INTRODUTION TO ISLAMIC LAW 1

MEANING OF SHARI’AHShari'ah is not merely a collection of do's and don'ts, nor just a code

of criminal laws prescribing punishments for certain crimes. Its scope is much broader and

deeper, encompassing the totality of person's life. Shari'ah literally means a 'clear, trodden path

to a source of water'. Since water is the source of life, it means a clear path to life. In religious

terms, it is the path to the eternal life. It is the path that a person, in Islam, must walk as he toils

and strives to reach his Creator. The Shari'ah is the fulfilment of the total man- inner and outer,

individual and corporate-as he seeks to live by the will of his one and only God. From the time

that he is in the womb until the time that he is born, then throughout his infancy, adolescence,

adulthood, and old age, and even up to his death and beyond, Islamic Law protects and

safeguards the rights of the human being. It assures these rights, even when the individual is

unable to assert them for himself, like when he is in the womb, or is in his infancy, or is beset by

senility, or after death. It, likewise, protects the rights of the rational adult without any

discrimination.Islamic Law is a comprehensive system covering the human being’s relationship

with his Creator, with his fellow human beings, and with his society and nation. It also deals with

the relationship between nations in both war and peace.Islamic Law comprehends all branches of

modern Law, general and specific. Islamic law is a system of law given by the creator of the

universe i.e. all the worlds (Allah). It was sent to Prophet Muhammad, peace be upon him,

through His arch angel, Jubril via revelation of the Holy Qur’an for mankind and the world of the

jinns.

The word Islam has its origin in the word “salam” which means peace. Allah himself is

Assalaam, the Source of peace. Technically, Islam is defined by scholars as “total submission to
the will of Allah. Thus, it is a way of life. Allah is the Arabic word for God, the Creator and

Sustainer of the universe. The Prophet of Islam. He came after Prophet ‘Iysa (Jesus Christ). He is

the seal of all prophets with the final message.

NATURE AND SCOPE OF ISLAMIC LAW

Islamic law is an aspect of law in Nigeria. The Nigerian legal system comprises Received

English law, Islamic law and other indigenous laws. It is a natural and divine law that embraces

Islamic jurisprudence. It is universal in nature for the law students, it relates to the legal aspect of

the law alone.

The Islamic law is being taught in the faculty of law and faculty of arts, it is also included in the

faculty of Humanities and also in the faculty of education. In England, it is being taught in the

faculty of law in some Asian Universities, it is taught in faculty of law Shari’ah dept. In

Malaysia, South Africa it is grouped in faculty of law and it is a branch of Islamic jurisprudence,

which includes religion, historical, social, educational, languages and the legal aspect.

To the student of law, we shall be conceived with the legal aspect alone. The language aspect i.e.

Arabic shall be left for the department of Islamic studies. The practical is left for the Muslims.

The historical aspect is commonly shared among all the departments including the faculty of law

just as it is being done in the University of Bristol where professor Baderin is teaching law.

The legal aspect of Islamic jurisprudence is equally shared among all the department concerned

but, the nitty-gritty of the procedural and substantive law is restricted to the faculty of law.
The nature of Islamic law however centralizes the sources of the law. Consequently, the

substantive law remains the same in all jurisdictions while the procedural laws are affected with

the circumstances in some instances. Islamic law is a universal law applicable to all Muslim and

Islamic countries.

An Islamic country, state or jurisdiction is where the application of Islamic law is total i.e. where

Islamic law is the Grundnorm (the fundamental law) of a given state. Where a State is declared

as an Islamic State, it is expected that their legal system is based on Shari’ah, their constitutional

law is dominated by the Qur’an and Hadith. Their criminal law is not penal but according to the

practical application of Hudud (Islamic criminal law). The procedural law is also according to

Islamic teachings. The court arrangement is according to Islamic law and their dressing,

procedure, sentence, judgment and appeal must be in accordance to Islamic law. For example

Saudi Arabia and Iran.

A Muslim State is a jurisdiction where Islamic law is applicable partially i.e. Muslims are in the

majority or less majority but are allowed to use and apply the Islamic law to govern their daily

activities. The Islamic law/Shari’ah/jurisprudence is recognized n the constitution of the given

sate. Such a state allows the Muslims to established courts operating Islamic law with statutory

recognition and highlights the jurisdiction of such courts e.g. Nigeria.

