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Madinat al-Muslimeen Islamic Message Board
| Articles Related to Islaamic Law |
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| sofia |
| 03/19/03 at 10:09:45 |
| "Shariah: The Way to Justice" by Khurram Murad http://www.wponline.org/vil/Articles/shariah/shariah.html INTRODUCTION Adroitly manipulated exposure to the imagery of a whip cracking on a naked back and a veil enshrouding a woman’s face has led many to believe that the Shari’ah , the divine code of Muslim conduct, is in reality no more than a collection of values and practices that are primitive, uncivilized and barbaric. What to a Muslim is the object of his longing and endeavour has been very subtly projected as a relic from the dark ages which enslaves the woman and inflicts punishments on the criminal which are cruel, inhuman and degrading. The Qur’an most certainly does prescribe corporal punishment for certain serious social crimes and it does lay down the principle of retribution, or qisas; it is very emphatic, too, about the crucial role of the family in human society and therefore insists on assigning different well-defined roles to men and women; and it does lay down many other regulations and laws and expects Muslims to obey the eternally valid injunctions of God and His Prophet. But will these and similar provisions of the Shari’ah really plunge society back into darkness? Are they inhuman and barbaric? Are they an indicator of Islam’s inability to keep pace with the demands of human progress? The issues need to be examined seriously to determine the place and valued of the Shari’ah and its provisions in the ultimate order of human civilization and happiness. The need for this examination is especially acute in the view of the dogmatic position adopted by the West on these questions. A host of Western writers have said it, and the media continue to harp on the same theme: unless Islam is prepared to relent on these and other legal provisions of the Shari’ah ‘ there can and will be no accommodation; only a continuation of Western rejection of Islam’. Such vehemence makes one wonder whether the loud chorus about the Shari’ah, and such of its specific provisions as pertain to women and punishment, is in all cases the result of genuine misunderstanding and moral indignation, or whether the issue is merely being used by some as a whipping-boy to settle scores with Islam – old and new. No apologies or excuses are needed to explain away or make acceptable to the West what has been so clearly laid down by the Qur’an and the Prophet in this regard and what has been so consistently accepted and adhered to by Muslims. There should be no place in dialogue with the West for such tortuous, self-deprecating arguments as: ‘polygamy is permitted, but the conditions of justice attached to it makes it effectively prohibited’. Or: ‘Corporal punishment is prescribed but hedged in with such unworkable requirements of evidence that it is virtually impossible to carry it out. Or, at least, it cannot be carried out unless an "ideal" just society is established, when it will in any case become unnecessary’. Why those who advance this specious logic should think that God would lay down things which were impossible to practice is not made clear. As if He does not know how to say what He means, and say it clearly! Such excuses are unfair to the Qur’an and the Prophet, and an affront to their wisdom, and at the same time illogical and implausible to the unconvinced... |
| NS |
| 03/31/03 at 12:02:52 |
| sofia |
| Muslims Living in Non-Muslim Lands |
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| sofia |
| 03/19/03 at 10:12:35 |
| "Muslims Living in Non-Muslim Lands" by Shaykh Abdullah bin Bayyah http://www.wponline.org/vil/Articles/shariah/muslims_in_non_muslim_land.htm Shaykh Abdullah bin Bayyah visited the Bay Area in the last week of July 1999. He offered a week long course on Usool al-Fiqh in Fremont, California. He then gave a talk on July 31, 1999 at the Santa Clara Convention Center in Santa Clara, California. An edited transcription of that talk appears below. As Shakyh Abdullah spoke, Shaykh Hamza Yusuf translated. At times, Shaykh Hamza added some of his own comments and explanations. These appear in brackets in the text. Shaykh Hamza Yusuf's Introduction of the Shaykh Shaykh Abdallah bin Bayyah, hafidhu Allah, is an extremely well-known and well-respected scholar amongst scholars. In fact, he is a scholars' scholar since many of his students are actually considered scholars now in the Muslim world. His students study extremely difficult texts with him that even very well qualified scholars are not capable of understanding with any facility. Shaykh Abdallah bin Bayyah grew up in one of the eastern provinces in West Africa in Mauritania. From a very young age, he showed extreme gifts intellectually and a profound ability to absorb a lot of information and a lot of the text. During his studies, he memorized an extraordinary number of texts. Then, at a very early age, he was appointed with a group of people to study legal judgements in Tunis and went there for a period of time. When he returned to Mauritania, he became a minister of education and later, a minister of justice. He was also one of the vice-presidents of the first president of Mauritania. However, due to the conditions in Mauritania and the military change of governments that took place, he began to teach, and he ended up going to Saudi Arabia and becoming a distinguished professor at The University of Usool al-Fiqh. The shaykh is presently involved in several organizations in the Muslim world, such as the organization which is known as Al Majma' al-Fiqhi, which is comprised of a body of scholars that come together from all over the Muslim world and from all the different madhhabs and different viewpoints; they analyze and study a lot of the modern issues to come up with Islamic solutions to the issues confronting modern Muslims in the modern world. Shaykh Abdallah is also involved in writing. He has written several books and has delivered lectures all over the world. This is the first time that he has come to America, so I think we are very fortunate that he has come a long way for us. His books are really interesting, and he has expertise in a lot of areas that have been ignored. One of the areas of expertise that he has is in what is know as fiqh al-aqaliyaat which is the fiqh or juristic rulings related to minority Muslims. Because the Muslims tended to prefer hijra to countries where Muslims were the majority, there are not a lot of scholars that work in the area of dealing with how Muslims in minority areas should actually live their lives and how they should behave when confronted with issues that often are in contradistinction