Examiners’ reports 2017

Examiners’ reports 2017

LA3028 Introduction to Islamic law

Introduction
This examination followed the pattern of previous years with students given the
option of answering any four questions from a list of eight questions covering
different topics from the syllabus. Questions 1 to 7 were essay-based questions,
while question 8 was a problem-based question. The pass levels correlated with
previous results and, overall, the performance was generally pleasing. It was
evident that the well-prepared candidates would have found the examination paper
a fair test of relevant topics covered in the module syllabus.
The scripts in the first class range were of very high quality and demonstrated not
only the required depth of knowledge and understanding of each question
answered but also appropriate examination skills by answering each of the four
questions specifically and fully. The scripts in the upper and lower second class
range also demonstrated the required depth of knowledge and understanding but
with different degrees of deficiencies in some of the answers here and there.
Some students spent too much time on irrelevant introductory parts of their answers
before focusing on the specific question asked. There was also apparent lack of
understanding of some questions by some candidates. It is important for students to
ensure that they understand each question and focus on answering the question
rather than providing long introductions that were not at the core of the question. It
was also disappointing to see that some students had spent too much time in
answering the first two or three questions of their choice very well, but then had
apparently run out of time with the remaining one or two questions. This relates to
examination skills rather than lack of knowledge, and students should learn to
distribute their time equally to ensure that they are able to answer four full questions
as required. In some cases, students also failed to answer all the aspects of the
questions as was required.
Across the board, most of the students answered essay-based questions, which
normally require in-depth analyses and relevant illustrations. Only a few students
attempted the problem-based question, which, although technical, was a
straightforward question on inheritance, with some of them demonstrating clear
mastery of the technicalities of the question.

Comments on specific questions

Question 1
Discuss the foundations and historical evolution of Islamic law and the
continued relevance of Islamic law in the modern world.

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General remarks
This question requires demonstration of sound understanding of the historical and
continued development of Islamic law. Many of the answers were very good,
covering the historical development and continued relevance of Islamic law quite
coherently as explained in the section on a good answer below. However, some of
the scripts were also quite vague, lacked coherence and only discussed how
Islamic law reformed Arab tribal laws. It was disappointing to see that many of
answers to this question were not very in depth, as was expected.
Law cases, reports and other references the examiners would expect you to use
This question requires no reference to specific case law but candidates could refer
to any decisions of relevant courts in any modern Muslim-majority state to illustrate
the continued relevance of Islamic law in the modern world.
Common errors
The most common errors were the lack of required depth and lack of coherent
demonstration of understanding of the different stages of the development of
Islamic law. In answering this question, it appeared that many of the candidates
were very eager to show that Islamic law had reformed the Arab tribal laws through,
for example, emancipating women contrary to what existed earlier under Arab tribal
laws. While this could be a relevant illustration of the historical impact of Islamic law
in the Arab world, it was not the substantive core of the question as many
candidates appeared to think.
A good answer to this question would…
Provide a brief but coherent discussion of the historical evolution of Islamic law from
the Prophet’s time to the period of the Orthodox Caliphs, the Ummayyad and
Abbāsid periods through the classical period. The role of al-Shāfi’ī would be
discussed due to his contribution to the development of Islamic jurisprudence. A
brief discussion of the emergence of the different Schools of Islamic jurisprudence,
the post-classical period and the modern era with illustration of the continued
application of Islamic law in the Muslim world today and its relevance in modern
international law as covered in the syllabus would also be expected.
Poor answers to this question…
generically discussed that Islamic law developed from a tribal system of law into a
juristic system of law and brought reforms into Arabia and the modern world, with
some going on to illustrate this by examples of how Islamic law regulated unlimited
polygamy in the Arab world and also gave women the rights they did not have
earlier under the old Arab tribal laws.
Student extract
Islamic law has come and brought about many reforms within the Muslim
world in the form of introduction of new laws or restrictions imposed on
general practices. For example … before the advent of Islam, unlimited
polygamy was widely practised within the Arab tribes … which was then
restricted immensely by Surah 4 verse 3 of the Qur’an which stated that a
man may not marry more than four concurrent wives. … It is not only women
who have gained through the evolution of Islamic laws but those who have
benefitted include children, relatives, husbands and so on.
Comments on extract
This extract does not specifically answer the question but only discusses the
historical consequence of Islamic law on Arab tribal laws. While this may be useful
to illustrate the impact of the development of Islamic law, it fails to answer the
question in any substantive way.

