1
ISLAMIC LAW AND JURISPRUDENCE 4. SHARIAH literary means “a waterhole where the animals gather daily to drink,
1. ISLAM is derived from the Arabic word “salam” which means peace; it connotes
submission, surrender or obedience. Religiously, it is defined as the complete
submission to the will of Allah and obedience to His law (Shari’ah).
In details, it refers to submitting of one’s self to the teaching brought by the
Prophet (pbuh), abiding the commands and refraining from the prohibitions.
(Bar 1999).
*There are five (5) Pillars of Islam, to wit:
(a) SHAHADATAYN or testifying that there is no God save Allah and
Muhammad is His Messenger;
(b) SALAH or the observance of the five daily obligatory prayers;
(c) ZAKAT or giving alms or poor due;
(d) SAWM or fasting during the month of ramadhan; and
(e) HAJJ or pilgrimage to the Holy ka’aba at Mecca.
2. IHSAN literary means “excellence”. It refers to worshipping Allah devotedly. It is
defined by the Prophet (pbuh) as to worship Allah that you see Him, though you
cannot see Him, Allah is definitely looking at you.
3. IMAN literary means “to know, to believe, or to be convinced beyond reasonable
doubt”. It is rendered in English as faith. Islamically, it refers to believe in Oneness of
Allah, His Angels, His books, His messengers, the Day of Judgment and the Divine
Predestination.
The Six articles of faith are as follows:
(a) TAUHID or belief in the oneness of Allah;
(b) MALAIKAT or belief in Allah’s Angels;
(c) KUTUB or belief in Allah’s Scriptures or Books;
(d) RUSUL or belief in Allah’s Messengers;
(e) YAWMUL QIYAMAH or belief in the day of judgment; and
(f) QADR or belief in Divine Predestination.
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
the road to a watering place or the straight path”. Technically, it is the name given to
the totality of God’s commandments.
Islamically, it refers to the sum total of Islamic law which was revealed to
Prophet Muhammad (pbuh), and which is recorded in the Qur’an as well as in the
deducible guided lifestyle called Sunnah. (Bar 1983, 1987, 1991, 1993, 1995, 1999,
2001, 2006, 2008).
BASIS: “Then WE put you on a straight on a straight path (Shari’ah) in your
affairs, so follow it and do not follow the desires of those who have no knowledge”.
Surah Jathiyah:18.
The MAQASID AL SHARIAH or purposes of Islamic Law are divided by Al-
Ghazali into two types:
(a) DINI or purposes of the Hereafter; and
(b) DUNYAWI or purposes pertaining to this world. These are:
(1) The preservation of Nafs or life;
(The law provides the penalty for Qisas in order to protect
the sacred life.)
(2) The preservation of Din or religion;
(The law forbids apostacy to have the sanctuary of the
religion.)
(3) The preservation of Nasl or progeny;
(The law prohibits the fornicator or adultery in order to
compass the decency of the family.)
(4) The preservation of Aql or intellect; and
(The law prohibits drinking of wine and other intoxicants to
shield the mind of the individual and to avoid chaos or disorder
in the society.)
(5) The preservation of Mal or wealth.
(Stealing is prohibited under the law to protect the
properties of certain person and to have halal wealth.)
Each worldly purpose is meant to serve the single dini purpose. When all
types are taken together, we have five ultimate purposes of the law.
2
*Primary Objective of Shariah
The objective of Shariah is to reform human life on the basis of Ma’rufat and
to cleanse it from Munkarat.
Ma’rufat means all the virtues and good qualities that have been accepted as
good by human nature. While Munkarat means all the sins and evils that have always
been condemned by human nature.
*Characteristic of Shariah Law
Shariah Law is DIVINE, ETERNAL, UNCHANGEABLE, COMPREHENSIVE,
IDEALISTIC, REALISTIC and NATURALISTIC.
*Sharia’h and Fiqh are distinguished as follows:
(a) Shariah is a body of revealed law found both in the Qur’an and in the
Sunna; while Fiqh is a body of laws deduced from Shariah to cover specific
situations not directly treated in Shariah Law.
(b) Shariah is fixed and unchangeable; whereas Fiqh changes according to
the circumstances under which it is applied.
(c) The law of Shariah are, for the most part general; they lay down basic
principles; In contrast, the laws of fiqh tend to be specific: they
demonstrate how the basic principles of Shariah should be applied in
given circumstances.
(d) Shariah covers all human action; but Fiqh deals only with what are
commonly understood as legal acts.
(e) The path of Shariah is laid down by God and his prophet; however, the
edifice of Fiqh is an erected human endeavor.
(f) In Shariah, there are various grades of approval or disapproval; on the
other hand, in Fiqh, an action is either legal or illegal, permissible or not
permissible.
*(2) Methodologies in Islamic legislation adopted by Shariah.
a) Divine legislation which refers to those books sent down to the prophets.
Among these are the Zabur (psalm) of Daud, the taurah (torah) of Musa, the engeel
(gospel) and the Holy Qur’an.
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
b) By the extension of the original text through ijtihad or individual opinion.
*Give the two kinds of rights under the Shariah and define each.
a) RIGHT OF GOD has for its purpose public rights as it involves benefit to the
community at large and not merely to particular individual, such that its enforcement
is the duty of the state. They are refer to God because of the magnitude of the risks
involved in their violation vis-à-vis the comprehensive benefits resulting from their
fulfilment.
b) RIGHT OF MAN refers to rights in which a private individual interest is the
core, and its enforcement is at the option of the person whose private right is
infringed whether to ask for its compliance or not.
* In case of conflict between the two (2) rights, which one prevails? Discuss
briefly your answer.
The rights of God prevails over the rights of man. Rights of man arises only
upon his compliance to the rules and law set forth by Allah in the Holy Qur’an. Hence,
man’s submission to the rights of God is the source of his right over God and his fellow
men.
5. QANUN denotes man-made law. It is a law or regulation referring in particular
to secular laws. However, from the European concept, it refers to the body of
ecclesiastical law which originated in the Church of Rome relating to matters which
the Church claims jurisdiction and it has definitely religious colors.
An example of a Canon law is the Revised Penal Code of the Philippines.
6. FIQH literary means “the true understanding of what is intended”. Technically, it
refers to the science of deducing Islamic laws from evidence found in the sources of
Islamic laws.
In its legal terminology, it is the knowledge of all rules and commandments of
Islamic law which are practical in daily life, and derived from detailed proofs of law.
(Bar 1993, 1987, 1991, 1993, 1995, 1999, 2003, 2006, 2008).
3
*Relationship or distinction between Fiqh and Usul al-Fiqh. (Bar 2016)
FIQH is concerned with the knowledge or the detailed rules of Islamic
law in its various branches, while USUL AL-FIQH deals with the methods that are
applied in the deduction of such rules from their sources.
FIQH in other words is the law itself, whereas USUL AL-FIQH is the
methodology of the law.
*Distinction between Fiqh and Jurisprudence in Philippine Legal System.
FIQH in its general meaning is the deduction of Shariah value relating
to conduct from their respective particular evidence. Technically, it is the
scientific study and elucidation on Shariah.
On the other hand, JURISPRUDENCE as understood in the Philippine
Legal system refers to the laws enacted by the Congress and cases decided
by the Supreme Court which becomes part of the law of the land and it has a
binding effect upon the people and it has a force of law.
NOTE: nos.7 and 8 are referred to as the two divisions of the science of fiqh.
7. USULUL FIQH literary means “the roots of Fiqh”. It is defined as the science of
the sources and methodology of law. Technically, it means the science of the study of
Muslim law jurisprudence, its fundamentals and principles, based from the primary
sources of law, through the exercise of independent analytical deduction with regard
to its application to certain particular situation. (Bar 1991, 1995).
*Distinction between Usul al-Fiqh and Qawaid al-fiqhhiyyah or Maxims of
Fiqh.
The MAXIMS OF FIQH refer to a body of abstract rules which are derived from
the detailed study of the FIQH itself. They consist of theoretical guidelines in the
different areas of FIQH such as evidence, transactions, matrimonial, etc. Hence, they
are an integral part of FIQH and they are totally separate from USUL AL-FIQH.
*The two principal themes of Usul al-fiqh are:
(a) THE ADILLAH SHARIYYAH or proofs of Shariah; and
(b) THE AHKAM or laws or values that regulate the conduct of the mukallaf
(subject). The ahkam are derived from the Adillah and are therefore subsidiary to the
adillah.
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
8. ILMUL FURU or FURU AL FIQH means knowledge of the branches of law. It is
the science which deals with the application of rules of law in terms of human act in
detailed areas of life. This is referred to as the substantive law.
9. HUKM SHAR’E or SHARIAH VALUE is defined as the quality determined as a
result of divine revelation. For example, the fact of an act being prohibited in Shariah
is its Shariah value. It is established by a communication from God with reference to
men’s act, expressive either of demand or prohibition or indifference on his part being
merely declaratory.
Hukm Shar’I is mainly divided into two: Mandatory Law and Declaratory Law.
(Bar 1983, 1995, 2005).
*The following are the Essential Elements of Hukm Shar’e:
(a) The Lawgiver
(b) The Law or Hukm
(c) The subject or Mukallaf
(d) The act
10. HUKM TAKLIFI or MANDATORY LAW defines the characteristic of man’s acts
whether they are obligatory, forbidden, commendable, and improper or which
indicates the legal effect of an act. It requires certain actions, or provides a choice
whether to follow or not.
11. HUKM WAD’E or DECLARATORY LAW is promulgated as a reason, a condition
or a deterrent for action or states whether an action is valid or void or whether it is
allowed by concession or permissible ab initio.
THE CLASSIFICATIONS OF DECLARATORY LAW ARE AS FOLLOWS:
(a) Those that indicate the cause (sabab) of a mandatory law as for instance,
marriage is the cause of the right of inheritance;
(b) Those that indicate the condition (shart) which governs the operation of
a mandatory law, as in the case of the requirement that the property
should be possessed for a year as the condition for the payment of zakat;
and
4
(c) Those that prevent (maani) the application of the mandatory law like
impurity of the person prevents the validity of prayer. (Bar 2006).
NOTE: Nos. 12-17 are the classifications of Human Acts according to Shariah Value. (Bar
2003, 2006).
12. FARDH or IMPERATIVE is an act which value has been established by the
Qur’an and Mutawattir Hadith. Performance of Fardh act leads to reward and its
omission leads to punishment in this world and in the hereafter.
Fardh is of two kinds:
(a) FARDH AYN or PERSONAL or INDIVIDUAL OBLIGATION like the
performance of five daily prayers.
(b) FARDH KIFAYA or COLLECTIVE or SOCIAL OBLIGATION like the
performance of Salatul Janazza or the prayer for a dead person.
13. WAJIB or OBLIGATORY is an act which value has been established by a Shariah
evidence, other than the Qur’an and Hadith Mutawattir. It has the same effect as the
Fardh, although Wajib need not be given absolute faith like Fardh. An example of this
is the giving of alms for the breaking of the fast.
14. MANDUB or RECOMMENDABLE is an act which its commission is rewarded
although its omission does not entail punishment. Acts which belong to this category
are believed to have been performed by the Prophet (pbuh) habitually.
Mandub is divided into three:
(a) SUNNAH MU’AKKADAH which refers to those acts which were
persistently performed by the Prophet (pbuh) like Adhan and
congregational prayer.
(b) SUNNAH GHAYR MU’AKKADAH or NAFL or MUSTAHAB which refers to
those acts which were performed by the Prophet (pbuh) several times
but did not do so at other times like the four rak’ahs before Asr and Isha
and giving sadaqah to the poor.
(c) SUNNAH ZAWAID pertains to the daily tasks of the Prophet (pbuh) as a
human being like his way of dressing, eating and drinking, as well as his
dealings with his family members.
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
15. MUBAH or JAIZ or PERMISSIBLE or INDIFFERENT is an act which its commission
is rewarded but its omission is not punished like walking, sleeping, sitting, and so on.
16. MAKRU or REPREHENSIBLE or ABOMINABLE is an act which its omission is
preferable than its commission.
According to the Hanafi jurists, Makruh is of two kinds:
(a) MAKRU KARAHAT TANZIH which refers to an act that has been
considered improper and to be avoided for the purpose of purity. This is
nearer to Mubah.
(b) MAKRU KARAHAT TAHRIM which refers to an act that is improper to the
degree of prohibition. This is nearer to Haram.
17. HARAM or FORBIDDEN is an act which its commission is punishable and its
omission is rewarded.
Haram is divided into two:
(a) HARAM LI-DHATIHI refers to an act which by itself is an intrinsic evil like
the unlawful sexual intercourse, theft, and selling of carrion.
(b) HARAM LI-GHAYRIHI refers to an act which has been prohibited due to
an external factor like fasting on the day of Eid which has been prohibited
by the Lawgiver because it becomes a hurdle for treating the guests of
Allah with hospitality.
18. AZIMA and RUKHSA.
AZIMA or IDEAL refers to the laws that are general in nature. While
RUKHSA is a rule that provides an exemption from the general rule. Drinking wine is
generally prohibited (azima), but one is permitted by law (rukhsa) to drink it in case
of duress.
19. HADITH literary means news, report, or narration. Technically, it refers to the
reports about the Sunnah of the Prophet (pbuh).
It consists of three parts:
(a) SANAD or ISNAD refers to the chain of narrators that has reported any
given hadith.
(b) MATN refers to the actual text of hadith, which if authentic is the actual
sunnah of the Prophet (pbuh).
5
(c) TARAF which is the nickname of the hadith. It is a part of hadeeth or the
beginning sentence of the text that is shorthand for the complete matn.
*The distinction between Sunnah and Hadith are:
(a) Sunnah literary means a way, rule or manner like the acting and mode of
life; while Hadith is a saying conveyed to man either through hearing or
revelation.
(b) Sunnah refers to the Prophet’s sayings, actions, and practices; whereas
Hadith implies the narration of the record of the Sunnah and also contains
historical elements.
(c) Hadith is the story of eyewitness concerning what the Prophet said, did or
tolerated in connection with certain situation or occurrence; Sunnah, on the
other hand is practically deduced from it.
20. HADITH QUDSI is a kind of hadith in which the meaning is from Allah but the
wording is from the Prophet (pbuh). It is that Allah has communicated to His Prophet
through revelation or in a dream and the Prophet communicated it in his own words.
*The Distinction between Hadith Qudsi and Ordinary Hadith are:
(a) HADITH QUDSI’s meaning is from Allah though its wording is from the
Prophet; while ORDINARY HADITH implies the narration record of the Sunnah, as well
as its historical elements.
(b) HADITH QUDSI is communicated by Allah to His Prophet through
revelation or in a dream; whereas ORDINARY HADITH is a saying conveyed to man
either through hearing or revelation.
(c) HADITH QUDSI is communicated by the Prophet in his own words;
however, ORDINARY HADITH is the story of an eyewitness concerning what the
Prophet said, did or tolerated in connection with a certain situation or occurrence.
*The Distinction between the Hadith Qudsi and verse of the Qur’an are:
(a) The precise wording of the HOLY QUR’AN is from Allah; while the wording
of HADITH QUDSI is given by the Prophet Muhammad (pbuh).
(b) The HOLY QUR’AN has been brought to Prophet Muhammad only by
Angel Jibreel; whereas HADITH QUDSI have been inspired otherwise, such as dream.
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
(c) The HOLY QUR’AN is inimitable, unique, and protected by Allah but not so
as the HADITH QUDSI.
(d) The HOLY QUR’AN is divided into chapters and verses. There is no such
organization in HADITH QUDSI.
(e) The HOLY QUR’AN is recited in prayer but not the HADITH QUDSI.
(f) There is a specific reward for reciting each letter of the verses of the HOLY
QUR’AN ; however, reward for reading HADITH QUDSI is general.
NOTE: nos.21-24 are the primary sources of Islamic law. (Bar 1983, 1987, 1995,
1999).
21. QUR’AN literary means reading or reciting. It is the speech of Allah sent down
upon the last Prophet Muhammad (pbuh) through Angel Jibreel, in its precise wording
and meaning, transmitted to us by numerous persons both verbally and in writing. It
is considered to be a code of conduct laying down fundamental principles in all
aspects of human life.
*Other names of Qur’an are: FURQAN (criterion), TANZIL (sent
down), DHIKR (reminder), and KITAB (scriptures).
*When, where and how was the Qur’an revealed? (Bar 1983, 1991)
The revelation began during Lailatul Qadr on 27th day of Ramadhan, other
jurists believe that it was on 17th day, around 610 A.D and continued intermittently
piece by piece for over twenty-two years, more than twelve years of which took place
in Mecca before Hijra (622 A.D), and the rest were revealed in Medina and ended
with the Prophet’s death (652 A.D). Hence, the revelation period is divided into two,
namely:
(a) The Meccan period and the revelations made in this period were called
the Meccan verses (ayats) or chapters (surahs) which were short and
concise and deal with three themes such as Tauhid or the unity of God,
the moral duties of Mankind, and the retribution in the next world; and
(b) The Medina period and the revelations made during this period were
called the Medina verses (ayats) or chapters (surahs) which were long
and deal with Islamic legislation on Civil and Criminal law, Fiscal and
Military laws, and the Pillars of Islam.
6

