Introduction to Malaysian Islamic Legal System PDF

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Concept of Islamic Law Islamic law: A comprehensive system covering the human being’s relationship with his Creator, with his fellow human beings, and with his society and nation. Shari’ah - Definition - Literal meaning: The path to be followed - Technical meaning: The direct revelation of Allah SWT...

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Concept of Islamic Law Islamic law: A comprehensive system covering the human being’s relationship with his Creator, with his fellow human beings, and with his society and nation.

Shari’ah - Definition - Literal meaning: The path to be followed - Technical meaning: The direct revelation of Allah SWT to mankind which Muslim scholars have derived from ethical guidance. - Conceptually refers to a set of rules, regulations, teachings and values, which covers every aspect of life, governing the lives of mankind. - It aims at regulating the relationship of man with Allah SWT and man with man. - It prescribes a complete set of law for mankind as a form of guidance in order for good (ma’ruf) to triumph and evil (munkar) to disappear from the society. - It provides a clear and straight path to progress and fulfilment in life, as well as the attainment of Allah’s pleasure. - It is complete, perfect, and guarantees mankind success in welfare and peace in life on Earth and in the Hereafter. - It is permanent and does not change with time. “We made for you a law, so follow it, and not the fancies of those who have no knowledge.” (65:18)

Shari’ah can be divided into three commandments: - Al-ahkam al-I’tiqadiyyah (sanctions relating to beliefs) - I’tiqad literally means belief. - There are three types of I’tiqad: - I’tiqad qadariah: The belief that the human conduct, whether right or wrong, has nothing to do with Allah. - Denies the absolute sovereignty of Allah. - Allah does not know mankind’s plans or future, and will only know of such conduct once it has been done. - I’tiqad jabariah: The belief that everything that happens is under Allah’s powers. - God has chosen someone to be good or bad. - Faith becomes sufficient only through the intentions of faith. There is no requirement to prove faith through prayers etc. - Committing sins will not affect a person’s faith. - A form of deviant teaching where a person would tend to claim to be a Messenger, to receive revelation, to have met the Prophet etc. - I’tiqad Ahli Sunnah wal Jamaah: The belief that everything happens because of Allah’s planning together with what man chooses to do. - Belief in Allah and the Hereafter - Belief that human conduct is arranged by Allah, but humans can change it through effort. - Belief that faith includes intention and practice. - Al-ahkam al-Akhlaqiyyah (sanctions relating to moral and ethics) - Akhlak refers to the practice of virtue, morality and good manners. - It is the source of all the activities that man performs spontaneously without thought. - A certain disposition may appear in human beings due to: - Natural and physical make up (Fitrah)

- Habit (Ada): Formed due to continual repetition of certain acts and causes a disposition to emerge. - Practice and conscious effort: If prolonged it will eventually form a disposition. - Since man has the power to choose, he can overcome the dictates of his physical nature through practice and effort to acquire the disposition of his choice. - Al-ahkam al-‘Amaliyyah (sanctions relating to the sayings and doings of individuals, and his relation with others) - Also known as Fiqh - Amal: Actions that we perform, or are about to perform that will please Allah or the Prophet. - Hadith narrated by Abu Umma: A man once approached the Prophet and asked, “What of a man who joined us in fighting, his intention being for fame and booty?” The Prophet said, “He receives nothing.” The man repeated the question three times, and each time the Prophet gave the same answer. Then he said “Allah only accepts actions that are intended purely for His pleasure.” - There are two kinds of amala: - An act whose pleasure passes away but its consequence remains. - An act whose hardship passes away but its reward stays.

Fiqh - Definition - Literal meaning: Knowledge or understanding about something - Technical meaning: Knowledge of practical legal rules deduced from the detailed sources of Shari’ah. - A complementary expansion of Shari’ah by the Islamic jurists or a body of law. - Concerned with the knowledge of the detailed rules of Islamic law in its various branches. - There are two categories of fiqh rulings: - Fiqh al-Ibadah: Rulings which govern the relationship between man and Allah, and are derived from the Qur’an and Sunnah. - It can be further sub-divided into four sections: - Rulings related to prayer: From the performance of ablution up to actions which can invalidate a prayer. - Rulings related to fasting: Covers the obligation of fasting during Ramadhan and other kinds of optional fasting. - Rulings related to almsgiving (zakat): Cover the obligatory almsgiving (zakat al-fitr) and other forms of almsgiving. - Rulings related to hajj: Covers all rulings related to the performance of hajj. - Fiqh al-Muamalah: Rulings deduced from the understanding of scholars or Islamic jurists from the Qur’an, Sunnah, and other sources of Shari’ah, which govern the relationship between man and man, and between man and other creatures. - These rulings change according to time, place and circumstance. - They provide the suitable penalty for those who transgress their limits and go against the rulings.

