Make your own free website on Tripod.com
Home

ISLAMIC MEDICAL EDUCATION RESOURCES02

9910-THE LAW: BASIC CONCEPTS (MAFAHIM ASASIYYAT)

Lecture to 3rd year medical students at the Kulliyah of Medicine, International Islamic University, Kuantan on Saturday 30th October 1999

OUTLINE

1.0 BASIC TERMINOLOGY (MUSTALAHAAT ASASIYYAT)

A. Hakimiyyat

B. Shariat

C. Fiqh

D. Usul al fiqh

E. Siyasah shar'iyat

 

2.0 LEGAL RULINGS (AHKAAM)

A. Haakim

B. Hukm

C. Mahkum alaihi

D. Mahkuun fiihi

E. Huquuq & wajibaat

 

3.0 BASIS OF LEGAL RULINGS (ADILLAT AL AHKAAM)

A. Daliil

B. Naql/nass

C. Aql/ra'ay

D. Naql & aql: complimentary relations

E.  Bid'at

 

4.0 IJTIHAD

A. Nature and scope

B. Historical background

C. Validity (hujjiyat)

D. Conditions of ijtihad and mujtahid

E. New challenges

 

5.0 TAQLID

A. Nature and scope

B. Historical background

C. Mashru'iyat al taqlid

D. Types: taqlid al madhhab and taqlid al mujtahid

E. Advantages and disadvantages

 

1.0 BASIC TERMINOLOGY (MUSTALAHAAT ASASIYYAT)

A. HAAKIMIYYAT

Legislation is the prerogative of Allah alone, al haakimiyat li al laah. Hukm sharei is hukm of Allah (6:57). The Law is not confined to personal matters of marriage, divorce, or inheritance. The law provides a complete and comprehensive code for all aspects of life of individuals, families, and communities. It is explicit and specific on some matters but leaves many without explicit mention. The basic principles of the law cover those aspects that are not specifically mentioned.

 

Islam is surrender to the hukm of Allah. The hukm of Allah is the law that is just. Obeying humans in positions of authority, ulu al amr, is conditional on their following the law (4:59).

 

B. SHARIAT

SHARIAT AND LAW

Shariat has a wider meaning than fiqh; the term can be used to include both law and aqidat. In this manual we will use the term shariat exclusively to refer to law. Shariat is the law and we shall use the term law in subsequent discussions to refer to shariat. Dual use of both terms shariat and law leads to confusion.

 

DEFINITION OF SHARIAT

Shariat is defined as the corpus of rules regulate the life of the individual according to the will of Allah, majmu’at al andhimat allati tunaddhimu hayat al fard wifqa iradat llah. Shariat has also been defined as communication of Allah relating to the acts of humans as demand for actions, giving them a choice, or stipulating conditions, khitaab al llaah al muta'aliq bi af'al al mukallafiin bi al iqtidha aw al takhyiir aw al wadhau.

 

SHARIAT AND FIQH

These two terms are often confused. Shariat is the law while fiqh is the academic discipline that studies the law. Fiqh could also be referred to as knowledge of the law.

 

CHARACTERISTICS OF THE SHARIAT

The law is characterised by generality, umuum, comprehensiveness, shumuliyyat,  religious motivation in its application, al wazi’u al ddiini fi dhabt al sharia, and being a mercy to humans, rahmat. There are priorities within the law with necessities, dharuraat, having the highest priority followed by needs, haajiyat, and refinements, tahsinat.

 

PURPOSE OF THE LAW

The law seeks to establish a rational basis for the organization of society. It liberates humans from their whims and fancies. Whims and fancies lead to anarchy and contradictions in society. The law provides a uniform set of guidelines that everybody adheres to for the good of society.

 

CLASSIFICATION OF THE LAW: PRIVATE and PUBLIC

The law and all its provisions have a dual classification. The law is both private and public. It has fixed and variable or flexible parts. It can be both formal and informal. This duality of the law explains its versatility and flexibility.

 

SCOPE OF THE LAW

The law is comprehensive covering all aspects of human endeavor. It organizes the relation of the human to the creator, relations among fellow humans, and relations with the eco-system.

 

DEVELOPMENT OF THE LAW

The law is not static. There is continuous growth as solutions are sought for new challenges and problems. This growth is confined to the flexible part of the law. The fixed part of the law is the basis that can not be changed except by the law-giver and since there are no more revelations, no changes can occur by human agency. The fixed part however provides the principles and guidelines for development of the flexible part. The functions of the fixed part of the law are therefore: (a) provide law for running society (b) fix boundaries within which the flexible part can develop and grow (c) furnish principles of the law, qawaid al shariat (d) furnish purposes of the law, maqasid al shariat.

 

C. FIQH

DEFINITION OF FIQH

Fiqh is translated as jurisprudence, knowledge of the law. In popular usage in the Muslim world it means law but this is not strictly correct. Fiqh is the academic discipline of studying law. It is defined as knowledge of legal rulings pertaining to conduct that have been derived from their specific evidences, al ilm bi al ahkaam al shariat al amaliyyat al muktsabat min adilatiha al tafsiliyyat. The word knowledge here is used in the sense of ability to extract the law from its sources and not the passive knowledge of the muqallid.

