ISLAMIC LAW ( HUDUD RULE )

Definition Hudud Hudud definition is: The laws are certain that God is determined by either the Quran or the Sunnah of the Prophet Muhammad as a right of Allah imposed on offenders who have committed certain offenses that fall within the criminal Hudud, which is seven types as described by the Qur'an. Hudud there are seven types of crime: - Zina - Adultery Allegations (qazaf) without the four witnesses - Drinking Alcohol - Stealing - Hirabah (mob / disturb peace) - Apostasy - Baghy (Bughah - Rebellion)

Islamic scholars have given various interpretations of the word syariah. Some of them have given general meanings while others have chosen to be specific. Nevertheless, what is required of the Ummah is to practise Islam as a way of life. ALLAH Al-Mighty says in the Quran

If anyone desires A Religion other than Islam (submission to God), Never will it be accepted of him ; and in the hereafter He will be in the ranks of those who have lost (all spiritual good) (Ali-Imran :85)

The Islam that has to be lived and implemented is a religion of three basic elements Aqeedah or the Islamic Creed, Ibadah or Rituals & Practises and Jurisprudence or more known as the Fiqh and thirdly, Akhlaq or Noble Character and Etiquettes. Each of those three elements have their own elaborations and importance and priorities and cannot be neglected.

Accordingly, when we talk about implementing Shariah in its general and wide term including implementing Islam as a way of life, it means to secure the true aqidah or islamic creed, the just and correct jurisprudence and noble characters and when we talk about implementing the Shariah in its specific interpretation that is Shariah meaning Fiqh or Jurisprudence such as hudud laws, we cannot ignore the other two elements including. to secure the Islamic creed and inculcate the akhlaq or noble characters. Infact, the Islamic creed has to be the basis for implementing the laws, and the implementing of laws should be congruent with observing high standards of moral.

Hudud meaning from Al Quran :

Those are the Limits (set by) God ; Approach not nigh thereto. (Al-Baqarah : 187) In the context of Islamic Criminal Laws, hudud means all offences done not on humans and carry specific punishment as stipulated and fixed by ALLAH. Criminal offences which do not carry specific punishment are called tazeer such as vandalising public property. Offences with specific punishment but inflicted upon human life itself such as killing and injuring others is called Qisas.Hudud, Qisas and Tazeer form the Islamic Laws of Jinayat or Crimes. The offences which fall under the category of hudud are: First, adultery which carries the punishment of 100 strokes of the cane for male and female offenders who have not married as mentioned in Surah An-Nur :2 and stoning to death if the offender has been married as mentioned in a Hadith narrated by Ibn Majah and observed by Prophet Muhammad p.b.u.h. unto MaIz and al-Ghamidiyyah as narrated by al-Bukhari and Muslim.

Second, accusing someone else of adultery without witnesses. This act carries a punishment of 80 strokes of the cane as mentioned in Surah an-Nur :4. Third, consuming liquor which carries a punishment of 40 strokes of the cane. Our Prophet Muhammad said, Whoever consumes liquor, lash him with the cane (Narrated by at-Turmuzi) Fourth, theft which carries a punishment of amputating of the hand as mentioned in Surah alMaidah :38.

Fifth, high-way robbery whose punishment varies according to the degree of the offence as mentioned in surah al-Maidah :33. To understand hudud offences comprehensively, one needs to understand also the aspects of how to provide evidence, execute the punishment, the rationale behind the laws and the wisdom of these laws so as to avoid misunderstanding of ALLAHs laws. Today, a lot of people criticise the amputating of hands for stealing on the basis of violence yet they dont understand what is the definition of stealing. When does stealing carry such a punishment. What is the philosophical dimension to such a ruling? As if someone steals two dollars, his hands will be cut off. We surely are not able to discuss all aspects of the hudud laws in this khutbah. What is important is that we must know that hudud is part of our religion and we are required to understand it best before we can even talk about its implementation or criticise it.

