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PART III: ISLAMIC INSTITUTION
LESSON 14
ISLAMIC LAW AND JUDICIAL SYSTEM
1.0 Introduction
In the name of Allah, Most Gracious, Most Merciful.
Islamic law contains the rules and Islamic regulations that regulate all aspects of human life, be it
Muslims or non-Muslims. Islamic law also provides solution to all problems in this life as it is an
integrated, complete and comprehensive law that comes from the Creator of the universe that is
Allah SWT. Thus, no one shall have doubt about its source, truthfulness and effectiveness. In this
topic, we will discuss about the concept of Islamic law, legal philosophy in Islam, the judicial
institution and other related matters.
2.0 Learning Outcomes
By the end of lesson, the students should able to:
2.1 Explain the concept and philosophy of Islamic law
2.2 Discuss the sources of Islamic law
2.3 Classify the rules and in Islamic law
2.4 Discuss the concept of Islamic judiciary
2.5 Explain the various school of thought or sects in Islam
3.0 List of Topics
3.1 The Concept, Principles and Philosophy and of Islamic Law
3.2 The Sources of Islamic Law
3.3 The Concept and Classification of Islamic Rulings
3.4 Judicial Institution
3.5 The School of Thoughts or Sects (mazahib)
4.0 Terminologies
4.1 Rulings
Ahkam
4.2 School of Thought or Sect
Mazhab
4.3 Human lineage
Human descendants
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4.4 Maqasid al-Shar’iyyah
Objective of Shari’ah
4.5 Syura
: A system of consultation
4.6 Jurisprudence
: The philosophy or science of law
4.7 Sahabah: Companions of Rasulullah SAW
4.8 Dysfunction of mind: The mind cannot function as normal
4.9 Hadd punishment: Punishment according to Hudud Law.
4.10 Fanaticism:
a) A state of being fanatic to an opinion and rejecting others’ opinion
b) Excessive enthusiasm, unreasoning zeal, or wild and extravagant notions, on any
subject, especially religion; religious frenzy
5.0 Topics
5.1 The Concept, Principles and Philosophy and of Islamic Law
5.1.1
Presentation
Do you still remember the discussion on the basic concepts of Islam that was discussed
before? The discussion in this part is actually closely related with the discussion in
Lesson 1 and 2 that were discussed before. Anyway, all of us by now must be convinced
that Islam came from Allah and therefore, the Islamic laws also came from Allah SWT.
The laws were revealed for human benefits and goodness in this life, be it Muslim and
non-Muslims. The laws have been sent down to safeguard and guarantee the safety,
welfare, and comfort of the human beings. In general, Islamic law is divided into four
types: ibadat, mua’malat, munakahat and jinayat. The laws were revealed to safeguard
the five vital aspects of human life that we term as maqasid al-shar’iyyah; religion, soul,
mind, property and human lineage. As we have discussed this issue before, no need for
us to repeat the same discussion. For more details, you may refer back to the discussion
and maqasid al-shar’iyyah.
The Islamic law emphasizes on human interest in the context of their relationship with
Allah SWT, their fellow human beings and the universe. In general, there are few
important aspects of Islamic law that make it suit the interests of human being in this
world and the world after. Those aspects are as follow:
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a) Islamic law calls human to believe in the Oneness of Allah SWT
The law comes from Allah SWT. By believing in the Oneness of Allah SWT, humans
are responsible to implement the law. Human beings do not have authority to amend
or change the law. They must follow and obey the law. By obeying the law, it can stir
the sense and feeling of the Oneness of Allah SWT in all aspects of their life. If
humans are convinced that the law comes from Allah SWT, they will not give excuses
for not implementing the law in their life. The ignorance of the law in life will cause the
failure of the call towards believing in the Oneness of Allah SWT.
b) Emphasis on Syura (Consultation)
Islamic law also constitutes the importance of syura. It is a system of Allah SWT that
guarantees to guarantee harmony and prosperity of t he people. Allah SWT had
ordered Muslims to practice Syura (Al-Syura:38 * Ali Imran: 159).
in all aspect of human life.
c) Justice
Justice is the most important principle in Islamic law and becomes one of the main
vision of the sending of Rasulullah SAW. It must be implemented fairly, equally,
transparently and without any bias as stated in surah al-Syura, verse 15).
d) Freedom
Freedom is something which is in line with the human nature (fitrah). Islamic law
recognizes and acknowledges the human freedom but within the boundary of Islamic
teachings. It is stated in in Surah al-Mulk, verse 15. The freedom includes the
freedom of religion, individual, freedom to express opinion, seeking knowledge,
owning property and wealth and many others. The acknowledgement of the freedom
shows that Islam is a perfect and comprehensive religion sent to human beings.
However, the freedom in Islam is moderate in nature, not too rigid like communist
and at the same time not to liberal or absolute like capitalist. In fact, there is no notion
of ‘absolute freedom’ in Islam because it is only belonged to Allah SWT.
e) Equality
Islamic law gives high concern on equality among individual. There is no difference
among individual in the eye of Allah SWT and His law except piety (taqwa) as being
recorded in Surah al-Hujurat, verse 13. Based on that, Islamic law looks at individuals
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equally without considering their family lineage, tribe, skin colour, title and etc. If
someone has found guilty in the eye of the law, be it family members of a judge who
judges the case, or relative, or fried and etc, hence the person is guilty.
