IIUM

1
IIUM
IRKHS
Diploma in Islamic Revealed Knowledge
2
IIUM
IRKHS
Fiqh
DIRK
3
Department of General Studies
IIUM
IRKHS
???????? ????? ???? ????? ?????
Dr. Hikmatullah Babu Sahib B.A., M.A. (Peshawar)
Ph.D. (Edinburgh) Post. Doc. Fellow (Yale)
Department of General Studies IRK, IIUM 03-2056
5584 (Office)
E-mail Contact hikmatullah_at_iiu.edu.my hikmatullah
_at_hotmail.com hikmatullahsahib_at_yahoo.com
Lecturer
DIRK
4
IIUM
IRKHS
Assignment Topic

• Why Madhhab?
• Is the Door of Ijtihad Closed?

Date of Submission 2 weeks after the last
lecture.
DIRK
5
IIUM
IRKHS
GENERAL INTRODUCTION
Lecture 1
Lecture 1
DIRK
6
IRKHS
T H I N K I N G A L O U D
Who
Who
Where
What
Where
Fiqh
How
When
Why
When
IIUM
Why
Lecture 1
DIRK
7
Purpose of Creation
Introductory Remarks I
Why man is created by Allah?
Lecture 1
DIRK
8
Purpose of Creation
Introductory Remarks I
Allah says in the Noble Quran
??? ???? ???? ?????? ??? ???????
Lecture 1
DIRK
9
Purpose of Creation
Introductory Remarks I
What Allah has done for us?

• Create

• Nourish

• Sustain

• Guide

Lecture 1
DIRK
10
Purpose of Creation
Introductory Remarks I
??? ????? ??????? ?? ???? ????? ?????? ???????
????? ????? (762) ??? ??????? ???? ??????
(553) ??? ????? ???? ?? ???? ???? ????? (6157)
Lecture 1
DIRK
11
Purpose of Creation
Introductory Remarks I
???? ??????? ?? ??????? (711) ???? ??? ???
????? (20131) ???? ???? ????? ?????? (2531)
Lecture 1
DIRK
12
Purpose of Creation
Introductory Remarks I
Hadith
??? ???? ??? ??? ????? ??? ???? ???? ?? ?????
?? ??? ??? ????? ???? ????? ?? ??? ??? ?????
Lecture 1
DIRK
13
Mans Need for Law
Introductory Remarks I
Why man needs a Law?

• To guide man in his multifarious activities
• To prevent him from committing crimes against
• his self, family, society, nation and the world
• To protect the interests of oneself and others
• To understand and respect the rights and
• obligations

Lecture 1
DIRK
14
Divine Law vs. Man-made Law
Introductory Remarks I
Divine Law
Man-Made Law
Source
Allah
Man
Knowledge
Immediate
Mediate
Status
Perpetual
Temporary
Nature
Sacred
Non-Sacred
Lecture 1
DIRK
15
Divine Law vs. Man-made Law
Introductory Remarks I
Divine Law
Man-Made Law
Extent
Universal
Particular
Prevent aggression
Role
Guide / Enlighten
Manner
Uniform
Differ
Lecture 1
DIRK
16
Literally defined as
?????? ???????? ????????? ________________________
__________________________________________________
____________________________________
( ????? ????? ?? ???? ????? ???? ???? ?????
) ________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
______________________
Lecture 1
17
Technically defined as (?? ??? ???? ?????? ??
????? ??????? ????????)
These rules (???????) were called as ?????
because of its straightness and its resemblance
to water spot as there in it life for the soul
and intellect just as there is life for the body
from the water spot.
Lecture 1
DIRK
18
The course towards the water spot
A
B
water
C
D
Lecture 1
DIRK
19
The course towards the water spot
A
B
Quran Sunnah
C
D
Lecture 1
DIRK
20
Specialities of Shariah

• Divine Origin
• The sharai reward and punishment are
• both this worldly and the hereafter
• Universal and everlasting
• All embracive

Lecture 1
DIRK
21
IIUM
IRKHS
Law Order in Jahiliyyah
Lecture 2
Lecture 2
DIRK
22

• Religious Beliefs
• Economic System
• Political System
• Social System
• Ethical System

Lecture 2
DIRK
23
Religious Beliefs
People

• IDOL WORSHIPPER
• ATHEIST
• FOLLOWERS OF CHRISTIAN
• JEWISH TEACHING
• BELIEVERS IN ONE SUPREME
• GOD (ALLAH)

Lecture 2
DIRK
24
Religious Beliefs
Beliefs

• Feared of the Hereafter
• Praised forefathers at the conclusion
• of pilgrimage
• Acknowledged the Messengership
• of earlier Prophets
• Performed Hajj
• Respected the Holy months

Lecture 2
DIRK
25
Ibn Hisham says

the beginning of stone worship among the sons of
Ismail was when Makkah became too small for
them and they wanted more room in the country.
Everyone who left the town took with him a stone
from the Sacred area to do honour to it. When
they settled they set it up and walked around it
as they went around the Kabah. This led them
to worship what stones they pleased and those
which made impression on them. Thus as
generation passed they forgot their primitive
faith and adopted another religion for that of
Ibrahim and Ismail.