to their deen. So, we asked him if he would talk about this subject tonight, and I'm hoping that we will gain a lot of benefit, and I'm certain we will in sha' Allah. The shaykh is going to speak in Arabic-he is very fluent in French, but he is not fluent in English yet. So, we are going to go section by section, and as he speaks, I'm going to translate in sha' Allah for the people who do not know Arabic. The Shaykh's Insights on the Muslims' Condition and Responsibilities in America [Bismillah irahman iraheem. The shaykh began his talk by praising Allah subhaana wa ta'aala and sending prayers on the Messenger of Allah, sallallaahu 'alayhi wa sallam.] I wanted to speak tonight about your conditions, your circumstances here. You are a group that is small in number and yet strong in faith, a group that has diverse ideas and understandings and whose individuals come from many different cultural and ethnic backgrounds, a group that is few amongst a dominant group that is many. The dominant group is strong in many areas; in fact, they are controlling many areas of the world. I would like to speak tonight about what the priorities of such a group would be: What are the obligations of such a group? What are the responsibilities of such a group? I would like to present some ideas to you, and I hopes that Allah subhaana wa ta'aala helps me to present some ideas that relate to a methodology, to approaches, and to things that will be beneficial to this group if they implement them. I want to speak about the responsibilities that you carry here. In contrast to Muslims living in the dominant Muslim world at large, you are, in many ways, strangers in a strange land. The Messenger of Allah, sallallaahu 'alayhi wa sallam, said, "Tuba lil guraba." In other words, the conditions of the stranger are blessed conditions, and it also means, "lahum al-jannah: they have paradise" for bearing the burden of alienation. An Arab proverb is, "ya ghareeb kun adeeba: oh stranger in a strange land, be a man of courtesy and cultivation." There is also a hadith, "Islam began alienated and will return as it began, alienated. So, blessed are the alienated ones." This alienation should not mean that you distance yourselves from the rest of the people. That is not the meaning of this state of estrangement. It does not mean you should not work with others or that you should avoid the dominant society and distance yourselves completely from it even though your state is one of estrangement... |
| NS |
| 03/23/03 at 21:25:51 |
| sofia |
| Islamic Law: Myths and Realities |
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| sofia |
| 03/19/03 at 10:17:23 |
| "Islamic Law: Myths and Realities" By Dennis J. Wiechman, Jerry D. Kendall, and Mohammad K. Azarian http://www.wponline.org/vil/Articles/shariah/ilw_myth_real.html The general public and many academics have several preconceived notions about Islamic Law. One such notion is that Islamic judges are bound by ancient and outdated rules of fixed punishments for all crimes. This paper explores that idea and looks at other myths in an attempt to present Islamic Law from a non-biased view of Sharia Law. Some contemporary scholars fail to recognize Islamic Law as an equal to English Common Law, European Civil Law and Socialist Law. A few academics have even attempted to place Islamic Law into the Civil Law tradition. Other writers have simply added a footnote to their works on comparative justice on the religious law categories of Islamic Law, Hindu Law, which is still used in some parts of India, and the Law of Moses from the Old Testament which still guides the current thought of the Israeli Knesset (Parliament) today. This survey will attempt to alter some of these inaccurate perceptions and treatments in both the contemporary literature and academic writings. Mohammed Salam Madkoar explains the theoretical assumptions of Islamic Law: "In order to protect the five important indispensables in Islam(religion, life, intellect, offspring and property), Islamic Law has provided a worldly punishment in addition to that in the hereafter. Islam has, in fact, adopted two courses for the preservation of these five indispensables: the first is through cultivating religious consciousness in the human soul and the awakening of human awareness through moral education; the second is by inflicting deterrent punishment, which is the basis of the Islamic criminal system. Therefore "Hudoud," Retaliation (Kisas)and Discretionary (Tazir) punishments have been prescribed according to the type of the crime committed." Islamic Law and Jurisprudence is not always understood by the western press. Although it is the responsibility of the mass media to bring to the world's attention violations of human rights and acts of terror, many believe that media stereotyping of all Muslims is a major problem. The recent bombing at the World Trade Center in New York City is a prime example. The media often used the term "Islamic Fundamentalists" when referring to the accused in the case. It also referred to the Egyptian connections in that case as "Islamic Fundamentalists." The media has used the label of "Islamic Fundamentalist" to imply all kinds of possible negative connotations: terrorists, kidnappers and hostage takers. Since the media does not use the term "Fundamentalist Christian" each time a Christian does something wrong, the use of such labels is wrong for any group, Christians, Muslims, or Orthodox Jews. A Muslim who is trying to live his religion is indeed a true believer in God. This person tries to live all of the tenets of his religion in a fundamental way. Thus, a true Muslim is a fundamentalist in the practice of that religion, but a true Muslim is not radical, because the Quran teaches tolerance and moderation in all things. When the popular media generalizes from the fundamentalist believer to the "radical fundamentalist" label they do a disservice to all Muslims and others... |
| NS |
| 03/23/03 at 21:27:26 |
| sofia |
| Encountering Islamic Law |
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| sofia |
| 03/19/03 at 10:26:09 |