5.1.2
Activities
a) Write down all the Quranic verses which are mentioned in the discussion above
together with the meanings and try to understand the meanings.
b) Give example (hadith, story or others) of the practice of the following in the history of
Islam since the period of Rasulullah SAW:
(i)
Syura
(ii)
Freedom
(iii)
Justice
5.2. The Sources of Islamic Law
5.2.1
Presentation
Can you guess the sources of Islamic law? Is it the same with the sources of Islam?
Muslim scholars have divided the sources into two main categories i.e primary and
secondary sources. Primary sources refers to Al-Quran and al-Sunnah of Rasulullah
SAW while the secondary sources refer to several methods of deducting ahkam that give
space of ijtihad of the mind based on the divine revelation. It includes Ijma’, Qiyas,
Istihsan, al-Masalih al-Mursalah, Sadd al-zarai’, al-‘Urf/al’Adah and al-Istishabi.
a) Al-Quran
Every Muslim knows what al-Quran is. It is the final revelation that was sent to
Rasulullah SAW within 23-year period. It is the first source of Islamic law. It contains
144 surah and 6236 verses. 330 of its verses are about jurisprudence (fiqh) and from
that 330 verses, 140 verses are on ibadat, 70 verses on family law, 30 verses on
jinayat, and 20 verses on justice (Islamic Studies Manual, OUM, 2009).
Muslim scholars have classified the legal injunctions in al-Quran as follow (Ahmad
Fauzan Yahaya, 2007):
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(i) Concise injunctions (‫)األحكام المجمل‬
These refer to definite commandments that are stated in the Qur’an. It is very
clear and precise in which no space is given for the practice of ijtihad by the
scholars or jurists. Also, Al-Quran does not provide the detailed rules regarding
these commandments. For example:
The injunctions concerning prayers ( ‫ )صالة‬and zakah. The Qur’an
says:
َّ ‫"وأَقِيمُوا الصَّالةَ َوآتُوا‬
)111:‫"(البقرة‬... َ‫الزكَاة‬
َ
“And perform As-Salat (Iqamat-as-Salat), and give Zakat,…”
(Al-Baqarah: 110)
The Quran did not elaborate on the detail manners of prayers but
the details can be found in the Sunnah of the Prophet SAW when
the Prophet SAW said:
‫صلوا كما رأيتموني أصلي‬
“Pray as you observe me praying”
There are also many al-ahadith of the Prophet SAW elaborating in
details the payment of zakah.
The injunctions related to Qital (the law of equality in punishment)
The injunctions were further detailed out by the Prophet SAW in his
al-hadith. One of the concise injunctions on this matter is:
)171:‫ب لَ َعلَّ ُك ْم تَتَّقُونَ (البقرة‬
ِ ‫َولَ ُك ْم فِي ْال ِقص‬
ِ ‫َاص َحيَاةٌ يَا أُو ِلي ْاْل َ ْلبَا‬
“And there is (a saving of) life for you in Al- Qital (the Law of
Equality in punishment), O men of understanding, that you may
become Al-Muttaqin “ (Al-Baqarah: 179)
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The injunctions related to the commercial transaction and the
prohibition of usury (riba’) as mentioned in the following verse was
later elaborated by the Prophet SAW in his sayings and practice:
)572:‫" (البقرة‬... ‫وأ َ َح َّل ا ََّّللُ ْالبَ ْي َع َوحَرَّ َم‬..."
َ
“Allah has permitted trading and forbidden Riba (usury)”.
(Al-Baqarah: 275)
(ii) Concise and Detailed Injunctions )‫(األحكام المجمل والمفصل‬
These refer to legal injunctions that are stated in brief in certain surahs in the
Qur’an, and elaborated in others. There is also no space for ijtihad. These
injunctions were left to be elaborated by the Sunnah of the Prophet SAW. For
example, the injunctions on war, peace, jihad, prisoners of war, booty and
relations with non-Muslims. These details are not merely left to the Sunnah alone
but ijtihad (personal reasoning) can also be used as a method to find suitable
solutions to the problems.
(iii) Detailed Injunctions )‫(األحكام المفصل‬
Certain laws are explained in detail, for example the laws of inheritance.
