Vous êtes sur la page 1sur 32

INTRO TO ISLAMIC LAW AND JURISPRUDENCE

TITLE I
DEFINITIONS OF TERMS

1. Islam is an Arabic term derived from the word “salam” which


means peace; it connotes submission, surrender or obedience.
Religiously, Islam is defined as the complete submission to the
will of Allah and obedience to His law (Shari’ah). In details, it
refers to submitting of one’s self to the teaching brought by the
prophet (pbuh), abiding the commands and refraining from the
prohibitions.

2. Ihsan. Literally means excellence. It refers to worshipping Allah


devotedly. It is defined by the prophet as to worship Allah that
you see Him, though you cannot see Him, Allah is definitely
looking at you.

3. Iman. Literally means “to know”, “to believe” or “to be


convinced beyond reasonable doubt”. It is rendered in English as
faith. It is defined as a firm belief arising out of knowledge and
conviction. Islamically, it refers to believe in Oneness of Allah,
His angels, His books, His messengers, the Day of Judgment and
the Divine Predestination.

4. Shariah. Literally means a waterhole where animals gather daily


to drink, the road to watering place or the straight path or way.
Technically, it is the name given to the totality of God’s
commandments. In its legal terminology, Shari’ah is defined as
“that which would not be known had there not been a divine
revelation.” Islamically, it refers to the sum total of Islamic law
which was revealed to Prophet Muhammad (pbuh.), and which is
recorded in the Qur’an as well as in the deducible guided lifestyle
called Sunnah.

5. Qanun. The word Qanun denotes man-made law. A law or


regulation referring in particular to secular laws. However, from
the European concept, it is referred to as a body of ecclesiastical
law which originated in the Church of Rome relating to matters of
with the church claims jurisdiction and it has definitely religious
colors.

6. Fiqh. Literally means the true understanding of what is intended.


It is defined as “the deduction of the Shari’ah values relating to
conduct from their respective particular evidences. Technically, it
is scientific study and elucidation on Shari’ah. It is the knowledge
of right and obligation from Qur’an and Sunnah. In its legal
terminology, it is the knowledge of all rules and commandments

1
of Islamic law which are practical in daily life, and derived from
detailed proofs of law.

7. Usulul Fiqh. Literally means roots of Fiqh. It is defined as the


science of the sources and methodoly of law. Technically, it
means the science of the study of Muslim law jurisprudence, its
fundamentals and principles, based from the primary sources of
law, through the exercise of independent analytical deduction with
regard to its application to certain particular situation.

8. Hukm Shar’e or Shariah Value. It is defined as the quality


determined as a result of divine revelation. For example, the fact
of an act being prohibited in Shari’ah is its Shari’ah value. It is
defined by Muslim jurists as “that which is establish by a
communication from God with reference to men’s act, expressive
either of demand or prohibition or indifference on his part being
merely declaratory. Hukm Shar’i is mainly divided in to two:
Mandatory law (Hukm taklifi) and Declaratory law (Hukm wad’i).

9. Hukm Taklifi or Mandatory Law. It is defined as the law which


defines the characteristic of a man’s acts whether they are
obligatory, forbidden, commendable, and improper or which
indicates the legal effect of an act. It requires certain actions, or
provides a choice of whether to follow or not.

10. Hukm Wad’e or Declaratory law. It defined is a law which is


promulgated as a reason, a condition or deterrent for action or
which states whether these actions are valid or void or whether
they are allowed by concession or are permissible ab initio.

11. Fardh or Imperative. The act whose value has been established
by the Qur’an and Mutawatir Hadith. Performance of Fardh acts
lead to reward and its omission leads to punishment in this world
and hereafeter.

12. Wajib or Obligatory. The acts whose value has been established
by a Shari’ah evidence, other than Qur’an and Hadith Mutawattir.
It has the same effect as the Fardh although Wajib need not be
given absolute faith like the Fardh.

13. Mandub or Recommendable. The acts whose commission is


rewarded although its omission does not entail punishment. These
acts are believed to have been performed by the prophet
habitually.

14. Mubah or Permissible. The acts whose commission is not


rewarded but whose omission is not punished.

2
15. Makruh or Reprehensible. The acts whose omission is
preferable to their commission.

16. Haram or Forbidden. The acts whose commission is punishable


and omission is rewarded.

17. Azima and Rukhsa. Azima or ideal refers to the laws that are
general in nature. While Rukhsa is a rule that provides an
exemption from the general rule. Drinking wine is generally
prohibited (Azima). However, one is permitted by the law
(Rukhsa) to drink it in case of duress.

18. Qur’an. Literally means reading or recitation. It defined as the


speech of Allah sent down upon the last prophet Muhammad,
through Angel Jibreel, in its precise wording and precise meaning
transmitted to us by numerous persons both verbally and in
writing. In legal terminology, Qur’an is the primary source of the
Islamic law. It is considered to be code of conduct laying down
fundamental principles and not the detailed provisions.

19. Sunnah. Literally means a path or a way or a manner of life. It is


deifined as the actual expalanation and practical demonstration of
the Qur’an. Technically, it refers to the sayings, actions or deeds
of prophet and actions of others which he tacitly approved.

20. Hadith. Literally means news, report or narration. Technically, it


refers to the reports about the Sunnah of the prophet. It consists of
three parts, the Sanad, the Matn and the Taraf.

21. Hadith Qudsi. It is defined as a kind of hadith in which the


meaning is from Allah; but the wording is from the Prophet. It is
that Allah has communicated to His prophet through revelation or
in a dream and prophet communicated it in his own words.

22. Ijma. Literally means an agreement upon matter, or unanimity of


opinion. Techinically means, an agreement or consensus of the
Muslim scholars of a given generation after the death of the
prophet to formulate independent judgment in a legal or
theological question based on any of the sources of the Islamic
law. A consensus of the Muslim jurists of any particular period
concerning Shari’ah Value and considered to be authoritative and
binding.

23. Qiyas or analogy. Literally means comparing, measuring, accord


and equality. Technically, it is defined as the extension of Shari’ah
value from the original case to a new case because the latter has
the same effective cause as the former. In legal terminology, it is a
method of deduction by which the law of a text is applied to cases

3
which, though uncovered by the language of the text, are covered
by the reason of the text.

24. Ta’lil. It comes from the word ‘illa’. Literally means causation or
a search for the causes and refers to the logical relationship
between cause and effect.

25. Istihsan or Juristic Preference. Literally, it means preferring or


considering a thing to be good. In legal terminology, it is a method
of exercising personal opinion in order to avoid rigidity and
unfairness that might result from the literal (meaning) enforcement
of the existing law. The Hanafi school is the proponent of Istihsan
or Juristic preference which resembles the doctrine of equity in
English law.

26. Istislah. Literally means Public welfare or intereset. Technically,


it is defined as consideration which is proper and harmonious to
the objectives of the Law giver; it secures benefit and prevents
harm; and the Shari’ah provides no indication to its validity or
otherwise In legal terminology, it is a method of deduction of law
based on general consideration of public good. Imam Malik
recognized considerations of public good or public interest as a
source of law. He called this new source Al Masalih Al Mursalah.

27. Istishab. Literally means association, escorting or companionship


and permanency. Technically, it is used to denote that things
whose existence or non-existence had been proven in the past
should be presumed to have remained as such for lack of
establishing any change. This principle is introduced by Imam
Shafi’e.

28. Istidlal. Literally means inference. Technically, it is a method of


deduction by means of inferring of one thing from another in order
to arrive at a rule. It is a form of ratiocination or legal reasoning
not covered by Qiyas.

29. Urf. Literally a mean that which is known. It is defined as


recurring practices, which are acceptable to the people of sound
nature. Technically, it means that which a people or a section
thereof have become accustomed to doing. Majority of the jurists
use Urf and Adat synonymously.

30. Adat. It means repetition of recurrent practice and it can be used


with regard to both individual and community.

31. Sadd Al-Darai. It is defined as blocking the means to an expected


end which is likely to materialize if the means towards it is not
obstructed. Blocking means implies blocking the means to evil
and not something good.

