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== DOCUMENT KEY POINTS ==
*functions the functions of the institute are a to organize and coordinate basic and applied research with a view to developing models and methods for the application of shari ah in the fields of economics finance and banking b to provide for the training and development of professional personnel in islamic economics to meet the needs of research and shari ah observing agencies c to train personnel engages in development activities in the bank s member countries d to establish an information center to collect systematize and disseminate information in fields related to its activities and e to undertake any other activities which may advance it purpose
*islamic research and training institute establishment the islamic research and training institute irti was established by the board of executive directors of the islamic development bank idb in h

*islamic research and training institute islamic development bank king fahd national library cataloging inpublication data kharoufa ala eddine philosophy of islamic shari ah and its contribution to the science of contemporary law pages x cm eminent scholars lecture sales isbn islamic shari ah legal deposit no isbn the views expressed in this study are not necessarily those of the islamic research and training institute or of the islamic development bank
*first edition h arabic original second edition h first edition h english translation

*examples of correct qiyas source istihsan juristic preference types of istihsan source al masalih mursala unrestricted interests can masalih mursalah be taken as binding evidence o consensus of the majority o the argument against masalih mursala source saddudh dhara e blocking the means source al urf custom o types of urf o examples of good urf o conditions of a valid urf o is urf a valid proof source sharman qablana previous legal systems jurisprudents opinions
*page foreword preface study plan introduction chapter sources of islamic shari ah source the munificent qur an first and last verses revealed o the miraculousness of the qur an o aspects of qur anic miraculousness source the prophetic sunnah o documentation of sunnah source ijma consensus o proof of lima o types of ijma source al qiyas analogy o evidence of the majority the argument against qiyas o

*private property chapter contribution of islamic law to contemporary legal science contribution of islamic shari ah to civil law historical overview background to the egyptian law contribution of shari ah to criminal law grounds that prevent application of al qisas conclusion possibility of the application of islamic law and aspirations of muslims bibliography
*source qawlus sahabi sayings of the prophet s companions source allstishab presumption of continuity chapter philosophy of legislation in islam

*from the outset the mission of the islamic institute for research and training has been to present studies and researches in the fields of the application of shari ah from the economic financial and banking aspects for the benefit of muslim societies
*foreword praise be to allah almighty and peace and blessings be upon muhammad and upon his household and companions

*may allah almighty make this effort a beneficial addition to the islamic library a light on the way of seekers of truth and reform and a guide to researchers in islamic economics benefiting muslims everywhere
*may allah grant us success doctor mabid ali al jarhi director irti

*the title is very broad and accordingly i shall confine myself to the philosophy of islamic legislation and its contribution to the science of civil and criminal law for the term law is very broad and denotes all forms of law civil criminal constitutional administrative public international and private international laws law of the sea environmental law which has been the center of preoccupation of late trial law corporal and criminal
*preface praise be to allah almighty and peace and blessings be upon him who has been sent as mercy to mankind and upon his household and companions and upon those who follow upon their footsteps until the day of judgment

*the introduction will define legislation tashri as a term linguistically and legally while the chapters will deal with the following topics chapter one sources of islamic shari ah chapter two philosophy of islamic shari ah chapter three the contribution of islamic shari ah to the science of contemporary law the conclusion will deal with the possibilities of applying islamic shari ah and the aspirations of muslims regarding it
*study plan the study includes an introduction three chapters and a conclusion

*says allah lo we did reveal the torah wherein is guidance and light by which the prophets who surrendered unto allah judged the jews and the rabbis and the priests judged by such of allah s scripture as they were bidden to observe and thereunto were they witnesses
*and turn penitent to your lord and surrender unto him and our lord make us submissive unto thee and of our seed a nation submissive unto thee

*lo religion with allah is the surrender to his will and guidance and whoso seeketh as religion other than the surrender islam to allah it will not be accepted from him and he will be a loser in the hereafter and whomsoever allah wills to guide he opens his heart to islam in this last sense islam is synonymous with shari ah in that it incorporates all prophetic dogmatic ethical and legal teachings
*ibn malik says in his commentary on the manar that shari ah millah and din all mean the same thing all referring to the path that is shown by the prophet pbuh

*these include the munificent qur an the prophetic sunnah ijma consensus a giyas analogy istihsan juristic preference and masalih mursala unrestricted interests saddudh dhara i blocking the means urf customary law the sayings of the prophet s companions and finally istishab presumption of continuity
*writers have confused the term evidence with that of sources see badran abul enien al shari ah al islamiyyah mu assasah shabab al jami ah alexandria egypt p

*it is because the nation has followed the teachings and the dictates the rules and the fundamentals incorporated in the qur an and the sunnah that they merit the description of being the best community that has been raised up for mankind
*in the following verses allah almighty tells us about the qur an this is the scripture wherein there is no doubt a guidance unto those who ward off e v i l in arabic qur an is a derivative of the source verb qara a to read