OBJECTIVE OF SHARI’AH

Early Muslim scholars have looked at the question of why Allah revealed the Law. Some

Muslim scholars of jurisprudence, especially Ibn Taimiah, said that Allah revealed such a

legislative system or Shari’ah in order to achieve Justice. Other jurists said it is for the purpose of
achieving happiness. And still some others, especially al-Ghazali, said it is only for the

achievement and the realization of the very benefits of man on earth.

Islamic country - strictly Islamic law

Muslims country - allow Muslims to operate Islamic law

The principles and law of the Shari’ah are part of every society and country. The difference in

many cases is that when a Muslim follows the Shari’ah, he abides by the Law with intent to

please the Almighty Allah.

Shari’ah teaches the best way of performing prayers, giving in charity, fasting, getting married,

doing business, and more.

It is also part of Shari’ah to speak the Truth, not to lie, not to backbite, not to steal, not to kill, not

to abuse, not to deceive in trade, and if you do not like your purchase, take the item back to

wherever you purchased it.

A closer look at these three approaches to Shari’ah shows that they complement each other:

happiness of mankind cannot be achieved at large without justice, and justice is one of the

essential benefits and interest of people on earth.

Based on the Holy Quran and the Hadeeth, early Muslim scholars have given five universal

necessities on which the lives of people depend.

THE FIVE ESSENTIALS

Religion (Al_Din), Life (Al-Nafs), Property (Al-Mal), Intellect (Al-‘Aql), Procreation (Al-Nasl),

while some scholars say they are six essentials by adding Honour/Dignity (Al-’Irdh).

The objective of the Shariah is to preserve and promote what is good in the context of these five

universals.

SCOPE AND CONTENT

Islamic Law comprehends all branches of modern Law, general and specific.

It investigates matters of International Law when dealing with issues relating to war, its methods,

purposes, and results, and when dealing with issues pertaining to the relationship between the

Islamic state and others.

Some of these questions can be found collected under the heading of “Campaigns and Military

Expeditions”.

The primary objectives of some of the injunctions in the Qur’an and the Hadith are to attain

nearness to Allah, worship Him, showing Him gratitude, seeking His pleasure and eternal reward

in the hereafter.

It comes to regulate three different factors: the relationship between the individual and his Lord,

the relationship between the individual and himself, and the relationship between the individual

and others. Devotional Law deals with the first of these through its legislation of different forms

of worship, like prayer and fasting.

The relationship between the individual and himself is handled by injunctions like those dealing

with dietary laws, those regulating personal dress, and everything else that is legislated for the

purpose of protecting the individual, his mind, and his body.

The relationship between the individual and others is regulated by Transaction Law and the

prescription of punishments to be carried out in this world by the political authorities. It covers

such things as marriage (Nikah), buying and selling (Bay’), leasing (Ijarah), retribution (Qisas),

fixed punishments (Hudud), discretionary punishments (Ta’zir), legal verdicts (Fatawa), and

testimony (Murafa’ah).

The regulation of all three of these concerns assures that Islamic Law deals with every aspect of

human life. In Islamic Law, this is expressed in terms of the five necessities mentioned above

under essentials: life, religion, reason, honor, and property. All Islamic legislation can be referred

back to the preservation of one or more of these five necessities.

If we compare Islamic Law in this respect to any of the man-made legal systems such as

Common law, Civil law or Customary law, we will find that the latter only deal with the

relationship between the individual and others.

The notion of “separation of church and state” is rejected by the Sharia that has Islamic Law as

one of its fundamental components. Ethics is likewise a fundamental principle. The

comprehensiveness of Islamic Law also manifests itself in its direct concern for every stage in an

individual’s life.
DISTINCTIVE CHARACTERISTICS OF ISLAMIC LAW

Islamic law is distinguished by certain characteristics and unique qualities that are not shared by

any other legal system.

Islamic Law, with its distinctive features, is unprecedented in the history of Law. Islamic Law is

the broadest, most comprehensive system of legislation in the world. It was applied, through

various schools of thought, from one end of the Muslim World to the other. It also has a great

impact on other nations and cultures. Many nations of the world borrowed their own legal

systems from Islamic Law by way of contact with Islamic Spain, Sicily, Turkestan, Bukhara, and

the Balkans. In today’s time, it is considered one of the sources of world law.

Islamic Law is a comprehensive system of law covering the human being’s relationship with his

Creator, with his fellow human beings, animals, trees and his environment.

It also deals with the relationship between nations in both war and peace. Most jurists divide the

study of Islamic Law into two broad categories: Devotional Law and Transaction Law.

SOME OF THE UNIQUE CHARACTERISTICS OF ISLAMIC LAW

These characteristics have allowed it to enjoy stability, growth, and relevance for over fourteen

centuries. It shall remain so until Allah repossesses the Earth and everyone upon it.

