Islamic law and judicial system

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PART III: ISLAMIC INSTITUTION
LESSON 14
ISLAMIC LAW AND JUDICIAL SYSTEM
1.0 Introduction
In the name of Allah, Most Gracious, Most Merciful.
Islamic law contains the rules and Islamic regulations that regulate all aspects of human life, be it Muslims or non-Muslims. Islamic law also provides solution to all problems in this life as it is an integrated, complete and comprehensive law that comes from the Creator of the universe that is Allah SWT. Thus, no one shall have doubt about its source, truthfulness and effectiveness. In this topic, we will discuss about the concept of Islamic law, legal philosophy in Islam, the judicial institution and other related matters.

2.0 Learning Outcomes
By the end of lesson, the students should able to:

2.1 Explain the concept and philosophy of Islamic law

2.2 Discuss the sources of Islamic law

2.3 Classify the rules and in Islamic law

2.4 Discuss the concept of Islamic judiciary

2.5 Explain the various school of thought or sects in Islam




  1. List of Topics




    1. The Concept, Principles and Philosophy and of Islamic Law

    2. The Sources of Islamic Law

    3. The Concept and Classification of Islamic Rulings

    4. Judicial Institution

    5. The School of Thoughts or Sects (mazahib)




  1. Terminologies




    1. Rulings

Ahkam


    1. School of Thought or Sect

Mazhab


    1. Human lineage

Human descendants


    1. Maqasid al-Shar’iyyah

Objective of Shari’ah




    1. Syura : A system of consultation




    1. Jurisprudence : The philosophy or science of law




    1. Sahabah: Companions of Rasulullah SAW




    1. Dysfunction of mind: The mind cannot function as normal




    1. Hadd punishment: Punishment according to Hudud Law.




    1. Fanaticism:

  1. A state of being fanatic to an opinion and rejecting others’ opinion

  2. Excessive enthusiasm, unreasoning zeal, or wild and extravagant notions, on any subject, especially religion; religious frenzy




  1. Topics


5.1 The Concept, Principles and Philosophy and of Islamic Law
5.1.1 Presentation
Do you still remember the discussion on the basic concepts of Islam that was discussed before? The discussion in this part is actually closely related with the discussion in Lesson 1 and 2 that were discussed before. Anyway, all of us by now must be convinced that Islam came from Allah and therefore, the Islamic laws also came from Allah SWT. The laws were revealed for human benefits and goodness in this life, be it Muslim and non-Muslims. The laws have been sent down to safeguard and guarantee the safety, welfare, and comfort of the human beings. In general, Islamic law is divided into four types: ibadat, mua’malat, munakahat and jinayat. The laws were revealed to safeguard the five vital aspects of human life that we term as maqasid al-shar’iyyah; religion, soul, mind, property and human lineage. As we have discussed this issue before, no need for us to repeat the same discussion. For more details, you may refer back to the discussion and maqasid al-shar’iyyah.
The Islamic law emphasizes on human interest in the context of their relationship with Allah SWT, their fellow human beings and the universe. In general, there are few important aspects of Islamic law that make it suit the interests of human being in this world and the world after. Those aspects are as follow:

  1. Islamic law calls human to believe in the Oneness of Allah SWT

The law comes from Allah SWT. By believing in the Oneness of Allah SWT, humans are responsible to implement the law. Human beings do not have authority to amend or change the law. They must follow and obey the law. By obeying the law, it can stir the sense and feeling of the Oneness of Allah SWT in all aspects of their life. If humans are convinced that the law comes from Allah SWT, they will not give excuses for not implementing the law in their life. The ignorance of the law in life will cause the failure of the call towards believing in the Oneness of Allah SWT.




  1. Emphasis on Syura (Consultation)

Islamic law also constitutes the importance of syura. It is a system of Allah SWT that guarantees to guarantee harmony and prosperity of t he people. Allah SWT had ordered Muslims to practice Syura (Al-Syura:38 * Ali Imran: 159).

in all aspect of human life.




  1. Justice

Justice is the most important principle in Islamic law and becomes one of the main vision of the sending of Rasulullah SAW. It must be implemented fairly, equally, transparently and without any bias as stated in surah al-Syura, verse 15).


  1. Freedom

Freedom is something which is in line with the human nature (fitrah). Islamic law recognizes and acknowledges the human freedom but within the boundary of Islamic teachings. It is stated in in Surah al-Mulk, verse 15. The freedom includes the freedom of religion, individual, freedom to express opinion, seeking knowledge, owning property and wealth and many others. The acknowledgement of the freedom shows that Islam is a perfect and comprehensive religion sent to human beings. However, the freedom in Islam is moderate in nature, not too rigid like communist and at the same time not to liberal or absolute like capitalist. In fact, there is no notion of ‘absolute freedom’ in Islam because it is only belonged to Allah SWT.


