060613L - FUNDAMENTALS OF THE LAW

Lecture to 3^rd year medical students at the Kulliyah of Medicine International Islamic University, Kuantan, Malaysia on 13^th June 2006 by Professor Omar Hasan Kasule MB ChB(MUK), MPH (Harvard), DrPH (Harvard) Professor of Epidemiology and Islamic Medicine, Institute of Medicine Universiti Brunei Darussalam

1.0 OVER-VIEW OF THE LAW

1.1 THE LAW IN PERSPECTIVE

Islamic law is the basis for Islamic culture, civilization, and societal institutions. Islamic law is complete and comprehensive. It serves the best interests of humans. It can accommodate new challenges and can grow. Islamic law is a viable system that has not been given its due role in shaping Muslim societies. Knowledge of the Law may be individually obligatory, fardh ain; communally obligatory, fardh kifayat, and recommended, manduub. Law is revealed and cannot be derived from rational reasoning alone. Most legal rulings can be understood logically.

1.2 DEVELOPMENT OF THE LAW

Law of previous prophets in incorporated in the Qur’an. Pre-Islamic customs and practices were either rejected or were Islamized. There was relatively little legislation in the Makkan period. Most legislation was in the Madina period to serve the needs of a new multi-ethnic and multi-religious community in Madina. The khulafau al rashidiin were jurists and mujtahids. Compilation of the Law and hadith started in the Omayyad era and continued in the abassid era however jurists were marginalized when they disagreed with rulers. Decline started in the latter abassid period. The Osmanli published the landmark majjalat al ahkaam al adliyyat. Colonial and post-colonial rulers marginalized shari’at or tried to abolish it. There is now a movement to revive the shari’at in its entirety. The 4 leaders of the schools of law were Abu Hanifa bin Nu'umaan (d. 150H), Malik bin Anas (d. 179H), Muhammad Ibn Idris al Shafi (d. 204H), and Ahmad Ibn Muhammad Ibn Hanbal (d. 241H). Each school has a definable consistency in legal rulings that reflects a common set of principles. There is more than 50% agreement among the different schools. The differences that exist are due to consistent differences in the methodology of extraction of legal rulings. Differences also exist within each school.

1.3 BASIC CONCEPTS, mafahim asasiyyat

Fiqh is the academic discipline that studies the Law or the knowledge of the law, jurisprudence. The Law is general, comprehensiveness, religiously motivated, and a mercy. The order of priorities in the Law is necessities, dharurat; needs, haajiyat; and embellishments, tahsinat. The Law has duality: private & public, fixed & and variable/flexible; formal and informal. The variable Law is dynamic growing as solutions are sought for new challenges and problems. Usul al fiqh is the methodology of the law. Siyasah shar'iyat is administration of justice by the executive according to the law. Huduud are fixed penalties by Allah. Ta'azir are discretionary punishment by the ruler/judge. Allah is the Law-giver. Hukm is Allah's word relating to actions of individuals. Hukm taklifi can be wajib, manduub, haram, makruuh, mubaah, and aziimat & rukhsah. Hukm wadhai is reason, sabab; condition, sharat; or prohibitor, mani’u. Hukm takhyiri provides a choice in which undertaking an act and leaving it are equivalent. Mahkuum alaihi is the individual who is obliged to take action, al mukallaf. Validity of obligation, sihat al taklif, is based on intellectual competence, aql, which is the ability to understand the obligation. Types of rights are: haqq al llaah, haqq al ‘ibaad, and haqq al laah wa al 'abd. Legal rulings must be evidence-based either naql/nass or aql/ra'ay. Bid'at is negative innovation in religion (aqidat and ‘ibadat). Ijtihad is defined technically as maximum effort to discover legal rulings by extraction from the sources. Taqlid is accepting a proposition without looking at the evidence. The original position is to condemn taqlid. However those who cannot consult the original sources directly can rely on the knowledgeable.

1.4 UNIVERSAL APPLICABILITY OF THE SHARI’AT

Islam and its Law are suitable for all places and all times due to its conformity to basic human nature, satisfaction of human interests, ease of application, and flexibility. There is in-built flexibility of the fixed part and adaptive flexibility of the variable part. Modernism defined as scientism, rationalism, and empiricism is not an intellectual challenge to the shari’at because both fiqh and usul al fiqh very rational, evidence-based, and systematic sciences that employ logic and reason in most of their conclusions.

1.5 THE SHARI’AT IN THE WORLD TODAY

Shari’at in West Asia and North Africa - Sharia in Sub-Saharan Africa - Shari’at in Central and South Asia - Shari’at in South East Asia - Shari’at in Other Parts of the World

2.0 SOURCES OF THE LAW, masadir al shariat

2.1 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.

2.2 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.

2.3 IJMA and QIYAAS AS SECONDARY SOURCES OF 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.

2.4 OTHER SECONDARY SOURCES OF LAW: shara’u man qablama, qawl al sahabi, ‘aadat, dhari’at

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.