Lecture 2
DIRK
26
Economic System

• tied to tribal loyalty hierarchy
• labor despised
• slavery common
• transactions based on traditions customs
• no distinction between self-acquired
• inherited properties
• absolute power of disposal for owner
• tribal-based economic specialization

Lecture 2
DIRK
27
Political System
Lecture 2
DIRK
28
Social System
Lecture 2
DIRK
29
Ethical System
Lecture 2
DIRK
30
IIUM
IRKHS
The Sharai Principles
Lecture 3
Lecture 3
DIRK
31
IIUM
IRKHS
Selection based on retention and abrogation
Lecture 3
DIRK
32
Islam
Shariah
Lecture 3
DIRK
33
Fiqh
Shariah
Lecture 3
DIRK
34
Shariah
Fiqh
Lecture 3
DIRK
35
Shariah Fiqh ?
Lecture 3
DIRK
36
???? ????? ????? ?? ?????? ?????? ????? What
has come to these people that they have failed to
understand (even) a single fact (478)
Lecture 3
DIRK
37
??? ???? ?? ?????? ??? They have hearts
wherewith they understand not (7179)
Lecture 3
DIRK
38
Aspects of beliefs, ethics and
narrations about past nations
Rules which the Mujtahid fails in which there
are the Rules of Allah
Rules which the Mujtahid succeeds in which there
are the Rules of Allah
Shariah
Fiqh
Lecture 3
DIRK
39
Literally ????? ????? ????? ??? ?????
(????) Persons knowledge of his rights and
obligations (with respect to his acts)
Lecture 3
DIRK
40

• This definition includes three things
• Knowledge of the tenets of faith ( ilm al-Kalam
  )
• Knowledge of ethics and mysticism ( Tasawwuf )
• Knowledge pertaining to acts ( Fiqh )

Lecture 3
DIRK
41
Technically ????? ???????? ??????? ???????
???????? ?? ?????? ????????? The knowledge of
the legal rules pertaining to conduct, that have
been derived from their specific evidences.
Lecture 3
DIRK
42
???????
?????
???????
????????
?????
?????? ?????????
Lecture 3
DIRK
43
Shariah
(Belief) ?????
(Action) ???
(Tasawwuf) ?????
(Ilm al-Kalam) ?????
(Islah al-Zahir) ?????
????? ??????? (??????)
??????????? (???????)
????? ????? (???????)
Lecture 3
DIRK
44
????????? aim to regulate relations between
individuals
Sharai Values
???????? aim to regulate an individuals relation
s with his Lord
Lecture 3
DIRK
45
????????? Transactions
Private International Law
Family Law
Civil Law
Procedural Law
International Law
Financial Law
Constitutional Law
Criminal Law
Lecture 3
DIRK
46
Mans relation with himself Mans relation with
his fellow Man Mans relation with God Mans
relation with society Mans relation with the
universe
Shariah Covers
Lecture 3
DIRK
47
??? (Value) literally means
????? ??? ??? ??? ?????? ?? ???? Predicating a
thing to another either affirmatively or
negatively
Lecture 3
DIRK
48
??? (Value) literally means
??? ????? ?? ????? to place a thing in its
proper place
Lecture 3
DIRK
49
Technically defined as
????? ?? ??? ???? ????? ???????? ??????
???????? an expression about the rule of Allah,
the self-elevated, which is connected to the
actions of the mukallafs (those on whom the
obligation is effected)
Lecture 3
DIRK
50
Technically defined as
???? ???? ????? ???????? ?????? ????????
????????? ?? ??????? ?? ????? a communication
from Allah, the self-elevated, which is
connected to the acts of the mukallafs through a
demand or option or through a declaration.
Lecture 3
DIRK
51
Pillars of Sharai Values
Every Hukum must have the following three
essential components to make an individual
responsible for
HAKIM
MAHKUM FIHI
MAHKUM ALAIH
Lecture 3
DIRK
52
Lawgiver
Subject Matter
Audience
Lecture 3
DIRK
53
Injunctive
Stipulatory
????????
?????
??????
Primary
Secondary
Lecture 3
DIRK
54
PRIMARY VALUES
Obligatory
Recommended
Permitted
Discouraged
Forbidden
Lecture 3
DIRK
55
??? Fard
???? Wajib
Lecture 3
DIRK
56
What is Fard (Obligatory) ?
Lecture 3
DIRK
57
?? ??? ????? ???? ?? ???? ??? ????? ????? ?????
????? that which is established through a clear
proof in which there is no doubt and anyone
denying it is considered an infidel and one who
does not perform it is punished
Lecture 3
DIRK
58
What is Wajib (Obligatory) ?
Lecture 3
DIRK
59
?? ??? ????? ????? ??? ???? ????? ???? ???????
??? ?? ???? ????? ?????? ????? ????? ?? ?? ?????
??? ???? ????? ????? ?? that the obligation of
which is established through an undoubtful proof
like the Singular tradition and it is that which
rewards the doer make rightful the punishment for
abstaining from it without any excuse such that
its denier is considered to have gone astray and
is an infidel due to it
Lecture 3
DIRK
60
What is the difference between Fard Wajib
(Obligatory) ?
Lecture 3
DIRK
61
Divisions of Fard / Wajib
(1) ayni (individual) / kafai
(collective) (2) muwaqqat (contingent) /
mutlaq (absolute) (3) muhaddad (quantified) /
ghayr muhaddad (unquantified)
Lecture 3
DIRK
62
Ayni (Individual Obligation) is defined as
that which is addressed to every individual and
cannot, in principle, be performed for or on
behalf of another person
e.g. Salat
Lecture 3
DIRK
63
Kafai (Collective Obligation) is defined as
that which is addressed to the community as a
whole, such that if any one member of the
community perform it, the law is fulfilled and
the rest of the community is absolved of it.
e.g. Salat al-Janazah
Lecture 3
DIRK
64
When will a Kafai becomes an Ayni ?