 

SCOPE

The traditional or classical concerns of fiqh were: acts of worship, ibadaat; activities of normal living, aadaat; marriage and family life, munakahaat; transactions, mu'aamalaat, and criminal justice, jinaayaat. Development of the more complex industrial society has called for new ijtihad producing a whole new corpus of fiqh in the areas of trade, finance, insurance, and medico-legal applications (euthanasia, abortion, contraception, transplantation). Many areas of the traditional fiqh are also being rewritten in view of the new challenges. There are also areas of traditional fiqh that find little application is some communities today. This does not mean that they will not find application at some time in the future. The field of siyasah shariat has been neglected; it is expected to grow in the future.

 

NATURE

Fiqh is the academic discipline that studies the law, shariat. It is practical and shuns hypothetical arguments and situations. The aim is not study as an academic discipline but as source of practical guidance. It tends to state legal positions that anticipate actual problems that people and communities face. It is not exhaustive because new situations not previously catered for always appear and call for new ijtihad. Fiqh is written in a flexible way unlike the law codes that are very specific and inflexible. Many scholars have rejected the codification of fiqh because it will destroy not only the spirit of the law but will open the door for people who do not understand the underlying reasoning behind the rulings to start interpreting the law literally. Good fiqh can not be too technical. It must be presented in terms that the public should be able to understand with little effort.

 

LEGACY,  al turaath al fiqhi

It may be no exaggeration to say that of all classical Islamic sciences, fiqh has the most number of writings and scholars. Ordinary Muslims are more concerned with legal rulings that they would be concerned with hadith and Qur'an sciences.

 

D. USUL al FIQH

DEFINITION

Usul al fiqh is the methodology of the law. It is applied almost exclusively to the fixed part of the law. It is defined as the knowledge of the general principles and evidence used to extract the law from its recognized sources, al ilm bi al qawaid wa al adillat al aijmaliyyat al lati yatawasalu biha ila istimbaat al fiqh min masadiriha al mu'tabarat'. It has also been defined as principles by which the mujtahid arrives at legal rulings through specific evidence, 'al qawaid allati yatawassalu biha al mujtahid ila al ahkaam al shar'iyat al amaliyyat min al adillat al tafsiliyat.

 

SCOPE

Usul al fiqh being a methodological discipline provides analytic tools that are used in the law, fiqh; sciences of hadith, uluum al hadith; and sciences of the exigesis of the Qur'an, 'uluum al tafsir.

 

NATURE

Usul al fiqh is a methodological discipline. Extracting legal rulings, istinbat al ahkam, must follow a certain methodology. Usul al fiqh deals with the sources of law, their basis for validity, hujjiyat; grading, conditions, methods of extraction, and their principles.

 

SUBJECT MATTER

The subject matter of usul al fiqh consists of the following: the legal rulings, hukm sharae; evidence, daliil; method of extraction, turq al istinbat, and the extractor/mujtahid, al mustanbit nafsuhu.

 

FUNCTIONS/ROLES

Usul al fiqh helps the mujtahid extract legal rulings. It enables the non-mujtahid to understand how the mujtahid works. Usul al fiqh enables us to reach practical legal rulings, ahkaam shara'iyat 'amaliyyat. It explains the structure of the law. It explains the differences among the schools of law. It provides guidelines for ijtihad.

 

UNIQUENESS

The discipline of usul al fiqh is found only in Islam. No other religion has developed such a rigorous methodology to deal with its law.

 

HISTORY

Usul al fiqh was written much later than fiqh. Jurists before that used to make legal rulings without specifically mentioning the principles that they used. This does not mean that the principles did not exist. After the era of the followers, tabiun, Islam expanded and many new problems and challenges appeared on the scene. There was a lot of argument, jadal. The need arose for codifying rules of extracting rulings from the sources. Imaam al Shafei (150-204 AH) was the first to write about usul al fiqh. He was followed by Ahmad bin Hanbal. There were writings on usul al fiqh before Shafie but were scattered. It was however Shafi who first put everything together for the first time.

 

DIFFERENCE BETWEEN FIQH AND USUL AL FIQH

Usul al fiqh deals with general sources, adillat ijmaliyyat, whereas fiqh searches in specific sources, adillat juz'iyat. A difference must also be made between principles of the law, qawaid fiqhiyyat, and principles of the interpretation of the law, qawaid usuliyyat. The former are used in fiqh whereas the latter are used in usul al fiqh.

 

PATHWAYS TO USUL AL FIQH

There are three ways of approaching usul al fiqh: theoretical, empirical, and a combination of the two. The theoretical method derives principles from the sources of the law without reference to the actual practical experiences. The empirical method derives general principles from actual legal decisions by judges of the various schools of law.

 

The pioneers of the theoretical approach were: Imaam al Haramain Abd al Malik bin Abd al llah al Juwayni al Shafi (d. 311H) in his book ' al burhan', Abu Hamid al Ghazzali (d. 505H) in his book ' al Mustasfa' and Abu Hasan Muhammad bin Ali al Basri (d. 413H) in his book 'al mu'tamad'. The three books were summarized by Imaam Fakhr al Ddiin Muhammad bin Omar bin Omar bin al Hussain al Razi (d. 606H) in his book al mahsul fi ilm usul al fiqh.

