Equity in islam (amended version) (Topic 1)

Bashiran/Sharifah Zubaidah/Nor Asiah/Zuraidah

02/25/15 Bashiran/S.Zubaidah / Nor Asiah/Zuraidah Islamic equity

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Said Ramadhan

•“The door is wide-open to the adoption of anything of utility, of whatever origin, so long as it does not go against the texts of the Al-Quran and the Sunnah”

Islamic Law: Its Scope and Equity, 2nd Ed., 1970, p. 71


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Basic differences between English equity and Equity in Islam

• English equity derived their rules from the natural laws

• Islamic Equity finds its roots / sources in Al-Quran and Sunnah.

• Concept of Equity in Islam is wide and flexible but holds firm in the provisions of Al-Quran and Sunnah


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Maqasid Al-Shari’ah

• Legal reasoning must take 5 principle objects of Shariah:

protection of religion, protection of life, protection of reason’Protection of lineage and protection of property.


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• Equity can only be practised if someone has equipped knowledge and proper understanding of– The concept of Islam– Its tawheed– The objectives of Shariah– The concept of Khilafah– The concept of accountability to Allah s.w.t.


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• A Qadhi can only exercise Equity after he has exerted himself to search for the answers in Q & S

• He does not ‘dispense justice according to ‘Considerations of Individual expediency’ Or according to his Conscience

The role of Majlis Fatwa/ Judges


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• We have sent down thee the Book in truth, that thou might judge between men, as guided by Allah: so be not used as an advocate by those who betray their trust

• Surah An-Nisa 4 : 105• Is not Allah the wisest of judges? Surah at-Tin 95: 8• The word of your Lord does find its fulfilment in truth

and in justice: none can change His words. Surah Al-An’am 6: 115

• Surah Ash-Syura 42: 15-16• Justice in Islam covers the entire aspects of life and

is absolute


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• Say: My Lord has enjoined justice Surah Al-’Araf 7: 29• “Surely Allah enjoins the doing of justice… Surah an-Nahl 16: 90• We verily sent Our Messengers with clear proofs,

and sent down with them the Book and the balance that men may conduct themselves with equity/justice: And We sent down Iron…”

• Surah Al-Hadid 57: 25• ‘Al-Mizaan’ –Balance• -3 things are mentioned- The Book , the Balance

and Iron


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Hadith:

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The best of your religion is that

which brings ease to the people.


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What is Justice?

The term ‘Justice' comprises the following

To place things in their rightful placesTo give everyone his rights and what he deservesTo be impartial in one’s judgments and decisionsTo sat the truthTo be balanced in one’s views and judgmentsTo avoid bias and prejudiceTo avoid oppressing and tyrannizing others


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Forms of Justice

Justice may take different forms:£ Justice in making decisions

and judgements£ Justice in sayings£ Justice as a state of mind,

i.e. to avoid wrong and unsubstantiated suspicions

£ The way of treating people


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Equity in Islam• Secondary sources of the Shari’ah have also been

used by the jurists to achieve equity in Islam.• Secondary sources employ IJTIHAD to come to a

legal decision • The exercise includes• 1) Ijma’• 2) Qiyas• 3) Maslahah Mursalah (Istislah) • (Maliki principle)• 4) Istihsan (Hanafi Principle)


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WHAT IS IJTIHAD• Ijtihad is the cornerstone of Islamic Order

• Muadh ibn Jabal states that when Prophet sent him to Yemen, he was asked:

• “What will you do if a matter is referred to you for judgement?” Muadh said:’I will judge according to the Book of Allah?’ The Prophet further asked: ‘What if you find no solution in the Book of ALLAH?’


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• Muadh said: Then I will judge by the Sunnah of the Prophet.’

• The Prophet asked ‘And what if you do not find it in the Sunnah of the Prophet?

• Muadh replied, ‘Then I will make ijtihad to formulate my own judgement.’

• The prophet patted Muadh’s chest and said;

: ‘Praise be to Allah Who has guided the messenger of His Prophet

to that which pleases Him and His Messenger.”


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• .

• During Saydina Umar tenureship, there were occassions where Saydina Umar dared to differ from the decision of the Prophet whenever he found a basis for his own ijtihad.


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• Advice of Saydina Umar to Abu Musa when the latter was appointed as a judge. “Judgement is to be passed on the basis of express Quranic imperatives or established Sunnah.”

• He further said that, “Make sure that you understand clearly every case that is brought to you for which there is no applicable text of the Al-Quran or as-Sunnah. Yours then is the role of comparison and analogy, so as to distinguish similarities in order to reach a judgement that seems nearest to justice and best in the sight of God.”


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Ijma• Verbal noun of the Arabic

word ‘ajma” which has two meanings :

a) To determineb) To agree upon something• Known as consensus of

opinion• The unanimous agreement of

the mujtahidun of the Muslim community of any period following the demise of Propher Mohamad s.a.w on any matter.


