LECTURE NOTES IN SHARIAH-I

Shariah (Islamic Law)

Shariah-1
- Customary Laws
- Persons and Family
Relations
- Islamic Fiqhihi
(Jurisprudence)
Shariah -2
- Wills and Succession
Introductory (Shariah-1)
There were 6 Legal Systems, only 5
survived:
1. Hindu
2. Chinese
3. Roman Legal System
4. Angelican(English Legal System)
5. Islamic Law (Shariah)

Civil Law/Roman Law (aka Common

Law)- made by Legislators
- Rule of social conduct
- Usually accompanied by a
sanction
- Man made
- Product of court decisions
Sources: stare decisis (Case Laws), book
of authorities

Roman Legal System

Angelican(English Legal System)
-These two are man made
Shariah (Islamic Law)
-Divine Origin
-intervening in the form of a
communication (Kitab)
-its Gods authorization or prohibitions
concerning human actions of capable
persons Muqallaf (of legal age)
-said to be influenced by Roman Law
-but in reality , never really influenced
because the Arabs have their laws (eg
Southwest Arabian, International trade,
personal laws)

What are the similarities between

Roman Laws and Islamic Law

1. Burden of Proof (Plaintiffs)

2. Age of Majority RL- 12, 14
IL 12+, 15
3. Sale and Barter RLIL

Differences
Note: Dowry is a general term
Dowry/Dower, usually
Man to Woman
1.
2.
3.
4.

Roman Law: Woman-> Man

Islamic Law: Man -> Woman
Muslim Code
Dowry RL: Woman may petition
by renouncing dowry
IL:

5. Death
6. Adoption
RL: allowed
IL: no such thing as adoption
7. Transfer of Bequest

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What is Shariah
Literally: Path binding to water
or sources of life
Solis: way of good life
Legally: whole system of law of
Islam
the totality of divine
commandment
(2 Objectives) 2 Categories of
Shariah
1.) To regulate the relation between
ALLAH and Slaves- His creations
-

Ibadah: ritual worship

Ibadat:

2.) To regulate the relationship

between man and man
- Muamalat or Human
Transactions
Note: Alim- singular
Ulama- plural
Ustadz- singular
Asatidz- Plural
Faqir - jurists
-singular
Fuqaha-plural
Later Jurists/Fuqaha (Categorical
Muamalat)
5 BRANCHES OF SHARIAH
a. IBADAT devotion to the 5 pillars
of Islam
b. ITIQADAT- 6 articles of faith
c. ADAB Islamic Ethics on Excellence
d. MUAMALAT- Human transactions
-aspect of family
relations
-commercial
transactions
- law on marriage

e. AL UQUBAT WAL HUDUD- criminal

law and punishment (ART 181-185
Specific Transactions)

Bequest by Operation of Law

Inheritance: non-muslims
-it is the law that gives
them...
The whole field of human action
-acts
-thoughts
Note: Bidah- innovation
Diya- blood money

1. Sharia limits that impulse of

getting everything
2. Share wealth
Note: Hukuk/Wajibat
- Rights and Obligations
- To act in a prescribed
manner
CLASSIFICTAION OF RIGHTS
1. Rights of God (Hukuk ALLAH)
2. Rights of Man (Hukuk Ibad)
3. Common Rights
3.1 common wherein Gods rights
prevails
3.2 common where rights of men
prevails
RIGHTS OF GOD
Acts of Devotion (5 pillars, 6
articles)
OBLIGATIONS
Imposed by Law: Toward God
Toward Man

LECTURE NOTES IN SHARIAH-I

a. Practicing of Religion
b. What are your obligations to
your parents
c. Those derived from family
relations
(side notes: in case of adultery
fornication, Rights of God prevails,
because public is at stake and it might be
a precedent)

DONT DO IT: neither

punished, nor rewarded
5. HARAM prohibited
DO IT: youre Punished
DONT DO IT: REWARDED
FIVE (5) SCHOOLS OF THOUGHT
(accrdg to my notes)

Note: Miskin poor

Faqir- destitute (very poor, din a
kaya)

1.) HANAFI
2.) SALAFI
3.) SHAFII
4.) MALIKI

AVOWAL
2 forms of DIVORCE
1. TALAQ
2. JUDICIAL DECREE
CLASSIFICATION OF LEGAL RULE
(Hukum Shariah)
(1)Mandatory (Taklif) imposes
duties/obligations
(2)Declarative (Wadi)
1. WAJIB (Fard)- obligatory
DO it: youre rewarded
DONT do it: youre
punished
2. MANDUB/SUNNAH
desirable
DO it: rewarded
DONT DO IT: not punished
3. HUBAH permissible
DO IT: may or may be
done
DONT DO IT: Not
punished
4. MAKRUH abominable
DO IT: youre punished

