Chapter 2

Mohd Fauzwadi Mat Ali 1

CHAPTER 2CHAPTER 2

THE SOURCES OF ISLAMIC LAWTHE SOURCES OF ISLAMIC LAW


THE OBJECTIVES OF THIS CHAPTERTHE OBJECTIVES OF THIS CHAPTER

To know the definitions of a sources of Islamic law To identify the sources of Islamic law To know the philosophy and principle of Islamic Law To describe the importance of Islamic law in business To explain the primary and secondary sources of

Islamic law, and Islamic Jurisprudence (Qawa’id Fiqh)


INTRODUCTIONINTRODUCTION

Islam has given the most comprehensive legal system to mankind

Islamic law covers all aspects of life. Islam has its own personal, civil, criminal, mercantile, evidence, constitutional and international law


THE DEFINITION OF SOURCES OF THE DEFINITION OF SOURCES OF ISLAMIC LAWISLAMIC LAW

The sources of Islamic law is a main reference to identify and determine all about Islamic law.

Islamic law has not been given by any ruler. It is given by Allah

Islamic law remains valid whether recognized by the State or not

The sources of Islamic Law are types of evidence that a valid proofs for the injunctions


THE DEFINITIONS OF ISLAMIC LAWTHE DEFINITIONS OF ISLAMIC LAW

Islamic law also known as Islamic Jurisprudence or Fiqh means knowledge, understanding and comprehension.

It refers to the legal rulings of the Muslim scholars, based on their knowledge of the shariàh

Islamic law are defined the body of rules of conduct revealed by Allah (SWT) to his Prophet Muhammad whereby the people are directed to lead their life in this world


Cont’Cont’

Islamic Law is a comprehensive system covering the human being’s relationship with his Creator, with his fellow human beings, and with his society and nation


THE PHILOSOPHYTHE PHILOSOPHY OF ISLAMIC LAWOF ISLAMIC LAW

Maintenance of lifeProtection of an individual’s freedom of

beliefMaintaining the intellectPreservation of honour and integrityProtection of property


THE IMPORTANCES OF ISLAMIC LAW THE IMPORTANCES OF ISLAMIC LAW IN BUSINESSIN BUSINESS

To be all activities in human life as a worship

To ensure all action are perform by obligations


THE DIVISION OF SOURCES OF THE DIVISION OF SOURCES OF ISLAMIC LAWISLAMIC LAW

The sources of Islamic law can be divide into 3 division:

A Primary sources A Secondary sources An Islamic Jurisprudence (Qawaid

fiqhiyyah)


THE PRIMARY SOURCES OF ISLAMIC THE PRIMARY SOURCES OF ISLAMIC LAWLAW

The primary sources is a dalil or nas which that agreed by ulama as the main sources of Islamic law

Al-Qur’an & Hadith is Divine Revelation The primary sources consist 4: Al-Qur’an Hadith Ijma’ Qiyas


DEFINITIONS OF Al-QUR’ANDEFINITIONS OF Al-QUR’AN

The Qur’an is the primary source containing all the fundamental directives and instructions of Allah

It’s not only directives relating individual conduct but also principles to all the aspects of social and cultural life of human being.

The Qur’an is the last and complete edition of Divine Guidance and this is the only book of Allah which has not been distorted

The main purposes of Qur’an is to awaken in man the higher consciousness of his relation with Allah and the universe


Cont’Cont’

Muslims believe the Qur'an to be the direct words of Allah, as revealed to and transmitted by the Prophet Muhammad

All sources of Islamic law must be in essential agreement with the Qur'an, the most fundamental source of Islamic knowledge

When the Qur'an itself does not speak directly or in detail about a certain subject, Muslims only then turn to alternative sources of Islamic law.


DEFINITION OF HADITHDEFINITION OF HADITH

Al-Hadith literally as a method It was applied by the Prophet Muhammad as

a legal term to represent what he said, did and agreed to.

It’s consist a speech, conversation, action, habits and events of the Prophet's life codified by his companions and enlarged and revised by later Muslims.


