Equity in islam (amended version) (Topic 1)

Bashiran/Sharifah
Zubaidah/Nor
Asiah/Zuraidah

02/25/15 Bashiran/S.Zubaidah / Nor
Asiah/Zuraidah Islamic equity
2
Said Ramadhan
•“The door is wide-open to the adoption of
anything of utility, of whatever origin, so long as
it does not go against the texts of the Al-Quran
and the Sunnah”
Islamic Law: Its Scope and Equity, 2nd
Ed.,
1970, p. 71

3
Basic differences between English
equity and Equity in Islam
• English equity derived their rules from the
natural laws
• Islamic Equity finds its roots / sources in Al-
Quran and Sunnah.
• Concept of Equity in Islam is wide and
flexible but holds firm in the provisions of
Al-Quran and Sunnah

4
Maqasid Al-Shari’ah
• Legal reasoning must take
5 principle objects of
Shariah:
protection of religion,
protection of life,
protection of reason’
Protection of lineage and
protection of property.

5
• Equity can only be practised if someone
has equipped knowledge and proper
understanding of
– The concept of Islam
– Its tawheed
– The objectives of Shariah
– The concept of Khilafah
– The concept of accountability to Allah s.w.t.

6
• A Qadhi can only exercise Equity after he has
exerted himself to search for the answers in Q & S
• He does not ‘dispense justice according to
‘Considerations of Individual expediency’ Or
according to his Conscience
The role of Majlis Fatwa/ Judges

7
• We have sent down thee the Book in truth, that
thou might judge between men, as guided by
Allah: so be not used as an advocate by those who
betray their trust
• Surah An-Nisa 4 : 105
• Is not Allah the wisest of judges?
Surah at-Tin 95: 8
• The word of your Lord does find its fulfilment in truth
and in justice: none can change His words. Surah
Al-An’am 6: 115
• Surah Ash-Syura 42: 15-16
• Justice in Islam covers the entire aspects of life and
is absolute

8
• Say: My Lord has enjoined justice
Surah Al-’Araf 7: 29
• “Surely Allah enjoins the doing of justice…
Surah an-Nahl 16: 90
• We verily sent Our Messengers with clear proofs,
and sent down with them the Book and the
balance that men may conduct themselves with
equity/justice: And We sent down Iron…”
• Surah Al-Hadid 57: 25
• ‘Al-Mizaan’ –Balance
• -3 things are mentioned- The Book , the Balance
and Iron

9
Hadith:
•
The best of your
religion is that
which brings ease
to the people.

10
What is Justice?
The term ‘Justice' comprises the following
To place things in their rightful places
To give everyone his rights and what he deserves
To be impartial in one’s judgments and decisions
To sat the truth
To be balanced in one’s views and judgments
To avoid bias and prejudice
To avoid oppressing and tyrannizing others

11
Forms of Justice
Justice may take different
forms:
£ Justice in making decisions
and judgements
£ Justice in sayings
£ Justice as a state of mind,
i.e. to avoid wrong and
unsubstantiated suspicions
£ The way of treating people

12
Equity in Islam
• Secondary sources of the Shari’ah have also been
used by the jurists to achieve equity in Islam.
• Secondary sources employ IJTIHAD to come to a
legal decision
• The exercise includes
• 1) Ijma’
• 2) Qiyas
• 3) Maslahah Mursalah (Istislah)
• (Maliki principle)
• 4) Istihsan (Hanafi Principle)

13
WHAT IS IJTIHAD
• Ijtihad is the cornerstone of Islamic Order
• Muadh ibn Jabal states that when Prophet sent him to
Yemen, he was asked:
• “What will you do if a matter is referred to you for
judgement?” Muadh said:’I will judge according to the
Book of Allah?’ The Prophet further asked: ‘What if
you find no solution in the Book of ALLAH?’

14
• Muadh said: Then I will judge by the Sunnah
of the Prophet.’
• The Prophet asked ‘And what if you do not
find it in the Sunnah of the Prophet?
• Muadh replied, ‘Then I will make ijtihad to
formulate my own judgement.’
• The prophet patted Muadh’s chest and said;
: ‘Praise be to Allah Who has guided the
messenger of His Prophet
to that which pleases Him and His
Messenger.”

15
• .
• During Saydina Umar tenureship, there were
occassions where Saydina Umar dared to differ
from the decision of the Prophet whenever he
found a basis for his own ijtihad.

16
• Advice of Saydina Umar to Abu Musa
when the latter was appointed as a
judge. “Judgement is to be passed on
the basis of express Quranic imperatives
or established Sunnah.”
• He further said that, “Make sure that you
understand clearly every case that is
brought to you for which there is no
applicable text of the Al-Quran or as-
Sunnah. Yours then is the role of
comparison and analogy, so as to
distinguish similarities in order to reach a
judgement that seems nearest to justice
and best in the sight of God.”

17
Ijma
• Verbal noun of the Arabic
word ‘ajma” which has two
meanings :
a) To determine
b) To agree upon something
• Known as consensus of
opinion
• The unanimous agreement of
the mujtahidun of the Muslim
community of any period
following the demise of
Propher Mohamad s.a.w on
any matter.

