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Extremism in Islam Causes and Solution

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Extremism in Islam Causes and Solution Powered By Docstoc
					 Shari„ah – The Islamic
     Legal System
Curtin University, Perth – Western
            Australia
          April 24, 2004

 Presented by: Yahya A. Ibrahim
       yai@aic.wa.edu.au
               CONTENT

   Defining Shari„ah?
   The Spirit of Shari „ah
   Legal Philosophy
   Maqasid ash-Shari„ah: The Aim of Shari„ah
   Al-Qawa„id – Legal Maxims of Islamic Law
   Case Study: Euthanasia
              What is Shari„ah?


   Calling the Shari ‘ah 'law' can be
    misleading, as Shari ‘ah extends beyond
    law.
   Shari ‘ah is the totality of religious,
    political, social, domestic and private life.
   Shari ‘ah is primarily meant for all
    Muslims, but applies to a certain extent
    also for people living inside a Muslim
    society.
                What is Shari„ah?
   “Then we gave you a Shari „ah in religion,
    follow it, and do not follow the lust of those
    who do not know.” 45:17
   "For each We have appointed a divine law and
    a methodology. Had God willed, He could
    have made you one community. But that He
    may try you by that which He has given you.
    So vie one with another in good works. Unto
    God you will all return, and He will then
    inform you of that wherein you differ.“ (5: 48)
   "Today I have perfected your way of life
    (deen) for you, and completed My favour
    upon you, and have chosen Islam as your way
    of life." (Qur'an, 5: 3)
                 What is Shari„ah?

   The regulations of the Shari„ah can be
    divided into two groups:
         regulations on worship and ritual duties
         regulations of juridical and political nature

   In Sunni Islam, there are four schools,
    madhhab, which all coexist in peace. No war
    has ever been fought over the issue of
    different schools, and students of religious
    subjects in most Muslim countries have to
    learn about all four schools. It is in many
    cases permissible to use laws from other
    schools, if one feels that this is more
    appropriate.
    The Spirit of Shari ‘ah
 God decreed for each soul a time on earth so
  that He might try them.
 Either Bliss or Grief as an outcome
 Life is a Journey with many paths
 In Arabic, Shari„ah, linguistically means the
  clear, well-trodden path to water.
 Legally, it is used to refer to the matters of
  religion that God has legislated for His
  servants.
 The linguistic meaning of Shari„ah
  reverberates in its technical usage: just as
  water is vital to human life so the clarity and
  uprightness of Shari„ah is the means of life
  for souls and minds.
       Legal Philosophy
   "Our Lord, give us good in this life and good
    in the next, and save us from the
    punishment of the Fire." (2: 201)
   The legal philosophers of Islam, such as
    Ghazali and Shatibi explain that the aim of
    Shariah is to promote human welfare. This
    is evident in the Qur'an, and teachings of
    the Prophet
   The scholars explain that the welfare of
    humans is based on the fulfillment of
    necessities, needs, and comforts
   Fulfilling these essential needs is the Aim of
    Shari ‘ah
Maqasid ash-Shari„ah: The Aim of Shari„ah
   There are five necessities: preservation of religion, life,
    intellect, lineage, and wealth. These ensure individual
    and social welfare in this life and the hereafter.

    The Shariah protects these necessities in two ways: firstly
    by ensuring their establishment and then by preserving
    them.
   Religion: To ensure the establishment of religion, God
    Most High has made belief and worship obligatory. To
    ensure its preservation, the rulings relating to the obligation
    of learning and conveying the religion were legislated.
   Life: To ensure the preservation of human life, God Most
    high legislated for marriage, healthy eating and living, and
    forbad the taking of life and laid down punishments for
    doing so.
Maqasid ash-Shari„ah: The Aim of Shari„ah
   Intellect: God has permitted that sound intellect and
    knowledge be promoted, and forbidden that which
    corrupts or weakens it, such as alcohol and drugs. He has
    also imposed preventative punishments in order that
    people stay away from them, because a sound intellect is
    the basis of the moral responsibility that humans were
    given.
   Lineage: marriage was legislated for the preservation of
    lineage, and sex outside marriage was forbidden. Punitive
    laws were put in placed in order to ensure the preservation
    of lineage and the continuation of human life.
   Wealth: God has made it obligatory to support oneself and
    those one is responsible for, and placed laws to regulate the
    commerce and transactions between people, in order to
    ensure fair dealing, economic justice, and to prevent
    oppression and dispute
    Sources of Shari„ah: Primary Sources
•   The Primary sources are Al-Quran and Sunnah

    Al-Quran – The Word of Allah revealed to
    Muhammed over 23 years.

