ISLAMIC JURISPRUDENCE اسلامی فقہ (original) (raw)
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A Comparative Study Of the Western and Islamic Concept of Law
Theories of law are evolution of historical process which has reached us in developed forms. The principles of law have reached us after centuries ponder and observation. The fact is that still there exists in these principles of law a state of conflict and confrontation. To show that conflict and confrontation the experts in law have out forward a dozen theories of which the most popular are the following: 1. Natural Theory of Law; 2. Imperative Theory of Law; 3. Evolution Theory of Law; 4. Advantage Theory of Law. Kinds of Western Laws Kinds of Western Law with regard to its different references are as under: (A) With reference to Legislation laws are; 1. Constitutional Law; 2. Written law; 3. Ordinances promulgated during emergency; 4. Customary laws; 5. Judicial precedents or Judge made law; and 6. International Law. (B) With reference to geography laws are: 1. National law; and 2. International law. (C) With reference to function laws are: 1. Personal law, 2. Common law, 3. Administrative law. (D) With reference to crime laws are: 1. Criminal law, 2. Civil Law 3. International law. (E) With reference to Memory are: 1. Written law 2. Unwritten Law (F) With reference to legislation laws are: 1. Ordinance. 2. Act. Kinds of Law as stated by Salmond 1. Commanding Law, 2. Natural or Moral Law, 3. International law 4. Domestic law or the law of the land, 5. Physical or scientific law, 6. Contractual law, 7. Customary law, 8. Law of Art; 9. General law, 10. Special Law, 11. Martial law. Islamic Concept of Law In Islam for law the word used is Shari`at. Shari`at means “the Straight Path/الصراط المستقیم”. All Muslims in all their prayers recite the first chapter of the Holy Qur’an called Surah al-Fatihah. It contains seven oft-repeated verses. It is also called Surah Al-Hamd. In it they all pray :“Show us the Straight Path”. What is the Straight Path? The Holy Qur’an has mentioned the Straight Path in the following words: All who obey Allah and the apostle are In the company of those on whom is the Grace of Allah, - of the prophets (Who teach), the sincere (lovers of Truth), the witnesses (Who testify), and the righteous (Who do good): Ah! What a beautiful fellowship! [4:69] Its source is Divine Guidance. It originated when first man on earth i.e. Hadrat Adam (peace be upon him) was sent. Adam was creation of God Almighty. He was guided concerning all such affairs that were necessary by God Almighty by means of revelation. It covered all walks of human life. The event is mentioned in the Holy Qur’an at various places: Behold, Thy Lord said to the angels: "I will create a vicegerent on earth." They said: "Wilt Thou place therein one who will make mischief therein and shed blood? - whilst we do celebrate Thy praises and glorify Thy holy (name)?" He said: "I know what ye know not." And He taught Adam the nature of all things; then He placed them before the angels, and said: "Tell me the nature of these if ye are right." They said: "Glory to thee, of knowledge we have none, save what Thou hast taught us: In truth it is Thou who art perfect in knowledge and wisdom." He said: "O Adam! Tell them their natures." when He had told them, Allah said: "Did I not tell you that I know the secrets of heaven and earth, and I know what ye reveal and what ye conceal?" And Behold, we said to the angels: "Bow down to Adam" and they bowed down. Not so Iblis: He refused and was haughty: He was of those who reject Faith. We said: "O Adam! Dwell Thou and Thy wife In the Garden; and eat of the bountiful things therein as (where and when) ye will; but approach not this tree, or ye run into harm and transgression." Then did Satan make them slip from the (garden), and get them out of the state (of felicity) in which they had been. We said: "Get you down, all (ye people), with enmity between yourselves. On earth will be your dwelling-place and your means of livelihood - for a time." Then learnt Adam from His Lord words of inspiration, and His Lord turned towards him; for He is Oft-Returning, Most Merciful. We said: "Get you down all from here; and if, As is sure, there comes to you guidance from me, whosoever follows My guidance, on them shall be no fear, nor shall They grieve. "But those who reject Faith and belie Our Signs, they shall be companions of the fire; they shall abide therein." [2: 30 to 39] The last of the Prophets was Hadrat Muhammad (Peace and blessings of Allah be upon him) on whom was revealed the Holy Qur’an, the last message of God to mankind. Earlier to it were revealed the Taurat on Hadrat Musa (peace be upon him), the Injil on Hadrat `Isa (peace be upon him), and Zabur on Hadrat Da`ud (peace be upon him). They all contained guidance and mercy. Muslims believe