AS-SIRAAT AL-MUSTAQEEM

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Islamic (Shariâ€™ah) Law

<ol> <li><a href="content_detail.php?id=9#1">Understanding Shari'ah</a></li> <li><a href="content_detail.php?id=9#2">Sources to Extract Shari'ah Law</a></li> <li><a href="content_detail.php?id=9#3">The Prophetic Teachings </a></li> <li><a href="content_detail.php?id=9#4">The Consensus of the Scholars </a></li> <li><a href="content_detail.php?id=9#5">Juristic Analogy </a></li> <li><a href="content_detail.php?id=9#6">The Islamic Penal Code</a></li> <li><a href="content_detail.php?id=9#7">The Four Schools of Law</a> <ul> <li><a href="content_detail.php?id=9#8">The Hanafi School of Law</a></li> <li><a href="content_detail.php?id=9#9">The Maliki School of Law</a></li> <li><a href="content_detail.php?id=9#10">The Shafi’i School of Law</a></li> <li><a href="content_detail.php?id=9#11">The Hanbali School of Law</a></li> </ul> </li> </ol> <a id="1" name="1"></a>Understanding Shari’ah It may help to first of all understand the term Shari’ah and unfortunately, many people today associate it with the Islamic Penal Code, which constitutes to be a small part of Islamic law.  Shari’ah lays out a spiritual and moral code that covers all aspects of life – individual and societal and continues to play an important and dynamic role in everyday life of the Muslim.  In essence, it is the Rules governing the daily lives of Muslims. It claims to be of divine influence rather than human origin.  The most interesting fact about Shari’ah law which differentiates it from secular law is that it is not interpreted by lawyers and judges, subject to the influence of time and place, the pressure of interest groups and other factors; this is not the case in Shari’ah law. The root word Shari’ah evokes the following six meanings, among others: <ol> <li>Shari’ah law serves as the foundational, beginning code of living in a Muslim society;</li> <li>It allows people to move forward and progress towards their ultimate goal Shari’ah acts as a mechanism of developing a spiritual, moral, ethical and intellectual community;</li> <li>Shari’ah protects people from physical harm, spiritual, moral destruction;</li> <li>It co-defines social behaviour based on certain rights and responsibilities afforded to each person;</li> <li>A path to a well of water: water, especially on the dry lands of Arabia, offers, offers a source of life for all creation. It also means to an end rooted in submission to the Will of God. </li> <li>It is a source of water that never runs dry: this form represents the actual word Shari’ah not only its roots. Continuing with the theme of water, this means that Shari’ah is a universal wisdom whose benefit for humanity will never end. The law applies to all who accept the Islamic faith regardless of national origin.</li> </ol> Shari’ah law comes from a number of sources and the laws are shaped into a formal code through a science, known as Fiqh or jurisprudence. This science seeks to interpret the Will of God. Those who undertake the knowledge and pursuit of jurisprudence (Fiqh) are known as (Fuqaha singular, Faqih). These scholars usually work independently of the Government. They have authority to issue legal opinions from other established Fuqaha in the form of a “permission” called Ijaza. This is a complicated study and serious lifetime can be dedicated to it. Many of the teachers have spent over 20 years and even claim that this is the beginning of their understanding of this science. The Islamic interpretation and application of Divine guidance takes place through human beings who have knowledge of jurisprudence. These highly respected jurists are also checked by other intellectuals in the community of jurist because no one person has direct access to divine revelation. The process of checks and balances allows a difference of opinion and open debate in society, known as Ikhtilaf. This then opens the way to Ijtihad – an intellectual struggle undertaken to know the Will of God.  