 

The pioneers of the empirical approach were: Abu Bakr al Jassaas (d. 370H) in his book 'kitaab al usuul', al Dabuusi (340H) in his book 'Kitaab al usuul', and al Bazdawi (d. 482H) in his book 'kitaab al usuul'.

 

Most of the Shafite, hanafite, and hanbali scholars followed a third pathway that was a combination of the theoretical and empirical approaches described above. Pioneers of this approach were: al Sa'ati (d. 649H) in his book 'badiu al nidhaam', Sadr al Shariat (d. 747H) in his book 'al tanqiih', al Subki (d. 771H) in his book ' Taj al Ddiin', and Ibn al Hamaam (d. 861H) in his book ' al tahriir'.

 

E. SIYASAH SHAR'IYAT

DEFINITION

Siyasah shar'iyat means administration of justice by the executive according to the law, shariat. This includes execution of punishments, huduud and ta'azir. It can be siyasat aadilat or siyasat dhalimat. Siyasat shar'iat is part of the flexible law.

 

HUDUUD

These are fixed penalties that are Allah's right and so can not be waived or changed by the state after conviction. They are deterrents and are rarely applied because of their stringent conditions of evidence. Any doubts, shubhaat, invalidate the punishment.

 

TA'AZIR

Ta'azir is defined as discretionary punishment. It is a right of the individual and pardon is possible. Ta'azir punishments are at the discretion of the judge

 

2.0 CONSTITUENTS OF LEGAL RULINGS (AHKAAM SHARAIYAT)

A. THE LAW-GIVER, HAAKIM

Allah is the law-giver, al haakim huwa al laah. Legislation is with him, al hukm li al laah (6:57, 12:40, 12:67, and 6:62). He is the source of the law, Allah huwa masdar al shariat. The Prophets just convey the law. The mujtahid searches for the legal ruling from the law. It is Allah who orders the good, hasan, and forbids the bad, qabiih. The human intellect can sometimes be guided to what is right and what is wrong without the intermediary of prophets. The intellect is not perfect and can go wrong and make mistakes. This is because most human actions are not innately wrong or innately wrong; it depends on circumstances. It is only Allah who knows all the circumstances. Humans in their limited knowledge of circumstances can make mistakes. The intellect's discovery of a ruling can not therefore be a basis for condemnation of a human. Condemnation of a human for any infractions must be based on textual evidence.

 

B. THE RULING, HUKM

DESCRIPTION/DEFINITION

Hukm shari is one type of hukm. It differs from other types of hukm that are of 3 types: rational, experiential, and empirical observation. The term hukm is used in different differently the jurists, fuqaha, and the specialists in usul al fiqh, usuliyiin. For the usuliyiin hukm is Allah's communication, khitaab al llaah, whereas to the fuqaha it is the impact of Allah's communication, athar al khitaab.

 

There are several complementary definitions of hukm shari. They all contribute to an all-round understanding of the concept. The main definition is: Hukm is communication of Allah (Qur'an and sunnat) relating to actions of humans in three forms: injunction to carry out or leave acts;  choice (action and non-action are equivalent), or stipulation of the reason, condition, or preventive, al hukm huwa khitaab al allah (Qur'an & sunnat) al muatalliq bi af'aal al mukallafiin bi al iqtidha (talab al fi'il aw tarkuhu), aw al takhyiir (taswiyat baina al fi'il wa al tark), aw al wadhau (jaal al shay sababan, aw shartan, aw mania  li akhar). An alternative definition is: Hukm is is Allah's word relating to actions of individuals as requirements, choices, or stipulation, al hukm huwa khitaab al laahi al muta'alliq bi af'al al mukallafiin bi al iqtidha, aw al takhyiir, aw al wadhau).

 

STRUCTURE OF THE LAW

The structure of the law consisting of 4 constituents (haakim, hukm, mahkum fiihi, & mahkum alaihi) was first elaborated by Sadr al Shariat (d. 747H) in his book 'al tawdhiih.

 

CONSTITUENTS OF KHITAAB AL LLAAH

Allah's word consists of the Qur'an, sunnat, ijma, and other sources of legal rulings (ijma and qiyaas). Sunnat is whatever came from the prophet as legislative directives. Sunnat is derived from and explains the Qur'an.

 

CLASSIFICATION OF HUKM SHARAI

Hukm sharai can be classified as follows: injunctive, hukm takliifi; stipulatory, hukm wadhai; and optional, hukm takhyiiri. Hukm taklifi is primary whereas the other two are seconday to it. Hukm taklifi ordains an action, al iqtidhau. Hukm taklifi takes the following forms: wajib, manduub, haram, makruuh, mubaah, and aziimat & rukhsah. Hukm wadhai regulates the performance of actions by control of the causal chain or the pre-actions. It is not directly related to the action. Its relationship to the action is through regulation of the following: reason, sabab; condition, sharat; or prohibitor, maniu. Hukm takhyiri provides a choice in which undertaking an act and leaving it are equivalent. Hukm takhyiri can in essence be considered as part of hukm taklifi. The same act can change from one classification to another depending on the circumstances for example eating is prohibited in salat and is permitted elsewhere.

