Introduction to the Shariah

Islam is a religion and a way of life, extending into all areas of the communitys existence and activity. Because of this concern for all of life, law became central from the earliest period when Muhammad (p.b.u.h) was bringing the new community into being in Medina

Literally means a water hole, where animals gather daily to drink, Or the straight path according to its Quranic usage: Then we put thee on the right way of religion, so follow thou the way and follow not the desires of those who know nothing (ignorance) al-jatiyyah 18, This verse characterises the Shariah as the right way because adherence to its guides one to the true path of guidance set by Allah (sirat al- mustaqim) Accordingly, the Shariah literally stands for a straight path which guides man to the true path of Islam. It is a way of moral, spiritual and intellectual life in the same way as Shariah (water hole) led people in pre Islamic Arabia to the source of water upon which all physical life depends
Islamic Studies Islamic Knowledge & Science

What is Shariah ?

In arabic word meaning =The right path to be followed. It is the path not only leading to Allah, the most high , but the path believed by all Muslims to be the path shown by Allah, the Creator Himself through His messenger, Prophet Muhammad in Islam. Thus came to mean law

The contemporary Muslim scholar Fazlur Rahman has translated Shariah as the ordaining of the way indicating the laws divine source and purposeful direction. For muslim, God is the sole legislator, and jurisprudence

Sayyid Qutb said they are equipped with nothing but fancies and ignorance when they undertake the task which is no concern of theirs and does not properly belong to them. They claim to one of the properties of divinity is a great sin, and a great evil

Jamal al-Banna says Shariah denotes all that Gods ordains for Muslims, whether they are embodied in the Quran or in the Sunnah. These ordinance of God subsumes within their provenance the subject of Aqidah, rules of ethics, for refining Muslim behaviour at personal as well as national level, and legal rules (ahkam) pertaining to their actions.

The Purposes of the Shariah

Every law is oriented towards certain purpose. The Shariah, being a divinely inspired code for human conduct, also has its own aims and objectives. Its has its own whims and fancies so that he may become a true servant of God. As we read in the Quran: Then we put thee in the right way of religion : so follow thou that way and follow not the disires of those who know not (alJathiyyah 18

To enable man to serve Him, God has designed His laws to secure mans interest and safeguards his well-being (maslahah), both in this world and the hareafter.

Consequently, the Shariah being embodied in the Quran and the Sunnah, do not represent only legal commands and prohibitions, or crimes and punishments (contained in ahkam). Bulk of its content are devoted to teaching the faith as well as teaching ethics. Its references pertaining to the function and creation of the universe are designed to guide man to the Almighty Creator

Its anecdotes and narration pertaining to prophets and their practise in preaching their divine message . Offer a wealth of moral and intellectual frames of references for the adherents of Islamic faith and mankind. Therefore, the Shariah as a system of divinely inspired code of conduct does not only guides man in his ideological, moral and all temporal affairs. As such the distinguishing features of Shariah are as follows:

1. It originates from divine source.

His are the creation and command al-araf 54. The implication therefore are: 1)The Shariah is free from any weaknesses like injustice and oppression that a man-made law suffer 2)The Shariah legal rulings and its system of morality, command the highest degree of respect and readiness to be followed by believers as the commitment to obey them lies deep inside their conscience and sense of devotion towards religion. 3)The Shariah prohibitions if violated carry double sanction, enforcement in this world and punishment in the hereafter. For instance, deliberate killing of a human being carries capital punishment in this world and eternal damnation in the hereafter.

2) It is universal system of permanent validity.

