PART I: INTRODUCTION TO
JURISPRUDENCE (FIQH) OF MUSLIM LAW
Jurisprudence – the knowledge of the law
which in its generic sense includes the entire
body of the legal doctrine.
Jurisprudence is divided into three parts:
First – Legal History
Purpose: to set forth the historical process whereby any
legal system came to be what it is or was.
Second – The science of legislation
Purpose: to set forth the law, not as it is or has been, but
as ought to be. It deals future, and with the purposes
for which it exists.
Third – The legal exposition
Purpose: to set forth the contents of an actual legal
system as existing at anytime whether past or present.
Fiqh – which is considered the legislation
proper of the Muslim law.
Substantive law – “The Code of Muslim
Personal Laws of the Philippines”.
“Islamic Law is the epitome of the Islamic way of life,
the kernel of Islam itself. “
- Prof. J. Schacht
CHAPTER I
HISTORICAL BACKGROUND
Pre-Islamic Arabs
➢ The Arabs century preceding the rise of
Islam, was characterized as the Age of
Ignorance (Ayyam Jahiliya), Tribal
wars, Idolatry, and social degradation
were prevalent.
➢ The Arabs was generally nomadic and
were called Beduin’s.
➢ Tribes and chieftains acted in
accordance with tradition and
convention. No settled form of
government or administration of law
existed.
Qabilah (The affairs of the tribe)
- were guided by a Shayikh or chief, a
man who, by his nobility of birth age
and reputation for wisdom, had the
respect and confidence of his
tribesmen.
- To decide the cases of disputes, the
Arabs had a confederation of “Hill fall
Fardul.”
▪ Sometimes the chief of the tribe
was assisted in the discharge of
his duties by council of elders.
Within the limits of his tribe, orders
and decisions were enforced not
by any fixed machinery at his
disposal but by force of public
opinion.
▪ The procedure that used to be
adopted when a dispute or claim
had to be decided was to call
upon the plaintiffs to adduce
proof in support of his claim. If
he has no witness, the defendant,
in case he denied the charge,
would be given the oath, and if he
took it, he would be absorbed
thereby from liabilities. Oath
formed an important part of the
procedure in setting dispute.
A form of marriage which has been sanctioned
by Islam, namely a man ask another for the
hand of the latter’s ward or daughter, and
then marries her giving her a dower.
Mut’a (temporary marriage) - another form of
marriage that the Arabs used to contract.
Whereby a man takes a woman as wife for as
long as he needs her.
NOTE: A woman was not a free agent in
contracting marriage. It was the right of her father,
brother, cousin or any other guardian to give her in
marriage, whether she was old or young widow or
virgin to whomsoever he chose. Her consent was of
no moment.
➢ There was no restriction as to the number
of wives an Arab could take.
➢ The only limit was imposed by his means,
opportunity and inclinations.
UNRESTRICTED POLYGAMY - which
was sanctioned by usage was universally
prevalent. This was exclusive of the number of
slave girls, which a man might possess. The
limits of relationship within which marriage
was prohibited were narrow and defined
only by close degrees of consanguinity.
 Unrestrained as an Arab was in the
number of his wives, he was absolutely
free to release himself from the tie. His
power in this connection was
absolute.
 Adoption among the Arabs was also in
vogue as a legitimate mode of
affiliation. It was not restricted by any
condition.
- The adopted son passed into the
family of the adopter and assumed
his name, and his rights and
obligations similarly as those of a
natural-born son.
 The property of an Arab, generally was
of simple description.
• Camels, cattle’s, tents, clothes, and
few utensils.
• Slaves were a common and valuable
form of property.
 The wife had no corresponding right
to release herself from the marriage
bond.
 The Arabs regarded the birth of a
daughter as a calamity. Female
infanticide was prevalent.
 The woman was debarred from
inheriting, though she was no under
disability in the matter of owning
property.
- Anything that she might receive as a
dower or gift from him or her parents
and relatives was absolutely hers.
➢ TRADE AND COMMERCE were the most
common means of livelihood of the pre-
Islamic Arabs.
- Arabs had absolute power of disposal
over his property.
- Arabs used to lend money on interest,
and usury was rampant under the
name of “Riba”.
➢ On his DEATH his possessions devolved
on his male heirs, capable of bearing
arms, and females and minors being
excluded.