*The kinds of legislations during the lifetime of Prophet at Medina are:

a) Divine legislation. The FIRST REVELATION that the Prophet (pbuh) received is in the verses of
b) By percept or ijtihad. Surah Al-Alaq which says:
c) By spirit of the law.
READ! IN THE NAME OF YOUR LORD, WHO CREATE, CREATED MAN
*The principles for the basis of legislation in the Qur’an are: FROM CLOT. READ! AND YOUR LORD IS MOST BOUNTIFUL. HE WHO TAUGHT
(a) The removal of Difficulty; THE USE OF THE PEN, TAUGHT MAN WHICH HE KNEW NOT.
(b) The reduction of Religious Obligations;
(c) The Realization of Public Welfare; and The LAST REVELATION is in the verse of AL-Baqarah which says:
(d) The realization of Universal Justice. AND FEAR (ALLAH) THE DAY WHEN YE SHALL BE BROUGHT TO GOD.
THEN SHALL EVERY SOUL BE PAID WHAT IT EARNED, AND NONE SHALL BE
*The wisdom why the Qur’an was sent down in stages are: DEALT WITH UNJUSTLY.
(a) To strengthen the heart of the Prophet by addressing him continuously
and whenever the need for guidance arose. Other Ulama said that the LAST VERSE is in the verse of Al-Maida which
(b) In order that the Prophet Muhammad become friendly to the people. says:
(c) Out of the consideration for the Prophet since revelation was a very THIS DAY I HAVE PERFECTED YOUR RELIGION FOR YOU AND
difficult experience for him. COMPLETED MY FAVOR ON YOU AND CHOSEN FOR YOU ISLAM AS YOUR
(d) To gradually implement the laws of Allah. RELIGION.
(e) To make understanding, application, and memorization of the revelation
easier for the believer. *The gathering, compilation or codification of the Qur’an are as follows:

*Kinds of Tafsir used by Jurists to understand the Qur’an. A. During the lifetime of Prophet Muhammad (saw);
(a) TAFSIR BIL RIWAYAH or by transmission. Two things were taken for the gathering and codification of the verses of
(b) TAFSIR BIL RA’Y or TAFSIR BI DIRAYA or by sound opinion. Qur'an:
(c) TAFSIR BIL ISHARA or by indication. a) Preservation of the Qur'an in the chests or heart of the Prophet
Muhammad (saw). He used to recite the Qur'an before Angel Jibreel once every
*The Descent of the Qur’an: Ramadhan, but he recited it twice in the last Ramadhan before his death. The Muslims
also engaged themselves in memorizing the Qur'an. Each verse received was recited
(A) From the Lauh al Mahfuz where the well-preserved tablet to the lowest of by the Prophet and its location relative to other verses and Surahs was identified.
the heavens (bait al-izza), all together in the lailat ul-qadr; b) Preservation of the Qur'an by writing them in pages. The verses were
(B) From the heavens to earth in stages throughout the 23 years of Muhammad written by scribes, selected by the Prophet, on any suitable object – leaves of trees,
piece of wood, parchment, or leather or flat stones. Scribers included Ali bin Abu
prophethood, and first in the laila al qadr of Ramadhan through Angel Jibril;
Talib, Mu’awiyah bin Abu Sufyan, Ubay bin Kaab and Zaid bin Thabit. Some of the
(C) Second descent from heaven to the heart of Prophet, Surah al-Isra (17) and companions wrote the Qur'an for their personal use.
al-Furqan (25).
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
7
B. Qur’an under the leadership of Abu Bakr RA
Umar bin Khattab urged Abubakr to preserve and compile the Qur’an. This
was prompted after the Battle of Yamama, where heavy casualties were suffered by
the memorizers of the Qur’an. Abubakr entrusted Zaid bin Thabit with the task of
collecting the Qur'an. Zaid had been present during the last recitation of the Qur'an
by the Prophet to Angel Jibreel AS. Zaid, with the help of other companions who
memorized and wrote verses of the Qur’an, accomplished the task and handed
Abubakr the first authenticated copy of the Qur'an. The copy was kept in the
residence of Hafsah, daughter of Umar and wife of the Prophet.
C. Qur’an under the leadership of Uthman
Uthman ordered Zaid bin Thabit, Abdullah bin Zubair, Said bin As and
Abdulrahman bin Harith to make several copies out of the authenticated copy kept
by Hafsah. This was due to the rapid expansion of the Islamic state and concern about
differences in recitation. It was incited at Battle of Armenia, the Muslims read the
Qur’an in various modes. Some accused another as unbeliever. Copies were sent to
various places in the Muslim world. The original copy was returned to Hafsa and kept
in Medina.
*Why is the Qur’an considered a complete code of conduct by the Muslim?
Explain briefly.
The Qur’an is considered as a complete code of conduct by the Muslims
because all the principles of fundamental nature like human rights, relation of man
and his fellow man as well as his religious obligation with God, his dealings in this
World and his life after death are all embodied in it. Whoever follows the teachings
of the Qur’an will never go astray. Hence, it is the complete guidance of life.
22. SUNNAH literary means the actual explanation and practical demonstration
of the Qur’an. Technically, it refers to the sayings, actions, or deeds of the Prophet
and actions of the companions which he tacitly approved.
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
*The functions of Sunnah in relation with the Quran are: (Bar 1987, 1995)
(a) It explains the verses of the Qur’an.
(b) It gives the details of the general rules.
(c) It provides exceptions when the verse is capable of several interpretations.
(d) It lays down the rules of conduct and laws in some matters not dealt with
in the Holy Qur’an.
*Three (3) kinds of Sunnah with respect to its transmission (isnad) are: (Bar
1983, 1987).
(a) MUTAWATTIR (continuous) is one which is reported by numerous
Companions and a good number of followers and then their followers
that they cannot be expected to agree upon a lie, all of them together.
The Examples of Mutawattir are the 5 daily prayes, fasting, Zakah, Hajj,
and the recitation of the Holy Qur’an.
(b) MASHOOR (famous) is one reported by three or more Companions of the
Prophet or from another companions which became known widely,
whether or not it has an authentic origin. This is next to Mutawatir and
acceptable as a source of law.
(c) AHAD (isolated) is one narrated by people whose number does not reach
that of the Mutawattir. It is classified into Aziz and Gharib. Aziz
linguistically means precious, rare, or strong. Technically, it means only
two reporters were found to narrate the hadith. While Gharib
linguistically means scarce or strange. Technically, it means there is only
one narrator in each of the levels of the chain.
*The classifications of Hadith according to the manner they came from the
Prophet may be:
(a) SUNNAH QAULIYA or those that consist the sayings of the Prophet on
certain questions.
(b) SUNNAH FI’LIYAH or those traditions based from the deeds of the Prophet
as manifested by his actions.
8
(c) SUNNAH TAQRIRIYA or those traditions based from his tacit approval of
the act or practice of the people.
*The Classification of hadith based on reliability are:
(a) SAHIH which linguistically means healthy or sound, and technically it
means authentic. It is a kind of hadith which has no questions in its Isnad and its
narrators are just, righteous and trustworthy.
(b) HASSAN which literary means good. Technically, it is defined as a hadith
which does not meet all the conditions of sahih as its narrators did not reach the
righteousness of the narrators of the sahih hadith.
(c) DAIF literary means weak. Technically, it is defined as a hadith which has
failed to meet the requirement of its acceptability due to the some defects in its
transmission or its narrators are well known of telling lies. It is inauthentic hadith that
cannot be used as a source of legislation in Shariah.
*The Classification of hadith according to reference of particular authority
are:
(a) HADITH QUDSI is a hadith transmitted to us from the Prophet (pbuh) in
which he attributes the words to Allah.
(b) HADITH MARFU is a hadith in which words, actions and approvals are
attributed to the Prophet.
(c) HADITH MAWQUF is a hadith in which words, actions, and approvals are
attributed to the sahabi and not from the Prophet.
(d) HADITH MAQTU is a hadith in which words, actions and approvals are
attributed to the Taabi’i.
*Conditions of Sunnah.
(a) It should not contradict some other legal evidence found in the Qur’an or
another tradition.
(b) If contradicted by another hadith, it can be reconciled.
(c) If it contradicts another hadith but is subsequent in time to it, it can be
said to have abrogated the previous hadith.
(d) If it contradicts another hadith, it can be said that it is superior to it.
*The Six authentic (Sihha Sitta) collections of Ahadith are: (Bar 1987)
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
(a) SAHIH BUKHAARI compiled by Abu Abdullah Muhammad Ibn Ismael
alBukhara.
(b) SAHIH MUSLIM compiled by Muslim bin hajjaj of Nishapur.
(c) SUNAN ABU DAUD by Abu Daud Solaiman.
(d) JAMI’ TIRMIDZI by Abu Isa Muhammad Al Tirmidzi.
(e) SUNAN IBN MAJAH by Muhammad Ibn Yazeed al-Rab’I al-Qazwayni.
(d) SUNAN NASAI by Abu AbdulRahman of nasai in Khurasan.
*Other genuine collection of hadith are:
(a) MUSNAD of Ahmad Ibn Hanbal.
(b) RISALA of Imam Muhammad Ibn Idris Ash-Safi’e.
(c) MUWATTA of Malik Ibn Anas.
*Distinction between Sunnah Tashri’e and Sunnah Ghayy-Tashri’e.
SUNNAH TASHRI’E refers to the Sunnah of the prophet Muhammad
(pbuh) that deals with his ways as being a Messenger of Allah, Head of State,
Imam or Judge. This is obligatory to be followed and its omission is evil and
improper.
Conversely, SUNNAH GHAYR TASHRI’E refers to the Sunnah of the
Prophet (pbuh) such as his personal ways of dressing, walking and sitting, the
omission of which is not improper.
*The distinction between Sunnah and the Qur’anic Verse are:
(a) The QUR’ANIC VERSE is a word of Allah, it is a divine order, a dictates of
Almighty; whereas SUNNAH is the Prophet’s words, actions or deeds who is a human
being.
(b) The QUR’AN is reported in its precise wording; while SUNNAH is not
necessarily reported in its precise wording.
(c) The QUR’AN is preserved and protected by Allah from any corruption; but
SUNNAH is subject to distortion as it is not protected against corruption.
(d) The VERSE OF THE QUR’AN can be recited in prayer; however, the
SUNNAH cannot be recited in prayer.
9
*Questions on whether the Qur’an may be in conflict with Sunnah.
The Imams have different views on this question, to wit:
(a) Imam Malik and the followers of Imam Hanifa claim that it is possible on
the reason that they are both revelation from God. And they cited the
example about the making of a will to an heir quoted in the Qur’an which
has been repealed by the hadith “no will to an heir”.
(b) Imam Shafi’e and Imam Ahmad Ibn Hanbal reject the above views on the
reason that the Sunnah is only a supplementary on the Qur’an. They
quoted the verse in the Qur’an that commands the Prophet to say that
he is not allowed to alter any verse of the Qur’an. They further argue
that the “making of will to an heir” verse is already abrogated by another
verse which prescribes the legal shares of the heirs.
23. IJMA literary means agreement or consensus. Technically, it refers to the
consensus of the Muslim jurists of any particular period after the death of the Prophet
Muhammad (pbuh) concerning a legal ruling. In its legal sense, it refers to those
principles of law which are accepted unanimously.
*JUSTIFICATION and BASIS: (Bar 1991,1993,1995,2001)
The Qur’an states: “But whosoever shall sever from the Prophet after the
guidance hath been manifested to him and shall follow any other path than that of
the Faithful. We will turn over back on him as he has turned his back on Us and We
shall cast him into Hell---an evil journey”.
A hadith from the well-known saying of Abdullah Bin Mas’ud states:
“Whatever the Muslims deem to be good is good in the eyes of God”.
*Effect of Ijma after its consensus:
The Shariah value of Ijma is obligatory to us. Once the unanimous declaration
is made, it is binding on every Muslim, including the Mujtahid who took part in it.
Hence, it is no longer open to anyone of them to express dissent.
*The requisites or condition of a valid Ijma are: (Bar 1983)
(a) The Ijma is an exertion among the Mujtahid formulating decisions based
on the interpretation and application of the Islamic law.
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
(b) The consensus is made by and among the Mujtahid qualified to do so.
(c) The Mujtahids are among the community (Ummah) of the Prophet
Muhammad.
(d) The consensus is made after the death of the Prophet.
(e) The rule of law agreed upon by them is Shariah value.
*The types of Ijma are:
(a) IJMA AL SARIH or EXPLICIT IJMA or one which every Mujtahid manifestly
agreed after having expressed his opinion either verbally or by action. It is positive
evidence that must be followed because it is binding.
(b) IJMA AL SUKUTI or TACIT IJMA or one which some of the Mujtahid of a
particular age have expressed their opinions concerning an incident but the rest
remained silent; their silence would be construed as agreement with existing opinion.
*Who may participate in Constitution of Ijma?
(a) He must be a Muslim; and
(b) He must be a Mujtahid or a jurist.
(c) He must be a man of sound mind.
(d) He must be of thorough judgment.
(e) He must have the capability of making logical deductions.
*The Classification of Ijma are:
(a) REGULAR IJMA refers to one that ensures certainty of belief and strictly in
conformity with the requirements of law.
(b) IRREGULAR IJMA refers to one which has no absolute certainty.
(c) IJMA UMMAH refers to the Ijma of the Companions of the Prophet.
(d) IJMA AL MADINA refers to the Ijma expressed by the learned people in
Madina.
EXAMPLES OF IJMA:
(a) The compilation of the Qur’an after the Battle of Yamama for the purpose
of public interest.
(b) The call of prayer during Friday congregation so that people would be
alarmed about the Friday prayer.
10
*Explain the rules on transmission of Ijma.
The transmission of the Ijma starts once the Muslim scholars are called to
unite their opinions on the question raised. Once the unanimous declaration is made
on the matter, it becomes binding on every Muslim, including the Mujtahid who took
part in it. Hence, it is no longer open to anyone of them to express dissent.
*Distinguish Ijma’ and Shura.
Ijma and Shura may be distinguished as follows:
(1) Ijma is the legal tool for producing legal rules based on the concensus of
legal experts; while Shura is merely consultation with people who may or may not be
experts in law to derive their opinion to a particular question or affair;
(2) Ijma produces rules which must be followed; but the result of Shura does
not always carry the mandatory effect of law; and
(3) Shura refers to the process of consultation among Mujtahid; then its