Hudud laws are mentioned in the Quran and Sunnah. As such, all Muslims everywhere must belief in its authenticity. To doubt these laws and to dispute on its authenticity may nullify our Aqeedah or Creed and its feared that we fall under the category of those mentioned in the verse :

If any do fail to judge by (the light of) what God Hath revealed, they are (No better than) Unbelievers (al-Maidah :44 ) Nevertheless, the implementation of hudud laws can only be done after preparing the proper infrastructure such as having a trained group of people and an effective judiciary system. Besides that, the community must be ready to accept such laws as part of their lives because the Islamic way of life is not built upon laws only, but more importantly upon aqidah and iman/faith in ourselves.

Definitions Legal Maxims

The rules of the Sharia signify the set of principles determined with precision and their subordinate legal maxims which the great Muslim jurists have derived from the Quran and the Sunna to determine the Islamicity of any act institution and policy. They are the systematic exposition of the spirit of the text which coincide and guide man towards different situations in human society throughout the ages. This study is an attempt at selecting the largely accepted rules (legal maxims) that are relevant to economic life of individuals and society, and applying them to contemporary situations. These maxims, if broadly classified, relate to claim and practice, doubt and certainty, eliminating detriment the rules, of relaxation, give and take, and benefit versus liability, public welfare Maslahah the discretion of the government the role of custom and usage, and penalty for evasions. The study begins with a statement of limitations to restrict their liberal application. The subject has been discussed in all major works of jurisprudence including some works dealing only with legal maxims. But it will be found that in almost all these works the scholars have confined themselves to applying these maxims either on rituals or on citing the precedents of the few economic activities which were prevalent in the medieval period. This study, while retaining this latter part, is an attempt at applying the maxims to contemporary economic activities, institutions and policies. Being perhaps the first attempt of its kind, the study does not include all the maxims that may possibly be applied on economic matters nor those which are controversial as judged by the majority of jurists.

'AQD (CONTRACT) 'Aqd literally means tying tightly, as tying a rope. 'Aqd carries the meanings of covenant and fulfillment, as we read in the Quran surah Al Maidah verse 1:

O ye who believe! Fulfill (all) obligations. Lawful unto you (for food) are all four-footed animals, with the exceptions named: but animals of the chase are forbidden while ye are in the Sacred Precincts or in pilgrim grab: for Allah doth command according to His Will and Plan. The plural of word 'uqud above is mentioned in commanding the faithful to keep their covenants. God the Most High also commands the faithful to keep their promises and covenants in Al Quran surah Al Isra' verse 34:

Come not nigh to the orphan's property except to improve it, until he attains the age of full strength; and fulfill (every) engagement, for (every) engagement, will be enquired into (on the Day of Reckoning).

In another verse of Quran (An Nahl verse 91), we read Allah's command to the faithful to keep the obligations, which He had imposed on them when they embraced belief:

Fulfill the Covenant of Allah when ye have entered into it, and break not your oaths after ye have confirmed them: indeed ye have made Allah your surety; for Allah knoweth all that ye do. In Hadith ibn 'Abbas, commenting on a Quranic verse, we read that 'aqd means covenant, agreement and faith. In Arabic usage, we read that a man cannot tie ('aqd) a rope to mean he is too poor and feeble to do anything. Contract also means an engagement and agreement between two persons in a legally accepted, impactful and binding manner such a proposal made by one parties and accepted by other party in a way which has an impact on the subject matter of the contract. Husein al Nuri defined in Al Iltizam page 29, as the expression of exchange between two confirming wills in an aim to have a legal impact of a financial nature, be it origination, modifying, transferring or ending a commitment. Contract in man-made laws is an agreement between two wills producing a legal impact. The act of selling is a contract between the seller and the purchaser in which the seller takes it upon himself to transfer to the buyer the ownership of something or some other financial right in return for a monetary price (agreement of two or more wills to initiate, transfer, modify or end a commitment). According to Egyptian civil law (article 418) this transfer can include ownership as well as any other financial right. The important thing is that there should be a legal impact ensuing from the contract transaction. Inviting a friend to a meal, giving him help or promising him a reward are convention and not contract, as they do not have a legal effect.