2.5 METHODOLOGY OF EXTRACTING LEGAL RULINGS, tariqat istinbat al ahkaam, tariqat al istidlal

Nass can be muhakkam or mutashabih. The muhakkam can be ‘aam, khaas (amr and nahy), or mushtarak. Amr can be wajib, manduub, or mubaah. Nahy can be haram or makruh. Nahy implies both batil and fasid in ibadat. In mu’amalat a fasid transactions is irregular but not batil and has some legal effect. Legal reasoning uses the tools of agreement, ashbaahu, difference, furuuqaat, or exceptions, nadhair, Conflict of evidences is apparent and not real and is due to different views of mujtahidiin. It is resolved by the tools of nasakh, tarjih, or tawfiq. Nasakh is abrogation of one daliil. by another. Tarjiih is an intellectual effort to compare two or more rulings and select the best of them on the basis of strength of daliil. Tawfiq is combining two contradictory daliil to give one ruling.

3.0 PURPOSES OF THE LAW, maqasid al shariat

3.1 INTRODUCTION

The aim of ijtihad was to discover the purpose of the lawgiver in order to reach a hukm shar’i. Ijtihad in the closed part of the Law is referred to the nass. Ijtihad in the open or flexible part of the law is referred to the maqasid. The law was revealed to fulfill specific underlying purposes and for the benefit and in the interests of humans. Without the Law humans cannot use their reasoning to discover their true interests and establish the equilibrium between mafasid and masalih since these are relative and not absolute. The maqasid are permanent, consistent, derived form the nass by induction and are therefore definitive. They ensure that the Law is unchanged or violated. They deal with whole and not the parts. Maqasid al shariu must in ideal situations correspond with maqasid al mukallaf. Maqasid al shar’e can be primary or secondary. The primary maqasid can be private or public; they can relate to rights of Allah or rights of humans. The 1^st to 14^th centuries witnessed relatively little change in the ummah in the physical sense. However in the 15^th century, technological changes have created new and complex problems that require a bird's eye view for solution. It is the maqasid that can provide this bird's eye view and thus lead to appropriate solutions.

3.2 PRIMARY PURPOSES OF THE LAW GIVER, maqasid al shariu ibtida'an

The primary purposes of the lawgiver are necessities, dharuraat; needs, hajiyat; refinements, tahsinaat; and complementaries, mukammilaat. Dharuraat ensure human interests on earth and in heaven. Normal human life is impossible without them. Haajiyat allow proper functioning of life relieving difficulties arise in implementing dharuraat. Tahsinaat assure human dignity and makarim al akhlaq  Mukammilaat are complementary purposes The 5 necessities that are generally referred to as maqasid al shariat arranged here in order of importance: religion, diin; life, nafs, the mind, 'aql; progeny, nasl; and property, maal. They are permanent and are unchangeable. Hifdh al din is ‘aqidat, ‘ibadat and supporting functions of ‘aadaat, munakahaat, and mu’amalat. Laws that forbid spread of evil ideas and practices also protect the religion. Hifdh al nafs is protection of the body from harm and involves ‘aadaat, muamalaat, and jinayat and could take the forms of quarantines and isolation in epidemics, qisas, and liability for medical negligence. Hifdh al nasl is assured by marriage, child-birth within the marital bond, and proper child upbringing. Hifdh al ‘aql is assured by normal psychosocial relations as well as prohibition of alcohol and drugs. Hifdh al mal is assured by property rights and prohibition of stealing and embezzlement.

3.3 SECONDARY PURPOSES OF THE LAW GIVER, maqasid al shariu al taabi'at

The secondary purposes of the law giver relate to interpretation and clarification of the Law, injunctions as they relate to performance capacity in normal and difficult circumstances, and compliance with the Law,

3.4 PURPOSES OF THE HUMAN, maqasid al mukallaf

Purposes of the human refer to intentions, validity of acts, the effort to comply, interests, rights and obligations. Acts are judged by the intention behind them. The intention of the human must correspond to the intention of the law-giver. Human and divine intentions may correspond by design or by chance. A human may intent a bad act that turns out to be good. Validity of human acts is judged solely by their conformity to the purposes of the law-giver. An act contrary to the intention of the law giver is still invalid even if the intention was good. The human is rewarded for the effort to comply even if the effort is not perfect or the aim is not reached. Fulfilling the purposes of the law-giver assures satisfaction of human interests, masalih; there is no real contradiction between maqasid and masalih. The human is free to give up his rights but cannot give up or pardon situations that involve Allah’s rights.  Legal tricks, hiyal, defeat the purpose of the Law.

3.5 APPLICATIONS

There are rules for resolving conflicts between and among various maqasid. The dharurat have priority over the hajiyaat which in turn have priority over tahsinaat. Among the dharurat, the stronger purpose prevails; the order of strength being diin, nafs, nasl, aql, and maal.  Public interest has priority over private interest. The definitive, qatai, has priority over the probable, dhanni. Rights of Allah have priority over rights of the humans. The maqasid are the basis for siyash shar'iyat. It is siyasah ‘adilat if it relies on the mujtahid. It is siyasah dhaalimah if it does not follow the Law. The maqasid define clear objectives for the community and allow it to grow as a living balanced organism. The economic system must follow the priorities of the maqasid.

