Introduction to islamic family law
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Introduction to islamic family law

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    Introduction to islamic family law Introduction to islamic family law Document Transcript

    • LAW 605 - Family Law I (Islamic) 5/12/2013azrinhafiz/march-july 2013 1LAW 605 – Family Law I (Islamic)Introductionazrin hafiz / march-july 2013 1Why Islamic family matters is governingby Islamic family law in Malaysia?• Refer to 9th Schedule of State List of FederalConstitution:“Islamic law to include Islamic law relating tosuccession, testate and intestate, betrothal, marriage,divorce, dower, maintenance, adoption,legitimacy…”• Only applicable to Muslimazrin hafiz / march-july 2013 2Sources of Islamic law in Malaysiai. al-Quran = verbatim words of Allah revealedto Rasulullah through angle Jibrilii. as-Sunnah = a saying or an act or tacitapproval or disapproval ascribed to Rasulullahiii. Ijma’ = consensus of juristsiv. Qiyaas = deductive anologyv. Legislation = Act/Enactment/Ordinanceazrin hafiz / march-july 2013 3
    • LAW 605 - Family Law I (Islamic) 5/12/2013azrinhafiz/march-july 2013 2Two groups of IslamSunni SyiahDifferences between thesetwo groups:i) Political differences,especially in the election ofCaliph. Sunni in favoured ofCompanions, and Syiah infavoured of Rasulullahdescendants.ii) Acceptance of religioustexts: Syiah only accept thehadith narrated byRasulullah and his familymembers and reject thehadith narrated byCompanions.Widely practise in Iran,Iraq, Yemen, Jordanand PakistanSyiah is disallowed inMalaysia because mostof the rules contravenewith rules in Shafi’i –to avoid confusion.azrin hafiz / march-july 2013 4Four Orthodox Schools In SunniHanafi Maliki Shafi’i Hanbali- Founded byImam AbuHanifah.- Practised inTurki, Egypt,India, Pakistan,Syria, Jordanand Iraq- Named afterImam Malik.- Practised inMuslimcountries innorthern Africae.g Algeria,Morocco andTunisia.- Named afterImamMuhammad binShafie.- Widelypractised inSouth East Asiae.g Thailand,Malaysia andBrunei- Founded byImam Ahmadbin Hanbal.- Practisedpredominantlyin Saudi Arabiaand Qatar, andminoritycommunities inSyria and Iraq.azrin hafiz / march-july 2013 5Principles developed by Imamsi. Urf - custom, or knowledge, of a given societyii. Istihsan - preference for particular judgmentsiii. Istislah - public interestazrin hafiz / march-july 2013 6
    • LAW 605 - Family Law I (Islamic) 5/12/2013azrinhafiz/march-july 2013 3Authenticity of HadithSahih• has a continuous isnad, made up of narrators of trustworthy memory fromsimilar authorities, and which is found to be free from any irregularities(i.e. in the text) or defects (i.e. in the isnad)."Hassan• its source is known and its narrators are unambiguous.Da’if• where there is discontinuity in the isnad or one of a narrators having adisparaged character.Maudu’• the text of which goes against the established norms of the Prophetssayings or its narrators include a liar.• aka forged hadith.azrin hafiz / march-july 2013 7azrin hafiz / march-july 2013Reasons forConflictingRuling betweenVarious Schoolof Thoughts1.Word meaning of theal-Quran and Hadith2.Narrations ofhadith3.Admissibility ofcertain principles4.Methods ofQiyas81.Wordmeaningoftheal-QuranandHadithShared literal meaningLiteral and figurative meaningGrammatical meaningazrin hafiz / march-july 2013 9
