Exam Series-2019

Islamic Jurisprudence
[Short Notes for Exams]

BRILLIANT LAW COLLEGE

 ISLAMIC JURISPRUDENCE 1

HOLY QURAN AS SOURCE OF ISLAMIC LAW

1) INTRODUCTION:

The holy quran is the primary source of Islamic law. Consisting of direct revelations ( ‫)وحی‬

made to the Holy Prophet P.B.U.H. Quran does not contains law in codified form but it covers

all aspects of human life.

2) REFERENCES:

o Article 227, Constitution of Pakistan 1973

3) LEGISLATIVE AUTHORITY:

According to Islamic Law, Allah Almighty is the supreme authority to make laws.

4) MEANING:

Quran means “reading or reciting”.

5) DEFINITION:

“The book consisting of direct revelations made to the Holy Prophet (P.B.U.H) in the exact

words of Allah Almighty is called Quran”.

6) ALTERNATIVE NAMES:

o Al-Noor

o Al-Hikma

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o Al-Kitaab

o Al-Shifaa

o Al-Furqaan

7) CONTENTS OF QURAN:

i- SOVEREIGNTY: According to quran, sovereignty (‫ )اقتدار اعلی‬of universe only belongs to

Allah Almighty.

ii- SHARIAH LAWS: Quran contains laws for Muslims, about different aspects and issues

of life. E.g. marriage, inheritance, divorce, major crimes and punishments etc.

iii- CODE OF LIFE: Quran provides a complete code of conduct for Muslims.

iv- CREATION OF UNIVERSE: Quran also tells that how universe and other creatures were

created.

v- STORIES: Quran also tells about the stories of past people, their customs and

traditions.

vi- MESSENGERS: Quran tells about the duties, lives and names of some messengers of

Allah.

vii- DAY OF JUDGEMENT: Quran also tells about the day of judgement, its rules, hardships

and punishments as well as rewards which are to be given to humans.

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8) SOURCE OF ISLAMIC LAWS:

All Islamic laws are derived from the laws defined in Quran, and no Muslim law can be made

in such a way that is against the injunctions of Quran.

9) KINDS OF LAWS IN QURAN:

There are two main kinds of laws in Quran:

i- DIRECT LAWS: These are the laws which are openly defined in Quran and are strict in

nature. E.g. Laws about: Qatal, Inheritance, Defamation, Marriage, Divorce etc

ii- INDIRECT LAWS: These are the laws which are not openly defined in Quran but only a

guiding principle is given through which proper laws are to be derived. E.g. Ijma, Qiyas,

Ijtihad etc

10) QURAN AS SOURCE OF LAW:

Holy Quran is a source of law in the following ways:

i- RELIGIOUS DUTIES: It tells laws about salah (‫)نماز‬, zakat, fasting (‫ )روزہ‬etc.

ii- QUASI LAWS: Quasi laws are also provided by quran. E.g. laws about marriage,

relationship between neighbors, relatives etc

iii- MUAMLAAT (‫)معامالت‬: Laws relating to sale, purchase, business, contract etc are also

provided by Quran.

iv- HUDOOD LAWS‫حدود کے قوانین‬

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v- PENAL LAWS ‫سزا کے عدالتی قوانین‬

vi- MORAL LAWS ‫اخالقی قوانین‬

vii- ETHICAL LAWS

viii- EVIDENCE LAWS ‫ گواہی کے قوانین‬/‫شہادت‬

ix- SOCIAL LAWS ‫معاشرتی قوانین‬

x- TRUST LAWS

xi- SUCCESSION LAWS ‫وراثتی قوانین‬

11) CONSTITUIONAL STATUS OF QURAN:

In Islamic countries, laws of quran are the supreme laws which can neither be amended nor

be abrogated / cancelled. However, interpretation of quran is permitted but in the light of

quranic boundaries.

12) ROLE OF QUANIC LAWS IN PAKISTAN:

As Pakistan is an Islamic country, so the rules of quran have the role of back-bone in the laws

of Pakistan and no law can be made which is against the teachings of Quran and Sunnah.

Thus, Quranic law is the supreme law.

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13) CONCLUSION:

Quran is primary source of law in Islam as well as in Pakistan and every law should be in

accordance with the rules of Islam.