IT IS DIVINE

It is a divine law and described as a Natural law because it has the characteristics and exposure

of natural laws. All the injunctions of Islamic Law are revelation from Allah, so the one who is

legislating for mankind is their Creator who knows best what will be of benefit to his creation in
both this world and the next. He knows the psychological makeup of the human being, what will

be in harmony with it, and what will clash with it. Allah says:

“Does the One who created not know, and he is the Gentle, the All-Aware.”

Qur’an 67 v. 14

Man-made law, on the other hand, is the product of the human intellect that has limited powers

and is subject to deficiency and error. This is the reason that the intellect can never truly

comprehend the human soul and what is in harmony with the nature that Allah has placed within

it. Therefore, the legislations that come from human effort may not always be suitable for human

nature.

Islamic law integrates the external life to the physical world. It is an ecclesiastical law. It is of

general phenomenon that tends to relate the abstract to the physical existence. It is eternal as it

abides now and enurs for ever, it doesn’t change. It is not subjected to any amendment, repeal,

alteration or expunge.

IT IS COMPREHENSIVE

Before discussing the most important of these distinguishing features, we wish to point out that

Islamic Law is much broader in scope and much more complete than any man-made code of law.

Islamic Law covers all aspects of Law covered by man-made “positive” law as well as other

issues that such man-made laws do not touch upon. For this reason, one orientalist was of the

opinion that there is no exact equivalent to the term “fiqh” in any Western language.
There is nothing strange about this, because Islamic Law derives its principles and tenets from

the Book of Allah that was sent down by the Most Wise, the Most Praiseworthy Creator, a Book

that cannot be approached by falsehood from any angle. No sphere of human life is overlooked

or neglected.

“There is no animal on land, nor a bird flying with its wings, but are communities like

you. We neglected nothing in the Scripture.….………”

Qur’an 6 v. 38

IT IS UNIVERSAL

Islamic Law, with its distinctive features, is unprecedented in the history of Law. It is the

broadest, most comprehensive system of legislation in the world and applied the same way

everywhere in the world of Muslims. It was applied, through various schools of thought, from

one end of the Muslim World to the other.

See the case of Alhaji Ila Alkamawa v. Alhaji Hssan Bello (1998)

It also had a great impact on other nations and cultures. Many nations of the world borrowed

their own legal systems from Islamic Law by way of contact with Islamic Spain, Sicily,

Turkestan, Bukhara, and the Balkans.

In today’s time, it is considered one of the sources of world law.

IT IS PRESCRIPTIVE

The state employs law as a means of achieving certain limited goals where the political authority

has no other means at its disposal to bring them to realization. In short, law becomes the obedient

donkey of the state, bearing its burdens and following its directions.

Islamic Law, on the other hand, is not shaped by society. Quite the contrary, society is shaped by

it. This is because man did not create it, but in fact, recreates himself in conformity to it.

Moreover, it defines the rights and obligations each individual has with respect to others, so that

the potential harm any individual might cause for others is effectively negated. In this regard,

Allah’s Messenger (peace be upon him) said: “There should be no harm and no harming of

others.”

IT IS RIGID IN PRINCIPLE AND FLEXIBLE IN APPLICATION

Islamic Law rests upon a set of stable, unchanging principles derived from the Quran and

Sunnah. The texts of the Quran and Sunnah have been most carefully and accurately recorded

and preserved. Most of these texts contain general injunctions for legislation without going into

the precise details relating to application. This affords the jurist broad powers of discretion that

allow him to take ever-changing circumstances into consideration. Allah says ;

“Allah intends for you ease, and He does not want to make things difficult for you.”

Qur’an 2 v. 185
IT IS WRITTEN

Islamic law has a distinctive feature i.e. it is contained in the Holy Book called the Qur’an and

Hadith of Prophet Muhammad (peace be upon him) revealed by the Almighty God and instructed

to be documented in a book form.

The documentation serves as the main source of the law worldwide.

This alone settles the misconception of scholars and writers with the view of categorizing Islamic

law as a native or an indigenous customary law of the Northern Nigeria.

See the case of Usman v. Umaru (1992)

THE ABSENCE OF DIFFICULTY AND THE LIMITATION OF IMPOSITION

Islamic Law does not impose any obligations of great severity or difficulty.

