course work final

INTRODUCTION;

In the annals of constitution and administrative history, men have expounded the meaning of the RULE OF LAW, chief among them where the eminent Greek philosophers in the likes of Aristotle, Aquinas, Bracton and Emperor Justinian.

Bracton, an English man writing in the 13^th century, said “the king himself ought not to subject to man but to God and the law, since the law makes him king”, similarly, Emperor Justinian famously stated that “the law must result into justice for all”

Prof. Kanyeihambba JSC, in his writings “CONSTITUTIONAL LAW AND GOVERMENT” defined the rule of law as not being a rule in the sense that it binds everyone but merely a collection of ideas and principles as propagated in the so called free societies to guide law makers, administrators, judges and law enforcement agencies

PROFESSOR A V DICEY;

The greatest exponent of the rule of law was prof. Dicey, in his writings “THE LAW AND THE CONSTITUTION”, he laid down the following principles as the determinant of the rule of law in a given society;

1. Supremacy of the law, that is , the law should be the guiding instrument in the management of all branches of the government be it the judiciary, executive or legislature.
2. That every man, whatever his rank or condition is subject to the ordinary law of the realm and he is amenable to the jurisdiction of the ordinary tribunals.
3. That the law must be an instrument of a just government.

INTERNATIONAL COALITION OF JURISTS;

These basic principles, as formulated by Dicey have always

Formed the basis of the rule of law for the last two centuries; however modifications have been made to suit the changing circumstances, In 1959, the International Coalition of Jurists met in Geneva and formulated the below principles as additional guidance of the rule of law;

1. That there must be the existance of a strong government not in the sense of dictatorship but in the sense of effectiveness in which all the people obey the law witjhout forcing them.
2. All government action I.e judiciary, legislature and executive must be backed by the law, it means that the law is above all these and that government is just a custodian or trustee of the law and power must be exercised on behalf of the public.
3. There must be equality before the law without discrimination whatsoever.
4. The judiciaruy must be independent and must not be subjected to control of any other branch of the government, it also means that the two other arms of government must respect the decisions of the courts of law.
5. That human rights must be protected by government in accordance with the law.
6. That there must be a representative government where any one can be elected or can elect through direct and indirect elections.
7. There must be a fair process of adjudication and the principles of natural justice should be applied in a fair, consistent and impartial manner.
8. There must be respect for international law.
9. There must be promotion and enhancement of social and economic well being of the people, economic gaps I.e rich and poor must be narrowed

NRM GOVERNMENT AND THE RULE OF LAW

It should be remembered that, since independence up to 1986 when the NRM government took over power in Uganda, the country had observered a systematic breakdown in the observance of the rule of law, this was particularly the case during the IDI AMIN era of the 1970s, in which the entire constitution was suspended and the executive ruled by a DECREE resulting into total anarchy.

On ascending into power in January 1986, the NRM, led by the victorious rebel leader, Y.K.MUSEVENI, set into motion a series of laws in what came to be known as the “TEN POINT PROGRAME”, chief amongst these programs was the observance of the doctrine of the rule of law.

Through this a constituent assembly was instituted comprising of representatives from all parts of the country, with the major aim of fast tracking the formulation of a new constution, and therefore through wide consultation , the 1995 constitution of the Repubulic of Uganda was prromulgated and came into force in 1995. This was the biggest acheavement in as far as the observance of the rule of law was concerned as we shall discuss here after,

Its important to note that under this constitution, Article 1 and 2 declare it both as the supreme law of the country and that power in the cuntry belongs to the people, its on this basis that we shall analyse the extent to which the rule of law has been upheld or violated under the NRM regime to date;

RULE OF LAW AS UPHELD BY THE NRM GOVERNMENT

Following the promulgation of the 1995 constitution of the republic of Uganda, and in particular the period between 1995 to date, the following are the ways in which the NRM government has upheld the rule of law in Uganda;

1. RESTORATION OF DEMOCRACY;

As eshrined under Art 2 of the constitution that power belongs to the people, the NRM goverment has been at the forefront in as far as the principle of a representative government, one of the cornerstone of the doctrine of the rule of law is concerned, for the firssst time since independence, elections were introduced in the country every after five years, this can be evidenced the conduction of the 1996,2001,2006 and the 2011general elections in which all capable Ugandans were able to elect or get elected at different levels governace I.e from local council 1 to the post of th president. This greatly improved Uganda's ranking internationally given its record in this field especially during the tyranical Years of Idi AMIN, to the extent that president Museveni was praised by the world powers for finally restoring the rule of law in Uganda.

