Islamic Law

Copyright © 2024 by Barr. Hamdallah Bello & Dr Jamie Umar Caine

Paperback: 978-1-965632-23-9

eBook: 978-1-965632-24-6

Library of Congress Control Number: 2024919987

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In the Name of Allah, the Most Compassionate, the Most Merciful.

Islamic law, known as Sharia, is a comprehensive legal system derived from the Quran, the Hadith (the sayings and actions of the Prophet Muhammad, peace be upon him), and centuries of scholarly interpretation. It governs not only religious rituals and practices but also offers guidance on a wide array of societal issues, including family life, business ethics, criminal justice, and governance. As such, it represents a holistic approach to law, embodying principles of justice, equity, and compassion.

This book aims to provide a clear and accessible introduction to the complex and multifaceted nature of Islamic law. It seeks to demystify the foundational concepts and principles that underpin Sharia, while also addressing the diverse interpretations and applications that have emerged throughout Islamic history. By exploring both classical jurisprudence and contemporary issues, this work endeavors to offer a balanced perspective that acknowledges the rich tradition of Islamic legal thought and its relevance in today’s world.

The structure of this book is designed to guide the reader through the various dimensions of Islamic law systematically. We begin with an overview of the sources and methodology of Sharia, delving into the Quranic injunctions, the Hadith literature, and the role of Ijtihad (independent reasoning) and Qiyas (analogical reasoning). Subsequent chapters examine specific areas of law, including personal status laws, criminal law, commercial transactions, and international Law. Each chapter includes historical context, key legal principles, and contemporary challenges, providing a comprehensive understanding of how Islamic law operates in different contexts.

One of the key aims of this book is to highlight the diversity within Islamic jurisprudence. The existence of various schools of thought, such as Hanafi, Maliki, Shafi’i, and Hanbali, as well as the contributions of scholars from different cultural and historical backgrounds, illustrates the dynamic and evolving nature of Islamic law. This pluralism is a testament to the intellectual rigor and adaptability of Sharia, which has allowed it to remain relevant across different times and places.

In writing this book, we have drawn upon a wide range of sources and scholarly works, aiming to present a balanced and nuanced account that is both informative and engaging. It is our hope that this book will serve as a valuable resource for students, scholars, and anyone interested in understanding the principles and practice of Islamic law. By fostering a deeper appreciation of Sharia, we aspire to contribute to a more informed and respectful dialogue about its role in the modern world.

We are deeply grateful to the many scholars and mentors who have guided our study of Islamic law, and to our family and friends for their unwavering support and encouragement. May this work be a source of benefit and understanding, and may it inspire further exploration and reflection on the rich tradition of Islamic legal thought.

Peace and blessings be upon the Prophet Muhammad, his family, and his companions.

– Barr. Hamdallah Bello & Dr Jamie Umar Caine

July 2024

This book is dedicated to everyone facing oppression all over the world in the 21st century.

I am highly indebted to many people for the successful completion of this humble effort, but my unreserved gratitude goes first to Almighty ALLAH (SWT), for His mercy towards the accomplishment of this task which initially seemed unattainable.

My warmest regards go to my mum, dad and siblings, I cherish and love you all.

To my darling husband Dr Jamie Umar Caine for his love, support and understanding, I pray Allah continues to bless our union. To my angels Muttaqin, Muhammad, Ibraheem and Mutaqiyyah indeed, you are all marvellous gifts to me.

To all my mentors: Sheikh (Dr) Ishaq Muhammad Awwal (R.T.A) and all Sheikh Muhammad Al Lawal (RTA)’s family and Khulafah, Amir (Dr) Mohammed Nurudeen Akinwunmi-Othman (Associate Professor- University of the West of England, Bristol, UK), Ustadh Mukadam Sanusi, Sheikh Abd Rasheed Tijani, Sheikh (Dr) Muhammad Ishaq– Oko Awo (Egypt), Sheikh Ishaq Agbarigidoma, Sheikh Omar Niass, and Sheikh Khalil Niass.

To my teachers: Prof. Abdul Kabir Paramole (LASU), Prof. T. Olumoko (LASU), Dr. Lawal Yesufu (Canada), Prof. Moshood Baderin (SOAS), and Prof. Abdulhakeem Ajonbadi for accepting my proposal to review the book within a very short time frame, I feel a deep sense of gratitude.

To my Awliyah Islamic Academy teachers, the Zawiyah Ahabab Faydotil Awwaliyyah at- Tijaniyyah (ZAFAT-Worldwide) mission board members, Exco and all Mureed and Mureedah, I appreciate you all.

