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Muslim Legal
System
Aijaz Ahmed Jatoi
• Usul al’Fiqh
• The discipline of usul al-fiqh is extremely powerful and
deals with a host of issues that are concealed from our
view when we try to carve out a simple classification like
one given below . A detailed study reveals many issues
that are deemed important today by legal philosophy .
Nevertheless, Islamic jurisprudence , when viewed in the
meaning of usu al-fiqh , or what we find in usul al-fiqh
,covers three things
• 1. The formal structure of Islamic law: the formal
structure of Islamic law is studied by Muslim jurists under
the title “the hukm shar”i.” this conceptual structure of
Islamic attempts to answer the following Questions.
• What is Islamic law ?
• What is the nature of rules in this legal system ?
• How many kinds of rules are there and how do they unite
with each other to give rise to the Islamic legal system?
• What is legal capacity and how does it interact with the
operation of rules?
• What kind of right underlie the various kinds of rules?
• How are these rights secured through the legal
framework and machinery of Islamic law?
2. The source of Islamic law:
• Islamic law is derived from its source.
• The primary sources are those that are unanimously
accepted by all the schools and all jurists as the
fundamental source of Islamic law .
• In addition to these there are the secondary source of
Islamic law, which are unanimously accepted by all
schools or al the jurists. The discipline of usu al-fiqh
does two things
• (a) It defines and describes the primary and
secondary sources of Islamic law liting the various
assumptions made by the schools of law
• (b) It instructs the would-be jurists about the
methodology of interpretations i.e how to interpret
these sources.
3. Ijtihad and taqlid or the Methodology
and the Methodology of Fiqh
• Most writters discuss the methodology of the jurists as if
ijtihad were the only methodology . This is not the
whole truth . Most of jurist in this the schools of law
were not mujtahids . Yet they too had a methodology
for interpreting and extending the law.
• The mijtahid is independent jurists who is qualified
to derive the law directly from the sources of Islamic
law, like the Quran and Sunna.
• The methodology of mujtshid is called ijtihad , while that
of the faqih is called taqlid.
• Fiqh
• Islamic jurisprudence, when viewed in the meaning of
fiqh, covers the substantive and procedural law
determined by the jurists . When we say “determined
by jurists” , we mean that the jurists focused on those
laws that could either be derived from the texts or were
laws that were closely linked to the texts trough strict and
determined methods interpretations. Some of the areas
of the law were left to ijtihad of ruler. The rulers did
legislate separately on certain areas of the law in
according's with their knowledge and interpretation
of texts. The these areas are described briefly in the
sections these manuals found of fiqh complied by
jurists. As below
1. Worship (Ibadad)
• The rules of rituals purifications, prayer ,
pilgrimage , fasting, zakat (poor-due), war
(qital) and some others forms of worships are
dealt with under this heading. Most of these
rulers deal with the rights owed to Allah by the
individuals alone or by the community as a
whole.
2. Issues (Mu’amalat)
• This is a very broad category . Some jurists include
crimes and torts in this category. This are deals with
property , contracts, business organization , security
of debts and insolvency, preemption , marriage,
divorce, gift, bequests ,trust (waqfs) , inheritance ,
and guardianship. We find some modern jurists using
terms to identify areas like marriage, divorce and
related matters. They do this to equate thses
conceptions with what is called personal law.
3. Limit and offences against human
body (Hudud and Jinayat)
• Major offences like unlawful sexual intercource (zina),
theft (sariqa), robbery and brigandage (hirabah),
false accusation of unlawful sexual intercourse
(qadhaf). Drinking of khumr (prohibition) and other
matters fall under , are called the limit or hudud laws.
Offences against the human body and tort are called
jinayat. The term jinayat is also used for torts when the
offence falls under ghasb (usurpation
• , misappropriation) and itlaf (destruction of property).
• The Administration of Justice according
to the Shari’ah ( Siyasah Shar’iyyah)
• Administration of justice is called siyasah shariyyah in
Islamic law . In its wider meaning it includes the
courts of judge (Qadi) as well, and would thus cover
the work of jurists .
• Siyasah shariyyah in the narrow sense means the area
of the law that jurists left to ruler to develop and
adapt according to the changing times and
circumstances.
• Under this heading we discuss the mazilm courts and
the offences falling under their jurisdiction.
• Regulation of Markets , taxation, traffic, hijacking,
terrorism, corruption, accountability all fall in under
the siysah shar’iah of the ruler.
• The principles of Fiqh ( Qawa’id
Fiqhiyyah)
• The term qawa’id fiqhaiyyah or principle of fiqh is a
broad term that includes flexible general principle that
give rise to rules and other sub-principle as well as
to legislative presumption. These principle and
presumption have to be “read-in” by the interpreter
when settling the law or deciding cases.
