16th Phil. Shariah Training Lecturer : Dr.

Sheikh Khalid Bhen Hanafie Mero March 14-15, 2019

NCMF-Cotabato City

Lecture : Introduction to Islamic Law and Jurisprudence

THE SHARI`AH ISLAMIYYAH

- The sum total of Islamic laws and principles which were revealed to the Prophet Muhammad (s.a.w),
in the Qur’an and the Sunnah.

- The whole teaching of Islam itself that covers both matters of belief (aqidah), laws (fiqh) and
ethics(akhlaqI.

AL-FIQH

The knowledge of the legal rules (hukm or ahkam al-Shari`ah), pertaining to conduct, which have been
derived from their specific sources.

- Islamic law, that comprises all branches of law, public and private, substantive as well procedural law.

Examples:

the five daily prayers are obligatory (wajib),

usury (riba’) is prohibited (haram), and

marriage is permissible (mubah).

Wajib, haram and mubah here are the legal rules.

These rules are derived from specific provisions in the sources or through ijtihad which is regulated by
usul al-fiqh.

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The difference between Shari’ah and Fiqh

SHARI’AH

1. It is the body of laws found

both in the Qur’an and Sunnah.

2. It is fixed and unchangeable

3. The laws of Shar’iah are, for the most part, general: they lay down basic principles.

FIQH

1. A body of laws deduced from the Shar‘iah to cover specific situations not covered in the Shar’iah.

2. It changes according to the circumstances surrounding it.

3. Fiqh laws tend to be specific: they demonstrate how the basic principles of Shar’iah should be applied
in given circumstances.

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THE SCOPE OF FIQH (ISLAMIC LAW)

1. Ibadat - religious observance

2. Muamalat - dealing with others
3. Munakahat - marriage, divorce etc .-- family matters.
4. Jinayat - criminal laws
5. Nizam al-Hukm wa al-qanuun al-dusturiyy – which includes constitutional and
administrative law
6. Siyaar - International law
7. Qanun Al- Ijra’aat - Civil and criminal procedure law.

IBADAT
- Specific religious duties to be adhered to such as:

1. salat 2. zakat
3. Fasting 4. hajj, etc.

MUAMALAT (Law of Transaction)

Inclusive of laws governing transactions, such as sales and purchase, lease, loan, banking, state
administration, etc.

Al Ahwaal Ash-shakhsiyyah (Family Law)

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1. Muslim Personal Law 2. Inheritance 3. Maintenance

JINAYAT (Criminal law)

Crime: consists in legal prohibitions imposed by Allah, whose infringement entails punishment
prescribed by Him.

1. Hudud 2. Qisas 3. Ta’zir

AL-QANUN AL-DUSTURIYY WA NIZAM AL-HUKM

(Constitution and Administrative law)

1. Constitutional Law
2. Separation of powers.

3. Appointment of State’s officers and their duties.

4. Fundamental liberties.
5. Government organs and their jurisdictions, etc.

Al Alaqaat Addawliyah (International Law)

1. Law of treaties and conventions

2. War and international crimes
3. Law of space and sea
4. Conflict of law
5. International relations, etc.

Al-ijra`aat Al qadaaiyyah (Civil and criminal- procedural law)

Deals with civil proceedings such as witnesses and courts procedures.

2. Criminal proceeding which include prosecutions, witnesses, evidences, and all court’s procedures.

Sources of Shariah

Al Quran

Al Sunnah

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16th Phil. Shariah Training Lecturer : Dr. Sheikh Khalid Bhen Hanafie Mero March 14-15, 2019
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Usul al-Fiqh ( Fundamental of Islamic- Jurisprudence)

Usul al-fiqh- is composed of two terms, usul and al-fiqh.

1)Usul : Basis, origin, root, foundation and sources.

- Something from which another thing originates, or something upon which another thing is
constructed.

Definition and objective of usul al-fiqh

Usul al-fiqh : Principles or methodology used by the

jurists (mujtahid) to deduce the practical Shari`ah ruling from their sources.

The purpose of usul al-fiqh

To regulate the process of adjudication (ijtihad).

To guide the jurist (mujtahid) in his effort at deducing the rules from the sources.

How do Muslim judges and jurists discover and apply the law.

