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Q1.
Quran cannot be understood without Sunnah.
Q.
Discuss Sunnah as source of law.
1.
INTRODUCTION
Sunnah
is the second primary source of Islamic law. If the mujtahid does not find a
text in the Quran for a case he has to settle, he has recourse to the Sunnah
for the derivation of the Hukms. There is 4 special bond between Quran and
Sunnah which must not be severed as Sunnah is the explanation of the holy Quran.
2.
MEANING MEANING
(1) Literal
meaning
The
word Sunnah stands for the “Well know path” or “Well-trodden path.” Which is followed
again and again.
(II)
Technical meaning
“What
was transmitted from the messenger of Allah (Peace Be Upon Him) of his words,
acts and (trcit) approvals.”
3.
Kinds of Sunnah
Following
are the kinds of Sunnah.
(i)
According to its nature
(ii)
According to its written record
(iii)
According to its nature
According
to its nature, Sunnah is of following types.
(i)
Sunnah al Qawliah
It is
the saying or narration of the prophet (Peace Be Upon Him) through which he
intended the laying down of the law or the explanation of the Ahkam.
Example:
(i)
"La darar Wa-la dirar”
(No
injury is to be caused and none is to Borne)
(ii)
Sunnah Al Filiyah
It is
defined as the deeds and practices of the Prophet (Peace Be Upon Him) having a
legal content like his prayers, fasts etc.
(ii)
Sunnah Taqririyah
It is
defined as the commission of certain acts, by word or deed. If something was done
in a particular way and Prophet (Peace Be Upon Him) maintained silence without
expressing disproval to it, his silence in such a case is called taqrir or
tacit approval and is considered a Sunnah.
(I)
According to its written recode
Sunnah
may also be classified according to its entire written record, that to Ahadith.
(A)
Division of Ahadith
With
respect to its narration, Ahadith are divided into Evo types.
(i)
Hadith Muttasii
(ii)
Hadith Mursal
(i)
Hadith Muttasil
The
hadith whose chain of narration. Is complete. These are the ones in which the
narrator are mentioned from the beginning of the sands upon the Prophet (Peace
Be Upon )and no narrator Is missing.
Types
of hadith Muttasil
Following
are the types of hadith Muttasil
(a)
Hadith Mutawatir
It is
one that is related by such a large number of people that their agreement to
propagate a Falsehood cannot be conceived. Twatur is of two types.
(i )Twatur
Lafzi
When
all the narrators agree about the words as well as meaning the hadith is called
twatur Lafzi. For example. Following Hadith is twatur Lafzi.
“He
who attributes falsehood ta me should prepare his abode in the fire.”
(ii) Twatur
Manawi (Meaning)
It is
a Hadith which coveys the same meaning even if the words are not exactly the
same.
(b)
Hadith Mashhur
The
mashhur tradition is one the number of whose reporters do no reach the level of
twatur in the first generation. Thus if one or two companions related the
tradition from the prophet but in the next
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 Ahad
The
Hadith Ahad or the Khabar Wahid fs 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 jurists disagreed about the employment
of a Mursal hadith as proof for a Hukm.
4.
SUNNAH AS A SOURCE OF LAW
Allah
almighty has delegated legislative powers ta the Holy Prophet (Peace Be Upon
Him). The Quran from time and again makes the prophetic Sunnah as obligatory on
the Muslims the reason why Sunnah is treated as a source of law Is based on the
argument that Sunnah of Holy Prophet (Peace Be Upon Him) Was also revealed on
him.
“And
came to you from God the light (Prophet) and the Book”. (Surah Al-Maida 15}
“And
remember what & read in your houses out of the Quran and the Hikma
(sunhah).
(surah-Al-Ahzaab
34)
(I} Derivation
of the authority of Sunnah
The
authority of the Sunah as a Source of law is derived from the Quran. Following
Quranic verses throws light on the importance of Sunnah.
“If ye
differ in anything among yourselves, refer it to the Allah and his Prophet”
(Peace Be Upon Him}
(Surah
Al-Nisa 59}
“And
he does not speak of his own desire all is revealed on him.” (Sura Al-Nahal
“He
who obyes the Prophet (Peace Be Upon Him) obeys Allah”. (Surah Al Nisa : 80)
(1)
Legislative function of Sunnah
Sunnah
is the second primary source of law. The jurists must recourse to the Quran
first for the search of the Hukm and should not move to the Sunnah unless the
Search in the Quran has been completed. More often than not, it is not possible
for the jurist to understand the meaning of the text of the Quran for the
derivation of the Ahkams, unless he has recourse to the explanation and
commentary of the Quran which is Sunnah itself.
(i)
Qualification for Sunnah as source of law
[It is
not every Sunnah that ts a Source of law. To qualify Sunnah 2s 4 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 Upon Him) should be the laying
down of the law or its elaboration.
{ii}
Original law-making by Sunnah
Where
some Hukm is not mentioned in the Quran and Holy Prophet (Peace Be Upon Him)
decides it according to its own wisdom, it becomes a source of original law
making.
(iii)
Legislative function of Sunnah with respect to holy Quran or relationship
between Quran and Sunnah
Quran
laid down the basic principles and Sunnah explains these principles. The
legislative function of Sunnah with respect to the Holy Quran or the
relationship between Quran and Sunnah can be discussed as under.
(a) Specification
of general rule
The
Ahkams in the Quran is in general, undetermined form. The Sunnah restricts or
qualifies these Ahkams.
Example:
Quran
says that " for the male two shares of the female the Sunnah explains that
the murdered will not inherit.
(b}
Elaboration of Ahkams
The
Ahkams in Quran are general in unelaborated from. The Sunnah elaborates these
Ahkams.
Example:
Quran
order prayer, Sunnah provide for timing, number and Rak’ as of prayers.
(c)
Analogy on the Basis of rule in Quran
The
Sunnah may add or supplement the legal provision of the Quran.
Quran
prohibits marriage of two sisters with one man. Sunnah prohibits t which
maternal or paternal aunt.
(d)}
Linkage of case with well-known principle
Sunnah
links a case with the well-known principal mentioned in the Holy Quran.
Example
Quran
has permitted all goods things and has commanded the avoidance of Khabaith. The
Sunnah has linked with the Khabith the consumption cf animals with morals and
Birds with claws.
(e)
General principal laid down by Sunnah
Sometimes
Sunnah lays down a general principal.
Example:
Sunnah
lays down the principal "No injury ts to be caused or borne.” Quran
mentions a number of cases In which injury t others has been prohibited.
(f)
Explanation of the implicit
The
Quranic injunctions are sometimes implicit and the Sunnah makes it explicit by
providing the details.
Example:
Quran
provides that the hands of each thief are to be cut The Sunnah restricts this
to the thief who steals wealth equivalent to the Nisab and from the protective
custody.
5. Difference
between Sunnah and Hadith
Hadith
is the noun derived from the word “Hadatha” which means a tale or verbal
communication of any kind, In legal sense Hadith means saying of Holy Prophet
(Peace Be Upon Him) which must be practiced. Sunnah and Hadith means one and
the same thing, yet there are few differences between these two terms.
(i) As
to meaning
Hadith
means saying of Holy Prophet (Peace Be Upon Him)
Sunnah
refers to every saying of Holy Prophet (Peace Be Upon Him} and to every act
which he did or performed and every act which was permitted tc be done by him.
{ii}
Scope
Sunnah
is bigger in scope Hadith is narrow in scope as it refers to only the sayings
of Holy Prophet (Peace Be Upon Him}
(iii)
As ta element.
Sunnah
is a complete term which has three elements Hadith is one element of Sunnah.
(iv)
As to activity
Hadith
consisted in Some sort of activity. There must be saying of the Holy Prophet
(Peace Be UPON Him }.
In
Sunnah, there may be no activity. [t may be that act of Holy Prophet (Peace Be Upon
Him) where he kept quiet in case he saw people doing a particular thing.
(V) AS
to collection
Hadith
have been collected and compiled in a proper form Collection of Sunnah was
never made and itis out of collection.
6.
Constitutional status of Sunnah
In
constitutional making Sunnah has a great role. God has delegated legislative
powers ta the Holy Prophet. He (S. A. W) gave practical shape and concrete form
to the injunctions of Quran.
7.
CONCLUSION
To
conclude, I can say, that Sunnah is the second primary source of Islamic law.
It is interlinked with the Quran insofar as it restricts its general meaning or
qualifies its absolute texts or explains its difficult words.
Q2.
Discuss the theory of abrogation in Quran in detail.
Q. What do you know about theory of Naskh.
1.
INTRODUCTION
There
are some texts of the Quran and the traditions which have either been totally
abrogated or their application limited or modified By subsequent texts. Many
jurists hold that the abrogating and amending laws belong to the category of
interpretive laws. All the four sunni school unanimously accept the doctrine of
abrogation, though they may disagree on Che details.
2.
MEANING OF ABROGATION OR NASKH
(I)
Literal meaning
The
literal meaning of naskh is canceling or transferring.
(II}
Technical meaning
“In
its technical sense, it means the lifting of a legal rule through 2 legal
evidence of a later date.”
3. Theory
of naskh in holy Quran
The
concept of naskh is a necessity in a legal system and Islamic law acknowledge
it.
Qurans
says:
“Whatever
message (verse) we abrogate or causes to be forgotten we bring one better than
it or like it” (2: 106)
“And
when we put a revelation in place f another revelation." (16: 104)
4. THEORY
OF NASKH ACCORDING TO SUNNAH
It is
narrated by Hazrat Abdullah bin Massod that a verse revealed on Holy Prophet
(Peace Be Upon Him) was ordered to be recorded the companion wrote it on a rock
table, next morning the companion saw it rubbed/cleaned, when matter takes to
prophet (Peace Be Upon Him) he replied it was repealed.
5.
CLASSICAL THEORY OF ABROGATION
The
doctrine of naskh has three fold meanings in Islamic jurisprudence.
(i)
Abrogation of all previous divine Books by the holy Quran.
{ii)
The doctrine applied to repeal the Quranic verses which were said to be Blotted
cut of extinction, the verses repealed.
(a)
Whose text and laws are both repealed.
(b)
Where only text was repealed but the law It gave remained in existence.
(iii)
Abrogation of earlier laws of the holy Quran with latter revelation.
6. KINDS
OR TYPES OF NASKH
There
are two types of naskh:
(i)
Explicit
(ii)
Implied
(iii)
Explicit abrogation
(i)
When the law giver has explicit) stated that a rule is abrogate such abrogation
ts called as explicit abrogation.
Example:
Holy
Prophet (Peace Be Upon Him) said I had forbidden you from storing away the
sacrificial meat because of the large crowds, you may now store it, as you
wish.
(ii)
Implicit abrogation
When
the law giver has not expressly pointed out the abrogation, but has laid down a
new rule that conflicts with an earlier rule and there is no chance of
reconciling, it is called implicit abrogation.
Example:
Quran
Says:
“Those
of you die and leave widows should bequeath for their widows a year's
maintenance without expulsion."
It
means that the woman whose husband had died has to wait for a whole year, but
another verse was revealed in this context which says.
“If
any of you die and leave widows Behind, they shall wait concerning themselves
four months and ten days.”
This
verse abrogation the earlier verse.
Types
of implicit abrogation
Implicit
abrogation is of two types.
(i)
Total abrogation (Naskh Kulli)
Naskh
is total, where it may lift the entire law and substitute another one far it.
(ii)
Partial abrogation (Naskh Juzi)
When
the law is repealed for a certain class alone, it is called partial abrogation.
This is also called the overriding of a general law by a Special law.
Example
A
general law in the Quran provides penalties for all those who falsely accuse
chaste Woman of sexual Intercourse.
It
then provides a special law in the case of spouses accusing each other of
unchastity. The provisions of the general law are not applicable to spouses
because the special law overrides that provision.
7.
CONDITIONS FOR ABROGATION
Following
are the conditions for abrogation.
(i) It
must have been done during the lifetime of the holy Quran (Peace Be Upon Him).
(ii)
The abrogation text should be later in time.
(iii)
Both text should be equivalent in authencity and meanings.
(iv)
The next itself should not preclude the possibility of naskh.
(v)
Both texts should be in conflict and there should be no possibility of
reconciliation.
(vi)
Both text must not revealed together.
8.
METHODS OR RULES OF ABROGATION
(i)
One text of Quran can abrogate another text.
(ii)
One Sunnah can abrogate another Sunnah.
The
mutawatir Sunnah can abrogate the rule in the Quran and vice verse.
A
khabar wahid can abrogate another khabir wahid.
9. EXAMPLES
OF NASKH FROM QURAN AND SUNNAH
(I)
Examples from holy Quran
One of
the earlier cases of repeal of an earlier command was the directive to change
the direction of the Qiblah “Bayt al Muqads” to “Masjid al Haram.”
"We
see the turning of the face (for guidance) to the heavens now shall we turn
thee to a Qiblah that shall please thee. Turn then thy face in the direction of
the sacred mosque. Wherever ye are turn your faces in that direction.” (2: 144)
(II)
Example from hadith
“T
have forbidden you from visiting the graves nay visit them for they remind you
of the day of resurrection.”
10.
LIMITATION ON THE DOCTRINE OF NASKH.
Following
are the limitation on the doctrine of naskh.
(i)
Divine attributes cannot be repealed e. g. tawhid, Prophets books of Allah etc.
(ii)
Moral trust sanctioned in Quran can’t be abrogated.
(iii)
A provision related with the circumstances which negate the possibility of time
limitation can't be abrogate e. g. Islamic shariah in its entirety can't be
repealed.
11.
CONCLUSION:
To
conclude, I can say, that the Islamic law works for the interest of human
beings. The law was laid down in the period of the holy Prophet (Peace Be Upon
Him) gradually and in stages. It was the need of the time and society that the
people who adopts Islam must be facilitated and doing so the principal of naskh
or abrogation was acknowledged.
1.
INTRODUCTION
The
concept of sovereignty in Islam is entirely different from western concept of
sovereignty.
Sovereignty
as a western expression does not stand equivalent to the Islamic attributes of
Allah al mighty. It is derived from Quran and Sunnah.
2.
MEANING OF SOVEREIGNTY
The
word sovereignty has been derived from the Latin word “Superanus” which means
the supremacy of one over the other.
(I)
General meaning
Sovereignty
may be defined in a general meaning as under.
“The
supreme power of authority of an individual or a group of individuals which is
unquestioningly obeyed the Bulk of people in the state."
3.
BLAME CONCEPT OF SOVEREIGNTY
The
basic tenet of Islam is the sovereignty of Allah. Islam teaches that
sovereignty or supreme pawer belongs to Allah and Allah alone.
Quran
Says:
“To
Allah belongs the sovereignty of the heavens and the earth.” (42: 48)
“Tt is
He who gives life and death and he has power over all things.” (42: 48)
"He
is the first and the last the Evident and the Immanent” (47: 3)
4. ATTRIBUTES
OF ALLAH'S SOVEREIGNTY
The
sovereignty of Allah has the following attributes.
(I)
Absolute
Allah
is almighty. He is supreme over all things. He is malik-al-mulk and
Malik-un-Nas. Quran says:
“Say, Allah is the creator of all things and
He is one, the Almighty.” (Ar-Rad: 16)
(II)
Indivisible
Sovereignty
of Allah is indivisible. It cannot be divided. There is not God Except Him. Quran
says:
“Your
God is one God, there is no God save Him, the Beneficent, the Merciful.”
(Al-Baqrah: 163}
(III)
Inalienable
Allah’s
sovereignty is inalienable it cannot be given away ta anyone nor it is shared
with anyone else.
(IV}
Unlimited
The
powers of Allah are supreme and unlimited.
Quran
says:
“The
whole command is with Allah in all things.” (Ar-Red: 31)
(V)
Universal
Allah's
sovereignty is universal. It extends to every particle in the heavens and on
the earth. Quran says:
“Lo!
In the creation of the heavens and the earth and fin) the difference of night
and day are tokens (of his sovereignty) for men of understanding.” (Al-Imran:
190)
(VI)
Comprehensive
The
sovereignty of Allah is comprehensive. There i5 no exception ta his power.
(VII)
Eternal
Allah’s
sovereignty is eternal, form the beginning of the time to the and end of time.
It is permanent and everlasting.
(VIII)
Original
Allah's
sovereignty is not derived from .any Being or authority superior to Him, He is
himself sovereign,
Quran
says:
“Allah's
creator of all things and He is guardian over all things.” (Az-Zumar: 62)
5. ATTRIBUTIVE
NAMES OF ALLAH'S SOVEREIGNTY
Allah’s
sovereignty is also reflected from his Attributive names or Asmaa-ul-Sifaat.
Some of them are as
follows.
(i)
Al-Wahab The Granter
(ii)
Al-Khaliq The Certain
(ii)
Al-Ahad Only One
(iv)
Hai Eternally Alive
(v)Al-Jabbar
The reckoner
(vi)
Al-Qadir The Omnipotent
(vii)
Al-Qadiam The Eternal
6.
VICEREGENCY OF MEN
Allah
Almighty is the Lord of the heavens and of the earth. He delegates authority
for the administration of peace and justice as a trust to such men as He wills.
Those who exercise authority form a state, but their authority is a trust, to
be exercised so long as they dispense justice, and within the limitation prescribed
By Allah Almighty.
Quran
says:
“Lo!
The earth is Allah's he gives it for an inheritance to whom He will. And Io!
The sequel is for those who keep their duty {on to Him).”