The result is either agreeing to disagree (Ikhtilaf) or reaching a consensus on a certain issue (Itifaq). In terms of different opinion which arise on matters that the Qur’an and teachings of the Prophet leaves a grey area. Muslims can accept the opinions of different scholars on these matters so long as those do not violate the teachings of the Qur’an and the teachings of the Prophet (hadith). Juristic opinions are known as Sawah (plural, Fatwah). Trained scholars, not lay people, have the authority to issue these usually non-binding legal opnions. Fatwah issued by those who are who are not trained in the classical science of jurisprudence cannot be considered authoritative or authenticin classical Islamic thought. <a class="float_right" href="content_detail.php?id=9#">↑ top</a> <a id="2" name="2"></a>Sources of Shari’ah Law The juris use four basic sources to extract the laws from Shari’ah: <ol> <li>The Qur’an;</li> <li>The Prophet’s Tradition (Sunnah or teachings of the Hadith);</li> <li>The consensus of scholars (Ijma); and</li> <li>Juristic analogy (Qiyas).</li> </ol> The Qur’an states that: “Here is a plain statement to men, guidance and instructions to those who are conscious of God” (3:138). This clearly describes the laws of the Book which tend to be laid down in a concise and clear language, leaving little doubt about their meaning. The Qur’an was revealed in stages and not all at once. The Qur’an actually lays down very few laws in detail. The Scriptures contains general, broad moral codes that form the basis of the principles in Shari’ah law. Most laws in the Qur’an derive from the concept of public benefit, which concerns the physical, intellectual, moral and spiritual well being of individuals in in society. The ideal public benefit extends into principle of Shari’ah law that can be applied to new cultures and modern situations.  In the modern age, traffic laws, for example, became part of the sacred law (Shari’ah) and violating traffic laws is considered a sin before God. The traffic law seeks to bring physical protection to society and are therefore, an extension of one of the purposes of Shari’ah law. Shari’ah law deals with the rights and responsibilities that Muslims have over each other and non-Muslims. This includes proper social interaction, peaceful co-existence, and ethical economic transaction. Social behavioural laws also determine punishments from major crimes, such as murder and theft. Family law in the Qur’an deals with healthy conduct in family relationships, marriage, sexuality, divorce and inheritance. Women’s rights and responsibilities also play a large role in family law. <a class="float_right" href="content_detail.php?id=9#">↑ top</a> <a id="3" name="3"></a>The Prophetic Teachings The Qur’an says the following:  “You have indeed in the Messenger of God an excellent example for him who hopes in God and the Last Day and who remembers God much”,(33:21).  The Qur’an clearly points to Muhammad as the second source of authority in religious matters by calling on Muslims to “Obey God and obey the Messenger” and if an argument arises too, “Refer it to God and the Messenger” (4:59). The life example of the Prophet Mohammad (PBUH), known as the Sunnah, constitutes the second source of Islamic Law.  The Sunnah are narratives on Mohammad’s life from his companions in the form of detailed events and quotes.  The Sunnah includes the actions, sayings and those things that the Prophet permitted or allowed by way of silence (known as approval) where the prophet neither encouraged nor discouraged an act that took place in his presence.  The Sunnah is historically preserved as reports known as hadith. The Sunnah explains an expands upon teachings of the Qur’an.  The Sunnah also helps to clarify how to apply the principles of the Qur’an to human life.  For example, the Qur’an calls on Muslims to establish the daily prayers in their lives, but the Qur’an never lays out the exact step of how to pray.  So, the Sunnah provides all the details of how to perform the prayers and detailed laws concerning the ritual. In the same way, the Qur’an instructs Muslims to pay purifying alms, but the Qur’an never states how much to pay.  Muslims turn to the hadith to find out how much purifying alms they must pay annually.  When Muslims seek to know the Will of God, they first begin with the Qur’an and then turn to the hadith as their two primary sources of sacred knowledge.  The life example of the prophet Mohammad plays a very important role in the development of Islamic Law. The hadith consists of two parts:  the chain of narrators and then the body or content.  A typical hadith looks something like this: Malik bin Anas relates from Abu al-Zinnad and Muhammad bin Yahya bin Habban from Al-al-A’raj from Abu Hurayra that the Messenger said:  “Let none of you seek a woman in marriage if his brother (in faith) is already seeking her.” Over time, collectors of Hadith travelled all across the Muslim world to find hadith.  