1. EQALITY BEFORE THE LAW

The NRM government has also gone a step further in fulfilling the principle of equality for all its citizens as envisaged by the doctrine of the rule of law, this can best be seen in the adoption of strategies by the government to uplift maginalised groups of our society, forexample, since the early 1990S, affirmative action was was introduced by addding extra points on female universty entrants at Makerere universty to bridge up the gap of gender in balance in the professional circles,this has resulted into a dramatic increase of female proffessiopnals in the country to the extent that there is no department of the government that is not well represensented in terms of sex, for U ganda became the first African country to appoint a female vice president, a big accomplisement in as far the doctrine of the rule of rule law is concerned.

Simillarlly elctive political vacancies were establised for maginalised groups such as the disabled, women were reserved a repesentation in parliament for each district in Uganda the result is that each category of Ugandans is well represented in parliament. It should be noted that in the case of LONNGWE V INTERCONTINENTAL HOTEL[1]the supreme court of Zambia ruled as descriminatory the hotel policy of barring unaccompanied womeen to its bars

I.            SECURITY;

The NRM government has also establised peace throught almost the whole country, a necessity for the rule of law to function well, in that as the people obey the laws, the government applies its department of the judiciary to settle disputes, hwnce the rule of law because people wont necessarilly be turning to anarhic ways of solving disputes such as mob justice.

1. INDEPENDENCE OF THE JUDICIARY;

The independence of the judicuary as also been preserved to some exetsnt, this can be seen in the amost little interference in the adjudication of both criminal and civil cases.

Secondly the appointment of judges has been fair, since there was the establisment of a judicial service comission whose sole job was to select judicial officers for appointment by the president into the judicicary especially the judges and justices, the respect of court decisions has significantlly improved under the NRM regime, this can be best seen in the respece of court decisions in highly political cases such as BESIGYE RAPE CASE.

VIOLATION OF THE RULE OF LAW UNDER THE NRM government

Its important to note that in adiminstrative law, the rule of law precludes arbitrrary action on the part of those who run the government, this is particuly so in the case with regard to the executive which carries out multifarious duties of the state. A government which performs an act that is not supported by the law is as guilty of violatng the rule of law as an individual or group of them who take the law into there hands.

Despite as having been aclaimed as the restorer of the rule of law , recent trends by the NRM govt have clearly shown that it is at the frontline in violating this great doctrine as seen below;

INDEPENDENCE OF THE JUDICIARY;

As eshrined under Art 128 of the 1995 constitution, intially, the indepedence of the judiciary was preserved, but recent trends have seeen a complete violation of this principle of the rule of law.

Foristance, the chief justice in comments attributed to himin the dairy monitor news paper ofseptember 11^th is quoted to having said that “the judiciary was not free, because it faced constant interference from the exective arm of the govt, tha this was best exhibited by the blatant refusal to obey court orders or decisions, he further stated that the pinnacle of this interference came when the executive sent armed commadoes code named (black mambas) to invade the high during the bail hearing of suspected rebels in order to rearrest them thus blatantly violaing the the doctrine of the rule of law”

In UGANDA LAW SOCIETY V AG[2], Engwau JA noted that “under Article 128(3) of the constitution all organs and agencies of the state are required to accord to the courts such assistance as may be required to ensure the effectiveness of the courts, what those millitary personel did on that day was not an assistance as envisaged under Art128(3) of the constitution.

Ssimsllarly the executive has futher exhibited its refusal to accept the indepedence of the judiciary especially through intimidation of judges and magistrates especially in connection to political cases, foristance, President Museveni has made open remarks such as “we shall crash them”, “ who are you, where were you when we were restoring this freedom” towards judges carrying out there duties, hence greatly hindering the morale of judges in fullfilling thre doctrine of the rule of law.

Equality before the law

Much as there was an improvement in upholding this principle of the rule of law by the NRM government especially in its early stages of administration, recent trends have led to the blatant violation of this principle.

For stance in the handling of corruption related cases there has been a vice by the executive to recommend the prosecution of small thieves leaving the powerful, well connected , usually members of the executive to move free of charge. This can be seen with the cases of the famous Temangalo Saga, Gavi and Global fund, despite having been committed more than 3 years ago most these former ministers implicated are moving freely somewhere re-appointed to the executive.

In a similar instance, former head of the Anti corruption court, Justice J.B katusi was quoted by the monitor news paper of 14^th September 2011, speaking that the launch of a dossier on corruption organized by the Uganda Debt network as having said that: “the Anti corruption court which he previously headed is so incapacitated that only the wretched of the earth can be tried there but not those who have powerful god fathers in government”.

Similar discrimination has been practiced economically especially regarding payment of taxes, usually the powerful are said not to pay taxes while the poor continue to be subjected to it.