*and in truth we have made the qur an easy to remember but is there any that remembereth and ye will come in time to know the truth thereof and we reveal the scripture unto thee as an exposition of all things and a guidance and a mercy and good tidings for those who have surrendered to allah lo this qur an guideth unto that which is straightest al agwam and giveth tidings unto the believers who do good works that theirs will be a good reward
*had it been possible for a recital to cause the mountains to move or the earth to be torn asunder or the dead to speak this qur an would have done so

*nor would it have faced such dissentions which so confuse us that we no longer know what to do or what medicine to administer meanwhile the cure may very well be within our reach then whoso followeth my guidance he will not go astray nor come to grief but he who turneth from remembrance of me his will be a narrow life and i shall bring him blind to the assembly on the day of resurrection

*later he became more inclined to spending time alone at the cave of hiraa where he would stay nights on end and then return to his wife khadijah to furnish him with the supplies he needed for yet other nights alone in the cave

*say then bring ten surahs the like thereof invented and call on everyone ye can other than allah if ye are truthful and if they answer not your call then know that it is revealed only in the knowledge of allah and then again to come up with only one surah or say they he hath invented it then bring a surah like unto it if ye are truthful and if you are in doubt concerning that which we reveal unto our servant muhammad then produce a surah of the like thereof and call your witnesses beside allah if ye are truthful
*al khattabi has put it aptly in his book bayan i jaz al qur an when he says that the qur an is incomparable in the eloquence of the word and in both structure and organization

*the book relates to us the events of the centuries past and describes the punishments the almighty administered to the defiant and to the disobedient
*it attempts to set us on the right path by commanding us to follow what is good and to reject what is bad to pursue what is ethical and to abandon what is not

*o ye who believe respond to allah and the messenger when he calleth you to that which enlivens you and know that allah cometh in between the man and his own heart and that he it is unto whom ye will be mustered
*in many verses of the qur an the almighty commands us muslims to follow the teachings of the prophet pbuh

*and it becometh not a believing man or a believing woman when allah and his messenger have decided an affair that they should claim any say in their affair and whoso is rebellious to allah and his messenger he verily goeth astray in error manifest

*the high standing of prophetic sunnah is made all the clearer in the following verse allah verily has shown grace to the believers by sending unto them a messenger of their own who reciteth unto them his revelations and causeth them to be purified and teacheth them the scripture and wisdom although before before he came to them they were in flagrant error

*usul as sarakhsy narrated by imam ahmad abu dawud at tirmizzi ibn adiyy and at tabari and al biayhaqi from al hareth from umar and nasb ashab from mu adh ibn jabal

*corroborating this argument ash shafei also says all scholars are agreed that the sunnah of the prophet has three aspects one is what was revealed by allah almighty in his book and the sunnah of his messenger is the same as what was revealed
*malik s al muwatta a is known to have initiated the process followed later in the third century of the hijra calendar by al bukhari died in h muslim died h abu dawoud and ibn maja died h al tirmizzi died h and al nasa i died h

*others believe that this very hadith contradicts the book which commands us to obey the prophet pbuh and to follow his acts this reminds us of the imposter who lived in the us and who dismissed the whole bulk of prophetic hadith
*the prophetic approach towards introducing the first model of international civilization devising its frames of reference and rules its boundaries and methodology as well as setting its direction and intention are all based on the fundamentals of the superior revelation

*the prophet s hadith never will my nation agree on an error and allah s hand goeth with the jamaa the muslim nation whoso dissents his refuge is in hell and never will allah gather my nation on an errancy and whatsoever is deemed by muslims as al amidi al ihkam and ai shawkani irshad p

*they believed ijma is not a proof and based their argument on the following a c allah s saying ye who believe obey allah and obey the messenger and those of you who are in authority and if ye have a dispute concerning any matter refer it to allah and the messenger if ye are in truth believers in allah and the last day
*an example of ijma is the convergence of the prophet s companions and of muslim scholars that a grandmother if an only grandmother would inherit he is ibrahim ibn sayyar al basri died in hijra a mu tazila scholar he gave his name to this group

*another such instance is forbidding the distribution of open lands to muslim conquerors as spoils of war and endowing them as waqf in favor of muslims from the proceeds of which judges workers and soldiers could be paid and widows and orphans provided for
*ijma has also decided against a man s marrying his wife s aunt niece or sister and construes a step brother and a step sister on the father s side as blood brothers and sisters in the absence of brothers and sisters

*here also scholars should be allowed ample time to understand the issue under judgment but he keeps silent an instance of silent ijma is the case when uthman ibn affan sold a property he had in basra to talaha ibn ubaydullah
*silent ijma here a scholar renders an opinion which is communicated to other scholars who neither openly support it nor openly oppose it provided they are free from fear of persecution or other such fears