(source Wikipedia)

2.1.1 Schools of Sunni jurisprudence

o

Hanafi

Maliki

Shafii

Hanbali

hir

1) The Hanafi school of

thought: The founder is
the Persian scholar Imam
Abu Hanifah al-Numan
ibn Thabit (AD: 699-767).
His school of thought is
practiced widely in
Southeast Asia, Central
Asia, the Caucasus, the
Balkans and Turkey. The
majority of Sunni Muslims
practice the Hanfi
jurisprudence.
2) The Shafii school of
thought: The founder is
Abu Abdullah Muhammad
Ibn Idris al-Shafii known

LECTURE NOTES IN SHARIAH-I

as Imam Al-Shafii (AD:

767-820). Imam al-Shafii
is also known as the First
Among Equals for his
exhaustive knowledge and
systematic methodology
to religious science.
Adherents of this sect are
mainly from the Middle
East.
3) The Maliki school of
thought: The founder is
Malik Bin Anas (AD: 711795). Its adherents are
mostly from North Africa,
United Arab Emirates, and
parts of Saudi Arabia.
4) The Hanbali school of
thought: The founder is
Imam Ahmad Ibn Hanbal
(AD: 780855). The
Hanbali jurisprudence is
considered very strict and
conservative. The Hanbali
school of jurisprudence is
practiced mainly in Saudi
Arabia, Qatar as well as in
parts of Syria and Iraq
End of Wikipedia info
Declarative Rule
Killing- The cause of imposing
punishment is the cut or killing
itself
(as long as not contrary to the Phil.
Constitution)

3. Ijma- consensus of
Scholars/Community
4. Qiyas- Reasoning by Analogy
SECONDARY
1. Istihsan (Juristic Preference)
2. Istislah (Public Interest or
Welfare)
3. Istishah (by Presumption)
4. Urf Adat (customs)
Personal Laws of Muslims
-Shariah Goals
Spiritual
o imposing limitations
o man is not satisfied (greedy)
o At the expense of another
Rights and Obligations

Shariah (Islamic Law)

Fiqh Islamic Jurisprudence refers to
the process of deriving Shariah norms
from the Shariah sources (eg Qur-an,
Sunnah, Ijma,Qiyas and other
Suppletory Sources)
Istisah
Istisan
IStishab, urf

SOURCES OF SHARIAH (Islamic Law)

SHARIA vs. FIQH

PRIMARY

Shariah
-covers all human
acts
-both spiritual and
human transcation
(muamalat)

1. Holy Qur-an- Muslims Holy

Scripture
2. Sunnah- Actual Practice of
Prophet Muhammad (S.A.W)

Fiqh
-veers only with
legal acts
-muamalat of
muqalaf only

LECTURE NOTES IN SHARIAH-I

- divine ilm
-destination (here
and hereafter)

- judicial inference
of legal experts
-temporal remedies
/ punishment

HISTORY OF DEVELOPMENT OF ISLAMIC

LAW
First Period LEGISLATIVE PERIOD

Note:

Obligations- Wajibat (what the law

imposes)

-revelations
-divine legislation
-Prophetic (pbuh)s lifetime
-different aspects were outlined
-explained by traditions
-referred into him for ruling

3 RIGHTS

Second Period

Rights- Hukob (by Compelling to act in

prescribed manner

1. God
2. Man
3. Mixed
1. Dominant (Gods) when?
2. Dominant (Mans) when?

SOURCES OF SHARIAH
PRIMARY (Qur-an; Sunnah)

-Four Rightly Guided Caliphs

1.) Abu Bakr
2.) Omar
3.) Uthman
4.) Ali
-Major Contributions
Abu Bakr
Advised by Ibn Kathab to
compile the revelations
Zaid Ibn Thabit- compiler
Omar

SECONDARY (ijma (consensus,

unanimity); Qiyas (analytical)

Preserving authentic copy of

Qur-an
Founder of Islamic State
Initiated first Qadi/Judge

SUPPLETORY (Istihsan; Istislah; Istishab)

1. Sunnah Al Qawliqyali statements
2. Sunnah Al Filiyah Deeds
3. Sunnah Al Taqriniyah tacitly
approved by the Prophet (eg
withdrawal method)

