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Old Sunday, January 09, 2011
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Definition of Fiqh


The state of society in the pre-Islamic era was a story of uncivilized people, of uncultured habits and of unrefined behavior. The Arabs , primarily a martial race, lived in Arabia divided into tribes and led a nomadic life. There way of living could by no means be called systematic nor were they aware of decent conduct in their dealings with one another. They were governed by the head of the tribe, known as the chieftain who was responsible for maintaining the uneasy peace not only amongst the members of the tribe, but also between his and other tribes. Blood feuds, on paltry issues, were the order of the day. Female births were rarely tolerated and, therefor, infanticide was a common practice.

From the foregoing we can well understand the way the Arabs were leading their lives and the state of affairs that existed before the advent of Islam. it is in this perspective that we have to observe the interesting changes that followed.

Law And Religion:
The prophet Muhammad(PBUH) inspired by the first Wahi in A.D 610 began to preach Islam as a religion. He preached Islam not for his own sake but for the sake of the community. He preached to bring the most backward humanity onto the righteous and glorious path of peace, love, good conduct, justice and universal brotherhood. Islam is a religion essentially monotheistic, the religion of one God; commonly known as the " Doctrine of Toheed". Now, who is a Muslim? Any person who professes the Islamic religion, thereby acknowledging (1) that there is but one God and (2) Muhammad (PBUH) is His prophet. We should at this stage understand that the relation between Islam and Islamic Law is so interwoven that it is not possible to divorce one from the other. This is a peculiar and characteristic aspect of Islam. Therefore this inseparability, we will see, has caused religion to become the bases for Islamic Law which fact MR. Justice Mahmood has stated in these lines: " It is to be remembered that Hindu and Muslim Law are so intimately connected with religion that they cannot readily be divorced from it". The fact is that the Qur'an being the word of God is Law for Muslims thought it is essentially a code of religion.
Dr. Saeed Ramzan of the United Arab republic in his book, "Islamic Law, Its scope and Equity" , explains in the following words:

" TO gain a fair answer to such a question, one has to apply twofold method of research: on the one hand, one must examine the ethical basis of these Laws and on the other hand, one must circumscribe their actual impact in terms of positive Law."
We also quote Prof. Gibb who stated thus: " Law in the eyes of the Muslim scholars was the practical aspect of religious and social doctrine preached by Muhammad(PBUH)."

Before we proceed further a word about the terminology of"Jurisprudence". This term has been used to denote the study or the knowledge of the fundamental principles of Law. A number of Muslim authors have, while writing on Islamic jurisprudence, used different expressions; some have called it Muslim jurisprudence and some have called it Islamic jurisprudence, although the word Muslim and Muhammadan convey the same idea as the word Islamic does because both deal with Islam. The word Islam is a noun and its adjective is Islamic and Muslims and Muhammadans are those who profess Islam: thus to call their jurisprudence Islamic, Muslim or Muhammadan is one and the same thing; we prefer to call it "Muslim Law and Jurisprudence". The reason is that since the jurisprudence pertains to concept of Islam, therefore it is Islamic. Hence, for all practical purposes, we have decided to name it "Islamic Jurisprudence". The definition of Islamic jurisprudence as indicated earlier is that it is the science of the fundamental principles of Islamic Law.

Significant Changes:

Following the introduction of Islam, a number of changes took place in the Arab community. The prophet Muhammad(PBUH) announced in unequivocal and categorical terms that Islam is the message of God, the Almighty, which he was authorised to convey to suffering humanity. All human beings, he declared, are equal before God and there is no distinction of race, color or status amongst them. All are the creation of God and, therefore, should obey Him. People were called upon to practise Islam which advocates universal brotherhood. Islam means" to the submission to the will of God". When people in the dogma of the oneness of God, they have to follow His dictates. All immoral practices like infanticide, drinking of alcohol, adultery, fornication and all other evils were outlawed. Members of the Muslim community gradually learned to live a disciplined life. Their behaviour, conduct, dealings ans attitude towards one another underwent a basic change.

The rapid transformation of backward Arab community consequent upon their strict adherence to the dictates of Qur'an and Hadith, sweeping changes of a revolutionary nature took place and thus a powerful and indomitable force with unprecedented chivalry emerged. If we pause for a moment to think as who was responsible for this unprecedented transformation, we will come to the conclusion that it was the prophet Muhammad (PBUH). The Prophet(PBUH), however, put new life into them and one of the most remarkable achievements of Islam was to unify the warring tribes and inspire them with a common ideal.

Fiqh and Shari'ah

Fiqh literally means" understanding". It is the science of Law or Jurisprudence.
According to Thomas Patrick Hughes:
"Fiqh means the dogmatic theology of Muslims. Work on Muhammadan Law, whether civil or religious.

Ill-mul-Fiqh:
According to Thomas Patrick Hughes:
Ill-mul-Fiqh, Jurisprudence: and the knowledge of all subjects connected with practical religion. In the first place, Fiqh deals with the five pillars of practical religion: 1, the recital of creed; 2, prayer; 3, fasting; 4,zakat or alms giving; 5, hajj or pilgrimage; and in the other place with all questions of jurisprudence such as marriage, divorce, inheritance, sale, evidence, slavery, partnership, warfare, &c. &c.