Nothing in Islamic Law is overly burdensome. Whoever scrutinizes the injunctions of Islamic

Law will find within them a clear tendency towards alleviating difficulties. He or she will also

find that all obligations that have been imposed, from the onset, have had leniency and ease

taken into consideration for the ones who must carry them out.

Allah has commanded that every legally accountable person must perform prayer five times a

day, no individual prayer requiring more than a few minutes. The one who is unable to stand is

permitted to sit.

The obligations imposed by Islamic Law are few. They can all be learned in a short period of

time.
They do not have many particulars and secondary factors to consider, making it easy to know

them. Allah says:

“O you who believe, do not ask about things that if they were made clear to you would cause you

harm. If you ask about them when the Quran is being revealed, they will be made clear to you.

Allah has forgiven them, and Allah is Forgiving, Forbearing. Those before you asked about them

then became disbelievers.”

Qur’an 5 v. 101

Other jurists said it is for the purpose of achieving happiness. And still some others, especially

al-Ghazali, said it is only for the achievement and the realization of the very benefits of man on

earth.

STATUS OF ISLAMIC LAW UNDER THE NIGERIA LEGAL SYSTEM

The Nigeria Legal System is pluralistic in nature i.e. it accommodates the received English law

i.e. the principles of Common law and the doctrine of equity, the indigenous customary law i.e.

the Native laws and customs, and in particular the Islamic law. Cumulative of these laws makes

what is today known as Nigerian law. Islamic law in Nigeria spans several era and has many

facets.

PRE COLONIAL ERA

The Islamic law is part of the Nigerian law from the inception and has been in fact firmly

adopted before the advent of the colonial masters. The imperial masters entered into an

agreement of understanding with Northern rulers for the common law to be accepted in their
administration. Northern life was patterned along Islamic law so much that Northern culture is

hardly distinguished from Islamic culture where their court system was governed by Islamic

principles while majority forsook their traditional religion for Islamic religion. After the Lugard

Military expedition of 1903 wherein majority of the Northern leaders were arrested, the

memorandum of understanding entered into was to the effect that Islamic law was to be

preserved. But in reducing this to writing, the European masters mutinised the status of the law

and the ignorance of the northern as their not been lettered in English language and legal terms

assisted the European masters to reduce the operation of Islamic law and which has since 1906

affected the practice and operation of Shari’ah which necessitated reasons for the rebirth of the

legal system in Nigeria.

It is evident from the criminal law practice between 1916-1959 that the Northerners

jettisoned the common law court in the practice of their criminal matters in favor of

Shari’ah championed by the Area Courts (see Okonkwo and Naish Criminal law

Nigeria). This position became more pronounced in 1957 when the southern part of the

country got a partial independence and the Northerners refused to be joined in

independence until their conditions and disposition for Islamic law was fulfilled. Thus the

government set up a committee in 1959 to look into the possibility of establishing a panel

code for the Northern part of the country is a confirmation of the desired aspiration and

resoluteness of the northerners to be governed by Islamic law. Consequently, they

operated two types of codes- Criminal Code and Criminal Procedure Act (CC & CPA)

for the South and the Penal Code and the Criminal Procedure Code (PC & CPC) for the

North. It was after the establishment of the code resembling an Islamic criminal law that

the northerners subscribed to independence. This status and state recognition of Islamic
 law was carried into the Constitution of the Federal Republic of Nigeria wherein Islamic

law was recognized as part and parcel of Nigerian legal system. Please note that the

practice of Islamic law was also in operation in the southern part of the country, Ede,

Ibadan, Epe and Central Lagos in the quarters and mosque known as ‘Alalukurani’

Mosque. The court therefore in establishing Islamic law did not create a dichotomy

between the North and the South.

Summarily, Islamic law (Shari’ah) has been in the Kanuri land since the time of Kanem Bornu

empire. Kanem Bornu was an Islamic state since the 11th century. Before the 1804 (Fulani)

Jihad, Islam had penetrated the Hausa land with its political tenet as early as 13th century. In

1804, there was a Jihad led by Uthman dan Fodio in Sokoto that led to the areas we call

Northwest, Northeast and some parts of North central to fall under the Emirate. The essence of

that Jihad was to remove corruption from the land such as; sexual immorality, over-indulgence

and worship of idols which is against Shari’ah. So it was a revolution for reformation.

The history of Islam in Yoruba land predated Uthman dan Fodio Jihad of 1804. It is recorded

that Islam has been in Yoruba land since the 17th century. The areas include: Ibadan, Iwo,

Oshogbo, Ede, Isale-eko (Lagos Island).

