Islamic Jurisprudence – Part 1 (The Philosophy Of Islamic Law)

We will present among the basic contents of Islamic Jurisprudence in several parts based on Imam Ash-Shafie's School Of Thought:

ISLAMIC JURISPRUDENCE – PART 1 (THE PHILOSOPHY OF ISLAMIC LAW)


The Meaning Of Islamic Law

Islamic Law is the decree (‘Khitab’) of Allah s.w.t. regarding all the actions of a ‘Mukallaf’ (Muslim, Adult and Sane) in the manner of ‘Taklifi’ (Direct Commands of Allah s.w.t.) or ‘Takyiri’ (Choices Given By Allah s.w.t.) or ‘Wadh’i’ (Conditional Commands of Allah s.w.t.).

Synopsis

From the meaning of the Law above, the important explanations are as follows:

1. Islamic Law is the decree (‘Khitab’) of Allah s.w.t. regarding the actions of human beings only

2. The actions of human beings are:

2.1 Actions of the body

2.2 Actions of the soul

2.3 Actions of the senses

3. No human being can run away from the Laws of Allah s.w.t.

Categories Of Islamic Law

1. ‘Taklifi’ Law

‘Khitab’ of Allah s.w.t. in the form of commands:

1.1 To do something or

1.2 To not do something or in the form of a choice to do or not to do something

2. ‘Wadh’i’ Law

‘Khitab’ of Allah s.w.t. that makes something as a cause or condition or ‘Maani’ (obstacle) in determining a certain Law

The Differences Between ‘Taklifi’ Law And ‘Wadh’i’ Law

The differences between the above 2 categories of Law are:

1. ‘Taklifi’ Law is in the form of commands to do something or in the form of giving a choice. ‘Wadh’i’ Law is in the form of associating a cause or condition or ‘Maani’ (obstacle) in determining a certain Law

2. ‘Taklifi’ Law is in the form of commands to do something or in the form of giving a choice of doing something that is able to be carried out by any ‘Mukallaf’. Some of the ‘Wadh’i’ Law are only able to be carried out by a portion of the ‘Mukallaf’

3. ‘Taklifi’ Law is only applicable to ‘Mukallaf’. Whereas Wadh’i Law is applicable to all human actions, whether ‘Mukallaf’ or not.

Types Of ‘Taklifi’ Law

There are 5 types of ‘Taklifi’ Law:

1. ‘Wujub’ : ‘Khitab’ of Allah s.w.t. in the form of a command to do something in a ‘Jaazim’ (obligatory) way

2. ‘Nadb’ : ‘Khitab’ of Allah s.w.t. in the form of a command to do something in a non-‘Jaazim’ way

3. ‘Tahrim’ : ‘Khitab’ of Allah s.w.t. in the form of a command not to do something in a ‘Jaazim’ way

4. ‘Karahah’ : ‘Khitab’ of Allah s.w.t. in the form of a command not to do something in a non-‘Jaazim’ way

5. ‘Ibahah’ : ‘Khitab’ of Allah s.w.t. in the form of giving a choice to do something or not to do something

From the 5 types of ‘Taklifi’ Law above arise 5 types of actions of the Law, that is:

1. ‘Wajib’ : Action that contains the ‘Wujub’ law

2. ‘Mandub’ : Action that contains the ‘Nadb’ law

3. ‘Haram’ : Action that contains the ‘Tahrim’ law

4. ‘Makruh’ : Action that contains the ‘Karahah’ law

5. ‘Mubah’ : Action that contains the ‘Ibahah’ law

Doing the ‘Wajib’ action is accorded a reward (‘Pahala’) and not doing it is accorded a sin (‘Dosa’). Doing the ‘Mandub’ action is accorded a reward and not doing it is not accorded a sin. Doing the ‘Haram’ action is accorded a sin and not doing it is accorded a reward. Doing the ‘Makruh’ action is not accorded a sin and not doing it is accorded a reward. Doing the ‘Mubah’ action and not doing it is not accorded a sin or reward.