Cont’Cont’

Its authority is derived from the text of the Qur’an. The Qur’an says:

"For you the life of the Prophet is a model of behavior" (Al-Qur’an 33:21)

Hadith is the traditions or known practices of the Prophet Muhammad

The verbalized form of a tradition of the Prophet, peace be on him, constitutive of his Sunnah.


Cont’Cont’

During his lifetime, the Prophet's family and companions observed him and shared with others exactly what they had seen in his words and behaviors

For example: how he performed ablutions, how he prayed, and how he performed many other acts of worship. People also asked the Prophet directly for rulings on various matters, and he would pronounce his judgment.


THE ELEMENTS OF HADITHTHE ELEMENTS OF HADITH

A hadith narrative is divided into two parts:

the Sanad (chain of transmission) the matan (content of the narrative).


THE CATEGORIES OF HADITHTHE CATEGORIES OF HADITH

Hadith can be divided by 2 categories: Hadith Nabawi Hadith Qudsi


TYPES OF HADITHTYPES OF HADITH

Hadith can be divide into 3 types: Words – All direction in oral

communication by Rasulullah SAW. Behavior – All behavior are conduct by

Rasulullah SAW. Taqrir – Just silent, not telling whether

agree or not.


THE FUNCTIONS OF HADITHTHE FUNCTIONS OF HADITH

The functions of hadith are: To clarify details of general statement in the

Qur'an To make it specific and particular To explain the instructions of the Qur’an To provide essential ingredients and details To clarify what the Qur’ân leaves ambiguous or

difficult to understand To qualify what the Qur’ân leaves unqualified To bring up issues that the Qur’ân does not

mention


DEFINITIONS OF CONSENSUSDEFINITIONS OF CONSENSUS

Consensus laterally as “Ijma’“ Ijma’ defined as the consensus of the jurists

of a certain period over a religious matter Ijma’ is considered a sufficient evidence for

action because the Prophet if Islam said, "Muslim will never agree on a wrong matter."


Cont’Cont’

Consensus refers to the unanimous agreement of the jurists of a given era on a legal ruling

It makes no difference whether the jurists are from the era of the Companions after the death of the Messenger or any era thereafter


Cont’Cont’

In situations when Muslims have not been able to find a specific legal ruling in the Qur'an or Sunnah, the consensus of the community is sought (or at least the consensus of the legal scholars within the community). The Prophet Muhammad once said that his community (i.e. the Muslim community) would never agree on an error.


DEFINITIONS OF ANALOGYDEFINITIONS OF ANALOGY

Analogy laterally a analogical deduction or reasoning Recourse to analogy is only warranted if the solution

of a new case cannot be found in the Qur'an and the Sunnah

Analogical deduction cannot operate independently of the nusoos. It’s means a derivation of the law on the analogy of another law if the basis (illah) of the two is the same

It’s refers to take an injunction that applies in one case and applying it in another because they share a characteristic that is the effective cause of the injunction being applied in the first case


Cont’Cont’

The scholars have developed detailed principles of analogical deductions or Qiyas in the books of Islamic jurisprudence

The Prophet has permitted Ijtihad which literally means 'to exert'. Technically it means to exert with a view to form an independent judgement on a legal issue

Ijtihad is the Islamic method of facing the new situations and problems in the light of the general principles of the book of Allah SWT, the Quran and the traditions of the Prophet or the Sunnah.


Cont’Cont’

The scholars have derived law through analogical deduction on the basis of the provisions of the Qur’an and the hadith on some similar situation

Analogy is resorted of problems about no specific provision in the Qur’an or the hadith

In cases when something needs a legal ruling, but has not been clearly addressed in the other sources, judges may use analogy, reasoning, and legal precedent to decide new case law


THE ELEMENTS OF ANALOGYTHE ELEMENTS OF ANALOGY

The 4 elements of analogy are: a principle (asl), means root, origin, source,

principle Ash Ìllah, means effective cause or ratio legis of

a particular ruling. Analogy then consists in extending a principle

(asl) derived from the Qur'an and the Sunnah to the new case


THE SECONDARY SOURCESTHE SECONDARY SOURCES

The secondary sources is the sources that not consensus between ulama

It’s derive on Islamic legal injunctions, besides the four primary sources

School of thought are differences only in aspect of fiqh. Cause a differences of interpretations


ISTIHSANISTIHSAN

Istihsan laterally preference from different interpretations

It’s refers to the abandonment of one legal ruling for another which is considered better or more appropriate to a given circumstance.