““And
when the lord said onto the angels Lo! | am about to place khalifa (Vicegerent}
in the earth.” (2:30}
7. CONCEPT
OF SOVEREIGNTY AND AMIR IN PAKISTAN
The
principle of sovereignty is recognized and embodied in the preamble of the 1973
constitution of Pakistan.
“Whereas
sovereignty over the entire universe belongs Almighty Allah, and the authority
to be exercised by the people of Pakistan within the limits prescribed by Him
as a sacred trust.”
The
amir may be one or group of men, such as legislature. But they exercise
authority only in a limited sense, that is within the limits imposed By Allah
and His sovereignty. The constitution of Pakistan, 1973 declares.
“And
where it is the will of people of Pakistan t establish an order, wherein the
state shall exercise its power and authority through the chosen representatives
of the people.”
It
means that the supreme authority in Islam can lie with a single ruler or with a
legislature.
8.
CONCEPT OF SOVEREIGNTY IN WEST
The
concept of sovereignty is a modern concept, born with the modern state. It was
propounded by Jean Bodin first in 1576. He declare sovereignty not only the
power ta make law, but also to be itself above law. Following writers also
defines sovereignty.
(i)
Blackstone says
“It is
the supreme, irresistible, absolute, uncontrolled authority in the state.”
(ii)
Willoughby says
“If a
human superior not in the habit of obedience to a like superior receive
habitual obedience from the bulk of a given society.
(I}
Analysis
The
western concept of sovereignty is imperfect and there are limitations on it
According to western concept the sovereign is some determinate human being with
unlimited powers and the sovereignty is discussed with reference to the state.
It means there can be as many sovereigns as states in the world .This whole
concept is too value as we can see that there are many limitations on state,
such as international, human moral etc. as compared to this, Islamic concept of
sovereignty is more realistic and logical. The sovereignty of Allah is
unlimited and extends to whole universe, heavens and the earth.
9. DIFFERENCES
BETWEEN [ISLAMIC CONCEPT OF SOVEREIGNTY AND WESTERN CONCEPT OF SOVEREIGNTY
I. As
ta authority
(i) In
Islam Sovereignty of entire universe belongs to God.
(ii)
In western concept sovereignty Belongs to people.
II. As
to kinds of sovereignty
(i) In
Islam there Is no kind of sovereignty.
(ii)
In western concept sovereignty his different kinds
III.
As to state
(i)
Sovereignty in Islam is not subject to state.
(ii)
In western concept there must be state for sovereignty.
IV. As
to scope
(i)
Islamic concept of sovereignty has wider scope.
(ii) Western
concept of sovereignty has less scope.
V. As
to perfection
(i)
Islamic concept of sovereignty is perfect in all aspect.
(ii) Western
concept of sovereignty to imperfect.
VI . As
to nature
(i)
Islamic concept is permanent nature.
(ii)
Western concept is temporary nature.
14.
CONCLUSION
Ta
conclude , I can say, that the Islamic theory of sovereignty is radically
different from the western theories of sovereignty. It is derived from the
Quran and Sunnah, which are its basic sources. Islam teaches that the
sovereignty belongs to Allah alone and no human being can be the lord of other
human beings.
Q4.
Shura is an important pillar in constitutional law.
Q.
Discuss the role of Shura in Islamic state.
1.
INTRODUCTION
Islam
has given a method to held consultation among the Muslims for administrating
their affairs of Govt. there is place and a very important one, for shura or
counsel in the Quranic state. Shura is one of the mast important institution of
Islam and regarded as source of expression of public opinion.
2. MEANING
OF SHURA
“Shura
is a body of representatives of Muslims community, who assemble for
consultation with each other to reach on 4 decision for running the Business of
Govt."
3. IMPORTANCE
OF SHURA IN ISLAMIC STATE
(I)
According to Quran
Following
verses of Holy Quran shows the importance of Shura system
“And
consult with them upon the conduct of affairs.”
“The
affairs of state are run by their mutual consultation.”
(II)
According to Ahadiths
“Hazrat
Abu Hurairah narrated the practice of the Holy Prophet (Peace be Upon Him) “I
have not seen anybody who could excel the prophet in consultation from companions.”
Hazrat Ayesha (R. A] says:
"
I have not seen a person consulting the people more than Holy Prophet (Peace be
Upon Him). If Abu Bakar (R.4) and Umar (R.A) got together on an opinion. He
would not go against that.”
4. TYPES
OF SHURA
During
the period of Caliph Umar (R. A) there were two types of Shura.
(I}
Shura Aam
It was
consisted of the people from the general public.
(II)
Shura Khas
It was
consisted of eminent companions.
5. PERSON
WHO MAY BE ELECTED AS SHURA MEMBERS
Following
persons may be elected as members of Majlis-e-Shura.
(I)
Persons who enjoy the masses.
(ii) Whose
sincerity, ability and loyalty is above reproach in the eyes of the public.
(iii)
Whose participation in the major decisions of the state would itself reflect
that free and willing cooperation of the masses is available to the state.
(iv)
Whose character is distinguished in the state.
Quran
says:
“The
most honoured of you in the sight of God the most pious among you.” (Surah-Al-Nisa:
83)
6. DUTY
OF MAJLIS-E-SHURA
[t is
the duty of the members of the Shura to give best opinion according to their
wisdom Holy Prophet (Peace be Upon Him) says:
“The
man who gives counsel to his brother knowing fully well that is not right does most
surely betray his trust.”
7. CHARACTERISTICS
OF SHURA
Following
are the important characteristic of Shura system.
(I)
Will of God
Shura
is subject to the will of God.
(II)
Compulsory
Principle
of Shura is compulsory and is required by sharaih. An Islamic state must
consult its subjects in all important affairs.
(III) Freedom
of opinion
Freedom
of opinion 6 an essential characteristics of Shura system. Everybody in the
Shura should be free to express his opinion. The Holy Prophet (Peace be Upon
Him) always left the companions to speak freely and express their opinions on
the matters of concern.
(IV)
Rule of Majority opinion
[t is
also suggested that the minority should follow the opinion of majority. In
Shura Uhad, the complain differed with
one another and the Holy Prophet (Peace be Upon Him) followed the majority
opinion.
(V)
Principle of viceregency
In
Shura, that people are only vicegerents of Allah, they have no jurisdiction to
override any provision of the Shariat.
(VI)
Binding authority
Once Shura
is reached on a decision. It should be enforced and it has Binding authority.
Quran
says:
‘Once
you determine, then trust in Allah.”
8. IMPORTANT
SHURA MEETINGS IN ISLAM
The
following are the most important Shura’s in Islamic history
(I)
Shura Iahad
At
occasion of Ahad, Holy Prophet (Peace be Upon Him) was that they should fight
the enemy by remaining inside the city of Madina But majority wanted the battle
outside the city. Thus the opinion of majority was honoured.
(II)
Shurai Badr
Shuria
Badr was held by Prophet (Peace be Upon Him) to consider whether they should
meet the enemy at Badr or not. The companions unanimously agreed to meet the
enemy at Badr.
(III)
Nomination of Hazrat Umar (R.A)
Hazrat
Abu Bakr (R.A) Proposed the name of Hazrat Umar (R.A) as Caliph after him. All the
members of Shura agreed and approval was given to it.
9. COMPARISON
OF SHURA WITH PARLIAMENTARY FROM OF GOVT.
The
concept of Shura propounded by Islam is much earlier than the present concept
-of parliamentary system. According to Hamid Ullah Ansari, slam gave the
concept of parliamentary system nearly one thousand years earlier than the
western concept of parliament Following are the factors which make the shura
superior to the parliamentary system,
(I) As
to well
In Shura
will of Allah is Supreme whereas parliamentary system the public opinion is
treated supreme.
(II)
Dual personality
In
Shura, the members are responsible and answerable to the people and the Allah.
Whereas
a parliamentary system, the members are answerable only to the people.
(III)Freedom
of opinion
In
Shura, every member is free to give his opinion whereas in parliamentary
system, the members are not as free to express their opinions as they are
elected on party basis.
(IV)
Jurisdiction
In
Shura, the de jure jurisdiction extends to the whole world, whereas in
parliamentary system, it extends to the geographical boundaries.
(V) As
to religion
In
Sura religion of the state is Islam, In western parliamentary from of
Government religion is not so Important.
(VI)
As to source of law
In
Sura sources are Quran and Sunnah whereas in parliamentary from of Government
sources of law are man made laws.
10.
CONCLUSION
Fa
conclude, I can say, that the Islamic concept of Shura is the modal for the
whole world. The Shura develops the Islamic concepts and theories. It is in
conformity to the ethics of IJma. The body makes the decision or legal,
political matters in the light of the present social order and norms. In
Pakistan's constitutions of 1973, the parliament has been give the name of
Majlis-E-Shura by virtue of Article 50 which is the true spirit of Islam.
Q5.
What is the status of minorities in an Islam state?
Q.
What are the rights of minorities in an Islam state.
1.
INTRODUCTION
Islam
is a religion of tolerance. ls has granted equal rights to the non-Muslims in
the Islamic state but without imposing equal duties on them. The non-Muslims in
the Islamic state are known as Dhimmis whose protection is the responsibility
or obligation of the Islamic state.
2. STATUS
OF MINORITIES IN AN ISLAMIC STATE
Following
Quranic verse throws light on the status of minorities in an Islamic state.
"O
ye! Who believe! Be stead Fast witness for Allah in equity and let not hatred
of any people seduce you that ye deal not justly, that is nearer to your duty”.
3.
KINDS OF MINORITIES IN ISLAM STATE
There
are three kinds: --
(i)
Contractors.
(i)
Conquered.
(iii)
Others.
4. RIGHTS
OF MINORITIES IN AN ISLAMIC STATE
Following
are the rights of minorities in an Islamic state.
(I}
Right to life and property
Islamic
state recognizes the right of its non-Muslim citizens to life and property the
blood of non-Muslim Is regarded as sacred as that of the Muslims. In case a
non-Muslim is killed or injured by a Muslim, the deceased relatives has the
right to treat the Muslim in the same manner.
(II)
Freedom of religion and worship
The
non-Muslim is an Islamic state have the freedom of religion and worship.
Religion is respected as religion without any discrimination, in Islam. It
preaches tolerance and avoids and prohibits use of force.
Quran
says:
"O
Prophet! We know what these people say; you are not appointed to force them to
believe". (50: 45}
(III)
Protection of their personal law
Non-Muslims
in an Islamic state have their own personal laws except in such a matters in
which their personal law might sanction a cruel custom e. g. custom of sati etc.
(IV)
Protection of non-Muslim places of worship
It is
the duty of the Muslim State to protect the places of worship of the
non-Muslims.
Quran
says:
“An
had there not been Allah's repelling some people by others, cloisters and
churches and synagogues and mosques in which Allah’s name is much remembered
would have been pulled down,”
(V)
Exemption from military service
Islamic
state is an ideological state whose defence is the religious duty of the
Muslims and non-Muslims are exempted from the military services.
(VI)
Political rights
Minorities
have right to participate in politics. Non-Muslim can cast vote and elect his
representation.
Therefore,
various methods in order to adequate representation for minorities in the
legislature. Some of them are following.
(a)
Proportional representation.
(b)
Limited vote system.
(c}
Alternative vote system.
(d}
Communal representation.
(e)
Second ballot system.
(f)
Cumulative vote system.
(VII)
Legal rights
Minorities
have legal rights. They have access to justice in Islamic state.
5. POSITION
IN PAKISTAN
Rights
of minorities have Been provided under Articles 20 to 22 of constitution of
Pakistan, 1973 which gave protection to the religious institutions of the
minorities and also give them religious protections.
6. CONCLUSION
To
conclude, [can say, that the protection of non-Muslim in an Islamic state is
thé responsibility of the state. Islamic state provides certain rights to the
minorities and in the enforcement of those rights, no discrimination Between
Muslim and non-Muslim will be made.
Q6.
What are the sources of revenue of an Islamic state?
Q.
What are the traditional sources of revenue of an Islamic state?
1. INTRODUCTION
The
conception of state in Islam is that of commonwealth of all the Muslims living
as one community under the leadership of one caliph who is trustee which of
public property, which consist first of all of revenues which collected from
the various sources.
2.
SOURCES OF REVENUE
The
revenues are derived from the following principal sources,
(i)
Zakat
(ii)
Usher
(iii)
Khiraj (Land Tax)
(iv)
Jizya (Poll Tax)
(v)
Khums
(I)
Zakat (Poor rate)
Zakat
is & tax imposed on the muhammadans alone and the payment of it is an
obligatory act of worship,
(i)Meaning
Zakat
means growth or development or purification.
(ii)
importance of Zakat
Zakat
is a right of Allah and a corresponding duty of every Muslim. It is the third
important fundamental of Islam. There are quite a number of verses in Holy
Quran in which the order to pay Zakat immediately follows the order ta offer
the prayers.
Quran
says:
“So
establish worship, pay the poor-due and hold fast to Allah.” (Al-Hajj: 78)
(iii)
On whom Zakat levied
According
to Muslim jurists it is obligatory upon every Muslim, who & free, Baligh,
sane and who owns Wealth equal to the prescribed Scale (Nisab) Through a
complete ownership.
(iv)
Nisab of Zakat
The
Nasib of Zakat is 7-1/2 tolas Gold or, 52-1/2 tolas silvers.
(v)
Rate of Zakat
The
Zakat is levied at the rate of 2.5 percent in all years Savings.
(vi)
Persons entitled to Zakat
The
verse 60 of Surah Taubah provides that 4a Zakat should be spend on:
(a)
The poor and the needy
(b)
Those who are liable to administer the funds of the alms.
(c)
Those whose hearts have been recently reconciled to the truth.
(d}
Those who are in bondage and in debt.
(e)
The wayfarers.
(f) In
the cause of Allah.
(g} To
free the captives.
(Vii)
Realization of Zakat
Zakat
may be realize by the state by enforcement of disciplinary measure as it was
done in the time of Hazrat ABU Bakar{R.4). But now a days it left to the
religious sect of each Muslim.
(II)
Ushad
Usher
means “on benth”. All lands of a country, the inhabitants of which have
accepted Islam, are liable to pay usher.
(i)
Levying or rate of Ushar
Usher
is levied upon the produce of naturally irrigated land at the rate of 1/i0th
percent ea. g. by floods, rains etc. and 1/70 on artificially irrigated land e.
g. wells, canals etc.
(III)
Khiraj {Land Tax)
Khiraj
is a tax on the produce of land non-Muslim. All land, which has been conquered
after resistance or which is surrendered to the Muslims and allowed remain in
the hands of its inhabitants is liable to the payment of Khiraj, subject to
certain conditions.
(i)
Rates
The
rates of Khiraj very with the kinds of crops grown on the land and its
praductive powers. It is not, however to exceed half of the value of its
average produce.
(ii)
Exemption from khiraj
If the
produce of the Khiraji land is destroyed by floods or drought or blight, the
revenue ceases to be payable for that year.
Exception:
If the
produce of the Khiraji is destroyed by advance of the owner, then the Khiraj
would not ceased.
(IV)
Jizya (Poll Tax}
It is
an annual personal tax levied on non-Muslims who had actually fought against
Islam or whoa are able-bodied to participate in a War against an Islamic state.
(i}
Imposition of Jizay
The
jurists agreed that it is imposed on those who exhibit three characteristics.
(a) He
must be a male person.
(b} He
must be a major i. e@. attainment of puberty.
(c) He
must be free.
(ii)
Persons exempted from Jizya
Following
persons are exempted from jizya.
(a)
Women
(b)
Minors
(c)
Slaves
(d)
Infirm or disable
(e)
Monks and ascetics
(f)
Non-Muslim giving military service.
(iii)
Mode of imposing Jizya
Jizya
is imposed either:
(a)
Under a traty in which case its amount is to be determined by agreement of the
parties, or
(b)
After Conquest in lieu of the imam confirming them in possession of their
country, in which case its amount is to be determined according to certain
rates, which are fixed having regard to the means and income of each
individual.
(iv)
Amount of Jiyaz
The
amount of Jizay is not uniform and the reason for the disagreement is the
variation in the traditions.
(a)
According to Maliki
The
amount is four dinars for these who transact in gold and Forty dirhams for
those who transact in silver.
(b)
According to Al-Shafi
The
minimum is fixed at one dinar and the maximum is depend on what the negotiate
to pay.
(c}
According to Abu Hanifah
The
Jizay ranges between twelve dirhams, twenty four dirhams and forty eight
dirhams. The poor person is not to pay less that twelve dirhams and the rich
person is not to pay more than. Forty eight dirhams.
The
person of average means is ta pay twenty for dirhams.
(v)
Made of paying Jizya
The
jizya should be paid in money but it may be paid in kind e. g. garments.
(vi)
Jizya at present juncture
Jizya
is disappeared at present juncture. The last trace of it disappeared after the
revolution in turkey
when
Christians also do military service.
(V)
Khums
Khums
consisting of one-fifth of the property acquired from the non-Muslim by conquest
and one fifty of the contents of mines, escheats and forfeitures. It is takes
only once.
(VI)
Trade tax
It is
vied upon and collected from Muslim and non-Muslim tradesmen. Its rate is fixed
according to the exigencies of time.
4. Objectives’
of revenue in Islamic state
Following
are the objective of revenue in Islamic state.
(i)
Economic well-beings within the framework of the moral norms of Islam.
(ii)
Universal brotherhood and justice.