COLONIAL ERA

During the colonial era, Lord Fredrick Lugard, the administrator of Northern protectorate met a

well established organization and functioning judicial system. There were Islamic courts called

Alkali courts. Lord Lugard allowed the system to be and introduced ‘indirect rule’, by ruling

them through the Emirs who were governing their emirates with Shari’ah.
Lord Lugard retained the Shari,ah as a legal system.

AT INDEPENDENCE

Because of the existence of Islamic law side by side with English law, the Nigerian legal system

was a dual law as earlier mentioned. There was Criminal Code in operation in the South and

Penal Code in operation in the North.

The Penal Code Act includes some offences known to Shari’ah such as:

1. Zina (adultery and fornication)

2. Shurbul-khamr (drinking of intoxicants)

3. Qadhf (false accusation against a chaste woman) etc.

The procedural law for the administration of criminal justice in the North was also different. In

the North, we had Criminal Procedure Code while in the South Criminal Procedure Act was

made available.

Section 240 of the constitution (FRN 1979) did establish Shari’ah Court of Appeal and allows its

jurisdiction to cover the generality of Nigerian citizens. This position was maintained in the

aborted constitution of 1985 and with notification of 1999.

Section 275 (1) of the 1999 constitution provides

There shall be for any state that requires it a Sharia court of appeal for the state. The

implications of this sections are as follows;

 1. That a Sharia court of appeal can be established in any state.

2. That immediately or as soon as state requests for the establishment of a Sharia

Court of Appeal, such shall be established without any delay.

3. That using the word “shall” makes its establishment mandatory upon request.

4. That the request shall be by a state to the exclusion of other citizens of other

States including the national Assembly, executive and the readiness of the

judiciary of that state. A memorandum could achieve this or motion public or

private passed into law by the enabling authority. Consequently, therefore it is our

humble submission that the establishment of Shari’ah Legal System in some

northern states as received by the citizen of those states is not only statutory but

also constitutional. Please note that the assumption of the constitution for the

establishment of Sharia Court of Appeal which is on the same pedestal with the

various High Courts of the land could not be grossed over in the rules of

interpretation. Where a constitution gives room for the establishment of a court of

appeal, it is assumed that a court of first instance is in place and in this regard it is

an area court or an establishment of Shari’ah courts.

Law relating to marriage dissolution, family relationship, guardianship of an infant, Will,

succession, inheritance, donor and distribution of wakf, (inheritance) estate. All the above

mentioned are referred to, as Islamic personal law and they are part of civil laws. This

was the mutilation given to the law since 1916. It was the realization by the northerners

when they became learned in Western education that informed them to move for the

provision of section 275 and make use of the lacuna created in section 277 (CFRN 1999)

that empowers State Houses of Assembly to legislate on the issue at hand. In consonance
 with the provision of section 4 (7) (CRFN), the House of Assembly of States operating

Shari’ah legal system has to

“make laws for the order, peace and good governance of the state or any matter

thereof with matters not excluded in the exclusive list; and any matter included in

the concurrent list; and any other matter with respect to which the house of

Assembly is empowered to make laws upon”

These provisions and the likes empower the states to expand the jurisdiction of the

Shari’ah Courts of Appeal. Please note that the Constitution provides that where an

Islamic law is to be applied the parties are deemed to be Muslims who have subjected

themselves to the law. But with profound respect to other schools of thought and canons

of interpretation. Nothing in the provisions section 275-279 (CFRN 1999) expressly

prohibits Islamic law to be applied on a non-Muslim.

The 1979 constitution also provided for non-Muslims to also approach the Shari’ah Court of

Appeal if they wish but 1999 Constitution does not include non-Muslims.

S. 242 (2)(e) “where all the parties to the proceedings (whether or not they are moslems) have

requested the court that hears the case in the first instance to determine that case in accordance

with Islamic personal law,…………….”

A CURSORY LOOK AT SHARI’AH UNDER THE 1999 CONSTITUTION

S.1 (1) This Constitution is supreme and its provisions shall have binding force on the authorities

and persons throughout the Federal Republic of Nigeria.

(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall

prevail, and that other law shall, to the extent of the inconsistency, be void.

This Constitution, in S. 6 just like the 1979 Constitution vests the judicial powers on the courts

and in (5)(f) & (g)it lists “the Sharia Court of Appeal of Federal Capital Territory, Abuja” and “a

Sharia Court of Appeal of a State” among the Courts.

This same constitution establishes the Shari’ah Court of Appeal at the FCT, Abuja in S. 260 and

provides for all that is needed for the court performance in Ss. 261 to 264.