 

TYPES OF HUKM TAKLIFI

Obligatory, wajib: Wajib is the same as fardh. It can be restricted, muqayyad, or open-ended, mutlaq. There are several types of restrictions: restriction by time, zaman; restriction by amount or quantity of performance, taqdir; specification of the required performance or action, ta'ayin al matluub; specification of the person required to perform the action, al mutaalab bihi. Some obligations must be performed at a specified time whereas others have latitude in time. Delaying an act with a wide latitude of time is not blameworthy as long as it is performed before the expiry of the extended time period; it is however recommended to perform acts early. Expiry of the assigned time for the act does not nullify its obligation. It still has to be performed. If the amount of expected performance is not specified, any amount of work will suffice to discharge the obligation. Injunctions may be general like good treatment of parents, birr al walidayn, without specifying specific actions, in that case any good act discharges the responsibility. Individual obligations, fardh aini, can not be delegated.  Performance of a collective obligation, fardh kifai, by any member of the community absolves the rest from sin. However only those with the necessary competence can perform the collective obligations. The rest are not obliged even if they are members of the community.

 

Recommended, manduub: Manduub is also called sunnat, nafilat, mustahabb, tatawu'u, ihsaan, fadhiilat. The law-giver ordains it to be done without compulsion, talaba al shariu fi'iluhu biduun ilzaam. The manduub has got the following levels of excellence: confirmed, sunnat muakkada; not confirmed, sunnat ghayr muakkadat; fadhiilat, adab, and zawaid. The sunnat muakkadat is what the Prophet used to carry out continously and left it only on rare occasions. Every manduub is an intriduction to the wajib. An act can be manduub when considered in isolation like marriage. However it can be wajib if considered generically for example whole community can not choose not to marry.

 

Prohibited/unlawful, haraam: Intrinsically prohibited acts, muharram li dhaatihi, are prohibited on their own merit. Extraneously prohibited acts, muharram li ghayrihi, are prohibited for a reason extrinsic to the action. Some jurists consider an extraneously prohibited valid but accompanied by ithm. Others consider such an act as invalid. Committing the prohibited can either be kufr; a major sin, kabir al ithm, or a minor sin, saghir al ithm. The prophet mentioned the 7 destructive sins and al Dhahabi listed 70 major sins. Other jurists listed even more. Repetition of a minor sin turns it into a major sin. The original position for all human acts is permission, al asl fi al umuur al ibahat, and prohibition,haram, is the exception. Thus textual evidence is required to prove prohibition but is not required to prove permission. The situation is reversed in sexual matters in which the original position is haram, al asl fi al abdhai al hurmat. Permission is the exception and requires textual evidence. Only Allah can make something haram. Haram is prohibited because it is impure and harmful. An act that aggravates disease is haram. An act that leads to haram is also haram. An act that cures disease is wajib. For inconclusive matters what leads to bad or evil is makruh and what leads to good is manduub.

 

Disapproved/offensive/reprehensible, makruuh: An act is considered makruh when the law-giver enjoined humans to leave it without compulsion. It is better to avoid the makruh. The makruh is of two types: makruuh tahriiman and makruuh tanziihan. The former is based on definitive evidence, daliil qat'i, and is closer to haram. The latter is based on probable evidence, daliil dhanni. The makruh is an introduction to the haram and must therefore be avoided. An act that is makruh for a specific individual or situation can be haram if generic.

 

Rewards and punishments for various acts: The classification of acts can best be understood from the consequences of doing them or not doing them:

 

Classification of act

Action done

Action not done

Wajib

Reward

Punishment

Manduub

Reward

No punishment

Haram

Punishment

Reward

Makruuh

No punishment

Reward

 

Aziimat (strict application/general rules) & rukhsat (dispensation/relaxation/exemptions): Azimat is a general obligation, al azimat huwa hukm takliifi li al umuum. Rukhsat is an exemption due to a necessity, dharurat. Aziimat is general, kulliyat, whereas rukhsat is an exception, istithnau. Rukhsat is when what is normally forbidden is allowed or when an obligation is omitted. Rukhsat can take the following shapes: (a) permitting the forbidden, ibahat al muharram, under necessity, dharurat. (b) Permitting leaving the obligatory, ibahat tark al waajib. (c) Making exceptions on a general ruling, istithnau 'an al qaidat al aamat. The regal ruling on rukhsat is either mubaah or wajib. In the former the human is free to enjoy the exemption or not. Under the latter the human is obliged to make use of the dispensation even if he feels he need not do so such as eating dead human flesh when faced with starvation. Exemptions are always given for individuals and the not the whole community. For example an individual may be exempted from jihad or enjoining good, amr al ma'aruf, or forbidding evil, nahy al munkar, but no such exemption can be made for the whole ummat. In general it is better to be on the safe side by avoiding taking exemptions unless on very sure and valid grounds, ihtiaat tajannub al rukhas.

 

Validity, sihat & Legal defectiveness, butlan: Acts that are not valid under the law can be classified as null and void, batil, or irregular, fasid. An act is batil when a pillar, rukn, is defective. It is fasid when a condition, shart, is defective. In ibadaat, batil is the same as fasid. In mu'amalaat, an act deemed fasid can have some legal effect. It can become valid when the cause of the irregularity is removed. This is because the legal implications are from the consequences of the act and not the act itself.