It is the science of basic principles of Islamic Law. In other words it is the theoretical study of the legal science which concerns itself mostly with a discussion of the sources of Law, and matters appertaining thereto. It thus becomes the science of Islamic Jurisprudence. This gives us an idea of the scope of Islamic Jurisprudence.

Shari'ah:

If we give serious thought to the definition of the jurists belonging to the above referred Sunni school of thought, we shall find that these jurists have linked Fiqh with Shari'ah. Shari'ah in literal terms means "road to the watering place; the path to be followed" and technically speaking it is the canon law of Islam: the Islamic code. Law or Shari'ah is what is good or bad. Who can rightly judge this ? Not men but Allah. Therefore the Qur'an, Tradition, Analogy, all put together is Shari'ah.
There is another way of explaining as to what exactly Shari'ah is: Law is a system of social control established for the purpose of maintaining an ordered society among men. Although religion ascribes what the ideal life should be, the Law indicates the right path to follow. Shari'ah is a dispensation of justice by God among His people.

Definition of Law:

It is a communication from God with reference to man's conduct
(conscious actions)
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Development of Islamic Law




Various Muslim jurists and scholars have discussed the development of Islamic Law and Jurisprudence in their own ways. Mostly this has done from the point of view of Islamic history. But we are concerned here not with history but with development of law. We shall divide the whole development of Islamic law during the past 1500 years into four periods. The first period begins from the date when the Prophet Muhammad (PBUH) was inspired by the first revelation and terminates with the end of Prophetic career. The second period starts with the period of the first Caliph and covers the reign of four Caliphs. Some authors have extended this up to the end of the Bani Umayyah dynasty. The third period marks the beginning of the four Sunni schools of thought and then the fourth period begins where the period of Sunni schools of thought ends.



First Period:



The Prophet Muhammad (PBUH) was inspired by the first revelation by God. The whole Qur'an was then revealed to Him over a period of about 22 years. This is the period of prophetic career. The Qur'an became the first source of Islamic Law. It is this period during which not only was the Qur'an which became Law for us, revealed , but also were the precepts of the Holy Prophet(PBUH) made available to the community. This period of 23 years was marked by the most significant development of Islamic Law inasmuch as two primary sources, i.e, Qur'an and Traditions. It is for this reason that this period is known as the " Legislative period in Islam". The reason is that the Qur'an for Muslims has the force of Law: It is the embodiment of the dictates of the Almighty who is considered in Islam to be the supreme Legislator. The traditions of the Prophet Muhammad (PBUH) are no less important both in respect of their source as well as in their nature, as they are regarded as having in them the element of divinity.


Qur'an and Tradition, which format the basis of Islamic Law, laid down the following principles:


1. The executive authority of the government was established for the first time; that means with the promulgation of Islam and induction of the Holy Prophet (PBUH) into the position of the Prophetic assignment , the Prophet not only became the religious head of the entire Muslim community but also acknowledged as the temporal head of the people.


2. Justice, equality and universal brotherhood became the cardinal principles of Islamic Law.

3. War as an instrument of the State policy was enunciated. In other words, after the advent of Islam Prophet Muhammad(PBUH) declared that there would be no aggression and that wars shall be waged only in defense of Islam, Islamic state and Muslim community.

4. Reforms regarding the social status of women were brought about.

5. Individual private proprietary right was also recognized. Islam does not oppose the concept of individual property.


6. Contracts and their obligations were regarded sacrosanct. Promises were considered sacred. This is yet another remarkable tenet of Islamic Law that the rights and duties were thought as correlative and it was incumbent on Muslims to fulfill their contractual obligations.

7. Penal Laws were made and rights of God were separated from rights of men. Before Islam there was no distinction between rights of God and rights of men neither were there specific respective rules about punishments and their fixation.




Second Period:



The second phase of the development of Islamic Law is equally instructive and creative. Instructive because in this period, the vacuum created due to the exit of Prophet Muhammad(PBUH) from the scene was to large extent successfully filled by his able companions, creative because if not on so sound and solid a ground as was the case with divine law (Qur'an and Traditions) the law was developed by dint of hard effort and literal devotion by the Caliphs towards the ordinary sources of Islamic Law.

Speaking of the development of Islamic law in generally one should note that during A.H 11 or A.D 632, with the end of the Prophetic career, the community was left only with the Qur'an and the precepts of the Prophet (PBUH) for its guidance. The people eventually had to look to the trusted lieutenants of the Prophet (PBUH) Hazrat Abu Bakar, Umar, Usman and Ali (R.A). These pious people in turn had to decide matters in the light of the Qur'anic Injunctions and precepts of the Prophet (PBUH). If they felt a particular point was not sufficiently covered by the Qur'an or Traditions, they had to decide the matter in the light of reason. Another safe and reliable method, evolved by these companions, was the unanimous verdict of the group of the learned personalities known as Ijma. Ijma means the consensus of the learned people on any question of Law. Hence, consciously or unconsciously Ijma as a third source of Islamic Law, developed in this period. Even the election of the first caliph viz. Hazrat Abu Bakar (RA) as the chief executive of the community, was based on consensus. There was Ijma on the Qur'an and the Traditions as very sound and solid source of Islamic Law. Subsequent to the introduction of Ijma, as a method of reasoning, the use of Qiyas, i.e. analogy, also developed to a certain extent.

