Introduction to Islamic Jurisprudence PDF

Preview

Summary

IN THE NAME OF ALLAH ALMIGHTY Subject: Islamic Jurisprudence-I Instructor: Tayyab Haneef Program: B.A, LLB (Hons) Lahore Leads University, Pakistan ______________________________________________________ Islamic Jurisprudence (‫)أصول الفقه‬ Course Title: ISLAMIC JURSPRUDENCE-I Course Code: LLB 2301 C...

Description

IN THE NAME OF ALLAH ALMIGHTY Subject: Islamic Jurisprudence-I Instructor: Tayyab Haneef Program: B.A, LLB (Hons) Lahore Leads University, Pakistan ______________________________________________________

Islamic Jurisprudence (‫)أصول الفقه‬ Course Title: Course Code: Cr. Hrs. P/W: Total Cr.Hrs Total Week:

ISLAMIC JURSPRUDENCE-I LLB 2301 3 45 15 week

Introduction/Objectives: The course will elaborate–Islamic Legal theories including their philosophical, historical and sociological basis.-. The Course will cover the history and the growth of the Muslim legal system, the primary and secondary sources of Islamic Law: a). The Quran and the Traditions b).Ijma and customs, Juristic Deduction: a). Qiy'as or Analogy, b).Istehsan or Juristic -preference, c).Istedlal, d).Ijtehad and Taqlid. Course Contents 1. History of the growth of the Muslim legal system 2. Various Schools of Islamic Law 3. Sources of Law a) The Qur’an and the Traditions b) Ijma and customs 4. Juristic Deduction a) Qiy’as or Analogy b) Istehsan or Juristic Equity c) Istedlal d) Ijtehad and Taqlid Assessment Exercise Sessional Work (Quizzes/Test(s)/Assignment(s)/Term Paper, etc.) Mid-Semester (Mid Term) Examination Attendance / Participation in Course End of Semester (Final) Examination

Per cent Marks 25% 30% 5% 40%

Recommended Reading: 1. Coulson, N. J. A History of Islamic law. Edinburgh: University Press, 1964, (2006 rpt.) 2. Engineer, Asghar Ali. Islam: Misgivings and History. New Delhi: Vitasta, 2008. 3. Faruki, Kemal A. Islamic Jurisprudence. Karachi: Royal Books, 2003 (rpt.). 4. Hassan, Ahmad. The Early Development of Islamic Jurisprudence. Islamabad: Islamic Research Institute, 1970. 5. Khadduri, Majid. (Tr.) Al-Shafi’i’sRisala(Treatise on the Foundations of Islamic Jurisprudence. Cambridge: Islamic Text Society, 2008 (rpt.) 6. Nyazee, Imran A. Khan. Outlines of Islamic Jurisprudence, 4th edn. Islamabad: Advanced Legal Studies Institute, 2008. 7. Nyazee, Imran A. Theories of Islamic Law. Islamabad: Advanced Legal Studies Institute, 2007. 8. Rahim, Abdur. The Principles of Islamic Jurisprudence. New Delhi: KitabBhavan 2006. (rpt.). 9. Schact, Joseph. An Introduction to Islamic Law. Oxford: OUP, 1983.

Modern Arabic Works:  'Abd al-Wahhab Khallaf's 'Ilm Usul al-Fiqh

 Abu Zahrah's Usul al-Fiqh

 Muhammad al-Khudari's Usul al-Fiqh  Badran's Usul al-Fiqh al-lslami

Tayyab Haneef

1

Lahore Leads University, Pakistan

Introduction to Islamic Jurisprudence: The Prophet (peace and blessings be upon him) said, Whomever Allah wants good for, He will grant him fiqh (deep understanding) of the religion. (Sahih Bukhari )

All Muslim Jurists are unanimously agreed that every word and action of a man though related to worship, trade, crime, and politics or even to personal life, has legal ruling (Hukm) under Islamic Law. From these legal rules (Ahkam), some of them explicitly have been described in the text of Quran and Sunnah and some legal rules are not mentioned, however guidance has been provided to Muslim Jurists (Mujtahideen) to find and explore in the light of Quran and Sunnah. The study and exploration of these legal rules by Muslim Jurists may be called as Islamic Jurisprudence. Islamic Jurisprudence is the study of Islamic law. It is a type of science that explores the creation, application, and enforcement of laws. It is the study of theories and philosophies regarding Islamic law. If we understand the theories and philosophies behind law, then we can better understand laws. Islamic Jurisprudence (Usul al Fiqh) discusses both the sources of Islamic law and the law. Primarily Islamic Jurisprudence deals with the sources or roots of Islamic law. Islamic Jurisprudence deals with the primary sources of Islamic law, the Quran and the Sunnah, and what are the methods of deduction of law from primary sources. It also discusses the secondary sources of Islamic law, the Ijma (consensus), Qiyas (analogical deduction), Istihsan (Juristic preference) and other methods of Ijtihad (reasoning and investigation) etc. All the secondary sources are either directly or indirectly based on the primary sources of Islamic law, the Quran and the Sunnah. Example: The Science of Usool al-Fiqh is about the method by which rules are deduced from indications (evidences), so imagine a man thinking of a way to pick a fruit from a tree! The man is the mujtahid; the tree is the source/ evidence; the fruit is the hukm (ruling) and the method of picking is the procedure of deduction. 1234-

