Documente Academic
Documente Profesional
Documente Cultură
Rosheena khan kiani and Maryam Rehman Rjaput Bahria University 12/21/2012
Table of Contents
PREFACE ................................................................................................................... 4 ISLAMIC LAW (SHARIAH) ...................................................................................... 5
Meaning of Shariah: ......................................................................................................................... 5 Foundation of Shariah law: .............................................................................................................. 6 History: ............................................................................................................................................. 6 Development of Shariah law:........................................................................................................... 6 Main School of Shariah law:............................................................................................................. 6
1.Hanbali ............................................................................................................................................... 6 2.Maliki:................................................................................................................................................. 6 3.Shafi'i:................................................................................................................................................. 7 4.Hanifi: ................................................................................................................................................. 7 The sources of Islamic law are as follows: ....................................................................................... 7
1.The Quran .......................................................................................................................................... 7 2.The Sunnah ........................................................................................................................................ 7 3.Juristic Consensus .............................................................................................................................. 7 4.Juristic Analogy .................................................................................................................................. 8 The Secondary Sources of Islamic Law ................................................................................................. 8 Basic principles of Shriah ................................................................................................................. 9 The Methodology of Islamic Law ..................................................................................................... 9 Legal rulings ................................................................................................................................... 10 Devotional and Transaction Law.................................................................................................... 10 Devotional Law ...................................................................................................................... 11
Transaction Law ............................................................................................................................. 11 Dual Legal System: ......................................................................................................................... 11 Responsibilities of human beings in Islam ..................................................................................... 12
three essential areas of responsibility or duty in Islamic law .................................................................... 12 Unique characteristics of Islamic Law: ........................................................................................... 15 The richness and fullness of Islamic Law ....................................................................................... 16
PREFACE
Mankind need laws in order that its societies can last. If there were no laws then people would not know how to behave towards each other and societies would crumble very quickly. Law is a system of rules and guidelines which are enforced through social institutions to govern human behavior. Laws are made by government, specifically by their legislatures. The formation of laws may be influenced by a constitution (written or unwritten) and the rights encoded therein. The law shapes politics, economics and society in countless ways and serves as a social mediator of relations between people. There have been two ways of approaching law; one based on divine revelation and one based on manmade law. The Quran sheds light on this intense struggle where manmade law prevails over mans desires. However, as a Muslims our life is not governed by man-made laws instead we are governed by Islamic law which is very different from conventional man made laws. In this report, we have compared Islamic law with man-made law.
DO THEY SEEK A RELIGION (LAW) OTHER THAN ALLAHS, WHILE TO HIM SUBMITS WHOSOEVER IS IN THE HEAVENS AND THE EARTH , WILLINGLY OR UNWILLINGLY, AND TO HIM SHALL THEY BE RETURNED? (AL QURAN 3:84)
Meaning of Shariah: The term "Shariah" is Arabic word which means path or way. It is the sacred law of Islam. Shariah law literally means religious code of life. It is used to refer both to the Islamic system of law and the totality of the Islamic way of life. Shariah guides all aspects of Muslim life including politics, daily routines, foods, clothing, amusements, sports, familial and religious obligations, and financial dealings. Traditional Muslims (all mullahs, Mawlanas, Muftis, and Islamic scholars) who understand the Quran and the Hadith believe that sharia expresses the highest and best goals for all societies on Earth. It is the law of Allah and bound to be the best of all. Because of this ardent belief, devout and fanatical Muslims all over the world are in constant struggle (Jihad) with their ruling Government to establish Islamic Sharia as the countrys only rule by replacing modern secular democracy (Laws made by human)