Discrimination has also been witnessed in the allocation of employment opportunities, as it has been claimed that the westerners have hugely benefited from the NRM government as they are seen to dominate key important positions of government, for instance the head of UPDF, POLICE AND PRISONS are all westerners

Note can be taken from the famous American case of Brown v Board of Education in which the American Supreme Court ruled that it was discriminatory to bar blacks from attending some schools simply because they were reserved to whit students only. It should be remembered that under chapter 4 of the 1995 constitution equality before the law and free from all forms of discrimination is broadly provided for but because of actual or negligent refusal, this inequality remains unabated by the NRM government , a key principle in fulfilling the doctrine of rule of law.

Absolute supremacy of the law

This is the foundation of the doctrine of the rule of law backed by article 1 of the 1995 constitution in which it is founded that all government actions be it the judiciary , executive or the legislature must conform with the provisions of the law. Under the NRM government, there has been instance of blatant violation of this principle in the following ways;

The executive willing refusal to abet by sections of the law by giving himself powers for instance to donate forests leading to the infamous demonstration on the giveaway Mabira forests that led to the death of some people.

Similarly failure to abet by the constitution led the executive to spear head the amendment of article 105 of the 1995 constitution, as a result we have an executive that is difficult to control given the fact that the elections have rigged in the favour of the president confirmed in the election petitions of Besigye v Museveni of 2001 and 2006 respectively.

The principle of absolute supremacy of the law has also been violated by the executive especially the president has taken over the roles hitherto given to other departments of the executive, for instance now days it is common for everything to be decided by the president, this can be seen in the strikes of teachers , business men, individual grievous all being addressed to the president awaiting communication, this not to mention overturning decision already made by other departments of the government. Evidence of this can be taken from comments made in the monitor newspaper by presidential advisor on media affairs i.e. John Nagenda, that president has become autocratic since he seems to be the only solution to every problem that arises and no longer listens to advices.

Abuse of human rights

Enshrined under chapter 4 of the 1995 constitution, this one principle of the rule of law has faced blatant violation from especially state agencies connected to the enforcement of security such as police CMI , ARMY and other unconstitutional forces such the kiboko squad.

Countless stories have been told of extreme torture by this security agencies in secret places known as safe houses and persons disappearing and never to be seen again.

For instance, in late last year former Hoima Mayor MR Atugonza was allegedly picked by CMI from hoima, tortured in a safe house in Kampala. It was not until a lot of public outcry that he was finally produced before police, un able to walk.

It should be noted that in the case of Kalawudio Wamala v AG the trial judge ruled that police has an agent of the state had failed to uphold the rights of the appellant by torturing clearly as enshrined in the constitution.

Similar violation of human rights has been witnessed by all most the complete refusal by the police to accept any form of demonstration even when it was peaceful this can be seen in the ruthless clashing of the walk to work protest thus hindering the enjoyment of this right as a requirement of rule law.

It should be remembered that in the case of Muwanga Kivumbi v AG

Court held that the right to freedom of speech assembly demonstration peaceful was be enjoyed by everyone and also regulated police powers granted under s.32 of the police Act regulating these freedoms.

---

[1] (1993)4 LRC 221

[2] CONSTITUTIONAL APPLICATION NO. 18 OF 2005

course work

INTRODUCTION;

In the annals of constitution and adminstrative history, men have espounded the meaning of the RULE OF LAW, chief among them where the eminent greek philosophers in the likes of Aristotle, Aquinas, Bracton and Emperor justinian.

Bracton, an English man writing in the 13^th century, said “the king himself ought not to subject to man but to God and the law, since the law makes him king”, simillarlly, Emperor Justinian famously stated that “the law must result into justice for all”

Prof. Kanyeihambba JSC, in his writtings “CONSTITUTIONAL LAW AND GOVERMENT” defined the rule of law as not being a rule in the sense that it binds everyone but merely a collection of ideas and principles as propagated in the so called free societies to guide law makers, adminstrators, judges and law enfocement agencies

PROFESSOR A V DICEY;

The greatest exponent of the rule of law was prof. Dicey, in his writtings “THE LAW AND THE CONSTITUTION”, he laid down the following principles as the determinant of the rule of law in a given society;

1. Supremacy of the law, that is , the law should be the guiding instrument in the management of all branches of the government be it the judiciary, executive or legislature.
2. That every man, whatever his rank or condition is subject to the ordinary law of the realm and he is amenemble to the jurisdiction of the ordinary tribunals.
3. That the law must be an instrument of a just government.

