COMMENTARIES ON THE CODE OF MUSLIM PERSONAL LAWS OF THE

PHILIPPINES by Arabani Sr.

Jasmera Amod, Bea Bangcola, Lovelle Belaca-ol, Jannah Barandia, Irish DImitiman, Jalil
Maruhom, Jara Polangi, Aisah Pumbaya, Cairoden Radiamoda, Eric Jan Villela

PART I: INTRODUCTION TO Qabilah (The affairs of the tribe)

JURISPRUDENCE (FIQH) OF MUSLIM LAW - were guided by a Shayikh or chief, a
man who, by his nobility of birth age
Jurisprudence – the knowledge of the law and reputation for wisdom, had the
which in its generic sense includes the entire respect and confidence of his
body of the legal doctrine. tribesmen.
Jurisprudence is divided into three parts: - To decide the cases of disputes, the
First – Legal History Arabs had a confederation of “Hill fall
Purpose: to set forth the historical process whereby any Fardul.”
legal system came to be what it is or was. ▪ Sometimes the chief of the tribe
Second – The science of legislation was assisted in the discharge of
his duties by council of elders.
Purpose: to set forth the law, not as it is or has been, but Within the limits of his tribe, orders
as ought to be. It deals future, and with the purposes and decisions were enforced not
for which it exists.
by any fixed machinery at his
Third – The legal exposition disposal but by force of public
opinion.
Purpose: to set forth the contents of an actual legal
system as existing at anytime whether past or present. ▪ The procedure that used to be
adopted when a dispute or claim
Fiqh – which is considered the legislation had to be decided was to call
proper of the Muslim law. upon the plaintiffs to adduce
proof in support of his claim. If
Substantive law – “The Code of Muslim
he has no witness, the defendant,
Personal Laws of the Philippines”.
in case he denied the charge,
“Islamic Law is the epitome of the Islamic way of life, would be given the oath, and if he
the kernel of Islam itself. “ took it, he would be absorbed
- Prof. J. Schacht
thereby from liabilities. Oath
formed an important part of the
CHAPTER I
procedure in setting dispute.
HISTORICAL BACKGROUND
A form of marriage which has been sanctioned
Pre-Islamic Arabs
by Islam, namely a man ask another for the
➢ The Arabs century preceding the rise of
hand of the latter’s ward or daughter, and
Islam, was characterized as the Age of
then marries her giving her a dower.
Ignorance (Ayyam Jahiliya), Tribal
wars, Idolatry, and social degradation
Mut’a (temporary marriage) - another form of
were prevalent.
marriage that the Arabs used to contract.
➢ The Arabs was generally nomadic and
were called Beduin’s. NOTE: A woman was not a free agent in
➢ Tribes and chieftains acted in contracting marriage. It was the right of her father,
accordance with tradition and brother, cousin or any other guardian to give her in
convention. No settled form of marriage, whether she was old or young widow or
virgin to whomsoever he chose. Her consent was of
government or administration of law no moment.
existed.
Whereby a man takes a woman as wife for as - Anything that she might receive as a
long as he needs her. dower or gift from him or her parents
and relatives was absolutely hers.
➢ There was no restriction as to the number
of wives an Arab could take. ➢ TRADE AND COMMERCE were the most
➢ The only limit was imposed by his means, common means of livelihood of the pre-
opportunity and inclinations. Islamic Arabs.
- Arabs had absolute power of disposal
UNRESTRICTED POLYGAMY - which over his property.
was sanctioned by usage was universally - Arabs used to lend money on interest,
prevalent. This was exclusive of the number of and usury was rampant under the
slave girls, which a man might possess. The name of “Riba”.
limits of relationship within which marriage
was prohibited were narrow and defined ➢ On his DEATH his possessions devolved
only by close degrees of consanguinity. on his male heirs, capable of bearing
arms, and females and minors being
 Unrestrained as an Arab was in the excluded.
number of his wives, he was absolutely
free to release himself from the tie. His ➢ The HEIRSHIP was determined by
power in this connection was consanguinity, adoption or compact.
absolute.
HANIF (singular HANAFA) – who felt disgust at
 Adoption among the Arabs was also in idolatry and tried to find out what had been the
vogue as a legitimate mode of teaching of Abraham.
affiliation. It was not restricted by any - They were the agnostics of the day,
condition. each seeking the truth by the light of
- The adopted son passed into the their inner consciousness,
family of the adopter and assumed Muhammad, son of Abdullah was
his name, and his rights and one of them.
obligations similarly as those of a
natural-born son. The religious unrest and moral degradation,
had stirred a section among the Arabs and
 The property of an Arab, generally was Arabia was just ripe for reforms, and
of simple description. Muhammad appeared at an opportune time to
• Camels, cattle’s, tents, clothes, and effect that.
few utensils.
• Slaves were a common and valuable WAHI (by inspiration) – means that God puts
form of property. certain sense or meaning into Prophet
Muhammad’s heart or sometime the
 The wife had no corresponding right Omnipotent God without being seen spoke to
to release herself from the marriage Muhammad, in the same way as when He
bond. spoke to Moses, and this is what is meant that
God speaks from behind a veil; or by sending
 The Arabs regarded the birth of a the Archangel Gabriel to Muhammad with
daughter as a calamity. Female God’s messages either by the appearance of
infanticide was prevalent. the Angel in the form of a man before
Muhammad, or while the latter is in a trance,
 The woman was debarred from in the same way as when the Angel appeared to
inheriting, though she was no under Joseph in a dream to inform Joseph of the
disability in the matter of owning conception of Mary of the Child Jesus.
property.

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The FIRST SIGN of his prophetic vocation, Third Revelation concerning the
was the discovery that everything which he 1. Unity of God
dreamed happened in his waking hours 2. The Day of Resurrection
precisely as he had foreseen it. 3. The life hereafter
After a time he felt a strong inclination to seek 4. Paradise for the Faithful and
solitude and withdraw to Mount Hira, or the 5. Hell for the Sinners
mount of light, north of Mecca.
Early Meccan Suras dealt mainly with three
THE PERIOD OF DIVINE REVELATION: themes:
• The Meccan Period 1. The unity and attributes of God
(12 B.H.; 610-622 A. D.) 2. The moral duties of mankind
• The Medina Period 3. The retribution in the next world
(01 A.H.-10 A.H.; 622-632 A.D.)
➢ Subsequent Meccan Quranic verses
THE MECCAN PERIOD revealed during the time when
Muhammad was conducting his private
27th day of Ramadan (February, 610 A.D.) in lecture in great secrecy were brief and in
the 13th year before the beginning of the which were brief and in which references
Muslim Era. / The NIGHT OF DESTINY (Laylat to the earlier part of his public life were
Al-Qadar) many.
- Muhammad received his first
revelation. Declaration of Islamic “Iman” (faith) – The
- Muhammad was asleep in a little cave sum and substance of his teaching during this
of Hira, in Mount An-Nour, about two period was “I believe in God, His Angels, His
miles from Mecca, he saw a vision Books, His Prophets and, Doomsday and, all
that Gabriel (Jebreel, the Archangel) good and evil are from God”. Shahada
aroused him from slumber and asked
him to proclaim (Igraa). Tawhid (Oneness of God) – He embarked upon
teaching tawhid as commanded by God.
FATRA – revelation ceased for a time. ➢ He started the task of keeping people
away from polytheism.
SHAHABAT (the Prophet companion) – Jabir
bin Abdullah Al Alsari narrated that while the Among Muhammad’s early converts were:
Prophet was walking, all of a sudden the 1. Khadija (wife)
Prophet heard a voice from heaven. 2. Ali bin Abu Talib (cousin)
3. Zaid bin Harithah (freed slave)
PAROXISM (a violent fever) – which is 4. Abu Bakr bin Abu Quhafah
explained by the theologians as a symptom of 5. Uthman bin Affan (close friend)
divine inspiration. 6. Tadhah bin Ubaidullah (close friend)

➢ Muhammad related to his wife Khadijah ❖ Quraysh was unperturbed by the

his experience. preaching of Islam by the Prophet.
➢ Waraga Ibn Nawfal, a Hanif, and the Instead, they make mischiefs, and inflict
cousin of Muhammad’s wife. physical insults upon the Prophet and his
➢ Muhammad’s goal was to be humble followers.
tool for the execution of the divine ❖ Quraysh profits from the idolators that
purpose but he did not know how to come to Qa’ba in Mecca to give their
proceed. offerings to their idols fearing the losses
that they would suffer should Islam be
tolerated to propagate, were infuriated by
the idea of Muhammad.
Money---from idols

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 ❖ Quraysh take action to induce the Prophet against the perseverance of the Prophet to
to give up preaching Islam. They offered propagate Islam.
him the chieftainship of Mecca, and
the hand of a girl of high lineage, but The suffering endured by the Prophet and his
all offers of honor and aggrandizement kinsmen, the Banu Hashim, and the Banu
failed to induce Muhammad from Mutalib move the hearts of a section of the
abandoning his missionary work. Quraysh, and won public opinion in their
favour.
❖ The Prophet, finding himself unable to
relieve his followers from oppression ❖ Some Quraysh grew weary of the boycott
and torture, two years after he begun his of old friends and neighbors. They
public preaching, he advised them to managed to have the document which
take refuge in Abyssinia, where they the document which had been placed
were hospitably received by the in the Qa’ba brought out for
Christian ruler Negus (Najjashah). reconsideration; it was found that all the
writing had been destroyed by white
❖ The Quraysh enraged by the Muslims ants, except the words Bismika
sent emissaries to Negus, King of Allahumma (In the name of Allah). The
Abyssinia, to persuade the King to ban was removed and the Prophet was
expatriate the Meccan fugitives to again free to go about the city.
them as prisoners, telling the King
that the Muslim immigrants have ❖ During the pilgrimage in 620 A.D., the
violated their laws, ancestor’s Holy Prophet met a group of six
practices and religious beliefs. Yathribites of Khazrag tribe, whose
kinsman had accepted Judaism but they
were still heathens at Aqabah a pass
Ja’far bin Abu Talih (the Prophet’s cousin) was between Mecca and Mina, a few miles
chosen as their spokesman. from the former and invited to accept
, Islam.
The King, asked Ja’far (Rad A) to recite some - They accepted the new faith and
portion of the Holy Qur’an. promised to preach Islam in their
➢ He recited a few verses from the native city in return.
beginning of Surah “Maryam”, the - In the following year, a deputation of
Chapter on Mary, in which the story of the twelve, ten of the Banu Khazraj and
miraculous birth of Jesus has been told. two of the Anu Aws, came and
The recitation of the Holy Qur’an touched waited for Muhammad at Al-Aqabah,
the heart of the King and the Christian the appointed place for meeting.
priest. He told the Quraysh that he would - Due to the joint efforts of those two
NOT hand over the refugees to them. Negus
groups of the Yathribites, Islam
remained a true friend of Prophet became so well known in Medina that
Muhammad and favorably disposed there hardly remained a family, which
toward Islam throughout his life. was not conversant with Islam and its
tenets.
The Quraysh sent an emissary to Abyssinia
(1) to persuade the King to hand over the
Meccan fugitives to them as prisoners,
Negus refused to honor the request and the
mission returned discomfited.
(2) Imposed economic ban and social
ostracism against Muhammad and his
followers, however this became ineffective as

4
 • NABI (Prophet) – only preaches the
THE HIJRA (HEGIRA) PERIOD “Shari’a” given to a “Rasul” before him,
by Divine Guidance through “wahy”
A year later in 622 A.D. – a deputation of 72 (revelation).
persons including the early converts of Yathribe • ALL RASUL (Messengers), also share
and their teacher Mua’b b. Umayr came to Prophethood (Nabiwat), but a “NABI”
invite Muhammad to Yathribe. would not necessarily be a “RASUL”.