SUNNAH AS SOURCE OF ISLAMIC LAW

1) INTRODUCTION:

Allah has sent his books in different times for the guidance of human race but only holy books

cannot tell everything in detail, so he also sent his messengers to fulfill the gap. Our Holy

Prophet (P.B.U.H) is the last messenger of Allah. His life is a beacon of guidance for all human

beings and especially Muslims. Every act of our holy prophet is ‘Sunnah’ and it is the second

most reliable source of Islamic law.

2) MEANING:

Sunnah means “mode of life”

3) DEFINITION:

“Model behavior of the Holy Prophet is called Sunnah”.

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4) KINDS OF SUNNAH:

There are three kinds of Sunnah:

i- SUNNAH QUOLIAH: These are the sayings of Holy Prophet.

ii- SUNNAH FAILIAH: These are the acts of Holy Prophet.

iii- SUNNAH TAQRRAH: These were the acts performed by other people in front of Holy

Prophet and He responded in silence. ‫وہ کام جو دوسروں نے حضور کے سامنے کیے لیکن‬

‫آپ نے منع نہیں فرمایا بلکہ خاموشی اختیار فرمائ‬

5) IMPORTANCE OF SUNNAH IN QURAN:

Surah Nisa-80 “He who obeys the Prophet (PBUH) obeys Allah”.

6) ROLE OF SUNNAH IN ISLAMIC LEGISLATION:

Sunnah has the following important roles in Islamic legislation:

i- SPECIFICATION OF LAWS: Meanings of Quranic laws are general, Sunnah makes them

specific.

ii- LEGAL SUPPORT: Sunnah provides support to Quranic laws.

iii- TRANSLATION OF QURAN: Some rules in quran are difficult and implicit, Sunnah

translates them into easy and understandable form.

iv- INTERPRETATION OF RULES: Quranic rules are comprehensive and difficult, thus they

need interpretation. So, Sunnah tells us that how that rule is implemented. E.g. Quran

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orders Muslims to say prayers but does not tell the method, Sunnah tells the proper

way to say prayers.

v- DERIVATION OF RULES: With the support of Sunnah we can derive the rules of quran

and thus fulfill the legal requirements of modern world.

vi- EXCEPTION OF RULES: Sunnah provides exceptions in some general rules of Quran.

E.g. Sunnah allows us to eat fish without slaying (‫)ذبح کرنا‬

7) DIFFERENCE B/W SUNNAH & HADITH:

i- Sayings of Holy Prophet are called ‘Hadith’ whereas His acts and permissions are called

“Sunnah”.

ii- Sunnah is a wider term [Sunnah quoliah is actually hadith] whereas Hadith is a specific

term.

iii- Sunnah is not available in a proper collected form whereas Hadith is available in the

form of books.

8) CONCLUSION:

Islam covers all aspects of human life and tends to provide guidance in every matter. Quran

is the primary source of Islamic law and Sunnah supplements quranic injunctions. Sunnah is

the practical example for Muslims, it helps us to follow and understand Islam.

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IJMA

1) INTRODUCTION:

Ijma is the secondary source of Islamic legislation. When there are no explicit injunction

available for a matter in Quran and Sunnah then that particular matter is resolved by ijma.

2) MEANING:

Ijma has been derived from Arabic word ‘Jamah’ which means “To agree upon a matter / to

determine or resolve”

3) DEFINITION:

“Ijma is consensus (‫ )کسی ایک بات پر متفق ھونا‬of opinion of majority of competent Muslim

jurists (‫ )ماہر قانون‬regarding religious issue of legal nature”.

4) MUJTAHID:

A person who is qualified to perform ijma is called mujtahid.

5) CONDITIONS FOR VALIDITY OF IJMA:

Following are the conditions which are necessary for the validity of ijma:

i- COMPETENCY: The persons performing ijma, must be competent i.e. they must

possess required qualifications.

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ii- MUSLIMS: Persons performing ijma should be Muslims.

iii- DEATH: Ijma can only be performed after the death of the Holy Prophet (PBUH).

iv- HUKM SHARAII: Ijma can only be performed on a rule of shariah, for any restricted

matter; ijma cannot be performed.

v- JURISTS OF SAME GENERATION: For an ijma to be valid, it must be performed by the

mujtahids of same generation.

vi- MAJORITY CONSENSUS: An ijma is valid only if, at least the majority of mujtahids have

agreed on the same matter.