Hazrat Abu Bakar was, like others, known for his knowledge of and devotion to the primary sources of Islamic Law. For some time, after the death of Prophet (PBUH), since no Qazis (judges) were appointed, Abu Bakar, himself, administered justice.

It was Abu Bakar's farsightedness which prompted him to order compilation of the Qur'an. The compilation was completed during his reign. The manuscript prepared during the period of Abu Bakar (RA) was called "MUS'HAF".


To avoid possible confusion, it is said that the third Caliph got all other collections of the Qur'an destroyed retaining the one compiled by Zaid bin Thabit. This copy is considered to be the most authentic and infect this is the same Qur'an we still have amidst us.

The administration of Hazrat Umar (RA) is noted and stands out amongst the four Caliphs. Hazrat Umar (RA) was both learned as well as well balanced in his views. He was equally bold and courageous. It was He who appointed the first Qazi. This shows that he had taken steps to separate judiciary from executive. He also believed in the supremacy of Law and the independence of judiciary.


Hazrat Ali (RA), for the first time , systematically defined the powers and the jurisdiction of Qazis. He was a noted jurist like Umar. He, in fact, completed the task begun by Hazrat Umar in regard to the streamlining of the judicial machinery. This marks the end of the Caliphate, thereafter the rule of Bani Umayyah had begun: they had removed the seat of Caliphate to Damascus.



Taken as a whole, the period of Caliphate the age of rightly guided Caliph, was the golden age of Islam. It is this period which has witnessed the rise and fall of the institution of Caliphate: it is the second phase in the development of Islamic Law which is marked by the emergence of Ijma and to a certain extent Qiyas as a source of Islamic Law. The administrative decrees issued by the early Caliphs supplied answers to many legal problems.



Third Period:


We had indicated in the concluded stages of the second period that the period of Bani Umayyah had set in and the seat of activity was shifted to Damascus.Bani Umayyah were less known for their love and interest for knowledge. During this process came the downfall of this dynasty which was replaced by Bani Abbas. This dynasty was more awakened to learning and gave due encouragement developing the science of jurisprudence. It was in the reign of Bani Abbas that the four Sunni schools of law were founded.

Imam Abu Hanifah was the most out standing jurist of the four and he was responsible for developing the theory of Istehsan known as "Juristic Preference: which, eventually emerged and established itself as a source of Islamic Law.While Abu Hanifah was the first to have started the study of jurisprudence as a separate science, Imam Shafe'i was a pioneer in writing a book on jurisprudence. Hazrat Imam Malik is known by his "doctrine of public good". Imam Shafe'i accepted Qiyas and extensively used it to deduce rules of Law. It was again to the credit of Abu Hanifah that rules for the authenticity of the Traditions developed.

Imam Shafe'i was a learned personality, which the third period of Bani Abbas had produced. He also contributed his share to over all development of Islamic Law and Jurisprudence. He promoted the idea of studying Fiqh and Traditions from the technical point of view and himself worked intensively in the same direction. Hazrat Imam Malik and Ahmad bin Hanbal were also noteworthy for their services to the cause of the development of Islamic Law. As a whole this period is by far the most glittering, as in this period there came, into use economic terminology, a boom for knowledge and evolvement of new theories and formulas to meet the requirements of the time.

To sum up, we can say that in this age the compilation of Traditions was undertaken: Fiqh as a science of Islamic thought was studied, Commentaries were written both on Qur'an and Tradition and the fullest use was made for the development of legal notions.This was the last phase of the schools of thought when great teachers of Traditionary learning succeed the last Imam. The most out standing among them are known as the Imams of Tradition, as distinguished from the Imams of jurisprudence. We refer here to Abdullah Muhammad Abu Ismail al-Bukhari, Commonly known as Bukhari, who devoted his life to the scientific investigation of Traditions. Along with Bukhari, the names of Muslim Bin al Hajjaj, Tirmizi, Abu Daud, Ibn-e-Majah and Nisai are noteworthy.

Similarly the study of Qur'an and the science of its interpretation was undertaken during the fag end of this period.


Fourth Period:


After the close of third century of the Hijra, no significant work of research for the development of Islamic Law was done.The jurists who came into this period were conscious of the fact that all round development to the maximum extent had taken place. They paid attention only to such questions as had not been tackled by the Imams or their disciples. Sadru'sh Shari'ah was one of the last lawyers belonging to this age.

There has since been no significant research on Islamic Law, therefore the Law became static and its progress was retarded. The other view is that irrespective of the fact that the development of law was almost complete in the preceding age, we should not underrate the importance of the works done by the jurists of this age. In fact, this is by dint of hard labor put in by them that the intricacies of law are now known to us. We cannot, therefore, deny the services also rendered by the learned people of the fourth period.
That is why it is rightly said that if the Qur'an and Tradition are legislation, and Analogy is common law, Istihsan becomes equity.
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Old Tuesday, January 11, 2011
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Development Fiqh during the Umayyad Period (662 AD-750 AD)



According to Sir Abdur Rahim:

" The first act of the Umayyad dynasty was to remove the seat of the Caliphate to Damascus, out side the limits of Arabia Proper. Through they were at the head of the state as Caliph, they were not generally speaking noted for their knowledge of the sacred laws".