| "Encountering Islamic Law" By John Strawson http://www.wponline.org/vil/Articles/shariah/jsrps.html The Western encounter with Islamic law has reached a critical moment as the contours of a new world order emerge. Islamist political movements, within the Islamic world and the West, insist that we consider the role of the West in world order. This paper explores aspects of this strident encounter through a scanning of representations of Islamic law in selected Western literature and some Islamist responses. It argues that orientalism is the dominant trend within the literature and has constructed strong and enduring images. The consequences of these representations are two-fold; first that Islamic law is constructed as backward; and second that Western legal systems are represented as superior. These constructions are connected to the power relationship between the West and the Islamic world. These Western representations find a response within some Islamist scholarship which tends to attempt a reversal of the process altogether, with Islamic law becoming the superior system and the Western legal systems seen as decadent. However, these mutually exclusive representations are not symmetrical and therefore equally powerful as they are dependent upon an inequality of power. The purpose of this discussion is to make a contribution to clearing the way for a non-Eurocentric reconstruction of legal theory. Much of the preparation for this paper was undertaken in Cairo, Egypt during the first semester of 1993. My research took place against the background of a turbulent political battle between the government and Islamist forces during which scores of people were killed, thousands were detained and an attempted assassination was made on the Minister of Information, a neighbour in Heliopolis. These events have added edge to the academic endeavour. The paper focuses on Egypt, and takes the form of a work in progress report of a research project which aims at situating the representation of Islamic law within wider Western scholarship. Islamic law may have played at the margins of Western legal theory yet the Western encounter with it reveals that colonialism is the ever present absence at its centre. The starting point of my work was Said's Orientalism,[Edward Said, Orientalism, Harmmondsworth: Penguin Books, 1978.] which throws into relief the Eurocentric character of much of modernism and indeed postmodernism. Law and Orientalism This paper argues that, despite its changing language, the Anglo-American critiques of Islamic law remain within the orientalist problematique. Islamic law has been represented within Anglo-American scholarship as an essentially defective legal system. The terrain of the critique has changed from the defence of colonial rule during the age of imperialism to contemporary claims about human rights, democracy and pluralism. The problem with this critique is that it replicates the power relationship between Europe (and the United States) and the Islamic world. The argument that Islamic law is defective nourishes the perception that European law is complete. As a consequence, a genuine engagement with Islamic law becomes problematic as every encounter is drawn onto the terrain of the orientalist narrative. A critique which is based on superiority and political power, rather than on scientific inquiry, must be flawed. Given the importance of the Islamic world in general, and the Middle East in particular, to international peace, this flawed critique merely adds one more obstacle to meaningful discourse and debate. The critique then becomes entangled with Islamist discourses, through which mirror images of European and western law emerge... |
| NS |
| 03/23/03 at 21:28:27 |
| sofia |
| Re: Articles on Islaamic Law |
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| se7en |
| 03/21/03 at 00:06:24 |
as salaamu alaykum wa rahmatullah, this is a great thread sis sofia.. jazaki Allahu khayran.. keep it up :) wasalaamu alaykum :-) |
| Sources of Islamic Law |
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| sofia |
| 03/21/03 at 10:08:03 |
| Sources of Islamic Law A Chapter from “Social Laws in Islam” by Shah Abdul Hannan http://www.wponline.org/vil/Books/SH_SL/default.htm Islam has given the most comprehensive legal system to mankind. Islamic law covers all aspects of life. Islam has its own personal, civil, criminal, mercantile, evidence, constitutional and international law. Islamic law has been defined as the body of rules of conduct revealed by Allah (SWT) to His Prophet Muhammad (peace be upon him) whereby the people are directed to lead their life in this world. Islamic law has, therefore, not been given by any ruler. It is given by Allah. Islamic law remains valid whether recognised by the State or not. The basic source of Islamic law is Divine Revelation. This has been given to mankind by the Prophet Muhammad (peace be upon him) in two forms. One is the direct word of Allah (SWT), the Quran and the other is the Sunnah or the teachings of the Prophet (Sm). The Prophet Sm) always acted according to the instructions of Allah (SWT). The Quran is the primary source containing all the fundamental directives and instructions of Allah. Herein are to be found not only directives relating individual conduct but also principles relating to all the aspects of social and cultural life of human being. The Quran is the last and complete edition of Divine Guidance and this is the only book of Allah which has not been distorted. The Quran is not only a book of law. The main purpose of Quran is to awaken in man the higher consciousness of his relation with Allah and the universe. However, in the Quran there are at least five hundred verses which possess definite legal elements. The scholars of Islam have developed a complete science of interpretation of the Quranic verses which can be seen in any book of Islamic jurisprudence. The Sunnah is the second source of Islamic law. Sunnah is an Arabic word which means "Method". It was applied by the Prophet Muhammad (peace be upon him) as a legal term to represent what he said, did and agreed to. Its authority is derived from the text of the Quran. The Quran says, "For you the life of the Prophet is a model of behaviour" (Al-Quran 33:21) Many of books of traditions were compiled by the companions of the Prophet Sm). These were later on incorporated in the great collections of Hadith (i.e. traditions) of Bukhari, Muslim etc. The collectors of the traditions adopted a very scientific system in collection the Traditions. They did not record any tradition except with the chain of narrators. Every tradition gives the names of the last narrator of the tradition from whom he learnt the tradition and so on back to the Prophet or Companion of the Prophet. The Sunnah which is established through reliable narrators is fully dependable as legal element. The Quran and Sunnah are complementary. The meaning of the Quran is general in nature, the Sunnah makes it specific and particular. The Sunnah explains the instructions of the Quran. The Quranic injunction is sometimes implicit, the Sunnah makes it explicit by providing essential ingredients and details. The Quran and the Sunnah are the primary sources of Islamic law. Ijma (that is consensus of opinion of scholars) are Qiyas (that is laws derived through analogical deduction) are the secondary or dependent sources of Islamic law or Shariah. Ijma and Qiyas derive their value or authority