Lecture 2

Introduction to Muslim Law

Compiled By:
Md. Saimum Reza Talukder
Advocate, Judge Court, Dhaka; Lecturer, Department of Law, East West University
LL.B. (Hons) and LL.M., University of Chittagong; PGD in Social Innovation in a Digital Context, Lund
University, Sweden; Diploma in Economic, Social, Cultural and Development Rights, Kathmandu School
of Law, Nepal

Concept of Law in Islamic Jurisprudence: Meaning of Sharia

The concept of Law in Islam or the Islamic notion of Law is in the words of Mr.
Justice Mahmood, "It is to be remembered that Mohammadan Law is so intimately
connected with religion that they can't readily be disserved from it.
There is in Islam a doctrine of Certitude (Ilm-Al-Yaqin) in the matter of good and
evil. Technically good and evil according to Muslim doctors are Husn (Beauty) and
Qubh (Ugliness).
In the ethical acceptance of the term, what is good or morally beautiful that must
be done and what is evil or morally ugly that must not be done. That is Law or
Shariat.
But

what

is

absolutely

and

indubitably

beautiful? What is absolutely or

indubitably ugly? These are the important legal questions; and who can answer
them?
Certainly not the human being - says the Muslim jurists. They think that only the
divine (Allah) can answer it.
So we have the words of Allah-The Holy Quran. So we have the teachings of his
messenger - The Hadith /Sunna. And if it is not in the Quran or Sunna to answer a
particular question then we have to follow the consensus of opinion of the Jurists Ijmaa and finally analogical deduction in accordance to certain definite principles
of Sharia-Qyas.

There are two concepts of Law

Compiled By:
Md. Saimum Reza Talukder
Advocate, Judge Court, Dhaka; Lecturer, Department of Law, East West University
LL.B. (Hons) and LL.M., University of Chittagong; PGD in Social Innovation in a Digital Context, Lund
University, Sweden; Diploma in Economic, Social, Cultural and Development Rights, Kathmandu School
of Law, Nepal

 One is divine origin.

And the other is man-made
The "divine origin is Muslim Law, Hindu Law - Personal laws and others are manmade such as Greek Law, Roman Law, in fact all modern legalizations. Modern
Jurisprudence can be changed as it is man-made but Islamic Law cannot be
changed. According to Austin, "Law is the command of superior which obliges a
person or persons to a course of conduct.''
But in Islamic Law, the Laws are made by Allah and the subjects are human being.
Islamic law - Sharia is wider in its scope because it covers social and spiritual
aspects of life but man-made laws covers only the social aspects of life.
Sharia Literally the road lo the watering place, the path to be followed.
Technically

means

the

canon, Law of Islam. The Totality of Allahs

Commandments is Sharia. Each of such commandments is called Hukum.

Sharia embraces all human actions. For this reason it is not "Law in the modern
sense. It contains an infallible guide to ethics.
Shariat is fundamentally a code of obligations. It is fundamentally a doctrine of
duties. Legal consideration and individual rights have a secondary place in it.
According to Sharia, religious injunctions are of 5 kinds- Al Ahkam AI Khamsa '
1. Those strictly enjoined are Farz e.g. Five times daily prayers.
2. Those strictly forbidden are Haram e.g. drinking wine
3. Things advised to do Mandub e.g. additional prayers
Compiled By:
Md. Saimum Reza Talukder
Advocate, Judge Court, Dhaka; Lecturer, Department of Law, East West University
LL.B. (Hons) and LL.M., University of Chittagong; PGD in Social Innovation in a Digital Context, Lund
University, Sweden; Diploma in Economic, Social, Cultural and Development Rights, Kathmandu School
of Law, Nepal

4. Things advised to refrain from Makruh e.g. certain kinds of fish.

5. Things about which religion is indifferent is Jaiz e.g.Travel by Air.
"Legal necessity is different from moral obligations, if this is not kept in mind then
confusion will arise says Mr. Justice Mahmood in the leading case of Gobind_v.
Inayatnllalt (1885) 7A11 775. Thus shariat or sacred Law is totalitarian; all
human activity is embraced in its sovereign domain. But it is only moral
obligations and not a legal one and there is difference between that which is only
morally enjoined and that which is legally enforced that is Fiqh Islamic Law
proper.