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Process of Ijtihad

Scopes of Usul al-Fiqh

1. The legal rules or laws (hukm or ahkam)

2. The Law-giver or the legislator (al- Haakim)

3. The subject of law which includes the act and the actor (mukallaf)

4. The jurists (mujtahidin); who are they and what are their qualifications

5. The methods of deducing the law

AL-HUKM AL-SHARI’AH (LAW OR LEGAL RULE)

1) Definition of al-hukm:

“A communication of the Law-giver related to the acts of the subjects which consists a demand (to do or
not to do), an option or declaration”.

Rules of law in the Shari`ah can be generally divided into two types:

The rules relating to belief (I`tiqad)

2) The rules relating to act (conduct)

Al-hukm al-shar`i is divided into two main varieties:

Al-hukm al-shari’ah is divided into two main varieties:

a) Al-hukm al-taklifi (defining law)

b) Al-hukm al-wad`ei (declaratory law)

AL-HUKM AL-TAKLIFI (DEFINING LAW)

1. Wajib/fard (obligatory)

2. Mandub (recommended )

3. Ja’iz (permissible)

4. Makruh (abominable)

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5. Haram (prohibited)

WAJIB AND FARDH (OBLIGATORY)

• It is a binding demand of the Law-giver addressed to the mukallaf in respect of doing something.

• Acting upon something wajib/fardh leads to reward, while omitting it leads to punishment in this
world or in Hereafter.

Examples: five daily prayers, fasting in the month of Ramadhan, to pay zakat etc.

Divisions of Wajib

1. Ayni (personal) and kafa’I- (collective) 2. In terms of Time Limit: Motlaq

‫ما طلب الشارع فعله دون أن يقيد أداءه يوقت معين مثل قضاء رمضان‬

Moqayyaq ‫( طلب الشارع فعله وعين ألدائه وقتا محددا‬Ramadhan)

Muwaqqat (time-limit)

Muwassa’ (absolute) Ex. Subh, Ashr etc.

MANDUB (RECOMMENDED)

A demand of the Law-giver which asks the mukallaf to do something which is, however, not binding.

To comply with the demand earns the mukallaf a spiritual reward.

No punishment, however, is inflicted for failure to perform it.

Examples:

Giving sadaqah, visiting the sick, Nawafil prayers etc.

- Mandub is also known as sunnah and nawafil.

JA’IZ OR MUBAH (PERMISSABLE)

Optional; permissible, its concerning the conduct

of the mukallaf which gives him the option, to do or not to do it.

Generally no reward or punishment for its commission or omission.

However the hukm may change according to the intention of doing it or omitting it.

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Examples: Eating or drinking lawful foods or water, entering into contracts, walking in the fresh air
etc.

MAKRUH (DISLIKED OR ABOMINABLE)

• A demand of the Law-giver which requires the mukallaf to avoid from doing something but not
binding.

• Does not constitute a binding law – omitting something makruh is preferable;

• Committing it is not liable to punishment

Examples:

Avoiding unpleasant acts or foods such as raw onions and garlic before going to congregational prayers
or attending the crowd.

HARAM (PROHIBITED OR FORBIDDEN

• A binding demand of the Lawgiver in respect of

abandoning something;

• Committing the haram is punishable either in this

world or in the Hereafter, while omitting is rewarded.

Examples: riba, alcohol, theft, murder, adultery etc.

Haram is divided into two types:

1. lidhatihi- haram for its own sake

2. lighairi - forbidden because of something else.

HUKM AL-WADH`EI (SECONDARY OR DECLARATORY LAW)

1. Cause (sabab)
2) Condition (shart)
3) Hindrance (mani`)

4) Strict law (azimah),

5.) Concessionary lay (rukhsah)

6.) Valid, irregular and void (sahih, fasid and batil)

1) SABAB (CAUSE)

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• It is the cause on the basis of which a primary rule is invoked or established.

• Its presence necessitates the presence of the hukm, and its absence means the hukm is also absent.

Examples : The setting of the sun is the cause for the obligatory of the evening prayer,

- the coming of the month of Ramadhan is the cause for the obligatory of fasting and

- the committing of a crime is the cause of implementing the punishment.

2) SHART (CONDITION)

• It’s existence must take place before invoking the related hukm.

• Its absence necessitates the absence of the hukm.

Example:

There is no nikah without two witnesses,

The ablution (wudhu’) is a necessary condition of salah (prayer).

3) MANI` (HINDRANCE)

It’s presence means the absence of the hukm.