- These rulings can be further sub-divided into several sections: - Rulings related to family law: marriage, divorce, inheritance etc. - Rulings governing commercial transactions: sale and purchase agreements, leasing etc. - Rulings concerning the management of finance: source of income, financial institutions, banks and insurance etc. - Rulings related to the administration of justice: court procedures, appointment of judges etc. - Rulings governing the rights of non-Muslims: obligations and responsibilities to protect the rights of non-Muslims and minorities. - Rulings determining the relationship with a foreign government: diplomatic missions etc. - Rulings governing the Islamic political system: rights and responsibilities of citizens, constitution of the country etc. - Rulings under the Islamic criminal law: punishment for those who commit crime. - Other rulings governing the relationship between man and other creatures: environmental protection, animal rights etc.

- Fiqh Rulings - Fardh/Wajib (compulsory): These obligations are binding and it is established through definitive proof in the Qur’an and Sunnah. If a Muslim neglects performing such obligations they would be punished, both in this world and in the Hereafter. - There are two types of compulsory acts. - Fardh Ayn (Fardhu Ain): Individual obligations which needs to be performed by each individual such as the five daily prayers. Disobedience amounts to a sin. - Fardh Kifayah (Fardhu Kifayah): Collective responsibilities, whereby if a group of people undertake to do the obligation the rest will not be held responsible for it. If no one carries out this duty, the entire community will bear the sin of omitting it. - Sunnah (recommended): Deeds recommended to be performed by Muslims. - Sunnah Mu’akkadah/Mandoob: Acts of the Prophet which were performed regularly, and are highly recommended to be performed by Muslims. Omitting such acts would be frowned upon, but it is not a sin. - Sunnah Ghayr Mu’akkadah/Mustahab: Acts of the Prophet which were performed, but sometimes omitted without excuse, and are merely recommended to Muslims. Omission of such acts will not be considered as a sin. - Mubah (permissible): Acts whose commissions and omissions neither merits any reward nor entails any punishment. No Shari’ah injunctions are attached to it. It is up to the personal discretion of a Muslim, whether to do the act or not. - E.g: sitting, standing.

- Makruh (discouraged, undesired): Acts whose omission is preferable and highly commanded. - E.g: Divorce: “The most abominable of permissible things in the sight of Allah is divorce.” - There are two types of Makruh acts: - Tanzihi: Less desired, and closer to being permissible. - Tahrimi: Closer to being haram. - Haram (prohibited): Acts which are prohibited through decisive proof in the Qur’an and Sunnah. - There is punishment for its performance, and rewards for avoiding it. - E.g: Killing, adultery, gambling. - Taking the property of orphans: “Those who unjustly eat up the property of orphans, eat up a fire in their own bodies: they will soon be enduring a blazing fire!” (4:10)

The difference between Shari’ah and Fiqh Shari’ah Shari’ah is derived from the Qur’an and Sunnah. The scope of Shari’ah is wider, as it contains 3 major components: AlI’tiqadiyyah, Al-akhlaqiyyah and Alamaliyyah. Shari’ah is fixed and cannot be changed. Shariah is based on revelations in which knowledge is obtained from the Qur’an and Sunnah.

Fiqh Fiqh is derived from Shari’ah. Fiqh itself is a component of Shari’ah, that is Al-amaliyyah.

Fiqh changes with time and according to circumstances. In Fiqh, the power of reasoning is stressed and deductions based on knowledge are continuously referred to with approval. Shari’ah does not contain human Fiqh contains human elements, such elements as it is completely based as the deduction of rules based on Ijtihad. on the revelation from Allah. In an action in Shari’ah, there are In Fiqh, an action can only fall under various degrees of approval and either of the rulings. disapproval. Shari’ah is broad and general. Fiqh focuses on narrow and specific issues in Islam.