Monday 8th Rabi (September 20, 622 A.D.) – THE MEDINITE PERIOD
Started the Hijra era of the Muslims and the
Risalat of the Prophet began from the date of In Yathribe, later became known as Medina
the exodus and the Meccan period came to an and Medinat al Nabi (City of the Prophet),
end. Muhammad started his work as an apostle
- The main achievement of (Rasul) of God to convey God’s message to
Muhammad in Mecca is that it marked humanity.
the start of the publication of Islam
and the Ministry of Muhammad Medinite Suras – covering one third of the
which was broadly completed by the Quran which were more elaborate and dealing
time of the Hijra but its institution broadly with religious, civil, and criminal,
which were still in a rudimentary state fiscal and military laws and regulations,
were organized in the Medinite period including the five pillars (basic principles) of
that followed. Islam, and governing social practices such
as slavery and polygamy, the giving of alms.
With the Hijra,
- The Meccan preparatory period Meccan Suras – give guidance to the individual
ended, soul and to the Prophet as warner.
- And at Yathribe or Medina, the
period of propagation of expansion EARLY BATTLES OF THE MUSLIMS IN
of Islam and the Muslim law began. MEDINA
NOTE: Medina Suras differ from the Meccan suras.
While at Mecca,
- Muhammad was only a Nabi ➢ The Muslims migrated to Medina and
(Prophet) of God, established a community, they were
In Medina joined by the Medinans.
- He began his public ministry as a ➢ Quraysh of Mecca still considered them
Rasul (Apostle) of God to convey a threat attacked the Muslims in Medina.
God’s message to humanity.
NOTE: This was the turning point in the life of THE BATTLE OF BADR
Muhammad and the Muslim Law. - 17th of Ramadan 12 A.H. (14th March
624 A.D.)
- They WON their first battle against
TRADITIONAL DIFFERENCE BETWEEN A the Quraysh.
RASUL AND A NABI:
THE BATTLE OF UHUD
• BOTH RASUL AND NABI – received - 15th Shawwal 3 A.H. (21 March 625
direct “wahy” (revelation or inspiration) A.D.)
from Allah. - They were DEFEATED.
• RASUL – also receives the Shari’a
(Divine Law) THE BATTLE OF KHANDAG (Battle of Trench)
- Shawwal 5 A.H. (627 A.D.)

5
 - Due to sandstorm, destroyed the meal served by him by a Jewish woman
tents and scanty supplies, and droves during his campaign at Kheybar about
the pack-riding animals of the the 7th of the Hijra.
Quraysh and its allies, which gave the
coup de grace to the invaders, forcing
them to abandon the invasion the THE SECOND PERIOD OF MUSLIM LAW
following day.
“Thirty Years Period of the Orthodox
Khilafat” (Caliphate) – The period of the Four
TREATY OF HUDAYBIYAH (Dhu Qa’dah 6 Rightly Guided and Pious Calips (Khulafa-i-
A.H. April 628 A.D.) Rashidin) 10-40 A.H.
CALIPH – successor
The treaty consisted of the following: CALIPHATE – the succession of rule, monarch
1. Both parties would cease hostilities for a or ruler.
period of ten years.
2. The parties would not interfere with the free FIRST CALIPH:
movement of one another. ABU BAKR “Al-Siddig” Ibn Uthmann
3. The Prophet (Peace and blessings of Allah - Was born in Mecca
upon him) would return that year, but the - His father was Uthman, called Abu
Muslims would be permitted to enter Makkah Quhafa
the following year. - Mother was Um Al-Khair Salma bint
4. Any Muslim man coming from the Quraysh to Sakhr
join the Muslims would be sent back, but any - The Prophet named him “Abdullah”,
man going from the Muslims to Quraysh would and was called A-Saddig (faithful).
not be sent back. - Also given the title “Atiq” – means
5. Any tribes other than the Quraysh that wished the first caliph.
to enter an alliance with Muhammad (Peace and - During the first period of the first
blessings of Allah upon him) were free to do so, caliph, a large number of the
and any that wished to enter an alliance with the “Huffaz” (Quran memorizers) were
Quraysh were free to do so. killed in the battle.
NOTE: Many of the companions were opposed to this
- During his caliphate, the Quran was
treaty and considered its clauses unfair and biased his primary source of law to govern
against the Muslims. the Muslims.
- Died of sickness, Tuesday, 22nd
Jumada Al-Akhir, 13 A.H. at age of 63
years after a period of over two years
CONQUEST OF MECCA khilafat.
➢ The Quraysh violated the term of the
treaty of Hudaybiyah. NOTE: The death of Prophet Muhammad, the
period of divine legislation came to an end. He is
NOTE: The treaty of Hudaybiyah was abolished. considered the last and the seal of all the Prophets
and none follows after him.
➢ Muhammad asked the Meccans to
surrender peacefully the city,
guaranteeing to them their safety.
➢ The Islam influence spread near and far. SECOND CALIPH:
UMAR Ibn Al-Khattab
DEATH OF MUHAMMAD AND END OF THE - was born 40 years after Hijra.
PERIOD OF REVELATION - Khattab Nufayl – father
(12th Rabi Al Awwal, 10 A.H.; June 8, 632 A.D.) - Khantaman Hisham b. Mughirah –
➢ The Prophet became ill believed to have mother
been caused by a poison he got from the - Title: Al-Faraug.

6
 - He preserved the original authentic THE THIRD PERIOD: THE PERIOD OF THE
copy of Quran compiled during the UMAIYAD CALIPHATE
period of the first caliph. - Transferred the seat of the center of
- Achievement: Expansion of the the Islamic political authority from
Muslim dominion into formerly Medina, to Damascus, in Syria.
non-Muslim territories and the - The period of Umaiyad is known for
application of Muslim law to the the appointment of qadis or judges, fr
Muslim colonies in those the settlement of disputes with
territories. unrestricted power to decide cases
THIRD CALIPH: according to their own personal
UTHMAN “Al-Nurayn” Ibn Affan opinion.
- was a member of the Umayyad - Divine laws were subjected to reason
family. introduced by the norms of the
- He was not the most popular of the political authority.
Caliph because of his attempt to - Narrations of traditions became
create only one strict interpretation of common.
the Quran. - Caliph Umar bin Abdul Aziz –
- His military successes put him in the launched a campaign and wrote to
clear after many unpopular decisions the four corners of the Muslim empire
to appoint much of his family to to report genuine traditions from the
administrative positions and his act of Prophet.
depleting the treasury as a result of - Distribution began to be made in the
his lavish spending habits and lack of rules of Fiqh by Ilm and Usul.
financial planning. - During this period there were two
- Uthman succeeded in creating one kinds of muftis: (1) Ahl al-Rai or
interpretation of the Quran. people of opinion, and (2) Ahl al
Hadith or the traditionists.
FOURTH CALIPH:
ALI ibn Abu Talib SHIA – conveys a sense of sectarian referring
- During his reign, the problems of the to the followers of the faction of Ali according to
caliphate during the time of Caliph the Shia ideology; it also means “faction or
Uthman fell on his shoulder, which partisan”.
troubled him until his death.
- Continued the policy of expansion of IMAMIYYAH SHIA – attached the fundamental
the Muslim dominion, and the Muslim importance to the Imam, held by the doctrine of
rule. infallibility of the Imams. Ahlu Shiah – who
- He knew Quaran by heart and wrote claimed that there was direct appointment of Ali
a commentary upon it. ibn Talib by the Prophet for leadership.
- Abu’l Aswad-al-Dyali – compiled the - Sources: Quran and Sunna, and the
first Arabic grammar for non-Arabs. consensus of opinions.
- Transmitted 586 Hadiths.
- Systematically defined the powers ZAIDIYA SHIA – was founded by Zaid b. Ali,
and jurisdiction of Qadis (judges). grandson of Al Hussain b. Ali Talib. It comprises
- Completed the task begun by Hazrat the narratives (traditions) and the fatwas
Umar in regards to the streamlining attributed to Imam Zaid ibn Ali.
of the judicial machinery. - They do not recognize mut’a
- His death brought to a close the age (Temporary marriage).
of the Four Orthodox Caliph. - They are the nearest Shia group to
the Sunni schools; its stronghold
nowadays is in the Yemen, where it