To men of honour and women of goodwill, who have in one way or the other contributed positively to my life, I am grateful to you all.

Barr. Hamdallah Bello

Preface

Dedication

Acknowledgements

Index1. Introduction To Islamic Law

1.1 Islamic Law: Definition

1.2 Branches of Islamic Law

1.2.1 Purification

1.2.2 Prayer (Salat), Fasting & Pilgrimage

1.2.3 Funeral prayer (Janazah)

1.2.4 Taxation, Trade and Economics

1.2.5 Marriage, Polygamy, Divorce, Child Custody and Inheritance

1.2.6 Justice System

1.3 Islamic Law and Jurisprudence

1.3.1 Categories of Human Behaviour

1.4 The Schools of Islamic Jurisprudence

1.4.1 The Hanafi School

1.4.2 The Maliki School

1.4.3 The Shafi’i School

1.4.4 The Hanbali School

2. Development of Islamic Law

2.1 Historical Account and Stages in the Development of Islamic Law

2.2 Objectives of Islamic Law

2.3 Distinctive Characteristics of Islamic Law

2.3.1 Nobility of Purpose of the Islamic Law

2.3.2 Islamic Law as a divine revelation

2.4 The Sources of Islamic Law

2.4.1 The Qur’an and the Hadith/Sunnah

2.4.2 Juristic Consensus (Ijma) and Analogy (Qiyas)

2.5 The Supplementary Sources of Islamic Law

2.5.1 Al-Istihsan

2.5.2 Consideration of General Welfare (Istislah)

2.5.3 Customary Practice (Istishabul Hal)

2.6 Ijtihad

2.6.1 Why the difference of opinions among the Mujtahideen?

2.7 Modern Perspectives of the Islamic Law

2.8 Spectrum of Islamic legal systems

2.9 Factors influencing the modern role of Islamic Law

3. Islamic Judicial System and Governance

3.1 The Uniqueness of Islamic Justice System

3.1.1 Equality before the Law

3.2 The Islamic Ruling Concerning the Judiciary

3.3 Legal Precedents under Islamic Law

3.4 Penalties

3.5 Islamic Political System

3.5.1 Purpose of Islamic State

3.5.2 Human Rights and Islamic Law

3.5.3 Executive and the Legislative

3.6 Socio-Economic Principles in Islam

3.6.1 Proprietary Right in Property

3.6.2 The Problem of Equity

3.6.3 Social Justice

3.6.4 Obligations and Restrictions

3.7 Islamic Law: A Legal System or Legal Tradition?

3.7.1 What Is Common In Islamic Law and Common Law?

3.7.2 A Comparative View of Fair Hearing/ Fair Trial under Common Law and the Islamic Law

3.7.3 Comparison of Islamic Law with Civil Law

3.7.4 International Relations: Islamic Law and International Law Perspectives

3.7.5 Socio-Economic Implications of Islamic Law

3.7.6 Legal Education in Islam to What Extent?

3.7.7 Islamic Law: A Legal System or Legal Tradition?

4. Introduction to LGBTQ+

4.1 Same-Sex Marriage Legalization

4.1.1 United States

4.1.2 Europe

4.1.3 Others

4.2 Oppositions

4.3 Early Views of Homosexuality

4.4 Removal of homosexuality from the DSM list

5. Argument for and Against Homosexuality by Scientist

5.1 The Brain Theory

5.2 Anterior Commissure Theory

5.3 The Twin Theory

5.4 Hormonal Deficiency Theory

5.5 Conclusion from the Health-Based Theories of Causes of Homosexuality

6. Psychologist View of Causes of Homosexuality

6.1 Post-birth and Environmental Factors

6.2 Conclusion from Psychologists’ Point of View on the Causes of Homosexuality

7. Homosexuality from a Religious Standpoint

7.1 Christian View on Homosexuality

7.1.1 Biblical Perspectives

7.1.2 A Debatable Marriage

7.1.3 Consequences of Reversing Moral Order

7.2 Islam, Sexual Ethics, and Homosexuality

7.2.1 Qur’an’s Stance on Homosexual Organizations

7.2.2 Hadith Concerning LGBT

7.2.3 Modern Islamic Scholars View

8. Law and the Balance of Rights Between Homosexuals and Heterosexuals

9. Conclusion

Bibliography

Index

Islamic Law is the comprehensive code of conduct or religious law of Islam governing human being’s relationship with their Creator, with his fellow human beings, and with their society and nation. It also deals with the relationship between nations in both war and peace which is the milestone of the modern society’s international relations within nations, which are codified into statutes known as International Law. ¹

Islamic Law is derived from two primary sources: the injunctions set forth in the Qur’an, and the example set by Prophet Muhammad (SAW)- peace be upon him (PBUH) in the Sunnah. Fiqh jurisprudence interprets and extends the application of Islamic Law to questions not directly addressed in the primary sources by including secondary sources.