Ameer Muawiya (661-680)
He was the scribe of the Holy Qur'an. He established a royal library. There was no contribution in the field of fiqh during his period as a Caliph.

Abdul Malik bin Marwan(685-705)

Hijjaj Bin Yousaf introduced vowel points in the Holy Qur'an but according to historians, it is wrong that Hijjaj Bin Yousaf introduced vowel points with the permission of Abdul Malik Bin Marwan. Actually, credit goes to Abdul Aswad Al-Duali (688Ad), The pupil of Caliph Ali Who introduced vowel points, followed by Nasr bin Asam and Yahya bin Yamar, The pupils of Al-Duali. During the period of Abdul Malik bin Arwan, Saeed Bin Musaib wrote first comprehensive commentary.


View of Prof. R,A, Nicholson

Prof, R.A Nicholson says:
"Abdul-Malik's Viceroy in Iraq the famous Hajjaj, who began his life as a School-master, exerted himself to promote the use of vowel marks(borrowed from the Syriac) and of the diacritical points placed above or below similar consonants."


Waleed Bin Abdul Malik (705-715 ad)

He encouraged the jurists. the technique of paper making was introduced in 712 AD. in Samarkand. After this, the Muslim scholars prepared manuscripts of the Holy Qur'an and Hadith. Thus the knowledge of jurisprudence spread in the later period.

Umer Bin Abdul Aziz (717-719 A.D)


A bright exception must, however, be made in favor of "Umar Bin Abdul Aziz", who was remarkable not only for his rigid piety, but also for his extensive knowledge of law and the traditions. There are many traditions which rest upon his authority.

Contribution of Hisham Bin Abdul Malik (724-743ad )

Hisham patronized Fiqh. Imam Zuhri during this period, collected four hundred Traditions. It was all due to encouragement and motivation of Hisham that Imam Zuhri completed this work.

Commencement of the study of Law as a Science:

Sir Abdur Rahim says:


The Qadi still administered justice, but law during the reign of the Umayyad grew and developed only in the lecture rooms of the professors, who did not come into contact with the practical concerns of the administration of justice. The zeal, however, for the study of law did not abate, and during the later days of the Omayyad was largely influenced, at least in Iraq and Mesopotamia, by the recently introduced sciences of divinity and scholastic logic. It is in this newly awakened scientific spirit that we must seek the beginning of the science of Muhammadan Jurisprudence. The distinction of first classifying the laws under different subjects, of introducing the use of technical phraseology, and or arranging the different sources of law is ascribed by some to Wasil Ibn' Ata, the founder of the Mu'tazila sect."

Prof. R.A Nicholson says:
"The real founder of Mutazilits was Wasil b. Atta(748 ad) who added a second cardinal doctrine to that of free will."


Religious Tradition and Canon Law during the Umayyad Period:


P. K. Hitti says about the development of religious and Canon Law during the Umayyad Period:


"The Qur'an and Tradition provided the foundation upon which theology and fiqh, the obverse and reverse of sacred law,were raised. Law in Islam is more intimately related to religion than to jurisprudence as modern lawyers understand it. Roman Law, directly or through the Talmud and other media, did undoubtedly affect Umayyad legislation, but to what extent has not been fully ascertained. In fact, of this period, from which hardly any literature has come down to us, we know only a few of the traditionists and jurists, the most renowned of whom were al-Hasan al-Basri and Ibn-shahiab al-Zuhri." (742)

Al-Basri was highly esteems as a transmitter of tradition, since he was believe to have known personally seventy of those who took part in the battle of Badr.

Among the celebrated Companions, regarded as authorities on Muslim Tradition, who settled in Kufah during the Caliphate of Umar and Usman was the red haired, thin legged' Abdullah Ibn-Mas'ud (ca 653), who is said to have been responsible for eight hundred and fourty eight traditions.


Equally distinguished among the Kufan traditionists was al-Shah'bi(ca 728), one of the many south Arabian who gained eminence in the early days of Islam, who is said to have heard traditions from some hundred and fourty companions which he related from memory without putting down a single line in black and white.

The most eminent of al-Shahbi's pupils was the great Abu Hanifah. We have it on authority of al-Shah'bi that he himself was sent by the Caliph' Abd-al-Malik on an important mission to the Byzanine emperor in Constantinople.
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Old Wednesday, January 12, 2011
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Life and works of the Four Imams



Imam Abu Hanifah:


Abu Hanifah Nouman Bin Thabit was born at Kufain Iraq, in 80 of Hijrah of A.D, 699 during the Bani Umayyad period. He started his literary career by learning Ilm-ul-kalam of scholastics. His tutor Hammad bin Abi Sulaiman tought him Islamic jurisprudence.Later he learnt the Traditions from the eminent personalties such as Al-Shai'bi. Abu hanifah was also a pupil of Imam Ja'far.

Work:
Gifted as he was with exceptional talents, he very soon mastered the subjects he learned and was in a short time reckoned as an expert in the line of Fiqh(Jurisprudence). Hanafi school of thought, therefore, was subsequently recognized as the upholders of private judgments. Abu Hanifah compared to other Imams relied more on his power of reasoning. He was in favor of formulating independent views as he maintained that human beings are endowed with the faculty of mind which they have a right to use in arriving at legal conclusions. Since his school of thought emerged in Iraq, a place away from Madinah, the ancient seat of learning, complexities of life and new situations had influenced the learning of the scholars and this, to a large extent, is the reason, that the Hanafi school is popular as the upholder of private judgment as against the Shafe'i school of thought called, the upholder of Traditions or Ahl-e-Hadees.


