ISLAMIC LAW AND

JURISPRUDENCE
ATTY. FAISAL PACALNA CALI, REB, Sh.L.
ISLAM

 derived from the Arabic word “salam” which means

peace;
 it connotes submission, surrender or obedience.
 Religiously, it is defined as the complete submission to the
will of Allah and obedience to His law (Shari’ah).
 In details, it refers to submitting of one’s self to the
teaching brought by the Prophet (pbuh), abiding the
commands and refraining from the prohibitions.
 Pillars of Islam

1. SHAHADA or testifying that there is no God save Allah and

Muhammad is His Messenger;
2. SALAH or the observance of the five daily obligatory
prayers;
3. ZAKAT or giving alms or poor due;
4. SAWM or fasting during the month of Ramadhan; and
5. HAJJ or pilgrimage to the Holy ka’aba at Mecca.
 BASIS OF ISLAMIC JURISPRUDENCE

IHSAN
 literary means “excellence”. It refers to worshipping Allah devotedly. It is
defined by the Prophet (pbuh) as to worship Allah that you see Him, though
you cannot see Him, Allah is definitely looking at you.

IMAN
 literary means “to know, to believe, or to be convinced beyond reasonable doubt”. It is rendered
in English as faith. Islamically, it refers to believe in Oneness of Allah, His Angels, His books, His
messengers, the Day of Judgment and the Divine Predestination. Note The six (6) Articles of Faith.
SHARIAH

 Literary, it means “a waterhole where the animals gather daily to drink, the
road to a watering place or the straight path”.
 Technically, it is the name given to the totality of God’s commandments.
 Islamically, it refers to the sum total of Islamic law which was revealed to
Prophet Muhammad (pbuh), and which is recorded in the Qur’an as well as in
the deducible guided lifestyle called Sunnah.
 Its primary objective is TO REFORM HUMAN LIFE ON THE BASIS OF MA’RUFAT
AND TO CLEANSE IT FROM MUNKARAT.
 Characteristics: DIVINE, ETERNAL, UNCHANGEABLE, COMPREHENSIVE,
IDEALISTIC, REALISTIC and NATURALISTIC
 Ma’rufat Munkarat
 All the virtues and good qualities  All the sins and evils that have
that have been accepted as good been condemned by human nature.
by human nature.
Essential Elements of Shari’ah

Ilm

Amal

Iklas
MAQASID AL SHARIAH or
The Purposes of Islamic Law
“All obligations refer to the interests of God’s creatures in this world and the next.
God is not in need of people’s worship, nor is He benefited by the obedience of those
who obey, nor is He harmed by the disobedience of those who disobey.” (Al-Izz ibn
Abdl-al-Salam)
“The foundation of the Shari’ah is wisdom and the safeguarding of people’s interest in
this word and the next. In its entirety it is justice, mercy and wisdom. Every rule
which transcends justice to tyranny, mercy to its opposite, the good to the evil, and
wisdom to triviality does not belong to the Shari’ah although it might have been
introduced therein by implication. The Shari’ah is God’s justice and mercy among His
people. Life, nutrition, medicine, light, recuperation and virtue are made possible by
it. Every good that exists is derived from it, and every deficiency in being results from
its loss and dissipation. For the Shari’ah, which God entrusted His prophet to transmit,
is the pillar of the world and the key to success and happiness in this world and the
next.” (Ibn Qayyim Al-Jawziyah)
The MAQASID AL SHARIAH or purposes of Islamic
Law are divided by Al-Ghazali into two types:

 DINI or purposes of the Hereafter; and

 DUNYAWI or purposes pertaining to this world.
These are:
1. The preservation of Nafs or life;
(The law provides the penalty for Qisas in order to protect the sacred life.)

2. The preservation of Din or religion;

(The law forbids apostacy to have the sanctuary of the religion.)
3. The preservation of Nasl or progeny;
(The law prohibits the fornicator or adultery in oder to compass the decency of the family.)
4. The preservation of Aql or intellect; and
(The law prohibits drinking of wine and other intoxicants to shield the mind of the individual and to avoid chaos or
disorder in the society.)
5. The preservation of Mal or wealth.
(Stealing is prohibited under the law to protect the properties of a certain person and to have halal wealth.)
Classification of Proof of Shari’ah

Dalil vs. Amarah

Transmitted Proofs vs. Rational Proofs
Mustaqil vs. Muqayyad
Qat’i vs. Zanni
Schools of Law

Maliki school is predominant in North and West Africa

Hanafi school in South and Central Asia
Shafi'i school in East Africa and Southeast Asia
Hanbali school in North and Central Arabia
Takhayur Talfiq

selection of rules from combining the rules of

various schools of law more than one school
to apply to different of law to a specific act
acts
FIQH

 Literally means “the true understanding if what is intended.”

 Technically, it refers to the science of deducing Islamic Laws from evidence
found in the sources of Islamic Law.
 In its legal terminology, it is knowledge of all rules and commandments of
Islamic law which are practical in daily life, and derived from detailed proofs
of law.
 Shari’ah and Fiqh, distinguished.