*a case in point is when it is said that the garment is measured qas a by the amount of meters in the sense that the value of the whole is the sum of its parts
*legal theorists define al qiyas as follows appending an incident for which there is no text in the three higher sources to an incident for which there is a text and its ruling is assigned to the new incident

*the cause or illah in both the original and the new cases is the same and therefore the judgment concerning both is the same that is both are forbidden haram
*there is a clear text in the munificent qur an forbidding it as follows you who believe intoxicants and gambling and al ansab standards for idols and al azlam divination by arrows are an abomination of satan s handiwork

*from the sunnah they mentioned as evidence a number of hadiths first the hadith of mua dh ibn jabal who said that before sending him to yemen the prophet asked him how would you pass judgment if you were asked to do so he said i would refer to allah s book and the prophet said and if you do not find it in allah s book he said i would refer to the sunnah of allah s messenger

*and the prophet said why then this feeling of regret the inference is that the prophet pbuh likened through al qiyas the kiss of the fasting person to his spouse to rinsing his mouth with water while fasting and passed upon it the same judgment
*one day abu bakr was asked about al kalalah and he said i shall venture an opinion and if it is right then it is from allah and if it is wrong then it is from satan and he said al kalalah applies to all except father and son

*they say that al qiyas is an assumption by the mujtahid that the judgment of the event occurring is the same as the judgment of al qiyas alayhi or the original and as assumptions are forbidden therefore it is not permissible to use them in evidence in matters of shari ah
*aliyy ibn abi talib is also quoted as saying that if religion was a matter of decisions based on personnel opinion then it would have been preferable to wipe the interior of the khuff when wearing this foot cover during ablutions rather than its surface whereas he had seen the prophet wiping the surface and not the interior

*all of these they claim are matters of speculation which lead to differences and dissension and which are forbidden by allah almighty who says in the munificient qur an do not dispute with one another lest you lose courage and your strength departs and and be not as those who divided and differed among themselves after the clear truths had come to them

*therefore murdering the inherited person is the original case and yardstick al maqis alaylih and murdering the person drawing the will is the new case which is compared to the original
*likewise by using al qiyas then if the beneficiary of a will murders the person who has drawn the will in order to speed up his control over his share then he as well should be deprived of his due

*therefore if a matter for which there is no clear text concerning its ruling is brought before a mujtahid and if he finds two varying points of view one apparent and the other hidden requiring varying rulings and if evidence is formed in the mind of the mujtahid causing him to waiver the clear and obvious point of view this then is called istihsan or preference

*from the preceding it is clear that istihsan is not an independent source of shari oh because the evidence for the rulings of the first type is implicit analogy which has taken precedence over explicit qiyas while the evidence for the rulings of the second type is the common benefit of the people which made it necessary to make an exception
*going back to imam ash shafi i allah s mercy be upon him on istihsan we would like to add that in al rissala he likened the person who makes a ruling hukm based on istihsan to a person who chooses a direction for prayers out of istihsan that it is the ka bah without any of the solid evidence put forward by the legislator indicating the proper direction of the ka bah

*for this reason imam ash shatibi said in almuwafaqat that he who applies istihsan does not refer merely to his own personal taste but he refers to his knowledge of the intent of the lawgiver in similar cases
*for example there are matters which according to qiyas should be judged in a certain way but in so doing the judgment would pass over a maslaha benefit or bring about a certain mafsada harm

*since it is the will of allah almighty for shari ah to remain workable and fit for every time and place it is essential therefore to develop for such incidents shari ah provisions that are governed by original texts without departing from their spirit and goals

*as an example of this category of interest maslaha it was reported that the ummayyad king of andalusia abdur rahman ibn al hakam known as adur rahman ad dakhil once cohabited with one of his wives during the month of ramadan and repented his wrongdoing
*if any do turn his back to them on such a dayunless it be in a stratagem of war or to retreat to a troop of his own he draws on himself the wrath of allah almighty and his abode is hellan evil refuge indeed

*the other scholars ulema blamed ibn yahya for his fatwa questioning why he did not advise the ruler on the basis of his adopted doctrine of imam malik may allah have mercy on him which provided on this issue one of three options either to release a slave provide food to paupers or fast for two months consecutively
*in reply ibn yahya said that considering that the ruler was rich and had many slaves should we make such options open for him we would be making it easy for him to repeat such act and then release a slave

*any issue that marks a departure from justice to injustice from mercy to cruelty from benefit to harm from reason to insanity has nothing to do with shari ah even though it were forced in by interpretation ta wee shari ah is the embodiment of divine justice and mercy for his creature

