Shari

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Shariah The Islamic Legal System

• Curtin University, Perth Western Australia
• April 24, 2004
• Presented by Yahya A. Ibrahim
• yai_at_aic.wa.edu.au

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CONTENT

• Defining Shariah?
• The Spirit of Shari ah
• Legal Philosophy
• Maqasid ash-Shariah The Aim of Shariah
• Al-Qawaid Legal Maxims of Islamic Law
• Case Study Euthanasia

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What is Shariah?

• Calling the Shari ah 'law' can be misleading, as
  Shari ah extends beyond law.
• Shari ah is the totality of religious,
  political, social, domestic and private life.
• Shari ah is primarily meant for all Muslims, but
  applies to a certain extent also for people
  living inside a Muslim society.

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What is Shariah?

• Then we gave you a Shari ah in religion, follow
  it, and do not follow the lust of those who do
  not know. 4517
• "For each We have appointed a divine law and a
  methodology. Had God willed, He could have made
  you one community. But that He may try you by
  that which He has given you. So vie one with
  another in good works. Unto God you will all
  return, and He will then inform you of that
  wherein you differ. (5 48)
• "Today I have perfected your way of life (deen)
  for you, and completed My favour upon you, and
  have chosen Islam as your way of life." (Qur'an,
  5 3)

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What is Shariah?

• The regulations of the Shariah can be divided
  into two groups
• regulations on worship and ritual duties
• regulations of juridical and political nature
• In Sunni Islam, there are four schools, madhhab,
  which all coexist in peace. No war has ever been
  fought over the issue of different schools, and
  students of religious subjects in most Muslim
  countries have to learn about all four schools.
  It is in many cases permissible to use laws from
  other schools, if one feels that this is more
  appropriate.

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The Spirit of Shari ah

• God decreed for each soul a time on earth so that
  He might try them.
• Either Bliss or Grief as an outcome
• Life is a Journey with many paths
• In Arabic, Shariah, linguistically means the
  clear, well-trodden path to water.
• Legally, it is used to refer to the matters of
  religion that God has legislated for His
  servants.
• The linguistic meaning of Shariah reverberates
  in its technical usage just as water is vital to
  human life so the clarity and uprightness of
  Shariah is the means of life for souls and
  minds.

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Legal Philosophy

• "Our Lord, give us good in this life and good in
  the next, and save us from the punishment of the
  Fire." (2 201)
• The legal philosophers of Islam, such as Ghazali
  and Shatibi explain that the aim of Shariah is to
  promote human welfare. This is evident in the
  Qur'an, and teachings of the Prophet
• The scholars explain that the welfare of humans
  is based on the fulfillment of necessities,
  needs, and comforts
• Fulfilling these essential needs is the Aim of
  Shari ah

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Maqasid ash-Shariah The Aim of Shariah

• There are five necessities preservation of
  religion, life, intellect, lineage, and wealth.
  These ensure individual and social welfare in
  this life and the hereafter.The Shariah
  protects these necessities in two ways firstly
  by ensuring their establishment and then by
  preserving them.
• Religion To ensure the establishment of
  religion, God Most High has made belief and
  worship obligatory. To ensure its preservation,
  the rulings relating to the obligation of
  learning and conveying the religion were
  legislated.
• Life To ensure the preservation of human life,
  God Most high legislated for marriage, healthy
  eating and living, and forbad the taking of life
  and laid down punishments for doing so.

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Maqasid ash-Shariah The Aim of Shariah

• Intellect God has permitted that sound intellect
  and knowledge be promoted, and forbidden that
  which corrupts or weakens it, such as alcohol and
  drugs. He has also imposed preventative
  punishments in order that people stay away from
  them, because a sound intellect is the basis of
  the moral responsibility that humans were given.
• Lineage marriage was legislated for the
  preservation of lineage, and sex outside marriage
  was forbidden. Punitive laws were put in placed
  in order to ensure the preservation of lineage
  and the continuation of human life.
• Wealth God has made it obligatory to support
  oneself and those one is responsible for, and
  placed laws to regulate the commerce and
  transactions between people, in order to ensure
  fair dealing, economic justice, and to prevent
  oppression and dispute

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Sources of Shariah Primary Sources

• The Primary sources are Al-Quran and Sunnah
• Al-Quran The Word of Allah revealed to
  Muhammed over 23 years.
• God Most High said,
• "Verily, this Qur'an guides to that which is
  best, and gives glad tidings to the believers who
  do good that theirs will be a great reward." (17
  9)
• And,
• "There has come unto you light from God and a
  clear Book, whereby God guides those who seek His
  good pleasure unto paths of peace. He brings them
  out of darkness unto light by His decree, and
  guides them unto a straight path." (5 15)

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Sources of Shariah Primary Sources

• As-Sunnah The Prophets Example
• Allah says,
• "We have revealed the Remembrance Qur'an to
  you that you may explain to people that which was
  revealed for them." (16 44)
• This explanation was through the Prophet's words,
  actions, and example.
• "O you who believe, obey God and obey the
  Messenger," (459)
• and,
• "Verily, in the Messenger of God you have a
  beautiful example for those who seek God and the
  Last Day, and remember God much."