Trade and Business A person who initiates, plans, guides and organizes the whole business is known as the organizer or the entrepreneur. The whole job of planning and directing any business is also sometimes called organization. In the modern industrial- world, organization plays a very significant part and is regarded as the most important factor of production. It is the entrepreneur who employs other factors of production including land, labor and capital, in the, right proportions and makes them work in the' best possible way so as to get them maximum productivity with the minimum cost. Entrepreneur is like the captain of a ship, whose function is to steer the ship of industry safely in the harbor of economic prosperity. Importance of planning and organization may be judged from the fact that God Himself is known as the best; organizer. In Surah Al Ahzab it is said that "For us God sufficed, and He is the best Disposer (Organizer) of affairs" (33:48) The word "wakiila", one who manages and looks after other people's affairs or business: The Muslims are in this verse advised to (do their best and then to) entrust their affairs to the care and trustee-ship of God Who is the best Manager and Organizer of affairs. It also implies that, as God is the best Manager and Organizer, He likes His creatures to try to be good organizers of their affairs. The Holy Quran describes in Sura Hud how Prophet Noah was asked to construct the Ark under the guidance and supervision of God: "And make the ark under Our eyes". (11 : 37) There is another reference to this factor of production in Surah Yusuf, when Prophet Yusuf interpreted the dream of the king of Egypt and gave him all the information with regard to the famine, the king brought him back from the prison with honor and dignity in order that he might get advice from him in the affairs of the state. The Prophet Yusuf then asked him if he would appoint him organizer over the affairs of the state in these words.

"(Yusuf) said: set me over the store-houses of land, I will indeed guard them well (honestly) as I am a skilled organizer (who knows his job)". (12: 55) Yusuf in this verse requests the king to appoint him an organizer over the affairs of land on the basis of his two outstanding qualities that knowledge ('aliim) and organizing ability (hafiidz). In fact these are two essential qualities which make a man successful and efficient organizer. In view of the great importance of organization in modern industry, it is absolutely essential that the right type of persons, who are really fit and qualified for the job, should be appointed as organizers. The Holy Quran enjoins the Muslims to be very careful in the appointment of organizers in these words: "Surely God commands you too make over trusts to those worthy of them". (4: 58) It is indispensable for success and efficiency of work that this job is entrusted to those who are worthy of the responsibility of the office they hold. The emphasis which Islam has laid on the necessity and Importance of organization can be well understood through the study of some of its basic institutions. Just look at the institution of daily prayer and pilgrimage; they cannot be performed without the organizer (Imam). In fact nothing can be done collectively in Islam without the organizer (Imam). The words "God's hand is on the organization" are very significant. They clearly indicate that success and prosperity of business would depend to a great extent on the ability and efficiency of the organizer. The nations, who would train and improve the institution of organization, would have the service of the best and the most efficient entrepreneurs and would certainly prosper ; while others, who ignore or neglect this factor of production, would not make much progress and would be left far behind to suffer in poverty and hunger.

THE LEGAL MAXIMS OF ISLAMIC LAW ( QAWAID AL-FIQH ) The legal maxims of fiqh are statements of principles that are derived from the detailed reading of the rules of fiqh on various themes. The fiqh has generally been developed by individual jurists in relation to particular themes and issues in the course of history and differs, in this sense, from modern statutory rules which are concise and devoid of detail. The detailed expositions of fiqh enabled the jurists, at a later stage of development, to reduce them into abstract statements of principles. Legal maxims represent, in many ways, the apex of cumulative progress, which could not have been expected to take place at the formative stages of the development of fiqh. The science of legal maxims is different from the science of usul al-fiqh (methodology in Islamic jurisprudence) in that the maxims are based on the fiqh itself. Usul al-fiqh is concerned with the methodology of legal reasoning and the rules of interpretation, the meaning and implication of commands and prohibitions, and so forth. A maxim is defined as a general rule which applies to all of its related particulars. A legal maxim is reflective of a consolidated reading of the fiqh and it is in this sense different from what is known as ad-Dabitah is cleanliness (taharah), maintenance (nafaqh), paternity and fosterage (arridaa) and as such does not apply to other subjects. An example of a dabitah is the statement: Marriage does not carry suspension; and with reference to cleanliness: When the water reaches two feet, it does not carry dirt.2 An example of a legal maxim is the statement: The affairs of the imam concerning his people are judged by reference to maslahah (Amr al-Imami fi shuun ar-raiyyati manutun bil-maslahah).

