Presentation Transcript

1. Principles of Islamic LawREGENT BUSINESS SCHOOLProgramme in Islamic Finance and LawLecturer: Professor Mohsin EbrahimOctober 2011
2. Introduction In every society laws are generally enforced Laws regarded to be a necessary social requirement To safeguard the norms of a particular group Maintain peace and harmony in society The Islamic society is governed by Divine Laws
3. Belief (al-iman) and taqwa (Allah consciousness) are the driving forces behind Muslims’ upholding of the Divine Laws and implementing them in society.
4. Shari`ah is the Code of Law for the Islamic way of life which Allah (SWT) has revealed for mankind and commanded people to uphold it:
5. “If any do fail to judge by what Allah has revealed, they are unbelievers.” (al-Ma’idah, 5:44) “And if any do fail to judge by what Allah has revealed, they are wrongdoers.” (al-Ma’idah, 5:45) “If any do fail to judge by what Allah has revealed, they are those who rebel.” (al-Ma’idah, 5:47)
6. Definition of Shari`ah Literal definition: Non-exhaustive source of water from which people satisfy their thirst Technical definition: Divine source for guiding human life Violation of Shari`ah is considered to be a sin and a social crime
7. Objectives of the Shari[ah Masalih al-`ibad Welfare of the servants of Allah (SWT) in this world and the hereafter
8. Protection of Faith (Din) Protection of life (nafs) Protection of posterity (nasl) Protection of property (mal) Protection ofreason/intellect (`aql)
9. Rulings of the Shari`ah The rulings of Shari`ah for all our daily actions are five: Prescribed Fard al-`ayn which is required from every individual Muslim (e.g. salah) Communally obligatory (fard al-kifayah), which if performed by some Muslims is not required from others (e.g., funeral prayers)
10. Recommended – mandub rewarded – tahajjud, dhikr Permissible - mubah neither rewarded nor punished Disliked - makruh non-performance – rewarded performance – not punished Unlawful – haram non-performance – rewarded performance -punished
11. Definition of Fiqh Fiqh facilitates the application of the Shari`ah Fiqh literally implies the independent exercise of intelligence in deciding a point of law within the parameters of the broad teachings of the Noble Qur’an and Hadith/Sunnah
12. Secondary Sources
13. Al-Ijtihad Literal defintion To strive to the utmost Technical definition The capacity to make deductions in matters of law in cases to which no express text from the Noble Qur’an and Sunnah is available
14. Basis for Ijtihad The Noble Qur’an “And those who strive in Our cause, We will certainly guide them in Our paths.” (Al-Ankabut, 29:69) The Hadith Sayyiduna Mu`adh Ibn Jabal (R.A.)
15. Restrictions on Ijtihad No ijtihad on such issues whether Allah (SWT) exists whether the Universe was created whether Prophets (A.S.) were sent part of the `aqidah (belief)
16. Conditions for Ijtihad A Mujtahid must be: A Muslim of sound mind Well-versed in the knowledge of the Noble Qur’an and Sunnah and Arabic Able to get at the root of the problems and situations that arise Personal character and morals beyond reproach
17. Classifications of Ijtihad Ijtihad fi al-shar` i.e. in legislation Ijtihad fi al-madhhab i.e. within the school Ijtihad fi al-masa’il i.e. on particular issues Door of Ijtihad did not fully close
18. Taqlid Muqallid adopting the actions and opinions of others without enquiring into their reasons
19. Al-Ijma` (Consensus of Juristic Opinion) Its basis from the Noble Qur’an: “You are the best people evolved for mankind, enjoining what is good and forbidding what is evil and believing in Allah.” (Al `Imran, 3:19)
20. Muslim Ummah excellence enjoining good forbidding evil If the community would ever agree on an error (wrong), Allah (SWT) would never have praised the Muslim community in terms of these qualities. (Imam Abu Bakr al-Jassas)
21. Ijma` on the basis of the Sunnah “Whatever Muslims hold to be good is good before Allah.” (Hadith) “My Ummah will never agree on what is wrong.” (Hadith)
22. Al-Qiyas (Analogical Deduction) A process of deduction by which the law of a text is applied to such cases which, though not covered by the language of the text are covered by the reason of the text on the basis of the `illah (effective cause) Khamr and drugs Effective cause = befogging of the mind
23. Al-Istihsan (Juristic Equity) A principle of legal reasoning what is good is lawful and what is lawful must be good A break from strict analogy for reasons of public interest The principle of Al-Istihsan intervenes and establishes the legality of a transaction with a supplier of goods on the ground of necessity based on the universal practice of humankind
24. Al-Maslahah (Public Good) The choice to make certain laws for the collective benefit of the society They should not contradict the Noble Qur’an and Sunnah Imposition of taxes on the wealthy in order to cope with the increasing administrative expenditure
25. Al-`Urf (Customs) Well-known or generally recognised Fulfils the demands of justice and fair play Popularly acted upon by the righteous people in society
26. Summary Man-made laws Aim at preventing aggression and tyranny of one against another Shari`ah Embodies the sacred law Not restricted to civil and criminal code But also embraces a code for the purification of the self through the laws which deal with the forms of worship and the ethical commandments pertaining to moral upliftment and spiritual elevation of the self