God Most High said,
"Verily, this Qur'an guides to that which is best,
  and gives glad tidings to the believers who do
  good that theirs will be a great reward." (17: 9)
And,
"There has come unto you light from God and a
  clear Book, whereby God guides those who seek
  His good pleasure unto paths of peace. He brings
  them out of darkness unto light by His decree,
  and guides them unto a straight path." (5: 15)
 Sources of Shari„ah: Primary Sources
As-Sunnah: The Prophet‟s Example
Allah says,
 "We have revealed the Remembrance [Qur'an]
  to you that you may explain to people that
  which was revealed for them." (16: 44)
This explanation was through the Prophet's
  words, actions, and example.
"O you who believe, obey God and obey the
  Messenger," (4:59)
and,
"Verily, in the Messenger of God you have a
  beautiful example for those who seek God and
  the Last Day, and remember God much."
      Sources of Shari„ah: Derived Sources
   Scholarly consensus
    Scholarly consensus is defined as being the
    agreement of all Muslim scholars at the
    level of juristic reasoning (ijtihad) in one era
    on a given legal ruling. Given the condition
    that all such scholars have to agree to the
    ruling, its scope is limited to matters that are
    clear according to the Qur'an and Prophetic
    example, upon which such consensus must
    necessarily be based. When established,
    though, scholarly consensus is decisive
    proof.
    Sources of Shari„ah: Derived Sources
   Legal Analogy (Qiyas)
    Legal analogy is a powerful tool to derive rulings for
    new matters. For example, drugs have been
    deemed impermissible, through legal analogy from
    the prohibition of alcohol that is established in the
    Qur'an. Such a ruling is based on the common
    underlying effective cause of intoxication.

    Legal analogy and its various tools enables the
    jurists to understand the underlying reasons and
    causes for the rulings of the Qur'an and Prophetic
    example (sunnah). This helps when dealing with
    ever-changing human situations and allows for new
    rulings to be applied most suitably and consistently.
          Fiqh - Jurisprudence
   Fiqh is the science of Shari „ah
   Fiqh provides the structure for deriving Legal Rulings from
    Shari„ah
   The Shari„ah regulates all human actions and puts them
    into five categories: obligatory, recommended, permitted,
    disliked or forbidden.
   Obligatory actions must be performed and when performed
    with good intentions are rewarded. WAAJIB
   The opposite is forbidden action. HARAAM
   Recommended actions are that which should be done and
    when performed with good intentions are rewarded when
    abstained from there is no error incurred. MUSTAHAAB
   The opposite is the disliked action. MAKROOH
   Permitted action is that which is neither encouraged nor
    discouraged. Most human actions fall in this last category.
     MUBAAH
       Al-Qawa„id: Legal Maxims
   Al-Qawa„id are a group of legal rulings or
    axioms that share a common derivation by
    analogy, qiyaas.
   We have already discussed the five Aims of
    Shari„ah: religion/deen, life/nafs, the mind/
    „aql, Lineage/nasl, and Wealth/maal.
   They relate directly to the five main Principles
    of Law
   The Five Principles deal with Qasd (Motive),
    Yaqeen (Certainty), Darar (Injury),
    Mashaqqa (Hardship) & Aadat
    (Customary.
  Al-Qawa„id: Legal Maxims
1. The Principle of Motive, qasad states
   that each action is judged by the
   intention behind it, al umuur bi
   maqasidiha.
2. The Principle of Certainty, yaqeen states
   that a certainty can not be voided,
   changed or modified by an uncertainty,
   al yaqeen la yazuulu bi al shakk.
3. The Principle of Injury, dharar states
   that an individual should not harm
   others or be harmed by others, la
Al-Qawa„id: Legal Maxims
4. The Principle of Hardship,
mashaqqa states that hardship
mitigates easing of the rules and
obligations, al mashaqqa tajlibu al
tayseer.

