Islamic Jurisprudence Terminologies
15th Shariah training 2017
1- Islam: Linguistically means “ Submission” two terms
a.
on its own without Iman “it refers to the religion as a whole” example
“Truly the religion with Allah is Islam” 3:19
b. With conjunction with the word Iman “It refers to outward deeds and
words example: “The Bedouins say: we have believe. Say: “you believe
not but only say we have surrendered (in Islam), for faith has not yet
entered your hearts” 49:14
c. technically: “submitting to Allah by affirming that he is one and
submitting to him by obeying him and disavowing shirk and its people.
2- Iman: Linguistically means: “to know, to believe, faith” technically means: “to
believe in oneness of Allah, His angels, His scriptures, His messengers, to believe
in the Day of Judgment and the divine predestination.
3- Ihsan: Literally means: “Excellence”. Technically as defined by the prophet ‫صلى‬
‫ هللا عليه وسلم‬himself “Ihsan is as if you were worshiping Allah that you see him,
though you cannot see him, But Allah is looking at you”
4- Shariah: Linguistically means: “the straight path” “path to watering place where
animals drink. Technically: “Laws that are prescribed by Allah upon his servants
through the tongue of a messenger among his messengers” characteristics: Divine,
preserved, eternal, comprehensive, complete, idealistic, realistic and practical.
Example: “To each of you we prescribed a law and a Method” 5:48
5- Maqasid AS-shariah: means Foundations goals and values of Sharia. It is 5.
a. Religion
b. life
c. Linage
d. Intellect
e. wealth (P16
for more explanation)
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6- 3 levels of Masalih (meaning):
a. 1- Daruriyyah (Essentials)
b. Haajiyyah(necessities)
c. Tahsiniyyah(Embellishments)
7- Usul Ul-Fiqh: two ways to define
a. First with Usul and Fiqh. Usul is plural for Asl which is “foundation,
origin or root” example: have you not considered how Allah presents an
example (making) a good word like a good tree, whose root is firmly fixed
and its branches high in the sky” (14; 24). Now Fiqh: Linguistically means
“understanding” example: “And untie the Knot from my tongue. So that
they may understand my speech” (20: 27-28)
b. Definition of Usool Al-Fiqh as a science: “Knowledge of the proof of
Fiqh in general and the manner of their utilization and the condition of the
one who utilizes them”
8- Fiqh al-waqi’ee: it refers to legal rulings given by the Mujtahidun based on
actual or real legal issues, traditionally it refers to the Fiqh during the time of
sahabas..
9- Al-Ahkam As-shar’iyyah (legal rulings): “rulings derived from the legislation.
Example: the obligatory or prohibitive nature of something, so from this is
excluded rulings based on intellect such as the knowledge that the whole of
something is always bigger than any individual part..
10- Al-adillah At-tafsileyah (specific evidences): evidence of Fiqh that are coupled
with detailed matters of Fiqh. This excludes Usul al-Fiqh because it is limited to
general evidence.
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11- Al-ijmaliyyah (General rules) such as: commanding indicates obligation and
forbidding indicates prohibition.
12- Fiqh: technically means: The knowledge of the practical rules of Shariah acquired
from the detailed evidences in the sources of Shariah; it does not deal with
Aqeedah. Example: if someone talks in Salah. It breaks their Salah. (defined at
Usool Alfiqh)
13- Hukum Shar’i: Communication from the Lawgiver concerning the conduct of
the mukallaf (person in full possession of his faculties) which consists of a
demand, an option or an enactment. Example: The Qur'anic command which
addresses the believers to `fulfill your contracts' (al-Ma'idah, 5:1) is a speech of
the Lawgiver addressed to the mukallaf which consists of a particular demand. A
demand addressed to the mukallaf which conveys a prohibition may be illustrated
by reference to the Qur'anic text which provides: 'O you believers, let not some
people ridicule others, for it is possible that the latter are better than the former [
...]' (al-Hujurat, 49:11). To illustrate a hukm which conveys an option, we refer to
the Qur'anic text which permits the believers to 'hunt when you have come out of
the state of ihram' (sacred state entered into for the purpose of performing the hajj
pilgrimage) (al -Ma'idah, 5:2).