6) SOURCES OF IJMA:

Ijma can be done by taking guidance from the following sources:

i- Quran

ii- Sunnah

iii- Hadith

7) KINDS OF IJMA:

i- REGULAR IJMA: Is in which jurists express their views and agree on a point.

ii- IRREGULAR IJMA: Is in which jurists resolve an issue and remain silent.

iii- EXPLICIT IJMA: Is in which jurists openly express their views and agree after discussion.

iv- TACIT IJMA: Is in which one jurist is quiet and his consent is considered to be with

majority.
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v- IJMA ALUMMAH: Is done by whole Muslim ummah.

vi- IJMA AHEL-E-MADINA: Is done by jurists of madina.

vii- IJMA AHEL-E-BAYT: Is done by ahel-e-bayt.

viii- IJMA AL SAHABAH: Is done by sahabah.

8) EXAMPLES OF LAWS DERIVED THROUGH IJMA:

i- Second azan for Jummah prayer

ii- Compilation of Quran in the form of book

iii- Share of grandmother in property

iv- Validity of contract for goods yet to be manufactured

9) CONCLUSION:

Ijma is the Islamic way to solve legal problems of sharaii nature. It helps us to fulfill the legal

needs of today’s world.

QIYAS

1) INTRODUCTION:

It is the comparison of a legal case which is not discussed in quran with a case of same nature

discussed in quran on the base of their common shariah principle.

2) MEANING:

Qiyas means “To compare”

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3) DEFINITION:

“To establish the law of the original case for the parallel case on the basis of their common

legal case”.

4) ORIGIN:

Concept of qiyas was introduced by Imam Abu Hanifa who is also known as ‘Imam Ahel-ul-

raay’

5) DALEEL OF QIYAS:

The concept of qiyas is supported by quran, Sunnah and ijma.

6) IMPORTANCE OF QIYAS IN QURAN:

“If you have differ among you over things then resolve the matter in the light of Quran and

Sunnah”.

7) IMPORTANCE OF QIYAS IN HADITH:

“If you don’t find anything in Quran and Sunnah then use your own opinion”.

8) CONDITIONS FOR QIYAS:

i- Can’t be done for quranic rules

ii- Must be done on basis of Hukam-e-sharaii

iii- Must be done on legal grounds

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iv- Must be done on basis of cause of rule in text [text means quran]

v- Meaning of original text should not change after qiyas

vi- Must be done by a competent jurist

vii- Text should support qiyas in that matter

9) LIMITATIONS FOR QIYAS:

i- Can’t be done for criminal matters

ii- Can’t be based on abrogated rule (‫) تنسیخ شدہ قانون‬

iii- Can’t be based on exceptional rule

iv- Can’t be drawn (‫ ) اخذ کرنا‬from another qiyas

10) EXAMPLES OF RULES DERIVED FROM QIYAS:

i- Original Rule: All sale transactions are forbidden after azan for Jummah Prayer

Qiyas Rule: All kinds of business activities are forbidden after azan for Jummah Prayer

ii- Original Rule: Property of orphans, who are minor, must not be given to them until

they become major [Person of age less than 18 years is minor and equal to or above 18 years is major]

Qiyas Rule: Minors cannot enter into any contract until they become major

11) KINDS OF QIYAS:

There are five main kinds of qiyas:

i- QIYAS AL-ILLAH: is based on cause

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ii- QIYAS AL-DALALAH: is based on significance ‫اہمیت‬

iii- QIYAS AL-SHABAH: is based on resemblance

iv- QIYAS AL-JALLI: is based on certain evidence

v- QIYAS AL-KHAFFI: is based on uncertain means

12) CONCLUSION:

With the help of qiyas, those issues can be resolved which are not covered directly in Quran

and Sunnah. Thus, qiyas provides a legal solution within Islamic limits.

IJTIHAD

1) INTRODUCTION:

It is the fundamental duty of every Muslim to abide by the rules of Islam and should do efforts

throughout his entire life in order to understand the injunctions of Islam. Ijtihad is the effort

of Muslim Mujtahids to ascertain the true sense of Shariah principles.