Abu Hanifah wrote no books, but he lectured to and discussed juristic problems with a number of brilliant followers who tool it upon themselves to commit to writing and to implement the master's views.

He was the first to have introduced Fiqh as a science. He was the one who extended the concept of Ijma to all ages and nt just confined it to the period of the companions and their successors.

Particular Life:
Abu Hanifah, in his practical life, was a business man but later thirst for knowledge compelled him to learn jurisprudence and the science of Traditions. About his approach towards Traditions it is said that he was very discreet in accepting them.


Juristic Equity: (Istehsan)
As regards his legal acumen and depth of knowledge, mention must be made of theories he formulated in jurisprudence, particularly the theory or the principle of Istehsan known as juristic Equity, a principle similar to Analogy, but not identifiable with it. Juristic Equity later became one of the recognized sources of Islamic Law.


Imam-e-Azam:
Abu Hanifah, because of his exceptional achievements in the legal field was given the title of Imam-e-Aaazm(the greatest Imam).



In the last stages of Bani Umayyad, Ibn-e-Habaireh, the governor of Iraq had offered him the office of Chief justice, which Abu HAnifah declined. It is said that due to this refusal he was subjected to ill-treatment.


Disciples:
Abu Hanifah left behind several disciples, some of whom subsequently became very popular. They were Abu Yousaf, Zafar bin Hazeel bin Qais, Muhammad bin Hassan bin Fuqahd Shibani and Hassan bin zaid Luloi. Two of them Abu Yousaf and Imam Muhammad were outstanding personalities.

Followers:
The followers of this school spread in Egypt, Lebanon, Tunis, Turkey, Afghanistan, Turkestan, the Indian subcontinent and China. It is estimated that two third of the Muslim population of the world are Hanafis.

Abu Hanifah was basically a jurist and his school of legal thought gained more and more prominence after his life. This school ultimately became the most popular of all. Amongst the recognized works on the Hanafi school was Al-Hadayah written by Burhanudin. Another reason this school became popular was the acceptance of it by the Abbasides Caliphs for court matters.


***-----------------***



Imam Malik


Malik bin Anas asbahi Al Arabi was born in 95 of Hijrah at Madinah, and established his school called"Madanese school". In fact this school had already taken root much before Imam Malik's period. It was founded when Umar, his son Abdullah bin Umar, Zaid bin Thabit and Hazrat Aisha were contemporaries. Later on, after the migration to Madinah of Prophet Muhammad(PBUH) Madinah became the seat of learning for Traditions. Imam Malik was both a jurist and a traditionist. He was so well versed in Traditions that he was considered as authority on it and was approached for his Fatawas. He was tutor to Imam Shafe'i, who was impressed by his knowledge and personality. Imam Shafe'i called him"the glittering star of the science of Traditions." He was so frank in his opinions, bold in his expressions and rigid in his belief and strong in faith that he was a fearless speaker.

When Caliph Haroon Al Rasheed, the greatest man of the age, wrote asking Malik to come to Baghdad so that the Caliph's sons might learn from him, Malik answered. "Knowledge does not ravel but is traveled to!"

It is stated that he declared a fatwah that forced conversion to Islam is undesirable, rather unislamic. The result was that the governor of Madinah at the time Ja'far bin Suleman, punished him with flogging. In his studentship he was taught jurisprudence by Rai Abdur rehman.

Disciples:
Amongst his disciples are Imam Muhammad bin Hasan Shaibani and Imam Shafe'i.

His Work:
Imam Malik's work, Mawatta, is an authoritative work on Traditions. It was regarded so authoritative that according to Imam Shafe'i, Mawatta Malik ranks next to the Qur'an as far as any book after Qur'an is concerned. It contains 300 Traditions. Being in a better position than Imam Abu Hanifah to be acquainted with the laws as laid down by the companions and their successors, he incorporated them to a large extent in his system. He was much in favour of usages and customs of Madinah.


Doctrine of public good
He introduced the doctrine of " Public good" almost similar to that of Imam Abu Hanifah's "juristic equity" (istehsan. He also added istidlal, yet another source of Islamic Law.

Death:
Imam Malik was flogged to death by Abu Ja'afer Al Mansoor in A.H 179 or A.c 795.


Followers:
[COLOR="Navy Blue"]The North African extended the dominion of Maliki Law to all the territories of west Africa. Islamic Spain had known no other school of law during its seven centuries of history. [/COLOR]
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Imam Shafe'i


Muhammad bin Idrees Ash Shafe'i was born in Palestine at Gaza in 150 of Hijrah. He was a descendant of Abdul Mutalib. He attended lectures of Imam Malik in Hijaz on the law and Traditions. He also llearned much from Muhammad Shaibani, the pupil of Abu HAnifah.

He came to Baghdad A.H 195, where he gave lectures on the traditions, and composed his first work, entitled as Al-Usul. From Baghdad he went on a pilgrimage to Makkah, and from thence afterward passed into Egypt. There he met with Imam Malik. It does not appear that he ever returned from that country, but spent the remainder of his life there, dividing his time between the exercises of the religion, the instruction of the ignorant, and the composition of his later works.

