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Islamic Legal Vocabulary
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Muhammad Khalid Masud (Ebrahim Moosa)

Legal VocabularyLiteral MeaningJoseph Schacht: An Introduction to Islamic LawILT Notes
`adlStraightness,
impartiality
Of good
character
In a general sense, ‘adl refers
to ‘justice’ and ‘fairness’ and
impartiality. Islamic law
requires a witness in the
court to be ‘adl, to be just
and impartial. The criteria for
impartiality are defined often
in terms of good character
and general reputation.
Declaring someone to be fit
as a witness is called tazkiya
al-shuhud. Justice in Islamic
legal thinking has been
defined in terms of order and
hierarchy; focus on fairness
and right has been marginal.
Modern Muslim thought
stresses a wider sense of
justice to include notions of
social and economic justice
ahliyyaabilitycapacityLegal capacity is enjoyed
only by a person who is adult
and sane. Adulthood in
Islamic law obtains on
puberty. In modern times,
adulthood is defined more in
terms of age than puberty.
Alahkam
alkhamsa
Five valuesThe five legal
qualifications
These five categories are:
1. Obligatory (wajib/fard),
2. Recommended/
commendable
(mandub/mustahabb)
3. Neutral,
Indifferent/permissible
(mubah/ja’iz)
4. Reprehensible/disapprove
d (makruh),
5. Forbidden (haram,
mahzur).
This categorization suggests
Muslim jurists’ effort to
define the wide range
between halal and haram
(the lawful and the
forbidden), the basic
categories used in the
Qur’an.
daruraneedNecessity (as
a dispensing
element)
Darura is a fundamental
principle referring to the five
basic human needs that a law
aims to protects: life, faith,
human reason (freedom),
property, and family.
faqihSee fiqhThe specialist
in fiqh
Faqih, singular, fuqaha
plural. A faqih is trained in a
madrasa or special
institutions of learning, but
his authority is defined more
in terms of his reputation,
than is training or
competence.
fatwaFata: to be
young, afta: to
expound
The
considered
legal opinion
of a mufti
Often fatwa means citation
from an authoritative legal
text. Essentially, fatwa is
advice which is not legally
binding. Political use of
fatwa in modern times has
given it a sense of religious
call or edict.
fiqhUnderstanding,
knowledge
The science
of Shari’a, the
sacred law of
Islam
Fiqh refers to a huge
literature produced by
Muslim jurists. It began with
the opinions and doctrines of
the jurists in leading Islamic
cities in early Islam. These
opinions shaped gradually
the schools of law. Jurists
never claimed that their
doctrines were sacred. They
always distinguished between
divine and human; fiqh was
human understanding. The
contents of Fiqh were further
divided into two main
divisions: Ibadat (rituals,
laws relating to relations
between God and humans)
and Mu’amalat /Adat ( laws
relating to relations between
humans). Human reasoning
and experience plays a vital
role in case of Mu’amalat.
Fiqh is more focused on
rituals, marriage, divorce,
inheritance, less on public
laws, somewhat detailed on
commercial laws. The
diversity of opinions
overtime and among the
jurists is quite notable. In
modern times fiqh has come
to be distinguished from
Shari’a; the latter is of divine
origin but fiqh is human.
furu`Plural of far’,
branch
The branches
of positive
law
The doctrines in Fiqh that
deal with details of a legal
problem. Originally, major
doctrines of a school of law
were called Usul (see Usul)
and further details, derived
from these doctrines were
called furu’. Later, when
Usul came to be understood
as sources of law, furu’ came
to refer to fiqh as substantive
law, or the rules derived from
primary sources.
HadithSpeech, report,
new, modern
A formal
tradition
deriving from
the Prophet
Hadith is distinguished from
Sunna, which means
normative practice. Hadith is
a report about what Prophet
Muhammad said about
something, practiced or
approved, or did not
disapprove a certain thing. A
science of Hadith criticism
was developed to examine
the normative value of a
hadith and about the
reliability of a hadith. A
hadith report consists of two
parts; first gives a list of
narrators of the hadith and
the second part the text. The
jurists and the collectors of
hadith differed in their
criteria about the normativity
of a hadith.
haqqTruth,
correctness,
fair
Right, claimHaqq in Islamic legal
thinking gives both the sense
of right and a duty. Huquq
(pl. of Haqq) are divided into
the rights of God and rights
of men. The idea of Divine
Rights, belonging to humans,
e.g. kings or religious
authorities, is not endorsed
by jurists.
hukmJudgment,
opinion,
decision
QualificationHukm is a very complex
term. In Islamic legal
literature it is used in a
variety of meanings. Ranging
between command, rule of
law, judgment and an
arbitration, the term refers
also to Hakam and Hakim;
the former an arbiter and the
later a ruler who has to power
to give final decision. Hukm
refers to the decision of a
Muslim judge as well as to a
conclusion drawn by a jurist
from authoritative text and
evidence. Hukm in Islamic
legal theory also refers to the
normative laws in the
Qur’an, direct or indirect.
huquq
al-`ibad
Private claimThe rights between humans.