Usul fiqh

- Definition: - The methods by which the rules of Fiqh are deduced from their sources. - Provide the standard criteria for the correct deduction of the rules of Fiqh form the sources of Shari’ah. - Importance: examines the sources of Islamic law, the methods that must be used to deduce the rules, and the person legally qualified and equipped to deduce such rules. - Fakhr al-Din in his work al-Mahsul stressed the importance of usul fiqh: It is the most important science for the mujtahid. - The methodology of usul fiqh refers to Ijtihad (methods of reasoning), such as qiyas, istihsan, istishab, ‘urf, and sadd al-dharai’. - The principle objective is to regulate Ijtihad and to guide jurists in their effort at deducing the law from its sources. - Its purpose is to help jurists obtain an adequate knowledge of the sources of Shari’ah and of the methods of juristic deduction and inference. - It also regulates the application of the sources of Shari’ah, which assists jurists in distinguishing which method of deduction is most suitable in order to reach a ruling. - It enables jurists to ascertain and compare the strength and weakness in Ijtihad and give preference to the ruling of Ijtihad which is the best.

The difference between Man-made law and God-made law

Man-made law Man-made laws are legislated when there is a need for it. These laws start from a few and then grow in number over years. Man-made laws are not permanent. They can be amended or repealed according to time and circumstances. E.g: In a particular country at a particular time, drinking alcohol may have been banned, but this can change when public pressure grows. Man-made laws cannot stand the test of time as mankind does not have knowledge of the future. Man-made laws may only be suited for a particular country or nation. They are not universal.

God-made law Islamic law is much broader in scope, complete, covers all aspects of human life/law and is unprecedented in the history of Law. Islamic law has a permanent character. It does not change with time and circumstances. E.g: Drinking alcohol and gambling are forbidden under Islamic law. This cannot be changed.

Allah is All-Knowing and AllPowerful. His laws cover matters in the present and the future. Islamic law has a global character as it is the final, divinely revealed Shari’ah for the whole world. Thus, it is universal. Man-made laws are the creation of Allah SWT is the Creator and His laws mankind, which is a created species. are for those he has created. Mankind make laws to suit their own Allah SWT is above all needs. His laws are for the good of all mankind. needs. Man-made laws shape the society. The society is shaped by Islamic law.

Historical Development of Islamic Law At the time of the Prophet

- The period during which the Prophet and his senior Companions lived and the creation of the laws of Shari’ah took place. - The function of the Prophet was to deliver the laws of the Shari’ah to the ummah. - The Prophet had no authority to create the laws of the Shari’ah as he was commanded to judge people based on the revelation given by Allah. - When there was no authority to refer to, the jurists and mujtahids who came after the Prophet were also not in a position to create the laws of Shari’ah. - They were merely meant to discover and not create it. - The sources of Shari’ah during this period: 1. The Qur’an - Revealed through a period of approximately 23 years. - Began with the coming down of the divine revelation to the Prophet and ended with the Prophet’s demise. - The aim of Islam at the time was to change the corrupt beliefs, standard of morality, and the entire social order and customs which were widespread in pre-Islamic Arabia. - The revelation of the Qur’an could be divided into two parts. - The Makki (parts revealed in Mekah) which concentrated on two subjects: - The reformation of the corrupt beliefs of the people - The annihilation of evil in order to instil excellent morality and upright principles sanctioned by Islam - The Madini (parts revealed in Madinah) which focused on the creation and application of a stable legal system: - The legal rules regulating the relationship between individuals were formed.

- The Madini verses were revealed in piecemeal to make clear a rule regarding an incident; to answer a question raised; to decide a lawsuit. - Scribes were ordered by the Prophet to record the revelation by writing down what was revealed to him after he had recited it to his Companions and after they had memorized it. - These scribes also wrote down copies for themselves of what they had written down from the Prophet. - The writings were completed and protected in the Prophet’s house before his demise. 2. The Sunnah - To explain, interpret and provide the details of the Qur’an. - Some were uttered by the Prophet according to happenings and emergence of problems, some in response to questions, and some as a legal verdict or a decision of a lawsuit. - It was not recorded in the same manner as the Qur’an, but was merely narrated and memorized by the Companions until it was transmitted to subsequent generations. 3. Ijtihad - The ijtihad exercised by the Prophet and his Companions during the prophetic period is considered as a source. - Ijtihad was exercised by the Prophet to know the rules of Shari’ah through explanation of the meaning of the Qur’anic verses. - To draw an analogy between the cases not covered by divine revelation and those which were revealed.

