Shariah & Maqasid Al Shariah

Under Islam, there are three basic aspects that govern the behaviour of a Muslim and how we conduct ourselves. The three pillars are

1) Aqidah (the teachings of the religion),

2) Akhlak (good moral behaviour) and

3) Shariah (Islamic Law).

  • Shariah – Islamic Law. This is not a man-made law that can be negotiated or amended without reference, discussions and decisioning based on the primary sources of law i.e. Quran and Saying of the Prophet p.b.u.h.
  • Fiqh – Branches of Law
    • Fiqh Al Ibadah (rituals) – Laws regarding prayers, behaviours and beliefs.
    • Fiqh Al Munakahat (family law) – Laws regarding pre-marital, during marriage (duties and responsibilities), post-marital issues (including custody, divorce, property division), poligamy
    • Fiqh Al Muamalat (transactional law) – Laws regarding the economic rules for transactions and providing services. Issues regarding the involvement in Riba’, and other prohibited elements in an economic transactions (including May’sir, Gharar, cheating, fraud).
    • Fiqh Al Jenayah (criminal law) – crimes of morality & philosophy of punishments. Types of punishment :
      • Hudud (fixed/mandatory punishment for adultery, stealing, drinking, murder, wrongful slander, treason, apotasy),
      • Ta’zir (discretionary punishment where punishment is based on quantum of crime and doesn’t qualify under Hudud); and
      • Qisas (revenge or compensationary punishment for murder or causing injury, for example the price of one “limb-loss” compensation is 50 camels)
    • Fiqh Al Daulah (law that governs the state)
    • Fiqh Al Qada’ (laws to administer justice/ Judicial system) – The goal is to achieve “justice“. Dependence on the Islamic references, Judges (qualification and code of conduct), jurisdiction, role of witness (Islam prohibits attempts to block truthful witnesses, or wrongful testimony under oath), Type of Proof.
    • Fiqh Al Siyar (international law)
  • Usul Fiqh – method for deriving the laws

Characteristics of Shariah

Characteristics of Shariah. How do you define what is Shariah? For it to be considered part of Islamic Law, it must fulfill the following characteristics:

  • Divine revelation (rabbaniyyah) – The Shariah must be derived from the Quran and the development of the Shariah must come from the learnings of the Quran. Quran remains the main source of reference as it is protected and free from defect and continues to exist in its current form. Revealed in Arabic due to the unique and precise properties of the Arabic language. Covers worldly and thereafter (Ukhrawi) matters, in both detail and in general. The distinct features of the Revelation:
    1. Word of Allah (God)
    2. In Arabic
    3. Protected (assured) by memorisation, the way of transmission, efforts to compile and copy of the Quran
    4. Miracle (context, construction, arrangement, content, language, facts beyond human capabilities, future events)
    5. Complete and comprehensive (although delivered in stages at different period of times)
  • Completeness – Declaration by God that the religion is complete, by providing the Quran which covers all aspect of life (self, family, society, country).
  • Universality – In line with the universal principles of “nature” (fitrah). It takes into consideration the views of others (other race, religion, creed and social standards). Mutual consultation (Shura’) is encouraged, and discourage repression (slavery, torture, inhumane treatment).
  • Flexibility – While there are some restrictions imposed by the Quran, there are also specific dispensation the rule, for example the prohibition to eat swine meat but exception when for severe hunger with no inclination to sin.
  • Just/Fair – The principles of justice and fairness must be the underlying principles of Shariah to ensure the rights of people are protected and defended. It must also be applicable to all creed and races, as well as practitioners of other religion.

 

Maqasid

Maqasid Shariah (Objective of the Shariah). Also referred to “Al Darurat Al Khamsah” i.e. 5 basic needs to protect by Shariah/Islam. The objectives of the Shariah is to achieve the following (by rank and priority):

  1. Ad Deen – Protection of the religion. For example the issues surrounding apotasy in reference to the protection of Islam
  2. Al Nafs – Protection of life. For example the issue requiring to defend your life when threatened.
  3. Al Aqal – Protection of mind/intellect. For example drinking and taking of hallucinatory drugs carries serious consequences
  4. Al Nasab / Al Nasal – Protection of lineage. For example abortion or procreation (in cases for homosexuality), khalwat (in cases for children outside marriage), prevention of bodily harm/injury.
  5. Al Ird – Protection of dignity. For example tarnishing the reputation of chaste women (or men?), or Qazaf. (note : Al Ird used to be part of Al Nasab / Al Nasal)
  6. Al Mal – Protection of property. For example Stealing, armed robbery, breach of trust.
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