INTERNATIONAL COALITION OF JURISTS;

These basic principles,as formulated by Dicey have always

formed the basis of the rule of law for the last two centuries, however modifications have been made to suit the changing circumstancies. In 1959, the International Coalition of Jurists met in Geneva and formulated the below principles as additional guidances of the rule of law;

1. That there must be the existance of a strong government not in the sense of dictatorship but in the sense of effectiveness in which all the people obey the law witjhout forcing them.
2. All government action I.e judiciary, legislature and executive must be backed by the law, it means that the law is above all these and that government is just a custodian or trustee of the law and power must be exercised on behalf of the public.
3. There must be equality before the law without discrimination whatsoever.
4. The judiciaruy must be independent and must not be subjected to control of any other branch of the government, it also means that the two other arms of government must respect the decisions of the courts of law.
5. That human rights must be protected by government in accordance with the law.
6. That there must be a representative government where any one can be elected or can elect through direct and indirect elections.
7. There must be a fair process of adjudication and the principles of natural justice should be applied in a fair, consistent and impartial manner.
8. There must be respect for international law.
9. There must be promotion and enhancement of social and economic well being of the people, economic gaps I.e rich and poor must be narrowed

NRM GOVERNMENT AND THE RULE OF LAW

It should be remembered that, since independence upto 1986 when the NRM government took over power in Uganda, the country had observered a systematic breackdown in the observance of the rule of law, this was particularly the case during the IDI AMIN era of the 1970s, in which the entire constitution was suspended and the executive ruled by a DECREE resulting into total anarchy.

On ascending into power in january 1986, the NRM, led by the victorious rebel leader, Y.K.MUSEVENI, set into motion a series of laws in what came to be known as the “TEN POINT PROGRAME”, chief amongest these programes was the observance of the doctrine of the rule of law.

Through this aconstituent assembly was instituted comprasing of representatives from all parts of the country, with the major aim of fast tracking the formulation of a new constution, and therefore through wide consultation , the 1995 constitution of the Repubulic of Uganda was prromulgated and came into force in 1995. This was the biggest acheavement in as far as the observance of the rule of law was concerned as we shall discuss here after,

Its important to note that under this constitution, Article 1 and 2 declare it both as the supreme law of the country and that power in the cuntry belongs to the people, its on this basis that we shall analyse the extent to which the rule of law has been upheld or violated under the NRM regime to date;

RULE OF LAW AS UPHELD BY THE NRM GOVERNMENT

Following the promulgation of the 1995 constitution of the republic of Uganda, and in particular the period between 1995 to date, the following are the ways in which the NRM government has upheld the rule of law in Uganda;

1. RESTORATION OF DEMOCRACY;

As eshrined under Art 2 of the constitution that power belongs to the people, the NRM goverment has been at the forefront in as far as the principle of a representative government, one of the cornerstone of the doctrine of the rule of law is concerned, for the firssst time since independence, elections were introduced in the country every after five years, this can be evidenced the conduction of the 1996,2001,2006 and the 2011general elections in which all capable Ugandans were able to elect or get elected at different levels governace I.e from local council 1 to the post of th president. This greatly improved Uganda's ranking internationally given its record in this field especially during the tyranical Years of Idi AMIN, to the extent that president Museveni was praised by the world powers for finally restoring the rule of law in Uganda.

1. EQALITY BEFORE THE LAW

The NRM government has also gone a step further in fulfilling the principle of equality for all its citizens as envisaged by the doctrine of the rule of law, this can best be seen in the adoption of strategies by the government to uplift maginalised groups of our society, forexample, since the early 1990S, affirmative action was was introduced by addding extra points on female universty entrants at Makerere universty to bridge up the gap of gender in balance in the professional circles,this has resulted into a dramatic increase of female proffessiopnals in the country to the extent that there is no department of the government that is not well represensented in terms of sex, for U ganda became the first African country to appoint a female vice president, a big accomplisement in as far the doctrine of the rule of rule law is concerned.

Simillarlly elctive political vacancies were establised for maginalised groups such as the disabled, women were reserved a repesentation in parliament for each district in Uganda the result is that each category of Ugandans is well represented in parliament. It should be noted that in the case of LONNGWE V INTERCONTINENTAL HOTELS¹ the supreme court of Zambia ruled as descriminatory the hotel policy of barring unaccompanied womeen to its bars

1. SECURITY;

The NRM government has also establised peace throught almost the whole country, a necessity for the rule of law to function well, in that as the people obey the laws, the government applies its department of the judiciary to settle disputes, hwnce the rule of law because people wont necessarilly be turning to anarhic ways of solving disputes such as mob justice.

1. INDEPENDENCE OF THE JUDICIARY;

The independence of the judicuary as also been preserved to some exetsnt, this can be seen in the amost little interference in the adjudication of both criminal and civil cases.

Secondly the appointment of judges has been fair, since there was the establisment of a judicial service comission whose sole job was to select judicial officers for appointment by the president into the judicicary especially the judges and justices, the respect of court decisions has significantlly improved under the NRM regime, this can be best seen in the respece of court decisions in highly political cases such as BESIGYE RAPE CASE.