The Rules (Fruit) The Sources (Tree) The Rules of Interpretation (Istinbaat)/ Implications (Dalalaat) (Method of Picking) The Interpreter (al-Mujtahid) and His Work (Ijtihaad) (Man)

Importance: The benefits of the study of Islamic Jurisprudence are many. From a study of Jurisprudence, we come to know the methods of interpretations of the Quran and Sunnah, all the secondary sources of Islamic law, the views of major scholars of the past and present, the rules of Qiyas and other methods of Ijtihad, the history of development of Islamic law and legal theory. All these make anybody who studies Islamic Jurisprudence cautious in approach to Islamic law. The need for the methodology of usul al-fiqh became prominent when unqualified persons attempted to carry out ijtihad, and the risk of error and confusion in the development of Shari'ah became a source of anxiety for the Ulama. This subject has much importance because deduction (ijtihad) of an authentic Muslim jurist is applicable on every Muslim to follow the rules laid down by him. The Muslim Ummah can produce great mujtahid only by study of Jurisprudence in addition to other sciences. No Muslim can do Ijtihad or interpret Islamic law without having command on this subject. A Muslim, who has command on Islamic Jurisprudence, is called Tayyab Haneef

2

Lahore Leads University, Pakistan

Mujtahid. The principal objective of Islamic Jurisprudence is to regulate Ijtihad and guide the jurist in his effort at deducing the law from the sources. Literal Explanation Islamic Jurisprudence and Usul al Fiqh are used as synonyms. Both terminologies are interchangeable, but they have slight differences in their origins and meanings as following: Uṣūl al-fiqh (‫)أصول الفقه‬ comprises the conjunction of two Arabic terms, usool and fiqh. Usool is derived from the root word ASL (Usul is plural of Asl) which refers to the bases or roots (principles or rules) of Islamic Law. Fiqh linguistically refers to knowledge, deep understanding or comprehension. Thus, it is the knowledge of fundamentals of Islamic law. Islamic Jurisprudence : The word jurisprudence is derived from a Latin maxim as referred 'jurisprudentia'.It is a combination of two words 'juris' which means 'law' and 'prudence' which means 'knowledge' or 'skill'. Therefore Islamic jurisprudence is the study, knowledge, skill and theory of Islamic law. Jurisprudence includes principles behind law that make the law. Fi h: 'k o ledge of the p a ti al ules of Sha i’ah a ui ed f o

the detailed e ide e i the sou es'.

Fiqh, is the law itself whereas usul al-fiqh is the methodology of the law.

Legal Definitions Islamic Jurisprudence can be defined in many ways: )mam )bn al (ajib in his book Mukhtasar al-Muntaha , states as

They are the principles by the use of which the Mujtahid(Jurist) derives the legal rules of conduct from the specific evidences This definition explores that Islamic jurisprudence is a body of principles of interpretation by the help of which the Mujtahid is able to derive the law from the detailed evidences in the Quran, the Sunnah , Ijma and Qiyas. )mran Ahsan Nyazee describes in his book )slamic Jurisprudence as

The discipline imparting a knowledge of the sources and principles of interpretation and of legal reasoning that helps the jurist arrive at the legal rules of conduct Islamic jurisprudence may be defined as Science of basic principles of )slamic Law

It is very pertinent to mention here that some of the scholars have pronounced Islamic Jurisprudence incorrectly as the principles of Muhammadan Jurisprudence or Muhammadan Jurisprudence or Muhammadan Law which is wrong under Islamic law, because it is not the law of man Muhammad PBU( but the law of God Allah Almighty. To conclude we can say that Islamic Jurisprudence is the study and critical analysis of the origins, sources, and principles upon which Islamic law is based.