• Jihad
• Ijtihad
• Expertise

Lecture 3
DIRK
65
Muwaqqat (Contingent Obligation) is defined as
that which is contingent on a time-limit
e.g. Sawm (fasting)
Lecture 3
DIRK
66
Mutlaq (Absolute Obligation) is defined as
that which is free of time-limit.
e.g. Kaffarah (expiation)
Lecture 3
DIS
67
Muhaddad (Quantified Obligation) is defined as
that which results in personal liability.
e.g. Zakat
Lecture 3
DIS
68
Ghayr Muhaddad (Unquantified Obligation) is
defined as
that which does not result in personal
liability.
e.g. Mahr (dowry)
Lecture 3
DIS
69
Note.
Any excessive performance of wajib becomes
either part of wajib or mandub
Lecture 3
DIS
70
Lecture 3
DIS
71
?? ???? ????? ??? ???? ???? ???? ????? ?? ?????
?????? that which the Prophet, on whom be the
regard and salutation of Allah, used to practice
regularly with intermittent abstinence
Lecture 3
DIS
72
?? ???? ????? ??? ???? ???? ???? ???? ???
???? that which the Prophet, on whom be the
regard and salutation of Allah, used to practice
regularly without being an obligation
Lecture 3
DIS
73
Mustahabb (Desirable Act)
?? ??? ??? ?????? ??? ????? that which the Law
Giver prefers without making it an obligation
Lecture 3
DIS
74
Mandub (Recommended Act)
????? ???? ???? ????? ??? ???? ?? ??? ??????
????? ????? ????? the act that the abstinence
of which is preferred in the opinion of the Law
Giver and one who abstains from it is rewarded
Lecture 3
DIS
75
Nafl
?? ??? ????? ??? ??????? ????????? that which
is legislated over and above the obligatory rules
Lecture 3
DIS
76
Haram (Forbidden)
Is a binding demand of the Lawgiver in respect of
abandoning something.
Lecture 3
DIS
77
Haram (Forbidden)
Committing the haram is punishable and omitting
is rewarded
Lecture 3
DIS
78
Forms of Haram in the Quran

• the word haram itself occurring 53 (????)
• other prohibitory terms 590
• (??)

Lecture 3
DIS
79
Forms of Haram in the Quran

• command to avoid certain behavior 590
• (????????)
• expressions like 419
• (?? ??? ???)

Lecture 3
DIS
80
Types

• Haram li dhatihi(that which is prohibited for
• its own sake)
• Haram li-Ghayrihi (that which is prohibited
• due to something else)

Lecture 3
DIS
81
Makruh (Abominable)
A demand of the Lawgiver which requires the
mukallaf to avoid something, but not in strictly
prohibitory terms. Thus omitting something which
is makruh is preferable to committing it.
Lecture 3
DIS
82
Type

• Makruh Tahrimi
• (that which is closer to haram)
• Makruh Tanzizhi
• (that which is closer to mubah)

Lecture 3
DIS
83
Mubah (Permissible)
Communication from the Lawgiver concerning the
conduct of the mukallaf which gives him the
option to do or not to do something
Lecture 3
DIS
84
SECONDARY VALUES
??? (Cause)
??? (Condition)
???? (Obstacle)
Lecture 3
DIS
85
Sabab
Literally ??? ??? ????? ?? ???
??????? the means through which the goal is
reached
Lecture 3
DIS
86
Sabab
Technically What the Lawgiver has determined
to be the identifier of a legal rule so that its
existence means the presence of the rule, while
its absence means the absence of the rule
Lecture 3
DIS
87
Types

• That which neither depends on the act of the
  subject nor is it within his power to bring about
  (Ghayr al-Tam)
• e.g. the arrival of the month of Ramadan is the
  cause for fasting

Lecture 3
DIS
88
Types

• That which depends on the act of the subject and
  is within his power to bring about (Tam)
• e.g. like journey for the permissibility of not
  fasting

Lecture 3
DIS
89
Shart
Literally ????? ????? ???? ???? ??? ???
????? ??? ?????? the connection of a thing
with another such that if the first is present
the second is also present
Lecture 3
DIS
90
Shart
Technically an evident and constant attribute
whose absence necessitates the absence of the
hukum but whose presence does not automatically
bring about its object e.g. Wudu - Salat
Lecture 3
DIS
91
Types

• Shart Shari (Legal Condition)
• by the Lawgiver
• Shart Jali (Improvised Condition)
• by the mukallaf

Lecture 3
DIS
92
Mani
????? ?? ?????? ????? ??? ???? ????? an act
or an attribute which nullifies the hukum in the
presence of a cause e.g. Difference of
religion ?? ??? ??????
Lecture 3
DIS
93
Types

• That which affects the Sabab (Cause) due to its
  presence
• e.g. not paying Zakat due to indebtedness
• That which affects the Hukum (Rule)
• e.g. Paternity hinders retaliation

Lecture 3
DIS
94
Manner of performance
VALID
VOID
IRREGULAR
Lecture 3
DIS
95
Religious Consideration
????
?????
Lecture 3
DIS
96
In respect of Performance
????
????
Lecture 3
DIS
97
Purpose of these classifications

• To show that law is not merely the
• command of the Lawgiver
• To make us understand how these rules
• interact to create obligations and determine
• the operation of law

