divinely ordained, concrete
and timeless for all relevant situations (for example, the ban against
drinking liquor as an intoxicant).
• It also has certain laws which are extracted based on principles established
by Islamic lawyers and judges (Mujtahadun).
• An Islamic lawyer or judge's attempts to rule according to Sharia, can be
described as 'ruling by Sharia'.
• Islamic jurisprudence is called “Fiqh” : the study of the sources and
methodology (usul al-fiqh - roots of the law)
 SOURCES OF SYARIAH LAW
• The authority of Syariah is drawn from 2 primary sources:
1. Qur’an (word of Allah)
2. Sunnah(prophetic traditions).
 THE QUR’AN
• the Qur’an is the sacred book which was revealed from Allah to the Prophet
Muhammad.
• contains 114 chapters, which are called suras in Arabic. The suras contain
6236 verses, which are called ayahs in Arabic.
• was revealed over two periods which are known as Meccan (mostly of
theological character) and Medinan (political, social and legal Character).
• The Qur’an is aimed at establishing basic standards for Muslim societies and
guiding these communities in terms of their rights and obligations.
• After the death of the Prophet Muhammad, it played a significant role in the
decisions of the first ‘rightly-guided’ caliphs.
• during the rule of the Umayyad caliphs, emphasis began to be given to the
independent reasoning (ijtihad) of the caliphs.
 SUNNAH
• The Sunnah of the holy prophet consists of his established practice, first
witnessed by his companions, and subsequently reported through the
transmission of hadith.
• Hadith literature is a resource that enables us to learn about the prophets
words and deeds, as well as his tacit approval or disapproval about certain
existing social practices.
• In matters that were not clearly spelled out in these sources, Muslim jurists
developed other methods of finding a solution to a question:
1. The first is ijma’ or unanimous consensus among jurists
2. the second is qiyas, or decision by analogy.
 IJMA’
• Unanimous consensus means that after making public a judgment about a
matter of law, jurists found general agreement with it, and no jurist made
sound legal arguments against the ruling.

QIYAS
• Analogy means using logic and reasoning to apply a known law to a new
situation not covered in the original law.
• e.g;Islam forbids Muslims to drink wine. Jurists have applied this prohibition
by making an analogy to other intoxicating beverages like whiskey and beer,
as well as drugs such as opium. They stated that the Islamic sources gave as
the reason for prohibiting wine that it intoxicates. Thus, other intoxicating
substances were also prohibited by analogy.
ADDITIONAL SOURCES OF SYARIAH LAW
• istihsan
- It involves giving favor to rulings that dispel hardship and bring ease to
people.
• urf’ (local custom)
• Istihab (continuity).
-It means that "a situation or thing known to exist continues to exist until its
opposite is proven.“
-example of this is the principle of Islamic law that a person is innocent until
proven guilty.
• masalih al-mursalah (public interest)
 OBJECTIVES OF SYARIAH
• Also known as Maqasid al-Shari`ah, or the goals and objectives of Islamic
law.
• Generally the Shari`ah is predicated on the benefits of the individual and
that of the community, and its laws are designed so as to protect these
benefits and facilitate improvement and perfection of the conditions of
human life on earth.
• The objective of Syariah can be classified into five categories:
1. To Preserve the Deen
2. To Preserve the Life or Nafs
3. To Safeguard the Mind or the Aql
4. To Preserve Descendants and Honour
5. To Preserve the Wealth
1. To Preserve the Deen (religion)
• Deen means the totality of beliefs, practices and laws by which Islam
regulates the relationship between man and his Creator, and between man
and man. Preservation of Deen is necessary for the welfare of individuals
and society.