product is known as Ijma’.
*The believers are described in the Glorious Qur’an as “whose affairs are a
matter of counsel (shura)”. Since it is not feasible to consult everybody, it has to be
taken by an assembly of trusted people’s representatives. Hence, Five (5) things are
necessary for its fulfillment. Enumerate all and discuss each briefly. (Bar 2016)
The following are the five (5) things necessary for the fulfilment of Shura, to
wit:
(1) Those whose rights and interests are involved should have full freedom of
expression and should be informed about how affairs are being run. They should also
have the full right to protest and change their leaders appropriately if they see any
deficiency, negligence or error in the proper discharge of the duties of the leaders;
(2) The person responsible for managing the collective affairs should be
appointed with express approval of the people;
(3) The advisers of the head of the nation should also have full confidence of
the people and should be worthy of it;
(4) Those who give their counsel should do so in accordance with their
knowledge and conscience in full freedom; and
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
(5) The collective advice or decision arrived by the principle of unanimity or
majority should be accepted without reservation.
*Can the Muslim Filipinos of today make their own Ijma?
Yes. Muslim Filipinos of today can make their own Ijma provided all the
requisites or a condition of a valid Ijma are complied with.
*Explain the doctrine of Quasi-abrogation as it relates to Ijma.
Quasi-abrogation or Partial abrogation is form of abrogation whereby one
text is only partially abrogated by another, and the remaining part continue to be
operative. As to its relation to Ijma, a subsequent Ijma may abrogate an existing Ijma
when the former is founded on Maslaha Mursala, as when public interest ceases to
exist.
24. QIYAS or ANALOGY literary means measuring or judging by comparing a thing.
Technically, it refers to the application of new cases to the ruling of the original case
when the law is silent on the matter. In its legal sense, it is the process of deducing a
rule of law based on the Qur’an, tradition, or ijma in matters which have not been
provided by a text.
BASIS:
Allah said: “Think deeply, O ye who are understanding” (Surah Al-
Hashr 59:2). This verse asks those with eyes or intellect to consider things, compare
them, and ponder over them.
*The essential elements of Qiyas are: (Bar 1983, 1991, 1993, 1995, 2001)
(a) ASL or THE ORIGIN or THE FOUNDATION which is the original case on
which a ruling is given in the text.
(b) FAR is the branch to which the ruling is to be extended for want of a ruling
in the new case.
(c) HUKM or THE RULE which is the Shariah value of the original case which is
to be extended to the new case.
(d) ILA or THE EFFECTIVE CAUSE which is an attribute of the Asl found to be
common between the original case and the new case.
11
*Example:
The explicit prohibition of the Qur’an on drinking liquor (khamr) because it
excites enmity and hatred among people is extended by analogy to Tanduay. The
reason is that liquor is an intoxicant, and Tanduay, though not mention in the Qur’an
is another intoxicant.
The four elements of analogy are present in this example such that the Asl is
the khamr drinking, the far is the tanduay drinking, the Illa is the intoxicant effect,
that is exciting enmity and hatred among people. Hence, the original hukm is the
prohibition of khamr and the branch hukm is the prohibition of tanduay.
*Is shabu (methamphetamine hydrochloride) haram? Explain your answer,
stating the source/s or principles of Muslim law that you should use, the ground/s
upon which you should base your judgement and/or the procedure that you should
apply to arrive at such a judgment. (Bar 2016)
Yes. Shabu is haram based on the application of the principle of Qiyas. The
intoxicant effect of khamr (drinking liquor) is analogous to the intoxicant effect of
shabu.
The basis of the prohibition on khamr are as follows:
(1) Allah said “Oh you who believe! Intoxicants and gambling, (dedication) of
stones, and (divination by) arrows, are abomination of Satan’s handiwork: eschew
such (abomination), that you may prosper. Satan’s plan is but to excite enmity and
hatred between you, with intoxicants and gambling, and hinder you from
remembrance of Allah, and from prayer; will you not abstain?” (Surah al-Maida
(5):90-91)
(2) The Prophet Mohammad (pbuh) said “All drinks that intoxicate are
unlawful (to drink). (Sahih Bukhari, Book 69, Number 491, Book of Drinks).
Applying the explicit prohibition on khamr by way of analogy to the instant
case, the Asl is the khamr drinking; the far is the use of shabu; the Illa is the intoxicant
effect, that is exciting enmity and hatred among people. Hence, the original hukm is
the prohibition of khamr and the branch hukm is the prohibition of shabu.
*The essential conditions of Qiyas are: (1995, 2003).
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
(a) The law enunciated in the text to which analogy would be applied must
not be indicated to be restricted to a particular state of facts.
(b) An analogical deduction may be based on the law of either the Qur’an or
hadith, provided such text are not repealed.
(c) The analogy must be applied to the effective cause on which the law is
based, not to the vocabulary of the text.
(d) The law of the text must not be such as its raison deter cannot be
understood by human intelligence.
(e) The deduction contemplated must not lead in changing the law of the text
itself.
(f) The rule of the analogy must not oppose the text of the Quran or the
Hadith.
*The following are the three forms of Qiyas according to some jurists:
(a) QIYAS AL A’LA or ANALOGY OF SUPERIOR whereby the effective cause is
evident in the far or the new case than the asl or the original case.
An example of this is the prohibition in the Quran of saying contemptuous words to
parents or repelling them for they should be address ed with honor. By analogy, it may be
deduced that the prohibition of lashing or beating them is even more obvious than a verbal
abuse.
(b) QIYAS AL MUSAWI or ANALOGY OF EQUALS whereby the illa is equally
effective in both the new and the original case, and so is the ruling deduced by
analogy.
An example of this is the verse in the Qur’an which states that devouring the orphan’s
property is forbidden. By analogy, all other forms of destruction and mismanagement which
lead to the loss of such property are equally forbidden.
(c) QIYAS AL ADNA or ANALOGY OF INFERIOR whereby the effective cause is
clearly less effective in the new case than in the original case.
An example of this is the prohibition by some Ulamas of Cali (less alcoholic drink)
because they believe that it can intoxicate but the effective cause is weaker than the khamr
which really intoxicates.
*However, the Hanafis divided Qiyas into two:
(a) QIYAS JALLI or OBVIOUS ANALOGY whereby the equation between the Asl
and Far’ is obvious and the discrepancy between them is removed by clear evidence.
12
(b) QIYAS KHAFI or HIDDEN ANALOGY whereby the equation between the asl
and far’ is hidden and the removal of discrepancy between the asl and far’ is by means
of a probability.
NOTE: nos.25-29 are the subsidiary sources of Islamic law.
25. ISTIHSAN or JURISTIC PREFERENCE literary means to approve or deem
something preferable. Technically, it refers to the exercise of private judgment, not
on the basis of analogy, but on the public good or the interest of justice, or seeking
the most just solution.
In its legal terminology, it is a method of exercising personal opinion in order
to avoid rigidity and unfairness that might result from the literal (meaning)
enforcement of the existing law. The Hanafi school is the proponent of Istihsan which
resembles the doctrine of equity in English law.
*Istihsan are of two kinds:
(a) ANALOGICAL ISTIHSAN which consists the departure from Qiyas Jalli to
Qiyas Khafi.
(b) EXCEPTIONAL ISTIHSAN is stronger than analogical Istihsan because it
derived support from another source like Qur’an and Sunnah.
BASIS: Avoidance of hardship is a cardinal principle of religion which is
enunciated in the Qur’an, “Allah intends every facility for you, and He does not want
to put you in hardship.” 1 Hadith: The best of your religion is that which brings ease
to the people.
EXAMPLE:
A man dedicates his property and lays down a condition that after him, his
son shall act as Mutawalli (trustee) of the property declared in waqf. He dies while his
son is a minor.
According to Qiyas, the appointment of a minor is invalid, for the trustee must
be of the age of majority. But according to Istihsan, the minor is recognized as Trustee
and the Qadi should appoint a competent perso to act as his guardian through whom
the minor shall administer the property till he attains the age puberty.
1 The Qur’an, 2:185
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
*Give three (3) examples of Istihsan and invoke its Qur’anic justification and
explain.
Examples of Istihsan are provided as follows:
(a) “Allah desires you ease and good not hardship.” [2:185]
An example of which is the sale subject to future redemption which
was allowed because of necessity. In such an arrangement, the
prospective borrower sells his property to the lender on the condition
that he shall have the property back when he repays the price and the
lender gets the use of the property as a consideration.
(b) “The distribution in all cases is after payment of bequests and debts.”
[4:11]
The distribution of the estate of the decedent shall be made only
upon payment of the bequests and debts.
(c) “And follow the best (Ahsan) of what has been sent down to you from
your Lord.” [Al-Zumar:55]
The Qur’an distinguishes a superior course of conduct from a mere
ordinary one. For instance, punishing the wrongdoer is the normal course
enjoined by the Shari’ah but forgiveness may at times be preferable and
would thus represent the course of conduct.
26. ISTISLAH or PUBLIC GOOD literary means public welfare or interest. When it is
qualified as maslaha mursaha however, it refers to the unrestricted public interest in
the sense of its not having been regulated by the Law giver in so far as no textual
authority can be found on its validity or otherwise. It is synonymous with Istislah.
Technically, it is defined as consideration which is proper and harmonious to
the objectives of the Law giver; it secures benefits and prevents harm and the Shariah
provides no indication to its validity or otherwise. Imam Malik recognized Al Masalih
Al Mursalah as a source of law.
13
BASIS:
“Allah never intends to impose hardship upon you.” 2
“Allah has not imposed difficulties on you in religion.” 3
Examples: The issuance of currency; the establishment of prisons;
imposition of tax (kharaj) on agricultural lands in conquered territories by
the Companions.
*The three Types of Maslaha are:
(a) The Dharuriyyat or Essential values such as the preservation of religion’
life, intellect, lineage and property. An example of this is the prescribed severe
punishment for the crime of murder and abortion for the purpose of preserving life.
(b) The Hajiyyat or Complementary such as the interest which its neglect
creates difficulty in the life of the community although not to its total destruction. An
example of this is the concession (rukhsa) that Allah has granted to the sick to break
their fast.
(c) The Tahsiniyyat or Embellishment which refers to the interest which its
realization leads to improvement and its attainment is desirable. An example of this
are the observance of cleanliness and moral virtues.
EXAMPLES OF ISTISLAH:
(a) The imposition of Taxes on the rich in order to meet the cost of the army
and to protect the realm.
(b) The punishment of the criminal by depriving him or his property if his
crime is perpetrated over that property or its equivalent.
(c) If an infidels in a war should shield themselves by a Muslim prisoners, and
the only way to defeat them and to protect the Muslim community is to
counter them even if it means killing the Muslim prisoners.
27. ISTISHAB or PRESUMPTION OF CONTINUITY literary means association,
escorting or companionship. Technically, it denotes that things which existence or
2 The Qur’an 5:7
3 The Qur’an 22:78
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
non-existence had been proven in the past should be presumed to have remained as
such for lack of establishing any change. This principle is introduced by Imam Shafi’e.
Example: everything is presumed to be permissible unless the contrary is proved.
BASIS:
“It is He who created for you all things that are on earth.” 4
“And He has subjected to you, as from Him, all that is on the heavens and
on earth.” 5
*Legal maxim: “Certainty may not be disproved by doubt.” When a person
is known to be sane, he will be presumed as such until it is established that he has
become insane. The presumption can only be sets aside by certainty, not by a
mere doubt. Certainty always prevails over doubt.
Example:
A man who had been absent and whose whereabouts are unknown is