Six collections of hadith have particular authority and authenticity in the Islamic Tradition:  Ismail al-Bukhari Muslim Ibn al-Hajjaj, Abu Dawud, al-Nisai, al-Tirmidhi, and Ibn Majah.  Al-Bukhari and Muslim enjoyed the greatest authenticity in terms of making hadith. During the collection of the hadith, obviously problems occurred with false and inaccurate reporting of what the prophet did in fact say and do.  To face this challenge, a tradition of hadith criticism (Mustalahlal hadith) was developed to discern authentic reporting from unauthentic ones. The Science of hadith collection examines both Isnad and the Matn of a hadith.   Isnad is the examination of the chain of narration and Matn is the examining contents of the hadith. There are various levels of authentication after the examination of the Isnad and Matn then may receive anyone of the following levels of authenticity:  <ol> <li>Sound (Sahih) – this is the best level of authenticity, where the chain of narrators and contents of the hadith are impeccable.  These hadith become authoritative in the code of Islamic Law.</li> <li>Good or acceptable (Hasan) - this level of authenticity usually applies to hadith where some slight doubt about the chain of narration exist.  For example, one of the narrators may have had a weak memory or some other weakness, but the other narrators past the test of authenticity.  These Hadith can also be used in the code of Islamic Law but the Sahih Hadith are preferred over Hasan Hadith.</li> <li>Weak (Daif) -  these hadith are considered unauthentic either because a serious break in the narration exist or because the content of the hadith is not acceptable.  </li> </ol> However, the hadith can still be used if it does not contradict the Qur’an or an authentic hadith in spirit.  For example, a famous saying of the Prophet, “Seek knowledge even if it means going to China”.   This hadith is in fact considered weak (Daif) because of its chain of narration.  However, it’s spirit is consistent with an authentic hadith that says, “seeking knowledge is incumbent on all Muslim men and Muslim women”.  This certainly encourage that Muslim views those hadith that have been fully authenticated. <a class="float_right" href="content_detail.php?id=9#">↑ top</a> <a id="4" name="4"></a>The Consensus of the Scholars The prophet said that “scholars of my community will never agree on a wrong”.  As such, in the development of Islamic Law, the consensus of the scholars, known as ijma is the third source of sacred law.  The basic idea of ijma is that if the scholars of a particular generation unanimously agree on a religious matter, then that ruling is codified into Islamic Law. Ijma only comes into play when scholars cannot find a clear directive on a particular matter in either the Qur’an or Sunnah.  The scholars with a deep knowledge of Islamic sciences must make these rulings.  They base their opinions on the spirit and reasoning of the Qur’an and Sunnah, and not on their own ideas. An example of this is when Islamic civilization grew outside the borders of Arabia, the Muslim community faced the new challenge of whether or not it was acceptable to make treaties with non-Muslim nations that oppose the Islamic state.  There is no clear cut directive existing in the Qur’an and Sunnah regarding this issue, scholars examine the spirit of the scripture.  The Qur’an says, “but if the enemy is inclined towards peace, you also are inclined towards peace” (8:61).   From this it can be ascertained, that the scholars came to a consensus that it was in fact permissible to make treaties with those states that wanted peace with the Muslim community as long as they ceased all hostilities. <a class="float_right" href="content_detail.php?id=9#">↑ top</a> <a id="5" name="5"></a>Juristic Analogy Jurist in the Islamic tradition developed an intellectual struggle to know the will of God, to arrive at legal rulings in new cultures and times.  At first this intellectual struggle was based on reasonable opinions (ra’y) that were rooted in the Islamic tradition.  However, over time, scholars felt that this methodology was too loose and feared that all sorts of unauthentic opinions could arise. Under the leadership of the famous and influential jurist, Shafi, scholars of Islamic Law institutionalised reason into a process of juristic analogy, known as qiyas.  