Jurisprudence

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Sunday, January 22, 2017

Islamic Law and Institutions: Select Bibliography

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Sunday, January 08, 2017

Books: Politics and Religion in Islam

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Books: Politics and Religion in Islam

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The Mejelle: Ottoman Legal Code

    Sunday, January 08, 2017   No comments
The Mejelle

Edited by Jonathan T. Capes
PART I
DEFINITION AND CLASSIFICATION OF ISLAMIC JURISPRUDENCE
Article 1. The science of Islamic jurisprudence consists of a knowledge of the precepts of the Divine Legislator in their relation to human affairs.
The questions of Islamic jurisprudence either concern the next world, being known as rules relating to worship, or to this world, being divided into sections dealing with domestic relations, civil obligations and punishments. Thus God decreed the continuation of the world until the appointed time. This, however, can only occur by mankind being perpetuated which is dependent upon marriage of male and female with a view to procreation. Moreover, the continuation of the human species is assured by individuals associating together. Man, however, in view of the weakness of his nature is dependent upon food, clothing, housing and the industries for his subsistence. In other words, in view of the fact that man is a civilized being, he cannot live in solitude like the other animals, but is in need of co-operation and association in work with his fellow men in order to live in a state of Civilization. Every person, however, asks for the things which he likes and avoids things which are disagreeable to him. As a result, it has been necessary to establish laws of a nature likely to maintain order and justice as regards marriage, mutual help and social relations, which are the basis of all civilization.
The first division of Islamic jurisprudence is the section dealing with domestic relations. The second is the section dealing with civil obligations. In view of the fact that the continuance of civilization on this basis necessitates the drawing up of certain matters relating to punishments the third section of Islamic jurisprudence deals with punishments.
As regards the section dealing with civil obligations, the questions which are of the most frequent occurrence have been collected together from reliable works and set out in this Code in the form of Books. These Books have been divided into Chapters and the Chapters into Sections. The questions of detail which will be applied in the Courts are those questions which are set out in the following Chapters and Sections. Muslim jurists, however, have grouped questions of Islamic jurisprudence under certain general rules, each one of which embraces a large number of questions and which, in the treatises on Islamic jurisprudence, are taken as justification to prove these questions. The preliminary study of these rules facilitates the comprehension of the questions and serves to fix them in the mind. Consequently, ninety nine rules of Islamic jurisprudence have been collected together as follows, before commencing on the main work and form Part II.
Although a few of them, taken alone, admit of certain exceptions, their general application is in no way invalidated thereby, since they are closely interrelated.