Categories Of ‘Wajib’

‘Wajib’ can be divided into a number of groups if viewed from these perspectives:

1. Time of action

2. Quantity of action

3. Human being doing the action and

4. Type of action

From The Perspective Of Time Of Action

From the viewpoint of the time of action, ‘Wajib’ can be divided into:

1. ‘Wajib Mutlaq’ : ‘Wajib’ that is not bound by a certain timeframe

2. ‘Wajib Muqaiyad’ : ‘Wajib’ that is bound by a certain timeframe

2.1 ‘Wajib Muwassa’ - The time allocated is more than doing one action. Eg. Prayers

2.2 ‘Wajib Mudhaiyaq’ - The time allocated is just enough for one action. Eg. Fasting

2.3 ‘Wajib Zu Shubhaini’- ‘Muwassa’ from one perspective and ‘Mudhaiyaq’ from another perspective. Eg. Pilgrimage

Important Note

From the categories of ‘Wajib’ above, arise 3 important issues:

1. Fulfilled (‘Tunai’ or ‘Adaa-an’) Action - Action done in the allocated time

2. Repeated (‘Ulangan’ or ‘I’adah’) Action - Action done once again or more in the allocated time

3. Replaced (‘Ganti’ or ‘Qadha-an’) Action - Action done outside the allocated time

From The Perspective Of Quantity Of Action

From this perspective, ‘Wajib’ is divided into:

1. ‘Wajib Muhaddad’ - Action that has been specified the quantity

2. ‘Wajib Ghairu Muhaddad’ - Action that has not been specified the quantity

From The Perspective Of Human Being Doing The Action

From this perspective, there are 2 groups of ‘Wajib’:

1. ‘Wajib ‘Aini’ - Action needed to be done by everyone

2. ‘Wajib Kifaa’i’ - Action needed to be done by a specified group of people

Types Of ‘Wajib ‘Aini’

1. ‘Wajib ‘Aini’ that cannot be replaced by anyone else i.e. all actions relating to the body (‘badaniyah’)

2. ‘Wajib ‘Aini’ that can be replaced by someone else i.e. actions relating to property

3. ‘Wajib ‘Aini’ that can be replaced by someone else if disabled (‘Uzur’) i.e. actions relating to the body and property

From The Perspective Of Type Of Action

From the perspective of the action itself, ‘Wajib’ is divided into 2:

1. ‘Wajib Mu’aiyan’ - Specific action without any other choice

2. ‘Wajib Mukhaiyar’ - Action that can be chosen from a number of specified actions:

2.1 Can do only one action

2.2 Can do more than one action

Categories Of ‘Mandub’

There are 3 groups of ‘Mandub’:

1. ‘Mandub Muakkad’ - Leaving it is not a sin but is accursed and reprehensible like:

1.1 Actions escorting the ‘Wajib’

1.2 Actions always done by Rasulullah s.a.w. He left
them once in awhile only

2. ‘Mandub Mashruu’ - Leaving it is not a sin and not accursed and not reprehensible like the actions done by Rasulullah s.a.w. once in awhile only

3. ‘Mandub Zaaid’ - Leaving it is not a sin and not accursed and not reprehensible but is not complete, elegant, magnificent and comfortable like the way Rasulullah s.a.w. eats, walks, sleeps and dresses

This ‘Mandub’ is also called ‘Mustahab’, ‘Adab’ and ‘Fadhilah’

Categories Of ‘Haram’

Action and things that are ‘Haram’ are divided into 2:

1. ‘Haram Li Zaatihi’ - ‘Haram’ because of the essence of the action or thing itself

2. ‘Haram Li Ghairi Zaatihi’ - ‘Haram’ because of something foreign that has attached to it, whether the attachment causes:

2.1 ‘Haram’ forever or

2.2 ‘Haram’ temporarily

Types Of ‘Wadh’i’ Law

There are 3 types of ‘Wadh’i’ Law:

1. Cause - Clear specific characteristic that forces the existence of a certain law

2. Condition - Clear specific characteristic that allows for a certain law

3. ‘Maani’ - Something that when exists, thus there is no concerned law based on a certain cause

This ‘Maani’ is as if it nullifies an existing law based on a certain cause

The Difference Between Cause And Condition

A cause is with its existence there must be a certain law and without its existence there must be no law. Whereas a condition is without its existence there must be no law and with its existence there is not necessarily a law or no law.