Its commands cut across the boundaries of colour, race, and geography. It embodies value systems and prinsiples which perpetually remain essential for well being of manking and continuation of their prosperity and survival. Thus it never becomes irrelevant and continues to be suitable for application in mans life at all times and anywhere. The reasons are :

-The Shariah as a whole is a divine mercy from God, the Creator, conferred for mankind : And send you not, but as a mercy for all creatures. Al-baqarah 179. Primarily because the Shariah in its entirely aims at safeguarding the human interest (maslahah) Its rules contain enormous flexibility to in valid for apilacation at all situations, normal or abnormal (emergencies). For instance, in matters of worship, a man is able to perform solah at all times, even when healty or ill. In politics, socials life and economics. The Quran and the Sunnah do not prescribe details technical forms and methods. Insteads they contain broad and universal principles within whose parameter, Muslims from time to time can ditermine and adopt the forms of gonerment and the type of business ventures that will suit them best

3)It is comprehensive :

Its imperatives are broad and all-embracing, so much so, that no aspect of human life from the details of family life to broad principles of governance and international relations, is overlooked.

4)It is realistic and practical:

It is not a visionary and idealistic system only but it is visionary, idealistic and most important thing it is practical .

I S L A M I C K N O W L E D G E & S C I E N C E

Conclusions: 1.In Islam Allah alone is the sovereign and it is He who was has the right to ordain a path for guidance of mankind. 2.Muslim are obliged to strive for the implementation of that path , and of no other path. 3.Allah state We made for you a law, so follow it, and not the fancies of those who have no knowledge 4.. every Muslim is compulsory to follow the path and to
implement it into his daily life

Definition of Fiqh
Linguistically, means an in depth understanding Technically, it refers to the sciences of derived practical legal rules relating to human conduct, as acquired from their detailed Shariah evidences (sources) Anyone who was knowledgeble in matters of religion, was called faqih. Later on term evolved and was coined into a more specialized technical concept, signifying the academic field devoted to the subject of Islamic Law, its legal system and matters of Ibadat , thus fiqh sense refers to

Islamic Knowledge & Science

Fiqh
I S L A M I C K N O W L E D G E & S C I E N C E

1.A sciences devoted to the exposition of deduced practical legal rules construed from the Shariah evidences. Deduces practical legal rules, in this context in contradistinction to theoretical rules, do not partake matters of Aqidah and ethics. The technical name for legal rules is Hukm . 2.A body of knowledge developed by human intellectual activities (ijtihad). Human reasoning to understand and interprete divine guidance (embodied in the Quran and the Sunnah) in new and changed situaitions and to apply it to actual situations in life has yielded to this body of knowledge, called fiqh.

The Relation Ship Between Law And Morality The whole corpus of Islamic law is deeply rooted in ethics.
Inner purify of soul is as important as the external manifestation of belief in action (belief and do right).

2.

3.

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Islamic law is an indivisible totality as its derived from revelation and possesses the same and uniform divine sanction. As to be obey the rule af law as an incumbent duty upon Muslims without formally distinguishing between justiciable and non juisciable actions. Any dualism between law and morality that plaques the western jurisprudence has no place in Islamic legal Philosophy.

Differences Between Law and Morality

I S L A M I C K N O W L E D G E & S C I E N C E

Generally, as establish above, law and morality represent the twin elements of one and the same action (amal) that is demanded and required by faith as both form the indivisible aspects of Shariah, revealed by God, However, in terms of function there are some delicate points of distinction between the two, namely: The prime concern inmorality is to enhance Muslims inner tendency to uphold virtue and shun evil. On the other hand, law enacts measures to ensure the practical manifestation of moral senses and to discuorage moral deviation. Morality focuses on the internal dimension of Islam while law takes care of external requiremant of the Shariah.

