Assignment Cover Sheet

Subject Code: ARTS017

Subject Name: Islamic Culture

Submission Type: Turnitin

Assignment Title: Essay

Student Name: Muhammad Taha Shahid

Student Number: 5680591

Student Phone/Mobile No. 0505391324

Student E-mail: mts888 @uowmail.edu.au

Lecturer Name: Dr. Feras Hamza

Due Date: 10/01/2019

Date Submitted: 10/01/2019

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Subject: ARTS017 Assignment Title: Essay

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Due Date: 10/01/2019 Date Submitted:

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Subject: Arts017 Assignment Title: Essay

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 ISLAMIC JURISPRUDENCE

Jurisprudence in its narrowest sense refers to the study of law or how it developed over time. The

word jurisprudence translates to “knowledge of law”. Laws and their philosophy, doctrines, basic

considerations vary worldwide and change from time to time, flexibility and evolutionary nature of

the majorly unwritten British Constitution is a perfect example. I observed that by convention, the

law at the primary level is divided into two branches, which are private law (pertaining to dealings

between individuals) and public law (comprising offences where the state becomes a

counterparty). Another classification is made as civil law (involving penalties for wrongs) and

criminal law (prescribes punishment for offences).

After going through Islamic history, I can confidently say that it is a complete code of life. It

encompasses along with others the legal matters an Islamic State has to take care of and thus

provide complete legal code. Even the US Supreme Court has recognized Prophet (PBUH) as one

of the 18 greatest law givers of all times (Mallat, 2004).

This discussion would attempt to unravel many such features with clarity. As with any

other law, the basic premise of the Islamic Law stays the same and can in no way be deviated from

while the ancillary provisions have been developing over time. This essay will cover the historical

development of the Islamic Law, will discuss various modes of adaptations and finally sum up the

various aspects of contemporary law.

Mallat (2004) pertinently pointed out that the Islamic law intended for implementation

in entirety over an Islamic State has all the constituents of constitutional law and covers both the

aspects necessary for running a State. It has been observed that the constitutional structure is a

significant element, which should be considered in order to explore the Islamic jurisprudence in

depth.
Salient constitutional features include certain points. These include that sovereignty belongs to

God Allah Almighty only, the State is a single Islamic State with not independent constituents. It

further includes that the Supreme executive is the Caliph or Imam (this is an elective office, modes

of election vary) who may rule through his appointees including Governors and Departmental

Heads (Coulson, 2017). One of the Quranic verses in support of this system of ruler-ship is verse

59 of Sura-e-Nisa compelling Muslims to obey Allah, his Messenger (PBUH) and those who have

been given authority over them (Al-Quran) (Mallat, 2004). I personally believe that constitutional

matters are of the utmost significance and in the Islamic states, these constitutions are considered

by the higher authorities.

Moreover, Salient administrative provisions include that head of State is a trustee of the public

property, all government revenues are to be deposited in Bait-ul-Maal, sources of revenue include

Ushr or Khiraj (from Muslims), Jiziya (from non-Muslims), zakat and khumus (1/5th of non-

Muslims’ properties acquired in conquest). From further research, I observed that last provision

involves that the Head of State or the Governors appoint the Qazis of Courts (Coulson, 2017). The

administrative matters are also discussed in Islamic law and there is a need to consider certain

aspects, including Khiraj or Ushr while discussing the sources of revenue.

The Islamic jurisprudence has its deep roots during the previous times. There is a need to

consider the history for the purpose of different aspects associated with the Islamic Jurisprudence.

The History of Islamic Jurisprudence is divided into four periods as described below (Hallaq,

2005):

1st Period

This period starts from Hijrah (as only after hirah the law making commenced) and ends on

Wisaal of the Holy Prophet (PBUH). The superstructure of Islamic law is based on the Text
revealed or compiled in this era. The Text referred to here and hereinafter is Quran and Sunnah

(including Hadith).

2nd Period

This period starts from wisaal and stretched up to the period of successors of the

companions. Collection, interpretation, and extensions of laws took place in this era.

3rd Period

This is the period of four Sunni Schools of thought. The theoretical and scientific study of

the Islamic laws continued in this period.

4th Period

This is the period of Taqlid (following) i.e. after the four Imams and up till now. Taqlid is

resorted to for elaborate classification of laws by jurists.