4
32. Qawlu Sahabi. Literally means Companions Opinion. It refers to
the opinion of a particular Sahaba to specific rulings or issues
concerning legal actions.

33. Shar’ man Qablana. Literally means Earlier Scriptures.


Technically, it is defined as a body of laws ordained by Allah for
the nations before the Prophet Muhammad’s ummah through
revelation to other prophets and apostles.

34. Naskh or Abrogation. Literally means obliteration, transcription


or transfer. Technically, it is defined as the suspension or
replacement of one Shariah ruling by another, provided the latter
is of subsequent origin and the two are in conflict with one another
and it is not possible to reconcile them or when the later law
expressly repealed the former.

35. Ijtihad. Literally means to exert oneself to the utmost or to the


best of one’s ability. Technically, it is defined as a jurist’s exerting
of the faculties of mind for the purpose of formulating an opinion
on any point of law. It is a method for making deductions in
matters of law in cases to which no express text or rule is
applicable.

36. Ra’y. Literally means opinion. Technically, it is defined as an


individual unguided opinion of Muslim. Some jurists used Ra’y
and Ijtihad synonymously in a sense that it refers to the giving of
opinion of a particular Muslim to an issue or circumstances they
are facing.

37. Shura. Literally means “to gather honey from its hive and from
other places”. Technically, it is defined as mutual consultation of
the individual unguided opinion of people who may or may not be
expert in law. It doesn’t always carry the mandatory effect of law.

38. Taqlid. Literally means an ornament tied around the neck like a
necklace. Technically, it is defined as to follow the opinion of a
person whose opinion is not a proof of Islamic law without asking
his proof. This refers to blind imitation.

39. Ittiba’. Literally means to follow. Technically, it refers to the


action of Muslims by following the rulings of the early scholars
with reason or deduces from one of their deductions in order to
preserve the prestine purity of Islam.

40. Takhayur. Literally means choice. In the language of fiqh, it


means liberty of an individual Muslim to be governed by the law
of any of the four schools of Islamic Jurisprudence.

5
41. Talfiq. Literally means to piece together. Technically, it means to
piece together constituent parts from various schools in a single
act of worship. In other words Talfiq is the term for combining the
rules of more than one school to apply specific act.

42. Tafsir. Literally means explanation and clarification. It is defined


as a study that aims at knowledge concerning the Qur’an, to
explain its meaning, extract its legal rulings and grasp its
underlying reason.

43. Ta’wil. It means the explanation of the inner and concealed


meanings of the Qur’an, as far as a knowledgeable person can
have access to it.

44. Neo-Ijtihad. It is defined as legislation on matters relating to laws


of personal status.

45. As-Siyasah As-Shar’iyyah. It is defined as a government in


accordance with the reavealed law joined with the sovereign’s
prerogative power of supplementing the doctrine of jurists by
administrative measures and regulations.

46. Siyasa Adilah. Literally means Just administration. A kind of


government that conforms to the general principles of the Shariah.

47. Ibadat. Literally means Worships. It is defined as actions which


refer to the relationship between mankind and God like the acts of
worships such as salah, zakah, sawm, hajj etc.

48. Itiqadat. It refers to the principle of belief which embraces mainly


the six articles of faith in Islam.

49. Mu’amalat. It refers to the relationship of man and his fellow


man such as all laws regulating obligation and contracts, laws
regulating economic, social, political, family laws etc.

50. Adab. It refers to Islamic etiquette or upright moral behavior such


as respect, courtesy, and manners. It governs the correctness of
one’s behavior in relation to his God and also his fellow mankind
like his parents, elders and others.

51. Uqubat. It refers to the penal laws. They are the punishment
instituted in the Qur’an in favor of the general public for the
commission of injurious or wrongful act. They consists of the
Hudud, Qisas and Ta’zeer.

52. Waqf. It is defined as a legal process by which a Muslim creates


an endowment or donation of his property for any purpose
recognize by Islam as religious and charitable.

6
TITLE II
DISTINCTIONS

53. Shariah and Fiqh


a) Shari’ah is the body of revealed laws found both in the
Qur’an and in the Sunnah; While Fiqh is a body of laws
deduced from Shari’ah to cover specific situations not
directly treated in Shari’ah law;
b) Shari’ah is fixed and unchangeable; whereas Fiqh changes
according to the circumstances under which it is applied;
c) The laws of Shari’ah are, for the most part general, they lay
down basic principles. In contrast, the laws of Fiqh tend to
be specific, they demonstrate how the basic principles of
Shari’ah should be applied in given circumstances;
d) Shari’ah covers all human action; while Fiqh deals only
with what are commonly understood as legal acts;
e) The path of Shari’ah is laid down by God and His Prophet,
the edifice of Fiqh is erected by human endeavor;
f) In Fiqh, an action is legal or illegal, permissible or not
permissible. In Shari’ah, there are various grades of
approval or disapproval.

54. Fiqh and Shari’ah Value


Shari’ah value (Hukm shar’i) is defined as the quality determined
as a result of divine revelation. For example, the fact of an act
being prohibited in Shari’ah is its Shari’ah value. It is defined by
Muslim jurists as “that which is establish by a communication
from God with reference to men’s act, expressive either of demand
or prohibition or indifference on his part being merely declaratory.
While Fiqh literally means the true understanding of what is
intended. It is defined as “the deduction of Shari’ah value relating
to conduct from their respective particular evidences. Technically,
it is the scientific study and elucidation on Shari’ah. It is the
knowledge of all the rules and commandments of Islamic law
which are practical in daily life and derived from detailed proofs
of law

55. Shariah and Hukm


Shari’ah literally means a waterwhole where animals gather, road
to watering place, straight path or way. Shari’ah is the name given
to the totality of god’s commandments. In its legal terminology,
that which would not been had there not been a divine revelation.
Islamically, it refers to the sum total of Islamic laws which were
revealed to the prophet Muhammad (pbuh), and which are
recorded in the Qur-an as well as deducible lifestyle called
Sunnah; whereas Hukm is defined by Muslim jurist as “that which
is establish by a communication from God with reference to men’s
act, expressive either of demand or prohibition or indifference on
his part being merely declaratory.

7
56. Fiqh and Usul-Fiqh
Fiqh literally means the true understanding of what is intended. It
is defined as “the deduction of shari’ah value relating to conduct
from their respective particular evidences. Technically, it is the
scientific study and elucidation on Shari’ah. It is the knowledge of
all the rules and commandments of Islamic law which are practical
in daily life and derived from detailed proofs of law, while Usul-
ul-Fiqh literally means roots of Fiqh. It is defined as the science of
the sources and methodology of law. Technically, it means the
science of the study of Muslim law jurisprudence, its fundamental
and principles based on the primary sources of law, through the
exercise of independent analytical deduction with regard to its
application to certain particular.

57. Fiqh and Jurisprudence in Philippines Legal System


Fiqh in its general meaning is the deduction of Shari’ah value
relating to conduct from their respective particular evidence.
Technically, it is the scientific study and elucidation on Shari’ah;
whereas Jurisprudence as understood in the Philippine legal
system refers to the laws enacted by the congress and cases
decided by the Supreme Court, which becomes part of the law of
the land and it has a binding effect upon the people and a force of
law.

58. God’s Law and Man’s Law


a) God’s law is divinely ordained while man’s law is the product
of the human mind.
b) The principles of law and its structure framed by God are to do
complete justice in a unanimous way with unified principles.
Man’s law doesn’t have the unified principles as that of God’s
law.
c) God’s law embraces all human actions, which strictly is not law
in the modern sense but might be regarded as guide to moral
conduct. Whereas, Man’s law is confined and limited to acts
and rights that have particularly legal implications without
regard to moral implications.
d) God’s law rules encompass both human actions in this World
and their implications in the Hereafter. Man’s law is confined to
establishment of law and order in this world.
e) Both law have common goals such as the protection of religion;
life; intellect; offspring and lineage; wealth or property; and
honor.