from the Quran and the Sunnah. Therefore, they are called dependent sources. Ijma or the consensus of scholars signifies the importance of delegated legislation to the Muslim community. The Muslim society requires such a rule making power to meet the practical problems for the implementation of Islamic Shariah (Islamic Law). Ijma has been technically defined as the consensus of the jurists of a certain period over a religious matter. Ijma is considered a sufficient evidence for action because the Prophet if Islam said, "Muslim will never agreee on a wrong matter." As such the agreement of the scholars of Islam on any religious matter is a source of law in Islam (Ref: Principles of Islamic Jurispredence by M. Hashim Kamali). Qiyas is the fourth important source of Islamic law. Qiyas means analogy. Qiyas or analogy is resorted to in respect of problems about which there is no specific provision in the Quran or the Sunnah of the Prophet. In such issues, the scholars have derived law through analogical deductionon the basis of the provisions of the Quran and the Sunnah on some similar situation. The scholars have developed detailed principles of analogical deductions or Qiyas in the books of Islamic jurisprudence. Qiyas is a kind of Ijtihad. The Prophet has permitted Ijtihad which literally means 'to exert'. Technically it means to exert with a view to form an independent judgement on a legal issue. Ijtihad is the Islamic method of facing the new situations and problems in the light of the general principles of the book of Allah SWT), the Quran and the traditions of the Prophet or the Sunnah. Apart from Qiyas, there are other methods of Ijtihad such as Istihsan (that is the juristic preference from different interpretations) and Masalaha (that is moral consideration). In additikn to the above sources, the practices of the Khulafa-e-Rashidun (the first four rulers of Islam), the decisions of the judges and the customs of the people are also considered sources of Islamic law in matters which are not spelled out in the Quran and the Sunnah. |
| NS |
| 03/23/03 at 21:35:54 |
| sofia |
| Shari`ah and Fiqh |
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| sofia |
| 03/21/03 at 10:10:04 |
| Shari`ah and Fiqh http://www.usc.edu/dept/MSA/law/shariahintroduction.html Reprinted with permission from Perspectives As we strive as Muslims to remain on the straight path, we need to discern the right from the wrong in every aspect of our life. The Shari`ah (sacred law) and the Fiqh (Islamic jurisprudence) provide us with the rulings in different matters. In this article simple definitions of shari`ah and fiqh are given. Shari`ah The Arabic word shari`ah refers to the laws and way of life prescribed by Allah (SWT) for his servants. The shari`ah deals with the ideology and faith; behavior and manners; and practical daily matters. "To each among you, we have prescribed a law and a clear way. (Qur 'an 5:48) Shari`ah includes the Qur'an and the sunnah of the Prophet (saas). The Qur'an is the direct word of Allah (SWT), and is the first most important source of guidance and rulings. The Sunnah of the Prophet (saas) is the second source of guidance and rulings. The sunnah is an inspiration from Allah (SWT), but relayed to us through the words and actions of the Prophet (saas), and his concurrence with others' actions. The sunnah confirmed the rulings of the Qur'an; detailed some of the concepts, laws and practical matters which are briefly stated in the Qur'an (e.g. definition of Islam, Iman, and Ihsan, details of salah, types of usury); and gave some rulings regarding matters not explicitly stated in the Qur'an...[click on the link to read the rest of this short article. There are some graphics that don't copy well...] |
| NS |
| 03/23/03 at 21:36:35 |
| sofia |
| Islamic Principles: The Principle of Permissibiity |
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| sofia |
| 03/23/03 at 21:35:09 |
| Islamic Principles: The Principle of Permissibiity Shaykh Abdur Rahmaan Naasir Al-Sa`di Al-Istiqaamah Newsletter, Issue No. 4, Ramadan 1417 Call to Islam, UK http://www.islaam.com/Article.aspx?id=351 "The principle regarding acts of worship is one of prohibition, except if the Sharee`ah (Divinely Prescribed Law) relates a prescription for it. And the principle regarding the customary behaviour is permissibility, except when the Sharee`ah relates a prohibition for it." (Al-aslu fil-`ibaadaat al-hadhru illaa ma waradah `anish-shar`ee tashree`ahu. Wal-aslu fil-`aadaat al-ibaahah ilaa ma waradah `anish-shar`ee tahreemahu). [Minhaaj ul-Qaasideen Mukhtasar fee Usoolil-Fiqh (p. 27) of Shaykh `Abdur Rahman as-Sa`dee] The above principle is an important principle that Islaam teaches. Thus, with regards to matters of `aadaat (day-to-day actions), such as eating, drinking and wearing clothes, then everything is allowed in this regard, except if there is a clear and authentic evidence restricting or prohibiting its allowance. However, when it comes to `ibaadaat (acts of worship), then the opposite is the case. Here, nothing can be established as an act of worship, except if there is a clear and authentic text to allow it. So the basic principle for `aadaat is ibaahah (permissibility), whereas the basic principle for `ibaadaat is tahreem (prohibition). Shaykhul-Islaam Ibn Taymiyyah (d.728H) - rahimahullaah - said: "Peoples' sayings and actions are of two kinds: `ibaadaat (acts of worship) by which their Religion is established, and `aadaat (customary practices) which are required for day-to-day living. From the principles of the Sharee`ah (Divinely Prescribed Islaamic Law) we know that acts of worship are those acts which have been prescribed by Allaah or approved by Him; nothing is to be affirmed here, except through the Sharee`ah. However, as far as worldly activities of people are concerned, they are necessary for everyday life. Here the principle is freedom of action; nothing may be restricted in this regard except what Allaah - the Most Perfect - has restricted. This is the case because commanding and prohibiting are both in Allaah's Hands. As far as worship is concerned, there has to be a command from Him concerning it. Thus, when it requires a command from Allaah to establish something, how can we say that something is restricted without His command? This is why Ahmad bin Hanbal (d. 241H) and other jurists who base their judgements upon ahaadeeth (Prophetic narrations) say: In relation to acts of worship, then the principle is tawqeef (limitation); that is to say, nothing can be legislated in this regard except what Allaah legislates. To do otherwise is to incur the risk of being included in the meaning of the Aayah (verse): "Do they have partners with Allaah who prescribe for them in the Religion that for which Allaah has not