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Lecture by Professor Omar Hasan Kasule Sr. for Year 3 students Kulliyah of Medicine UIA Kuantan on Saturday 20th July 2007
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.
DEVELOPMENT OF THE LAW
Laws of previous prophets are 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 which codified principles of the Law and the law of business like modern law manuals. 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.
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.
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.