➢ The HEIRSHIP was determined by
consanguinity, adoption or compact.
HANIF (singular HANAFA) – who felt disgust at
idolatry and tried to find out what had been the
teaching of Abraham.
- They were the agnostics of the day,
each seeking the truth by the light of
their inner consciousness,
Muhammad, son of Abdullah was
one of them.
The religious unrest and moral degradation,
had stirred a section among the Arabs and
Arabia was just ripe for reforms, and
Muhammad appeared at an opportune time to
effect that.
WAHI (by inspiration) – means that God puts
certain sense or meaning into Prophet
Muhammad’s heart or sometime the
Omnipotent God without being seen spoke to
Muhammad, in the same way as when He
spoke to Moses, and this is what is meant that
God speaks from behind a veil; or by sending
the Archangel Gabriel to Muhammad with
God’s messages either by the appearance of
the Angel in the form of a man before
Muhammad, or while the latter is in a trance,
in the same way as when the Angel appeared to
Joseph in a dream to inform Joseph of the
conception of Mary of the Child Jesus.
The FIRST SIGN of his prophetic vocation,
was the discovery that everything which he
dreamed happened in his waking hours
precisely as he had foreseen it.
After a time he felt a strong inclination to seek
solitude and withdraw to Mount Hira, or the
mount of light, north of Mecca.
THE PERIOD OF DIVINE REVELATION:
• The Meccan Period
(12 B.H.; 610-622 A. D.)
• The Medina Period
(01 A.H.-10 A.H.; 622-632 A.D.)
THE MECCAN PERIOD
27th day of Ramadan (February, 610 A.D.) in
the 13th year before the beginning of the
Muslim Era. / The NIGHT OF DESTINY (Laylat
Al-Qadar)
- Muhammad received his first
revelation.
- Muhammad was asleep in a little cave
of Hira, in Mount An-Nour, about two
miles from Mecca, he saw a vision
that Gabriel (Jebreel, the Archangel)
aroused him from slumber and asked
him to proclaim (Igraa).
FATRA – revelation ceased for a time.
SHAHABAT (the Prophet companion) – Jabir
bin Abdullah Al Alsari narrated that while the
Prophet was walking, all of a sudden the
Prophet heard a voice from heaven.
PAROXISM (a violent fever) – which is
explained by the theologians as a symptom of
divine inspiration.
➢ Muhammad related to his wife Khadijah
his experience.
➢ Waraga Ibn Nawfal, a Hanif, and the
cousin of Muhammad’s wife.
➢ Muhammad’s goal was to be humble
tool for the execution of the divine
purpose but he did not know how to
proceed.
Third Revelation concerning the
1. Unity of God
2. The Day of Resurrection
3. The life hereafter
4. Paradise for the Faithful and
5. Hell for the Sinners
Early Meccan Suras dealt mainly with three
themes:
1. The unity and attributes of God
2. The moral duties of mankind
3. The retribution in the next world
➢ Subsequent Meccan Quranic verses
revealed during the time when
Muhammad was conducting his private
lecture in great secrecy were brief and in
which were brief and in which references
to the earlier part of his public life were
many.
Declaration of Islamic “Iman” (faith) – The
sum and substance of his teaching during this
period was “I believe in God, His Angels, His
Books, His Prophets and, Doomsday and, all
good and evil are from God”.
Tawhid (Oneness of God) – He embarked upon
teaching tawhid as commanded by God.
➢ He started the task of keeping people
away from polytheism.
Among Muhammad’s early converts were:
1. Khadija (wife)
2. Ali bin Abu Talib (cousin)
3. Zaid bin Harithah (freed slave)
4. Abu Bakr bin Abu Quhafah
5. Uthman bin Affan (close friend)
6. Tadhah bin Ubaidullah (close friend)
❖ Quraysh was unperturbed by the
preaching of Islam by the Prophet.
Instead, they make mischiefs, and inflict
physical insults upon the Prophet and his
followers.
❖ Quraysh profits from the idolators that
come to Qa’ba in Mecca to give their
offerings to their idols fearing the losses
that they would suffer should Islam be
tolerated to propagate, were infuriated by
the idea of Muhammad.
❖ Quraysh take action to induce the Prophet
to give up preaching Islam. They offered
him the chieftainship of Mecca, and
the hand of a girl of high lineage, but
all offers of honor and aggrandizement
failed to induce Muhammad from
abandoning his missionary work.