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 Examiners’ reports 2017

Question 2
Identify the ‘primary’ sources and ‘secondary’ sources of Islamic law and
analyse each of the sources and explain the relationship between them.
General remarks
This is a basic question about the sources of Islamic law. Expectedly, most of the
candidates who answered this question demonstrated appropriate knowledge and
understanding of the question as covered in the syllabus. Some of the excellent
answers also provided some critical engagement, particularly with the secondary
sources.
Law cases, reports and other references the examiners would expect you to use
This question requires no reference to specific case law but candidates could refer
to any decisions of relevant courts in any modern Muslim country to illustrate the
use and relationship between the sources as was done by some of the candidates.
Common errors
Not answering the second part of the question, which required explanation of the
relationship between the primary and secondary sources was a common error.
Many students adequately listed and discussed the primary and secondary sources
individually but failed to explain how they related to one another. A few also made
the mistake of classifying the Qur’an as the primary source and the Sunnah as the
secondary source instead of indicating the Qur’an as the first primary source and
the Sunnah as the second primary source, with ijmā’ and qiyās being the secondary
sources respectively.
A good answer to this question would…
identify the Qur’an and the Sunnah as the primary sources. It would analyse the
Qur’an as a divine revelation, discuss its scope as a source of Islamic legislation,
the nature of its verses and its rules of interpretation. This would then lead into the
analysis of the Sunnah as a supplement to the Qur’an, its nature as the second
primary source of Islamic law, the basis of its authority, its scope and also discuss
hadith as the vehicle of the Sunnah. The immutability of both the Qur’an and the
Sunnah must be emphasised, with hadith fabrication and authenticity discussed. It
will then discuss the need for the development of ijmā’ and qiyās as secondary
sources of Islamic law and the basis of authority for each of them. In discussing the
relationship between the sources, a good answer would illustrate the jurisprudential
hierarchy of the sources and the process of first seeking authority from the Qur’an,
then the Sunnah and, if necessary, moving on to ijmā’ and qiyās to arrive at an
Islamic ruling on any specific issue, giving relevant examples.
Poor answers to this question…
merely list the Qur’an, Sunnah, ijmā’ and qiyās as the four sources of Islamic law
without classifying them into primary or secondary sources or discussing the
relationship between them as was required by the question.
Student extract
The primary sources of Islamic law are the Qur’an and the Sunnah. The
Qur’an is the Holy Book and contains the divine word of God. Though it is
criticised that out of the whole book only 6-700 verses contain legal
principles, the Qur’an is more of a codification of a way of life than legal
principles. Islamic law is based on the verses taken out from the Qur’an, for
example the verse: ‘there is no harm in Islam’ relates to the English concept
of tortious liability and the verse ‘Muslims abide by your stipulations’ is the
basis of the freedom of contract in Islamic law. … The Qur’an was revealed
to the Prophet (PBUH), however its compilation happened during the
caliphate of Uthman. It cannot be altered by humans and thus it is the most