Shari’ah Fiqh
 Body of revealed law found both in  Body of laws DEDUCED from shari’ah
the Qur’an and Hadith. to cover specific situations not
directly treated in the Shari’ah.
 Fixed and unchangeable
 Changes according to the
 Lays down the basic principles circumstances under which it is
 Covers ALL human acts applied
 Laid down by God and the Prophet  Demonstrates how the basic
principles should be applied
 Covers Legal Acts
 Erected through human endeavor
Usul-ul Fiqh

 Literally means “the roots of Fiqh.”

 It is the science of the sources and methodology of law.
 Technically, it means the science of the study of Muslim Law jurisprudence,
its fundamentals and principles, based from the primary sources of law,
through the exercise of independent analytical deduction with regard to its
application to certain particular situation.
 Fiqh Usul-ul Fiqh
 Concerned with the knowledge or  Deals with the methods that are
the detailed rules of Islamic Law in applied in the deduction of such
its various branches rules from their sources
 LAW  METHODOLOGY OF THE LAW
HUKM TAKLIFI or MANDATORY LAW

It is a law which defines the characteristics of a man’s acts

whether they are obligatory, forbidden, commendable,
and improper or which indicates the legal effects of an
act.
It requires certain actions, or provides a choice of whether
to follow or not.
HUKM WAD’E or DECLARATORY LAW

 Promulgate as a reason, a condition or a deterrent for action or which states whether

these actions are valid or void or whether they are allowed by concession or are
persmisible ab initio.
 Its function is INTERPRETATIVE in relation to a mandatory law.

 CLASSIFICATIONS ACCORDING TO JURISTS:

1. Those which indicate the cause (Sabab) of a mandatory law. Example: Marriage is the cause of
the right to inheritance.
2. Those which indicate the condition (Shart) which governs the operation of mandatory law.
Example: the requirement that a property should be possessed for a year is a condition for the
payment of Zakat.
3. Those which prevent (maani’) the application of a mandatory law. Example: Impurity prevents
validity of prayer and indebtedness prevents the obligation to pay Zakat from arising.
HUKM SHAR’E or SHARIAH VALUE

 The quality determined as a result of divine revelation.

 Example: DRINKING OF LIQOUR IS PROHIBITED. (The Act being prohibited)

Essential Elements:
The Lawgiver
The Law
The Subject
The Act
CLASSIFICATION OF HUMAN ACTS

 FARDH (Imperative) is an act whose value has been established by the Qur’an
or a Mutawatir Hadith.
 Legal Effect (Hukm): Must be given absolute faith and obedience and that it
must be executed and failure to believe in it entails unbelief and failure to
execute causes impiety.
 KINDS:
1. Fardh Ayn (personal or individual obligation)
2. Fardh Kifayah (Social or collective) example: performance of Salatul Janazza
Note: Every person is under obligation to perform, until a sufficient number of persons
performed it, the rest being absolved from the obligation. The reward belongs to
those who perform the act, but the rest are not punished for its omission, it
however no one performs the act, then, they are all punished.
 WAJIB (Obligatory) is an act which has been established by a Shari’ah Evidence, other
than The Qur’an and Hadith Muttawatir. It has the same effect with Fardh, although
need not be given absolute faith.
 Example: giving alms for the breaking of fast
 MANDUB/NAFL (Recommendable) is an act which are not obligatory to the degree of
being fardh or wajib and whose commission is still rewarded and omission does not
entail punishment. Acts are those believe to have been performed by the Prophet
(pbuh):
 SUNNAH MU’AKKADAH (persistently performed)
 SUNNAH GHAYR MU’AKKADAH (performed several times but omitted in other times)
 SUNNAH ZAWAID (personal ways)
 MUBAH/JAIZ (Indifferent or permissible) are acts whose commission is not rewarded
but whose omission is not punished.
 MAKRUH (Reprehensible or Abomible) are acts whose omission is preferable
to their commission.
KINDS (According to Hanafi):
1. MAKRUH KARAHAT-AT-TANZIH which refers to an act that has been
considered improper and to be avoide for the purpose of purity. (nearer to
Mubah)
2. MAKRUH KARAHAT-AT-TAHRIM which refers to an act that is improper to
the degree of prohibition. (nearer to Haram)
 HARAM (Forbidden) acts whose commission is punished and omission
rewarded.
The General Rule and Exceptions

 AZIMAH (Ideal) refers to laws that are GENERAL in nature.

 RUKHZAH is a rule that provides an exemption from the general rule.
 Example of application:
 General Rule: Five daily Prayer
 Exception: Shortened during journey

ALL HUMAN ACTS ARE PERMITTED OR INDIFFERENT

THE PRESUMPTION:
UNLESS AND UNTIL SOME AUTHORITY CAN BE DISCOVERED IN
THE SHARI’AH EVIDENCE WHICH MAKES THEM FARDH, MUBAH,
OR ON THE OTHER HAND MAKRUH OR HARAM.
Thank you