July 19 Islamic Law Lecture Notes

Mahul article - application of laws
2 concepts: boo hanapin si Mahul
 *progress of Islamic law 1. Ijtihad (comes from the word Jahada, meaning exersion of one's outmost strenght) - from which Jihad (2 forms) was derived 
-it's through Ijtihad that Islamic law was made dynamic
-unchangeable basis of Islamic law is always the Holy Qa'ran and the Sunnah   (most of the legal rules are both in the same books)
-as time goes on, reinterpretation is needed. Ijtihad now deals with interpretation (outmost exertion of one's outmost intellectual faculties)
• Ijma (consensus of the judges/juries) & Qiyas (analogy)
>e.g. Intoxication: wine is prohibited in the Qran (Khamr). It follows, by virtue of analogy (Qiyas), that whatever comes from intoxicating drinks are prohibited
>but the modern jurist classified all of these as Ijtihad (general)
Under Ijtihad (names depends on Schools of Law):
• Istihsan: Equity - juristic equity (equity on the basis of the rulings of the judges based on the Q'aran and Sunnah)
-e.g. sales of future commodities:
• Civil law: allowed, provided it would come into existence and be delivered (must be time-bound), and there must be consent, consideration and identifiable object with particularity  - has to mention the specifics of the contract
• Islamic Law: generally prohibited because it can be a cause for an inequitous relationship - cause of conflict; but if necessary, can be allowed under Istihsan (resembles contract of hire)
e.g. You want somebody to sew clothes for you. The clothes are not yet in existence but you necessarily have to compensate the tailor even if the clothes are not yet in existence for reasons of equity (deposit is allowed)
• Istislah- anchored on public welfare and interest
• Istishab - rule of continuity (presumption of continuity)
• e.g. a person is presumed innocent unless proven guilty. Status of innocence presumed to pervail unless proven otherwise
*1258: Sacking of Bahgdad by the Mongols. Bahgdad was at that time the capital of the Calippe. With Bahgdad under Mongol control, the Calippe invalid, the jurist declared the closing of the doors of Ijtihad.  Meaning, the four Orthodox schools of law (Hanifa, Malik, Shafi'I, Hanbal) which, by the way, did not start out as schools, their rulings would stay - because new jurists cannot make new rulings
2. Taqlid (imitation)
-mere copying of the doctrines enunciated by the 4 schools of law
-the mode of jurisprudence became that of imitation since the closing of the 4 schools
After 1258, while doing Taqlid and no Neo Ijtihad (2 techniques) See page 7 of Mahul Artcle:
1. Takhayyar  /Tak -ha-yur/ - selection of rules from the different schools - select which rule to follow to apply to a particular problem
e.g. Matter of consent in Marriage
There are those who say that for a woman to get married under islamic law, there should always be a guardian who should give her away for marriage (but only insofar as Malik, Shafi'I laws are concerned. Hanbal school of law [far from Medina] gives more progressive interpretation - in RP, we belong to Shafi'i). In Hanifi, it is allowed when that woman already has a prior marriage + if there are no "friendly" guardians available for that woman…
…Mixed marriages (Muslim Man, Non Muslim woman): if you stick to Shafi'I, there can never be a marriage between them - especially if the guardians/parents do not consent. But if you use Takhayyar, they can interpret that the consent of a mere sibling permits the marriage, considered the consent
2. Talfiq /Tal-fik/- combination of different elements; resolve a problem by resorting to a combination of rules from different schools of law
• Usually referred to in the codes
3. Neo Ijtihad (1800s)
-started by the neo-revivalists
-not yet confirmed by body of jurists (because there is now no single body of jurists - the most suitable Ijma should come from body of jurists + accepted by the population - usually there's just an Ijma of a particular community)
e.g. Maranao Ijma once prohibited the wearing of perfumes on women (promulgated about 10 years ago): what the Muslim women do is that they are careful . But not all follow it
Report on Civil Capacity
Hermaphrodite: depends on the dominant biological functions
Intoxication: either aggravating or justifying
But under Islamic Law, it is considered a crime - always aggravating
As to injury of child based on injury on mother...