59. Wajib and Fard


Fardh, that is, the act whose value has been established by the
Qur-an and Mutawatir Hadith. Performance of Fardhh acts leads
to reward and its omission leads to punishment in this world or in
the hereafter. Whereas, Wajib are acts whose value has been
established by a shari’ah evidence, other than Qur’an and Hadith

8
Mutawattir. The effect of Wajib is that it must be executed like the
Fardh although it need not be given absolute faith like the Fardh.
It’s commission also is rewarded and its omission entails
punishment.

60. Sunnah Tashri’e and Sunnah Ghayr-Tashri’e


Sunnah tashri’i and Sunnah ghayr tashri’I may be distinguished in
the sense that Suunah Tashri’i is referred to the Sunnah of the
Prophet Muhammad that deals with his ways as being a
Messenger of Allah, Head of State, Imam or Judge. This is
obligatory to be followed and whose omission is evil and
improper. Conversely, Sunnah Ghayr Tashri’i refers to the Sunnah
of the Prophet, such as his personal ways of dressing, walking and
sitting, the omission of which is not improper.

61. Sunnah and Qur’anic Verse


a) Qur’an is a word of Allah, it is a divine order, a dictates of
Almighty; whereas Sunnah is the words, actions or deeds of
the prophet who is human being;
b) Qur’an is reported in its precise wording while Hadith is not
necessarily reported in its precise wording,
c) Qur’an is preserved and protected by Allah from any
corruption; whereas Hadith is subject to distortion, not
protected by against corruption.
d) The verse of the Qur’an can be recited in prayer while the
Hadith cannot be recited in prayer

62. Sunnah and Hadith


a) Sunnah literally means a way, rule or manner, example of
acting and mode of life; Hadith is a saying conveyed to man
either through hearing or revelation,
b) Sunnah refers to the prophet’s saying, action and practices,
while Hadith implies the narration of the record of the
Sunnah and also contained historical elements.
c) Hadith is the story of an eyewitness concerning what the
prophet said, did or tolerated in connection with certain
situation or occurrence; whereas Sunnah id practical deduced
from it.

63. Hadith Qudsi and ordinary Hadith


a) Hadith Qudsi is as to the meaning from Allah, as to the
wordings from the Prophet; whereas an ordinary Hadith
implies the narration record of the Sunnah and also contained
historical elements;
b) In Hadith Qudsi it is Allah that has communicated to His
Prophet through revelation or in a dream; In ordinary Hadith
it is a saying conveyed to man either through hearing or
revelation;

9
c) In Hadith Qudsi the Prophet has communicated it in his own
words; while in ordinary Hadith it is the story of an
eyewitness concerning what the Prophet said, did, or
tolerated in connection with a certain situation or occurrence.

64. Hadith Qudsi and the Verse of the Qur’an


a) In the Holy Qur’an the precise wording is from Allah; while
in the Hadith Qudsi the wording is given by the Prophet
Muhammad;
b) The Holy Qur’an has been brought to Muhammad only by
Angel Jibreel, while Hadith Qudsi may also have been
inspired otherwise, such as dream;
c) The Holy Qur’an is inimitable, unique and protected by Allah
but not so the Hadith Qusi;
d) The Holy Qur’an is divided into chapters and verses. There is
no such organization to Hadith Qudsi;
e) Hadith Qudsi cannot be recited in prayer, as the Holy Qur’an
is; and
f) There is a specific reward for reciting each letter in the Holy
Qur’an, while reward for reading Hadith Qudsi is general.

65. Ra’y and Fatwa


a) Ra’y is known as an individual unguided opinion of Muslim.
While Fatwa means qualified opinion. It refers to the legal
opinion of a Mufti or of a qualified person, such as jurist.
b) Ra’y refers to choosing the opinion which appeared most
appropriate to the given case in question. However, Fatwa of
jurisconsult has a persuasive and advisory effect upon the
Muslim community as a whole.

66. Ijma and Shura


a) Ijma is a legal tool for producing legal rules based on the
consensus of legal experts while Shura is merely consultation
with people who may or may not be experts in law, to derive
their opinion to a particular question or affair;
b) Ijma produces rules which must be followed; whereas the
result of Shura does not always carry the mandatory effect of
law.

67. Mujtahid and Faqih


a) They are both jurist who derive the rulings directly from
specific evidences,
b) The Mujtahid gives manuals that contain his opinion, while
Faqih derives rulings from the manuals of Mujtahid,
c) Mujtahid cannot be considered as Muqallid, whereas Faqih,
although he is qualified jurists, he is still a Muqallid.

10
68. Urf and Adat
a) Adat means repetition or recurrent practice and it can be used
with regard to both individuals and community while, Urf is
defined as recurring practices which are acceptable to people
of sound nature.
b) Individual habit is a personal Adat of the people while; there
will be no personal habits of the individuals as their Urf.
c) Urf means the practice of a large number of people, or
community. The habits of a few or even a substantial
minority within a group constitutes Adat.

69. Urf and Ijma


a) Urf comes to existence because of the agreement of the
people of a certain period, whereas Ijma requires for its
enactment the consensus of all the Mujtahids of the period;
b) Urf is not dependent on Ijma but on the people including
Mujtahidin, while Ijma is exclusive and has no rooms for
non-Mujtahids or laymen;
c) Urf leaves open possibility of fresh ijtihad even with different
origins or issue, while Ijma must be open only on the same
issue;
d) Urf requires an element of continuity such that only exists
over a period of time; whereas Ijma can outrightly come into
being upon the agreement of Mujtahids.

70. Fatwa of Jurisconsult and Hukm of Judge


a) The Fatwa of a Jurisconsult has a persuasive effect upon the
Muslim community as a whole, while the decision of a Judge
(Hukm al-qadhi) is binding upon the parties in a given
litigation;
b) Fatwa is not binding upon the Judge who sought it; he may or
may not adopt it. Whereas judgment of a Judge (Hukm al-
qadhi) is binding upon himself; he is bound to obey, respect
and implement his decision.

71. Ra’y and Ijtihad


Ra’y came to be known as an individual unguided opinion while
Ijtihad is the exerting by a jurist of his utmost analytical reasoning
with a view to formulate an independent opinion.

72. Explicit Abrogation and Implicit Abrogation


Explicit abrogation is when the abrogating text is clearly repeals
one ruling and substitutes another in its place. The facts of
abrogation including the chronological order of the two rulings,
the facts of their being genuinely in conflict and the nature of each
of the two rulings can be ascertained in text concerned. Whereas,
Implicit abrogation is when the lawgiver introduces a ruling which
appears conflicting to the previous ruling though still doubtful
whether the two rulings present a genuine case for abrogation.

11
73. Azima and Rukhsa
The difference between ‘azimah and rukhsah are that ‘Azima is
the general rule prescribed by the Lawgiver, which demand
performance by the subject; while, Rukhsa allows an exemption
from the general rule. It allows an individual to omit an obligatory
act when an excuse exists that makes its performance a hardship
upon himself.

74. Qiyas and Ra’y


Qiyas is analogical deduction or reasoning. In the literal sense,
Qiyas means comparing, measuring, accord and equality. In the
legal sense, it is a process of deduction by which the law of the
text is applied to cases which, though uncovered by language, are
covered by reason of the text. Technically, it is the extension of
the Shari’ah value from the original case to a new case because the
latter has the same effective cause as the former; whereas Ra’y
came to be known as an individual unguided opinion. But some
Ulama used Ra’y and Ijtihad interchangeably in a sense that it
refers to the giving of opinion of a particular Muslim to an issue or
circumstances they are facing.

75. Rukn and Shart


Rukn is the essential elements of a given act, which is considered
as part of its essence. The absence of which totally nullifies the
act. While Shart is a mere condition for the validity of an act,
which absence may not invalidate the act but merely renders it
irregular or voidable (imperfect).