14- Two types of Hukm 1-Shar’I
2- Ghayr Shar’I
15- Ilm-Ulfuru means it is the science which deals with the application of rules of
law in terms of human act in detailed areas of life. It is the body of the science of
fiqh.
16- AL-HUKM AL-TAKLIFI (Defining law) may be described as a communication
from the Lawgiver which demands the Mukallaf to do something or forbids him
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from doing something, or gives him an option between the two. This type of
Hukm occurs in the well-known five categories as follows:
a. Wajib/Fard (Obligatory): Acting upon something wajib leads to reward,
while omitting it leads to punishment in this world or in the hereafter.
Example: The obligatory commands to perform the salah, the hajj, and to
obey one's parents are thus classified under fard.
a. Fard Ayn (Personal/individual Obligation) performing your
daily prayers
b.Fard Kifaya (collective/Group Obligation) if sufficient member
of muslims do it perform it the law is satisfied and the rest of the
community is relived of such obligation. Like Salatul Janazah.
c. Base on time is two: 1- Wajib Mutlaq
2-Wajib
Muqayyad
(P30)
d.Wajib muwassa (Obligatory act with extra time)
e. Wajib Muqayyad (Obligatory act with time sufficient for a single
performance)
f. Wajib Dhu Shibhayn (Obligatory act with Extra time from one
aspect and sufficient time from another)
b. Mandub (Recommended): are acts which commission is rewarded
although their omission does not entail punishment. Example: giving alms
to the poor, fasting on days outside Ramadan, attending the sick, etc.
c. Haram (Forbidden): are acts which commission is punishable and their
omission is rewarded. Example: there is the Qur'anic text which provides
that wine-drinking and gambling are works of the devil and then orders the
believers to 'avoid it (al-Ma'idah, 5:90).
a. Haram Lidhatihi an act which is prohibited by itself (instrinsic
Evil) example like stealing or theft is in itself haram.
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b.Haram Li-ghayrihi an act prohibited for an external factor, it was
not prohibited initially but an external factor intervened that made
it haram like fasting on Eid day.
d. Makruh (Abominable): acts which omission is preferable than their
commission. Example: 'The most abominable of permissible things
[abghad al-halal] in the sight of God is divorce.
e. Mubah (Permissible): acts which commission is not rewarded but which
omission is not punished. Example: as the Qur'anic text which provides, in
a reference to foodstuffs, that `this day all things good and pure have been
made lawful (uhilla) to you [...]' (al-Ma'idah, 5:6).
17- Al-hukm Al-Wadi ('declaratory law): as communication from the Lawgiver
which enacts something into a cause (sabab), a condition (shart) or a hindrance
(mani`) to something else. Example: This may be illustrated by reference to the
Qur'anic text regarding the punishment of adultery, which enacts the act of
adultery itself as the cause of its punishment (al-Baqarah, 2:24). An example of
the declaratory law which consists of a condition is the Qur'anic' text on the
pilgrimage of hajj: 'Pilgrimage is a duty owed to God by people who can manage
to make the journey' (Al-Imran 3:97).
a. Cause (Sabab): A sabab is defined as an attribute which is evident and
constant [wasf zahir wa-mundabat] and which the Lawgiver has identified
as the indicator of a hukm in such a way that its presence necessitates the
presence of the hukm and its absence means that the hukm is also absent.
A sabab may be an act which is within the power of the mukallaf, such as
murder and theft in their status as the causes of retaliation (qisas) and a
hadd penalty respectively. Alternatively, the sabab may be beyond the
control of the mukallaf such as minority being the cause of guardianship
over the person and property of a minor.
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b. Condition (Shart): A shart is defined as an evident and constant attribute
whose absence necessitates the absence of the hukm but whose presence
does not automatically bring about its object (mashrut). For example, the
presence of a valid marriage is a precondition of divorce, her it does not
mean that when there is a valid marriage, it must lead to divorce.
Similarly, the ablution (wudu') is a necessary condition of salah, but the
presence of wudu does not necessitate salah.
c. Hindrance (Mani`): A mani` is defined as an act or an attribute whose
presence either nullifies the hukm or the cause of the hukm. In either case,
the result is the same, namely that the presence of the mani' means the
absence of the hukm. For example, difference of religion, and killing, are
both obstacles to inheritance between a legal heir and his deceased
relative, despite the fact that there may exist a valid tie of kinship
(qarabah) between them: when the obstacle is present, the hukm, which is
inheritance, is absent.
d. Strict Law (`Azimah) and Concessionary Law (Rukhsah): Azimah is a
command of the Lawgiver which binds the mukallaf while rukhsah
embodies a concession in respect of that command, The two are interrelated
in that rukhsah can only exist when there is `azimah in the first place.