4.0 REGULATIONS OF THE LAW, dhawaabit al shariat

4.1 EXAMPLES OF REGULATIONS OF FIQH, dhawabit fiqhiyyat

In case of doubts about a substance, it is assumed to be clean. Any water whose characteristics have not been altered is considered clean. Anything than can be eaten or drunk can be sold. Anything that can be sold can be mortgaged. Anything that can be sold can be donated. Any kaffaarat due to ma'asiyat must be paid immediately.

5.0 PRINCIPLES OF THE LAW, qawaid al shariat

4.1 INTRODUCTION

Qaidat is a general principle applicable to the specifics and is of 3 types: qawaid usuliyat, qawaid fiqhiyat, and dhawabit fiqhiyyat. Qawa’id fiqhiyyat are legal principles that embrace general legal rulings from several chapters of the law dealing with a subject matter. Qawa’id usuliyyat are general principles applied to specific situations in usul al fiqh dealing with the daliil and not the hukm in any branch of fiqh. Dhawaabit fiqhiyyat are general principles applied to specific situations in one chapter of the law being of a narrower scope than qawa’id fiqhiyyat. Kulliyaat fiqhiyyat are general axioms (either qawa’id fiqhiyyat or dhawaabit fiqhiyyat) beginning 'all' with hardly any exceptions to them. Motivation for these 3 principles is from the Qur’an and sunnat that are mainly brief, concise, and precise statements of principles without detailed elaboration. The principles simplify the Law, facilitate the extraction of legal rulings, and are easy to memorize and remember. Principles derived directly from the nass are recognized as daliil. Those derived from reasoning facilitate legal reasoning but cannot on their own be the daliil on which the ruling is based.

4.2 EXAMPLES OF PRINCIPLES OF USUL AL FIQH, qawa’id usuliyyat

The default original position is permissibility. Haram is what was prohibited by the Qur’an and sunnat. Nothing can be declared haram if there is uncertainty. If no prohibition is known about a matter then it is considered mubaah.. Any amr requires immediate execution unless there is evidence for delaying. Amr means nahy for all its opposites. Any orders to the prophet cover his followers. Any nahy covers all people. There is no fardh unless there is certainty. Anything needed to accomplish the waajib is itself waajib.

4.3 PRINCIPLES OF FIQH, qawaid fiqhiyyat

Five major principles, al qawaid al kulliyat al khamsat, are unanimously recognized as the pillars of the law: Intention, qasd; certainty, yaqeen; injury, dharar, difficulty; mashaqqat and custom or precedent, urf. Each is a group of legal rulings or axioms that share a common derivation by qiyaas or are derived from the Qur’am, sunnat, or writings of jurists. The principle of intention states that each action is judged by the intention behind it. Reward is based on the intention. What matters is the intention and not the letter of the Law. Means are judged with the same criteria as the intentions. If the intention is wrong the means is also wrong. The principle of certainty states that a certainty cannot be changed by doubt. Existing assertions continue until compelling evidence changes them. All acts are permissible unless there is evidence to the contrary. Declaration of original motive takes precedence over the de facto.  The principle of injury states that injury should be relieved or prevented as much as is possible but cannot be relieved an injury of the same degree. Prevention of an injury takes precedence over pursuit of a benefit of equal worth. Prevention of haram has priority over pursuit of halaal. The lesser of two actions of equal harm harms is selected. A lesser harm is committed in order to prevent a bigger one. An individual could sustain harm in the public interest. The principle of hardship states that difficulty calls forth ease and mitigates easing of rules and obligations. Humans are not obliged beyond their capacity. Necessity, dharuurat, legalizes the prohibited. The principle of custom/precedent states that custom or precedent is a legal ruling and is a source of law unless contradicted specifically by text.

4.4 OTHER PRINCIPLES OF FIQH

Other principles of fiqh are axioms, kulliyaat al fiqh; principles mentioned directly in hadith; principles from the books of law; and qawaid usuliyat that are qawaid fiqhiyyat, qawaid usuliyat majriya al qawa’id fiqhiyyat. The following are examples of axioms: any ta'at reached through ma’asiyat should not be undertaken, any non-disclosure that could lead to dispute nullifies the contract, ignorance that could be relieved is not a defence, and any ma’asiyat without a fixed hadd is punishable by ta’azir. The following principles are mentioned directly in hadith: no harm to self and others and any innovation in religion is rejected. The following are examples of principles from the books of law: it is recommended to get out of differences, the majority has the rights of the whole, and a legal ruling based on ‘illat is void if the the ‘illat disappears. The following are examples of qawaid usuliyat that are qawaid fiqhiyyat: An ijtihad is not voided by a similar ijtihad, the default position is to leave things as they are, and no word is attributed to a silent person.