Islamic Studies CoursesIslamic Studies CoursesInIn

Chabot, Ohlone, Mission, and De Anza Chabot, Ohlone, Mission, and De Anza CollegesColleges

Designed and taught Designed and taught

by by

Hafiz M. K. Siddiqi, Ph.D.Hafiz M. K. Siddiqi, Ph.D.

Islamic Shari’ah: Legal SystemIslamic Shari’ah: Legal System

Its development and applicationIts development and application

Shari’ah Shari’ah is the body of Islamic Law. It is is the body of Islamic Law. It is

the legal framework within which the the legal framework within which the

public and private aspects of life are public and private aspects of life are

regulated for those living in a legal regulated for those living in a legal

system based on Islamic Shari’ah. It system based on Islamic Shari’ah. It

deals with every aspects of day-to-day deals with every aspects of day-to-day

life, including diet, politics, economics, life, including diet, politics, economics,

hygiene, banking, business contracts, hygiene, banking, business contracts,

family, and social issues.family, and social issues.

Then We put you (O’Muhammad) on the Then We put you (O’Muhammad) on the (right) Way of Religion (Shari’ah): so you (right) Way of Religion (Shari’ah): so you follow that (Way), and do not follow the follow that (Way), and do not follow the desires of those who do not know. 45/18desires of those who do not know. 45/18The same Religion He has established for The same Religion He has established for you as that which He enjoined on Noah, you as that which He enjoined on Noah, the which we have sent by inspiration to the which we have sent by inspiration to you, and that which we enjoined on you, and that which we enjoined on Abraham, Moses, and Jesus:Abraham, Moses, and Jesus:

namely, that you should remain namely, that you should remain Steadfast in Religion, and make no Steadfast in Religion, and make no divisions therein: to those who divisions therein: to those who worship other things than Allah, worship other things than Allah, hard is the (way) to which you call hard is the (way) to which you call them. Allah chooses to Himself them. Allah chooses to Himself those whom He pleases, and those whom He pleases, and guides to Himself those who turn guides to Himself those who turn (to Him).42/13(to Him).42/13

Basic principles and foundations of Shari’ah:Basic principles and foundations of Shari’ah:

1.1. Common good: 7/157Common good: 7/157

2.2. Establishment of perfect and equal justice for Establishment of perfect and equal justice for all: 4/135, 5/8, 6/152, 16/90all: 4/135, 5/8, 6/152, 16/90

3.3. It is easy to implement with no difficulty: It is easy to implement with no difficulty: 5/6, 2/185,22/785/6, 2/185,22/78

4.4. Certain needs will make certain prohibited Certain needs will make certain prohibited things, permissible, when forced by the things, permissible, when forced by the necessity without willful disobedience to necessity without willful disobedience to Allah: 2/173, 6/119,145, 16/115, 5/3 Allah: 2/173, 6/119,145, 16/115, 5/3

5. Injustice, oppression, aggression and any 5. Injustice, oppression, aggression and any undue advantage, or unfair treatment was undue advantage, or unfair treatment was made unlawful: 2/258, 270, 279, 3/57,86made unlawful: 2/258, 270, 279, 3/57,86

11/18, 14/13, 18/57, 4/148, 16/41, 22/3911/18, 14/13, 18/57, 4/148, 16/41, 22/39

6. Laa Darara Walaa Diraara: Don’t harm any 6. Laa Darara Walaa Diraara: Don’t harm any one and do not let any one harm you.one and do not let any one harm you.

7. Obligation within the human capacity: 2/286, 7. Obligation within the human capacity: 2/286, 4/28, 5/1014/28, 5/101

8. Gradual prohibition: 2/219, 4/43, 5/90-918. Gradual prohibition: 2/219, 4/43, 5/90-91

9. Social change, abrogation: 2/106 9. Social change, abrogation: 2/106

Islamic law addresses, both civil and Islamic law addresses, both civil and

criminal justice as well as regulates criminal justice as well as regulates

individual conduct both personal and individual conduct both personal and

moral. The body of law based on the moral. The body of law based on the

Qur’an and Sunnah distinguished by Qur’an and Sunnah distinguished by

Islam and Muslims in their Islam and Muslims in their

application, as Shari’ah law.application, as Shari’ah law.