• In Islamic law there are two broad methodology of
interpretation ijtihad and takhrij. The first is a
legislative function, while the second corresponds
more with the theories of adjudication in which the
judge and lawyer are involved. this discilpline principle
provides the primary tool for methodology of takhrij.
• Islamic Justice Through the
purposes of the Shari’ah ( Maqasid al-
Shari’ah)
• This is area of ultimate principle tht highlight the
spirit of the shar’i rules. These purposes serve as
values that regulated govern discretions justice in Islam
law. The Study of maqsid al-shariah is rightly considered
by many as an independent field of study . The credit
for developing the discipline goes to al-Ghazali, but
major contribution have been made by later jurists,
especially the Spanish jurist al-Shtibi in his four
volume work called al-Muwafaqat.
• Commands (Ahkam) al-Quran and
Tafsir
• The discipline of ahkam al-Quran is related directly to
Islamic and jurisprudence. In fact, it deals with what
we may called the applied law. In usul al-fiqh, we find
the theoretical foundation of the science of
interpretation and the assumptions made by the
different schools about different sources of Islamic law.
• The best known books on the subject re by Imam al-
shafii himself and by Abu Bakr al-Jassas. When the
interpretation is expanded to include not only the
legal texts, but all verses of Quran , title given to the
subject is tafsir . Most of the well known tafsir have
been written by by jurists.
• The discipline of the schools of law
are not sects but systems of Interpretation
• A variety of opinion within the schools does not
represent disunity or weakness, it is ,in fact the real
strength of the system. A multiplicity of opinion in
no way indicates discord or tension within the
Muslim Community. On other hand , it indicates an
unparalleled richness and variety a system of law
that accommodates within its fold a larger distinct
races, cultural and geographical regions.
• The above explanation about the multiplication of
opinion in Islamic law doesn't answer the question as to
the different schools appeared in the first place. The brief
answer to this question is that the schools of law are not
sects. They are system of interpretation based on
methodological foundations.
• Islam has fully developed and
mature legal system
• The features has given Islamic law a built-in and
indestructible features of adaptability, a feature that is
vital for the survival of every living organism.
• Islam is universal religion and covers many things that
are not, and cannot be, dealt with by a system of law.
The religious norms provides the general morality on
which the law are based on. In fact, these laws are
sometimes deeply intertwined with the moral norms.
Nevertheless, the Islamic legal system is a nature and
developed system of law. It is unique system and no
other religion has been able to offer a legal systm lke it.
Thanks

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Islamic juris lect 4

  • 2. • Usul al’Fiqh • The discipline of usul al-fiqh is extremely powerful and deals with a host of issues that are concealed from our view when we try to carve out a simple classification like one given below . A detailed study reveals many issues that are deemed important today by legal philosophy . Nevertheless, Islamic jurisprudence , when viewed in the meaning of usu al-fiqh , or what we find in usul al-fiqh ,covers three things • 1. The formal structure of Islamic law: the formal structure of Islamic law is studied by Muslim jurists under the title “the hukm shar”i.” this conceptual structure of Islamic attempts to answer the following Questions.
  • 3. • What is Islamic law ? • What is the nature of rules in this legal system ? • How many kinds of rules are there and how do they unite with each other to give rise to the Islamic legal system? • What is legal capacity and how does it interact with the operation of rules? • What kind of right underlie the various kinds of rules? • How are these rights secured through the legal framework and machinery of Islamic law?
  • 4. 2. The source of Islamic law: • Islamic law is derived from its source. • The primary sources are those that are unanimously accepted by all the schools and all jurists as the fundamental source of Islamic law . • In addition to these there are the secondary source of Islamic law, which are unanimously accepted by all schools or al the jurists. The discipline of usu al-fiqh does two things • (a) It defines and describes the primary and secondary sources of Islamic law liting the various assumptions made by the schools of law • (b) It instructs the would-be jurists about the methodology of interpretations i.e how to interpret these sources.
  • 5. 3. Ijtihad and taqlid or the Methodology and the Methodology of Fiqh • Most writters discuss the methodology of the jurists as if ijtihad were the only methodology . This is not the whole truth . Most of jurist in this the schools of law were not mujtahids . Yet they too had a methodology for interpreting and extending the law. • The mijtahid is independent jurists who is qualified to derive the law directly from the sources of Islamic law, like the Quran and Sunna. • The methodology of mujtshid is called ijtihad , while that of the faqih is called taqlid.