There is no clear ruling in the Qur’an, so no ijma exists on a particular subject, then scholars seek a solution based on analogy found in the three sources. There are five standards in Shariah Law: <ol> <li>Obligatory (Fard) – these laws are mentioned as explicit commands in the Qur’an and Sunna, and can be derived from their wisdom and reasoning.  These laws derive from the concept of benefit for individual and society alike.  Acting on these obligations merits great reward from God.  Avoiding or neglecting these duties constitutes a sin, punishable by God and the hereafter and in some cases in this world as well. Personal obligations include the knowledge and practice of those things that every Muslim must do in their life as a Muslim.  This includes things like practicing the pillars of Islam. Communal obligations include those duties that are obligatory on the community, but not necessary for every single Muslim.  For example, not everyone must defend the community, but it is a communal obligation to secure the home land.</li> <li>Recommended (Mandub) - these laws supplement obligatory laws.  These actions merit reward for their doing, but no sin for their neglect. This includes for example, praying five times a day and it is recommended that you add supplemental prayers on to those prayers throughout the day in order to draw a closer connection with God.</li> <li>Permitted in (Mubah) - these actions are simply allowed, without any moral quality of good or evil.  For example, in the Qur’an it allows eating meat prepared by people of other monotheistic faiths and also marrying women of monotheistic faiths (5:5).  These two actions are neither morally good nor morally evil;  they are simply permitted with no reward or punishment attached. Unless the Qur’an places a restriction on an action, it is usually permissible in its natural state, which means that everything is permissible unless it is specifically prohibited or contradicts the spirit of Islamic teachings.  This is the most fundamental rule on dealings of daily life in the Islamic ethic.</li> <li>Disliked (Makruh)  - these actions are not forbidden, but are disliked or reprehensible.  There is no punishment or sin for doing these actions, but there is reward in avoiding them.  An excellent example of this concept is divorce.  Divorce is considered “the most disliked of permissible things in the sight of God”.</li> <li>Forbidden (Haram)  - these actions are clearly prohibited.  Forbidden actions are prohibited because they bring harm to the individual and to the community.  Permitting these actions is considered a sin, and in some cases is punishable.  Avoiding these actions merits reward from God.  Examples of Haram are murder, theft, adultery, drinking alcohol, fornication and gambling.  Generally speaking, these actions are also considered forbidden. There are two types of forbidden actions:  those that are themselves harmful, and those that are permissible, and those that are permissible, but become unlawful under certain circumstances.  For example, giving charity qualifies as a morally good action but giving charity from unlawful wealth (such as stealing money or unfair business practices), is forbidden. There is another example where some scholars agree on the categorisation of every single ethical action.  For example, some scholars feel that growing a beard is obligatory, while others say it is only recommended.  </li> </ol> The categorisation of an ethical action can change over time with changes.  One prime example is that many Islamic scholars dislike the bad smell that comes from smoking.  It is also an issue in medical terms that smoking causes serious bodily harm, such as cancer and other diseases, and some have prohibited smoking whereas others dislike it.  There are some legal opinions maintaining that the ruling on smoking is a case by case basis and depends on how smoking affects the individual’s health. <a class="float_right" href="content_detail.php?id=9#">↑ top</a> <a id="6" name="6"></a>The Islamic Penal Code The Islamic Penal Code acts as a deterrent to evil.  By setting strict standards on the most evil practices, people have to think ten times before doing  an act they know they should not have done it.  In Islamic Courts that run on true Islamic teachings, penal laws have very high standards for conviction.  Jurist rule each issue case by case, and the evidence presented before the Court must be very solid. The penal code also provides important exceptions.  