*among the issues where they based their judgment on the principle of unrestricted interests are the following a the prophet s companions may allah be satisfied with them during the reign of caliph abu bakr unanimously agreed to collect the sheets whereon the qur an was inscribed
*c a case where a man married a woman during her obligatory period of waiting for the next marriage iddah was brought to umar ibn al khattab may allah be satisfied with him who adjudged them to remain separated for life by interdicting the man s marriage with this woman even after the expiry of her iddah

*e at the time of uthman ibn affan the third of the rightly guided caliphs there were several versions of the qur an therefore the caliph brought about general consensus on one version and burned down the rest
*caliph uthman ibn affan may allah be satisfied with him adjudged that t a woman who was pronounced thrice as divorced is entitled to inherit if her husband dies during iddah should it be proved that divorce was intended as a means of disinheriting her

*in his sharh al mahsoul al qarafi says should this be allowed meaning judging based on masalih mursala it shall be permissible for any judicious person who is knowledgeable and well informed of aspects of policies to adopt whatever he deems at his own discretion to be right and fit even after he has consulted muftis for legal pronouncements on a certain incident and has been told that it is not stipulated nor supported by any matching precedent

*does man think that he will be left unguided without purpose this is a weak argument because judging by masalih masalih mursala in fact does not contradict the divine statement in the qur an does man think that he will be left unguided since it is the will of the supreme legislator that shari ah should be workable at all times and places he has left many of the subsidiary provisions to the discretion of muslims qualified for ijtihad legal rulings who may give their own opinions in the light of the general principles and rules set forth by allah almighty
*taxes may be levied on the rich should baytul mal public treasury be void of sufficient funds to meet necessary state expenditures such as those required to provide for army needs until sufficient funds are made available in baytul mal

*otherwise if nothing is expected and sufficient sources of income are dwindling additional taxes may be levied on the rich the malikites also recognized as admissible testimony given by minors against one another in cases of injury by way of exception from the legal requirements for a valid witness to be adult and upright in order to protect rights
*he also held that a father may exclusively grant some of his sons a gift hiba in excess of the share of his brothers and sisters on the basis of the fact that the latter is sick needy student or has a large family

*ibn al qayyim may allah have mercy on him says if it so happens that some people are obliged to dwell in a man s house that is the only refuge for them or an inn owned by someone else if they have to borrow some clothes to keep them warm a grindstone to grind their grain for food a bucket to get water out of a well a pot or pan axe or the like the owner of such things should offer them willingly without quarreling

*the differences of opinion between the four imams may be summed up as follows the case where the dhari ah means can lead in most cases to a mafsada sin such as selling weapons to a people with whom muslims are at war for they might use them to fight musli miss another case is selling grapes to a wine merchant for in this case the sale is a pretext for making the grapes into wine

*there is no evidence tipping the scales either way and prohibition is based on either knowledge or suspicion and it is not fair to blame a person wrongly for a sin which did not intend and which he took every precaution to avoid

*allah says you who believe let your servants and maids and those among you who have not come to the age of puberty ask your permission before they come to your presence on three occasions before morning prayer and while you put off your clothes for the mid day rest and after the late night prayer

*thus we see that the prophet did not tear down the house and build it anew on the foundations placed by abraham despite the great benefit that this would have had because he did not want to jeopardize the new faith of the arabs in allah so he left the building of the ka bah so as to block the means towards the expected end
*they said how can a man curse his parents and he answered when he curses the father of another person who in return will curse his father and he curses the mother of another person who in return will curse his mother

*the use of the word talaq to denote the termination of the bond of marriage divorce is another example of verbal urf in terms of speech
*an example of verbal urf is the word walad in arabic which is used to refer only to a male child whereas it is used in the plural awlad to mean children both males and females

*the use of public baths in return for a sum of money regardless of the amount of water one is likely to use or the time one is likely to spend
*but if she belonged originally to a wealthy family or is of a distinguished lineage her husband provided her with people to serve her and with wet nurses to feed her children

*if providing for a wet nurse to feed the child is among the duties of the husband as it would have been cited along with the others
*scholars hold that a practice established by u r f is the same as one established by a qur anic or a s u n n a h provision so establishing by u r f is like establishing by contractual stipulation

*is uri a valid proof shaykh muhammad abu zahrah maintains that evidence of the viability of urf lies in the hadith whatsoever muslims perceive as good practice is also good with allah
*al kassani bada i al sana ei as sarkhasi al mabsout l excerpted from doctor zeidan al wajiz p

*he hath ordained for you religion which he commended unto noah and that which we revealed to thee muhammad and that which we commended unto abraham and moses and jesus saying establish the religion and be not divided therein