(iii)
Equitable distribution of wealth.
(iv)
Freedom of the individual within the content of social welfare.
5.
CONCLUSION
Ta
conclude, Il can say, that due to the concept of welfare state Islamic state
has to perform multifarious functions and for this revenue has to be collected
from various Sources. Of the above the proceeds of the poor rate and one fifth
of the khums and of the contents of mines are ear-marked for the use of the poor
and the indigent. The rest of the revenues is to Be spend for the purpose of
administration generally.
Q7.
Write a detailed note on Quran primary source of law.
Q.
Write a detailed note on Quran as primary source of Islamic law.
1.
INTRODUCTION:
The
Holy Quran is the name of book consisting of those direct revelations which
were made to the Holy Prophet Hazrat Muhammad (Pace Be Upon Him). It is in the
very words of Allah almighty. Quran is the primary source of law. It is first
in the order of primary sources and thus the first search for a hukm is to be
in the Quran and the jurist should net move to the next source unless the
search in the Quran has been completed.
2. MEANING
AND DEFINITION OF HOLY QURAN.
(i}
Meaning:
Quran
is derived from the Arabic word Quran’ a which means "To dead”.
(ii)
Definition:
Many
jurists have attempted to define. Holy Quran, but they maintain that the
purpose of definition is not to grasp the nature of the Quran.
Definition
by Al-Bazdawl
“The
Quran is the book revealed to the messenger of Allah, Muhammad {Peace Be Upon Him)
as written in the masahif and transmitted to us from him through an authentic
continuous narration without doubt.”
3. REVELATION
OF THE HOLY QURAN
Holy
Quran is a book of Allah which is revealed to Holy Prophet (Peace Be Upon Him).
The first revelation came to the Holy Prophet (Peace Be Upon Him) when he was
forty years of age. Following verses of Surah-Al-Alaq were revealed to him.
“Read
in the name of thy lord, who create the man from a clot.”
“Read!
And itis thy lord the most bountiful. Who teaches by the pen. Teaches man that
which he knew not.” (Al-Alaq: 1-5)
4. ATTRIBUTES
OF THE HOLY QURAN
There
are 55 alternative names or attributes of the holy Quran e. g Al-Kitab,
Al-Furgan, Al-Noor etc.
5. QURAN
AS A SOURCE OF LAW
The
holy Quran is a complete code of creed and morals as well as of the laws based
thereupon. The Quran seeks to guide man in all walks of life spiritual
temporal, individual and collective Quran Says.
“And
we have revealed the scripture unto the only that thou may explain untae them
that wherein they differ, and (as) a guidance and a mercy for a people who
believe. (16: 64)
“There
are the limits of Allah (hadud Allah} so do not near them.” (2: 187}
(I)
Divisions of verses of holy Quran
the
holy Quran is divided into 30 division called Ajza or Paras and into 114
chapters called Surrah. Which consists of 6666 verses. These verses divided in
three sections or portions.
(1)
First portion
First
portion deals with religion and its duties e. g. belief in one Allah, day of
judgement etc.
(ii)
Second portion
Second
portion deals with Quranic ethics.
(iii)
Third portion
Third
portion is related with Muamalat. It regulates the relationship of individuals
among themselves, with states etc. it deals with sales and purchase, lease and mortgages,
evidence, torts and contracts
(II)
Ahkam in the holy Quran
Two
main categories of Hukm have been classified by the Muslim jurists.
(i)
Hukm Taskiifi
(ii)
Hukm Wadi
(i)
Hukm Taklifi
The
aim of the hukm Tadlifi is to create an obligation for the commission or
omission of an act.
(ii)
Hukm Wadi
The
aim of hukm wadi is to either inform a subject that certain thing is a cause of
condition for or obstacle to a hukm or is to explain the relationship that
exists between two rules or to provide the criterion for judging whether an act
perform is valid or not
(III)
Category of laws reveled
Most
of the verses containing rules of law were revealed with reference to cases
which arose during the lifetime of the holy Prophet (Peace Be Upon Him). These
may be categorized as under.
(i)
Abrogating verses
Verses
which repeal or abrogate objectionable customs like usury gambling and
unlimited polygamy,
(ii)
Verses affecting social reforms
Verses
which affects social reforms such as by raising the legal status of woman,
setting the question of succession and inheritance on equitable Basis,
(iii)
Verses providing rights
Verses
providing protection for the rights of minors and other persons under
disability.
(iv)
Penal verses
Verses
providing principal f punishment for the purpose of securing place and order.
(V}
Legal verses
These
are the verses providing constitutional and administrative matters.
These
verses principally occur in the madni Surahs.
(vi)
Nature of laws lays down
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
Sunnah.
6. POSITION
M PAKISTAN
Pakistan
is an Islamic state and since the creation of Pakistan, attempts have been made
at different times to modify the existing laws in the light of Quran and
Sunnah.
Article
227 of constitution of Pakistan 1973, runs as follows.
“All
existing laws shell be brought in conformity with the injunctions of Islam as
laid dawn in the holy Quran and Sunnah.”
7. CONSTITUTIONAL
STATUS OF QURAN
In the
west constitutional law {s called the supreme law of the land. In Islamic
jurisprudence Quran is the constitutional law. It has all these features which
a modern constitution have. The Quran provides all norms and principal for
statehood.
8.
CONCLUSION
Ta conclude,
I can say, that the holy Quran is the first primary source of Islamic law. All
other sources derive their validity from the holy Quran which ts in the direct
words of Allah almighty who is complete sovereign aver the entire universe, But
itis to Be noted that it is not a Book of law. It is a book of guidance for the
mankind, so it does not contain a detailed corpus of legislation.
Q8.
Discuss and elaborate the theory of Istehsan and Qiyas under Islamic law.
Q. What
is the difference between Qiyas and Istihsan?
1.
INTRODUCTION
Qiyas
is the secondary source of Islamic law. All the four schools of Islamic
jurisprudence agree that in matters which have not been provided for by a
Quran, Hadith or Ijma, 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 DEFINITION OF QIYAS
(i)
Meaning
(ii)
Literal
Literally
the word Qiyas means measuring or estimating one thing in terms of another.
(ii)
Legal
It is
process of deduction by which the law of a text is applied to cases by reason
of the text.
(II)
Definition
According
to Hanafis:
"It
is extension of law from the original text to which the process is applied to a
particular case by means of a common Illat or effective cause, which cannot be
ascertained merely by interpretation of the language of the text.”
3. ORIGIN
AND DEVELOPMENT OF QIYAS
Owing
to the ever growing needs of society and the expansion of Islamic religion
beyond the limited boundaries of Arabia, it was felt that the rules have to be
deuced ta meet the dynamic character of the society. To fulfill this need, the
doctrine of Qiyas was originated by eminent jurists.
4. ARGUMENTS
IN SUPPORT OF QIYAS
(I}
Quranic verses in support of it
Following
Quranic verses support the necessity of Qiyas.
"And
certainly we have set forth for mankind in this Quran all kinds of similitudes,
that haply they may reflect.”
(II}
Ahadiths in support of it
When
the Holy Prophet (Peace be Upon Him) Sent Maaz Bin Jabal to Yemen as governor
he said to him. “How are you going to decide cases Maaz answered; (by the light
of} what is in the book of God. The Prophet (Peace be Upon Him) nest asked; and
if you do no find anything in the Quran to guide you? “I will decide in the way
the Prophet (Peace be Upon Him) has been doing; But inquired the Prophet (Peace
be Upon Him} ‘If you do not find any procedure from me what then’ [ will do my
best by exercising my judgement. The Prophet (Peace be Upon Him) there upon
happily agreed.
5. ELEMENTS
OF QIYAS
Qiyas
has following elements:
(I)
Asl
The
original case covered by the next. That is the root case or even the base upon
which the analogy has been constructed.
(II)
Hukm-Al-Asl
The
hukm of the original case mentioned in the text.
(III)
Illah
The
underlying cause of the Hukm, which is determined by the jurist is called the
illah.
(IV)
Far
The
new case to which the hukm is extended is called the far or the offshoot.
It is
the case which is analogically compared with the asl.
8. KINDS
OF QIYAS
According
to Hanafis, following are the kinds of Qiyas.
(i) Qiyas
Jail (Manifets}
(ii)
Qiyas Khafi (Concealed)
7. CONDITIONS
FOR THE VALIDITY OF QIYAS
Following
are the conditions of a valid analogical deduction of Qiyas.
(I)
Original text not confined to particular facts
The
law enunciated in the next to which analogy is Sought to be applied must not
have been intended to be confined to a particular state of facts.
Example:
The
Holy Prophet (Peace be Upon Him) said that if Hazrat Khuzaima (R.A) Testified
for any one, it is more than enough for him. Since tradition is personified, it
does not lay down a general rule of testimony.
(II)
Original text capable of understanding
The
law of the text 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 exception to some
general rule.
Example:
Eating
by mistake during Ramzan by one who is fasting does not vitiate his fast, just
because this is a Quranic text, no analogy can be applied on this rule.
(III)
Deduction should be corollary to text law
The
rule deduced by Qiyas must not be opposed to a text law nor covered by the
words of a text. It should be in the nature of corollary of the text law.
(IV)
Not change the law of text
(V)
Analogy applies to cause and not to vocabulary
The
analogy must not be applied to the vocabulary of the text but to the effective
cause on which the law is based.
8. SCOPE
OF QIYAS AS A SOURCE OF LAW
The
function of Qiyas is to extend the law of the text 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 text may be widened generally. Qiyas has no
application to pure inference of facts which are to be made by the observations
of science.
9. NATURE
OF ITS AUTHORITY AS A SOURCE OF LAW
Qiyas
as a source of law do not rank so high as authority as Quran, Hadith and ima
does. The reason is that with respect to analogical deduction, one cannot be
certain, that they are what the law giver Intended.
10. EXAMPLES
OF QIYAS
(i)
There is a tradition from the Holy Prophet (Peace be Upon Him} that says,
“the
murdered will not inherit.” By applying Qiyas the rule is extended to the
bequest and the murderer legatee is prevented from taking the bequeathed
property.
(ii)
At the time of Friday prayers indulging in sale is prohibited by Quran. By
applying analogy this hukm Is extended to other contracts like pledging or
marriage that may have Been planned at such a time.
11. DIFFERENCE
BETWEEN QIYAS AND IJMA
Qiyas
is the opinion Based on the similitude of circumstance whereas lima is 4
consensus of learned.
12.
CONCLUSION
To
conclude , I can, say that Qiyas is a process of deduction by which the law of
a text is applied to cases which though not covered by the language, are
governed By the reason of the text. It is subordinate to the Quran, Sunnah and
Ijma and permissible to meet the changing needs of time.
Q9.
What is meant by public and private rights? Which one is more important and why
Q.
Define and illustrate various kinds of rights under Islamic jurisprudence.
1.
INTRODUCTION
Islam
is a complete code of life. It has prescribed rules fer the regulation of
individual as well as collective life. These rules are regarding rights of
different men in different walks of life. These rights reveal what is
beneficial and useful and it also corresponds to a duty on Some person.
2.
CLASSIFICATION OF RIGHTS
Rights
having regard to the person of inherence, are principally classified By Muslim
jurists into following kinds.
(i)
Rights of Allah or public rights
(ii)
Rights of men or private rights
3.
PUBLIC RIGHTS
Public
rights are those rights, which involve Benefit to the community at large and
not merely a particular Individual. These are referred as rights of Allah,
because f the magnitude of the risks involved in their violation and of the
comprehensive Benefits which would result from their fulfillment.
(I)
Types of public rights
Public
rights may be discussed under the following heads.
(i)
Pure right of Allah
There
are certain matters which are purely the rights of Allah. Involving benefit to
men generally.
Example:
The
infliction of the punishment of hadd for theft.
(ii)
Mixed right or Allah and men
There
are certain matters in which the right of Allah and men are combined, But the
rights of Allah is dominant or supersedes.
Example:
The
right to punish a Slander who imputes unchastity to another person because it
infringed the right of both the community and an individual.
(II)
Classification of public rights
According
to Muslim jurists public rights are classified into the following categories.
(i) Acts
of devotion viz, faith of Iman and the consequential duties that is prayers,
Zakat, Hajj, Fasting.
(ii)
Punishment of perfect nature such as Hadd for theft, adultery ate.
(iii)
Punishment of imperfect nature such as depriving a man who has killed another,
of his right of inheritance.
(iv)
Matters which have elements of both devotion and punishment, such as atonements
for the non- discharge of certain obligations.
(v) Acts
of devotion involving an impost consisting in a obligation to make payments out
of one’s possession. Such as the giving of certain appointed alms at
Eid-ul-Fier.
(vi)
Imposts having the sense of worship, such as Ushr by a Muslim owner of lands
certain description.
(vii)
Imposts having sense of punishment such as Khiraj and land tax, originally
leviable from non-Muslim
(viii)
Acts or rights which exits by themselves. These are the rights in respect of
which there are the rights In respect of which there are no active duties
imposed on any particular individual for example con fifth of the Booty
obtained in religious wars which are reserved by law for distribution among the
poor.
4.
PRIVATE RIGHTS
Private
rights are those rights which involve benefit of an individual.
(I)
Types of private rights
Private
rights may be discussed under the following heads.
(i)
Pure rights of individual
There
are certain matters which are entirely the right of individual men.
Example:
Right
to the enforcement of contract. The enforcement of this right is entirely at
the option of the individual whose right is infringed.
(ii)
Mixed rights of Allah and men
There
are certain matters in which rights of Allah and men are combined but the right
of men, that is, private right is dominant or supersede,
Example:
Qiyas,
which is a punishment for murder or voluntary hurt comes into this category,
and the person Injured may pardon the offender.
(iii)
Classification of private rights
(i)
Rights to safety of person
(ii)
Right to reputation
(iii)
Rights of ownership
(iv)
Family right-including
(a)
Marital rights
(b)
Rights of guardianship
(c)
Right of children and poor relatives
(d)
Right to succession and inheritance
(v) Right
to do lawful acts
(vi)
Right to contract
5.
DIFFERENCE BETWEEN PUBLIC AND PRIVATE RIGHTS
The
main difference between public and private rights are as under.
(I) As
to enforcement
Public
right is enforced by the state while the private right is enforced at the
option of the party whose private right is infringed.
(II)
Pardon or condonation
Public
right cannot be waived or pardon or condoned while in private right, whether to
pardon the wrong-doer or to insist upon redress.
6.
GENERAL DIVISIONS OF PUBLIC AND PRIVATE RIGHTS
Public
and private rights, generally divided into Following classes.
(i)
Independent and dependent rights
(ii)
Original and substitutory rights
Independent
rights are those which imposes no corresponding obligation on any particular
individual, through it is a duty of all alike not to infringe it. In English
jurisprudence, it is called right in rem. Dependent rights are those, that
exist against a particular person who is under towards the possessor of the
right. In English jurisprudence it is called right in person.
(III)
Original and substitutory rights
The
jurists further classified rights into original and substiturory rights. For
instance, the right of God to require the performance of ablutions with water
before he says prayer is an original right, but in case of sickness, ablution
by rubbing one’s hands and face with earth is allowed as substitute. In English
jurisprudence, this is called antecedent and remedial right
7.
CONCLUSION
To
conclude, I can say, that the rights are useful and necessary for the
individual, for the society and for the state. Islamic law provides certain
rights which are described as public and private, and these are based on Haqooq
Allah and Haqooq-ul-Abed. Haqooq Allah are rights of Allah corresponds to
public rights because it is welfare of the society at large.
Q10.
What are the modes of acquiring ownership and loosing t in Islam?
Q.
Define ownership What are different modes of acquiring and losing it?
1.
INTRODUCTION
Ownership
or milk is regarded very important in Islamic law as it relates to man’s
worldly desires and the relation of one man with another. Islamic law provided
different modes of acquiring and losing ownership, 35 it avoids doubt and
secure the sanctity of society.
2.
MEANING AND DEFINITION OF OWNERSHIP
(I)
General definition
“The
relationship that exists between a person and a thing that gives absolute
control and right of disposal over it to the exclusion of others.”
(II)
As defined By sadru’sh shariat
“Tt is
the expression of the connection existing Between a man and a thing, which is
under his absolute power and control to the exclusion of control and
disposition by other”.
3.
ELEMENTS IN OWNERSHIP
The
most essential elements in the concept of ownership (milk) are the presence of
“Control” and “Exclusion of others”. The person who has such powers and control
is called the malik or owner.
4.
SUBJECT MATTER OF OWNERSHIP
The
thing over which the juristic conception of milk extends may be "Mal"
(I}
Meaning of Mal
According
to Al-Hawi
“Mal
is the name for things other than human beings which have been created for the
Benefit of men, end which a man can heard and dispose of at his option,"
(II)
Things which are included in Mal
A mal
may include following things.
(i)
Things having a corpus
According
to all Muslim jurists all things which have a body are included in “Mal”.
(ii)
Things connected with corpus
According
ta Malikis and Shafiis, things that are connected with the corpus or physical
object are included In mal. Such as usufruct or Manafah, either in the shape of
produce of a physical object or of labour and services of men
(iii)
Pure rights
According
to Hanbalis, pure rights are included in Mal like the right to stipulate an
option.
(III)
Modern concept of Mal
In
traditional Islamic law, Mal not included incorporeal rights like copyrights,
patents etc. but modern Islamic jurists and courts have attempted to expand the
concept of mal or property to include such nights.
(IV)
Classification of Mal
Following
classification of mal have been laid down by the jurists.