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 primary and authentic source of law in Islam. … Another primary source are
the sunna and hadith. Sunna is the precedent set by the Prophet (PBUH) and
hadith are the sayings of the Prophet. Wherever the Qur’an is silent on a
matter, or offers little insight, then the sunna and hadith should be referred to.
However before following a hadith, it should be made sure that it is authentic.
After the death of the Prophet (PBUH) many a hadith have been fabricated
and only the ones with sound or good authority should be followed. A weak
hadith should not be followed as it usually is fabricated. The Prophet (PBUH)
said that if any saying of mine contradicts the Qur’an, then you should follow
the Qur’an instead of the saying’. The secondary sources of Islamic law are
ijma’, qiyas and ijtihad.
Comments on extract
This is an introductory part to a candidate’s answer and it correctly identified the
primary and secondary sources, with some slight confusion in the analysis.
Nevertheless, it demonstrates good knowledge of the subject and also addresses a
basic relationship between the Qur’an and Sunnah in this introductory part, albeit
the distinction between Sunnah and hadith is not very accurate. In the remaining
part of the answer it went on to give a more detailed analysis of how the sources
relate to one another. It represents an example of a good introductory part to a
strong and appropriate answer depending on the depth of further analysis of the
points.
Question 3
Discuss the concept of Ijtihād in Islamic law and the juristic debate about the
closure of the gate of Ijtihād, explaining the relevance and application of
Ijtihād in modern times.
General remarks
This question was one of the questions answered by most of the candidates and
most of them did well in it. It is a pretty straightforward question on ijtihad, which is
an important concept in Islamic law and which every student of Islamic law is
expected to understand well as was demonstrated by most candidates who
answered this question.
Law cases, reports and other references the examiners would expect you to use
This question requires no reference to specific case law but candidates could refer
to any decisions of relevant courts in any modern Muslim-majority state to illustrate
the use of ijtihad in modern times, as was done by some candidates.
Common errors
Not appreciating that the question consisted of three aspects was a common error.
Some of the answers only analysed the concept of ijtihad under classical Islamic
law but did not fully discuss the juristic debates about the closure of the gate of
ijtihad, while some did not explain the relevance and application of ijtihad in modern
times.
A good answer to this question would…
address all the three aspects of the question by discussing the concept of ijtihad,
the debates about the closure of the gate of ijtihad and its continued relevance in
modern times. It would discuss the meaning and nature of ijtihad and its use as a
means of deriving the law from the sources. The jurisprudential debate about
whether or not the gate of ijtihad has been closed would be discussed referring to
relevant academic views in that regard. The tools of ijtihad, the different levels of
ijtihad, who has the capacity to perform ijtihad and the qualifications of the mujtahid
would all be discussed.

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Poor answers to this question…

lacked depth and did not cover all the three aspects of the question.
Student extract
Ijtihad is one of the secondary sources of Islamic law that relies on jurists
using their individual reasoning to come to a decision regarding a religious
matter. … Ijtihad is an interpretative tool the jurists can use to reach a
conclusion on some matter. However, by the tenth century, the Sunni schools
of law declared that the gate of ijtihad are drawing to a close as most of the
religious matters and principles had been settled. The Shia however
disagreed with this and the era of Islam entered a period of stagnation during
this time. However, ijtihad is still used in modern times to make reforms and
changes to Islamic law. In Tunisia, the reformers have used ijtihad to ban
polygamy, the reason for this is that the Qur’anic verse relating to polygamy
states that Muslim men should only marry polygamously if they can equally
maintain all their wives … a later verse of the same surah stated that no man
can ever treat his wives equally, so the reformers argued against the right to
marry more than one wife concurrently…
Comments on extract
Even though this extract demonstrates understanding of the concept of ijtihad, it did
not provide much detail about the concept. Also the analysis on the closing of the
gate of ijtihad is quite general and does not discuss the different views of the jurists
in much detail. Although it referred to the differences between the Sunni and the
Shia on the closing of the gate of ijtihad, it failed to identify that there are also
differences even amongst classical and modern Sunni jurists in that regard.
Question 4
Analyse the classification of penal offences under classical Islamic law and
its continued application in the modern Muslim world with particular
reference to relevant legislation in Pakistan.
General remarks
It is obvious that this question has two aspects. First, students were expected to
demonstrate understanding of the classical Islamic law classification of penal
offences into hudūd, qisās and ta’zīr and secondly discuss the continued application
of Islamic penal laws in relevant Muslim-majority states with particular reference to
Pakistan. It was disappointing to see that a large number of the answers were quite
weak in their analysis of the first aspect, conflating qisās and ta’zīr together into one
category and classifying the penal offences only into hudūd and ta’zīr. The apparent
reason for this was that many of the scripts made the Pakistan Hudud Ordinances
of 1979 their main point of reference, without appropriate classification of the
offences under classical Islamic law as was required by the question. On the other
hand, some of the scripts also omitted discussing the second aspect relating to the
continued application of Islamic penal laws in parts of the Muslim world and
reference to the relevant legislation in Pakistan.
Law cases, reports and other references the examiners would expect you to use
With reference to the continued application of Islamic penal laws in parts of the
Muslim world, students would be expected to make reference to cases such as the
1996 Saudi Arabian case of McLauchlan v Parry, while with respect to Pakistan the
case of Safia Bibi v The State among others ought to be cited. Also, reference to
the 1979 Pakistan Hudud Ordinances, the Pakistan Penal Code as well as the 2006
Protection of Women (Criminal Law Amendment) Act are relevant legislation to be
cited in a strong answer.