  1. Equality

Islamic law gives high concern on equality among individual. There is no difference among individual in the eye of Allah SWT and His law except piety (taqwa) as being recorded in Surah al-Hujurat, verse 13. Based on that, Islamic law looks at individuals equally without considering their family lineage, tribe, skin colour, title and etc. If someone has found guilty in the eye of the law, be it family members of a judge who judges the case, or relative, or fried and etc, hence the person is guilty.



      1. Activities

  1. Write down all the Quranic verses which are mentioned in the discussion above together with the meanings and try to understand the meanings.




  1. Give example (hadith, story or others) of the practice of the following in the history of Islam since the period of Rasulullah SAW:




  1. Syura

  2. Freedom

  3. Justice



5.2. The Sources of Islamic Law
5.2.1 Presentation

Can you guess the sources of Islamic law? Is it the same with the sources of Islam? Muslim scholars have divided the sources into two main categories i.e primary and secondary sources. Primary sources refers to Al-Quran and al-Sunnah of Rasulullah SAW while the secondary sources refer to several methods of deducting ahkam that give space of ijtihad of the mind based on the divine revelation. It includes Ijma’, Qiyas, Istihsan, al-Masalih al-Mursalah, Sadd al-zarai’, al-‘Urf/al’Adah and al-Istishabi.




  1. Al-Quran

Every Muslim knows what al-Quran is. It is the final revelation that was sent to Rasulullah SAW within 23-year period. It is the first source of Islamic law. It contains 144 surah and 6236 verses. 330 of its verses are about jurisprudence (fiqh) and from that 330 verses, 140 verses are on ibadat, 70 verses on family law, 30 verses on jinayat, and 20 verses on justice (Islamic Studies Manual, OUM, 2009).


Muslim scholars have classified the legal injunctions in al-Quran as follow (Ahmad Fauzan Yahaya, 2007):



  1. Concise injunctions (الأحكام المجمل)

These refer to definite commandments that are stated in the Qur’an. It is very clear and precise in which no space is given for the practice of ijtihad by the scholars or jurists. Also, Al-Quran does not provide the detailed rules regarding these commandments. For example:


  • The injunctions concerning prayers (صلاة) and zakah. The Qur’an says:

"وَأَقِيمُوا الصَّلاةَ وَآتُوا الزَّكَاةَ ..."(البقرة:110)

And perform As-Salat (Iqamat-as-Salat), and give Zakat,…”



(Al-Baqarah: 110)
The Quran did not elaborate on the detail manners of prayers but the details can be found in the Sunnah of the Prophet SAW when the Prophet SAW said:

صلوا كما  رأيتموني أصلي


Pray as you observe me praying”

There are also many al-ahadith of the Prophet SAW elaborating in details the payment of zakah.




  • The injunctions related to Qital (the law of equality in punishment) The injunctions were further detailed out by the Prophet SAW in his al-hadith. One of the concise injunctions on this matter is:

وَلَكُمْ فِي الْقِصَاصِ حَيَاةٌ يَا أُولِي الْأَلْبَابِ لَعَلَّكُمْ تَتَّقُونَ (البقرة:179)

And there is (a saving of) life for you in Al- Qital (the Law of Equality in punishment), O men of understanding, that you may become Al-Muttaqin “ (Al-Baqarah: 179)



  • The injunctions related to the commercial transaction and the prohibition of usury (riba’) as mentioned in the following verse was later elaborated by the Prophet SAW in his sayings and practice:

"...وَأَحَلَّ اللَّهُ الْبَيْعَ وَحَرَّمَ ..." (البقرة:275)

            “Allah has permitted trading and forbidden Riba (usury)”.



(Al-Baqarah: 275)



  1. Concise and Detailed Injunctions (الأحكام المجمل والمفصّل)

These refer to legal injunctions that are stated in brief in certain surahs in the Qur’an, and elaborated in others. There is also no space for ijtihad. These injunctions were left to be elaborated by the Sunnah of the Prophet SAW. For example, the injunctions on war, peace, jihad, prisoners of war, booty and relations with non-Muslims. These details are not merely left to the Sunnah alone but ijtihad (personal reasoning) can also be used as a method to find suitable solutions to the problems.




  1. Detailed Injunctions (الأحكام المفصّل)

Certain laws are explained in detail, for example the laws of inheritance.