2. To Preserve the Life or Nafs (life)

• This means measures to preserve the human species and integrity of life is
the second objective of Syariah. This includes protection of human life,
health, and integrity by establishing rulings to preserve the human life and
dignity, and punish those who transgress against it.
3. To Safeguard the Mind or the Aql (intellect)
• to preserve and protect the intellect, Syariah permits the right of promoting
and attaining knowledge and prohibits things that demise the role of the
intellect such as intoxicants and drugs. As such, Syariah forbids the
consumption of alcohol and all intioxicating substances.
4. To Preserve Descendants and Honour (lineage)
• Syariah has to ensure the integrity and continuity of life. The goal of the
Syariah law is to prohibit unlawful relationships between men and women
and false accusations againts people who are chaste.
5. To Preserve the Wealth (property)
• Wealth is the last objective because the intent of its acquisition is to serve
the above four objectives. The rulings of Syariah came to be, to encourage
people to work and earn a living lawfully, and prohibit exploitation and
injustice.
 LEADING SCHOOL OF LAW
• The four prominent schools of Islamic law are named after their founders
and are called:
1. Hanafi - Imam Abu Hanifa of Kufa
2. Maliki - Imam Malik bin Anas of Medinah
3. Shafie - Imam Muhammad al-Shafi of Medinah
4. Hanbali - Imam Ahmad bin Hanbal of Baghdad
ISLAMIC LAW IN MALAYSIA
• ISLAMIC LAW = legal rules that are part of the syariah and enacted as
legislation in accordance with the procedures prescribed in the FC and State
Constitutions.
• The islamic law which applies in Malaysia is of Shafie school of
jurisprudence, as modified by malay adat (customary law).
• The sources of islamic law as applies in Malaysia fall into 2 main categories:
1. Primary sources : Qur’an and the Sunnah
2. Secondary sources : ijma’ and qiyas
ISLAM & THE ISLAMIC LAW IN THE FEDERAL CONSTITUTION
• A.4 of FC – FC is the supreme law of the federation.
• A.3 of FC – islam is the religion of the federation.
• However, it is to be noted that, A.3 of the FC merely declares that islam is the
religion of the federation. It does not declare, as does the Constitution of Pakistan,
that the federation is an islamic state.
Che Omar bin Che Soh v PP [1988] 2 MLJ 55
• Islamic law was reduced to begin the personal law of muslims confined to family
matters and inheritance.
Teoh Eng Huat v Kadhi of Pasir Mas, Kelantan & Anor [190] 2 MLJ 300
• The Constitution was drafted on the basis that although Islam is the religion of the
federation, the federation is a secular state.
• Thus,as the law applicable to the infant at the time of conversion is the civil law,
the right of religious practice of the infant shall be exercised by the guardian on
her behalf until she becomes major.
 ADMINISTRATION OF ISLAMIC LAW IN MALAYSIA
• Islamic law is a state matter (except in the Federal Territories of KL, Labuan,
& Putrajaya where it is federal matter)
• Each of the other states has separate legislation on various aspects of that
law.
• The main one is on the general administration of Islamic law. (variously
entitled in each state, but its contents are substantially the same)
• E.g; Selangor Administration of Muslim Law Enactment 1952.
 ISLAMIC AUTHORITIES & ADMINISTRATION OF ISLAMIC LAW IN MALAYSIA
1. Majlis Agama Islam
2. The Mufti
3. The Syariah Courts
1. Majlis Agama Islam
• Primary function: advise Ruler or YDPA in those states and territories without
a Ruler in all matters concerning Islam.
• Day to day operations are carried out by Department of Islamic Religious
Affairs
• The Majilis is empowered to acquire, hold, dispose of movable or immovable
property, administer bait-al-mal, collect zakat & fitrah.
• Trustees of all mosques, wakaf, trusts, etc.
2. The mufti
• Mufti & his deputy are appointed by Ruler, in a state without Ruler and the
federal Territories, by YDPA on advice of the Minister in the Prime Minister’s
Department responsible for islamic affairs.
• The mufti, on direction of the Ruler/ YDPA or on his own initiative, or on the
request of any of person made by letter adressed to him, may make and
publish in the Gazette a fatwa (legal ruling) on any unsettled or controversial
question of or concerning Islamic law.
• Upon publication in the Gazette, the fatwa is binding on all muslims &
recognized as authoritative of all matters laid down therein by all courts , in
the state or territory concerned.
• Assited by committee – making of fatwa