These injunctions are contained in the verses of the Quran, which give complete
details of the commandments. Therefore, there is no room for ijtihad (personal
reasoning). Among example of these injunctions are all the hadd punishments,
qital, unintentional homicide, murder, theft, robbery, adultery, defamation and
distribution of inheritance etc. Some verses with detailed injunctions are:
Verse related to the penalty for unintentional killing:
‫َلَّ َمةٌ ِإ َل أَ ْْ ِل ِِ ِإ ََّّل‬
ُ ‫َو َما كَانَ ِلم ُْؤ ِم ٍن أ َ ْن َي ْقت ُ َل م ُْؤ ِمنا ً ِإ ََّّل َخ َطأ ً َو َم ْن قَت َ َل م ُْؤ ِمنا ً َخ َطأ ً فَت َحْ ِر‬
َ ‫ير َر َق َب ٍة م ُْؤ ِمنَ ٍة َو ِِد َيةٌ ُم‬
َّ َ‫أ َ ْن ي‬
‫ير َر َقبَ ٍة م ُْؤ ِمنَ ٍة َوإِ ْن كَانَ ِم ْن قَوْ ٍم بَ ْينَ ُك ْم َوبَ ْينَ ُه ْم‬
َ ‫صدَّقُوا َف ِإ ْن كَانَ ِم ْن قَوْ ٍم‬
ُ ‫عدُ ٍو لَ ُك ْم َو ُْ َو م ُْؤ ِم ٌن فَت َحْ ِر‬
َ‫اَّللِ َوكَان‬
َّ َ‫شه َْري ِْن ُمتَتَابِعَي ِْن تَوْ بَةً ِمن‬
ٌ ‫ِميثَا‬
َ ‫ير َر َقبَ ٍة م ُْؤ ِمنَ ٍة فَ َم ْن لَ ْم يَ ِج ْد فَ ِصيَا ُم‬
ُ ‫َلَّ َمةٌ إِلَ أ َ ْْ ِل ِِ َوت َحْ ِر‬
َ ‫ق فَ ِديَةٌ ُم‬
َّ
)15:‫ع ِليما ً َح ِكيما ً (النَاء‬
َ ُ‫اَّلل‬
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“It is not for a believer to kill a believer except (that it be) by mistake, and
whosoever kills a believer by mistake, (it is ordained that) he must set free
a believing slave and a compensation (blood money, i.e Diya) be given to
the deceased's family, unless they remit it. If the deceased belonged to a
people at war with you and he was a believer; the freeing of a believing
slave (is prescribed), and if he belonged to a people with whom you have a
treaty of mutual alliance, compensation (blood money - Diya) must be
paid to his family, and a believing slave must be freed. And whoso finds
this (the penance of freeing a slave) beyond his means; he must fast for
two consecutive months in order to seek repentance from Allah. And Allah
is Ever All Knowing, All Wise”. (Al-Nisa’: 92)
Verses related to the distribution of inheritance:
َّ ‫ُوصي ُك ُم‬
‫ق اثْنَتَي ِْن َفلَه َُّن ثُلُثَا َما ت َ َركَ َو ِإ ْن كَانَ ْت‬
َ ْ‫َا ًء فَو‬
َ ‫اَّللُ ِفي أَوْ َّل ِِد ُك ْم ِللذَّك َِر ِمثْ ُل ح َِظ ْاْل ُ ْنث َ َيي ِْن َف ِإ ْن ُك َّن ِن‬
ِ ‫ي‬
َُِ‫س ِممَّا ت َ َركَ إِ ْن كَانَ لَُِ َولَدٌ فَ ِإ ْن لَ ْم يَ ُك ْن لَُِ َولَدٌ َو َو ِرث‬
ْ ‫الن‬
ُّ ‫اح ٍد ِم ْن ُه َما ال‬
ُ ُ‫َد‬
ِ ‫صفُ َو ِْلَبَ َو ْي ِِ ِل ُك ِل َو‬
ِ ‫احدَةً َفلَهَا‬
ِ ‫َو‬
ُ ُ‫أَبَ َواهُ فَ ِِلُ ِم ِِ الثُّل‬
‫ُوصي بِهَا أَوْ ِدَي ٍْن آ َبا ُؤ ُك ْم َوأَ ْبنَا ُؤ ُك ْم َّل‬
ُّ ‫ث فَ ِإ ْن كَانَ لَُِ إِ ْخ َوةٌ فَ ِِل ُ ِم ِِ ال‬
ُ ُ‫َد‬
ِ ‫س ِم ْن بَ ْع ِد َو ِصيَّ ٍة ي‬
َّ ‫اَّللِ إِ َّن‬
َّ َ‫ت َ ْد ُرونَ أَيُّ ُه ْم أ َ ْق َربُ لَ ُك ْم نَ ْفعا ً َف ِريضَةً ِمن‬
)11:‫ع ِليما ً َح ِكيماً) (النَاء‬
َ َ‫اَّللَ كَان‬
“Allah commands you as regards your children's (inheritance); to the
male, a portion equal to that of two females; if (there are) only daughters,
two or more, their share is two thirds of the inheritance; if only one, her
share is half. For parents, a sixth share of inheritance to each if the
deceased left children; if no children, and the parents are the (only) heirs,
the mother has a third; if the deceased left brothers or (sisters), the mother
has a sixth. (The distribution in all cases is) after the payment of legacies
he may have bequeathed or debts. You know not which of them, whether
your parents or your children, are nearest to you in benefit, (these fixed
shares) are ordained by Allah. And Allah is Ever All Knower, All Wise”.