Most of fiqh doctrines deal
with Huquq al-‘ibad
concerning marriage,
divorce, property, contracts,
services etc. The basic
principle in these matters is
social justice (la tazlimun wa
la tuzlamun: “you do not do
injustice and you will not be
treated unjustly”, and la darar
wa la darar, no harm to your
self or to others).
huquq
Allah
Rights or
claim of
Allah
Rights of God refer to such
matters as relate to relations
between man and God.
Islamic law also includes
matters relating to collective
and public interests as rights
of God. Seen in this
perspective, Huquq al-Ibad
are individual rights and
Huquq Allah are collective
rights. Thus Islamic law
entrusts Muslim community
as the custodian of Huquq
Allah.
IdtirarCompulsion,
emergency
See daruraIdtirar refers to an action
taken when forced by
necessity that justifies
exemption from regular laws.
The principle is derived from
the Qur’an 2:173 that forbids
certain food but exempts
from this prohibition a
person who is forced by
necessity (e.g., to save
his/her life) to consume this
forbidden food.
ijma`agreementConsensusThe concept and definition of
Ijma’ has changed over time
in Islamic history from the
consensus of the first
generation of Muslims to the
consensus of the leaders of
opinion to that of jurists only.
In modern times, the
emphasis has shifted from the
meaning of a convention or
practice to an agreement
reached after consultation
and discussion by a particular
group. Some Muslim thinkers
have suggested parliament as
a place for Ijma’.
ijtihadEffort,
endeavourer,
diligence
The use of
individual
reasoning
Ijtihad is an essential process
of legal reasoning,
responsible for the growth of
Islamic law. After the
establishment of the various
schools of law (see
madhhab), the Sunnis (see
Sunni) understand ijtihad as
an opposite of taqlid (see
below). Since no new schools
appeared after the third
century, it was wrongly
assumed that the door of
Ijtihad was closed. The
necessary qualifications for
the exercise of Ijtihad are:
knowledge of the sources,
legal methods, and scholarly
integrity. Traditionally, it is
further added that the
subjects of Ijtihad must be a
matter on which the jurists
are not agreed and that it
must not go against the
consensus. The person who is
qualified to exercise Ijtihad is
called Mujtahid. The Sunnis
regard the rank of ijtihad
restricted within the schools.
The Shi’a, on the other hand
do not regard the door of
ijtihad closed, but they also
require the lay person to
follow a Mujtahid.
IstihsanTo regard
something
‘good’,
Approval,
consent
‘approval’, a
discretionary
opinion in
breach of
strict analogy
This method of legal
reasoning is often attributed
to the Hanafi school. The
Hanafis describe it as a
method of qiyas, when a
jurist prefers one analogical
conclusion to the other in
view of the common good.
IstishabTaking as
companion, go
along
‘preference’,
a synonym of
istihsan
This method is attributed to
the Shafi’is who prefer
continuity of a certain
doctrine to a new analogy.
istislahreclamationTaking the
public interest
into account
This method is attributed to
the Maliki school. The
principle is also called
maslaha, common good, and
public interest.
madhhabGoing, way
out, manner
‘school’ of
religious law
In the second and third
century, groups of jurists
appeared in different Islamic
cities, which later came to be
known as madhhabs or
schools of law. Out of more
than nineteen, seven or eight
schools have survived.
Ja’fariyya (Ja’far Sadiq), in
Iraq, Iran and India,
Zaydiyya (Zaydb. Ali),
Hanafiyya (Abu Hanifah),
Shafi’iyya (Idris al-Shafi’i),
Malikiyya (Malik b. Anas),
Hanbaliyya (Ahmad b.