Example drinking wine is prohibited as a general rule, however in cases of
of duress (idtirar) however one is allowed to drink it, if it saves one from
dying of thirs. Its permisibbleity due to duress is called rukhsah. Azimah is
a command of the Lawgiver which binds the mukallaf, while rukhsah
embodies a concession in respect of that command. The two are
interrelated in that rukhsah can only exist when there is azimah in the first
place.
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a. Valid, Irregular and Void (Sahih, Fasid, Batil): These are Shari'ah values
which describe and evaluate legal acts incurred by the mukallaf. To evaluate an
act according to these criteria depends on whether or not the act in question
fulfils the essential requirements (arkan) and conditions (shurut) that the Shari'ah
has laid down for it, as well as to ensure that there exist no obstacles to hinder its
proper conclusion. Example: your salah is sahih because you fulfill all the
conditions rukn and wajibs.
18- Pillars of Hukm Shar’I 1- Hukm: must have been authorized by the hakim, that
is, the Lawgiver. 2- mahkum fih: the subject matter which is referred to 3mahkum `alayh: an audience who must be capable of understanding or at least of
receiving the hukm.
19- Mukallaf: every individual who is adult and sane, who reached the age of puberty
and free from any mental defect, he possesses legal capacity.
20- Ahliyyah: the ability to acquire rights and exercise them and to accept duties and
perform them.
21- Ahliyatul wujub: refers to juridical capacity look page 39
22- Adillah Shar’iyyah: means source of law (Legal evidences or proofs)
23- Adillah Naqliyah: (transmitted proofs) with a strong chain of trustworthy
narrators. No rational justification is required in its favor. Example: Zakah does
not need to be rationalized, since it is in the Quran, but we can rationalize to
explain the wisdom behind it. From its example: the Quran, Sunnah and Ijmaa’
24- Adillah Aqliyyah (rational proofs): a proof which was founded through reason
and requires rational justification. For Example: when discussing drug use, we
can rationalize its haram nature since it isn’t explicitly said in the Quran and
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Sunnah. We can compare it to alcohol which is haram according to surah AlMaaidah. And from its examples are Qiyas, istishaab, sad Al-Dharaa’i.
a. Qaati’: (Definitive) it indicates clear injunctions of the proof in respect to
its transmission and meaning like the Quran. Example: “Establish Salah”
25- Dhanni: (Speculative) it indicates speculative clearance of the proof in its
transmission or meaning or both. Example: a speculative meaning is the word Our
in the Quran (Surah Al-Baqarah 2;228) in respect to the waiting period of a
divorce, it can be interpreted as blood or purity.
26- Qur’an: Literally means: a verbal noun equivalent in meaning with Qara’a means
to recite or read. Technically means: It is the speech of Allah sent down upon the
last Prophet, Muhammad SAW through Angel Jibreel, in its precise wording and
meaning, transmitted to us by numerous persons both verbally and in writing. It is
considered to be a code of conduct laying down fundamental principles in all
aspects of human life. Example: “Proclaim or read in the name of the Lord and
Cherisher; who created created man, out of clot of congealed blood. Proclaim!
And thy Lord is most Bountiful, He thought the use of pen, thought man that
which he know not.” Qur’an, 96: 1-5.
a. Names of the Quran:
a. Furqan (criterion)
b.Tanzil (sent down)
c. Dhikr (Reminder)
d. Kitab( scripture) (page 41)
27- Wahi: literally means inspiration, technically: it refers to the guidance from God
for his creation brought by the prophet, who received the word from Allah.
28- Tafsir: literally means to explain, technically it is explaining the meaning of a
given text and deducing a hukm from it within the confines of each words and
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sentences. The explanation so provided is, in other words, burn out by the content
and linguistic composition of the text.
29- Tawil:
literally means interpretation, technically it goes beyond the literal
meaning of words and sentences and reads into them a hidden meaning which of
often based on speculative reasoning and ijtihad.