His travel to Arabia, Egypt and Iraq influenced his earlier views when he was in favour of the school of thought established by Imam Malik. He was noted for the balance of judgment and moderation of views. He had acquired mastery over deduction of law and delighted himself initiating legal discussions.

He was a great enemy to the scholastic divines, and most of his productions were written with a view to convert their absurdities . Imam Hambal remarks that until the time of ash'shafe'i men did not know how to distinguish between the traditions that were in force and those that were canceled.

He was not as strict about verification and acceptance of traditions as was Abu Hanifah and, therefore, he called his school as the upholders of Traditions as against Hanfi school which was called "the upholders of private judgment". Although reckoned as the upholder of Traditions, yet he used to examine the Traditions critically. He used to deduce legal rules from the Qur'an, Traditions, Ijma and Analogy.


Disciples:

His disciples were Imam Ahmad Bin Hambal, Dawood, Zuhri and Ismail Mazani. He was first to have written a slandered book on Jurisprudence.His works include Kitab-ul-Umm which contains a through discussion on various aspects of the theoretical science of law. It contains matters connected with Ibadat, Muamilat, Punishments and family laws.

His next literary productions were the Sunan and Masnad, both works on the traditional law, which are held in high estimation among the Sunnies.

It was Imam Shafe'i, says Majeed Khuduri in his translation of Islamic Jurisprudence or Shafe'i's Risalah who provided in ninth century of the christian era, a systematic legal method by whisc to synthasize the various legaldoctrins into a coherrent system.

The Qur'an, points out Imam Shafe'i, is the basis of legal knowledge; its provisions constitute a perspicuous declaration on all matters (Al-Qur'an, chapter 3, verse no. 132) spiritual and temporal which men are under obligation to observe.


Followers:
Egypt was the centre of the Shafe'i school of thought, but it is now spread in Jordan, Palestine, Lebanon, Iraq, Hijaz, India and Pakistan, Indo-china and Jawa. The total streangth of his followers is about ten crores.

His tomb is still to be seen at Cairo, where the famous Salah-ud-din Ayyoobi afterward (A.H. 587) founded a college for the preservation of Shafe'i's works and the propagation of his doctrines.

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Imam Hanbal


Abu Abdullah Ahmad bin Hanbal was born in 164 of Hijrah, corresponding to A.D 780 at Baghdad. He traveled extensively to the Middle eastern countries for the sake of learning. His tutor was Imam Shafe'i. As for his approach towards legal matters. He relied on the Qur'an and Traditions and thus remind contented in looking for solution of problems from these sources. It is, therefore, rightly stated by Muslim authors that he was basically a Traditionist so much so that some regard him equal to Imam Bukhari and Muslim. He was averse to exercising Ijtihad. His interpretation of Traditions was strictly literal.

Attitude:
He based his attitude on the following principles:

1. Quraan and Traditions;
2. Fatwas of the companions of the Prophet (PBUH), provided they are not contradicted any other saying of the Prophet (PBUH).
3. Saying of the companions provided they are in accordance with the Quran and Traditions;
4. Disconnected and isolated Traditions; and
5. Qiyas acceptable as a last resort.


He was a saintly person. His teachings were characterized by blind reliance on Traditions of the four Sunni schools. The Hanbli school ranks fourth in order of prominence and popularity. His only authoritative work available to us is Musnad. This is a collection of Traditions which consists of six parts containing about fifty thousand sayings of the Prophet (PBUH).

According to Hatti, These are a little more than twenty-eight thousand only. This is a collection of Traditions which consists of six parts containing about fourty thousand sayings of the Prophet (PBUH). This school spread first in Baghdad and then in Egypt. Later during A.H, Hijrah corresponding to AD 1800 one, Shaikh Muhammad Bin Abdul Wahab, exploited the Hanbli school in renaissance of the Muslim movement which subsequent was named as the Wahabi movement.


Followers:
The king of Saudi Arabia, Sultan Abdul Aziz, also supported the Hanbli school. The followers of this school are found in Palestine, Iraq and Syria. The total strength of the Hanbli followers all over the world is around thirty lakh.

Death:
Imam Ahmad bin Hanble was tortured to death in AH 241 by Al-Mamoon Al-Mohtasim on account of the differences on the theory of Khulq-e-Quran thus bringing to an end the magnificent and profound character of this position in Sunni sect.
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Sources of Islamic Law




The Holy Quran

According to Vincent J. Cornell:
The term Quran most often used and translated as "reading" or "recital". As a verbal noun (masdar) of the form ful'an, Quran carried the connotation of of a "continuous" reading or "eternal lection" that is recited and heard over and over. In this sense, it is understood both as a spiritual touchstone and a literary archetype. As a title, al-Quran refers to the revelation (tanzil) "sent down" (unzila) by God to the Prophet Muhammad (PBUH) over a period of 22 years (610-632 CE). In its more universal connotation, it is self-expressed Umm-ul-kitab or paradigm of divine communication (13.39). For all Muslims, The Quran is the quintessential scripture of Islam.