5. The Principle of custom, aadat,
states that what is customary is a legal
ruling, al aadat muhkkamat. Unless
contradicted specifically by text, nass,
custom or precedence is considered a
source of law.
            CASE STUDY
   Euthanasia
    – Euthanasia is Greek for good death
      which translates into English as easy
      death or mercy killing.
    – accepted by the ancient Greeks and
      Romans. Three Asian religious
      traditions accept euthanasia:
      Buddhism, Shintoism, and
      Confucianism.
    – rejected by the 3 main monotheistic
      religions: Christianity, Judaism and
      Islam.
         CASE STUDY
– Types of Euthanasia:
  a) Active euthanasia, an act of
 commission, is taking some action that
 leads to death like a fatal injection.
 (b) Passive euthanasia, an act of
 omission, is letting a person die by taking
 no action to maintain life. Passive
 euthanasia can be withholding or
 withdrawing water, food, drugs, medical
 or surgical procedures, resuscitation like
 CPR, and life support such as the
 respirator. The patient is then left to die
 from the underlying disease.
      Deriving the Islamic Verdict
   Use of textual, nass, evidence has had limited
    success because the issues involved are new and
    there are no relevant legal precedents.
   First Approach is by using Maqasid ash-Shari ‘ah:
    1. The Aim of preserving life, hifdh al nafs,
        makes any form of active or passive
        euthanasia illegal. Life and good health must
        be protected and promoted in all
        circumstances. This includes, inter alia,
        adequate nutrition, hydration, prevention and
        treatment of any illness and disease while one
        remains alive.
         Deriving the Islamic Verdict
   First Approach is by using Maqasid ash-Shari „ah:
    2. Euthanasia violates the Aim of preserving religion,
 hifdh ud-deen, because it involve a human attempt to
 violate the divine prerogative of giving and taking
 away life.
Nevertheless, the first approach leaves the question:
 The enormous resources used to care for terminal
 patients have to be considered in the light of the Aim
 of preserving wealth, hifdh al maal. Those
 resources, if from the family, could have been used to
 care for the orphans and widows left behind. If they
 are from the state they could have been used to care
 for many poor and disadvantaged persons with a
 chance of recovery. Using them in a case with no hope
 of eventual recovery could be a form of waste.
         Deriving the Islamic Verdict
Second Approach using Al-Qawa‘id:
1. Qasd (Motive) immediately comes to
   bear in three ways:
   - There is no legal distinction between
   active and passive euthanasia because the
   law considers only the intentions behind
   human actions and ignores the terminology
   used, al ibrat fi al maqasid wa al ma'ani wa
   laisa li al alfaadh. Since both active and
   passive euthanasia have the same
   intention of ending the life of a terminally ill
   patient, they are the same action under the
   law.
       Deriving the Islamic Verdict
 Second,  the physician involved in
  euthanasia either as an active
  participant or an advisor may have
  intentions relating to self-interest or
  interest of hospital and not the total
  interest of the patient. That motive
  needs to be examined
 Third, members of the family may have
  the intention of hastening death in
  order to inherit the deceased's estate.
  They may also want to avoid the costs
  of terminal care.
        Deriving the Islamic Verdict
 Second    Approach using Al-Qawa„id:
2. The principle of certainty, yaqeen, in
  invoked in three situations:
  First, the definition of death requires that
  there should be no doubts at all. Of all
  available definitions of death, it is only the
  traditional definition of death as cardio-
  respiratory failure that is accepted by all. There
  is no doubt about its irreversibility. Brain
  death is only accepted when it is proven that
  the patient is incapable of recovery with any
  form, costly as it may be, of medical attention.
        Deriving the Islamic Verdict
2. The principle of certainty, yaqeen, in
  invoked in three situations:
   Second, there is doubt about the legality of the
    living will because it is made by a person in
    perfect health. The same person could have
    different opinions when in terminal or severe
    illness. It is therefore untenable that in the case of
    euthanasia the living will is accepted without
    restriction.
   Third, In the emotionally-laden and
    psychologically-stressed situation of terminal
    illness, there is no certainty that the patient's
    consent to withhold or withdrawal treatment and
    nutrition is a true expression of their free wish.
         Deriving the Islamic Verdict
 The  principles of injury/darar and
  Hardship/Mashaaqa
Some might say that the patient is
  suffering from harm or injury and
  Islam calls for lessening pain and
  suffering.
* When faced with 2 evils, the lesser one
  is chosen, ikhtiyaar ahwan al sharrain.
  This is interpreted to mean that
  continuation of painful, terminal life is
       Deriving the Islamic Verdict
 The principle of custom or legal
  precedent:
 The role of the physician has
  customarily been known to be
  preservation of life. It is therefore
  inconceivable that they could be
  involved in any form of euthanasia
  that destroys life
          The Verdict
 Life support measures should be taken with the
  intention of quality in mind. The most that can
  be done is not to undertake any heroic measures
  for a terminally-ill patient. However ordinary
  medical care and nutrition can not be stopped.
 The general ruling is the Euthanasia is Haram to
  be asked for or to be carried out except when a
  panel of physicians show that there is nothing
  that can be done to give back partial quality of
  life to a terminal patient.
           Contact Us
Yahya Ibrahim
Australian Islamic College
139 President St.
Kewdale, Western Australia 6105
yai@aic.wa.edu.au      http://aic.wa.edu.au
Office (618) 9362-2100 Fax: (618) 93625810

				
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