30- Asbab Al-nuzul: literally sabab means cause, technically: the knowledge about
the reasons of the revelations example see pages 64-65
31- Mukam and mutshabih: muhkamah is derived fom the root word uhkima which
means to decide between two things, it is a verbal noun in the plural, meaning
judgments, or decisions. In technical, it referes to all clearly decided ayat of the
Quran mostly those concerning legal rulings but also to other clear definitions
such as between truth and falsehood. Mutashabihat is derived from the root
“ishtabaha” meaning to be doubtful. Technically means those ayat of the Quran
the meaning of which are not clear or not completely agreed upon, but open to
two or more interpretation. Example for muhkamah “ O you who believe! When
ye deal with each other, in transactions involving future obligations, in a fixed
period of time, reduce them in writing. Let a scribe write down faithfully as
between parties..” (2:282). Example for Mutashabihat “ God most gracious is
firmly established on the throne” (20;5).
32- Al-Muqatt’at: literally means Abbreviated letters, technically is the word used
for certain letters found at the beginning of the several Surahs of the Quran.
Example: Alif Lam Ra Surat yunus, Hud, Yusuf..
33- Aamm (General) and Khaas (Specific): Aamm: aamm could be defined as an
expression which is completely general in whatever it refers to when used
literally. However, ‘aamm expressions may refer to specific things when they are
used figuratively. The khaa ss, on the other hand, is used for a word which is
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applied to a limited number of things; for instance, if one were ordered to feed ten
poor people, that expression would be khaass
34- MUTLAQ (ABSOLUTE) AND MUQAYYAD (QUALIFIED) This pair of
concepts is similar to the paired concepts, ‘aamm and khaass. A major difference is that
the word which is ‘aamm encompasses every member of the category it names, whereas
the mutlaq word usually applies to any one of a multitude, but not to all. For instance, if I
say to a servant, “Give ten dollars to every high school graduate who comes to the
house,” this expression is ‘aamm. The servant would not be in compliance with my
command unless he gives ten dollars to every individual who meets those qualifications.
On the other hand, if I told him, “Give ten dollars to a (miskeen) poor person,”94 this
expression is mutlaq. He would be in compliance if he gave it to a single individual who
is poor. The mutlaq may be defined as a word or phrase which expresses a non-
figurative idea without placing any limitations on it. It refers to one type of thing
without being specific and usually occurs in the form of an indefinite noun (annakirah) in an affirmative statement. Terms like “a slave,” “a chair,” or “a dog”
would be mutlaq, whereas “a believing slave,” “a metal chair,” or “a Filipino
man” would all be muqayyad, because each indefinite noun has been qualified
and restricted by an adjective (sifah).
35- MANTOOQ
(STATED)
Mantooq 1-nass (explicit)
Iqtidaa (necessity)
and
MAFHOOM
2- zaahir (obvious)
(IMPLIED)
MEANINGS
3- Mu’awwal (explained) 4-
5-Ishaarah (suggestion)
36- Mafhoom two types: 1- Mafhoom Al-muwaafaqah (implied meaning agrees with
the meaning of mantooq)
2- Mafhoom Al-Mukhalafah (implied meaning is
contrapositive of the mantooq)
37- Al-Nasikh wa Al-Mansukh: both words are derived from the same root word
nasakha means to abolish or to replace, technically means: these terms refer to
certain parts of the Quranic revelation, which have been abrogated by others,
naturally the abrogated passage is the one called mansukh while the abrogating
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one is called nasikh. Example: is the period of idda of a woman after her
husband’s death , the earlier rule under 2:240 the idda is one year but later and in
verse 234 the idda is set at 4 months and ten days.
38- Sunnah: Prophet Muhammad’s (SAW) acts and deeds, sayings and statements
and all the things he tacitly approved.
39- Akhbaar: literally means news. It can also mean whatever attributed to the
Prophet Muhammad SAW from his speech, actions, tacit approval or description.
Synonymous with Hadith.
