Islamic Jurisprudence
Course Contents:
1. Sources of Islamic Law.
2. Islam and Criminal Law.
3. Islam and Civil Law.
4. Islam and Constitutional Law.
5. Islam and International Law.
6. Islamic Law of Evidence.
Sources of Islamic Law: Following are the sources of Islamic law:
Quran: Quran is the first source of Islamic law that is the last revealed book of Allah on Muhammad (SAW).
Definition: This is the Book which was revealed on Prophet Muhammad (SAW) through Gabriel which was narrated to us in a continuos manner is recited in Prayers.
Written Law: Revelation is a first source of law that is available in the shape of Quran to us. This is in written form that is never changed and Muhammad (SAW) is the first Jurist. Allah says, “he never say anything except reveled by Allah.” Quran is divided in thirty equal parts and every part is called Para . Quran is a Book reveled in Arabic. Total verses are 6,666. It took 22 years, 2 months, 22 days, in revelation. Its revelation was started in the Holy Month of Ramzan. It has different names, e.g., Al-Kitab, Al-Furqan, Hakeem, Mazhar.
Its revelation was started in Makka and that part of revelation is called Makki Verses. Duration of Makka is 12 years and 5 months. They include adoration and beliefs. Second era is called Madni age and contains 9 years, 9 months, and 9 days. 22 verses were reveled in this period. These verses are generally lengthy and contain different Injunctions.
We claim it the greatest Book that came into writing since ever. It includes Oneness of Allah and Truth. Its language is beautiful and pious.
Repealed Verses: There were some verses in Quran that were needed to be abrogated, e.g., verses regarding Will were changed later with the proportions of heirs. Subsequent verses repeal the first one and supersede the earlier.
Quran is a law that is combination of permission and prohibitions described in Quranic verses. Obligations are those performance of which is compulsory in nature and Mustahibs are those compliance of which is optional.
Traditions (Sunnat & Hadith): Traditions is the second sources of Islam after the Quran. Sunnat is the practice of Muhammad (SAW), whereas Hadith is the saying of Muhammad (SAW).
How the Hadith is derived: All the conversations of Muhammad (SAW) are called sayings. Practice of Muhammad (SAW) is called Amal and Sunnat. Silence: While the conversation of Companions, He gets silence that is also a Sunnat.
Difference between Quran and Traditions: Quran is a message reveled by Allah to Apostle through Gabriel whereas Traditions are the sayings and practices of Apostle kept in mind of Companions. Quran never commits mistake and never changed even after 1,400 year while the authentically of Traditions may be controversial. Quran is a source of Orders while Traditions contain the methodology of the practice. Quran contains no contradiction while it cannot be said in the case of Hadiths.
Consensus: It means to gather something. It implies the consensus of the Muslim Jurists on a particular matter relating to current situation. It also means agreement of jurists on certain matter. Majority view, collective opinion, or general agreement of jurists is called consensus. Jurists determine parameters/four-corners of dresses. It is very important being the source of Shariat in Islam. If the Quran & Sunnah are silent on certain matter, then we shall seek toward Ijma (Consensus).
If a matter arise whether wearing dress of Shalwar Suit is permissible in Islam then we shall seek toward Muslim Jurists who shall resolve this matter by consensus. This is duty of Muslim Leader that he refers this matter toward jurists. Every jurist is obliged to reply in response of query. If one jurist keeps silence, it shall means confirmation. All the jurists are the successor of Apostle. All the solution made by consensus, made it order of Shariat.
Kinds of Consensus or Interpretation: Following are the kinds of consensus:
1. Explicit Consensus: It is a consensus or interpretation, which are clearly expresses.
2. Silent (Sakooti or Khafi) Consensus: If the jurist keep silence on a certain matter, it will be called silent consensus.
Arguments in favour of consensus: Once, Apostle deputed Maaz Bin Jabal as Judge of Yemen. Apostle asked him as to how you would decide matters of people. He said, “I shall seek toward Quran first, afterwards in Hadith, and later on consensus will be utilized.” Apostle thanks Allah.