Hanbal), Ibadiyya
maqsidDestination,
intent, purpose,
goal
A debate among the Muslim
jurists whether Shri’a can be
rationalized led to a
discussion of Maqasid (pl.of
maqsid) al-Shari’a, or the
objectives of law. This
doctrine stressed that the
primary objective of the
Shari’a is human welfare. A
fourteenth century Spanish
Maliki jurist, Abu Ishaq al-
Shatibi, who expounded this
doctrine has been very
popular in modern Islamic
legal thought. Modern muftis
refer to this doctrine as a
method of legal reasoning
that qiyas.
maslahaMatter, affair,
benefit, interest
The public
interest
Maslaha is the basic principle
of Maliki method of Istislah.
Shatibi defined it as the
primary objective of Shari’a.
According to him, maslaha
relates to the five basic needs
that the Law aims to protect:
Life, Faith, Reason, Property,
Family.
muftiA specialist
in religious
law who
gives an
authoritative
opinion
nassWording, textClear text of the Qur’an from
which a jurist derives the
law.
qadi-kaziDecisive,
conclusive
The Islamic
judge
Qadi is distinguished from a
mufti as a legal authority
who is appointed by the state
and thus represents the state.
The
Qadi is distinguished from a
mufti as a legal authority
who is appointed by the state
and thus represents the state.
The decision of a Qadi is
binding for the parties and is
enforceable; the Mufti only
gives an advice, which is not
enforceable in a court of law.
qiyasMeasurement,
comparison
Analogy,
parity of
reasoning
Analogical reasoning in
Islamic law is constructed on
the pattern of formal logic:
premises and conclusion.
Major premise is the
injunction from the Usul, i.e.
the Qur’an, Sunna and Ijma’,
the minor premise is the case
in question, reconstructed as
minor premise, namely to
contain the middle term
include in the major premise.
The conclusion is the hukm,
the method of deduction is
called qiyas.
shari`aWaterhole,
drinking place
The sacred
law of Islam
Its translation as “Islamic
law” or sacred law is
misleading. Shari’a is closer
to ethics as a concept than to
law. As a concept it may be
describes as a path of correct
conduct that God revealed
through his Prophet
Muhammad. Similar rules of
conducts were revealed to the
Prophets before Muhammad.
Their normative validity is
discussed in Islamic legal
theory as Shara’i’ min
qabalina (The shari’a prior to
Islam). The Sufis criticized
the legalistic understanding
of Shari’a, called Fiqh. In
modern times
siyasah
shari`iyy
ah
Administration,
management
Policy,
administrativ
e justice
Fiqh is not elaborate in
matters of public law and
administration. The jurist
adopted and assimilated local
practices of public
administration, even in such
matters as the appointment of
the head of state. This
adoption was called Siyasa.
Its use is synonymous with
public interest and general
policy. Later, since such
adoptions mostly related to
criminal laws and penalties
against the state, which were
mostly not in strict
accordance with Fiqh or
Shari’a, Siyasa was
understood as opposite or
supplemental to Shari’ah. It
was often justified as a need
of the state. Some Muslim
jurists disagreed and called
for public administration to
accord with Shari’a, to be
called al-Siyasa al-Shar’iyya.
SunnaHabitual
practice,
custom, norm
Precedent,
normative
legal custom
Prophet Muhammad is
believed to be a model for the
Muslims. His practice is
therefore normative. Sunna is
acknowledged as a primary
source of Islamic law after
the Qur’an.
taqlidImitation,
copying,
custom
Adopting the
doctrine of a
school of law
for a
particular
Taqlid as a doctrine requires
a person to follow a
particular school of law. It
was a legal device to
systematize the schools of
law and to establishing their
authority.
`urfBeneficence,
kindness
CustomLocal customs play a very
important role in the
understanding and growth of
Islamic law. Urf and Ada,
often interchangeably refer to
customs, local and common,
and social practices.
usulRoot, origin,
source, reason,
cause
The roots or
theoretical
basis of
Islamic law
Usul is used in two different
meaning: principles and
sources. In the meaning of
sources, Usul refers to the
following four: the Qur’an,
Sunna, Ijma’ and Qiyas. The
fist two are considered
primary sources, while the
latter two are formal sources.
The jurists have added a
number of other sources;
Qarafi, a Maliki jurist, for
instance counts thirteen
sources of Islamic law. Usul
refers to general principles.
These include maxims
(qawa’id), special methods of
reasoning, e.g, Istislah, the
basic doctrines of the
founders of the schools of
law, and the common
principles on a certain legal
subject (Dawabit).

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