GROUP ASSIGNMENT OF SHARIAH, FIQH AND MAJALLA AL-AHKAM AL- ADLIYYAH 2014 1 | Page 1.0 INTRODUCTION Generally, Majallah Al- Ahkam Al-Adliyyah can be known as the civil code of the Ottoman Empire which is in the time between late 19 th and early 20 th centuries. In Arabic word Majallah Al- Ahkam Al-Adliyyah (حکام عدلیهمجلۀ ا) also means the Micelle which can be transliterated as Mejelle, Majalla, Medjelle, and Megelle in Ottoman Turkish. Actually, the existence of Majallah al- Ahkam al- Adliyyah (1293 Hijri) was during the Sultan al- Ghari ( Sultan Abdul Aziz Khan al- Othman) in the time of 13 th century Hijri. According to the history, Majallah Al- Ahkam Al- Adliyyah is made from the combination of Ashbah Wa Nazair (Ibn Nujaym) with the Mujammak al- Haqaiq (Khadami ) and this type of book contain 99 of the legal maxim regarding with rules in Islamic Fiqhiyyah. In short term, it can be interpret that, Majallah Al- Ahkam Al- Adliyyah was the first attempt that had been used to codify a part of Shariah based law of an Islamic state. On top of that, the code was actually prepared by the commission that headed by Ahmad Cevdet Pasha which is been issued in sixteen volumes that containing 1,851 type of article from the time of 1869 to 1876 and it been legally forced in the year of 1877. Moreover, its structure and approach was mostly influenced by the earlier European codifications and it also cover most of the civil law areas and exempted family law that remained as the domain of religious law. In detail, the substance of the code was actually made based on the Hanafi legal traditions that relate with the official status in the empire which actually put the code into European code form. However, using the method of tahayyur of preference, it also incorporated other legal opinions which considered more appropriate to the time, that also including from the non- Hanafis. Next, as the Mecelle or Majallah Al- Ahkam Al-Adliyyah was eventually applied in the secular (nizamiye) courts as well as in the Sharia courts of the empire, Jews and Christians were for the first time subjected to the Islamic law instead of applying their own law but could now be called as witness in the court. Then, after World War 1 following by the dissolution of the Ottoman Empire, Majallah Al- Ahkam Al- Adliyyah was remained lasting which had influenced in most of its successor states excepts Egypt, where it was never in force. The Mecelle was remain long lasting in most of the
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GROUP ASSIGNMENT OF SHARIAH, FIQH AND MAJALLA AL-AHKAM AL-ADLIYYAH
2014
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1.0 INTRODUCTION
Generally, Majallah Al- Ahkam Al-Adliyyah can be known as the civil code of the
Ottoman Empire which is in the time between late 19th and early 20th centuries. In
Arabic word Majallah Al- Ahkam Al-Adliyyah (مجلۀ احکام عدلیه) also means the Micelle
which can be transliterated as Mejelle, Majalla, Medjelle, and Megelle in Ottoman
Turkish. Actually, the existence of Majallah al- Ahkam al- Adliyyah (1293 Hijri) was
during the Sultan al- Ghari ( Sultan Abdul Aziz Khan al- Othman) in the time of 13th
century Hijri. According to the history, Majallah Al- Ahkam Al- Adliyyah is made from
the combination of Ashbah Wa Nazair (Ibn Nujaym) with the Mujammak al- Haqaiq
(Khadami ) and this type of book contain 99 of the legal maxim regarding with rules in
Islamic Fiqhiyyah. In short term, it can be interpret that, Majallah Al- Ahkam Al-
Adliyyah was the first attempt that had been used to codify a part of Shariah based law
of an Islamic state.
On top of that, the code was actually prepared by the commission that headed by
Ahmad Cevdet Pasha which is been issued in sixteen volumes that containing 1,851
type of article from the time of 1869 to 1876 and it been legally forced in the year of
1877. Moreover, its structure and approach was mostly influenced by the earlier
European codifications and it also cover most of the civil law areas and exempted
family law that remained as the domain of religious law. In detail, the substance of the
code was actually made based on the Hanafi legal traditions that relate with the official
status in the empire which actually put the code into European code form. However,
using the method of tahayyur of preference, it also incorporated other legal opinions
which considered more appropriate to the time, that also including from the non-
Hanafis.