History of the Growth of the Muslim Legal System: History of the Growth of the Muslim Legal System is the study of how Islamic law has evolved and why it changed. History of the Growth of the Muslim Legal System is different from the Islamic history. We are concerned here not with history but with growth and development of law. We examine the foundation of the legal schools through a historical analysis of )slamic law in the era of the Prophet, rightly guided caliphs, tabi in, and the great imams. We will explore the process of the development and refinement of a legal school and why following a legal school is the best option to implement Islam in your life. Tayyab Haneef

3

Lahore Leads University, Pakistan

We can divide the whole development of Islamic law during the past 1500 years into five periods. The first period begins from the date when the Prophet Muhammad (PBUH) was inspired by the first revelation and terminates with the end of Prophetic career. The second period starts with the period of the first Caliph and covers the reign of four Caliphs. The third period marks the beginning of the four Sunni schools of thought and then the fourth period begins where the period of Sunni schools of thought ends. The fifth and final period starts with the twentieth century and is going on till today. 1) Legislative Period The first period commenced when the Prophet Muhammad (PBUH) was guided by the first revelation by God and ended with his death. The prophetic era, comprising the life of the Prophet (peace be upon him), saw the completion of the edifice of the Shariah (Islamic Law) and the completion of the religion. The prophetic period (610-32 A.D)-the whole Quran was revealed and the Prophet explained and reinforced it through his own teaching and practice, the Sunnah. The Qur'an became the first source of Islamic Law. It was that period during which not only the Qur'an became Law for public, but also were the precepts of the Holy Prophet (PBUH) made available to the Muslim community as a second source of Islamic Law. It is the embodiment of the dictates of the Allah Almighty who is considered in Islam to be the supreme Legislator. It was the time when laws were enacted by the divine legislator and promulgated in the words of the Quran, or by the percepts of Muhammad(PBUH) as Sunnah. It is for this reason that this period is known as the " Legislative period in Islam". There was no need for speculative legal reasoning (ijtihad) simply because the Prophet himself provided definitive rulings on issues as and when they arose. The traditions of the Prophet Muhammad (PBUH) are no less important both in respect of their source as well as in their nature, as they are regarded as having in them the element of divinity. Qur'an and Tradition, which format the basis of Islamic Law, laid down many principles and introduced new reforms in all fields of law in civil, criminal and constitutional laws the ages of darkness: 2) Interpretation Period The second period is the era of the Prophet's Companions , the rightly guided Caliphs on 11 A.H, (632-61 A.D) and their successors ( Tabiun) and ends with the foundation of different schools of jurisprudence. This period is considered the preliminary stage for the codification of Islamic Law. It w as an age is as has been observed mainly of collection, interpretation, supplementation of the textual subject and extension of Islamic laws by collective deliberations. In this period fiqh and ijtihad find their historical origins. The Companions of the Prophet took a rational approach toward the textual materials - the Quran and the Sunnah. The divine law (Qur'an and Traditions) was developed by dint of hard effort and literal devotion by the Caliphs towards the ordinary sources of Islamic Law. Speaking of the development and growth of Muslim legal system in generally one should note that during A.H 11 or A.D 632, with the end of the Prophetic career, the community was left only with the Qur'an and the Sunnah of the Prophet (PBUH) for its guidance. The people eventually had to look to the trusted lieutenants of the Prophet (PBUH) Hazrat Abu Bakar, Umar, Usman and Ali (R.A). These pious people in turn had to decide matters in the light of the Qur'anic Injunctions and precepts of the Prophet (PBUH). If they felt a particular point was not sufficiently covered by the Qur'an or Traditions, they had to decide the matter in the light of Quran and Sunnah through reason. Another safe and reliable method, evolved by these companions, was the unanimous verdict of the group of the learned personalities known as Ijma. Ijma means the consensus of the learned people on any Tayyab Haneef