The central notion of justice in the shariah is based on mutual respect of one human being by another. 2 Respect for persons was the motivating thought behind the kalimat as-shahadah. 3 Respect for persons in the shariaah is rooted in the Divine injunctions of the Quran and the precepts of the prophet

means the best among you in the eyes of Allah are those who are stronger in Taqwa (fear of Allah)

Justice as respect to People

The central notion of Justice in the Shariah is based on mutual respect of one human being by another. 1.The just society in Islam means the society that secures and maintains respect for persons through various social arrangements that are in the common interests of all members. 2.Respect for persons in the Shariah is rooted In the Divine Injunctions of the Quran And the precept of the Prophet. 3.The Shariah ,it should be noted, gives priority to human welfare over human liberty
Islamic Knowledge & Science

I S L A M I C K N O W L E D G E & S C I E N C E

Judicial power, according to Shariah , must always operate in conformity with equity, even to the benefit of an enemy and to the detriment of relative. -Quran asserts that all mankind,born of the same father and mothers, forms one single family, that the God of men is unique, that the Creator has ordered men according to nations and tribes so that they may know, and assist one another, for the good of all. -There is no separate Judiciary for separate civil,criminal and military departments, -The prophets said; The previous nations were destroyed, because they let off persons of high rank and punished the poor and the helpless.

The basic ,principles of Shariah, A)The larger interest of society takes precedence over the interest of the individual B) Although relieving hardship,and promoting benefit, are both among the prime objectives of the prime objective of the Shariah the former takes precedence over the latter, C) A bigger loss cannot be inflicted to relieving a smaller lost or a bigger benefit cannot be sacrificed for a smaller one.conversely, a smaller harm can be inflicted to avoid a bigger harm or a smaller benefit can be sacrificed for a larger benefit
Islamic Knowledge & Science

Justice as respect to People

The central notion of Justice in the Shariah is based on mutual respect of one human being by another. 1.The just society in Islam means the society that secures and maintains respect for persons through various social arrangements that are in the common interests of all members. 2.Respect for persons in the Shariah is rooted In the Divine Injunctions of the Quran And the precept of the Prophet. 3.The Shariah ,it should be noted, gives priority to human welfare over human liberty
Islamic Knowledge & Science

The differences between Shariaah and other legal systems

= it originated from the direct commandment of Allah = The fountain head is the Quran and As-sunnah (divine revelation) = But there is the provision or power given to man in order to interpret and expand Divine commandment by means of analogical deductions and through other processess. Sources in Islam = Al-Quran = As-Sunnah = Al-Ijmaa = Al-Qiyas

Islamic law =

others

Divine revelation = Human made Al-Quran & As-Sunnah = human thinking As the fountainhead The concept of hereafter = worldly Allah is the law giver = human being

The overall, collective and comprehensive reading of the laws prescribed by God and proclaimed through His prophet, called the Shariah. Objective of Shariah is to promote and protect human well-being (maslahah) Maslahah as difined by al-Shatibiy
that which concerns the subsistence of human life, the completion of mans livehood, and acqiusition of what his emotional and intellectual qualities require of him. In an absolute sense. The maslahah as such constitute the maqsad of Shariah

Maslahah /Maqsad (pl Maqasid)

Maslahah as difined by al-Shatibiy

that which concerns the subsistence of human life, the completion of mans livehood, and acqiusition of what his emotional and intellectual qualities require of him. In an absolute sense. The maslahah as such constitute the maqsad of Shariah

Measures to Safeguard the Maqasid

1) Promotion and protection of necessities (doruriyyat)

The Shariah in order to bring abut the realization of the five basic human interests, provides two kinds of measures, by way of its rules and regulations: 1) That which affirms its elements and establishes its foundations 2) That which repels actual or expected disharmony. This represents both the positive and negative aspects of Shariah rules in many areas that are fundamentally designed to promote and preserve the above mentioned human interests. For instance

The Structure

The primary purposes of the Shariah as identified by al-Imam al-Shatibiy , are 1) Preservation of the religion of Faith (hifz aldin) 2) Preservation of life or self(hifz al-nafs) 3) Preservation of the mind or intellect (hifz alAql) 4) preservation of the progeny (hifz al-nasab) 5) Preservation of property (hifz al-maal)

Religion is secured and promoted by the creation of conditions that facilitate worship and establish other pillars Islamic ideology and its rules of ethics. On the other hand, things that corrupt religion or disrupt it, such as propagation of deviationist teachings and superstitious beliefs, are made unlawful. And for defending religion ( Jihad) a regulated form of armed struggle is commanded, but terrorism and militancy Apostate muslim (murtad) is not allowed at all and will be punished)

