{"id":6591,"date":"2018-07-31T13:02:22","date_gmt":"2018-07-31T17:02:22","guid":{"rendered":"https:\/\/www.fiqhulislam.com\/?p=6591"},"modified":"2018-07-31T13:02:22","modified_gmt":"2018-07-31T17:02:22","slug":"legislation-law","status":"publish","type":"post","link":"https:\/\/www.fiqhulislam.com\/?p=6591","title":{"rendered":"Legislation & Law"},"content":{"rendered":"

A Translation of a Section from Shaykh ‘Al\u012b Jum’ah Mu\u1e25ammad\u2019s al-Madkhal Il\u0101 Dir\u0101sah al-Madh\u0101hib al-Fiqhiyyah (p. 379-382)<\/h3>\n

 <\/p>\n

The Sources of Islamic Legislation<\/b><\/span><\/p>\n

The word (\u0627\u0644\u0634\u064e\u0631\u0650\u064a\u0652\u0639\u064e\u0629\u064f) \u201cshar\u012b<\/i>c<\/sup><\/i>ah<\/i>\u201d appears in the language [conveying] two mental concepts:<\/span><\/p>\n

    \n
  1. That it is a straight path; an example of this mental concept being His, Exalted is He, statement: \ufd3e\u062b\u064f\u0645\u064e\u0651 \u062c\u064e\u0639\u064e\u0644\u0652\u0646\u0670\u0643\u064e \u0639\u064e\u0644\u0670\u0649 \u0634\u064e\u0631\u0650\u064a\u0652\u0639\u064e\u0629\u064d \u0645\u0650\u0651\u0646\u064e \u0671\u0644\u0652\u0623\u064e\u0645\u0652\u0631\u0650 \u0641\u0627\u062a\u064e\u0651\u0628\u0650\u0639\u0652\u0647\u064e\u0627 \u0648\u064e\u0644\u064e\u0627 \u062a\u062a\u064e\u0651\u0628\u0639\u0652 \u0623\u064e\u0647\u0652\u0648\u064e\u0622\u0621\u064e \u0671\u0644\u064e\u0651\u0630\u0650\u064a\u0652\u0646\u064e \u0644\u064e\u0627 \u064a\u064e\u0639\u0652\u0644\u064e\u0645\u064f\u0648\u0646\u064e\ufd3f\u00a0\u201cThen We placed you on a <\/span>shar\u012b<\/i>c<\/sup><\/i>ah<\/i> [straight path] with respect to the affair, so follow it, and do not follow the whims of those who do not know.\u201d (al-J\u0101thiyah, \u0100yah 18)<\/span><\/span><\/span><\/li>\n<\/ol>\n

     <\/p>\n

      \n
    1. A place of running water that one goes to for drinking; an example being their statement:\u00a0(\u0634\u064e\u0631\u0650\u0639\u064e\u062a\u0650 \u0627\u0644\u0625\u0650\u0628\u0650\u0644\u064f \u0625\u0650\u0630\u064e\u0627 \u0648\u064e\u0631\u064e\u062f\u064e\u062a\u0652 \u0634\u064e\u0631\u0650\u064a\u0639\u064e\u0629\u064e \u0627\u0644\u0652\u0645\u064e\u0627\u0621\u0650) \u201cThe camels took water into their mouths when they came to the watering place [shar\u012b<\/i>c<\/sup><\/i>ah<\/i> al-m\u0101\u2019].\u201d Furthermore, the word \u201cshar\u012b<\/i>c<\/sup><\/i>ah<\/i>\u201d is used in the argot and technical terminology of the Muslim Jurisconsult for those laws which All\u0101h has legislated for His slaves. These laws are called \u201cshar\u012b<\/i>c<\/sup><\/i>ah<\/i>\u201d because they are straight and perfectly composed with no deviation in their methodical arrangement.<\/span><\/li>\n<\/ol>\n

       <\/p>\n

      at-Tashr\u012b<\/i>c<\/sup><\/i> (\u0627\u0644\u062a\u064e\u0634\u0652\u0631\u0650\u064a\u0639\u064f) linguistically is classified as the verbal-noun of sharra<\/i>c<\/sup><\/i>a (<\/i>\u0634\u064e\u0631\u064e\u0651\u0639\u064e) <\/i>[to legislate, make laws], with a tashd\u012bd<\/i> on the \u2018ra\u2019, [and is] derived from shar\u012b<\/i>c<\/sup><\/i>ah<\/i>.\u00a0<\/span><\/span><\/p>\n

      at-Tashr\u012b<\/i>c<\/sup><\/i> <\/i>in technical usage is the composition of rules, and the explanation of the systems which individuals and groups conduct themselves [according to].<\/span><\/p>\n