TITLE III
SHARI’AH

76. Maqasid or Purposes of Shariah


a) Daruriya or Essential. It consists of the five below.
b) Hajjiyah or Complementary. This seeks to remove hardship
in cases where such severity and hardship do not pose a threat
to the very survival of normal order. Like the Rukhsas.
c) Tahsiniya or Desirable. It seeks to attain refinements and
perfection in the customs and conduct of the people.

However, Al Gazali divided it into two types:Dini and Dunyawi.


Dunyawi purpose are further divided into four types:
a) Nafs or Life
b) Nasl or Progeny
c) Aql or Intellect and
d) Mal or Wealth

12
77. Characteristics of Shariah Law
Shariah law is divine, eternal, unchangeable, comprehensive,
idealistic, realistic and naturalistic.

78. Primary Objective of Shariah


The objective of Shariah is to reform human life on the basis of
Ma’rufat and to cleanse it from Munkarat. Ma’rufat means all the
virtues and good qualities that have been accepted as good by
human nature. Munkarat means all the sins and evils that have
always been condemned by human nature.

79. Subdivision of Rights in Islam


a) Rights of Allah. Consists exclusively of worship such as five
pillars of Islam.
b) Rights of worship and financial liability. Like the Sadaqatul
Fitr.
c) Rights in which financial liability is greater than worship.
Like the tithe that is levied on agricultural crops.
d) Rights of God which consists of financial liability but have
propensity toward punishmen. Like the Kharaj tax.
e) Rights which consists of punishment only. Like the Hudud.
f) Rights which consists of minor punishment or Uquba Qasira.
Like the murderer cannot inherit.
g) Punishment which lean towards worship. Like Kafarat and
expiations.
h) Exclusive rights. They consist of rights alone and are not
necessarily addressed to the mukallaf. Like the community
right to mineral wealth or the Ghanima or spoil of war.

80. Adillah Shar’iyyah or Legal Evidences


a) Concerning their sources
i. Adillah Naqliyyah or Transmitted proofs. Like the Qur’an,
Sunnah, Ijma’ and Opinion of the Sahaba.
ii. Adillah Aqliyyah or Rational Proofs. Like the Qiyas,
Istishaab and Saad Dara’e.
b) Concerning authority
i. Adillah Mustaqillah or Independent proofs. They are
classified as independent evidences. Like the Qur’an,
Sunna and Ijma.
ii. Adillah Muqayyadah or Dependent proofs. They are
classified as dependent evidence. Its authority is derived
from one of the three independent proofs. Like Qiyas to
rule out Drugs as Illegal and haram.
c) Concerning the power they contain
i. Qaati or Definitive. It indicates clear injunction of the
proof in respect to its transmission and meaning. Like the
Qur’an.
ii. Zanni or Speculative. It indicates speculative clearance of
the prrof in its transmission or meaning or both. Like the

13
hadith Ahad. It could have had any number of narrators or
reporters but every chain of transmission has the same
person in it.

TITLE IV
HUKM SHARI’E

81. Kinds of Hukm Shar’e


a) Hukm Taklifi or Mandatory Law
b) Hukm Wa’de or Declaratory Law

82. Five categories of Mandatory Law


a) Fardh or Imperative
i. Fardh Ayn or individual obligatory
ii. Fardh Kifaya communal obligatory
b) Wajib or Obligatory
i. Wajib Mutlaq or unrestricted time
ii. Wajib Muqayyad or restricted time
1. First Level
a. Ta’jil or early performance like Sadaqatul Fitr.
b. Ada or repetition of performance.
c. Qada or delayed performance.
2. Second Level
a. Muwassa or with extra time like Dhuhr time.
b. Mudayyaq or with time sufficient like
Ramadhan
c. Dhu shibhayn or with extra time like Hajj
c) Mandub or Recommended
i. Sunnah Muakkadah
1. Complements wajib like Adhan in prayer
2. Doesn’t complement wajib like Sunnah before
prayers
ii. Sunnah Ghary Muakkada or recommended act but not
persistently performed by the Prophet. Like four rakaat
before Asr prayers.
d) Sunnah Zawaid. Following the ordinary acts like way of
eating, dreassing etc.
e) Mubah or Permissible
f) Makhroh or Reprehensible
i. Makroh Karahat Tanzih. It is an act whose omission is
demandable like sale during Friday prayers.
ii. Makroh Karahat Tahrim. It is close to prohibition like
marriage proposal with a prior proposal.
g) Haram or Prohibited
i. Haram li dhatihi. Prohibited to itself like Murder
ii. Haram li ghayrihi. Prohibited for an external factor like
fasting during the eid day or sale with riba.

14
TITLE V
SOURCES OF ISLAMIC LAW

Chapter One
PRIMARY SOURCES

Section 1-- QUR’AN

83. Divisions of Ahkam in the Qur’an. They are:


a) Al Ahkam Ittiqadiya refers to faith and belief
b) Al Ahkam Alkhuluqiyah refers to morality and ethics
c) Al Ahkam Alamaliyya refers to laws of practical life
1. Muamalat or Civil transaction
2. Ibadat or Religious rituals

84. When, where and how was revealed


The revelation of the Holy Qur’an revelation began during Lailatul
Qadr on 27th day of Ramadhan, other jurist believe that it was on
17th day, around 610 A.D. When the prophet was 40 years of age,
during his seclusion in the cave of Hira, mountain near Meccah.
Prophet Muhammad said that the revelation came like a ringing of
a bell, this of inspiration is the hardest of all and then this state
passes off after he grasped what is inspired. Sometimes the Angel
Jibreel came in the form of a man and talks to prophet and grasp
whatever the Angel says.

85. Two stages of Revelation


a) From Lauh Al Mahfuz, to the lowest of the heavens Baital
Izza, the well-preserved tablet all together in Lailatul Qadr;
b) from Baital Izza to earth in stages throughout the twenty
three years of Muhammad’s prophethood. The first revelation
happened also in Lailatul Qadr.

86. Types of Period


a) The Makkan Period
b) The Madinan Period

87. Themes of Makkan Surah


a) Unity of God
b) The Moral Duties of mankind
c) The retribution to the next world

88. Themes of Madinan Surah


a) Civil and Criminal Law
b) Fiscal and Military Laws and
c) The Pillars of Islam

89. Principles for the basis of Legislation of Qur’an


a) The Removal of Difficulty

15
b) The Reduction of Religious Obligations
c) The Realization of Public welfare
d) The Realization of Universal Justice

90. Compilation under Caliph Abubakr


Umar bin Khattab urged Abubakr to preserve and compile the
Qur’an. This was prompted after the Battle of Yamama, where
heavy casualties were suffered among the memorizer of the
Qur’an. Abubakr entrusted Zaid bin Thabit with the task of
collecting the Qur'an. Zaid had been present during the last
recitation of the Qur'an by the prophet to Angel Jibreel. Zaid, with
the help of other companions who memorized and wrote verses of
the Qur’an, accomplished the task and handed Abubakr the first
authenticated copy if the Qur'an. The copy was kept in the
residence of Hafsah, daughter of Umar and wife of the prophet.

91. Compilation under Caliph Uthman


Uthman ordered Zaid bin Thabit, Abdullah bin Zubair, Said bin
As and Abdulrahman bin Harith to make several copies out of the
authenticatd copy kept by Hafsah. This was due to the rapid
expansion of the Islamic state and concern about differences in
recitation. It was incited at Battle of Armenia the Muslim read the
Qur-an with various modes. Some accused another of unbeliever.
Copies were sent to various places in the Muslim world. The
original copy was returned to Hafsa and a copy was kept in
Madina.

92. Kinds of Tafsir used by Jurists to understand the Qur’an


a) Tafsir bil Riwayah or by transmission
b) Tafsir bil Ra’y/ Tafsir bi Diraya or by sound opinion
c) Tafsir bil Ishara or by Indication

Section 2 -- SUNNAH

93. Its function


a) Sunnah helps to understand the meaning of the Qur’an by
explaining them, by giving details of general rules, by
providing conditions or exceptions to the application of the
rules, or by defining them when they are susceptible of
several meanings.
b) It lays down rules of conduct and laws in some matters not
dealt with in the Holy Qur’an.