Analogy (Qiyas): It means correspondence or partial similarity. It is a process of arguing from similarity in known respects to similarity in other respects.
Once in a history alcohol consumption became popular in society. Consequently people indulged in quarrelsome. An advisory council was constituted in the time of Hazrat Abu Bakr to decide the punishment of alcohol consumption. There was an uncertain situation because the punishment was not mentioned in Quran. An Advisory Council looked into matter and decided with the opinion of Hazrat Ali who advised that punishment of defamation towards pious women, who could not produce four witnesses, are liable for the punishment of 80 whips/lashes. Since the wisdom of drinker deadens and he becomes unable to use intellect and defame others, his punishment should also be 80 whips/lashes.
Maqees is called first matter that is to be resolved. Maqees Alaih is previous decision. Mohkam (New Decision): It is a combination of consensus and analogy. New solution is derived from old one.
Characteristics of Narrator: Narrator must possess certain qualities in order to give binding force to his narration such as:
Companion: A Muslim who has seen Apostle himself in his life, met, learnt his conversation, and seen while practicing obligations, he is called companion.
Successor’s Companion: Muslim who has the qualities of companion with the difference that he has seen successor companion despite of Apostle.
Followers of Successor’s Companion: He is one of those who neither seen Apostle nor companion, but the successor of companion.
Competency of Narrator: He should be Muslim, Wise, Sane, and having sound memory.
Shariah Contain five (5) Points: Such five points are as follows:
1. Deen: Islam is our Deen. It is a way of life. Protection of Deen is important to survive in the world. Every child who born is Muslim. Parents make him Christian or Jew. He adopts the religion of his parents, later. Islam was opened out free will and choice of the people who were inspired from Islam.
2. Ja’an (Nafas) Mind/Life: Existence of life is compulsory. Importance to life is given as “One who kills one life, kills the entire humankind and one who saves one’s life, saves life of entire humanity.” For the sake of life, the use of prohibited stuff may be allowed to eat in certain situation. Alcohol consumption is not permitted, but in certain events it may be permissible. Theft is not allowed in normal circumstances, but in starving it is relaxed.
3. Sanity (Safety of Wisdom): Do not adopt the games that reduce the wisdom. Alcohol consumption is prohibited in order to protect wisdom.
4. Race: It is also allowed to protect.
5. Property: It can be created and protected with the conditions of Islam. Interest, theft, bribery, dumping etc. are prohibited.
Penal Code of Islam: Islam has defined wrongdoing and their punishments. There are three types of punishment, e.g., Hudood, Taazir, and Retribution and Blood Money punishment.
Hudood: Hadd means a thing that discriminates between the two one. Extreme is also called Hadd, e.g., Hudood-ul-Haram, Hudood-ul-Allah etc. All the discriminations that show the legitimacy or forbearance of things are Hudood. Hudood punishment are those that fixed by Allah & Apostle. It also includes details of crimes. We have not authority to increase or decrease in these punishments. These are fixed for all classes. These are also called crimes of fixed punishments. Judges are not allowed to discriminate anybody while convicting or punishing.
Taazir: This term is used in penal system for those crimes, punishment of which is not fixed by Shariat and remained on the discretion of the judge according to the magnitude of offence. Taazir punishments are imposed where the Hudood punishments diminished or not available then judge may impose fine and other punishment, too.
Retribution (Qisas and Blood Money): It has resemblance with Hudood and some of jurists count it in Hudood. It is also fixed punishment. There is discrimination in Hudood and Retribution and Blood Money. Hudood are not compound-able while Qisas is compound-able.
For example, murder has fixed punishment but it is compound-able.
