following are the lecture notes for a talk delivered by Syed Mumtaz Ali
(a retired Barrister and Solicitor and President of the Canadian Society
of Muslims). These notes were used as transparencies on an overhead projector
for the Milad-un-Nabi celebrations held at the International Students
Centre in Toronto, Canada on July 4, 1998. This Milad-un-Nabi celebration
was sponsored by The Canadian Society of Muslims in conjunction
with The Sufi Study Circle of the University of Toronto.
We hope to elaborate upon these notes at some time in the future.
The Holy Qur’an says: “Are they looking for (seeking) a religion other than the religion of God (Deen of Allah), knowing well that all creatures in the heavens and on earth, willingly or unwillingly, have submitted to Him.” [Qur’an 3:83]
The words "have submitted to Him" are "bowed to His Will (Accepted
Islam) ..." in the Yousuf Ali translation:-
a) the laws which govern Nature are known as Laws of Nature, e.g. law of physics etc. as is evident from the smooth running of the affairs of Natural World, e.g. the systems of day and night, the oceans and the rivers and the administration of the whole universe. The laws which govern man are known as Laws of morality or Shariah. The law of cause and effect brings about the creative phenomenon of Nature. The same law of cause and effect also governs the law of man in that man's actions are the cause that brings about the effect/result of punishment. In other words, the whole system of reward and punishment is nothing but the effect of the consequence of the cause which occurs in the form of man's choice of good and evil action.
• From a lawyer's perspective, Islam and the Laws of Islam are therefore, in effect, synonymous. So, in a practical and realistic sense one could say without exaggeration that if the whole legal system of Islam is presented in a nutshell, it will amount to a birds-eye view of the practical fundamentals of Islam.
After all, since Islam is none other than the teachings of the Prophet of Islam, what could be a more appropriate way to celebrate the sacred memory of our beloved Prophet than to recapitulate the highlights of his teachings on the occasion of celebrating Milad Sharif, this afternoon?
These introductory remarks are meant to help in understanding the reason why Law plays such a pivotal role in the Islamic system of life. These brief comments will also help in explaining why law is defined in the following comprehensive manner by Abu Hanifa, the great jurist of Islam.
Abu Hanifa defines it as: “The science of the rights and obligations of man”
• Muhibullah al-Bihari defines
law as: “The science of ascertaining religious commands (which embrace
practically all the affairs of human life, material as well
Even the modern British jurists like Austin and Hobbs define law as "a rule of conduct imposed and enforced by the sovereign.”
• For Islam and Muslims,
the Real Sovereign, of course, is none other than God. The primary and
the only real source of law, therefore, is none other than the Divine Source,
namely the Qur’an, as revealed to the human messenger, the Prophet Muhammad
(p.b.u.h.) through the intermediary celestial messenger, the angel Gabriel.
The first component of the Law of Islam comprising of the Qur’an and the Sunnah of the Prophet (p.b.u.h.) are jointly referred to as the Shariah. The second component of the Muslim law is known as Fiqh. Jointly, taken together these two components constitute one whole – a complete code of Muslim jurisprudence. As a complete way of life, a deen, it contains all that is needed for the guidance of humanity which covers not only the material, but also the spiritual needs of man which are usually referred to as the well-being in this world and the world of the Hereafter. The following comparative table will make it easy to follow the special features of these two components:
|Qur’an, Sunnah||Ijma', Qiyas|
There are five different systems of numbering the ayats (verses). Accordingly they are reckoned to be: =6,239;6,204; 6,225; 6,219 and 6,211.
Total Words =77,934
Total Number of letters =323,671
(according to some authorities depending on their methodology = 338,806)
Total Chapters: 114
Total Parts: 30
|derived and detailed|
Legal injunctions = mainly principles
Hadith: about the same
¾ Family, Civil, Penal
¼ International, Constitutional, Financial
into three parts:
Fiqh Akbar: convictions
Ausath: inner life
Akhir: outward physical
Therefore original source: wahy
Divine source ceased.
Therefore not amendable
Therefore theoretically inflexible
Human source continues
Therefore in practice, flexible
Legal imperative, Amr
~ basis of commands
~ needs interpretation
interpreted by Fuqha (jurists):
20 grades of Imperative
(e.g., recommendation, threat, permission, etc.)
Prophet's directions re: Interpretation (Ijtihad)
Classification by jurists:
Fard opposite Haram
Wajib opposite Makruh Tahrimi
Sunnah opposite Makruh Tanzihi
Nafl opposite Kilaf-e ula
Principle of Ibaha explained
|Applied also to Fiqh|
|Applied also to Fiqh|
~ unalterable, no discretion
1) adultery : stoning
2) fornication : 100 stripes
3) false accusation of adultery : 80 stripes
4) apostasy : death
5) intoxicants : 80 stripes
6) simple highway robbery : hand & feet
robbery with murder : death - sword/
~ lit. "to censure, or repel"
"That discretionary correction which is administered for offenses for which hadd or 'fixed punishment,' has not been appointed," whether that offense consists of word or deed.
~ court can use discretion even to forgive, give warning, parole, fine, imprisonment, etc.
Qisas = retaliation for :
crimes affecting life:
Diyat : retaliation
~ regulate entire field of human material and spiritual life
~Tafsir, usul Tafsir, Hadith, usul Hadith
~ Seerat, Maghazi, history books, other literature, etc.
in 4 parts:
1) Ibadat: rites and practices of cult including (a) constitutional question of Sovereignty (b) zakat - worship of God by means of money
2) Mu'amilat: contractual relations of all sorts
3) crimes and punishments/penalties - includes laws of war and peace, International law.
4) rules of Inheritance and Wills
Mere theory not enough :
~ must put it to practice
~ here Mumtaz Shah gave an example of an amusing anecdote to elaborate this point.
Socrates = virtue = knowledge
Aristotle = knowledge + actions
~ Hadith of Gabriel
~ Iman, Islam, Ihsan
~ Ihsan: best method of practising Islam
|Fiqh manuals incorporate both Shariah and Fiqh injunctions (including tasawwuf)|
-- Saying of Hadith scholar, A'mash :
Pharmacist vs. Physician
-- Therefore study of Qur'an and Hadith alone are not enough, advisable to:
1) study all three parts of Fiqh
2) practise with emphasis on Fiqh of centre (tasawwuf) for excellence
|Regulate both material and spiritual relationship of man with other creatures and the Creator.|