 

TYPES OF HUKM WADHAI

Cause/reason, sabab: Sabab is the cause that triggers hukm taklifi. We talk of sabab, cause, leading to musabbab, effect. Sabab can be of two types: (a) it is an action by the individual and within his/her capacity of performance such as zina triggering the hadd (b) It is not an action by the individual and is not within his/her performance capacity such as sunset leading to salat al maghrib. There is an automatic relation between the sabab and musabab. When one occurs the other automatically occurs. The terms sabab or 'illat are used interchangeably and both refer to a reason or cause that can either be logically understandable by a human or not within human logic. The term sabab is used exclusively for causes that are not logically understandable.

 

Condition, prerequisite, shart: This is an act or state that is a pre-requisite for triggering the hukum taklifi with or without human effort. Shart differs from rukn. Rukn is part of the act whereas shart is external to the act. The shart can be classified as shart li al sabab for example witnesses at a marriage and shart li al musabbab for example ascertaining the death of the inheritee. The shart may be also classified as shart sharai if it is given by the law-giver or shart ja'ali when it is from humans such as the conditions written in contracts. Any conditions agreed on by the contracting parties are valid and are enforceable as long as they do not contradict the law, al muslimum ala shurutihim. Shart differs from sabab. The former is not automatically followed by the ruling. The latter is automatically followed by the action or ruling.

 

Preventor, maniu: This is a state or act that prevents triggering hukm taklifi even if the cause exists. It may be or may not be within the performance cpacity of the human. The maniu can act at the level of the ruling, maniu li al hukm or at the level of the sabab, maniu li al sabab. The example of the former is not enforcing qisaas on a father who kills his son. Example of the latter is not taking zakat from a person who has the quorum but has debts.

 

ONE TYPE OF HUKM IKHTIYARI

Hukm ikhtiyari is the permissible, mubaah or halal.  Mubaah is an act that has no prohibition and also no injunction. Doing it or leaving it is not associated with any punishment. There is reward for doing the mubaah with a good intention, thawab al mubaah bi al nniyyat al hasanat. There are advantages in avoiding the mubaah as part of renouncing the world, al zuhd fi al duniya. Halaal can be established in three ways: text, nass, stating that it is allowed; nass denying sin, ithm, junaah, or haraj in its performance; or using the principle that the original position is permission, istishaab asl al ibaahat. The original rule is permissibility unless there is specific evidence to the contrary, al asl fi al ashiya al ibaahat. Sexual activity is an exception for it the original rule is prohibition unless there is specific evidence to permit, al asl fi abdha al tahriim. Mubaah is restricted by frequency, time, place, and whether it is specific or generic. Over-indulgence in the mubaah until it becomes a habit, aadat, is considered makruh. An act may be mubaah at a certain time period and haram at another one. Acts that are halaal in the privacy of the home may be haram in the market place. Refusal of the mubaah in general is makruh. Marriage is mubaah for an individual who can choose to marry or not to marry. It is however obligatory for the community to maintain the tradition of marriage to ensure continuity of the society. Whereas contraception can be allowed for an individual couple, it is haram if all couples in the country practice it at the same time. When a mubaah is associated with a harm or evil, then it can be prohibited.

 

C. PERSON or SUBJECT, MAHKUM ALAIHI

DEFINITION

Mahkuum alaihi is the individual who is obliged to take action, al mukallaf. Validity of obligation, sihat al taklif, is based on intellectual competence, aql, which is the ability to understand the obligation. Intellectual competence comes under the doctrine of legal competence, ahliyat, that will be discussed in due course.

 

AHLIYYAT

Definition and classification: Ahlliyyat is the ability to acquire and exercise rights and obligations, capacity for acquisition, as well as accepting and performing obligations, capacity for execution. The former is called ahliyat al wujuub and the latter is called  ahliyat al adaa. Ahliyat al wujuub is under the concept of legal personality, dhimmat, which is acquired by being alive. The dead can have some ahliyat al wujuub but no ahliyat al adaa. Ahliyat al wujuub is considered in munakahat and muamalat. Ahliyat al adaa is considered in ibadaat, mualamaat, munakahaat, and jinayaat. Ahliyat can be complete, ahliyat kamilat, or deficient, ahliyat naqisat. The jurists talk about the concept of manaat with respect to ahliyat. The manaat of ahliyat al adaa is intellectual competence, aql, as indicated by attaining the age of majority; and discriminating ability, al rushd. The manaat of ahliyat al wujuub is being a human being, insaniyat.

 

Change of  ahliyyat with age: The following table shows the changes of legal capacity with age:

 

Period of Life

Ahliyat al wujuub

Ahliyat al adaa

Fetal Period

Limited/partial/defective

None

Birth to age of discrimination

Complete

None

Age of discrimination to puberty

Complete

Limited/partial/defective

Post-puberty

Complete

Complete

 

Factors that nullify legal capacity: Some factors are natural, samawiyat, and others are acquired, muktasabat. The natural factors are: minority, sighar; insanity, junuun;  idiocy, ittat; forgetfulness, nisyaan; sleep, nawm, loss of consciousness, ighma; severe illness, maradh al mawt; and death, mawt. The acquired ones are: ignorance, jahl; error, khat'a; jest, hazal; folly, safah; intoxication, sakr; and coercion, ikraah. The natural causes of deficient ahliyat do not affect ahliyat al wujuub.