Hudood Crimes: Hudood crimes are seven in number. List of crimes is as follows:
1. Theft.
2. Alcohol Consumption.
3. Adultery.
4. Dacoity.
5. Mutiny.
6. Slander (Defamation).
7. Apostasy.
Now we shall discuss Hudood Crimes in detail little more:
1. Theft or (Sarqa): Possession of other’s property, secretly, and without permission is called theft. It is dispossession of one’s property. There is two types of property, i.e., moveable and immovable property.
Theft is committed with moveable property. Theft has two kinds, e.g., theft liable to Hadd and theft liable to Taazir.
a. Theft liable to Hadd: If an offender (wise, sane, and adult) dispossesses anybody from his movable property without his permission, secretly with ill will intention, he will be liable of Hadd.
b. Theft liable to Taazir: It has two kinds, i.e., which has resemblance with Hudood but do not’ fulfill are the requirements of Hadd and excludes due to doubt and comes under Taazir. For example, dispossession of relative secretly. Second kind is that in which dispossession occurs but not robbery and running away.
Amount of theft that constitutes crime is 4½ grams gold or equivalent. It is liable to Hadd. Thief is liable to amputation of hand upto wrist. Quantity less than 4½ grams gold does not constitute an act of crime but comes under Taazir. If theft takes place between relatives, e.g., father and son, husband and wife, it will not constitute an act of crime on the base of social relationship. Theft of edibles, forbidden articles, i.e., musical instruments, wine, pig etc. is not an offence.
Where Hadd is not imposed: In certain matters Hadd is not applicable such as:
a. Theft is committed negligently.
b. Theft is committed under the state of compulsion.
c. Two witnesses are not produced.
Conviction is proved by evidence of two witnesses and by confession. Punishment of theft is amputation of hand upto wrist or shoulder.
2. Alcohol Consumption or Drinking: A particular liquid that gives intoxication, deadens intellect or wisdom in case of over-dosage. It is forbidden even in little quantity. It was popular in Arabs in Pre-Islam era. Quran has used word Humur. How it is made: It is prepared from grapes, dates, wheat, orange, and sugarcane etc. These things are put into earth in a vessel for six months. They come out and boiled and processed. Its intake/consumption/drinking is prohibited.
Factors that constitute the drinking offence: There are two factors, i.e., Intake of wine and ill will.
Drinking in case of negligence, mistake, preservation of self, do not constitute offence. Alcohol was prohibited gradually. It was first described that it has some gains and some losses and amount of loss is greater than its gains. Later its intake was prohibited on certain occasions, e.g., at the time of prayers or adoration. At last it was claimed an act of Satan and entirely prohibited. Now is should not be taken at all.
To constitute the offence two witnesses are compulsory. Also smell, state of drinking, and confession constitutes offence. Upon the conviction 80 whips will be inflicted. Wine can be administrated to patient if doctor prescribes.
Hip is the place where whips are inflicted. Vital organs should be avoided in infliction of the punishment.
3. Dacoity or Haraabah: It is defined in PPC as threat of looting by five or more persons, on public way/road, obstruction, with intention, is called dacoity. Party has ability to use power, obstruction the public way with intention of robbery, in which murder may take place upon resistance, is dacoity. As per Hudood Laws when any one or more persons whether equipped with arms or not, make show of force for the purpose of taking away the property of another and attack him or cause wrongful restraint or put him in fear of death or hurt such persons, are said to commit ‘haraabah’.
Elements that constitute the dacoity crime: Following are the elements, which constitute the dacoity crime:
a. Accused must be armed so that passerby may not compete with them.
b. Offence takes place at the place where victim may not resist or seek toward assistance.
c. It takes place in Islamic State.
d. Dacoit should no be relative to the victim.
e. He should be sane, wise, and adult.
f. Offender is Muslim.
Two witnesses or confession is sufficient for conviction.
Dacoits must be killed, or crucified, amputation of right hand from wrist and left foot from ankle, i.e., from opposite direction. It is upto the discretion of judge whether what punishment matches to the offender. If only public way is obstructed, but not loot or murder takes place, then only amputation of hand will be imposed.