Development of Shariah law: Islamic law grew along with the expanding Muslim Empire. The Umayyad dynasty caliphs, who took control of the empire in 661, extended Islam into India, Northwest Africa, and Spain. The Umayyads appointed Islamic judges, kadis, to decide cases involving Muslims. (Non-Muslims kept their own legal system.) Knowledgeable about the Koran and the teachings of Muhammad, kadis decided cases in all areas of the law. Main School of Shariah law: There are four main school of Shariah law. They are: 1. Hanbali It is the most conservative school of Shariah. It is used in Saudi Arabia and some states in Northern Nigeria 2. Maliki: This is based on the practices of the people of Medina during Muhammad's lifetime
2. The Sunnah This term is used to refer to the statements, actions, and tacit approvals of the Messenger (peace be upon him). With this meaning, it is synonymous with the word hadith. We might also use the word Sunnah to mean the practical application of the injunctions during the prophetic era. The Sunnah comes after the Quran in its ranking as a source of Islamic Law, as it comes to clarify what the Quran leaves ambiguous or difficult to understand, qualify what the Quran leaves unqualified, and bring up issues that the Quran does not mention. 3. Juristic Consensus This refers to the unanimous agreement of the jurists of a given era on a legal ruling. It makes no difference whether the jurists are from the era of the Companions after the death of the Messenger (peace be upon him) or any era thereafter. Consensus is a very strong source of evidence for establishing the injunctions of Islamic Law. It comes after the Sunnah in rank. The proof for its validity is drawn from a number of verses and hadith that show the unanimous statement of the people of knowledge is in itself a valid proof. The verdicts arrived at by consensus are, in and of themselves, always drawn from the Quran and Sunnah, even though it is possible that the hadith that formed the basis of the jurists consensus did not reach us. This is because it is inconceivable that the reliable scholars of Islam would ever come to agreement on an issue on the basis of personal inclination without there
1) Consideration of General Welfare (Istislh): This is the establishment of injunctions on the basis of broad aspects of human welfare (maslahah mursalah in Arabic) neither expressly considered nor rejected by the sacred texts. This consideration must remain within the confines of the general consideration for human welfare evident in the Sharia with its concern for attaining that which is beneficial and avoiding that which is harmful. a. Attaining that which is beneficial: This means attaining that which society needs so that human life can be maintained in the best, most dignified manner. b. Avoiding that which is harmful: This entails avoiding those things that can cause detriment either to the individual or to society, regardless of whether this harm is of a material nature or a moral one. c. Preventing wrongdoing: This entails preventing the means by which the commands of the Sharia are neglectected or its prohibitions are violated, even if only unintentionally.
d. Changing times: This refers to the changing circumstances people find themselves in. Each of these four factors requires the jurist to resort to considering the general welfare in order to
Legal rulings
The Sharia regulates all human actions and puts them into five categories: obligatory, encouraged, permitted, disliked or forbidden. Obligatory actions must be performed and when performed with good intentions are rewarded. The opposite is forbidden action. Recommended action is that which should be done and the opposite is disliked action. Permitted action is that which is neither encouraged nor discouraged. Most human actions fall in this last category. The ultimate worth of actions is based on intention and sincerity, as mentioned by the Prophet, who said, "Actions are by intentions, and one shall only get that which one intended."
JUDGMENT forbidden
discouraged permitted
encouraged
EXAMPLE
murder
wasting resources
giving charity
Devotional Law
The acts of worship, or al-ibadat, these include: 1. 2. 3. 4. 5. Ritual Purification Prayers Fasts Charities Pilgrimage to Mecca
Transaction Law
Human interaction, or al-mu'amalat, which includes 1. 2. 3. 4. 5. 6. 7. 8. Financial transactions Endowments Laws of inheritance Marriage, divorce, and child care Foods and drinks (including ritual slaughtering and hunting) Penal punishments Warfare and peace Judicial matters (including witnesses and forms of evidence)
The first three essential areas of responsibility or duty in Islamic law are:
I. Respect for life, or "the right to life" known as haqq-al-haya This requires not merely respect for the unborn after the spirit or ruh has been breathed into the foetus, but also such social duties as respect for non-belligerents in war and the use of dispute settling mechanisms whenever possible to avoid violence that might threaten the lives of oneself or others. Respect for life requires most basically an understanding that lasting peace can result only from justice, and that therefore stability should be sought as the by-product of sound foreign policy rather than as its direct aim. Similarly, crime should be combated primarily by addressing the causes rather than the results of the criminal mentality. Respect for community or right to one's identity as a member of a family, community, or nation, known as haqq-al-nasl. This focus on the family, and more broadly on expanding circles of community to include mankind and even all sentient beings in the universe, is unique to Islamic law, because it implies that sovereignty lies not in the extent of a country's or a government's power, as it does in Euro-American international law, but in the inherent dignity of the human person in community. This acknowledgment of the inherent right of the person to live in a series of legally recognized communities permits several levels of sovereignty, all subject to the highest sovereignty of God, and contrasts with the concept of exclusive sovereignty found in the so-called "nation-state" of the mid-twentieth century.
II.
IV.