These injunctions are contained in the verses of the Quran, which give complete details of the commandments. Therefore, there is no room for ijtihad (personal reasoning). Among example of these injunctions are all the hadd punishments, qital, unintentional homicide, murder, theft, robbery, adultery, defamation and distribution of inheritance etc. Some verses with detailed injunctions are:




  • Verse related to the penalty for unintentional killing:


وَمَا كَانَ لِمُؤْمِنٍ أَنْ يَقْتُلَ مُؤْمِناً إِلَّا خَطَأً وَمَنْ قَتَلَ مُؤْمِناً خَطَأً فَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ وَدِيَةٌ مُسَلَّمَةٌ إِلَى أَهْلِهِ إِلَّا أَنْ يَصَّدَّقُوا فَإِنْ كَانَ مِنْ قَوْمٍ عَدُوٍّ لَكُمْ وَهُوَ مُؤْمِنٌ فَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ وَإِنْ كَانَ مِنْ قَوْمٍ بَيْنَكُمْ وَبَيْنَهُمْ مِيثَاقٌ فَدِيَةٌ مُسَلَّمَةٌ إِلَى أَهْلِهِ وَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ فَمَنْ لَمْ يَجِدْ فَصِيَامُ شَهْرَيْنِ مُتَتَابِعَيْنِ تَوْبَةً مِنَ اللَّهِ وَكَانَ اللَّهُ عَلِيماً حَكِيماً (النساء:92)
It is not for a believer to kill a believer except (that it be) by mistake, and whosoever kills a believer by mistake, (it is ordained that) he must set free a believing slave and a compensation (blood money, i.e Diya) be given to the deceased's family, unless they remit it. If the deceased belonged to a people at war with you and he was a believer; the freeing of a believing slave (is prescribed), and if he belonged to a people with whom you have a treaty of mutual alliance, compensation (blood money - Diya) must be paid to his family, and a believing slave must be freed. And whoso finds this (the penance of freeing a slave) beyond his means; he must fast for two consecutive months in order to seek repentance from Allah. And Allah is Ever All Knowing, All Wise”. (Al-Nisa’: 92)


  • Verses related to the distribution of inheritance:


يُوصِيكُمُ اللَّهُ فِي أَوْلادِكُمْ لِلذَّكَرِ مِثْلُ حَظِّ الْأُنْثَيَيْنِ فَإِنْ كُنَّ نِسَاءً فَوْقَ اثْنَتَيْنِ فَلَهُنَّ ثُلُثَا مَا تَرَكَ وَإِنْ كَانَتْ وَاحِدَةً فَلَهَا النِّصْفُ وَلِأَبَوَيْهِ لِكُلِّ وَاحِدٍ مِنْهُمَا السُّدُسُ مِمَّا تَرَكَ إِنْ كَانَ لَهُ وَلَدٌ فَإِنْ لَمْ يَكُنْ لَهُ وَلَدٌ وَوَرِثَهُ أَبَوَاهُ فَلِأُمِّهِ الثُّلُثُ فَإِنْ كَانَ لَهُ إِخْوَةٌ فَلِأُمِّهِ السُّدُسُ مِنْ بَعْدِ وَصِيَّةٍ يُوصِي بِهَا أَوْ دَيْنٍ آبَاؤُكُمْ وَأَبْنَاؤُكُمْ لا تَدْرُونَ أَيُّهُمْ أَقْرَبُ لَكُمْ نَفْعاً فَرِيضَةً مِنَ اللَّهِ إِنَّ اللَّهَ كَانَ عَلِيماً حَكِيماً) (النساء:11)

Allah commands you as regards your children's (inheritance); to the male, a portion equal to that of two females; if (there are) only daughters, two or more, their share is two thirds of the inheritance; if only one, her share is half. For parents, a sixth share of inheritance to each if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased left brothers or (sisters), the mother has a sixth. (The distribution in all cases is) after the payment of legacies he may have bequeathed or debts. You know not which of them, whether your parents or your children, are nearest to you in benefit, (these fixed shares) are ordained by Allah. And Allah is Ever All­ Knower, All­ Wise”. (Al-Nisa’: 11)




  1. Fundamental Principles of Guidance (القواعد والمبادئ العامة في القرآن)

Principles like the principle of freedom, justice, consultation, public interest, equality, etc. It gives space for the practice of ijtihad to deduct a ruling (hukm).

The Qur’an mentioned certain fundamental principles to guide Muslims and the Muslim jurists in resolving any issues or problems faced the Muslim ummah. These general principles should be the basis for the jurists in their ijtihad as these principles can be applied in various situations and can act as a tool in their ijtihad. Among these principles are:


  • Principle of justice.