It’s existence prevent the hukm from being applied even if the cause is found and the condition is met.

Examples:

- Menstruation hinders women from the obligatory of prayer,

- Being in debt hinders the cause of zakat and etc.

4) AZIMAH AND RUKHSAH (STRICT AND CONCESSIONARY LAW)

• The Law-giver may indicate that one hukm is to be considered as an obligation imposed initially as a
general rule (azimah).

This may be followed by another rule that is exemption (rukhsah).

• Drinking of wine in cases of duress, to save him from dying of thirst.

• To shorten and combine two prayers in traveling.

5. SAHIH, FASID AND BATIL (VALID, IRREGULAR AND VOID)

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16th Phil. Shariah Training Lecturer : Dr. Sheikh Khalid Bhen Hanafie Mero March 14-15, 2019
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• An act may be required to be performed in certain manner by the Law-giver.

When it is performed properly it is considered as valid (sahih), otherwise it might be irregular (voidable)
(fasid) or null and void (batil).

Al-Haakim (The Law-Giver)

• Allah- The True Source of Law.

“The hukm belongs to Allah alone”.

Issues:
a) If Allah alone makes law, then what is the function Muslim jurists?

b) If the law is for the interest of man (maslahah), can interest be the independent
source of law?

Mahkum fiih (the act)

For the existence of obligations (taklif) two important conditions need to be fulfilled:

a) the act that should be performed or avoided must be known.

b) the act should be able to be performed by the subject.

Mahkum `alaihi (the subject of the law)

The person to whom the hukm is addressed

Legal capacity (ahliyyah ) :

To acquires rights and accept duties.

Types of ahliyyah:
a) ahliyyah al-wujub – capacity to acquire rights.
b) ahliyyah al-ada’ – capacity to execute.

A. Sources of Islamic law

1. QUR’AN –it is the speech of ALLAH sent down upon the last Prophet Muhammad , through Angel
Jibreel, in its precise wording and meaning, transmitted to us by numerous persons both verbally and in
writing.

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16th Phil. Shariah Training Lecturer : Dr. Sheikh Khalid Bhen Hanafie Mero March 14-15, 2019
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2. SUNNAH – It is the actual explanation and practical demonstration of the Qur’an. It refers to the
sayings, actions or deeds of the Prophet and actions of the companions which he tacitly approved.

3. IJMA

It means the consensus of the Muslim jurists of any particular period after the death of the Prophet
Muhammad SAW concerning a legal ruling .

In its legal sense, it is those principles of law which are accepted unanimously.

4. QIYAS

- It is a process of deducing a rule of law based on the Qur’an, Tradition or Ijma in matters which have
not been provided by a text.

5. ISTIHSAN (JURISTIC PREFERENCE)-

To approve, or deem something preferable.

6. MASLAHA MURSALAH (CONSIDERATIONS OF PUBLIC INTEREST)

Maslaha- “benefit” or “interest”.

A consideration which is proper and harmonious (wasf- munasib mula’im) with the objectives of
lawgiver:

MASLAHA MURSALAH

It secures a benefit or prevents a harm; and the Shari’ah provides no indication as to its validity or
otherwise.

• The First Source

• Al- Quran

The First Source of Shar’eeah The Qur'aan

The First Source of Shar’iah : The Qur'aan

Close to 350 legal Ayât (verses) in the Qur’aan.

140 verses deal with devotional issues such as: Salaah, Zakaat, Siyaam, hajj, jihad, repentance, the taking
of oaths, and charities.

70 verses deal with marriage, divorce, the waiting period, revocation, mahar, maintenance, custody,
fosterage, paternity, inheritance and bequest.

Another 70 verses deal with commercial transactions.

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16th Phil. Shariah Training Lecturer : Dr. Sheikh Khalid Bhen Hanafie Mero March 14-15, 2019
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30 verses deal with crimes and penalties.

Another 30 deal with rights and obligations of citizens.

Ten verses dealing with economic matters.

Method of Qur’aanic Legislation

A number of Qur’aanic verse were direct answers to question that were asked.

.}‫{يسئلونك عن الخمر و الميسر قل فيهمآ إثم كبير و منافع للناس و إثمهمآ أكبر من نفعهما‬

“They ask you about wine and gambling. Say, ‘There is great evil in them as well as benefit to
man. But the evil is greater than the benefit.”

