2Difference between Religion and Shraih Shraih is the moral code and religious law of Islam.Sharia deals with many topics addressed by secular law, including crime, politics and economics, as well as personal matters such as Marriage, Foods, prayer, and fastingThe sharia is characterized as a discussion on the duties of Muslims based on both the opinion of the Muslim community and extensive literature
3Primary sources of Islamic law: The principles set forth in the Quran,The example set by the Holy prophet Muhammad in the Sunnah.Secondary SourcesIslamic jurisprudence interprets and extends the application of sharia to questions not directly addressed in the primary sources by including secondary sources.These secondary sources usually include the consensus of the religious scholars embodied in ijma, and analogy from the Quran and Sunnah through Qiyas.Shaitee jurists prefer to apply reasoning ('aql) rather than
4Major schools of fiqMajor schools of Sunni fiqh, which include the Hanafi, Shafi'i, Maliki and HanbaliThe Salafi movement also looks to the actions and sayings of the first three generations of Muslims for guidance, in addition to the Quran and Sunnah,
5Cont… In Imami-Shi'i law, the sources of law (usul al-fiqh) The Quran, anecdotes of Holy prophet Muhammad's practices and those of The Twelve Imams, and the intellect ('aql).Most Shia Muslims follow the Ja'fari school of thought
6Modern Perspectives Secular Muslim states: Kazakhstan and Turkey Religious interference in state affairs, law and politics is prohibitedThe role of sharia is limited to personal and family matters.
7Blended sources of lawPakistan, Indonesia, Egypt, Sudan, Morocco and Malaysialegal systems strongly influenced by shariaultimate authority to their constitutions and the rule of lawIn these countries, politicians and jurists make law, rather than religious scholarsSignificant differences is noted when compared to classical sharia
8Classical Shraih or Theocracy Saudi Arabia and some Gulf states do not have constitutions or legislaturesRulers have limited authority to change lawsLaw is based on sharia as it is interpreted by their religious scholarsIran shares some of these characteristics, but also has a parliament that legislates in a manner consistent with sharia
9Some terms Consensus = Ijma Analogical deduction = Qiyas Preference = Istehsanal-maslaha al-mursalah, which means social benefitCommon practice = urfTaqlid = as was said before
10Out Line Concept From Quran,Caliphat and Fiqah Needs and limitations LiteralIn FiqahFrom Quran,Caliphat and FiqahNeeds and limitationsPractice of IjtehadBy IndividualBy InstitutionsEpilogue_Doors open or closed ?
11Five main branches Sharia can be divided into five main branches: Ibadah (ritual worship)Mu'amalat (transactions and contracts)Adab (morals and manners),I'tiqadat (beliefs)Uqubat (punishments)Five main branches
12Its opposite is the forbidden. Legal Rulings The Shariah regulates all human actions and puts them into five categories:ObligatoryRecommendedPermittedDislikedForbidden Obligatory actions must be performed and when performed with good intentions are rewarded.Its opposite is the forbidden.Recommended action is that which should be done. Its opposite is the disliked.Permitted action is that which is neither encouraged nor discouraged. Most human actions fall in this last category
13Five main classifications of actions fard (obligatory), Actions in the fard category are those required of all Muslims. They include the five daily prayers, fasting, articles of faith, obligatory charity, and the hajj pilgrimage to Mecca.mustahabb (recommended), The recommended, permissible and discouraged categories are drawn largely from accounts of the life of the Islamic Prophet Muhammad. the mustahabb category includes proper behavior in matters such as marriage, funeral rites and family life, as civil law in the West. behavior is not mustahabb can be ruled against by the judge.
14Cont… MUBAH (neutral), MAKRUH (discouraged), HARAAM (forbidden) All behavior which is neither discouraged nor recommended, neither forbidden nor required is of the Mubah; it is permissible.MAKRUH (discouraged),Makruh behavior, while it is not sinful of itself, is considered undesirable among Muslims. It may also make a Muslim liable to criminal penalties under certain circumstances.HARAAM (forbidden)Haraam behavior is explicitly forbidden. It is both sinful and criminal. It includes all actions expressly forbidden in the Qur'an. Certain Muslim dietary and clothing restrictions also fall into this category.
15Primary Quran Sunnah Sources of Shraih Secondary Ijma Qyais Ijtehad IstidlalIstehsanTaqleed
17Some misconceptions The doors of Ijtihad are closed Individual ijtehad Possible ?The scope includes definitive matters such as the prohibition of Riba (usury)It is the reasoning of an individual and therefore cannot be a shariah ruleIjtehad possible where Islamic evidences have not discussed directly i.e. upon new issuesIjtehad is an individual obligation and therefore Taqleed is prohibited
18Doors open or closed ?In the fourth century of Hijrah a person called al- Qaffal issued a Fatwa closing the door of Ijtihad, thus he was called al-Qaffal which means the one who closes somethingImam Ghazali_ “freezing Islamic thinking in time”During the Mogul invasion. Rulers feared that under pressure of occupation by non-Muslim forces that Ijtihad may lead to misinterpretationsOnly with security can one tolerate differences. If the self is threatened it clutches to certainties, wants to keep them and builds on them.In times of crises multiplicity of opinion is not encouraged and Ijtihad is endangered.
