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    Sharia 1 Notes (Islamic Law)

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    Abbyr Nul
    The document provides an overview of Islamic law (Shariah) including: 1) It discusses the five primary schools of Islamic jurisprudence - Hanafi, Maliki, Shafi'i, Hanbali, and Zahiri. 2) It outlines the sources of Shariah including the Quran, hadiths, scholarly consensus (ijma) and analogy (qiyas). 3) It describes the historical development of Islamic law from the legislative period during the Prophet's lifetime to the establishment of legal schools of thought.

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    Sharia 1 Notes (Islamic Law)

    Uploaded by

    Abbyr Nul
    1K views8 pages
    The document provides an overview of Islamic law (Shariah) including: 1) It discusses the five primary schools of Islamic jurisprudence - Hanafi, Maliki, Shafi'i, Hanbali, and Zahiri. 2) It outlines the sources of Shariah including the Quran, hadiths, scholarly consensus (ijma) and analogy (qiyas). 3) It describes the historical development of Islamic law from the legislative period during the Prophet's lifetime to the establishment of legal schools of thought.

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    The document provides an overview of Islamic law (Shariah) including: 1) It discusses the five primary schools of Islamic jurisprudence - Hanafi, Maliki, Shafi'i, Hanbali, and Zahiri. 2) It outlines the sources of Shariah including the Quran, hadiths, scholarly consensus (ijma) and analogy (qiyas). 3) It describes the historical development of Islamic law from the legislative period during the Prophet's lifetime to the establishment of legal schools of thought.

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    Download as docx, pdf, or txt
    1K views8 pages

    Sharia 1 Notes (Islamic Law)

    Uploaded by

    Abbyr Nul
    The document provides an overview of Islamic law (Shariah) including: 1) It discusses the five primary schools of Islamic jurisprudence - Hanafi, Maliki, Shafi'i, Hanbali, and Zahiri. 2) It outlines the sources of Shariah including the Quran, hadiths, scholarly consensus (ijma) and analogy (qiyas). 3) It describes the historical development of Islamic law from the legislative period during the Prophet's lifetime to the establishment of legal schools of thought.

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    of 8

    LECTURE NOTES IN SHARIAH-I

    Shariah (Islamic Law)

    Shariah-1
    - Customary Laws
    - Persons and Family
    Relations
    - Islamic Fiqhihi
    (Jurisprudence)
    Shariah -2
    - Wills and Succession
    Introductory (Shariah-1)
    There were 6 Legal Systems, only 5
    survived:
    1. Hindu
    2. Chinese
    3. Roman Legal System
    4. Angelican(English Legal System)
    5. Islamic Law (Shariah)

    Civil Law/Roman Law (aka Common


    Law)- made by Legislators
    - Rule of social conduct
    - Usually accompanied by a
    sanction
    - Man made
    - Product of court decisions
    Sources: stare decisis (Case Laws), book
    of authorities

    Roman Legal System


    Angelican(English Legal System)
    -These two are man made
    Shariah (Islamic Law)
    -Divine Origin
    -intervening in the form of a
    communication (Kitab)
    -its Gods authorization or prohibitions
    concerning human actions of capable
    persons Muqallaf (of legal age)
    -said to be influenced by Roman Law
    -but in reality , never really influenced
    because the Arabs have their laws (eg
    Southwest Arabian, International trade,
    personal laws)

    What are the similarities between


    Roman Laws and Islamic Law

    1. Burden of Proof (Plaintiffs)


    2. Age of Majority RL- 12, 14
    IL 12+, 15
    3. Sale and Barter RLIL

    Differences
    Note: Dowry is a general term
    Dowry/Dower, usually
    Man to Woman
    1.
    2.
    3.
    4.