4. Sedition: It creates mismanagement, disorder, and disorganization. It is a crime against lawful government. It is liable to Hadd. Definition: When an unlawful assembly acts against lawful government to pull it down is called mutiny. Mischief is more dangerous than of murder. Since the sedition is great mischief in which Muslim does kill Muslim. Abu Bakr said, “follow me if I act rightly and if deviate from right path, then set me right.” Illegitimate government is against the spirit of Islam. Sentence of mutiny is death penalty.
Mutiny is committed against the ruler, by force, and ill will. Quran says, “A O Believers, follow the orders of Allah and Apostle, and other who are government officials.”
If rulers of an Islamic State give order, which is contrary to Islam, then mutiny comes udder compulsion.
Mutiny is punishable upon the evidence of two witnesses and enquiry. They are liable to be killed.
5. Apostasy: It means deviation/expulsion from Islam after conversion. There are two types of Muslims, i.e., Muslim by birth and Muslim by conversion. If anybody deviates from Islam will be called apostasy. Apostasy is constituted by three way:
a. By practice which is contrary to Islam.
b. By verbal statement which is contrary to Islam.
c. By faith or belief which is contrary to Islam.
Two witnesses are required for conviction. It is liable to Hadd. If there is no declaration of apostasy but acts are against the spirit of Islam, is apostasy. Day of judgement is imaginary is also apostasy. Pinching of mind is Hell amounts apostasy. If one affirms non-Muslim is also apostasy.
Punishment is death. Child and insane are exempted. Divorce takes place automatically. Everyone should evade. Inheritance is revoked.
6. Adultery: When two opposite sexes, who are wise, major, and having no legal relationship, commits intercourse, is called adultery. As per Hudood Laws it means a man and a woman are said to commit ‘Zina’ if they willfully have sexual intercourse without being validly married to each other. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of Zina.
It is a crime that is committed against one individual, but actually it is committed against the whole of society. Retraction in adultery is encouraged.
Adultery is liable to Hadd: When a person commits an act of penetration to the woman other than his wife, it is adultery liable to Hadd. Illegal intercourse committed by force, mistakenly, and kissing is not liable to Hadd. Insane person is not liable to punishment. Insanity is of two kinds, i.e., permanent and temporary insanity. If a woman commits illegal intercourse with insane, then woman shall be liable to Hadd.
Three ways, i.e., evidence, confession, and presumptions or circumstantial evidence can prove adultery.
Four competent witnesses prove an offence. Witness must be adult, and sane. He must not be dumb, insane, singer, and drinker.
Punishment: Married offender is liable stoning to death. 100 whips are inflicted to unmarried culprits.
7. Slander of woman: It means imputation of un-chastity to woman or girl. Three elements constitute an act of slander, i.e., imputation or disregard, piousness of woman, and ill will. Witnesses and confession can prove this crime. At least two witnesses are required. Eighty whips are inflicted upon conviction.
A selection criteria in all four Imams was different. Islam is not only a combination of adoration, but also it is concerned with our social system. Islam does not maintain separation between Mosque & State. It is combination of both. Concept of separation directly or indirectly comes from Church where the adoration of Sunday wipes the sins of all of the week. Decision that I will never marry, always fasting, always standing in Salat, is un-Islamic. Constitution is not required in the presence of Quran. What thing makes constitution? Social system, basic human rights are clearly stated in Quran. Quran conforms the definition of constitution. It also states the Sovereignty belongs to Allah. He is the only Ruler. He is the Supreme. He is not answerable but we all are. We have to follow the Quranic injunctions. How the Head of the State will be elected or selected? One who is popular and pious. Refugees are preferred on resident. They have sacrificed their relatives, wealth, property, and particularly their nation. Hazrat Abu Bakr was appointed as Leader in Salat/Prayer. There was general consensus for his Leadership. At the time of Hazrat Umar, a committee was constituted to choose Leader among them. This is also called selective democracy. A general election was held at the time of Hazrat Ali.