18
• Ijma applies to all juridical (shara’i),
intellectual(aqli), customary(urf) and
linguistic (lughawi) matters
• Plays a crucial role in the
development of Shari’ah.
• Ensures the correct interpretation
• Of Quran, sunnah and the legitimate
use of ijtihad.
• Enhances the authority of rules which
are speculative origin
• Represents authority.

19
Qiyas
• Literal meaning: measuring or
ascertaining the length, weight
or quality of something
• Comparison with a view of
suggesting equality or similarity
between two things.
• Technically : the extension of a
Shari’ah value from the original
case or asl to a new case.since
the latter has the same
effective cause as the former.
• Means of developing a new
law

20
Essential Requirements of Qiyas
1) The original case or asl
2) The new case (far’) on which
a ruling is wanting
3) The effective cause
(i’llah)which is an attribute of
the asl and it is found to be in
common between the original
and the new case.
4) The rule (hukm) governing the
original case which is to be
extended to new case

21
Example : Al Maidah 5:90
• Explicitly forbids wine
drinking which extended
by analogy to narcotic
drug.
1) Asl : wine drinking
2) Far’ : taking drugs
3) ‘Illah : the intoxicating
effect
4) Hukm : prohibition.

22
ISTIHSAN
• Literally : to deem something
preferable
• Derived from the word hasuna :
good and beautiful.
• Juristic sense : a method of
exercising personal opinion
(ra’y)in order to avoid any
rigidity and unfairness that
might result from literal
application of the law
• It is part of the Shariah and
embodied in the Shariah

23
• Enforcing the existing law may
prove to be detrimental in
certain situations
• Departure from it may the only
way of attaining a fair solution
to a problem.
• Istihsan offers a means of
avoiding hardship and a
solution which harmonious with
the higher objectives of
Shari’ah.

24
Example
• During the ruling of Umar,
the second caliph, he did
not enforced the hadd
penalty of the amputation
during the widespread of
famine
• The established rule was set
aside on grounds of public
interest, equity and justice

25
• Hanafi jurist Abu Hasal al
Karkhi defines istihsan as a
principle which authorizes
departure from an
established precedent in
favour of a diff ruling for a
stronger reason
• Authority: 34: 18
» 39: 55
Hadith: No harm shall be
inflicted or tolerated in
Islam

26
• Similar to Qiyas Khafi (hidden
analogy) :in which exception is
made to the general rule for
the sake of equity and justice
on the basis of nass (textual
evidence), approved custom,
dharurah or maslaha or public
interest (Kamali – 254-257)
• Majority of Ualama’ has agreed
on the essential validity of
istihsan.

27
• A branch of Ijtihad
• It functions : to make Shariah
adaptable and accomodative to the
changing needs of society
• Popular among the Hanafi,
Maliki and Hanbali jurists

28
Masalih Mursalah
• Literal : benefit or interest
• Refers to unrestricted
public interest
• Al Ghazali : Maslahah
consists of considerations
which secure a benefit or
prevent a harm. Among
the basis of Maslahah :
protection of life, intellect
(aql), lineage and property

29
Examples
• Issue of currency
• Establishment of prisons
• Imposition of kharaj or a kind of agricultural
land tax, compilation of Quran by Abu
Bakar.
• Umar held his staff responsible for abuse of
public office,
• distribution of authentic Quran by Uthman
and destroyed the copies of variance texts
• Usul jurists agreed that Istislah or Masalih
mursalah is not a proof in respect of
devotional matters (ibadah) and for certain
respect of specific Shariah injunctions like
law of inheritance

30
• Authority:
• Surah Yunus 10:7
• Surah Hajj 22:78
• Surah al Maidah: 5:6
• Hadith: No harm shall be
inflicted or tolerated in Islam
• “ The Prophet only chooses the
easier of two alternatives so
long as it did not amount to sin”

31
• “ Allah loves to see that His
Concessions (rukhsah) are
observed, just as He loves
to see that His strict laws
are observed”
• -no unnecessary rigour is
recommended in the
enforcement of Ahkam
and that the Muslim should
avail of the flexibility and
concession of Shariah

32
• Pre-requisite of Maslahah
• Maslahah must be genuine
• Maslahah must be general (for
all)
• Must not be in conflict with
clear nass
• -Maslahah is also a major
instrument for the muslim jurists
to meet the new situations in
the changing world

33
• Justice based on Al-
Quran and Sunnah
• Accountability to
Allah swt.
• Justice in the Al-
Quran and Sunnah.
• Justice, next to piety
• The concept of
Balance
• Based on Natural law and
man-made law.
• Justice based on human
reasoning and
interpretation
• Justice in the Common
Law
• Before 1873, 2 system of
administration, after that 1
The Differences

34
• Administered by the
same. Qualified
person
• Judicial precedent –
binding but can
change if it is based
on Islamic principles
• Based on Divine law
• Has always been an
integral part of the
Shari’ah. (one
system).
• Judicial precedent-
binding
• Justice through
remedies ‘in
personam’
• In accordance with
the need of a
particular society

Equity in islam (amended version) (Topic 1)

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