*third rulings included neitherl in the qur an nor in sunnah and scholars agree that they are not binding on musli miss fourth rulings included in the qur an and or in sunnah where no evidence exists whether or not they remain authoritative for musli miss an example of this is the following ruling of the qur an and we prescribed for them therein the law of qisas the life for the life and the eye for the eye and the nose for the nose and the tooth for the tooth and for wounds retaliation
*i an example of this is the qur anic verse say i find not in that which is revealed ought prohibited to an eater that he eats thereof except it be carrion or blood poured forth or swine flesh for that is verily foul there is also the hadith in which prophet muhammad boasts that to no other nation but to mine were spoils of war made legal

*in conclusion it would be safe to say that all jurisprudents agree on the validity of the laws of people before us as a source of our shari ah unless revoked by qur an or sunnah and such instances are few
*mu tazila and ash ari scholars on the other hand hold that these rulings are not applicable but have no argument to prove their point

*an example provided by hanafi scholars is the saying of abdullah ibn mas ud that the least of a woman s menstruation period is three days it is also established that the least a man must pay dower are ten dirha miss an example is also given by the statement sharh musallam al thubut tajtazani al talwih wal tawdih zeidan alwajiz p

*but could a companion s opinion reached by way of ijtihad be deemed hujja a some group a have held that it could not be so that a companion s opinion so reached cannot be binding on others and that legal evidence must be traced and given by the companion concerned

*a c presumption of continuity of attribute he who is proved alive though actually missing remains alive until proven otherwise he who is a guarantor to someone in debt remains so until he or the debtor pays the sum they owe
*a property proved owned by someone is his until proven otherwise he who is known to be alive cannot be ruled dead without evidence a missing person cannot be ruled dead or a married person divorced without evidence

*this is established in the verse he is the one who has created for you whatever is in the earth altogether and in the verse and hath made of service unto you whatsoever is in the heavens and whatsoever is in the earth it is all from him

*chapter ii philosophy of legislation in islam in the introduction we discussed the definition of islamic legislation in both the arabic language and in shari ah
*in chapter one we probed the sources of islamic legislation and now we come to chapter two where we shall study the philosophy of islamic legislation

*we are also inclined towards the opinion of al izz ibn abdul salam who said that shari ah is all benefit for it aims at either warding off wrongdoing what is meant by the word philosophy in this context is wisdom as the great thinkers are unanimously agreed that philosophy means love of wisdom
*the legal theorists had varying opinions regarding the justification ta lil for the rules ahkam ordained by allah almighty for his servants which can be summed up as follows some legal theorists justified those rules as intended to preserve the interests of the people

*this is supported by the following quotations from the qur an and we have sent you muhammad not but as a mercy for the alamin mankind jinn and all that exists and blessed is he who sent down the criterion of right and wrong ie this qur an to his servant muhammad that he may be a warmer to the alamin and and we have not sent you muhammad except as a giver of glad tidings and a warmer to all mankind
*in the following pages we shall try to identify some of the aspects of islamic shari ah and its philosophy and goals regarding the following matters universality alamiyyah muslims should be proud of the wonderful principles laid down by our islamic shari ah among which is its generality

*in his comment on this verse at tabari says allah commands those of you who are in charge of the affairs of other muslims to discharge that which your subjects placed in your trust regarding their rights wealth and revenues in accordance with allah s commands and in the manner which he prescribed and pay those who are entitled to it
*do not oppress them do not take possession of what belongs to them do not place something in other than its rightful place and do not take it before permission is granted to you

*malik says as narrated by yahya ibn said that he was told by abdullah ibn abbas that he said not once did usurpation prevail amongst a people but that allah filled their hearts with fear nor did adultery become rampant but that the death toll amongst them increased and not once did a people shortchange others in weights and measures but that their earnings were curtailed and not once did a people rule surah an nissa al alusi tafsir ruh al ma ani surah al an am

*allah has commanded certain individuals and all peoples to observe justice and the prophet pbuh himself was commanded to observe justice as allah says so unto this religion of islam alone and this qur an then invite people muhammad and stand firm as you are commanded and follow not their desires but say believe in whatsoever allah has sent down of the book all the holy books and i am commanded to do justice among you

*the next day the prophet said this man said what he said and we increased what we gave him and he claimed that he was satisfied is that so and he said yes and may allah reward you and your family and kin
*then the prophet said you have said what you have said but my companions have bad feelings towards you so if you so desire go to the men and say what you have told me that their hearts may be cleared of their bad feelings towards you

*then he smiled and said he and i were in need of more than this from you umar that you should order me to repay well and that you should order him to present his case well
*and umar said what enemy of allah would say to the messenger of allah what i have just heard by allah were i not wary of your strength i would have struck off your head with my sword

*it was reported that his son abdul malik said to him commander of believers what will you say to your lord in the hereafter if he asks you about a heretical novelty bid ah you had seen but failed to obliterate and a prophetic practice sunnah you had known but failed to uphold umar replied what a gracious son may allah bless and reward you