In modern time an Islamic State may come into existence. Qualification of voter and candidate must be fixed. Proportion candidature system may be adopted. It is also adopted in France successfully. Under this system votes are not casted to candidates, but to the parties. Merit is followed rather than personality. In this system votes are not miscalculated or misapplied. System of Technocrats may also be adopted. Many eminent people cannot contest election. They may be choosen under proportionate candidature system. Basic democracy is also a system.
Advisory Council is crux of Islamic System. Islamic system is incomplete without advisory council. Council decides all the matters in Islamic State. State is bound to accept advises of counsel. All the orders, which are contrary to Islam, must be refused.
Before the Uhad war, all the companions were called in Mosque Nabvi to decide the method of war against infidels. Opinion of some was to fight within city and other was in favour of fight outside the city. All were agreed to fight within Madina. It has lesson of cooperation while deciding the important matters of the State.
In the time of Hazrat Abu Bakr, some people refused to pay Zakat saying that Apostle has been died and order relating to Zakat has lost its importance so it cannot be fulfilled in his absence. But he said that all orders have been diverted towards present Leader of the State and war must be held against those who have denied it. Advice of council was rejected in this instance.
Islamic System of Evidence: Claims are not acceptable without evidence/proof. Even one person has stolen a bike and occupied, he will be presumed owner until contrary is proved by evidence. Responsibility/onus of proof lies on plaintiff. Defendant is only responsible for swear.
1. Eye Witness: This is authentic proof. Numbers of witnesses in Hudood cases are two. Accused is convicted upon evidence. Evidence by five senses: Perceive: It is perceived that offence is committed by a particular person. Smell: It is also a sense that provides evidence. Sight: I know that it was happened before me. Hearing: Not seen but listen from elsewhere. Taste: It is feelings to touch something.
2. Documentary Evidence: As per Quran it is authentic evidence. It is used particularly in debt cases. It is order of Allah that all debt/fiscal matters should be written and dictated and dictation should be given by borrower. If dispute arises then it will provide proof. It further makes it fool proof with the sanction of two male witnesses or one male and two female witnesses.
3. Circumstantial Evidence: It is a evidence which is derived from circumstances. It is perceived from clothes, papers, knife, blood etc. It is not acceptable in Hudood and Retribution Cases. It is accepted in Taazir cases.
4. Hearsay Evidence: It is the evidence based on the circumstances not listen directly but indirectly. It is also not reliable. Benefit of doubt always goes to accused.
5. Confession: It is strong evidence. Accused himself admits his offence. After accused has confessed, no more witnesses are required. Evidence against self is injunction of Quran. There is a condition on confessor. He must be major and sane. Child is not capable for confession. His confession is not binding for courts. Age of majority for girl is 12 year and 13 years for boy.
Who is competent for Evidence: Following persons are eligible for the purpose of testifying the truth in Court cases:
1. He must be able to perceive or observe about which he has to affirm before the Court of law. He must be able to read and understand document or the incident.
2. He must be able to retain his observation in his memory so that it may be given as required.
3. He should have capacity to reproduce the object he has retained in his memory.
4. His sight should be clear so that he may look and recognize as that is.
5. Physical fitness is also essential for witness.
6. His character must be sound. Person bearing loose character is not reliable.
Blind is incompetent to give evidence where sight is important and object has to be recognized.
If witness has lack of senses where it is necessary then he will be disqualified.
Deaf is incapable to be witness where hearing is compulsory.
Dumb cannot express himself in normal way. So he is no reliable. Some of sages claim him as qualified but most of them deviate.
Characteristic of Sound Character: Sound character must possess following criteria:
1. He must be practicing his duties imposed by Islam.
2. He must refrain or abstain from mortal or major sins. It does not mean trivial or minor sins are allowed but importance goes to mortal sins.
