EQUITY IN ISLAMIC LAW • Shariah • Hadith

- Based on Quran and Sunnah, - Daraqutni, Hassan - “The best of

• General Principle : any concept
Ijtihad and Ijma’. people are those that bring most
that does not contradict Quran and
- Based on divine law and justice, benefit to the rest of mankind.”
Sunnah: the concept is acceptable.
wide and flexible but hold firms in - Ummu Salama - “God’s
• Equity: fair, just, moral and ethical.
accordance with the provisions of Messenger, upon him be peace,
• Islam upholds the idea that equity
Quran and Sunnah. never went out of my house
is part and parcel of Muslim way of
- Takes into account the needs of without raising his eyes to the sky
life.
the society but cannot surpass the and saying: “Oh Lord God! I seek
• Equitable principles are embodied
limits of shariah. refuge in You lest I stray or be led
in Quran and Sunnah.
- Equity is Islam is subordinate or astray, or slip or be mad to slip, or
• Hence, the whole concept of
subject to Shariah. cause injustice or suffer injustice,
Shariah provides for justice and
or do wrong or have wrong done
equity
AUTHORITIES to me.”
• Quran
DIFFERENCES – ENGLISH LAW & SYARIAH
- An-Nisa:105 - “Indeed, We have SECONDARY SOURCES
• English law
revealed to you, [O Muhammad], • The exercise involves a judicial
- Based on natural laws, human
the Book in truth so you may judge legal process known as ijtihad and
reasoning and interpretation
between the people by that which includes:
- Man-made law, a gloss of
Allah has shown you. And do not a) Ijma’
common law, confined to civil
be for the deceitful an advocate.” b) Qiyas
matters only.
- At-Tin:8 - “Is Allah not the Most c) Maslahah Mursalah
- Based on the needs of society,
Just of judges!” d) Istihsan
deals with what is best for the
- An-An’am:115 - “And the word of • Legality of Ijtihad is based on the
society and may exceed limits of
your Lord has been fulfilled in truth hadith of Prophet when he sent
moral, virtue and religion.
and in justice. None can alter His Muadh ibn Jabal to Yemen for an
- Equity’s jurisdiction is parallel to
words, and He is the Hearing, the assignment.
common law.
Knowing.”
• Ijma’ ii. New case far’ which a ruling is and those who are heedless of Our
- Definition: to determine, to agree required, signs”
upon something. iii. A common effective cause I’llah • Al-Hajj:78 – “And strive for Allah
- A consensus of opinion. iv. Rule hukm of the original case with the striving due to Him. He
- A unanimous agreement of the to be extended to a new case. has chosen you and has not placed
mujtahidun of the Muslim E.g.: Analogy of drinking wine to upon you in the religion any
community of any period following narcotic drugs. difficulty. [It is] the religion of your
the demise of Prophet on any father, Abraham. Allah named you
issue. • Masalih Mursalah "Muslims" before [in former
- Ensures the correct interpretation - Definition: benefit or interest, scriptures] and in this [revelation]
of verses of Quran, Sunnah and unrestricted public interest. that the Messenger may be a
legitimate use of ijtihad. - Consists of considerations which witness over you and you may be
secures a benefit or prevents witnesses over the people. So
• Qiyas harm. (Imam Al-Ghazali) establish prayer and give zakah
- Literal: measuring or ascertaining - Underlying basis of maslahah is to and hold fast to Allah . He is your
the length, weight or quality of uphold the higher objectives of protector; and excellent is the
something. Shariah (maqasid Shariah). protector, and excellent is the
- Technical: a legal exercise of - Issues that never took place helper.”
comparing with a view of during the time of the Prophet. • Pre-requisites of Masalih
suggesting equality or similarity - E.g.: the need for currency, Mursalah:
between two things. establishment of prison, i. must be genuine,
- An extension of Shariah ruling compilation of Quran. ii. Must be general,
from original case to a new case - Authorities: iii. Not in conflict with a clear nass.
provided that the latter has the • Yunus:7 – “Indeed, those who do
same effective cause as the not expect the meeting with Us
former. and are satisfied with the life of
- Essential requirements of qiyas: this world and feel secure therein
i. Original case asl’,
 • Istihsan based on public interest, equity 1. Matters are determined
- Literal: to deem something and justice. (istihsan) according to intention
preferable. 2. Hardship begets facility
- Technical: method of exercising MECHANISM FOR EQUITY IN ISLAM 3. Harm shall not be inflicted nor
personal opinion (ra’y) in order to • The objectives of the application of reciprocated
avoid any rigidity and unfairness equity in Islam lie in the mission to 4. What is certain cannot be
that might result from literal achieve Maqasid Shariah removed by doubt
application of the law. (protection of religion, life, reason, 5. Custom is arbitrary
- E.g.: if enforcing the existing law lineage and property).
may prove to the detrimental in • The means on how equity is MATTERS ARE DETERMINED ACCORDING
certain situations, departure from derived in Islam can be seen in the TO INTENTION
it may be the only way of attaining application of Ijma’, qiyas, istihsan • Definition of intention: the will
a fair solution to the problem. and masalah mursalih. directed towards an action.
