15.1.1 THE LAW IN PERSPECTIVE
Islamic law is the basis for Islamic culture, civilization, and societal institutions. Islamic law
is complete and comprehensive. It serves the best interests of humans. It can accommodate new challenges and can grow. Islamic
law is a viable system that has not been given its due role in shaping Muslim societies. Knowledge of the Law may be individually
obligatory, fardh ain; communally obligatory, fardh kifayat, and recommended, manduub. Law is revealed and cannot be derived
from rational reasoning alone. Most legal rulings can be understood logically.
15.1.2 DEVELOPMENT OF THE LAW
Law of previous prophets in incorporated in the Qur’an. Pre-Islamic customs and practices were
either rejected or were Islamized. There was relatively little legislation in the Makkan period. Most legislation was in the
Madina period to serve the needs of a new multi-ethnic and multi-religious community in Madina. The khulafau al rashidiin
were jurists and mujtahids. Compilation of the Law and hadith started in the Omayyad era and continued in the abassid era
however jurists were marginalized when they disagreed with rulers. Decline started in the latter abassid period. The Osmanli
published the landmark majjalat al ahkaam al adliyyat. Colonial and post-colonial
rulers marginalized shari’at or tried to abolish it. There is now a movement to revive the shari’at in its entirety.
The 4 leaders of the schools of law were Abu Hanifa bin Nu'umaan (d. 150H), Malik bin Anas (d. 179H), Muhammad Ibn Idris al
Shafi (d. 204H), and Ahmad Ibn Muhammad Ibn Hanbal (d. 241H). Each school has a definable consistency in legal rulings that
reflects a common set of principles. There is more than 50% agreement among the different schools. The differences that exist
are due to consistent differences in the methodology of extraction of legal rulings. Differences also exist within each school.
15.1.3 BASIC CONCEPTS, mafahim asasiyyat
Fiqh is the academic discipline that studies the Law or the knowledge of the law, jurisprudence. The
Law is general, comprehensiveness, religiously motivated, and a mercy. The order of priorities in the Law is necessities,
dharurat; needs, haajiyat;
and embellishments, tahsinat. The Law has duality: private & public,
fixed & and variable/flexible; formal and informal. The variable Law is dynamic growing as solutions are sought for new
challenges and problems. Usul al fiqh is the methodology of the law. Siyasah
shar'iyat is administration of justice by the executive according to the law. Huduud
are fixed penalties by Allah. Ta'azir are discretionary punishment
by the ruler/judge. Allah is the Law-giver. Hukm is Allah's word relating to actions of individuals. Hukm taklifi can be wajib, manduub, haram, makruuh, mubaah, and aziimat & rukhsah. Hukm wadhai is reason, sabab; condition,
sharat; or prohibitor, mani’u. Hukm takhyiri provides a choice in which undertaking an act and leaving it are equivalent.
Mahkuum alaihi is the individual who is obliged to take action, al mukallaf. Validity of obligation, sihat al taklif, is based
on intellectual competence, aql, which is the ability to understand the obligation. Types of rights are: haqq al llaah, haqq al ‘ibaad, and haqq al laah wa al 'abd. Legal rulings must be evidence-based either
naql/nass or aql/ra'ay. Bid'at
is negative innovation in religion (aqidat and ‘ibadat). Ijtihad is defined technically as maximum effort to discover
legal rulings by extraction from the sources. Taqlid is accepting a proposition without looking at the evidence. The original
position is to condemn taqlid. However those who cannot consult the original sources directly can rely on the knowledgeable.
15.1.4 UNIVERSAL APPLICABILITY OF THE SHARI’AT
Islam and its Law are suitable for all places and all times due to its conformity to basic human nature,
satisfaction of human interests, ease of application, and flexibility. There is in-built flexibility of the fixed part and
adaptive flexibility of the variable part. Modernism defined as scientism, rationalism, and empiricism is not an intellectual
challenge to the shari’at because both fiqh and usul al fiqh very rational,
evidence-based, and systematic sciences that employ logic and reason in most of their conclusions.
15.1.5 THE SHARI’AT IN THE WORLD TODAY
Shari’at in West Asia and North Africa - Sharia in Sub-Saharan Africa - Shari’at in Central
and South Asia - Shari’at in South East Asia - Shari’at in Other Parts of the World