It also provides for the establishment of a Shari’ah Court of Appeal of a State in S.275 and all it

needs to perform in Ss. 276 to 279.

SHARI’AH COURT OF APPEAL, FCT, ABUJA AND 1999, CFRN

In recognition of Islamic law and making same applicable in Nigeria, the Constitution provides

as follows

S. 260. (1) There shall be a Sharia Court of Appeal of the Federal Capital Territory, Abuja.

(2) The Sharia Court of Appeal of the Federal Capital Territory, Abuja shall consist of -

(a) a Grand Kadi of the Sharia Court of Appeal. and

(b) such number of Kadis of the Sharia Court of Appeal as may be prescribed by an Act of the

National Assembly.

S. 261. The Constitution provides for the appointment of Grand Kadi and Kadis of the court.
S. 262. (1) The Sharia Court of Appeal shall, in addition to such other jurisdiction as may be

conferred upon it by an Act of the National Assembly, exercise such appellate and supervisory

jurisdiction in civil proceedings involving questions of Islamic personal law.

S. 263. For the purpose of exercising any jurisdiction conferred upon it by this Constitution or

any Act of the National Assembly, the Sharia Court of Appeal shall be duly constituted if it

consists of at least three Kadis of that Court.

S. 264. Subject to the provisions of any Act of the National Assembly, the Grand Kadi of the

Sharia Court of Appeal of the Federal Capital Territory, Abuja may make rules for regulating the

practice and procedure of the Sharia Court of Appeal of the Federal Capital Territory, Abuja.

SHARI’AH COURT OF APPEAL OF A STATE AND 1999, CFRN

S. 275. (1) There shall be for any State that requires it a Sharia Court of Appeal for that State.

(2) The Sharia Court of Appeal of the State shall consist of -

(a) A Grand Kadi of the Sharia Court of Appeal; and

(b) such member of Kadi of the Sharia Court of Appeal as may be prescribed by the House of

Assembly of the State.

S. 276. provides for the appointment of Grand Kadi and Kadis of the court.

S. 277. (1) The sharia Court of Appeal of a State shall, in addition to such other jurisdiction as

may be conferred upon it by the law of the State, exercise such appellate and supervisory
jurisdiction in civil proceedings involving questions of Islamic personal Law which the court is

competent to decide in accordance with the provisions of subsection (2) of this section.

S. 278. For the purpose of exercising any jurisdiction conferred upon it this Constitution or any

law, a sharia Court of Appeal of a State shall be duly constituted if it consists of at least three

kadis of that Court.

S. 279. Subject to provisions of any made by the House of Assembly of the State, the Grand

Kadi of the Sharia Court of Appeal of the state may make rules regulating the practice and

procedure of the Sharia Court of Appeal.

THE PERIOD BEFORE ADVENT OF ISLAMIC LAW JAHILIYYAH PERIOD

Prior to the advent of Islamic law, the Mekkan Peninsular was characterized by political

instability, social unrests, economics chaos, sex discrimination and hostility. Political,

they practiced oligarchy wherein the power to rule was restricted to a clique, cabal or an

individual. During the period, wars were the order of the day and feudalism was also

used. The wealthily class oppressed and dominated the less privileged ones. They

practiced monarchical system of government, which was not purely democratic. Killing

of a member of the royal family intentionally or not, attracts retaliation of claiming

another life (Retribution).

Socially, the period was socially and culturally. No respect was given to female hood.

Female citizen were regarded as second-class citizens, and they were made to dance

naked around the Holy Kaaba (the house of God) for purposes of entertainment. Drinking

of alcoholic items was imbibed in high spirits.

Religiously, though they believed in the system of Allah but they communicated through

intermediaries i.e. idols. They engaged in polytheism so much that they worshipped an

average of 365 idols.

Morally, they engaged in stealing, fighting, discrimination and anarchy. Consequently the

advent of Islamic law was to redeem these barbaric cultures with the aim of alienating the

individuals concerned and also to correct the injustice, lack of equality etc among the

people.

STAGES OF DEVELOPMENT OF ISLAMIC LAW

Stages of development could be divided into four.

1. FIRST/QUR’ANIC/REVELATION/ LEGISLATIVE STAGE

This was the period wherein Allah legislated upon Islamic teaching and fully

revealed the law through Jubril (Angel Gabriel) to Mohammad (SAW) to the

generality of mankind. This was for a period of 23 years and some months (610-

632). This period covers the legislation wherein rules and regulations stipulated as

a prescriptive law highlighting and prescribing punishment to envisaged offences

was made. It is important to note that legislation of Islamic law was completed

during the period. What followed thereafter were manifestations, and

interpretations.