Political self-determination: haqq-al-hurriyah. This is usually known as "the right to political freedom." Islamically, however, this term emphasizes the responsibility of both the ruled and the rulers to establish permanent institutions designed to facilitate broadbased political participation by every member of a polity in its governance so that they can help determine their own immediate well-being and long-run destiny.This universal, like each of the other five, contains a second-order level of responsibilities that serve to elucidate and carry out the primary responsibility. In the context of political selfdetermination, this next lower level of responsibility, known as hadyiyat, consists of iymma, which is the duty of the governed to reach consensus on critical issues, and shurah, which is the duty of the ruler to be responsive to this consensus. In a complex society, this might be accomplished best by using a concept of a hierarchy of assemblies that culminate in a national parliament.The third necessary element in the system of government prescribed in Islamic law, in addition to the executive and legislative, is an independent judiciary charged with applying the principles of Islamic law, especially as they are spelled out in a formal constitution covering the organs, methods, and principles of governance chosen by the legislature. The judicial area of government is designed to limit both the ruled and the ruler so that the ultimate sovereign, both in theory and in fact, will be Allah.
V.
Dignity, known as haqq-al-karama. The duty to respect human dignity is at the core of all Islamic law, because the essential purpose of the Shariah is to help persons acknowledge and deepen their relationship to Allah and express this higher level of being especially in their relationships with each other. There are two major parts of this fifth universal principle of Islamic law. The most important aspect of the principle of dignity is the duty to respect each person's need to seek and worship God in his or her own way. This is known in Western thought as "freedom of religion." In both traditional
VI.
Knowledge or haqq-al-ilm A key to success in every aspect of private and public life is the duty to pursue knowledge. Since the highest purpose of every person is spiritual understanding, freedom to pursue the path of spiritual knowledge is paramount. We were created, however, as humans not as angels, so we have a duty to pursue whatever knowledge is useful to us individually and collectively in carrying out our responsibilities: to help the marginalized in society, to promote justice among people and nations, to multiply the material bounties of Allah, to work constructively in the political process, to participate with people of other faiths in addressing all the problems of society, and otherwise fulfilling all the requirements placed upon us by Islamic law. The duty to respect knowledge goes beyond the negative task of protecting freedom of thought and expression, limited only by the duties to respect human dignity, and extends to the positive obligation of every person to learn as much as one can throughout one' s life in order to fulfill the purpose for which one was created. The nature and specific obligations inherent in Islamic law make it not only unique among mankind's legal systems but the best suited as the paradigm of thought within which all religions and all peoples can cooperate in building a better world.
Moreover, it defines the rights and obligations each individual has with respect to others, so that the potential harm any individual might cause for others is effectively negated. In this regard, Allahs Messenger (PBUH) said: There should be no harm and no harming of others. In short, Islamic Law aims at a great objective: that of realizing the benefits and best interests of both the individual and society and warding off what is to their detriment, giving preference neither to the needs of the individual nor to those of society as a whole. 2) Divine revelation All the injunctions of Islamic Law are revelation from Allah, so the one who is legislating for mankind is their Creator who knows best what will be of benefit to his creation in both this world and the next. He knows the psychological makeup of the human being, what will be in harmony with it, and what will clash with it. Allah says:
DOES THE ONE WHO CREATED NOT KNOW, AND HE IS THE GENTLE, THE ALL-AWARE
Man-made law, on the other hand, is the product of the human intellect that has limited powers and is subject to deficiency and error. This is the reason that the intellect can never truly comprehend the human soul and what is in harmony with the nature that Allah has placed within it. Therefore, the legislations that come from human effort may not always be suitable for human nature. 3) Stability and permanence in principles and flexibility in application Islamic Law rests upon a set of stable, unchanging principles derived from the Quran and Sunnah. The texts of the Quran and Sunnah have been most carefully and accurately recorded and preserved. Most of these texts contain general injunctions for legislation without going into the precise details relating to application. This affords the jurist broad powers of discretion that allow him to take ever-changing circumstances into consideration.
4) The absence of difficulty and the limitation of imposition Islamic Law does not impose any obligations of great severity or difficulty. Nothing in Islamic Law is overly burdensome. Whoever scrutinizes the injunctions of Islamic Law will find within
5) The richness and fullness of Islamic Law Anyone who studies Islamic Law will find that it contains an abundance of material and a wealth of ideas. This is evident in the various opinions of the jurists and the number of schools of thought. In spite of their large number, their differences, and diversity, none of them go outside the general scope of the Sharia. This richness is one of the factors that give Islamic Law the ability to develop, grow, and respond to the growth of human civilization. It prevents Islamic law from becoming rigid and stagnant. This diversity, in reality, stems from disagreement in understanding the same body of textual evidence, so it is a form of disagreement that offers diversity, not antagonism and contradiction.
