Quran 1. Introduction: The Holy Quran is the name name of book consisting consisting of those direct direct revelations which which were made to the Holy ProphetHazrat Muhammad (Pace Be pon Him!" #t is in the very words of $llah almighty" Quran is the primary source of law" #t is %rst in the order of primary sources and thus the %rst search for a hukm is to be in the Quran and the &urist should not move to the ne't source unless the search in the Quran has been completed" 2. Meaning and defnition o holy Quran. (#! Meaning Quran is derived from the $rabic word Quran) a which means *To dead+" (##! ,e%nition Many &urists have attempted to de%ne" Holy Quran- but they maintain that the purpose of de%nition is not to grasp the nature of the Quran" ,e%nition by $l.Bazdawl" *The Quran is the book revealed to the messenger of $llah- Muhammad (Peace Be pon Him! as written in the masahif and transmitted to us from him through an authentic continuous narration without doubt"+ 3. Revelation o the holy Quran Holy Quran is a book of $llah which is revealed to Holy Prophet (Peace Be pon Him!" The %rst revelation revelation came to the Holy Holy Prophet Prophet (Peace Be pon pon Him! when he was was forty years of age" /ollowing verses of 0urah.$l.$la1 0urah.$l.$la1 were revealed to him" *2ead in the name of thy lord- who create the man from a clot"+ *2ead3 $nd it is thy lord the most bountiful" 4ho teacheth by the pen" Teacheth man that which he knew not"+ ($l.$la1 5.6! 4. Attributes o the holy Quran There are are 66 alternative names names or attributes of of the holy Quran e" g $l.7itab- $l./ur1an$l./ur1an$l.8oor etc" . Quran as a source o la! The holy Quran is a complete complete code of creed and and morals as well as of the laws based thereupon" The Quran seeks to guide man in all walks of life spiritual temporalindividual and collective Quran says" *$nd we have revealed the scripture unto the only that thou may e'plain unto them that wherein they di9er- and (as! a guidance and a mercy for a people who believe" (5: :;! *There are are the limits of $llah (hadud $llah! so do not near them"+ (< 5=>! (#! ,ivisions of verses of holy Quran The holy Quran is divided into into ?@ division called $&za or Paras Paras and into 55; chapters chapters called 0urrah" 4hich considts of :::: verses" These verses divided in three sections or portions"
(i! /irst portion /irst portion deals with religion and its duties e" g" belief in one $llah- day of &udgement etc" (ii! 0econd portion 0econd portion deals with Quranic ethics" (iii! Third portion Third portion is is related with Muamalat" Muamalat" #t regulates regulates the relationship relationship of individuals among themselves- with states etc" it deals with sales and purchase- lease and mortgagesevidence- torts and contracts etc" (##! $hkam in the holy Quran Two Two main categories of Hukm have been classi%ed classi%ed by the Muslim &urists" &urists" (i! Hukm Takli% (ii! Hukm 4adi (i! Hukm Takli% The aim of the hukm Ta1li% is to create create an obligation for the commission commission or omission omission of an act" (ii! Hukm 4adi The aim of hukm wadi is to either inform inform a sub&ect that certain certain thing is a cause of condition for or obstacle to a hukm or is to e'plain the relationship that e'ists between two rules or to provide the criterion for &udging whether an act perform is valid or not" (###! Aategory of laws reveled Most of the verses containing rules of law were revealed with reference reference to cases which arose during the lifetime of the holy Prophet (Peace Be pon Him!" These may be categorized as under" (i! $brogating verses erses which repeal or abrogate ob&ectionable customs like usury gambling and unlimited polygamy" (ii! erses a9ecting social reforms erses which a9ects social reforms reforms such as by raising the legal status of woman- setting the 1uestion of succession and inheritance on e1uitable basis" (iii! erses providing rights erses providing protection for the rights of minors and other persons under disability" (iv! Penal verses erses providing principal f punishment for the purpose of securing place and order" (v! Cegal verses These are the verses providing providing constitutional and administrative administrative matters" These verses principally principally occur in the madni 0urahs" 0urahs" "#I$ %ature o la!s lays do!n
The Holy Quran is a code of conduct laying down the fundamental principles and not the detailed provisions so in case of ambiguity reference should be made to the 0unnah" &. 'osition in 'a(istan Pakistan is an #slamic state and since the creation of Pakistan- attempts have been made at di9erent times to modify the e'isting laws in the light of Quran and 0unnah" $rticle <<> of constitution of Pakistan 5D>?- runs as follows" *$ll e'isting laws shell be brought in conformity with the in&unctions of #slam as laid down in the holy Quran and 0unnah"+ ). *onstitutional status o Quran #n the west constitutional law is called the supreme law of the land" #n #slamic &urisprudence Quran is theconstitutional law" #t has all those features which a modern constitution have" The Quran provides all norms and principal for statehood" +. *onclusion To conclude- # can say- that the holy Quran is the %rst primary source of #slamic law" $ll other sources derive their validity from the holy Quran which is in the direct words of $llah almighty who is complete sovereign over the entire universe- but it is to be noted that it is not a book of law" #t is a book of guidance for the mankind- so it does not contain a detailed corpus of legislation"
,unnah - adis 1. Introduction 0unnah is the second primary source of #slamic law" #f the mu&tahid does not %nd a te't in the Quran for a case he has to settle- he has recourse to the 0unnah for the derivation of the Hukms" There is a special bond between Quran and 0unnah which must not be severed as 0unnah is the e'planation of the holy Quran" 2. Meaning (#! Citeral meaning The word 0unnah stands for the *4ell know path+ or *4ell.trodden path"+ 4hich is followed again and again" (##! Technical meaning *4hat was transmitted from the messenger of $llah (Peace Be pon Him! of his wordsacts and (trcit! approvals"+ 3. /inds o ,unnah /ollowing are the kinds of 0unnah" (i! $ccording to its nature (ii! $ccording to its written record (#! $ccording to its nature
$ccording to its nature- 0unnah is of following types" (i! 0unnah al Qawliah #t is the saying or narration of the prophet (Peace Be pon Him! through which he intended the laying down of the law or the e'planation of the $hkam" E'ample (i! *Ca darar 4a.la dirar+ (8o in&ury is to be caused and none is to borne! (ii! 0unnah $l /iliyah #t is de%ned as the deeds and practices of the Prophet (Peace Be pon Him! having a legal content like his prayers- fasts etc" (iii! 0unnah Ta1ririyah #t is de%ned as the commission of certain acts- by word or deed" #f something was done in a particular way andProphet (Peace Be pon Him! maintained silence without e'pressing disproval to it- his silence in such a case is called ta1rir or tacit approval and is considered a 0unnah" (##! $ccording to its written recode 0unnah may also be classi%ed according to its entire written record- that is $hadith" ($! ,ivision of $hadith 4ith respect to its narration- $hadith are divided into two types" (i! Hadith Muttasil (ii! Hadith Mursal (i! Hadith Muttasil The hadith whose chain of narration" #s complete" These are the ones in which the narrator are mentioned from the beginning of the sands upon the Prophet (Peace Be pon Him!and no narrator is missing" Types of hadith Muttasil /ollowing are the types of hadith Muttasil (a! Hadith Mutawatir #t is one that is related by such a large umber of people that their agreement to propagate a falsehood cannot be conceived" Twatur is of two types" Twatur Cafzi 4hen all the narrators agree about the words as well as meaning the hadith is called twatur Cafzi" /or e'ample" /ollowing Hadith is twatur Cafzi" *He who attributes falsehood to me should prepare his abode in the %re"+ Twatur Manawi (Meaning! #t is a Hadith which coveys the same meaning even if the words are not e'actly the same" (b! Hadith Mashhur
The mashhur tradition is one the number of whose reporters do no reach the level of twatur in the %rst generation" Thus if one or two companions related the tradition from the prophet but in the ne't generation of tabium- a very large number related from them and so on till the end of the chain when the traditions were compiled then such a tradition is called mashhur" (c! Hadith $had The Hadith $had or the 7habar 4ahid is reported by one or two persons from the beginning of its chain up to its end when all traditions were recorded" (ii! Hadith Mursal Hadith Mursal is one that is not continuous and one or more names of the narrators are missing from the chain of narration the &urists disagreed about the employment of a Mursal hadith as proof for a Hukm" 4. ,unnah as a source o la! $llah almighty has delegated legislative powers to the Holy Prophet (Peace Be pon Him!" The Quran from time and again makes the prophetic 0unnah as obligatory on the Muslims the reason why 0unnah is treated as a source of law is based on the argument that 0unnah of Holy Prophet (Peace Be pon Him! was also revealed on him" *$nd came to you from Fod the light (Prophet! and the book+" (0urah $l.Maida 56! *$nd remember what is read in your houses out of the Quran and the Hikma (sunhah!" (surah.$l.$hzaab ?;! (#! ,erivation of the authority of 0unnah The authority of the 0unah as a source of law is derived from the Quran" /ollowing Quranic verses throws light on the importance of 0unnah" *#f ye di9er in anything among yourselves- refer it to the $llah and his Prophet+ (Peace Be pon Him! (0urah $l.8isa 6D! *$nd he does not speak of his own desire all is revealed on him"+ (0ura $l.8ahal! *He who obyes the Prophet (Peace Be pon Him! obeys $llah+" (0urah $l 8isa =@! (##! Cegislative function of 0unnah 0unnah is the second primary source of law" The &urists must recourse to the Quran %rst for the search of the Hukm and should not move to the 0unnah unless the 0earch in the Quran has been completed" More often than not- it is not possible for the &urist to understand the meaning of the te't of the Quran for the derivation of the $hkamsunless he has recourse to the e'planation and commentary of the Quran which is 0unnah itself" (i! Quali%cation for 0unnah as source of law #t is not every 0unnah that is a 0ource of law" To 1ualify 0unnah as a source of law- it is necessary that the acts must have a legal content" The purpose of the saying or acts of the Holy Prophet (Peace Be pon Him! should be the laying down of the law or its
elaboration" (ii! Griginal law.making by 0unnah 4here some Hukm is not mentioned in the Quran and Holy Prophet (Peace Be pon Him! decides it according to its own wisdom- it becomes a source of original law making" (iii! Cegislative function of 0unnah with respect to holy Quran or relationship between Quran and 0unnah" Quran laid down the basic principles and 0unnah e'plains these principles" The legislative function of 0unnah withrespect to the Holy Quran or the relationship between Quran and 0unnah can be discussed as under" (a! 0peci%cation of general rule The $hkams in the Quran is in general- undetermined form" The 0unnah restricts or 1uali%es these $hkams" E'ample Quran says that * for the male two shares of the female the 0unnah e'plains that the murdered will not inherit" (b! Elaboration of $hkams The $hkams in Quran are general in unelaborated from" The 0unnah elaborates these $hkams" E'ample Quran order prayer- 0unnah provide for timing- number and 2ak) as of prayers" (c! $nalogy on the basis of rule in Quran The 0unnah may add or supplement the legal provision of the Quran" Quran prohibits marriage of two sisters with one man" 0unnah prohibits it which maternal or paternal aunt" (d! Cinkage of case with well known principle 0unnah links a case with the well.known principal mentioned in the Holy Quran" E'ample Quran has permitted all goods things and has commanded the avoidance of 7habaith" The 0unnah has linked with the 7habith the consumption of animals with morals and birds with claws" (e! Feneral principal laid down by 0unnah 0ome times 0unnah lays down a general principal" E'ample 0unnah lays down the principal *8o in&ury is to be caused or borne"+ Quran mentions a number of cases in which in&ury t others has been prohibited" (f! E'planation of the implicit The Quranic in&unctions are sometimes implicit and the 0unnah makes it e'plicit by providing the details"
E'ample Quran provides that the hands of each thief are to be cut" The 0unnah restricts this to the thief who steals wealth e1uivalent to the 8isab and from the protective custody" . 0ierence bet!een ,unnah and adith Hadith is the noun derived from the word *Hadatha+ which means a tale or verbal communication of any kind" #n legal sense Hadith means saying of Holy Prophet (Peace Be pon Him! which must be practiced" 0unnah and Hadith means one and the same thing- yet there are few di9erences between these two terms" (i! $s to meaning Hadith means saying of Holy Prophet (Peace Be pon Him! 0unnah refers to every saying of Holy Prophet (Peace Be pon Him! and to every act which he did or performed and every act which was permitted to be done by him" (ii! 0cope 0unnah is bigger in scope Hadith is narrow in scope as it refers to only the sayings of Holy Prophet (Peace Be pon Him! (iii! $s to element 0unnah is a complete term which has three elements Hadith is one element of 0unnah" (iv! $s to activity Hadith consisted in some sort of activity" There must be saying of the Holy Prophet (Peace Be PG8 Him!" #n 0unnah- there may be no activity" #t may be that act of Holy Prophet (Peace Be pon Him! where he kept 1uiet in case he saw people doing a particular thing" (v! $s to collection Hadith have been collected and compiled in a proper form Aollection of 0unnah was never made and it is out of collection" &. *onstitutional status o ,unnah #n constitutional making 0unnah has a great role" Fod has delegated legislative powers to the Holy Prophet" He (0" $" 4! gave practical shape and concrete form to the in&unctions of Quran" ). *onclusion To conclude- # can say- that 0unnah is the second primary source of #slamic law" #t is interlinked with the Quran insofar as it restricts its general meaning or 1uali%es its absolute te'ts or e'plains its dicult words"
Qiyas
1. Introduction Qiyas is the secondary source of #slamic law" $ll the four schools of #slamic &urisprudence agree that in matters which have not been provided for by a Quran- Hadith or #&ma- the law may be deduced from what has been laid down by any of these three authorities by the use of Qiyas or analogy" 2. Meaning and defnition o Qiyas (#! Meaning (i! Citeral Citerally the word Qiyas means measuring or estimating one thing in terms of another" (ii! Cegal #t is process of deduction by which the law of a te't is applied to cases by reason of the te't" (##! ,e%nition $ccording to Hana%s *#t is e'tension of law from the original te't to which the process is applied to a particular case by means of a common #llat or e9ective cause- which cannt be ascertained merely by interpretation of the language of the te't"+ 3. rigin and develoent o Qiyas Gwing to the ever growing needs of society and the e'pansion of #slamic religion beyond the limited boundaries of $rabia- it was felt that the rules have to be deuced to meet the dynamic character of the society" To ful%ll this need- the doctrine of Qiyas was originated by eminent &urists" 4. Arguents in suort o Qiyas (#! Quranic verses in support of it /ollowing Quranic verses support the necessity of Qiyas" *$nd certainly we have setforth for mankind in this Quran all kinds of similitudes- that haply they may reIect"+ (##! $hadiths in support of it 4hen the Holy Prophet (Peace be pon Him! 0ent Maaz Bin Jabal to Kemen as governor he said to him" *How are you going to decide cases Maaz answeredL (by the light of! what is in the book of Fod" The Prophet (Peace be pon Him! nest askedL and if you do no %nd anything in the Quran to guide you * # will decide in the way the Prophet (Peace be pon Him! has been doingL But in1uired the Prophet (Peace be pon Him! N#f you do not %nd any procedure from me what then) # will do my best by e'ercising my &udgement" The Prophet (Peace be pon Him! there upon happily agreed" . 5leents o Qiyas Qiyas has following elements (#! $sl
The original case covered by the ne't" That is the root case or even the base upon which the analogy has been constructed" (##! Hukm.$l.$sl The hukm of the original case mentioned in the te't" (###! #llah The underlying cause of the Hukm- which is determineds by the &urist is called the illah" (#! /ar The new case to which the hukm is e'tended is called the far or the o9shoot" #t is the case which is analogically compared with the asl" &. /inds o Qiyas $ccording to Hana%s- following are the kinds of Qiyas" (i! Qiyas Jail (Manifets! (ii! Qiyay 7ha% (Aoncealed! ). *onditions or the validity o Qiyas /ollowing are the conditions of a valid analogical deduction of Qiyas" (#! Griginal te't not con%ned to particular facts The law enunciated in the ne't to which analogy is sought to be applied must not have been intended to be con%ned to a particular state of facts" E'ample The Holy Prophet (Peace be pon Him! said that if Hazrat 7huzaima (2"$! Testi%ed for any one- it is more than enough for him" 0ince tradition is personi%ed- it does not lay down a general rule of testimony" (##! Griginal te't capable of understanding The law of the te't must not be such that its rais on d) etre cannot be understood by human intelligence nor must it be in the nature of an e'ception to some general rule" E'ample Eating by mistake during 2amzan by one who is fasting does not vitiate his fast- &ust because this is a Quranic te't- no analogy can be applied on this rule" (###! ,eduction should be corollary to te't law The rule deduced by Qiyas must not be opposed to a te't law nor covered by the words of a te't" #t should be in the nature of corollary of the te't law" (#! 8ot change the law of te't (! $nalogy applies to cause and not to vocabulary The analogy must not be applied to the vocabulary of the te't but to the e9ective cause on which the law is based" +. ,coe o 6iyas as a source o la! The function of 1iyas is to e'tend the law of the te't to cases not falling within the purview of its terms and not to establish a new rule of law" By application of analogy the
law embodied in a te't may be widened generally" Qiyas has no application to pure inference of facts which are to be made by the observations of science" 7. %ature o its authority as a source o la! Qiyas as a source of law do not rank so high as authority as Quran- Hadith and #&ma does" The reason is that with respect to analogical deduction- one cannot be certainthat they are what the law giver intended" 18. 59ales o 6iyas (i! There is a tradition from the Holy Prophet (Peace be pon Him! that says*the murdered will not inherit"+ By applying 1iyas the rule is e'tended to the be1uest and the murderer legatee is prevented from taking the be1ueathed property" ( ii! $t the time of /riday prayers indulging in sale is prohibited by Quran" By applying analogy this hukm is e'tended to other contracts like pledging or marriage that may have been planned at such a time" 11. 0ierence bet!een Qiyas and Ia Qiyas is the opinion based on the similitude of circumstance whereas #&ma is a consensus of learned" 12;. *onclusion To conclude - # can- say that Qiyas is a process of deduction by which the law of a te't is applied to cases which though not covered by the language- are governed by the reason of the te't" #t is subordinate to the Quran- 0unnah and #&ma and permissible to meet the changing needs of time"
Istihsan 1. Introduction #stihsan means preference of one over another considering the formed good" 4hen a rule of law deduced by analogy is either in conIict with #&ma or is likely to causes inconvenience owing to its narrowness" The Han% &urists refuse to follow it and give preference to rule- which in his opinion would better advance the welfare of man and the interest of &ustice" 2. Meaning and defnition o Istihsan (#! Meaning #n its literal sense #stihsan means *to consider something good"+ (##! ,e%nition (i! By 7harkhi *#n case of some legal problem e'ception is created from its analogous precedent on the basis of some stronger argument which render it distinguishable"+ (ii! By $l Bazdawi *Moving away from the implications of analogy to an analogy that is stronger than it- or
it is the restriction of analogy by an evidence that is stronger than it"+ (iii! By $l Hawani 3. Recoginition o rincial o Istihsan The doctrine of #stihsan is accepted by the Hana% and Maliki 0chools only and not the others" 4. Reasons or Istihsan (#! Quranic view *erily- we call upon you to be a man of &udgement and do &ustice"+ *Those who intently listen to us- they follow the best of it- those are the ones whom $llah has guided and those are the ones endowed with understanding"+ (##! $hadith perspective *,on)t cause in&ury to other and don)t su9er a loss yourself"+ *4hat does Muslim consider better $llah also consider it better"+ . rigin o Istihsan $bu Hanifa was the e'pounder of this doctrine" He feel that the man has been endowed with intelligence to use his own common sense so that he does what he thinks %t" The Hana% lawyers speak of this doctrine $sif it was a species of analogical deduction" They call it as hidden analogy" &. /inds o Istihsan /ollowing are di9erent kinds of #stihsan (i! #stihsan. e. Qiyasi (ii! #stihsan. e. Oarurat (iii! #stihsan. e. #&ma (#! #stihsan.E.Qiyasi nder this type of #stihsan one can bend the law in favour of people and society by giving preference to one Qiyas over the other Qiyas i" e" preference of Qiyas 7ha% over the Qiyas Jali" (##! #sthsan.E.Oarurat #n this type it is to give preference to one 0unnah over the other 0unnah" E'ample sually all Muslims say prayer by 0tanding- but there are more than one 0unnah about saying prayer i" e" by standing" By sitting or by lying on the bed or Ioor" Gne is at liberty to prefer one way over the other but according to his need" (###! #stihsan.E.Cima #f two #&ma are available on a similar 1uestion of law) then under #stihsan.e.#&ma one can adopt that one which is closer to Quran and 0unnah" ). Iortance o Isthsan as s source o la! #slamic legal system is not a rigid one rather is much Ie'ible to be adopted according to
the changing circumstances and needs of society the principal of #stihsan provides an opportunity to the &urists to interpret the law according to the spirit and true intention of #slam- and avoids inconvenience and- hardship within the limits prescribed by Quran and 0unnah #slamic 0hariah is based on the principle of convenience e1uity and public goodwhich are also the main features of #stisan" #t is the more e9ective mean than Qiyas for introducing new elements- since in its case the rules for determining the cause are even subtler than in the case of Qiyes- and conse1uently a9ord greater probabilities" +. 59ales o Istihsan (i! $ccording to Qiyas- the appointment of minor is invalid for the trustee as he should ma&or" But according to #stihsan- a minor is recognized as trustee and the Qazi should appoint a competent person to act as his Fuardian through whom the minor will administer the property till he attains the age of puberty" (ii! #slam gives a great importance to the proper dress of a woman" 8o one e'cept her husband can see her naked but on account of necessity a physician may be allowed" ( iii! $nalogy re1uire that ritually pure water should be used for ablution #sithsan re1uires that the use of wells- in which dirt or carcasses of animals have fallen- be permitted" 7. *riticis against Istihsan /ollowing criticism has been raised against the doctrine of #stishsan" (#! By #mam 0ha% #mam 0ha% has criticized #stihsan in his books 7itab.ul.rn and 7itab.ul.2isala" He is of the view that #stihsan means the sub&ective appreciation of a &urist regarding the interpretation of laws laid down in Holy Quran and 0unnah" Therefore it is similar to create a new 0haraiah" He is reported to have said" *4hoever restorts to #stihsan makes laws"+ (##! By #mam Fhazali #mam Fhazail criticized #stihsan as a source of law" He said that #slam does not allow to neglect the laws laid down in Holy Quran and 0unnah but by e'ercising #stihsan - new 0harish can be created" (###! By orientalists They say that whet it is universally established that laws laid down in Holy Quran and 0unnah cannot be changed- then how #stihsan can be e'ercised by ignoring such laws" This ob&ection is not &usti%ed because no Muslim could re&ect the law of Quran and 0unnah" 18. Istihsan as 56uity #t has rightly stated by sir $bdur 2ahim that Quran and 0unnah are legislation- and if analogy is common law- #stihsan is its e1uity" Just as in the case of English law- the concept of e1uity developed side by said with common law mainly designed to remedy the strictness of the law and to impart &ustice in the real sense of the word in the same
manner- #stihsan developed as the watchdog of analogical deduction" 11. 0ierences bet!een
Istidlal 1. Introduction #stidlal is a method of &uristic deduction not falling within the scope of analogy" The Hana% &urists uses the word more or less in the sense of inferring a thing from another thing in connection with the rules of interpretation" 2. Meaning o Istidlal (#! Grdinary meaning #n ordinary use- #stidlal means the inferring from a thing another thing (##! Meaning used by Malik and 0ha% *#stidlal is the name for a distinct method of &uristic ratiocination- not falling within the scope of interpretation or analogy"+ 3. /inds o Istidlal #stidlal is of three kinds (i! E'pression of connection e'isting between two proposition (ii! #stihsab.ul.hal
(iii! $uthority of previous revealed law (#! E'pression of connection e'isting between two propositions The e'pression of the connection e'isting between one proposition and another without any speci%c e9ective cause" #t is of the following varieties" (i! Aonnection between armative propositions 4hen the connection is between two armative propositions" E'ample The proposition that every one who is competent to give a valid Tala1 can also make a valid Oihar" (ii! Aonnection between negative propositions 4hen the connection is between two negative propositions" E'ample The statement that if a regular ablution were valid without speci%c intention- then a substitutory ablution (4azu! would also be valid" (iii! Aonnection between armative and negative proposition 4hen the connection is between an armative and a negative proposition" E'ample The proposition that what is permissible cannot be haram or forbidden" (iv! Aonnection between negative and armative proposition 4hen the conne'ion is between a negative proposition and an armative proposition" E'ample The statement that what is not valid forbidden" (##! #stihsa.$l.Hal The word #stishab means the continuance of companionship technically it means the presumption of continuance of an earlier rule of its continued absence" #t this sense it means the maintenance of a status 1uo with respect to the rule" #t is merely a set of presumptions and not a source of law" ($! Basis of #stihsab The following general principles from the basis of #stihsab" (i! The presumption is that all things are permitted- unless prohibited by the shariah" This rule applies to bene%cial things alone e" g" food drink etc" (ii! There is no presumption of liability against anyone and all liability has to be proved" (iii! Gnce a thing is established beyond doubt it can only be set aside through an e1ually certain evidence" (B! 4here #stihsab not apply 4here there is no hukm that had been established through a valid evidence- the
principle of #stihsab does not apply" (###! $uthority of previous revealed laws $ccording to the Hana% law- only such laws of the previous revealed religions are binding- as have been mentioned in the Holy Quran without disapproval" 4. *onclusion To conclude- # can say- that #stidlal as a method of &uristic deduction includes all forms of ratiocination which do not fall within the scope of analogical deduction" $ccording to Qazi dud the Hana% doctrine of #stihsan as well as the Maliki doctrine of public good are covered by #stidlal"
Itihad and =a6lid 1. Introduction #&tihad is one of the dependent sources of #slamic law" #f a matter is not resolved e'pressly in a Quran- 0unnah and by way of #&ma the &urist must not leave the matter unresolved rather he should strive hard to %nd out the solution under the light of Quran and 0unnah" 2. Meaning and defnition o Itihad (#! Meaning of #&tihad (i! Citeral #&tihad literally means striving- e'pending of ma'imum e9ort in the performance of an act" (ii! Technical #t is the e9ort made by Mu&tahid in seeking knowledge of the $hkam (rules! of the 0hariah through interpretation" (##! ,e%nition of #&tihad *#&tihad means the application by a lawyer of all his faculties to the consideration of the authorities of the law- that is the Quran- Traditions and the #&ma- with a view to %nd out what in all probability is the law" 3. Arguents in suort o Itihad /ollowing Quranic verses are in favour of #&tihad" *$nd we have revealed on you the book which describes everything"+ *4e have omitted nothing from this book"+ *Then ask those who have knowledge - if you yourselves do not know"+ (##! $hadith in support of #&tihad /ollowing $hadiths are also in support of #&tihad" *E'ercise #&tihad because Fod makes the work easy for the person for which he is born in this world"+ *4hen a ruler e'ercise #&tihad properly in resolving an issue- he is to be rewarded by Fod
in dual way and if he is wrong in his conclusion- he gets one reward"+ 4. >unction o Mutahid /ollowing are the functions or takes of the Mu&tahid" (i! To discover the law that is either stated e'plicitly in the primary sources or is implied by the te'ts- that is- literal interpretation" (ii! To e'tend the law to new cases which are similar to cases mentioned in te'tual sources" (iii! To e'tend the law to new cases which are not covered by the previous methods" . ?iitations on Itihad #&tihad cannot be made in cases which are covered by the e'press words of QuranHadith or has been determined by #&ma" $ &urist cannot e'ercise #&tihad on the basic pillars of #slam e" g" paying of Oakat- Prohibition of murder etc" *PC, 5D=5 /0c
$ mu&tahid must be a ma&or i" e" has attained the age of ma&ority so a minor cannot be a mu&tahid" (ii! 0ound and rational mind He must be of sound mind- possessing the understanding and of sucient intellectual to grasp the sub&ect" (iii! 7nowledge of grammar He must have average knowledge of the $rabic language and recognize the principles of &urisprudence and sources of law i" e Quran- 0unnah etc" (iv! $c1uaintance with the principal of 0hariah He must have well versed with the main principles of 0hariah or the legal code so as to be able to ascertain the true intention of the law.giver" (v! 7nowledge of 8askh The mu&tahid must understands abrogation (8askh! and identi%es the occasions on which rules have been repealed by law.giver" (vi! 7nowledge to circumstances of Quranic revelations $ Mu&tahid must know the circumstances in which the te'ts of Holy Quran were revealed or repealed" (##! $ccording to /akhural #slam The great thinker /akhural #slam enumerates the following conditions" (i! Aonversant with #slamic &urisprudence $ Mu&tahid must be conversant with the science of #slamic &urisprudence and the rules of law applied in various departments" (ii! 7nowledge of the Quran a Mu&tahid should have knowledge of Quran together with its meaning both literal and dictionary and he must be able to interpret its verses" (iii! 7nowledge of the traditions $ Mu&tahid should have knowledge of the traditions as well" He must fully familiar with the traditions reported by from the Holy Prophet (Peace be pon Him! and able to distinguish between authentic and un.authentic Matwatar and Mashhoor traditions" He must be familiar with the rules for authenticity leading to the genuineness of the traditions" (iv! $c1uaintance with the rules of analogical deduction $ Mu&tahid must be aware of and full conversant with the rules and methods of analogical deductin" (###! Gther 1uali%cations /ollowing are also considered as necessary 1uali%cations of Mu&tahid" (i! He must have faith and the courage of conviction" (ii! He must have competence and advanced pro%ciency in $rabic language and
literature" (iii! $ comprehensive understanding of /i1h- the basic principals and other relevant matters" (iv! He must understands the di9erent forms of bayan or elaboration of the te'ts- which is usually provided by the law.giver himself- and also identi%es the occasions on which such bayan is invoked" (v! $ proper understanding of modern development and a reasonable appraisal of contemporary e'igencies" 7. /inds o Mutahid (#! Mu&tahidum %sh.shari These are the &urists who have an absolute and independent power of e'pounding the law e" g" $bu Hanifa Mailk- 0ha% etc" (##! Mu&tahidum %l madhhab The &urists having authority to e'pound the law according to a particular school comes into this category" They were the disciples of &urists of %rst rank like $bu Kusuf belong to Hana% school" These mu&tahids followed the fundamental principles laid down by their respective masters but not consider themselves bound to follow the general principals or arguments in particular cases- and they often profounder view opposed to those of their masters" (### ! Mutahidum fal masal)l The are the &urists who are competent to e'pound the law on a particular 1uestion which had not been settled by the &urist of %rst and the second class" The &urist of this rank is at liberty to lay down the law in conformity to the principles of his school e" g" 7hassafQadi 7han" (#! Mut&ahidum Mu1allid They are also called Mu&tahid Mu1ayyid" They have not any right to deduct the law but their function was to e'plain the law and draw inferences" Theses Mu&thahids are divided into four groups" (i! $shabu)i Takhri& (ii! $shabu) i Tar&ih (iii! $shabu)# Tashih (iv! $shabu)# 0hariah 18. ?egal eect o Itihad The legal e9ort of #&tihad is the probability of the conclusion so arrived at being correct but the possibility of such conclusion being erroneous is not e'cluded- that is why &uristic deductions are classed as discretionary or presumptive law" 11. Itihad and =a6lid #&tihad was performed by the &urists from about the ninth to 5
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ceased to develop further owing to the doctrine of Ta1lid" #t was declared that the doors of the #&tihad are closed and therefore further interpretation of the Quran 0unnah was not permissible" This view is over ruled by the modern &urists" (#! Meaning of Ta1lid (i! Feneral meaning Ta1ild means following the opinion of another person without knowledge of the authority for such opinion" (ii! Meaning in #slamic &urisprudence *Ta1lid means following the opinion of &urist in matters which have not been dealt with by an e'press 1uranic or traditionary te't or by #&ma+" (##! ,uty of layman Cayman is a person who has not made a study of law and religion is concerned- and the doctrine of Ta1ild applies only to those persons who do not possess the 1uali%cations of a Mu&tahid" (###! Ta1lid in Pakistan The constitution of Pakistan- 5D>? permits Ta1lid in articles 5=D and <@5" These articles make the &udgments of the supreme court binding on all courts and the &udgments of the High courts binding on courts subordinate to them" 4hen the lower courts follow the opinions of the higher courts they are performing Ta1ild" (# ! Two schools of Mu&tahsdeen There are two school of Mu&tahadeen viz traditionalist and modernists the traditionalist school denies the right of #&tehad to later generations but the modernists asserts that the doors of #&thad are open and innovations in the #slamic law are Possible- provided one remains with the in&unctions and $hkam of the Quran and 0unnah they criticize the view that Ta1lide had taken over the place of #&tihad on the following grounds" (i! Quranic reference They very Quranic te't which is the principle of 0unni &urisprudence that all &uristic deductions are uncertain and #&tihad are closed- that will be in conIict with that fundamental" ( ! ,i9erence between Ta1lid and #&tihad (i! #n ta1lid a person in need of opinion has to follow the opinion of another person while in #&tihad a person does not follow the opinion of another person but derives the rule of conduct for himself directly from the sources of #slamic law" (ii! #n #&tihad a person must possess some necessary 1uali%cations while in Ta1lid a person not possess such 1uali%cations" (iii! #&tihad is a source of law- creating new law but Ta1lid is not a source of law" 12. Iortance o Itihad in odern !orld #&tihad is a living source of law" #t has become important in the modern times due to the
needs of the present time- such as economic - social and political changes- so that the Muslim society and people may become a powerful force in the modern times" 0hah 4ail ullah was the %rst Muslim thinker to propound a theory of cautious e'ercise of #&tihad" Then it was followed by 0ir syed $hmad 7han and $llama Mohammad #1bal" $ccording to $llama #1bal- #&tihad can be undertaken not only by an individual &urist but also by a legislative assembly recognizing the importance of #&tihad in the modern timesthe 0hariah ordinance of 5D==- in Pakistan had entrusted the task of making the laws in the country to conforms to the Qura and 0unnah to the &udiciary" 13. *onclusion To conclude- # can say- that the importance of #&tihad lies in the dynamic and Ie'ible spirit of #slam- which is a complete code of life for all times" 4ithin the limits imposed by the Quran and 0unnah- #slamic law can be interpreted by a mu&tahid who may be either an individual or a legislative assembly" This development will bring about a accommodation between the prescriptions and #n&unctions of #slam- on the one handand the imperatives of modern life on the other"
Ia 1. Introduction *#&ma+ is the primary source of law" #t means determination or consensus" The society which was established by the Holy Quran and the 0unnah is a living society so the $llah almighty gave sanction to the consensus of the Muslim to meet the arising needs of the time" 2. Meaning and defnition o Ia (#! Meaning of #&ma #&ma is the verbal noun of the $rabic word $&maa it is used in two senses" (i! ,etermination and resolution (ii! $greement upon a matter (##! ,e%nition of #&ma *#&ma is de%ned as agreement of the &urists among the followers of Mohammadan in a particular age on a 1uestion of law"+ 3.
Him! was the last ofthe Prophets (Peace Be pon Him!- so it necessarily follows that any rule of law- which is not found to be e'plicitly laid down in the Quran or by the precepts of the Holy Prophet- must be capable of being deduced from them- so #&ma is permitted" (#! Quranic verses in support of #&ma /ollowing Quranic verses support the conception of #&ma" *Kou are the best of man- and it is your duty to order men to do what is right and to forbid them from practicing what is wrong"+ *Gbey Fod and obey the Prophet (Peace be pon Him! and those amongst you who have authority"+ *#f you yourself do not know- then 1uestion those who do") (##! Hadith in support of #&ma /ollowing $hadith also support the concept of #&ma" *My following will never agree upon what wrong"+ *#t is incumbent upon you to follow the most numerous body"+ *4hoever separates himself (from the main body! will go to hell"+ . /inds o Ia /ollowing are the kinds of #&ma (i! E'press #&ma or #&ma Qawli (ii! Tacit #&ma or #&ma 0akuti (#! E'plicit #&ma E'plicit #&ma is one in which the legal opinions of all the &urists of one period coverage in relation to a legal issue- and each of them states his opinion e'plicitly" (a! #t may take place when all the &urists are garthered in one session and an issue is presented to them and they collectively e'pressed a unanimous opinion" (b! #t may also take place when an issue is raised in a certain period and all the &urists in turn issue similar fatwas independently and at sepaeate times" (##! Tacit #&ma (###! Tacit #&ma takes place when some mu&tahid issue a verdict on a legal issue and the rest of the mu&tahids come to know of it during the same period- but they keep silentneither acknowledge it nor refuse it e'pressly" &. @ho can eror Ia Gnly Muslim Mu&tahids or &urists can perform #&ma" He must possess the following 1uali%cations" (i! 0cholar of Quran and 0unnah (ii! 7nows Qiyas (iii! E'pert of $rabic language (iv! #mpartial thinking (v! 4ell versed with up to date knowledge
(vi! 7nows the principal of 8askh (vii! Aonversant with the science of usul and faro (viii! Aompetent to e'pound law" ). *onditions or the validity o Ia /ollowing are the conditions for the validity of #&ma" (#! #&ma by mu&tahids The #&ma must be performed by Mu&tahids i" e those who have attained the status of #&tihad" (##! nanimous opinion There must be unanimous opinion among all mu&thahids upon a Hukm shari" (###! Performed by Muslims $ll the &urists participating in #&ma must be from the mmah of Hazrat Muhammad (Peace be pon Him!" (#! $fter the death of Holy Prophet (Peace be pon Him! The #&ma must have taken place after the death of Holy Prophet (Peace be pon Him!" (! #n a determinate period The #&ma must be performed by &urists of single determined period i" e" of the same generation" (#! pon rule of law The #&ma must be upon rule of law and all.non legal matters are e'cluded from the domain of #&ma" (##! 2eliance upon sanad (Evidence! /or deriving their opinion- Mu&tahids should relied upon some sanad (evidence!" +. Ia as a source o la! #&ma as a third source of law and under the circle of Quran and 0unnah)s delegation many issues can be resolved by #&ma" (#! Enforcement of ordains of Quran and 0unnah #&ma as a source of law helps in discovering the law and enforces the principals laid down in Quran and 0unnah" (##! #nterpretation of 0haria #&am help in interpretation of laws of 0haria- according to the changing needs of times" (###! 8ew legislation can be made To achieve the ob&ects of Quran and 0unnah- new legislation can be made through the process of #&ma" (#! /irst #&ma performed by Muslims The election of Hazrat $bu Bakr to the caliphate by the votes of the people was based of #&ma" 7. ?egal eect o Ia
The law laid down by consensus of opinion is authoritative and binding" But in its theological sense- a decision of #&ma would be of absolute authority only if it conforms to the following conditions" (i! 8o opinion to the contrary should have been e'pressed on the 1uestion by any of the companions- or by other Mu&tahids before the formation of the #&ma" (ii! 8one of the Mu&atahids taking part in the decision should have afterwards changed his opinion" (iii! The decision must be proved as being either universally knows or well.knows" (iv! #t should be based on an e'press te't of the Quran or a tradition of a continuous or well.knows character" (v! #t must be regularly constituted" 18. Ia and !estern concet o oinion rudentiu *Gpinion prudentium+ which mea1ns the opinions and decisions of lawyers is parallel concept of #&ma in the western society" #n 2oman law the lawyers were empowered to give opinions by Emperor" 4ith the passage of time such opinions become part of their legal system" However the concept of #&ma has wider scope than the concept opinion prudentium which is also knows as *2esponsa Prudentium"+ 11. Ia in odern eriod $ccording to the accepted opinion of all four sunni schools- #&ma is not con%ned to any particular age or country" The underneath principal of #&ma is that if a rule or principal is upheld collectively by the highest legal forum in the land- then such a principle must be followed by those subordinate to this forum" #n the earlier stages- thisforum was con%ned to &urist companions then the leading &urists of each school" Today the forum would be the highest court in each Muslim country" 12. *onclusion To conclude- # can say- that #&ma is an essential and characteristic principal of 0unni Jurisprudence- one upon which the Muhammadan Aommunity acted as soon as they were left to their own resources" #t may be constituted by decision e'pressed in words or by practice of the &urists" The number of &urists participating in #&ma need not be large and #&ma of one age may be reversed by subse1uent #&ma of the same age"
0ierence bet!een add and =aBir 1. Introduction 4hen certain public rights are violated the wrong is called maasiat that is- crime or o9ence and it gives rise to certain substitutory public rights in the form of u1a)bat or punishments" iz Had and Tazir" The distinction between Hadd and Tazir is of fundamental importance and concerns the doctrine of Hadd itself" 2. =yes o unishent
Punishments are divided in to two types" (i! Hadd (ii! Tazir 3. add (#! Meaning of Hadd The word Hadd literally means limit" (i! Cegal meaning *Hadd means a punishment which is %'ed and en&oined as the right of $llah"+ (##! Grigin of Hadd punishment Hadd used to be prevalent in $rabic at the time of the promulgation of #slam- and the Muhammadan law has laid down conditions of a stringent nature under which such punishment may be inIicted" 4. =aBir (#! Meaning of Tazir (i! Citeral meaning Tazir literally means disgracing the criminal for his shameful conduct" (ii! Cegal meaning *Punishments that are at the discretion of the &udge when the o9ence is related to a private in&ury are called Tazir"+ . 0ierence bet!een add and =aBir There is no indication in sunnah about the di9erence between hadd and Tazir" #t would be open to legislature to add to the categories of Hadd and also enhance the punishment %'ed by the Quran and the 0unnah keeping in view the circumstances and re1uirements of an age- though the punishments so %'ed cannot be reduced (PC, 5D=? /0c <66! /ollowing are some points of distinctions between Hadd and Tazir" (#! $s to ob&ect The ob&ect of Hadd is prevention of a crime by following the principle of retaliation and keeps everyone in the limits prescribed by $llah" The ob&ect of Tazir is reformation and correction of the o9ender" (##! Procedure The procedure of trial in Hadd is complicated" The procedure of trial in Tazir is simple as according to some &urists &udge can even render &udgment on the basis of his own knowledge" (###! $s to right iolation of rights of $llah gives raise to Hudud punishments" iolation of rights of individual gives raise to tazir punishments" (#! Aommuting of sentence
The penalty of Hadd cannot be commuted" The penalty of Tazir can be commuted" (! Pardon of sentence Pardon cannot be granted in Hudud cases" Pardon may be granted in Tazir cases" (#! Gperation of mistake ,oubt or mistake has the e9ect of waiving the penalty of Hadd" ,oubt or mistake has no e9ect in Tazir" (##! 2ule of evidence The evidence of women is not admissible in hudud cases" The evidence of women is admissible in Tazir cases- but the nisab of one man and two women has to be maintained" (###! 0tandard of evidence #n Hudud- the standard of evidence is very high as to the number and 1uali%cations of witnesses and the conditions under which Hadd may be imposed and any doubt would be sucient to prevent the imposition of Hadd" #n Tazir- the standard of evidence is not so high" (#! Mention of o9ences 0ome &urists list seven hadd o9ences (i! Oina (ii! 0ari1ah (iii! Hirabah (iv! Qadhuf (v! 0hrub (vi! 2iddah (vii! Baghi The o9ences has not been mentioned e'chaustively and they are innumerable" (! ,iscretion #n Hudud crimes- the &udge cannot e'ercise his discretion" #n Tazir- &udge or head of the state may e'ercise discretion" (#! 2eplacement Hadd punishments can be dealt with under Tazir" #n Tazir- the punishment of Hudud cannot be enforced" &. *onclusion To conclude- # can say- that the punishment of Hadd and Tazir is a part of #slamic law" Hadd was prevalent in $rabia before the promulgation of #slam and it is prior to the concept of punishment as Tazir" #n Pakistan today tazir and siyasah are both classi%ed under the heading of Tazir" 4hile the law of Hudud is enforced through the prohibition of
Hadd order (8o ;! 5D>D- Hudud ordinance # 5D>D (o9ences against property! and Oina ordinance (Enforcement of Hadd! ##- 5D>D"