Lecture 3
DIS
98
IIUM
IRKHS
Lecture 4
Historical Evolution of Fiqh
Week 4
DIRK
99
8
Age of Renaissance ?
7
Free Will Period
Transcription Period
6
5
Research Fixation Period
4
Scientific Research Period
Dynastic-cum-Republican Period
3
2
Republican Period
1
Legislative Period
Stages in the development of Fiqh
Week 4
DIRK
100
From 610 A.D. to 11 Hijri
Underlying features of the period

• different aspects of the shariah were outlined
  by
• the Quranic revelation and sunnaic practices
• Legislations were enacted as solutions to the
• rising problems
• Prophet was the point of reference for all
  matters

Week 2
DIRK
101
From 610 A.D. to 11 Hijri
Makkan Period
Madinan Period
Week 2
DIRK
102
From 610 A.D. to 11 Hijri
610 A.D. - 622 A.D.
623 A.D. - 632 A.D.
Week 2
DIRK
103
From 610 A.D. to 11 Hijri
Kinds of Quranic verses
Those relating to Belief
Those dealing with human conducts in the form
of Awamir Nawahih
Those which deal with moral principles
Week 2
DIRK
104
From 610 A.D. to 11 Hijri

• Tawhid
• Umam al-Madiyah
• Salah
• Akhirah

• Ahkam
• Akhlaq

Week 2
DIRK
105
From 610 A.D. to 11 Hijri
Quranic Revelations came due to
(1) Circumstances necessitating the reform of the
Muslim Society
??? ?????? ??????? ??? ???? ????? ????? ??? ??
????? ??? ??????? ? ??? ?????? ???????? ???
?????? ????? ???? ??? ?? ???? ??? ??????
S.2A.221
Week 2
DIRK
106
From 610 A.D. to 11 Hijri
(2) Reply to questions put by Muslims and
Non-Muslims alike
??????? ?? ????? ?????? ???? ??? ?? ???? ??? ????
S.2A.217
??????? ?? ????? ??????? ?? ????? ??? ???? ?????
????? ??????? ???? ?? ??????
S.2A.219
Week 2
DIRK
107
From 610 A.D. to 11 Hijri
The Prophet was concerned with the preservation
of religion and political leadership of the
world. In his capacity as religious leader, he
was to convey to the people their
responsibilities imposed by the Shariah and make
them act in accordance with the sacred
principles. As a political leader he acted as a
person in charge of the interests of human
civilization.
Week 2
DIRK
108
From 610 A.D. to 11 Hijri
The Quranic and Sunnaic texts serve as Maxims
which are applicable to a variety of problems and
points of conflict. A number of principles of
law and rules can be easily built upon them
Week 2
DIRK
109
From 610 A.D. to 11 Hijri
Quran (S.42A.38)
?????? ???? ????? And they (conduct their)
affairs by mutual consultation
is a basis for
representative or democratic government
Week 2
DIRK
110
From 610 A.D. to 11 Hijri
Sunnah
A word of justice uttered before an unjust
ruler is the greatest of jihad
is a basis for
establishing a peoples government which
requires a rightful and honest or just
administration
Week 2
DIRK
111
From 11 to 41 Hijri
Underlying features of the period

• Strict adherence to the Quran and the Sunnah
• Ijma al-Ummah became the third source of the Law
• Qiyas became the forth source of the law
• From the time Abu Bakr was elected as the
  Khalifah of the Prophet
• till the assassination of the fourth Khalifah
  Ali b Abi Talib
• The Khalifah was assassinated in 40 hijri. The
  Muslim community
• came to be divided into Jumhur (majority),
  Shii and Khawarij.
• This division had influenced the later legal
  development of the
• Jurisprudence.
• With the expansive social system, the Khalifah
  discuss new ideas
• with the companions through the process of
  Mushawarah.

Week 2
DIRK
112
From 11 to 41 Hijri

• Even the Prophet himself used to consult his
  companions not only
• on matters on which the revelation was silent,
  but also on questions
• as to the application of the revelation
  themselves.
• This process of consultation became a third
  source of Islamic Law
• during the Khilafat of Umar. This came to be
  known as Ijma al-
• Ummah

What is Ijma?
Week 2
DIRK
113
From 11 to 41 Hijri

• A way of solution to a difficult legal problem,
  whereby the
• Khalifah would convoke an assembly of the
  Muslims in order to
• settle it by unanimity
• The assembly had to decide the points with
  reference to the spirit
• in which certain traditions were handed down by
  the Prophet and
• with reference to the necessity of the moment
  and the interests of
• Islam. e.g. the election of Khalifah Abu
  Bakr
• The assembly had to determine what modifications,
  if at all, would
• be introduced. The result of their
  deliberations on the solution of
• the problems submitted to them found a valuable
  addition to the
• fundamental provision of law.

Week 2
DIRK
114
The Path taken by the Khulafa in solving new
problems

Search the Quran

?
Search the Sunnah

Mushawarah with the Sahabah
?

Takes the position of the majority
?