7
 has more than three and a half million - Hanafi is one of the four schools of
followers. thought (madhabs / Maddhab) of
religious jurisprudence (fiqh) within
THE FOURTH PERIOD: THE ABBASIDES Sunni Islam. Named for its founder,
CALIPHATE AND FOUR MADHAHIB the Hanafi school of Imam Abu
- Abbaside Caliphs loved to patronize Hanifa, it is the major school of Iraqi
learning and extended special Sunni Arabs. It makes considerable
encouragement to jurist, partly it may use of reason or opinion in legal
from political motives. decisions.
- Baghdad, their capital, became the
centre of culture and attracted jurist THE JURISPRUDENCE (FIQH) OF THE
and traditionist. HANAFI MADHAB; ITS LEGAL DOCTRINE
- The foundation of the four Sunni OR PRINCIPLES OF LAW
schools of law.
- This period marked by a theoretical Imam Hanifa – was first to formulate the
and scientific study of the law and technique of legal evolution in order to codify the
religion commenced about the law. He evolved out a theory of jurists
beginning of the second century of development as the science of law called Usul
the Hijra and practically ended with al-Fiqh, by making use of Qiyas or analogical
the third century. reasoning and also Istihsan or juristic equity.
- He introduced the method of arriving
THE SUNNIYAN (Traditionists) at a legal opinion by the process of
- Sunni – means “One of the Path”. deduction.
- The term generally applied to the - The sources of law accepted by him
large sect of Muslims who were: (1) Quran, (2) Sunna, (3) Ijma
acknowledge the first four Khalifa to of the Companions, (4) Qiyas, (5)
have been the rightful successors of Istihsan, (6) Urf (usages).
Muhammad.
- Those who did not subscribe to the THE MALIKI MADHAB
doctrine of the Kharijites, Shia, or the - The founder Imam Malik Ibn Anas
Mutazila called themselves Sunni or - The Maliki school derives from the
Traditionists. work of Imam Malik. It differs from the
- They do not subscribe to the idea of three other schools of law most
the Mutazila’s reliance on reason and notably in the sources it uses for
intellect, rather than on authority of derivation of rulings. All four schools
tradition, and their adherence to use the Qur'an as primary source,
tradition earned them the name, Ahl- followed by the sunnah of the prophet
al-Sunna, because their preference of Muhammad transmitted as hadith
the Sunna or practice of the Prophet (sayings), ijma (consensus of the
than on logic and reasoning. scholars or Muslims) and Qiyas
(analogy); the Maliki school, in
THE HANAFI MADHAB addition, uses the practice of the
- Was named after Imam Abu Hanifa people of Medina (amal ahl al-
al-Numan ibn Thabit, commonly medina) as a source.
known as Abu Hanifa. - This source, according to Malik,
- It was the period of the successors of sometimes supersedes hadith,
the Companions of the because the practice of the people of
Prophets(Tabiun), and, he was Medina was considered "living
naturally well informed of this period sunnah," in as much as the Prophet
during the early years of his life. migrated there, lived there and died
there, and most of his companions

8
 lived there during his life and after his
death. The result is a much more THE JURISPRUDENCE (FIQH) OF THE
limited reliance upon hadith than is SHAFI’I MADHAB; Its legal doctrine or
found in other schools. principles of law – Al-Shafi’I is regarded as the
- Imam Malik was particularly originator of the classical theory of Muslim Law
scrupulous about authenticating his Jurisprudence (Fiqh).
sources when he did appeal to them, - Legal knowledge after the Prophet’s
however, and his comparatively small death includes
collection of ahadith, known as Al- (1) The Quran
Muwatta, is highly regarded. (2) The Sunnah
(3) Consensus of the Companions
THE SHAFI’I MADHAB (Shahaba’t)
- The Shafi`i madhab is one of the four (4) Analogy (qiyas)
schools of fiqh or religious law within - Al-Shafi’I is an eclectic who acted as
Sunni Islam. The Shafi`i school of fiqh an intermediary between
is named after its founder: independent legal investigation and
Muhammad ibn Idris ibn al-`Abbas, traditionism of his time.
al-Imam al-Shafi`i, Abu `Abd Allah al- - Recognized in principle only strict
Shafi`i al-Hijazi al-Qurashi al-Hashimi analogical and systematic reasoning
al-Muttalibi (better known as Imam to the exclusion of arbitrary opinions
Shafi`i). The Shafi'i school is based and discretionary decision such as
upon the theories of the Islamic had been customary among the
theologian Abu Abdullah ash-Shafi'i earlier scholars before him.
(767- 820). He was from 804 until 810 - His legal theory was much logical
a student of Malik, the founder of one and formally consistent than that of
of the other schools. his predecessors. It was based on the
- The Shafi`i school of jurisprudence is thesis that nothing can override the
based on Qur'an (Koran), the Sunnah authority of a formal tradition from the
of the Prophet, Ijma' (the consensus prophet.
of the scholars), the opinions of the - Al-Shafi’I distinguished between the
Prophet's companions (mostly Al- argument based on traditions and the
Khulafa Ar-Rashidun, the first four result of systematic thought but in his
caliphs accepted by Sunni Muslims) actual reasoning, both aspects are
and Qiyas (though he is known to closely interwoven; he showed
have significantly limited the scope for himself tradition bound and
using qiyas in deriving Islamic law). systematic at the same time, and his
His most famous books are Ar- new synthesis may be considered
Risalah and Al-Umm. They typical of his legal thought.
emphasized the use of proper instibat
(derivation of laws) through the THE HANBALI MADHAB
rigorous use of legal principles, as - The Hanbali Madhab was named
opposed to speculation and guess- after its founder Abu Abdallah
work. He is largely responsible for Ahmad bin Muhammad bin Hanbal.
systematizing the methods used for - “Musnadul’l-Imam Hanbal” – His
deriving Islamic laws. great work, a collection of 50,000
- The Shafi`i school is considered to be traditions reported, forms a valuable
one of the more conservative of the addition to Muslim law jurisprudence.
four schools of Islamic jurisprudence, - “Musnad” – a great encyclopedia of
but there are many adherents of the traditions, compiled by his son Abd
Shafi`i tradition who maintain liberal Allah from his lectures.
views in practicing their religion.

9
 - “Hanbal Kirab al-salat wa-ma - In this period, the schools of Muslim
yaizam fiha” – the discipline of law were developed into separate and
prayer. independent schools.
THE JURISPRUDENCE (FIQH) OF THE - Mustawjihun (Jurists of this period) –
HANBALI MADHAB; Its Legal Doctrine or followed the views of the original
Principles of Law founders of the schools of law and
- In law, he adhered rigidly to the developed and systemized those
traditions. His interpretation of them views.
was literal and unbending, he allowed - The doctrines of the various schools
a very narrow margin to the doctrine of law were consolidated and codified
of agreement and analogy. during this perid.
- Imam Hanbal as an adherent of the - Qadis (Muslim judges) – tended to
Ahl Al-Hadith, makes concessions to regard themselves as belonging to
Ra’y only under pressure of Sheer particular schools of law, and to a
necessity and whenever possible large extent tended to confine
derives every law from traditional themselves to the administration of
sources. the doctrines of the particular school
to which they belonged.
DIFFERENCE BETWEEN SHIA AND SUNNI
MADHAHIB THE SIXTH PERIOD (the Abolition of the
- Both Sunni and Shia share the same Caliphate)
fundamental Islamic beliefs and, - Muqallidan (The jurists of this period)
articles of faith. – one who adhere to a particular
- The differences between these two school of thought, as they regard
main subgroups within Islam themselves as the followers of
stemmed not from spiritual difference different schools of law.
but political ones. - The denial of Ijtihad brought withit
- The Shia believe that following the the unquestioning acceptance of the
death of Prophet Muhammad, doctrines of the established schools
leadership (Imamah) should have and authorities (taqlid).
passed directly to his cousin and son- - Taqlid connotes the act of following.
in-law, Ali ibn Talib. - A jurist of this period does not
- Sunni Muslims differs and holds that approach a legal problem on his own
there is no basis in Islam for evaluation of the Shari’a values but
hereditary privileged class of spiritual follows the law of the school of which
leaders. The sunnis contend that he belongs, as laid down by its
leadership of the community is not a founder, his disciples and followers.
birthright, but a trust that is earned
and which may be given or taken THE SEVENTH PERIOD
away by the people themselves. - The seventh period of the
- SUNNI and SHIA, share the same development of Muslim law may be
articles of Islamic belief and are said to have began from the end of
considered brethren in faith. They the 6th period which is considered by
donotdistinguish themselves by authorities on the subject
claiming membership in anyparticular commenced from the abolition of the
group, but prefer to call themselves caliphate in 1922 and the Sultanate
simply, “Muslims”. of Turkey in 1924, and is believed to
have not yet to come to an end up to
THE FIFTH PERIOD 351-656 A.H. (962-1258 the present.
A.D.)

10
 - The Doctrine of Siyasa – defines the Shari
position of the political authority in
relation to Shari’a law. • anything connected with the canon
- Western influence on Muslim law law or anything in keeping with it, or
and jurisprudence exerted itself legal.
through the general cultural medium
of modernism. Quranic Basis of Shari’a:
- At the end of the eight century, we 1. “For each we have appointed a Divine
arrive at the age of commentators Law (Shari’a) and a trace out way”
(mufarsirun) and annotators. The 2. “And now have set thee (Muhammad)
contributions of these learned men to on a clear road (Shari’a) of our
the science of law have been most commandments”
valuable and important. 3. “So follow it, and follow no the whims
of those who know not”
CHAPTER III: JURISPRUDENCE (FIQH) 4. “Thus, We nave sent you (O
Muhammad) to a nation, before
Ibadat - law relating to worship
whom other nations have passed
Muamala’t - law regulating the relation of man away, that you may recite to them that
which We have inspired in you…
Thus, have we revealed it, a decisive
ISLAM & ISLAMIC LAW utterance (Quran) in Arabic.”

• is so interwoven that it is not possible Fisq

to divorce one from another. (Sir
Abdur Rahim) • “straying the right course” or “leaving
the path of righteousness”
• to stray from the path of what is right
Reason Why Legal & Ethical Parts Of Shari’a and proper (Al-Munjid)
are Intertwined:
As observed by Prof. H.A.R. Gibb… Elements/Parts of Shari’a:
• “Law in the eyes of the Muslim 1. Ilm
scholar was the practical aspect of • knowledge of the Shari’a (to learn the
religion and social doctrine four roots or sources of Shari’a and its
prescribed by Prophet Muhammad branches)
(P.B.U.H.).” 2. Amal
• it aims at regulating the relationship of • to observe and practice Shari’a and
man with Allah and man with man disseminate the knowledge of Shari’a
Shari’a 3. Iklas
• Islamic Law or Muslim Law • to learn the things communicated by
the Shari’a, to do what is learned, and
• etymologically means, “the road to a
to do everything for Allah (Divine
watering place, a clear path to be
Providence)
followed”
• technical meaning, “a divine system
of law in its sources and primary Objective of Shari’a:
rules”
Mashru • to construct human life on the basis of
Marufat (virtues) and to cleanse it of
• what is regulated and provided in the the Munkarat (vices).
Shari’a

11
Proofs of Shari’a (Al-Adillah Al-Shari’a): DEVELOPMENT OF FIQH
Sura Al-Nisa (4:58-59)
Abu Hanifa
“O you believers! Obey God and obey the
Messenger and those of you who are in charge • study of Muslim law jurisprudence as
of affairs. If you have a dispute concerning any a science came to be known during
matter, refer it to God and to the Messenger.” his time
• famous Muslim jurist whose school of
• Quran law is considered the most important
• “Obey God” of the Sunni schools of law
• Sunna • prominent in formulating theories and
• “Obey the Messenger” principles of jurisprudence on Muslim
• Ijma law
• Obedience to “those who are in • founder of the Muhammadan science
charge of affairs” of law
• Qiyas
• requires the referral of disputes to Fiqh
God and to the Messenger
• science of Muslim law or Muslim law
jurisprudence
Classification of Proofs of Shari’a:
• knowledge of Islamic law (Shari’a)
1. • literally means, “understanding” or
1. Dalil (proof or evidence) “knowledge”
2. Amarah (sign or allusion) • sometimes spelled as “Fikh” or
2. “Fique”
1. Transmitted proofs (adillah
nagliyyah)
2. Rational proofs (adillah agliyyah) Scope or Coverage of Fiqh:
• all aspects of religious, political and
3. civil life
I. Mustaqil (independent proofs) • includes the whole field of family law,
II. Muqayyad (dependent proofs) law of inheritance, property and
contracts, criminal law and
4. procedure, constitutional law and
• Qat’i (definitive) laws regulating the administration of
• Zanni (speculative) the state and conduct of life.
•
Shari’a vs. Canon (Qanun) Law: Division of the Science of Jurisprudence:

Canon Law (Arabic, Qanun) 1. Religious

• deals with religious observances and
• man-made law, a rule, a regulation, a the affairs of hereafter, such as belief,
law, a statute, a body of ecclesiastical prayer, alms-giving, fasting and
law pilgrimage, etc.
Shari’a 2. Legal system
• broader in that it encompasses within • concerned with the affairs of this
its meaning, all the primary sources of world and subdivided into three
Muslim laws, both in the secular and sections:
ecclesiastical field Criminal law
• felonies, crimes, retaliation, blood-
money

12
 Family Law and warning, manuscript of divine
• marriage, divorce, relationship, law of revelations, a distinguisher.
personal status
Transactions
Nature of the Quranic Verses:
• property, contracts, etc.
Intangible and Immutable
• the provisions of the Quran are
Fiqh vs. Ilm
considered organic rules, containing
• Fiqh came to be used exclusively for universal principles
a knowledge of the law while Ilm • look at the Quran as the
came to be applied in a narrow sense Constitutional Law
to mean knowledge that comes • why the Quran is a code of conduct
through reports or traditions (Hadith) laying down fundamental principles
and athar. and not the detailed provisions

Revelations of the Quranic Verses

Two Divisions of Science of Fiqh:
1. Usul Al-Fiqh Ramadan (12 B.H./610 A.D)
• the Doctrines of the “Roots”, the
sources of law, and the methodology 1. Revelation of Quran began 

of their application
2. Continued over 20 yrs 

• literally means, intelligence,
knowledge, discernment.
o 12 yrs+ - took place in Mecca o Rest- revealed
2. Furu Al-Fiqh
in Medina
o Prophet’s death- ended
• the Doctrine of the Branches (i.e.,
applied fiqh, the systematic Revelation Period
elaboration of the positive law)
➢ Meccan period 
– meccan verses(ayats)
Maxims of Fiqh (Qawa’id Al-Fiqhiyyah) or chapters(suras) 


• body of abstract rules which are ➢ Medina period 
- medina verses(ayats)

derived from the detailed study of the or chapters(suras) 

fiqh itself.
• consist of theoretical guidelines in the Early Meccan suras
– dealt on fundamental
different areas of fiqh principles of Islam 
3 Themes:

1. the unity of God

Primary Sources of Fiqh: 2. the moral duties of mankind

1. The Quran (First Primary Source of 3. the retribution in the next world 

Muslim Law)
• Subsequent Meccan suras
– dealt on Islamic
faith (Iman) 

Quran
• from the Arabic word “kurra”, means • Medina suras
– 1/3 dealt on civil and criminal,
to read, recite or discourse fiscal and military laws and regulations,
• to the Muslim, it is a Holy Book (kitab) and 5 pillars. 

containing the infallible words of God,
the guidance or God’s admonition

13
5 Pillars of Islam: preserved, and reached to the present.

1. to testify that there is no God but Allah Kinds of Reasons (Ashab Al Nuzul)

and 
Muhammad is the messenger of
Allah 
 1. Revelation in response to an event or a
2. to perform prayers 
 general situation

3. to pay zakat (alms tax) 

2. Revelation in response to a particular
4. to fast in Ramadan 

questions that has been asked by someone
3.
5. to make pilgrimage to the Qa’ba and the
Revelation for other reasons, known or not

Holy Mosque in Meccca 
 known to us
Revelation: 
 ü The Prophet’s companions recorded the
Quran on materials and memorize them.
1. through Angel Gabriel (Jebreel) – highest
form or 
revelation 
 ü Zayd ibn Thabet collected the verses of the
Quran by order of the 1st Caliph, Abu Bakr.
2. bell-like ringing sound 

ü Year 30 A.H. (650 A.D.) Quran was collected
Wahi – suggestion thrown in the mind of man
 in 1 unified version and reading.
Riwaya (dreams) or kasf (visions) – sight seen
when asleep or in Divisions of the Quran

state of trance • Aya (means signs) – shortest division

Reasons for Revelation of Quranic Verses • Sura (“row” or “fence”) - passage-wise division
Helps one to understand:
• Quran- 114 suras
a. The direct and immediate meaning and
implication of an ayat 
 o shortest suras- 4 ayats
b. The imminent reason underlying a legal ruling o longest suras- 286 ayats
• Quran begins with

 sura al-Fatiha and ends with sura al-

c. The original intent of the ayat 
 Nass

d. Whether the ayat is specific or general, it is to Divisons of the Legal Prescriptions

be 
applied 


1. Prayers and worship instructions

➢ Ashab al-nuzul precedes the revelations
and involves a particular issue at the time 2. Fundamental principles regulating relations
and for which no particular rule is between men
available.
➢ Verse is revealed to Prophet as solution Spirit of the Quran
to problem. v Shahabat (companions of
Prophet) who witnessed the occurrence 
1. Removal of inconvenience

of problem became the repositories of
the ashab (reason) for the revelation of 2. Doctrine of lesser hardship (in line with the
first rule)
verse.

➢ The Ashab were transmitted to Quran’s Subject: Man
successors (tabiuns) until written down,

14
Quran’s Central Theme:
The exposition of Metaphorical (mazazi)
reality and the invitation to the right way
• Departing from the literal meaning
Quran’s Aim and Objective: Invite man to the
right way Levels of Meaning:

Ta’weel 1. The Explicit or Immediate Meaning 
• obvious

meaning 

• Arabic root word “Awwala” meaning
Interpretation 2. The Alluded Meaning
• indicated by the signs
and allusion that the next 
may contain 

Bases of Ta’weel
3. The Inferred Meaning
• derived from its spirit
1. Quran
and rationale
• through analogy and
2. Hadiths identification of effective 
cause 


3. Ijma 4. The Required Meaning • Silent 
• Must read

into to fulfill its proper objective 


Purpose of Ta’weel 5. Divergent Meaning 


1. Interpret the Quran with reference to its words • Diverges from explicit meaning
and meaning, contexts, and traditions of
Prophet Muhammad 
 Classifications of Textual Implications:


2. Discover the intention of the lawgiver and 1. Dalalah al-mantuq (pronounced meaning)
discover that which is not self-evident 

• Dalalah al-iqtida (required meaning) 

Rules on Interpretation of Quran
• Dalalah al-isharah (alluded meaning) 

Definitive (qati)
2. Dalalah al-mafhum (implied meaning) not
1. Unequivocal, specific and clear 

indicated in the text but arrived by inference.
2. Admits one meaning 

a. Mafhum al-muwafaqah (harmonious
3. Rule: 
Its validity may not be disputed
o meaning) - text is silent but in harmony
Everyone bound to follow
o Not open to with pronounced meaning
ijtihad (analytical deduction) a.1. lahn al-kitab (parallel meaning
– if
equivalent to dalalah al mantuq
Speculative (zanni) a.2. fahwa al-kitab (superior meaning) –
if superior to dalalah al mantuq
• Open to different interpretations 

b. Mafhum al-mukhalafah (divergent
• Rule: 
o IF: interpretation bases from Quran, meaning)
elaboration is found in a similar or
different context, or from authentic Hadith Conditions of Mafhum al-Mukhalafah


o THEN: becomes integral part of the
Quran Literal (haqiqi) 
 1. That the divergent meaning does not exceed
the scope of the pronounced meaning
• Literal meaning of the word is the norm

15
2. That the divergent meaning has not been left 2. Brief meaning, Commentary to the
out in the first place for a reason of ignorance. verses of the Holy Quran.
3. Technical meaning, The science
Dalalah al-Mafhum through which the text of the Quran,
the injunctions contained. therein,
– an implied meaning which is not and the causes for their relegations
indicated in the text but arrived by a way of can be understood.
interference.
Sub Classification Tapsir distinguished from Ta’weel
1. Mafhum al-muwafaqah (harmonious Tapsir is to explain the “outer” meanings
meaning) of the Quran while Ta’weel is to interpret
a. The text may be silent but it is the “inner” or concealed meanings of the
nevertheless in harmony with its Quran.
pronounced meaning.
b. It may be equivalent to dalalah al- According to al-Raghib al Isfahani:
mantuq (pronounced meaning), or Tapsir is the study of the meaning
it may be superior of the words while ta’weel is the
i. If it is equal it is referred to study of the contextual meaning or
as Iahn al-kitab (parallel the study of the whole sentence of
meaning) a text as a unity.
ii. If it is superior, it is referred
to as fahwa al-kitab Beginning of Tapsir
(superior meaning)
It began in response of the growing
2. Mafhum al-mukhalafah (divergent
distance perceived between he
meaning)
contemporary and the prophetic period.
Half of the 1st century was Hijrah saw the
Conditions set by the Shafi’i for the increased efforts making the
application of Mafhum al-mukhalafah commentaries more extensive and
comprehensive. The second generation
- The divergent meaning must not of the successors (Tabuins) set
exceed the scope of the pronounced themselves the task of writing down
meaning. commentaries, four distinct types of
- The divergent meaning has not been Tapsir appeared.
left out in the first place for a reason
such as ignorance.
Four distinct types of Tapsir literature
Ta’weel - derived from the Arabic word produced during this period:
“awwala” (to return to something)
1. The Grammatical Tapsir
Tapsir - derived from the Arabic word “Fasara” 2. The Historical Tapsir (Akbars)
(to explain, expound, to make clear, or to show 3. The Fiqh (legal) interpretations produced
the objective) by legal pragmatists (Fuqaha)
4. The Rationalist (Tapsir)
- a person doing the Tapsir is a ‘Mufassir’ (pl.
Mufassirum) or commentator.
Different Methods of Tapsir
Meaning:
o Al-Tapsir Bir Mathur (Tapsir bi-i
1. Meaning, The word used for riwaya)
explanation, interpretation, and
commentary on the Quran.

