sharia in the early period

8/13/2019 Sharia in the Early Period

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Producing Leaders Since 1905www.um.edu.my

Ahmad Hidayat Buang 2008

Shariah in Early Islamic

Period


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Topics

Arabia Before Islam (Social, political and

legal conditions of Pre Islamic Era)

Legal Rulings of the Prophet s.a.w. Position and Improvement of Women

status

Legal opinions of the Caliphates


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Learning

Outcomes

At the end of the session students are able to Explain the situation of social and legal conditions of

the following eras:

pre Islamic era Prophet era

Caliphates

Show a relationship between those areas in respectof legal development

Summarize some of the importance legalcharacteristics and factors in the periods of theProphet and caliphates


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Arabia Before

Islam

Knowledge of the custom and social

system of the Arabs is crucial to the

understanding of Shariah as:

Many aspects of the Shariah trace its origins

to the practice of the Arabs

Explain the very nature of the Shariah and

fiqh to reform (islah)


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Origins of the Arab

Two important tribes

Qahtan from Yemen (Bani Sam bin Nuh)

Adn from Hijaz (lineage up to Prophet Ismail and

Ibrahim a.s) Sytle of Living

Badw (normad)depend on livestock (Mashiah)

Hadr (cities dwellers such as Sana) active in

agriculture, manufacture and relations with seasonaltrading and having a sort of governmental order or

rules (nizam hukumi)


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Social Structure

Religious Affiliation

Pride in ancestry and fanaticaltowards the

tribe whether as tyrant (zalim) or victim

(mazlum) Allegiance to tribe and claim to common

ancestor eg. Bani Hashim

Pagans worshiping idols, especially Hubalbut some of them were Christians and

Abrahamic religion


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Family Structure

Family unit based on kinship (nasab)through (1) marriage, (2) adoption(tabanna) and (3) patronage (wala)

Dominated by male members, controllingthe affairs of the tribe. Practicedinfanticide.

Having a marriage custom based oncontract, payment of mahr, divorce systemby talaq, khul, ila etc.


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Political and Legal

Structure

No central government but based on tribal andthus no central leader. Shaykh of the tribes leadthe community.

No written law mainly based on customs

In cities like Makkah, Madina and Sana certainrudimentary rules on trade and agriculture

Settlement of dispute through arms conflicts andmatter of personal enforcement or vendetta (thar)

but sometimes an arbitrator or (Hakam, especiallyamong the soothsayer or Kahin) is appointed


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Property and

Transactions

Knowledge of basic business transaction based

on consential contract (rida) such as bayand

others like mudarabah etc.

Practiced some agricultural contractlike salaf or

salam and araya.

Many contracts based on conditions such as

munabazah, hasat, mulamasah, misrah, najshetc

Loan based on riba


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Position of

Women

Women are the ownership of a father,

husband or other male members

No rights of property and ownership

No rights in inheritance

More or less treated like a property that

can be owned through marriage (mahr)

and succession (nikah al-maqt)


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Legal Rulings of

The Prophet

Transformation from tribal allegiance to commonfaith of Islam: Obey God, Obey the Prophet andthose who in charged of your affairs

The main purpose of Prophet Muhammad s.a.w.is to establish certain basic standard ofbehaviour which is predominantly ethical for theMuslim community such as:

Compassionate for the weaker Fairness and goodfaith in commercial dealings

Incorruptibility in the administration of justice


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Character of the

Prophet rulings 1

Ad-hoc solutions for practical problems and notattempting to deal with any general topics (piecemeal legislation): Abolition of pre Islamic custom of adoption

Penalty of 80 lashes for Qazaf

Modification of certain particulars rather thanattempting to supplant the entire of thecustomary law

Inheritance Contracts

Penalty for crimes


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Character of the

Prophet rulings 2

The sole arbitrator/legislator/judgereplacing the old practice of Hakam

Revelation Explaining and interpreting general provisions of

the Quran

Own reasoning ijtihad

Gradual introduction of legal and ethicalstandards eg. Prohibition of wine drinkingand riba.


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Improvement of

Womens Status

One of the major or radical reformintroduced by al-Quran upon the Arabcustomary law:

Payment of mahr

Waiting period or iddah

Talaq Polygamy

inheritance


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Legal Opinions of

the Caliphate

Continued to be the leader of Muslimcommunity and introduced administrativeand legal practices such as:

Diwan Baitul Mal

Land Taxation or Kharaj

Poll Tax or Jizyah

Umars letter on courts rules and procedures Elaboration of inheritance rules such as awl,

thuluth ma baqi


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New Approaches of the

Caliphal Legal Rules 1

Approaches in dispute settlement are still thesame: reference to Quran and Sunnah However the Caliphs especially Abu Bakr and Umar

were reluctant to accept a single narrated Hadith(ahad)

This attitude led to general consultation andevidence to support single narrated hadith: The grandmother inheritance case

Consultation practices avoid disagreement andlater led into what is known as ijma orconsensus


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Ijma is possible because:

All leading companions resided in Madinah

Umars policy of disallowing them to leave Madinahwithout permission

As hadith mutawatiris rare, the was tendency to

employ reasoning in legal problems

This was not new since the companions had usedreasoning the Prophet was alive

The question of performing late noon prayer


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Nor general consultation stopped theCompanions from exercising the reasoning, infact there were Companions famous for their useof reasoning: Abu Bakr, Umar, Ibn Masud, Zayd ibn Thabit, Ubay

ibn Kab, Muaz ibn Jabal

Although the Caliphs issued directives, ordersetc. other Companions continued to give views

on matter relating to legal issue. This allowedsince Their views were non- binding

The practice of respecting other views and not fanatic


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Examples on the

Use of Reasoning

The basis for the use of reasoning or ray stems

from the approval of the Prophet e.g. Prayer of

Asar in the battle of Banu Qurayzah The opinion normally by looking to the Shariah value

or spirit rather to the letter of the law eg.

The war against maniu al-zakat

Qatl al-jamaah bi al-wahid

Distribution of Iraq war spoils

Al-Talaq thalatha bi lafz wahid


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General Consultation (Syura)

and Personal Reasoning

The existence of personal views despite

general consultation is for the reason that

the latter is for public interest, while theformer is daily affairs of the community

Since personal views was used to answer

questions relating to religious questions

this naturally led into diversity in views

among the companions


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Reasons for Diversity of

Views Among Companions

The question on Hadith

Hadith contradictory to the Quran

Umars rejection of Fatimah bt Qays claim of a hadith on

maintenance to wife divorced with triple talaq

Contradictory hadiths

In case of riba between Hadith Ibn Abbas and Ubadah bin

Samit et.al.

Hadith not known to a Companion

Different interpretation of the Quran

The word quru

sharia in the early period

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