There are many different sources of Islamic law, which are of utmost significance. It has

been observed that the Holy Quran provides a complete code of life for people pertaining to every

walk of life. The following are the sources of Islamic law in order of priority:

The Holy Quran

Direct revelations upon the Holy Prophet (PBUH) from God are present in the form of

Quran (the divine book). It is therefore out of the question that any Islamic law could be in contrast

with any Quranic teaching (Hallaq, 2005). Thus this text forms the basic and first-hand source of

Islamic law.

The orders or the Ahkam in Quran are either classified as Taklifi (the defining law) and

Wadi (the declaratory law).

Another classification is also available under which the Ahkam are divided into ethics,
faith, and practical life. Under practical life come Ibadaat and Muamlaat which are further divided

into legal provisions related to family, civil, penal/ criminal, judicial, constitutional and

international relations issues.

Sunnah (including Hadith)

Technically Sunnah comprises words, acts, and approvals. Sunnah in Islamic law includes

whatever teachings have been transmitted from the Holy Prophet (PBUH) besides the Quran.

There are many verses in the Quran itself which justify Sunnah as being the law to be followed

strictly. One of such being “Whoever obeys the Messenger has obeyed Allah” (Al-Quran) whereas

Holy Prophet (PBUH) himself has declared that Sunnah has been received by Him as being similar

to Quran (El Fadl, 2014).

Sunnah though having the strongest support for being the prescribed law is at times

qualified on the basis of authenticity i.e. whether continuous, famous or isolated and narration i.e.

whether connected or disconnected.

Ijmah

Ijamah refers to the unanimity of opinion of religious jurists over a matter not specifically

dealt with by Quran and Sunnah. Several Quranic verses and hadith provide it authority (El Fadl,

2014). Prophet (PBUH) has asserted that the Ummah will not agree upon an error (Al-Tirmidhi,

Ibn-e-Majah) Ijmah is “Sanadi” (of learned people only) and “Mazhabi” (by words or by deeds)

Various qualifications have been prescribed for a person to be able to participate in Ijmah.

There are various conditions on which Ijmah is validated.

Qiyaas

El Fadl (2014) highlighted that Qiyaas in the legal context defined as a “process of

deduction to apply the law of the Text to cases which carry reason of the text” or to discover the
similarly applicable legal provision from the original Text to a new case without making a new

rule. The analogy is the main factor applied in Qiyaas which has the support of Sunnah.

Qiyaas ranks in priority below Quran, Sunnah, and Ijmah.

Istihsan

In its literal sense, Istihsan means “to consider something good”. In this method rather than

comparing through a complete analogy, it is only discerned whether the new matter on which

question of law has arisen bears some quality of a previously approved or prohibited issue

(Bassiouni, 1982).

Customs

Customs are also considered to be a source law which some schools of thought rank above

Qiyaas. Various characteristics have been prescribed for customs to be legally enforceable

(Bassiouni, 1982).

Ijtehad

Ijtehad technically means an effort made by the Mujtahid in seeking ahkaam of Shariah

through interpretation. Ijtihad is carried out by applying all of the interpretive faculties to the

authorities of law which are the Quran, Sunnah, and Ijmah. Professional and personal

qualifications for Mujtahid have also been laid down (Hallaq, 2005).

Taqlid

This refers to following the jurists where Quran, Sunnah, and Ijmah are silent without

demanding arguments. Its authority is derived from the Quran and Sunnah.

Istishab

The doctrine of continuity is a fundamental principle of legal deduction. It is based on

probability and can be employed in the absence of evidence of change.

Declaratory laws deal with rights and obligations. It is critical to consider these aspects in

order to gain sufficient knowledge regarding the laws.

Juristic Acts

Acts give rise to rights and obligations. For legal purposes, the physical acts are divided

into originating and informative and further classified into valid, irregular and void (Hallaq, 2005).

Rights

Rights are divided into Huqooqullah (of God) and Huqooq-ul-Ebad (of men). Huqqoq-ul-

ebad is public and private rights.

Obligations

Coulson (2017) indicated that Obligations are classified as by law (towards God and

individuals), by own acts (admission of others’ claims) and by conduct (infringing other’s rights).

Ownership (Milk)

Ownership legally means power and control of man on the thing (maal) excluding others.

Ownership over all things belongs to God alone in Islam. Proprietary rights are granted by God to

man to have ownership of rightful things.

Contracts (Aqd)

Ijaab (offer) and qubool (acceptance) are necessary for a valid contract. Outward

manifestation is necessary. Object (ghaiyrah) must be lawful. Consideration is essential in many

but not all contracts like gifts.