16
 o Al-Tapsir Bil Maqul Wa Bil Dirayah - Tapsir mahmud (praiseworthy) It is in
(Tapsir bi-ray) agreement with the sources of Tapsir,
1. Tapsir-al-Lughri (the Linguistic Tapsir) rules of Shari’a and the Arabic
Thelinguisitc interpretation of the Quran Language.
2. Al-Tawilm Falsafa wal Tasawwuf (The - Tapsir madhum (blameworthy) It is
Sufi or Philosophical interpretation) done without proper knowledge of the
3. Tapsir Ayat Al-Hallam (commentary on sources of Tapsir, Shari’a and the
the verse of injunctions) Arabic Language.
4. Tapsir al-Riwayah wal Darayah • Tapsir bil-ishara
(commentary through narration and Interpretation OF the Quran
proof) Beyonce its outside meaning, and
5. Tapsir bil Ra’y (commentary on the basis one practicing IT concerns himself
of personal judgement) with meanings attached tao the
versus of Quran, which are not
visible to anyone, but only to him
Other Classification of Tapsir
whose heart Allah has opened.
1. Tapsir of Quran by Quran – There are
Isra ‘iliyat
som questions in the Quran that answers
to which are found in the Quran • “Meaning of Jewish Origin”
2. Tapsir of Quran by Sunna – This refers to • This refers to explanations derived from
the Prophet explanations of Quranic non-Muslim sources and especially from
passages. the Jewish tradition, including other ahl-
3. Tapsir of Quran by the Aathar – This kitbag in general.
refers tot the explanations of the
Shahaba (The Prophet explained what
was unclear to the Shahaba) and that of Limitations to the Exercises of Tapsir of the
the Tabuins (The Shahaba explained Quran by Opinion
what was unclear to the Tabuins). Hadiths showed that the prophet sternly
4. Tapsir of the Quran by Language – warned against the interpretation of the
Explanaiton of the Quranic verses Quran based on secularism and
according to their literal and logical unsubstantiated opinions in order to
meaning. preserve the Quran.
5. Tapsir of Quran by Opinions – This refers
to opinions based on a carful study of the
first four steps and do not contradict
Importance of Tapsir
these steps.
It serves as a means by which the law of
God, the Quran can be properly
Still another, classifies Tapsir also as
understood as regards its meaning and
follows:
implications and thereby serves as a right
• Tapsir bil-riwaya (by transmission) guidance for mankind.
All explanation of Quran traced
back through all the chains of
transmissions to a sound source. Qualifications of Commentator to the Holy
Quran
• Tapsir bil-ray (by sound opinion)
This is arrived by means of ijitihad a. Posses sound and thorough
(analytical reasoning) based on knowledge of the Arabic
sound sources. language. (Alim – a scholar in the
Arabic Language)

17
 b. Well-grounded in Ilmal-Ma’ani translation, it loses some of its original
(knowledge of rhetoric) meaning.”
c. Have a sound and through
knowledge of the Hadith literature
and the Science of Hadith. The supporters on the other hand
d. Should have an ability through the argued:
knowledge of the Hadith, to
recognise that which is Mubham a. The prophet did not deny the
(ambiguous) and to elaborate on Persians request to Salman at-
that which is Mujmal (brief or Farisi to write the Fatiha
abridged) (opening surrah) in Persian.
e. Have knowledge of Asbab al- b. Imam Abu Hanifa had
Nuzul (Reaosns for Relevation) of unconditionally sanctioned the
the different verses from Hadith. performance of prayers in
f. Have a thorough knowledge of Persian.
Nasikh and Mansukh (abrogation c. The mission of Islam was not
of one verse by another) addressed to the Arabs alone
g. Posses knowledge of the ilmal but to all nations.
Tajwid (the science of the
recitation of the Quran) Qualifications required of Translators of the
h. Posses knowledge of the Usul al- Quran (Tarjama al Quran)
Fiqh (principles of Islamic
Jurisprudence) - It must be done by a Muslim.
i. Be a man of Tagwan (piety) - It must be done by someone with
adequate knowledge of both the
language of the Quran and the
Necessary Conditions for Making Correct language for the translation.
Tapsir - It must be done by someone well
6. Tapsir of Quran by Quran aquainted with related sciences, such
7. Tapsir of Quran by Sunna as Hadith, Tapsir, etc.
8. Tapsir of Quran by the Aathar
9. Tapsir of the Quran by Language Hadith
10. Tapsir of Quran by Opinions
-literally means “tradition”
Translation of the Quran (Tarjama) Meaning
1. The expression of the meaning of its 1. The precepts of Prophet Muhammad, or
text in a language different form his dicta in all matters of law and religion,
Arabic language used in the Quran. expressed in his own words, or
Early Translation of the Quran manifested by his own conduct (Sunna)
2. The narrative account of what he said or
Rector of Al Asher proposed the did, or his tacit approval of something
translation of the Quran to disseminate said or done.
guidance of Islam amongst nations and
to eradicate the harm caused by
erroneous translations. This was Purpose of Hadith
opposed by the Association of the Shari’a
Through Hadith, Prophet expounds the
lawyers stating “Arabic speech is the
principles of the Quran, by detailing the
symbol of Islam and its people, that the
general, clarifying the obscure,
glorious Quran represents construction
specifying the common and limiting the
as well as its meaning and that in a

18
 absolute. The traditions of the Prophet Umar ibn khatab, Abd-Allah ibn Umar,
comes next to the Quran as a source of Abd-Allah ibn Abbas
Muslim Law.
Aisah- Prophet’s wife who sought to
preserve the sunna of the prophet
-Narrated 160 traditions
“O you who believe, obey God and his
Messenger” (Q.VIII:20) and “whoever Abu Huraira- member of Ashab as-Suffa
obeys the Messenger indeed obeys (band of religious teacher)
God.” (Q.IV:80) -would remain with the prophet
and remember and write
everything the deeds and words of
Hadith, The second Primary sources of the prophet
Muslim Law and Jurisprudence
-The prophet objected first of the writing
of hadith because of fear that it be mixed
Hadith- the precepts of Prophet Muhammad up with the Quran but eventually agreed
(pbuh) or his dicta in all matters of law and of its writing as ordered by God.
religion, expressed in his own words, or
manifested by his own conduct. c. Second Stage- After the death of
the Prophet
Purpose:
Precedents furnished by the prophet’s practice The Quran and some judgement/saying
are binding authority of the prophet is the source of every
decisions.
a. His dicta in all matters of religion and 1. Double process of collecting the hadith
law are guided and suggested by occurred.
God. 2. Hadith was passed from individuals to
b. The hadith expounds the principles of public possessions
the Quran, by entailing the general,
clarifying the obscure and specifying d. Third Stage- Passing of the
the common and limiting the generation who had seen and
absolutes. heard the prophet
No more reports to be investigated from
Example: the prophet provided the details
different persons, and the whole of
of prayer and the rules and regulations for
Hadith was the property of different
the payment and collection of zakat.
teachers who taught in different centers.
3. Hadith can be learned from this centers.
4. Writing of hadith became common
STAGES OF COLLECTION OF HADITH 5. Hadith continued to be transmitted orally
1. First stage- During the lifetime of the among the people during the lifetime of
Prophet the four orthodox caliphs.
-Decision in words or examples shown by 6. Umar ibn Abd Al-aziz, the Umaiyad
his conduct became the authority in caliph, was the first who ordered for the
certain matters. written collection of the hadith.
-His words is transmitted by his followers
to everyone. e. Fourth Stage- began before the
middle of the second century
Companions of the prophet who Hadith became more permanent in form
preserved the hadith and sunna of the because of the interest of collecting and
prophet: writing them.

19
 -books on hadith was far from being 3. Preferably a jurist
exhaustive as the authors only records 4. Narration of well-known people is
hadith taught in their centers. preferred
5. Narration not in conformity with the quran
f. Final Stage- collection was or tradition is not accepted
completed in the third century of 6. Allegation opposed to common sense is
hijra not accepted
7. Allegation which lays down new theories
2 kinds of collection of hadith: is not accepted
a. Musnad- arranged by under the
name of the companion on whose Compilation of the Hadith:
final authority the hadith rested. g. Masanid- compiled in accordance
b. Jami- brought the knowledge of with the sources of authority for their
hadith in perfection narration.
-arranged hadith by subject h. Musannaf- classified in accordance
matter and in a more critical with the topics of jurisprudence.
tone
Distinctions between Hadith and Sunna:
6 Reliable sources collections of hadith:
Sunna- a way or rule or manner or example of
Bukhari- most reliable acting, mode of life
Muslim -deduce from the hadith
Abu Dawoud Soliman -refers not only the hadith of the prophet
Jami Tirmidhi but also to the established practice of the
Ibn Maja community
Sunan Nasai Hadith- a saying conveyed to man either
through hearing or through revelation of the
Selection of Hadith: prophet
-the story of an eyewitness concerning
-problem: Spread of inventing false traditions what the prophet said, did or tolerated.
-narrative, communication or news
Ilm al-Riwaya (2 parts of methodology consisting of the factual account of an
or science of transmission of Hadith) event
1st: Determine the chain (isnad)-
scholars of hadith requires the names of Classification of Hadith:
those who successively pass the text of According to the manner they came about from
hadith the prophet:
2nd: Ascertaining the mata or the real 1. Sunna al gauliya- consists of sayings of
text the prophet
2. Sunn Fi’iliya- traditions based from
deeds of the prophets manifested by his
Rules Observed in Selection of Traditions: actions
3. Sunna Tagririya- traditions based from
1. Traditions must be narrated in 3 periods
his tacit approval of the act
2. Qualifications of narrators:
1. Muslim
According to the manner of transmission
2. Of sound mind
(isnad):
3. Major
1. Mutawatir (continuous)- reported by
4. Man of judgement
large number of people or generally
5. Of retentive memory
accepted that is impossible to be false
6. Good moral character and clean conduct

20
 2. Ahad (Isolated)-
• Mashur- reported through less than 2 How to know which Quranic verse is
channels in every stage abrogating and abrogated:
• Aziz- less than 2 channels in general 1. From the report of the Prophet or
• Gharib- 1 person in very stage shahabat
-mutawatir and ahad entailed certainty of belief 2. Consensus (ijma) of mujtahid
3. Knowledge of history or revelation
Degree of Application and attitude of sunni
jurist towards tradition: Example:
• Hanafi School- strict in accepting Sura 2 verse 240 provides that the widow will
tradition and applied various tests to spend 4 mos and 10 days in her husband’s
determine the authenticity of traditions residence
-rejected traditions not mentioned or
inconsistent in quran and qiyas. Subsequently, the same sura provides that
• Maliki School- a traditionist and not the widow is entitled of extra maintenance of
strict 7 mos. And 20 nights added to 4 mos. and
–concerned only on the documentation 10 days if she wishes to stay in her
of sunna husband’s residence, otherwise, she may
–accepted traditions which he believed opt to leave.
as authentic.
• Shafi’I School- recognized deeds or The subsequent verse abrogated the 1st
actions of the prophet as authoritative in verse by giving freedom to the widow to
principle leave if she desires so.
–disregarded disconnected traditions
that are not continuous Rule on Repeal of Tradition by Quranic Text
–accepted traditions from chain of
transmissions and genuine Example:
• Hanbali School-adhered in tradition 1. The Fixation of direction of prayers: The
–literal interpretation on traditions Prophet had enjoined that while saying
–less belief in Ijma, qiyas and ra’y prayers, should turn his face in the
direction of Jerusalem. In 623 A.C., a
RULES ON ABROGATION (AL-NASKH) Quranic verse was revealed directing the
Muslim to turn their faces towards the
Al-Naskh- means to supersede or supplant a Qa’ba, the Temple of Abraham while
shari’a rue by means of another Shari’a saying prayers.
provisions with the aim of liberalizing the law for
people. Rule About the Question Whether the
Quranic Text May be Repealed by the
• Repeal of one quranic text by Prophet’s Tradition
another- 2 verses cannot be Views of Hanafis and most Shafi’i and Maliki
reconciled jurists are as follows:
• Repeal of tradition by quranic text
• Repeal of quranic text by tradition 1. of one Quranic text by another;
• Repeal of tradition by another 2. of one traditionary text by
tradition another;
3. of a Quranic text by a
-Abrogation came about to effect social traditionary text;
reform to people’s long time practice, drastic 4. Of a traditionary text by the
and abrupt. Thus gradual change is to be Quranic text.
preferred.