Fiqh: Islamic Jurisprudence

Compiled By:
Md. Saimum Reza Talukder
Advocate, Judge Court, Dhaka; Lecturer, Department of Law, East West University
LL.B. (Hons) and LL.M., University of Chittagong; PGD in Social Innovation in a Digital Context, Lund
University, Sweden; Diploma in Economic, Social, Cultural and Development Rights, Kathmandu School
of Law, Nepal

Imam Bukharee (rahimahullah) has reported in his Saheeh from Mu'awiyah ibn
Abi Sufyan (radhiallahu anhu) from the Prophet (sallallahu alaihi wasallam) that he
(sallallahu alaihi wasallam) said,

"He, for whom Allah wishes Khayr (goodness/blessing),

Allah grants him the Fiqh (understanding) of the Deen."
[Saheeh al-Bukharee, The Book of Ilm]

Fiqh (Arabic: [ fiqh]) is Islamic jurisprudence. Fiqh is an expansion of the code

of conduct (Sharia) expounded in the Quran, often supplemented by tradition
(Sunnah) and implemented by the rulings and interpretations of Islamic jurists.
Fiqh deals with the observance of rituals, morals and social legislation in Islam.
There are four prominent schools (madh'hab) of fiqh within Sunni practice and two
within Shi'a practice. A person trained in fiqh is known as a Faqih (plural Fuqaha)
Basic Understanding:
The word fiqh is an Arabic term meaning "deep understanding" or "full
comprehension". Technically it refers to the body of Islamic law extracted from
detailed Islamic sources (which are studied in the principles of Islamic
jurisprudence) and the process of gaining knowledge of Islam through
jurisprudence. The historian Ibn Khaldun describes fiqh as "knowledge of the rules
of God which concern the actions of persons who own themselves bound to obey
the law respecting what is required (wajib), sinful (haraam), recommended
(mandb), disapproved (makrh) or neutral (mubah)". This definition is consistent
amongst the jurists.
Compiled By:
Md. Saimum Reza Talukder
Advocate, Judge Court, Dhaka; Lecturer, Department of Law, East West University
LL.B. (Hons) and LL.M., University of Chittagong; PGD in Social Innovation in a Digital Context, Lund
University, Sweden; Diploma in Economic, Social, Cultural and Development Rights, Kathmandu School
of Law, Nepal

General Explanation:
The Qur'an gives clear instructions on many issues, such as how to perform the
ritual purification (wudu) before the obligatory daily prayers (salat), but on other
issues, some Muslims believe the Qur'an alone is not enough to make things clear.
For example the Qur'an states one needs to engage in daily prayers (salat) and fast
(sawm) during the month of Ramadan but some Muslims believe they need further
instructions on how to perform these duties. Details about these issues can be
found in the traditions of Muhammad, so Qur'an and Sunnah are in most cases the
basis for (Shariah).
Some topics are without precedent in Islam's early period. In those cases, Muslim
jurists (Fuqaha) try to arrive at conclusions by other means. Sunni jurists use
historical consensus of the community (Ijma); a majority in the modern era also
use analogy (Qiyas) and weigh the harms and benefits of new topics (Istislah), and
a plurality utilize juristic preference (Istihsan). The conclusions arrived at with the
aid of these additional tools constitute a wider array of laws than the Sharia
consists of, and is called fiqh. Thus, in contrast to the sharia, fiqh is not regarded
as sacred and the schools of thought have differing views on its details, without
viewing other conclusions as sacrilegious. This division of interpretation in more
detailed issues has resulted in different schools of thought (madh'hab).
This wider concept of Islamic jurisprudence is the source of a range of laws in
different topics that govern the lives of the Muslims in all facets of everyday life.

Compiled By:
Md. Saimum Reza Talukder
Advocate, Judge Court, Dhaka; Lecturer, Department of Law, East West University
LL.B. (Hons) and LL.M., University of Chittagong; PGD in Social Innovation in a Digital Context, Lund
University, Sweden; Diploma in Economic, Social, Cultural and Development Rights, Kathmandu School
of Law, Nepal

Usul al-fiqh:
Us sl al-fiqh (Arabic: ( ) literally: legal theory or Principles of
Jurisprudence) is the study of the origins, sources, and principles upon which
Islamic jurisprudence (or Fiqh) is based. In the narrow sense, it simply refers to the
question of what are the sources of Islamic law. In an extended sense, it includes
the study of the philosophical rationale of the law and the procedures by which the
law applicable to particular cases is derived from the sources.
Component Categories:
Islamic jurisprudence (fiqh) covers two main areas:
1. Rules in relation to actions, and,
2. Rules in relation to circumstances surrounding actions.
These types of rules can also fall into two groups:
1. Worship (Ibadaat)
2. Dealings & Transactions (with people) (Mu`amalaat)
Rules in relation to actions ('amaliyya )comprise:
1. Obligation (fardh)
2. Recommendation (mustahabb)
3. Permissibility (mubah)
4. Disrecommendation (makrooh)
5. Prohibition (haraam)
Rules in relation to circumstances (wadia') comprise:
1. Condition (shart)
2. Cause (sabab)
3. Preventor (mani)
Compiled By:
Md. Saimum Reza Talukder
Advocate, Judge Court, Dhaka; Lecturer, Department of Law, East West University
LL.B. (Hons) and LL.M., University of Chittagong; PGD in Social Innovation in a Digital Context, Lund
University, Sweden; Diploma in Economic, Social, Cultural and Development Rights, Kathmandu School
of Law, Nepal