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• Ijma applies to all juridical (shara’i), intellectual(aqli), customary(urf) and linguistic (lughawi) matters

• Plays a crucial role in the development of Shari’ah.

• Ensures the correct interpretation• Of Quran, sunnah and the legitimate

use of ijtihad.• Enhances the authority of rules which

are speculative origin• Represents authority.


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Qiyas• Literal meaning: measuring or

ascertaining the length, weight or quality of something

• Comparison with a view of suggesting equality or similarity between two things.

• Technically : the extension of a Shari’ah value from the original case or asl to a new case.since the latter has the same effective cause as the former.

• Means of developing a new law


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Essential Requirements of Qiyas

1) The original case or asl2) The new case (far’) on which

a ruling is wanting3) The effective cause

(i’llah)which is an attribute of the asl and it is found to be in common between the original and the new case.

4) The rule (hukm) governing the original case which is to be extended to new case


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Example : Al Maidah 5:90

• Explicitly forbids wine drinking which extended by analogy to narcotic drug.

1) Asl : wine drinking2) Far’ : taking drugs3) ‘Illah : the intoxicating

effect4) Hukm : prohibition.


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ISTIHSAN• Literally : to deem something

preferable• Derived from the word hasuna :

good and beautiful.• Juristic sense : a method of

exercising personal opinion (ra’y)in order to avoid any rigidity and unfairness that might result from literal application of the law

• It is part of the Shariah and embodied in the Shariah


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• Enforcing the existing law may prove to be detrimental in certain situations

• Departure from it may the only way of attaining a fair solution to a problem.

• Istihsan offers a means of avoiding hardship and a solution which harmonious with the higher objectives of Shari’ah.


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Example

• During the ruling of Umar, the second caliph, he did not enforced the hadd penalty of the amputation during the widespread of famine

• The established rule was set aside on grounds of public interest, equity and justice


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• Hanafi jurist Abu Hasal al Karkhi defines istihsan as a principle which authorizes departure from an established precedent in favour of a diff ruling for a stronger reason

• Authority: 34: 18» 39: 55Hadith: No harm shall be

inflicted or tolerated in Islam


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• Similar to Qiyas Khafi (hidden analogy) :in which exception is made to the general rule for the sake of equity and justice on the basis of nass (textual evidence), approved custom, dharurah or maslaha or public interest (Kamali – 254-257)

• Majority of Ualama’ has agreed on the essential validity of istihsan.


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• A branch of Ijtihad• It functions : to make Shariah

adaptable and accomodative to the changing needs of society

• Popular among the Hanafi, Maliki and Hanbali jurists


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Masalih Mursalah

• Literal : benefit or interest• Refers to unrestricted

public interest• Al Ghazali : Maslahah

consists of considerations which secure a benefit or prevent a harm. Among the basis of Maslahah : protection of life, intellect (aql), lineage and property


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Examples• Issue of currency• Establishment of prisons• Imposition of kharaj or a kind of agricultural

land tax, compilation of Quran by Abu Bakar.

• Umar held his staff responsible for abuse of public office,

• distribution of authentic Quran by Uthman and destroyed the copies of variance texts

• Usul jurists agreed that Istislah or Masalih mursalah is not a proof in respect of devotional matters (ibadah) and for certain respect of specific Shariah injunctions like law of inheritance


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• Authority:• Surah Yunus 10:7• Surah Hajj 22:78• Surah al Maidah: 5:6• Hadith: No harm shall be

inflicted or tolerated in Islam• “ The Prophet only chooses the

easier of two alternatives so long as it did not amount to sin”


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• “ Allah loves to see that His Concessions (rukhsah) are observed, just as He loves to see that His strict laws are observed”

• -no unnecessary rigour is recommended in the enforcement of Ahkam and that the Muslim should avail of the flexibility and concession of Shariah


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• Pre-requisite of Maslahah• Maslahah must be genuine• Maslahah must be general (for

all)• Must not be in conflict with

clear nass• -Maslahah is also a major

instrument for the muslim jurists to meet the new situations in the changing world


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• Justice based on Al-Quran and Sunnah

• Accountability to Allah swt.

• Justice in the Al-Quran and Sunnah.

• Justice, next to piety• The concept of

Balance

• Based on Natural law and man-made law.

• Justice based on human reasoning and interpretation

• Justice in the Common Law

• Before 1873, 2 system of administration, after that 1

The Differences


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• Administered by the same. Qualified person

• Judicial precedent –binding but can change if it is based on Islamic principles

• Based on Divine law• Has always been an

integral part of the Shari’ah. (one

system).

• Judicial precedent-binding

• Justice through remedies ‘in personam’

• In accordance with the need of a particular society