 ❖ The Prophet, finding himself unable to
relieve his followers from oppression
and torture, two years after he begun his
public preaching, he advised them to
take refuge in Abyssinia, where they
were hospitably received by the
Christian ruler Negus (Najjashah).
❖ The Quraysh enraged by the Muslims
sent emissaries to Negus, King of
Abyssinia, to persuade the King to
expatriate the Meccan fugitives to
them as prisoners, telling the King
that the Muslim immigrants have
violated their laws, ancestor’s
practices and religious beliefs.
Ja’far bin Abu Talih (the Prophet’s cousin) was
chosen as their spokesman.
, - They accepted the new faith and
The King, asked Ja’far (Rad A) to recite some
portion of the Holy Qur’an.
➢ He recited a few verses from the
beginning of Surah “Maryam”, the
Chapter on Mary, in which the story of the
miraculous birth of Jesus has been told.
The recitation of the Holy Qur’an touched
the heart of the King and the Christian
priest. He told the Quraysh that he would
hand over the refugees to them. Negus
remained a true friend of Prophet
Muhammad and favorably disposed
toward Islam throughout his life.
The Quraysh sent an emissary to Abyssinia
(1) to persuade the King to hand over the
Meccan fugitives to them as prisoners,
Negus refused to honor the request and the
mission returned discomfited.
(2) Imposed economic ban and social
ostracism against Muhammad and his
followers, however this became ineffective as
against the perseverance of the Prophet to
propagate Islam.
The suffering endured by the Prophet and his
kinsmen, the Banu Hashim, and the Banu
Mutalib move the hearts of a section of the
Quraysh, and won public opinion in their
favour.
❖ Some Quraysh grew weary of the boycott
of old friends and neighbors. They
managed to have the document which
the document which had been placed
in the Qa’ba brought out for
reconsideration; it was found that all the
writing had been destroyed by white
ants, except the words Bismika
Allahumma (In the name of Allah). The
ban was removed and the Prophet was
again free to go about the city.
❖ During the pilgrimage in 620 A.D., the
Holy Prophet met a group of six
Yathribites of Khazrag tribe, whose
kinsman had accepted Judaism but they
were still heathens at Aqabah a pass
between Mecca and Mina, a few miles
from the former and invited to accept
Islam.
promised to preach Islam in their
native city in return.
- In the following year, a deputation of
twelve, ten of the Banu Khazraj and
two of the Anu Aws, came and
waited for Muhammad at Al-Aqabah,
the appointed place for meeting.
- Due to the joint efforts of those two
groups of the Yathribites, Islam
became so well known in Medina that
there hardly remained a family, which
was not conversant with Islam and its
tenets.
THE HIJRA (HEGIRA) PERIOD
A year later in 622 A.D. – a deputation of 72
persons including the early converts of Yathribe
and their teacher Mua’b b. Umayr came to
invite Muhammad to Yathribe.
Monday 8th Rabi (September 20, 622 A.D.) –
Started the Hijra era of the Muslims and the
Risalat of the Prophet began from the date of
the exodus and the Meccan period came to an
end.
- The main achievement of
Muhammad in Mecca is that it marked
the start of the publication of Islam
and the Ministry of Muhammad
which was broadly completed by the
 time of the Hijra but its institution
which were still in a rudimentary state
were organized in the Medinite period
that followed.
With the Hijra,
- The Meccan preparatory period
ended,
- And at Yathribe or Medina, the
period of propagation of expansion
of Islam and the Muslim law began.
While at Mecca,
- Muhammad was only a Nabi
(Prophet) of God,
In Medina
- He began his public ministry as a
Rasul (Apostle) of God to convey
God’s message to humanity.
NOTE: This was the turning point in the life of
Muhammad and the Muslim Law.
TRADITIONAL DIFFERENCE BETWEEN A
RASUL AND A NABI:
• BOTH RASUL AND NABI – received
direct “wahy” (revelation or inspiration)
from Allah.
• RASUL – also receives the Shari’a
(Divine Law)
• NABI (Prophet) – only preaches the
“Shari’a” given to a “Rasul” before him,
by Divine Guidance through “wahy”
(revelation).
• ALL RASUL (Messengers), also share
Prophethood (Nabiwat), but a “NABI”
would not necessarily be a “RASUL”.