Sharia has certain laws which are Sharia has certain laws which are

regarded as divinely ordained, regarded as divinely ordained,

concrete and timeless for all relevant concrete and timeless for all relevant

situations for example, the ban on all situations for example, the ban on all

kinds of intoxicants: liquid, powder, kinds of intoxicants: liquid, powder,

Pill, leaf, drugs, or in any other form. Pill, leaf, drugs, or in any other form.

Laws of marriage, divorce, custody of Laws of marriage, divorce, custody of

Children etc. Children etc.

The primary sources of Islamic law The primary sources of Islamic law

are the Qur’an and Sunnah. There are the Qur’an and Sunnah. There

are two supplementary sources: are two supplementary sources:

Ijmaa’: the consensus of Islamic Ijmaa’: the consensus of Islamic

jurists on certain issues, and Qiyas: jurists on certain issues, and Qiyas:

Drawing analogy from the essence of Drawing analogy from the essence of

divine principles and preceding divine principles and preceding

rulings. rulings.

In situations where no concrete In situations where no concrete rules exist under the sources, law rules exist under the sources, law scholars use Qiyas: various forms scholars use Qiyas: various forms of reasoning, including byof reasoning, including by analogy. analogy. The consensus of the community or The consensus of the community or people, public interest, and others people, public interest, and others are also accepted as secondary are also accepted as secondary sources where the first four primary sources where the first four primary sources allow.sources allow.

So, Shari’ah is divinely ordained legal system So, Shari’ah is divinely ordained legal system

in which the supreme controlling power and in which the supreme controlling power and

Absolute and independent authority and Absolute and independent authority and

Sovereignty belongs to Allah swt. All praises Sovereignty belongs to Allah swt. All praises

Are due for Allah the Sustainer of the worlds1/1Are due for Allah the Sustainer of the worlds1/1

Here Rabb (Sustainer) signifies not only the Here Rabb (Sustainer) signifies not only the

Sovereign but also Sustainer and provider of Sovereign but also Sustainer and provider of

the worlds. The command is for none but Allah. the worlds. The command is for none but Allah.

12/40, 67, 80. Blessed is He in whose hand is 12/40, 67, 80. Blessed is He in whose hand is

Dominion, 67/1, See: 57/5.Dominion, 67/1, See: 57/5.

It is ideal law, it is perfect and for all times It is ideal law, it is perfect and for all times

Because Allah is perfect. He is universal God Because Allah is perfect. He is universal God

therefore His law is universal. It has combined therefore His law is universal. It has combined

in itself not only what law is but also what law in itself not only what law is but also what law

ought to be. That is why it is Ideal and positive. ought to be. That is why it is Ideal and positive.

It can be described as the positive law in Ideal It can be described as the positive law in Ideal

form. At the root of all Islamic concepts lies the form. At the root of all Islamic concepts lies the

Doctrine of “the Ummah” the humankind, who Doctrine of “the Ummah” the humankind, who

are tied to each other, and equal, without are tied to each other, and equal, without

distinction of rank, class or race: see 23/52distinction of rank, class or race: see 23/52

Differences in/of functions are recognized, but Differences in/of functions are recognized, but

the most noble among them will be the most the most noble among them will be the most

God Conscious. 49/13 God Conscious. 49/13

The word Ummah comes from Umm, (Mother) The word Ummah comes from Umm, (Mother)

Because the whole humankind is connected to Because the whole humankind is connected to

Eve: the mother of humankind, hence, those Eve: the mother of humankind, hence, those

who accepted the divine message will be the who accepted the divine message will be the

Ummatul-Istijabah, and the rest of the Ummatul-Istijabah, and the rest of the

Humanity, Ummatud-Da’wah (To be invited to Humanity, Ummatud-Da’wah (To be invited to

Divine message).Divine message).