This is mentioned in the following verses:

"إِنَّ اللَّهَ يَأْمُرُكُمْ أَنْ تُؤَدُّوا الْأَمَانَاتِ إِلَى أَهْلِهَا وَإِذَا حَكَمْتُمْ بَيْنَ النَّاسِ أَنْ تَحْكُمُوا

بِالْعَدْلِ إِنَّ اللَّهَ نِعِمَّا يَعِظُكُمْ بِهِ إِنَّ اللَّهَ كَانَ سَمِيعاً بَصِيراً" (النساء:58)

Verily! Allah commands that you should render back the trusts to those, to whom they are due; and that when you judge between men, you judge with justice. Verily, how excellent is the teaching, which He (Allah) gives you! Truly, Allah is Ever All ­Hearer, All­ Seer”. (Al-Nisa: 58)



"إِنَّ اللَّهَ يَأْمُرُ بِالْعَدْلِ وَالْأِحْسَانِ ..."(النحل:90)

Verily, Allah enjoins al-‘adl (i.e. justice) and al-ihsan [i.e. to be patient in performing your duties to Allah, totally for Allah's sake and in accordance with the Sunnah (legal ways) of the Prophet SAW in a perfect manner]”. (Al-NaÍl: 90)


وَإِنْ طَائِفَتَانِ مِنَ الْمُؤْمِنِينَ اقْتَتَلُوا فَأَصْلِحُوا بَيْنَهُمَا فَإِنْ بَغَتْ إِحْدَاهُمَا عَلَى الْأُخْرَى فَقَاتِلُوا الَّتِي تَبْغِي حَتَّى تَفِيءَ إِلَى أَمْرِ اللَّهِ فَإِنْ فَاءَتْ فَأَصْلِحُوا بَيْنَهُمَا بِالْعَدْلِ وَأَقْسِطُوا إِنَّ اللَّهَ يُحِبُّ الْمُقْسِطِين) (الحجرات:9)

And if two parties or groups among the believers fall to fighting, then make peace between them both, but if one of them rebels against the other, then fight you (all) against the one that which rebels till it complies with the Command of Allah; then if it complies, then make reconciliation between them justly, and be equitable. Verily! Allah loves those who are equitable”. (Al-Hujurat: 9)




  • Principles of individual accountability.

This is mentioned in the verse:

مَنِ اهْتَدَى فَإِنَّمَا يَهْتَدِي لِنَفْسِهِ وَمَنْ ضَلَّ فَإِنَّمَا يَضِلُّ عَلَيْهَا وَلا تَزِرُ وَازِرَةٌ وِزْرَ أُخْرَى

وَمَا كُنَّا مُعَذِّبِينَ حَتَّى نَبْعَثَ رَسُولاً (الإسراء:15)

Whoever goes right, then he goes right only for the benefit of his ownself. And whoever goes astray, then he goes astray to his own loss. No one laden with burdens can bear another's burden. And We never punish until We have sent a Messenger (to give warning)”. (Al-IsrÉ’: 15)





  1. Al-Sunnah

Al-Sunnah or al-hadith of Rasululah SAW is the second source of Islamic law. It interprets al-Quran and elaborates about legal injunctions of al-Quran such as the way of performing shalat and hajj. Al-Sunnah refers to everything that comes from Rasulullah SAW, be it his words, actions or silence approval. Based on this, Muslim scholars have divided al-Sunnah into three categories:




  1. Al-Sunnah al-Qawliyyah (السنة القولية)

It refers to anything said or disseminated by Rasulullah SAW


  1. Al-Sunnah al-Fi’liyyah (السنة الفعلية)

It refers to anything done by rasulullah SAW in the form of action such as the way he (SAW) preformed shalat, hajj and so forth.


  1. Al-Sunnah al-Taqririyyah (السنة التقريرية)

It refers to silence approval of Rasulullah SAW on certain issue.


  1. Al-Ijma’ (الإجماع)

It refers to a consensus of Muslim jurists a certain time and period on a particular point of Shari’ah law that are not provided by al-Quran and al-Sunnah in which it is impossible that those jurists will lie on it. It is divided into categories i.e Ijma’ al-Sarih (إجماع الصريح) and Ijma’ al-Sukuti (إحماع السكوتي):




  1. Ijma’ al-Sarih (إجماع الصريح)

It refers to a consensus of majority of Muslim jurists (mujtahid) on a ruling whether by their words or action. It is definite ((قطعي in nature and must be held as the source of Islamic law. For example, the consensus of sahabah on the appointment of Abu Bakr as the first caliph of Islam. An Ijma’ is considered definite (قطعي) because it is based on Al-Quran and al-Sunnah al-Mutawatirah (السنة المتواترة).