    Roman Law: Woman-> Man


    Islamic Law: Man -> Woman
    Muslim Code
    Dowry RL: Woman may petition
    by renouncing dowry
    IL:

    5. Death
    6. Adoption
    RL: allowed
    IL: no such thing as adoption
    7. Transfer of Bequest

    LECTURE NOTES IN SHARIAH-I

    What is Shariah
    Literally: Path binding to water
    or sources of life
    Solis: way of good life
    Legally: whole system of law of
    Islam
    the totality of divine
    commandment
    (2 Objectives) 2 Categories of
    Shariah
    1.) To regulate the relation between
    ALLAH and Slaves- His creations
    -

    Ibadah: ritual worship


    Ibadat:

    2.) To regulate the relationship


    between man and man
    - Muamalat or Human
    Transactions
    Note: Alim- singular
    Ulama- plural
    Ustadz- singular
    Asatidz- Plural
    Faqir - jurists
    -singular
    Fuqaha-plural
    Later Jurists/Fuqaha (Categorical
    Muamalat)
    5 BRANCHES OF SHARIAH
    a. IBADAT devotion to the 5 pillars
    of Islam
    b. ITIQADAT- 6 articles of faith
    c. ADAB Islamic Ethics on Excellence
    d. MUAMALAT- Human transactions
    -aspect of family
    relations
    -commercial
    transactions
    - law on marriage

    e. AL UQUBAT WAL HUDUD- criminal


    law and punishment (ART 181-185
    Specific Transactions)

    Bequest by Operation of Law


    Inheritance: non-muslims
    -it is the law that gives
    them...
    The whole field of human action
    -acts
    -thoughts
    Note: Bidah- innovation
    Diya- blood money

    1. Sharia limits that impulse of


    getting everything
    2. Share wealth
    Note: Hukuk/Wajibat
    - Rights and Obligations
    - To act in a prescribed
    manner
    CLASSIFICTAION OF RIGHTS
    1. Rights of God (Hukuk ALLAH)
    2. Rights of Man (Hukuk Ibad)
    3. Common Rights
    3.1 common wherein Gods rights
    prevails
    3.2 common where rights of men
    prevails
    RIGHTS OF GOD
    Acts of Devotion (5 pillars, 6
    articles)
    OBLIGATIONS
    Imposed by Law: Toward God
    Toward Man

    LECTURE NOTES IN SHARIAH-I

    a. Practicing of Religion
    b. What are your obligations to
    your parents
    c. Those derived from family
    relations
    (side notes: in case of adultery
    fornication, Rights of God prevails,
    because public is at stake and it might be
    a precedent)

    DONT DO IT: neither


    punished, nor rewarded
    5. HARAM prohibited
    DO IT: youre Punished
    DONT DO IT: REWARDED
    FIVE (5) SCHOOLS OF THOUGHT
    (accrdg to my notes)

    Note: Miskin poor


    Faqir- destitute (very poor, din a
    kaya)

    1.) HANAFI
    2.) SALAFI
    3.) SHAFII
    4.) MALIKI

    AVOWAL
    2 forms of DIVORCE
    1. TALAQ
    2. JUDICIAL DECREE
    CLASSIFICATION OF LEGAL RULE
    (Hukum Shariah)
    (1)Mandatory (Taklif) imposes
    duties/obligations
    (2)Declarative (Wadi)
    1. WAJIB (Fard)- obligatory
    DO it: youre rewarded
    DONT do it: youre
    punished
    2. MANDUB/SUNNAH
    desirable
    DO it: rewarded
    DONT DO IT: not punished
    3. HUBAH permissible
    DO IT: may or may be
    done
    DONT DO IT: Not
    punished
    4. MAKRUH abominable
    DO IT: youre punished

    (source Wikipedia)

    2.1.1 Schools of Sunni jurisprudence


    o

    Hanafi

    Maliki

    Shafii

    Hanbali

    hir

    1) The Hanafi school of


    thought: The founder is
    the Persian scholar Imam
    Abu Hanifah al-Numan
    ibn Thabit (AD: 699-767).
    His school of thought is
    practiced widely in
    Southeast Asia, Central
    Asia, the Caucasus, the
    Balkans and Turkey. The
    majority of Sunni Muslims
    practice the Hanfi
    jurisprudence.
    2) The Shafii school of
    thought: The founder is
    Abu Abdullah Muhammad
    Ibn Idris al-Shafii known

    LECTURE NOTES IN SHARIAH-I

    as Imam Al-Shafii (AD:


    767-820). Imam al-Shafii
    is also known as the First
    Among Equals for his
    exhaustive knowledge and
    systematic methodology
    to religious science.
    Adherents of this sect are
    mainly from the Middle
    East.
    3) The Maliki school of
    thought: The founder is
    Malik Bin Anas (AD: 711795). Its adherents are
    mostly from North Africa,
    United Arab Emirates, and
    parts of Saudi Arabia.
    4) The Hanbali school of
    thought: The founder is
    Imam Ahmad Ibn Hanbal
    (AD: 780855). The
    Hanbali jurisprudence is
    considered very strict and
    conservative. The Hanbali
    school of jurisprudence is
    practiced mainly in Saudi
    Arabia, Qatar as well as in
    parts of Syria and Iraq
    End of Wikipedia info
    Declarative Rule
    Killing- The cause of imposing
    punishment is the cut or killing
    itself
    (as long as not contrary to the Phil.
    Constitution)

    3. Ijma- consensus of
    Scholars/Community
    4. Qiyas- Reasoning by Analogy
    SECONDARY
    1. Istihsan (Juristic Preference)
    2. Istislah (Public Interest or
    Welfare)
    3. Istishah (by Presumption)
    4. Urf Adat (customs)
    Personal Laws of Muslims
    -Shariah Goals
    Spiritual
    o imposing limitations
    o man is not satisfied (greedy)
    o At the expense of another
    Rights and Obligations

    Shariah (Islamic Law)


    Fiqh Islamic Jurisprudence refers to
    the process of deriving Shariah norms
    from the Shariah sources (eg Qur-an,
    Sunnah, Ijma,Qiyas and other
    Suppletory Sources)
    Istisah
    Istisan
    IStishab, urf

    SOURCES OF SHARIAH (Islamic Law)

    SHARIA vs. FIQH

    PRIMARY

    Shariah
    -covers all human
    acts
    -both spiritual and
    human transcation
    (muamalat)

    1. Holy Qur-an- Muslims Holy


    Scripture
    2. Sunnah- Actual Practice of
    Prophet Muhammad (S.A.W)

    Fiqh
    -veers only with
    legal acts
    -muamalat of
    muqalaf only

    LECTURE NOTES IN SHARIAH-I

    - divine ilm
    -destination (here
    and hereafter)

    - judicial inference
    of legal experts
    -temporal remedies
    / punishment

    HISTORY OF DEVELOPMENT OF ISLAMIC


    LAW
    First Period LEGISLATIVE PERIOD

    Note:

    Obligations- Wajibat (what the law


    imposes)

    -revelations
    -divine legislation
    -Prophetic (pbuh)s lifetime
    -different aspects were outlined
    -explained by traditions
    -referred into him for ruling

    3 RIGHTS

    Second Period

    Rights- Hukob (by Compelling to act in


    prescribed manner

    1. God
    2. Man
    3. Mixed
    1. Dominant (Gods) when?
    2. Dominant (Mans) when?

    SOURCES OF SHARIAH
    PRIMARY (Qur-an; Sunnah)

    -Four Rightly Guided Caliphs


    1.) Abu Bakr
    2.) Omar
    3.) Uthman
    4.) Ali
    -Major Contributions
    Abu Bakr
    Advised by Ibn Kathab to
    compile the revelations
    Zaid Ibn Thabit- compiler
    Omar

    SECONDARY (ijma (consensus,


    unanimity); Qiyas (analytical)

    Preserving authentic copy of


    Qur-an
    Founder of Islamic State
    Initiated first Qadi/Judge

    SUPPLETORY (Istihsan; Istislah; Istishab)


    1. Sunnah Al Qawliqyali statements
    2. Sunnah Al Filiyah Deeds
    3. Sunnah Al Taqriniyah tacitly
    approved by the Prophet (eg
    withdrawal method)

    Ali
    Defined powers of Qadi

    Note: Supplementary
    1. Istihsan (Juristic Preference)
    2. Istislah (Public Interest or
    Welfare)
    3. Istishah (Presumption of
    continuity)
    4. Urf Adat (customary laws)

    Third Period
    Um Ayyats (ottoman empire) period of
    companions and successions of the
    Prophet

    LECTURE NOTES IN SHARIAH-I

    Influenced administration of laws


    Bidh (innovative practices)

    Seventh Period
    -after the abolition of caliphate
    -1982

    Fourth Period
    Abbassid Caliphate
    -great justice of Islam
    (4 Madhalib)
    (5 great schools of thought)
    Ano ba talaga, 5 or 4 schools of thought?
    Tsk!