VIOLATION OF THE RULE OF LAW UNDER THE NRM government

Its important to note that in adiminstrative law, the rule of law precludes arbitrrary action on the part of those who run the government, this is particuly so in the case with regard to the executive which carries out multifarious duties of the state. A government which performs an act that is not supported by the law is as guilty of violatng the rule of law as an individual or group of them who take the law into there hands.

Despite as having been aclaimed as the restorer of the rule of law , recent trends by the NRM govt have clearly shown that it is at the frontline in violating this great doctrine as seen below;

INDEPENDENCE OF THE JUDICIARY;

As eshrined under Art 128 of the 1995 constitution, intially, the indepedence of the judiciary was preserved, but recent trends have seeen a complete violation of this principle of the rule of law.

Foristance, the chief justice in comments attributed to himin the dairy monitor news paper ofseptember 11^th is quoted to having said that “the judiciary was not free, because it faced constant interference from the exective arm of the govt, tha this was best exhibited by the blatant refusal to obey court orders or decisions, he further stated that the pinnacle of this interference came when the executive sent armed commadoes code named (black mambas) to invade the high during the bail hearing of suspected rebels in order to rearrest them thus blatantly violaing the the doctrine of the rule of law”

In UGANDA LAW SOCIETY V AG², Engwau JA noted that “under Article 128(3) of the constitution all organs and agencies of the state are required to accord to the courts such assistance as may be required to ensure the effectiveness of the courts, what those millitary personel did on that day was not an assistance as envisaged under Art128(3) of the constitution.

Ssimsllarly the executive has futher exhibited its refusal to accept the indepedence of the judiciary especially through intimidation of judges and magistrates especially in connection to political cases, foristance, President Museveni has made open remarks such as “we shall crash them”, “ who are you, where were you when we were restoring this freedom” towards judges carrying out there duties, hence greatly hindering the morale of judges in fullfilling thre doctrine of the rule of law.

1(1993)4 LRC 221

2CONSTITUTIONAL APPLICATION NO. 18 OF 2005

ijimar

Primary sources

[edit] Qur’an

A copy of the Qur'an, one of the primary sources of Islamic law.

The Qur'an is the first and most important source of Islamic law. Believed to be the direct word of God as revealed to Muhammad through angel Gabriel in Mecca and Medina, the scripture specifies the moral, philosophical, social, political and economic basis on which a society should be constructed. The verses revealed in Mecca deal with philosophical and theological issues, whereas those revealed in Medina are concerned with socio-economic laws. The Qur'an was written and preserved during the life of Muhammad, and compiled soon after his death.^[6]
The verses of the Qur'an are categorized into three fields: "science of speculative theology", "ethical principles" and "rules of human conduct". The third category is directly concerned with Islamic legal matters which contains about five hundred verses or one thirteenth of it. The task of interpreting the Qur'an has led to various opinions and judgments. The interpretations of the verses by Muhammad's companions for Sunnis and Imams for Shias are considered the most authentic, since they knew why, where and on what occasion each verse was revealed.^[1][6]

[edit] Sunnah

The Sunnah is the next important source, and is commonly defined as "the traditions and customs of Muhammad" or "the words, actions and silent assertions of him". It includes the everyday sayings and utterances of Muhammad, his acts, his tacit consent, and acknowledgments of statements and activities. According to Shi'ite jurists, the sunnah also includes the words, deeds and acknowledgments of the twelve Imams and Fatimah, Muhammad's daughter, who are believed to be infallible.^[1][7]
Justification for using the Sunnah as a source of law can be found in the Qur'an. The Qur'an commands Muslims to follow Muhammad.^[8] During his lifetime, Muhammad made it clear that his traditions (along with the Qur'an) should be followed after his death.^[9] The overwhelming majority of Muslims consider the sunnah to be essential supplements to and clarifications of the Qur'an. In Islamic jurisprudence, the Qur'an contains many rules for the behavior expected of Muslims but there are no specific Qur'anic rules on many religious and practical matters. Muslims believe that they can look at the way of life, or sunnah, of Muhammad and his companions to discover what to imitate and what to avoid.
Much of the sunnah is recorded in the Hadith. Initially, Muhammad had instructed his followers not to write down his acts, so they may not confuse it with the Qur'an. However, he did ask his followers to disseminate his sayings orally. As long as he was alive, any doubtful record could be confirmed as true or false by simply asking him. His death, however, gave rise to confusion over Muhammad's conduct. Thus the Hadith were established.^[7] Due to problems of authenticity, the science of Hadith (Arabic: `Ulum al-hadith) is established. It is a method of textual criticism developed by early Muslim scholars in determining the veracity of reports attributed to Muhammad. This is achieved by analyzing the text of the report, the scale of the report's transmission, the routes through which the report was transmitted, and the individual narrators involved in its transmission. On the basis of these criteria, various Hadith classifications developed.<sup>[10]</sup>
To establish the authenticity of a particular Hadith or report, it had to be checked by following the chain of transmission (isnad). Thus the reporters had to cite their reference, and their reference's reference all the way back to Muhammad. All the references in the chain had to have a reputation for honesty and possessing a good retentive memory.<sup>[7]</sup> Thus biographical analysis (`ilm al-rijāl, lit. "science of people"), which contains details about the transmitter are scrutinized. This includes analyzing their date and place of birth; familial connections; teachers and students; religiosity; moral behaviour; literary output; their travels; as well as their date of death. Based upon these criteria, the reliability (thiqāt) of the transmitter is assessed. Also determined is whether the individual was actually able to transmit the report, which is deduced from their contemporaneity and geographical proximity with the other transmitters in the chain.^[11] Examples of biographical dictionaries include Ibn Hajar al-Asqalani's "Tahdhīb al-Tahdhīb" or al-Dhahabi's "Tadhkirat al-huffāz."^[12]
Using this criteria, Hadith are classified into three categories:^[7]