 

D. The ACTION, MAHKUM FIIHI or MAHKUM BIHI

DEFINITION

Mahkum fiihi is the act relating to the hukm

 

THE CONDITIONS OF THE MAHKUM FIIHI

Knowledge: It is known to the individual, al mukallaf. Knowledge includes knowing what the act is and knowing its hukm sharai. However this knowledge need not be with the human. It can be potential knowledge that the human can acquire by asking others. What matters is that he can take measures to find out what the hukm sharai is

 

Performance capacity: It is within the performance capacity of the individual. Humans are not obliged or held responsible for acts that are instinct for example anger, sex. They are however accountable for the preliminaries to those acts and the consequences. Ability to perform has to be considered also from the aspect of difficulty of the task, mashaqqat. Humans are obliged where the difficulty is ordinary, mashaqqat aadiyat. They are not obliged when the difficulty is extraordinary, mashaqqat ghair adiyat. There cases of extra ordinary difficulty when humans are obliged when there is necessity such as jihad. The human is however not to look for difficulty under the false illusion that the law-giver will then be more pleased. The aim is the task and not the difficulty.

 

E. RIGHTS and OBLIGATIONS, HUQUUQ & WAJIBAAT

HUKM TAKLIFI AND RIGHTS

Huquuq & wajibat are under mahkuum fiihi but are here discussed separately to emphasize their importance. Each hukum taklifi is related to certain rights, huquuq. In case of infraction of the rights, the conditions for indictment are: maturity, buluugh; intellectual competence, ‘aql, voluntary commitment of a crime, and knowledge that the action is illegal. Medical/forensic evidence can be produced in court to assist in conviction. Many physiological and pathological conditions modify the exercise of the rights as will be explained in units 13 and 14.

 

RIGHTS OF ALLAH, HAQQ AL LAAH

The rights of Allah can be classified as follows: (a) Pure worship such as iman, salat, zakat, saum, and hajj. (b) pure punishment such as the huduud. Humans can not interfere in the execution of huduud once conviction is pronounced because they are rights of Allah. (c) Imperfect punishment like denying an inheritor from inheritance for being a factor in the death of the deceased even unintentionally. (d) Between worship and punishment like the fines, kafarat. (e) Worship with an element of financial liability like sadaqat al fitr. (f) Financial liability with an element of worship like the tenth, al ushr. (f) Financial liability with an element of punishment such as kharaj (g) one fifth of the booty and mineral wealth given to the state.

 

The most important of huquuq al allah are physical acts of ibadat: taharat, salat, saum, hajj, zakat, & jihad. Ibadat is the essence and purpose of human creation. There are 3 apsects of ibadat: psychological, physical, & spiritual. There are 3 situations for ibadat: fulfilment in its time, ada; performance after its time, qadha; and repeating if there was a mistake, i’adat. Ibadat can be valid, sahih, if performed perfectly fulfilling its pillars and conditions. It can be invalid, fasid, if its pillars are not fulfilled. There are several conditions for obligation of an individual to perform physical acts of ibadat, shurrut al takliif: attaining the age of maturity or majority, buluugh; intellectual competence, ‘aql, ie not insane or sleeping; physical ability, ie has no temporary of permanent disability; presence of the mind, hudhuur al dhihn, and being a Muslim, al Islam.

 

RIGHTS OF HUMANS, HUQUUQ AL ‘IBAAD

Most of the rights discussed in law are rights of humans. Examples of such rights are: conjugal rights (sex, mu’asharat, wife not to fast without husband consent), family rights (silat al rahm, tarbiyat al awlad, nafaqat), duties of brotherhood,(return greetings, visit the sick, follow funeral processions, accept invitations, respond to sneezer), proper discharge of public functions, and property rights.

 

Ta'azir is carried out for rights of humans and can be effected even when there is shubhat on the other hand huduud that are haqq al llaah can not be carried out when there is the slightest degree of shubuhat. Repentance can not nullify the rights of humans, al taubat la yubtilu huquuq al ghayr. The individual human has rights on himself, huquuq al nafs, like eating, drinking, peventing disease, health maintenance, seeking treatment for disease, and rest. These are part of what is called today human rights. However human rights can never take precedence over Allah's rights.

 

HAQQ AL LAAH WA AL 'ABD

In cases where the rights are conjoint, the rights of Allah may predominate eg hadd al qadhaf or the rights of the human may predominate eg qisaas. The human for example can not forgive in the case of qadhf once the verdict has been returned but can do so in case of homicide.

 

HAQQ AL SULTAN/ HAQQ AL SULTANAT:

This is not the same as haqq al laah

 

RIGHTS OF THE COMMUNITY

 

RIGHTS OF THE ENVIRONMENT:

 

3.0 BASIS OF LEGAL RULINGS, usuul al ahkaam, adillat al ahkaam

A. DALIIL

Islam and evidence, burhan: The Qur'an teaches Muslims not to accept any assertion without evidence, daliil or burhan. The intellectual heritage of Muslims has been shaped by this great injunction. Evidence-based knowledge.  And evidence-based action are distinguishing features of Islamic society. Similarly the law also relies on evidence. Evidence is such a central theme in the law that scholars have developed methodological tools for critical examination of evidence in order to determine whether it can be accepted.