19Concept"Ijtihad" constitutes and effort to opt for one of two or more possible solutions in a given situation and to provide legal justification for that solution with legal justification”Ijtihad is subjective, it starts with your belief and conscience. Science is objective, it starts with a tabula raza. You start with no basic values
20In QuranIjtehad literally means ‘to exert’. In the Islamic terminology it means to exert with a view to form an independent judgement on a legal question. It has its origin in the well- known verse of the Qur’an ‘And to those who exert we show our path.’Ijtehad + consensus = IJMA
21In Khilafat e RashadaHazrat Ali, when consulted by Caliph Uthman on the punishment which should be meted out to those who drank wine, he advised;“We apply the punishment for calumny’, namely eighty lashes of the whip, because ‘if a person becomes intoxicated, he knows not what he says, and in such a condition he commits calumny.” Thus, through this analogy, drinking of wine was linked to calumny.Other examples of Ijtehad by orthodox Caliphs are as follows;Punishment as prescribed by the Qur’an for the thief, male or female, is to cut off their hands, but the Caliph ‘Umar suspended it in the year of famine because of necessity and in order that people might keep alive.
22Caliph ‘Umar ,Caliph ‘Umar , observed the principle of sound analogy (Tawil) in the interpretation of the Qur’anic verse:Alms are only for the poor and the needy, and those who collect them and for those whose hearts are to be reconciled, and to free the captives and the debtors, and for the cause of Allah and the wayfarer, a duty imposed by God. (9:60)The words, ‘those whose hearts are to be reconciled’, refer to a group of weavers who were included among the recipients of the alms. The verse is silent as to the cause why this group was included among the recipients of alms.The sole object was to win them over to the side of Islam on account of their influence and the high esteem in which they were held in their tribe.Caliph ‘Umar refused to give them alms when Islam had gained in strength saying: ‘These were payments from the Prophet (Pbuh) to you in order to win you over for Islam
23By four ImamasImam Abu Hanifa and Abu Yusuf are reported by Ibn Qyyaim al-Jawziah to have said, ‘It is not legitimate for anyone to follow our view until he has learned the source where from we derived those viewsImam Mohammad, and Imam Yusuf both students of Imam Hanifa, rejected eighty percent of Ijtehad of their teacher Abu Hanifa in the light of new sources and changed conditionsThe Fiqh Hanafi as it exists today is based on the Ijtehad of both these students, that is, Imam Yusuf and Imam Mohammad
24Cont….Ahmad Ibn Hanbal, reputed the most meticulous adherent to the traditions said, “Do not imitate me, Malik, AlShafi’i or al- Thawri but learn from the source from which they learned.”
25Cont… Interpretation is incumbent upon every man of learning. They also prove that the interpreter is liable to err.Ibn Qayyim writes,“The sharia is all justice, kindness, common good and wisdom. Any rule that departs from justice to injustice ... or departs from common good (Maslaha) to harm (Mafsada) ... is not part of Sharia, even if it is arrived at by literal interpretation”
26Needs and limitations Cant be invoke in : Creation of universe Oneness of AllahFaiths5 Pillars of Islam
27opinionsIqbal_ worldly matters (muamalaat) relate to the rights of the people and are subject to change and modificationKing Hussein _(Jordan),"When Ijtihad-the possibility of reconciling faith and present-day life-stopped a long time ago, We need to do whatever we can to repair that mistake."
28FIQFORMATION OF IJMA'RATIONALEHanafithrough public agreement of Islamic juriststhe jurists are experts on legal mattersShafi'ithrough agreement of the entire community and public at largethe people cannot agree on anything erroneousMalikithrough agreement amongst the residents of Medina, the first Islamic capitalIslamic tradition says "Medina expels bad people like the furnace expels impurities from iron"Hanbalithrough agreement and practice of Muhammad's Companionsthey were the most knowledgeable on religious matters and rightly guidedUsulionly the consensus of the ulama of the same period as the Prophet or Shia Imams is binding.consensus is not genuinely binding in its own right, rather it is binding in as much as it is a means of discovering the Sunnah.
29Needs Two basic elements of Law Gap b/w message and meaning DignityFlexible according to needGap b/w message and meaningIssues of LanguageRapidly Changing Culture and ideasRevival of ReligionA return to traditional views of ShariaThe Islamist movement-neo-Sharism, Political IslamThe Fundamentalist movement-Hadood LawsExtremism-justifying terrorismLaw is there but cause is developingLaw itself is developingLaw is there but situation is newLaw and cause both are developing
30Issues of modern life Cloning Organ transplantation Blood TransformationRFBLewis BrownShare TradeConcept of Islamic StateGlobalization and its challengesJet LagGeographical lag
31Practice_ Individual Individual_Mujtahid. Concept of Shah Wali Ullah_UlemaMuslimSaneIntelligentExpert in Arabic languageU’loomul quranU’loomul hadeethI’lmul ijtihaad wal taqleedPractitioner MuslimPunctual in ShraihAny Possibility ???????Sir syed Ahmed Khan_ Intellectuals
32Institutional ijtehad Parliament _IqbalCabinet_ Molana AzadCourts_ Justice JavidNational Institutions _ Courts, Council of Islamic Ideology, Federal Shariat Court, Research InstitutionsInternational IjtehadOrganization of Islamic CooperationJamaiya AzharBait ulqumIslamic Research FoundationDar ul Uloom Deoband