2) MEANING:

“To struggle”

3) DEFINITION:

“The effort to solve a problem in the light of Shariah is called ijtihad”.

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4) PROCESS OF IJTIHAD:

i- Mujtahid should acquire the required qualifications for ijtihad.

ii- Mujtahid should be able to understand different aspects of a rule.

iii- Mujtahid should be able to completely understand the matter at hand.

iv- Mujtahid should do his sincere efforts to derive the law.

v- Mujtahid should know abrogated rules.

vi- After a deep analysis, mujtahid should derive the results.

5) LIMITATIONS ON IJTIHAD:

i- Ijtihad cannot be done against a clear and explicit rule of Quran

ii- Ijtihad should be done within the limits of shariah principles

iii- Can’t be done against Hadith

iv- Can’t be done against Sunnah

6) WHO CAN DO IJTIHAD?

Only a ‘Mujtahid’ can do ijtihad. Every ordinary Muslim can’t do ijtihad without acquiring

necessary qualifications.

7) QUALIFICATIONS OF A MUJTAHID:

i- Muslim

ii- Adult

iii- Sane
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iv- Unbiased (‫) غیر جانبدار‬

v- Wise

vi- Pious

vii- Knowledge of Arabic

viii- Knowledge of Quran

ix- Knowledge of Sunnah

x- Knowledge of Hadith

xi- Knowledge of Principles of Shariah

xii- Knowledge of Interpretation of Quran

8) CONCLUSION:

Ijtihad is a struggle to derive a new law which is the need of the society. Islam provides the

opportunity and flexibility to make some new rules but also restricts strictly that the rules

should be according to the principles of shariah.

ISTEHSAN

1) INTRODUCTION:

Islam is the religion of nature and it tends to provide its followers ease of life and rules.

Istehsan is the relaxation in the principles of Islam for the ease and benefit of its followers

but these relaxations are within the prescribed limits of Shariah.

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2) MEANING:

Istehsan means ‘to consider something good’

3) DEFINITION:

“To give up analogy for a stronger evidence from Quran, Sunnah or Ijma”.

4) EXAMPLES OF ISTEHSAN:

Sale of goods which are yet to be manufactured is prohibited in Islam but in order to meet

the needs of the society, this has been allowed.

5) WHO INTRODUCED ISTEHSAN?

Imam Abu Hanifa was the first jurist who used Istehsan for the first time.

6) WHO REJECTED ISTEHSAN?

Imam Shafi and Al-Ghazali rejected Istehsan as source of law.

7) KINDS OF ISTEHSAN:

i- ISTEHSAN THROUGH QURAN: in this kind of Istehsan, there is a rule in quran and its

exception is also given in quran at a later stage.

ii- ISTEHSAN BASED ON IJMA: is the Istehsan which is based on ijma done by the

mujtahids.
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iii- ISTEHSAN BASED ON QIYAS KHAFI: e.g. if beast of prey drinks water from someplace,

the remaining water is not pure; so it is not allowed for drinking but through istehsan

the jurists found that this rule does not apply on domestic animals. ‫اگر درندہ کہیں سے‬

‫پانی پی لے تو باقی پانی ناپاک ہو جائے گا لیکن یے اصول پالتو جانوروں پر الگو نہیں ہوتا‬

iv- ISTEHSAN BASED ON NECESSASSITY: If pure water is not available for ablution,

available water can also be used.

8) CONCLUSION:

Islam provides its followers the relaxation to adopt the rules by slight modification according

to the needs.

KHALIFA/ IMAM

1) INTRODUCTION:

According to Islam, Allah almighty is the sovereign authority and man is his representative

on earth. The head of Islamic state is known as Khalifa or Imam, he is bound to abide by the

injunctions of Islam not only by himself but also to make others do the same.

2) MEANING:

Imam means “Leader” and Khalifa means “successor”

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3) DEFINITION:

“A man who in succession to the Prophet, has the right to absolute command of the Muslims

in all religious and non-religious affairs”.

4) STATUS OF KHALIFA:

Khalifa is the head of the state and has the supreme authority over all organs of the state.