The early ulama have singled out about five of these to say that they grasp between them the essence of the Shariah as a whole, and the rest are simply an elaboration of these. The other three of the normative legal maxims are: - Certainty is not overruled by doubt (Al-yaqinu la yazulu bish-shakk). - Hardship begets facility (Al-mashaqqatu tujlab at-taysir). - Custom is the basis of judgement (Al-addatu muhakkamatun) The norm (of Shariah) is that of non-liability (Al-aslu baraaah ad-dhimmah). This is an equivalent to what is generally known as the presumption of innocence, although the maxim is perhaps more general. The primary expression implies that it relates principally to criminal procedure, whereas the non-liability maxim extends to civil litigation and to religious matters generally. The norm is that the status quo remains as it was before (Al-aslu baqaau ma kaana alama kaana) unless it is proven to have changed. An example of this is the wifes right to maintenance that the Shariah has determined; when she claims that her husband failed to maintain her, her claim will command credibility. For the norm here is her continued entitlement to maintenance for as long as she remains married to him. Similarly when one of the contracting parties claims that the contract was concluded under duress and the other denies this, this later claim will be upheld because the absence of duress is the normal state or statuesque, which can only be rebutted by evidence. According to yet another maxim, The norm in regard to things is that of permissibility (Al-aslu fil-ashyaa al-Ibahah). Permissibility in other words is the natural state and will Therefore prevail until there is evidence to warrant a departure from that position. This maxim is based on a general reading of the relevant evidence in the Quran and Sunnah. Thus when we read in the Quran that God has created all that is in the earth for your benefit (2:29), and also the hadith that states: whatever God has made halal is halal and whatever He has rendered as haram is haram, and all that over which He has remained silent is forgiven.

Necessity (darurah) the first of these proclaims: Necessity makes the unlawful lawful(Addaruratu tubiyh al-mahzurah). It is on this basis that the jurists validate demolition of an intervening house to prevent the spread of fire to adjacent buildings, The second maxim on necessity declares: Necessity is measured in accordance with its true proportions (Ad-daruratu tuqdaru bi-qadriha). Thus, if the court orders the sale of assets of a negligent debtor to pay his creditors, it must begin with the sale of his movable goods if this would suffice to clear the debt, before selling his real property. God does not intend to inflict hardship on you (5:6), occur in a number of hadith. The jurists have used this evidence in support of the many concessions that are granted to the disabled and the sick in the sphere of religious duties as well as civil transactions. .The maxim Profit follows responsibility (Al-kharaju bid-daman) is a direct rendering of a hadith in identical words. Thus, the yields of trees, animals, examples belong to those who are responsible for their upkeep and maintenance. In the case: Suppose that A buys a machine which yields profit, where A then returns the machine to the seller, does A have to return the profit he made with that machine to the seller? By applying the legal maxim before us, we say that A may keep the profit as the machine was his responsibility during the interval just as he would have been responsible for its destruction and loss before returning it to the seller.

The Conclusion

The conclusion is drawn that we are allowed to utilise the resources of the earth for our benefit, and that unless something is specifically declared forbidden, it is presumed to be permissible. it is stated in the Mejelle that legal maxims are designed to facilitate a better understanding of the Shariah and the judge may not base his judgement on them unless the maxim in question is derived from the Quran or hadith or supported by other evidence. This is in contrast, however, with the view of Shihab al-Din al-Qarafi who held that a judicial decision is reversible if it violates a generally accepted maxim. The ulama have generally considered the maxims of fiqh to be significantly conducive to ijtihad, and they may naturally be utilised by the mujtahid and judge as persuasive evidence. It is just that they are broad guidelines, whereas judicial orders need to be founded in specific evidence that is directly relevant to the subject of adjudication. Since most of the legal maxims are expounded in the form of generalised statements, they hardly apply in an exclusive sense and often admit exceptions and particularisation. Instances of this had often been noted by the jurists, especially in cases when a particular legal maxim had failed to apply to a situation that evidently fell within its ambit. Then they attempted to formulate a subsidiary maxim to cover that particular case. Legal maxims were developed gradually and the history of their development in a general sense is parallel with that of the fiqh itself. More specifically, these were developed mainly during the era of imitation (taqlid), as they are in the nature of extraction (takhrij) of guidelines from the detailed literature of fiqh that were contributed during the first three centuries of Islamic scholarship, known as the era of ijtihad.

REFERENCE
http://www.islamic-world.net/economics/trade_business.htm