94. Shari’ah Value of Hadith


The Shariah value of the prophetic traditions are like that of the
Qur’anic Shariah Valuse in matter of demanding obedience based
on the following grounds:

16
a. Allah enjoined every Muslim to obey Allah and His
prophet
b. On the consensus of Ijma of the companions of the
prophet during his lifetime and after his demise

95. Question on whether the Qur’an may be conflict with Sunnah


It is controversial and the Imams have differed on their opinions.
Imam Malik and the followers of Imam Hanifa claims that it is
possible on the reason that they are both revelation from God. And
they cited the example about that making of will to an heir quoted
in the Qur’an has been repealed by the hadith “no will to an heir”.

Imam Shafi’e and Imam Ahmand Ibn Hanbal reject the above
views on the reason that the Sunnah is only a supplementary to the
Qur’an. They quoted the verse in the Qur’an that commands the
prophet to say that he is not allowed to alter any of the Qur’an.
They further argue that the “making of will to an heir” verse is
already abrogated by another verse which prescribes the legal
shares of the heirs.

96. Conditions of Sunnah


a) it should not contradict some other legal evidence found in
the Qur’an or another tradition,
b) If contradicted by another hadith, it can be reconciled,
c) it it contradicts another hadith but is subsequent in time to it,
so that it can be said to have abrogated the previous hadith,
d) if it contradicts another hadith but can be shown superior to
it.

97. Classification according to – manner they came from


a) Sunnah Qauliya refers to the sayings of the Prophet
b) Sunnah Fi’liyah refers to the deeds of the Prophet
c) Sunnah Taqririyah refers to the prophet’s tacit approval

98. Classification according to – manner of transmission


a) Hadith Mutawatir or Continuous refers to those hadith
narrated by numerous companions and their followers and
followers of their followers
b) Hadith Mashhur or Well known refers to those hadith which
was reported by three or more companions and later become
well known and transmitted by indefinite number of people
c) Hadith Ahad or Isolated refers to those hadith which were
narrated by only one narrator

99. Classification according to reference of particular authority


a) Hadith Qudsi. A hadith transmitted to us from the Prophet in
which he attributes the words to Allah;
b) Hadith Marfu. A hadith in which words, actions and
approvals are attributed to the prophet.

17
c) Hadith Mawquf. A hadith in which words, actions, approval
are attributed to the Sahabi and not from the prophet.
d) Hadith Maqtu. A hadith in which words, actions and approval
are attributed to the Taabi’i.

100. Classification according to – levels of reliability


a) Hadith Sahih. A kind of hadith which has no question in its
Isnad and the narrators are just, righteous and trustworthy.
b) Hadith Hasan. A kind of hadith that does not meet the
condition of Sahih but unquestionable narrators.
c) Hadith Da’if. A kind of hadith that has failed to meet the
requirements of acceptability.

101. Six Authentic Collections of Hadith


a) Sahih Bukhari by Abu Abdullah Muhammad Ibn Ismael
b) Sahih Muslim by Muslim bin Hajjaj of Nishapur
c) Sunan Abu Daud by Abu Daud Solaiman
d) Sunan Ibn Majah by Muhammad ibn Yazeed Al Rab’i
e) Sunan Nasa’I by Abu AbulRahman of Nasai
f) Jam’i Tirmidzi by Abu Isa Muhammad Al Tirmidzi

102. Other genuine collection of Hadith


a) Musnad of Ahmad ibn Hanbal
b) Muwatta of Imam Malik ibn Anas
c) Risalah of Imam Muhammad ibn Idris As Shafi’i

Section 3 – IJMA

103. Its Basis in Qur’an


a) But whosoever shall sever from the Prophet after the
guidance hath been manifested to him and hall follow any
other path than that of the faithful, We will turn over back on
his as he hath turned his back on Us ans We shall cast him
into Hell-an evil journey thither (5:115)
b) Don’t be like those who went astray after they had received
clear proofs

104. Its Basis in the Hadith


a) My ummah shall never agree upon an error
b) God will not let my ummah agree upon an error
c) The hand of Allah is with the Ummah and is not endangered
by isolated oppositions
d) A group of my Ummah shall continue to remain on this right
path. They will be the dominant force and will not be harmed
by any opposition of opponents.

18
105. Its Effect after the consensus
The shari’ah value of Ijma is obligatory to us. Once the unanimous
declaration is made it is binding on every Muslim, including
Mujtahid who took part in it, and hence it is no longer open to
anyone of them to express dissent.

106. Condition of Valid Ijma


a) It must be an exertion among the Mujtahid formulating
decisions based on the interpretation on Islamic law;
b) the consensus must be made among the qualified Mujtahids;
c) the Mujtahid must be from the Ummah of the Prophet
Muhammad;
d) the rule of law agreed upon is Shar’ah Value.

107. Kinds of Ijma


a) Ijma Al Sarih or Explicit Ijma. It refers to one which every
Mujtahid manifestly agreed after having expressed his
opinion either verbally or by action.
b) Ijma Al Sukuti or Tacit Ijma. It refers to one wherein some of
the Mujtahid of a particular age have expressed their opinions
but the rest remained silent.

108. Its Classification


a) Regular Ijma refers to one that ensures certainty of belief and
strictly in conformity with the requirements of law;
b) Irregular Ijma refers to one when there is no absolute
certainy;
c) Ijma Ummah refers to the Ijma of the Companions of the
Prophet who would be unanimous except in truth;
d) Ijma Ulama is the consensus of the learned people only;
e) Ijma Al Madina is the Ijma expressed by the learned people
in Madina

109. Qualifications of a Person to participate in Ijma or Consensus


a) he must be a Muslim,
b) he must be a Mujtahid,
c) he must be a man of sound mind,
d) he must be a man of thorough judgment, and
e) he must have the capability of making logical deductions.

110. Examples of Ijma


a) Umar ibn Khatab requested Caliph Abubakr to order the
compilation of the Qur’an after the martyrdom of Huffaz in
the Battle of Yamamah. Umar enjoined him by arguing that is
a public interest.
b) The call of prayer during Friday congregation. During the
time of Caliph Uthman, they added the preliminary Azan
before the final Azan of Friday prayer so people are alarmed
about the Friday prayer.

19
Section 4 – QIYAS

111. Its basis in Sunnah


When Muadh bin Jabal was appointed to become the judge of Yemen,
questions in answer to which he will use his own Ijtihad in the event
that he failed to find guidance in the Qur’an and the Sunnah and the
prophet was pleased with his reply. Since the hadith doesn’t specify
any form of reasoning in particular, analogical reasoning falls within its
meaning.

112. Its Essential Elements


a) Asl or the origin or the foundation. This refers to the original
case which a ruling is given in the text;
b) Far’ or the branch to which the ruling is to be extended;
c) Hukm or the Legal Rule. This is the Shari’ah value of the
original case which is to be extended to the new case;
d) Illa or the effective cause. This is an attribute of the Asl and it
is found to be in common between original and new case.

113. Types of Qiyas


a) Qiyas Al Aula or Analogy of Superior. The effective cause in
this Qiyas is more evident in the new case than the original
case.
b) Qiyas Al Musawi or Analogy of Equals. The illa in this Qiyas
is equally effective in both the new and the original case.
c) Qiyas Al Adna or Analogy of Inferior. The effective cause in
this form of Qiyas is less clearly effective in the new case
than the original case.

114. Other Types of Qiyas


a) Qiyas Jalli or Obvious Analogy which is easily intelligible to
the mind. Like the analogy between khamr and other
intoxicating drinks.
b) Qiyas Kafi or Hidden Qiyas which is not obvious to the
naked eye but intelligible through reflection. This referred to
Istihsan.

115. Rules in Extending Original Case to a New Case


a) the law to be extended must not be restricted to a particular
state of facts,
b) the law of the text must not be raison d’etre and cannot be
understood by human intelligence,
c) it must not be in the nature of exception to some general rule,
d) analogy cannot be applied merely to words of the text, and
e) the deduction must not change the law intended for the text.