Istihsan refers to when a "hidden" qiyas (qiyas khafi) is given preference to a "clear" qiyas (qiyas jali), or when a partial exception is made to an otherwise general rule because of some indication elsewhere in the Shari‘ah.


MASALIH AL-MURSALAHMASALIH AL-MURSALAH

Masalihul means something of benefit, and al-mursalah literally, set free or unrestricted

i.e. that there is no text either expressly allowing or forbidding the particular matter.

Masalih al-mursalah refers to matters about which there is no definitive judgement or precedent in the Shari‘a but which are allowed because of their general benefit to the community, as long as they do not go against an existing judgement.


Cont’Cont’

A consideration which is proper and harmonious with the objectives of the Lawgiver;

it secures a benefit or prevents a harm, but the Shariàh provides no indication as to its validity or otherwise.

For example, the Companions decided to issue currency, to establish prisons, and to impose a tax on agricultural lands despite the fact that no textual authority could be found for these measures.


Cont’Cont’

An examples: Umar b. al-Khattâb was established the act of general registry for the armed forces to set their salaries and their terms of service, then established registries for other purposes.


Cont’Cont’

Writing down the Qur'an and vocalising the written text. After many of those who knew the Qur'an are killed during the Wars of the Ridda, Abu Bakr had the Qur'an collected together in a written form. This is considered a maslaha mursala because, in the time of the Prophet the Qur'an was not collected together in a written form. Later, people also began to vocalise the text in order to preserve it from corruption


Cont’Cont’

The factors are encourage jurist to consider the general welfare are the following:

Attaining that which is beneficial Avoiding that which is harmful Preventing wrongdoing Changing times


‘‘URUFURUF

‘Urf literally a custom, practice or usage by the community

‘Urf is means a local custom which is not in conflict with the Qur'an or the Sunnah and a justification of a particular matter provided that a ‘urf does not contravene any divine sanction

This principle applies to things such as use of language, food, clothing, etc


Cont’Cont’

An example: the word dabba (riding-beast) as used in

certain areas to refer to a donkey rather than any other type of animal.

In other words, certain words are understood in a certain way in certain areas, which might be different from the "dictionary" definition. In cases involving the interpretation of such words, their customary meaning is taken into account.


Cont’Cont’

A dividing the dowry into 2 parts, one of which is paid at the time of the marriage (hall), and the other of which is delayed until later (mu’ajjal). If a case arises in which a wife says she has only received half of her dowry (i.e. not the "delayed" part) and her husband says that he has paid it all, the ‘urf, or customary practice, in such matters is taken into account in arriving at a judgement, and preference given to what is normally understood by the relevant words.

A handing over goods without saying anything can, in certain circumstances, be considered the same as actual words of acceptance as far as buying and selling are concerned.


ISTISHABISTISHAB

Istishab laterally presumption of continuity, or presuming continuation of the status quo ante.

For example, istishaab requires that once a contract of sale, or of marriage, is concluded it is presumed to remain in force until there is a change established by evidence.


THE THE ‘AMAL‘AMAL OF PEOPLE OF MADINA OF PEOPLE OF MADINA

For Imam Malik, there is another source which is as important as these first four.

In fact, in many ways whether ‘amal, or "practice", of the people of Madina.

the ‘amal of Madina as a whole includes points about which there were sometimes significant differences of opinion among the Madinan ‘ulama


Cont’Cont’

Term of ‘amal is not merely "local custom", as its opponents (both Muslim and non-Muslim) claim, but rather - in its earliest form, at least - a non-textual source of sunna on the level of mutawatir hadiths (i.e. hadiths with multiple, and parallel, chains of authority).