Surah Al-Baqarah verse 219.

Method of Qur’aanic Legislation

Sometimes verse were revealed due to particular incidents which took place during the life of the
prophet. An example can be found in the case of Hilaal ibn Umayyah.

“And for those who launch a charge against their spouses, and have (in support) no evidence
but their own, - their solitary evidence (can be received) if - they bear witness four times (with an oath)
by Allah that they are solemnly telling the truth. And the fifth (oath) (should be) that they solemnly
invoke the curse of Allah on themselves if they tell a lie. But it would avert the punishment from the
wife, if she bears witness four times (with an oath) by Allah, that (her husband) is telling a lie; And the
fifth (oath) should be that she solemnly invokes the wrath of Allah on herself if (her accuser) is telling
the truth.”

Surah al-Nuur verses 6-9.

Qur’aanic Periods of Revelation

The Mekkan period (609 622 C.E)

1. Tawheed

2. Allaah’s existence

3. The next life

4. The people of old

5. Salah (the only ruling sent in Mecca)

6. Challenges

The Madeenan period (622-632 C.E)

1. Laws

2. The people of the book

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3. Hypocrites

4. Jihad

The Divisions of Qur’aanic Legislation

Man’s relationship with his creator.

Man's relationship with others.

• The Second Source

• II- Al Sunnah

A hadith (pl. ahadith) is composed of two parts: the matn (text) and the isnad (chain-
of reporters).

A text may seem to be logical and reasonable but it needs an authentic isnad with reliable reporters to
be acceptable; 'Abdullah B. al-Mubarak (d. 181 AH),

The Divisions of the Sunnah

The Different Types of Hadeeth

• Al Hadith As-Saheeh

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Definition:

a) Linguistically “saheeh” means that which is sound and healthy free from poor health and sickness and
deficiency.

• b) Narration which has

a connected chain of narration back to its source,

with reliable/trustworthy narrators at every level of the chain of narration,

who are precise/accurate in what they narrate, whilst at the same time

it does not contradict a report reported by stronger narrators, and

without there being any hidden defects

• Itiśāl as-Sanad:

A fully connected chain of narration:

This means that each narrator in the chain of narration took directly from the one before him, and he in
turn took the narration directly from the one before him and so on from the beginning of the sanad
(chain of narration) till its end.

• `Adālatur-Ruwāt:

Trustworthiness/reliability of the narrators:

That every narrator can be described (after research) to be a Muslim, adult, free from major sins (and
one who does not commit sins openly), and the narrator cannot be one who possesses bad manners and
hateful habits (ghairu makhroom al-maroo’ati).

So the narrator should be known for piety (taqwaa), free from shirk, open sins, and innovations (bid`ah).

(See “Nuzhatun-Nadhr” p.51.)

• Dabt ar-Ruwāt:

That every narrator in the chain is precise and accurately reports what he took from the narrator before
him.

• This can be done in two ways: Either

a) accurately reporting what has been memorised (dabt aś-śadr) or,

b) accurately reporting what he has written down (dabt al-kitāb).

• Adam ash-Shudhoodh:

Absence of contradiction of that which is stronger: --that the hadeeth cannot contradict another
hadeeth that has been reported by narrators that are more trustworthy and greater in precision.

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• `Adam al-`Illah:

Absence of hidden defects:

This is where there maybe a subtle hidden defect that deems the hadeeth as being inauthentic – whilst
on the surface it may seem sound.

If any one or more of these conditions (shuroot) is absent then the hadeeth cannot be considered as
“saheeh”

Hadeeth Hassan (Good)

A hadeeth that fails to meet the status of Sound Hadith

Hadeeth Da’eef (Weak)

A hadeeth that fails to meet the status of Hassan

Could be a break in its chain

One of the narrators has bad character such as: lying, excessive mistakes, opposition to a more reliable
narration, involvement in innovation, or ambiguity surrounding his person

It is not allowed to used Da’eef hadeeth for points of law or to base fatwaa (religious ruling) upon

Scholars have differed over their validity pertaining to the encouragement of doing good works

Hadeeth Maudu’ (Fabricated or Forged)

The text goes against the established norms of the Prophet’s}‫{صلى هللا عليه و سلم‬sayings.

It reporters include a known liar.

They are also known by their discrepancies related to time and historical events.

It is not allowed to narrate from these hadeeeth without telling the people that the hadeeth quoted is
Maudu’.