Next, as the Mecelle or Majallah Al- Ahkam Al-Adliyyah was eventually applied
in the secular (nizamiye) courts as well as in the Sharia courts of the empire, Jews and
Christians were for the first time subjected to the Islamic law instead of applying their
own law but could now be called as witness in the court. Then, after World War 1
following by the dissolution of the Ottoman Empire, Majallah Al- Ahkam Al- Adliyyah
was remained lasting which had influenced in most of its successor states excepts
Egypt, where it was never in force. The Mecelle was remain long lasting in most of the
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places due the its effectiveness, coherent and also dislodge. For example, the states that
Majallah al- Ahkam-al-Adliyyah remain long lasting is, in Turkey until 1926, when it
replaced by the Turkish Civil Code, in Albania until 1928, in Lebanon which is until
1932, in Syria until 1949, in Iraq until 1953, in Cyprus until 1960s and in the British
Mandate for Palestine and later Israel formally until 1984, although at that time
individual laws had gradually superseded it during the mandate as well as in the 1960s
and 70s. Moreover, Majallah Al- Ahkam Al-Adliyyah also remains the basis of civil
law in Jordan and Kuwait. To be in more detail, Majallah Al- Ahkam Al-Adliyyah was
containing 16 types of book which is started from the book one until book 16. So, there
will be some discussion for the introduction about the contents of each book.
In the book one, it relate with the contract of the sale. In this book, it is containing
all the matters regarding with the basis of sale contract which is include chapter one
until seven. The articles in this book are started from 101 until 403. In book two, it
relates with the hire. For this book, it contains eight chapters. The articles for this book
are started from 404 until 611. In book three, it involve with the guarantee. The chapters
that included in this book are three chapters which are, the chapter one and two relate
with the contract of guarantee, and chapter three involve with the releasing from the
guarantee contract. All these three chapters are included the article from 612 until 672.
Next, in book four, it is relate with transfer of the debt. There are two chapters for this
book which is chapter one, the contract transfer of debt and chapter two, the effect of
contract for the debt transfer. The articles are continuing from 673 until 700.
In book five, it relate with pledges. There are four chapters in this book. The first
chapter is matters relate with pledge contract, second is pledgor and pledgee, third is
pledge, and lastly is fundamental rules relate with pledge. This book had included the
article from 701 until 761. For book six, it included with the trust and trusteeship. The
chapters involve in this book are three. First chapter are general, second is deposit for
safekeeping and thirds is property for lent use. The articles are started from 762 until
832. In book seven, it relates with gift. There are two chapters in this book which is
matters relate with gift contract and fundamentals of rule relates to gift. The articles for
this book are started from 833 until 880. In book eight, it contain wrongful and
appropriation and destruction. For this book, there are also two chapters which is the
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first one, wrongful appropriation and second are the destructions of property. In this
book, the articles are continuing from 881 until 940. For the book nine, it relates with
the interdiction, constraint and pre-emption. There are three chapters for this book
which the first is matters relate with interdiction, second is constraint and lastly is the
pre-emption. The articles for this book are started from the 941 until 1044.
In book 10, it involve with the joint ownership. Actually, there are eight chapters in
this book. In this book, the articles are continuing from 1045 until 1448. In book 11, it
containing about the agency and the numbers of chapters are three. Firstly, it relates
with fundamental basis and classifications of the agency, second chapter is conditions
attaching to agency and lastly is the essential element for agency. The articles for this
book are started from 1449 until 1530. Next, in book 12, it relates with the settlement
and release. The chapters containing in this book are four chapters. The first chapter is
conclusion of a contract of settlement and release, secondly is the consideration and
subject matter of settlement, thirdly is the subject matter of settlement and lastly is the
fundamental conditions governing settlement and release. For this book, the articles
continuing from year 1531 until year 1571. In the book 13, the matters are discussed
about the admissions. The chapters involve in this book are four chapters which is
firstly, the conditions governing admissions, secondly is the validity of an admission,
thirdly is the effect of an admissions and the lastly is the admissions in writing. For this
book, the articles are started from 1572 until 1612.