 

Text and intellect, nass & 'aql: There have been alternation between two ends of the spectrum: nass & ra'ay or  naql & aql. These dictated three approaches to solving legal problems: (a) the mutakalimuun who used logical reasoning, (b) those  who relied on the original text, nass, and (c) a method between the two. 

 

Daliil: Daliil is what is used to reach a legal ruling, al daliil ma yumkin al wusuul bihi ila al hukm al sharei. Daliil does not contradit the conclusions of a healthy intellect, al adillat la tunafi al aql al saliim. The final source of all adillat is the Qur'an. The sunnat also derives from the Qur'an in 2 ways: The Qur'an ordained working by the sunnat and the sunnat explains the Qur'an. The grades of priority of adillat is: Qur'an, then sunnat, then ijma, then qiyaas. It is the persuasive power of the daliil and its quantity that matters.

 

Classification of daliil, taqsimaat al adillat. There are several schemes of classification. Daliil, as evidence on which a legal ruling is based, is of two types: daliil ijmali & daliil tafsiili. The former is general whereas the latter is specific. Daliil can be classified as naqli or 'aqli. The adillat naqliyat are the Qur'an and sunnat and the 2 are the basis for ijma, madhhab al sahabi and sharau man qablana. The Qur'an and sunnat are also referred to as primary sources whereas all the others are secondaru sources. The adillat 'aqliyyat are: qiyas which is the basis for istihsan, masalih mursalat, and istishab. The Qur'an and sunnat are unanimously accepted by all. Ijma and qiyas are accepted by a preponderous majority. The following are disputed: urf, istishaab, istihsaan, masalih mursalat, shara man qablana, madhhab al sahabi. The daliil can be qatai or dhanni.  Qatiu al dalaalat is definitive and clear-cut.  Ddhaniu al dalaalat  is probabilistic. The dhanni is rejected if it differs from the qatui. In the same vein jurists distinguish betwee qatiu al wuruud & dhaniu al wuruud. The disputed sources are referred either to the text, nass (Qur'an, sunnat, and ijma based on text) or to qiyaas (istihsan & istislah).

 

Daliil can be classified as comprehensive, ijmaliyat, or specific. The Qur'an, sunnat, ijma, and qiyaas are comprehensive; all the rest are specific. Daliil can also be classified as generic, daliil kulli/daliil ijmali or specific, daliil tafsili

 

B. NAQL/NASS

Nass is revelation, wahy, only to the prophet.

 

C. AQL/RA'AY

Islam does not recognise the existence of natural law. The laws of Allah can not be discovered by reason independent of other sources. This is because human reason can not consistently tell bad from good.

 

D. NAQL & AQL: COMPLIMENTARY RELATIONS

The intellect can extend the law to situations that the nass is silent about. Daliil sharai does not contradict the intellect.  Understanding nass requires the intellect.  The intellect can not be right unless it is based on nass. The intellect always follows the nass in legal rulings.

 

E.  BID'AT

Bid'at: There is no general ruling against anything new. Each new must be evaluated. New things in 'aqiidat and ibadat are generally forbidden though there are exceptions such as salat al taraweeh and adhan on Friday. Innovations in other areas as long as they do not contradict the law are permitted.

 

4.0 IJTIHAD

A. NATURE and SCOPE

DEFINITION OF IJTIHAD

Ijtihad is the effort to discover the law using usul methodology. It is defined technically as maximum effort to discover legal rulings by extraction from the sources, al ijtihad huwa badhl al mujtahid was'ahu fi talabi al ilm bi al ahkaam al shar'iyat 'an tariiq al istinbaat.

 

NATURE OF IJTIHAD:

Ijtihad is not a source of law. It is a tool for discovering the law.

 

SCOPE OF IJTIHAD

Ijtihad is undertaken only on matters for which there is no definitive textual evidence, daliil qatai. Ijtihad in null and avoid if there is specific text, la ijtihad ma'a al nass

 

CONTINUITY OF IJTIHAD:

The concept of closure of the door of ijtihad, insidad baab al ijtihad, is wrong. Ijtihad is not limited in time or place. It will continue until the last day. There was no time in the history of Islam when ijtihad was completely stopped although there were calls for this. However the output of mujtahidiin has varied ay different epochs in Islamic history. Between the 5th and 14th centuries of hijra, the physical, social, and political situation of the Muslim world did not change radically and the existing legal provisions could accommodate issues that arose. The technological and information revolution of the 15th century is a new challenge that is forcing the door of ijtihad to open even wider as jurists grapple with new realities.

 

ADVANTAGES OF IJTIHAD

Islam is said to be suitable for every place and every time, al Islam swaalihu li kulli zamaan wa makaan. Ijtihad is one of the tools that assure this. It is the basis of the ability to deal with and solve new problems that arise.