It is not allowed to use Maudu’ hadeeth for points of law or to base fatwaa (religious ruling) upon.

The scholars agree that they must not be used.

• The Third Source

IV- IJMA (CONSENSUS OF LEGAL OPINIONS)

Ijma is the verbal noun of the Arabic word Ajma’a which has two meanings:

To determine

To agree upon something

The consensus of mujtahid (independent jurist) from the ummah of Muhammad PBUH after his death in
a determined period upon a rule of Islamic law According to Imam Razi

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(Al mahsul Vol:4, 35)

• TYPES OF IJMA:

1) Ijma Qawli or Explicit Ijma or Sarih-

 Legal opinions of all the jurists of one period pertaining to legal issue.

 Explicit opinion of each one of them regarding that issue.

• 2) Tacit or Sakuti ijma:

When some mujtahid issue a verdict on a legal issue and the rest of the mujtahids come to know of it
and they keep silence,

they neither acknowledge it nor reject it expressly.

• The Fourth Source

• Qiyas (Analogical Reasoning)

: ‫القياس‬

‫ الشتراكها في العلة‬، ‫إلحاق ما لم يرد فيه نص علي حكمه بما ورد فيه نص علي حكمه في الحكم‬

Qiyas

Literally : Measuring or determining the length, weight, or quality of something.

The extension of Shar’iah ruling from an original case (Asl) to a new case (far’) because the new case has
the same effective cause (Illah) as the original case.

“Equating a case, whose rule is not mentioned explicitly in the text, with a case whose rule is mentioned,
on the basis of the equality between effective causes found in the two cases.”

• Essential elements of Qiyas:

• Original case (asl)

• Legal ruling of original case (hukm al-asl)

• New or parallel case (far’)

• Effective cause (‘illah)

Example of Qiyas:

To illustrate Qiyas we use the example of the verse:

“O you who believe! Intoxicants … are an abomination of Satan’s handiwork, so avoid”, which forbids
wine drinking.

If these prohibition is to be extended by analogy to drugs, the four pillar of analogy would be:

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ASL Far’ Illah Hukm

Wine Sabu Intoxicatiion Prohibition

 Original Case : (Wine)

 Legal Ruling of Original Case (Prohibition) (al-Ma’idah(5):90

 New Cases ( Shabu)

 Effective Cause (Intoxication)

The Conditions of Qiyas:

1) The condition of original case

2) The conditions of legal ruling of original case

3) Conditions of parallel case

4) Conditions of effective cause

• 1.The condition of original case

The original case is not a parallel case.

This means that the new case shall not be the original case.

• 2. The conditions of legal ruling of original case

1. The legal ruling of original case is pertaining to

conduct which is established by the Qur’an,

Sunnah and Ijma’.

2. The legal ruling should be one which is based on

effective cause that can be rationally understood.

Example: the ruling to circle Ka’bah seven times, number of rakaat in prayer etc.

3. The legal ruling should be one which is based on effective cause that can be extended.

If the legal ruling based on effective cause that cannot be extended, it cannot apply qiyas.

Example: The legal ruling which allow the traveler to brake the fast during day time.

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this ruling is based on effective cause that cannot be extended i.e. traveling.

4. The legal ruling should not be restricted to original case only.

In case if the legal ruling is specific to the original case only, qiyas is not permitted.

Examples:

the ruling regarding the permission for the Messenger of Allah (peace be upon him) of marrying more
than four wives or

the prohibition of marrying his wives after death cannot be extended through analogy, since these legal
ruling were specific to him.

• 3.Conditions of parallel (new) case

1. There is no explicit legal ruling

mentioned by the text on parallel case.

There shall be no qiyas in case there is legal ruling mentioned by the text.

2. The effective cause of the original case should be found in parallel case.

• 4.Conditions of effective cause

Effective cause must be an apparent attribute - easily be perceived by sense.

2. Effective cause should be a constant and stable attribute.

3. Effective cause should be an attribute that is compatible with the purpose of the law.

4. Effective cause should be extendible and not confined to the original case.

• ‫ تعريف أبي الحسن الكرخي من الحنفية‬: ‫اإلسحسان‬

) ‫ ( هو العدول في مسألة عن مثل ما حكم به في نظائرها إلى خالفه لوجه أقوى منه‬:

Istihsan

literally : To approve, or to deem something preferable.

