Principle of Niyyah


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Principle of Niyyah

  4. 4. INTRODUCTION  Comprehensive maximINTRODUCTION  has implications for at least seventy different branches PHASES OF of knowledge-comprises a third of all knowledge. NIYYAT  Discussed in various areas including devotional matters, commercial transaction and crimes. EVIDENCES  Play an important role in differentiating action (withSIGNIFICANCE exception of several act e.g divorce, ruju‟) POSITION RELATED MAXIMS 4
  5. 5. DEFINITION  Intention (niyyah) is the will directed towards anINTRODUCTION action  E.g. : A fires a shot at B with intention to kill him = PHASES OF NIYYAT willed the action and intended to kill that person  An act of human being is judged in the light of the EVIDENCES intention or the purpose it seeks to have an effect - PHASES and hadithSIGNIFICANCE  “Man ata firasyahu wa huwa yanwi an yaquma yusalli minallail faghalabathu ainuhu hatta yusbihu POSITION kutiba lahu ma nawa”  (al-Nasa‟ie) RELATED MAXIMS  (Whoever goes to bed, he put an intention (niyyat) to wake up early to perform qiyamullail, but overslept till dawn, he will get what he intends…) 5
  6. 6. 5 PHASES OF NIYYATINTRODUCTION al-Hajiz the first impact of the intention upon the heart. PHASES OF NIYYAT al-Khatir EVIDENCES where intention permeates the heart where a person is uncertain between theSIGNIFICANCE al-Nafs thought of doing the thought and that of refraining there from POSITION where the intention to commit the acts al-Hamm overshadows the thought of refraining there RELATED from MAXIMS al-‟Azm where the intention is so solidified by the will and the determination to implement the act 6
  7. 7. MEANING  Whatever we do in this world is based on ourINTRODUCTION intention/niyyah which will affect the hukm of the PHASES OF deed whether it is sah/batal/haram NIYYAT  e.g intention to get married EVIDENCES  In the hereafter, we will be judged according to our intentionSIGNIFICANCE  i.e: if we ikhlas we will get reward and if we riya‟, then we will be punished POSITION RELATED MAXIMS 7
  8. 8. EVIDENCES  Al-QuranINTRODUCTION  ..those who wish for returns from worldly affairs, We PHASES OF will give them to you, and those wish for return in NIYYAT hereafter, We will give the share of hereafter”  Ali Imran: 145 EVIDENCES  Hadith:SIGNIFICANCE  “Deeds are judged by intention and every person is judged according to his intention” POSITION  (narrated by Umar r.a.)  RELATED  “There is no deeds to those who have no intention” MAXIMS  (narrated by Anas r.a.) 8
  9. 9. EVIDENCES  The MejelleINTRODUCTION  Art 2 = Matters are determined according to PHASES OF intention NIYYAT  Effect of transaction depends on intention EVIDENCES  Illustration:  A person finds anything on highway or anywhere elseSIGNIFICANCE with the intention of restoring it to the owner, his conduct is in order/correct POSITION  If intends to keep as his own property = wrongful appropriation of property RELATED  Same act but different intention MAXIMS  Judgment is based on the intention 9
  10. 10. IMPORTANCE OF INTENTIONINTRODUCTION Differentiate between Differentiate between one PHASES OF ibadah and adah (custom kind of ibadah with the NIYYAT of personal habit). other EVIDENCES • Some actions can be • Example: Solat, fasting, considered as personal hajj and umrah, zakatSIGNIFICANCE habits if the actions are and sadaqah/nazar etc. performed without POSITION proper intention to do it as form of ibadah. RELATED • Example: Taking rest in MAXIMS the masjid vs. iktikaf 10
  11. 11. SIGNIFICANCE OF INTENTION  Intention becomes important only if coupled withINTRODUCTION actions PHASES OF  An act depends on intention/purpose NIYYAT  Plays a crucial role in differentiating :  a murder from wrongful killing EVIDENCES  Punishment between death penalty and compensation  husband may utter to conclude the occurrence or otherwise ofSIGNIFICANCE a divorce  Intention of husband being considered by court before POSITION pronouncement of divorce  valid contracts RELATED MAXIMS  Intention to create legal relation  Not simply social/domestic agreement  If fail to understand = recourse to outwards meaning 11
  12. 12. POSITION OF INTENTION  The position of intention is in the heart, not enoughINTRODUCTION to utter it without having intention in heart. PHASES OF  Uttering the intention is not requirement – no proof NIYYAT from Prophet (s.a.w) or sahabah EVIDENCES  Shafie‟:  Recommended to pronounce the intention in the heartSIGNIFICANCE  Hanbali:  Uttering the intention is not recommended and consider POSITION it as form of bid‟ah RELATED  Maliki: MAXIMS  Uttering the intention is permitted – but better not to utter it 12