      The Islamic shar\u012b<\/i>c<\/sup><\/i>ah<\/i> is a heavenly tashr\u012b<\/i>c <\/sup><\/i>(i.e. it is something from Al\u0101h, Exalted and Sublime is He).<\/span><\/p>\n

      The distinction between it [i.e. heavenly tashr\u012b<\/i>c<\/sup><\/i>] and those forms of tashr\u012b<\/i>c<\/sup><\/i> which human beings compose is:<\/span><\/p>\n

        \n
      • It is a way of life by which worship is rendered to God. Following its commands is an act of obedience for which reward is given, while violating its prohibitions is an act of disobedience for which punishment is given. The repayment of this act of contradiction may establish worldly punishments for an individual, however the reward and punishment is [really] tied to the Hereafter. On the other hand, secular legislation is not concerned with what is in the hearts.<\/span><\/li>\n<\/ul>\n

         <\/p>\n

          \n
        • The Islamic shar\u012b<\/i>c<\/sup><\/i>ah<\/i> seeks to lead human beings upwards and make them pure of heart and high-minded. As for secular lawmaking, it seeks to regulate human society but not [to the extent of] intervening [with a view] to elevate human character.<\/span><\/li>\n<\/ul>\n

           <\/p>\n

            \n
          • Islamic lawmaking commands and prohibits: it commands good and forbids that which is detestable, while secular lawmaking solely seeks to prohibit, and only incidentally seeks the doing of good.<\/span><\/li>\n<\/ul>\n

             <\/p>\n

              \n
            • [In] the Islamic lawmaking one is accountable for actions of the body and heart, whereas secular lawmaking only takes physical actions to account.<\/span><\/li>\n<\/ul>\n

               <\/p>\n

              The Islamic S<\/em>har\u012b<\/i>c<\/sup><\/i>ah<\/i> in Relation to Other Laws:<\/strong><\/span><\/p>\n

              (1) The Islamic shar\u012b<\/i>c<\/sup><\/i>ah <\/i>is a system emanating from a doctrine (c<\/sup>aq\u012bdah1<\/sup>)<\/i>. This doctrine\u00a0regards the Creator of the universe as utterly unique, and considers His purpose with His creation [to be] the improvement of the world, a thing achieved by sending Messengers and revealing books. It considers it a duty upon the human being to bind themselves to the Word of All\u0101h.<\/span><\/p>\n

              Those who accept the truth achieve the good fortune of both abodes, while the one who deviates from the truth has shown ingratitude to the favors of All\u0101h upon them. This doctrine\u00a0(i.e. the existence of a God, the sending of Messengers, the revelation of books, and being bound by the limits [set by] All\u0101h) is firmly bound to the acceptance of a Last Day which is in the Hereafter, and in which there is life everlasting, [as well as] a reckoning, reward and punishment.<\/span><\/p>\n

              The sum of this doctrine\u00a0springs forth [in the form of] a Muslim\u2019s im\u0101n<\/i> in their Prophet, the Book of their Lord, and the commands and prohibitions that revelation details as being the will of All\u0101h for His creation, and this [i.e. the Prophet, the Divine Book, and the commands and prohibitions] determines what is necessary for a human being to carry out and [that which they should] refrain from.<\/span><\/p>\n

              (2) The Islamic shar\u012b<\/i>c<\/sup><\/i>ah <\/i>has abrogated jurisprudential aspect of the preceding shar\u0101\u2019i<\/i>c<\/sup><\/i> (sing. shar\u012b<\/i>c<\/sup><\/i>ah<\/i>), while acknowledging the truth that exists in those shar\u0101\u2019i<\/i>c <\/sup><\/i>with respect to c<\/sup>aq\u012bdah<\/i>, and detailing the extent of distortion within those varying c<\/sup><\/i>aq\u0101\u2019id<\/i> (sing. c<\/sup>aq\u012bdah<\/i>) from the original which All\u0101h intended (i.e. pure monotheism).<\/span><\/p>\n

              (3) The Islamic shar\u012b<\/i>c<\/sup><\/i>ah <\/i>has laid down a general outline for lawmaking, and commands that which preserves public order and humanity, like:<\/span><\/p>\n

              (a) Protection of the Self<\/span><\/p>\n

              This is by outlawing of murder and injustice.<\/span><\/p>\n

              (b) Protection of the Intellect<\/span><\/p>\n

              This is through outlawing intoxicants and narcotics.<\/span><\/p>\n

              (c) Protection of the Religion<\/span><\/p>\n

              This is by means of outlawing irtid\u0101d<\/i> and kufr<\/i>, while allowing diversity among those who affirm revelation ([i.e.] the people of the book).<\/span><\/p>\n