all the past books and Divine Scriptures as truly sent by Allah Almighty and that they contained guidance, light and mercy in them. Thus in Islam Law means Al-Din/الدین. What is Islam? The Holy Qur’an says: The Religion before Allah is Islam (submission to His Will): nor did the people of the Book dissent there from except through envy of Each other, after knowledge had come to them. But if any deny the Signs of Allah, Allah is swift in calling to account. [3:19] The Holy Qur’an has warned beforehand to the whole mankind: If anyone desires a Religion other than Islam (submission to Allah) never will it be accepted of him; and In the Hereafter He will be in the ranks of those who have lost (All spiritual good). [3:85] DOMINANCE OF ISLAM PREDICTED It is He who hath sent His Messenger with guidance and the Religion of truth, to proclaim it over all religion, Even though the Pagans may detest (it). [9:33] Why at present Muslims are subjugated every where? The simple answer is that they are not conducting in the manner the Holy Qur’an and Sunnah has guided. Islam is a way of life for all mankind. Whoso will believe and do righteous deeds will get its fruits. The glory in the past of the earlier Muslims was due to their committed to the cause of Islam and truthfulness and sincerity of their action and conduct. Time and Tide care for none. Nations have their rise and fall. The law of cause and effect is applicable in all affairs except when there is Divine Command otherwise. The history has in its memory fresh even today the burning fire lit by Namrud and his people for Ibrahim had become cool and full of peace for Ibrahim by the Divine Command. The Nile split into two to give way to Moses and those who believed in him and drowned the army of Fir`aun. Hadrat Adam was born without parents. Hadrat `Isa was born to Virgin Mary without father. Hadrat `Isa made the dead alive by the leave of God, healed the lepers, informed as to what food was digested by a person and what left behind. Raised up to the heavens alive despite all plots of the enemies. Hadrat Muhammad (صلی اللہ علیہ و آلہ وسلم) was blessed with hundreds of miracles. The most apparent was the Split into two of the moon, the peaking of the trees, stones, animals and believing in him of the Jinns. All and real sovereignty over the entire universe is thus of Allah Almighty and He is all powerful to do any thing He wills. Generally, this world is the world of cause and effect. Everything is creation of Allah Almighty. Hence to submit before him in words and conduct is Islam. WHERE TO FIND ISLAM? It is to be found in the injunctions of Islam. What are injunctions of Islam? Injunctions of Islam are contained in the Holy Qur’an and Sunnah. ROLE OF TADABBUR, TAFAKKUR AND TA`AQQUL Allah Almighty has blessed mankind with many favours for which thanks to God are due but most people either deny of any favour on them or knowingly ignore and bypass. This is serious. Heart and mind both are the most high faculties and favours of Allah Almighty upon human beings to make understand of man himself. It is the fairness that attracts. Attraction creates attachment and much mention of the beloved and also a sense of obeying the beloved. Same is true in the case of our love towards Allah Almighty. How to test our love towards our Creator? The Holy Qur’an says: Say: "If ye do love Allah, follow Me: Allah will love you and forgive you your sins: for Allah is Oft-forgiving, Most Merciful." [3:31] Tadabbur is going deep into the Holy Qur’an. Tafakkur means contemplation. Ta`aqqul means to stop, to restrain and make all possible effort to visualize what has been the past, what is our present state of affairs, what we have to do to have access the goal in future. This process must continue with ever breath. Muhasaba-i-Nafs is to be made every moment. Self accountability is thus a great favour for human beings. Fairness in character is generated by this process. What you owe to others have you paid it to them punctually, properly, correctly and legitimately. If not what was the reason? Why not to explain him the circumstances and get grace period? Why not to reassess the economic priorities and start making the payment how small it may be. To postpone the due creates further problems. Why not to forgive or give more time to the brother who had taken a lone but is now hard hit by economic constraints. A little thinking will cause much ease and convenience. There should be no falsehood, no hypocrisy, no plotting, and no dishonesty. We must remain fair whether we are having upper hand or lower hand. Half of the way in the process of law is thus covered and the wrongs start becoming fair. Sources of Islamic Law There are four sources of Islamic law, namely, 1. The Holy Qur’an ; 2. The Sunnah of the Messenger of Allah (صلی اللہ علیہ و آلہ وسلم); 3. The Ijma`/اجماع and 4. The Qiyas/قیاس .