3. He must be good in his all particularly personal matters.
How Court determines the qualification of witness: Court takes into consideration the following criteria to determine the qualification or credibility of true witness:
· To shake/check the credibility of witness lies on Court as to how it is to be determined.
· He is also to be assessed by the cross examinations/questions.
· A secret/intelligent system may be established to determine the qualification of the witness.
Woman as a witness: Whether she is competent? She has three statuses as follows:
1. She is incompetent to produce evidence at all,
2. Both, male and female, are equal in evidence, and
3. Cases in which only female are competent and not male.
- She is deprived from evidence being not pleasant job for her. While producing evidence, she is simultaneously, trying to enforce or impose punishment on one party. There are so many matters in which production of evidence is most important, like, fiscal, financial, civil, criminal etc. Woman is regarded most respectful being of the society. She has privileges over male. Mother is source of paradise under her feet. If a man up-brings or nourishes two of his daughters, he will be allowed to stand with Apostle in the day of judgement. Apostle had spread his cloth on arrival of female. Islam does not like to indulge her in the unpleasant matters of evidence. Domain of woman is home. She is Queen of home and home affects when she leaves it. Disturbance may occur. Mother is responsible for nourishment of her descendants/off-springs. Court matters may cause delay in discharge of her duties at home. Evidence may involve travelling. She is physically weak and repeatedly presence of her in Court may affect her soft passions. It may bring inconvenience for her. Woman is not half, as it is said. Male and female, both are equal. Presence of second woman in evidence is just for reminding purpose. She is exempted in Hudood cases. It is time consuming job. Her deprivation minimizes infliction of Hadd.
- In Taazir cases, both male and female witnesses have equal status. She may produce evidence in all civil and criminal cases related to Taazir. Male has not superiority over woman.
- There are many matters in which only woman is competent to produce evidence. Respect goes to woman. Matters relating to reproduction or delivery are proved on the evidence produced by woman. Only she knows the actual relationship. This evidence is important in inheritance, marriage, property etc. Here male is deprived from evidence.
Fosterage depends on woman’s evidence. Breast feeding changes and enhance relationship. To determine, minority or majority of young girl, depends on woman’s evidence. In these cases other woman, who is not subject in these cases, is required to produce evidence.
Why woman is incompetent as witness in Hudood Cases: There are many reasons that restrict woman from producing evidence in Hudood crimes. They are related to emotions, physical fitness, memory, personality etc. Here is some detail as follows:
1. Minimum enforcement: Deprivation of woman from evidence in Hudood crimes minimizes the enforcement of Hudood. Shariat does not like to make people of society as ineffectual/futile persons, so if woman will not come to Court for evidence, offence will not be proved and accused could not be convicted. So Hudood’s enforcement will be lessen.
2. Benefit of doubt: Enforcement of Hadd is dropped in case of doubt if arise. Deprivation of woman’s evidence makes it easy. Benefit of doubt always go to accused and deprivation of woman is source of this object.
3. Vindication of accused: Accused is acquitted where woman is not produced as witness.
4. Weak: Woman is the person with weaker body and if there is travelling involved in evidence, she is affected badly as she is Queen of Home and not glamorous person of the Company.
5. Unbalanced personality: She does not bear balanced personality. She is not balanced in her emotions. She is extreme in love and war. Her passions can be exploited easily in the conviction of innocent person, who is not guilty of offence, he is charged for what.
6. Area of activity: As she is Queen of Home, she is also exempted from discharge of adoration in Mosque. She should live and work in home. Her care to home eliminates the production of offenders, and contrary produces the offenders.