given any permission?" [Soorah ash-Shooraa 42:21] However, as far as living habits are concerned, the principle here is freedom, because nothing can be restricted in this regard except what Allah has prohibited. To do otherwise is to be included in the meaning of His saying: "Say: Do you see what Allaah has sent down to you for sustenance? Yet you have made some part of it halaal (lawful) and some part haraam (prohibited)." [Soorah Yoonus 10:59] This is a great and beneficial principle, on the basis of which we can say that buying, selling, leasing, giving gifts, and other such matters are necessary activities for people, as are eating, drinking and wearing of clothes. Thus, if the Sharee`ah (Divinely Prescribed Islaamic Law) says something about these day-to-day matters, it is in order to teach good behaviour. Accordingly, it has prohibited whatever leads to corruption, has made obligatory that which is essential, has disapproved of that which is superfluous, and has approved of that which is beneficial. All this has been done with due consideration of the magnitude and properties of the various types of activities involved. Since this is the position of the Sharee`ah, people are free to buy, sell and to lease just as they wish, just as they are free to eat and drink what they like - as long as it is not haraam (unlawful). Even though some of these things may be disapproved, they are still free in this regard, since the Sharee`ah does not go to the extent of prohibiting them - and thus the original principle (of permissibility) remains." [Al-Qawaa`idun-Nooraaniyyah al-Fiqhiyyah (p.112-113)] |
| NS |
| The Purposes of the Shari`ah |
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| sofia |
| 03/23/03 at 21:39:21 |
| The Purposes of the Shari`ah Abdul Wahid Hamid Islam the Natural Way Published in 1989 by MELS, © Abdul Wahid Hamid 1989 http://www.islaam.com/Article.aspx?id=500 The main purpose of the Shari`ah is to realise and secure the general good or the interests (masaalih) of people by promoting their welfare as individuals and as a collective body and keeping harm and injury away from them. This it seeks to do, in order of priority, by: guaranteeing their ‘vital needs’ (duruuriyaat) catering for their ‘requirements’ (haajiyaat) allowing for ‘betterment’, enhancement or improvements (tahsiiniyaat) in the quality of their life. An example of a vital need is housing, to protect people from heat or cold and provide for sleep and rest. An example of a requirement is windows in the house to allow for light and privacy. An example of an improvement or enhancement is furniture or beds to make life easy and comfortable. ‘Requirements’ and ‘improvements’ can only be catered for if vital needs are met or satisfied. If a vital need is threatened then a lesser need can be dispensed with. For example, under normal circumstances a person must keep his or her private parts covered. Keeping your private parts covered is important for the enhancement of your life and conduct but it may not be absolutely vital for the preservation of health and life. If, therefore, a person has to have medical treatment which is a vital need and which requires his or her private parts to be examined, the vital need takes precedence. In such a situation, the Shari`ah allows a person to uncover his or her private parts to the view of a medical professional. Vital needs The vital needs which the Shari`ah is concerned to protect are those on which the life of man depend. If any of these needs are threatened, corruption, disorder and injustice will result in individual and collective life. These vital needs, in order of priority, are five: the Diin or the natural system of beliefs and way of life of Islam; the life or nafs of the individual human being and of the human species; the mind or the `aql of the individual; the honour and chastity or `ird of the individual; wealth or property. The protection of each of these is necessary for the wealth of individuals and society. By Diin is meant the totality of beliefs, practices and laws by which Islam regulates the relationship between man and his Creator and between man and man. Preservation of Diin implies keeping it free from deviation and error, inviting others to accept and live according to it, and defending it from hostile forces. By the preservation of life is meant measures to preserve the human species in the best possible way and this includes laws relating to marriage and reproduction. It also includes providing the vital needs of food, drink, clothing, shelter and security. It also includes laws relating to the prohibition of suicide and abortion (except when the mother’s life is in danger) and the need for just retaliation against those who commit murder. The safeguarding of the mind is the concern of such provisions of the Shari`ah which forbid the consumption of alcohol and all intoxicating substances. Preserving honour and chastity is the goal of such Shari`ah laws which punish sexual relations outside marriage and false accusations against people who are chaste. By the preservation of wealth is meant the laws in the Shari`ah which encourage people to work and earn a living lawfully and which prohibit exploitation and injustice. Requirements or exigencies These pertain to laws of the Shari`ah which provide ease in case of difficulty and which eliminate or reduce hardship from people’s lives. For example, a person is not required to fast in the month of Ramadaan if he is ill or on a journey. In business transactions, the Shari`ah has allowed a variety of contracts and trading practices. It allows any local custom in meeting needs so long as it is not otherwise prohibited. It allows divorce in case of need. Such allowances receive sanction in the verses of the Qur’an: "God has not created any hardship over you in matters of religion." "God desires ease for you. He does not desire hardship for you." Moreover, the noble Prophet said: "I was sent with the true and tolerant Religion." Improvements or Enhancements These pertain to all the laws of the Shari`ah that relate to improving the quality of human life, conduct and morals and beautifying the conditions under which life is lived. These include laws pertaining to cleanliness of the body, clothes, and environment, the covering of the private parts or `awrah, the method of getting rid of impurities, the performance of extra acts of worship such as voluntary fasting and charity and so on. The above categories relate to the general objectives or concerns of the Shari`ah. From these, we can see that the concerns of the Shari`ah are not only with aspects of personal religion or worship but deal with all aspects of life. Moreover, the Shari`ah is not just ‘law’ as many understand the term; it is concerned with morals and worship as well. |