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Sources of Shariah Derived Sources

• Scholarly consensus
• Scholarly consensus is defined as being the
  agreement of all Muslim scholars at the level of
  juristic reasoning (ijtihad) in one era on a
  given legal ruling. Given the condition that all
  such scholars have to agree to the ruling, its
  scope is limited to matters that are clear
  according to the Qur'an and Prophetic example,
  upon which such consensus must necessarily be
  based. When established, though, scholarly
  consensus is decisive proof.

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Sources of Shariah Derived Sources

• Legal Analogy (Qiyas)
• Legal analogy is a powerful tool to derive
  rulings for new matters. For example, drugs have
  been deemed impermissible, through legal analogy
  from the prohibition of alcohol that is
  established in the Qur'an. Such a ruling is based
  on the common underlying effective cause of
  intoxication. Legal analogy and its various
  tools enables the jurists to understand the
  underlying reasons and causes for the rulings of
  the Qur'an and Prophetic example (sunnah). This
  helps when dealing with ever-changing human
  situations and allows for new rulings to be
  applied most suitably and consistently.

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Fiqh - Jurisprudence

• Fiqh is the science of Shari ah
• Fiqh provides the structure for deriving Legal
  Rulings from Shariah
• The Shariah regulates all human actions and puts
  them into five categories obligatory,
  recommended, permitted, disliked or forbidden.
• Obligatory actions must be performed and when
  performed with good intentions are rewarded.
  WAAJIB
• The opposite is forbidden action. HARAAM
• Recommended actions are that which should be done
  and when performed with good intentions are
  rewarded when abstained from there is no error
  incurred. MUSTAHAAB
• The opposite is the disliked action. MAKROOH
• Permitted action is that which is neither
  encouraged nor discouraged. Most human actions
  fall in this last category. MUBAAH

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Al-Qawaid Legal Maxims

• Al-Qawaid are a group of legal rulings or axioms
  that share a common derivation by analogy,
  qiyaas.
• We have already discussed the five Aims of
  Shariah religion/deen, life/nafs, the mind/
  aql, Lineage/nasl, and Wealth/maal.
• They relate directly to the five main Principles
  of Law
• The Five Principles deal with Qasd (Motive),
  Yaqeen (Certainty), Darar (Injury), Mashaqqa
  (Hardship) Aadat (Customary.

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Al-Qawaid Legal Maxims

1. The Principle of Motive, qasad states that each
   action is judged by the intention behind it, al
   umuur bi maqasidiha.
2. The Principle of Certainty, yaqeen states that a
   certainty can not be voided, changed or modified
   by an uncertainty, al yaqeen la yazuulu bi al
   shakk.
3. The Principle of Injury, dharar states that an
   individual should not harm others or be harmed by
   others, la dharara wa la dhirar.

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Al-Qawaid Legal Maxims

• 4. The Principle of Hardship, mashaqqa states
  that hardship mitigates easing of the rules and
  obligations, al mashaqqa tajlibu al tayseer.
• 5. The Principle of custom, aadat, states that
  what is customary is a legal ruling, al aadat
  muhkkamat. Unless contradicted specifically by
  text, nass, custom or precedence is considered a
  source of law.

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CASE STUDY

• Euthanasia
• Euthanasia is Greek for good death which
  translates into English as easy death or mercy
  killing.
• accepted by the ancient Greeks and Romans. Three
  Asian religious traditions accept euthanasia
  Buddhism, Shintoism, and Confucianism.
• rejected by the 3 main monotheistic religions
  Christianity, Judaism and Islam.

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CASE STUDY

• Types of Euthanasia a) Active euthanasia, an
  act of commission, is taking some action that
  leads to death like a fatal injection.
• (b) Passive euthanasia, an act of omission, is
  letting a person die by taking no action to
  maintain life. Passive euthanasia can be
  withholding or withdrawing water, food, drugs,
  medical or surgical procedures, resuscitation
  like CPR, and life support such as the
  respirator. The patient is then left to die from
  the underlying disease.