*won t it be acceptable to you that not a single day of this life will pass while your father will be obliterating a heretical novelty or upholding a sunnah from the foregoing it can be seen how much the pious caliph umar ibn abdul aziz suffered in applying the provisions of islam and how careful he was in fully implementing them in total obedience to allah almighty and his messenger pbuh while being at the same time extremely careful to avoid bloodshed
*in other verses of the qur an allah almighty underscores the unequivocal fact that shari ah is free from any form of haraj difficulty or hardship that none of its provisions are based thereon and that no person under obligation is taxed beyond his capacity

*the prophet pbuh said allah almighty has ordained mandatory duties faraid that you should not miss and set certain limits that you should not transgress has interdicted certain things that you should not violate and has remained silent regarding certain things out of mercy to you not out of oblivion so do not ask questions about them or as reported in other words surah al hay

*nationalism al qawmiyyah there is nothing in the principles of islam to indicate any call to nationalism in the sense that man should have preference and fanaticism for his people and take pride exclusively in affiliating to them which is meant by the tafsir ibn jareer al tabari ibn jarir s interpretation ihkam ul ahkam by ibn hazm
*according to al ashbah wa naza ir fi qawa id wa furu figh a shafii ya by imam jalaluddin assuyuti the prophet was reported to have said in other words allah almighty has out of mercy to you rather than out of oblivion shunned many things so that you may not be taxed therewith so accept this

*before the advent of islam it was the habit of arabians to boast of their affiliation to a certain clan or tribe but with islam the following call was made clear and articulate mankind we created you from a male and a female and made you into nations and tribes so that you may know each other
*according to az zuhri it was revealed specifically in respect of abi hind while other reports maintain that it was revealed in respect of thabit ibn qays ibn shammas who mentioned ibn fulanah the man who was denied space to sit in with the group

*one of the established rules of islamic law is the particularity of the cause that does not preclude the generality of the ruling although this verse was particularly revealed in respect of a specific companion of the prophet yet it sets the general and permanent rule that all men are equal without distinction and the most honoured are those who are the most pious
*in another speech delivered at mina during the days of tashriq as part of the rites of pilgrimage the prophet said people you have only one god and one father and there is no preference between an arab and non arab and vice versa nor between a black and red and vice versa except on account of piety

*on my part i do support from all my heart any unifying movement but suppose all arab countries have been united would not they need a religion to guide their steps to the right path and is there any better principle or religion than islam the arab league that is based on the concept of arabism has member states with about million people while the organization of islamic conference that is based on islam comprises member states with almost one billion people ie all muslims of the world

*in this connection allah almighty says in the qur an who is better in speech than one who calls men to allah almighty works righteousness and says am of those who surrender to allah l who can be better in religion than one who submits his whole self to allah does good and follows the way of abraham the true in faith for allah did take abraham as a close fellow
*how much i wished mister al husar i would dedicate his erudition and writing talent to the advocacy of islam rather than arab nationalism in which case he would be much more beneficial to others and to himself in his lifetime and after death

*imam ahmad ibn hanbal reported from abdullah ibn mas ud may allah be satisfied with him that the prophet pbuh drew a line saying this straight line is the path of allah then drawing two lines on his right and left said on each of both paths there stands a satan calling people to it and then quoted the verse verily this is my way leading straight mankind verily there hath come to you a convincing proof from your lord for we have sent unto you a light that is manifest

*while a muslim calls for the worship of allah almighty for fraternity love and equality between all mankind regardless of nation or language preached by islam nationalists only call for nationalism claiming that the basic core in forming a nation and building of nationalism is the unity of language and unity of history
*mercy may be to mister al mawdudi who held in this respect that it is neither acceptable nor possible that there may exist within the muslim nation any forms of nationalism based on colour race language or home countries in the same way that it is not possible within many other states

*islam is the religion the principle and the right path to safety and avoidance of perils in both this world and the hereafter as allah almighty says who is better in speech than one who calls men to allah almighty works righteousness and says am of those who surrender to allah in islam if anyone contends with the messenger even after guidance has been plainly conveyed to him and follows a path other than that becoming to men of faith we shall leave him in the path he hath chosen and land him in hell what an evil refuge surah ghafer
*when the former yugoslavia was ruled with the force of arms under communism calls for nationalism were hushed up but with the defeat and collapse of communism there ethnic nationalism also popped up and wars broke out killing millions and making thousands homeless

*in its strict punishment of cutting off the hand of the thief islam meant to protect individual property as allah almighty said the thief be he man or woman cut off their hands in punishment for their ill gains in just deserts of allah allah is mighty and wise
*islam adopted and recognized individual property allowing it to grow and prosper entrenching it and providing it with absolute protection from those who would wish to minimize its importance or out of greed rob it of substance and meaning