To promote human life, its creation, subsistence and proliferation, the Shariah allows marriage and encourages others measures by which the quality of human life can be enhanced. And to protect human life from destruction, the quran in the most absolute term condemns killing of a human being without any justification . It does not only sanctify the life of living person, bur also that a fetus in a mothers womb unless its continued existence endangers the life of mother. Who kill others without a valid reason will be punished with killing him/her (Qisas)

To promote family values, the Shariah supports the establishment of a healthy family and disapproves celibacy. It also disapproves broken marriages, but if a marriage conflict becomes intolerable, the Shariah allows separation. And to protect family values and the family institution, it categorically prohibits all forms of sexual promiscuity. Similarly it rejects human cloning and sex-change operation.

To promote human intellect, the provision for education is made mandatory. To protect the human mind from corruption, the consumption of whatever corrupts that has been made haram such alcoholic beverages, ecstasy pills, drugs etc.

The promotion of wealth, its creation and circulation are strongly encouraged in Islam. And to protect and individuals property, its misappropriation and unlawful acquisition from others possession has been declared haram and punishable by Shariah.

Penalties in Islam

The importance of punishment is to protect people and the community from evil, because crimes cause harm to the order or well-being of community. The community is responsible for the lives of its members, as well as their properties and honour. Because of these considerations, the community requires penalties to maintain a secure social order.

Penal steps have been prescribed for crimes to prevent people from committing them. People are different levels of faith and morality. For some, the promise of reward and the threat of punishment in the hereafter is sufficient to inspire them to do good. For others, the realization that crimes will be punished I this life by the government is necessary to restrain them from evil. For those who do evil despite the threat of legal penalties, their public punishment serves as a deterrent to those who witness it

Allah justifies the penalty prescribed for murder by saying: In the law of equity there is (saving of) life for you, O men of understanding that you may ward off (evil) al Baqarah179 Islamic law places an emphasis on physical punishment for major crimes, rather than prison, because prison is more of a school for crime than a means of reforming criminals. The Islamic solution is more likely to change the criminals behaviour positively, and it saves the community the huge expense of a massive prison system

Categories of Islamic Penalties

1)Definition In Islam law all duties and obligation are divided into two categories: one is known as haqq Allah (Allahs right), two as haqq adami (humans right)

The word ( had/pl hudud) means a punishment which has been prescribed by Allah in the revealed text of the Quran or Sunnah, the application of which is right of God (haqq Allah) In the penal context, a punishment which is classified as haqq Allah embodies three main aspects.

The first is that this punishment is prescribed in the public interest The second is that cannot be lightened nor made heavier The third is that, after being reported to the judge, the forgiveness of the victim can not avert the punishment is supported by the interpretation of the Quranic verse.. These are the limits of Allah. Do not transgress them al-baqarah 229

Classifications (the crimes for which are fixed penalties from Shariah) no one can intercede to modify or stop its enforcement, under normal conditions. Because they are all Haq Allah

Preservations Faith (deen) Life (nafs) Mind

Progeny property

crimes Murtad Murder /killing Drinking alchohol Fornication (zina)

stealing

penalties Killed killed Lashed (40)

Stoning/lashed (100) Cut off his/her hand

Dalil from Shariah 1) MURTAD

Whose ever apostate from Islam should be killed (al-Hadith) 2)MURDER O you who belive ! The law of equity is prescribed for you in cases of murder, a free man for a free man, a slave for a slave and a woman for a woman. But if the brother (of the slain) relents somewhat, then grant any reasonable demand, and compensate him with handsome gratitue. al-Baqarah 178. 3)DRINKING ALCHOHOL Umar lashed the drinker 40 lashes al-Hadith 4)ZINA The woman and man guilty of Zina, flog (rattan) each of them a hundred stripes. Let no compassion move you in their case in a matter prescribed by Allah, if you believe in a Allah and the last Day; and let a party of believers witness their punishment (24.2) 5)STEALING As for the thief, both male and female, cut off his or her hand, it it and exemplary punishment from Allah for their crimes al-Maidah (5:38)

Tazir (discretionary Punishment)

Is derived from the verb means to prevent, to respect, and reform. Tech, means a punishment aimed first at preventing the criminal from committing further crimes and secondly reform him Types of punishment does not explain in Al-Quran.