(Al-Nisa’: 11)
(iv) Fundamental Principles of Guidance (‫)القواعد والمبادئ العامة في القرآن‬
Principles like the principle of freedom, justice, consultation, public interest,
equality, etc. It gives space for the practice of ijtihad to deduct a ruling (hukm).
The
Qur’an mentioned certain fundamental principles to guide Muslims and the
Muslim jurists in resolving any issues or problems faced the Muslim
These general principles should be the basis for the jurists in their
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ummah.
ijtihad as
these principles can be applied in various situations and can act as a tool in their
ijtihad. Among these principles are:
Principle of justice.
This is mentioned in the following verses:
َّ ‫" ِإ َّن‬
‫اس أَ ْن تَحْ ُكمُوا‬
ِ ‫اَّللَ يَأْم ُُر ُك ْم أ َ ْن ت ُ َؤِدُّوا ْاْلَ َمانَا‬
ِ َّ‫ت ِإ َل أ َ ْْ ِلهَا َو ِإذَا َح َك ْمت ُ ْم بَيْنَ الن‬
ُ ‫اَّللَ ِن ِعمَّا َي ِع‬
َّ ‫ظ ُك ْم ِب ِِ ِإ َّن‬
َّ ‫ِب ْال َع ْد ِل ِإ َّن‬
)25:‫س ِميعا ً َب ِصيراً" (النَاء‬
َ َ‫اَّللَ كَان‬
“Verily! Allah commands that you should render back the trusts to those, to
whom they are due; and that when you judge between men, you judge with
justice. Verily, how excellent is the teaching, which He (Allah) gives you! Truly,
Allah is Ever All Hearer, All Seer”. (Al-Nisa: 58)
َّ ‫" ِإ َّن‬
)11:‫"(النحل‬... ‫ان‬
َ ْ‫اْلح‬
ِ ْ ‫اَّللَ َيأْم ُُر ِب ْال َع ْد ِل َو‬
ِ َ
“Verily, Allah enjoins al-‘adl (i.e. justice) and al-ihsan [i.e. to be patient
in performing your duties to Allah, totally for Allah's sake and in
accordance with the Sunnah (legal ways) of the Prophet SAW in a perfect
manner]”. (Al-NaÍl: 90)
َّ ‫علَ ْاْل ُ ْخ َرى فَ َقاتِلُوا الَّتِي ت َ ْب ِغي َحت‬
ْ َ ‫ان ِمنَ ْالم ُْؤ ِمنِينَ ْاقتَتَلُوا فَأ‬
َ ‫ص ِلحُوا بَ ْينَ ُه َما َف ِإ ْن بَغَ ْت إِحْ دَا ُْ َما‬
ِ َ‫َوإِ ْن َطائِفَت‬
ُ َ‫ص ِلحُوا بَ ْينَ ُه َما ِب ْالعَ ْد ِل َوأ َ ْق‬
َّ ‫ِطوا إِ َّن‬
ْ َ ‫اَّللِ فَ ِإ ْن فَا َء ْت َفأ‬
َّ ‫مْر‬
)1:‫َ ِطين) (الحجرات‬
ِ ‫اَّللَ ي ُِحبُّ ْال ُم ْق‬
ِ َ ‫ت َ ِفي َء إِلَ أ‬
“And if two parties or groups among the believers fall to fighting, then make
peace between them both, but if one of them rebels against the other, then fight
you (all) against the one that which rebels till it complies with the Command of
Allah; then if it complies, then make reconciliation between them justly, and be
equitable. Verily! Allah loves those who are equitable”. (Al-Hujurat: 9)
Principles of individual accountability.
This is mentioned in the verse:
َ ‫َ ِِ َو َم ْن‬
‫علَ ْيهَا َوَّل ت َ ِز ُر َو ِاز َرةٌ ِو ْز َر أ ُ ْخ َرى‬
َ ‫ض َّل فَ ِإنَّ َما يَ ِض ُّل‬
ِ ‫َم ِن ا ْْتَدَى فَ ِإنَّ َما يَ ْهتَدِي ِلنَ ْف‬
َ ‫َو َما ُكنَّا ُم َع ِذ ِبينَ َحتَّ نَ ْب َع‬
)12:‫ث َرسُوَّلً (اإلسراء‬
“Whoever goes right, then he goes right only for the benefit of his ownself. And
whoever goes astray, then he goes astray to his own loss. No one laden with burdens
can bear another's burden. And We never punish until We have sent a Messenger (to
give warning)”. (Al-IsrÉ’: 15)
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b) Al-Sunnah
Al-Sunnah or al-hadith of Rasululah SAW is the second source of Islamic law. It
interprets al-Quran and elaborates about legal injunctions of al-Quran such as the
way of performing shalat and hajj. Al-Sunnah refers to everything that comes from
Rasulullah SAW, be it his words, actions or silence approval. Based on this, Muslim
scholars have divided al-Sunnah into three categories:
(i)
Al-Sunnah al-Qawliyyah (‫)السنة القولية‬
It refers to anything said or disseminated by Rasulullah SAW
(ii)
Al-Sunnah al-Fi’liyyah (‫)السنة الفعلية‬
It refers to anything done by rasulullah SAW in the form of action such as
the way he (SAW) preformed shalat, hajj and so forth.
