News Item: : Islamic Legal Vocabulary
(Category: Knowledge Resources > Islamic Legal Theory)
Posted by
Monday 02 July 2012

Muhammad Khalid Masud (Ebrahim Moosa)

Legal VocabularyLiteral MeaningJoseph Schacht: An Introduction to Islamic LawILT Notes
Of good characterIn 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.
Five valuesThe five legal
These five categories are:
1. Obligatory (wajib/fard),
2. Recommended/
3. Neutral,
4. Reprehensible/disapprove
d (makruh),
5. Forbidden (haram,
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
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
fatwaFata: to be
young, afta: to
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.
The science
of Shari’a, the
sacred law of
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’,
The branches
of positive
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
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.
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.
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.
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).
Rights or
claim of
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.
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’.
The use of
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
‘approval’, a
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
a synonym of
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
intent, purpose,
A debate among the Muslim jurists whether Shri’a can be
rationalized led to a discussion of Maqasid (pl. of maqasid) 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
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,
muftiA specialist
in religious
law who
gives an
nassWording, textClear text of the Qur’an from which a jurist derives the law.
The Islamic
Qadi is distinguished from a
mufti as a legal authority
who is appointed by the state
and thus represents the state.
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.
parity of
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.
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.
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.
custom, norm
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.
Adopting the
doctrine of a
school of law
for a
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.
CustomLocal customs play a very important role in the understanding and growth of Islamic law. Urf and Adat, often interchangeably refer to customs, local and common, and social practices.
usulRoot, origin,
source, reason,
The roots or
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).

This news item is from Sisters In Islam
( )