  13. 13. RELATED MAXIMS  Where intention and actions are different, judgmentINTRODUCTION must be based on intention to the extent it may be PHASES OF ascertained NIYYAT  Some related application of the maxim : EVIDENCES  In Contract  In IbadahSIGNIFICANCE  Real vs. metaphorical meaning  Explicit vs. implicit meaning POSITION  Absolute vs. restricted speech RELATED  Objective vs. Mean MAXIMS 13
  14. 14. RELATED MAXIM - IN CONTRACT INTRODUCTION  In contracts , effect is given to intention and meaning, and not words and forms (Art 3) PHASES OF NIYYAT  Where there are differences between expression and meaning , consideration is given to the meaning and EVIDENCES not literal wording  Example :SIGNIFICANCE  Contract with remuneration = contract for hire; if no remuneration, contract is for loan POSITION  If 2 persons conclude a contract apparently a loan, but in consideration for rental provided for the contract, the RELATED contract would be regarded as contract for loannas MAXIMS wording for the contract suggest  Hiwalah vs. Kafalah 14
  15. 15. RELATED MAXIM - IN CONTRACT  Correspondence resembles conversation (Art 69)INTRODUCTION  If difficult to ascertain intention, look at outwards PHASES OF connotation NIYYAT  Hadith = We give judgment on the basis of the EVIDENCES apparent, God takes care of inward intention  Matters difficult to discover truth are judgedSIGNIFICANCE according to the obvious proof concerning outward connotation POSITION  Knowledge of intention is important to determine RELATED correct ruling , if fail to go to the intention, have to MAXIMS recourse to outwards meaning 15
  16. 16. RELATED MAXIM - IN IBADAH  No intention is needed in the ibadat which is notINTRODUCTION „adah (traditional/custom) PHASES OF  e.g. reciting quran, doa, zikir NIYYAT  as opposed to eating, playing, sitting, reading books EVIDENCES  Intention is needed in the ibadah which have similaritiesSIGNIFICANCE  e.g. zakat and sadaqah POSITION RELATED MAXIMS 16
  17. 17. RELATED MAXIM - REAL VS. METAPHORICAL  Types of speech :INTRODUCTION  Real PHASES OF  Expressions used in its proper place in the language or NIYYAT common usage  Lion refers to that of animal EVIDENCES  Metaphorical  Expressions not used in their proper linguistics placeSIGNIFICANCE  E.g. Lion to describe a brave man POSITION  Derelict  That which has passed out of use and therefore cannot RELATED give any meaning MAXIMS 17
  18. 18. RELATED MAXIM - REAL VS. METAPHORICAL  In principle, words shall be construed according toINTRODUCTION their real meaning (Art 12) PHASES OF  E.g. : A makes a waqf of his house for benefits of his NIYYAT sons. If A has sons and grandsons at time of his death, the property goes to his son only EVIDENCES  Real word of son does not include grandsonSIGNIFICANCE  When real meaning cannot be applied, the metaphorical sense may be used (Art 61) POSITION  E.g. : A has no sons but only grandsons, the word “sons” refers to his grandsons as it is impossible to RELATED apply the literal meaning; the grandsons are entitled to MAXIMS the waqf 18
  19. 19. RELATED MAXIM - REAL VS. METAPHORICAL  If no meaning can be attached to a word it isINTRODUCTION disregarded altogether (Art 62) PHASES OF  Must still give some meaning to the words rather NIYYAT than disregard them EVIDENCES  If still cannot be ascertained i.e. still no meaning even after using real and metaphorical sense, thenSIGNIFICANCE the word will be disregarded -  A alleged B is his son whereas B is older than A POSITION RELATED MAXIMS 19
  20. 20. RELATED MAXIM - REAL VS. METAPHORICAL  Conflict between real and metaphorical meaning,INTRODUCTION and the former is derelict - give effect to PHASES OF metaphorical meaning. NIYYAT  Must consider custom of a place to determine EVIDENCES metaphorical meaning  Custom must be continuous and predominantSIGNIFICANCE POSITION RELATED MAXIMS 20
  21. 21. RELATED MAXIM - EXPLICIT VS IMPLICIT  No attention shall be paid to inferences in the face of anINTRODUCTION explicit statement (Art 13) PHASES OF  Explicit words/expressions NIYYAT  Clear, definite meaning EVIDENCES  Stronger status than implied connotation  E.g. :SIGNIFICANCE  A leaves property with shopkeeper B , B is aware and keeps silent = property in his custody - B declines to POSITION keep, no contract of custody RELATED MAXIMS 21