116. Example of Qiyas


The Qur’an stated explicitly the prohibition of Liquor when Allah
said: “Oh you who believe! Intoxicants and gambling of stones,

20
and divination by arrows, are abomination of Satan’s handiwork;
eschew such abomination that you may prosper. This verse
prohibit liquor and state the reason for its prohibition such as
exciting enmity and hatred among the people. This liquor is
intoxicant and Tanduay is another intoxicant, which is not
mentioned in the Qur’an but prohibit by reason of Qiyas because
the Asl or the foundation is the drinking of liquor, the Far’ or the
new case is drinking of Tanduay and the Illa or the Effective cause
is its intoxicating effect and the Hukm or Legal Rule is
prohibition. Therefore by use of Qiyas, Tanduay also is prohibited
although not explicitly mentioned in the Qur’an.

Chapter Two
SUBSIDIARY SOURCES

Section 1 – ISTIHSAN

117. Its basis in the Qur’an


Allah said:
a) “and follow the Ahsan of what has been sent down to you
from your Lord” (Az Zumar: 55)
b) “And give tidings to those of my servants who listen to the
word and follow the best of it (ahsanahu)”

118. Its basis in the Sunna


It is reported that the prophet said in Hadith:
a) “The best of your religion is that which brings ease to the
people”
b) “What the Muslims opine to be good is good in the sight of
Allah”
c) “Harm is neither inflicted nor tolerated in Islam”

119. Kinds of Istihsan


a) Analogical Istihsan, which consist the departure from Qiyas
Jalli to Qiyas Khafi,
b) Exceptional Istihsan is stronger thatn analogical Istihsan
because it derived support from another source like Qur’an
and Sunnah.

120. Examples of Istihsan


a) Umar ibn Al-Khattab did not enforce the penalty of
amputation of the hand of a thief during famine,
b) Testimony of two witnesses is enjoined in the Qur’an to
prove a fact unless the law provides otherwise. But as
technology advances, records, cameras and videos offer at
least equal or if not more reliable method of establishing
facts. This can be a proper subject to recourse to Istihsan.

21
c) Based on Sunnah. Object which does not exist at the time of
contract may not be sold. However, it is validated by a
tradition that the prophet allowed it provided it is measured,
weight and has deadline.
d) Based on Ijma. When a person makes an order of craftsman
for certain goods to be manufactured at an agreed price which
is fixed though the good is not yet been present at the time of
order.
e) Based on Darura. The law requires that witness must be adil,
however if there is no adil witness, by virtue of istihsan and
necessity, a non-adil witness may be accepted in order to
secure justice.
f) Based on Custom. Movable property or things is generally
not allowed for Waqf. Hanafi jurists validated movable things
as Waqf such as books, tool and weapons on ground of its
acceptance of the popular custom.
g) Based on Public Interest. Responsibility of the trustee to the
loss of goods. The general rule is that a trustee is not
responsible to any loss unless it can be attributed to his
negligence. By way of Istihsan, a trustee becomes lialble
provided the cause is other than the cause beyond his control.

121. Istihsan and the Four Imams


a) The Great Imam Abu Hanifah and his followers made
extensive use of opinion. They held tenaciously to analogy and
applied it unsparingly so that they made it a measurement for
all rules whether provided for in the texts or not. If there
should be however, a basis stronger than analogy such as text
in the Qur’an or Sunnah or consensus of opinion, they would
set aside the apparent and forthnight analogy and adopt instead
the stronger basis through “Preference” (Istihsan”.
b) A number of Maliki jurists accepted preference in Istihsan and
defined it as “the attention to (public) interest and justice”.
c) The Imam Al-Shafi’I disagrees with the majority over the
issue. He thought that using Istihsan is equivalent to making
new rules of law (Bidah) which is not permissible.
d) The Imam Ahmad ibn Hanbal was said to have subscribed to
the view of Istihsan.

Section 2 – ISTISLAH

122. Its basis in the Qur’an


The purpose of revealing the Shariah is to promote man’s welfare
and prevent corruption in the earth. Following verses are in accord with
the said purpose:
a) “We have sent you but a mercy for all creatures”
b) “Allah has not imposed difficulties on you in religion”
c) “Allah never intends to impose hardship on you”

22
123. Its basis in the Sunnah
a) “Harm is neither inflicted nor tolerated in Islam”
b) “The prophet did not choose but the easier of the two
alternatives so long as it did not amount to sin”

124. Types of Maslaha according to Needs


a) The Essentials or Daruriyat, its neglect leads to total
disruption. This includes the five kinds which the Shariah
protects,
b) The Complementary or Hajiyat; its neglect creates difficulty
in life,
c) The embellishments or Tahsiniyat, its realization leads to
improvement and attainment of which is desirable.

125. Types of Maslaha according to its Nature


a) Maslaha Mu’tabara. Maslaha which the Lawgiver has
expressly upheld and has enacted a law for its realization.
Example is the protection of life through Qisas verses.
b) Maslaha Musrsalah. Maslaha which the Lawgiver neither
upheld nor nullified it. Example is the claim of ownership in
real property can only be proved by means of official
documents. This is to prevent Mafsada and that is the
prevalence of false swearing.
c) Maslaha Malgha. Maslaha which the Lawgiver has nullified.
Example is to give the son and daughter and equal share in
the inheritance. It cannot be because Allah has explicit verses
that nullify that kinds of interest.

126. Its Condition


a) The Maslaha must be genuine as opposed to plausible which
is not a proper ground for legislation;
b) Maslaha must be general in the sense that it secure benefit
and prevents harm to the people as a whole and not to a
particular person;
c) Maslaha should not violate the principle which laid down by
the text or Ijma.

127. Example of Istislah


a) The imposition of Taxes on the rich in order to meet the cost
of the army and to protect the realm;
b) the punishment of the criminal by depriving him or his
property if his crime is perpetrated over that property or its
equivalent;
c) if an infidels in a war should shield themselves by Muslim
prisoners and the only way to defeat them and to protect the
Muslim community is to counter them even if it means
killing the Muslim prisoners.

23
Section 3 – ISTISHAB

128. Kinds of Istishab


a) Presumption of original absence; which means the facts
which had not existed in the past is presumed to be non-
existent until the contrary is proved like the presumption of
innocence.
b) presumption of original presence; an example is the liability
of the husband to pay dower to the wife in the existence of
valid marriage contract unless the contrary is proved;
c) presumption of law; it means that a law is presumed to be
continued unless the contrary is proved
d) presumption of attributes; it means that the attribute of a
thing continues until contrary is proved. Ex: A person
performs ablution by using water, the attributes of cleanliness
of water is presumed to continue until it is vitiated. A mere
doubt doesn’t nullify ablution.

129. Example of Istishab


a) The legal presumption of innocence until the proof of guilt is
established;
b) things are presumed Halal in the absence of prohibition;
c) Marriage is presumed to continue until its dissolution
becomes known.

Section 4 – ISTIDLAL

130. Its kinds and examples


a) the expression of the connection existing between one
proposition and another without any specific effective cause.
This kind of Istidlal is of three kinds: (1) Istidlal between two
affirmative propositions for example, the proposition that
everyone who is competent to give a valid talaq can also
make a valid Zihar. (2)Istidlal between two negative
propositions for example, if a substitury ablution without
intention is not valid, a regular ablution cannot also be valid
without such intention. (3) Istidlal between negative and
positive propositions. For example, the proposition that what
is permissible cannot be haram or forbidden.
b) Istishabul Hal or presumption that a state of things, which is
proved to have ceased, still continues or that a rule is
accepted. Other authority treats Istishabul Hal as another
source of Islamic Law.
c) The authority of previous laws before Islam. For example, it
is recognized that customs and usages which prevailed in
Arabia at the advent of Islam which were not abrogated by
Islam, have the force of law.