Islamic Civil System: Islam is not the religion of just adoration. It focuses to practices. Islamic civil system is as important as criminal. It has formulated rules and regulations. It has formulated guidelines how the property is acquired. There are two concepts of economy, i.e., Capitalistic system in which acquisition of property is unlimited without any restrictions and second one is Socialistic in which private property cannot be maintained at all. USA , UK , France represent capital system while China , former USSR are representative of Socialism. Both systems have their merits and demerits. They can be discussed as follows:
Capitalistic Economic System provides free competition. This factor is the key of the system. Mill Owner wants maximum output. He not only acquires benefits for himself, but he is source of benefits for others in term of employment. Competition factor is key of quality products. He may possess profit what he earned. Profit is the motivation, provides encouragement in maximum production.
Besides merits of capitalism, there are certain demerits of this system. The most common defect is exploitation. One who has scarce resources remains poor forever. He cannot get share in profits that are gained through their labour. There is gulf between poor and rich. Poverty and richness simultaneously moves in opposite direction. Poor remains poor while rich become richer. Concentration of wealth is hindrance in circulation of wealth that is blood of any economical system.
Socialism does not recognize private property. There is no ownership in it at all. No body can make or acquire home for residence. There is no share for labour in profits. They have to work as component of machine at flat rates. They have no concern whether company goes to deficit.
It has shortcomings as well as qualities. Labour class indulges in laziness being the deprived from share in profits. There is no ownership at all. All property is owned by the state. People do not exploit each other. Both capital and labour are divergent.
In spite of all other systems, Islam gives us balanced economic system. There is neither limitation on the acquisition of property nor unlimited freedom. There are certain restrictions on people. Although unlimited property may be acquired but there are some taxes that are levied by Allah. There is Ushr on cultivation @ 1/10th on rain-irrigated land and 1/20th on artificial irrigated land. 1/10th tax is levied on trade while 1/40th on assets like gold or silver. These taxes circulate the money and assets. Also Islam inheritance system restricts concentration on wealth. Islamic economic system has more or less, resemblance with both, capitalism and socialism.
Ownership includes existence or tangibility and benefits derived from it. Ownership completes when both ingredients are met together in a person. It is called exclusive ownership and lack of one ingredient makes it defective ownership. If I have a pen and give to Ali produces defective ownership for both of us. I have ownership of pen but Ali enjoys benefits. If I possess and get benefits of pen, then I would have exclusive ownership. Rental homes is also example of defective ownership on the part of owner and tenant.
How the exclusive ownership is acquired and lost. There are three valid methods as follows:
1. Agreement is the way of acquisition of ownership in which one party sells its rights to other one.
2. Inheritance also transfers the ownership after the death of owner.
3. Gifts can be transferred from one to anther.
These are three ways, which not only used in acquisition of exclusive ownership but also lost at same time. There is another method of acquisition of exclusive ownership, i.e., theft, bribery, illegal possession etc. but these methods are illegal and prohibited by Shariat. Prayer can not be offered wearing the clothes stolen.
Agreement or Sale – Purchase Contract needs some important ingredients. A person who is going to enter into contract must be adult and wise. He must attain age of puberty before entering into contract. There must be minimum two parties and there is no limit on maximum parties. A person cannot make an agreement with self. I cannot buy sweater from myself.
There are some exceptions in contract making. Insane and minor may make contract with some conditions. They may make contract that extents at lower consideration and this contract must cover only life necessities. Going up to bus is a contract. Bread buying is also a contract. These are necessities and every one regardless his age or before attaining the age of puberty and this may also be repealed after attaining the age of majority. This is upto party whether they want to ratify or revoke it. There is another exception that insane cannot enter into the contract of marriage. There is neither divorce nor probationary period on the part of female partner after revocation of marriage contract after attaining the age of puberty. Both parties must be Muslim if contract is made for marriage. Muslim male may marry with women of people of the book.
There should must be subject matter for which contract is made and it must be permissible. Prohibited items cannot be allowed as subject matter. So there will be no agreement for wine, pig, and musical instruments. Subject matter should be present at the time of contract, i.e., offer and acceptance. In its absence contract cannot be made. So contract for the birds flying in air, fishes in deep water of sea, and for those animals who have been escaped from their master, cannot be made.