The Sanction behind Morality: The Islamic concept of the universe and man's place therein furnishes the sanction that must support all morally-based injunctions. The Islamic concept of the universe and man's place therein furnishes the sanction that must support all morally-based injunctions. Islam relies upon the inherent urge for good that resides in everyone's heart which in turn is based upon the love and fear of Allah, the awareness of accountability on the Day of Judgment and the promise of eternal bliss. A man may be able to conceal certain deeds from others, he may be successful in deceiving others but Allah is fully aware of that which has transpired. Allah is AllKnowing, All-Seeing, All-Wise. Allah knows man's innermost intentions and desires and thus, whatever man does in this life he cannot escape from the fact that one day he will die and be compelled to account for what has passed. On that Day there will be no favors, no impartiality, fraud and deception will be of no avail; justice will be done. Distinctive Features of the Islamic Moral Code: Islam has furnished mankind with the highest possible standards of morality making Divine Pleasure one of man's main objectives in life. Islam does not provide any novel moral virtues nor does it seek to minimize the significance of established moral norms. Morality is approached with a sense of balance and proportion assigning a suitable place and function to each moral virtue within the total scheme of life. Islam enjoins upon man a way of life that promotes goodness and frees society from evil.
Due to its extreme importance, Islamic Law seeks to preserve reason and establishes a number of injunctions to ensure the health and freedom of the rational faculties. 1. ISLAM HAS PROHIBITED EVERY SUBSTANCE THAT AFFECTS THE MIND , HARMS IT , OR DECREASES ITS ABILITIES .
English law:
English law is the legal system of England and Wales, and is the basis of common law legal systems. English law is a mixture of common law, legislation passed by the UK Parliament and European law. It consists of the rules and other doctrine developed gradually by the judges of the English royal courts as the foundation of their decision, and added to over time by judges of those various jurisdictions recognizing the authority of this accumulating doctrine. Law of common jurisdiction applied by these courts. English common law was a necessary concomitant of capitalism which allowed the West to create the modern world. The body of English Law includes legislation, common law, and a host of other legal norms established by Parliament, the crown, and the judiciary.
Human Rights:
Shariah law: Islam has laid down some universal fundamental rights for humanity as a whole, which are to be observed and respected under all circumstances - whether a person is a resident within the Islamic state's territory or outside it, whether he is at peace or at war. The Qur'an clearly commands.
"WHOEVER KILLS A SOUL EXCEPT [IN LEGAL RETRIBUTION ] FOR MURDER OR CORRUPTION [DONE ] IN THE LAND - IT IS AS IF HE HAD SLAIN ALL PEOPLE ." [QUR'AN: SURAH AL -M AIDAH, 5:32]
The life and property of all citizens in an Islamic state are considered sacred, whether or not a person is Muslim. Moreover Islam also prohibited racism. As Quran speaks of human equality in following terms:
"O MANKIND WE HAVE CREATED YOU FROM MALE AND FEMALE AND MADE YOU INTO PEOPLES AND TRIBES SO THAT YOU MAY COME TO KNOW ONE ANOTHER . VERILY , THE MOST HONORABLE AMONG YOU IN THE SIGHT OF G OD IS THE ONE WHO IS MOST G OD-CONSCIOUS. I NDEED G OD IS A LL -KNOWING ALL -AWARE ." [QUR' AN: SURAH AL HUJURAT, 49:13].
English law:
In west they also give full rights to every human being but if we see that behavior of western government with Muslims is brutal. Muslim prisoner is a important example. Dr Afia siddiue is a Muslim prisoner in western jail. She has been sentenced to imprison for 86 years which violate the human rights act of English law 1998. If we compared English law with Islamic law, English law failed in many aspects of life.
Adultery:
Islamic law: Social relations are based on trust between men and women. If that trust doesnt exist then society falls apart. Part of that trust is that there is no adultery. Islamic law prohibited adultery thats why there are less cases of adultery in Islamic states as compared to western society.
"LET NO MAN GUILTY OF ADULTERY OR FORNICATION MARRY AND BUT A WOMAN SIMILARLY GUILTY, OR AN UNBELIEVER: NOR LET ANY BUT SUCH A MAN OR AN UNBELIEVER MARRY SUCH A WOMAN : TO THE BELIEVERS SUCH A THING IS FORBIDDEN ."
Banking System (Economic System) Islamic law: Islamic system strongly prohibited interest rate (Riba). It is unjust gain in
business or trade. Islamic economic system is the strongest system among the whole world. Islam strongly forbidden riba and declared it as a major sin.