24
Section 5—URF or CUSTOM

131. Its basis in the Qur’an


a) ”You are the best people, evolved for mankind, enjoining
what is right and forbidding what is wrong”
b) “Hold to forgiveness, command what is right but turn aways
from the ignorant”

132. Types of Customs


a) Customs related to transactions and rights,
b) Customs related to morals and behaviors,
c) Customs related to costumes and social conduct, and
d) Customs which is related to amusement or entertainment.

133. Division of Urf


a) Urf Qawli or Usage of language and terms
b) Urf Fi’li or Practice

134. Its Conditions


a) It must represent a common and recurrent phenomenon;
b) It must be acceptable to the people of sound nature;
c) It must be in existence at the time a transaction is
concluded;
d) It must not contravene the clear stipulation of an agreement;
e) It must not contravene the clear stipulation of an agreement;
f) It must not conflict with a text.

135. In case of Conflict between Islamic law and Adat


Adat in order to be admissible as a binding rule, must not be
contrary to the laws brought by the Shariah or Islamic law. The
Muslim code further states that Adat must not also contrary to the
constitution of the Philippines, the PD1083, public order, public
policy and public interest. And lastly it should be proven in
evidence as a fact.

Section 6—SADD DARA’E

136. Types of Lawful Acts


a) Those that rarely lead to harmful results. Its interest to be
secured in such acts is greater than the injury. Examples are
looking at the woman to be proposed and maintaining
vineyards for grapes. The unjuries in this case are less than
benefits.
b) Those that usually lead to harmful results. The injury in this
type is much more than the benefits to be derived. Examples
are the sale of arms during waves of terrorism and rebellion;
renting out property to one who will use it for unlawful
purposes.

25
c) Those in which there is an equal probability of harm and
benefit. Examples are marrying a woman with an intention
divorce so as to enable her to remarry her previous husband.

TITLE VI
NASKH or ABROGATION

137. Four ways of Naskh or Abrogation


The repeal of the Qur’anic text by Hadith. Example is deals with
intoxicants that at one stage the use of it was utterly discouraged
pointing out its bad effects. Later people were asked, rather
warned, not to touch and finally the use of it was declared
prohibited. This according to the commentaries of the Qur’an, is
an indirect way of nullifying the effect of earlier verse on the
subject in the Qur’an by replacing it later with a more concrete
and powerful expression.

The repeal of Hadith by another Hadith. To quote an example, it is


said that the prophet, in one of his earlier percepts condemned, the
practice of visiting the graves of the deceased but later on he is
believed to have allowed the people to do so.

The repeal of the Hadith by Qur’an. The Muslim jurists agreeable


to this. Example of this is the direction of prayers. The prophet
had enjoyed by his percept that a Muslim while saying his prayers,
should turn his face in the direction of Jerusalem. This practice
continued for some time and then a Qur-anic text was revealed
directing the Muslim to turn their faces towards ka’aba while
sayng his prayers.

The repeal of the Qur’anic text by the Hadith. The Muslim jurist
with regard to this is contradict to each other. Some of the jurist,
among them are Imam malik , comapnions of Abu Hanifah and
follower of Zahiri, believed that it is possible for the Sunnah to
repeal the Qur’an on the ground that both are revelations from
God. Thus this suppression is sanctioned by reason in addition to
the fact that it did actually occur. Thus , despite the clear urging
to bequeath unto parents and relatives, the jurist mentioned
consider repealed by the saying of the prophet that, “No bequest
to an heir”.

138. Types of Naskh


a) Sarih or Explicit Abrogation. It is when the abrogating text
clearly repeals one ruling and substitutes another in its place.
b) Dimni or Implicit Abrogation. It is when the lawgiver
introduces a ruling which appears conflicting to the previous
ruling though still doubtful whether the two rulings represent
a genuine case of abrogation.

26
139. Conditions and Rules on Abrogation
a) The text has not prohibited the possibility of abrogation.
Example is the verse about the persons who are convicted of
slander that they may never be admitted as witness,
b) the subject is open to possibilities of repeal; attributes of
God, principles of faith, and moral virtues are not open to
abrogation,
c) the abrogating text must be later origin than the abrogated,
d) the two texts are equal strength in regards to authenticity,
e) the two texts are in conflict and no way to be reconciled,
f) the two texts are separate and they are not related to one
another in the sense of one being the condition, qualification
or exception to the other.

140. Reasons of Abrogation


a) Liberalizing the law for people in order to adapt the rules
governing transaction as the time change,
b) when it is not possible to reconcile two texts which are
conflict to each other and of the same origin,
c) what may be good for the people of one age may not be good
for the people of another age.

TITLE VII
IJTIHAD

141. Basis of Ijtihad


The indication that Ijtihad is valid is when Muadh Ibn Jabal was
sent to Yaman, he asked him on what will he do if a matter
referred to him for judgment. He answered the prophet that he will
judge according to the book of Allah and if he cannot find it in the
Qur’an then he will judge by the Sunnah of the prophet and if
thereafter he can’t find a solution, then he said HE WILL MAKE
IJTIHAD to formulate his own judgment. The prophet was
reported to have been pleased with his answer.

142. Kinds of Mujtahid


a) Mujtahid fi Shar’ or Full Mujtahid. A Mujtahid who met all
the requirements to exercise Ijtihad and is not restricted by
the rules of particular Madhab.
b) Mujtahid fil Madhab. A Mujtahid who expounds the law
within the boundaries of a particular Madhab and principles
laid down by his Imam.
c) Mujtahid fil Masa’il or Mujtahid on Particular Issue. A
Mujtahid who applies law in particular cases which are not
settled by the jurists of the first and second rank.

27
All the preceding three classes were designated as Mujtahids. The
following four classes are described as imitators. They are:

d) Ashab at-Takhrij. They are those who do not deduce the laws
but are well-conversant in the doctrine and can indicate
which view was preferable.
e) Ashab at-Tarjih. They are those who are competent to make
comparisons and distinguish the correct views from the weak
ones.
f) Ashab at-Tashih. They are those who could distinguish
between the manifest (zahir ar-riwaya) and the rare (an-
nawadir) views of the schools they are following.
g) Muqallidoon or Immitators. They are those who lack the
abilities of the above and merely follow the other Mujtahids
without knowing how Mujtahids deduces the ruling.

143. Qualification of Mujtahid


a) he must be conversant with the science of Islamic law in both
branches (usul and furu),
b) he must have thorough knowledge of the Qur’an and hadith,
c) above all, he must be conversant with the rules and methods
of analogical deduction.

144. Tasks of Mujtahids


a) to discover the ahkam of the Shari’ah from the texts,
b) to discover the law that is either stated explicitly in the
primary sources or is implied by the texts,
c) to extend the law in new cases that may be similar to cases
mentioned in the textual sources but cannot be covered
through literal methods.
d) to extend the law to new cases that are not covered by the
previous two methods. That is they are neither found
explicitly or impliedly in the text nor are they exactly similar
to cases found in the texts.

145. Modes of Exercising Ijtihad by a Mujtahid or Jurist


a) by confining himself to the literal meaning of the text
b) by using Qiyas or analogy, and
c) by extending the spirit of the law to other cases

TITLE VIII
THE FOUR SUNNI SCHOOLS OF LAW (MADAHIB)

146. The Hanafi Madhab, named after its founder Abu Hanifah whose
actual name was Nu’man ibn Thabit. He is originally from Kufa,
Iraq. He belong to the Tabi’een since he had the privilege to meet
other late Sahabas. The Hanafi School has the largest following in

28
the Muslim world and distinguished for its application of the rules
of Shari’ah to practical matters of human life, making use of
reason and logic in this process or broadening those rules by
means of analogy (Qiyas) and equity (Ihsan). Abu Hanifa relied on
his personal judgment (ra’y) and conclusions by analogy. His
school subsequently came to be known as the “Upholders of
Private Opinion” (Ahl r-Ra’y). Basis of his analogical reasoning
was the Qur’an. He accepted tradition only when he was fully
satisfied as to their authenticity.