*allah also said carry out your prayers and pay out your due zakah zakah is also the subject of many hadith of the prophet pbuh such as islam was built on five pillars the shahadah there is no god but allah and muhammad is his prophet the salat prayers zakat al hajj and fasting the month of ramadan

*the equivalent of the portion of two females and if there be more than two women then they shall have two thirds of the inheritance and if there be only one then she shall have half to each of his the deceased parents a sixth of the inheritance if he has a child if he has no child and his parents are his heirs then to his mother belongs the third yet in case he has brothers then to his mother is one sixth after any legacy he may have bequeathed or debt been paid

*if the muslim knows that after his death his wealth shall be limited to a small number of heirs he can by will give some of his wealth to others as indicated by the prophet when he says one third and it is much narrated by ad darimi from amir bin sa d from his father who said i explained my worry to the prophet as i approached death
*these quotations from the qur an lay down the basis of inheritance and its distribution for musli miss the inheritance system in islam is a wonderful system aiming mainly at dividing large estates and splitting them into smaller portions for the greater benefit of the largest possible number of owners

*and whatsoever good thing you spend it is for yourselves when ye spend it only in search of allah s good will whatsoever good thing ye spend it shall be repaid to you in full and ye shall not be wronged
*islam has given a person s will a prominent place for it comes immediately after debts it is paid out of the deceased s estate after payment of his debts and before distribution of the inheritance for allah says after bequeathal or repayment of debts

*ye believers spend of your good earnings and what we have given you from the good earth and do not have recourse to that which is impure for your expending it is not righteousness that ye turn your faces to the east and to the west righteous is to believe in allah and the last day the angels and his book and the prophets and give wealth for love of him to kinsfolk to orphans to the needy and the wayfarer to those who ask and to set slaves free
*one should not think that islam considers charity a condescending act from rich to poor in islam charity from the money of the wealthy is a due share in their wealth to the beggar and the deprived

*one of the main draw backs of this egyptian civil law was that it copied old french laws to the letter laws which were passed at the beginning of the th century and which left out many important matters they were ambivalent and brief unclear contradictory and replete with serious errors
*for instance it stipulated that a woman be financially responsible for her husband and for the wife of her father in law mother in law and other decrees that contravene islamic shari ah

*the question that comes to mind is why didn t those concerned become the guests of islamic jurisprudence instead of french justice and jurisprudence the books are the nazariyyat al aqd the theory of contract al nazariyyat a ammah li l iltiz am at the general theory of commitments
*can we expect them to ask judges to be inspired by the glorious qur an or the noble sunnah or the verdicts of muslim imams and juristsmay allah s peace be on them yes indeed this happened in the country that houses al azhar al sharif and its great scholars

*a man who is a just muslim writing the history of this period can only pay tribute in all honesty to the conduct of some arab countries which maintained the name al mahkama al shariiyya shari ah court and the paragraph from the book malamih al mujtama al muslim features of the muslim society by shaykh youssef al qaradawy maktabah wahba cairo first ed

*the constitution of the arab republic of egypt dated april stated in article the state affirms the moral values and islamic shari ah is adopted as the main source of legislation article of egypt s constitution states islam is the religion of the state and arabic is its official language
*the middle east sharq al awsat newspaper published it on and sha ban in h namely can a child s testimony be accepted in court the question concerned a case brought to court by a prominent doctor in britain against her husband in which she accused him of raping their year old daughter hillary

*should the mother be unable to take charge of the child then whoever follows her in shari ah order takes charge of him provided that person is honest of good character and mind able to take care of the child and not married to a man who is a stranger to the child
*the writer concluded his article in the newspaper by asking what jurists in the arab world thought of the situation and whether courts can accept a child s testimony on tape i wrote an article on this topic also published in ai sharq al awsat newspaper on

*the iraqi law gave the judge the right to extend guardianship without any age limit para of article while other laws gave the mother the right until the maturity of the boy and until marriage for the girl article of the kuwaiti law
*the other two imams malik and abu hanifa said that a child cannot chose and this incident concerned the prophet only and he prayed that allah may guide the choice of the child who chose his mother but it cannot be used to generalize the issue

*thus the testimony of the child hillary cannot be accepted against her father for she is not mature and because the hostility between the parents is suspect and prevents credence being given to the testimony of a child
*as to the second question should a child s testimony be accepted in court article of the criminal code of egypt stipulates that all the rules accepted legally for witnesses in civil matters shall also apply in penal matters unless stipulated otherwise

*and then again there is life for you in retaliation men of understanding that ye may learn to ward off evil the wisdom in imposing qisas is to maintain the life and security of the society in addition to justice by retribution from the murderer who killed an innocent being deliberately
*allah imposed al qisas retaliation in the glorious qur an oh believers qisas is prescribed for you when there is murder a free man for a free man a slave for a slave and a woman for a woman