For example, according to the Sunnah, you cannot convict those who are below the age of maturity or those who are not mentally fit to make ethical conscious choices. In addition, when conditions make it humanely impossible or extremely difficult to abide by certain laws, then the Islamic Courts can temporarily suspend those laws.  For example, during the time of Caliph Umar, a major sermon took place in an area that was under Islamic rule.  In this situation, Umar applied a moratorium on the punishment of theft, since people were driven by severe need for basic necessities. The penal code is built on rule of laws; Muslims cannot just take the Law into their own hands.  As such, in the absence of an Islamic Government, the penal code cannot be applied.  Islamic Law cannot be applied without the due process of law and right of appeal that can only take place in an Islamic state and Islamic Courts. <a class="float_right" href="content_detail.php?id=9#">↑ top</a> <a id="7" name="7"></a>Four Schools of Law The four Imams do not have any major disagreements between them, but the principle that they derive for legal rulings differ widely.  Most Muslims, either consciously or subconsciously, follow one of these four legal schools of thought. <a class="float_right" href="content_detail.php?id=9#">↑ top</a> <ol> <li><a id="8" name="8"></a>The Hanafi School of Law This school of law gets its name from Ninan-Nu’man Ibin Thabit Abu Hanifah (700-767), originally from Afghanistan and the grandson of a freed slave.  His work established a set of principles by which scholars could extract Islamic Law from the Qur’an. Abu Hanifahplaced a lot of emphasis on Qiyas, or juristic analogy in order to gain flexibility in his legal opinions.  Abu Hanifah also relied heavily on juristic preference (Istihsan), in which a jurist can choose between two options in order to promote the common good.  As such, Hanifah Law is considered one of the most flexible or lenient schools that exist today. Hanifah Law has the largest number of adherence.  Its law prevail in Central Asia and South Asia, where the largest number of Muslims live.  Also, Hanifah Law is very common in the South Asian community of American Muslims. <a class="float_right" href="content_detail.php?id=9#">↑ top</a></li> <li><a id="9" name="9"></a>Maliki School of Law Maliki Ibn Anas (716-795) was the first to publish a book on Islamic Law, known as El-Muwatta.  This Madhhab uses the narratives of the people of Medina (prophet Mohammad’s companions) as a source for Islamic Law.  Maliki believed that since this generation of believers formed the original Muslim community, they would not create laws or practices that would differ from the prophetic guidance. Maliki also advocated making exceptions in Islamic law based on local custom (Urf) so long as that custom does not contradict the spirit of an established Islamic Law.  Maliki argued that development of law and legal rulings about modern concerns should favour the public good and the general welfare (Istislah).  In such cases, the spirit of the law can sometimes overwrite the letter of the law.  The MalikiSchool has the greatest number of followers in West Africa and North Africa;  it is also commonly found in Egypt, the Sudan, Bahrain and Kuwait.  Also, this school is gaining popularity in the United States as some influential scholars advocate its practice for American Muslims. <a class="float_right" href="content_detail.php?id=9#">↑ top</a></li> <li><a id="10" name="10"></a>The Shafi’i School of Law Muhammad Bin Idris Al-Shafi’i (767-820) is considered among the most brilliant jurist in Islamic history.  He codified  the sources of Islamic Law strictly into the Qur’an, Sunnah (Prophetic tradition), Ijma (consensus of the scholars), and Qiyas (juristic analogy).  Shafi’i so rejected the Hanifah use of juristic preference (Istihsan) and the Maliki’suse of the Medina community as a source for Islamic Law. This school of law dominates in southern Egypt, southern Arabia, east Africa, Malaysia, Indonesia and in some parts of central Asia.  American Muslims also commonly follow this school. <a class="float_right" href="content_detail.php?id=9#">↑ top</a></li> <li><a id="11" name="11"></a>The Hanbali School of Law This school of law is named after Ahmad Ibn Hanbal (780-855) is considered the most conservative of the four schools.  Ibn Hanbal grew weary of using reason and analogy in the legal coding of Islamic Law.  However, he also developed the theory of permissibility where any action that does not contradict the Qur’an and Sunnah is presumed lawful of legal.  