Friday, December 16, 2011
Thursday, December 15, 2011
Wednesday, December 14, 2011
Saturday, December 10, 2011
Islamic Jurisprudence Discuss Sunnah As a Source of Law What are its Kinds Annual.2004, 2007
The Second Source of Islamic Law: The Sunnah
Sunnah
Literally, Sunnah means a clear path or a beaten track but it has also been used to imply normative practice, or an established course of conduct. It may be a good example or a bad, and it may be set by an individual, a sect or a community.
In pre-Islamic Arabia, the Arabs used the word 'Sunnah' in reference to the ancient and continuous practice of the community which they inherited from their forefathers.
The opposite of Sunnah is bid'ah, or innovation, which is characterized by lack of precedent and continuity with the past. In the Qur'an' the word 'Sunnah' and its plural, sunan , have been used on a number of occasions (16 times to be precise). In all these instances, sunnah has been used to imply an established practice or course of conduct. To the scholars of Hadith, Sunnah refers to all that is narrated from the Prophet, his acts, his sayings and whatever he has tacitly approved, plus all the reports which describe his physical attributes and character.
The scholars of jurisprudence, however, exclude the description of the physical features of the Prophet from the definition of Sunnah.
Hadith
Literally, Hadith means a narrative, communication or news consisting of the factual account of an event. The word occurs frequently in the Qur'an (23 times to be precise) and in all cases it carries the meaning of a narrative or communication.
In the early days of Islam following the demise of the Prophet, stories relating to the life and activities of the Prophet dominated all other kinds of narratives, so the word began to be used almost exclusively to a narrative from, or a saying of, the Prophet. [Azami, Studies, pp. 1-3 ]
Hadith differs from Sunnah in the sense that Hadith is a narration of the conduct of the Prophet whereas Sunnah is the example or the law that is deduced from it. Hadith in this sense is the vehicle or the carrier of Sunnah, although Sunnah is a wider concept and used to be so especially before its literal meaning gave way to its juristic usage. Sunnah thus preferred not only to the Hadith of the Prophet but also to the established practice of the community. But once the literal meanings of Hadith and Sunnah gave way to their technical usages and were both exclusively used in reference to the conduct of the Prophet, the two became synonymous.
Sunnah coming direct from the Prophet in the form of Hadith through a reliable chain of narrators is a source of l aw.
Proof-Value of Sunnah
The scholars are unanimous to the effect that Sunnah is a source of Shari'ah and that in its rulings with regard to halal (permissible)and haram (forbidden)it stands on the same footing as the Qur'an.' The Sunnah of the Prophet is a proof for the Qur'an, testifies to its authority and enjoins the Muslim tocomply with it. The words of the Prophet, as the Qur'an tells us, are divinely inspired (Qur'an, 53:3).
His acts and teachings that are meant to establish a rule of Shari'ah constitute a binding proof.' The words of the Prophet are proof on anyone who heard the Prophet saying them. As for the generality of Muslims who have received them through the verbal and written reports of narrators, they need to ascertain their authenticity. The proof of authenticity may be definitive, or it may amount to a preferable conjecture; in either case, the Sunnah commands obedience.All the rulings of the Prophet, especially those which correspond with the Qur'an and corroborate its contents, constitute binding law.
In more than one place, the Qur'an enjoins obedience to the Prophet and makes it a duty of the believers to submit to his judgment and his authority without question.
The Qur'an stresses that submission to the authority of the Prophet is not a matter of mere formalistic legality but is an integral part of the Muslim faith.
Types of Sunnah
The Speech of Prophet Muhammad (peace be upon him)
The speech of Prophet Muhammad (peace be upon him) refers to his sayings. For example, he said: “"Actions are judged by their intentions; everyone will be rewarded according to his/her intention. So whoever migrates for the sake of God and His Prophet then his migration will be noted as a migration for the sake of God and His Prophet. Conversely, one who migrates only to obtain something worldly or to marry a woman, then his migration will be worth what he had intended." [Bukhari].
The Prophet (peace be upon him) also said: “"Whoever believes in God and the Last Day, should say something good or keep quiet. "
The above two accounts clearly show that the Prophet (peace be upon him) spoke these words. Consequently, these are known as his speech.
