2008 SHARI' AH BAR EXAMINATION ON

JURISPRUDENCE (FJQH) AND CUSTOMARY LAWS (ADA1)

I.
A) Sharz'ah and fiqh are both translated as 'Islamic Law'. Distinguish between the
two terms pursuant to the concept that Islamic law is both fixed and dynamic.

B) Define usiil al-fiqh.

II.

Preserving life is among the objectives of the sharz'ah. Allah Almighty says in the
Glorious Qur'an:

"Jf anyone slew a person --- unless it be for murder or for

spreading mischief in the land --- it would be as if he slew
the whole of mankind; and if anyone saved a life, it would
be as if he saved the whole of mankind. " (Surah al-
Ma 'idah, 5:32)

A) How do you correlate this Qur'anic injunction with the objective of the sharz'ah
on the preservation of life.

B) If life is sacred, is there justification in the sharz'ah on the killings of innocent and
harmless civilians? Please discuss.

III.

A mujtahid is a jurist who derives the ahkiim or rules directly from specific
evidence. Discuss the following types of mujtahidin.

A) Mujtahid mutlaq

B) Mujtahia'fi 'd-din

C) Mujtahid fi 'l-madhhab

D) Mujtahidfi '1-masii'il
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IV.

There are three modes in the exercise .of ijtihiid by a jurist: 1) by confining
himself to the literal meaning of the text; 2) by using qiyiis or analogy; and 3) by
extending the spirit of the law to other cases.

A) May a jurist exercise any ofthese modes as he wishes or docs he resort to them in
the order they are mentioned? Please explain.

B) What is meant by 'the text' in the first mode of exercising ijtihiid?

C) What are the rules to be followed by a jurist in extending the hukm in an original
casl: to a new case?

D) Discuss the third mode as used by the Hanafi jurists in istihsiin and by the Maliki
jurists in maslahah mursalah.

E) Can these modes in the exercise of ijtihiid be used against the maqiisid ash-
sharl'ah?

v.

A) Explain the maxim "al-aslu fi 'l-ashyii 'i al-ibiihah" or ''the original rule for all
things is permissibility"

B) Discuss exhaustively the sharl'ah principle that "necessity makes a thing

prohibited permissible".

VI.

A) What are the two parts of a hadith? What are- the methods used to check the
authenticity ofthese two parts?

B) Distinguish between sunnah tashrf'l and sunnah ghayr tashrl'l.

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VII.

One important principle in interpretation that a jurist must be abreast with pertains
to determining whether an obligation is imposed as a general rule ('az'fmah) or as an
exception to a general rule (rukhsah).

A) Distinguish between 'az'fmah and rukhsah.

B) Can rukhsah be a basis of qiyiis or analogy? Please explain.

VIII.

A) According to the Code of Muslim Personal Laws, how should customary

contracts for the delivery of any real estate, plantation, orchard or any fruit-
bearing property be construed? Please explain the reason for this rule.

B) In general, how should 'ada' or 'adat' not embodied in the Code of Muslim
Personal Laws be proven in evidence as a fact so that the Shari'ah Court may use
it in its decision? What are the limitations imposed by the law on the used of
'ada' or 'adat'?

IX.

A toothpaste product is suspected to contain a hariim ingredient.

A) Can the ulamii' by themselves declare that such product is forbidden for Muslims
to use? Please explain.

B) Discuss the validity of using the concept of ijmii' during our time in arriving at a
consensus pertaining to cases or situations where expert opinion is required as in
the case above.

X.
A) Discuss the concept of naskh under Islamic jurisprudence.

B) Explain the application of naskh pertaining to the relationship of the Glorious

Qur'an with previous divine revelations.