Compilation and preservation:

The Holy Quran is the word of God revealed to the Holy Prophet (PBUH) through Gibrail. The Quran was revealed in portions, which were written and committed to memory. The revelation of the Quran continued from 609 to 632 A.D, throughout the Prophetic career of Prophet Muhammad(PBUH). As the Quran revealed piecemeal, its verses and chapters were preserved by Zaid Bin Thabit under the orders of Prophet Muhammad(PBUH).

According to Prof. R. A. Nicholson, the Quran was preserved by various methods. After the inspiration or shortly after to quote Nicholson:

"Each passage was recited by Muhammad (PBUH) before the companions or followers who happened to be present, and were generally committed to written by some one amongst them upon palm leaves, leather, stones or such other rude material as conveniently came to head . These divine messages continued throughout the three-and-twenty years of his Prophetic life, so that the last portion did appear till the year of his death.

Among those whom the Prophet (PBUH) asked to write down the portions of the Quran were Zaid bin Thabit, Abu Bakar, Umar, Usman, Ali, Zubair, Hanzala, Abdullah bin Rawaha, Ibn-e-Masud, Abdullah bin Saad and Khalil inter Alia. Thus there were to processes to preserve the Quran:
1: In Writing
2: In memory


The Holy Quran was arranged by the Prophet (PBUH) under the guidance of the Holy Spirit. After the death of the Prophet (PBUH) , during the caliphate of Abu Bakr many Qurra died in the battle of Yammama in 11 A.H. Caliph Umar requested Abu Bakr to get compiled a written copy of the Quran. Zaid Bin thabit compiled and prepared a standard copy of the Quran from the manuscripts written in the presence of holy Prophet (PBUH) following the order of the chapters which was followed by the reciters under the directions of the Prophet (PBUH). Thus the Quran was arranged and written on paper in book from. It was then in the safe custody of Khalifa Abu Bakr. After the death of Caliph Abu Bakr, the copy of the Quran remind in the custody of Caliph umar. Hazrat HAfsa kept it in her safe custody after the death of his father caliph Umar.

With the expansion of Islam, the diferance of tone and dialect brought variation in reading of the Quran. Caliph Usman at once consulted the leading companions of the Prophet (PBUH) and set up a committee consisting of Zaid bin Sabit, Abdullah bin Zubair, Abdur Rehman bin Harit bin HAshim and Said bin A'as for preparing a standard copy of the Quran. They made a large number of copies from the copy of Hazrat HAfsa. THe original copy was returned to her. Caliph Usman sent to every centre one of the copies thus made. All previously existing copies were, by the caliph's command, committed to the flames.

Caliph Usman thus finally collected and compiled the Quran.Later on Hajjaj bin Yousaf, the Umayyads Governer of Iraq, inserted the vowel points in the Quran. It was for the convevience of non-Arab Muslims who experienced a difficulty regarding promounciation of the Quran as it was without vowel points.

According to Abdullah Yusuf Ali:

"The purity of the text of the Quran through therteen centuries and a half is a foretaste of the internal care with which Gods truthis guarded trough aall ages. All corruptions, inventions, and accretions pass away, but Gods pure and Holy truth will never suffer eclips even though the whole world mocked at it and were bent on destroying it".

Famous orientalist R.A. Nicholson says about the Holly Quran:
"Its genuineness is above suspicion. We shall see, moreover, that the Koran is an exceedingly human document, reflecting every phase of Muhammad's personality and standing in close relation to the outward events of his life, so that here we have materials of unique and incontestable authority for tracing the origin and early development of Islam-such materials as do not exist in the case of Buddhism or Christianity of or any other ancient religion.




Importance of the Holy Quran

The Holy Quran is a complete code of life. It offers the most scientific, social, political and economic systems that are unique in the worled. The Quran deals all that a man requires from the cradle to the grave. It is also a unique document of historical value. It depicts pre-Islamic life and activities of ancient nations.


Quran brought a miraculous change in the lives of mankind. It is an encyclopedia of Laws and legislative. It was the wonderful effect of the Quran that within a short period of twenty dash three years, the uncivilized Arabs were transformed into a civilized nation of the world.


Boswarth Smith called it a code of laws, Margoliouth remarked that the Quran first gave impetus to renaissance in Europe. According to Sir William Murry, Quran is a pure text book:

"Usman Bin Afaan narrated that the Holy Prophet (PBUH) Send: the best amongst you is who recites the Holy Quran and teaches it to others".
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Quran As A Source of Law


The Holy Quran is a book which contains multifarious verses concerning law and jurisprudence. It is surely an encyclopedia of Laws, a legal manual and and a source of guidance for mankind.

According to Joseph Schacht, The Holy Quran deals with the following branches of law:

  • Dietary Laws
  • Fiscal Laws
  • Laws of contracts and Obligation
  • Family Laws
  • Laws of Inheritance and Legacies
  • Penal Laws
  • Procedural Laws and Evidence
  • Administration Laws
  • Laws of War


It also deals with various social Laws.

The Holy Quran is a source of following laws:

1: Criminal Law
Injunctions regarding Hudud have been laid down in the holy Quran:
  • Zina (surah al-Noor: 2)
  • Saraqah (Theft)
  • Harabah (Highway docoity)
  • Qadhaf
  • Irtidad (Apostasy)
  • Wine-drinking
  • Rebellion

The Holy Quran also gives Laws concerning Tazirat.