(i)Moveable
and immoveable
BY immoveable
property is primarily means land and along with it all permanent fixtures such
as buildings.
The
characteristic of moveable property. is that it may be removed from one place to
another.
(ii)
Similar and dissimilar
An
article is said to belong to the class of similar (Maithli} if its substitute
can be found by weight or measure and quality such as gold, silver etc.
A
thing belong to the class of dissimilar if the like of it to not available in
the market or available with slight change , like houses, animals etc.
(iii)
Marketable and non-marketable
Marketable
things are those that can be converted to private property.
Non-marketable
things are those that cannot be converted to private property, like air,
sunshine, birds, in the air etc, these things are not regarded as mal.
(iv)
Consumable and non-consumable
Consumable
things like food and the like. Non-consumable goods like afiouse, Gold, etc.
5.
MODES OF ACQUIRING OWNERSHIP
According
to the strict theory of Islamic law, ownership is acquired in the followings
ways.
(i) By
Ihraz (original acquisition)
(ii)
By Naql (transfer)
(iii)
By Khalf (Succession)
According
to the modern jurists, ownership may also be acquired.
(iv)
By prescription
(I) By
Ihraz
It
means securing or taking possession of things not already owned by another.
This is original acquisition. Such objects as are not intended for common use
and have not already been appropriated by someone may be secured as property
e.g. trees growing on mountains etc.
(II)
By Naql
The
mast important and frequent made of acquisition of ownership ts transfer by an
act of the person
having
the ownership to another person. Such transfer is effected by means of a
contract or Aqd, Which may be in the from of sale, gift etc.
(Il)
By Khalf
This
made of acquisition belongs to the department of family law. When a person
dies, all his property whether moveable or immoveable passes ta his legal heirs
and they becomes owner by succession.
(IV)
By prescription
According
to the strict theory of Muhammadan law, a thing to another cannot be acquired
hy more possession however long, so ownership cannot be acquired by
prescription.
But in
modern times, the same result has Been achieved indirectly By the lawyers of
Turkey and Egypt, recognizing the power of the Sultan to forbid the Qazi to
hear suits instituted after the lapse of a certain time. In addition to this
the law permits acquisition of rights connected with property in the nature of easements
by prescription. For instance, a right of way over another's land.
6.
MODES OF LOSING OWNERSHIP
Following
are the different modes of losing ownership.
(i) BY
transfer
(ii)
By extinction of thing
(iii)
By death of owner
(iv)
By operation of law
(i)By
transfer
Ownership
may be lose by an act transfer. The original owner may transfer his thing to
another by way of sale, gift, waqf etc. in that case, his ownership will Be
extinguished and will passed ta the new owner.
(ii)
By extinction of thing
If a
thing is destroyed, then the ownership of an owner is losed or comes to an end.
(ii)
By death of owner
If an
owner of a thing dies then his ownership over that thing comes to an end unless
his right over that things is of heritable character. Which transfers to his
legal heirs after his death.
(iv)
By operation of law
An
ownership may also come to an end By the operation of law.
7. OWNERSHIP
IN ISLAM AS COMPARED TO THAT OF ENGLISH LAW
Ownership
in Islamic law as compared to the concept in English law is quit exhaustive and
include in its possession as part and parcel therefore, whereas in English law
ownership is only a juristic relationship between man and the right that he
possesses in respect of certain object.
8.
CONCLUSION
To conclude,
I can say, that every human being has right to make, such use of his physical
and mental faculties as chooses. Provided has does not interfere with similar
liberty of others. It is By the exercise of this inherent right that rights and
obligations connected with property are mostly acquired, transferred or extinguished.
Q11.
What are the sources of Islamic international law? Discuss briefly.
Q.
What are the objects and aims of international law under Islam
1.
INTRODUCTION
International
law is the rulers of the conduct of different states in their mutual dealings.
Islam has elaborated its own system of public international law. In the early
days of Islam the term “Siyar" was used to signify the law relating to
war, peace and neutrality and was taught as a part of Islamic fight in all the
Muslim institutions. Later this Branch of law was developed and polishes By
Muslim lawyers and historians and made it an independent subject.
2. MEANING
OF MUSLIM INTERNATIONAL LAW
"It
may be defined as that part of law and custom of the land and treaty
obligations which a Muslim de facts or de jure State observes in its dealings
with other de jure States.
3. SCOPE
OF MUSLIM INTERNATIONAL LAW
Tt was
the Muslim scholars who developed a science of international law and divorcing
it from political science and general law and made it an independent subject.
[n the beginning the Islamic law of nations was law which governed the conduct
of war and divisions of booty, but later this concept was used in the Broader
sense which include in its ambit peaceful relations, making of treaties and movement
of people from one state to another for commercial purposes etc.
4. OBJECTS
AND AIMS OF MUSLIM INTERNATIONAL
Following
are the main objects of Muslim international law.
(i)
The main object of Islam is the world Govt. according to the norms of Islamic
justice. So as to remove all causes of international friction and wars. Each
country would be free to pursue its national aims and would have complete autonomy
in local affairs, and yet would be a unit in a larger whole.
(ii)
Muslim international law would aim at the justices possible conduct of the
Muslim ruler in his international intercourse.
(iii)
It is the duty of the Islam to deal with the legal problems between Muslims and
non-Muslims under international law.
(iv)
The main object of Islam is to procure peace instead of war except the
religious one i. e. for the protection of religion, that is way from the very
outset, [slam entered into peaceful treaties with its neighboring states with a
set of rules and practices.
5. SOURCES
OF MUSLIM INTERNATIONAL LAW
Following
are the sources of Muslim international law-
(I)
Quran
Like
the ordinary laws of the land, Quran to also the primary source of Muslim
international law.
Quran
says:
“Mankind
were one community Allah sent into them prophets as bearers of good things and as
warner’s. (2: 213)
(II)
Sunnah
Sunnah
is the second source of Muslim international law all the deeds and sayings of
Holy Prophet (Peace be Upon Him) is Binding on Muslim community.
Holy
Prophet (Peace be Upon Him}
“Take
heed of the recommendation to treat the prisoners fairly,”
(III)
Ijma
ma or
consensus of opinion of Muslim jurists to a particular point of international
law is binding on Muslims.
(IV}
Opinion of jurists
The
opinion of Muslim jurists on different propositions of international law are
also regarded as Source of Muslim international law. These individual opinions
may be found in judicial decisions or some work on siyar or fiqh etc.
(V)
Custom and usages
Custom
and usages of the pre-Islamic Arabic are adopted by Islam which are reasonable
and just and these customs and usages are source of Muslim international law.
(VI)
Practice of Khulfa-E-Rashideen
The
practices of the Khulfe-e-Rashideen in their conduct with others states, which
were according to the spirit of slam is also a Source of Muslim international
law.
(VII)
Official instructions
Official
instructions to generals ambassadors, delegates and representatives by the
state are also regarded as sources of Islamic international law.
(VIII)
Practices of Muslim rulers
Practice
of Muslim rulers is also an important source of Muslim international Jaw. Many
renowned Muslim rulers have left many a useful precedents, the importance of
which cannot be ignored.
6.
CONCLUSION
To
conclude, I can say that the [slam rendered a great service to the world with
respect to the Introduction of
internationalism and humanism. Muslim international depends wholly and solely
upon the will of the Muslim state. It derives its authority just as any other
Muslim law of the land.
Q12.
What is legal capacity? How it defective and what are the consequences of its
defect.
1. INTRODUCTION
According
t0 the Muhammadan theory every Muslim is clothed inherently with legal
capacity, which Is criminal law and possession of contractual capacity covered
under this topic. For having legal capacity there are number of conditions that
must be fulfilled before the law can operate for or against a person.
2.
MEANING OF LEGAL CAPACITY
In
Arabic, legal capacity is called dhimma. It may be defined as.
“Dhimma
is defined as the quality by which man become fit for what he is entitled to
and what he is subject to”.
3.
KINDS OF LEGAL CAPACITY
It is
of two kinds.
(i)
Respective legal capacity
(ii)
Active legal capacity
(l)
Respective legal capacity
It
means capacity for acquisition Both rights and obligations, ©. 9 a4 child yet
te be Born has also some capacity which enables him to inherit.
(Il)
Active legal capacity
It
means capacity for the exercise of rights and the discharge of obligatians.
4.
TYPES OF LEGAL CAPACITY
Muslim
jurists divide legal capacity into three types.
(I)
Complete capacity
Complete
respective capacity is found in human being after his birth which makes him
eligible for the acquisition of all kinds of rights and obligations. Complete
active capacity is established in human being when he or she attains full
mental development and acquires the ability to discriminate.
(II) Deficient capacity
It is
that where the basis of legal capacity is not fully developed e.g. unborn
child, minor.
(III)
Imperfect capacity
It is
that where the basis of legal capacity are present such as being a human and
discretion but same external attribute does not permit the recognition of the
legal validity of certain acts. E. g. evidence of woman, Slaves etc.
5.
CAUSES OF DEFECTIVE LEGAL CAPACITY
The
causes affecting capacity are found in those factors that prevent capacity for
Acquisition and capacity for execution, from taking full effect.
(I)
Types of causes
The
jurists divide the causes of defective capacity or that effects legal capacity
into two kinds.
(a)
Natural (Samawi}
(b)
Acquired (Maksuba)
6.
NATURAL CAUSES THAT AFFECTS LEGAL CAPACITY
These
are causes that are beyond the control of man.’
(I)
Minority
It is
the state or condition of a human being after birth and before puberty.
(A)
Acts of minor
The
position of a minor for his acts from the legal point of view is the same in
Islamic law as in English law. The acts of minor may be discussed under the
following heads.
(i)
Financial transactions
A
minor can enter into financial transactions, through his guardian if it is for
his benefit. He is also liable to any damage caused to another's property, and
for the maintenance of the wives and near relatives.
(ii}
Criminal liability
A
minor cannot be punished for his acts which turn into offences.
(iii}
Religious liability
The
Ibadat are not obligatory on the minor. He is not Bound to perform acts of
worship.
(II)
Insanity
The
legal capacity of an insane person except as to acts done in lucid intervals is
affected in the same Way as that of an infant without discrimination. He has no
liability for ibadat or punishments and all his transactions are void.
(III)
Idiocy
An
idiot is a person who is confused in his speech and peaks sometimes like a
sensible man and some- times like a Lunatic. He can be permitted by his guardian
to undertake some transactions.
(IV)
Sleep
Since
man has no control over seep and cannot use his senses during state of sleep,
therefore he would not be legally, liable, e. g. If a man falls on a child in sleep
and Kills him, there is no liability for punishment.
(V) Forgetfulness
This
is a State of lack of memory which is brought about by nature and is not
attributable to man’s acts. A man is not liable in the matters of right of Allah.
g. eating during fast. But he is certainly liable in the mattes of right of men
e. g. if he causes injury to another person by violating a private right, his
legal capacity will be considered to be intact.
(VI)
Death illness
This
is a condition in which the mind of a sick person is dominated by the fact that
he will die because of his illness. It has no effect on the capacity for
acquisition or on the capacity for execution. A person suffering from
death-illness is prohibited from entering into transactions that are in excess
of one-third of his wealth.
7.
ACQUIRED CAUSES THAT AFFECTS LEGAL CAPACITY
These
are those causes that are created by man or in which human will and choice are
the basic factors.
(I)
Intoxication
Intoxication
temporarily suspends the proper functioning of the mental faculty. It does not
affect the capacity for acquisition and a drunken person is held liable for the
destruction of life and property and also for all obligations for maintenance
etc. as far as his capacity for execution concerned, he is liable for all acts
if he voluntarily drinks and legal capacity is negated if forced to drink.
(II)
Jest
When a
person uses words without intending to convey their primary or secondary
meanings, he is said to speak in jest Jest has no effect on effect on the legal
capacity.
(III)
Coercion and duress
It is
a Situation in which one is forced to do something without his willingness. It
is of two kinds.
(i)
Constraining
It
consists of a thread ta destroy 4 man's life or limb.
(ii)
Non-Constraining
It is
exercised by imprisoning confining or beating a man.
In
case of non-constraining coercion a man should not choose to break the law.
Coercion does not affect capacity far acquisition and a person under coercion
may be held liable for committing of Zina or murder under coercion but it does
affect capacity for executing and transactions that depend upon consent like sale
mortgage etc. are irregular.
(IV)
Ignorance of law
Generally
ignorance of law is not held to be an excuse, for it is the duty of every Muslim
to make himself acquainted with it
Exception:
When
there are doubts regarding a law or there are lent grounds in a particular case
for an individual to hold erroneous view with respect to it, such law is not
applicable to him. For instance if an infidel belonging to non-Muslim state
after embracing Islam happens to come to a Muslim State after embracing Islam
happens to come to a Muslim country and there drinks intoxicating liquor not
Knowing that it is forbidden by the religion, he will not incur the punishment.
(V)
Ignorance of facts
It is
regarded as an excuse in law. For instance, a pre-emptor right will not be
lost, if he failed to make a demand through ignorance of the fact that his
co-owner or neighbor had sold the property subject to pre-emption.
(VI)
Insolvency
If a
person Becomes insolvent, that ts his assets: fall short of his debts and
liabilities, when a court of competent jurisdiction so declares, his legal
capacity Becomes defective in the eye of law.
8.
CONCLUSION
Ta
conclude, I can say, that legal capacity of a person in his fitness for the
application of law to his actions. There are some circumstances which impair
legal capacity in a general way by their effect on man’s faculties.
Exception:
When
there are doubts regarding a law or there are lent grounds in a particular case
for an individual to held erroneous view with respect to it, such law is not
applicable to him. For instance if an infidel belonging to nan-Muslim state
after embracing Islam happens to come to a Muslim State after embracing Islam
happens to come to a Muslim country and there drinks intoxicating liquor not
knowing that it is forbidden by the religion, he will not incur the punishment.
Q13.
What are the qualifications of a Qazi in a Islamic state? Discuss.
Q.
Discuss the judicial system of an Islamic state.
1.
INTRODUCTION
Justice
is the foundation of states. The importance of the judiciary in political
construction is very prominent. It performs certain functions which are so very
necessary for the life and happiness of the citizens. In Islamic law,
administration of justice fs called siyasha or shariyah. It deals with the enforcement
of law as well as policies in an Islamic state.
2. JUDICIAL
SYSTEM IN AN ISLAMIC STATE
There
are three categories of institutions through which the siyasha or shariyah of
the Islamic state is implemented,
(i)
Mazalim courts
(ii)
Court of the Qazi
(iii)
Court of the Muhtasib
(I)
Mazalim courts
This
is the highest category of courts. They deal with appellate matters as well as
with those that are beyond the jurisdiction of the Qazi. All rights of state
are adjudicated by these courts and these courts are not bound by the strict
requirements of procedure and qualifications of witnesses etc.
(II)
Court of the Qazi
The Qazi
deals with Hudud, Qisas and Tazir where the requirements provided in the
Shariah about witnesses and procedure are strictly followed. The qazi also
deals with civil matters like contract, torts and also the personal law. He
deals with the rights of Allah as well as the rights of the Individual.
(III)
Court of the Muhtasib
The
Muhtasib courts are responsible for the enforcement of the general morality and
the policies of the state in accordance with the Islamic norms.
3. IMPORTANT
FEATURES OF ISLAMIC JUDICIAL SYSTEM
The
Holy Prophet (Peace be Upon Him) was the first Qazi. When Islam established its
state in Madina, he performed the functions of a judge in accordance with the
divied laws. It was one of his duties to settle the disputes of the people.
Quran
Says:
Allah commanded,
that judge justly if you Judge between mankind.” (Al-Nisa: 56}
Following
are some important features of Islamic judicial system.
(I)
Supremacy of law
Supremacy
of law is the fundamental principle of Islamic judicial system. The Holy
Prophet (Peace be Upon Him) established the example that even the head of the
state could be sued in his private as well as public capacity. The principle
that king can do no wrong” is alien to the Islamic concept of justice.
(i)
Direction of Hazrat Umar (R.A)
Following
directions have been issued by the second caliph of the Muslims Hazrat Umar,
when he appeared Before Qazi Zaid Bin. To all qazis. .
(a) To
treat all the persons equally in law.
(b) Not
to distinguish between relatives and others.
(c) To
abstain from taking bribe.
(II)
Independence of judiciary
It is
the independence and impartiality of the judiciary which guarantees the peace
of the state and satisfaction is totally independent and impartial.
(i)
Separation on Judiciary from executive
In the
time of Holy Prophet (Peace be Upon Him} the office of executive and the
judiciary vests in him but after his death. Hazrat Abu Bakr separated judiciary
from the executive and he appointed Hazrat Umar as a (Qazi.
4.
APPOINTMENT OF QAZI
Qazi
is a religious judge working under the guidance of Shariah. As far as his
appointment ts concerned, Quran has not laid down any specific procedure. He
may be appointed in following ways.
(i) By
the Iman, Caliph, Sultan or Governor
(ii) A
non-Muslim ruler of Governor can also appoint a Qazi.
(I)
Duration of office
The
qazi hold his office at the discretion of the sultan who may dismiss him on
suspicion or even without Suspicion.
View
of Abu Hanifa:
Abu
Hanifa says that a qazi should not be allowed to held office for more than 4
year.
5. QUALIFICATION
OF QAZI
Following
are the qualifications of a qazi.
(I)
Competent as a witness
A qazi
must possess the qualities of a witness viz.
