Islamic Family Law Sources & Schools

LAW 605 - Family Law I (Islamic) 5/12/2013
azrinhafiz/march-july 2013 1
LAW 605 – Family Law I (Islamic)
Introduction
azrin hafiz / march-july 2013 1
Why Islamic family matters is governing
by Islamic family law in Malaysia?
• Refer to 9th Schedule of State List of Federal
Constitution:
“Islamic law to include Islamic law relating to
succession, testate and intestate, betrothal, marriage,
divorce, dower, maintenance, adoption,
legitimacy…”
• Only applicable to Muslim
Sources of Islamic law in Malaysia
i. al-Quran = verbatim words of Allah revealed
to Rasulullah through angle Jibril
ii. as-Sunnah = a saying or an act or tacit
approval or disapproval ascribed to Rasulullah
iii. Ijma’ = consensus of jurists
iv. Qiyaas = deductive anology
v. Legislation = Act/Enactment/Ordinance

Two groups of Islam
Sunni Syiah
Differences between these
two groups:
i) Political differences,
especially in the election of
Caliph. Sunni in favoured of
Companions, and Syiah in
favoured of Rasulullah
descendants.
ii) Acceptance of religious
texts: Syiah only accept the
hadith narrated by
Rasulullah and his family
members and reject the
hadith narrated by
Companions.
Widely practise in Iran,
Iraq, Yemen, Jordan
and Pakistan
Syiah is disallowed in
Malaysia because most
of the rules contravene
with rules in Shafi’i –
to avoid confusion.azrin hafiz / march-july 2013 4
Four Orthodox Schools In Sunni
Hanafi Maliki Shafi’i Hanbali
- Founded by
Imam Abu
Hanifah.
- Practised in
Turki, Egypt,
India, Pakistan,
Syria, Jordan
and Iraq
- Named after
Imam Malik.
- Practised in
Muslim
countries in
northern Africa
e.g Algeria,
Morocco and
Tunisia.
- Named after
Imam
Muhammad bin
Shafie.
- Widely
practised in
South East Asia
e.g Thailand,
Malaysia and
Brunei
- Founded by
Imam Ahmad
bin Hanbal.
- Practised
predominantly
in Saudi Arabia
and Qatar, and
minority
communities in
Syria and Iraq.
Principles developed by Imams
i. Urf - custom, or 'knowledge', of a given society
ii. Istihsan - preference for particular judgments
iii. Istislah - public interest

Authenticity of Hadith
Sahih
• has a continuous isnad, made up of narrators of trustworthy memory from
similar authorities, and which is found to be free from any irregularities
(i.e. in the text) or defects (i.e. in the isnad)."
Hassan
• its source is known and its narrators are unambiguous.
Da’if
• where there is discontinuity in the isnad or one of a narrators having a
disparaged character.
Maudu’
• the text of which goes against the established norms of the Prophet's
sayings or its narrators include a liar.
• aka forged hadith.
azrin hafiz / march-july 2013
Reasons for
Conflicting
Ruling between
Various School
of Thoughts
1.
Word meaning of the
al-Quran and Hadith
2.
Narrations of
hadith
3.
Admissibility of
certain principles
4.
Methods of
Qiyas
8
1.Wordmeaningofthe
al-QuranandHadith
Shared literal meaning
Literal and figurative meaning
Grammatical meaning

a) Shared literal meaning
= a few words with more than one literal
meaning.
‫ﻗﺭﺀ‬ /Qur/
“Divorced women should
wait three quroo’…”
surah al-Baqarah (2):228
According to Hanafi, it
means menses
# Divorce is not finalize
until 3rd menses have ended.
According to Hanbali,
Malik and Shafi’i, it means
the time of purity between
menses
# Divorce becomes
finalized as soon as her
menses has started.
10
b) Literal and figurative meaning
= a word with literature and figurative meaning.
‫ﻠﻤﺱ‬ /Lams/
Literal meaning:
Touching by the
hand(s) or coming
in contact of two
objects
Figurative meaning:
Sexual intercourse
“or you touched (laamastum) women and
cannot find water, then tayammum from
clean Earth”
Surah an-Nisa (4): 43 and
Surah al-Maaidah (5): 6
11
• Jurists opinion:
Lams means sexual intercourse.
If a man intentionally or accidentally
touched a woman, then both of then
would lose their state of wudhu’.
Wudhu’ would only be broken if the
touch were pleasurable disregard
intended or not
Hanafi
Shafi’i
Maliki
12

c) Grammatical meaning
Grammatical constructions in Arabic which were
ambiguous
‫ﺇﻠﻰ‬ /elaa/
Means: “to” or “up to but not including”
13
The fast is continued
up to Maghrib ie the
beginning of night,
but does not include
the night itself.
.: no dispute in interpretation
Hanafi’s student,
Ibnu Daud
interpreted this
verse to mean “up
to but not including
the elbows)
The four Imams
all ruled that the
verse meant “up
to and including
the elbows
vs
14
a.
Availability of
Hadith
Hadith narrators did
not reach the
Companions due to
the fact that they
settled in various
regions throughout the
Islamic empire.
Duration between
foundation of mazhab
(8-9 AD) and the
compilation of hadith
(9-10 AD).
b.
Weak Narrations
of Hadith
Jurists madee ruling
based on Hadith Da’if
because unaware of
unreliability of those
hadith .
Some jurists took a
position that a weak
hadith was to be
preferred to their
Qiyaas.
2. Narrations of Hadith
15

c.
Conditions for the
Acceptance of Hadith
Hanafi :
hadith must be well
known before being
regarded as admissible
evidence.
Maliki:
Hadith must not contradict
with the customs of the
Madeenites in order to be
admissible
d.
Resolution of Textual
Conflict in Hadith
Some jurists chose path of
“Tarjeeh” which meant
giving preference to some
Hadith while rejecting
others on the same topics.
Some jurists chose path of
“Jama’” which involved
combining such hadith
using one in a general
sense.
3. Admissibility of Certain Principles
• There were Imams developed a number of
controversial principles/rulings. As a result,
they became source of differences among
jurists.
Ijma’ of
generations after
Companions
Reliance on
Madeenites’
custom by Maliki
Hanifah’s
Istihsaan
Maliki’s Istislaah
Companions ‘
opinions
Shafi’i questioned
on its occurence
Hanbali rejected
it outright
Rejected by
majority
of jurists
Disallowed by Shafi’i
as being too independent of
the Quran, Sunnah and Ijma’
Shafi’i felt that
They had to be
accepted on legal
matters, while
others felt that it
was only reasoning
on their part and
not binding on
later generations
18

4. Method of Qiyas
• Some jurists narrowed down the scope of qiyas
by setting a number of pre-conditions for its
use, while others expended its scope.
• As this principle based on opinions, there were
no hard and fast rules, thus a wide range of
differences developed.
References:
1. Abu Ameenah Bilal Philips (2006),
Evolution-of-Fiqh. International Islamic
Publishing House.
2. http://www.islamic-
awareness.org/Hadith/Ulum/asb7.html
3. http://en.wikipedia.org/wiki/Sahih#Sahih
4. http://en.wikipedia.org/wiki/Hadith_terminol
ogy
Thank you for your attention

Islamic Family Law Sources & Schools

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