1. Undubitable (mutawatir), which are very widely known, and backed up by numerous references.
2. Widespread (mashhur), which are widely known, but backed up with few original references.
3. Isolated or Single (wahid), which are backed up by too few and often discontinuous references.

'

[edit] Secondary sources

All medieval Muslim jurists rejected arbitrary opinion, and instead developed various secondary sources, also known as juristic principles or doctrines^{[clarification needed]}, to follow in case the primary sources (i.e. the Qur'an and Sunnah) are silent on the issue.^[13]

[edit] Consensus

Main article: Ijma

The ijma' , or consensus amongst Muslim jurists on a particular legal issue, constitutes the third source of Islamic law. Muslim jurists provide many verses of the Qur'an that legitimize ijma' as a source of legislation.^[14][15] Muhammad himself said:

• "My followers will never agree upon an error or what is wrong",
• "God's hand is with the entire community".^[14][16]

In history, it has been the most important factor in defining the meaning of the other sources and thus in formulating the doctrine and practice of the Muslim community.^[17] This is so because ijma' represents the unanimous agreement of Muslims on a regulation or law at any given time.^[18]
There are various views on ijma' among Muslims. Sunni jurists consider ijma' as a source, in matters of legislation, as important as the Qur'an and Sunnah. Shiite jurists, however, consider ijma' as source of secondary importance, and a source that is, unlike the Qur'an and Sunnah, not free from error.^[19] Ijma' was always used to refer to agreement reached in the past, either remote or near.^[17] Amongst the Sunni jurists there is diversity on who is eligible to participate in ijma' , as shown in the following table:

School of jurisprudence	Formation of ijma'	Rationale
Hanafi	through public agreement of Islamic jurists	the jurists are experts on legal matters
Shafi'i	through agreement of the entire community and public at large	the people cannot agree on anything erroneous
Maliki	through agreement amongst the residents of Medina, the first Islamic capital	Islamic tradition says "Medina expels bad people like the furnace expels impurities from iron"
Hanbali	through agreement and practice of Muhammad's Companions	they were the most knowledgeable on religious matters and rightly guided
Usuli	only the consensus of the ulama of the same period as the Prophet or Shia Imams is binding.	consensus is not genuinely binding in its own right, rather it is binding in as much as it is a means of discovering the Sunnah.
Source:[1][19]

In modern Muslim usage it is no longer associated with traditional authority and appears as democratic institution and an instrument of reform.^[17]