(i) He
must be a Muslim
(ii)
He must be free
(ii)
He must be a major
(iv)
He must be sane
(II)
Virtuous character
According
to Shafis he must also be of virtuous character but the Hanafis do not consider
it a necessary condition.
(III)
Mujtahid
According
to Al-Shafi, a Qazi should be a Mujtahid but the Hanafi view that the judgment
of layman is valid. The Hanafi hold that the function of qazi must be a
Mujtahid.
(IV)
Well versed in Islamic law
A qazi
must be well-versed in Islamic law.
(V)
Personal attributes
A qazi
should have following personal attributes.
(i) He
must not be short-tempered
(ii)
He must not mixed freely with the people
(iii)
He must have power of decision
(iv)
He must have strong faith in Allah.
(VI)
Juristic qualities
(i) A
qazi must know the norms of justice
(ii)
He must have the ability to maintain equity
(iii)
He must Be impartial
(iv)
He must decide cases on the basis of evidence
(V) He
must give his decision in detail
(vi)
There should be no ambiguities in the decision
(vii)
He must act gracefully
6.
STATUS OF WOMAN AS QAZI
According
to Hanafis a woman may be a qazi, if she possesses the prescribe
qualifications, but she is not competent to pass orders of Hadd or retaliation
as in these matters her evidence is not admissible.
7.
POWERS AND JURISDICTION OF QAZI
A qazi
may be appointed for a limited time or with jurisdiction over a particular
area. Similarly a particular class of cases may be excluded from his
jurisdiction or he may be empowered to try only particular classes of cases.
(I)
Power to appoint deputy qazi
A qazi
may appoint a deputy qazi if he is empowered to do so by the Sultan, and he can
also dismiss him.
8.
QUASI-JUDICIAL-DUTIES OF A QAZI
Following
are the quasi-judicial duties of a qazi.
(1) He
must look after and protect the waqf property.
(ii)
He is the custodian of the property and person of the minors, Lunatics, idiots
and missing persons.
(ii)
He has the power to appoint an administrator of the deceased.
(iv)
He must appoint ideal person for his assistance.
9. REMOVAL
OF QAZI
A qazi
may be removed from his office on the following grounds.
(i) If
he became insane.
(ii)
If he gives decision against the law.
(iii)
If he involves in corruption.
10.
CONCLUSION
fa
conclude, I can say, that itis a general rule that when we know how a state
dispenses justice, we Know with same exactness the moral character to which it
can pretend. In Islamic state justice and dispensation of justice is given a
very high place, both state as well as individual level.
Q14.
define and discuss jihad? how it is waged
Q.
Discuss the concept of Jihad in Islam what acts are permissible in war.
1.
INTRODUCTION
Jihad
is a holy war. The spread of Islam by arms is a religious duty upon Muslims in
general. The interest of Din conveys a single goal to spread the message of
Islam in the whole world and to establish the supremacy of the Din. The
Instrument utilized for attaining this goal is dawah (invitation) In conjunction
with jihad.
2.
MEANING AND DEFINITION OF JIHAD
(I)
Meaning of jihad:
The word
jihad is derived from the word “Jehad”, which means to strive hard.
(II)
Definition of jihad:
(i)
According to Al Kasani:
“Thad
in the technology of law is used for exending ability and power in fighting in
the path of Ged by means of life, property, tongue and other than these.”
3. JIHAD
& THE LIGHT OF QURANIC VERSES
I the
meccan suras of the Quran, patience under attack is taught. No other attitude
was possible. But at Madina the right to repel attack appears and gradually it
became a prescribed duty to fight against and subdue the hostile meecans.
“Fight
against such of those who have been given the scripture as believe not in Allah
or the last day.” (9: 29)
“Then
when the sacred months have passed, slay the idolaters wherever ye find them.”
(9: 5)
“And
the strive for Allah with the endeavor which is his right.” (Al-Haj: 78}
4. HADITH
IN SUPPORT OF JIHAD
Following
Ahadith supported the concept of Jihad,
“I
have been commanded to fight mankind until they say, ‘there is no God but
Allah."
“The
reward for keeping the enemy at bay in Jihad carries more reward than carried
by seventy prayers.”
5. DECLARATION
OF JIHAD
According
to Mohammadan law, the Imam or the head of the state may declare a jihad
against the non-Muslims of Darul-Harb or alient state for the protection of
religion.
6. WHEN
JIHAD MAYBE WAGED
Jihad
may be declared only to ensure the safety of Islam, the Muslim state and do
avoid injuries likely to be inflicted By non- Muslim.
7. CONDITIONS
FOR WAGING WEAR
(i)
Jihad is permitted only for the protection of Islam.
(ii)
Islamic state must be powerful enough wage a war.(iii) No war is waged, where
the head of the Islamic out the real aim of jihad which is to ward off injuries
likely to be inflicted By non-Muslim.
(iv)
No war can be waged unless the non-Muslim subjects of hostile state have first
of all been invited to embrace Islam. In refusal they have a choice to submit
to Muslim rule become dhimmis and pay Jizya and Kharaj or fight
8. MODES
OF DOING JIHAD
There
are following modes of doing Jihad.
(I)
Jihad-Bl-Mal
Any
person who contributes financially to launch Jihad, since he himself cannot
take party physically, is called jihad-Bl- mal
(II) Jihad-Bl-Nafs
It is
to fight the enemy personally. This is the best way of Jihad and is preferable
to any other type of Jihad.
(III)
Jihad-Bl-Illam
If a
person contributes his abilities for the protection and spreading of Islam, it
is Jihad-bl-Ilam. He can do so by means of his actions, knowledge and deeds. In
modern work, this type of Jihad is mast Important.
9. TYPES
OF JIHAD
Jihad
may be of following types.
(I)
Internal Jihad
This
& carried on against the evil that may crop within the Muslim society. Evil
customs and un-Islamic acts are 4 serious danger to Islam and they should Be
crushed By means of Jihad.
(II)
Jihad through knowledge or Fiqri Jihad
This
type of Jihad is against non-Muslim and disbelievers who raise objection
against Islam. It is the duty of Muslims to contradict such propaganda in the
light of Quran and Sunnah.
(III)
Jihad through war or musala Jihad
Islam
has advocated that a war with in fields should be avoided as far as possible,
But if it is unavoidable for the cause of Islam, it should be waged. It is of
two types.
(i)
Dafie Jihad
When Islam
state is attacked by enemies of Islam, Jihad to defend the country 1s dafie
Jihad.
As
Quran says:
“And
fight in the path of God with those who are fighting with you and do not
transgress, God loves not those who transgress.” (2: 199)
(ii)
Iqdami Jihad
When
the enemies of Islam do not stop doing evils against. Muslims then to attack
the enemy is called lqdami Jihad, e. g. Conquest of Makkah.
10. ACTS
FORBIDDEN DURING JIHAD
Following
acts are forbidden By Islam during war.
(i)
Unnecessary and cruel way of killing others in jihad.
(ii)
Not to kill those who are do not participate in war.
(ii)
Not to kill those who are in capable of fighting ¢. g. Women, minors, ete.
(iv)
Not to kill prisoners of war.
(v)
Not to kill civilians
(vi)
Destroy the use of limb or organ of men well as beast
(Vii) Slaughtering
of animals which is more than what is needed for food ts also forbidden.
(viii)
Unnecessary destruction of harvest and cutting of trees is forbidden.
(ix)
Mischief and high-handedness
(x)
Adultery and fornication with captive women is strictly forbidden.
(xi)
Massacre is not allowed.
(xi)
Killing of farmers is forbidden unless it is done in self-defense
(xiii)
Traders, shopkeepers and contractors are to be left alone if they do not
participate in war.
(xiv)
Burning of captured men or animal.
(xv)
Acts which are forbidden under treaties. Must be respected.
(xvi)
To keep non-Muslim is front while fighting against the enemy.
(xvii)
Killing of hostages.
(xviii)
Killing of persons who surrenders.
(xix)
Cutting the head of enemy and send it to higher authorities is also forbidden
(xx)
Use of poisonous arrows ta the enemy is also forbidden.
11. ACTS
PERMITTED DURING JIHAD.
(i)
Killing of persons who fought against Islamic Army.
(ii)
Any type of weapon may be used except poisonous weapon.
(iii)
To detect the presence of the enemy and to Surround him in war.
(iv)
Propaganda against enemy can be made.
(v) To
take possession or destroy enemy property.
(vi)
To cut water supply of the enemy or to pollute it.
(vii)
Using of force to get food for Islamic army.
(viii)
To do anything which is not expressly forbidden.
12.
CONCLUSION
To conclude,
I can say, that Allah Almighty has laid down in the Holy Quran that Muslims
should make every possible effort to remove obstructions in the way of Islam
and even fight and give their lives in the way of Allah. The underlying idea of
Jihad is to maintain the predominance or balance of power and that idea can be
achieved in the modern work through the medium of agreements and Muslims should
focus of the institution of dawa (invitation) than on the instrument of Jihad.
Q15.
Discuss and elaborate Istidlal and Istihsan.
Q. Why
some jurists did not approve Istihsan? De any important development of the law take
place under this doctrine? Discuss
1.
INTRODUCTION
Istihsan
means preference of one over another considering the formed good. When a rule
of law deduced by analogy is either in conflict with Ijma or is likely to
causes inconvenience owing to its narrowness. The Hanfi jurists refuse to
follow it and give preference to rule, which in his opinion would better
advance the welfare of man and the interest of justice.
2. MEANING
AND DEFINITION OF ISTIHSAN
(I)
Meaning
In its
literal sense Istihsan means
"to
consider something good.”
(Il)
Definition
(i) By
Kharkhi
“In
case of some legal problem exception is created from its analogous precedent on
the basis of some stronger argument which render it distinguishable.”
(ii)
By Al 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 stranger than it.”
(iii)
By Al Hawani
3. RECOGNITION
OF PRINCIPAL OF ISTIHSAN
The
doctrine of Istihsan is accepted by the Hanafi and Maliki Schools only and not
the others.
4.
REASONS FOR ISTIHSAN
(I)
Quranic view
“Verily,
we call upon you to be a man of judgement and do justice.”
“Those
who intently listen to us, they follow the best of it, those are the ones whom
Allah has guided and those are the ones endowed with understanding.”
(Il)
Ahadith perspective
“Don't
cause injury to other and don't suffer a loss yourself.”
“What
does Muslim consider better Allah also consider it better,"
5. ORIGIN
OF ISTIHSAN
Abu
Hanifa was the expounder oat 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 fit. The Hanafi lawyers speak of this doctrine Asif it was a Species of
analogical deduction. They call it as hidden analogy.
6. KINDS
OF ISTIHSAN
Following
are different kinds of Istihsan:
(i) Istihsan-
e- Qiyasi
(ii)
Istihsan- e- Zarurat
(iii)
Istihsan- e- Ijma
(i)
Istihsan-E-Qiyasi
Under
this type of Istihsan one can bend the law in favour of people and society by
giving preference to one Oivas over the other Qiyas |. e. preference of Qiyas
Khafi over the Qiyas Jali.
(ii) Istihsan-E-Zarurat
In
this type it is to give preference to one Sunnah over the other Sunnah.
Example
Usually
all Muslims say prayer by Standing, But there are more than one Sunnah about
saying prayer i. e by standing. By sitting or by lying on the bed or floor. One
to at liberty to prefer one way over the other but according to his need.
(iii)
Istihsan-E-Ijma
If two
Ijma are available one similar question of law’ then under Istihsan-e-Ijma one
can adapt that one which is closer to Quran and Sunnah.
7.
IMPORTANCE OF ISTIHSAN AS 5 SOURCE OF LAW
Islamic
legal system is not a rigid one rather is much flexible to be adopted according
to the changing circumstances and needs of society the principal of Isthsan
provides an opportunity to the jurists to interpret the law according to the
spirit and true intention of Islam, and avoids inconvenience and, hardship
within the limits prescribed By Quran and Sunnah Islamic Shariah is based on
the principle of convenience equity and public good, which are also the main
features of Istihsan. It is the more effective 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 Qiyas, and consequently afford greater
probabilities.
8. EXAMPLES
OF ISTIHSAN
(i)
According to Qiyas, the appointment of minor is invalid for the trustee as he
should major. But according to Istihsan, a minor is recognized as trustee and
the Qazi should appoint a competent person to act as his Guardian through whom
the minor will administer the property till he attains the age of puberty.
(ii)
Islam gives a great importance to the proper dress of a woman. No one except
her husband can see her naked but on account of necessity a physician may be
allowed.
( iii)
Analogy require that ritually pure water should be used for ablution Istihsan
requires that the use of wells, in which dirt or carcasses of animals have
fallen, be permitted.
9. CRITICISM
AGAINST ISTIHSAN
Following
criticism has been raised against the doctrine of Istihsan.
(I) By
Imam Shafi
Imam
Shafi has criticized Istihsan in his books Kitab-ul-Urn and Kitab-ul-Risala. He
is of the view that Istihsan means the subjective appreciation of a jurist
regarding the interpretation of laws laid down in Holy Quran and Sunnah.
Therefore it is similar to create a new Sharaiah. He is reported to have said.
“Whoever
restarts to Istihsan makes laws.”
(II)By
Imam Ghazali
Imam Ghazali
criticized Istihsan as a source of law. He said that Islam does not allow to
neglect the laws laid down in Holy Quran and Sunnah but by exercising Istihsan
, new Sharish can be created.
(III)
By orientalists
They
say that whet it is universally established that laws laid dawn in Holy Quran
and Sunnah cannot be changed, then how Istihsan can be exercised by ignoring
such laws. This objection is not justified because no Muslim could reject
the law of Quran and Sunnah.
10. ISTIHSAN
AS EQUITY
It has
rightly stated by sir Abdur Rahim that Quran and Sunnah are legislation, and if
analogy is common law, Istihsan is its equity. Just as in the case of English
law, the concept of equity developed side by said with common law mainly
designed te remedy the strictness of the law and to impart justice in the real sense
of the word in the same manner, Istihsan developed as the watchdog of
analogical deduction.
11. DIFFERENCES
BETWEEN BRITISH CONCEPT OF EQUITY AND ISTIHSAN
I. As
to history
Istihsan
is an olden concept.
Equity
is not old as the principle of Istihsan.
II. As
to basis
Istihsan
does not basis on Arbitrary opinion.
Equity
basis on Arbitrary opinion.
III.
As to Scope
Istihsan
has wider scope.
Equity
has less scope.
IV. As
ta sources
Sources
of Istihsan are Quran, Sunnah, and Ijma.
V. As
to meaning
Equity
means natural justice.
Istihsan
means preferring or considering a thing to be good.
12.
CONCLUSION
To
conclude , I can say, that the public interest is regarded in Sariah as a basis
of law. The Hanafis call it “Istihsan”. Imam Abu Hanifa was of the opinion that
strict adherence to Qiyas or analogy would deprive law of that elasticity and
adaptability which alone makes it the handmaid of justice. So by exercising
Istihsan the preference may Be given to that law which is for the welfare of
the people.
Q15.
Discuss and elaborate Istidlah and Istihsan.
1.
INTRODUCTION
Istidlah
is a method of juristic deduction not falling within the scope of analogy. The
Hanafi jurists 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
OF ISTIDLAH
(I)
Ordinary meaning
In
ordinary use, Istidlah means the inferring from a thing another thing/
(II)
Meaning used by Malik and Shafi
“Istidlah
is the name for a distinct method of juristic ratiocination, not falling within
the scope of interpretation or analogy.”
3. KINDS
OF ISTIDLAH
Istidlah
is of three kinds
(i)
expression of connection existing between two proposition
(ii) Istihsab-ul-hal
(iii)
Authority of previous revealed law
(I)
Expression of connection existing between two propositions
The
expression of the connection existing between one proposition and another
without any specific effective cause. It is of the following varieties.
(i)
Connection between affirmative propositions
When
the connection is between two affirmative propositions.
Example:
The
proposition that everyone who is competent to give a valid Talaq can also make
a Valid Zihar.
(ii)
Connection between negative propositions
When
the connection is Between two negative propositions.
Example:
The
statement that if a regular ablution were valid without specific intention,
then a substitutory ablution (Wazu) would also be valid.
(iii)
Connection between affirmative and negative proposition
When
the connection is between an affirmative and a negative proposition,
Example:
The
proposition that what is permissible cannot Be haram or forbidden.
(iv)
Connection between negative and affirmative proposition
When
the connexon is between a negative proposition and an affirmative proposition.
Example;
The
statement that what 6 not valid forbidden.
(II) Istihsab-Al-Hal
The
word Istihsan means the continuance of companionship technically it means the
presumption of continuance of an earlier rule of its continued absence. It this
sense it means the maintenance of a Status quo with respect to the rule. It is
merely a set of presumptions. and not a source of law.
(A)
Basis of Istihsab
The
following general principles from the basis of Istihsab.
(i)
The presumption is that all things are permitted, unless prohibited by the Shariah,
This rule applies to beneficial things alone e. q. food drink etc.
(ii)
There is no presumption of liability against anyone and all liability has to be
proved.
(iii)
Once a thing is established beyond doubt it can only be set aside through an
equally certain evidence.
(B)
Where Istihsab not apply
Where
there is no hukm that had been established through a valid evidence, the
principle of Istihsab does not apply.
(III)
Authority of previous revealed laws
According
to the Hanafi law, only such laws of the previous revealed religions are
binding, as have been mentioned in the Holy Quran without disapproval.