Concept of the Rule of Law: A Glance from the Shariah Point of View
The rule of law is a political ideal that all citizens and institutions in a country, state or community are subject to the same laws, including legislators and political leaders. It is sometimes simply referred to as "no one is above the law". This paper aims to investigate this concept from the Shariah point of view. In doing so, the research adopts a qualitative research methodology. The research finds that the phrase 'rule of law' is not found in the Qur'ān and may not have been used by the Messenger (S.A.W.), but many aspects of the rule of law have been identified in verses of the Qur'an and the Sunnah of the Messenger (S.A.W.); the rule of law means that nothing is above the Shari'ah as the ultimate reference point. It removes the basis of absolute rule of man, which has often been the cause of corrupt practices and unbridled exercise of power. In other words, the concept represents rule of law; All people are equal before the law as demonstrated by the Prophet Muhammad when he said, "By Allah, if Fatima had stolen ,I would cut off her hand"(Fatima was Prophet Muhammad's-(S.A.W) daughter); a fundamental characteristic of the rule of law in Islam is that it begins with the individual, i.e. when the individual judges himself according to the law revealed by Allah (S.W.T); the introduction of the rule of law in Islamic societies stemmed from the fact that the laws of Allah (S.W.T) are supreme and not the laws made by a person or group of people, regardless of their position. This was true even for the Prophet Muhammad (S.A.W.), as can be seen from the instances in which the Quran corrects Him for committing an error of action or judgement.
We come to see that throughout the development of Islamic law, a number of sources and methods were established from which jurists may derive the law. This is very different from the limited view that only the Quran and sunnah (habitual practice) are recognised as the crux of law. The sources and methods go beyond those of the Quran, sunnah, ijma, and qiyas. These 4 sources can be referred to as the roots of law, given their grounding in revealed texts and their status within the law as the foundation of any law making. Aside from these, other methods, such as istihsan (juristic preference), maslahah (public interest), ‘urf (custom), and ijtihad, exist. Together, Islamic law comes to recognise a plethora of sources and methods, which clearly demonstrates its ability to remain flexible and relevant to the modern age. It has long been the view of orientalists such as Schacht that Islamic law is inflexible, but we come to see that the various methods that are available suggest otherwise.
International Journal of Multicultural and Multireligious Understanding, 2022
Public law notions seen from shari’a law perspective have not been duly discussed in Islamic countries. In the discourse of rule of law in Islam we are confronted with a dilemma, moral values of a religion are not compatible with the coercive legislative measures. Thus the authentic application of shari’a rules is feasible only if a scientific hermeneutic of shari’a law is adapted to the exigencies of today’s modern life, while the outlook on the boundaries of hermeneutic remains obscure. The first section of this article, introductory discourse, scrutinizes the fallacy of different theories on the notion of justice leading to the concept of “rule of law” in general. The second section focuses on the rule of law in Islam. Concluding ideas are presented in the final section, conclusion.