The Actions of Prophet Muhammad (peace be upon him)
His actions pertain to anything he did, as authentically reported by the Companions.
For instance, a companion of the Prophet, Hudhayfah reported that whenever the Prophet (peace be upon him) got up at night, he would clean his teeth with a tooth-stick.
Also his wife, A'ishah reported that the Prophet (peace be upon him) loved to do everything starting with the right side - putting on shoes, walking, cleaning himself, and in all his affairs generally.
The Silent Approvals of Prophet Muhammad (peace be upon him)
His silent approvals on different issues meant his not opposing or minding what he saw, heard or knew of the actions or sayings of his Companions.
On one occasion, for example, the Prophet (peace be upon him) learned of actions of some of his Companions from other Companions. Soon after the battle of Khandaq, Prophet Muhammad (peace be upon him) gave the order to the Companions to move quickly to surround the tribe of Banu Quraydah, encouraging them to hurry so that perhaps they would pray 'Asr (the late afternoon prayer) there. Some of the Companions of the Prophet (peace be upon him) responded immediately and left without praying 'Asr. They arrived after sunset, pitched camp and prayed 'Asr- after sunset. At the same time another group of Companions formulated their judgment differently. They thought that the Prophet (peace be upon him) was merely encouraging them to hasten to their destination, rather than to delay 'Asr until after sunset. Consequently, they decided to stay in Madinah until they had prayed 'Asr. Immediately thereafter, they hastened towards the tribe of Banu Quraydhah. When the Prophet (peace be upon him) was told of how each group responded differently to his announcement, he (peace be upon him) affirmed both judgments.
Everything authentically narrated concerning the Prophet's complexion and the rest of his physical features are also included in the definition of sunnah.
Umm Ma'bad described what she saw of the great Prophet (peace be upon him). She said: “"I saw a man, his face radiant with a bright glow, not too thin or too fat, elegant and handsome. His eyes had a deep black hue with long eyelashes. His voice was pleasant and his neck long. He had a thick beard. His long black eyebrows were beautifully arched and connected to each other. In silence, he remained dignified, commanding utmost awe and respect. When he spoke, his speech was brilliant. Of all people he was the most handsome and the most pleasant, even when approaching from a distance. In person, he was unique and most admirable. Graced with eloquent logic, his speech was moderate. His logical arguments were well organized as though they were a string of gems. He was not too tall or too short, but exactly in between. Among three, he appeared the most radiant and most vibrant. He had companions who affectionately honored him. When he spoke, they listened to him attentively. When he gave orders, they were quick to execute them. They rallied around him guarding him. He never frowned or spoke frivolously."” [Hakim]
Along with his physical features, his Companions also described his habits and behavior with people. Once Anas reported: “"I served the Prophet of God (peace be upon him) for ten years. Never once did he so much as express any bit of displeasure nor did he ever ask 'Why did you do it?' for something I did or 'Why didn't you do it?' for something I didn't do." ”
From the above we can clearly see that when the term sunnah appears in a general context referring to Prophet Muhammad (peace be upon him) it comprises anything narrated about the Prophet (peace be upon him) and authentically traced to him. Once a Muslim learns of the authenticity of any narration, he/she is obliged to follow and obey it accordingly. Such obedience is mandated by God as He declares «"...and obey God and His Prophet and do not turn away when you hear (him speak)."» [Qur’an 8:20]
Thursday, October 27, 2011
LLB Part On Subject Crimnal Law Notes,Solwed Papers ,Q and Ans Tipcal Perfect For Examination Point of Vieo And Also For Law Concerers
Topic One
Question No 1:- Pleas Define what is Crime? And also explain its historical back ground, Characteristics and causes.
Ans:- Historical Background Of Crime .
In the early ages, when men started living in groups and then in tribes, rules were framed to regulate conduct of members of the group or the tribe. The groups and tribes, with the passage of time became nation or big societies and hence rules which were implemented previously with the Heads of tribes, came to be implemented through states or governments Which ( later on ) set up its machinery (public, courts and jails etc. ) to deal with criminals and punish them. Life and liberty was to be protected by the state.
The crime arose out of the social contacts of individuals where rules of conduct got broken and in serious violations, the violation was termed as crime and society undertook to punish the criminal since it was the duty of the society to protect the society.