21
Note: There are some Shafi’is and Abrogation in the Quran divided into 3 kinds:
Maliki who agree so far as 1, 2 and 4
are concerned, but not as to 3. • Abrogation of the verse together with the
legal ruling.
• Abrogation of the legal ruling without the
Abrogation by Ijma or Qiyas recited verse.
• Abrogation of the recited verse without
1. A subsequent Ijma may abrogate an
the legal ruling.
existing Ijma when the former is founded
on public interest or Maslahah Mursallah, Cases When the Rule of Abrogation in Not
as when public interest ceases to exist. Applicable
2. Qiyas cannot be abrogated by a
subsequent Qiyas for Qiyas is normally • Perspicuous text of the Quran and Hadith
based on a textual rulling found in the (Mukhamat). It is often worded in such a
Quran or Sunna is bound to remain valid way as to preclude the possibility of
for as long as the original text remains repeal.
valid. • Provisions pertaining to the attributes of
God, belief in the principles of faith and
Rules on How to Reconcile Conflicting the doctrine of tawhid
Texts (Takhsis) • The Shari’a of Islam itself.
1. If the two texts cannot be reconciled, the • The rational matters and moral truths.
one which is stronger in respect of • The nusus of the Quran and Sunna.
authenticity (thubut) is to be preferred. Conditions Before Abrogation (Naskh) May
2. If the two texts happens to be equal, the Take Place
prohibitory text is to be given priority over
the permissive. 1. Text itself has not precluded abrogation.
3. In all instances of conflict, it is essential 2. The subject is open to the possibility of
to determine the time factor. The later in repeal.
time abrogates the earlier. 3. The abrogating text is later origin than the
abrogated.
Naksh and takhsis resemble one 4. Two texts are of equal strength in regards
another that both tend to qualify or to authenticity.
specify an original ruling. They differ in 5. Two texts are genuinely in conflict and
that there is no real conflict in takhsis. cannot be reconciled.
Types of Abrogation (Naksh) 6. Two texts are separate and not related.

1. Explicit (Sarih) – the abrogating text

clearly repeals one ruling and substitues Rules in Case of Conflict between Sources
another in its place of Muslim Law
2. Implicit (Dimri) the abrogating text does
not clarify all the relevant facts. 1. Where both evidences are of equal
2 types of implicit strength, the later repeals the former,
a. Total abrogation (naskh kulli) – the except;
whole of a particular nass is - Attribute of Allah, and
abrogated by another; and - A provision connected with
b. Partial Abrogation (naskh ju’zi) – is a circumstances which negates the
form of naskh in which one text is only possibilities of time limitation.
partially abrogated by another and 2. Both are equal, but it is not known which
remaining part continuous to be is the later. There should be attempt of
operative. reconciliation; if not in the Quran
reference should be made to Sunna; if

22
 none, to Qiyas and saying of the
companions.
3. One evidence is stronger by virtue of the Methodology for finding principles found in
secondary difference; or the Quran and the Sunna
4. One evidence is stronger by virtue of Principles stated explicitly in the texts
essential differences. Principles derived from the underlying
hikmah of the texts
Principles introduced by the jurist
Secondary Sources of Muslim Law
Who can exercise Ijtihad
Ijtihad – interpretation through analytical
reasoning by competent Muslim jurists. Mujtahid – something more than a faqih or
lawyer. Must be able to make legal decisions.
Origin of Ijtihad and Authority of Ijtihad
1. Begun in the lifetime of the Prophet since
it was impossible to refer every case to Legal Effect of Ijtihad
him. Is the probability of the conclusion so
arrived at being correct, but the
possibility of such conclusion being
Meaning of Ijtihad erroneous is not excluded.
If a jurist makes a wrong deductions, he
2. Derived from “jhad” and Ijtihada which incurs no spiritual responsibility for he
means exerting oneself to the utmost or has done his best to reach the right
to the best of one’s ability. conclusion.
3. To put-in the maximum effort to
ascertain, in a given problem, the
injunction of Islam and its real intent.
4. Complete use of one’s opinion. Conditions for the Exercise of Ijtihad
1. Resorted to only in the absence of an
applicable text;
When Ijtihad can be resulted to 2. Should not contravene the Shari’a; and
3. Reasoning should not become entangled
By a qualified mujtahid whenever a in any kind of sophistry or compilation of
question arises on which there is no expression which might affect the
explicit text applicable. people’s attachment to Shari’a.
RULE IN CASES WHERE THE SHARIA IS
When Ijtihad cannot be resulted to SILENT

Regarding the existence of Allah, truism Hukm

of Prophethood of Muhammad, and the
other Prophets of Islam, or on authority of - Judgment of ruling 

the Holy Quran.
- Difficult to derive on the basis of strict 

Modes of Ijtihad
analogy and on primary sources.
1. Ijtihad by strict adherence to the texts of
the Quran or the Sunna Mubah
2. Ijtihad by the extension of the original
interpretation given to the texts by means - “Permissible”
of Qiyas
3. Ijtihad based on the purpose of the law - A category of approach that states that,
“whatever is not mentioned in the text, and

23
cannot be dealt with through analogy is consolidated collective opinion of the jurists.
permissible.”
ORIGIN OF IJMA
- The original rule for everything, except for
sexual activity and unless a legal evidence Originated to the principles of mutual
prohibits it. consultation (shura) prescribed by Quran.
It is derived when learned people assemble in
Note: According to the Hanafis, “The original group and decide the issue in light of the Quran
rule for each thing is pro and available traditions.
Shura
IJTIHAD DISTINGUISHED FROM TA’WIL - A collective endeavor for seeking an objective
truth.
Ta’wil AUTHORITY OF IJMA

-An extension of Ijtihad 
 1. Quran

2. Hadith
-Applied when there is a need to prove the 

inner meaning of the text and the discover its IJMA BASED ON QIYAS
intend and purpose. 
 3 Views
Ijtihad
1. Ijma may not be founded on qiyas for the
-Is the exerting by a jurist of his utmost analytical simple reason that qiyas itself is subject to
reasoning with a view to formulate an doubts.
independent opinion.
2. Qiyas in all of its kinds may form basis of
HOW IJTIHAD ATTAINS THE STATUS OF consensus for qiyas itself consist of an analogy
LAW to the nass.

1. Consensus of opinion (Ijma). 3. When the effective cause (illah) of qiyas is

2. Popularity of Ijtihad of group/persons. clearly stated in the nass when the illah is
3. Muslim government adopting a piece of indisputably obvious, then qiyas may validly
Ijtihad form the basis of ijma.
4. Empowered in an Islamic state to legislate
and enact a piece of Ijtihad as a form of law. Example of Ijma founded on Qiyas:
“The father is entitled to guardianship over the
IJMA person and property of his minor child. By Ijma,
this right is also established for the grandfather
- Third recognized source of Islamic law. regarding his minor grandchildren.”
- Derived from Jam which means
collecting or gathering together, and of VALIDITY AND BINDING FORCE OF IJMA
composing and settling a thing, which WHEN:
has been unsettled.
- Defined as the agreement of Muslim 1. There is evidence that effective that the silent
jurists “The complete consensus of all jurists are acquainted with the issue.
learned on a certain point of law.” –Shafi’i
2. A reasonable period of time passed after the
Note: Ijtihad or Ra’y is the individual opinion, view was opined to enable other jurists to
when based on Quranic order or traditions, it is devote sufficient time to research and analysis.
Qiyas, when an opinion by jurists differs from
Qiyas, it is Ijma or equity, which is the

24
CLASSIFICATIONS OF IJMA verbally or by action.
- Definitive and binding
1. Absolute Ijma or Regular Ijma
- Ensures certainty of belief (yaqin) and is the 2. Tacit Ijma (Al-Ijma al-Sukute)
positive kind - When some mujtahids give an expressed
- in strict conformity with the requirements of the opinion but the rest is silent
law and proved by infallible testimony. - Presumptive

2 ways: Note: According to the Hanafis, Ijma is only

valid when it regards with concession (Rukhsa)
By words(gaul), where the consensus and not with the strict rule (Azimah).
is achieved by words.
WHO MAY PARTICIPATE IN CONSTITUTION
By deeds (fi’il), where the consensus is OF IJMA AND WHO ARE DISQUALIFIED
established by unanimous practice.
1. Must be a Muslim with a sound mind.
2. Irregular Ijma 2. Must be a man of thorough judgment and
- No absolute certainy. must have the capability of making logical
decutions.
3. Ijma-i-Ummah
- -the most superior ijma Note: Those who are not learned in the law are
- opinions of the people during the caliphate debarred from participation in Ijma, the
period determination of which depends upon the
exercise of judgment and the power of making
4. Ijma-i-Ulamas analogical deduction
- the consensus of the learned people.