Exercises his own Ijtihad
?
Week 2
DIRK
115
From 11 to 41 Hijri
Qiyas Ijtihad
Muadh to exercise Ijtihad / Intoxication
Week 2
DIRK
116
8
Age of Renaissance ?
7
Free Will Period
Transcription Period
6
5
Research Fixation Period
4
Scientific Research Period
Dynastic-cum-Republican Period
3
2
Republican Period
1
Legislative Period
Stages in the development of Fiqh
Week 2
DIRK
117
From 41 to 101 Hijri
Underlying features of the period

• Rise of sectarian sentiments
• Concoction of traditions on sectarian basis
• Islamic scholars spread all over the Islamic
  world
• Fiqh was divided into Ilm and Usul
• Active participation of non-Arabs in the
  development of the law
• Istihsan, Istislah, etc. were introduced as
  sub-sources of the law

Week 2
DIRK
118
Political Condition

• Division between the Khawarij and the Shii
  deepens
• Justification of views lead to narration of many
  traditions
• purported to have been from the Prophet which
  were not accepted
• by the Jumhur
• People from various cities came to seek solutions
  to new problems
• arising on account of change in circumstances
  and conditions
• The Prophetic companions issued opinions based on
  a tradition

Week 2
DIRK
119
Islamic scholars spread to cities like
Fustat
Kufah
Madinah
Basrah
Makkah
Ali Ibn Abi Talib
Amr Ibn al-As
Anas Bin Malik
Lady Aishah
Ibn Abbas
Week 2
DIRK
120

• Each of these companions used his or her own
  collections of
• traditions for issuing legal opinions
• This lead to differences in opinions among the
  jurists and
• learned men
• To compound this the adherents to sectarian
  sentiments
• issued separate views based on their group
  feeling.

Week 2
DIRK
121

• The purpose of these false and cooked-up
  traditions is
• to downcast and dishonor the faith
• out of good intention
• to boost self-importance
• to fortify sectarian views
• to justify ones own worldly actions
• to confuse the Muslim public

Week 2
DIRK
122

• Scholars categorized as ahl al-hadith (men of
  traditions) and ahl
• al-rai (men of opinion)
• Further division in the Shii sect Kisaniyyah,
  Imamiyyah and
• Zaidiyyah
• The contribution of the non-Arabs to Islamic
  legal development is
• greater than the Arabs
• Umar Ibn Abd al-Aziz campaigned to report
  genuine traditions

Week 2
DIRK
123
From 101 to 350 Hijri
Underlying features of the period

• Increase in industrial and trade activities
• Translation of Greek and Persian Philosophical
  works
• Compilation and edition of traditions
• Founding of Islamic Legal Schools
• Systematization and fixation of legal principles
• Increased role of Qiyas in Islamic Legal
  activities
• Development of different methods for the
  systematization of Usul

Week 2
DIRK
124

• The development made in the Islamic Law received
  firm foundation
• through scientific research
• Abbasids took over the Khilafah and a Umayyad
  Prince escaped to
• Spain and founded the Umayyad Dynasty there
• Fatimid rule was established in Egypt and North
  Africa (Ismailis)
• Further division of Shiis
• Trade increased extensively with the growing
  civilization and
• business institutions and centers of trade and
  commerce gave rise to
• new circumstances which needed an expansive
  rule of conduct
• The translation of Greek philosophical works
  under state patronage
• led to the ignition of human thought

Week 2
DIRK
125

• The coming of non-Arab initiated systematic
  research on large
• scale
• This gave rise to intensive intellectual, expert
  and religious
• activities in every phase of life
• Scholars introduced the concept of rationalism
  in the shariah
• evidences and researches
• The science of tradition was fully developed
• The separation of Prophetic tradition from the
  sayings of the
• companions was successfully done

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• The division of the schools was not a drawback.
  It shows the
• genius of the law and the lawyers of the
  shariah. It proves the
• great juristic development and its fine
  capability in human
• civilization. Under the structure provided by
  the shariah, many
• students of one Imam migrated to other provinces
  and studied
• under other Imams and their disciples and further
  the process of
• law or copied out the other views. This rise of
  school was a
• demand of the time and it provided unity in Islam
  and its
• institutions. It was a check against individual
  deviation and
• misrepresentations.

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NOTE !!!!!!!!!!!!!!!!

• The Imams never claimed finality in their views.
  It all depended on the qualities of later jurists
  to avail of the flexibility of the law in
  accordance with the requirement of time and
  situation

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From 350 to 650 Hijri
Underlying features of the period

• Consolidation of earlier legal efforts
• Strict and blind adherence to earlier schools
• Curtailment of Ijtihad
• Veracity of scholarly opinions studied through
  legal reasoning
• Rise in inter-madhahib jealousy and academic
  debates
• Streamlining and simplification of the
  complexities of the law

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• In areas where the earlier jurists did not fully
  elaborate the scholars of this period completed
  the task by explanations and illustrations, and
  issued principles for new legal problems
• Confining to the bases of fiqh, the jurists of
  the individual schools culled out principles
  established by the earlier jurists and by a
  process of analysis and reasoning, re-established
  legal rules to meet new situation. Here the
  exercised ijtihad and in cases not fully covered
  by their predecessors they worked out solutions
  without violating the spirit of law

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8
Age of Renaissance ?
7
Free Will Period
Transcription Period
6
5
Research Fixation Period
4
Scientific Research Period
Dynastic-cum-Republican Period
3
2
Republican Period
1
Legislative Period
Stages in the development of Fiqh
Week 2
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From 650 to 1230 Hijri
Underlying features of the period

• Lethargic in opening the door of Ijtihad
• Writing of commentaries / glosses and compendia
• Codification of Islamic Law began (Sulaiman
  Qanuni)
• From the establishment of the Khilafah
  Uthmaniyyah in the west
• and the permanent conquest of India by Muhammad
  b Ghuri to the
• British control of Muslims in India and the
  signing of the Gulhane
• Charter by the Ottomans in 1880.
• Arabs lost their control over the affairs of
  Government
• Royal authority shifted to the Turks and Berbers

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India
Turkey
Spain
(1538-1610)
Week 2
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Period of Hanafi Jurisprudential excellence
Week 2
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Emergence of Religious Reformers
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From 1230 to 1350 Hijri
Underlying features of the period

• Introduction of western concepts in Islamic
• law with the intention of weakening it.