THAT WHICH YOU GIVE AS INTEREST TO INCREASE THE PEOPLES WEALTH INCREASES NOT WITH GOD; BUT THAT WHICH YOU GIVE IN CHARITY , SEEKING THE GOODWILL OF G OD, MULTIPLIES MANIFOLD (30:39)
Al-Qur'an In Islamic system there is obligatory 2% zakat for Muslims. Features of Islamic Banking are based on ethical principles. Islamic Shariah allows all economic activities in the framework of protecting public interest and safeguarding it.
English law: In English law, there is no law and regulation on interest rate. Every institute
has its own rate and they can utilize in wrong way. Due to heavy interest all western countries have to pay huge amount of debts. Due to weak economic system western countries has to raised taxes. Citizen of these states has to suffer a lot due to weak economic system. Labor cost is low whereas taxes are high.
Murder: Islamic system: In Islamic law murder penalty is death sentenced people called this law as
barbaric but its wrong as Shariah gives an alternative to taking criminal life; Moreover shariah encourages the possibility of pardoning the criminal completely. Shariah is flexible and not rigid as people in west consider it. There are many options available in regard to murder. In shariah blood money can be accepted by victims relatives as it helps them financially if they lost their head of the family.
English law: In English law the punishment of murder is life imprisonment. After judge
order murderer victim family are allowed for appeals and they begged for mercy but as compared to western law , Islamic law is regarded as a height of mercy and they can forgive the murderer which also helps victim family by amount of deet and relaxed the murderer family.
Rosheena and Maryam Dress: Islamic Law: Islamic law promotes modesty and seeks to minimize vice and immorality in
society. One of the ways it does so is by requiring modest dress. Islam sets the standards of decency for both men and women. n Islam, both men and women are expected to dress simply, modestly, and with dignity. A man must always be covered in loose and unrevealing clothing from his navel to his knee. A Muslim woman must at least cover her hair and body in loose and unrevealing clothing, obscuring the details of her body from the public. The wisdom behind this dress code is to minimize sexual enticement and degradation in society as much as possible for both men and women.
English law: In English law there is no dress code. People are in western countries dress up
in unethical way. Due to unethical behavior many sins are practiced commonly like gambling, prostitution and drinking. There is no respect for women in these societies and they are considering as an object of lust.
Conclusion:
Laws are all about regulating relations between people and also between people and government. Shariah is a very significant part of the Muslim belief, as it puts in practice, what Muslims are commanded to do by Allah, and Muhammad. Regardless the degree of Shariah strictness, some would prefer a strict version, and others will prefer a lesser strict one, it is desired by all Muslims, as it is retrieving its authority, and importance from Allah, and his prophet. Shariah, or Islamic law, is the code of conduct for Muslims and is based on two main sources: The Qur'an and the Sunnah of the Prophet. The aim of the Shariah is to preserve society in a form which is healthy and fruitful for the inhabitants on earth. Shariah helps mankind live the way the creator has decreed us to live, and to ease our worship to Allah (SWT), whereas with broken families, high rape, massive percentages of alcohol related diseases and deaths, homelessness, obesity. These statistics reflect the success of a government which rules by manmade law and it paints a picture that tells us the government only serves the interests of the political elite, including big corporations, banks and man's desires. The Islamic Judicial system is far better to any system man has ever devised in history. The strictness concerning evidence has meant that only around 200 people ever had their hands cut in 1300 years of Islamic Rule and the incidences of theft were very low. The Islamic system allows a person aggrieved of a crime the right to forgive the accused or to demand compensation for certain crimes. A person has the right to take the ruler to court and even remove him if he transgresses against the Shariah. Islam protects the belief, life, honor, mind and wealth of all citizens as well as ensuring that each individuals needs in terms of food, clothing and shelter are provided for not as a matter of charity but as a matter of divine obligation upon the Islamic State. There is nothing which comes close to the Shariah and Islam, however the Shariah needs to be implemented in its totality to work and receive the blessings from Allah. As Allah says in Quran
ALLAH ORDERED YOU TO RETURN THE HUQUQ TO THE PEOPLE AND IF YOU RULE AND JUDGE BETWEEN PEOPLE , YOU RULE BY SHARI AH ( I. E . A L ADL - JUSTICE ).*EMQ 4: 58]
PDF files
Divine Law and man-made law (Al-Karam Muslim Magazine, Volume 3, Issue 2, July 2001) English legal system an overview ( Wilson2e_ch1)