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Deriving the Islamic Verdict

• Use of textual, nass, evidence has had limited
  success because the issues involved are new and
  there are no relevant legal precedents.
• First Approach is by using Maqasid ash-Shari ah
• 1. The Aim of preserving life, hifdh al nafs,
  makes any form of active or passive euthanasia
  illegal. Life and good health must be protected
  and promoted in all circumstances. This
  includes, inter alia, adequate nutrition,
  hydration, prevention and treatment of any
  illness and disease while one remains alive.

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Deriving the Islamic Verdict

• First Approach is by using Maqasid ash-Shari ah
• 2. Euthanasia violates the Aim of preserving
  religion, hifdh ud-deen, because it involve a
  human attempt to violate the divine prerogative
  of giving and taking away life.
• Nevertheless, the first approach leaves the
  question
• The enormous resources used to care for terminal
  patients have to be considered in the light of
  the Aim of preserving wealth, hifdh al maal.
  Those resources, if from the family, could have
  been used to care for the orphans and widows left
  behind. If they are from the state they could
  have been used to care for many poor and
  disadvantaged persons with a chance of recovery.
  Using them in a case with no hope of eventual
  recovery could be a form of waste.

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Deriving the Islamic Verdict

• Second Approach using Al-Qawaid
• Qasd (Motive) immediately comes to bear in three
  ways
• - There is no legal distinction between active
  and passive euthanasia because the law considers
  only the intentions behind human actions and
  ignores the terminology used, al ibrat fi al
  maqasid wa al ma'ani wa laisa li al alfaadh.
  Since both active and passive euthanasia have the
  same intention of ending the life of a terminally
  ill patient, they are the same action under the
  law.

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Deriving the Islamic Verdict

• Second, the physician involved in euthanasia
  either as an active participant or an advisor may
  have intentions relating to self-interest or
  interest of hospital and not the total interest
  of the patient. That motive needs to be examined
• Third, members of the family may have the
  intention of hastening death in order to inherit
  the deceased's estate. They may also want to
  avoid the costs of terminal care.

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Deriving the Islamic Verdict

• Second Approach using Al-Qawaid
• 2. The principle of certainty, yaqeen, in invoked
  in three situations
• First, the definition of death requires that
  there should be no doubts at all. Of all
  available definitions of death, it is only the
  traditional definition of death as
  cardio-respiratory failure that is accepted by
  all. There is no doubt about its irreversibility.
  Brain death is only accepted when it is proven
  that the patient is incapable of recovery with
  any form, costly as it may be, of medical
  attention.

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Deriving the Islamic Verdict

• 2. The principle of certainty, yaqeen, in invoked
  in three situations
• Second, there is doubt about the legality of the
  living will because it is made by a person in
  perfect health. The same person could have
  different opinions when in terminal or severe
  illness. It is therefore untenable that in the
  case of euthanasia the living will is accepted
  without restriction.
• Third, In the emotionally-laden and
  psychologically-stressed situation of terminal
  illness, there is no certainty that the patient's
  consent to withhold or withdrawal treatment and
  nutrition is a true expression of their free
  wish.

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Deriving the Islamic Verdict

• The principles of injury/darar and
  Hardship/Mashaaqa
• Some might say that the patient is suffering from
  harm or injury and Islam calls for lessening pain
  and suffering.
• When faced with 2 evils, the lesser one is
  chosen, ikhtiyaar ahwan al sharrain. This is
  interpreted to mean that continuation of painful,
  terminal life is better that euthanasia.

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Deriving the Islamic Verdict

• The principle of custom or legal precedent
• The role of the physician has customarily been
  known to be preservation of life. It is therefore
  inconceivable that they could be involved in any
  form of euthanasia that destroys life

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The Verdict

• Life support measures should be taken with the
  intention of quality in mind. The most that can
  be done is not to undertake any heroic measures
  for a terminally-ill patient. However ordinary
  medical care and nutrition can not be stopped.
• The general ruling is the Euthanasia is Haram to
  be asked for or to be carried out except when a
  panel of physicians show that there is nothing
  that can be done to give back partial quality of
  life to a terminal patient.

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Contact Us

• Yahya Ibrahim
• Australian Islamic College
• 139 President St.
• Kewdale, Western Australia 6105
• yai_at_aic.wa.edu.au         http//aic.wa.edu.au
• Office (618) 9362-2100  Fax [phone]