[edit] Analogical deduction

Main article: Qiyas

Qiyas or analogical deduction is the fourth source of Sharia for the Sunni jurisprudence. Shiites do not accept qiyas, but replace it with reason (aql). Qiyas is the process of legal deduction according to which the jurist, confronted with an unprecedented case, bases his or her argument on the logic used in the Qur'an and Sunnah. Qiyas must not be based on arbitrary judgment, but rather be firmly rooted in the primary sources.^[20]
Supporters of qiyas will often point to passages in the Qur'an that describe an application of a similar process by past Islamic communities. According to Hadith, Muhammad said: "Where there is no revealed injunction, I will judge amongst you according to reason."^[21] Further, he extended the right to reason to others. Finally, qiyas is sanctioned by the ijma, or consensus, amongst Muhammad's companions.^[20]
The success and expansion of Islam brought it into contact with different cultures, societies and traditions, such as those of Byzantines and Persians. With such contact, new problems emerged for Islamic law to tackle. Moreover, there was a significant distance between Medina, the Islamic capital, and the Muslims on the periphery on the Islamic state. Thus far off jurists had to find novel Islamic solutions without the close supervision of the hub of Islamic law (back in Medina). During the Umayyad dynasty, the concept of qiyas was abused by the rulers. The Abbasids, who succeeded the Ummayads defined it more strictly, in an attempt to apply it more consistently.^[20]
The general principle behind the process of qiyas is based on the understanding that every legal injunction guarantees a beneficial and welfare satisfying objective. Thus, if the cause of an injunction can be deduced from the primary sources, then analogical deduction can be applied to cases with similar causes. For example, wine is prohibited in Islam because of its intoxicating property. Thus qiyas leads to the conclusion that all intoxicants are forbidden.^[20]
The Hanafi school of thought very strongly supports qiyas. Imam Abu Hanifa, an important practitioner of qiyas, elevated qiyas to a position of great significance in Islamic law. Abu Hanifa extended the rigid principle of basing rulings on the Qur'an and Sunnah to incorporate opinion and exercise of free thought by jurists. In order to respond suitably to emerging problems, he based his judgments, like other jurists, on the explicit meanings of primary texts (the Qur'an and sunnah). But, he also considered the "spirit" of Islamic teachings, as well as the whether the ruling would be in the interest of the objectives of Islam. Such rulings were based on public interest and the welfare of the Muslim community.^[20]

“	The knowledge of ours is an opinion, it is the best we have been able to achieve. He who is able to arrive at different conclusions is entitled to his own opinion as we are entitled to our own.	”
—Abu Hanifa[20]

The Shafi'i school of thought accepts qiyas as a valid source. Imam Shafi'i, however, considered it a weak source, and tried to limit the cases where jurists would need to resort to qiyas. He criticized and rejected analogical deductions that were not firmly rooted in the Qur'an and sunnah. According to Shafi'i, if analogical deductions were not strictly rooted in primary sources, they would have adverse effects. One such consequence could be variety of different rulings in the same subject. Such a situation, he argued, would undermine the predictability and uniformity of a sound legal system. ^[22]
Imam Malik accepted qiyas as a valid source of legislation. For him, if a parallel could be established between the effective cause of a law in the primary sources and a new case, then analogical deduction could be viable tool. Malik, however, went beyond his adherence to "strict analogy" and proposed pronouncements on the basis of what jurists considered was "public good".^[22]

[edit] Preference

Abu Hanifa developed a new source called istihsan, or juristic preference, as a form of analogical deduction (qiyas).^[23] Istihsan is defined as:

• Means to seek ease and convenience,
• To adopt tolerance and moderation,
• To over-rule analogical deduction, if necessary.^[24]

The source, inspired by the principle of conscience, is a last resort if none of the widely accepted sources are applicable to a problem. It involves giving favor to rulings that dispel hardship and bring ease to people.^[22] This doctrine was justified directly by the Qur'an: "Allah desires you ease and good, not hardship".^[24] Though its main adherents were Abu Hanifa and his pupils (such as Abu Yusuf), Malik and his students made use of it to some degree. The source was subject to extensive discussion and argumentation,^[25] and its opponents claimed that it often departs from the primary sources.^[22]
This doctrine was useful in the Islamic world outside the Middle East where the Muslims encountered environments and challenges they had been unfamiliar with in Arabia.^[23] One example of isthisan is cited as follows: If a well is contaminated it may not be used for ritual purification. Istihsan suggests that withdrawing a certain number of buckets of water from the well will remove the impurities. Analogical deduction (qiyas), however, says that despite removing some of the water, a small concentration of contaminants will always remain in the well (or the well walls) rendering the well impure. The application of analogical deduction means the public may not use the well, and therefore causes hardship. Thus the principle of istihsan is applied, and the public may use the well for ritual purification.^[24]

[edit] Public good

Imam Malik developed a tertiary source called al-maslaha al-mursalah, which means social benefit. According to this source of Islamic law, rulings can be pronounced in accordance with the "underlying meaning of the revealed text in the light of public interest". In this case the jurists uses his wisdom to pursue public interest. This source is rejected by the Shafi'is.^[22]

[edit] Textual indication

Shafi'i accepted cases in which he had to be more flexible with the application of Qisas. Similar to Abu Hanifa and Imam Malik, he developed a tertiary source of legislation. The Shafi'i school adopted istidlal, a process of seeking guidance from the source. Istidlal allowed the jurists to avoid "strict analogy" in a case where no clear precedent could be found. In this case, public interest was distinguished as a basis for legislation.^[22]
Scholars divide istdilal into three types. The first is the expression of the connection existing between one proposition and another without any specific effective cause. Next, istidlal could mean presumption that a state of things, which is not proved to have ceased, still continues. The final type of istidlal is the authority as to the revealed laws previous to Islam.^[26]