considered as still living by the Shafi’e for all purposes of the law until he is proven
dead, so his estate cannot be distributed among his heirs, and he will be allotted his
share in the estate of the person from whom he can inherit who died during his
absence.
*The following are the various forms of Istishab: (Bar 2008)
(a) Presumption of original freedom from liability.
(b) Presumption of generality until limitation is placed thereon.
(c) Continually regarding a text until it is repealed.
(d) The continuity of a legally established fact until the contrary is proved.
(e) The reverse continuity or the projection of the present into the past.
EXAMPLES OF ISTISHAB:
(a) The legal presumption of innocence until the proof of guilt is
established.
(b) Things are presumed Halal in the absence of prohibition.
(c) Marriage is presumed to continue until its dissolution becomes known.
4The Qur’an 2:29
5The Qur’an 45:13
14
28. ISTIDLAL or INFERENCE literary means inference. Technically, it is a method of
deduction by means of inferring of one thing from another in order to arrive at a rule.
It is a form of ratiocination or legal reasoning not covered by Qiyas.
*Istidlal is of the three kinds:
(a) The expression of the connection which exists between one proposition
and another without any effective cause.
(b) Istishabu’l hal or presumption that a state of things which is proved to
have ceased still continues, or that a rule is accepted.
(c) The authority of revealed laws previous to Islam.
29. URF literary means that which is known. It is defined as the recurring practices
which are acceptable to the people of sound nature. Technically, it refers to those
which people or section thereof have become accustomed to doing. Majority of the
jurists use Urf and Adat synonymously.
BASIS:
“Ye are the best of people, evolved for mankind, enjoining what is right
and forbidding what is wrong.” 6
*The Types of Custom are:
(a) Customs related to transactions and rights.
(b) Customs related to morals and behaviors.
(c) Customs related to costumes and social conduct.
(d) Customs which is related to amusement or entertainment.
30. ADAT literary means repetition of recurrent practice which can be used both
by the individual and the community.
*The following are the conditions for an Adat/Custom/Urf to be binding as
Law: (Bar 1987, 2001, 2003).
(a) It must represent a common and recurrent phenomenon.
6 The Qur’an 3:110
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
(b) It must be reasonable and acceptable to people of sound nature.
(c) It must be of frequent and common recurrence.
(d) It must be prevalent at the time of the transaction or previous thereto but
not to later custom.
(e) It is valid only if it is not in conflict with a text.
*The distinction between Urf and Adat are:
(a) ADAT means repetition or recurrent practice which can be used by both
individual and the community; while URF is a defined as recurring practices which are
acceptable to people of sound nature.
(b) Individual habit is a personal ADAT of the people; but there will be no
personal habits of the individuals as their URF.
(c) URF means the practice of a large number of people or community;
whereas, the habits of a few or even a substantial minority within a group constitutes
ADAT.
*The distinction between Urf and Ijma are:
(a) URF comes to existence because of the agreement of the people of a
certain period; while IJMA requires for its enactment the consensus of all the
Mujtahids of the period.
(b) URF is not dependent on Ijma but on the people including Mujtahidin;
whereas, IJMA is exclusive and has no rooms for non-Mujtahids or laymen.
(c) URF leaves open possibility of fresh ijtihad even with different origins or
issue; however IJMA must be open only on the same issue.
(d) URF requires an element of continuity over a period of time; on the
contrary, IJMA can outrightly come into being upon the agreement of Mujtahids.
31. SADD AL-DARAI is defined as blocking the means to an expected end which
is likely to materialize if the means towards it is not obstructed. Blocking means
implies blocking the means to evil and not something good.
15
*Example:
Khalwah or illicit privacy between members of the opposite sexes is unlawful
because it constitutes a means to zina whether or not it actually leads to it. All sexual
overtures which are expected to lead to zina are similarly forbidden by virtue of the
certainty or likelihood that the conduct in question would lead to zina.
32. QAWLU SAHABI literary means Companions’ opinion. It refers to the opinion
of a particular Sahaba to specific rulings or issues concerning legal actions.
33. SHAR’ MAN QABLANA literary means earlier scriptures. Technically, it is
defined as a body of laws ordained by Allah for the nations before the Prophet
Muhammad’s ummah through revelation to other prophets and apostles.
34. NASKH or ABROGATION literary means obliteration, transcription or
transfer. Technically, it is defined as the suspension or replacement of one Shariah
ruling by another, provided the latter is of subsequent origin and the two are in
conflict with one another and it is not possible to reconcile them or when the later
law expressly repealed the former.
*Rules on Abrogation.
In the context of Muslim law and jurisprudence, there are four
general possibilities when a question of abrogation or repeal may take place, and
these situations are:
1. The repeal of the Quranic text by another;
An example of this is the verse which deals with intoxicants, at one
stage, the use of it was discouraged due to its bad effects. In a later verse,
intoxicants were finally declared to be prohibited.
2. The repeal of tradition by Quranic text;
An example of this is the change of Qiblah or direction of prayers
wherein the Prophet used to turn his face in the direction of Jerusalem
which lasted for some time until a Qur’anic verse was revealed, directing
the Muslims to face Ka’aba while performing their prayers.
3. The repeal of the Quranic text by tradition; and
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
An example of this is the making of a will to an heir quoted in the
Qur’an which has been repealed by the hadith “no will to an heir”.
4. The repeal of tradition by another tradition.
An example of this the prohibition by the Prophet (pbuh) of visiting
graves in his earlier precepts, but since permission has been given to him
to visit the grave of his mother, he allowed people to do so.
Accordingly, the reason behind the repealed laws is that what may be good
for the people of one age may not be good for the people of another age. Since Islamic
law believes in convenience, the purpose is convenience to the community and the
progressive implementation of Islamic principles and to blend these theories and
principles putting the circumstances of the time.
*The following are the types of Naskh: (Bar 2001).
(a) SARIH or EXPLICIT ABROGATION whereby the abrogating text clearly
repeals one ruling and substitutes another in its place.
(b) DIMNI or IMPLICIT ABROGATION whereby the Lawgiver introduces a ruling
which appears to be conflicting to the previous ruling though still doubtful whether
the two rulings present a genuine case for abrogation.
*The Reasons for the Abrogation are:
(a) Liberalizing the law for people in order to adapt the rules governing
transaction as the time changes.
(b) When it is not possible to reconcile two texts which are in conflict to each
other and of the same origin.
(c) What may be good for the people of one age may not be good for the
people of another age.
*Kinds of Naskh are as follows: (Bar 2016)
(1) Abrogation of the recited (ayah) together with the legal ruling.
(2) Abrogation of the legal ruling without the recited (ayah).
(3) Abrogation of the recited (ayah) without the legal ruling.
16
*Naskh and Mansukh
Naskh and Mansukh are both derived from the root word ‘nasakha’ which
means ‘to abolish, to replace, to withdraw, and to abrogate’. Naskh (an active
participle) means ‘the abrogating’, while Mansukh (passive) means ‘the abrogated’.
Technically, these terms refer to certain parts of the Qur’anic revelation
which have been ‘abrogated’ by others. Naturally, the abrogated passage is called
‘mansukh, while the abrogating one is ‘naskh’.
*Importance of knowledge on Naskh and Mansukh
Knowledge of Nask and Mansukh is important because it is concern with the
legal revelations on the correct and exact application of the laws of Allah, specifically:
(1) It is one of the important pre-conditions for explanation (tafsir) of the
Qur’an;
(2) It is one of the important ore-conditions for understanding and application
of the Islamic law (hukm shar’i);
(3) It sheds light on the historical development of the Islamic legal code;
(4) It helps to understand the immediate meaning of the ayat concerned; and
(5) Tafsir (explanation of the Qur’an) or legal ruling is not acceptable from a
person who does not have such knowledge.
*Three (3) ways of knowing about Al-Mansukh and Al-Naskh: (Bar 2016)
Some scholars say that there are three ways of knowing al-naskh wa al-
mansukh, these are:
(1) Report from the Messenger (pbuh) or Companions;
(2) Ijma’ (consensus of the Ummah upon what is naskh and what is Mansukh)
(3) Knowledge about which part of the Qur’an preceded another part in the
history of revelation.
35. IJTIHAD literary means to exert oneself to the utmost or to the best of one’s
ability. Technically, it is defined as a jurist’s exerting of the faculties of his mind for
the purpose of formulating an opinion on any point of law. It is a method for making
deductions in matters of law in cases to which no express text or rule is applicable.
*Basis:
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
Mu’adh Ibn Jabal narrated that when the Prophet (pbuh) sent him to Yemen,
he asked: What will you do if a matter is referred to you for judgment?
The Prophet (pbuh) asked: What if you find no solution in the Book of Allah?
Mu’adh said: The I will jugde by the Sunnah of the Prophet.
The Prophet (pbuh) asked: And what if you do not find it in the Sunnah of the
Prophet?
Mu’adh said: Then I will make Ijtihad to formulate my own judgement.
The Prophet patted Mu’adh’s chest and said “Praise be to Allah who has
guided the messenger of His Prophet to that which pleases Him and His Messenger.
*The Modes of Exercising Ijtihad by a Mujtahid or Jurist are:
(a) By confining himself to the literal meaning of the text.
(b) By using Qiyas or analogy.
(c) By extending the spirit of the law to other cases.
36. RA’Y literary means opinion. Technically, it is defined as an individual unguided
opinion of Muslim. Some jurists used Ra’y and Ijtihad synonymously in a sense that it
refers to the giving of opinion of a particular Muslim to an issue or circumstances they
are facing.
*The Distinction between Ra’y and Fatwa are:
(a) RA’Y is known defined as an individual unguided opinion of Muslim; while
FATWA means a qualified opinion which came from a Mufti or qualified person like
the jurist.
(b) RA’Y refers to choosing the opinion which appears to be most appropriate
to the given case in question; whereas, FATWA OF THE JURISTCONSULT has a
persuasive and advisory effect upon the Muslim community as a whole.
37. SHURA literary means “to gather honey from its hive and from other places”.
Technically, it is defined as mutual consultation of the individual unguided opinion of
people who may or may not be expert in law. It doesn’t always carry the effect of law.
38. TAQLID literary means an ornament tied around the neck like a necklace.
Technically, it is defined as to follow the opinion of a person whose opinion is not a
proof of Islamic law without asking his proof. This refers to blind imitation.
17
39. ITTIBA literary means to follow. Technically, it refers to the action of Muslims
by following the rulings of the early scholars with reason or deduces from one of their
deductions in order to preserve the pristine purity of Islam.
40. TAKHAYUR literary means a choice. In the language of Fiqh, it means liberty
of an individual Muslim to be governed by the law of any of the four schools of Islamic
Jurisprudence.
41. TALFIQ literary means to piece together. Technically, it means to piece
together constituent parts from various schools in a single act of worship. In other
words Talfiq is the term for combining the rules of more than one school to apply to
specific act.
42. TAFSIR literary means explanation and clarification. It is defined as a study
that aims at knowledge concerning the Qur’an, to explain its meaning, extract its legal
rulings and grasp its underlying reason.
43. TA’WIL means the explanation of the inner and concealed meanings of the
Qur’an, as far as knowledgeable person can have access to it.
*Give the three (3) kinds of Tafsir used by the Muslim Jurists on the correct
understanding of difficult Qur’anic verses.
The three kinds of tafsir used by the Muslim Jurist on the correct
understanding of difficult Qur’anic verse are:
a) tafsir bi-l-riwaya (by transmission), also known as tafsir bi- mathar
b) Tafsir bil ra’y (by sound opinion; also known as tafsir bil-diraya, by
knowledge)
c) tafsir bi-l-ishara (by indication, from signs).