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Common errors
A large number of the answers omitted qisās as a specific category of penal
offences under classical Islamic law. Some scripts did not cover all the aspects of
the question.
A good answer to this question would…
analyse the hudūd, qisās and ta’zīr offences and the punishments assigned to them
under classical Islamic law. It would also identify the differences between the
categories of offences. It would discuss the scope and application of Islamic penal
laws in relevant modern Muslim-majority states such as Saudi Arabia and, with
specific reference to Pakistan, provide an analysis of the scope and application of
the Pakistan Hudud Ordinances and relevant debates in that regard, with reference
to relevant cases.
Poor answers to this question…
lacked depth of analysis, especially by classifying qisās offences as ta’zīr. Some of
the poor answers also did not discuss the application of Islamic penal laws in
Pakistan as was required by the question.
Student extract
Islamic penal law is classified into two offences. The first is the hadd offences
and the punishments of which is given in the Qur’an such as apostasy, zina,
theft and intoxication, whereas the second is ta’zir offences; these are
decided on the discretion of the judges. These includes sexual acts, hiraba,
qazf.
Comments on extract
This is an example of a poor analysis of the categories of penal offences under
Islamic law. It leaves out the category of qisās, which covers the offences of
homicide and bodily injuries. The script went on to analyse homicide and bodily
injuries as part of the ta’zīr offences. It is clear in the extract that some hudūd
offences are wrongly classified as part of the ta’zīr offences.
Question 5
Discuss the different methods by which a marriage may be dissolved under
Islamic law, analysing the consequences of each method on the parties,
referring to relevant juristic views.
General remarks
This question on the different methods of marriage dissolution under Islamic law
was well answered by most of the candidates who attempted the question. The
main issue was the different degrees of the depth of analysis provided by different
candidates in their answers to it.
Law cases, reports and other references the examiners would expect you to use
This question requires no reference to specific case law, but candidates could refer
to any decisions of relevant courts in any modern Muslim country to illustrate the
application and consequence of each method of marriage dissolution discussed.
Common errors
Some of the answers lacked the depth of analysis required. There was also some
mix up in the discussion of the different types of talāq as well as the analyses of
faskh and judicial khul’ by some of the answers.
A good answer to this question would…
discuss the concepts and nature of each of the methods of marriage dissolution,
particularly talāq, khul’ and faskh. It would discuss the relevant situations when
each of these methods may be used to dissolve a marriage and the procedure for