4

Lahore Leads University, Pakistan

question of Law. Hence, consciously or unconsciously Ijma as a third source of Islamic Law, developed in this period. Even the election of the first caliph viz. Hazrat Abu Bakar (RA) as the chief executive of the community, was based on consensus. There was Ijma on the Qur'an and the Traditions as very sound and solid sources of Islamic Law. Subsequent to the introduction of Ijma, as a method of reasoning, the use of Qiyas, i.e. analogy, also developed to a certain extent. The period of Caliphate the age of rightly guided Caliph, was the golden age of Islam. It is this period which has witnessed the rise and fall of the institution of Caliphate: it is the second phase in the development of Islamic Law which is marked by the emergence of Ijma and to a certain extent Qiyas as a source of Islamic Law. The administrative decrees issued by the early Caliphs supplied answers to many legal problems. 3) Scientific Period The third period starts from the beginning of the second century A.H to the middle of the fourth. During this stage, the codification of Islamic Law was completed. At this stage, Islamic Law became a distinct science of its own that scholars would specialize in. Schools of thought were formed in this period, which is the stage that Islamic Law as a science was established. The Islamic schools of thoughts were developed as a natural evolution in the Umayyad and Abbasid time. In initial stage, the emergence of two schools of legal thought that left a lasting impact on the subsequent development of Muslim Legal system: (1)Traditionists (Ahl al-Hadith), who were centered mainly in Mecca and Medina in the Hejaz, and (2) the Rationalists (Ahl al-Ray), who were active in the Iraqi cities of Kufa and Basra. Whereas the Traditionists relied mainly on textual authority and were averse to the use of personal opinion (ray), the Rationalists were inclined, in the absence of a clear text, toward a more liberal use of personal reasoning. During this process came the downfall of Umayyad dynasty which was replaced by Bani Abbas. This dynasty was more awakened to learning and gave due encouragement developing the science of jurisprudence. It was in the reign of Bani Abbas that the four Sunni schools of law were founded. Imam Abu Hanifah was the most outstanding jurist of the four and he was responsible for developing the theory of Istehsan known as "Juristic Preference: which, eventually emerged and established itself as a source of Islamic Law. While Abu Hanifah was the first to have started the study of jurisprudence as a separate science, Imam Shaf'i was a pioneer in writing a book on jurisprudence. He promoted the idea of studying Fiqh and Traditions from the technical point of view and himself worked intensively in the same direction Hazrat Imam Malik is known by his "doctrine of public good". Imam Shaf'i accepted Qiyas and extensively used it to deduce rules of Law. As a whole this period was the most glittering, in this period there came, into use economic terminology, a boom for knowledge and evolvement of new theories and formulas to meet the requirements of the time. To sum up, we can say that in this age the compilation of Traditions was undertaken: Fiqh as a science of Islamic thought was studied, Commentaries were written both on Qur'an and Tradition and the fullest use was made for the development of legal notion. The most outstanding among them are known as the Imams of Tradition, as distinguished from the Imams of jurisprudence. We refer here to Abdullah Muhammad Abu Ismail al-Bukhari, Commonly known as Bukhari, who devoted his life to the scientific investigation of Traditions. Along with Bukhari, the names of Muslim Bin al Hajjaj, Tirmizi, Abu Daud, Ibn-eMajah and Nisai are noteworthy.

Tayyab Haneef

5

Lahore Leads University, Pakistan

All four Islamic schools of thoughts, (anafi, Maliki, Shafe i and (anbali, are respected as valid legal schools of Islam that have arrived through their analysis of the Qur'an and Sunnah. In fact the differences between the schools are considered a blessing in disguise as it gives freedom of choice to the people as per their personal inclination. 4) Period of Taqleed The Fourth phase in the formative history of fiqh began around 950 A.D, after the close of third century of the Hijrah. This period is characterized by the institutionalization of the dominant schools, with emphasis not on new developments but on following precedent (Taqleed). The jurists occupied themselves with elaboration and commentaries on the works of their predecessors. By far the longest phase, this period lasted for about nine centuries and witnessed the downfall of the Abbasid and Ottoman Empires, the expansion in the military and political powers of the West, and the industrial revolution and colonial domination of Muslim lands by European powers. 5) Period of Renaissance The Fifth and final period in the development of Muslim legal system began at the turn of the twentieth century. It is marked by less emphasis on precedent and greater emphasis on original thinking and the quest to make the Shariah once again relevant to the social reality and experience of contemporary Muslims. The revivification of fiqh and its necessary adjustment to respond to the prevailing needs of society is generally seen as an important component of the Islamic resurgence of the recent .During this period, studies in Islamic Law broadened considerably, especially in the field of Comparative Law and in the critical study of the major classical works in the field. In modern times legal interpretation or reasoning has occurred in the following three ways: statutory legislation, judicial decision and learned opinion (fatwa), and scholarly writings. That is why it is rightly said that if the Qur'an and Tradition are legislation, and Analogy is common law, Istihsan becomes equity. In the 1967 case of Khursid Bibi vs. Muhammad Amin, the supreme court of Pakistan's decision to validate a form of divorce, known as khula, that can take place at the wife's initiative, even without the consent of the husband, can be cited as an example of judicial ijtihad.

Various schools of Islamic Law Sunni Schools of Thought Introduction The Prophet (peace be upon him) did not leave this world until after the structure of the Shariah was completed and its basis and general principles fully outlined. This has been established by a clear text from the Quran: DzThis day I have perfected for you your religion and completed My favor upon you and have approved for you Islam as religion..dz (AlQuran 5:3) At the same time, the Prophet (peace be upon him) did not leave for his Companions a fully codified Law. He left them with only a collection of principles and general rules and a number of specific injunctions and judicial verdicts that are found in the Quran and Sunnah. It was left on Muslim scholars to guide p...