The community of the believers form a single The community of the believers form a single

Indivisible organization charged to uphold the Indivisible organization charged to uphold the

true faith, to persuade people to the good and true faith, to persuade people to the good and

prohibit them from evil by words and deeds.prohibit them from evil by words and deeds.

The designer of this system is Allah and His The designer of this system is Allah and His

Commandments were revealed to Prophet Commandments were revealed to Prophet

Muhammad pbuh. They embody the law and Muhammad pbuh. They embody the law and

the constitution for the followers of this system.the constitution for the followers of this system.

The Distinctive features of Islamic Shari’ah:The Distinctive features of Islamic Shari’ah:

1. It is designed by God: Allah swt.1. It is designed by God: Allah swt.

2. It governs state and citizens both.2. It governs state and citizens both.

3. The ruler, in this system, is an implementer.3. The ruler, in this system, is an implementer.

4. It governs every aspect of human life. There is 4. It governs every aspect of human life. There is no division of secular and religious hence the no division of secular and religious hence the concept: “render unto Caesar the things that are concept: “render unto Caesar the things that are Caesar’s and unto God what belongs to God” has Caesar’s and unto God what belongs to God” has no relevance.no relevance.

5. 5. Allah is Merciful, therefore His law can Allah is Merciful, therefore His law can not be entirely Coercive. It is partly not be entirely Coercive. It is partly Coercive and mainly corrective and Coercive and mainly corrective and persuasive. It allows time for correction, persuasive. It allows time for correction, reform and amendment in life. Only reform and amendment in life. Only serious crimes are punished severely to serious crimes are punished severely to maintain the order in the society.maintain the order in the society.

6. In the light of this divine constitution, the first 6. In the light of this divine constitution, the first Muslim society was formed. The basic Muslim society was formed. The basic concepts of civilized societies such as concepts of civilized societies such as compassion for the weaker, fairness in compassion for the weaker, fairness in dealings incorruptibility in administration of dealings incorruptibility in administration of justice were enjoined. Intoxicants, usury, justice were enjoined. Intoxicants, usury, gambling were forbidden. The sacredness of gambling were forbidden. The sacredness of human life, dignity, status of women were human life, dignity, status of women were raised, rules of inheritance were laid down.raised, rules of inheritance were laid down.

7. A group of righteous people who 7. A group of righteous people who enjoin right conduct and forbid enjoin right conduct and forbid evil was trained on the hands of evil was trained on the hands of Prophet Muhammad pbuh, who Prophet Muhammad pbuh, who made the implementation of this made the implementation of this divine law possible in this new divine law possible in this new society.society.

8. Virtue and vice, good and evil can 8. Virtue and vice, good and evil can not be rationally determined, for God not be rationally determined, for God alone knows what is absolutely good alone knows what is absolutely good or evil. To know objective good is or evil. To know objective good is beyond our power and this can not be beyond our power and this can not be denied, for it is often we like a thing denied, for it is often we like a thing which is bad for us, and hate a thing which is bad for us, and hate a thing which is good for us. See 2/216 which is good for us. See 2/216

That is why the human actions are That is why the human actions are

Cassified Into certain categories: Haram Cassified Into certain categories: Haram

(Unlawful), Halal (Lawful) Fard (Unlawful), Halal (Lawful) Fard

(Compulsory) Wajib (Duty)Makrooh (Compulsory) Wajib (Duty)Makrooh

(undesirable) etc.(undesirable) etc.

9. Transactions of various kinds were 9. Transactions of various kinds were

also classified with appropriate terms also classified with appropriate terms

like: Sahih (Valid), Fasid (defective), Batil like: Sahih (Valid), Fasid (defective), Batil

(Null and void), etc.(Null and void), etc.

The very basic five human rights were The very basic five human rights were

Named and protected. Any violation of those Named and protected. Any violation of those

was considered a punishable crime:was considered a punishable crime:

1.1. LifeLife

2.2. ReligionReligion

3.3. Intellect (includes freedom of expression)Intellect (includes freedom of expression)

4.4. WealthWealth

5.5. HonorHonor