Advance: There are some agreements that can be made in the absence of subject matter in advance. The things which to be manufactured at the time of contract, can form contract. A carpenter, who can make table but is unable to make it due to non-availability of sufficient funds involved in it, may enter into contract in the absence of subject matter. A person who has money and need table, but cannot make it self, can enter into contract with carpenter. Goldsmith and blacksmith may be made contracts without presence of subject matter.
A contract in which possession is made first, and payment is made later, after investigation, can be made. Maximum investigation period is three days. Rent according to prevailing market rate, is applicable for the investigation period if the subject matter is not purchased and returned after investigation and not applicable if it is purchased and paid.
Restriction on government officials: Officials, who are made responsible to run the matters of government, are restricted to acquire ownership and easement of certain things.
1. Ownership of house was strictly prohibited. Maintenance of home could divert the intention of officials to carry on their responsibilities.
2. Use of Turkish horse was strictly prohibited being the luxury and contrast to obligation.
3. They were not allowed to have foodstuff which was not available to people. They were bound to use unrefined flour being the available item to the people. Majority could not use refined flour.
4. They were not allowed to acquire the services of servant or gatekeeper so that every complainant may approach them.
5. They were fixed rated officials and are not allowed to indulge in trade or business so that they may discharge their responsibilities diligently. Other sources of income were strictly prohibited.
In the vicegerency of Hazrat Abu Bakr, he got some cloth over his shoulder to sell and earn, but he was strictly refrained by government to do such job. He had monthly grant or scholarship.
6. They were bound to wear simple dress. Once a time Hazrat Umar made and wears long shirt, but he was called explanation and he answered that objection while the interval in general address to people.
Only government officials had to follow the following injunctions and subjects were exempted and allowed to enjoy all these prohibited items.
Islamic international Law: Is Islam allows to its follower’s war? Is it conditional? Is it carries some objectives? Islam is a totally different way of belief than made by man. Islam is God made way of life. It carries meaning, sign, and objectives in all its injunctions. War is one of them and objectives are not excluded from it. Islam is revealed way of life. Its compliance not only discharges us from religious obligation but official duty as well. It is also adoration. It carries reward or SWAB. Islam focuses on humanity. It also can be seen in battlefield. Just war is nothing if carries no objectives. It is not allowed for extension of boundaries, not for making free people slaves, and not for the purpose domination or colonies. It is only the tool to extend the Name of Allah to the world or to support Islamic civilization. Most of wars, in Islam, were defensive and not offensive. It does not mean that offensive wars are not permitted. If there is violation of human rights, then offensive war is became legal obligation of Islamic State. Makka war is one of the examples of offensive war. Islam does not allow Muslims to cross limits in war. It imposes duties during wartime. Islam forbids:
1. Killing of women, if they remain peaceful.
2. Children.
3. Aged people.
4. Transgression of limits.
5. Devastation of corps.
6. Destruction of buildings or houses.
7. Ruin of gardens.
8. Killing of animals.
9. Arson of public places.
Islam teaches us to be ready for war during peacetime. Let provide force physical and human resources. Killing of animals is allowed where they are used to fight, like horse, camel, elephant etc.
Prisoners of war (POW) are detained. Oppression upon them is not inflicted. They can be set free if they teach our uneducated dwellers. They can be utilized maximum. Prisoners of war (POW) either male or female can be made slaves and maid.
More than one maid can be given to one of fighter. Booty obtained while war is distributed among the fighters. It is divided in five parts and one of them is deposited in finance department and rest is distributed as described earlier.
Booty obtained without war is also dealt as booty obtained while war, described as earlier.
Capitation tax is levied on non-Muslim residents. It is used to protect their lives, honor, and goods. Its fixation is decided case to case, as per capacity of the individuals.
Land tax is imposed on occupied agricultural land.
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You have been generous and gracious always. Thank you for being so supportive.