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Introduction

Islamic Law

Fiqh

Sources

Maqasid Shariah

Ijtihad

Methods

Case Study

 

:: In the name of Allah, the Most Merciful, the Most Kind ::

 

What is Islamic Law (Shari'ah)?

Shariah is based on wisdom and achieving people’s welfare in this life and the afterlife. Shari'ah is all about justice, mercy with its opposite, common good with mischief, or wisdom with nonsense, is a ruling that does not belong to the Shariah, even if it is claimed to be so according to some interpretation.” [1]

Ibn Qayyim al-Jawziyya

 

"To each among you, we have prescribed a law and a clear way. (Qur 'an 5:48)


Linguistically, the word shari'ah means the revealed, or canonical, law of Islam.

shara'a : to go, enter, to begin, start, to prescribe, to legislate
shar'i : lawful, legitimate, legal, rightful
shar'iyah : lawfulness, legality, legitimacy, rightfulness
tashri' : legislation, legal regulations
mashru' : legitimate, legal, lawful, regulated by Revelation (Islamic law).

(Taken from the Hans Wehr Dictionary of Modern Written Arabic).


A definition of Shari'ah by The Concise Encyclopedia of Islam(Glasse 1989, p. 361) is as follows:

Revealed Law, also called al-Shariah. The canonical law of Islam as put forth in the Koran and the Sunna and elaborated by the analytical principles of the four orthodox schools (madhhab=pl. madhahib), the Shafi’I, Hanbali, Hanafi, and Maliki, together with that of the Shi’ites, and the Ja’fari.

The Shari'ah, as recognized by all Muslims is the set of rules decreed by the Quran and the Pophet's Sunnah as the main sources. Although there exist arguments for secularism and separation between religion and state, many would still recognize the Islamic law or Shari'ah as an embodiment of Islamic codes and regulations.

Shari`ah
1-Qur'an 2-Sunnah of the prophet (saas)
Ideology and faith Sayings
Behavior and manners Actions
Practical manners
  • Articles of worship
  • Day-to-day activities
Pertaining to family, business,
penal code, government,
international law, economy.
Concurrence with others' actions
Characteristics of the Prophet (saas)

("Shariah and Fiqh", Univesity of Southern California Compendium of Muslim Text)

 

The Importance and Goals of Shari'ah

Allâh burdens not a person beyond his scope. He gets reward for that (good) which he has earned, and he is punished for that (evil) which he has earned. "Our Lord! Punish us not if we forget or fall into error, our Lord! Lay not on us a burden like that which You did lay on those before us (Jews and Christians); our Lord! Put not on us a burden greater than we have strength to bear. Pardon us and grant us Forgiveness. Have mercy on us. You are our Maulâ (Patron, Suppor-ter and Protector, etc.) and give us victory over the disbelieving people." (Al-Baqarah, 286) [3]

Muslims are aware that the Shari'ah laws are based on self-control and compassion, not on coercion and brutality. In Islam, the fulfillment of religious obligations is related upon human ability. The Shariah permits all that is clean and wholesome and forbids what is harmful. Therefore it is intended at making life easier and more convenient,  encourages and promotes good and positive conduct and forbids all that undermines society.

"He created for you all that is on the earth" (al-baqarah, 29)

The use of everything found in or on this earth is permissible. What is halal and what is haram are clearly defined. The grey areas in between are the issue of fiqh, debate and ijtihad.

In describing the importance of the Sharia'h to Muslim society Charnay (1971, pp. 77-78) states:

In Islam, the law aims at providing guidance, but not as a mere instrument. It has a much more far-reaching vocation. It creates a mode of living and tends to regulate all human activity, or to qualify it with respect, if not to an ethics, at least to a law, transcending not only the individual, but all humanity.  Furthermore, Muslem law is not only pragmatic. Over and above the striving for efficaciousness and security it[Muslem law] constitutes an act of piety in its application. The general rule is absolute for the believer, who is however modest in his condition, must respect it. It is a blessing to strive continually for a better attainment of that end. In view of this moral purpose, the social desiderata on non-contradiction and legal efficaciousness shrink in importance.

 

Is there a problem with the Islamic Law?

With the media portraying the wrong representation of the Islamic law, it is not hard for the general public to have preconceived notions about Islamic law. Is there any problem with the Islamic law? Jasser Auda in his book “Maqasid Al-Shariah as Philosophy of Islamic Law:  A Systems Approach” talked about the problems with the Islamic law in three different contexts;

If you mean by the “Islamic Law” the Shari'ah, i.e. the revelation that was given to Muhammad (pbuh), which he internalized, practiced in his own life, and went through a long educational process to educate his companions and the world about it – then the answer is “NO”. There is no problem with the ‘Islamic Law’. It is a way of life that is all about justice, mercy, wisdom, and good, as Ibn Qayyim had mentioned.