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RIGHTS OF ENEMIES AT WAR

    Sunday, January 08, 2017   No comments

By Abu al-A`la al-Mawdudi

After dealing with the rights of the citizens of an Islamic State, I would like to briefly discuss the rights which Islam has conferred on its enemies. In the days when Islam came into focus the world was completely unaware of the concept of humane and decent rules of war. The West became conscious of this concept for the first time through the works of the seventeenth century thinker, Grotius. But the actual codification of the 'international law' in war began in the middle of the nineteenth century. Prior to this no concept of civilized behavior in war was found in the West. All forms of barbarity and savagery were perpetrated in war, and the rights of those at war were not even recognized, let alone respected. The laws which were framed in this field during the nineteenth century or over the following period up to the present day, cannot be called 'laws' in the real sense of the word. They are only in the nature of conventions and agreements and calling them 'international law' is actually a kind of misnomer, because no nation regards them binding when they are at war, unless, of course, when the adversaries also agree to abide by them. In other words, these civilized laws imply that if our enemies respect them then we shall also abide by them, and if they ignore these human conventions and take recourse to barbaric and cruel ways of waging war, then we shall also adopt the same or similar techniques. It is obvious that such a course which depends on mutual acceptance and agreement cannot be called 'law'. This is the reason why the provisions of this so-called 'inter- national law' have been flouted and ignored in every way, and every time they have been revised, additions or deletions have been made in them. Law of War and Peace in Islam:
The rules which have been framed by Islam to make war civilized and humane, are in the nature of law, because they are the injunctions of God and His Prophet which are followed by Muslims in all circum- stances, irrespective of the behavior of the enemy. It is now for the scholars to find out how far the West has availed of the laws of war given by Islam thirteen hundred years ago; and even after the adaptation of some of the laws of Islam how far the West attained those heights of civilized and humane methods of warfare which Muslims reached through the blessings of Islam. Western writers have often asserted that the Prophet had borrowed everything in his teachings from the Jews and the Christians. Instead of saying anything in its refutation I will only recommend the reader to refer to the Bible so that he can see which methods of war are recommended by the sacred Book of these Western claimants to civilization and culture.
We have examined in some detail the basic human rights that Islam has conferred on man. Let us now find out what rights and obligations Islam recognizes for an enemy.
The Rights of the Non-Combatants
Islam has first drawn a clear line of distinction between the combatants and the non-combatants of the enemy country. As far as the non-combatant population is concerned such as women, children, the old and the infirm, etc., the instructions of the Prophet are as follows: "Do not kill any old person, any child or any woman" (AD). "Do not kill the monks in monasteries" or "Do not kill the peo-ple who are sitting in places of worship" (Musnad of Ibn Hanbal).
During a war, the Prophet saw the corpse of a woman lying on the ground and observed: "She was not fighting. How then she came to be killed?" From this statement of the Prophet the exegetes and jurists have drawn the principle that those who are non-combatants should not be killed during or after the war.
The Rights of the Combatants
Now let us see what rights Islam has conferred on the combatants.
1. Torture with Fire
In the Hadíth there is a saying of the Prophet that: "Punishment by fire does not behoove anyone except the Master of the Fire" (AD). The injunction deduced from this saying is that the adversary should not be burnt alive.
2. Protection of the Wounded
"Do not attack a wounded person"-thus said the Prophet. This means that the wounded soldiers who are not fit to fight, nor actually fighting, should not be attacked.
3. The Prisoner of War should not be Slain
"No prisoner should be put to the sword"-a very clear and unequivocal instruction given by the Prophet (S).
4. No one should be tied to be killed
"The Prophet has prohibited the killing of anyone who is tied or is in captivity."
5. No Looting and Destruction in the Enemy's Country
Muslims have also been instructed by the Prophet that if they should enter the enemy's territory, they should not indulge in pillage or plunder nor destroy the residential areas, nor touch the property of anyone except those who are fighting with them. It has been narrated in the Hadíth: "The Prophet has prohibited the believers from loot and plunder" (al-Bukhari; AD). His injunction is: "The loot is no more lawful than the carrion" (AD). Abu Bakr al-Siddiq used to instruct the soldiers while sending them to war, "Do not destroy the villages and towns, do not spoil the cultivated fields and gardens, and do not slaughter the cattle." The booty of war which is acquired from the battleground is altogether different from this. It consists of the wealth, provisions and equipment captured only from the camps and military headquarters of the combatant armies.
6. Sanctity of Property
The Muslims have also been prohibited from taking anything from the general public of a conquered country without paying for it. If in a war the Muslim army occupies an area of the enemy country, and is encamped there, it does not have the right to use the things belonging to the people without their consent. If they need anything, they should purchase it from the local population or should obtain permission from the owners. Abu Bakr al-Siddiq, while instructing the Muslim armies being dispatched to the battlefront would go to the extent of saying that Muslim soldiers should not even use the milk of cattle without the permission of their owners.
7. Sanctity of a Dead Body
Islam has categorically prohibited its followers from disgracing or mutilating the corpses of their enemies as was practiced in Arabia before the advent of Islam. It has been said in the Hadíth: "The Prophet has prohibited us from mutilating the corpses of the enemies" (al- Bukhari; AD). The occasion on which this order was given is highly instructive. In the Battle of Uhud the disbelievers mutilated the bodies of the Muslims, who had fallen on the battlefield and sacrificed their lives for the sake of Islam, by cutting off their ears and noses, and threading them together to put round their necks as trophies of war. The abdomen of Hamzah, the uncle of the Prophet, was ripped open by Quraysh, his liver was taken out and chewed by Hind, the wife of Abu Sufyán, the leader of the Meccan army. The Muslims were naturally enraged by this horrible sight. But the Prophet asked his followers not to mete out similar treatment to the dead bodies of the enemies. This great example of forbearance and restraint is sufficient to convince any reasonable man who is not blinded by prejudice or bias, that Islam is really the religion sent down by the Creator of the universe, and that if human emotions had any admission in Islam, then this horrible sight on the battlefield of Uhud would have provoked the Prophet to order his followers to mutilate the bodies of their enemy in the same manner.
8. Return of Corpses of the Enemy
In the Battle of Ahzab a very renowned and redoubtable warrior of the enemy was killed and his body fell down in the trench which the Muslims had dug for the defense of Medina. The unbelievers presented ten thousand dinars to the Prophet and requested that the dead body of their fallen warrior may be handed over to them. The Prophet replied "I do not sell dead bodies. You can take away the corpse of your fallen comrade."
9. Prohibition of Breach of Treaties
Islam has strictly prohibited treachery. One of the instructions that the Prophet used to give to the Muslim warriors while sending them to the battlefront was: "Do not be guilty of breach of faith." This order has been repeated in the Holy Qur’án and the Hadíth again and again, that if the enemy acts treacherously let him do so, you should never go back on your promise. There is a famous incident in the peace treaty of Hudaybiyyah, when after the settlement of the terms of the treaty, Abu Jandal, the son of the emissary of the unbelievers who had negotiated this treaty with the Muslims, came, fettered and blood-stained, rushing to the Muslim camp and crying for help. The Prophet told him "Since the terms of the treaty have been settled, we are not in a position to help you out. You should go back with your father. God will provide you with some other opportunity to escape this persecution." The entire Muslim army was deeply touched and grieved at the sad plight of Abu Jandal and many of them were moved to tears. But when the Prophet declared that "We cannot break the agreement", not even a single person came forward to help the unfortunate prisoner, so the unbelievers forcibly dragged him back to Mecca. This is an unparalleled example of the observance of the terms of agreement by the Muslims, and Islamic history can show many examples of a similar nature.
10. Rules about Declaration of War
It has been laid down in the Holy Qur’án: "If you apprehend breach of treaty from a people, then openly throw the treaty at their faces" [8:58]. In this verse, Muslims have been prohibited from opening hostilities against their enemies without properly declaring war against them, unless of course, the adversary has already started aggression against them. Otherwise the Qur’án has clearly given the injunction to Muslims that they should intimate to their enemies that no treaty exists between them, and they are at war with them. The present day 'inter- national law' has also laid down that hostilities should not be started without declaration of war, but since it is a man-made rule, they are free to violate it whenever it is convenient. On the other hand, the laws for Muslims have been framed by God, hence they cannot be violated.
Conclusion
This is a brief sketch of those rights which fourteen hundred years ago Is-lam gave to man, to those who were at war with each other and to the citizens of its state, which every believer regards as sacred as law. On the one hand, it refreshes and strengthens our faith in Islam when we realize that even in this modern age which makes such loud claims of progress and enlightenment, the world has not been able to produce just and more equitable laws than those given 1400 years ago. On the other hand it hurts one's feelings that Muslims are in possession of such a splendid and comprehensive system of law and yet they look forward for guidance to those leaders of the West who could not have dreamed of attaining those heights of truth and justice which was achieved a long time ago. Even more painful than this is the realization that throughout the world the rulers who claim to be Muslims have made disobedience to their God and the Prophet as the basis and foundation of their government. May God have mercy on them and give them the true guidance.