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each one. It would also identify and discuss the consequences of each of the
methods in relation to the husband and the wife, in terms of issues such as post-
divorce maintenance and waiting period respectively. It would also make reference
to the different reforms to the classical rules in relevant family law legislation of
modern Muslim-majority states.
Poor answers to this question…
lacked the depth of analysis stated above.
Student extract
There are several methods by which a Muslim marriage may be dissolved,
including talaq, khula, judicial khula and judicial faskh. Each of these has
different effects on the parties, particularly with relevance to which party has
to pay compensation to the other party. The most common method by which
marriages are dissolved in the Muslim world is by the husband exercising his
right of talaq. The word talaq literally means to separate. The Qur’an states in
2:229 ‘… hold together equitably or separate with kindness’. Doi relates that
the Prophet (PBUH)’s much quoted saying to this effect was that ‘of all
permitted things, divorce is the most reprehensible’ … There are several
types of talaq. Talaq as-sunna is the more meritorious form which offers the
opportunity of revocation…
Comments on extract
This is an example of a good answer that provides a good introduction to the issues
and went on to demonstrate in-depth knowledge and understanding of the different
identified methods of dissolving a marriage and the consequences of each method
as required by the question.
Question 6
Analyse the concept of a ‘marriage guardian’ as a condition of validity of
marriage under Islamic law and the juristic views about whether an adult
Muslim woman can contract her own marriage without the consent of a
guardian.
General remarks
This question requires demonstration of sound understanding of the nature and
concept of marriage guardianship under Islamic law. It has two elements; the first is
to analyse whether or not marriage guardianship is a condition for the validity of
marriage and the second is to tackle the issue of whether or not an adult Muslim
woman can contract her own marriage without the consent of a guardian.
Candidates’ answers to this question ranged between excellent to poor.
Law cases, reports and other references the examiners would expect you to use
Abdul Waheed v Asma Jehangir (Saima Waheed case).
Common errors
Lack of depth or answering just one aspect of the question was a common error.
A good answer to this question would…
first analyse whether or not marriage guardianship is a condition of validity of
marriage, who needs a guardian and who can be a guardian according to the
different Schools of Islamic jurisprudence. This would be followed by the discussion
of whether an adult Muslim woman requires the consent of her guardian as a
condition of validity of her marriage. It would indicate the differences of opinion
among the classical Islamic jurists on the subject, identifying, particularly, the Hanafi
and Ithna Ashari Schools’ position that an adult Muslim woman may legitimately
contract her own marriage without her guardian’s consent, stating the conditions
thereby, in contrast to the views of other Schools of Islamic law on the subject.

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Reference to the Saima Waheed case is imperative to illustrate the Hanafi position
on the subject.
Poor answers to this question…
lacked in-depth analyses as was required, with some answering only one aspect of
the question.
Student extract
The question requires a discussion on the question of consent of the woman
with regards to different schools and to analyse whether or not the presence
of marriage guardian is essential for the validity of the marriage contract. A
Muslim marriage is in essence a solemn civil contract between a man and a
woman…. On whether a guardian of some kind is necessary, … the Shafi
and Maliki schools consider the approval of the guardian as an essential
element in a marriage, while the Hanafi and Hanbali schools do not insist on
this. Nevertheless, the general consensus of jurists is that the woman should
not conclude her own marriage contract … even when she possesses full
legal capacity. Only the Hanafi do not require that a guardian must conclude
the contract on behalf of the woman unless she is of no or limited legal
capacity. In both Shafi and Maliki law, even an adult virgin is taken to have no
capacity to conclude her own contract of marriage. She needs the consent of
her guardian. Furthermore, if the guardian is the father or the paternal
grandfather, he may contract her into marriage without her consent. … The
woman only becomes capable of contracting herself in marriage when she
ceases to be a virgin. … The Hanafis and Ithna Asharis require that any sane
adult can contract her own hand in marriage. However, the right of the female
is not absolute under the Hanafi doctrine. If she contracts for less than the
proper dower, her guardian may demand that the dower be paid or the
marriage be dissolved. Furthermore, under the doctrine of equality (kafa’a),
her guardian may seek a dissolution of her marriage if she marries a man
who is not equal to her according to the law.
Comments on extract
This is a demonstration of clear knowledge of the subject and understanding of the
relevant issues. The answer went further to substantiate the issues with relevant
case law such as the Saima Waheed case amongst others. It had started well by
identifying what the question required and then went on to answer the question in a
coherent way, considering the different Schools of Islamic jurisprudence. Even
though there was some mix-up with some of the stated jurisprudential views, this
did not adversely affect the quality of the answers. It is an example of an
appropriate approach to answer the question.
Question 7
Discuss the different categories of stipulations in a marriage contract under
Islamic law, explaining the consequence of each category on the marriage
contract.
General remarks
This question requires demonstration of sound knowledge and understanding of the
nature and concept of stipulations in a marriage contract and its different categories
under Islamic law. Disappointingly, it was one of the questions that a large number
of candidates did not answer correctly. Rather than identifying and discussing the
three main categories of stipulations, namely valid, void and voidable or invalidating
stipulations, many of the candidates just went on to discuss the general contents of
a marriage contract, some of which were relevant to the question and some of
which were not.