40- Categories of Akhbaar:
a. Marfu’- are Akbaar that has been proven to be from the Prophet SAW.
b. Mawquf’- are Akhbaar that are attributed to a Taabi’ee or anyone after
him.
c. Mutawaatir- is what have been narrated by many people that makes it
impossible from the to agree or conspire on a lie. Ex. “ Whoever lied on
me deliberately,let him take his seat in the Fire.”
d. Ahad: whatever is lesser than the muttawatir, and it is graded into 3
levels: Sahih (authentic), Hassan (good), and Da’if ( weak).
e. Sahih: authentic; what is narrated by someone upright (‘ Aadil) with
precise and complete recollection and continuous chain of narration, void
of any anomalies or hidden defects.
f. Hasan: good; what is narrated by someone generally pious, of reasonable
precision and recollection with a connected chain of narration, void of any
anomalies or hidden defects. It may reach the level of Sahih, and it is
called Sahih Iigayrih (Authentic due to others i.e. supporting chain of
narrations.
g. Da’if: weak; which whatever does not meet one of the conditions of Sahih
and Hasan.
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h. Tahammul: is taking the narration from others.
i. Ada’: is to propagate the narration to others. Ex. Haddathani (he narrated
to me), Akhbarani (he informed me), Akhbani Ijaazatan or Ajaaza Ii
(Permitted me), ‘An’ana (to narrate using the word an (front).
41- Ijtihad: derived from root word jahada, literally means striving, or self-exertion
in any activity which entails a measure of hardship. Juridically. it is defined as the
total expenditure of effort by a jurists to infer, with a degree of probability.
42- Istinbat: an inference.
43- Furu: branches of knowledge or hadith
44- Mujtahid fil-shar: full mujtalid; this rank is assigned to those who meet all the
requirements of Ijtihad.
45- Mujtahid fil Madhab: mujtahid within the schools,these are jurists who
expounded the law within the confines of a particular school while adhering to the
principles
46- Mujtahid fil Masail: Mujtahids on particular issues;these are jurist who are
competent to elucidate and apply the law in particular cases which are not settled
by the jurist of the first and second ranks.
47- Ashab al-tahri: those who are competent to make comparisons and distinguish
the correct and preferred and the agreed upon views from the weak ones.
48- Ashab at Tashih: those who could distinguish between the manifest (zahir alriwayah) and the rare and obscure ( al-nawadir) views of the schools of their
following.
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49- Muqalid: imitators; those who lack the activities of the above and comprise all
who do not fall in any of the preceding classes.
50- Ijma: resolve and agreement.It means the agreement of the mujtahids of this
ummah after the death of the Prophet ( blessings and peace of Allah be upon him)
on shari’ ruling.
51- Ijmaa’ Sareeh:( Explicit Ijmaa’). The Ijmaa’ in which every Mujtahid expresses
his opinion either verbally or by an action.
52- Ijmaa’ Sukooti: (Tacit Ijmaa’). The Ijmaa’ in which some of the Mujtahids of a
certain age express their opinion concerning an incident while the rest remain
silent.
53- Qiyas: Analogical Reasoning. Literally means measuring or ascertaining the
length, weight, or quality of something, which is why scales are called miqyas.
Technically, qiyas is the extension of a Shari’ah value (legal ruling/hukm shar’i)
from an original case, or asl, to anew case, because the latter has the same
effective cause as the former.The original case is regulated by a given text, and
qiyasseeks to extend the same textual ruling to the new case. It is by virtue of the
commonality of the effective cause, or illah, between the original case and the
new case that the application of qiyas is justified.
54- Qiyas al-awla: Analogy of the Superior. The effective cause in this qiyas is more
evident in the new case than the original case, which is why it is called qiyas alawla. For example, we may refer to the Quranic text in sura al-Isra’ (17:23) which
provides regarding parents: ‘say not to them uff nor repel them, but address them
in dignified terms’. By analogy it may be deducted that the prohibition against
lashing or beating them is even more obvious than the verbal abuse.
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55- Qiyas al-musawi. Analogy of Equals’. The ‘illah in this type of qiyas is equally
effective in both the new and the original cases, as is the ruling which is deducted
by analogy. For example,( Surah Al-Nisa 4:2)which forbids ‘devouring the
property of orphans’.
56- Qiyas al-adna. Analogy of the Inferior. The effective cause in this form of qiyas
is less clearly effective in the new case than the original case. Hence it is not quite
so obvious whethe the new case falls under the same ruling which applies to the
original case. For example, the rules of riba, prohibit the exchange of wheat and
of the other specified commodities unless the two amounts are equal and delivery
is immediate.