Categories Of Cause

Categories of cause can be done from 2 aspects:

1. From the aspect of its effect on the law and

2. From the aspect of the ability of the human being on the cause itself

From the aspect of its effect on the law, cause is divided into 2:

1. Cause that clarifies a certain ‘Taklifi’ Law and

2. Cause that clarifies ownership or loss of it or clarifies the permissibility of something or the impermissibility of something

From the aspect of the ability of the human being on the cause itself, cause is divided into 2 groups:

1. Cause that human beings are able to realize and

2. Cause that human beings are unable to realize

Categories Of Condition

Condition is divided into 2:

1. Condition for a certain law

2. Condition for a certain cause of law

Types Of Condition

There are 2 types of condition:

1. ‘Shar’i’ Condition - Condition that has been specified by Islamic Law

2. ‘Ja’ali’ Condition - Condition made by human beings themselves but is not in contradiction with the principles and methodology of Islamic Law

Categories Of ‘Maani’

‘Maani’ is also divided into 2:

1. ‘Maani’ for a certain law

2. ‘Maani’ for a certain cause of a law

Principles Of Law

What is meant by Principles Of Law here is “The basics that form the foundation of a certain Law”. It can be divided into 2 groups:

1. General Principles that encompasses all fields such as:

1.1 ‘Adamul Haraj’ (Not suffering)

1.2 ‘Qillatut Taklif’ (Reducing the burden)

1.3 ‘Al-Akhlaq’ (Morality)

1.4 ‘Al-Musaawah’ (Equality)

1.5 ‘Al-‘Adl’ (Justice)

1.6 ‘Al-Masoleh Al-‘Ammah’ (Public Interest)

2. Specific Principles on certain fields only such as:

2.1 ‘Ash-Shura’ (Consultation) in the field of Governance

2.2 Ownership in the field of property

2.3 Inheritance in the field of family relations

Methodology Of Law

What is meant by Methodology Of Law here is “Methods to identify the derivation of Law or methods to implement something that the Law applies”. It can be divided into 2 groups:

1. ‘Qawaa’id Kulliyyah’ - Methods to identify the derivation of Law. For example, through:

1.1 Difficultness brings easiness

1.2 Harmfulness needs to be eliminated

1.3 Tradition sometimes becomes the judge

1.4 All affairs are based on objectives

1.5 No reward for any action except because of Allah s.w.t.

1.6 Confidence cannot be eliminated when there is doubt

2. ‘Qawaa’id Juziyyah’ - Methods to implement something that the Law applies. There are 2 types for these methods:

2.1 The fixed cannot be changed i.e. the implementation of ‘Iman’ (Faith), ‘Ibadah Mahdhah’ (Prayers, Fasting, Pilgrimage), ‘Nikah’ (Marriage), ‘Talaq’ (Divorce), ‘Faraaid’ (Inheritance Laws) and ‘Hudud’ (Penal Code)

2.2 Can be changed according to the current suitability and situation

‘Maqaasid’ (Objectives) Of Islamic Laws

The objectives of Islamic Laws are seen from the combination of 2 sides. That is, the side of the one specifying the Laws and the human side that the Laws apply to.