5) REQUIREMENTS TO BECOME KHALIFA:

Following are the requirements which are must for a Khalifa:

i- Muslim

ii- Age of Puberty

iii- Sane

iv- Pious

v- Unbiased

vi- Free

vii- Courageous

viii- Brave

ix- Aadil

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x- Knowledge of Shariah

xi- Able to conduct battles

xii- Mujtahid

6) DUTIES OF KHALIFAH:

i- Implement islamic laws

ii- Maintain Justice

iii- Defend Religion

iv- Defend Country

v- Enforce laws

vi- Collect taxes

vii- Pass Judgements

viii- Control Economy

ix- Make people’s lives easier

x- Be accessible to everyone

xi- Eradicate enemies of religion

xii- Eradicate enemies of state

xiii- Maintain good relations with neighboring countries

xiv- Help other Muslim countries

xv- Increase Muslim Unity around the world

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7) CONCLUSION:

Khalifa of Muslims must be a role model to all the people of the state and he must maintain

Islamic values all around the country.

MILK/ OWNERSHIP

1) INTRODUCTION:

Islam tends to protect the rights as well as the properties of individuals. The Arabic word for

ownership is ‘Milk’ and Arabic word for property is ‘Maal’.

2) MEANING:

Ownership means ‘relation of owner with the things owned’.

3) DEFINITION:

“Ownership is the connection between a man and a thing which is under his absolute power

and control”.

“Something that can be stored or saved for use and enjoyment is called Maal”.

4) CLASSIFICATION OF MAAL:

i- MOVEABLE & IMMOVEABLE PROPERTY

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ii- SIMILAR & DISSIMILAR PROPERTY

iii- DEFINITE & INDEFINITE PROPERTY

iv- EXCHAGEABLE & UNEXCHAGEABLE PROPERTY

v- CONSUMABLE & NON-CONSUMABLE PROPERTY

5) THINGS NOT INCLUDED IN PROPERTY:

i- Air

ii- Light

iii- Water

iv- Public Roads

v- Forests

vi- Grass

vii- Public Institutions

6) KINDS OF OWNERSHIP:

i- SOLE OWNERSHIP: In this kind of ownership, there is only one owner of a property.

ii- JOINT OWNERSHIP: In this kind of ownership, there are more than one owners of a

property.

7) WAYS OF ACQUIRING OWNERSHIP:

There are three ways of acquiring ownership:

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i- IHRAAZ: Ownership is called ‘ihraaz’ if the property is acquired by the first time i.e.

there was no previous owner of the property. E.g. fish caught from the river

ii- NAQAL: It is the ownership that results due to transfer of property by the act of the

parties. E.g. sale, gift etc

iii- KHALIF: It is the ownership that results due to succession. E.g. property received by

children on the death of father

8) WAYS OF LOOSING OWNERSHIP:

There are four ways of losing ownership:

i- TRANSFER: Ownership is lost if the owner transfers his property to another person.

E.g. sale, gift

ii- DESTRUCTION OF PROPERTY: Ownership is lost if the property is destroyed.

iii- OPERATION OF LAW: Ownership is also lost by operation of law. E.g. a property is

forfeited by the government

iv- DEATH OF OWNER: If owner dies, his ownership is lost.

9) CONCLUSION:

Ownership is the exclusive control of a person over a specific property which prohibits others

to interfere or use that property.

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QANOON-E-SHAHADAT

1) INTRODUCTION:

Islam tends to maintain justice in society through fair rules and regulations. The value of

evidence in Islamic judicial system is very important. Qanoon-e-shahadat is also regarded as

law of evidence.

2) MEANING:

Generally, evidence means “proof”

3) DEFINITION:

“Anything that gives a proof of a fact is called evidence”.

4) QURANIC IMPORTANCE OF EVIDENCE:

“Do not conceal testimony. He who conceals it, his heart is sinful”.