Cont’Cont’

For examples: We have referred to the question of sadl al-yadayn,

or doing the prayer with one's hands by one's sides. The judgement based on the ‘amal of the people of Madina, with Malik denying the applicability of the hadith-based judgement that one's hands should be clasped in front of one (qabd) when doing obligatory prayers but allowing it for voluntary prayers: I don't know of this practice [i.e. qabd] as far as obligatory prayers are concerned, but there is no harm in someone doing it in voluntary prayers, if he has been standing for a long time, in order to make it easier for himself


Cont’Cont’

Khalil refers to the "transaction of the people of Madina (bay‘at ahl al-Madina)" when he says: It is permissible to buy from someone whose work is continuous, like a baker, and this is considered ordinary sale; if it is not continuous, it is considered a pre-payment transaction (salam)."

The people of Madina used to buy meat from the butcher's, taking a certain amount day by day, and then pay for it when they had received their stipends, which might be only once a month.


SADD AL-DHARA'I‘SADD AL-DHARA'I‘

Sadd al-dhara'i‘ means, literally, "blocking the means"

e.g: to undesirable ends, in other words, forbidding what is likely to lead to the haram.

This is thus an extension of the general principle that what leads to the haram is haram, just as what leads to the obligatory is obligatory, and what leads to the permitted is permitted


The important consideration to sadd al-dhara’i‘ is the result of the action, and whether it leads to benefit or harm. Under this principle come certain sub-principles, e.g: preventing harm is given preference over gaining benefit.

For example, if someone does wudu’ and is not sure whether he has washed his face three times or only twice, he assumes it is three, because he shouldn't wash it more than three times, whereas washing it twice is acceptable


ISLAMIC JURISPRUDENCEISLAMIC JURISPRUDENCE

A general principle for the guide line to develop and find the Islamic jurisprudence

Methodology of fiqh (qawaid fiqhiyyah) is a method to understand and develop an Islamic jurisprudence


cont’..cont’..

A theoretical abstractions A general rule which applies to all of

its related particularsIt’s consist 5 main methods


cont’..cont’..

بالنيات األعمال إنما "Things are judged according to the intentions

behind them“ "Actions are by intentions or "are according to

intention", and every man gets what he intends." It’s means a behavior or everything are based on

the intention. for example, the actions of wudu’ alone are not

valid unless they are accompanied by the intention of doing wudu’.


cont’..cont’..

"Certainty is not removed by doubt" It’s means a confidence not missing with the doubt It’s can be implement to all human behavior For example: assuming you have only done three

rak‘aah if you are not sure whether you have done three or four; and having a claimant produce two witnesses for his claim and, if not, letting the defendant make an oath that what is being claimed from him is his own and not the claimant's

بالشك: يزول ال اليقين قاعدة


cont’..cont’..

Literally a difficulty allows ease This principle explain that something was

developed for easy not for difficult or constrains a people

التيسير تجلب المشقة


cont’..cont’..

For examples: Using water causes or is likely to cause harm, you do

tayammum instead of wudu’. Allah says: "He has not put any constraint on you as

far as the din is concerned" (Q.22:78). A sick person doesn't have to fast. Allah says: "And whoever among you is ill, or on a

journey, [should fast] a [similar] number of other days. Allah wishes ease for you and does not wish difficulty for you" (Q.2:185).


cont’..cont’..

Some people use the above-mentioned without no constraint in the din to allow themselves to do what they want

Rather, what is meant here are those instances where there is serious rather than slight difficulty

for example, would be getting up in the morning and having to use very cold water to do wudu’ with: it might cause you discomfort, but it doesn't harm you.

It becomes serious, though, if using water either causes illness, or increases it, or prevents one from being cured.


cont’..cont’..

Harm is to be removed There should be no harm nor reciprocating harm For examples: returning what has been taken unjustly along

with liability for any loss or damage preventing someone from doing what will cause

harm to his neighbours.

يزال الضرر


cont’..cont’..

It’s means customs also can be a sources of Islamic law.

Customs refer to society norm or traditional whether word or behavior

In Arabic language well known as urf The customs must be consider a situation below: Not difference with the Islamic law. Every people doing a same thing or behavior. Not bias with the certain race or kabilah, etc.

محكمة العادة


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Chapter 2

Education

allah islamic law

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primary sources of islamic

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importance of islamic

principle of islamic

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