Crime is inevitable in any human society. It is an integral part of any human society and it is a primary concern of all of us. It is as old as the society itself.
The idea that people have certain rights being members of the society and these rights were to be protected and safe-guarded so that they may live peacefully together since jungle life came to an end with the gradual civilization of societies. However, the idea that members of the society had certain rights came to be liked with the idea that members of the society had certain rights came to be linked with the idea that the members had co-related duties as well.
DEFINTION OF CRIM
It has been widely accepted that it is impossible to to chalk our a comprehensive definition of crime However, several legal philosophers have tried to define crime in many different ways.
The shortest definition being “Crime is an act or omission forbidden and punishable at law it is harmful to society and special procedure is provided in law to punish the offender”.
Crime is an act of aggression against not only an individual but also against society as a whole. The act or omission is the subject of criminal proceedings, it being a criminal offence. Since it is an offence against the state the state is responsible for the punishment of maintaining eace and order in the society. The object of punishment is the protection of public from crime. Crimes are the act which are prohibited by State and have sanction of punishment behind them.
CHARACTERISTICS OF CRIME /ESSENTIALS ORGAINS
Ideally, a human behavior cannot be called as a crime unless at least seven characteristics are present which are as under.
1. Harm should have been caused. Mere intention is not enough.
2. The harm must be legally forbidden. Anti-social behavior is no crime unless prohibited by law.
3. There must be conduct which brings harmful result.
4. Men’s rea or ‘criminal intent’ must be present.
5. There must be a fusion or concurrence of men’s Rea and conduct. For Example, if a policeman goes to a house to make an arrest and commits theft, he cannot be guilty of trespass through he would be guilty of theft.
6. The harm caused must be a natural consequence of the voluntary act. If one shoots at a person (act ) and the victim dies due to suffocation in the hospital while substantially recovering from wound, no murder,
7. There must be legally prescribed punishment.
CAUSES OF CRIME
There are given as below:-
- Poverty_ Environments
- Dirty surroundings_ slum areas.
- Loose administrative machinery.
- Juvenile delinquency _ broken family etc.
- Lack of education and training.
- Mental abnormality.
- Internal conflicts within society.
- Goals of economic gains by illegal means.
- Social injustice.
- The social pressures like influence of family, friends, neighbors, fellow workers influence criminal behavior.
- Lack social control _ Social disorganization.
LLb Part One Subject Constitutional Law's Notes,Q and Ans, Solwed Last 5Years Papers, Tipcal Notes for LLb Part 1 Examination Point Of Vieo All Notes Made By Profational Law Profesers For Law Students And Also For Other How Can Intrest Or Requed A Gaiednes Of Law
“ Constitutional Law “
Q1:- What is a difference between a Written and an unwritten Constitution ?Explain With Examples. (Annual Papers 2010)
Ans:- Before we discussed about written and unwritten constitution .Its more important that what is the constitution. “A constitution down the general and the fundamental principle on which the powers of state are to be exercised.” “In this sense constitutional law is often described as the fundamental law of the land, Its main object is to reconcile the conflict between the Government and the governed and to define the orbit of the sovereignty.”
“Definition of Constitution”
“According to Black’s Law Dictionary.”
“The organic and fundamental law of a Nation or State which may be written or unwritten, Establishing the character and conception of its Government, lying the basic principles to which its life is to be conformed, organizing the Government, and regulating the distributing and limiting the function of its different departments and prescribing the extent and manner of the exercise of sovereign powers.
“Classification of Constitutions”
Though some Classical writers classified constitution into three categories, namely monarchy, aristocracy and democrat. Such classification is extremely unsatisfactory in the modern context. For that matter no two constitutions can be classified on any single basis. This classification has to be on the basis of different aspects of the constitution. It may be on the basis of the sovereign power being exercised by one Governments often we would classify constitution to be either unitary or federal or it may be on the nature of the procedure for amending the constitution, then we would classify them to be either rigid or flexible.
It may be on the basis as to whether the rules of constitutional law are contained in a single document or not then we would classify constitution of those which accommodate the principle of parliamentary sovereignty or those which contain the principle of judicial supremacy. We might classify on the nature of the executive. The executive may be Parliamentary or Presidential.