2. SECOND/HADITH/INTERPRETATION/EXECUTIVE STAGE

This is an interpretation of Prophet Mohammad (SAW) this witnessed the

application, interpretation and practice of the Islamic law as revealed by Allah.

 Prophet Mohammad (SAW) during this period did not formulate any new law. He

rather provided interpretations to the existing ones. Please note that the period

coincided with the period of revelation.

3. THIRD/CALIPHATE STAGE

This was the period of the caliphates who ruled one after the other after the

demise of the Noble Prophet. In Islamic jurisprudence, four caliphates were

identified and noticeable: Abubakar Siddiq, Umar Bin Al-Khattab, Uthman Bin

‘Affan and ‘Ali Bin Abi Talib. These four mentioned caliphs ruled one after

another, and acted as successors in title to the leadership, both politically and

religiously of Prophet Mohammad (SAW). The relevance and contributions of

these individuals shall be discussed as we progress. They retained and maintained

the traditions of the prophet in accordance with the Qur’anic revelations and

authentic Hadiths.

4. FOURTH/TAABI’IN (SCHOOLS OF THOUGHT) STAGE

This being the period of schools of thought. This was the jurisprudential period in

the developments of Islamic law. This was the period when the literalists and the

naturalists emerged to rationalize and literalize the contents of the first period vis-

à-vis the interpretation of the second period, and the contribution on the third

period. During this period a lot of schools of thought emerged, not less than

twelve in number. However, only four of them all sustained criticisms,

oppositions and developments of the time. These four are today in Islamic law

referred to as the four sunni schools of thought. These include Hannafi. Maliki,

Shafi’i and the Hambali schools of thought.

These four schools of thought developed their theory on the fundamentals of the

QUR’AN and HADITH. During the period, the secondary sources of Islamic law were

highly developed. These include the Qiyas (analogical deduction/individual reasoning),

judges opinion, and judicial analogy such as AL-ISThISAN (juristic preference), AL-

ISTISLAH (public interest), MASALIH AL-MURSALA (public welfare) amongst

others. These theories were based on environmental influences on reasoning of people

and development in communities.

In summary, the first period of the stage of development witnessed the revelation of the

first primary source of Islamic law (the QUR’AN). The second period gave rise to

HADITH, the second primary source of Islamic law. The third stage maintained and

emphasized QUR’AN and HADITH and gave rise to commencement of IJMA the first

secondary source of Islamic law while the 4 th stage gave birth to the development of the

second secondary source QIYAS and other secondary sources namely , ISTISLAH etc.

LEVELS OF OBLIGATION IN ISLAMIC LAW.

CATEGORIES OF LEVELS OF OBLIGATION

Fardh/Waajib (obligatory/compulsory)

Sunnah/Mandub/Mustahaab (recommended/encouraged)

Mubah (permitted)

Makruh (disliked/reproached)

Haram (forbidden/prohibited).
FARDH/WAAJIB

This category is for obligatory actions.i.e. those actions that must be performed and when

performed with good intentions are rewarded. When left unperformed are punished.

Examples are;

Obedience to Allah, Establishing five daily prayers (Salat), Alms giving to the poor

(Zakat), Fasting in the month of Ramadhan (Sawm Ramadhan), Holy pilgrimage (Hajj),

Obedience to parents, Obedience to authority, Payment of debt, Seeking of knowledge

etc.

TYPES OF FARDH

Fardhah ‘ayn (Individual duties):

These are compulsory actions that must be performed individually. They include; salat,

fasting, hajj etc. Fardhah kifaayah (Collective duties):

These are compulsory actions that its performance by a group of Muslims suffices for

others. They include janaizah (prayer for the dead), response to salutation, religion

propagation, calling to prayer etc.

SUNNAH/MUSTAHAAB/MANDUB

This consists of the actions that are recommended or encouraged by Prophet Muhammad

(peace be upon him). The actions are meritorious.

If the action is performed, it is rewarded and if it is left unperformed, it is not punished.

Examples of mandub are;

Voluntary prayer (nafilat) such as: tahajjud, witr etc.; Giving charity (sadaqah);

Performing lesser hajj (umrah); Observing voluntary fasting such as fasting on Mondays,

Thursdays, ‘Arafa day, 13th, 14th, and 15th of every Lunar month; Saying salamah to
Muslims; Picking dangerous things from the road; Meeting people with smiling face;

Giving food to people to eat; Encouraging virtues; Discouraging vices etc.