In general, the objectives of the Islamic Laws are to create the benefits that bring happiness for all mankind in this World and in the Hereafter. Even though there are many human benefits, they are not out of the following 3 groups:

1. ‘Dharuriyat’ - All that are a must for existence of mankind. If there is no ‘Dharuriyat’, then there will be human destruction, loss of amenities, suffering in this World and punishment in the Hereafter. The ‘Dharuriyat’ matters are:

1.1 Preservation of Religion

1.2 Preservation of Mind

1.3 Preservation of Life

1.4 Preservation of Offspring (Honor) and

1.5 Preservation of Property

2. ‘Haajiyat’ - All that mankind needs to avoid ‘Mashaqqah’ (hardship). Without ‘Haajiyat’, mankind will face hardship in life, even though life itself is not destroyed

3. ‘Tahsiinaat’ - All matters that qualifies and are proper for magnificent morality, esteemed dignity and beautiful tradition

Islamic Jurisprudence - Introduction

INTRODUCTION


The Meaning Of Islamic Jurisprudence

What is meant by Islamic Jurisprudence here is:

“A study regarding matters that are related to the Laws that have been defined by Allah s.w.t. as a guidance for the whole of mankind in all fields of their lives, as seen from the aspects of activities, relations and needs.”

Synopsis

From the meaning above, we can summarize as follows:

1. Islamic Jurisprudence is a study on Islamic Laws

2. Islamic Laws are the decrees of Islam

3. Islamic Laws are a guide for the whole of mankind

4. Islamic Laws encompasses the whole way of life of mankind

5. The scope of human activities includes:

5.1 Activities of the body

5.2 Activities of the soul

5.3 Activities of the senses

6. The scope of human relations are:

6.1 The relation of mankind with Allah s.w.t.

6.2 The relation of mankind amongst them

6.3 The relation of mankind with nature (and other creatures) and

7. The scope of human needs are either:

7.1 The needs of the body

7.2 The needs of the soul or

7.3 The needs of the body and soul,

which encompasses the aspects of economy, social, political, etc.

The Periodic Stages Of Islamic Jurisprudence

In general, there are 6 periodic stages of Islamic Jurisprudence, that is:

First Stage

From the time of the Prophethood of Rasulullah s.a.w. in the year 610 AD until the year 632 AD (11 H). This stage is known as the time of Rasulullah s.a.w. or the time of the growth of the Islamic Laws. Therefore, there existed 2 stages of the growth:

• When Rasulullah s.a.w. was in Mecca for 12 years and a few months and

• When Rasulullah s.a.w. was in Medina, i.e. about 10 years.

Second Stage

From the year 11 H (632 AD) until the year 40 H. This period is known as
the era of the 4 Rightly-Guided Caliphs r.a. or the era of the interpretation of the Islamic Laws.

Third Stage

From the year 41 H until the end of 100 H. This stage is considered the era
of the birth of the schools of political thoughts (‘Mazhab Siasah’). These schools of thoughts are the:

• Shiah,
• Khawarij and
• Jumhur (Ahlus Sunnah Wal Jama’ah)

Fourth Stage

From the beginning of the year 101 H until the year 350 H. This stage is the
era of the emergence of the ‘Mujtahid’ (An Islamic scholar who is competent to interpret divine law or ‘Shariah’ in practical situations using ‘Ijtihad’ or independent thought) and the era of the compilation of knowledge in book form. Among the knowledge that were written:

• Grammar
• Semantics
• Literature
• Astronomy
• Hadith
• Fiqh (Jurisprudence)
• Philosophy
• Medicine
• Agriculture, etc.

This era also saw the birth of 2 schools of juristic thoughts (‘Mazhab Fiqh’), i.e.:

• Hijaziyun (The Scholars of Hadith)
• ‘Iraqiyun (The Scholars of Logical Thought)

Fifth Stage

From the year 350 H until the year 656 H. This stage was about the loss of
‘Mujtahid Mutlaq Mustaqil’ (Absolute and Independent Mujtahid) and the start of ‘Taqlid’ (Juristic Imitation). This was because the Islamic Scholars were focusing on:

• Disapproval of laws
• Affirmation and recommendation of laws
• Ensuring the success of a certain school of thought

Sixth Stage

From the year 656 H which was the fall of the city of Baghdad until now. This stage can be considered as the era of ‘Taqlid’ maturity.