Ehsan Kabir Solicitor is describing the Primary and Secondary Sources of Islamic Law. Ehsan Kabir’s passion and motivation have been the key ingredient that has led to the success of his Family Law firm. Mr. Kabir’s strong foundations allow him to build a niche a practice that aims to provide advice and assistance to everyone with a legal enquiry.

1. Primary and Secondary Sources of Islamic Law
Ehsan Kabir Solicitor

2. Sharia
• Body of Islamic religious law.
• Means "way" or "path to the water source."
• Legal framework within which the public and private aspects of life
are regulated for those living in a legal system based on Islamic
principles of jurisprudence and for Muslims living outside the
domain.
• Deals with many aspects of day-to-day life, including politics,
economics, banking, business, contracts, family, sexuality, hygiene,
and social issues.

3. Primary Sources of Islamic Law
• Qur'an - Central religious text of Islam. Muslims believe the Qur’an to be the book of
divine guidance and direction for mankind, and consider the original Arabic text to
be the final revelation of God.
• Sunnah - literally means “trodden path,” and therefore, the sunnah of the prophet
means “the way and the manners of the prophet”. Terminologically, the word
‘Sunna’ in Sunni Islam means those religious achievements that were instituted by
the Islamic prophet Muhammad during the 23 years of his ministry and which
Muslims initially obtained through consensus of companions of Muhammad, and
further through generation-to-generation transmission.

4. Secondary Sources of Islamic Law
• Consensus among Muslims jurists
• Analogical deduction or Al-Ra'y
• Independent reasoning
• Benefit for the Community
• Custom

5. Siyar (International Law)
• Written at the end of the 8th century by Muhammad al-Shaybani, an
Islamic Jurist.
• Dealt both public and private International Law.
• General Subjects: Islamic ethics, Islamic economic jurisprudence and
Islamic military jurisprudence.

6. Other Contemporary Subjects in Siyar
• Law of treaties
• Treatment of diplomats, hostages, refugees and prisoners of war
• Right of asylum
• Conduct on the battlefield
• Protection of women, children and non-combatant civilians
• Contracts across the lines of battle
• Use of poisonous weapons
• Devastation of enemy territory

7. Islamic Rulings on Warfare
• Stop, O people, that I may give you ten rules for your guidance in the battlefield.
• Do not commit treachery or deviate from the right path.
• You must not mutilate dead bodies.
• Neither kill a child, nor a woman, nor an aged man.
• Bring no harm to the trees, nor burn them with fire, especially those which are
fruitful.
• Slay not any of the enemy's flock, save for your food.
• You are likely to pass by people who have devoted their lives to monastic services;
leave them alone.

8. Major Islamic Principles Adopted by Common Law
• Equity and Good Faith - precursor to the concept of pacta sunt
servanda in civil law and international law.
• Made major contributions to international admiralty law.

9. • Muslim sailors being "paid a fixed wage “in advance” with an
understanding that they would owe money in the event of
desertion or malfeasance.
• Consistent with Islamic conventions" in which contracts should
specify “a known fee for a known duration”
• In contrast to Roman and Byzantine sailors who were "stakeholders
in a maritime venture, in as much as captain and crew, with few
exceptions, were paid proportional divisions of a sea venture’s
profit, with shares allotted by rank, only after a voyage’s successful
conclusion."

10. • Muslim jurists also distinguished between "coastal navigation, or
cabotage," and voyages on the “high seas” and
• Shippers are made "liable for freight in most cases except the
seizure of both a ship and its cargo.“
• Islamic law also "departed from Justinian’s Digest and the Nomos
Rhodion Nautikos in condemning slave jettison“
• Islamic Qirad - precursor to the European commenda or limited
partnership.

11. International Law distinguished with Municipal Law
• Monist: No distinction since there is oneness or unity of all law; that international law
cannot be comprehended without the assumption of a superior legal order from
which the various systems of municipal law are, in a sense, derived by way of
delegation.

12. To the Dualist, who believes in the dichotomy of the law: Yes,
there are distinctions, to wit:
• ML is issued by a political superior for observance by those
under its authority, while IL is not imposed but adopted by
states as a common rule of action;
• ML consists of enactments of law-making authority, while IL
is derived from such sources as international customs,
conventions or general principles of law;

13. • ML regulates the relations of individuals among themselves or
with their own states, whereas IL applies to the relations inter
se of states and other international persons;
• Violations of ML are redressed through local administrative
and judicial processes, whereas questions of IL are resolved
through state-to-state transactions ranging from peaceful
methods like negotiations and arbitration to the hostile
arbitrament of force like reprisals and even war; and
• Breaches of ML entail individual responsibility, while
responsibility for infractions of IL is usually collective in the
sense that it attaches to the state and not to its nationals

14. Incorporation v. Transformation
• Doctrine of Incorporation: It is a universally accepted postulate that, with or without
an express declaration to this effect, states admitted to the family of nations are
bound by the rules prescribed by it for the regulation of international intercourse. By
this doctrine, international law is binding ex proprio vigore (by its own force).
• Doctrine of Transformation: The generally-accepted rules of international law are not
per se binding upon the state but must first be embodied in legislation enacted by the
lawmaking body and so transformed into municipal law.

15. In the Philippines, what doctrine is being followed?
• The doctrine of incorporation as expressed in Sec. 2, Art. II, 1987
Constitution: “The Philippines renounces war as an instrument of
national policy, adopts the generally accepted principles of international law
as part of the law of the land, and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity with all nations” [underscored is the
so-called ‘incorporation clause]

16. • In fact, these rules and principles were accepted by the two
belligerent nations, the United States and Japan, who were
signatories to the two Conventions.
• Such rules and principles, therefore, form part of the law of our
nation even if the Philippines was not a signatory to the
conventions embodying them, for our Constitution has been
deliberately general and extensive in its scope and is not confined
to the recognition of rules and principles of international law as
contained in treaties to which our government may have been or
shall be a signatory.

17. • Indeed, the power to create a military commission for the trial
and punishment of war criminals is an aspect of waging war.
• And, in the language of a writer, a military commission has
jurisdiction so long as a technical state of war continues. This
includes the period of an armistice, or military occupation, up to
the effective date of a treaty agreement. (Cowles, Trial of War
Criminals by Military Tribunals, American Bar Association Journal,
June, 1944)

18. Thank You