44. NEO-IJTIHAD is defined as legislation on matters relating to laws of personal
status.
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
45. AS-SIYASAH AS-SHAR’IYYAH is defined as a government in accordance with
the revealed law joined with the sovereign’s prerogative power of supplementing the
doctrine of jurists by administrative measures and regulations.
46. IBADAT literary means worships. It is defined as actions which refer to the
relationship between mankind and God like the acts of worships such as salah, zakah,
sawm, hajj, etc.
47. ITIQADAT refers to the principle of belief which embraces mainly the six
articles of faith in Islam.
48. MU’AMALAT relationship of man and his fellow man such as all laws
regulating obligation and contracts, laws regulating economic, social, political, family,
laws, etc.
49. ADAB refers to Islamic etiquette or upright moral behaviour such as respect,
courtesy, and manners. It governs the correctness of one’s behaviour in relation to
his God and also his fellow mankind like his parents, elders and others.
50. UQUBAT refers to the penal laws which consists the punishment instituted in
the Qur’an in favour of the general public for the commission of injurious or wrongful
act. It consists of the Hudud, Qisas and Ta’zeer.
51. WAQF is defined as a legal process by which a Muslim creates an endowment
or donation of his property for any purpose recognize by Islam and charitable.
52. MUJTAHID is one who is conversant with the science of law in both branches,
namely: the principles of jurisprudence (usul) and the rules of law in the different
departments (Furu).
*The comparison and distinction between Mujtahid and Faqih are:
(a) They are both jurist who derive the rulings directly from specific
evidences.
(b) The Mujtahid gives manuals that contain his opinion; while the Faqih
derives rulings from the manuals of Mujtahid.
18
(c) Mujtahid cannot be considered as Muqallid; whereas Faqih, although he
is qualified jurist is still a Muqallid.
*The Qualification of Mujtahid are:
(a) He must be conversant with the science of Islamic law in both branches,
such us Usul and Furu;
(b) He must have thorough knowledge of the Qur’an and hadith;
(c) Above all, he must be conversant with the rules and methods of analogical
deduction.
* The kinds of Mujtahid are:
(a) MUJTAHID FI SHAR’ or FULL MUJTAHID is one who met all the
requirements to exercise Ijtihad and is not restricted by the rules of particular
Madhad.
(b) MUJTAHID FIL MADHAB or MUJTAHID WITHIN THE SCHOOL is one who
expounds the law within the boundaries of a particular Madhab and principles laid
down by his Imam.
(c) MUJTAHID FIL MASA’IL or MUJTAHID ON PARTICULAR ISSUE is one who
applies law in particular cases which are not settled by the jurists of the first and
second rank.
53. FATWA OF A JURISCONSULT and HUKM OF A JUDGE
(a) The Fatwa of a Jurisconsult has a persuasive effect upon the Muslim
community as a whole; while the decision of a Judge (Hukm al-qadhi) is binding upon
the parties in a given litigation;
(b) Fatwa is not binding upon the Judge who sought it. He may or may not
adopt it; whereas judgment of a Judge is binding upon himself. He is bound to obey,
respect and implement his decision.
54. RUKN and SHART
Rukn is the essential elements of a given act which is considered as part of its
essence. The absence of which totally nullifies the act. While Shart is a mere condition
for the validity of an act which absence may not invalidate the act but merely renders
it irregular or voidable. (Bar 1987).
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
An example of rukun is the essential elements of marriage which must be
complied with for its validity as follows:
(a) Legal capacity of the contracting parties;
(b) Mutual consent of the parties freely given;
(c) Offer (ijab) and acceptance (qabul) duly witnessed by at least two
competent persons after the proper guardian in marriage (wali) has given his
consent; and
(d) Stipulation of customary dower (mahr) duly witnessed by two
competent persons.
On the other hand, an example of shart is the condition imposed upon the
mutual consent of the parties which must be freely given. The Muslim Code provides
that a marriage contracted wherein the consent of either party has been vitiated by
violence, intimidation, fraud, deceit, or misrepresentation shall be irregular from its
performance. The said irregular marriage may be made regular upon new contract of
marriage by the parties after the causes for the vitiation have ceased. In such case,
the effect of the new contract of marriage shall retroact to the date of the celebration
of the irregular marriage.
55. A brief historical background of the development of the four Sunni schools
of law.
The development of the Great Imams began on 750 C.E. when the number of
Madhabs decreased into four namely the Hanafi, the Maliki, the Shafi’i, and the
Hanbali Madhabs, due to the state’s preference for some schools over others.
The Hanafee Madh-hab
This Madh-hab is named after its founding scholar, Abu Haneefah, whose
actual name was Nu’maan ibn Thaabit. He was born in the year 702 CE, at Kuhah
(Iraq). He began his earlier studies in the field of philosophy and dialectics known as
ilm al-kalaam, and he also studied Fiqh and hadeeth. He chose as his main teacher,
Hammaad ibn Zayd, who was among the greatest scholars of hadeeth of his time and
studied under him for eighteen years.
19
His teaching method was based on the principle of Shoorah (group
discussion) through presenting a legal problem to his students for debate and
discussion and tell them to record its solutionwhenever they arrived at a unified
position. They became known as the what-iffers or Ahl ar-Ra’I (the opinion people).
The sources of law used by the Hanafee Madh-hab are the Quran, the sunnah,
Ijmaa’ of the Shahaabah, Individual opinion of the Shahaabah, Qiyas, Istihsan and Urf.
The most famous of Abu Haneefah’s students were Zufar ibn al-Hudhayl, Abu
Yoosuf and Muhammad ibn al-Hasan.
The followers of the Hanafee Madh-hab are found mostly in India,
Afghanistan, Pakistan, Iraq, Syria, Turkey, Guyana, Trinidad, and Surinam and to some
extent Egypt.
The Maalikee Mad-hab
The founding scholar of this Madh-hab, Maalik ibn Aamir, was born in
Madeenah in the year 717 CE. His grandfather Aamir was among the major
Shahaabah of Madeenah. Maalik studied Hadeeth under az-Zuhree who was the
greatest hadeeth scholar of his time as well as under the great Hadeeth narrator,
Naari, the freed slave of the Shahaabee Abdullah ibn Umar.
Imam Maalik continued to teach Hadeeth in Madeenah over a period of forty
years and he managed to compile a book containing Hadeeths of the Prophet (saw)
and Athars of the Sahaabah and their successors which he named al-Muwwata ( The
Beaten Path ). Imam Maalik died in the city of his birth in the year 801 CE at the
venerable age of 83.
His teaching method was based on the narration of Hadeeths and the
discussion of their meanings in the context of problems of that day. He used to strictly
avoid speculation and hypothetical Fiqh and thus his school and its followers were
referred to as the people of Hadeeth (Ahl al-Hadeeth).
He deduced Islamic law from the Quran, the Sunnah, Amal (practices) of the
Madeenites, Ijmaa of the Sahaabah, Individual Opinion of the Sahaabah, Qiyas,
customs of the Madeenites, Istislah, and Urf.
The most notable of Maalik’s students were Abu Abdur-Rahmaan ibn al-
Qaasim and Abu Abdillah ibn Wahb.
The followers of this Madh-hab are found mostly in Upper Egypt, Sudan,
North Africa, West Africa, and the Arabian Gulf States.
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
The Shafi’ee Madh-hab
The founder of this Madh-hab is Muhammad ibn Idrees ash-Shaafi’ee. He was
born in the town Ghazzah on the Mediterranean coast of what was then known as
Shaam in the year 796 CE, but traveeled to Madeenah in his youth to study Fiqh and
Hadeeth under Imam maalik. He succeeded in memorizing the whole of Maalik’s
book, al-Muwatta, and recited it to him from memory, word perfect.
Imaam ash-Shaafi’ee combined the Fiqh of Hijaaz (Maalikee thought) with
that of Iraq (Hanafee though) and created a new Madh-hab which he dictated to his
students in the form of a book called al_Hujjah (the Evidence). Imaam ash-Shafi’ee
holds the distinction of being the first Imaam to systematize the fundamental
principles of Fiqh which he recorded in his book called ar-Risaalah.
The sources of law used by the Shafi’ee Madh-hab are the Quran, the Sunnah,
Ijmaa, individual opinions of the Sahaabah, Qiyas, and Istishab.
The most important of Imaam ash-Shafi’ees students were al_Muzanee, Ar-
RAbee and Yoosuf ibn Yahyaa.
The majority of the followers of the Shafi’ee Madh-hab are found in Egypt,
Southern Arabia, Sri Lanka, Indonesia, Malaysia, and east Africa and Surinam in South
America.
The Hanbalee Madh-hab
The founder of this Madh-hab is Ahmad ibn Hambal ash-Shaybaanee, who
was born in Baghdad in the year 778 CE. He became one of the greatest memorizers
and narrators of hadeeth of his time. He studied Fiqh and Hadeeth science under
Imaam Abu Yoosuf, the famous student of Abu Haneefah, as well as under Imaam
ash-Shafi’ee himself.
His teaching method consisted of dictating hadeeths from his vast collection
known as al-Musnad.
The Sources of Law used by the Hanbalee Madh-hab are the Quran, the
Sunnah, Ijmaa of the Shahaabah, Individual opinions of the Sahaabah, Hadeeth
Da’eef, and Qiyas.
Imaam Ahmad’smain students were his own two sons, Saalih and Abdullah.
Imaam Bukharee and Muslim, compilers of the most outstanding collections of
20
Hadeeth, were among the great scholars of hadeeth who studied under Imaam
Ahmad.
The followers of this Madh-hab are found in Palestine and Saudi Arabia.
*Among the five (5) standard works of the four Sunni schools of law are:
(a) Hidayah of Nu’man ibn Thabit, also known as Imam Abu Hanifa;
(b) Al-Muwatta (The Beaten Path) of Imam Malik ibn Anas ibn ‘Amir;
(c) Al-Umm (The Essence) of Muhammad ibn Idrees ash-Shafi’i;
(d) Ar-Risalah of Muhammad ibn Idrees ash-Shafi’i;
(e) Al-Musnad Al-kabeer of Ahmad ibn Hanbal ash-Shaybane.
56. Reasons for Conflicting Rulings of the Madhabs:
Although the Imams of the four major Madhabs were all agreed on the
primacy of the four fundamental principles of Islamic law (the Qur’an, the Sunnah,
Ijma and Qiyas), certain differences have occurred and still exist among the rulings
of their Madhabs.
(A) Interpretation of word meanings and grammatical constructions;
Varying rulings arose from differences in interpretation which were
themselves attributable to variations in word meanings (shared, literal, and
figurative) and grammatical constructions (e.g. Qur’, Lams and elaa).
(B) Narrations of Hadith (availability, authenticity, conditions for
acceptance, and interpretation of textual conflict);
In the application of Hadiths, a variation of legal rulings occurred depending
on the degree of availability of the Hadiths, their authenticity, the conditions imposed
for their acceptance and the methods of resolving textual conflicts.
(C) Admissibility of certain principles (Ijma, customs of the Medinite,
Istihsan, and opinions of the Sahabah); and
Some Imams evolved certain secondary legal principles and made rulings
based on them. Both the principles and the rulings were rejected by other Imams (e.g.
Istihsan and Ijma of the Medinites).
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
(D) Methods of Qiyas.
The secondary principle of Qiyas was generally accepted, but the rules
governing its deductive procedures varied among Imams resulting in a variation in
their rulings on similar issues.
57. ISLAMIC LEGAL MAXIMS
A) Necessities or Darurah make forbidden things canonically harmless. (Al
dharura attubihal mahzurat). This means that necessity renders prohibited things
permissible. Examples are eating flesh of pork when you’re starving and no food is
available other than pork; and drinking wine when it is for medicinal purposes.
This is based on the Quranic verse which states that “If one is forced by
necessity, without willful disobedience, not transgressing the limits, then he is
guiltless.
B) When confronted by two evils, choose the lesser evil. This implies that,
when you are confronted by two evils, choose the lesser one or when a state of
emergency, the less harmful act may be done to avoid a severe one. The examples
are to destroy a house to prevent fire from spreading and causing more destruction;
and to jettison some cargoes in order to lighten the vessel and prevent it from
capsizing in order to save lives.
This based on what the Quran says “ On no soul that God place a burden
greater than it can bear”.
C) Hardship or mashaggah causes the giving of facility. (Almashaqqah
tujlab/tajlub altaysir). This means that difficulty mitigates liability. An example of this
is stealing fruits from an orchard because of hunger.
This is based on what the Quran provides” God intended every facility for you.
He does not want to put you into difficulties”.
D) When receiving a thing is forbidden, the giving of it is also forbidden. An
example of this is receiving a bribe is forbidden, so the giving of it is also forbidden.
21