(iii)
Al-Sunnah al-Taqririyyah (‫)السنة التقريرية‬
It refers to silence approval of Rasulullah SAW on certain issue.
c) Al-Ijma’ (‫)اإلجماع‬
It refers to a consensus of Muslim jurists a certain time and period on a particular
point of Shari’ah law that are not provided by al-Quran and al-Sunnah in which it is
impossible that those jurists will lie on it. It is divided into categories i.e Ijma’ al-Sarih
(‫ )إجماع الصريح‬and Ijma’ al-Sukuti (‫)إحماع السكوتي‬:
(i)
Ijma’ al-Sarih (‫)إجماع الصريح‬
It refers to a consensus of majority of Muslim jurists (mujtahid) on a
ruling whether by their words or action. It is definite (‫ (قطعي‬in nature and
must be held as the source of Islamic law. For example, the consensus
of sahabah on the appointment of Abu Bakr as the first caliph of Islam.
An Ijma’ is considered definite (‫ )قطعي‬because it is based on Al-Quran
and al-Sunnah al-Mutawatirah (‫)السنة المتواترة‬.
(ii)
Ijma’ al-Sukuti (‫)إجماع السكوتي‬
9
It refers to a consensus of some Muslim jurists on certain ruling while the
others are silent on it without their agreement or opposition to the ruling.
It is zanni (prabable) in nature. A mujtahid needs to support his argument
to make it definite (‫)قطعي‬. It is considered zanni because some jurists are
silent due to their fear or respect to the jurists who express their
argument and opinion precisely and strongly. It is zanni because it is
based on hadith al-Ahad or al-Qiyas and need to other stronger evidence
to make it definite.
d) Qiyas
Qiyas is the process of analogical reasoning from a known injunction from al-Quran
and al-Sunnah to a new injunction because of the similarity of ‘Illah (‫)علة‬. For an
instance, drug in which we cannot find the ruling (hukm) whether lawful (halal) or
unlawful (haram) from al-Quran or al-Sunnah. How did Muslim jurists deduct a ruling
on drug? It was by looking at the ‘illah of the drug which is similar to alcohol. What is
the ‘illah of drug and alcohol? The illah is intoxication that causes the dysfunction of
mind. Since the alchohol is haram based on its illah, thus drug is also haram.
There are four pillars of al-Qiyas:
(i)
Original problem (‫)األصل‬
(ii)
Original ruling of the original problem (‫)الحكم‬
(iii)
The Cause (‫)العلة‬
(iv)
New problem (‫)الفرع‬
e) Al-Istihsan (‫)اإلستحسان‬
It is to hold a stronger evidence (‫ )دليل‬when facing with a problem involving a
particular rule (hukm).
f)
Al-Masalih al-Mursalah (‫)المصالح المرسلة‬
It refers the derivation of the hukm which is not stated in the primary sources of
Islamic law but implementing it for the interest of the people.
10
g) Sad al-Zarai’ (‫)سد الذرائع‬
It refer to closing the door or road to doing harm or sin.
h) Al-‘Urf (‫ (العرف‬/al-‘Adah (‫)العادة‬
It refers to a custom that does not go against the Islamic teachings
i)
Al-Istishab (‫)اإلستصحاب‬
It refers to holding on to the original rule until there is an evidence to change it.
5.2.2
Activities
Give example for the following:
a) Concise injunctions (‫ )قطعي‬of Al-Quran
b) Qiyas (another example other than drug)
c) Al-Istihsan (‫)اإلستحسان‬
d) Al-Masalih al-Mursalah (‫)المصالح المرسلة‬
e) Sad al-Zarai’ (‫)سد الذرائع‬
f)
Al-‘Urf (‫ (العرف‬/al-‘Adah (‫)العادة‬
g) Al-Istishab (‫)اإلستصحاب‬
5.3 The Concept and Classification of Islamic Rulings
5.3.1
Presentation
a) Concept of Islamic Ruling
In Islamic jurisprudence, ruling is the will of Allah SWT sent to His servants (mankind)
that related to obligatory actions (taklif) who are qualified to shoulder the obligations
i.e have reached the age of puberty (baligh). In general, Muslim jurists have classified
Islamic rulings into two main categories. They are:
Taklifi (‫)تكليفي‬
This category of ruling refers to the obligation of doing an action or leaving the
action or obligation that gives choice of doing it or leaving it. It depends on the
ability of an individual. If the individual is unable to do the action, the obligation is
11
removed from him. For example, children who have not yet reached the age of
puberty (baligh) are not compulsory to perform the five time daily prayers.
The Taklifi ruling is of five types; fardhu (‫)واجب‬, recommended (‫سنة‬/‫)مندوب‬,
permissible (‫)مباح‬, not recommended (‫)مكروه‬, and forbidden (‫)حرام‬. Do you still
remember our discussion on Islamic Axiology (Value) before this? They are the
same. Thus, we can skip discussing this part.
In Islamic legal system, there are several types of law i.e criminal law (jinayat),
family law on marriage (munakahat), transaction (‫ )معامالت‬and many others.
