Last Updated on by Admin LB
Question: Write an explanatory note on the concept of Muslim Law.
Find the answer only on Legal Bites. [Write an explanatory note on the concept of Muslim Law.]
Fundamental tenets of Muslim Law
- Belief in the existence of God
- Principle of tawhid/belief in the unity of God
- Acceptance of Prophet Mohammad as a Rasul / Messenger of God
Based on these principles only the concept of Muslim law flows. Muslims hold that the law is of divine origin. It is a revealed law (Given by God). Law must be for human beings hence developed doctrine of Ilmul – yakin (certitude) i.e. the ability to distinguish between good and evil and the same was done by the Prophet.
Muslim law further believes that the revelations of God to the Prophet are in the form of the Quran, Ahadis are supplementary to the Quran. The Ijma (consensus of the learned) supplements the Quran as well as Ahadis. Qiyas (analogy) is there to support if any matter is not covered in Quran or Ijmas or Ahadis.
On all the above principles, the Shariat is based which literally means
“a road to the watering place or path to be followed”.
The Shariat is based on the principle that
“all actions are to be judged according to ethical principles and emphasis on duties of a man in all walks of life”.
Five Religious Commandments
The Shariat lays down that the religious commandments are of five types :
- Fard, which one must do, such as five daily prayers,
- Haram, which one must not do, such as drinking wine,
- Mandub, which one may do, such as additional prayers on Eid,
- Markrum, which one may not do, such as certain types of fishes may not be eaten, and
- Faiz, acts towards which the Shariat is indifferent, such as travel by air.
Thus, a distinction is made between mandatory rules and recommendatory rules, between what is legally enforceable and what is only morally enjoined.
Concept of Fiqh or Law
Fiqh literally means ‘intelligence‘ and under Muslim law, it means ‘Science of jurisprudence‘. The term ‘Usulul Fiqh’ is the ‘knowledge of those rules which directly or proximately lead to the science of Fiqh. It discusses the nature of the sources or authorities, lawgiver, the law, the objective of law i.e. acts, rights, obligations, and the subjects of law i.e. those to whom the law applies ‘persons‘. A jurist is called a ‘Faquid‘. According to Fyzee, “Fiqh or the science of Islamic Law is the knowledge of one’s rights and obligations derived from the Quran, the Sunna of the Prophet, or the consensus of opinion among the learned (Ijma) or analogical deductions (Qiyas).”
Muslim Lawgivers divide Fiqh into –
- Usul – deals with Muslim jurisprudence.
- Furu – deals with substantive law i.e. law applicable in daily life.
Law as Developed by Jurists
It is in this context that the role of the jurists, in the formulation of rules and principles of law, has to be understood.
As Schacht put it, “Islamic law provides the unique phenomenon of legal science and not the State playing the part of a legislator, of scholarly handbooks having the force of law (to the extent to which Islamic law was applied in practice).
This depended on two conditions: that legal science guaranteed its own stability and continuity, and that the place of the State was taken by another authority, high enough to impose itself on both the government and the governed.
The first condition was met by the doctrine of consensus which led to the cumulative elimination of differences of opinion: what differences could not be eliminated were made innocuous by the mutual recognition of the several schools of law as equally orthodox. The second condition was met by the fact that Islamic law claimed to be based on divine authority.
This claim was reinforced by the progressive reduction of the human element of personal opinion until only the mechanical method of reasoning by analogy remained and even the use of this method was put out of reach of the latter generation by the doctrine of the closing of the gate of independent reasoning.
The traditionalism of Islamic law, which is perhaps its most essential feature, and thus regarded as typical sacred law.