4. Permit / Enforced (rukhsah, azeemah)

5. Valid / Corrupt / Invalid (sahih, faasid, batil)
6. In time / Deferred / Repeat (adaa, qadaa, i'ada)
Fields of jurisprudence

Islamic economical jurisprudence

Islamic political jurisprudence

Islamic marital jurisprudence

Islamic inheritance jurisprudence

Islamic criminal jurisprudence

Islamic etiquettical jurisprudence

Islamic theological jurisprudence

Islamic hygienical jurisprudence

Islamic military jurisprudence

Possible links with Western law:

A number of important legal institutions were developed by Muslim jurists during
the classical period of Islam, known as the Islamic Golden Age. One such
institution was the Hawala, an early informal value transfer system, which is
mentioned in texts of Islamic jurisprudence as early as the 8th century. Hawala
itself later influenced the development of the agency in common law and in civil
laws such as the aval in French law and the avallo in Italian law.[103] The "European
commenda" (Islamic Qirad) used in European civil law may have also originated
from Islamic law.[104]
Compiled By:
Md. Saimum Reza Talukder
Advocate, Judge Court, Dhaka; Lecturer, Department of Law, East West University
LL.B. (Hons) and LL.M., University of Chittagong; PGD in Social Innovation in a Digital Context, Lund
University, Sweden; Diploma in Economic, Social, Cultural and Development Rights, Kathmandu School
of Law, Nepal

The Waqf in Islamic law, which developed during the 7th9th centuries, bears a
notable resemblance to the trusts in the English trust law. For example, every Waqf
was required to have a waqif (settlor), mutawillis (trustee), qadi (judge) and
beneficiaries. The trust law developed in England at the time of the Crusades,
during the 12th and 13th centuries, was introduced by Crusaders who may have
been influenced by the Waqf institutions they came across in the Middle East.
The Islamic lafif was a body of twelve members drawn from the neighbourhood
and sworn to tell the truth, who were bound to give a unanimous verdict, about
matters "which they had personally seen or heard, binding on the judge, to settle
the truth concerning facts in a case, between ordinary people, and obtained as of
right by the plaintiff." The only characteristic of the English jury which the Islamic
lafif lacked was the "judicial writ directing the jury to be summoned and directing
the bailiff to hear its recognition." According to Professor John Makdisi, "no other
institution in any legal institution studied to date shares all of these characteristics
with the English jury." It is thus likely that the concept of the lafif may have been
introduced to England by the Normans, who conquered both England and the
Emirate of Sicily, and then evolved into the modern English jury.
Several other fundamental common law institutions may have been adapted from
similar legal institutions in Islamic law and jurisprudence, and introduced to
England by the Normans after the Norman conquest of England and the Emirate of
Sicily, and by Crusaders during the Crusades. In particular, the "royal English
contract protected by the action of debt is identified with the Islamic Aqd, the
English assize of novel disseisin is identified with the Islamic Istihqaq, and the
English jury is identified with the Islamic lafif." Other English legal institutions
Compiled By:
Md. Saimum Reza Talukder
Advocate, Judge Court, Dhaka; Lecturer, Department of Law, East West University
LL.B. (Hons) and LL.M., University of Chittagong; PGD in Social Innovation in a Digital Context, Lund
University, Sweden; Diploma in Economic, Social, Cultural and Development Rights, Kathmandu School
of Law, Nepal

such as "the scholastic method, the licence to teach", the "law schools known as
Inns of Court in England and Madrasas in Islam" and the "European commenda"
(Islamic Qirad) may have also originated from Islamic law. The methodology of
legal precedent and reasoning by analogy (Qiyas) are also similar in both the
Islamic and common law systems. These influences have led some scholars to
suggest that Islamic law may have laid the foundations for "the common law as an
integrated whole".

Compiled By:
Md. Saimum Reza Talukder
Advocate, Judge Court, Dhaka; Lecturer, Department of Law, East West University
LL.B. (Hons) and LL.M., University of Chittagong; PGD in Social Innovation in a Digital Context, Lund
University, Sweden; Diploma in Economic, Social, Cultural and Development Rights, Kathmandu School
of Law, Nepal