Civil Law Including Torts

There are certain civil remedies available to individuals. Considering the extrajudicial, it

includes qurqi/distress, recapture, retaliation and abatement of the nuisance. If the judicial aspect is

considered, then it encompasses restitution by return and pecuniary (damages).

Criminal Law

Crimes are punishable by Hudood, Tazir, and retribution. Crimes liable to Hadd include

theft, alcohol, adultery, dacoity, mutiny, slander of woman and apostasy (Dien, 2004). Fixed

punishments have been prescribed under Hudood while punishments under Tazir and retribution

may vary according to circumstances and nature of the crime.

International Relations Law

Laws, customs and treaty obligations are to be observed by the Islamic State in dealing

with other States (Muslim or non-Muslim). Conventions/ Injunctions to be abided by even in time

of war have been prescribed.

The matter discussed above though many of the important details being left shall give a fair

idea of the Islamic jurisprudence and prove that Islam gives a comprehensive legal system for

human beings to do justice and equity. From personal experience, it can be concluded that Islamic

jurisprudence contains the solution to a number of problems. If the authoritative bodies consider

the Islamic law, then states may achieve success within a short period of time. The Islamic law

significantly addresses the constitutional matters along with giving a comprehensive code to be

followed for governance. Further, while defining the respective rights and liabilities of the

individuals and the State, it provides for an effective administration of justice and people’s affairs

covering both the private and public laws. There is a need to consider the different situation, in

which the Islamic laws can be applied and may help in resolving the situation.
References

Bassiouni, M. C. (1982). Sources of Islamic Law, and the Protection of Human Rights in the

Islamic Criminal Justice System. The Islamic Criminal Justice System, 3, p.23.

Coulson, N. (2017). A history of Islamic law. United Kingdom: Routledge.

Dien, M. I. (2004). Islamic law: From historical foundations to contemporary practice (p. 82).

Edinburgh: Edinburgh University Press.

El Fadl, K. A. (2014). Speaking in God's name: Islamic law, authority and women. United

Kingdom: Oneworld Publications.

Hallaq, W. B. (2005). The origins and evolution of Islamic law(Vol. 1). United Kingdom:

Cambridge University Press.

Mallat, C. (2004). The Renewal of Islamic Law: Muhammad Baqer as-Sadr, Najaf and the Shi'i

International (Vol. 29). United Kingdom: Cambridge University Press.

 ARTS017- ESSAY TUTOR MARKING SHEET

Student Name:

Tutor Name: Date:

Marking Key:
Needs Improving= 1 mark, Satisfactory= 2 marks, Very good= 3 Marks, Excellent= 4 marks
Total Marks = 100

1 Task fulfilment Needs Satis- Very

improving factory good Excellent

The purpose of the essay (research/analytical/ reflective) is clear

Comment:

2 Structure Needs Satis- Very Excellent

improving factory good

The introduction refers to the topic.

The introduction indicates the scope.

The introduction includes a thesis statement or aim.

The introduction indicates the order of the main points.

The body of the essay fully presents one detail or point per paragraph.

The body of the essay orders and balances the points.

The body of the essay links the main points to the thesis/ aim.

The body of the essay links the main points or details to each other.

The conclusion restates the thesis aim.

The conclusion summarizes the main points or details discussed.

The personal reflection demonstrates a clear understanding of topic

The Personal reflection is relevant to the topic

Comment:
 3 Content and research Needs Satis- Very
Excellent
improving factory good

Shows evidence of adequate research (at least 4 quality references)

The main points and assertions supported by evidence and examples

(Quoting and paraphrasing).

Terms and concepts used accurately, adequately and confidently.

The discussion relates to relevant themes and issues.

Comment:

4 Writing style and presentation Needs Satis- Very good

Excellent
improving factory

Fluent writing (correct grammar, spell-checked and correctly punctuated).

Neat and legible (font 12, wide margins, double line spaced).
Consistent use of same font (Times new roman/ Arial/ Calibri)

Comment:

5 Referencing Needs Satis- Very

Excellent
improving factory good

All in-text references included in the reference list.

All references in the reference list cited in the text.

Correct Harvard conventions followed in the reference list.

All direct quotes and paraphrases acknowledged.

Correct in-text reference conventions followed for direct quotations and

paraphrases and in correct Harvard style.

Comment:

Overall comment: