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SHARI’AH THE ISLAMIC LEGAL SYSTEM

SHARI’AH THE ISLAMIC LEGAL SYSTEM. April 24, 2004 Presented By: Mohammad Ramadan banantaqwa@aol.com. CONTENT. Defining Shari‘ah? The Spirit of Shari ‘ah Legal Philosophy Maqasid ash-Shari‘ah: The Aim of Shari‘ah Al-Qawa‘id – Legal Maxims of Islamic Law Case Study: Euthanasia.

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SHARI’AH THE ISLAMIC LEGAL SYSTEM

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  1. SHARI’AHTHE ISLAMIC LEGAL SYSTEM April 24, 2004 Presented By: Mohammad Ramadan banantaqwa@aol.com

  2. CONTENT • Defining Shari‘ah? • The Spirit of Shari ‘ah • Legal Philosophy • Maqasid ash-Shari‘ah: The Aim of Shari‘ah • Al-Qawa‘id – Legal Maxims of Islamic Law • Case Study: Euthanasia

  3. Shari‘ah extends beyond law. Shari‘ah is the totality of religious, political, social, domestic and private life. Shari‘ah is primarily meant for all Muslims, but applies to a certain extent also for people living inside a Muslim society. What is Shari‘ah?

  4. What is Shari‘ah? • “Then We gave You a Shari‘ah in Religion, follow it, and do not follow the lust of those who do not know.” 45:17

  5. (For each We have appointed a divine law and a methodology... Had Allah willed, He could have made You one community. But that He may try You by that which He has given You. So vie one with another in good works. Unto Allah You will all return, and He will then inform you of that wherein you differ) (5: 48).

  6. (Today I have Perfected Your Way Of Life (Deen) For You, and Completed My Favour Upon You, and Have Chosen Islam as Your Way Of Life) (Qur'an, 5: 3).

  7. What is Shari‘ah? • The Regulations of the Shari‘ah can be Divided into Two Groups: • Regulations on Worship and Ritual Duties • Regulations of Juridical and Political Nature • In Sunni Islam, there are four schools, Madhhab, Which all coexist in peace. No war has ever been Fought Over The Issue of Different Schools, and Students of Religious Subjects In Most Muslim Countries Have To Learn about all Four Schools. It Is In Many Cases Permissible to use laws from Other Schools, If One Feels That This Is More Appropriate.

  8. The Spirit of Shari ‘ah • In Arabic, Shari‘ah, linguistically means the clear, well-trodden path to water. • Legally, it is used to refer to the matters of religion that God has legislated for His servants. • The linguistic meaning of Shari‘ah reverberates in its technical usage: just as water is vital to human life so the clarity and uprightness of Shari‘ah is the means of life for souls and minds.

  9. Legal Philosophy • (Our Lord, Give Us Good in This Life and Good in the Next,,,,, and Save Us from the Punishment of the Fire) (2: 201).

  10. The Legal Philosophers of Islam, Such As Ghazali and Shatibi explain that the aim of Shariah is to promote human welfare. • This is evident in the Holy Book of Allah (Qur'an) and Teachings of the Prophet (Peace Be Upon Him)

  11. The Scholars Explain That The Welfare Of Humans is Based on the Fulfillment of Necessities,,,,, Needs,,,,, and Comforts. • Fulfilling These Essential needs is the aim of Shari‘ah

  12. Maqasid ash-Shari‘ah: The Aim of Shari‘ah • There are Five Necessities: Preservation of (1) Religion, (2) Life, (3) Intellect, (4) Lineage, & (5) Wealth. • These Ensure Individual and Social Welfare in this Life and the Hereafter. • The Islamic Shariah Protects These Necessities in Two Ways: Firstly By Ensuring Their Establishment And Then by Preserving Them.

  13. (1) Religion: To Ensure The Establishment Of Religion, Allah Most High has Made Belief and Worship Obligatory. To Ensure Its Preservation; The Rulings Relating to the Obligation Of Learning And Conveying The Religion Were Legislated.

  14. (2) Life: To Ensure The Preservation of Human Life, Allah Most High Legislated for Marriage,Healthy Eating and Living, and Forbad The Taking Of Life And Laid Down Punishments for Doing So.

  15. (3) Intellect: Allah has Permitted that Sound Intellect and Knowledge be Promoted, and Forbidden that which Corrupts, or Weakens it, Such as alcohol and drugs. He has also imposed Preventative Punishments in order that people stay away from them, because a sound Intellect is the Basis of the Moral Responsibility that Humans were given.

  16. (4) Lineage: Marriage was legislated for the Preservation of Lineage, and Sex Outside Marriage was forbidden. Punitive Laws were Put in Placed in order to ensure the Preservation of Lineage and the Continuation of Human Life.