57- Istihsan: Juristic Preference. Literally means, ‘to approve, or deem something
preferable’. It is a derivation from the hasuna, which means being good or
beautiful. Juristic sense, it is a method of exercising personal opinion in order to
avoid rigidity and unfairness from the literal enforcement of existing law. It
involves setting aside an established analogy in favor of an alternative which
better serves the ideals of justice and public interest.
58- Istihsan Qiyasi: Analogical Istihsan. Is a departure from one qiyas to another.
59- Istihsan Istithna’i: Exceptional Istihsan. Which is to make an exception to a
general rule.
60- Waqf: charitable endowment.
61- Ijarah: contract of lease.
62- Maslahah: considerations of public interest.
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63- Maslahah Mursalah: Istislah. Literally, “benefit” or “interest”.When it is
qualified as maslahah mursalaa. Technically, it is defined as a consideration
which is proper and harmonious (wasf munasib mula’im) with the objectives of
the Lawgiver; it secures a benefit or prevents harm; and the Shari’ah provides no
indication as to its validity or otherwise.
64- Shurut: Conditions.
65- Haqiqiyyah: Genuine.
66- Kulliyyah; General.
67- Istishab: Literally means, “escorting or companionship’. Technically, istishab
denotes a rational proof which may be employed in the absence of other
indications; specifically those rules of law and reason, whose existence and nonexistence had been proven in the past.
68- Sunnah: Literally means a path, way or habit or a manner of life. Muhaddithun’s
usage, it means , “Prophet’s words, deeds, tacit approvals, his physical features
and moral characteristics. Some scholars includes the deeds of the companions
(Sahabah) and successors (Tabi’in).
Refers to the sayings, deeds or tacit
approvals of the Prophet.
69- Sunnah Tashri’i: Legal Sunnah. Consists of the exemplary conduct of the
Prophet Muhammad (sallahu alayhi sallam) be it in act, saying or a tacit approval,
which incorporate the rules and principles of Shari’ah.
70- Rasul: Messenger of Allah.
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71- Ameer: Head of state.
72- Imam: Spiritual leader.
73- Qadi: Being Judge.
74- Sunnah Ghayr Tashri’i: Non-Legal Sunnah. Mainly consist of the natural
activities of the Prophet such as the manner he ate, slept, clothed and such other
activities which do not seek to constitute a part of the Shari’ah.
75- Ijmah - is derived from the word Jama meaning “to add”, “to agree”, or “to
resolve”. Hence, it means unanimity of opinion or agreement upon matter.Defined
as the unanimous agreement of the mujtahidun, of the Muslim community of any
period following the demise of the Prophet Muhammad on any matter. Example:
To decide, as in the verse in which Allah says:“So decide upon your course of
action [fa ajmi’u] Surah Yunus 10:71 To agree, as it is said Ajmaa’at ‘ala kadha
[the group agreed upon and such].
Ijmaa’ Al-azimah means regular ijmah or that ensures certainty of belief.
Ijmaa Al-rukhsah means irregular ijmaa one without certainty
Ijmaa Ummah: this iijmaa happened during the caliphate period.
Ijmaa Ulama is the consensus of the learned people who are scholars of
islmaic knwoeldges
e. Ijmaa Almadeenah is the ijmaa expressed by the learned peoplethat used
to reside in Madinah.
f. Example for the Ijmaa: when Umar bin khattab RA requested caliph abu
bakr RA to order to compilation of the Quran after the martyrdom of
huffaz or memorizers of the Quran in the battle of yamammah. Umar RA
enjoined him by arguing that it is for public interest.
a.
b.
c.
d.
76- Ijtihad: literally means striving, or self-exertion in any activity which entails
measure of hardship. Juridically, it is defined as the total expenditure of effort
by jurist to infer, with a degree of probability, the rules of Shariah from their
detailed evidence in the sources. Some defined it as the application by a jurist
of all his faculties either in inferring the rules Shariah from their sources, or
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applying such rules to particular issues. Example: when Muadh ibn jabal was
sent to yemen by the prophet Muhammad PBUH and he was asked what will
he judge the people there and one of his reply after the Quran and sunnah is
“then I will make ijtihad to formulate my own judgment”
77- Ra’y: known as an individual unguided opinion of Muslim.