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1471 - Portuguese Mariners outflanked the
Arabs 1511 - Landed in Calicut 1600-1799-
Dutch colonized Java (First Muslim
Territory) 1699 - Austria conquered
Hungary Translyvania 1757-60 - British
colonized Bengal 1768-1812- Russia defeated the
Turks 1811 - Britain colonized Malacca
1830 - Greece fell off from Turkey
Britain took Cyprus 1840 - Britain took
control of Aden 1845 - France colonized
Algeria 1858 - Britain took control of
India 1881 - France usurped Tunisia 1882
- Britain took control of Egypt 1898
- Britain took control of Sudan 1911 -
Italy took control of Libya 1912 - France
colonized Morocco 1914-18 - Britain took
control of Iraq, Jordan, Palestine and the
Gulf 1920 - France took control of Syria
and Lebanon
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William Bentinck (1835)
The great object of British Government ought to
be the promotion of European literature and
science among the natives of India and that all
the funds appropriated for the purposes of
education would be best employed on English
education alone
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Auckland

• A class of persons Indian in blood and color but
  English in tastes, in opinions, in morals and
  intellect
• to direct the Muslims away from their traditional
  manners, cultures and laws

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From 1230 to 1350 Hijri

• The beginning of the decline in the Shariah Law
• Start of the expansion of European colonialism or
  
• political expansion and mental transplantation
• The free law movement gained momentum with the
• imposition of alien legal system
• The shariah law was molded to be localized in
• territorial boundaries of individual countries

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After the World War II

• Muslim countries became independent
• These countries were ruled by Muslims
• with Western taste
• International aid programs provided by
• the Western powers corrupted the Oriental
• set-up making a great impact on Muslim
• thinking

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From 1230 to 1350 Hijri

• The policy of the Colonial Europe was to
• minimize the Islamic Legal institutions and
• even to substitute them by European techniques
• in keeping with the dignity of conquering
• powers
• Islamic Law was replaced with Common Law
• and Code Napoleon

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From 1350 Hijri to ?
Underlying features of the period

• Critical re-examination of existing laws in the
• light of Islam (Islamization of disciplines)

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IIUM
IRKHS
Sources and Classification of Fiqh
Week 5
Week 3
DIRK
144
Sources of Islamic Law
Primary
Secondary
Subsidiary
Transmitted Agreed upon Definitive
Quran
Sunnah
Rational Disputed Probable
Ijma
Qiyas
Qawl al-sahabi
Istihsan
Istishab
Sadd al-dhariah
Istislah
Istidlal
Urf
maslaha mursalah
Week 5
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145
Week 5
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Week 5
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147
Definitions
Al-Quran, 26192-5
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Various factors of choice for perfect
expressions, explanations and forms A
scientific language with wealth of roots and
derivative forms each expressing some particular
modification of the root idea, of which each
is susceptible
Why Arabic?
Week 5
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149
Is it a must that the Quran be in
Arabic? What about Translations? Are they
not Quran in Essence?
Week 5
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150
Manzil 7
Juz 30
Rubu 128
Surah 114
Ayah 6,235
Kalimah 79,087
Huruf 338,606
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Kufah - 6239 Ali b. Abi
Talib Basrah - 6204 Asim b.
Hajjaj Sham - 6225 Ibn
Umar Makkah - 6219 Madinah - 6211
- 6666 Lady Aishah
Ayah
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Disputation
Divine Favour
Legal Rules
Contents
Important Events
Remembrance of Death
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• Ibadat matters
• 70 Munakahat matters
• 70 Muamalat matters
• 30 Jinayat matters
• 30 Uqubat matters
• 10 Iqtisad matters

350 Verses on Legal Rules

Week 5
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Style of the Quran in explaining the Ahkam

• Phraseology of command / prohibition
• Mentioning good reward for the doer
• Mentioning punishment for the transgressors
• Mentioning of love and praise for the doer
• Mentioning of hate and displeasure for the
  transgressor

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155
Stages in the compilation of the Quran

• During the Prophet time
• During Abu Bakr time
• During Uthman time

Week 5
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156
Week 5
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157
Week 5
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158
What is the relation between Quran and
Sunnah
?
Week 5
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159
Matn (text), isnad (chain of reporters), and
taraf (the part, or the beginning sentence, of
the text which refers to the sayings, actions or
characteristics of the Prophet (?), or his
concurrence with others action). The
authenticity of the hadith depends on the
reliability of its reporters, and the linkage
among them
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• According to the reference to a particular
  authority
• Four types of hadith can be identified.
• Qudsi - Divine a revelation from Allah (SWT)
  relayed with the words of the Prophet (?).
• Marfu - elevated a narration from the Prophet
  (?), e.g. I heard the Prophet (?) saying ...
• Mauquf- stopped a narration from a companion
  only, e.g., we were commanded to ...
• Maqtu' - severed a narration from a successor.

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• According to the links of Isnad - interrupted or
  uninterrupted
• Six categories can be identified.
• Musnad - supported a hadith which is reported by
  a traditionalist, based on what he learned from
  his teacher at a time of life suitable for
  learning similarly - in turn - for each teacher
  until the isnad reaches a well known companion,
  who in turn, reports from the Prophet (?).
• Mutassil - continuous a hadith with an
  uninterrupted isnad which goes back only to a
  companion or successor.
• Mursal - hurried if the link between the
  successor and the Prophet (PBUH) is missing, e.g.
  when a successor says "The Prophet said...".
• Munqati - broken is a hadith whose link anywhere
  before the successor (i.e., closer to the
  traditionalist recording the hadith) is missing.
• Mu'adal - perplexing is a hadith whose reporter
  omits two or more consecutive reporters in the
  isnad.
• Mu'allaq - hanging is a hadith whose reporter
  omits the whole isnad and quotes the Prophet (?)
  directly (i.e., the link is missing at the
  beginning).