4. CONCLUSION
Ta
conclude, I can say, that Istidlal as a method of juristic deduction includes
all forms of ratiocination which do not fall within the scope of analogical
deduction. According to Qazi Udud the Hanafi doctrine of Istihsan as well as
the Maliki doctrine of public good are covered By Istidlah.
Q16.
Define and discuss Ijtihad as a significant source of Islamic law which
reference to contemporary work
Q.
Define and discuss Ijtihad as a Source of Islamic law.
Q.
Define and distinguish between Ijtihad and Taqlid .
1.
INTRODUCTION
Ijtihad
is one of the dependent sources of Islamic law. If a matter is not resolved
expressly in a Quran, Sunnah and by way of lima the jurist must not leave the
matter unresolved rather he should strive hard to find out the solution under
the light of Quran and Sunnah.
2. MEANING
AND DEFINITION OF IJTIHAD
(I)
Meaning of Ijtihad
(i)
Literal
Ijtihad
literally means striving, expending of maximum effort in the performance of an
act.
(ii)
Technical
It is
the effort made by Mujtahid in seeking knowledge of the Ahkam (rules) of the
Shanah through Interpretation.
(II)
Definition of Ijtihad
“Ijtihad
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 Ijma, with a
view to find out what in all probability is the law.
3. ARGUMENTS
IN SUPPORT OF IJTIHAD
Following
Quranic verses are in favour of Ijtihad.
“And
we have revealed on you the book which describes everything.”
"We
have omitted nothing from this Book."
“Then
ask those who have knowledge , if you yourselves da not know.”
(II)
Ahadith in support of Ijtihad
Following
Ahadiths are also in support of Ijtihad.
“Exercise
Ijtihad because God makes the work easy for the person for which he is born in
this world.”
“When a
ruler exercise Ijtihad properly in resolving an issue, he is to be rewarded by
God in dual way and if he is wrong in his conclusion, he gets one reward.”
4. FUNCTION
OF MUJTAHID
Following
are the functions or takes of the Mujtahid.
(i) To
discover the law that is either stated explicitly in the primary sources or is
implied by the texts, that is, literal interpretation.
(ii)
To extend the law to new cases which are similar to cases mentioned in textual
sources.
(iii)
To extend the law to new cases which are not covered by the previous methods.
5.
LIMITATIONS ON IJTIHAD
Ijtihad
cannot be made in cases which are covered by the express words of Quran, Hadith
or has been determined by Ijma. A jurist cannot exercise Ijtihad on the Basic
pillars of Islam e.g. paying of Zakat, Prohibition of murder etc.
"PLD
1981 FSc 23"
“Ijtihad
is permissible only in field where no rule of Injunction from Holy Quran or
Sunnah is available."
6. MODES
OF PERFORMING IJTIHAD
A
jurist may perform Ijtihad by following the following pattern-
(i)
Literal construction
A
jurist firstly concentrates on literal meaning of the texts and follow the
plain meaning rule.
(ii)
Qiyas
After
the literal concentrates, the jurist may turn to Qiyas But he must confine to
strict types of analogy.
(III)Collectively
reliance on texts
After
exhausting the first two methods or modes, the jurist may rely on all the texts
considered collectively. This means that legal reasoning is undertaken more in
line with Che spirit of the law and its purposes rather than the confines of
individual! texts.
7. SOURCES
OF IJTIHAD
Sources
are following:
(i)
Quran
(ii)
Sunnah
(iii)
Ijma
6. QUALIFICATIONS
OF MUJTAHID
The
word Mujtahid means a person who can make Ijtihad. Following are the
qualifications of a mujtahid.
(I)
According to author of Jam Ul Jawami
According
to the author Jam ul Jawami following are the qualifications of a mujtahid.
(i)
Major
A
mujtahid must be a major i. e. has attained the age of majority so a miner
cannot be a mujtahid.
(ii)
Sound and rational mind
He
must be of sound mind, possessing the understanding and of sufficient
intellectual to grasp the subject.
(iii)Knowledge
of grammar
He
must have average knowledge of the Arabic language and recognize the principles
of jurisprudence and sources of law i. e Quran, Sunnah etc.
(iv)
Acquaintance with the principal of Shariah
He
must have well versed with the main principles of Shariah or the legal code so
as ta be able to ascertain the true intention of the law-giver.
(v)
Knowledge of Naskh
The
mujtahid must understands abrogation (Naskh) and identifies the occasions on
which rules have been repealed By law-qiver.
(vi)
Knowledge to circumstances of Quranic revelations
A
Mujtahid must know the circumstances in which the texts of Holy Quran were
revealed or repealed.
(II) According
to Fakhural Islam
The
great thinker Fakhural Islam enumerates the following conditions.
(i)
Conversant with Islamic jurisprudence
A
Mujtahid must be conversant with the science of Islamic jurisprudence and the
rules of law applied in various departments.
(ii)
Knowledge of the Quran
a
Mujtahid should have knowledge of Quran together with its meaning both literal
and dictionary and he must be able to interpret its verses.
(iii)
Knowledge of the traditions
A
Mujtahid should have knowledge of the traditions as well. He must fully
familiar with the traditions reported by from the Holy Prophet (Peace be Upon
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)
Acquaintance with the rules of analogical deduction
A
Mujtahid must be aware of and full conversant with the rules and methods of
analogical deduction.
(III)
Other qualifications
Following
are also considered as necessary qualifications of Mujtahid.
(i) He
must have faith and the courage of conviction.
(ii)
He must have competence and advanced proficiency in Arabic language and
literature.
(ii) A
comprehensive understanding of Fiqh, the basic principles and other relevant
matters.
(iv)
He must understands the different forms of bayan or elaboration of the texts,
which is usually provided by the law-giver himself, and also identifies the
occasions on which such bayan is invoked.
(v) A
proper understanding of modern development and a reasonable appraisal of
contemporary Exigencies.
9. KINDS
OF MUJTAHID
(I) Mujtahidum
fish-shari
These
are the jurists who have an absolute and independent power of expounding the
law e. g. Abu Hanifa Mailk, Shafi etc.
(II)
Mujtahidum fil madhhab
The
jurists having authority to expound the law according to a particular school
comes into this category. They were the disciples of jurists of first rank like
Abu Yusuf belong to Hanafi school. These mujtahids 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.
(III )
Mutahidum fal masal’l
They
are the jurists who are competent to expound the law on a particular question
which had not been settled by the jurist of first and the second class. The
jurist of this rank is at liberty to lay down the law in conformity to the
principles of his school e. g. Khassaf, Qadi Khan.
(IV)
Mutjahidum Muqallid
They
are also called Mujtahid Muqayyid. They have not any right to deduct the law
but their function was
to
explain the law and draw inferences. Theses Mujthahids are divided into four
groups.
(i)
Ashabu I Takhrij
(ii)
Ashabu I Tarjih
(iii)
Ashabu 'l Tashih
(iv)
Ashabu 'l Shariah
10. LEGAL
EFFECT OF IJTIHAD
The
legal effort of Ijtihad is the probability of the conclusion so arrived at
being correct but the possibility of such conclusion being erroneous is not
excluded, that is why juristic deductions are classed as discretionary or
presumptive law.
11. IJTIHAD
AND TAQLID
Ijtihad
was performed by the jurists from about the ninth to 12th centuries A.D. It
then ceased to develop further owing to the doctrine of Taqlid. It was declared
that the doors of the Ijtihad are closed and therefore further interpretation of
the Quran Sunnah was not permissible. This view is aver ruled by the modern
jurists.
(I)
Meaning of Taqlid
(i)
General meaning
Taqlid
means following the opinion of another person without knowledge of the
authority for such pinion.
(ii)
Meaning in Islamic jurisprudence
“Taqlid
means following the opinion of jurist in matters which have not been dealt with
By an express Quranic or traditionary text or by Ijma".
(II) Duty
of layman
Layman
is a person who has not made a study of law and religion is concerned, and the
doctrine of Taqlid applies only to those persons who do not possess the
qualifications of a Mujtahid.
(III)
Taqlid in Pakistan
The
constitution of Pakistan, 1973 permits Taqlid in articles 189 and 201. These
articles make the judgments of the supreme court Binding on all courts and the
judgments of the High court’s binding on courts subordinate ta them. When the
lower courts fellow the opinions of the higher courts they are performing Taqlid.
(lV )
Two schools of Mujtahsdee
There
are two school of Mujtahadeen viz traditionalist and modernists the
traditionalist school denies the right of Ijtehad to later generations But the
modernists asserts that the doors of Ijtihad are open and Innovations in the Islamic
law are Possible, provided one remains with the injunctions and Ahkam of the Quran
and Sunnah they coitize the view that Taqlid had taken over the place of Ijtihad
on the following grounds.
(i)
Quranic reference
They
very Quranic text which is the principle of Sunni jurisprudence that all
juristic deductions are uncertain and Ijtihad are closed, that will be in
conflict with that fundamental.
(V)
Difference Between Taqlid and Ijtihad
(i) In
taqlid a person in need of opinion has to follow the opinion of another person
while in Ijtihad a person does not follow the opinion of another person but
derives the rule of conduct for himself directly from the sources of Islamic
law,
(ii)
In Ijtihad a person must possess some necessary qualifications while in Taqlid
a person not possess such qualifications.
(ii) Ijtihad
is a source of law, creating new law but Taqlid is not a source of law.
12. IMPORTANCE
OF IJTIHAD IN MODERN WORLD
Ijtihad
is a living source of law. It 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.
Shah
Wali ullah was the first Muslim thinker ta propound a theory of cautious
exercise of Ijtihad. Then it was followed by Sir syed Ahmad Khan and Allama
Mohammad Iqbal. According to Allama Iqbal, Ijtihad can be undertaken not only
by an individual jurist but also by a legislative assembly recognizing the importance
of Ijtihad in the modern times, the Shariah ordinance of 1988, in Pakistan had
entrusted the task of making the laws in the country to conforms to the Quran
and Sunnah to the judiciary.
13. CONCLUSION
Ta
conclude, I can say, that the importance of Ijtihad lies in the dynamic and
flexible spirit of Islam, which is a complete code of life for all times.
Within the limits imposed By the Quran and Sunnah, Islamic law can be
interpreted by a mujtahid who may be either an individual or a legislative
assembly. This development will Bring about a accommodation between the
prescriptions and Injunctions of Islam, on the one hand, and the imperatives of
modern life on the other.
Q17.
Define and discuss Ijma and Qiyas as source of Islamic law
Q.
Define Ijma. What are its kinds and how it is conduct
1. INTRODUCTION
“Ijma”
is the primary Source of law. It means determination or consensus. The society
which was established by the Holy Quran and the Sunnah is a living society so
the Allah almighty gave sanction to the consensus of the Muslim ta meet the
arising needs of Che time.
2. MEANING
AND DEFINITION OF IJMA
(I)Meaning
of Ijma
Ijma
is the verbal noun of the Arabic word Ajmaa itis used in two senses.
(i) Determination
and resolution
(ii)
Agreement upon a matter
(II)
Definition of Ijma
“Ijma
is defined as agreement of the jurists among the followers of Mohammadan in a
particular age on a question of law.”
3. BASIS
OF IJMA
Ijma
may be Based on:
(i) Quran
(ii)
Hadith or
(iii)
Analogy
4. REASONS
OR ARGUMENTS IN SUPPORT OF IJMA
Allah
almighty has completed the Islamic religion and Hazrat Muhammad (Peace Be Upon
Him) was the last of the Prophets (Peace Be Upon Him), so it necessarily
follows that any rule of law, which is not found to be explicitly laid down in
the Quran or by the precepts of the Holy Prophet, must be capable of being
deduced from them, so Ijma is permitted.
(I)
Quranic verses in support of Ijma
Following
Quranic verses support the conception of ma.
“You
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.”
“Obey
God and obey the Prophet (Peace be Upon Him) and these amongst you who have authority."
“If
you yourself da not know, then question those who do.’
(II)
Hadith in support of Ijma
Following
Ahadith also support the concept of Ijma.
“My following
will never agree upon what wrong.”
“Tt is
Incumbent upon you to follow the most numerous body.”
"Whoever
separates himself (from the main body) will go to hell.”
5. KINDS
OF IJMA
Following
are the kinds of Ijma
(i)
Express Ijma or Ijma Qawli
(ii)
Tacit Ijma or Ijma Sakuti
(I)
Explicit Ijma
Explicit
Ijma is one in which the legal opinions of all the jurists of one period
coverage in relation to a legal issue, and each of them states his opinion explicitly.
(a) It
may take place when all the jurists are gathered in one session and an issue is
presented to them and they collectively expressed a unanimous opinion.
(b) It
may also take place when an issue is raised in a certain period and all the
jurists in turn issue similar fatwas independently and at separate times.
(II)
Tacit Ijma
Tacit lima takes place when some mujtahid
issue a verdict on a legal issue and the rest of the mujtahids come to know of
it during the same period, but they keep silent, neither acknowledge it nor refuse
it expressly.
6. WHO
CAN PERFORM IJMA
Only
Muslim Mujtahids or jurists can perform Ijma. He must possess the following qualifications.
(i)
Scholar of Quran and Sunnah
(ii) Knows
Qiyas
(iii)
Expert of Arabic language
(iv)
Impartial thinking
(v)
Well versed with up to date knowledge
(vi)
Knows the principal of Naskh
(vii)
Conversant with the science of usul and faro
(viii)
Competent to expound law.
7. CONDITIONS
FOR THE VALIDITY OF IJMA
Following
are the conditions for the validity of Ijma.
(I) Ijma
By mujtahids
The
lima must be performed by Mujtahids i. & those who have attained the status
of Ijtihed.
(II)
Unanimous opinion
There
must be unanimous opinion among all mujtahids upon a Hukm shari-
(III)
Performed by Muslims
All
the jurists participating in Ijma must be from the Ummah of Hazrat Muhammed
(Peace be Upon Him).
(IV)
After the death of Holy Prophet (Peace be Upon Him)
The
Ijma must Have taken place after the death of Holy Prophet (Peace be Upon Him).
(V) In
a determinate period
The Ijma
must be performed by jurists of single determined period i, e. of the same
generation.
(VI)
Upon rule of law
The
Ijma must be upon rule of law and all-non legal matters are excluded from the
domain of Ijma.
(VII)
Reliance upon sanad {Evidence}
For
deriving their opinion, Mujtahids should relied upon some sanad (evidence),
8.
IJMA AS A SOURCE OF LAW
Ijma
as a third source of law and under the circle of Quran and Sunnah's delegation
many issues can be resolved by lima.
(I)
Enforcement of ordains of Quran and Sunnah
Ijma
as a source of law helps in discovering the law and enforces the principals
laid down in Quran and Sunnah.
(II)
Interpretation of Sharia
Ijma
help in interpretation of laws of Sharia, according to the changing needs of
times.
(III)
New legislation can be made
Ta
achieve the objects of Quran and Sunnah, new legislation can be made through
the process of Ijma.
(IV)
First Ijma performed by Muslims
The
election of Hazrat Abu Bakr to the caliphate by the votes of the people was
based of Ijma.
9. LEGAL
EFFECT OF IJMA
The
law laid down by consensus of opinion is authoritative and binding. But in its theological
sense, a decision of ijma would be of absolute authority only if it conforms to
the following conditions.
(i) No
opinion to the contrary should have been expressed an the question by any of
the companions, or by other Mujtahids before the formation of the ljma.
(ii)
None of the Mujatahids 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)
It should be Based on an express text of the Quran or a tradition of a
continuous or well-knows character.
(v) It
must be regularly constituted.
10.
IJMA AND WESTERN CONCEPT OF “OPINION PRUDENTIUM
“Opinion
prudentium” which means the opinions and decisions of lawyers is parallel
concept of Ijma in the western society. In Roman law the lawyers were empowered
to give opinions by Emperor. With the passage of time such opinions Become part
of their legal system. However the concept of Ima has wider scope than the
concept opinion prudentium which is also known as “Responsa Prudentium.”
11.
IJMA IN MODERN PERIOD
According
to the accepted opinion of all four Sunni schools, ma is not confined to any
particular age or country. The underneath principal of Ijma 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. In
the earlier stages, this forum was confined to jurist companions then the
leading jurists of each school. Today the forum would be the highest court in
each Muslim country.
12.
CONCLUSION
To conclude,
I can say, that Ijma is an essential and characteristic principal of Sunni
Jurisprudence, one upon which the Muhammadan Community acted as soon as they
were left to their own resources. It may be constituted by decision expressed
in words or by practice of the jurists. The number of jurist participating in
Ijma need not be large and Ijma of one age may be reversed by subsequent Ijma
of the same age.
Q18.
Define Hadd and Tazir what 6 distinction between these.
Q.
Define and distinguish between Hadd and Tazir briefly discuss al the Hudood
crimes.
1.
INTRODUCTION
When
certain public rights are violated the wrong 6 called maasiat that is, crime or
offence and it gives rise to certain substitutory public rights in the form of
uqa‘bat or punishments. Viz Had and Tazir. The distinction between Hadd and
Tazir is of fundamental importance and concerns the doctrine of Hadd itself.
2. TYPES
OF PUNISHMENT
Punishments
are divided in to two types.
(i)
Hadd
(ii)
Tazir
3.
HADD
(I)
Meaning of Hadd
The
word Hadd literally means limit.
(i)
Legal meaning:
“Hadd
means a punishment which is fixed and enjoined as the right of Allah."