This created flexibility in an otherwise conservative tradition. Muslims in Saudi Arabia, Oman and Qatar mostly follow Hanbali Law. This school also has a growing trend amongst converts in Islam who are residing in the United States of America.  [Notes:  A school of jurisprudence is known as a Madhhab.  So far, four major schools had developed in Sunni Islam and they still remain to this day.  However, the main Shi’ite Schools are the earlier Ja’fari (named after Abu Hanifah’s teacher, and the Zaydi, Ibadi and Thahiri)]. <a class="float_right" href="content_detail.php?id=9#">↑ top</a></li> </ol> Conservative Muslims are uneasy about the present day urge to abandon the scholars and return to the simple faith of Qur’an and Sunnah, seeing this as abandonment of centuries of detailed case by case Islamic scholarship by highly sophisticated specialist, who have thorough detailed knowledge of the Qur’an and the Islamic legal sciences. Any practice a Muslim tries to ‘add’ to Islam that has no basis in the Qur’an or Hadith is known as an innovation, or bidd’ah.  Some may be welcomed, but they should never be regarded as compulsory.  Most originate in pious tyranny – when Muslims try to insist that their extra devotional practices or habits should be imposed on others as obligations. A Fatwah is a legal opinion or verdict given by a qualified jurist.  In western media the word is often misused to mean a death sentence (for example, the Fatwah against the writer Salman Rushdie) but it really means any clarification on any new or unprecedented case for which there is no clear directive either in the Qur’an or Sunnah.] Many conservative Muslims wish to keep the Ulama (plural of Alim, ‘teacher’) as a self-perpetuating class, confining the right to interpret and explain Islam to qualify the juris. They are opposed to the use of reasoning by unqualified persons.  Human rulers or interpreters may claim that they have the right or ability to change the law, but to a conservative this is not acceptable.  They maintain that human reason should only be used as a last resort in the understanding of the Will of God, employed only when the text are silent and if no medieval scholar has previously addressed the issue. Islamic modernists believe that closing the gate of ‘Ijithad’ has resulted in intellectual stultification and do not wish to slavishly bound to the interpretations of earlier Muslim Madhhabs. An example to be drawn from the time of the prophet Moses who had allowed the death sentence of stoning for adultery, and a few Muslims were executed by this means in this lifetime of the prophet.  Those Muslims were convicted because they had insisted themselves, four times, that they were guilty, and preferred the punishment in this life to facing God in the state of sin in the life to come. Islamic Law requires a very high level of proof (almost equal to beyond reasonable doubt) for the most serious crimes, which gives ample scope for defence procedure. Judges are expected to study all mitigating circumstances to the best of their ability and if there is doubt then the sentence must be commuted for a lesser punishment such as reprimand, threat, boycott, public disclosure, fines, working in repayment, seizure of property, confinement in the home or place of detention, and flogging. Generally speaking the Prophet taught mercy if it were possible, but could not be bribed or wheeled out of giving fair judgment.  In Shari’ah Law, properly applied, all people are equal, no matter how humble or rich and influential.  If people are not conscious of what they have done, or the balance of their mind is disturbed or they have not yet reached puberty (4:135).  Islamic justice should not be administered blindly but tampered with mercy following all the principles of fairness (4:135 and 5:8), and defendants are innocent until proven guilty (24:15and 39:7), giving them the right to be heard and to appeal (24:24, 82:11, 36:69-70), and have legal representation. Justice can only prevail when legal scholars take a broad approach to the law and adhere to its spirit rather than to its letter, so that it does not seem outrageous. This approach is consistent with the concept of Istislah, the practice of using legal reasoning to interpret the law in the light of Islam’s general principles of serving the public good. <a class="float_right" href="content_detail.php?id=9#">↑ top</a>

Saturday 18 Jan 2025