In book 14, it discussed about the actions and the numbers of chapters involve is
two only. Firstly is regarding with the conditions and fundamental rules relating to an
action and the defense thereto and secondly is regarding with the limitations. The
articles are takes places from 1613 until 1675. In book 15, is relates with the evidence
and administrations of oath. The chapters involve is chapter one until chapters four that
is, nature of evidence, documentary and presumptive evidence, administering the oath
and lastly, the preferred evidence and administrations of the oath to the both parties. For
this book, the articles are continuing from 1676 until 1783. In the last book, which is
book 16, it is discussed about the administrations of justice by the court. Through this
book, the chapters that involve is four chapters. The first chapter is relates with the
judges, second is the judgments, third is retrial and lastly is the arbitration. For this
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book, the article are continuing from 1784 and it end at 1851 article. So, throughout this
16 book, there are 1851 articles that containing in the books and also included with the
numbers of sections. Besides that, in this assignment there will be also some
discussions regarding with the distinctions between Shariah and Fiqh and also the
issues that relate with the codifications of the Islamic law.
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2.0 DIFFERENCES BETWEEN SHARIAH AND FIQH
2.1 Definition of Shariah
The word Shariah (الشريعة) was come from Arabic word of sharaa’ (الشرع) with the
literal meaning is “way to water”. However, technically, Shariah is a divine code in
human life which derived from the primary sources which are al-quran and sunnah.
Shariah refers to the value, legal rules and normative revealed principles from Allah
SWT to the Prophet Muhammad saw to guide humankinds from go astray. It is
based from what Allah SWT proclaims in the quran.
“When Allah SWT and His Messenger have decreed a matter, it is not for any
believing man or woman to have a choice in their affair. And whosoever disobeys
Allah SWT and His Messenger has gone astray into clear error”.
(Surah Al-Ahzaab, 33:36)
Shariah can be classified into two categories based to their objectives which
are mandatory law (taklifi) and declaratory law (wad’i) declaratory law. A
mandatory law (taklifi) can be divided into subcategories of obligatory,
recommended, permissible, reprehensible or prohibited and these all requires a
certain action whether to follow it or not and its define the man’s act. On the other
hand, declaratory laws (wad’i) also relate with the mandatory laws because it
indicates the component elements of mandatory laws such as legislative of
something to be as a cause of another thing or as a hindrance to it.
2.1.1 Categories Of Mandatory Law (Taklifi) In Shariah:-
a. Obligatory (Wajib)
It is conveys an imperative and binding demand which addressed to the
mukallaf and acting of wajib will be given a reward but omitting it will
leads to punishment in the world and hereafter. Besides, according to the
majority of ulama, they view that wajib and fard as synonymous by merge
wajib and fard into single category. However, Hanafi jurists divided both
wajb and fard into two different types with fard is stronger than wajib
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because its act established in the Quran and sunnah such as perform the
solah and fasting but for wajib, the command is established in a
speculative authority.
b. Recommended (Mandub/Sunat)
It denotes a demand to perform some act which not binding to the
mukallaf which means no punishment if not doing it but will be rewarded
if do it.
c. Permissible (Mubah)
For mubah, the Lawgiver has granted a choice of omission or commission
without blame or praise for it.
d. Reprehensible (Makruh)
It is demands to mukallaf to avoid something but not strictly prohibited
because committing it is not punishable however, omitting it is rewarded.
According to Hanafi jurists, it can be divided into two types, makruh
tahzini is for the things or act which are discouraged and rewarded if
leaving it but no punishment for engaging in it such as eating raw onion.
The second type is makruh tahrimi or condemned, which is near to haram
and extremely prohibited because entails moral blame. For example,
looking a body of strange woman with lush.
e. Prohibited (Haram)
It is a demand from Lawgiver in respect of abandoning something or
certain terms. Commiting the haram acts are punishable and omitting the
haram acts are rewarded. For example, drinking a wine and practicing a
riba.