The Era of the Righteous Caliphs - The period during which the senior Companions of the Prophet lived.

- There were two factors which greatly affected the development of Islamic law in this period: - The expansion of the area of Islamic State - The large increase in Islamic territories; the influence of the Muslims had extended to Persia, Iraq, Syria and Egypt where their customs and usages varied from that of Arabs. - There was also a large increase in legal wealth through new rulings of new incidents and legal cases. - The mixing of the Arabs with others - The Arabs and the people of the lands they had conquered mixed together and caused new transactions and relationships, which were not known during the Prophetic period, to exist. - The sources of Islamic law during this period 1. The Qur’an - When the Prophet died, the Qur’an was preserved in people and scattered in copies. - When the first Caliph, Abu Bakar, sent out the troops for jihad, the Muslims were afraid of the loss of a part of the Qur’an by the death of those who had learnt it by heart. - Abu Bakar selected Zayd bin Thabit, who then began collecting the parts of the Qur’an from the private copies of the people. - It was preserved in the custody of Abu Bakar during his lifetime, and was then passed on to the second Caliph, Umar al-Khattab. - During the time of the third Caliph, Uthman bin ‘Affan, there were disagreements on the dialect of the Qur’an and several versions of the Qur’an came into existence. - Uthman then thought to unite the people on the true copy of the Qur’an collected by Zayd bin Thabit

- He distributed it among all the cities by sending copy of the Qur’an to every province so that no disagreement the Qur’an would arise among them. - He then ordered for the other versions of the Qur’an to be burnt. - Uthman managed to unite the people on the reading of the Qur’an so that they would not differ among themselves in regards to its dialects. 2. The Sunnah - The Companions unanimously agreed that when the Sunnah is proved to have been transmitted from the Prophet, it becomes an obligation to act upon it. - In order to ascertain the genuineness of the Prophet’s tradition: - Abu Bakar and Umar accepted the tradition from the Prophet only when it was confirmed by another transmitter. - Ali bin Abi Talib asked the narrator to take an oath that he had heard the tradition from the Prophet. - The Companions were strict in transmitting the traditions of the Prophet and hated their frequent transmission: - They feared that people would turn away from the Qur’an - They feared that their great interest in relating the traditions might lead them to error or forgery in the Sunnah. 3. Ijtihad - The Companions exercised ijtihad in seeking a rule about a new case, and would then come to an agreement on a certain opinion (Ijma’). - The Companions had various methods in ijtihad. - They exercised ijtihad in the interpretation of the text if it was found for the application to the problem. - They exercised ijtihad in the absence of the text.

- In exercising ijithad, there were also many causes of disagreements among the Companions. - However, the problems where disagreement arose between the Companions were much less than that in the subsequent ages. - Where a problem existed, the Caliphs easily gathered the jurist Companions as they had not dispersed into different countries as what happened later on. - As traditions (Sunnah) were rarely narrated during this period, and its frequent narration was hated by the Caliphs, disagreement in ijtihad was weak. - New problems did not increase largely as they did later on. - The jurist Companions used to restrain themselves from giving a legal opinion out of fear of making a mistake. - They only provided a legal opinion when the problems actually existed, and did not provide an opinion about problems that did not actually arise. Contributions of this era: - Abu Bakar as-Siddiq - Declared war against Muslims committing apostasy. - Umar al-Khattab: - Establishment of a Majlis Syura: a committee that specialises in appointing new caliphs. - A post of governor for each Islamic district to help ensure the effectiveness of the government. - Establishment of other posts: Chief secretary, police officers, chief judge, tax officers. - Incorporated land law into the legal system to make it more systematic. - Arranged the revenue and wealth of the country to enhance its defence. - Introduced and infused the Hijrah Calendar into the legal system.

- Uthman bin Affan - Collected and booked the Qur’an, making to easier to refer to. - Expansion of the Islamic navy and army. - Ali bin Abi Talib - Took the role of leading the government when it was at the peak of chaos.

The Era of the Caliphates of Umayyad The main concern was not with religion and religious law; instead, it was with political administration. - This era represented the organizing, centralizing, and increasingly bureaucratic tendency of an orderly administration. - Islamic religious ideal and Umayyad administration co-operated in creating a new framework for Arab Muslim society, which had been recruited indiscriminately from the Arab tribes and was spread thinly over the vast extent of the conquered territories. - Through this, the Islamic administration of justic...