Islamicjurisprudencetii 1stassignment-170924195701 PDF

Preview

Summary

Islamic jurisprudence notes...

Description

9/25/2017

ACTS AND OBLIGATIO ISLAMIC JURISPRUDENCE II

1 | Page ACTS AND OBLIGATIONS Shari`ah has been loosely defined as “Islamic law” and so has fiqh. These terms are not synonymous either in the Arabic language or to the Muslim jurists. A. Shari`ah literally means a waterhole, the source of life, or the straight path as in the Quran. B. Terminologically, it refers to the sum total of Islamic laws which were revealed to the Prophet Muhammad (S.A.W), which are recorded in the Qur’an as well deducible from the Sunnah of the Prophet. C. In short Shari`ah is the whole teaching of Islam itself that covers both matter of belief (aqidah) and laws (fiqh). Usul Al Fiqh The term usul al-fiqh composed of two terms, usul and al-fiqh. 1) Usul: Basis, origin, root, foundation and sources. Something from which another thing originates, or something upon which another thing is constructed. 2) Fiqh: Literally means understanding and knowledge of the law. Terminologically, fiqh means the knowledge of the legal rules (hukm or ahkam al-Shari`ah), pertaining to conduct, which have been derived from their specific sources for example; the five daily prayers are obligatory (wajib), usury (riba’) is prohibited (haram), and marriage is permissible (mubah). Wajib, haram and mubah here are the legal rules. These rules are derived from specific provisions in the sources or through ijtihad which is regulated by usul al-fiqh. Usul al-fiqh or Islamic jurisprudence generally explains the origin and nature of Islamic law as well as the structure of its legal system. In Islamic legal system, a rule of law in order to be valid has to be derived from the sources of Islamic law. This is accomplished by acceptable system of interpretation. Usul al-fiqh imparts instruction about the available systems of interpretation and their proper use.  Rules of law in the Shari`ah can be generally divided into two types: 1. The rules relating to belief (i`tiqad) like the existence of God, the mission of the Prophet, Day of Judgment, sin and reward, hell and heaven and so on. 2. The rules relating to act (conduct) which includes physical acts, the acts which take place in the heart and mind (intention, love, hate, jealousy etc), and those that relate to speech or acts arising out of spoken words.

2 | Page MAHKUM FIH (THE ACT) For the existence of obligations (taklif) two important conditions need to be fulfilled: a) The act that should be performed or avoided must be known. b) The act should be able to be performed by the subject. Mahkum fih denotes the acts, rights and obligations of the mukallaf which constitute the subject-matter of a command, prohibition or permissibility. When the ruling of the Lawgiver occurs in the forms of either wajib or mandub, in either case the individual is required to act in some way. Similarly, when the hukm of the Lawgiver consists of a prohibition (tahrim) or abomination (karahah), it is once again concerned with the conduct of the mukallaf. In sum, all commands and prohibitions are concerned with the acts and conduct of the mukallaf. When the demand of the Lawgiver occurs in the form of a defining law (al-hukm altaklifi) such as fasting, jihad, and the payment of zakah, etc., the subject-matter of the hukm is the act of the mukallaf. Similarly, when the demand of the Lawgiver occurs in the form of declaratory law (al-hukm al-wad`i), Principles of Islamic Jurisprudence ~  Kamali 299 Killing which is a hindrance (Mani`) to inheritance, the subject-matter of hukm in all these consists of the act of the mukallaf. Occasionally, the Mahkum fih does not consist of the conduct of the individual, but even then it is related to it. For example, the arrival of Ramadan which is the cause (sabab) of fasting is not an act of the individual, but is related to the latter in the sense that the effect (musabbab) of that cause, namely the fasting, consists of the act of the mukallaf. In order to constitute the subject matter of a hukm, the conduct which the individual is required to do, or avoid doing, must fulfill the following three conditions:Firstly, the individual must know the nature of the conduct so that he can perform what is required of him or refrain from that which is forbidden. By the individual to the extent that he can act upon it. It does not mean affirmation of the mind (tasdiq). For if this were to be a requirement, the unbelievers would An ambivalent text or a locution which does not impart this knowledge cannot constitute the basis of either a command or a prohibition. The ambivalent (mujmal) text of the Qur'an concerning Salah, zakah and hajj, for example, did not obligate anyone until

