View
222
Download
0
Category
Preview:
Citation preview
8/13/2019 Sharia in the Early Period
1/21
Producing Leaders Since 1905www.um.edu.my
Ahmad Hidayat Buang 2008
Shariah in Early Islamic
Period
8/13/2019 Sharia in the Early Period
2/21
Producing Leaders Since 1905www.um.edu.my
Ahmad Hidayat Buang 2008
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
8/13/2019 Sharia in the Early Period
3/21
Producing Leaders Since 1905www.um.edu.my
Ahmad Hidayat Buang 2008
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
8/13/2019 Sharia in the Early Period
4/21
Producing Leaders Since 1905www.um.edu.my
Ahmad Hidayat Buang 2008
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)
8/13/2019 Sharia in the Early Period
5/21
Producing Leaders Since 1905www.um.edu.my
Ahmad Hidayat Buang 2008
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)
8/13/2019 Sharia in the Early Period
6/21
Producing Leaders Since 1905www.um.edu.my
Ahmad Hidayat Buang 2008
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
8/13/2019 Sharia in the Early Period
7/21
Producing Leaders Since 1905www.um.edu.my
Ahmad Hidayat Buang 2008
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.
8/13/2019 Sharia in the Early Period
8/21
Producing Leaders Since 1905www.um.edu.my
Ahmad Hidayat Buang 2008
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
8/13/2019 Sharia in the Early Period
9/21
Producing Leaders Since 1905www.um.edu.my
Ahmad Hidayat Buang 2008
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
8/13/2019 Sharia in the Early Period
10/21
Producing Leaders Since 1905www.um.edu.my
Ahmad Hidayat Buang 2008
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)
8/13/2019 Sharia in the Early Period
11/21
Producing Leaders Since 1905www.um.edu.my
Ahmad Hidayat Buang 2008
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
8/13/2019 Sharia in the Early Period
12/21
Producing Leaders Since 1905www.um.edu.my
Ahmad Hidayat Buang 2008
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
8/13/2019 Sharia in the Early Period
13/21
Producing Leaders Since 1905www.um.edu.my
Ahmad Hidayat Buang 2008
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.
8/13/2019 Sharia in the Early Period
14/21
Producing Leaders Since 1905www.um.edu.my
Ahmad Hidayat Buang 2008
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
8/13/2019 Sharia in the Early Period
15/21
Producing Leaders Since 1905www.um.edu.my
Ahmad Hidayat Buang 2008
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
8/13/2019 Sharia in the Early Period
16/21
Producing Leaders Since 1905www.um.edu.my
Ahmad Hidayat Buang 2008
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
8/13/2019 Sharia in the Early Period
17/21
Producing Leaders Since 1905www.um.edu.my
Ahmad Hidayat Buang 2008
New Approaches of the
Caliphal Legal Rules 2
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
8/13/2019 Sharia in the Early Period
18/21
Producing Leaders Since 1905www.um.edu.my
Ahmad Hidayat Buang 2008
New Approaches of the
Caliphal Legal Rules 2
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
8/13/2019 Sharia in the Early Period
19/21
Producing Leaders Since 1905www.um.edu.my
Ahmad Hidayat Buang 2008
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
8/13/2019 Sharia in the Early Period
20/21
Producing Leaders Since 1905www.um.edu.my
Ahmad Hidayat Buang 2008
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
8/13/2019 Sharia in the Early Period
21/21
Producing Leaders Since 1905www.um.edu.my
Ahmad Hidayat Buang 2008
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
Recommended