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Presented at the Kulliyah of Medicine UIA Kuantan 22-23 August 2008 by Professor Omar Hasan Kasule Sr. MB ChB (MUK), MPH (Harvard), DrPH (Harvard) Professor of Epidemiology and Islamic Medicine Institute of Medicine Universiti Brunei Darussalam
1.0 SOURCES OF THE LAW, masadir al shariat
1.1 Qur’an as a primary source of law
The Qur'an is 'Allah’s words revealed to Muhammad (PBUH) in Arabic, transmitted to us in continuity, written in the mashaf, whose recitation is worship, commencing with surat al fatihat and ending with surat al nas. Verses of the Qur’an were revealed adhoc each associated with sabab al nuzuul. It was memorized and also written down immediately. Abubakar collected the written records and Othman issued one official version in the Quraishi dialect that is used all over the world.
The Qur’an is practical, rational, and miraculous. Its 3 themes are aqidat, spiritual refinement, and practical guidance. Legal rulings, ayat al ahkaam, are a minority of its more than 6000 verses being distributed munakahaat 70, mu'amalat 70, jinayaat 30, iqtisaad 10 verses, qadha 13 verses, government 10 verses, and international law 25 verses. The Qur’an is comprehensive and complete but deals with issues in a generic and not specific way. Its verses are muhkamat or mutashabihat. It challenges the intellect, does not indoctrinate, and gives room for opposing views.
It is divided into 114 surats. Each surat starts with the basmalah except surat al baraa. It is divided into 30 juz’us each divided into 2 hizbs. Rub'u or thumun are subdivisions of the hizb. The Makkan verses, dealing with aqidat, are short, poetic, and powerful. Madinan verses are longer dealing with details of societal organization.
The prophet read the Qur’an in 7 different ways, The Qur’an can be recited as tartiil or as tajwid. As a source of legislation the Qur’an provides general foundations and principles. Qur'anic evidence for legal rulings is either qatui, or dhanni. The Qur'an is the primary source of law. All other recognized sources are secondary to the Qur'an and are validated by it.
1.2 Sunnat as a primary source of law
Sunnat, a subgroup of hadith and part of wahy, is defined as words, actions, and tacit agreement of the Prophet. A hadith consists of a sanad, and matn. It can be hadith nabawi or hadith qudsi. Writing of hadith started late. Hadith collections are classified as sihaah, sunan, masanid, and muwatta’at. Hadith is described as mutawatir if narrated by many, mash'hur if reported by at least 2, and aahaad if reported by only 1 sahabi. It be tashri'i if legislative or ghayr tashri' if it is not. The grades of hadith authenticity in descending order are: sahiih, jayyid, and hasan. Muttafaq ‘alayhi is reported by both Bukhari and Muslim. Musnad has a chain of narrators to the prophet. Muttasil has an unbroken chain of narrators. The sanad stops at a sahabi in mawquf and at a tabi’e in a marfu’u hadith. In mursal the tabi’e reports directly from the prophet. Munqati’u has an incomplete sanad. Dha’if lacks the attributes of the sahiih and hasan. Sunnat can affirm, explain, or elaborate the Qur'an or bring up matters not mentioned in the Qur’an. Obedience of the prophet implies following his sunnat. The sunnat comes second to the Qur'an as a source of law. The daliil of the sunnat may be definitive, qatai, or probable, dhanni. The sunnat is interpreted in the light of general principles of the Qur'an, the social situation in the prophetic era, and the Arabic language.
1.3 Secondary sources of the Law
Ijma is agreement of all mujtahids existing at one time on a particular legal ruling based on nass. It can be ijma sariih or ijma sukuuti.
Qiyas is use of a ruling of one matter for another matter when the two share the same illat.
Pre-Islamic laws, shara'u man qablana, were either abrogated or confirmed by the Qur’an.
The word of the companion, qawl al sahabi, is a source of law under specified conditions.
Custom or precedent, ‘aadat or 'urf, is a source of law if it does not contradict nass, there is ijma on it, and is in the public interest, and closes the door to evil.
Istishaab is continuation of an existing ruling until there is evidence to the contrary.
Istihsaan is preference for one qiyaas by a mujtahid.
Istislaah is assuring a benefit or preventing a harm used in mu’amalat but not ‘ibadat. Maslahat mursalat is public interest based on ra’ay when there is no nass.
Sadd al dhari'at is prohibition of an act that is otherwise mubaah because it has a high probability of leading to haram.
2.0 CLASSIFICATION OF REGAL RULINGS: MEDICAL APPLICATIONS
2.1 Obligatory, waajib
Waajib is the most important legal ruling. The shafi’e school considers waajib the same as faradh. Individual obligations, fardh aini, cannot be delegated. Performance of a collective obligation, fardh kifai, by any member of the community absolves the rest from sin. However only those with the necessary competence can perform the collective obligations. The rest are not obliged even if they are members of the community.
2.2 Recommended, manduub
Recommended, manduub, is also called sunnat or masnuun, nafilat, mustahabb, tatawu'u, ihsaan, fadhiilat. It is ordained without compulsion. The manduub has got the following levels of excellence: confirmed, sunnat muakkada; and not confirmed, sunnat ghayr muakkadat. The sunnat muakkadat is what the Prophet used to carry out continuously and left it only on rare occasions.
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2.3 Prohibited, haraam
Prohibited/unlawful, haraam is defined as omission of the waajib or commission of the haraam. The original position for all human acts is permission and prohibition is the exception. Thus textual evidence is required to prove prohibition but is not required to prove permission. The situation is reversed in sexual matters in which the original position is haraam and permission is the exception requiring textual evidence. Only Allah can make something haraam. Haraam is prohibited because it is impure and harmful.
An act that aggravates disease is haraam. An act that leads to haraam is also haraam. An act that cures disease is waajib.
A general principle is that the halaal is clear and the haraam is clear and between the two are inconclusive matters, mutashaabihaat For inconclusive matters what leads to bad or evil is makruuh and what leads to good is manduub.
2.4 Offensive, makruuuh
Offensive/reprehensible/disaaproved, makruuh, is an act that is discouraged by the Law giver without compulsion. It is better to avoid the makruh. The makruh is an introduction to the haram and must therefore be avoided.
2.5 REWARDS AND PUNISHMENTS FOR VARIOUS ACTS
The classification of acts can best be understood from the consenquences of doing them or not doing them.
Classification of act | Commission (action done) | Omission (action not done) |
Wajib | Reward | Punishment |
Manduub, mustahabb, or masnuun | Reward | No punishment |
Haram | Punishment | Reward |
Makruuh | No punishment | Reward |
Mubaah | No reward | No punishment |