              (d) Protection of the nobility and honor of human beings.<\/span><\/p>\n

              (e) The protection of people\u2019s wealth and property.<\/span><\/p>\n

              Islam\u2019s preservation of these five is considered amongst the goals of those obligated to follow the shar\u012b<\/i>c<\/sup><\/i>ah<\/i>, as will soon be discussed; nevertheless, at the same time, it presents this public order ordained by All\u0101h [as something] for all human beings [and something] that none of them should leave.\u00a0<\/span><\/span><\/p>\n

              This is the mental conceptualization of Isl\u0101m persisting through the centuries, and [it is this] which Ibr\u0101h\u012bm, peace be upon him, was described with. He, Exalted is He, said:<\/span><\/p>\n

              \ufd3e\u0645\u064e\u0627 \u0643\u064e\u0627\u0646\u064e \u0625\u0650\u0628\u0652\u0631\u0670\u0647\u0650\u064a\u0652\u0645\u064f \u064a\u064e\u0647\u064f\u0648\u062f\u0650\u064a\u0651\u0627 \u0648\u064e\u0644\u064e\u0627 \u0646\u064e\u0635\u0652\u0631\u064e\u0627\u0646\u0650\u064a\u0651\u0627 \u0648\u064e\u0644\u0670\u0643\u0650\u0646 \u0643\u064e\u0627\u0646\u064e \u062d\u064e\u0646\u0650\u064a\u0652\u0641\u064b\u0627 \u0645\u064f\u0651\u0633\u0652\u0644\u0650\u0645\u064b\u0627 \u06d6 \u0648\u064e \u0645\u064e\u0627 \u0643\u064e\u0627\u0646\u064e \u0645\u0650\u0646\u064e \u0671\u0644\u0652\u0645\u064f\u0634\u0652\u0631\u0650\u0643\u0650\u064a\u0652\u0646\u064e\ufd3f<\/span><\/p>\n

              \u00a0\u201cIbr\u0101h\u012bm was not a Jew, nor a Christian, rather he was a Muslim monotheist; and he was not from amongst the polytheists.\u201d(\u0100li Imr\u0101n, \u0100yah: 67)<\/span><\/p>\n

              And it is the mental concept of His, Exalted is He, statement:<\/span><\/p>\n

              \ufd3e\u0625\u0650\u0646\u064e\u0651 \u0671\u0644\u062f\u0650\u0651\u064a\u0652\u0646\u064e \u0639\u0650\u0646\u062f\u064e \u0627\u0644\u0644\u0647\u0650 \u0671\u0644\u0652\u0625\u0633\u0652\u0644\u0670\u0645\u064f\ufd3f<\/span><\/p>\n

              \u201cVerily, the way of life in the sight of All\u0101h is Isl\u0101m,\u201d (\u0100li Imr\u0101n, \u0100yah: 19)<\/span><\/p>\n

              and:<\/span><\/p>\n

              \ufd3e\u0648\u064e \u0645\u064e\u0646 \u064a\u064e\u0628\u0652\u062a\u064e\u063a\u0650 \u063a\u064e\u064a\u0652\u0631\u064e \u0671\u0644\u0652\u0625\u0650\u0633\u0652\u0644\u0670\u0645\u0650 \u062f\u0650\u064a\u0652\u0646\u064b\u0627 \u0641\u064e\u0644\u064e\u0646 \u064a\u064f\u0642\u0652\u0628\u064e\u0644\u064e \u0645\u0650\u0646\u0652\u0647\u064f \u0648\u064e\u0647\u064e\u0648\u064e \u0641\u0650\u0649 \u0671\u0644\u0652\u0623\u064e\u062e\u0650\u0631\u064e\u0629\u0650 \u0645\u0650\u0646\u064e \u0671\u0644\u0652\u062e\u0670\u0633\u0650\u0631\u0650\u064a\u0646\u064e\ufd3f<\/span><\/p>\n

              \u201cWhoever seeks other than Isl\u0101m as a way of life, then it will never be accepted from them, and in the Hereafter they will be from the losers.\u201d(\u0100li Imr\u0101n, \u0100yah: 85)<\/span><\/p>\n

              (4) In the shade of this general outline that Isl\u0101m has defined and whose violation is by no means acceptable, it is possible, within a vast plane of allowance, to alter those laws built upon benefits left open to man by God, as well as those built upon custom.<\/span><\/p>\n

              It is not permissible to encroach upon those permanent laws guarding these five universals considered to be the source of public order. Therefore, it is impermissible [to implement] any form of legislation legalizing murder, khamr<\/i>, extramarital sex, interest, stealing, injustice, false testimony, lying, oppression, violating the rights of human beings by torture, etc., or infringement upon people\u2019s honor, wealth, and property.<\/span><\/p>\n