THE MEDINITE PERIOD
In Yathribe, later became known as Medina
and Medinat al Nabi (City of the Prophet),
Muhammad started his work as an apostle
(Rasul) of God to convey God’s message to
humanity.
Medinite Suras – covering one third of the
Quran which were more elaborate and dealing
broadly with religious, civil, and criminal,
fiscal and military laws and regulations,
including the five pillars (basic principles) of
Islam, and governing social practices such
as slavery and polygamy, the giving of alms.
Meccan Suras – give guidance to the individual
soul and to the Prophet as warner.
EARLY BATTLES OF THE MUSLIMS IN
NOTE: Medina Suras differ from the Meccan suras.
MEDINA
➢ The Muslims migrated to Medina and
established a community, they were
joined by the Medinans.
➢ Quraysh of Mecca still considered them
a threat attacked the Muslims in Medina.
THE BATTLE OF BADR
- 17th of Ramadan 12 A.H. (14th March
624 A.D.)
- They WON their first battle against
the Quraysh.
THE BATTLE OF UHUD
- 15th Shawwal 3 A.H. (21 March 625
A.D.)
- They were DEFEATED.
THE BATTLE OF KHANDAG (Battle of Trench)
- Shawwal 5 A.H. (627 A.D.)
- Due to sandstorm, destroyed the
tents and scanty supplies, and droves
the pack-riding animals of the
Quraysh and its allies, which gave the
coup de grace to the invaders, forcing
them to abandon the invasion the
following day.
TREATY OF HUDAYBIYAH (Dhu Qa’dah 6
A.H. April 628 A.D.)
The treaty consisted of the following:
1. Both parties would cease hostilities for a
period of ten years.
2. The parties would not interfere with the free
movement of one another.
3. The Prophet (Peace and blessings of Allah
upon him) would return that year, but the
Muslims would be permitted to enter Makkah
the following year.
4. Any Muslim man coming from the Quraysh to
join the Muslims would be sent back, but any
man going from the Muslims to Quraysh would
not be sent back.
5. Any tribes other than the Quraysh that wished
to enter an alliance with Muhammad (Peace and
blessings of Allah upon him) were free to do so,
and any that wished to enter an alliance with the
Quraysh were free to do so.
NOTE: Many of the companions were opposed to this
treaty and considered its clauses unfair and biased
against the Muslims.
CONQUEST OF MECCA
➢ The Quraysh violated the term of the
treaty of Hudaybiyah.
NOTE: The treaty of Hudaybiyah was abolished.
➢ Muhammad asked the Meccans to
surrender peacefully the city,
guaranteeing to them their safety.
➢ The Islam influence spread near and far.
DEATH OF MUHAMMAD AND END OF THE
PERIOD OF REVELATION
(12th Rabi Al Awwal, 10 A.H.; June 8, 632 A.D.)
➢ The Prophet became ill believed to have
been caused by a poison he got from the
meal served by him by a Jewish woman
during his campaign at Kheybar about
the 7th of the Hijra.
THE SECOND PERIOD OF MUSLIM LAW
“Thirty Years Period of the Orthodox
Khilafat” (Caliphate) – The period of the Four
Rightly Guided and Pious Calips (Khulafa-i-
Rashidin) 10-40 A.H.
CALIPH – successor
CALIPHATE – the succession of rule, monarch
or ruler.
FIRST CALIPH:
ABU BAKR “Al-Siddig” Ibn Uthmann
- Was born in Mecca
- His father was Uthman, called Abu
Quhafa
- Mother was Um Al-Khair Salma bint
Sakhr
- The Prophet named him “Abdullah”,
and was called A-Saddig (faithful).
- Also given the title “Atiq” – means
the first caliph.
- During the first period of the first
caliph, a large number of the
“Huffaz” (Quran memorizers) were
killed in the battle.
- During his caliphate, the Quran was
his primary source of law to govern
the Muslims.
- Died of sickness, Tuesday, 22nd
Jumada Al-Akhir, 13 A.H. at age of 63
years after a period of over two years
khilafat.
NOTE: The death of Prophet Muhammad, the
period of divine legislation came to an end. He is
considered the last and the seal of all the Prophets
and none follows after him.
SECOND CALIPH:
UMAR Ibn Al-Khattab
- was born 40 years after Hijra.