If you mean by the ‘Islamic Law’ the fiqh, i.e. the Islamic schools of law’s wealth of heritage, then the answer is also: NO. There is nothing wrong, generally speaking, with juridical reasoning carried by scholars for their own environments and times. It is true that some individual scholars had made mistakes and/or had taken controversial positions on issues. However, this is the nature of juridical research. The role of scholars, at all times, is to correct each others and participate in the ongoing debates.

However, if you mean by the ‘Islamic Law’ fatwa, then the answer is: It depends on how the fatwa is issued! Some fatawa are manifestations of Islam and its moral values, and some others are simply wrong and un-islamic. If the fatwa is copied verbatim from some classic book of Islamic Law, then it is quite possibly flawed because it is quite probably addressing a different world with different circumstances. If the fatwa is based on some sort of twisted interpretation of a script, with an aim to serve the political interests of some powerful people, then it is wrong and un-Islamic. If the fatwa is issued based on the Islamic authentic sources, on one hand, while keeping people’s welfare and the principle values/purposes of the Islamic Law (Maqasid al-Shariah) in mind, on the other hand, then it is a correct and valid fatwa. [4]

 

Confusion in Defining Terms.

When talking about ‘Islamic Law’, four different Arabic terms that are frequently used. The terms are - fiqh, shariah, qanun and ‘urf. It is therefore imperative to be able to distinguish the different meanings of these terms. Failure to do so most often results in mutual accusations of heresy and resistance of renewal of the Islamic law.

Fiqh and Shari'ah [5]

Fiqh,  فقه :

  • In the Quran and hadith, the word fiqh is used in various forms to refer to understanding, comprehension and gaining knowledge of the religion in general.

  • Since the end of the era of the imams of the Islamic schools of law/thought, the word fiqh has been typically defined as, ‘knowledge of practical revealed rulings extracted from detailed evidences (al-‘ilmu bi al-ahkam al-shar’iyyah al-‘amaliyyah min adillatiha al-tafsiliyyah).

  • Therefore, fiqh is limited to ‘practical’ (‘amaliyyah) versus theological (i’tiqadiyyah) issues. ‘Detailed evidences’ are verses from the Quran and narrations of hadith.

Shariah,  شريعة :

  • In the English language the term ‘Shari’ah law’ has negative connotation because it is usually used to refer to various physical punishments adopted in some countries.

  • In the Quran, the word is used to mean a ‘revealed of life,’ for example, the word ‘shir’ah’ in Surah al-Maidah, and the word shari’ah in surah al-Jathiyah.

  • Yusuf Ali translated them as ‘Law’ and ‘Way’, respectively.

  • Picktall translated them as ‘divine law’ and ‘road’.

  • Irving translated them as ‘code of law’ and ‘highroad’.


Therefore, for theoretical and practical reason, it is essential to clearly differentiate the notion of both terms. Theoretically – fiqh represents the ‘cognitive’ part of the Islamic law, to use a systems term, while shariah by definition, represents the ‘heavenly’ part of this law. Thus, the term ‘faqih’ is used for people with understanding (fahm), perception (tasawwur), and cognition (idrak) and is not to be used for God. On the other hand, the term al-shari is a name for God which means ‘The Legislator’ and could not be used for humans, except for the Prophet, when he ‘conveys a message from God’.

Qanun and ‘Urf[5]

Qanun :

  • is a Farsi word, which was ‘arabised’ to mean principles or usul, and since the nineteenth century to mean written laws. Written laws, in countries which endorse Islam as a (or the) source of legislation, could be directly derived from fatawa of fiqh (that is, opinions from one or more of the schools of Islamic law, taken verbatim).

Urf :

  • Literally means custom or, more accurately, a ‘good’ custom that the community approves.

  • ‘Urf is sometimes claimed to be ‘Islamic law’ in some societies in order to approve some customary practices, even if they were clearly prohibited in the Islamic schools of law, such as honor killings that take place in some Arabic Bedouin areas and south-east asian areas.

  • In the school of fundamentals of law, most scholars consider custom to be an effective factor only in the application of the Islamic law, rather than a source of law in its own right.

 

Read more on Islamic Law (shari'ah)

  1. Islamic Law: Myths and Realities.

 

[1] Shams al-Din ibn al-Qayyim, I'lam al Muwaqqi'in, ed. Taha Abdul Rauf Saad (Beirut: Dar al-Jil, 1973), vol.3, p.3.

[4] Auda, Jasser. Maqasid Al-Shariah As Philosophy of Islamic Law: A System Approach (UK: International Institute of Islamic Thought, 2008), p xxiv

[5] Auda, Jasser. Maqasid Al-Shariah As Philosophy of Islamic Law: A System Approach (UK: International Institute of Islamic Thought, 2008), pp. 56-59


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