  1. Ijma’ al-Sukuti (إجماع السكوتي)

It refers to a consensus of some Muslim jurists on certain ruling while the others are silent on it without their agreement or opposition to the ruling. It is zanni (prabable) in nature. A mujtahid needs to support his argument to make it definite (قطعي). It is considered zanni because some jurists are silent due to their fear or respect to the jurists who express their argument and opinion precisely and strongly. It is zanni because it is based on hadith al-Ahad or al-Qiyas and need to other stronger evidence to make it definite.



  1. Qiyas


Qiyas is the process of analogical reasoning from a known injunction from al-Quran and al-Sunnah to a new injunction because of the similarity of ‘Illah (علة). For an instance, drug in which we cannot find the ruling (hukm) whether lawful (halal) or unlawful (haram) from al-Quran or al-Sunnah. How did Muslim jurists deduct a ruling on drug? It was by looking at the ‘illah of the drug which is similar to alcohol. What is the ‘illah of drug and alcohol? The illah is intoxication that causes the dysfunction of mind. Since the alchohol is haram based on its illah, thus drug is also haram.
There are four pillars of al-Qiyas:

  1. Original problem (الأصل)

  2. Original ruling of the original problem (الحكم)

  3. The Cause (العلة)

  4. New problem (الفرع)




  1. Al-Istihsan (الإستحسان)

It is to hold a stronger evidence (دليل) when facing with a problem involving a particular rule (hukm).


  1. Al-Masalih al-Mursalah (المصالح المرسلة)

It refers the derivation of the hukm which is not stated in the primary sources of Islamic law but implementing it for the interest of the people.





  1. Sad al-Zarai’ (سد الذرائع)

It refer to closing the door or road to doing harm or sin.


  1. Al-‘Urf ( (العرف/al-‘Adah (العادة)

It refers to a custom that does not go against the Islamic teachings


  1. Al-Istishab (الإستصحاب)

It refers to holding on to the original rule until there is an evidence to change it.
5.2.2 Activities
Give example for the following:

  1. Concise injunctions (قطعي) of Al-Quran

  2. Qiyas (another example other than drug)

  3. Al-Istihsan (الإستحسان)

  4. Al-Masalih al-Mursalah (المصالح المرسلة)

  5. Sad al-Zarai’ (سد الذرائع)

  6. Al-‘Urf ( (العرف/al-‘Adah (العادة)

  7. Al-Istishab (الإستصحاب)


5.3 The Concept and Classification of Islamic Rulings
5.3.1 Presentation



  1. Concept of Islamic Ruling

In Islamic jurisprudence, ruling is the will of Allah SWT sent to His servants (mankind) that related to obligatory actions (taklif) who are qualified to shoulder the obligations i.e have reached the age of puberty (baligh). In general, Muslim jurists have classified Islamic rulings into two main categories. They are:




  • Taklifi (تكليفي)

This category of ruling refers to the obligation of doing an action or leaving the action or obligation that gives choice of doing it or leaving it. It depends on the ability of an individual. If the individual is unable to do the action, the obligation is removed from him. For example, children who have not yet reached the age of puberty (baligh) are not compulsory to perform the five time daily prayers.


The Taklifi ruling is of five types; fardhu (واجب), recommended (مندوب/سنة), permissible (مباح), not recommended (مكروه), and forbidden (حرام). Do you still remember our discussion on Islamic Axiology (Value) before this? They are the same. Thus, we can skip discussing this part.
In Islamic legal system, there are several types of law i.e criminal law (jinayat), family law on marriage (munakahat), transaction (معاملات) and many others.


  • Wadh’i (وضعي)

This ruling refers to something that becomes the cause or condition or hindrance towards the implementation of a ruling. The ability of individual is not made as a condition towards its implementation. For example:


  • The Cause

Adultery becomes the cause for stoning or canning on the adulterer.


  • The Condition

Ablution (wudhu’) becomes the condition for the validity of prayers (صلاة).


  • The Hindrance

A non-Muslim cannot inherit wealth of his/her Muslim father. The difference of religion becomes the hindrance for that.


  1. Classification of Islamic Ruling

In Islamic judicial system, the laws are classified into four types i.e hudud, qisas, diyat,and ta’zir.




  • Hudud

Hudud is a set of punishment that was set forth by Allah SWT in al-Quran and elaborated by al-Sunnah of Rasulullah SAW. This set of law is the right of Allah SWT and cannot be amended nor changed by human beings. Among the offences that are subjected to this law are stealing, robbery and burglary, adultery, accusing someone of committing adultery without proofs, drinking intoxicating drinks such as liquor, riddah (becomes an apostate), and betraying an Islamic government.