Wadh’i (‫)وضعي‬
This ruling refers to something that becomes the cause or condition or hindrance
towards the implementation of a ruling. The ability of individual is not made as a
condition towards its implementation. For example:
 The Cause
Adultery becomes the cause for stoning or canning on the adulterer.
 The Condition
Ablution (wudhu’) becomes the condition for the validity of prayers (‫)صالة‬.
 The Hindrance
A non-Muslim cannot inherit wealth of his/her Muslim father. The difference
of religion becomes the hindrance for that.
b) Classification of Islamic Ruling
In Islamic judicial system, the laws are classified into four types i.e hudud, qisas,
diyat,and ta’zir.

Hudud
Hudud is a set of punishment that was set forth by Allah SWT in al-Quran
and elaborated by al-Sunnah of Rasulullah SAW. This set of law is the right
of Allah SWT and cannot be amended nor changed by human beings.
12
Among the offences that are subjected to this law are stealing, robbery and
burglary, adultery, accusing someone of committing adultery without proofs,
drinking intoxicating drinks such as liquor, riddah (becomes an apostate),
and betraying an Islamic government.
 Stealing
The punishments are cutting of hands of the theif but the following prerequisites must be fulfilled before the punishments can be carried out:
(i)
The thief is an adult and not insane (sound of mind)
(ii)
The reason for committing theft is not because of hungry or poor
(iii) The stolen property must be owned by someone and has value
(iv) Stealing is of the thief own accord, not being forced by others
 Robbery and Burglary
The punishment is subjected to the discretion of judge, depends on the
level or degree of the offence. Among possible punishments are putting
in prison and exile from his state.
 Adultery
The punishments are classified to the type of the offender i.e unmarried
and married offenders.
 Unmarried: 100 lashes (Surah al-Nur, verse 2)
 Married: Stoning to death
 Accusing someone of committing adultery without proofs
The punishment is 80 lashes.
 Drinking intoxicating drinks
The punishment is 40 lashes (based on a hadith narrated by Abu said
al-Khudri).
 Riddah (Apostate)
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The condition is the offender willfully leaves Islam and not being forced
to do that. The punishment is sentence to death but after being
consulted and advised for three times.
 Betraying an Islamic government.
The punishment is sentence to death through execution of head of the
offender.

Qisas
Qisas is literally means ‘balance or the same’. Technically, it is a penalty
which is the same with the offence committed by the offender. Among the
offences under the punishments of this law is killing intentionally and hurting
someone. An offender who kills someone must be killed also unless he is
forgiven by the victim’s family. If he is forgiven, he must pay an amount of
compensation (money) to the family. The amount will be determined by court.
This is based on Surah al-Baqarah, verse 178.
In the case of hurting or causing injury to someone, the offender must be
punished with the same injury by the victim’s family or is forgiven by the
family but the offender must pay an amount of compensation which is
determined by court. The punishment is stated in Surah al-Nur, verse 2)

Diyat
Diyat is fine or indemnity that replaces the qisas punishment. It is one of the
alternative punishments if the offender is forgiven by the victim’s family. Diyat
is divided into two type i.e heavy and light diyat.
(i) Heavy Diyat
It is meant for the offence which is committed intentionally or seemingly
intentional. In the case of killing, there are three elements in which a
killing will be considered as intentional killing:

Intention to kill

The killing is meted toward a specific person

Use of weapon while killing
14
How about the seemingly intentional killing? For example, two persons
are fighting, beating each other. Then, one of them takes a stick and
beats his opponent. The opponent fainted and then dies. It is considered
as seemingly intentional killing because the stick is not considered as a
weapon and in normal situation, the stick cannot kill the opponent. It is
subjected to the punishment but the elements above are not applicable.
The court will judge whether the killing is committed intentionally or
seemingly intentional after gather all related evidences. If the victim’s
family forgives him, diyat is applicable.
Do you know the amount of diyat? Traditionally (based on the practice at
the time of Rasulullah SAW), the diyat for intentional killing was is 100
camels in which it must be borne by the offender and he must pay it
immediately to the victim’s family. As for seemingly intentional killing, it
was also 100 camels in which the diyat to be borne the offender’s family
or descendants and can be paid within three years.
(ii) Light Diyat
This type of diyat is imposed on unintentional or mistaken killing. For
example, Amran wants to shoot a mouse deer that is hiding behind brush
but unfortunately, he shoots Ibrahim who passes by the brush. In this
case, Qisas is not applicable but diyat does. The diyat are:
 Freeing a slave
 If unable, the diyat is to pay 100 camels to the deceased family.
The diyat to be borne by the offender’s family and payment can
be made in installments for a period of three years
The diyat also can be paid using currency. What will happen if the offender
cannot afford to pay the diyat and he is alone in this world, no family nor
heirs? In this case, the money will be taken from Baitul Mal. It means, the
offender cannot avoid his responsibility and Islam guarantees everyone’s
right. The murderer and the victim are helped by the Baitul Mal. This is the
beauty and uniqueness of Islam.