- Khattab Nufayl – father
- Khantaman Hisham b. Mughirah –
mother
- Title: Al-Faraug.
- He preserved the original authentic
copy of Quran compiled during the
period of the first caliph.
- Achievement: Expansion of the
Muslim dominion into formerly
non-Muslim territories and the
application of Muslim law to the
Muslim colonies in those
territories.
THIRD CALIPH:
UTHMAN “Al-Nurayn” Ibn Affan
- was a member of the Umayyad
family.
- He was not the most popular of the
Caliph because of his attempt to
create only one strict interpretation of
the Quran.
- His military successes put him in the
clear after many unpopular decisions
to appoint much of his family to
administrative positions and his act of
depleting the treasury as a result of
 his lavish spending habits and lack of
financial planning.
- Uthman succeeded in creating one
interpretation of the Quran.
FOURTH CALIPH:
ALI ibn Abu Talib
- During his reign, the problems of the
caliphate during the time of Caliph
Uthman fell on his shoulder, which
troubled him until his death.
- Continued the policy of expansion of
the Muslim dominion, and the Muslim
rule.
- He knew Quaran by heart and wrote
a commentary upon it.
- Abu’l Aswad-al-Dyali – compiled the
first Arabic grammar for non-Arabs.
- Transmitted 586 Hadiths.
- Systematically defined the powers
and jurisdiction of Qadis (judges).
- Completed the task begun by Hazrat
Umar in regards to the streamlining
of the judicial machinery.
- His death brought to a close the age
of the Four Orthodox Caliph.
THE THIRD PERIOD: THE PERIOD OF THE
UMAIYAD CALIPHATE
- Transferred the seat of the center of
the Islamic political authority from
Medina, to Damascus, in Syria.
- The period of Umaiyad is known for
the appointment of qadis or judges, fr
the settlement of disputes with
unrestricted power to decide cases
according to their own personal
opinion.
- Divine laws were subjected to reason
introduced by the norms of the
political authority.
- Narrations of traditions became
common.
- Caliph Umar bin Abdul Aziz –
launched a campaign and wrote to
the four corners of the Muslim empire
to report genuine traditions from the
Prophet.
- Distribution began to be made in the
rules of Fiqh by Ilm and Usul.
- During this period there were two
kinds of muftis: (1) Ahl al-Rai or
people of opinion, and (2) Ahl al
Hadith or the traditionists.
SHIA – conveys a sense of sectarian referring
to the followers of the faction of Ali according to
the Shia ideology; it also means “faction or
partisan”.
IMAMIYYAH SHIA – attached the fundamental
importance to the Imam, held by the doctrine of
infallibility of the Imams. Ahlu Shiah – who
claimed that there was direct appointment of Ali
ibn Talib by the Prophet for leadership.
- Sources: Quran and Sunna, and the
consensus of opinions.
ZAIDIYA SHIA – was founded by Zaid b. Ali,
grandson of Al Hussain b. Ali Talib. It comprises
the narratives (traditions) and the fatwas
attributed to Imam Zaid ibn Ali.
- They do not recognize mut’a
(Temporary marriage).
- They are the nearest Shia group to
the Sunni schools; its stronghold
nowadays is in the Yemen, where it
has more than three and a half million
followers.
THE FOURTH PERIOD: THE ABBASIDES
CALIPHATE AND FOUR MADHAHIB
- Abbaside Caliphs loved to patronize
learning and extended special
encouragement to jurist, partly it may
from political motives.
- Baghdad, their capital, became the
centre of culture and attracted jurist
and traditionist.
- The foundation of the four Sunni
schools of law.
- This period marked by a theoretical
and scientific study of the law and
religion commenced about the
beginning of the second century of
the Hijra and practically ended with
the third century.
THE SUNNIYAN (Traditionists)
- Sunni – means “One of the Path”.
- The term generally applied to the
large sect of Muslims who
acknowledge the first four Khalifa to
 have been the rightful successors of
Muhammad.
- Those who did not subscribe to the
doctrine of the Kharijites, Shia, or the
Mutazila called themselves Sunni or
Traditionists.
- They do not subscribe to the idea of
the Mutazila’s reliance on reason and
intellect, rather than on authority of
tradition, and their adherence to
tradition earned them the name, Ahl-
al-Sunna, because their preference of
the Sunna or practice of the Prophet
than on logic and reasoning.