  • Stealing

The punishments are cutting of hands of the theif but the following pre-requisites must be fulfilled before the punishments can be carried out:


  1. The thief is an adult and not insane (sound of mind)

  2. The reason for committing theft is not because of hungry or poor

  3. The stolen property must be owned by someone and has value

  4. Stealing is of the thief own accord, not being forced by others




  • Robbery and Burglary

The punishment is subjected to the discretion of judge, depends on the level or degree of the offence. Among possible punishments are putting in prison and exile from his state.


  • Adultery

The punishments are classified to the type of the offender i.e unmarried and married offenders.

  • Unmarried: 100 lashes (Surah al-Nur, verse 2)

  • Married: Stoning to death




  • Accusing someone of committing adultery without proofs

The punishment is 80 lashes.




  • Drinking intoxicating drinks

The punishment is 40 lashes (based on a hadith narrated by Abu said al-Khudri).


  • Riddah (Apostate)

The condition is the offender willfully leaves Islam and not being forced to do that. The punishment is sentence to death but after being consulted and advised for three times.




  • Betraying an Islamic government.

The punishment is sentence to death through execution of head of the offender.


  • Qisas

Qisas is literally means ‘balance or the same’. Technically, it is a penalty which is the same with the offence committed by the offender. Among the offences under the punishments of this law is killing intentionally and hurting someone. An offender who kills someone must be killed also unless he is forgiven by the victim’s family. If he is forgiven, he must pay an amount of compensation (money) to the family. The amount will be determined by court. This is based on Surah al-Baqarah, verse 178.


In the case of hurting or causing injury to someone, the offender must be punished with the same injury by the victim’s family or is forgiven by the family but the offender must pay an amount of compensation which is determined by court. The punishment is stated in Surah al-Nur, verse 2)


  • Diyat

Diyat is fine or indemnity that replaces the qisas punishment. It is one of the alternative punishments if the offender is forgiven by the victim’s family. Diyat is divided into two type i.e heavy and light diyat.


  1. Heavy Diyat

It is meant for the offence which is committed intentionally or seemingly intentional. In the case of killing, there are three elements in which a killing will be considered as intentional killing:

  • Intention to kill

  • The killing is meted toward a specific person

  • Use of weapon while killing

How about the seemingly intentional killing? For example, two persons are fighting, beating each other. Then, one of them takes a stick and beats his opponent. The opponent fainted and then dies. It is considered as seemingly intentional killing because the stick is not considered as a weapon and in normal situation, the stick cannot kill the opponent. It is subjected to the punishment but the elements above are not applicable. The court will judge whether the killing is committed intentionally or seemingly intentional after gather all related evidences. If the victim’s family forgives him, diyat is applicable.


Do you know the amount of diyat? Traditionally (based on the practice at the time of Rasulullah SAW), the diyat for intentional killing was is 100 camels in which it must be borne by the offender and he must pay it immediately to the victim’s family. As for seemingly intentional killing, it was also 100 camels in which the diyat to be borne the offender’s family or descendants and can be paid within three years.


  1. Light Diyat

This type of diyat is imposed on unintentional or mistaken killing. For example, Amran wants to shoot a mouse deer that is hiding behind brush but unfortunately, he shoots Ibrahim who passes by the brush. In this case, Qisas is not applicable but diyat does. The diyat are:

  • Freeing a slave

  • If unable, the diyat is to pay 100 camels to the deceased family. The diyat to be borne by the offender’s family and payment can be made in installments for a period of three years

The diyat also can be paid using currency. What will happen if the offender cannot afford to pay the diyat and he is alone in this world, no family nor heirs? In this case, the money will be taken from Baitul Mal. It means, the offender cannot avoid his responsibility and Islam guarantees everyone’s right. The murderer and the victim are helped by the Baitul Mal. This is the beauty and uniqueness of Islam.




  • Ta’zir

It refers to several punishments in which the amount or severity of punishment are not fixed by Islam as in the case of hudud and qisas. The amount is left to the discretion of judge. Ta’zir is allocated for less severe crimes which are punishable under hudud and qisas laws. Ta’zir must be used for the interest of the public. A judge must take into his consideration the effect of Ta’zir to the public as well as the benefit to the offender while deciding the Ta’zir. Also, the punishment of Ta’zir must correspond the offence that that the offender has committed. If many offenders commit a particular offence, the punishment must be equal for every offender. Besides that, the punishment under Ta’zir must not exceed the severity of hudud punishment.