These secondary sources usually include the consensus of the religious scholars embodied in ijma, and analogy from the Qur’an and Sunnah through qiyas. Shia jurists prefer to apply reasoning (’aql) rather than analogy in order to address difficult questions. Regardless of the sect, Muslims believe Islamic Law is God’s law.²

Most jurists divide the study of Islamic Law into two broad categories: ‘Devotional Law and Transaction Law’. Basically, these divisions are built upon the fact that the injunctions dealt with by each of these two categories have quite different and distinct primary objectives.

Devotional Law deals with the injunctions that have as their primary objective attaining nearness to Allah, showing Him gratitude, and seeking eternal reward in the Hereafter. This includes prayer, fasting, Hajj, jihad, Zakat, and the fulfilment of covenants. Transaction Law, on the other hand, deals with realizing worldly benefits and regulating human activities, both on the individual and societal level. This covers many branches of law, including Commercial Law and Personal Law. Different views are usually held by the Modernists, traditionalists and fundamentalists in the application of Islamic Law, as they adhere to different schools of Islamic thought and scholarship.

Different countries and cultures have varying interpretations of Islamic Law as well. Islamic Law deals with many topics addressed by secular law, including crime, politics and economics, as well as personal matters such as sexuality, hygiene, diet, prayer, and fasting. Where it enjoys official status, Islamic Law is applied by Islamic judges, or qadis.

The Imam has varying responsibilities depending on the interpretation of the Islamic Law; while the term is commonly used to refer to the leader of communal prayers, the Imam may also be a scholar, religious leader, or political leader. The re-enforcement of Islamic Law is a longstanding goal for Islamist movements in Muslim countries. Some Muslim minorities in Asia (e.g. in India) have maintained institutional recognition of Sharia to adjudicate their personal and community affairs.

In western countries, where Muslim immigration is more recent, Muslim minorities have introduced Islamic family law, for use in their own disputes, with varying degrees of success (e.g. Britain’s Muslim Arbitration Tribunal).³

1.1 Islamic Law: Definition

Professor Weiss in his publication titled; The Spirit of Islamic Law, states that:

In archaic Arabic, the term shari’a means ’path to the water hole.’ When we consider the importance of a well-trodden path to a source of water for man and beast in the arid desert environment, we can readily appreciate why this term in Muslim usage should have become a metaphor for a whole way of life ordained by God.⁴

Also, Professor Irshad Abdal- Haqq in his own opinion, in Understanding Islamic Law: From Classical to Contemporary, states that:

Shar’iah, or more properly Al-Shari’ah, literally means the pathway, path to be followed, or clear way to be followed, and has come to mean the path upon which the believer has to tread. In original usage, Shar’iah meant the road to the watering place or path leading to the water, i.e., the way to the source of life. The technical application of the term as a reference to the law of Islam is traced directly to the Qur’an, wherein the adherents of Islam, the believers, are admonished by Allah (God) to follow the clear and right way, the path of Shari’ah: Then we put thee on the (right) Way of religion so follow thou that (Way), and follow not the desires of those who know not.⁵

Also, according to Abdul Mannan Omar in his Dictionary of the Holy Quran, the word Sharia derives from the Quranic root shara’a. Derivations include: Shara’a (as prf. 3rd. p.m. sing.), meaning He ordained, appearing once in the Qur’an at verse 45:13; Shara’u (prf. 3rd. p.m. plu.) They decreed (a law) appearing once at 42:21; Shir’atun (n.) Spiritual law, used at 5:48; finally, Shariatun (act. 2nd. pic. f. sing.) System of divine law, Way of belief and practice is used at 45:18.⁶

Therefore, Islamic Law (Sharia) is a crystine path derived from the Qur’an (word of God), Sunnah (examples from the life of Prophet Muhammad (PBUH) and Fatwas (the rulings of Islamic Scholars). Unlike other laws that concentrate largely on matters relating to: Crime, Contract, Civil relationship and individual rights, Islamic Law encompass all aspect of human affairs.

1.2 Branches of Islamic Law

Islamic Law can be broadly