MUBAH/HALAL

These are obligations that Islam is rather neutral about. It is neither encouraged nor

discouraged. This obligation covers a great deal of territory. It is permitted. halal.

Doing it attracts no reward, and not doing it attracts no punishment. There is a saying that

“everything outside acts worship is permissible except that which, there is an express

statement that forbids it.”

Trading; Working; Sleeping; Eating of lamb instead of chicken; Bathing; Drinking of

water; Being a brunette or a blonde etc.

MAKRUH

These are obligations that Allah and His prophet frown at.These actions are; Despised.

Discouraged. Detested. Reproached. Disapproved.

If performed, it is not punished. However, it is preferred not to be performed. Examples

of makruh are;

Divorce; Smoking; Urinating in stagnant water; Shouting “And moderate your stride, and

lower your voice. The most repulsive of voices is the donkey’s voice.” Qur’an 31 v. 19;

Eating of donkey etc.

HARAM

These are actions that fall under prohibitions. All forbidden acts. Acts that are not

pleasing to God. Unlawful acts.

Only Allah and His prophet can declare an act forbidden. Things forbidden are those

things that are not necessary, harmful and discardable (useless and unwanted). The

performance of such acts attracts punishment. Abstention from it earns reward. Examples

of haram are;

All that negates fardh obligations; Trading in and consuming of an intoxicant; Eating of

pigs, dogs and canivores; Eating of dead animals or animal sacrificed to idols; Adultery

and fornication; Stealing, homicide and suicide; Running away from battle field;

Backbiting, gossiping, slandering; False witness; and all other vices.

CONCEPT OF JUDICIAL APPOINTMENT IN ISLAMIC LAW.

APPOINTMENT/ QUALIFICATION OF ISLAMIC JUDGES

Please note that similar provision relating to sections 275-279 (CFRN 1999) is contained

in section 260-264 in section 260, the constitution provides that there shall be “Sharia

courts of appeal of the Federal Capital Territory, Abuja”. With due respect to the

executive arm of Government of Nigeria, we say that where Sharia court of appeal has

not been established in the federal capital territory, the executive have contravened the

provision of the constitution therefore an originating summons should be moved to

compel the executive to put in place a Sharia court of appeal. Note that the constitution

did not put any provision to be met before its establishment. The national assembly as

empowered under section 262 does not need any requirement of the public before

embarking on the establishment of a Sharia court of appeal in the Federal Capital

Territory. It is not a state law but a National Law and a deemed act of National Assembly

under section 315 (CFRN) 1999).

The contradictions that seem to be confronting the implementation of the legal system are

those of political, social, economic and religious facts.

Religiously, section 10 (CFRN 1999) provides. “That the government of the federation or

of a state shall not adopt any religion as a state religion”

Implementation of the Sharia Legal system is being confronted with religious

connotations. Admittedly, Islamic law or legal system accommodates Islamic religion but

legally speaking connotes different things. For there to be a state religion that will

contravene section 10 (CFRN) 1999), a procedure must be adopted by the House of

Assembly of that state to make a formal pronouncement that a bill should be signed into

law by the Governor of that given state. With profpund respect, where this has not been

done adoption of a state religions has not taken place. This sis the bottleneck that

confronts the powers that be to make a formal pronouncement that a state religion has

been adopted. (council of state, judiciary, law enforcement agents etc). With this

submission of ours, we tend to agree with Chief Gani Fawehinmi that the constitution is

the confronted on the constitutionality of Sharia, he replied that the court is there that the

supreme court is ready to accommodate any suit (s) on it.

 APPOINTMENT AND QUALIFICATION OF ISLAMIC JUDGE

Under Islamic legal system, the chief judge is called Grand Kadi, while a judge is called

Kadi. For a person to be qualified as a Kadi of an Islamic law court he must satisfy two

requirements majorly constitutional and general Islamic law requirements.

CONSTITUTIONAL REQUIREMENTS

Sections 261 and 276 (CFRN 1999) provides for the requirements for the appointment of Grand

Kadi and Kadi. The qualification includes that such a person must be a legal practitioner i.e.

must have attended the university and obtained an.

ISLAMIC LAW GENERAL REQUIREMENTS

The office of a judge under the Islamic law is a religious duty. Therefore, for anybody to become

a judge, such a person must be an adult, and sane Muslim. Apart from this;

He must be versed in the knowledge of the Qur’an and hadith.

He must have piety.

He must be of impeccable character

He must possess the qualities of a mujtahid.