introduction to islamic family law

LAW 605 - Family Law I (Islamic) 5/12/2013

azrinhafiz/march-july 2013 1

LAW 605 – Family Law I (Islamic)

Introduction

azrin hafiz / march-july 2013 1

Why Islamic family matters is governing

by Islamic family law in Malaysia?

• Refer to 9th Schedule of State List of Federal Constitution:

“Islamic law to include Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy…”

• Only applicable to Muslim


Sources of Islamic law in Malaysia

i. al-Quran = verbatim words of Allah revealed to Rasulullah through angle Jibril

ii. as-Sunnah = a saying or an act or tacit approval or disapproval ascribed to Rasulullah

iii. Ijma’ = consensus of jurists

iv. Qiyaas = deductive anology

v. Legislation = Act/Enactment/Ordinance




Two groups of Islam

Sunni Syiah

Differences between these

two groups:

i) Political differences,

especially in the election of

Caliph. Sunni in favoured of

Companions, and Syiah in

favoured of Rasulullah

descendants.

ii) Acceptance of religious

texts: Syiah only accept the

hadith narrated by

Rasulullah and his family

members and reject the

hadith narrated by

Companions.

Widely practise in Iran,

Iraq, Yemen, Jordan

and Pakistan

Syiah is disallowed in

Malaysia because most

of the rules contravene

with rules in Shafi’i –

to avoid confusion. azrin hafiz / march-july 2013 4

Four Orthodox Schools In Sunni

Hanafi Maliki Shafi’i Hanbali

- Founded by

Imam Abu

Hanifah.

- Practised in

Turki, Egypt,

India, Pakistan,

Syria, Jordan

and Iraq

- Named after

Imam Malik.

- Practised in

Muslim

countries in

northern Africa

e.g Algeria,

Morocco and

Tunisia.

- Named after

Imam

Muhammad bin

Shafie.

- Widely

practised in

South East Asia

e.g Thailand,

Malaysia and

Brunei

- Founded by

Imam Ahmad

bin Hanbal.

- Practised

predominantly

in Saudi Arabia

and Qatar, and

minority

communities in

Syria and Iraq.


Principles developed by Imams

i. Urf - custom, or 'knowledge', of a given society

ii. Istihsan - preference for particular judgments

iii. Istislah - public interest




Authenticity of Hadith

Sahih

• has a continuous isnad, made up of narrators of trustworthy memory from similar authorities, and which is found to be free from any irregularities (i.e. in the text) or defects (i.e. in the isnad)."

Hassan • its source is known and its narrators are unambiguous.

Da’if

• where there is discontinuity in the isnad or one of a narrators having a disparaged character.

Maudu’

• the text of which goes against the established norms of the Prophet's sayings or its narrators include a liar.

• aka forged hadith.


azrin hafiz / march-july 2013

Reasons for Conflicting

Ruling between Various School

of Thoughts

1.

Word meaning of the

al-Quran and Hadith

2.

Narrations of hadith

3.

Admissibility of certain principles

4.

Methods of Qiyas

8

1. W

ord

mea

nin

g o

f th

e

al-Q

ura

n a

nd H

adit

h

Shared literal meaning

Literal and figurative meaning

Grammatical meaning




a) Shared literal meaning

= a few words with more than one literal

meaning.


/Qur/ قرء

“Divorced women should

wait three quroo’…”

surah al-Baqarah (2):228

According to Hanafi, it

means menses

# Divorce is not finalize

until 3rd menses have ended.

According to Hanbali,

Malik and Shafi’i, it means

the time of purity between

menses

# Divorce becomes

finalized as soon as her

menses has started.

10

b) Literal and figurative meaning

= a word with literature and figurative meaning.


/Lams/ لمس

Literal meaning:

Touching by the

hand(s) or coming

in contact of two

objects

Figurative meaning:

Sexual intercourse

“or you touched (laamastum) women and

cannot find water, then tayammum from

clean Earth”

Surah an-Nisa (4): 43 and

Surah al-Maaidah (5): 6

11

• Jurists opinion:


Lams means sexual intercourse.

If a man intentionally or accidentally touched a woman, then both of then would lose their state of wudhu’.

Wudhu’ would only be broken if the touch were pleasurable disregard intended or not

Hanafi

Shafi’i

Maliki

12



c) Grammatical meaning

Grammatical constructions in Arabic which were

ambiguous


/elaa/ إلى

Means: “to” or “up to but not including”

13


The fast is continued

up to Maghrib ie the

beginning of night,

but does not include

the night itself.

.: no dispute in interpretation

Hanafi’s student,

Ibnu Daud

interpreted this

verse to mean “up

to but not including

the elbows)

The four Imams

all ruled that the

verse meant “up

to and including

the elbows

vs

14

a.

Availability of Hadith

Hadith narrators did not reach the Companions due to the fact that they settled in various regions throughout the Islamic empire.

Duration between foundation of mazhab (8-9 AD) and the compilation of hadith (9-10 AD).

b.

Weak Narrations of Hadith

Jurists madee ruling based on Hadith Da’if because unaware of unreliability of those hadith .

Some jurists took a position that a weak hadith was to be preferred to their Qiyaas.


2. Narrations of Hadith

15



c.

Conditions for the Acceptance of Hadith

Hanafi :

hadith must be well known before being

regarded as admissible evidence.

Maliki:

Hadith must not contradict with the customs of the

Madeenites in order to be admissible

d.

Resolution of Textual Conflict in Hadith

Some jurists chose path of “Tarjeeh” which meant

giving preference to some Hadith while rejecting

others on the same topics.

Some jurists chose path of “Jama’” which involved combining such hadith using one in a general

sense.


3. Admissibility of Certain Principles

• There were Imams developed a number of

controversial principles/rulings. As a result,

they became source of differences among

jurists.


Ijma’ of generations after

Companions

Reliance on Madeenites’

custom by Maliki

Hanifah’s Istihsaan

Maliki’s Istislaah

Companions ‘ opinions


Shafi’i questioned

on its occurence

Hanbali rejected

it outright

Rejected by

majority

of jurists

Disallowed by Shafi’i

as being too independent of

the Quran, Sunnah and Ijma’

Shafi’i felt that

They had to be

accepted on legal

matters, while

others felt that it

was only reasoning

on their part and

not binding on

later generations

18



4. Method of Qiyas

• Some jurists narrowed down the scope of qiyas

by setting a number of pre-conditions for its

use, while others expended its scope.

• As this principle based on opinions, there were

no hard and fast rules, thus a wide range of

differences developed.


References:

1. Abu Ameenah Bilal Philips (2006),

Evolution-of-Fiqh. International Islamic

Publishing House.

2. http://www.islamic-

awareness.org/Hadith/Ulum/asb7.html

3. http://en.wikipedia.org/wiki/Sahih#Sahih

4. http://en.wikipedia.org/wiki/Hadith_terminol

ogy


Thank you for your attention


http://www.islamic-awareness.org/Hadith/Ulum/asb7.html



http://en.wikipedia.org/wiki/Sahih

http://en.wikipedia.org/wiki/Hadith_terminology

http://en.wikipedia.org/wiki/Hadith_terminology

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