Ali
Defined powers of Qadi

Note: Supplementary
1. Istihsan (Juristic Preference)
2. Istislah (Public Interest or
Welfare)
3. Istishah (Presumption of
continuity)
4. Urf Adat (customary laws)

Third Period
Um Ayyats (ottoman empire) period of
companions and successions of the
Prophet

LECTURE NOTES IN SHARIAH-I

Influenced administration of laws

Bidh (innovative practices)

Seventh Period
-after the abolition of caliphate
-1982

Fourth Period
Abbassid Caliphate
-great justice of Islam
(4 Madhalib)
(5 great schools of thought)
Ano ba talaga, 5 or 4 schools of thought?
Tsk!

BOOK-I
-general provisions
-why include of the Phils
-domiciled
-does not include transient

FOUR MADHALIB (schools of thought)

HISTORICAL BACKGROUND

1. HANAFI2. MALIKI
-

Iraq
Qur-an as BASIS
Istihsan
Multitude
First to rule on Qiyas
Madina
Traditionalist
Honesty (kahit isa lang)

3. SHAFII - Egypt
- Moderation and judgment

4. HANBALI
-very traditionalist
- fundamentalist
-pinag aaralan ang
background ng transmitters
Fifth Period
-period after the fall of Baghdad
-muhajirins they followed the views of
original followers
Sixth Period
-period of the Muqalidin
-followers of 4 schools of thought
-age of the commentators

-Hijri
-Mecca to Madina 710 A.H.
Various Laws were passed
(1)RA 394- June 18, 1949
-recognizes absolute divorce
Good only for 20 years
(2)ART 79/ RA 386 (Civil Code 08-301950)
- Recognized here again but
only for 20 years more so
1950 + 20 years, 1970
- Recognized mixed
marriages
- 1970 another law RA 6268
+ 10 years so up to year
1980 na
- From 1980 to present ->
PD 1083 (muslim code of
the Philippines
Note: Muslim Code preceded Family Code
Muslims have already their personal laws
Thus
If >
Man- Non-Muslim
Mrs- Muslim
Governed by: CIVIL CODE
If >

LECTURE NOTES IN SHARIAH-I

Man- Muslim
Mrs- Non-Muslim

may be Governed by:

Permissive to use CIVIL CODE- so not
allowed ang divorce

cannot be fully practiced

the vow of celibacy
To avoid committing
celibacy, zina, adultery,
fornication

REQUISITES:
P.D. 1083 Muslim Code of the Philippines
> legacy of President Marcos
> Sec. 12, Art III of 1987 consti (basis)
>Local Govt Code
>Shariah District Courts/Shariah Circuit
Courts
>Juris Consul
>Special Rules of Procedure of Shariah
Courts
>In case of conflict between PD 1083
and RA 394, it shall be liberally construed
to give fair and reasonable interpretation
with respect to the objects and ....

Physically fit
Capability to support family

PURPOSE OF MARRIAGE:

Pro creation or to establish a

family, Chap. 4, verse 1 Holy Quran
To protect chastity and moral
excellence, chap. 2, v. 187; chap.5,
v.5
To sustain mental peace and
tranquillity

Note:
In case of indigenous people (those
muslim ones, in case of conflict between
their own Indigenous Act and Muslim
Code, liberally construed to interpret
Muslim Code.
BOOK-II
Persons and Family Relations
Legal Capacity
Juridical Capacity fitness
-inherent
-lost only through death
Capacity to Act- the power to do
acts with legal effect
Note: what are other differences of these
two?
MARRIAGE IS A SUNNAH ACT (desirable
act)

August 22, 2015 last meeting before

midterms
Family Code preceded Muslim
Code
Marriage is a Sunnah (desirable
act)
Consent of both parties is
essential
Marriage is both religious and a
secular obligation.
LEGAL CONSEQUENCES OF MARRIAGE
1. Makes lawful the sexual
relationship between man and
woman
2. Man is entitled to dower
Note: 2 forms of dissolution of marriage
in Islam
1. DEATH

LECTURE NOTES IN SHARIAH-I

2. DIVORCE
ART 15, PD 1083

Rukn- essential element

Shart- essential requisite

Doctrine of Option of Puberty

-khayr al bulugh
1. To be exercised within 4 years after
attaining the age of puberty to be
done either H or W
2. No consummation of marriage
3. Wali is other than the F of FF.