2.1.2 Categories Of Declaratory Law (Wad’i) In Shariah:-
a. Cause (Sabab)
The Lawgiver identified it as an indicator which the present of it is
necessary for the present of hukm that will cause the present of effect or
musabbab and vice verse. It can be within the power of mukallaf such as
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entering into business contract or beyond the control of mukallaf such as
the arrival of prayer time.
b. Condition (Shart)
Its absence cause the absent of hukm but its present does not
automatically means the existence of the hukm.
c. Hindrance (Man’i )
It can be defined as the act or attribute by which the present either cause
the existence of hukm or nullifies the hukm. Example of existence the
hukm is haidh cause the woman can’t pray while the example of nullifies
the hukm is the indebtedness is no obligates to pay zakat.
d. Strict Law (‘Azimah)
It means conformation of intention besides opposed to concessionary /
flexible law (rukhsah). It is the original rulling of shariah and used for
ordinary situation such as prohibition of drinking wine.
e. Concessionary / flexible Law (Rukhsah)
It literally means easiness and simplicity. It is the exclusion rules which
permissible for excuses (uzur syar’i) or duress (dharurah) situations.
Example, eating unslaughtered animal to safe life.
f. Valid (Sahih)
It is the act which has consequences of shariah and opposed to null or
void (batil). The Lawgiver rules the mukallaf acts as valid if the mukallaf
fulfilled the conditions and pillars. Example, in muamalah contracts, the
contracting parties will imposed certain consequences among them.
g. Null/void (Batil)
Batil means the acts which cause no consequences on it. If the demand is
from the Lawgiver, such as performing the solah, he is still obligate to
repeat it if happen any invalidness on the solah, however, if the
invalidness is in muamalah contract, he will be no consequence of the act.
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2.2 Definition Of Fiqh
Fiqh in Arabic word means deep understanding or full comprehension. It is also
called as Islamic Jurispudence. However, refer to Natana J.Delongs-Bas (2004), it is
defined as “interpretation and elaboration of the Sharia. It is a purely human
endeavor rather than a divine directive”. A person who trained in fiqh known as
faqih or fuqaha (for plural).
In Islamic terms, fiqh is the ruling or judgements which derived from the
quran and sunnah besides from the consensus of ulama. It is used to create laws that
are not specifically state or mention by shariah. The muslim jurists develop other
methods which are ijma’ or unanimous consensus among jurists and qiyas or
analogical deduction as the ways to find solution of arising questions. These
concept can be easily described by using an analogy of a lawyer who derived a
knowledge from the law statute or law cases before rely it to his client.
2.2.1 The Schools of Fiqh
The schools of fiqh was exist because the differences of opinion among the
fuqaha about their own independent interpretations of quran and sunnah and
how the fundamental concepts are applied in fiqh problems. However, they are
not relate to the fundamental issues in shariah such as the number of rakaat in
solat fardh. Basically, their different opinions exhibit Islam as a flexible
religion to practice by Muslim.
The history records shown that there were nearly twenty schools in
Islam during the period of greatest Islamic laws took place however, only few
schools remain till today due to most of the schools are no longer followed
due to diminishing of their adherents. The following below are four sunni
schools which are still exist today:-
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a. Hanafi School
The founder was Abu Hanifah Nu’man Ibn Thabit Ibn Zatah who was
born in Kufah in the year 80 after Hijrah (AH). He was a textile
merchant besides also called as the Great Imam because of his expertise
to solve the legal fiqh problems.
b. Maliki School
The founder was Malik Ibn Anas Ibn Malik Ibn Abi Amir Al-Ashabi. He
was born in Madinah in 93 AH and dead in 179 AH. At the age of 17, he
was giving a lesson in fiqh after receives an education from Abd Al-
Rahman Hermez and Rabi’ah Ibn Abd Rahman. His well-known fiqh
and traditions book called Al- Muwatta’.