2. Family Laws
Laws of marriage, dower, legitimacy, guardianship, maintenance, Hiba (gift), Will, Waqf, Talaq and inheritance have been given in detail in the Holy Quran.

3. Law of Evidence
Law of Evidence has also been crystallized in the holy Quran. Adducing evidence has been made obligatory by the Holy Quran. Evidence of women is also admissible.

4. LAw of Contract
The Quran is the main source of Islamic Law of Contract. Detailed rules concerning buying and selling, riba, Amanah,Waddiah, shirkah and mudrabah, Qard-e-hasanah etc. have been given in the Holy Quran.

5. Law of torts
The Quran contains detailed laws concerning Torts against property e.g, ghasab , privacy, nuisance, homicide, Qisas, Aqilah, injuries to human body, negligence defamation, fraud, torts against women,racial discrimination, self defense etc.

6. Administrative Laws
Laws concerning judiciary, executive and legislature, head of an Islamic state, rule of law, natural justice, freedom of persons, fundamental human rights, bureaucracy, armed forces, media, central religious institutions like mosque as a place of learning etc have been given in Holy Quran.

7. Constitutional Law
The concept of State, The office of Imam or head of an Islamic state, Principles of policy and laws relating to constitutional law have been ordained in the holy Quran. The Holy Quran envisages a welfare state. It is thus an ideological state.

8. Fiscal Law
Laws regarding sources of revenue, spoil of war, Zakat, Al-jizyah, Al-Ushr, Al-khiraj, Al-fay, the khums inter alia have been laid down in the holy Quran. Thus the institution of Waqf was established because of the Quranic teachings.

9. Private and Public International Law
Laws concerning private international law e.g matrimonial laws, foreign marriage, and exclusion of foreign laws on account of public policy have been given in the Holy Quran. Islamic public international law deals with the concept of nationality or Ummah, international treaties, war (jehad), immunity of diplomats and prisoner of war.

10. Law of Blasphemy
Blasphemy is Kalima-tul-kufr and according to the Holy Quran penalty for blasphemy is death.

11. Commercial Law
The Holy Quran contains detailed commercial Laws. Rodney Wilson says:
"The Quran provide a code of Laws.
The Holy Prophet Muhammad (PBUH) had first hand knowledge of commercial Laws."

The Meccans were traders in pre-Islamic Arabia. The Holy Quran thus provided the complete guidance to the Arabs after the advent of Islam in commercial matters.
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Principles of Interpretation


Muhammad Hashim Kamali in his book "Principles of Islamic Jurisprudence" says:

"These rules are instrumental as an aid to the correct understanding of shariah". It is the duty of the mujtahid to follow the rules of interpretation . "The function of interpretation is to discover the intention of the lawgiver."

What is Interpretation? (Tafseer)
Interpretation of the Quran is called Tafseer. Its old terminology is Taweel.

According to Imam Ibn-e-Tamayya:

''We should refer to Quran and Sunnah and sayings of the companions for Interpretation." Such Tafseer is called Tafseer bil Mathur' whereas modern works on Tafseer are called Tafseer bil raiy.


Principles


View of Shah Wali Ullah
He opines in his book "Al-Fauzul-Kabir" that:

1. The jurist/Mujtahid must have knowledge of Uloom-e-khamsa i.e. five branches of knowledge viz.

  • Ilm-e-Ahkam
  • Ilm-e-Makhasma
  • Knowledge with regard to study of universe and its creation
  • Knowledge concerning accountability in the life hereafter.
  • Knowledge with regard to doomsday inter alia


2. Another principle is that the interpreter must have full knowledge of the Holy Quran and Sunnah. Background of the Holy Quran, classification of the chapters of the Holy Quran etc, must be in the knowledge of the jurist working on a point of law and its interpretation.

3. Clear meaning does not needs interpretation.

4. He must have full command of Arabic language.

5. Principles of Jurisprudence must be known to him.

6. Another principle of interpretation is that theory of abrogation must be in his knowledge.

7. Where the meanings are clear and obvious these should be followed strictly.

8. Where the words are unclear, the difficulty arises.
For example the Hadith that "the killer shall not inherit"
According to Imam Malik, it does not include Qatl-e-khata whereas Imam Abu Hanifah debars all killers. To remove the ambiguity in Khafi verses or dicta of the Prophet (PBUH) is usually a matter of ijtihad.


9. Where the meanings are intricate , such words need not be interpreted.

10. The jurist must take into consideration the literal and metaphorical meanings of the text.

11. The homonym words should also be taken into consideration.

12. The jurist must take into consideration:

The explicit meaning
The alluded meaning
The inferred meaning (This is a meaning derived from the spirit and rationale of legal text).
The required meanings


13. Technical meanings must be followed accordingly. Similarly legal meanings must be interpreted accordingly.

14. Knowledge of history, political science and other matters like metempsychosis is also necessary for the interpreter. Similes and metaphors should also be taken into consideration while interpreting the text.

These rules are also given in a Pakistani jurist Maulana Muhammad Malik Tandu Allahyar in his book Usul-e-Tafseer.
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Default what is the difference..?

is there any differece between muslim law, muslim personal law and islamic jurisprudence....

somebody comment please, i am new to this subject, thanx
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