(II)
Origin of Hadd punishment
Hadd
used to be prevalent in Arabic at the time of the promulgation of Islam, and
the Muhammadan law has laid down conditions of astringent nature under which
such punishment may be inflicted.
4.
TAZIR
(I) Meaning
of Tazir
(i)
Literal meaning:
Tazir
literally means disgracing the criminal for his shameful conduct.
(ii)
Legal meaning:
“Punishments
that are at the discretion of the judge when the offence is related to a
private injury are called Tazir.”
5. DIFFERENCE
BETWEEN HADD AND TAZIR
There
is no indication in sunnah about the difference between Hadd and Tazir. It
would be open to legislature to add to the categories of Hadd and also enhance
the punishment fixed by the Quran and the Sunnah keeping in view the
circumstances and requirements of an age, though the punishments so fixed cannot
be reduced (PLD 1983 FSc 255)
Following
are some points of distinctions between Hadd and Tazir.
(I) As
to object
The
object of Hadd is prevention of a crime by following the principle of
retaliation and keeps everyone in the limits prescribed by Allah.
The
object of Tazir is reformation and correction of the offender.
(II)
Procedure
The
procedure of trial in Hadd is complicated.
The
procedure of trial in Tazir is simple as according to some jurists judge can
even render judgment on the basis of his own knowledge.
(III) As
to right
Violation
of rights of Allah gives raise to Hudud punishments.
Violation
of rights of individual gives raise to Tazir punishments.
(IV}
Commuting of sentence
The
penalty of Hadd cannot be commuted.
The
penalty of Tazir can be commuted.
(V)
Pardon of sentence
Pardon
cannot be granted in Hudud cases.
Pardon
may be granted in Tazir cases.
(VI)
Operation of mistake
Doubt
or mistake has the effect of waiving the penalty of Hadd.
Doubt
or mistake ‘has no effect in Tazir.
(VII)
Rule 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.
(VIII)
Standard of evidence
In
Hudud, the standard of evidence is very high as to the number and
qualifications of witnesses and the conditions under which Hadd may be imposed
and any doubt would be sufficient to prevent the Imposition of Hadd.
In
Tazir, the standard of evidence is not so high.
(IX)
Mention of offences
Some
jurists list seven Hadd offences:
(i)
Zina
(ii)
Sariqah
(iii) Hirabah
(iv)
Qadhuf
(v)
Shrub
(vi)
Riddah
(vii)
Baghi
The
offences has not been mentioned exhaustively and they are innumerable.
(X)
Discretion
In
Hudud crimes, the judge cannot exercise his discretion.
In
Tazir, judge or head of the state may exercise discretion.
(XI)
Replacement
Hadd
punishments can Be dealt with under Tazir.
In Tazir,
the punishment of Hudud cannot be enforced.
6.
CONCLUSION
Ta conclude,
I can say, that the punishment of Hadd and Tazir is a part of Islamic law. Hadd
was prevalent in Arabia before the promulgation of Islam and it is prior to the
concept of punishment as Tazir. In Pakistan today Tazir and siyasah are both
classified under the heading of Tazir. While the law of Hudud is enforced
through the prohibition of Hadd order (No: 4) 1979, Hudud ordinance VI 1979
(offences against property) and Zina ordinance (Enforcement of Hadd) VII, 1979.
Q19.
Define custom and discuss its importance in Islamic law.
Q.
Define custom What it its importance in Islamic law. Enumerate the major
customs of Arabs adopted by Islam.
1.
INTRODUCTION
Islamic
legal system has its origin in Arabia and has been developed by Arab jurists.
The ground work of the Muhammadan legal system, like that of other legal
systems, is to be found in the customs and usages of the people among whom it
grew and developed. The Muhammadan code includes many rules of Pre-Islamic
customary law which have been embodied in it by express or implied recognition.
2.
MEANING OF CUSTOM
According
to Ibn Najeeem:
“Those
recurring practices which are acceptable to people of sound mind.”
3.
CUSTOM AS SOURCE OF LAW
In
Islamic law, custom is regarded as a secondary source and Hanafi writers
include it as a source of law, under the principle of Istihsan.
4.
FORCE OF CUSTOM
Custom
generally are of spoken of as having the force of Ijma, and their validity is
Based on the same texts as the validity of the later.
(I)
Preferred over analogical deduction
Though
custom does not command any spiritual authority like lima of the earned, But a transaction
sanctioned by custom is legally operative, even if it be in violation of a rule
of law derived from analogy. However is must not opposed to Healy Quran or
Sunnah.
5. SIGNIFICANCE
OF PER-ISLAMIC CUSTOMS
Those
customs and usages of the people of Arabic, which were not expressly repealed
during the life time of the prophet are held to have been sanctioned by the
lawgiver, by his silence and retained in the Islamic law.
6. MODES
OF RECOGNITION OF PER-ISLAMIC CUSTOMS IN ISLAM
There
are two modes for the recognition of Pre-Islamic custom in Islam.
(I)
Express
Some
of Pre-Islamic customs were expressly recognized by Islam.
For
example:
Islam
expressly recognize one of the different modes of marriage prevalent among Arab
people in which a man asks another person for the hand of his daughter and then
marries her by fixing a dower.
(II)
Implied
Implied
recognition of customs means those pre-Islamic customs which were not expressly
abrogated By Islam. They were deemed sanctioned by the silence of Holy Prophet
(Peace be Upon Him)
7. REASON
FOR RECOGNITION OF PRE-ISLAMIC CUSTOMS IN ISLAMIC STRUCTURE.
Following
are the reasons of the basis of which the customs are recognized and included
in Islamic law.
(I)
Based on Shariat-I-Ibrahimi
Arab
custom which are incorporated in the Islamic law are those which related to
Shariat-i-Ibrahimi.
(II)
Claim of Islam
Islam
never claimed to be the original religion some customs were related to the
other religions which were given ta the whole chain of the Prophets.
Holy
Prophet (Peace be Upon Him) said, “He has revealed the book to you confirming
the preceded scriptures, for he has already revealed Gospel and Torch, for the
guidance of human being.”
(III)
Reformatory spirit in Islam
Because
of its reformatory sprit, slam modified certain laws which needed to be
retained those laws or customs which were just.
8. EXAMPLES
OF SOME PRE-ISLAMIC CUSTOMS WHICH ARE ADOPTED BY ISLAM
(I)
Customs of punishment
(i)
Punishment by retaliation commutable to a payment of blood money or compensation
for the injury. Punishment of Qisas and Diyat is imposed by Islam,
(ii)
Imputation of right hand of thief.
This
custom was adopted by Islam.
(iii)
Adulterer to be stoned to death if poor, otherwise blackening his faced and
flogging him. If the person who commits Zina is Mohsin, he is to be stoned to
death.
(II)
Customs regarding marriage
(i)
Man asked another for the hand of latter's ward or daughter and then marries
her by giving her a dower.
Islam
recognized this custom
(ii)
Husband asked his wife to have Cohabitation with a famous man to secure a noble
seed.
This
custom was abrogated by Islam.
(iii)
Number of men less than 10 used to have intercourse with a woman.
This
custom was abrogated by Islam.
(iv)
Prostitution was common.
This
custom was abrogated by Islam.
(III)
Customs of dower
In the
regular form of marriage the fixing of dower for the benefit of the wife was in
vogue among the Pre-Islamic Arab. [t formed a part of the marriage contract.
Islam
recognized this custom Quran says, “And give women their dower freely’.
(IV)
Polygamy
There
was no restriction ta the number of wives in Arab.
Islam
does not allow more than 4 wives for a Muslim at a time.
(V )
Divorce
In
Pre-Islamic Arab, there were four modes of divorce which may be pronounced at any
time.
(i)
Talaq
(ii)
Ila
(ii) Zihar
(iv)
Khula
Islam
disapproved Pre-Islamic custom and allowed three distinct period under which
spouses can patch up and after lapse of third period, talaq is effected.
(VI )
Custom of succession and inheritance
In
Pre-Islamic Arab, woman and minors have no right of succession and inheritance.
Islam
abolishes this custom and give woman and minors right of succession and
inheritance.
9.
CONCLUSION
To
conclude, I can say, that the Islam is a religion of nature and it would not Be
correct to suppose that Islam Professed to repeal the entire customary law of
Arabia and to replace it with a code of altogether new laws. Islam adopts
certain customs of Pre-Islamic era and certain customs were also abolished by Islam
and to discover the rules of Islamic law and to interpret their meaning, the
knowledge of customs prevalent at the time of revelation is essential.
Q20.
Darul-Islam and Darul-Harb. What are the consequences of such a division? Discuss
(1995, 1999}
Q.
Write note on Darul Islam and Harb.
1.
INTRODUCTION
Under
the Islamic international law, the world is divided into two parts viz
Darul-Islam and Darul-Harb. The division made by Muslims jurists is of great
importance because the relations of the Muslims towards the Non-Muslims are
mainly determined on the basis whether are country or state of the latter is to
be regarded as Darul-Islam or Darul-Harb.
2. MEANING
AND DEFINITION OF DARUL-ISLAM AND DARUL-HARB
(I)
Meaning
Darul-Islam
means territory of safety. Darul-Harb means territory of war.
(II)
Definition
(i)
Darul-Islam
“A
territory governed by Muslim ruler according to the laws of Islamic religion is
Darul-Islam.
(ii)
Darul-Harb
A
territory under a non-Muslim Government in which a Muhammadan cannot live with
personal security and freedom to perform his religious duties is Darui-Harb.
3.
OBJECT OF DIVISION
The
object of the division made by Muslim jurists is that the Islam is a universal
religion and not specified for particular territory. as Quran says:
"To
Allah belongs the sovereignty of the heaven and the earth.”
So it
should be endeavored by the Muslims that the Islamic laws should be enforced in
every territory.
4. FEATURES
OF DARUL-ISLAM
Following
are the features of Darul-Islam,
(i) It
is that territory of Darul-Islam.
(ii)
Islamic laws enforced there.
(ii)
Muslims are free to exercise their religious duties.
(iv)
Friday and Eid prayers are regularly religious duties.
5. FEATURES
OF DARUL-HARB.
Following
are the features of Darul-Harb.
(i) It
& ruled By nan-Muslim ruler.
(ii)
Islamic law not enforced there.
(iii)
Muslim community does not live with freedom.
(iv)
Friday and Eid prayers are not held.
6. CONVERSION
OF DARUL-ISLAM INTO DARUL-HARB.
A
Darul-Islam, if conquered By the non-Muslims or the dhimmees rising against the
Muslims or the dhimmees rising against the Muslim Government, may turn into Darul
Harb if following conditions are Fulfilled.
(i) The laws and regulations of the
non-Muslims enforced there.
(ii)
It should be surrounded by other countries answering the description of
Darul-Harb without any country of the description of Darul-Islam being
contiguous to it.
(iii)
No Muslim or Dhimmi can live there in the same security as under the previous Muslim
Govt.
(I) Duty
of Muslims
If a
Darul-Islam is turned into Darul-Harb, then it is a duty of the Muslim
prisoners to oppose and fight with them in every possible way.
7. CONVERSION
OF DARUL-HARB INTO DARUL-ISLAM
A Darul
Harb may become Darul-Islam if the ordinances of Islam may validly be
promulgated there.
8. TEST
TO DETERMINE DARUL HARB OR DARUL-ISLAM.
One of
the test, as to whether a country should be treated as a Darul-harb or
Darul-Islam is whether congregational prayers during Fridays and Eids are held
in the country or not, and these prayers can be held where the Governor or the
Qadi has power to enforce Islamic laws specially laws relating hadd and retaliation.
9. DISTINGUISH
BETWEEN DARUL ISLAM AND DARUL HARB
(I) As
to fundamental rights
(i) In
Darul Islam Muslims have fully fundamental rights.
(ii)
In Darul Harb Muslims have not fundamental rights.
(II)
As to Islamic laws
(i) In
Darul Islam Islamic laws are enforced.
(ii) In
Darul Harb there is no enforcement of Islamic laws.
(III)
As to rule
(i)
Darul Islam is ruled by Muslim ruler.
(ii)
Darul Harb is ruled By non-Muslim.
(IV) As
to performance of religious duties
(i) In
Dural Islam Muslims are their religious duties as well as performance of Eid
and Friday prayers.
(ii)
In Darul Harb Muslims cannot perform religious duties and not offer their and
Friday prayers.
10.
CONCLUSION
Ta
conclude, I can say, that the division of world into two parts is important for
various reasons. The Darul-Islam in theory was in a state of war with the
Darul-harb because the ultimate object of Islam was the whole world and a
darul-Islam can declare a war against a darul-harb for the protection of the religion.
Q21.
Define and discuss all the seven crime of Hudood in detail.
1.
INTRODUCTION
There
are a number of rights that may be affected by a criminal act, such a rights of
Allah, rights of Individuals, and rights of state, Muslim jurists classified
crimes as applied throughout Islamic history appears to present three
categories Hadd, Tazir and siyasah.
2.
MEANING OF CRIME
In
Arabic, it is termed as Maasiat
“It
may be defined as an infringement of public right.“
3.
ELEMENTS OF CRIME
Following
are the main elements of crime.
(i)
There must be 3 text to forbid and punish a crime,
(ii)
The criminal act is either By commission or omission.
(iii)
The criminal must be major for his liability.
4. CLASSIFICATION
OF CRIME IN ISLAMIC LAW
In Islamic
law, crimes have Been classified on the Basis of violation of following rights,
(I)
Violation of right of Allah
If the
right of Allah is violated, the crime comes into the category of Hudud.
(II)
Violation of right of individual
When
the right of the individual is violated, the crime comes into the category of Tazir.
(III)
Violation of right of state
When
the right of the state is violated the crime comes into the category of siyasah
and the procedure followed is that of Siyasah.
5. CRIME
OF HADD
(I)
Meaning
Hadd
means a punishment which is fixed and enjoined as the right of Allah.
(II)
List of Hadd offences
Some
jurists list seven hadd offences.
(i)
Zina (Unlawful sexual intercourse)
Hanafis
define the offence as “Intercourse without milk or suhbat milk” Milk arises
from a valid marriage or in the case of males, ownership of a female slave. The
shubat milk is a mistake of fact of ownership and arises from an irregular
marriage, marriage during iddat etc.
(a)
Proof of Zina
The
offence is proved through the testimony of four eligible witnesses who give
evidence of the actual act of penetration. Or
“The
accused must confess four times”.
(b)
Punishment of Zina
In
case of Muhsan.
In
case of Muhsan (Married or once married), the punishment for Zina is rajm or
death by stoning.
In
case of non-Muhsan;
In
case of non-Muhsan, the punishment for Zina is 100 stripes,
(ii)
Qadhf (False accusation of unlawful sexual intercourse)
Anyone
who is competent and adult whether male or female, Muslim or not, slave or free
is liable for Qadhf, if he falsely charges a chaste person with unlawful sexual
intercourse (Zina) or charge one of being illegitimate. Thus the offence can be
committed by making such a case the against a dead person and such a case the
aggrieved person would be the children.
(a)
Proof of Qadhf
The
offence is proved by confession or by testimony of two adult male free Muslims.
(b)
Punishment of Qadhf
The punishment
of Qadhf is 80 stripes for a free person and forty (40) for a slave.
(iii)
Shrub (Drinking of wine etc. )
It is
a consumption of intoxicating liquor, whatever the quantity consumed, which is
described as shrub, and made punishable.
(a)
Proof of Shurb
The
crime if proved by the testimony of two adult male Muslims who fulfil the
requirements of tazkiah -al- shahood.
(iv)
Sariqah of Theft
The
offence of Sariqah or theft is committed if the offender takes from a place of
safe custody (Hirz) by stealth property of the value of one diner according to
the Hanafis and 44 dinar according to the majority in which he has either the
right of ownership or resemblance of ownership.
(v)
Hirabah (Robbery through the force of Arms)
It is
also referred as a major theft It is a serious offence having different
penalties varying with the nature of the case. It may be divided into robbery
of travelers who are far from aid, and armed entrance Into a private home with
an intent to rob it Punishments range from amputation of the right hand and left
foot for the first offence and amputation of the left hand and right foot for
the second offence.
(vi) Apostasy
(Riddah)
Apostasy
occurs when the offender rejects Islam By commission or omission with the
awareness of penalty which is death for men and physical punishment for women.
(Vii)
Rebellion (Baghi)
Rebellion
or Baghi of the state is also considered by some jurists to come into the Hadd.
6. CRIME
OF TAZIR
(I)
Meaning
“Punishments
that are the discretion of the judge when the offence is related to a private
injury are called Tazir.”
(II)
Classes of offences
Offences
under Tazir may broadly be divided into following classes.
(ii)
Crime which belong to the genus of the offences punishable under hadd and that
fall short of the act that fall short of the act that entails hadd i. e.
preliminaries to unlawful intercourse, (Zina).
(ii)
Crimes that are normally punishable under Hadd, but in which by reason of
mistake of law or fact or other reason the penalty is replaced by Tazir.
(iii)
Crimes which are not punished by Hadd but fall under the provisions of the law.
E. g. usuay, slander etc.
7. CRIMES
OF SIYASAH
In
Siyasah, the offences are mainly against the state and public order. The ruler
or the state may determine the offences and laid down the provisions related to
siyasah but such provisions shall conform to the principles of shriah. In
Siyasah offences or crimes, the ruler or the state may determine the standard
of evidence.
8.