5.3.2 Activities



  1. Give another two examples of Taklifi and Wadh’i ruling. Each example must be supported with evidence (دليل) from al-Quran or hadith or Ijma’ or Qiyas.




  1. Find out the text and meaning of the following Quranic verses:

  1. Surah al-Hujurat, verse 13

  2. Surah al-Nur, verse 2

  3. Surah al-Baqarah, verse 178.




  1. Give three examples of Ta’zir punishments which are practice in your country.


5.4 Judicial Institution
5.4.1 Presentation
What is judicial institution? It is a body established by government to administer justice through the execution of laws on matters related to criminal and civil cases. In Islam, the cases can be heard in court only and the court can be anywhere whether in the court itself, mosque or any other suitable places. The establishment of judicial institution is a must in Islam as to uphold justice and to eliminate injustice in society. The institution plays the role of resolving disputes that happened among individuals and the public. In upholding justice, the institution cannot bias. It must treat all individuals equally without looking at the background, skin colour, religion, lineage, status in society of the individuals.
Being a must in Islam, the post of judge in judicial institution is a noble post. The post is very important and critical. Therefore, a judge must be truly qualified as he is going to carry out a big responsibility that is to ensure justice in the society. In Islamic history, Rasulullah SAW was the chief judge, chief of legislative and executive bodies. It was so because he was the messenger and trustee of Allah SWT and one of his main missions as being entrusted by Allah SWT was to uphold justice to mankind. Rasulullah SAW in Madinah heard all forms of cases and complaints related to crimes, family, wealth and property, reputation and many others. Also, he heard appeal cases on decisions made by qadhi or his representatives outside Madinah.
In Islam, the judge is appointed by the government and not the judge to apply for the post. Rasulullah SAW in principle was appointed by Allah SWT to be the judge. Once Islam expanded, Rasulullah SAW sent his companions to be a judge outside Madinah like Mu’az bin Jabal and Abu Musa al-Ash’ari who were sent to be the governor and at the same time as the judge in Yemen. This religious tradition was continued by the four calips (Khulafa’ al-Rashidun) until the reigns of Banu Umayyah and Abbasiyah.
As the judicial institution is very critical and crucial, Islam has set out the conditions or criteria of a judge. Among them are:

  1. he must be a Muslim,

  2. sound of mind,

  3. baligh (reach the age of puberty),

  4. free man (not a slave),

  5. possesses an adequate knowledge on the contents of al-Quran and al-Hadith as well other Islamic knowledge,

  6. Able to understand facts of a case, never committed a major sin.

  7. All the five senses are perfect and functional

  8. Man (in Hanafi mazhab, woman can be a judge)

  9. Clever and intelligent

  10. Honest

  11. Master Arabic language (for the purpose of understanding al-Quran and al-Hadith)

  12. Good akhlaq

  13. Fear Allah

  14. Seldom talks except on important matters

In order to safeguard the credibility of the judge and to ensure that the justice is truly is put in place, the judge also must avoid the following:

  1. Not to receive any form gifts or bribery especially from parties involved in

a case

  1. Not to conduct trial in a state of anger

  2. Not to judge a case without sufficient witnesses

  3. Not to hear a case that involves his family, relatives or friends

  4. Not to pass a judgement without sufficient evidences

  5. Not to hear a case in a state of hunger

5.4.2 Activities

Give three examples from Islamic history (during the period of Rasulullah SAW or Khulafa al-Rashidin or bani Umayyah or Abbsiyyah or Othmaniyyah) in cases where justice was upheld by the Islamic government.
5.5 The School of Thoughts or Sects (mazahib)
5.5.1 Presentation

Originally, there were no sects in Islam. From the time of Rasulullah SAW up to the 2nd century of Islam, there were no sects in Muslim communities. However, towards the end after the 2nd century, sects in Islam existed due to the expansion of Islam throughout the world and the Muslims were far away from al-Sunnah of Rasulullah SAW. The existence of sects in Islam is based on the efforts of Muslim scholars to resolve the problem faced by the Muslim communities through the way of Ijtihad. The Muslim scholars had put their efforts searching for authentic (sahih) al-ahadith when they could not find resolution from al-Quran to resolve the problems and then compiling al-ahadith of Rasulullah SAW. The existence of mazahib has caused differences of opinion in Islamic teaching but the differences occur only in small matters that related to jurisprudence (fiqh), not in the root of Islam that is ‘aqidah.