THE HANAFI MADHAB
- Was named after Imam Abu Hanifa
al-Numan ibn Thabit, commonly
known as Abu Hanifa.
- It was the period of the successors of
the Companions of the
Prophets(Tabiun), and, he was
naturally well informed of this period
during the early years of his life.
- Hanafi is one of the four schools of
thought (madhabs / Maddhab) of
religious jurisprudence (fiqh) within
Sunni Islam. Named for its founder,
the Hanafi school of Imam Abu
Hanifa, it is the major school of Iraqi
Sunni Arabs. It makes considerable
use of reason or opinion in legal
decisions.
THE JURISPRUDENCE (FIQH) OF THE
HANAFI MADHAB; ITS LEGAL DOCTRINE
OR PRINCIPLES OF LAW
Imam Hanifa – was first to formulate the
technique of legal evolution in order to codify the
law. He evolved out a theory of jurists
development as the science of law called Usul
al-Fiqh, by making use of Qiyas or analogical
reasoning and also Istihsan or juristic equity.
- He introduced the method of arriving
at a legal opinion by the process of
deduction.
- The sources of law accepted by him
were: (1) Quran, (2) Sunna, (3) Ijma
of the Companions, (4) Qiyas, (5)
Istihsan, (6) Urf (usages).
THE MALIKI MADHAB
- The founder Imam Malik Ibn Anas
- The Maliki school derives from the
work of Imam Malik. It differs from the
three other schools of law most
notably in the sources it uses for
derivation of rulings. All four schools
use the Qur'an as primary source,
followed by the sunnah of the prophet
Muhammad transmitted as hadith
(sayings), ijma (consensus of the
scholars or Muslims) and Qiyas
(analogy); the Maliki school, in
addition, uses the practice of the
people of Medina (amal ahl al-
medina) as a source.
- This source, according to Malik,
sometimes supersedes hadith,
because the practice of the people of
Medina was considered "living
sunnah," in as much as the Prophet
migrated there, lived there and died
there, and most of his companions
lived there during his life and after his
death. The result is a much more
limited reliance upon hadith than is
found in other schools.
- Imam Malik was particularly
scrupulous about authenticating his
sources when he did appeal to them,
however, and his comparatively small
collection of ahadith, known as Al-
Muwatta, is highly regarded.
THE SHAFI’I MADHAB
- The Shafi`i madhab is one of the four
schools of fiqh or religious law within
Sunni Islam. The Shafi`i school of fiqh
is named after its founder:
Muhammad ibn Idris ibn al-`Abbas,
al-Imam al-Shafi`i, Abu `Abd Allah al-
Shafi`i al-Hijazi al-Qurashi al-Hashimi
al-Muttalibi (better known as Imam
Shafi`i). The Shafi'i school is based
upon the theories of the Islamic
theologian Abu Abdullah ash-Shafi'i
(767- 820). He was from 804 until 810
a student of Malik, the founder of one
of the other schools.
- The Shafi`i school of jurisprudence is
based on Qur'an (Koran), the Sunnah
of the Prophet, Ijma' (the consensus
 of the scholars), the opinions of the
Prophet's companions (mostly Al-
Khulafa Ar-Rashidun, the first four
caliphs accepted by Sunni Muslims)
and Qiyas (though he is known to
have significantly limited the scope for
using qiyas in deriving Islamic law).
His most famous books are Ar-
Risalah and Al-Umm. They
emphasized the use of proper instibat
(derivation of laws) through the
rigorous use of legal principles, as
opposed to speculation and guess-
work. He is largely responsible for
systematizing the methods used for
deriving Islamic laws.
- The Shafi`i school is considered to be
one of the more conservative of the
four schools of Islamic jurisprudence,
but there are many adherents of the
Shafi`i tradition who maintain liberal
views in practicing their religion.
THE JURISPRUDENCE (FIQH) OF THE
SHAFI’I MADHAB; Its legal doctrine or
principles of law – Al-Shafi’I is regarded as the
originator of the classical theory of Muslim Law
Jurisprudence (Fiqh).
- Legal knowledge after the Prophet’s
death includes
(1) The Quran
(2) The Sunnah
(3) Consensus of the Companions
(Shahaba’t)
(4) Analogy (qiyas)
- Al-Shafi’I is an eclectic who acted as
an intermediary between
independent legal investigation and
traditionism of his time.