5) ISLAMIC JURISPRUDENCE BEHIND LAW OF EVIDENCE:

The jurisprudence of Islam behind the qanoon-e-shahadat is:

i- Everyone is innocent until proven guilty

ii- No innocent should be punished

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iii- No one should be condemned unheard

iv- Everyone should be accountable of his acts

6) KINDS OF EVIDENCE:

There are three kinds of evidence:

i- TESTIMONY: is open declaration made orally by an eye-witness before a competent

court of authority.

ii- CONFESSION/ ADMISSION: is the statement given by the guilty against himself before

a competent court of authority.

iii- EXPERT/ SCIENTIFIC EVIDENCE: is given by the expert. E.g. forensic lab report

iv- PERSONAL KNOWLEDGE OF JUDGE: It is rare case when the judge himself is the eye-

witness about a matter.

7) WHO CAN BE A COMPETENT WITNESS?

i- MUSLIM

ii- MALE

iii- ADULT

iv- SOUND MIND

v- GOOD CHARACTER

vi- ABSTAINED FROM MAJOR SINS

vii- PHYSICAL FITNESS

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viii- MUST HAVE ALL FIVE HUMAN SENSES

ix- HONEST

x- UNBIASED

xi- GOOD REPUTATION

xii- FULFILL REQUIREMENTS OF TAZKIYAH AL SHAHOOD

xiii- TRUTHFUL

8) WHO CAN’T BE A COMPETENT WITNESS?

i- LUNATIC

ii- INSANE

iii- IDIOT

iv- NON-MUSLIM

v- BIASED

vi- LIAR

vii- BAD REPUTATION

viii- BAD CHARACTER

ix- SEVERLY ILL

x- MENTAL ILLNESS

xi- NON MUSLIM

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xii- CONVICTED OF QAZF

xiii- CLOSE RELATIVE

xiv- FAST FRIEND

xv- ENEMY

xvi- OFFENDER OF MAJOR SINS

9) COMPETENCE OF WOMAN WITNESS:

Two women along with a man are competent witness but a women is not a competent

witness in Hudood Cases.

10) CONCLUSION:

Islamic law of evidence helps us to maintain justice and equity in the society. It saves the

innocent and punishes the guilty.

QAZI / JUDGE

1) INTRODUCTION:

In Islam, the judge is named as Qazi and he is responsible to exercise justice and equity

according to shariah principles in his court. The department of justice was first introduced by

Hazrat Abu Bakar (R.A) in history of Islam and he appointed Hazrat Umar (R.A) as first chief

justice of the Islamic state.

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2) DEFINITION:

“The religious judge working under shariah principles is called qazi”.

3) QUALIFICATIONS OF QAZI:

A person can only be appointed as qazi if he possess the following qualifications:

i- MUSLIM

ii- MALE

iii- ADULT

iv- SOUND MIND

v- GOOD CHARACTER

vi- ABSTAINED FROM MAJOR SINS

vii- PHYSICAL FITNESS

viii- MUST HAVE ALL FIVE HUMAN SENSES

ix- HONEST

x- UNBIASED

xi- GOOD REPUTATION

xii- TRUTHFUL

xiii- KNOWLEDGE OF LAW

xiv- FREE MAN NOT SLAVE

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xv- KNOWLEDGE OF RULES OF INTERPRETATION

xvi- JURIST

xvii- CAPACITY TO MAINTAIN EQUALITY

xviii- DECISION MAKING POWER

4) WHO CAN’T BE A QAZI?

xvii- LUNATIC

xviii- INSANE

xix- IDIOT

xx- NON-MUSLIM

xxi- BIASED

xxii- LIAR

xxiii- BAD REPUTATION

xxiv- BAD CHARACTER

xxv- NON MUSLIM

xxvi- CONVICTED OF QAZF

xxvii- OFFENDER OF MAJOR SINS

xxviii- FAISQ ( ‫)سرعام گناہ کرنے واال‬

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 ISLAMIC JURISPRUDENCE 29

5) DUTIES OF QAZI:

i- Do justice

ii- Follow shariah principles in decision making

iii- Maintain equity

iv- Custodian of Property of incompetent persons

v- Custodian of Waqf property

6) STATUS OF WOMAN:

A woman can be appointed as Qazi but she is not competent to pass orders of Hadd and

Qisas.

7) CONCLUSION:

Qazi is a person who is guardian of the rights of individuals living in an Islamic society. Islam

imposes a very important duty on qazi i.e. to do justice even if the guilty is his own son

because a society can only prevail if justice prevails.

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NOTE:

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