The Uniqueness of the Islamic Penal Code

Islamic law possesses a unique concept of punishment, a concept which, in a sense cares very little for the criminal and reform , and concentrates on preventing the commission of offences On the other hand the restrictions relating to inflicting the punishments, especially hadd punishments, in terms of difficulty of proof, recommendation of forgiveness, and the possibility of repentance, greatly limit the number of cases in which these punishment can be applied.

2) Caring for the requirement of exigencies (Hajiyyat)

These relates to those provisions of Shariah which provide ease in case of difficulty and which eliminate or reduce hardship in peoples lives. Ibnu Ashur defines that which the Muslim community needs to ensure their well-being and in managing their affairs in a better ways as non-existence of Hajiyyat . Though does not lead to the total disruption of social order, it definitely affects its orderly functioning For instance, in the area of human custom and habit (adat) in meeting human needs so long as it is not prohibited. To have a vehicle for transportation, to have a second shirt are considered as hajiyyat

3)Provision for betterment (Tahsiniyyat)

These pertain to all the laws of Shariah that relate to improving the quality of human life, human conduct and morals, and beautifying the conditions under which life is lived. Al-Shatibiy defines tahsiniyyat as to adopt what conforms to the best of customs and to avoid those manners which are repulsive to wiser people. Its include laws pertaning to cleanliness of body, clothes, and invironment, the performance of extra acts of worship (sunnah) such as voluntary fasting and charity and so on .

The significance of three-tier division of Maqasid

The purposive and goal-based classification of Shariah rules into Dhoruriyyat, hajiyyat and tahsiniyyat has the following practical significance for Muslims: i- it guides them to understand the cardinal principle that governs the inner-relationship between Dhoruriyyat, hajiyyat and tahsiniyyat when it comes to the application of Shariah rules at individual and national level. The rules here is to dispence with a lesser interest in order to safeguard the move vital interest. for example, under normal circumstances a person must keep his private parts covered (as part of moral requirement of Shariah under Tahsiniyyat), but if medical treatment to safeguard his life requires its expose to a physician, then the vital needs takes precedence.

ii- it instructs Muslims about the rules of choice between two evils of unequal consequences. Some cardinal principles among them are as follows: -adoption of the lesser of two evils to avoid the more damaging one. -private injury has to be tolerated if required by safeguarding the largest interest the society as whole -the inflicted harm must be remedied. -necessity overrides prohibition iii)- it guides Mujtahid to formulate his opinion on issues by taking in to full account the higher objectives of the Shariah and their ranking order of priority

The aims of Shariaah is to implement justice

There are a number of Quranic injunctions commanding Muslims to do justice. 1)we sent a foretime our Apostles with clear sings and sent down with them the book and the balance (of right and wrong), that men may take stand forth in juctice 2)Allah command justice, the doing of good, and the charity to kith and kin 3)say; may lord has commanded justice 4)Allah commanded you to render back your trusts to those to whom they are due. And when you judge between man and man, that you judge with justice.

The prophet is asked to administer juctice according to the kitabullah (al-Quran)

Means we sent down to thee the Book in trust, that you might judge between men, as guided by Allah ; so be not (used) as an advocate by those who betray their trust. The commentators explain this passage with reference to the case of Taimah bin Ubairaq.

The injunctions on Justice in the Divine Revelations

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There are a number of Quranic Injunctions commanding Muslims to do justice. The aims of Shariah is to implement justice among the people. What is justice?