15

Ta’zir
It refers to several punishments in which the amount or severity of
punishment are not fixed by Islam as in the case of hudud and qisas. The
amount is left to the discretion of judge. Ta’zir is allocated for less severe
crimes which are punishable under hudud and qisas laws. Ta’zir must be
used for the interest of the public. A judge must take into his consideration
the effect of Ta’zir to the public as well as the benefit to the offender while
deciding the Ta’zir. Also, the punishment of Ta’zir must correspond the
offence that that the offender has committed. If many offenders commit a
particular offence, the punishment must be equal for every offender. Besides
that, the punishment under Ta’zir must not exceed the severity of hudud
punishment.
5.3.2
Activities
a) Give another two examples of Taklifi and Wadh’i ruling. Each example must be
supported with evidence (‫ )دليل‬from al-Quran or hadith or Ijma’ or Qiyas.
b) Find out the text and meaning of the following Quranic verses:
(i)
Surah al-Hujurat, verse 13
(ii)
Surah al-Nur, verse 2
(iii)
Surah al-Baqarah, verse 178.
c) Give three examples of Ta’zir punishments which are practice in your country.
5.4 Judicial Institution
5.4.1
Presentation
What is judicial institution? It is a body established by government to administer justice
through the execution of laws on matters related to criminal and civil cases. In Islam, the
cases can be heard in court only and the court can be anywhere whether in the court
itself, mosque or any other suitable places. The establishment of judicial institution is a
must in Islam as to uphold justice and to eliminate injustice in society. The institution
plays the role of resolving disputes that happened among individuals and the public. In
upholding justice, the institution cannot bias. It must treat all individuals equally without
looking at the background, skin colour, religion, lineage, status in society of the
individuals.
16
Being a must in Islam, the post of judge in judicial institution is a noble post. The post is
very important and critical. Therefore, a judge must be truly qualified as he is going to
carry out a big responsibility that is to ensure justice in the society. In Islamic history,
Rasulullah SAW was the chief judge, chief of legislative and executive bodies. It was so
because he was the messenger and trustee of Allah SWT and one of his main missions
as being entrusted by Allah SWT was to uphold justice to mankind. Rasulullah SAW in
Madinah heard all forms of cases and complaints related to crimes, family, wealth and
property, reputation and many others. Also, he heard appeal cases on decisions made by
qadhi or his representatives outside Madinah.
In Islam, the judge is appointed by the government and not the judge to apply for the
post. Rasulullah SAW in principle was appointed by Allah SWT to be the judge. Once
Islam expanded, Rasulullah SAW sent his companions to be a judge outside Madinah
like Mu’az bin Jabal and Abu Musa al-Ash’ari who were sent to be the governor and at
the same time as the judge in Yemen. This religious tradition was continued by the four
calips (Khulafa’ al-Rashidun) until the reigns of Banu Umayyah and Abbasiyah.
As the judicial institution is very critical and crucial, Islam has set out the conditions or
criteria of a judge. Among them are:
(i)
he must be a Muslim,
(ii)
sound of mind,
(iii)
baligh (reach the age of puberty),
(iv)
free man (not a slave),
(v)
possesses an adequate knowledge on the contents of al-Quran and alHadith as well other Islamic knowledge,
(vi)
Able to understand facts of a case, never committed a major sin.
(vii)
All the five senses are perfect and functional
(viii)
Man (in Hanafi mazhab, woman can be a judge)
(ix)
Clever and intelligent
17
(x)
Honest
(xi)
Master Arabic language (for the purpose of understanding al-Quran and
al-Hadith)
(xii)
Good akhlaq
(xiii)
Fear Allah
(xiv)
Seldom talks except on important matters
In order to safeguard the credibility of the judge and to ensure that the justice is truly is
put in place, the judge also must avoid the following:
(i)
Not to receive any form gifts or bribery especially from parties involved in
a case
5.4.2
(ii)
Not to conduct trial in a state of anger
(iii)
Not to judge a case without sufficient witnesses
(iv)
Not to hear a case that involves his family, relatives or friends
(v)
Not to pass a judgement without sufficient evidences
(vi)
Not to hear a case in a state of hunger
Activities
Give three examples from Islamic history (during the period of Rasulullah SAW or
Khulafa al-Rashidin or bani Umayyah or Abbsiyyah or Othmaniyyah) in cases where
justice was upheld by the Islamic government.
5.5 The School of Thoughts or Sects (mazahib)
5.5.1
Presentation
Originally, there were no sects in Islam. From the time of Rasulullah SAW up to the 2nd
century of Islam, there were no sects in Muslim communities. However, towards the end
after the 2nd century, sects in Islam existed due to the expansion of Islam throughout the
world and the Muslims were far away from al-Sunnah of Rasulullah SAW. The existence
of sects in Islam is based on the efforts of Muslim scholars to resolve the problem faced
18
by the Muslim communities through the way of Ijtihad. The Muslim scholars had put their
efforts searching for authentic (sahih) al-ahadith when they could not find resolution from
al-Quran to resolve the problems and then compiling al-ahadith of Rasulullah SAW. The
existence of mazahib has caused differences of opinion in Islamic teaching but the
differences occur only in small matters that related to jurisprudence (fiqh), not in the root
of Islam that is ‘aqidah.