    BOOK-I
    -general provisions
    -why include of the Phils
    -domiciled
    -does not include transient

    FOUR MADHALIB (schools of thought)

    HISTORICAL BACKGROUND

    1. HANAFI2. MALIKI
    -

    Iraq
    Qur-an as BASIS
    Istihsan
    Multitude
    First to rule on Qiyas
    Madina
    Traditionalist
    Honesty (kahit isa lang)

    3. SHAFII - Egypt
    - Moderation and judgment

    4. HANBALI
    -very traditionalist
    - fundamentalist
    -pinag aaralan ang
    background ng transmitters
    Fifth Period
    -period after the fall of Baghdad
    -muhajirins they followed the views of
    original followers
    Sixth Period
    -period of the Muqalidin
    -followers of 4 schools of thought
    -age of the commentators

    -Hijri
    -Mecca to Madina 710 A.H.
    Various Laws were passed
    (1)RA 394- June 18, 1949
    -recognizes absolute divorce
    Good only for 20 years
    (2)ART 79/ RA 386 (Civil Code 08-301950)
    - Recognized here again but
    only for 20 years more so
    1950 + 20 years, 1970
    - Recognized mixed
    marriages
    - 1970 another law RA 6268
    + 10 years so up to year
    1980 na
    - From 1980 to present ->
    PD 1083 (muslim code of
    the Philippines
    Note: Muslim Code preceded Family Code
    Muslims have already their personal laws
    Thus
    If >
    Man- Non-Muslim
    Mrs- Muslim
    Governed by: CIVIL CODE
    If >

    LECTURE NOTES IN SHARIAH-I

    Man- Muslim
    Mrs- Non-Muslim

    may be Governed by:


    Permissive to use CIVIL CODE- so not
    allowed ang divorce

    cannot be fully practiced


    the vow of celibacy
    To avoid committing
    celibacy, zina, adultery,
    fornication

    REQUISITES:
    P.D. 1083 Muslim Code of the Philippines
    > legacy of President Marcos
    > Sec. 12, Art III of 1987 consti (basis)
    >Local Govt Code
    >Shariah District Courts/Shariah Circuit
    Courts
    >Juris Consul
    >Special Rules of Procedure of Shariah
    Courts
    >In case of conflict between PD 1083
    and RA 394, it shall be liberally construed
    to give fair and reasonable interpretation
    with respect to the objects and ....

    Physically fit
    Capability to support family

    PURPOSE OF MARRIAGE:

    Pro creation or to establish a


    family, Chap. 4, verse 1 Holy Quran
    To protect chastity and moral
    excellence, chap. 2, v. 187; chap.5,
    v.5
    To sustain mental peace and
    tranquillity

    Note:
    In case of indigenous people (those
    muslim ones, in case of conflict between
    their own Indigenous Act and Muslim
    Code, liberally construed to interpret
    Muslim Code.
    BOOK-II
    Persons and Family Relations
    Legal Capacity
    Juridical Capacity fitness
    -inherent
    -lost only through death
    Capacity to Act- the power to do
    acts with legal effect
    Note: what are other differences of these
    two?
    MARRIAGE IS A SUNNAH ACT (desirable
    act)

    August 22, 2015 last meeting before


    midterms
    Family Code preceded Muslim
    Code
    Marriage is a Sunnah (desirable
    act)
    Consent of both parties is
    essential
    Marriage is both religious and a
    secular obligation.
    LEGAL CONSEQUENCES OF MARRIAGE
    1. Makes lawful the sexual
    relationship between man and
    woman
    2. Man is entitled to dower
    Note: 2 forms of dissolution of marriage
    in Islam
    1. DEATH

    LECTURE NOTES IN SHARIAH-I

    2. DIVORCE
    ART 15, PD 1083

    Rukn- essential element


    Shart- essential requisite

    Doctrine of Option of Puberty

    -khayr al bulugh
    1. To be exercised within 4 years after
    attaining the age of puberty to be
    done either H or W
    2. No consummation of marriage
    3. Wali is other than the F of FF.

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