3 | Page these matters were explained and clarified by the Prophet. The manner in which theseobligations were to be discharged was also explained in precise terms. Furthermore, the ulema are in agreement to the effect that the necessary instruction or explanations must not be delayed and must be given in time when they are needed, otherwise they would fail to provide the basis of obligation (taklif). When we say that the individual must know the nature of the act he is required to do, it means that it should be possible for him to obtain such knowledge. Hence when a person is in full possession of his capacities and it is possible for him to learn the law, he is presumed to know his legal obligations. The law is therefore applied to him, and his ignorance of the rules of Shari'ah is no excuse. For if actual knowledge by the individual were to be a requirement of the law, it would be very difficult to prove such knowledge in all cases of violation. It is therefore sufficient to ensure that the individual can acquire knowledge of the Shari'ah either directly or by asking those who have such knowledge. Secondly, the act which the individual is required to do must be within his capability, or, in the case of a prohibition, be within his capability to avoid. No law may thus demand something which is beyond the capacity of the individual. An act may be conceptually unfeasible, such as asking a person to be awake and asleep at the same time, or asking him to do and not to do something simultaneously. Likewise, an act may be physically impossible, such as ordering a person to fly without the necessary means. No-one may be required to do the impossible, and it makes no difference whether the act is impossible by its nature or whether it is Principles of Islamic Jurisprudence ~  Kamali 300 “Beyond the capacity of the individual in view of his particular conditions.” A corollary of this rule is that no person may be obligated to act on behalf of another person or to stop another competent individual from acting. For this would be tantamount to asking a person to do the impossible. No-one may therefore be legally obligated to pay the zakah on behalf of his brother, or to perform the Salah on behalf of his father, or to prevent his neighbor from committing theft. All that one mukallaf may be lawfully expected to do in such situations is to give good advice (nasihah) as a part of his general duty to promote good and to prevent evil to the extent that this is possible for him asa law-abiding citizen.

4 | Page Similarly, no-one may be obligated to do or not to do something in regard to which he has no choice, such as asking someone to act against his natural and biological functions. Thus when we read in the Hadith a command asking the Muslims to `avoid anger [la taghdab]', although the manifest (zahir) terms of this Hadith demand avoidance of a natural phenomenon, what it really means is that the adverse consequences of uncontrolled anger which might lead to taking the law into one's own hands must be avoided. To give another example, the Qur'an orders the believers that “Not to despair over matters that have passed you by, nor to exult over the favours that are bestowed upon you” (Al-Hadid, 57:23). Pleasure and despair are natural phenomena, and as such they are basically beyond the individual's control. What is really meant here is that one should avoid the consequences of despair such as violence against oneself or another person, and ensure that joy and happiness do not lead to arrogance and contemptuous behavior. There is, of course, some hardship involved in all obligations. The kind of hardship that people can tolerate without prejudice or injury is not the aim. It is intolerable hardship which the Shari'ah does not impose. The Shari'ah, for instance, forbids continuous fasting (sawm al-wisal), or staying up all night for worship. Furthermore, the Shari'ah has granted certain concessions with a view to preventing hardship to individuals, and it is strongly recommended that they be utilized. This is the purporse of the reminder contained in the Hadith that 'God loves to see that His concessions are taken advantage of, just as He hates to see the commission of a sin.’ [62. Ibn Hanbal, Musnad, II, 108.] In yet another Hadith we read an address to the believers, who are asked: “Fulfill your duties to the extent of your ability” [63. Muslim, Sahih Muslim, p.104,. Hadith no.378.] which obviously means that legal obligations are only operative within the limits of one's capacity. A hukm shar`i may sometimes impose unusual hardship on the individual, such as the fulfillment of certain collective obligations like jihad (holy struggle) and hisbah, that is, promotion of good and prevention of evil, under adverse conditions. Jihad which requires the sacrifice of one's life.

5 | Page Lastly, the demand to act or not to act must originate in an authoritative source which can command the obedience of the mukallaf. This would mean that the hukm must emanate from God or His messenger. It is mainly due to this requirement that the proof or evidence in which the law is founded must be identified and explained. Consequently, we find that in their juristic expositions, the fuqaha normally explain the evidential basis (hujjiyyah) of the rules of Shari'ah that they expound, especially rules which are aimed at regulating the conduct of the mukallaf....