- Recognized in principle only strict
analogical and systematic reasoning
to the exclusion of arbitrary opinions
and discretionary decision such as
had been customary among the
earlier scholars before him.
- His legal theory was much logical
and formally consistent than that of
his predecessors. It was based on the
thesis that nothing can override the
authority of a formal tradition from the
prophet.
- Al-Shafi’I distinguished between the
argument based on traditions and the
result of systematic thought but in his
actual reasoning, both aspects are
closely interwoven; he showed
himself tradition bound and
systematic at the same time, and his
new synthesis may be considered
typical of his legal thought.
THE HANBALI MADHAB
- The Hanbali Madhab was named
after its founder Abu Abdallah
Ahmad bin Muhammad bin Hanbal.
- “Musnadul’l-Imam Hanbal” – His
great work, a collection of 50,000
traditions reported, forms a valuable
addition to Muslim law jurisprudence.
- “Musnad” – a great encyclopedia of
traditions, compiled by his son Abd
Allah from his lectures.
- “Hanbal Kirab al-salat wa-ma
yaizam fiha” – the discipline of
prayer.
THE JURISPRUDENCE (FIQH) OF THE
HANBALI MADHAB; Its Legal Doctrine or
Principles of Law
- In law, he adhered rigidly to the
traditions. His interpretation of them
was literal and unbending, he allowed
a very narrow margin to the doctrine
of agreement and analogy.
- Imam Hanbal as an adherent of the
Ahl Al-Hadith, makes concessions to
Ra’y only under pressure of Sheer
necessity and whenever possible
derives every law from traditional
sources.
DIFFERENCE BETWEEN SHIA AND SUNNI
MADHAHIB
- Both Sunni and Shia share the same
fundamental Islamic beliefs and,
articles of faith.
- The differences between these two
main subgroups within Islam
stemmed not from spiritual difference
but political ones.
- The Shia believe that following the
death of Prophet Muhammad,
leadership (Imamah) should have
 passed directly to his cousin and son-
in-law, Ali ibn Talib.
- Sunni Muslims differs and holds that
there is no basis in Islam for
hereditary privileged class of spiritual
leaders. The sunnis contend that
leadership of the community is not a
birthright, but a trust that is earned
and which may be given or taken
away by the people themselves.
- SUNNI and SHIA, share the same
articles of Islamic belief and are
considered brethren in faith. They
donotdistinguish themselves by
claiming membership in anyparticular
group, but prefer to call themselves
simply, “Muslims”.
THE FIFTH PERIOD 351-656 A.H. (962-1258
A.D.)
- In this period, the schools of Muslim
law were developed into separate and
independent schools.
- Mustawjihun (Jurists of this period) –
followed the views of the original
founders of the schools of law and
developed and systemized those
views.
- The doctrines of the various schools
of law were consolidated and codified
during this perid.
- Qadis (Muslim judges) – tended to
regard themselves as belonging to
particular schools of law, and to a
large extent tended to confine
themselves to the administration of
the doctrines of the particular school
to which they belonged.
THE SIXTH PERIOD (the Abolition of the
Caliphate)
- Muqallidan (The jurists of this period)
– one who adhere to a particular
school of thought, as they regard
themselves as the followers of
different schools of law.
- The denial of Ijtihad brought withit
the unquestioning acceptance of the
doctrines of the established schools
and authorities (taqlid).
- Taqlid connotes the act of following.
- A jurist of this period does not
approach a legal problem on his own
evaluation of the Shari’a values but
follows the law of the school of which
he belongs, as laid down by its
founder, his disciples and followers.
THE SEVENTH PERIOD
- The seventh period of the
development of Muslim law may be
said to have began from the end of
the 6th period which is considered by
authorities on the subject
commenced from the abolition of the
caliphate in 1922 and the Sultanate
of Turkey in 1924, and is believed to
have not yet to come to an end up to
the present.
- The Doctrine of Siyasa – defines the
position of the political authority in
relation to Shari’a law.
- Western influence on Muslim law
and jurisprudence exerted itself
through the general cultural medium
of modernism.
- At the end of the eight century, we
arrive at the age of commentators
(mufarsirun) and annotators. The
contributions of these learned men to
the science of law have been most
valuable and important.