MICHAEL JOHN B.

ANDOHUYAN
Bachelor of Laws 5A
Jose Maria College of Law

SHARIAH LAW FINAL BRING HOME EXAMINATION

1. State the Extraneous Sources of Shariah Law and explain their

importance in the realm of Shariah Law.

Answer:

The extraneous sources of Shariah Law and its importance in its realm
are as follows:

1. Legal Fiction assumes for truth what is either false, or at least is or at

least is probably false as true;

2. Legal Maxims is an establish principle or proposition. It is a principle

of law universally admitted as being just and consonant with reason;

3. Legislation, under Islamic Law, is the extension of the Divine Laws by

way of Qiyas (anology based on the text of the Quran, and the Hadiths)
that subsequently acquires the characteristic of an Ijma or consensus of
the jurist, mujtahids or those in authority, person delegated the powers
to legislate through their consensus, or concerted deliberation and
humanity in adopting a certain rule of conduct as binding; and

4. Customs are used to denote customary laws.

5. What is meant by “legal fiction” as source of Shariah Law and state

the limitations in its application.

Answer:

Legal fiction means the legal assumption that something which are or
may be false is true.
Limitations:
1. That which is impossible shall not be feigned;
2. That no fiction shall be allowed to work an injury; and
 3. A fiction is not be carried further the season which
introduced it necessarily require.

6. Kindly distinguish the concept of “custom” as understood in Shariah

Law Tradition and that in Civil/Roman Law Tradition.

Answer:

Ada or Urf literally means custom or usages; technically, it is used to

donate customary laws.

Customary laws deal with standard of community that has long been
established in a given locale. However, there are some differences when
it comes to custom laws in Shariah Law tradition and Civil Law Tradition.

7. Kindly distinguish “hukuk” and “wajibat” and state their importance

in Shariah Law.

Answer:

Hukuk literally means right, while wajibat literally means obligation.

Hukuk is the power which a person may exercise over another for the
performance of a prestation, or inquired the compliance of an act,
pursuant to a contract or as enjoined by law.

As to its classification, hukuk is classified into: (1) Hukuk Allah (Right of

God), (2) Hukuk Al-Ibad (Right of man of private right, (3) Common or
Mixed Rights; while wajibat is classified into: (1) Obligations arising from
law, (2) Obligations aarising from declararion of man’s intention, (3)
Obligations deriving from man’s act infringing another’s right or causing
damage or injury to another’s personal safety, right to do lawful acts,
reputation, family rights, ownership and possession.

8. What are the so-called subsidiary sources of Shariah Law and how it
is differentiated with extraneous sources of Shariah Law?

Answer:

Subsidiary sources of Shariah Law and its distinguishment with

extraneous sources of Shariah are:
1. Ijtihad which is the way of interpreting Shariah legislation, while
legislation are rules based on Quran;
2. Ijma which means collection or gathering together, and of composing
and settling a thing, which has been unsettled and hence,
determining and resolving upon an affair and also agreeing or limiting
in opinion, while Customs is the practice that must be observed by
muslims;
3. Qiyas which is the measuring by or comparing with, or judging by
comparing with a thing, while Legal maxims are the general rule;
4. Istihan which means considering a thing to be good, or preferring it,
or equitable preference. Technically, it is referred to as the exercise
of private judgement, not on the bases of analogy, but on that of
public good or the interest of justice, or seeking the most solution,
while Legal Fiction is the legal assumption that something which are
or may be false is true.

9. What is “Fi’il”?

Answer:

Fi’il is an act.

Muslim jurisprudence classified man’s act into two general

categories, namely: (1) Natural acts (hissi) and (2) jurists acts
(shara’i).

Natural acts are physical acts (afalul-jawarih) or acts of the human

body externally manifested by mean of the utterrancess (gaul) or
conduct (amal), as well as acts of the mind (afalul-gaib), intend when
not manifested by external act. External acts that produce cause and
effect cam be regulated by law, while acts of the mind cannot be the
objective of regulation as no one except the Divine Providence can
find out what’s a person’s mind.

On the other hand, juristic act may be described as an aggregate of

more than one natural act of one or more persons which the law
treats as one act, such as iman or acts of faith or belief, salat or
prayers, a contract of sale or hire or an offense of sedition and the
like.
 Juristic Acts are divisible into:
a. Insha’at (originating acts) which is either revocable or irrevocable;
b. Akh-barat (information); and
c. Istiqadat (acts of faith).

10. Define the concept of “Dhimmah”.

Answer:

Dhimmah is the legal act of a person.

Legal capacity (dhimma) is therefore defined as the quality by which

person (mukallaf) becomes fit for what he entailed to (ma lahu) and
what he is subject to (ma alaihi). It is the legal capacity for the inference
and acquisition of right and obligations.