“Kinds of Constitutions”
In the history of the constitution and development, there have been different varieties of the constitutions in the different parts of the world and hence constitutions may be classified differently.” The Orthodox Classification is of the Written and Un written Constitutions, which is hardly satisfactory.” It would be more accurate to call them “Enacted” and “evolved” Constitutions. So now we described the Written And Unwritten Constitution.
1- “Written Constitution”
The Written Constitution is also called rigid Constitution so the meaning of it “A rigid Constitution is one under which certain Law (Ordinarily Known as Constitution or Fundamental Laws) cannot be changed in the same manner as Ordinary Law. They Can be Altered or amended by the special machinery provided in the Constitution itself.
“Examples”
The Written or Rigid Constitution. The Constitution of France, the United States and Belgium are instances of rigid or written Constitution.
2- “Unwritten Or Flexible Constitution”
Unwritten Or Flexible Constitution is that one under which every description can legally be changed with the same manner by one and the same body or parliament.”
Meaning A flexible Constitution is likely to be unstable due to its capacity to undergo constant changes.
“Examples”
Unwritten or flexible Constitution. The English Constitution, With the Supremacy of Parliament is an instance of a flexible or unwritten Constitution.
“Differences between Flexible or unwritten Constitution and Rigid or Written Constitution.”
“There are five points of distinction between the two.”
These are
1- “As to possibility of changing it”
“A ‘Flexible’ Constitution is one under which every Law of every description can legally be changed with the same case and in the same manner by one and the same body or Parliament.” “While A’ Rigid’ Constitution is one under which certain Law, generally known as Constitutional of Fundamental Laws, cannot be changed in the same manner as ordinary Laws.”
2- “As to ‘Fundamental’ and ‘Ordinary’ Law.”
In a Rigid Constitution, there is a distinction between ‘Fundamental ‘ and ordinary Laws. The fundamental or Constitution Laws are Laws which deal with the framework of the Constitution, and these cannot be changed or amended in the ordinary process of law-making. In other words, a “Rigid” Constitution is one which is founded on fundamental written Laws; a “ Flexible “ Constitution is one in which all Laws can be altered by the same machinery. Law are said to be fundamental which deal with the framework of Constitution, and which can be altered only by a special machinery, provided by the Constitution for that purpose. The English Constitution is Flexible; any Constitutional Law, as for example, the Law governing the succession to the throne, can be and has been altered by Parliament by the ordinary legislative process. The American Constitution is rigid; changes in the Constitution can be effected only by the motion of two-thirds of each House of Congress, with the ratification of the legislatures of three-fourths of the States comprising the Union.
A Flexible Constitution need nod be written. Though, in practice, much of it may be found in writing; rigid Constitution must necessarily be embodied in a written instrument. In a rigid Constitution, some power must exist with authority to judge the validity of legislation; in flexible Constitution, the Law – Making power is subject to no control of this kind.
3- “ As to the sovereignty of the Legislature”
In Rigid Constitution, the Legislature is a non- sovereign Law – Making body, its powers being defined by the fundamental Law embodied in the Constitution which it cannot alter. In a fundamental Law embodied in the Constitution which it cannot alter. In a flexible Constitution, on the other hand, the Legislature is sovereign in as much as it has the power of making, altering, or repealing Laws of any description including the Constitution it self ; it is a legislative as well as a’ Constitution’ body.
4- “As To Power of Courts to Pronounce on Validity etc. of Law”
In a rigid Constitution, Law passed by the Legislature may be declared ultra vires or invalid by the courts if they are repugnant to the Constitutional Law. In a flexible Constitution there is no authority, judicial or otherwise, which can declare Law passed by the Legislature as ultra vires or unconstitutional.’ Thus, in the U.S.A. if an act of the Congress contravenes any provisions of the federal Constitution, the Supreme Court may declare it as ultra vires. In England, no court possesses any power to question the validity of an act of Parliament.
5- “As to Rights of Individuals”
Lastly, in a rigid Constitution 9 Such as the U.S.A.) the rights of individuals as against the state are defined by and flow from the written Constitutional document, While in a flexible Constitution the Constitution itself is based upon individuals rights as defined by the ordinary law of the land.
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