              On the contrary, the system of Democracy, under the claim of human freedom, makes it possible to establish [laws allowing] the desecration of a person\u2019s honor, as long as it is by mutual agreement. And this is the great difference between the committed legislation that maintains these constants which All\u0101h, Pure and Exalted is He, has established in His revelation, in His Book, and in the Sunna of His Prophet, may peace and blessings of All\u0101h be upon him, and between the attempts of others to legislate for themselves in accordance with what they imagine [to be] beneficial [and] proper for mankind, or [what they imagine will] bring human beings joy and the means [to acquiring joy].<\/span><\/p>\n

              The shar\u012b<\/i>c<\/sup><\/i>ah<\/i> is the Word of All\u0101h, Exalted is He, which He revealed to His Messenger, may peace and blessings of All\u0101h be upon him. [Now,] the Prophet, may peace and blessings of All\u0101h be upon him, is the possessor of two [types of] revelation: the Qur\u2019\u0101n, and the Sunna that he expressed, did, or affirmed.<\/span><\/p>\n

              The Qur\u2019\u0101n is a revelation from All\u0101h, Pure is He, while the Sunnah is a revelation that is not recited (i.e. we don\u2019t recite it in \u1e63al\u0101h<\/em>); however, anything emanating from the Prophet is a proof just like the Qur\u2019\u0101n. The decree of All\u0101h, the Exalted, is His address [in the form] of a demand or choice that is connected to the actions of those obligated to follow the shari<\/i>c<\/sup><\/i>ah.<\/i><\/span><\/p>\n

              This means that All\u0101h is the one who makes laws, and that the Qur\u2019\u0101n, Sunnah, and remaining evidences only point to that Divine address.
              \n<\/span><\/p>\n

              \n


              \nFootnote 1:<\/span><\/p>\n

              Just like c<\/sup><\/i>amal<\/i> (actions) are the earnings of the limbs, i<\/i>c<\/sup><\/i>tiq\u0101d <\/i>are the earnings of the heart. The c<\/sup><\/i>amal<\/i> of the heart is an i<\/i>c<\/sup><\/i>tiq\u0101d<\/i>, generally, since everything that the heart binds itself to is called i<\/i>c<\/sup><\/i>tiq\u0101d<\/i> and c<\/sup><\/i>aq\u012bdah,<\/i> irrespective of it being true or false. Thus, no heart is free of an c<\/sup><\/i>aq\u012bdah<\/i>: the mu\u2019min\u2019s<\/i> c<\/sup><\/i>aq\u012bdah<\/i> is im\u0101n <\/i>[i.e. accepting as true what the Prophet has conveyed without], the k\u0101fir\u2019s<\/i> c<\/sup><\/i>aq\u012bdah<\/i> is kufr<\/i> in accordance with it\u2019s varying causes, and the c<\/sup><\/i>aq\u012bdah <\/i>of the atheist who claims that he does not have im\u0101n<\/i> in anything, is that they do not accept any of the principles of im\u0101n as being true. (J\u0101mic<\/sup> al-La\u2019\u0101l\u012b Shar\u1e25 Bad\u2019 al-Am\u0101l\u012b F\u012b c<\/sup>Ilm al-Aq\u0101\u2019id. D\u0101r al-Bash\u0101\u2019ir al-Isl\u0101miyyah. p. 14)<\/p>\n","protected":false},"excerpt":{"rendered":"

              A Translation of a Section from Shaykh ‘Al\u012b Jum’ah Mu\u1e25ammad\u2019s al-Madkhal Il\u0101 Dir\u0101sah al-Madh\u0101hib al-Fiqhiyyah (p. 379-382)   The Sources of Islamic Legislation The word…<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_editorskit_title_hidden":false,"_editorskit_reading_time":0,"_editorskit_is_block_options_detached":false,"_editorskit_block_options_position":"{}","footnotes":""},"categories":[26],"tags":[],"class_list":["post-6591","post","type-post","status-publish","format-standard","hentry","category-usulul-fiqh","wpcat-26-id"],"_links":{"self":[{"href":"https:\/\/www.fiqhulislam.com\/index.php?rest_route=\/wp\/v2\/posts\/6591","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.fiqhulislam.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.fiqhulislam.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.fiqhulislam.com\/index.php?rest_route=\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/www.fiqhulislam.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=6591"}],"version-history":[{"count":0,"href":"https:\/\/www.fiqhulislam.com\/index.php?rest_route=\/wp\/v2\/posts\/6591\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.fiqhulislam.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=6591"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.fiqhulislam.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=6591"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.fiqhulislam.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=6591"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}