*the basis is the ayah from the qur an quoted at the beginning of this chapter and as recounted by anas ibn malik i have always seen the prophet ordered forgiveness when a matter concerning qisas was put to him
*these are reasons that can prevent al qisasif one of them is valid then it can obstruct al qisas

*the situation in which countries that prohibited the death penalty find themselves in is the best proof of the benefits of such a penalty and its effect on the society
*what is the use of maintaining alive a criminal who has deliberately killed one or more persons why should the state spend money to keep him alive in prison to think and plan other crimes as we have seen many criminals do casey a criminal in the u

*instead of the state spending money on the criminal in prison he is punished immediately by flogging the number of times to be decided by the judge for crimes outside hudud offences
*another criminal dhamir did even worse he killed boys after sexually attacking them then he cut their bodies in pieces ate their flesh took out their hearts and put them in his refrigerator

*when fay finally arrived in the united states he was immediately hailed as a hero and appeared on several tv progra miss he admitted his crime but criticized the punishment that he and his society are not used to
*it is the law about which allah said this day have i perfected your religion for you and completed my favor unto you and have chosen for you islam as your religion surah al ma ida

*the commentator of musallam ath thubut said in this context emulation is likened to making a new shari ah adding the evidence of this fact lies in that the varying opinions of the scholars render the text more lenient and makes it amenable to allah s creatures
*thirty five years ago i wrote saying that doubtless the judge should be granted full freedom to select the judgment which he deems relevant to islam without being obligated to pass judgment within the limitations of one sect not exceeding it and moving onto another sect even if it deviates from the correct judgment

*the erudite are satisfied with emulating without venturing into the vast realms of ijtihad by whose means islam becomes suitable for all times and places and without which it comes to a standstill whereas it is forever modern and does not keep pace with the times whereas it is the only successful cure for all times
*it is not necessary to learn them off by heart but it is sufficient to be familiar with them and to know where to find them when one wants to refer to them

*on that day the muslim would be able to travel with his identity card to all corners of the islamic world in conformity with allah s words truly this ummah of yours is one nation and i am your lora therefore worship me alone and then they will say when will that be say perphas it is near bid
*muslims should always bear in mind the words of allah to the effect but no by your lord they can have no faith until they make you muhammad judge in all disputes between them and find in themselves no resistance against your decisions and accept them with full submission

*al allusi abu al fadl shihabud din as said mahmud al allusi al baghdadi ruh al ma ani fi tafseer al qur an al azim wa al sabi al mathani dar al fikr
*at tabari abu ja far muhammad ibn jarir jami al bayan an ta wee ayul qur an dar al mi rifah beirut fourth edition h

*al asgalani ahmad ibn ali ibn hajar fath al bari bi sharh sahih al bukhari imam abi abdullah muhammad ibn ismail al bokhari annotated by moheb eddin al khatib and muhammad fuad abdul baqi dar ar rayyan lil turath al maktabbah as salafiyya h

*al fiqh al islami bayn al mithaliya wa al waqi iya al dar al jami iya beirut h
*ash shafi i muhammad ibn idris ar risala annotated by ash shaykh ahmad muhammad shaker

*as sanhuri abdul razaq ahmad al wasit fi sharh al qanun al madani al jadid dar at nahdah at arabia printing house cairo
*al islam wa awda una al qanuniyah al mukhtar at islami lil tiba ah wa at nashr wa at tawzi e cairo fifth edition

*it is also charged with the responsibility of assisting in the promotion of foreign trade especially in capital goods among member countries providing technical assistance to member countries extending training facilities for personnel engaged in development activities and undertaking research for enabling the economic financial and banking activities in muslim countries to conform to the shari ah membership the present membership of the bank consists of countries

*islamic development bank islamic research and training institute postal address p
*box jeddah kingdom of saudi arabia cable address bankislamijeddah telephone telex facsimile e


 ''Please note, This is an auto generated summary based on sentances position in the document and other factors''
== DOCUMENT WORD ANALYSIS ==
=== Main Category ===
: AlHuda Material\islamic economics


=== KeyWords ===
allah prophet islam ibn muslim quran shari surah arab muhammad sunnah pbuh meaning NA rulebased opinion source evidence legislated dar



== RELATED DOCUMENTS ==
:[[Arab Islamic Banking and Revewal of Islamic Law]] 
:[[Philosophy-of-Islamic-Shariah]] 
:[[Roles And Reponsibilities Of Shariah Advisors In Malaysia]] 



== DOCUMENT REFERENCES ==


=== Number of Pages ===
135


=== Published Date ===
2006-12-25 15:15:53


== Full Document ==


[http://45.40.136.134/~hodhood/HodHoodDocuments/IslamicFinance/IslamicEconomics/Philosophy-of-Islamic-Shariah.pdf Read the Full Document]


[[Category:Islamic Finance]]

[[Category: Islamic Economics]]