E) Lawfullness is a recognized principle in all things. (Al-Aslu fil-ashyaa’ al-

ibaha). It means that everything is permissible in the absence of a text prohibiting it.
This may apply to things that bring benefits because killing without justification or
fornication is prohibited.
F) The one who gains is the one who loses. An example of this is that those
heirs who can inherit in case of death of a person are at the same time liable to
support the latter.
c) Rules that are not mentioned in the Qur’an but are found in the earlier
scriptures. There is no dispute that these are not binding on us.
d) Rules that are mentioned in the Qur’an and Sunna but there is no evidence
whether or not they are to be followed. The example given by some jurists under this
heading is that of Qisas (retaliation). There is, however, ample evidence in the texts
that it is binding on us.

G) A sharia’h rule based upon a cause survives or ceases with it. It means 59. Comparison between the civil law system and the Islamic law system.
that the rule based on Maslaha or custom applies so long as the maslaha or custom
The fundamental differences between Civil law and Islamic law as pointed
exists. However, when the custom changed or the maslaha ceased to exist, the rule
out by Mahmassani are:
also ceased or changed.
(a) In Civil law, women were under perpetual tutelage. They were not
H) Innocence is presumed to be the original state. (Al-aslu baraa’ah ad- empowered throughout their lives to deal with their property without the permission
dhimmah). It means that a person is free from liability till proven otherwise. of their guardians; The Shariah, on the other hand, recognizes in principle the
complete capacity of women to perform all kinds of lawful transactions.
(b) The dowry in Civil law was a payment to the husband by his wife or one of
I) Harm must be eliminated (ad-dararu yuzal). It means that all harmful
her family; while in Muslim law, the payment is to the wife by the husband.
should be forbidden or at least avoided. Anything that leads to harm can be avoided
(c) Adoption is an accepted institution in Civil law. However, Shariah does
too.
not recognize adoption.
(d) Formalism and compilation were evident in civil contracts and in Civil rules
58. Kind s of revelations of the Prophets sent prior to Prophet Muhammad saw
of procedures; In contrast, it is a maxim in the Shariah that effect is given to the
still applicable or binding upon us.
intention and the meaning and not to words and forms.
(f) The transfer of debt was illegal in Civil law; but in Islamic law it is
The Kinds of revelations of the Prophets sent prior to Prophet Muhammad
sanctioned by all schools of jurisprudence without exception.
saw that are still applicable or binding upon us are as follows:
(g) There are distinct differences between the two systems in questions of
inheritance and wills. In Civil law for example, wills were originally instituted for the
a) Rules that have been found repeated in the Qur’an or the Sunna and made
purpose of appointing the heirs; whereas In the Shariah, a bequest (in a will) to an
obligatory. These texts themselves provide the evidence about the binding nature of
heir which exceeds the disposable one-third is void, unless ratified by the existing
the laws and we do not have to refer to the earlier scriptures. These laws are binding
heirs of the decedent at the time of his death.
on us just as they were binding on the earlier nations. Example, fasting in the month
(h) The rules of pre-emption and family waqf (endowments) have no parallel
of Ramadan.
in Civil law.
b) Rules that have been described in the Qur’an or in the Sunna, but are
considered abrogated. Rules about carrion, blood, flesh of swine and the like.
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
22
60. Difference between God’s Law and Man’s Law.
(a) GOD’s LAW is divinely ordained; while MAN’s LAW is the product of the
human mind.
(b) The principles of law and its structure framed by GOD are to do complete
justice in a unanimous way with unified principles; whereas MAN’s LAW doesn’t have
the unified principles as that of GOD’s LAW.
(c) GOD’s LAW embraces all human actions, which strictly is not law in the
modern sense but might be regarded as guide to moral conduct; however, MAN’s
LAW is confined and limited to acts and rights that have particularly legal implications
without regard to moral implications.
(d) GOD’s LAW rules encompass both human actions in this world and their
implications in the hereafter; In contrast, MAN’s LAW is confined to establishment of
law and order in this world.
(e) Both Laws have common goals such as the protection of religion, life,
intellect, offspring and lineage, wealth or property, and honor.
61. M, a Muslim died leaving a property, which included a private cemetery. It
appears that his children converted the lot into a memorial park by permitting the
bodies of strangers to be buried there for sale or lease of the graves.
(A) Is it permissible according to Muslim jurisprudence to divide and
distribute incomes from such cemetery among the heirs?
Yes. It is permissible to divide and distribute incomes from such cemetery
because though they converted it into a memorial park, it still constitutes as private
property. Thus, it will be among the estates of the deceased.
(B) Will it make any difference under Muslim jurisprudence given the fact
that the property was formally appropriated as a waqf by M?
Yes, it makes difference because a Waqf is irrevocable, permanent and
inalienable. It is a property vestS in God. Hence, it cannot be converted by the heirs
of the deceased into other means that works on their personal benefit.
(C) Does the cemetery constitute a communal property under the provision
of the P.D. 1083?
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
Yes, a cemetery constitute a communal. The Muslim Code provides that,
ancestral property shall comprehend hallowed ancestral plot, ancestral shrine, royal
court, and similar properties constitutes communal property.
Cemetery is an ancestral shrine. Thus, it constitutes a communal property.
62. a) For purposes of administration of P.D. 1083, who is considered a Muslim?
The Code of Muslim Personal Laws of the Philippines defines Muslim as a person
who testifies to the oneness of God and the Prophethood of Muhammad and
professes Islam.
b) Does the Code of Muslim Personal Law apply to all Muslims whether they
are by birth or by conversion?
Yes. Muslim Personal Law applies to all Muslims. The Code does not make a
distinction on the application of the Code as to a Muslim by birth and a Muslim by
conversion.
However, in cases of marriage by Muslim male by birth with a non-Muslim
female not solemnized in accordance with the Muslim Law, the governing law
between them shall be the Civil Code of the Philippines. As to the marriage of the
Muslim converts which was solemnized not in accordance with Muslim Law, their
conversion to Islam shall have the legal effect of ratifying their marriage as if the same
had been performed in accordance with the provisions of the Muslim Code, provided
there is no legal impediment to the marriage under Muslim Law.
c) What are the effects of the change of religion by non-Muslims to Islam
under P.D. 1083?
The following are the effects of the change of religion by a non-
Muslim to Islam are as follows:
(a) The registration of a person’s conversion to Islam shall constitute
a prima facie proof that he professes Islam and whoever dispute
this fact shall have the burden of proving the contrary; and
(b) The conversion of non-Muslim spouses to Islam shall have the
legal effect of ratifying their marriage as if the same had been
23