  22. 22. RELATED MAXIM - EXPLICIT VS IMPLICIT  Permission may be given explicitly or byINTRODUCTION implication (Art ) PHASES OF  Implicit : NIYYAT  Speech with hidden intention EVIDENCES  Requires explanation for proper understanding  Minor of perfect understanding enters into businessSIGNIFICANCE with knowledge of his guardian who does not prohibit the minor = considered has obtained POSITION permission by implication RELATED  Example: MAXIMS  Buying food at canteen without saying a word; offer and acceptance exist; a valid contract 22
  23. 23. RELATED MAXIM - EXPLICIT VS IMPLICIT  In obscure matters the proof of a thing stands in theINTRODUCTION place of such a thing (Art 68) PHASES OF  Status of silence NIYYAT  No effect/consequences EVIDENCES  Effective only supported by facts of case  Hence, no statement is charged to a man who keepsSIGNIFICANCE silence, but silence is tantamount to a statement where it is necessary for speech POSITION RELATED MAXIMS 23
  24. 24. RELATED MAXIM - ABSOLUTE VS RESTRICTED  The absolute is construed in its absolute sense, providedINTRODUCTION there is no proof of restricted meaning either explicit text or by implication (Art 64) PHASES OF NIYYAT  Absolute Speech  Without restrictions/qualifications EVIDENCES  ExampleSIGNIFICANCE  A appoints B as his agent to sell his house without specifying the price POSITION RELATED MAXIMS 24
  25. 25. RELATED MAXIM - ABSOLUTE VS RESTRICTED  Restricted SpeechINTRODUCTION  Accompanied with specification/description PHASES OF  Example NIYYAT  Subject to certain price of sale or other limitation EVIDENCESSIGNIFICANCE POSITION RELATED MAXIMS 25
  26. 26. RELATED MAXIM-OBJECTIVE VS MEAN  The ends does not justify the meansINTRODUCTION  (Al-ghayah la tubarriru al-wasilah) PHASES OF NIYYAT  Good intention cannot be accepted if the means are contradict to Islam EVIDENCES  Example:  Donate the money gain from the win of lottery to theSIGNIFICANCE needy. Welfare Lottery, amal-based concert. POSITION RELATED MAXIMS 26
  27. 27. RELATIONSHIP BETWEEN AN ACT AND INTENTION 1. Act/ policies that are good in themselves and are actuated byINTRODUCTION good objectives/ intentions  Ideal PHASES OF  Example: Government to promote public welfare through zakat and charity NIYYAT funds 2. Act/ policies that are not good in themselves but are resorted for EVIDENCES commendable objectives  Need to make an amendmentSIGNIFICANCE  Example: Mobilizing funds for charity by means of games or by floating interest-bearing loans and bonds 3. Act/ policies that are actuated by objectionable intentions but POSITION lead to good results  Need to make an amendment RELATED  Example: Nationalization or rationalization of the products and industries MAXIMS and avoidance of incongruent growth of industry 4. Objectionable intentions with objectionable policies  Rejected  Example: Smuggling of wine for use by Muslims 27
  28. 28. APPLICATION  Surety ship (kafala) implies coextensive liability whileINTRODUCTION transfer of debt (hawala) implies discharge of the principal debtor. If a contract of transfer of debt (hawala) PHASES OF is made with the condition to hold the principle debtor NIYYAT liable in case the transferee fails to discharge the debt, contract even though termed as a contract of hawala will EVIDENCES be treated as contract of kafala. Similar will be the treatment of a contract of kafala in case the principleSIGNIFICANCE debtor is discharged after contract of surety ship is signed. POSITION  In case government issues a license to setup an industry, or start a trade or import some merchandise it will not RELATED lawful to sell the license because the object of the license MAXIMS was the authorization to set up an industry or trade or purchase of goods but not to make the license itself an article of trade 28
  29. 29. APPLICATION  If the banks declare their policy of financing their clientINTRODUCTION on non-interest bases it would be necessary to do so and not merely continue the same practice and seeking to PHASES OF rationalize it in Islamic terms by changing the relevant NIYYAT nomenclature such as calling it “buy-back” or “mark- up” EVIDENCES  It is not permissible for the bank to practice Mushara and Mudharaba in such a way as to ensure a fixed rateSIGNIFICANCE of return for the bank while the liability of bearing loss or an uncertain amount of remaining profit is tranferred POSITION to the working partner  If government allots plots of land to individual with the RELATED MAXIMS object of providing accomodation for themselves the allottee will be allotting the implicit terms of the agreement by converting it into a commercial or industrial site or by treating it as merchandise 29