Equality Before the Law

    Sunday, January 08, 2017   No comments

By:
Sayyid Mujtaba Musavi Lari
The equality which obtains in Islamic law courts should be taken as a world model. Haroun-al-Rasheed, the Abbasid Caliph, had to testify on oath in a court before a judge, and his servant Fazl bin Rabee' witnessed in his favour. The judge refused to accept Fazl's testimony. The Caliph demanded to know why. The judge replied: "Fazl himself says he is your servant. If he is telling the truth, the Islamic court does not accept a servant's testimony to the advantage of his master. If he was lying, his testimony is void on that account."
The next Abbasid Caliph, Mansour, hired numbers of camels to make the Hajj. On his return he made a series of excuses as pretexts for not repaying the hire. The cameldrivers took the Caliph into the courts. The judge summoned him and sat him alongside the cameldrivers. When he had heard the evidence he judged against the Caliph, who was compelled to pay the cameldrivers what he owed them before he was allowed to leave the court.
This immediate verdict and execution of sentence is recognised by Western jurists as one of the greatest advantages of Islamic law courts. It saves a great deal of time and expense, for plaintiff, defendant and judge alike. Dr. Gustave Le Bon relates his own personal observation from a court he attended in Marrakesh in Morocco. Plaintiff and defendant with their lawyers and papers entered the court. The judge entered. All rose. Straightaway each side presented its case. The judge summed up. The verdict was given. Sentence was pronounced and immediately executed, to the great benefit of all concerned. "If only Western courts with their long delays would learn this art of dispensing justice fairly, swiftly and economically!" he comments.
When litigants are all secure in the knowledge that the laws by which their case will be judged are based on eternal principles revealed by God Himself, and that therefore the powerful cannot swing judgment in their own favour. arid when the judge has principles of judgment to go on which enable him with a detached impartiality to seek his guidance from the law of God in total freedom from any emotional bias; the law is observed and respected, injustices are cut out, certainty and security reign in society and bring trust and confidence in their train.
Islam does not aim to level men down, but to level them up to an equality on the highest level, where true affection and the real love of one's fellowmen call the tune - a unity of heart based on a unity of faith in the one God, Who is Maker of all and Judge of all, and Who makes no distinctions save those of obedience between one of His creatures and another. This is made plain by the Qur'anic verse 10 from the Sura Hujurat already quoted where it is written : "We made you into nations and tribes that you might learn to know each other." It is the practice of this creed which has produced that marvellous hospitality which so many Western travellers have noticed among Muslims and of which they bewail the absence in the materialistic civilisation which has grown up in the West. One traveller commented: "I found in Iran that if I walked into a village and knocked on any door, and introduced myself as a stranger within their gates to whoever addressed me through the lattice, the door was at once opened and I was welcomed in as one of the family. They sat me down to share whatever meal they were having, however frugal, gave me a palliasse and lehaf for a comfortable sleep through the night, and sent me on my way rejoicing after a breakfast of sweet tea, fresh-made bread and sour milk (mast) next morning."

Physicians’ Contractual Responsibility According to Sharī`ah and Law

    Sunday, January 08, 2017   No comments
Physicians’ Contractual Responsibility According to Sharī`ah and Law

Dr. Adnan A. al-Smadi; Professor of Islamic Law

مسؤوليّة الطبيب التعاقدية بين الشريعة والقانون

د.عدنان أحمد الصمادي




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