• A qadhi can only exercise equality • Origin of maxim:
APPLICATION DURING EARLY ISLAM after he has exerted himself to - Narrated by Umar r.a, Prophet
• There were many occasions where search answers in Quran and said: “Deeds are judged by
Saidina Umar Al-Khattab applied Sunnah. intentions and every person is
equity during his tenure ship. • He cannot dispense justice judged according to his
• e.g.: His advice to Abu Musa when according to his conscience. intentions.”
the latter was appointed as a - This hadith clearly stated that all
judge. ISLAMIC LEGAL MAXIMS deeds are judged according to the
• He also dared to differ from the • Al-Qaqaid al Fiqhiyyah – general intention. The legal implications of
decision of the Prophet whenever principles of Islamic law which can certain deeds are also based on the
he found a basis for his own be applied into various issues of intention.
ijtihad. fiqh and presented in a simple - Narrated by Anas r.a, the Prophet
• e.g.: He did not enforce hudud format. said: “There is no deeds to those
penalty of amputation during the • Five major maxims: who have no intention.”
widespread of famine. It was made
 • Application: - Al- Baqarah: 185 “…Allah wants individual, society, environment or
- Found something on the street – ease for the a you and He does not any other things shall be avoided.
takes the object with the intention want hardship for you…” - All necessary measures should be
of returning it to the owner, he is • Applications: taken to prevent any kind of harm
considered as the keeper (amin) of - Rukhsah: Concession under ii. Any harm inflicted should not be
the item but if he intends to keep exceptional circumstances in responded or revenged by
the item for himself, he is Islamic law. inflicting another harm.
considered to be a person - E.g.: Shortened and combined -If harm is done to A, A can
wrongfully appropriating property form of solat, praying zuhr instead demand his right through process
(ghasib). of Jumaat prayer at time of travel. of law. B damaged A’s property. A
- Rental contract – normal cannot under any circumstances
HARDSHIP BEGETS FACILITY circumstances, once entered into damage the property of B but he
• Any ruling which implementation contract, cannot cancel it but if he may go to the court to be
causes hardship to a person for a has to travel for certain reasons, he compensated.
specific acceptable reason, then is allowed to cancel it. (because • Origins:
there are alternatives and ways out forcing a person to continue paying - Prophet said: “Harm shall not be
that can be resorted to in order to the rental when he is not inflicted nor reciprocated.”
overcome the difficulties and occupying the premise will amount - Al- Baqarah: 195: “…make not
hardship. to hardship). your own hands contribute to your
• Hardship here refers to hardships destruction…”
that surpass the normal limit and HARM SHALL NOT BE INFLICTED NOR • Application:
ability of a person to perform them RECIRPOCATED - If anyone sells anything that could
such as hardship of travel or • General maxim indicating the rot quickly such as fruits and the
sickness. importance to remove all kinds of buyers disappear before making
• Origin: harm. payment and before receiving the
- Al- Hajj: 78 “…He did not make • 2 parts: items which he has ordered earlier,
any difficulty for you regarding the i. Harm should not be inflicted – all the seller can revoke the sale
religion…” kinds of harm whether it involves
 contract and sell it to another anything has come out of it or not, • Application:
person. he should not go out of the - Practice of people in certain
mosque unless he hears any sound places to divide dowry in marriage
WHAT IS CERTAIN CAN’T BE REMOVED BY or gets any smell. (Muslims). contract. Dowry paid when
DOUBT • Application: contract is concluded or dowry
• A fact established by law or proven - Ablution - if he is certain that he paid at a later period of time.
with evidence will remain so until is in the state of ablution, he is - Transactions that is concluded
there is another certainty that considered to have ablution until with the utterance of the word
removes it. there is evidence or indication offer and acceptance in certain
• Any doubt that occurs when showing otherwise. custom.
certainty prevails will have no
power to remove the certainty . CUSTOM IS ARBITRARY
• Likewise, if something has not • Custom – practice of the people
been established with certainty, it whether in their actions or sayings,
will remain so until proven regardless of whether they are the
otherwise. general practices of the people or
• This is because doubt, is weaker practices of certain group of
than certainty on which it is people.
founded. Doubt thus, cannot • These practices have the authority
contradict certainty. and can be specify a general
• Origins: matter or restrict an unrestricted
- Yunus:36 - “But most of them matter.
follow nothing but fancy: truly • Origins:
fancy can be of no avail against - Al-A’raf:199 - “ Keep to
truth.” forgiveness, enjoin urf and turn
- Hadith: “if anyone of you feels away from the ignorant.”
anything in his or her stomach and
then he is confused or whether