| NS |
| Ruling on Following Schools of Fiqh |
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| sofia |
| 03/23/03 at 21:43:26 |
| Ruling on Following Schools of Fiqh From alJumuah magazine, Vol 9 , Issue 1 [Muharram 1418 H] http://www.islaam.com/Article.aspx?id=105 Question: Is a Muslim in America required to follow one of the four known Fiqh schools and stay with it? If the answer is no, then, what are the conditions that one should keep in mind when seeking Fatwa? Answer by Dr. Salah As-Sawi, Head of the American Open University, Virginia, USA Most of the scholars hold the opinion that it is not required of the Muslim to follow a certain Fiqh School because nothing can be made required of Muslims except that made by Allah and His Prophet. And Allah subhaanahu wa ta`ala and His Prophet sallallahu `alayhi wa sallam did not make it a requirement of any Muslim to follow any Imam's or Mujtahid's School or Madh-hab such that he makes Taqleed of the Imam in all of his opinions. Such strict following is deserved to the Prophet sallallahu `alayhi wasallam alone. Everyone else may or may not be followed. When in need of Fatwa, Muslims should consult with any scholar regardless of his Madh-hab. A common Muslim is said to have no Madh-hab. A common Muslim's Madh-hab is, indeed, the Madh-hab of the person giving him the Fatwa. He has, however, to ask those scholars who are known to have Ilm (knowledge) and possess Adl (good and just character). Allah subhaanahu wa ta`ala said: "Ask the people of dhikr if you do not know." [16:43] Seeking Fatwa from a Jahil (one who does not have the knowledge) is not permitted by Naql (by Quran and Sunnah) and Aql (by logic and reason) and from Fasiq (one having bad character) cannot be dependable even if he is a Mujtahid. Mohamed ibn Sireen said: "This `ilm is Deen (this knowledge is religion), therefore, be aware of whom you take your Deen from." If one gets more than one opinion, he should choose that of the most trusted scholar or should seek assistance of others who can help him choose the right answer. It is recommended, in such case, that one chooses the more conservative of the answers for it is the safest way out of this differing in opinions. |
| NS |
| Usool-ul-Fiqh |
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| sofia |
| 03/26/03 at 15:25:06 |
| Usool-ul-Fiqh is basically the principals/codes towards understanding how Islaamic rulings are derived for particular situations. It lays the groundwork for Islaamic law. It should not to be confused with fiqh, itself. Here are some better explanations: [u]Principles of Islamic Jurisprudence[/u] by Muhammad Hashim Kamali. [url=http://www.usc.edu/dept/MSA/law/alalwani_usulalfiqh/] "Source Methodology in Islamic Jurisprudence: Methodology for Research and Knowledge" [/url] by Taha Jabir Al 'Alwani, which is on-line. |
| NS |
| 03/26/03 at 15:27:05 |
| sofia |
| Re: Articles on Islaamic Law |
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| tawbah |
| 03/30/03 at 22:20:25 |
| [font=Garamond][size=3][center]AL-MAQASID AL-SHARI’AH THE OBJECTIVES OF ISLAMIC LAW Mohammed Hashim Kamali (excerpts from an essay)[/center] CHARACTERISATION AND TEXTUAL ORIGINS [i]Al-Maqasid al-Shari’ah[/i] or the Objectives of Islamic Law, is an important and yet somewhat neglected science of the Shari’ah. The Shari’ah generally is predicated on benefits to the individual and the community, and its laws are designed so as to protect these benefits and to facilitate the improvement and perfection of the conditions of human life on earth. The Qur’an is expressive of this when it singles out the most important purpose of the Prophethood of Muhammad (saw): [i]“We have not sent you but as a Mercy to the worlds”[/i] (21:107). This can also be seen in the Qur’an’s characterisation of itself as [i]“a healing to the (spiritual) ailments of the hearts”[/i] and [i]“a Guidance and Mercy”[/i] for the believers and mankind (10:57). This very important objective of Rahmah (Mercy or Compassion), mentioned in these two verses, is further substantiated by other provisions in the Qur’an and Sunnah (the Traditions of the Prophet) that seek to eliminate prejudice, alleviate hardship and establish justice. The laws of the Qur’an and Sunnah also seek to promote co-operation and support within the family and the society at large. The objective of [i]Rahmah[/i], therefore, is most clearly manifested in the realisation of [i]Maslahah[/i] (Benefit) in everyday communal life. The ulema have, thus, generally considered [i]Rahmah[/i] to be the all-pervasive objective of the Shari’ah, and have, to all intents and purposes, used it synonymously with [i]Maslahah.[/i] [i]’Adl[/i] or [i]Qist[/i] (Justice), is indeed a manifestation of God’s Mercy, but may also be seen as a principal objective of the Shari’ah in its own right. Certainly, the Qur’an sees it as such when it states: [i]“We sent Our Messengers and revealed through them the Book and the Balance so that Justice may be established amongst mankind”[/i] (57:25). Justice as a value or primary objective of the Shari’ah is mentioned in the Qur’an fifty-three times in all. [i]’Adl[/i] — literally meaning to place things in their right and proper place — as a fundamental objective of the Shari’ah, is to seek to establish an equilibrium between rights and obligations, so as to eliminate all excesses and disparities, in all spheres of life. Tahdhib al-Fard (Educating the Individual) is also a very important objective of the Shari’ah. It fact, in order of priority, it may even ought to be placed before Maslahah and ’Adl. For the latter are both, essentially, community oriented values that acquire much of their meaning in the context of social relations, whereas the former seeks to make each individual a trustworthy agent just so as to strive to realise these values which benefit himself and the community. Indeed, the overall purpose of a great number of the stipulations of the Shari’ah, especially in the spheres of ’Ibadah (ritual worship) and Akhlaq (moral teachings), is to train the individual to acquire the virtues of Taqwa (God consciousness), and thus, to aid the fulfilment of this objective.