78- Mujtahid: an independent jurist, who is qualified to derived the law and is under
an obligation to follow his own opinion.
79- Qawl Al-sahabih: literally means the companions opinion, it referes to the
opinion of the companion of particular sahabih to specific rulings or issues
concerning legal actions.
80- Taqlid means blind imitation and following, technically means: taqlid
negates concept of ijtihad in that it is merely the following of the opinion of
another without exerting effort to reason out that opinion. Taqlid begins
where ijtihad ends.
81- QIYAS - Literally means “measuring or ascertaining the length, weight, or
quality of something”. Technically it is the extension of a Shari'ah value (legal
ruling/hukm shar’i) from an original case, or asl, to a new case, because the latter
has the same effective cause as the former.
82- ESSENTIAL REQUIREMENTS (ARKAAN) OF QIYAS
a. Asl: The original case on which a ruling is given in the text & which
analogy seeks to extend to a new case.
b. Far’ - The new case on which a ruling is needed.
c. Illah - The effective cause which is an attribute of the Asl and is found to
be common to the original and the new case
d. Hukm - The rule governing the original case which is to be extended to
the new case.
83- QIYAS FROM THE VIEW POINT OF STRENGTH
a. Qiyas al-awla (Analogy of the Superior) Ex. sura al-Isra' (17:23) which
provides regarding parents: 'say not to them uff [i.e. a single word of
contempt] nor repel them, but address them in dignified terms'. By
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analogy it may be deduced that the prohibition against lashing or beating
them is even more obvious than verbal abuse.
b. Qiyas al-musawi (Analogy of Equals) Ex. We may illustrate this by
reference to the Qur'an (al-Nisa', 4:2) which forbids 'devouring the
property of orphans'. By analogy, it is concluded that all other forms of
destruction and mismanagement which lead to the loss of such property
are equally forbidden.
c. Qiyas al-adna (Analogy of the Inferior) Ex. For example, the rules of
riba, prohibit the exchange of wheat and of other specified commodities
unless the two amounts are equal and delivery is immediate. By analogy
this rule is extended to apples, since both wheat and apples are edible
(according to Shafi'i) and measurable (according to Hanafi) jurists. But the
`illah of this qiyas is weaker in regard to apples which, unlike wheat, are
not a staple food.
84- 2 TYPES OF QIYAS
a. Qiyas jail (Obvious analogy) Ex. if two person, jointly own a slave and
one of them sets the slave free to the extent of his own share, it is the duty
of the Imam to pay the other part-owner his share and release the slave.
This ruling is explicit regarding the male slave, but by an `obvious
analogy' the same rule is applied to the female slave. The discrepancy of
gender in this case is of no consequence in regard to their manumission.
b. Qiyas khafi (Hidden analogy) Ex. example of qiyas khafi is the extension,
by the majority of ulema (excepting the Hanafis), of the prescribed penalty
of zina to sodomy, despite a measure of discrepancy that is known to exist
between the two cases.
85- ISTIHSAN- Literally means `to approve, or deem something preferable'.
Technically means method of exercising personal opinion in order to avoid
rigidity and unfairness from the literal enforcement of existing law. Ex.
Suspension of penalty to theft during the time of Umar r.a due to famine.
86- 2 MAJOR TYPES OF ISTIHSAN
a.
Istihsan Qiyasi (Analogical Istihsan) is a departure from one qiyas to
another. Ex. To give another example, supposing A buys a house in a
single transaction from B and C at a price of 40,000 payable in
installments. A pays the first installment of 2,000 to B assuming B will
hand over C's portion to him. B loses the 2,000. Who should suffer the
loss? By qiyas jali, B and C should share the loss. For B received the
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money on behalf of the partnership not for himself alone. But by applying
istihsan, only B suffers the loss. For C was under no obligation to obtain
his portion from B. It was only his right. C's portion would consequently
become a part of the remainder of the debt. This is based on the subtle
analogy that one who is under no obligation should not have to pay any
compensation. [25. Khallaf, 'Ilm, p.82.]
b. Istihsan Istithna’i (Execptional Istihsan): which is to make an exception
to a general rule. Ex. Exceptional istihsan authorised by ijma`: the contract
for manufacture of goods. Recourse to this form of istihsan is made when
someone places an order with a craftsman for certain goods to be made.
