Law and classication - Classification of Islamic law PDF

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Classification of Islamic law...

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C SCIENCE OF ISLAMIC CLASSIFICATION OF LAW

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WHAT IS LAW ACCORDING TO ISLAMIC PERSPECTIVE? In Islamic legal science, the philosophy or concept of ‘law’ is unanim the jurists and the schools of law right from early periods till today. No conflict of opinion upon this issue does exist in Islam. Therefor Jurisprudence, the term ‘law’ possesses a permanent and universal char not subject to any alteration. ‘Law’ in Islamic terminology signifies the or ‘Hukm al-Sharii), which is defined as:  “Law is a Rule of human conduct established by a communication from either of demand or indifference or a mere declaration. In other words, of rules with reference to human conduct, established from:  Qur’an, (because it is an explicit and manifest version of Allah’s co ‘Prophetic Sunnah’ (because it is an implicit version, practical denotio demonstration of Allah’s communications) and  ‘Definite Ijma’, (because it is an authoritative device of knowing and God has divinely communicated to mankind).”

The issue of philosophy of law in Islam could not be grasped fully w reference to the elements of law from the Shariah perspective.

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ELEMENTS OF LAW

HAKIM- LAW-GIVER THAT MEANS SHARIE. God Almighty and His Prophet possess an exclusive lawgiving authority in Islam to be the Hakim in real and ultimate sense whereas Prophet Muhammad exercise Lawgiving authority, being the direct recipient of His divine powers and final ag Legislative sovereignty. Therefore, whatever is ordained or abstained by the Holy exactly known as the command of God Himself. The Qur’an has narrated this in words: “And whatever the Apostle gives you, take it; and whatsoever he forbids from that". Furthermore, the Qur’an reiterates in Surah al-Maidah (5:2) saying: “ the Apostle, obeys God indeed".

Hukm- that means legal rule or value established through commun A

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comes up to 2500. The same applies to Prophetic traditions. The light definition of law or Hukm, Islamic Jurisprudence divides it into two (i)

Primary or defining law (law which requires demand of comm omission of an act from a person legally capable or which pro discretion between the commission or omission of a particula Declarative or declaratory law.

Objective of the law (mah kum bihi or mah kum By objective of the law, we mean the purpose for which divine law i They embody the motives and intentions that necessitated the expres manifestation of divine legal guidance. The purpose for which the di revealed are three: (i)

acts i.e. acts impossible in nature and practice, acts possible i impossible in practice and acts possible in nature and practice Islam exempts human beings from the binding application an the first two categories of acts because they are outside the sc exercise of man’s authority. God Almighty has stated: “On no soul does God place a burden greater than it can b See also in Surah al-Baqarah (2:173) which states: “Our Lord, do not lay on us a burden greater than we have bear".

(ii) (iii)

rights and obligations.

MAH KUM ALAYH-THAT MEANS SUBJECTS OF THE LAW Subjects of law are the people for whom the law of Shariah i the term people we mean legally capable persons who are tec termed as Mukallaf and the fitness of a person for the applica his actions is called legal capacity.

PURPOSE OF LAW

It is to make good persons and a good society. Its whole objective is eth moral. Shariah establishes what is good and beautiful. If something is n ( d db if l) i i f Sh i h h d Sh i h i

USUL AL-FIQH AS THE LOGIC OF LAW Logic, as is well known, is the study of how to think well, regardless of science or discipline under discussion. It specifies a general system that followed if one’s argument is to be sound. For example, logic teaches u prove that Socrates is a mortal, or that an infinite plane is impossible. A questions are taken up by logic according to standard methods of argum as the syllogism or induction. From this perspective, usul al-fiqh resembles logic, except that it deals w science, namely that of law. It directs us how to think soundly in the pro deriving rulings, through a study of the common principles necessary fo derivation process to be valid. In sum, it teaches how a ruling is extracte proofs according to standard methods of evidence. As such, it is approp of it as “the logic of the legal sciences,” for its relationship to law is that of the relationship of logic to human th general .

POSTULATES OF ISLAMIC LAW  Iman or Faith  Tauhid  Prophet hood  Islamic Books  Day After Death  Faith Based on Human Reasons  Prayers  Hajj  Zakat  Fasting

 Human Reasons the Ultimate Reasons Basis of Justification Juristictis deduction i.e. qiyās, istehsan, isteslah etc.

ORIGIN OF LAW

d. Reinforcement of legal school 3. Rightly guided caliph 4. Tabai’in 5. Great imams

SCOPE OF ISLAMIC LAW Islamic law is the welfare of men as individuals which the law seeks not in respect merely of life on this earth but also of future life. Islam indicated by our instincts which are as follows; 1. Self-preservation 2. Self-multiplication 3. Self-development 4. Social instincts

FUNCTIONS OF ISLAMIC LAW 1. To control and guide men’s conscious actions by creating restraint freedoms. 2. Involuntary movements of the man of the physical world generally by Islamic law. 3. To guide a man to do or no to do any act.

SANCTIONS The mean by which compliance with the laws is secured are also of a character in Muhammadan system then than sanctions of modern Eur Since Muhammadan law has two-folded objects, 1. Spiritual benefits & 2. Social goods Its policy is to encourage obedience by offer of reward, and to discoura disobedience by imposition of penalty. Penalty may be awardable 1. in this world (‘iqab) or

2. to the next world( adhab) 3. Or in both....