[1] The Qur’an is expressive, in numerous places and in a variety of contexts, of the purpose, rationale and benefit of its laws, to the extent that the texts stipulating these laws are characteristically goal-oriented. This feature of the Qur’an is common to its laws relating to both ’ibadah (ritual worship) and mu’amalah (civil transactions). Thus, when the text expounds on the ritual of wudu’, or ablution for prayer, it adds: “God does not wish to inflict hardship on you but to make you clean and to complete His favour to you” (5:7). With regard to the prayer itself, it declares: “Truly, Salah restrains promiscuity and evil” (29:45). With reference to Jihad the Qur’an similarly proclaims its rationale: “Permission is granted to those who fight because they have been wronged” (22:39). The purpose, in other words, of legalising Jihad is to fight zulm (injustice), and of Salah, to attain spiritual purity and excellence, which is accomplished together with physical cleanliness through ablution before the prayer. With reference to the law of Qisas (Just Retaliation), the text similarly adds: “And in the Law of Qisas there is life for you, O people of understanding” (2:179). And finally, with regard to Zakah (Wealth Tax), the rationale is also given: “In order that wealth may not circulate only amongst the rich” (59:7). One can add many more examples to demonstrate how the Qur’an and Sunnah are expressive of the goal, justification and benefit of their ahkam (laws). In addition to the above, which require or sanction the undertaking of some positive action, one may also refer to the ahkam of the Shari’ah which prohibit or discourage certain actions that are or may be harmful and that may result in prejudice, corruption and injustice. In all cases, whatever the aim or justification of the individual ahkam, however, it is to be noted that the underlying objective is the realisation of some maslahah (benefit). It is for this reason that the objective of Maslahah has generally been regarded as the summa of Al-Maqasid. For, in the final analysis, ’Adl and Tahdhib al-Fard may also be seen as manifestations of Maslahah. The Masalih (pl. of Maslahah) is thus another name for the Maqasid, and the ulema have used these two terms almost interchangeably. CLASSIFICATION OF BENEFITS The ulema have classified the entire range of maqasid-cum- masalih into three descending categories of importance: the daruriyyah (the essential), the hajiyyah (the complementary) and the tahsiniyyah (the desirable or the embellishments). [u]The essential masalih are enumerated as five, namely life, intellect, faith, lineage and property.[/u] These are seen as absolute requirements to the survival and spiritual well-being of individuals, to the extent that their destruction or collapse would precipitate chaos and the demise of normal order in society. The Shari’ah, on the whole, seeks, primarily, to protect and promote these essential values, and validates all measures necessary for their preservation and advancement. Jihad has thus been validated in order to protect religion, and Qisas, to protect life. Indeed, the Shari’ah takes affirmative and even punitive measures to protect and promote these values. Theft, adultery and the drinking of alcohol are punishable offences as they pose a threat to the immunity of private property, the well-being of the family and the integrity of the human intellect, respectively. In an affirmative sense again, but at a different level, the Shari’ah encourages work and trading activities in order to enable the individual to earn a living, and it prescribes elaborate measures to ensure the smooth flow of commercial transactions in the market-place. The family and personal laws of the Shari’ah are likewise an embodiment largely of guidelines and measures that seek to protect and strengthen the family unit and to make it a safe refuge for all its members. The Shari’ah also commands education and the pursuit of knowledge so as to ensure intellectual well-being and the advancement of the arts, sciences and civilisation. The essential masalih in other words, constitute the all-pervasive central theme of the Shari’ah, and all its laws are in one way or another related to the protection of these benefits. The second category of benefits, known as the hajiyyah or the complimentary benefits, are not in themselves a completely independent category. They seek to protect and promote the essential masalih, albeit in a secondary capacity. The hajiyyah are defined as benefits that seek to remove severity and hardship in cases where such severity and hardship do not pose a threat to the very survival of normal order. A great number of the rukhas (concessions), such as the shortening of the Salah and the forgoing of the fast by the sick and the traveller, may be classified as hajiyyah. In almost all areas of obligatory ’ibadah the Shari’ah has granted such concessions. These concessions are aimed at preventing hardship, but they are not essential: people could, indeed, live without them if they were obliged to. In the area of criminal law, the Hadith which proclaims that “prescribed penalties are to be suspended in all cases of doubt”, may also be seen as providing a complementary benefit. Although, not absolutely essential, as the burden of proof for crimes of prescribed penalties is extremely stringent, it nevertheless, allows a potentially innocent defendant to be relieved of difficulties at a much earlier stage. The provision affects the criminal law process — a process designed to protect the essential masalih. In the sphere of mu’amalah, the Shari’ah validates certain contracts, such as the sale of salam and the ijarah, (lease and hire). Again, the benefits attained from such contracts may be classified as hajiyyah. The contracts are not absolutely essential to maintain normal order, and in fact, there is a certain anomaly that is attendant in both, but they are permitted so as to avoid hardship. A complimentary maslahah is elevated to the rank of the essential masalih where it concerns the public at large. Certain concessions that are granted in the sphere of ’ibadah, for instance, may be secondary to the survival of an individual, but may become of primary interest for the community as a whole — for example, the shortening of Salah on the battlefield. In the event of a conflict between two or more masalih, the accepted norm is to sacrifice the lesser benefit or benefits for the higher benefit. However, when there is a plurality of conflicting masalih and none appears to be clearly preferable, then the prevention of evil takes priority over the realisation of benefit.