5. Ijma-i-Medina Qualifications of Mujtahid

- the Ijma according to the place of celebration • He must be a conversant.
- the ijma used by people in Medina • He should have a thorough knowledge of
the Quran, that he should not only be
able to read it, but also understand and
CLASSIFICATION OF IJMA ACCORDING TO interpret its verses.
DEGREE OF AUTHENTICITY • He should be familiar with the traditions
reported from the prophet and be able to
1. Ijma of the Companions of the Prophet distinguish the authentic from non-
authentic, the universally known and the
2. Ijma Sakuti, consensus of the companions well-known from traditions of isolated
of the Prophet origin, and should know the nature of
authority attached to each class of
3. Ijma of the generation succeeding the traditions.
Companions of the Prophet • He must be conversant with the rules and
methods of analogical deduction.
4. Ijma favored by generation following the
companions of the Prophet
To be fully conversant of the Quran, means
CLASSIFICATION OF IJMA BASIS OF ITS knowledge of 10 things:
CONSTITUTION
• Khass – words of singular meaning
1. Explicit Ijma (Al-Ijma al-Sarih) conveying the specific sense.
- When mujtahid/jurist expresses his opinion

25
 • Ann – words of plural meaning conveying them along with the successors, might
collective sense. not subsequently come to a differnet
• Mutlag – absolute commandments. conclusion, unless the matter was one in
• Muqayad – qualified commandments. which before such agreement some of
• Muhkam – verses that are decisive. the companions had expressed a
• Mutashibat – verses that are allegorical different view.
and susceptible to different
interpretations. 1. Ijma may be constituted by decision
• Mujmal – verses that are of concise and expressed in words or by practice of
general nature. jurists, either case it may be regular
• Mufassar – verses that are explained. (explicit Ijma) or irregular (tacit Ijma).
• Nasikh – abrogating.
2. Ijma is constituted by practice, if all the
• Mansukh – abrogated.
Mujtahids in their practice adopt a
particular view of the law, or if some of
Conditions Relating to the Constitution of them in practice adopt a particular view,
Ijma and the others do not indicate dissent by
acting to the contrary.
1. There must be unanimity of opinion
among all the jurists of the age, to have a
decision with the force of Ijma in absolute 3. Ijma by words and ijma by practice are
form. equally authoritative.
2. There must be formal assembly of the
learned people and the issue shall be
4. Ijma could not be repealed by a
paced before this body.
subsequent consensus; but if the Ijma is
3. If majority of jurists who agree in a certain
merely based on public interest, then it
conclusion do not admit that those who
may be repealed if the public benefit
dissent from them possess the
requires it.
qualifications of a jurists, such dissent will
not preclude the formation of absolute
Fatwa – opinion or research of a legist or jurist.
Ijma.
(does not amount to law).
IJMA • If Fatwa of a Mujtahid is published and
not opposed, it will have the force of Ijma.
• Ijma is completed as soon as the jurists
• If it does not attain the position of Ijma, it
of the age in which the question arose
remains a verdict or opinion of Mujtahid.
have come to an agreement thereon,
after they have had sufficient time to
Terms to Ponder
mature their deliberations.
1. Tawil – interpretation.
• When a question is determined by 2. Qiyas – analogical reasoning.
consensus of opinion, it is not open to 3. Ijtihad – exerting ones efforts.
individual jurists of the same subsequent 4. Istidal – juristic inference.
age to come to a different conclusion. 5. Istislah – public good.
Ijma once completed, may not be 6. Ijma – consensus.
reopened. Ijma of the companions of 7. Istihsan – equity.
Prophet however, is irrepealable.

Example:
If the companions of the Prophet agreed
in laying down certain law, some among

26
Conditions for Ijma to attain Absolute * Defined by the Shafi’is as – the accord of the
Authority known thing with a known thing by reason of the
equality of the one with the other in respect of
the effective cause of its law.
1. No opinion to the contrary should have
been expressed on the question by any
of the companions or by other Mujtahids Basis of Qiyas – are logical and scientific
before the formation of Ijma; priciples and is different from opinion based
2. None of the Mujtahids taking part in the upon mere whim.
decision should have afterwards
changed his opinion; Classification of Qiyas
3. The decision must be proved as being 1. Strict Analogy – the cause of Illah is
either universally known, or at least as apparent.
well-known;
4. It should be based on an express text of 2. Sound Analogy – the cause of Illah is not
the Quran, or a Tradition of a continuous apparent or when the word in text could
or well-known character; be used in various senses; also when it
5. It must be regularly constituted. is supported by some proofs from the
original texts.
QIYAS
3. Qiyas al-Jalliyy – transparent Qiyas.
✓ Literally means measuring by or e.g. Alcohol is forbidden on the ground of
comparing with, or judging by being intoxicant can also be equally
comparing with a thing. forbidden in Islam.

✓ A process of deduction by which 4. Qiyas al-Kaffiyy – forbidden Qiyas.

the law of the text is applied to e.g. Almighty Allah asks it to give out
cases, which though not covered zakat(poor man’s due), instead of things
by the language, are governed by its equivalent in money may be given.
reason of the text.

✓ Function of Qiyas is the discovery Essential Elements of Qiyas

of the Illat or effective cause of the 1. Asl – original subject;
revealed law. 2. Far – object of analogy;
3. Illah – effective cause common to both
* Defined by the Hanafis as – an extension of subject.
law from the original text to which the process is 4. Hukm or Hukm Shari’a – rule arrived at.
applied to a particular case by original text to
which the process is applied to a particular case Pillars of Analogy
by means of common Illat or effective cause
which cannot be ascertained merely by 1. The original subject against which the
interpretation of the language of the text. new subject is compared.
2. The tributary or new subject which is the
* Defined by the Malikis as – the accord of a object of analogy.
deduction with the original text in respect of the 3. The rule arrived at by the analogy.
Illat or effective cause of its law. 4. The cause which brings together the
original subject and the tributary and is
the reason for analogy.

27
Terms to Ponder on Qiyas must it be in the nature of an exception
to some general rule.
1. Rukh – reason of the text which is ➢ An analogical deduction may be founded
technically called the illat or effective on the law established either by a text or
cause. a Quran or Hadith which has not been
2. Hukm – constituent of analogy and the repealed, or by a unanimous decision of
extension of the law to the text which the the learned, it may also be based on
process is applied to is its legal effect. another analogical deduction.
3. Asl – analogy as a source of law being ➢ The deduction must not be such as to
subordinate and subsidiary to the Quran, involve a change in the law embodied in
the traditions and the Ijma, these latter in the text.
the language of Muhammadan lawyers
are called its authorities.
4. Nass – texts. Conditions when Qiyas can be Accepted
a. Only when there is no solution to the
Examples of the Application of Qiyas based matter in the Quran or in the Hadith.
on Quran b. Qiyas must not go against the principles
of Islam.
➢ Wine is prohibited on the ground that it is c. Qiyas must not go against the contents of
intoxicant, therefore whisky is also the Quran neither must it be in conflict
prohibited because it also cause with the traditions of the prophet.
drukeness. d. It must not be strict Qiyas based on either
the Quran, the Hadith or the Ijma.
▪ Wine – original subject
▪ Whisky – object of analogy Terms to Ponder
▪ Intoxication – effective cause
common to both subjects. Taqlid – following the opinion of another
▪ Prohibition is the rule arrived at. without knwoledge of authority of the
opinion.
➢ Depriving the killer from sharing
inheritance from his victim. This rule is Taw’il – literally means interpretation,
extended to the law of bequests. consist in probing into meaning of the
injunctions found in the Quran and the
▪ Inheritance – original subject Sunna.
▪ bequests – object of analogy
▪ killing – effective cause common to
both subjects. Tafsir – literally means explanation, means
▪ Deprivation of the killer is the rule to explain the words given in a text,
arrived at. especially with reference to the Quran, and
the Sunna.

Conditions of Valid Analogical Deduction Ijtihad or Ra’y – individual opinion, when

the opinion is based on any Quranic order or
➢ The law enunciated in the text to which tradition.
the analogy is sought to be applied must
not have been intended to be confines to
a particular state of facts. Subsidiary Sources of Islamic Law (
➢ The law of the text must not be such that Secondary Methods of Ijtihad)
its raison d’ etre (purpose) cannot be
understood by human intelligence nor The past Shafi’i jurists of the 9th Century
appeared to have grouped IJTIHAD WITH

28
ISTIHSAN AND ISTILAH as subsidiary sources Istihsan 

of law, although in the strict sense, the latter two
are, but particular terms or branches of - To act on the stronger of two
IJTIHAD. indications-dalilayn. 


ISTIHSAN “Juristic Equity” or “Preference”— - To formulate a decision which set aside

Advocated by Hanafi School an established analogy for a reason that
justifies such departure and seeks to
Basis of Istihsan uphold a higher Shari’a value. 

Certain verses in Quran such as Quran, XXXIX: REASONS FOR THE USE OF ISTIHSAN
18: Those who listen to the word, and follow the
best meaning (meaning) in it. Those are the - It may happen that the law analogically
ones whom Allah has guided, and those are the deduced fails to commend itself to jurist
ones endowed with understanding. And follow owing to its narrowness and
the best (Ahsan ) of what has been sent down.” inadaptability of the habits and usages of
Also, Sura II, Verse 185: “Allah desires you ease the people and being likely to cause
and good not hardship.” hardships and inconveniences.
- This doctrine is chiefly resorted to in
Hadith from Ibn Mas’ud: “That which Muslim find cases arising out of the complex
agreeable is agreeable to God.” “What the condition of a growing society where a
Muslims deem to be good is good in the sight of strict adherence to analogy would fail to
Allah.” “Haram is neither inflicted nor tolerated meet the want of the people.
in Islam.
MEANING OF EQUITY
MEANING OF ISTIHSAN
Generally, equity means fairness in the
- Gerund of the verb istihsana, prefer or to adjustment of conflicting interest, or the
consider a thing commendable. 
 application of the principles of good conscience
- Derived from the word “hasan” (to make to the settlement of controversies, i.e., natural
good) literally, means considering a thing justice.
to be good, or preferring it, or equitable
preference. 
 ISTIHSAN DISTINGUISHED FROM EQUITY
- Technically, the exercise of private IN COMMON LAW
judgment, not the basis on analogy, but
on that of public good or the interest of - Istihsan is an integral part of the Shari’a.
justice, or seeking the most just solution. while, Equity recognizes a natural law

OTHER DEFINITIONS 
 apart from, and essentially superior, to
- The Hanafis defines it as a principle positive law.
which authorizes departure from an - If equity is defined as a law of nature
established precedent in favor of a superior to all other legal rules, written or
different ruling for a reason stronger than otherwise, then this is obviously not what
the one which is obtained in that is meant by istihsan. For istihsan does
precedent which normally consist of an not recognize the superiority of any other
established analogy which may be law over divine revelations.
abandoned in favor of a superior proof,
that is the Quran, the Sunna, necessity CLASSIFICATION OF ISTIHSAN
(darurah), or a stonger giyas. 
 - Those that carry conviction to the mind of
- The Maliki’s view istihsan as a broad a jurists as being sound;
doctrine which is less stringently confined - Those that appear at first glance to be
to the Quran and Sunna. 
Essence of sound, but do not produce such

29
 conviction in the mind of the jurists. externally obvious Qiyas to an inner and
self-conditioned decision.
EXAMPLES OF ISTIHSAN

BASIS OF ISTISLAH 

- The sale of a non-existing thing namely a
thing which is not in existence at the time - It derives its validity from the borm that
of signing of the contract is void. the basic purpose of legislation (tashri) in
- Bay bi al-wafa (a sale subject to future Islam is to secure the welfare of the
redemption – a type of mortgage) was people by promoting their benefits or by
allowed because of necessity, i.e., the protecting them against harm. 

practical need for such transaction. - It finds its basis in the Quranic verse
- A talaq in death illness even though which states: “God never intends to
purporting to be effected in an impose hardship upon people” (Sura Al
irrevocable manner does not deprive the Maidah [V: 7]) and in the Hadith which
divorced wife from her share in the says: “Harm is neither inflicted nor
inheritance because the husband is tolerated in Islam” (Ibn Majah, Sunan,
trying to evade his obligations and the Hadith No. 2340).
talaq is termed the “divorce of an
escapee”. 
MEANING OF ISTISLAH 

ISTIHSAN DISTINGUISHED FROM RA’Y - It literally means public good. In its legal
IJTIHAD AND QIYAS terminology, it means seeking the best
solution for general interest. 