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• According to the number of reporters involved in
  each stage of Isnad
• Five categories of hadith can be identified
• Mutawatir - Consecutive is a hadith which is
  reported by such a large number of people that
  they cannot be expected to agree upon a lie, all
  of them together.
• Ahad - isolated is a hadith which is narrated by
  people whose number does not reach that of the
  mutawatir. It is further classified into
• Mash'hur - famous hadith reported by more than
  two reporters.
• Aziz - rare, strong at any stage in the isnad,
  only two reporters are found to narrate the
  hadith.
• Gharib - strange At some stage of the Isnad,
  only one reporter is found relating it.

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• According to the nature of the text and
  isnad
• Munkar - denounced is a hadith which is reported
  by a weak narrator, and whose narration goes
  against another authentic hadith.
• Mudraj - interpolated an addition by a reporter
  to the text of the hadith being narrated.
• According to the reliability and memory of the
  reporters
• This provides the final verdict on a hadith -
  four categories can be identified
• Sahih - sound. Imam Al-shafii states the
  following requirements for a hadith, which is not
  mutawatir, to be acceptable "each reporter should
  be trustworthy in his religion he should be
  known to be truthful in his narrating, to
  understand what he narrates, to know how a
  different expression can alter the meaning, and
  to report the wording of the hadith verbatim, not
  only its meaning".

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• Hasan - good is the one where its source is
  known and its reporters are unambiguous.
• Da'if - weak a hadith which fails to reach the
  status of hasan. Usually, the weakness is a) one
  of discontinuity in the isnad, in which case the
  hadith could be - according to the nature of the
  discontinuity - munqati (broken), mu'allaq
  (hanging), mu'dal (perplexing), or mursal
  (hurried), or b) one of the reporters having a
  disparaged character, such as due to his telling
  lies, excessive mistakes, opposition to the
  narration of more reliable sources, involvement
  in innovation, or ambiguity surrounding his
  person.
• Maudu' - fabricated or forged is a hadith whose
  text goes against the established norms of the
  Prophet's sayings, or its reporters include a
  liar. Fabricated hadith are also recognized by
  external evidence related to a discrepancy found
  in the dates or times of a particular incident.

Week 5
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168
Definitions
Literal
Ja ma a
?????
He gathered, He agreed
Technical
Agreement of all people who belong to the
community of Muhammad ?, in a certain period
of time, on a rule about a certain incidence
Agreement of all those who are legally
responsible and who belong to the community of
Muhammad ?, in a certain period of time, on a
rule about a certain incidence
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• Agreement
• People with legal responsibility
• Members of the Prophets community
• Period of time
• Moot question

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Essential Requirements

• A number of mujtahids exist at a particular time
• All mujtahids of the time or period agree on
• the ruling
• Each mujtahid presents his own opinion
  explicitly,
• by reference to legal decision or giving formal
  
• opinion
• All scholars agree on the ruling

Week 5
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Types of Ijma
Al-Ijma al-Sarih
Al-Ijma al-Sukuti
In which every mujtahid expresses his opinion
either verbally or by an action
In which some of the mujtahid of a particular
age or place give an expressed opinion
concerning an incident while the rest remain
silent
Week 5
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172
Definitions
Constituents Subject Matter
Qiyas
Hujjiyyat of Qiyas
Divisions
Limitations
Week 5
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173
Definitions
Literal
Qa Ya Sa
????
He measured, He estimated
Technical
A process of deduction by which the law of a text
is applied to cases which, though not covered by
the language, or governed by the reason of the
text
A process of extending the sharai value from the
original case (asl) over the subsidiary or
(far), by reason of an effective cause (illah)
which is common to both cases and cannot be
understood from the expression concerning the
original case alone
Week 5
DIRK
174
IIUM
IRKHS
Lecture 5
DIS
175
Classification of Fiqh
Uqubat
Ibadah
Jinayat
Munakahat
Muamalat
Week 5
DIRK
176
Definition
Fiqh al-Jinayah
Classification
Hudud
Qisas
Tazir
Week 5
DIRK
177
Definition
???? - ?????
Week 5
DIRK
178
??????
????? ????? ????? ??? ??? ?????
????????
Week 5
DIRK
179
?????
?????
?????
??? ??????
??????
???????
Week 5
DIRK
180
Definition Purpose
Ruling
Fiqh al-Usrah
Selection
Requirements
Nikah
Polygamy
Unlawful Forms
Definition
Purpose
Ruling
Talaq
Khul
Lian
Forms
Zihar
Procedure
Ila
Week 5
DIRK
181
Definition
Purpose
Fiqh al-Usrah
Rulings
Kinds
Iddah
Akhlaq
Remarriage
Definition
Nafaqah
Conditions
Rada
Hadanah
Week 5
DIRK
182
IIUM
IRKHS
Madhahib
CONFLICT AND CONCILIATION A PEEP THROUGH
CLASSICAL FIQHI REFERENCES
Week 6
Week 4
DIS
183
Madhhab
Definition
Argument for / against Madhhab
The Nature of Madhahib
Classification of Madhahib
Week 5
DIRK
184
Week 5
DIRK
185
24
18
4
1
Week 5
DIRK
186
Yes
No
Week 5
DIRK
187
No