c. Shafie School
The founder of this school was Muhammad Bin Idris Ibn Al- ‘Abbas Ibn
‘Uthman Ibn Shafi’I Ibn Al-Saib. He was a Quraish tribe and born in
Gaza in the year 150 AH but died in Egypt in 204 AH. He was allowed
to give opinions at the age of 15 years old and had earlier been the
student of Imam Malik who studied Al-Muwatta’ under him. He wrote
several books named Ar-Risalah and Al-Umm.
d. Hambali School
The founder was Abu Abdillah Ibn Hanbal Ibn Asaad Al Shaybani Al-
Baghdadi and born in 164 AH in Baghdad. He was pupil of Imam Al-
Shafie for a time besides compiled a major work on traditions entitled
Musnad Al-Imam Ahmad.
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2.3 The Distinctions of Shariah and Fiqh
Even the shariah and fiqh were looked same which they are the way to guide us to
the right part of life, they both can be differentiate according to their characteristics.
The distinctions are important in order to get a proper understanding about the
nature of Islamic Laws so that one would be able to let out themselves from
confusion which always equating these two types as same things.
The first distinction is the divinity. Shariah was always been understood as
divine law or qanun Samawi which means it was revealed by Allah STW to guide
the humankinds from go astray. It is a whole divine law which related to the unseen
and supreme power that originated the law besides independent from will of man
who desires to change it. However, fiqh is not naturally divine at all because it is the
product of human understanding from their interpretation of primary sources such
as quran and sunnah. As we know, Muslim scholars ruled that cigarettes are
forbidden in Islam because smoking can bring harms to body and can cause death to
the smoker and the inhaler of cigarette’s smoke. Even the primary sources of
shariah were not mention directly about the banned of it, Islamic scholars come to
this rulling which is fiqh action based to the Quran, Surah An-Nisa, 4:29, means:
“O you who have believed, do not consume one another’s wealth unjustly but only
(in lawful) business by mutual consent. And do not kill yourselves. Indeed, Allah is
to you ever Merciful”.
The second distinctions is shariah is fixed, unchangeable and eternal
however, some components in the fiqh are subject to change according to situations,
time or circumstance such as if a new information arise besides only certain
components of fiqh are fixed. As discussed before, Shariah cannot be change
because it is divine law and there are no need for it to change because what revealed
by Allah SWT was already the best for humankind as explained in the quran, Surah
Al-Maidah, 5:58:-
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“And We have revealed to you, (O Muhammad Saw), the book in truth, confirming
that which preceded it of the Scripture and as a criterion over it. So judge between
them by what Allah has revealed and do not follow their inclinations away from
what has come to you of the truth. To each of you, we prescribed a law and a
method ”.
Whoever, the best example to illustrate about the fiqh, which is a subject to
change is the story during the Saidina Umar Ibn Al-Khattab Ra time who gave
many verdicts in many cases that different from the previous issued of similar cases
during Khalifah Abu Bakar Al-Siddiq Ra time. Basically, ijtihad of every person
may differ from others and may change because it is the product of their
interpretation from the Islamic primary sources. Regarding to different rullings by
Saidina Umar Ra, he said:
“That what we judged previously and this is what we have decided (in the present
case)”.
Besides, most part of shariah was in the general form while fiqh was more
likely to be specific and detail forms. In muamalah transactions, there are some
proves or evidences shown the general statements of shariah such as the prohibition
of riba, obligation of fulfill the obligations and recommendations of having
attestations and security or collateral. Refer from quran, surah Al- Jumu’ah, verse 9:
“O you who believe! When the call is proclaimed to pray on Friday (the Day of
Assembly), hasten earnestly to the Remembrance of Allah, and leave off business
(and traffic): That is best for you if ye but knew!”