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Law cases, reports and other references the examiners would expect you to use
This question requires no reference to specific case law but candidates could refer
to any decisions of relevant courts in any modern Muslim country to illustrate the
consequence of each type of stipulations in a marriage contract.
Common errors
A common error was not specifically identifying the different categories of
stipulations but just generally discussing the contents of a marriage contract.
A good answer to this question would…
identify and analyse the three main categories of stipulations (valid, void, voidable
stipulations) and the principles underlying each category of stipulations. Ideally, it
would give examples of each type of stipulation as illustration. It would discuss the
opinions of the different Schools of Islamic jurisprudence and possibly the opinion of
which School has been mostly adopted in modern reforms on marriage stipulations
in the Muslim world today.
Poor answers to this question…
were generic and lacked depth, merely discussing a few contents of a marriage
contract without analysing or discussing the different categories of stipulations and
the consequence of each category as required by the question.
Student extract
The Muslim marriage is in essence a solemn contract between a man and a
woman. It is concluded by an offer and acceptance between the parties in the
presence of witnesses. There are different categories of stipulations in
marriage contracts, including valid, void and invalidating stipulations. Hanbali
law places great emphasis on the fulfilment of contracts, relying on the
Quranic verse 5:1 which states: O you who believe, fulfill all contracts.
Hanbali wives may stipulate against polygamy in their marriage contracts,
and accordingly, their husbands will be entitled to abide by them. This is an
example of a valid stipulation. Failure to comply with a condition in the
marriage contract by the husband will constitute a ground for
divorce/dissolution of the marriage for the wife…Void stipulations are those
which, despite being in the marriage contract, will have no effect. For
example, if the husband stipulates in the marriage contract that no dower
shall be paid to the wife, such a condition will be void and will not thereby
release the husband form his obligation to pay dower to the wife. Another
category of stipulations in a marriage contract include invalidating
stipulations. For example, a condition in the marriage contract to set a time
limit for the marriage. Closely linked to this is the concept of muta’ (temporary
marriage). All Muslims other than the Shi’i group, Ithna Ashari, consider the
muta’ marriage unequivocally forbidden.
Comments on extract
This is a good approach to answering this question. The candidate started by
clearly identifying the three main categories of stipulations and then went on to
analyse each one of them comprehensively in the answer, discussing the
consequence of each category and providing examples and relevant illustrations to
fully answer the question. Starting the answer in this way laid a very solid
foundation for a strong answer to the question as was required.

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Question 8
Ahmad died leaving behind the following relatives: his wife; his mother; his
father; one son; one daughter; one full brother; and one full sister.
Explain, citing relevant authorities, the specific share of each of these
relatives in his Estate under the Sunnī scheme of inheritance, indicating the
capacity in which each entitled person would inherit.
General remarks
This was the only problem-based question in the examination requiring
demonstration of understanding of the rules of Islamic inheritance and specific
shares of particular heirs and the capacity in which they inherit under Sunni law. It is
a clear and straightforward question that could be easily answered by students who
have understood the rules of inheritance. Only a few attempted this question.
Law cases, reports and other references the examiners would expect you to use
This question requires no reference to specific case law but candidates could refer
to any decisions of relevant courts in any modern Muslim country to illustrate the
application of the relevant rules of inheritance.
Common errors
Some students got the specific shares for some of the indicated heirs wrong.
A good answer to this question would…
identify the distribution of Ahmad’s Estate as follows:
1. His wife will inherit as a Qur’anic heir and receive 1/8 of the Estate because
Ahmad had children. The authority for this is Q4:12.
2. His mother will inherit as a Qur’anic heir and receive 1/6 of the Estate
because Ahmad has children. The authority for this is Q4:11.
3. His father will also inherit as a Qur’anic heir and receive 1/6 of the Estate
because Ahmad has children. The authority for this is Q4:11.
4. His son will inherit as a residuary heir and convert the daughter also into a
residuary heir, with the son taking double of the daughter’s share. Thus the
son and daughter will share the remaining 13/24 of the Estate, with the son
taking 26/72 of the residue and the daughter taking 13/72. The authority for
this is Q4:11 and the Sunnah.
5. Both his brother and sister would get nothing as they are excluded from
inheritance by the presence of the son.
Poor answers to this question…
failed to allocate accurate shares to each of the heirs or did not indicate in which
capacity each individual inherited or did not indicate the authority for the shares.

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