Islamic Knowledge & Science

Justice
I S L A M I C K N O W L E D G E & S C I E N C E

1. Justice is a comprehensive term, and may include all the virtues of good behaviour. 2. Allah states Say : My lord has commended justice. 3. Justice must be done equally to all and sundry against ones self,parent ,relatives ,Muslim ,kafir. 4. There must be no difference between rich and poor.All are servants of Allah, and must be judge according to The Book of Allah.

Justice is Allah,s attribute, and to stand firm for justice is to be a witness to Allah to is detrimental to our own interests as we conceive them, or the interests of those who are near and dear to us The entire Muslim Ummah enjoys lives under the Shariah to which every member has to submit,with sovereignty belong to Allah alone. Every Muslim who is capable and qualified to give a sound opinion on matters of Shariah,is entitled to intrepret the lae of Allah when such interpretation becomes necessary The laws of Islam are firmly based upon the Islamic Knowledge & Science Shariah

2.

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I S L A M I C K N O W L E D G E & S C I E N C E

The Aims of Shariah

1.

The Shariah , originated from the direct commandment of Allah :but there is the provision or power given to man in order to interpret and expand Divine Commandment,by means of analogical deductions and through other processes.

The central notion of justice in the shariah is based on mutual respect of one human being by another. 2 Respect for persons was the motivating thought behind the kalimat as-shahadah. 3 Respect for persons in the shariaah is rooted in the Divine injunctions of the Quran and the precepts of the prophet

means the best among you in the eyes of Allah are those who are stronger in Taqwa (fear of Allah)

Justice as respect to People

The central notion of Justice in the Shariah is based on mutual respect of one human being by another. 1.The just society in Islam means the society that secures and maintains respect for persons through various social arrangements that are in the common interests of all members. 2.Respect for persons in the Shariah is rooted In the Divine Injunctions of the Quran And the precept of the Prophet. 3.The Shariah ,it should be noted, gives priority to human welfare over human liberty
Islamic Knowledge & Science

I S L A M I C K N O W L E D G E & S C I E N C E

Judicial power, according to Shariah , must always operate in conformity with equity, even to the benefit of an enemy and to the detriment of relative. -Quran asserts that all mankind,born of the same father and mothers, forms one single family, that the God of men is unique, that the Creator has ordered men according to nations and tribes so that they may know, and assist one another, for the good of all. -There is no separate Judiciary for separate civil,criminal and military departments, -The prophets said; The previous nations were destroyed, because they let off persons of high rank and punished the poor and the helpless.

The basic ,principles of Shariah, A)The larger interest of society takes precedence over the interest of the individual B) Although relieving hardship,and promoting benefit, are both among the prime objectives of the prime objective of the Shariah the former takes precedence over the latter, C) A bigger loss cannot be inflicted to relieving a smaller lost or a bigger benefit cannot be sacrificed for a smaller one.conversely, a smaller harm can be inflicted to avoid a bigger harm or a smaller benefit can be sacrificed for a larger benefit
Islamic Knowledge & Science

Justice as respect to People

The central notion of Justice in the Shariah is based on mutual respect of one human being by another. 1.The just society in Islam means the society that secures and maintains respect for persons through various social arrangements that are in the common interests of all members. 2.Respect for persons in the Shariah is rooted In the Divine Injunctions of the Quran And the precept of the Prophet. 3.The Shariah ,it should be noted, gives priority to human welfare over human liberty
Islamic Knowledge & Science

The differences between Shariaah and other legal systems

= it originated from the direct commandment of Allah = The fountain head is the Quran and As-sunnah (divine revelation) = But there is the provision or power given to man in order to interpret and expand Divine commandment by means of analogical deductions and through other processess. Sources in Islam = Al-Quran = As-Sunnah = Al-Ijmaa = Al-Qiyas

Islamic law =

others

Divine revelation = Human made Al-Quran & As-Sunnah = human thinking As the fountainhead The concept of hereafter = worldly Allah is the law giver = human being