From a gross reading, everyone wil understand that the shariah law here was
about the prohibition of trading during Jumaah prayer, but actually who are the
people that prohibited from this transaction? All humankinds including the non
Muslim and women? As from the fuqaha to give a best ruling about certain issues
were not taken in an easy way because it needs a huge effort and a deep
interpretation and explanation of shariah. For example Ustaz Nik Abdul Rahim
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(2010), explained that the transaction among the women or non Muslim will not
prohibited because they are not compulsory to perform the Jumaah solah.. It is
because Jumaah prayer will not compulsory for Muslim women, kaafir, a child,
traveler and slave. However, for the Muslim men who doing selling and buying
activities during the Jumaah prayer, even this acts were prohibited during Jumaah
prayer, but the transaction were not voidable.
The last distinction among both of them is shariah is the body of law itself
while for fiqh, it is only a part of shariah. A simple means is shariah comes from al-
quran and sunnah while fiqh comes from shariah. As from the explanations before,
Muslims are bound from the teaching of Prophet Muhammad saw which revealed
form Allah SWT to guide the humankinds achieving al-falah in the world and
hereafter. Moreover, all the shariah ordinances were formulated to every stages of
human’s social and intellectual developments. They were many prove as stated in
the quran and sunnah about this such as what stated in the quran, Surah Al-Jaziah,
45:18 means:
“Then We put you, (O Muhammad), on an ordained way concerning the matter (of
religion); so follow it and do not follow the inclinations of those who do not know”.
Besides, in the Musnad Ibn Hanbal stated that Prophet Muhammad Saw said:
“I have left among you something that if you adhere to, you shall never astray, the
two weighty things, and one is greater than the other, the Book of Allah SWT (Al-
Quran) which is an extended rope from the skies to the land, and my family whom
they are my household and they shall never separate until they come back to me at a
lake-fount (Kawthar)”.
However, fiqh is a part of shariah and regarding to specific rules and methodology
which derived from the analysis of fuqaha. The science and principles which follow
to its methods commonly called as usul al fiqh with the principle objective of usul
fiqh is to regulate ijtihad and guide the jurist to deduce a law from the Islamic
sources such as Al- Quran and sunnah. The second things of fiqh are the qawaid
fiqhiyah, which is the principle of Islamic jurisprudence. It was derived from the
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rules of Arabic language, from scholastic theology and from overall understanding
of rules of shariah and basically study of Islamic legal maxims such as “matters are
determined by intentions” and “certainty is not overcome by doubt”.
As a conclusion, there are many modern writers who have made keen efforts
to distinguish the actual concept between shariah and fiqh. These necessary
distinctions made between them help the human to recognize and understands
deeply between both of them. It is because, the recognition and understanding of
them are crucial to strengthening the knowledge of Islamic legal sources. At the
same time, we also cannot deny the shariah and fiqh are related and crucial aspects
in Islamic Law as both of them were not ignored the precious values of Quran and
Sunnah which are the primary sources in Islam even they are significant difference
in certain issues.
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3.0 THE REASONS AL-MAJALLA AL-AHKAM WAS WRITTEN AND THE
ISSUES THAT RELATED
The Majalla was the civil code of the Ottoman Empire in the late 19th and early 20th
centuries and was the first attempt to codify a part of the Sharia based law of Islamic
stated. It’s was written to covering most areas of civil law which remained a domain of
religious law. This code was based on the Hanafi legal tradition that enjoyed official
status in the Empire into European code-form. However, the Majalla was long-lasting in
most places since it was effective, coherent, and difficult to dislodge. The Majalla also
made to solve some of complexities and problem which that to show what concords in
it with Imam School.
In a new generation, which was the generation of Muhammad Baqer as-Sadr
and his Najaf companions, they have welcomed the literature which Kashif al-Ghita
permitted in his considerations of the 1940s. Specific legal perspective however, the
renewal of Islamic law required more than just opening the door to politics. The
conspicuous which straddled the legal tradition and the new worldly interest were
undertaken the real of public law but the effort was not limited to public law. However,
an Islamic state should conform to the tradition as a polemical work against the Sunnah
legal conception. A deeper and more interesting dimension of the new juristic interest in
Najaf appears in multi-volume treatise by Muhammad Husayn Kashif al-Ghita’ on civil
law, which is on that time it addressed in remarkable detail the technicalities of the most