- Generally, Ra’y refers to individual
- It is a method of analogical deduction
reasoning.
that argues with the demand of “finding
good” for human welfare. 
EXAMPLE OF
- When Ra’y is used by a mujtahid (jurist)
or a qualified person, it is called ijtihad. ISTISLAH
- When it is directed towards achieving - The iumposition of taxes by the state to
systematic consistency and is guided by generate revenues for governmental
the parallel of an existing institution or purposes is intended for public good or
decision, it is called qiyas or analogy, welfare, although in the Shari’a only
zakat is mentioned.
parity of reasoning. 

COMPONENTS OF MASALAH
- When it reflects personal choice and
discretionary opinion of the jurist, guided • Consideration of the need of mankind; 

by the idea of appropriateness, it is called
istihsan or istishah, approval or • The nationality of legal commands and the
preference. 
ISTISLAH OR MASLAHAH responsibility of man; 

(BY IMAM MALIK) 
 Masalih or
maslahah or masalih al- mursalah is from • The protection from harm; and 

the root word hasara meaning benefit. 

ORIGIN OF ISTISLAH 
 • Conformity with the objectives of the 

- Based on the theory of Al-Masalih al- lawgiver. 

Mursala which owes its origin to the
conception that Shari’a is for social, REASONS FOR THE USE OF ISTISLAH OR
utility, and its function is to promote MASLAHAH AL-MURSALAH
benefit and prevent evil. 

- The Hanafis, however, describes it as a -The Companions of the Prophet have validated
concealed Qiyas, a divergence from an it and have formulated the rules of Shari’a on its

30
basis;
 • Masalih mulghan or interest discarded by
Shari’a; 

-When the Maslahah is compatible with the
objectives of the Lawgiver, it must be upheld; • Masalih mursalah or interest ignored by
Shari’a, such as undefined and restricted
-When maslahah is of the genus of the interest. 

approved masalih and it is not upheld, the likely
result would be to inflict hardship on the people, *Only the first kind is considered for the
which must be prevented. application of the doctrine of al-Masduh al-
mursala; the other two are not. However, the
CLASSIFICATION OF MASLAHAH AL-
third one is approved by Imam Malik as a
MURSALAH
method of extension of primary laws.
1. Al-maslahah al-mu’tabarah or accredited
USEFUL PURPOSES WHEN ISTISLAH MAY
maslahah – in which the lawgiver has expressly
BE RESULTED TO:
upheld and enacted a law for its realization,
such as protecting the life by enacting the law of 1) When it meets an absolute necessity (daruri)
retaliation (qisas);
-- e.g. Protection of life; Preservation of
2. Maslahah mursalah proper or unrestricted property
maslahah – these have been the masalih that 2) When it meets no absolute necessity but is
have been validated after the divine revelation merely expedient
came to an end. Such as the claim of marriage,
or ownership in real property, can only be -- e.g. Institution of location, Ijarah
proved by means of an official document has not
been explicitly validated by the Shari’a; 3) When it serves as an end like the promotion
of good morals
3. Maslahah malgha or the discredited
maslahah – in which the lawgiver has nullified
either explicitly or by the indication that could be CONDITIONS FOR THE ADOPTION OF
found in the Shari’a. Such as the attempt to give MASALIH AL-MURSALA:
the son and the daughter an equal share in
1) The case must be pertaining to matters of
inheritance on the assumption that this will
transaction and other social matters
secure a public interest.
2) The maslahah should be in harmony with the
ISTIHSAN AND ISTISLAH, DISTINGUISHED spirit of Shari'a
- The difference of the two is seen only 3) The maslahah should be in case of essential
when we inquire into the guiding ideas and necessary things and not of mere luxury
which forms the positive foundation. 
 4) The maslahah must be rational and
- Istislah is more limited and more closely acceptable to the people of sound intellect
defined in content than istihsan in so far
as it replaces them, in itself only formal, 5) It must prevent or remove hardship from
“finding good” of the latter by the material people
principle of maslahah (useful purpose). 

-
ISTIDLAL
CLASSIFICATION OF INTEREST 

- to infer; inference
• Masalih mutabara or interest recognized in
Shari’a; 


31
- method of juristic deduction by means of 3) A debt is presumed to subsist until its
inferring of one thing from another in order to diacharge is proved
arrive at a rule.
4) Marriage is presumed to continue until its
3 KINDS OF ISTIDLAL dissolution becomes known
1) The expression of the connection existing 5) Ownership on valid title is continued until the
between one proposition and another without contrary is proved
any existing specific effective cause.
6) Freedom from obligation until the contrary is
A. Between 2 affirmative prepositions proved
B. Between 2 negative prepositions
C. Between an affirmative and a negative LIMITATION ON THE RULE OF ISTISHAB
preposition
- Istishab will not apply when there is evidence
D. Between a negative and a positive (dalil) of exiating clear text (nass) or valid rule
preposition (hukm) on the matter which is in no need of
evidence of presumption of continuity.
2) Presumption that a state of things, which is
proved to have ceased still continue.
3) The authority of revealed laws previous to CLASSIFICATION OF ISTISHAB
Islam.
1) Presumption of original absence- a fact or
rule which has not existed in the past is
presumed to be non-existent until contrary is
OTHER CLASSIFICATION S OF ISTIDLAL proved
1) Ibarah or plain sentence 2) Presumption of original presence- takes for
2) Isharah, that is, a sign or hint granted the presence of that which is indicated
by law or reason
3) Dalalah or argument
3) Presumption of the continuity of the general
4) Iqtida or deduction which demands certain rules and principles of law
conditions
4) Presumption of continuity of attributes to
remain so until the contrary is proved
ISTISHAB or CONCORDANCE or LEGAL
PRESUMPTION OF CONTINUITY
EXTRANEOUS SOURCES OF MUSLIM LAW
- literally means seeking for a link; based on the
presumption that a thing which is not proved to 1) Legal Fiction (Fictio Juris)
have ceased, still continues; a rule is adopted - from Roman word "fiction" meaning "false
because of its coherent and permanent averments"
observance and use.
- legal assumption that something which are or
may be false is true
EXAMPLES OF ISTISHAB - not based on reason; depending on individual's
1) Legal presumption of innocence until the discretion
proof of guilt is established based on istishab
2) Things presumed halal (permitted) in the
absence of prohibition

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Presumption distinguished from fiction 1) Hardship begets facilities- which means that
difficulty mitigates liability. Ex: stealing fruits
Presumtion is a rule of law prescribed for the because of hunger.
purpose of getting a certain conclusion through
arbitrary, while a fiction of law assumes for truth 2) Necessity renders prohibited things
what is either false, or at least is probably false permissible- which means that necessity makes
as true forbidden things canonically harmless. Ex: to
drink wine for medicinal purposes.
3) When confronted by two evils, chose the
Some limitations to fiction lesser evil, or when in a state of emergency or
1) that which is impossible shall not be feigned urgency, the less harmful act may be done to
avoid a severe one. Ex: to jettison some
2) that no fiction shall be allowed to work an cargoes in order to lighten the vessel and
injury prevent it from capsizing in order to save lives.
3) a fiction is not to be carried further than the 4) When receiving a thing is forbidden, the
reasons which introduced it necessarily require giving of it is also forbidden.
5) The aversion of harmful should come before
Classification and examples of legal fictions the taking of benefit.

1) Positive - when a fact which does not exist is 6) An act of God does no wrong to no one-
presumed. Ex: fetus in the wife's womb as means no one may be heard answerable for
possesed a juridical capacity for the purposes fortuitous events.
favorable to it 7) An act done by me against my will is no act
2) Negative - when a fact which does not exist of mine.
is ignored. Ex: the fact that natural persons 8) What is just and right is the law of laws.
composes a corporation is ignored in favor of
the corporation being treated as one juridical 9) Innocence is presumed to be the original
person state.

3) Fictions by relations- an act of servant within

the scope of his task assigned by his master is 3) Legislation
considered as though the act of the latter.
- an act of giving or enacting laws

2) Legal Maxims (Similitudes and the like)

Forms of legislation during the time of Prophet
- a general rule which apply to all particular Muhammad
cases
1) By Divine Legislation
- an established principle or proposition
2) Legislation by precepts or examples shown
- a principle of law universally admitted as being by the Prophet of God in words, dress or
just and consonant with reason acquiences, under divine inspiration
Authoritativeness of maxims 3) By the extension of the original text (Quran,
- doctors and students of law define maxims as Hadith) through Ijtihad (exercise of one's
the foundation of the law and the conclusion of reasoning) or individual opinion that later on
reason, and therefore they ought not to be received common consensus of the community.
impugned, but always to be admitted.
Examples of Maxims

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Authority to enact laws
- primarily belongs to God
- the Divine Legislator has delegated the power
to lay down laws by resolution to those men in
the community who are competent in that
behalf.
Legislation distinguished from jurisprudence
- jurisprudence is a rigid science of positive law
concerned with the exposition of the general
principles. Legislation is based upon the
principle of utility that is the greatest happiness
of the greates number which is an accepted
principle of the modern world.

4) Customs (Ada or Urf)

- used to denote customary laws. It is what
people has been accustomed to doing.
- customary laws and practices that are
observed as having the rules of law in the
community.
- usages that has been long accepted
Classification or Types of Customs
1) General- Customs constitute a part of the
common law of the whole country
2) Special- Particular or local custom confined
in a particular class district
Essential elements of Customs
1) It must have the force of law or binding force
or effect upon the community
2) must me generally acceptable to the
community
3) must not be contrary to the Constitution, the
law, public order, public policy or public interest.

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