 

DISADVANTAGES OF IJTIHAD:

There is no innate disadvantage in ijtihad; it can however be misused by the ignorant and powerful self-interests. If the ignorant indulge in ijtihad, they will reach false conclusions, mislead themselves as well as others. Powerful stake-holders in society may try to influence the process of ijtihad to reach conclusions that support their interests. Instead of serving the law, ijtihad could become a cover to to bend the law to the whims and fancies of humans.

 

MODES OF IJTIHAD

Ijtihad uses four basic modes:  (a) literal interpretation (b) qiyaas al illat (c) maqasid al shariat (d) qawaid al shariat

 

DIFFERENCES AMONG MUJTAHIDIIN

The differences among the muhtahidiin are not in the fundamentals of the law but in its branches. This is usually due to differences in the narrations that each uses to reach conclusions. Any difference among the jurists on a matter does not imply that it is permissible.

 

CHANGE OF IJTIHAD:

A mujtahid can change his views when he gets new evidence or has a new insight and interpretation of the evidence already adduced. It is prohibited for a mujtahid, out of pride, to refuse changing to a better opinion.

 

CANCELLATION OF IJTIHAD:

The opinion of one mujtahid can not cancel that of another one. All opinions are expressed and the followers have the freedom to choose whichever is more convincing.

 

METHODS OF IFTA

Ifta can be by word, by action, and by iqraar. The mufti should follow the middle course, wasat, between the hard, shiddat, and the easy, rukhsat. However for himself he can take the more difficult options. A mujtahid can make an honest mistake, zallat. A mistake by a non mujtahid is zaygh. A mistake by a mujtahid does not decrease his status, khatau a mujtahod la yanqisu qadrahu.

 

B. HISTORICAL BACKGROUND

IJTIHAD BY THE PROPHET

Instances of the use of ijtihad are recorded of the prophet. This, in the light of the continuing revelation, is proof for validity, hujjiyat of ijtihad.

 

IJTIHAD BY THE COMPANIONS

With the exception of Omar Ibn al Khattab, few companions undertook ijtihad during the life-time of the prophet. Because they could ask him about new issues that arose. After his passing away, many undertook ijtihad.

 

IJTIHAD IN THE LATER GENERATIONS

Ijtihad among the followers

Ijtihad by later generations

 

CLOSURE OF IJTIHAD

At the height of the fitnat, some scholars called for closure of the door of ijtihad for fear of corruption of the law. The door was however never completely shut. There have always been jurists undertaking ijtihad at all times.

 

NEED FOR NEW IJTIHAD

Growth of the law and dealing with new situations requires that the process of ijtihad be continued.

 

C. VALIDITY (Hujjiyat)

The hadith of Mu'adh Ibn Jabal being sent by the prophet to Yaman is the best evidence for the validity of ijtihad. The prophet asked him how he would make rulings. He said he would use the Qur'an, if he did not find a ruling in the Qur'an he would use the sunnat, and if he did not find the ruling in the sunnat he would make ijtihad. The prophet approved all what Mua'dh said.

 

D. CONDITIONS OF MUJTAHID

DEFINITION OF A MUJTAHID

Various terms are used to refer to the mujtahid: ahl al hill wa al iqd, ahl al ra'ay wa al ijtihad, 'ulama al ummat. The mujtahid is one who can extract legal rulings from their specific sources, adillat al tafsiliyyat. The term faqiih and mujtahid are synonymous. Both refer to one who can extract legal rulings from their specific evidences. A person who gets legal rulings from books of fiqh is a muqallid and not a mujtahid. A person who does not know the sources of differences, mawadhiu al ikhtilaf, has not yet reached the degree of mujtahid.

 

CONDITIONS OF MUJTAHID, shurut al mujtahid

Knowledge of the Arabic language

Knowledge of the Qur'an

Knowledge of the sunnat

Knowledge of usul al fiqh

Knowledge of ijma

Knowledge of the purposes of the law, maqasid al shariat

Innate ability to undertake the intellectual processes of ijtihad

 

E. NEW CHALLENGES

 

11.1.5 TAQLID

A. NATURE and SCOPE

DEFINITION

Taqlid is accepting a proposition without looking at the evidence, qubuul al qawl bila hujjat

 

B. HISTORICAL BACKGROUND

 

 

C. MASHRU'IYAT al TAQLID

VALIDITY/RULING ON TAQLID, hukm al taqlid:

The original position is to condemn taqlid, al asl dhamm al taqlid. However those who can not consult the original sources directly can rely on the knowledgeable, ahl al dhikr.

 

D. TYPES: TAQLID al MADHHAB and TAQLID al MUJTAHID

TAQLID AL MADHHAB AND TALFIQ

Do you stick to your imam always or look for the easiest?. Consistence in madhhab leads to the necessity to follow only one madhhab. You can follow another imaam in a necessity like touching women in hajj. You can follow another madh'hab which is more strict for greater precaution, ahwat. Picking and chosing what is easy in each madhhab is discouraged but is not haram because the law is flexible. The muqallid can choose between alternative opinions of mujtahiduun by tarjiih and not by his whims and fancies. The muqallid should ask the knowledgeable only about matters he is ignorant of. 

 

ADVANTAGES and DISADVANTAGES

Professor Omar Hasan Kasule Sr. October 1999