Shari‘ah – The Islamic Legal

System

Curtin University, Perth – Western Australia

April 24, 2004

Presented by: Yahya A. Ibrahim

yai@aic.wa.edu.au

CONTENT

Defining Shari‘ah? The Spirit of Shari ‘ah Legal Philosophy Maqasid ash-Shari‘ah: The Aim of

Shari‘ah Al-Qawa‘id – Legal Maxims of

Islamic Law Case Study: Euthanasia

What is Shari‘ah? 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.

What is Shari‘ah? “Then we gave you a Shari ‘ah in

religion, follow it, and do not follow the lust of those who do not know.” 45:17

"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)

What is Shari‘ah?

The regulations of the Shari‘ah 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.

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, Shari‘ah, 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 Shari‘ah reverberates in its technical usage: just as water is vital to human life so the clarity and uprightness of Shari‘ah is the means of life for souls and minds.

Legal Philosophy "Our Lord, give us gnext, 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

Good in this life and good in the Hereafter

Maqasid ash-Shari‘ah: The Aim of Shari‘ah

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.

Maqasid ash-Shari‘ah: The Aim of Shari‘ah

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

Sources of Shari‘ah: Primary Sources

• The Primary sources are Al-Quran and SunnahAl-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)

Sources of Shari‘ah: Primary Sources

As-Sunnah: The Prophet’s ExampleAllah 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," (4:59)

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."

Sources of Shari‘ah: 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.

Sources of Shari‘ah: 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.

Fiqh - Jurisprudence Fiqh is the science of Shari ‘ah Fiqh provides the structure for deriving Legal

Rulings from Shari‘ah The Shari‘ah 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

Al-Qawa‘id: Legal Maxims Al-Qawa‘id are a group of legal

rulings or axioms that share a common derivation by analogy, qiyaas.

We have already discussed the five Aims of Shari‘ah: 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.

Al-Qawa‘id: 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.

Al-Qawa‘id: 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.

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.

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.

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.

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.

Deriving the Islamic Verdict

Second Approach using Al-Qawa‘id:

1. 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.

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.

Deriving the Islamic Verdict Second Approach using Al-

Qawa‘id: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.

Deriving the Islamic Verdict2. 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.

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.

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

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.

Contact UsYahya Ibrahim

Australian Islamic College139 President St.Kewdale, Western Australia 6105yai@aic.wa.edu.au         

http://aic.wa.edu.auOffice (618) 9362-2100  Fax: (618)

93625810