In Muslim community, there are four major well-known mazahib which have been
recognized and acknowledged by the majority of Muslim scholars. The mazahib are
name after the name of its founder. The mazahib are:
a) Mazhab Hanafi – taking after the name of Imam Abu Hanifah, Nu’,an bin
Thabit (80-150 H/699-767 M)
b) Mazhab Maliki – taking after the name of Imam Malik bin Anas (93-179 H/712789 M)
c) Mazhab al-Shafei – was named after the name of Imam al-Shafei,
Muhammad bin Idris al-Shafei(150-204 H/820-767M)
d) Mazhab Hanbali – after the name of Imam Ahmad bin Hanbal (164-241
H/780-855)
The most important thing that we need to understand is the root of the differences of
opinions among those Imams. They differed in the branch of jurisprudence only and not
in the major principle of Islam that is aqidah. Why the differences occcured? The reasons
are (Islamic Studies Manual, OUM, 2009):
a) Difference interpretation in understanding al-Quran and al-Sunnah on a particular
problem
b) The time spent with Rasulullah SAW differed from one sahabah to another.
Some spent most of their times with Rasulullah SAW but others did not. Those
who spent most their times with Rasulullah SAW received hadith and learned
directly more from Rasulullah SAW and others did not. As a result, Imam who
learned from sahabahs who spent most of their times with Rasulullah SAW
received and learned more hadith such as Imam Malik.
c) No compilation of al-Sunnah of Rasulullah SAW at their time as what we have
today. They did jitihad based on hadith that they knew and the hadith might not
19
be authentic. The imam who came after one Imam then found that the hadith
used by the first Imam in his ijtihad before was not authentic. Thus, the difference
of opinion occurred.
d) The different living place with different culture and customs of the people also
had caused the differences. For example, Imam Malik lived in Madinah while
Imam Hanafi in Iraq.
Even though all the four Imams above had different opinions in certain issue in
jurisprudence, they emphasized to their followers on the importance of practicing Islam
according to the authentic hadith or al-Sunah of Rasulullah SAW. In the case in which
their opinions against the authentic sunnah, they had come out with fatwa that ’it is
compulsory for Muslims to follow the hadith and leave their opinions and ‘it is haram to
follow their opinions in such situation’. Their stands and spirit should be followed by the
Muslims today and not to put themselves in the rigidity and mazhab fanaticism.
5.5.2
Activities
Write a short background of the four Imams above.
6.0 Lesson Summary
Islamic ruling is the teaching of Islam that gives priority on human interests and
welfare in this world and Hereafter. The differences of opinions in it should not
become a major issue among Muslims. In fact, they Muslims should free themselves
from religious frenzy by putting more efforts to seek Islamic knowledge and be open
minded to accept others’ opinions as long as the opinions are within the boundary
set by al-Quran and Al-Sunnah. All the rulings implemented in human community are
to guarantee and safeguard the human life. All the rulings are for the human
betterment and to remove hardship and evils from their life.
20
7.0 Self Assessment
True (T) / False (F) Questions
1.
The purpose of Islamic law is to safeguard the right of Allah SWT.
______
2.
Islamic law was sent to fulfill the objective of Shari’ah.
______
3.
Islamic law guarantees the absolute freedom to mankind.
______
4.
Syura is not important in Islamic law.
______
5.
Al-Quran, Al-Sunnah and Al-Ijma’ are the first source of Islamic law.
______
6.
There are four types of Islamic ruling injunctions in Al-Quran.
______
7.
The concise injunction of Al-Quran must be refereed first in deducting
a ruling.
_______
8.
Al-Ijma’ al-Sukuti is stronger than al-Ijma’ al-Sarih.
_______
9.
‘Amran is 20 years old. It is a duty of Amran to perform the five
daily prayers’. The ruling on Amran is called Hukm al-Wadh’i (‫)وضعي‬.
_______
10.
‘Ibrahim is now 30 years old and has become an insane (‫’)مجنون‬. Now,
He needs not to pay zakah’. This type of ruling is called Hukm al-Taklifi. _______
11.
Khalwah (close proximity) between male and female is not punishable
under hudud law but it is under Ta’zir.
________
12.
The seemingly intentional killing also subjects to diyat.
________
13.
“Muadz cut a tree in front of his house. Unfortunately, the tree fell down
on his neighbor’s son, Amin and Amin passed away due to serious injury
on his head”. This incident is categorized as unintentional killing and Muadz
needs not to pay diyat.
________
14.
Under Ta’zir, if an offence is committed by many offenders, the punishment
needs not to be the same to all offenders.
________
15.
If an opinion of an Imam of mazhab is proven to be contradicting
the authentic (sahih) hadith, the followers of the mazhab have an option
whether to stick with the Imam’s opinion ot to follow the hadith.
________
21
Answer:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
F
T
F
F
F
T
T
F
F
T
T
T
F
F
F
22