  17. (5) Wealth: Allah has Made It Obligatory To support oneself and those one is responsible for, and Placed Laws To Regulate The Commerce and Transactions Between People, in order to ensure Fair Dealing, Economic Justice, and to Prevent Oppression and Dispute

  18. Sources of Shari‘ah: Primary Sources The Primary Sources are the Holy Qur’an and the Purified Sunnah. (1) Al-Quran; The Word of Allah Revealed to Muhammed over 23 years. Allah Most High said, "Verily, this Qur'an guides to that which is best, and gives glad tidings to the believers who do good that theirs will be a great reward." (17: 9) And, "There has come unto you light from Allah and a clear Book, whereby Allah guides those who seek His good pleasure unto paths of peace. He brings them out of darkness unto light by His decree, and guides them unto a straight path." (5: 15)

  19. (2) As-Sunnah: The Prophet’s Example Allah says, "We have revealed the Remembrance (Qur'an) to you that you may explain to people that which was revealed for them." (16: 44) This explanation was through the Prophet's words, actions, and example. "O you who believe, obey God and obey the Messenger," (4:59) and, "Verily, in the Messenger of Allah you have a beautiful example for those who seek Allah and the Last Day, and remember Allah much."

  20. Sources of Shari‘ah: Derived Sources • Scholarly Consensus Scholarly Consensus is defined as Being the Agreement of all Muslim Scholars at the level of juristic reasoning (Ijtihad) in one era on a given legal ruling. Given the Condition that all Such Scholars Have to Agree to the Ruling, its Scope is limited to Matters that are Clear According To The Qur'an and Prophetic Example, Upon Which Such Consensus Must Necessarily Be Based. When Established, Though, Scholarly Consensus is Decisive Proof.

  21. Sources of Shari‘ah: Derived Sources • Legal Analogy (Qiyas) Legal Analogy is a Powerful Tool to derive rulings for new matters. For example; drugs have been deemed impermissible, through legal analogy from the prohibition of alcohol that is established in the Qur'an. Such a ruling is based on the common underlying Effective Cause of Intoxication.

  22. Legal analogy and its various tools enables the jurists to understand the underlying reasons and causes for the rulings of the Qur'an and Prophetic Example (Sunnah). This helps when Dealing with Ever-Changing Human Situations and allows for New Rulings to be applied most Suitably and Consistently.

  23. Fiqh; Jurisprudence • Fiqh is the science of Shari‘ah • Fiqh provides the structure for deriving legal rulings from Shari‘ah • The Shari‘ah regulates all human actions and puts them into five categories: 1. Obligatory, 2. Recommended, 3. Permitted, 4. Disliked or 5. Forbidden.

  24. Obligatory actions must be performed and when performed with good intentions are rewarded = WAAJIB • The opposite is forbidden action = HARAM • Recommended actions are that which should be done and when performed with good intentions are rewarded when abstained from there is no error incurred = MUSTAHAB • The opposite is the disliked action = MAKROOH • Permitted action is that which is neither encouraged nor discouraged. Most human actions fall in this last category = MUBAH

  25. Al-Qawa‘id: Legal Maxims • Al-Qawa‘id are a group of legal rulings or axioms that share a common derivation by analogy, qiyaas. • We have already discussed the five Aims of Shari‘ah: religion/Deen, Life/Nafs, the Mind/ ‘Aql, Lineage/Nasl, and Wealth/Mal. • They relate directly to the five main Principles of Law. • The Five Principles deal with; (1) Qasd (Motive), (2) Yaqeen (Certainty), (3) Darar (Injury), (4) Mashaqqa (Hardship) & (5) ‘Aadat (Customary.

  26. Al-Qawa‘id: Legal Maxims • The Principle of Motive, Qasad states that each action is judged by the intention behind it, al-Umoor bi maqasidiha. • The Principle of Certainty, Yaqeen states that a certainty can not be voided, changed or modified by an uncertainty, al yaqeen la yazoolu bi al shakk. • The Principle of Injury, Dharar states that an individual should not harm others or be harmed by others, la dharara wa la dhirar.

  27. Al-Qawa‘id: Legal Maxims 4. The Principle of Hardship, Mashaqqa states that hardship mitigates easing of the rules and obligations, al mashaqqa tajlibu al tayseer. 5. The Principle of custom, ‘Aadat, states that what is customary is a legal ruling, al aadat muhkkamat. Unless contradicted specifically by text, Nass, custom or precedence is considered a source of law.

  28. Praise Be To Allah والحمد لله رب العالمين والله أكبر ولله الحمد

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