A derivation from Hasuna, which means being good or beautiful.

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Al-Karkhi, a Hanafi jurists:

Istihsan is to depart from the existing precedent, by taking decision in a certain case different from that
on which similar case has been decided, for a reason stronger than the one that is obtained in those
cases.

- While quoting al-Karkhi’s

definition, Al-Sarakhsi added:

The precedent that is set aside by istihsan normally consists of an established analogy which may be

abandoned in favor of superior proofs, namely the Qur’an, Sunnah, necessity or stronger qiyas.

• Al Maslahah Al Morsalah

Maslaha literally : Benefit or interest

When it is qualified as Maslaha Mursalah, it refers to unrestricted public interest.

-Considerations which secure a benefit or prevent harm

-Harmonious with the objectives of the Shari’ah ( )‫الﺸﺮﻴعةمقاصد‬

• Objectives of the Shari’ah ( )‫الﺸﺮﻴعةمقاصد‬

 Protecting 5 essential values:

1. religion 2. life 3. Intellect 4. lineage and 5. property

Any measures which secure these values falls within the scope of maslahah and anything violates them
is called mafsadah(‫مفسد)ۃ‬

 Preventing mafsadah is also maslahah.

 - Istislah is not a proof in respect of

-devotional matters (‘ibadah)

-the specific injunctions (muqaddarat)

- Hudud penalties.

• Types of Maqasid

1. DHARURIYYAT (ESSENTIAL)

2. HAJIYYAT (COMPLEMENTARY)

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3. TAHSINIYYAT(EMBELLISHMENT)

• .DHARURIYYAT (ESSENTIAL)

Masalih on which the lives of the people depend and their neglect leads to total distruption and chaos.

• 1. religion 2. life 3. Intellect 4. lineage and 5. Property

• HAJIYYAT (COMPLEMENTARY)

Must be promoted and protected Supplementary to the five essential values whose neglect leads to
hardship in the life of the community although not to its collapse.

Example:

The concession ( granted to the sick people, elderly and traveller not to observe fast and ) ‫رخصۃ‬
. shorten the prayer

• The embellishments Refers to interest whose realization leads to improvement and the

attainment of that which is desirable.

E.g. the observance of cleanliness in personal appearance and ibadah.

Avoiding extravagance in consumption In general:

• The embellishments

 Refer to those interests that, if realized, would lead to refinement and perfection in the
customs and conduct of people at all levels of achievement.

 They are needed to alleviate hardship so that life may be free from distress and predicament.

• Types of Maslahah

From the viewpoint of the availability or otherwise of a textual authority in its favor,

Maslahah is divided into;

MU’TABARAH

MURSALAH

MULGHAH

• Maslahah Mu’tabarah

The Law Giver has expressly upheld and enacted a law for its realization.

– Protecting life by enacting the law of retaliation

-Defending the right of ownership by penalizing the thief

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16th Phil. Shariah Training Lecturer : Dr. Sheikh Khalid Bhen Hanafie Mero March 14-15, 2019
NCMF-Cotabato City

- Protecting the dignity and honor of the individual by penalizing adultery and false accusation.

The lawgiver has upheld that each offence constitute proper ground for punishment in question.

• The validity of maslahah in these cases is definitive (‫) قﻂعى‬and no longer open to
debate.

• Shortening and combining of prayers or break fasting when travelling – parts of

rukhsah – maslahah hajiyyah

• Polygamy?

• Written agreement/contract?

• Maslahah Mulghah

• It is a maslahah which the Lawgiver has nullified either explicitly or by indication that could be found in
the Shariah.

• Ulama’ agree that legislation in pursuant of such interests is invalid and no judicial decree maybe
issued in their favor.

• Example:

Right to divorce

– Some said it should also be given to the wife because of maslahah

– Is there a maslahah? – Maslahah mulghah..

• Maslahah Mursalah

• Maslahah which has been validated after the divine revelation came to an end.

• It is unrestricted public interest in the sense of it not having been regulated by the Lawgiver insofar as
no textual authority can be found on its validity or otherwise.

• The Lawgiver has neither upheld nor nullified the necessary legislation.

• Other examples of Maslahah Mursalah

• • The collection and compilation of al-Quran in a single volume

• The introduction of land tax

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16th Phil. Shariah Training Lecturer : Dr. Sheikh Khalid Bhen Hanafie Mero March 14-15, 2019
NCMF-Cotabato City

• The right to inheritance of a woman whose husband had divorced her during death sickness.