Istihsan validates this transaction despite the fact that the object of the
contract is non-existent at the time the order is placed.
87- MASLAHAH MURSALAH - Literally, maslahah means 'benefit' or `interest'.
Technically it is defined as a consideration which is proper and harmonious (wasf
munasib mula'im) with the objectives of the Lawgiver; it secures a benefit or
prevents a harm; and the Shari'ah provides no indication as to its validity or
otherwise. Example: Abu Bakr, for example, collected the scattered records of Qur'an
in a single volume; he also waged war on those who refused to pay zakah; and he
nominated `Umar to succeed him. [14. Shatibi, I`tisam, II, 287.]
88- TYPES OF MASALIH FROM THE VIEWPOINT OF AVAILABILITY OF
A TEXTUAL AUTHORITY
a. Al-maslahah al-Mu'tabarah, (Accredited maslahah) - Maslahah which
the Lawgiver expressly upheld and enacted a law for its realisationEx.
protecting life by enacting the law of retaliation (qisas), or protecting the
dignity of the individual by penalising adultery and false accusation.
b. Maslahah mursalah - Masalih that have been validated after the divine
revelation came to an end. the maslahah which prompted legislation in
many Muslim countries providing that the claim of marriage, or of
ownership, can only be proved by means of an official document.
c. Maslahah mulgha (Discredited maslahah) - which the Lawgiver nullified
explicitly or by indication. Ex. The ulama agree that legislation in the
pursuance of such interests is invalid. An example would be an attempt to
give the son and the daughter an equal share in inheritance.
89- ISTISHAB (Presumption of Continuity): Literally: 'escorting' or
companionship'. Technically: those rules of law and reason, whose existence or
non-existence had been proven in the past, and are presumed to remain so for lack
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of evidence to establish a change. So, the past `accompanies' the present without
any interruption or change. Example: the case of a man who had been absent and
whose whereabouts are unknown. The shafi’e would treat such a man as living for
all purpose of the law until his death is proven, so his estate cannot be distributed
among his heirs, and he will be allotted his share in the estate of a person from
whom he can inherit who happen to die during his absence.
90- Istidlal (inference) Literally: derived from the word istidal which means to infer.
Technically: it is a method of juristic deduction by means of inferring of one thing
from another in order to arrive at a rule.
91- SADD AL-DHARA’I: Literally: Sadd means ‘blocking’ while dhari’a signifies
the means to obtaining a certain end. Technically: blocking the means to an
expected end which is likely to materialize if the means towards it is not
obstructed. The whole concept of Sadd al-dhara’i is founded in the idea of
preventing an evil before it actually materialises. Example:The prohibition of sale
of grapes to a wine maker; the sale of Arms during civil disturbance is prohibited
as it may intensify the struggle.
92- SHAR’ MAN QABLANA (earlier scriptures) Literally: is the body of rules
ordained by Allah for the nations before the messenger’s Muhammad (SAW)
Ummah through revelation to their messenger and apostles.
93- ‘Urf literally that which is known. Technically, defined as recurring practices,
which are acceptable to the people of sound nature. Considered a silent ijma’ of
the community, being dependent for validity upon the principles of consensus of
opinion; the practice of large number of people. Adat repetition or recurrent
practice and it can be used both by individual and community. Example: dress
code, practices in marriage etc., which does not goes against the Quran and the
Sunnah.
94- The fatwa of companion
a. The companion: Anyone who met the prophet while believing in him,
even for a moment and died as a believer is a sahabi.
95- . Legal fiction refers to the assumption of fact made by court as basis for deciding
a legal question. Fiction of law means the legal assumption or supposition of law
that something which is or maybe false or true.
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96- Legal maxims (Qawa’id al-kulliyah al-fiqhiya) are theoretical abstractions,
usually in the form of short epithetical statements that are expressive, often in a
few words, of the goals and objectives of the sharia. Example: “the general
rulings for civil transaction is permissibility whereas the general rulings for all
acts of worship is haram”
There are still some from the book and from the professors powerpoints that
wasn’t added here due to constriction of time so I hope this will help us all top the
final bar exam, may Allah make this from our hasanat, and those who helped I
would like to thank you All, and may Allah reward you all jannatul firdaws. And
Jazakmullahu khayran.
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