    • LAW 605 - Family Law I (Islamic) 5/12/2013azrinhafiz/march-july 2013 4a) Shared literal meaning= a few words with more than one literalmeaning.azrin hafiz / march-july 2013‫ﻗﺭﺀ‬ /Qur/“Divorced women shouldwait three quroo’…”surah al-Baqarah (2):228According to Hanafi, itmeans menses# Divorce is not finalizeuntil 3rd menses have ended.According to Hanbali,Malik and Shafi’i, it meansthe time of purity betweenmenses# Divorce becomesfinalized as soon as hermenses has started.10b) Literal and figurative meaning= a word with literature and figurative meaning.azrin hafiz / march-july 2013‫ﻠﻤﺱ‬ /Lams/Literal meaning:Touching by thehand(s) or comingin contact of twoobjectsFigurative meaning:Sexual intercourse“or you touched (laamastum) women andcannot find water, then tayammum fromclean Earth”Surah an-Nisa (4): 43 andSurah al-Maaidah (5): 611• Jurists opinion:azrin hafiz / march-july 2013Lams means sexual intercourse.If a man intentionally or accidentallytouched a woman, then both of thenwould lose their state of wudhu’.Wudhu’ would only be broken if thetouch were pleasurable disregardintended or notHanafiShafi’iMaliki12
    • LAW 605 - Family Law I (Islamic) 5/12/2013azrinhafiz/march-july 2013 5c) Grammatical meaningGrammatical constructions in Arabic which wereambiguousazrin hafiz / march-july 2013‫ﺇﻠﻰ‬ /elaa/Means: “to” or “up to but not including”13azrin hafiz / march-july 2013The fast is continuedup to Maghrib ie thebeginning of night,but does not includethe night itself..: no dispute in interpretationHanafi’s student,Ibnu Daudinterpreted thisverse to mean “upto but not includingthe elbows)The four Imamsall ruled that theverse meant “upto and includingthe elbowsvs14a.Availability ofHadithHadith narrators didnot reach theCompanions due tothe fact that theysettled in variousregions throughout theIslamic empire.Duration betweenfoundation of mazhab(8-9 AD) and thecompilation of hadith(9-10 AD).b.Weak Narrationsof HadithJurists madee rulingbased on Hadith Da’ifbecause unaware ofunreliability of thosehadith .Some jurists took aposition that a weakhadith was to bepreferred to theirQiyaas.azrin hafiz / march-july 20132. Narrations of Hadith15
    • LAW 605 - Family Law I (Islamic) 5/12/2013azrinhafiz/march-july 2013 6c.Conditions for theAcceptance of HadithHanafi :hadith must be wellknown before beingregarded as admissibleevidence.Maliki:Hadith must not contradictwith the customs of theMadeenites in order to beadmissibled.Resolution of TextualConflict in HadithSome jurists chose path of“Tarjeeh” which meantgiving preference to someHadith while rejectingothers on the same topics.Some jurists chose path of“Jama’” which involvedcombining such hadithusing one in a generalsense.azrin hafiz / march-july 2013 163. Admissibility of Certain Principles• There were Imams developed a number ofcontroversial principles/rulings. As a result,they became source of differences amongjurists.azrin hafiz / march-july 2013 17Ijma’ ofgenerations afterCompanionsReliance onMadeenites’custom by MalikiHanifah’sIstihsaanMaliki’s IstislaahCompanions ‘opinionsazrin hafiz / march-july 2013Shafi’i questionedon its occurenceHanbali rejectedit outrightRejected bymajorityof juristsDisallowed by Shafi’ias being too independent ofthe Quran, Sunnah and Ijma’Shafi’i felt thatThey had to beaccepted on legalmatters, whileothers felt that itwas only reasoningon their part andnot binding onlater generations18
    • LAW 605 - Family Law I (Islamic) 5/12/2013azrinhafiz/march-july 2013 74. Method of Qiyas• Some jurists narrowed down the scope of qiyasby setting a number of pre-conditions for itsuse, while others expended its scope.• As this principle based on opinions, there wereno hard and fast rules, thus a wide range ofdifferences developed.azrin hafiz / march-july 2013 19References:1. Abu Ameenah Bilal Philips (2006),Evolution-of-Fiqh. International IslamicPublishing House.2. http://www.islamic-awareness.org/Hadith/Ulum/asb7.html3. http://en.wikipedia.org/wiki/Sahih#Sahih4. http://en.wikipedia.org/wiki/Hadith_terminologyazrin hafiz / march-july 2013 20Thank you for your attentionazrin hafiz / march-july 2013 21