• War on those who refused to pay zakat •

Nomination of Umar to replace Abu Bakar as caliph

The ruling of Umar that his officials must be accountable for the wealth they had accumulated in abuse
of public office and expropriation of such wealth.

• Establishment of an organized military force department or defence ministry

(Diwan al- Jund) and Diwan al-Ata’ (sort like ministry of finance) but to distribute money to the public –
established by Sayyidina Umar • Administration of justice

• •Conditions of Maslahah

- The maslahah must be genuine (haqiqiyyah)

– Protecting the faith

– necessitates prevention of sedition (fitnah) and propagation of hearsay.

– Protecting intellect

– Promotion of learning, providing education

– Protecting of lineage

– Creation of favorable environment for care and custody of children

– Protecting property

– Facilitating fair trade and lawful exchange of goods and services in the community.

Examples:

• registration of marriage in the court and the issue of marriage certificate.

• the recording of land transfer in the Registry departments - prevents false testimony and
fraudulent land transfer.

• consumer protection law

• day care centers at the government offices and agencies.

• regulation on wearing of helmets and fastening of seatbelt.

The maslahah must be general (kulliyyah) – It secures benefit or prevent harms to the people as a whole
and not to a particular person or group of persons

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16th Phil. Shariah Training Lecturer : Dr. Sheikh Khalid Bhen Hanafie Mero March 14-15, 2019
NCMF-Cotabato City

• Acquisition of land for the purpose of development?

Not in conflict with the nusus – ?

- the legalization of usury (riba’) on account of the change in circumstances?

– Is there any maslahah?

– Conflict? Yes; it’s practice comes into conflict with the clear nass of the Qur’an. – ١‫ل‬١‫لربىوحرموٲحلالبيع‬

Al-Tufi’s view of maslahah al- mursalah

• A prominent Hanbali jurists- authorizes recourse to maslahah with or without the existence of a nass.

• He argues that the hadith la dharar wa la dhirar enables the maslahah to take precedence over all
other considerations.

• However, he precludes devotional matters, specific injunction and prescribed penalties from the scope
of maslahah.

• These matters can only be established by nass and ijma’.

• As for transaction and temporal affairs

- if the text conform the maslahah of the people, they should be applied forthwith, but if they oppose,
the maslahah should take precedence over them.

• In the areas of transactions and temporal affairs including governmental affairs, maslahah constitutes
the goals.

• When there is a conflict between a maslahah and nass, the hadith “la dharar wa la dhirar” must take
priority.

Urf and ‘Adat– Custom and Tradition

Derived from its Arabic root ‘arafa (to know), ‘urf literally means ‘that which is known.’

In its primary sense, it is the known as opposed to the unknown, the familiar and customary as opposed
to the unfamiliar and strange.

Urf according to the scholars is: recurring practices which are acceptable to people of sound nature.

Types of urf:

Urf Qawli (verbal): consists of agreement of people on the usage and meaning of words deployed for
purpose other than their literal meaning. As the words of Salah and Zakat.

Urf Fi’li (actual): consists of commonly recurrent practices which are accepted by the people. As the
give-take sale.

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16th Phil. Shariah Training Lecturer : Dr. Sheikh Khalid Bhen Hanafie Mero March 14-15, 2019
NCMF-Cotabato City

Urf Qwali and urf Fi’li are both sub-divided into two types:

 Al-Urf-al Amm (general): practices of all people everywhere. As bay al-ta’ati.

 As-Urf-al Khass (special): practices of a particular country or some places.

Istishab

Istishab literally means courtship or companionship.

Istishab according to the scholars means presumption of existence or non-existence of facts. It can be
used in the absence of other proofs (dalil).

Sadd al-dharai (blocking the means):

Dharai is a word synonymous with wasilah, which signifies the means to obtaining a certain end, while
Sadd literally means blocking.

The concept of Sadd al-dharai is founded on the idea of prevention of evil before it materializes.

Sadd al-dharai (blocking the means):

Sadd al-dharai according to the scholars means blocking the means to evil.

Example of Sadd al-dharai:

Allah (SWT) said: “And insult not those whom they (disbelievers) worship beside Allah, least they insult
Allah wrongfully without knowledge.”

To be continued... In shaa Allah

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