performed in accordance with the provisions of the Muslim Code, c) What branches of Muslim laws are included within the scope of Muslim
provided there is no legal impediment to the marriage under Personal Laws?
Muslim Law.
Muslim Personal Law includes all laws relating to personal status, marriage and
divorce, matrimonial and family relations, succession and inheritance, and property
63. a) Enumerate the sources of the Code of Muslim Personal Laws of the
relations between spouses, as provided for in this Code.
Philippines.
64. a) How is ‘adat proven as a source of Muslim law?
The sources of the Code of Muslim Personal Laws of the Philippines are the
following: The Muslim code provides that Muslim law and ada not embodied in this code
shall be proven in evidence as a fact. No ada which is contrary to the Constitution of
a) The Qur’an; the Philippines, this Code, Muslim law, public order, public policy or public interest
b) The Sunna; shall be given any legal effect.
c) Ijma;
d) Qiyas;
b) What is the weight of authority of standard works on Muslim law before
e) Istihsan; our Shari’ah Courts?
f) Istislah;
g) Istidlal; Standard treatises and works on Muslim law shall be given persuasive weight
h) Istishab; in the interpretation of Muslim Law by the Shari’ah Courts.
i) Customary Law (Urf); and 65. A. Give the reasons and explain why the shares of one man are equal to the
j) The Constitution of the Philippines shares of two women in inheritance (Mirath).

b) State the “conflict of provisions” rule under P.D. 1083. Among the reasons are:

The rules on conflict of provisions are as follows: (a) Man has more responsibility than the woman. He is the one in charge to
guard his sister in the absence of their father;
(1) In case of conflict between any provisions of this Code and laws of general (b) Man is the one who will give mahr while woman is entitled to receive
application, the former shall prevail. mahr; and
(2) Should the conflict be between any provision of this Code and special (c) Man is obliged to support his sister in case she is already divorced or
laws or laws of local application, the latter shall be liberally construed in widowed in the absence of their father.
order to carry out the former.
(3) The provisions of this Code shall be applicable only to Muslims and
nothing herein shall be construed to operate to the prejudice of a non-
Muslim.
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
24
B. Give and explain the justifications why the decedent’s son is preferred
over the decedent’s father in a residual succession.
The reason behind preferring the son over the father in a residual succession
are:
(a) The father is obliged to support his son. So, he must give more privilege to
his son than his father.
(b) The son is the one responsible to his father in case the father grows old.
C) Explain the doctrines of ibaha (tolerance of the law-giver) as it relates
to the exercise of the principle of Al-Siyasa al-Shariyya.
The original principle in Islamic law and jurisprudence is permissibility which,
states that everything is permissible unless legal evidence prohibits it. This principle
implies that whatever is not mentioned expressly in the text of the Qur’an and the
Sunna, and which cannot be dealt with through analogy is permissible, that is, it
belongs to the category of Mubah.
D. Give five (5) instances wherein polygamy is justified under Islamic law
and jurisprudence, and/or considered lawful within the scope of its
interpretation?
Among the instances that gives justification wherein polygamy is considered
lawful under Islamic law are the following:
a) Wife is barren or cannot bear an heir;
b) Wife is incurably ill or suffers incurable disease;
c) There is mutual consent of wife and husband;
d) In case of war resulting in more orphans and widows, or more women than
man; and
e) In case the husband will fall into committing illicit sexual relationship if not
permitted to marry subsequently.
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
66. The Holy Qur’an contains 114 Chapters (Surah) and Muslim jurists have
classified or categorized them into five (5) categories or subject matters.
What are these five categories or subject matters? Discuss each briefly.
The orders or injunctions in the Qur’an can be classified in the following
groups:
A. Instructions regarding prayers and worship. There are about 140 ayats in the
Qur’an on devotional matters such as salah, zakat, siyam and hajj.
B. Fundamental principles regulating relations between (man and man) men
which according to some scholars are stated, in about 500 verses of legal
injunctions grouped as under:
1) Laws relating to the protection of Islamic faith such as
Jihad, etc.;
2) Laws dealing with family life such as marriage,
polygamy, dower, maintenance, rights and obligations
of spouses, divorce and various modes of dissolution of
marriage, iddah, fosterage, paternity, inheritance, etc.,
they are laid down in about 70 injunctions;
3) Laws of transactions such as contracts, sales, loans,
deposit, weights and measurements, etc., also laid
down in 70 injunctions;
4) Penal laws laid down in about 30 injunctions; justice and
equity, jurisdiction and procedure in 13, human rights
and constitutional law in 10, international relations in
25, and law of war and peace, and economic and social
order in 10.
25
67. a) Who were the four (4) rightly Guided Caliphs? Discuss briefly their
respective contribution in the propagation of Islam.
The four rightly guided Caliphs are (1) Abu Bakr “Al-Siddiq” ibn Uthman, (2)
Umar ibn Al-Khattab, (3) Uthman “Al-Nurayn” ibn Affan, and (4) Ali ibn Abu Talib.
The righteous caliphs are known for relying heavily on decisions by Ijma as
well as Ijtihad in dealing with numerous new problems after the death of the Prophet
(pbuh), on matters which specific provisions cannot not be found in the Shariah. In
the course of their extensive use of Ijma and Ijtihad, these caliphs established
procedures which later became the basis for legislation in Islam, the Fiqh.
Moreover, Caliph Abu Bakr is believed to be the first to establish prisons for
the malefactors; while Caliph Umar initiated the appointment of the first Qadi, set up
a formal Baitul mal and introduced the Hijra calendar. The standardization of the
Qur’an is considered one of the most important services of Caliph Uthman to Islam
and the Muslim; and Caliph Ali systematically defined the powers and jurisdiction of
Qadis, for the first time.
b) Who among the four (4) rightly Guided Caliphs had memorized the Holy
Qur’an? Cite historical fact in support of your answer.
All four rightly Guided Caliphs have memorized the Qur’an. The texts of the
Holy Qur’an during the lifetime of the Prophet had been preserved either in memories
of the companions, or by being inscribed on bones, date leaves and tablets of stone.
The 4 rightly guided Caliphs are among his principal companions of the
Prophet (pbuh) and they are among the scribes. Hence, it is believed that all of them
have memorized the Qur’an.
One of the signs for Abubakr RA was during the prayer with Prophet
Muhammad saw wherein it was said that he was the one rectifying the Prophet
(pbuh) whenever the Prophet failed to recall.
“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-
68. Explain the following terms:
a) Kharidjites
The word “Kharaju”, from which the kharaji is derived, means “to withdraw”
and therefore Kharidjites were seceders who believe in active dissent or rebellion
against a state of affairs they considered to be gravely impious. They believed that a
person or a group who committed a grave error or sin and did not sincerely repent
ceased to be Muslim. They also believed that any Muslim, regardless of ethnic
background or social status could become ruler, provided he or she satisfied the
conditions of piety.
b) Murijites
Murijites were the other dissenters who were also called outside the limits.
They are the followers of the early Islamic school Murji’ah. They advocated the idea
of deferred judgment of people’s belief. They hold that only God has the authority to
judge who is a Muslim and who is not, and that Muslims should consider all other
Muslims as part of the community. They believed Muslims committing grave sins
would remain Muslim and be eligible to paradise if they remained faithful. They
declared that no Muslim would enter the hellfire no matter what his sins are.
c) Mutazilites
Mutazilites, literally means those who stand apart, they are philosophical
school of thought commonly called rationalism, as they associated themselves from
extreme views of faith and infidelity. Mutazilites called themselves “champion of
God’s unity and justice”. Among its more notable principles were the beliefs that
Allah was everywhere, the belief that the Qur’an was created and only its meaning
were divine, that Allah would not be seen by the people of Paradise, that man has
free will without divine interference, and the one who commits a major sin enters a
state between belief and disbelief.
d) Shi’ites
26

Shi’ites or Shi’a, whose name was drawn from Shi’at Ali (partisans of Ali),
literally means sect as the word Shii conveys a sense of a sectarian, believed that in
political succession the family of the Prophet should be given priority over any other
Muslim. They argued that Ali, the Prophet’s cousin and son-in-law, should have been
his immediate political successor. Thus, All political leadership of the community
should have remained within the Prophet’s family (Ahlul Bait). Among the doctrine of
Shi’ites is that their Imam (political and spiritual leader) is infallible and he has the
ability to know the Ilmul ghaib (hidden knowledge).
e) Sunnaties
Muslim Law are forbidden and demand unconditional punishment were to remain
prohibited;
c) Where the provisions of the law on certain subjects were too complicated
for a code, only the fundamental principles were to be stated and the details left to
the judges for proper implementation;
d) No percept, fundamental though it might be, was to be incorporated inthe
code where it appeared to be contrary to the principles of the constitution of the
Philippines; and

Sunnaties or Sunni is a broad term derived from Sunna, means “habit” or e) No percept was to be included unless it was based on the principles of
“usual practice”. The Muslim usage of this term refers to the sayings and living habits Islamic law, as expounded by the four orthodox school.
of Muhammad. In its full form, this branch of Islam is referred to as Ahl al-Sunna wa
Jama’ah which literally means the “People of the Sunna and the Community”. People
claiming to follow the Sunna, who can demonstrate that they have no action or belief
against the Prophetic Sunna, can consider themselves to be Sunni Muslims. They
believe that Muhammad did not appoint a successor to lead the Muslim Ummah
before his death. Sunni Muslims regard the first four caliphs as the rightly guided
caliphs.

*Give the five (5) principles adopted by the Philippine Muslim code commission
in the codification of the Code of Muslim Personal Laws of the Philippines (P.D.
1083).

The five (5) principles adopted by the Philippine Muslim code commission in
the codification of the ode of Muslim Personal Laws of the Philippines (P.D. 1083) are
as follows:

a) Of the Islamic legal system, which is considered complete comprising civil,

criminal, commercial, political, international and purely religious laws, only those that
are fundamentally personal in nature were to be codified;

b) Of the personal laws, those relative to acts the practice of which are
absolute duties under Muslim law were to be included and those which according to

“It is Allah’s mercy that HE made you a Muslim. Prove that you are worthy of HIS Jannah”.
-Chrysanthemum-