In Muslim community, there are four major well-known mazahib which have been recognized and acknowledged by the majority of Muslim scholars. The mazahib are name after the name of its founder. The mazahib are:


  1. Mazhab Hanafi – taking after the name of Imam Abu Hanifah, Nu’,an bin Thabit (80-150 H/699-767 M)

  2. Mazhab Maliki – taking after the name of Imam Malik bin Anas (93-179 H/712-789 M)

  3. Mazhab al-Shafei – was named after the name of Imam al-Shafei, Muhammad bin Idris al-Shafei(150-204 H/820-767M)

  4. Mazhab Hanbali – after the name of Imam Ahmad bin Hanbal (164-241 H/780-855)

The most important thing that we need to understand is the root of the differences of opinions among those Imams. They differed in the branch of jurisprudence only and not in the major principle of Islam that is aqidah. Why the differences occcured? The reasons are (Islamic Studies Manual, OUM, 2009):




  1. Difference interpretation in understanding al-Quran and al-Sunnah on a particular problem




  1. The time spent with Rasulullah SAW differed from one sahabah to another. Some spent most of their times with Rasulullah SAW but others did not. Those who spent most their times with Rasulullah SAW received hadith and learned directly more from Rasulullah SAW and others did not. As a result, Imam who learned from sahabahs who spent most of their times with Rasulullah SAW received and learned more hadith such as Imam Malik.




  1. No compilation of al-Sunnah of Rasulullah SAW at their time as what we have today. They did jitihad based on hadith that they knew and the hadith might not be authentic. The imam who came after one Imam then found that the hadith used by the first Imam in his ijtihad before was not authentic. Thus, the difference of opinion occurred.



  1. The different living place with different culture and customs of the people also had caused the differences. For example, Imam Malik lived in Madinah while Imam Hanafi in Iraq.

Even though all the four Imams above had different opinions in certain issue in jurisprudence, they emphasized to their followers on the importance of practicing Islam according to the authentic hadith or al-Sunah of Rasulullah SAW. In the case in which their opinions against the authentic sunnah, they had come out with fatwa that ’it is compulsory for Muslims to follow the hadith and leave their opinions and ‘it is haram to follow their opinions in such situation’. Their stands and spirit should be followed by the Muslims today and not to put themselves in the rigidity and mazhab fanaticism.


5.5.2 Activities

Write a short background of the four Imams above.



6.0 Lesson Summary

Islamic ruling is the teaching of Islam that gives priority on human interests and welfare in this world and Hereafter. The differences of opinions in it should not become a major issue among Muslims. In fact, they Muslims should free themselves from religious frenzy by putting more efforts to seek Islamic knowledge and be open minded to accept others’ opinions as long as the opinions are within the boundary set by al-Quran and Al-Sunnah. All the rulings implemented in human community are to guarantee and safeguard the human life. All the rulings are for the human betterment and to remove hardship and evils from their life.



  1. Self Assessment



True (T) / False (F) Questions
1. The purpose of Islamic law is to safeguard the right of Allah SWT. ______
2. Islamic law was sent to fulfill the objective of Shari’ah. ______
3. Islamic law guarantees the absolute freedom to mankind. ______
4. Syura is not important in Islamic law. ______
5. Al-Quran, Al-Sunnah and Al-Ijma’ are the first source of Islamic law. ______
6. There are four types of Islamic ruling injunctions in Al-Quran. ______

7. The concise injunction of Al-Quran must be refereed first in deducting

a ruling. _______
8. Al-Ijma’ al-Sukuti is stronger than al-Ijma’ al-Sarih. _______
9. Amran is 20 years old. It is a duty of Amran to perform the five

daily prayers’. The ruling on Amran is called Hukm al-Wadh’i (وضعي). _______
10. ‘Ibrahim is now 30 years old and has become an insane (مجنون)’. Now,

He needs not to pay zakah’. This type of ruling is called Hukm al-Taklifi. _______
11. Khalwah (close proximity) between male and female is not punishable

under hudud law but it is under Ta’zir. ________


12. The seemingly intentional killing also subjects to diyat. ________
13. “Muadz cut a tree in front of his house. Unfortunately, the tree fell down

on his neighbor’s son, Amin and Amin passed away due to serious injury

on his head”. This incident is categorized as unintentional killing and Muadz

needs not to pay diyat. ________


14. Under Ta’zir, if an offence is committed by many offenders, the punishment

needs not to be the same to all offenders. ________

15. If an opinion of an Imam of mazhab is proven to be contradicting

the authentic (sahih) hadith, the followers of the mazhab have an option



whether to stick with the Imam’s opinion ot to follow the hadith. ________
Answer:


  1. F

  2. T

  3. F

  4. F

  5. F

  6. T

  7. T

  8. F

  9. F

  10. T

  11. T

  12. T

  13. F

  14. F

  15. F



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