147. The Maliki Madhab, named after its founder Malik ibn Anas ibn
‘Amir. Imam Malik ibn Anas is looked upon as the highest
authority on the Sunnah and in formulating his school of law he
leaned more upon tradition and usages of the Prophet (s.a.w.) and
the precedents established by the Companions of the Prophet. He
was in a better position than Abu Hanifah to be acquainted with
the laws laid down by the companions and their successors and
embodied them largely in his system. It was only when no solution
was to be found in the Qur’an and the Sunnah that he relied on the
exercise of judgment. He attached weight to the usages and
customs of Madina, relying on the presumption that they must
have been transmitted from the time of the Prophet. Imam Malik
also recognized considerations of public good (Istislah) as a source
of law, although early Maliki jurists did not utilize much this
principle.

148. The Shafi’I Madhab was named after its founder Muhammad ibn
Idris ash-Shafi’i. Imam As-Shafi’I was noted for his balance of
judgment and moderation of view and though he is reckoned
among the upholders of traditions, he examined the traditions
more critically and made more use of analogy than Imam Malik.
He allowed greater scope to Ijma of the community (consensus of
opinion) than Imam Malik. As-Shafi’I objected to the principle of
Istihsan (juristic preference) adopted by the Hanafis but he himself
introduced the principle of Istishab or deduction by presumption
of continuity. The Hanafi School admits Istishab to refute an
assertion, as an instrument of defense and not to establish a new
claim.

149. The Hanbali School, which is attributed to its founder Abu


‘Abdallah Ahmad ibn Hanbal ash-Shaybanee. Imam Ahmad ibn
Hanbal appeared to have been more learned in the traditions than
the science of law. He strictly adhered to the traditions, his
interpretations of which were both literal and unbending, and he
allowed but a narrow scope to the doctrine of Ijma and Qiyas. The
traditionalists of the third century of the Hijra did not seem to have
shown much interest in legal theory except for the general idea of
the authority of traditions, but when the scholars of the Hanbali
school came to elaborate a complete system of doctrine they had

29
to adopt the classical legal theory which was based not on
traditions but consensus and recognized analogical reasoning. It
was left to the great independent Hanbali thinker, Ibn Taimiyya, to
reject the all-embracing function of consensus in law and to affirm
the necessity of analogical reasoning of the improved kind.

150. Conflict Rules of the Madhabs. All Imams of the four major
Madhabs agreed on the primacy of the four fundamental principles
of Islamic law. However, differences occurred on the following
factors:
a) Interpretation of word meanings and grammatical
constructions,
b) narration of Hadith with regard to its authenticity,
acceptance, and interpretation of the text,
c) admissibility of certain principles
d) methods of Qiyas

151. Standard Works of the Fours Madhabs


a) Hidaya of Imam Abu Hanifa;
b) Al-Muwatta of Imam Malik;
c) Al-Umm and Al-Risalah of Imam Shafi’e; and
d) Al-Musnad Al-Kabeer of Imam Ahman Ibn Hanbal

TITLE IX
Some Philosophical and Theological Sects in Islam

152. Sunni. This sect refers to the Ahlu Sunna wal Jama’ah or the
People of Sunna and Community. They follow the prophetic
Sunnah and have no claims against it. Politically, they believe that
that the prophet Muhammad did not appoint a successor to lead
the Ummah. Sunnis regard the first four caliphs as The Rightly
guided caliphs. They also believe that becoming a Caliph may be
attained democratically. It was after the first four Caliphs where
the position turned into hereditary dynastic rule. It is believed that
here has never been another caliph after the fall of Ottoman
Empire in 1923.

153. Shee’a or Shites. This sect refers to the Shi’at Ali or Partisan of
Ali. Politically, they believe that it should be the family of the
prophet or Ahlul Bayt who has the right of political succession.
They claim that Ali should have been his immediate political
successor. From this basic position, Shee’as developed theological
system. Their Imams as infallible and has the ability to know the
Ghayb or Hidden Knowledge is an example of their doctrines.
154. Khawarij. This sect refers to the army of Ali that broke during the
Battle of Sifin. It was a battle between Ali and Mu’awiya. When
arbitration were held between the two sides, a group of Ali’s army
broke out and declared both Ali and Mu’awiya as Kafirs on their

30
reason that they preferred human arbitration over what was
ordained by God. Some of their beliefs are a person who commits
a major sin would make him and infidel, and also they believe that
any Muslim could become a political leader simply on the basis of
his religious virtue. The name of their first leader was Abdullah
Ibn Wahb Arrasibi.

155. Mu’tazilah. This sect refers to the school of thought commonly


called rationalism. They agree to Khawarij views although they
modified the definition of a true believer and the status of those
who commits grave sins. It has become the official philosophy of
the Abbasyd state at sometime. Among their belief is the Qu’ran is
created and only its meaning are divine, that Allah would never be
seen by the people of Paradise, that man has free will without
divine interference, and the one who commits sins enters a state
between a Muslim and Kafir.

156. Murji’ah. This sects is referred to by the Sunni Muslims as the


“the people of Innovations ar Ahlul Bid’ah”. This sect emerged on
the first and second centuries of Islam and has been promoted
tolerance by the Ummayads and converts to Islam who appeared
half-hearted in their obedience. They believe that only God has the
authority to judge who is a Muslim and who is not. They also
believe that committing grave sin isn’t a ground for one to become
a non-Muslim because genuine belief and submission to God is
more important than acts of piety (taqwa) and good works. They
argue that so long as a person remained faithful, he is remained as
Muslim despite committing grave sins.

TITLE X
MISCELLANEOUS

157. Stages of development of Islamic law


a) The Prophetic Era. It comprises the lifetime of the Prophet
throughout his twenty-three years of prophethood.
b) The Era of the four rightly guided Caliphs. This period is
considered the preliminary stage for the codification of
Islamic law.
c) Middle of the first Century A.H. to the beginning of the
Second. This stage, Islamic law became a distinct science of
its own that scholars would specialize in. School of thoughts
were formed in this period.
d) Beginning of the Second Century to the middle Fourth
Century. In this stage, codification of Islamic law was
completed.
e) Middle of the Fifth Century to the fall of Baghdad at the
hands of the Tatars in the Middle Seventh Century. This

31
stage, writings in the field of Islamic law started to become
rigid and beset by blind following or Taqlid.
f) Middle of the Seventh Century to the beginning of the
modern era. This stage is one of weakness with regard to the
methodologies employed in the codification of Islamic law.
g) Middle of the Thirteenth Century to the PRESENT DAY.
This stage, studies in Islamic law broadened considerably
especially in the field of comparative law.

158. Some Islamic Maxims


a) Necessities make forbidden things harmless. It means that
necessity renders prohibited things permissible. Example:
Eating pork in the absence of food is allowed when it’s the
only means to survive.
b) The smaller of the two harm is choose. It means that when
one is confronted by two evils, he must choose the lesser evil
or the lesser harmful to avoid the severe one. Example:
Destroying a house to prevent fire from spreading and cause
more damage.
c) Hardship or causes the giving of facility. It means that
difficulty lessen liability. Example: Stealing fruits because of
hunger.
d) When receiving a thing is forbidden, the giving of it is also
forbidden. An example is the bribery.

159. Kinds of Legislation during the lifetime of Prophet in Madina


a) Divine Legislation
b) by Percept of Ijtihad (as in the case of Muadh ibn Jabal)
c) by Spirit of the law

160. Principles adopted by PD1083 Code Commission in the


Codification of Muslim Personal Laws
a) Of the Islamic legal system, only those that are
fundamentally personal in nature were to be codified,
b) Of the personal laws, only those relative to acts of which are
absolute duties under Muslim law were to be included,
c) if some of the provisions of the law is complicated for a
code, only the fundamental were to be stated and the details
left to judge for proper implementation,
d) nothing to be included in the code where it appeared to be
contrary to the constitution of the Philippines, and
e) nothing to be included unless it was based on the principles
of Islamic law as expounded by the four Imams.

32