CONCLUSION
To
conclude, I can Say, that at present time crimes are classified into hadd and
Tazir, as today the distinction between Tazir and syasah is not maintained and
Muslim jurists merge these two areas with the Standard of proof and modes of
procedure Being determined by the ruler.
Q22.
Discuss the ingredients of a contract under the Islamic civil law.
Q.
Define contract. What are the essentials of valid contract in Islamic Law?
1.
INTRODUCTION
Contract
law ensures the parties to private agreements that any promises they make will
be enforceable through the machinery of the state. Islam attaches great
importance to keeping of promise. In case promises are not kept faithfully it
will result in great confusion and mistrust.
2.
MEANING OF CONTRACT
The
corresponding Arabic word for contract is “Adq” which has its both legal and
literal meaning.
(II)
Literal meaning:
Literally
it means conjunction, tie, knot”
(II)
Legal meaning:
(i)
The union of the declaration of one of the contracting parties with that of the
other in a legal manner, the result of which is reflected in their subject
matter.”
(ii)
“A contract or adq is any statement or word that has the effect of legally
Binding a person toc fulfill an obligation or to perform a duty.”
3. IMPORTANCE
OF CONTRACT ACCORDING TO QURAN AND SUNNAH
(I)
The Holy Quran Says:
“And
keep the covenant Lo! Of the covenant it will be asked”. (Al-Isra: 34)
“O Ye
who believe fulfill your agreements” (Al-Maidah: 1)
“Such
as keep the pact of Allah, and break not the covenant” (Ar-Rad: 20}
The
Sunnah of Holy Prophet (Peace be Upon Him) shows the importance of keeping the
agreements.
He
says:
“He
who has no respect for keeping promises, does not possess deen."
4.
FORMATION OF CONTRACT
The
formation of contract does not require any formality under Islamic law. In this
regard offer and acceptance are essentials.
5. INGREDIENTS
OR ESSENTIALS OF CONTRACT IN MUHAMMADAN LAW
Following
are the ingredients or essentials of contract.
(I)
Plurality of parties
A
contract requires that there should be two parties to it, at least. Any one
person cannot from a valid contract.
(II) Aijab
and Qabul
jab
and Qabul or proposal and acceptance are the constituents of a contract one
party should make a proposal and the other should accept it.
Example:
‘A’
Offers to sell his car to 'B. ‘B accepts his offer. It is a contract.
(i)
Conditions for Ijab and Qabul
Following
conditions have been laid down by the jurists for the valid offer and
acceptance.
(a)
Conformity offer and acceptance
It is
necessary that the acceptance must conform with the offer and any variation in
the acceptance made it a counter offer.
Example:
‘A’
Says to ‘B’ I have sold this car to you for 10,000 ‘“B replies I have accepted
it for 3,000." This is not a valid acceptance and hence there is no
contract.
(b)
Must be in same session
The
offer and acceptance must be made at the same meeting, either in fact or what
the law considers as such.
Example:
‘A’
says to 'B’ I want to sell my horse to you. 'B’ says nothing and leaves the place.
The offer comes to an end and 'B cannot accept it later.
(c)
Acceptance Before the termination of offer
Acceptance
must be made before the termination of offer, otherwise the contract cannot be
made.
(III)
Mahall Al Aqd (subject-matter of contract)
The
mahall-al-aqd is the thing for which an agreement has been made, and in which
the effects of the contract are visible. It is almost Same as the term
consideration in English law.
(i)
Conditions of Mahall al Aqd
The subject
matter must have legal value.
(a) It
must be in existence at the time of the contract.
(b) It
should be potentially capable of delivery at the time of the contract.
(c) It
must be known to the parties.
(IV)
Capacity to enter into contract
The
parties must have the capacity to enter into the contract. They must be sane,
major etc.
(V)
Legal relation
The
contract must be to establish legal relations arising from the consent of the
minds of two persons to deal with each other in respect of certain rights of
theirs.
(VI)
Free consent
The
consent of the parties must be free and genuine. [t must not be obtained By
coercion, undue Influence, fraud, mistake or misrepresentation.
(VI)
Fitness of Mahall
It is
subject matter is not fit for the purpose, the contract relating there will be
void altogether.
(VII
Legal contract
A
contract must be lawful or legal a contract is legal if it is not contrary to
Islamic law e. g. contracts in violation of the prohibition of riba or contrary
to public policy @. g. contracts in restraint of trade etc.
6. CONCLUSION
To
conclude, I can say, that the law of contract In Islamic law is more or less
similar to that of western law. The dominant idea of a contract in Muhammadan
law is that, it establishes a tie of legal relations and it is the most
important and frequent mode of acquisition of ownership.
Q23.
Discuss the concept of state in Islam.
1.
Introduction
The
conception of a state in Islam is that of a commonwealth of all the Muslims
living as one community under the guidance and direction of 4 supreme executive
head. Islamic state is 4 state in which every Muslim has a right to serve his
life according to the principles of Quran and Sunnah.
2. OBJECT
OF AN ISLAMIC STATE
The
object of an Islamic state is to
establish the system of prayers and Zakat and to patronize whatever Ged and his
Prophet (Peace be Upon Him) regarded as virtuous and to forbid whatever they
regard as evil.
“If we
great them authority in this land will establish regular prayers and pay Zakat
and enjoin what is virtuous and forbid what is evil."( Surah Al Haj: 4)
3. NATURE
OF ISLAMIC POLITICAL SYSTEM
Islam
is a complete code of life. It does not believe in the separation of religion
farm political science. Islam takes an integrative view of human life which it
declares to be a preparation for the life hereafter the life in this world is
meant for preparing for the eternal life of the next world, which is ever lasting.
The concept of Islamic state should be understood on this very principle of
Islam.
(I)
Sovereignty of Allah
Sovereignty
of Allah is the fundamental principle of the Islamic concept of state. In
Islam, sovereignty does and can belong to Allah and no one can claim to be sovereign..
He is omnipotent, omniscient, omnicompetent and omnipresent. The principle of
Allah's sovereignty does not recognize the possibility of dictatorship absolute
monarchy or autocracy in an Islamic state.
“To
Allah belongs the sovereignty of the heavens and the earth.” (42: 48)
"It
is He who gives life and death He has power aver all things.” (42: 48)
“He is
the first and fast, the Evident and the Immanent”
(II)
Khilafat
The
Holy Quran proclaims the viceregency of man. The institution of Khilafat came into
being after the demise of the Holy Prophet {Peace be Upon Him). Under the
sovereignty of Allah and the authority of his law, the caliph is the temporal
ruler of the state and the defender of the faith. Quran says:
"And
when the lord said unto the angels: Lo! I am about to place a khalifi
(vicegerent) In the earth.” (2: 30}
"Lo!
The earth is Allah's. He gives it for an inheritance to whom He will and la!
The sequel is for those who keep their duty, (unto Him)." (7: 128)
(III)
Government by consultation
Mutual
consultation among the Muslims is a commandment of the Holy Quran and an
injunction of the Sunnah of the Holy Prophet (Peace be Upon Him).
Quran
says:
“The affairs
of state are run by their mutual consultation.” {Surah-Ash-Shura)
The
institution of Maijis-e-Sheora was developed by the Khulfa-e-Rashideen after
wards.
(IV)
Obedience of the ruler
The
Quranic injunction calls upon the Muslims to obey the supreme commander among
them.
(V)
Participation of public in state affairs
Muslims
shall Be consulted in the affairs of state through their leaders in whom they
profess confidence.
(VI)
Equality of all mankind
In
Islam, is no distinction or discrimination of man and man on the ground of
race, colour, language, profession or country. All persons are equal in Islamic
state.
(VII) Aml Al Maruf wall Nahi An-Al-Munkar (order
good and punish wrong}
Islam
enjoins the state to maintain morality. It asks the Muslims and the ruler to
order good and punish Wrong.
(VIII)
Collection of Zakat
Collection
of Zakat is one of the essential functions of the Islamic state and a primary
duty or the Muslims.
4. CONCEPT
OF STATE AND KHIAFAT
Most
of the jurists and philosophers upheld the idea of a single state known as the
Khalifah under the leadership of Khalifah. The Islamic state existed under a
Single Khalifah for a long time. Later in some areas sultans or amirs started
assuming power in different regions within the caliphate, and more than one
Muslim state had come into existence now question is what is the status of
those states in relation with Khilafat.
(I)
View of Al-Mawardi
Most
Mawardi defines caliphate are the institution replacing property in the defence
of the faith and the administration of the world. It is demanded by the
Sharnah, not by reason.”
(II)
View of Al-Ghazali
The
view of Al-Ghazali is, while the practical affairs of the state are to be left
to the sultan or Amir Khalifah should devote himself to religious and spiritual
functions.
(III)
View of Ibn-Taymiyah
He
declared that period of the Prophet could not be described as anything but
nubuwwah. The Prophet's authority arose from his functions as a prophet and not
the head cf the state. Then he proceeded to separate the period of the first
four caliphs from that of the umayyads, calling the former as Khilafat al Nabuwwah
and the latter as Mulk. The Khilafat-al-Nabuwwah being inspired could not be
passed on in succession or even imitated. The only thing that could be passed
on was the principle of the supremacy of the Shariah. By doing this he provides
that legal foundation for a multiplicity of states.
5. CLASSIFICATION
OF STATES BY IBN-KHALDUN
Ibn
Khaldun distinguishes four kinds of states as they had developed I the history
of Islam.
(I)
Khilafat
It was
the ideal Islamic state established by the Holy Prophet (Peace be Upon Him}
under Divine guidance of the Quran and maintained by the four
Khulfa-e-Rashideen.
(II)
Mulk under shariah
When
the influence of the religion declined among the people the ideal state of
khilafal was replaced by Shariah. Although the outward form was Khilafat was
preserved, But its inward from was changed though it Was not so good as the
ideal Islamic state, nevertheless, it was the second Best, because it was still
governed by the divinely promulgated shariah-
(III)
Mulk under Sayasa Aqlia
The
last state was the mulk or absolute monarchy under its rational regime, (styasa
aqlia) and political laws (qawanin Siyasa) under it, shariah was merely a
routine matter of religious injunction rites and rituals. The authority of the
ulema to interpret it had ceased or rather it was confined to the duties of thejudge
or qazi the fatwas of the mufti, who were under the political of the ruler.
(IV)
Siyasa madaniny
It was
hypothetical state and never existed in actual life and history.
6. DUTIES
OF STATE
Following
are the duties of Muslim state:
(i)
Each Muslim community must establish din in accordance with the first purpose
of the law.
(ii) A
state must ensure the safety and welfare of all human beings under its
governance.
(iii)
The state must establish conditions for a sound family system in accordance
with shariah.
(iv)
The state must provide conditions for the growth of healthy minds e. g. By
providing freedom of expression etc.
(v)
The state must ensure the economic well-being of the community as a whole.
7. DISTINGUISH
BETWEEN ISLAMIC STATE & WESTERN CONCEPT OF STATE
(I) As
to sovereignty
(i) In
Islamic state sovereignty Belong to God.
(ii)
In western concept of state sovereignty belong to the people.
(II)
As to making authority
(i) In
Islamic state law making authority is only God.
(ii)
In western concept of state law making authority are people.
(III) As
to religion
(i) In
Islamic concept of state religion has important role and state religion in
Islam.
(ii)
In west the state may not have religion.
(IV)
As to legislation
(i) In
Islamic state law making authority i. e. legislation is Majis-Shura. The Aw
making powers of Majlis-Shura are limited.
(ii)
In western concept of state the legislature is called parliament. It has
unlimited powers of law making.
8. CONCLUSION
To
conclude, I can say, that Islam takes a comprehensive view of life and covers
all its aspects and phases. The basic aim of Islamic state is that man should
devote his entire life ta the causes of Allah, In Islamic state, political and
religion go together which fs different from western concept of state which is secular,
national and legal.
1.
INTRODUCTION
“Under
the Islamic law, it is the duty of the witnesses to come forward and give
testimony. Witnesses is the medium through which facts can be proved. Islamic
law has provided certain qualifications and disqualification for the persons to
appear as witness.
2.
MEANING OF COMPETENCY OF WITNESS
"A
witness is said to be competent if there is nothing in law to prevent him from
being sworn in and examined, if he wishes to give evidence."
3. DOCTRINE
OF TAZKYAT-USH-SHAHOOD
In
Islamic law of evidence the doctrine of Tazkyat-Ush-Shahood is very important.
It means that those witness who appear before a court, the court would make inquiries about
the background and character of such witnesses.
Kinds
of Tazkyat-Ush-Shahood
it has
two kinds:
(i)
Declared Tazkyat-Ush-Shahood.
(ii)
Secret Tazkyat-Ush-Sahacod.
4.
IMPORTANCE OF TESTIMONY
The importance
of giving testimony has been provided by various verses of Holy Quran.
“Dont
conceal testimony, He who conceals it, his heart is sinful” (Al-Baqrah: 282)
“Whenever
Ye speak, speak justly even if a near relative is concerned.” (Al-Inam: 152}
“Never
try to mix up wrong with right and do not conceal the truth intentianally:”
(Al-Barah: 42}
5.
QUALIFICATIONS FOR A COMPETENT WITNESS
A
witness competent to testify must have the following qualification.
(I)
Not prevented from under standing
A witness
should not be prevented from understanding the question put to them. A witness
maybe prevented from understanding due to the tender age, old age or disease,
whether of Body or mind.
(II)
Net convicted by court for perjury
A
witness should not be convicted by court for perjury or giving false evidence
Exception:
A
person convicted may be competent to testify as witness, where the court before
which he appears is satisfied that after conviction, he has repented and
amended his ways.
(III)
Freedom from prejudice and bias
A
witness must not be prejudice or bias, hence the testimony of following
witnesses is in admissible.
(i)
Father in favour of his son and vice versa.
(ii)
Slave in favour of his master.
(ii)
Parties in support of their awn claim.
(iv)
Person who bears a grudge against the opposite party.
(v)
Non-Muslim against a Muslim etc.
(IV)
Reliability of character
The
witness must be of reliable character.
According
to Hanafis:
According
to Hanafis, a witness 6& said to be of reliable character if his religion
and reasons overcome his lust and when and he also avoid major sins.
According
to Maliki's:
According
to Maliki’s and Shaft’s a person is of reliable character if he avoids major
sins and he must also be a trustworthy person.
Tazkia-Al-Shahood:
Tazkiah
is an obligation on Qazi for ascertaining the competency and righteousness of a
witness by himself or through the medium of purgatory when competency of
witness is challenged, that
(i)
The witness should be clean from deeds which attract Hadd punishment
(ii)
The witness should be free from sins
(iii)
The witness should be Adil
(V)
Maturity
A
witness must be a person of mature mind and understanding.
(VI)
Eye-sight
A
witness must possess eye-sight in case of facts capable of being seen.
(VII)
Speech
A
witness must possess the capacity to speak or communicate in cases of Huded.
(VIII)
Memory
A
witness must be of good memory and person of bad memory Is not considered as a
competent witness,
(IX) Muslim
The
jurists agreed that Islam is a condition for the acceptance of testimony and
the testimony of disbeliever is not permitted But the jurists did not agree
regarding its permissibility in bequests made on a journey. Abu Hanifah said
that it is permitted upon the conditions mentioned by Allah, while Malik and shafi
said that it is not permitted.
6.
CONDITION FOR GIVING TESTIMONY
(i)
Existence of complaint and the requisition of the testimony.
(ii)
Testimony is to be given before the court.
(iii)
Witness has the personal knowledge of the facts to be stated except in cases
where hearsay evidence is admissible.
(iv)
The word shahadat must be used in the beginning
(v)
Witness must remember the incident.
(vi)
Witness must Be able to an identify the parties
(vii)
Conformity of the statement with the claim.
(viii)
In Hudud cases (Qadhaf) facts must not occurred in the distant part.
7.
COMPETENCY OF WOMEN AS WITNESS
The
competency of women as a witness is discussed under the following heads.
(I)
Competency in Hudud cases
The
competency of a women in cases, belonging to the category of violation of right
of Allah, viz Hudud, is that she is regarded as incompetent.
(II)
Competency in cases where violation of right of individual is involved.
In
cases where violation of right of individual is involved such as Tazir, the
testimony of women is accepted if the prescribed Nisab is observed, that is the
testimony of one male and two female witnesses.
(III)
Financial transactions
In
matters relating to financial or future obligations, the testimony of two woman
is accepted with one male.
(IV)
Specific matters where testimony of women is needed
Testimony
of woman in matters which are generally known tc women such as whether a
particular child was born to a particular woman, can be proved even by the
testimony of single woman.
(V)
Other matters
I
other matters, a court may accept and act upon the testimony of one woman.
Note:
itis necessary that a woman must possess all other qualifications of a
competent witness.
8. POSITION
IN PAKISTAN
The
competency and number of witnesses are provided article 3 and 17 of Q.S.O, 1984
respectively, Article 3 provides that a witness must not prevented from
understanding and is capable of giving evidence and qualified a witness under
Holy Quran and Sunnah, whereas Article 17 provides that the number of witnesses
required to prove a fact is to be determined in accordance with the injunctions
laid down in the Holy Quran and Sunnah.
9.
CONCLUSION
To
conclude, [can say, that the necessity mostly arises in cases when the fact in
question has originated a right in some one against another and the latter
denies it, but there are certain reasons which induce men to tell falsehoods or
the circumstances. Which prevent them from giving correct and reliable information,
so the Islamic law has provided certain qualifications for a competent witness.
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