  • 6. • Fiqh • Islamic jurisprudence, when viewed in the meaning of fiqh, covers the substantive and procedural law determined by the jurists . When we say “determined by jurists” , we mean that the jurists focused on those laws that could either be derived from the texts or were laws that were closely linked to the texts trough strict and determined methods interpretations. Some of the areas of the law were left to ijtihad of ruler. The rulers did legislate separately on certain areas of the law in according's with their knowledge and interpretation of texts. The these areas are described briefly in the sections these manuals found of fiqh complied by jurists. As below
  • 7. 1. Worship (Ibadad) • The rules of rituals purifications, prayer , pilgrimage , fasting, zakat (poor-due), war (qital) and some others forms of worships are dealt with under this heading. Most of these rulers deal with the rights owed to Allah by the individuals alone or by the community as a whole.
  • 8. 2. Issues (Mu’amalat) • This is a very broad category . Some jurists include crimes and torts in this category. This are deals with property , contracts, business organization , security of debts and insolvency, preemption , marriage, divorce, gift, bequests ,trust (waqfs) , inheritance , and guardianship. We find some modern jurists using terms to identify areas like marriage, divorce and related matters. They do this to equate thses conceptions with what is called personal law.
  • 9. 3. Limit and offences against human body (Hudud and Jinayat) • Major offences like unlawful sexual intercource (zina), theft (sariqa), robbery and brigandage (hirabah), false accusation of unlawful sexual intercourse (qadhaf). Drinking of khumr (prohibition) and other matters fall under , are called the limit or hudud laws. Offences against the human body and tort are called jinayat. The term jinayat is also used for torts when the offence falls under ghasb (usurpation • , misappropriation) and itlaf (destruction of property).
  • 10. • The Administration of Justice according to the Shari’ah ( Siyasah Shar’iyyah) • Administration of justice is called siyasah shariyyah in Islamic law . In its wider meaning it includes the courts of judge (Qadi) as well, and would thus cover the work of jurists . • Siyasah shariyyah in the narrow sense means the area of the law that jurists left to ruler to develop and adapt according to the changing times and circumstances. • Under this heading we discuss the mazilm courts and the offences falling under their jurisdiction. • Regulation of Markets , taxation, traffic, hijacking, terrorism, corruption, accountability all fall in under the siysah shar’iah of the ruler.
  • 11. • The principles of Fiqh ( Qawa’id Fiqhiyyah) • The term qawa’id fiqhaiyyah or principle of fiqh is a broad term that includes flexible general principle that give rise to rules and other sub-principle as well as to legislative presumption. These principle and presumption have to be “read-in” by the interpreter when settling the law or deciding cases. • In Islamic law there are two broad methodology of interpretation ijtihad and takhrij. The first is a legislative function, while the second corresponds more with the theories of adjudication in which the judge and lawyer are involved. this discilpline principle provides the primary tool for methodology of takhrij.
  • 12. • Islamic Justice Through the purposes of the Shari’ah ( Maqasid al- Shari’ah) • This is area of ultimate principle tht highlight the spirit of the shar’i rules. These purposes serve as values that regulated govern discretions justice in Islam law. The Study of maqsid al-shariah is rightly considered by many as an independent field of study . The credit for developing the discipline goes to al-Ghazali, but major contribution have been made by later jurists, especially the Spanish jurist al-Shtibi in his four volume work called al-Muwafaqat.
  • 13. • Commands (Ahkam) al-Quran and Tafsir • The discipline of ahkam al-Quran is related directly to Islamic and jurisprudence. In fact, it deals with what we may called the applied law. In usul al-fiqh, we find the theoretical foundation of the science of interpretation and the assumptions made by the different schools about different sources of Islamic law. • The best known books on the subject re by Imam al- shafii himself and by Abu Bakr al-Jassas. When the interpretation is expanded to include not only the legal texts, but all verses of Quran , title given to the subject is tafsir . Most of the well known tafsir have been written by by jurists.
  • 14. • The discipline of the schools of law are not sects but systems of Interpretation • A variety of opinion within the schools does not represent disunity or weakness, it is ,in fact the real strength of the system. A multiplicity of opinion in no way indicates discord or tension within the Muslim Community. On other hand , it indicates an unparalleled richness and variety a system of law that accommodates within its fold a larger distinct races, cultural and geographical regions. • The above explanation about the multiplication of opinion in Islamic law doesn't answer the question as to the different schools appeared in the first place. The brief answer to this question is that the schools of law are not sects. They are system of interpretation based on methodological foundations.
  • 15. • Islam has fully developed and mature legal system • The features has given Islamic law a built-in and indestructible features of adaptability, a feature that is vital for the survival of every living organism. • Islam is universal religion and covers many things that are not, and cannot be, dealt with by a system of law. The religious norms provides the general morality on which the law are based on. In fact, these laws are sometimes deeply intertwined with the moral norms. Nevertheless, the Islamic legal system is a nature and developed system of law. It is unique system and no other religion has been able to offer a legal systm lke it.