Principles of Islamic Jurisprudence ~ Kamali Principles of Islamic Jurisprudence
I. Apart from the fact that the existing works on Islamic Jurisprudence in the English language do not offer an exclusive treatment of usul al-fiqh, there is also a need to pay greater attention to the source materials, namely the Qur'an and sunnah, in the study of this science. In the English works, the doctrines of usul al-fiqh are often discussed in relative isolation from the authorities in which they are founded. Furthermore, these works tend to exhibit a certain difference of style and perspective when they are compared to the Arabic works on the subject. The usul al-fiqh as a whole and all of the various other branches of the Shari'ah bear testimony to the recognition, as the most authoritative influence and source, of divine revelation (wahy) over and above that of rationality and man-made legislation. This aspect of Islamic law is generally acknowledged, and yet the relevance of wahy to the detailed formulations of Islamic law is not highlighted in the English works in the same way as one would expect to find in the works of Arabic origin. I have therefore made an attempt to convey not only the contents of usul al-fiqh as I found them in Arabic sources but also the tone and spirit of the source materials which I have consulted. I have given frequent illustrations from the Qur'an, the Sunnah and the well-recognised works of authority to substantiate the theoretical exposition of ideas and doctrines.
Introduction to Islamic Jurisprudence: History, Sources, and Its General Theories | Edited By Dr. Hussein Madkour Mohammed Sallam , 2024
Thanks be to Allah, who used us to serve this great and venerated Sharia. Glory be to Him who sent His Messenger Mohammed with this eternal venerated and tolerant Islamic Sharia, abrogating all others, and valid for all times and places. It deals with everything people need in this life and the one after. It provides human beings with all their worldly and afterlife needs. This Sharia, or divine law, does not confine itself to putting right the spiritual aspects of life at the cost of the physical and moral aspects. Neither is it assigned to one nation or one race specifically. Instead, it dealt with life’s spiritual and physical aspects. Both sides of life complemented the other to produce the desired end. Previous laws have prepared the way for its all-inclusiveness and dominance. It was revealed to Prophet Muhammad after human minds had matured and become ready to follow an everlasting statute that ensures happiness in all aspects of life. The following verse from the Qur’an instructs Prophet Muhammad (Peace be upon him) to: “Say O men, I am sent unto you all, as the Messenger of Allah.”.
The sources and schools of Islamic jurisprudence
American Journal of Social and Management Sciences, 2012
Islamic jurisprudence is based on divine authority. It cannot be subjected to any precedent from the existing legal systems of the world. Islamic law is considered to be superior to every other legal system in the world, and can neither be influenced, nor persuaded by their rulings. The peculiar jurisdiction of Islamic law is applicable in an Islamic state and is binding on all Muslims. The law is the compass to eternal life and the basis for interpersonal relationship. In this study we shall analyse the sources and schools of Islamic jurisprudence.
CONCEPT OF LAW AND JUSTICE IN ISLAMIC JURISPRUDENCE
CONCEPT OF LAW AND JUSTICE IN ISLAMIC JURISPRUDENCE, 2021
One out of five people in the world today lives subject to Islamic law, but stereotypes of rigid doctrine or harsh punishment obscure an understanding of the values and style of reasoning that characterize everyday Islamic adjudication. By considering its larger social and cultural context, Islamic law is shown to be a kind of common law system: justice is sought through a careful assessment of persons, more than facts, and justice resides not in equality, but in a quest for equivalence. However, the crux of this research work was focused on understanding the concept of Law and Justice in Islamic Jurisprudence where the concept of law and justice was viewed from different scholars. Justice is most important thing in life of human beings, and it is one of the things that can solve the problem of a society. The aim and objective of this paper were to discuss the context of justice and law in Islam. The doctrinal mode of research was adopted in this essay with reliance on textbooks, articles, and internet sources. It was found that in both the Quran and Hadith, justice requires the offender to take personal responsibility for his or her actions; it was also found that justice is one of Gods qualities. It went further to conclude that the concept of justice should be genuine and sacrosanct.