[2] This is because the Shari’ah is more emphatic about the prevention of evil then the realisation of good, as can be seen from the Hadith where the Prophet is reported to have said: “When I order you to do something, do it to the extent of your ability, but when I forbid you from something, then avoid it altogether”. The third category of masalih, known as the tahsiniyyah, are in the nature of desirabilities. They seek to attain refinement and perfection in the customs and conduct of the people, at all levels. The Shari’ah thus encourages cleanliness of the body and attire for the purposes of ’ibadah, and recommends, for example, the wearing of perfume when attending the Friday congregational prayer. The Shari’ah also encourages the giving of charity to those in need, over and above the obligatory Zakat. Again in the area of ’ibadah, it recommends supererogatory prayers and voluntary fasting. In customary matters and interpersonal relations, the Shari’ah encourages al-rifq (gentleness), husn al-khulq (pleasant speech and conduct) and ihsan (fair dealing). The judge and the head of state are similarly advised not to be too eager in the enforcement of penalties, as this is considered to be undesirable. The purpose of all this is the attainment of refinement and excellence in all areas of human conduct. The tahsiniyyah are a very important category, as they are all-pervasive and relate to all the other masalih. One can perform the obligatory Salah, for example, in different ways. It may vary from performing it with full and proper concentration, giving each of its parts their due attention, to performing it with haste and thoughtlessness. The difference between the two ends of the spectrum is that at one end the Salah is espoused with the attainment of both the essential and the desirable, and at the other end, it can at best be seen as discharging a duty. One can extend this analysis to the implementation of almost all the ahkam of the Shari’ah, and indeed, to almost every area of human conduct. CONCLUSION The maqasid are undoubtedly rooted in the textual injunctions of the Qur’an and Sunnah, but they look mainly at the general philosophy and objectives of these injunctions, often beyond the particularities of the text. The focus is not so much on the words and sentences of the text as on the goal and purpose that is advocated and upheld. By comparison to usul al fiqh, the legal theory of the sources, the maqasid al Shari’ah are not burdened with methodological technicalities and literalist readings of the text. As such the maqasid integrates a degree of comprehension and versatility into the reading of the Shari’ah that is in many ways unique and rides above the vicissitudes of time and circumstance. At a time when some of the important doctrines of usul al-fiqh, such as ijma’ (general consensus), and qiyas (analogical reasoning) and even ijtihad, seem to be burdened with difficult conditions, conditions that might appear to stand as a measure of disharmony with the prevailing socio-political climate of the present day Muslim countries, the maqasid have become the focus of attention as it tends to provide ready and convenient access to the Shari’ah. it is naturally meaningful to understand the broad outline of the objectives of the Shari’ah in the first place before one tries to move on to specifics. An adequate knowledge of the maqasid thus equips the student of Shari’ah with insight and provides him with a theoretical framework in which the attempt to acquire detailed knowledge of its various doctrines can be more meaningful and interesting. Mohammand Hashim Kamali is Professor of Law at the International Islamic University Malaysia. He is author of numerous articles published in learned journals and many works including Principles of Islamic Jurisprudence, Criminal Law in Islam and Freedom of Expression in Islam. [/size][/font] Full Essay At: http://www.aml.org.uk/journal/3.1/Kamali%20-%20Maqasid.pdf The Book: http://www.its.org.uk/descriptions/book_0946621810.html |
| Science and Fiqh of Hadith |
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| sofia |
| 03/31/03 at 12:00:38 |
| [i]Mashaa'Allaah. JazaakAllaah khair, Tawbah, wish more of Kamali's work was online. Particulary his "Faith and Freedom" and "Dignity of Man" books, which I'd recommend to everyone, in light of current events.[/i] ------------------------------------ The Science of Deducting and Classifying of Hadith Allah, subhana watala, says in His Book : Say: "Obey Allah and obey the Messenger, but if you turn away, he (Messenger Muhammad ) is only responsible for the duty placed on him (i.e. to convey Allah's Message) and you for that placed on you. If you obey him, you shall be on the right guidance. The Messenger's duty is only to convey (the message) in a clear way (i.e. to preach in a plain way)." [Quran Surah An-Nûr # 24 Verse #54] Allah (SWT) preserved the Sunnah by enabling the companions and those after them to memorize, write down and pass on the statements of the Prophet (PBUH), and the descriptions of his way, as well as to continue the blessings of practicing the Sunnah. From al-Irbaad ibn Saariyah [Radiy'Allaahu anhu] who said: Allah's Messenger gave us an admonition which caused the eyes to shed tears and the hearts to fear, so we said, "O Messenger of Allaah, this is as if it were a farewell sermon, so with what do you counsel us?" So he said: "I have left you upon clear proof , its night is like its day, no one deviates from it except one who is destroyed, and whoever lives long from amongst you will see great controversy. So stick to what you know from my Sunnah and the Sunnah of the orthodox, rightly-guided caliphs - cling to that with your molar teeth, and stick to obedience even if it is to an Abyssinian slave, since the believer is like a submissive camel, wherever he is led, he follows" [Imaam Ahmad in his Musnad (4/126), Ibn Maajah (no. 43), al-Haakim (1/96) and others - as Hasan] Later, as the purity of the knowledge of the Sunnah became a concern, Allah (SWT) caused the Muslim Ummah to produce individuals with exceptional memory skills and analytical expertise, who travelled tirelessly to collect thousands of narrations and distinguish the true words of prophetic wisdom from those corrupted by weak memories, from forgeries by unscrupulous liars, and from the statements of the large number of Ulama (scholars), the companions and those who followed their way. All of this was achieved through precise attention to the words narrated, and detailed familiarity with the biographies of the thousands of reporters of hadith. The methodology of the expert scholars of hadith in assessing the narrations and sorting out the genuine from the mistaken and fabricated, for ms the subject matter of the science of hadith. Below is a brief discussion of the terminology and classifications of hadith... [Please click [url=http://www.fiqh.net/fiqhHome/ScienceofHadith.htm]here[/url] for the rest of this article] ---------------------------- Other articles on the Fiqh and Science of Ahaadith (or narrations of the Prophet's sunnah/tradition) [url=http://www.fiqh.net/fiqhHome/ahadHadith.htm]Using the Aahad Hadith in Issues of 'Aqeedah[/url] [url=http://www.islaam.com/Article.aspx?id=232]Indispensability of Hadith[/url] [url=http://www.islaam.net/display/display.php?id=20&category=6]Hadeeth: Rules for Acceptance and Transmission[/url] [url=http://www.islamzine.com/sunnah/shadith.html]The Science of Hadith[/url] |
| NS |
| 03/31/03 at 22:17:17 |
| sofia |
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