• Prophet is the only Imam
• Causes disunity disagreement
• Prophet is infallible as opposed to Imams
• Goes against the Quranic injunction of obedience
• Elevating the status of the ulama to that of
  the Prophet
• It is a bidah (innovation)

Week 5
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188
Existing
Extinct
Week 5
DIRK
189

• Zahiri
• Awzai
• Thawri
• Tabari
• Laythi

Extinct
Week 5
DIRK
190
Existing Madhahib
Non-Ahl al-Sunnah
Ahl al-Sunnah
Week 5
DIRK
191
Non-Ahl al-Sunnah
Mutazilites
Khawarijites
Shiites
Week 5
DIRK
192
Ahl al-Sunnah
Hambalites
Malikites
Hanafites
Shafiites
Week 5
DIRK
193

• Oldest legal school with Largest following
• Distinguished for its application of the rules of
  shariah to
• practical matters of human life, making use of
  reason and
• logic through the process of Qiyas and Istihsan
• Umar sent Abd Allah ibn Masud as Qadi to Kufah
• Systematically developed by Abu Hanifah
• First to formulate the technique of legal
  evolution in order
• to codify the law
• Most workable school of law in commerce and trade
• Biased towards case-law

Hanafi
Week 5
DIRK
194

• Quran
• Sunnah
• Ijma al-Sahabah
• Ray al-Sahabah
• Qiyas
• Istihsan
• Urf

Sources of Law
Hanafi
Week 5
DIRK
195

• Followed by people in Madinah, Spain and North
  Africa
• Attracted many nomadic people
• Founded in Madinah by Malik b Anas
• Upholding the sunnah of the Prophet less
  reliance on qiyas
• and analytical reasoning
• Nevertheless they give importance to juristic
  preference and
• public interest
• Peculiarity the practice of the Madinan

Maliki
Week 5
DIRK
196

• Quran
• Sunnah
• Amal ahl al-Madinah
• Ijma al-Sahabah
• Ray al-Sahabah
• Qiyas
• Urf ahl al-Madinah
• Istislah
• Urf

Sources of Law
Maliki
Week 5
DIRK
197

• Named after Muhammad b. Idris al-Shafii
• A balance between the traditionalism of the
  Maliki and
• the practicality of the Hanafi schools
• Known in the area of law which is fixed and not
  that
• developed in the area of law which is changing
• Shafiis avowed aim was to reconcile between
  fiqh and hadith
• He is the originator of the scientific principles
  in the legal
• theory of Islam
• Followers are found in Yemen, India and South
  East
• Asia

Shafi'i
Week 5
DIRK
198

• Quran
• Sunnah
• Ijma
• Ray al-Sahabah
• Qiyas
• Istishab

Sources of Law
Shafii
Week 5
DIRK
199

• Named after Ahmad b. Hanbal (d. 855 A.D.)
• A muhaddith and not a faqih
• A reaction against unfettered rationalism
• Sunnah as the source of juridical decisions
• The later imams are great achievers like Ibn
  Taymiyyah
• and Ibn Qayyim
• Followers are found in Saudi Arabia, Iraq, Gulf

Hambali
Week 5
DIRK
200

• Quran
• Sunnah
• Ijma al-Sahabah
• Ray al-Sahabah
• Hadith Daif
• Qiyas

Sources of Law
Hambali
Week 5
DIRK
201
The course towards the water spot
A
B
water
C
D
Week 4
DIS
202
The course towards the water spot
A
B
Quran Sunnah
C
D
Week 4
DIS
203
Week 4
DIS
204
ALLAH
JIBRIL
MUHAMMAD
Ali
Aisha
Umar
Ibn Abbas
Jafar
Hammad
A. Hanifah
Malik
Shafii
Hanbal
Week 4
DIS
205
Madhhab
????? ?????? - Water kept under the sun
Shafi i -
Makruh Hanifah, Malik Ahmad -
Not Makruh
Week 4
DIS
206
Madhhab
????? ?????? - Boiled Water
All -
Not Makruh Mujahid
- Makruh
Week 4
DIS
207
Madhhab
????? ???????? - Used Water
Hanifah, Shafi i Ahmad - Pure but does not
purify Malik
- Purifies Abu Yusuf
- Impure
Week 4
DIS
208
Madhhab
????? ??????? - Water that has changed
????????? - by Saffron
?????? - by keeping for long
All - Pure Ibn Sirin - not used for
purification
Malik, Shafi i Ahmad (not used for
purification)
Week 4
DIS
209
Madhhab
?????? - Brushing the teeth
All - Sunnah Dawud - Wajib Ishaq
- If one willfully leaves it his salat is
invalid
Week 4
DIS
210
Madhhab
?????? - Circumcision
Malik, Shafi i Ahmad -
Wajib Hanifah
- Mustahabb
Week 4
DIS
211
Madhhab
???????? - Impurities (Liquid Intoxicant -
cologne)
Shafi ite majority Hanafites -
Pure Others
- Not Pure
Week 4
DIS
212
Madhhab
???? ????? ?? - Congregational Prayer (Women)
Hanifa, Malik - Not required Others
- ?
Week 4
DIS
213
???????
?????
?????
???????
Preference
Abrogation
Reconciliation
Specification
Conciliation
Madhahib
Conflict of Evidence
Week 5
DIRK
214
IIUM
IRKHS
Fiqh in Contemporary Issues
ijtihad and its necessity
Week 7
Week 7
DIS
215
General Discussion

• Organ Donation / Transplantation
• Eutha