[edit] Reason

Main article: Ijtihad

Shi'ite jurists maintain that if a solution to a problem can not be found from the primary sources, then aql or reason should be given free rein to deduce a proper response from the primary sources. The process, whereby rational efforts are made by the jurist to arrive at an appropriate ruling, when applied is called ijtihad (literally meaning "exerting oneself"). Shi'ite jurists maintain that qiyas is a specific type of ijtihad. The Sunni Shafi' school of thought, however, holds that both qiyas and ijtihad are the same.^[27]
Sunni jurists accepted ijtihad as a mechanism for deducing rulings. They, however, announced an end to its practice during the thirteenth century. The reason for this was that centers of Islamic learning (such as Baghdad, Nishapur, and Bukhara) had fallen into the hands of the Mongols. Thus, the "doors to ijtihad", were closed.^[27] In Sunni Islam, thus, ijtihad was replaced by taqlid or the acceptance of doctrines developed previously.^[28] Later in Sunni history, however, there were notable instances of jurists using reason to re-derive law from the first principles. One was Ibn Taymiyya (d. 728/1328), another was Ibn Rus̲h̲d (Averroes d. 595/1198).^[28]
There are many justifications, found in the Qur'an and sunnah, for the use of ijtihad. For example, during a conversation with Mu'ādh ibn Jabal, Muhammad asked the former how he would give judgments. Mu'ādh replied that he would refer first to the Qur'an, then to the Sunnah and finally commit to ijtihad to make his own judgment. Muhammad approved of this.^[29]
A lawyer who is qualified to use this source is called a mujtahid. The founders of the Sunni madhabs (schools of law) were considered such lawyers. All mujtahid exercise at the same time the powers of a mufti and can give fatwa. Some mujtahid have claimed to be muj̲addid, or "renewer of religion." Such persons are thought to appear in every century. In Shi'ite Islam they are regarded as the spokespersons of the hidden Imam.^[28]

[edit] Common practice

Main article: Urf

The term urf, meaning "to know", refers to the customs and practices of a given society. Although this was not formally included in Islamic law,^[30] the Sharia recognizes customs that prevailed at the time of Muhammad but were not abrogated by the Qur'an or the tradition (called "Divine silence"). Practices later innovated are also justified, since Islamic tradition says what the people, in general, consider good is also considered as such by God. According to some sources, urf holds as much authority as ijma (consensus), and more than qiyas (analogical deduction). Urf is the Islamic equivalent of "common law".^[31]
Urf was first recognized by Abū Yūsuf (d. 182/798), an early leader of the Ḥanafī school. However, it was considered part of the sunnah, and not as formal source. Later al-Sarak̲h̲sī (d. 483/1090), opposed it, holding that custom cannot prevail over a written text.^[30]
According to Sunni jurisprudence, in the application of urf, custom that is accepted into law should be commonly prevalent in the region, not merely in an isolated locality. If it is in absolute opposition to Islamic texts, custom is disregarded. However, if it is in opposition to qiyas (analogical deduction), custom is given preference. Jurists also tend to, with caution, give precedence to custom over doctoral opinions of highly esteemed scholars.^[31] Shia does not consider custom as a source of jurisprudence.

[edit] See also

• Fiqh
• Ijazah
• Madrasah

[edit] Notes

1. ^ ^{a b c d e f g h} Mutahhari, Morteza. "Jurisprudence and its Principles". Tahrike Tarsile Qur'an. http://www.al-islam.org/jurisprudence/. Retrieved 2008-07-26. 
2. ^ "Shari`ah and Fiqh". USC-MSA Compendium of Muslim Texts. University of Southern California. http://www.usc.edu/dept/MSA/law/shariahintroduction.html. Retrieved 2008-07-26. 
3. ^ Motahhari, Morteza. "The Role of Ijtihad in Legislation". Al-Tawhid. http://www.al-islam.org/al-tawhid/ijtihad-legislation.htm. Retrieved 2008-07-26. 
4. ^ Momen (1985), p.185–187 and 223–234
5. ^ Momen (1985), p.188
6. ^ ^{a b} Nomani and Rahnema (1994), p. 3–4
7. ^ ^{a b c d} Nomani and Rahnema (1994), p. 4–7
8. ^ Qur'an 59:7
9. ^ Qadri (1986), p. 191
10. ^ "Hadith", Encyclopedia of Islam.
11. ^ Berg (2000) p. 8
12. ^ See:
    • Robinson (2003) pp. 69–70;
    • Lucas (2004) p. 15
13. ^ Makdisi, John (1985). "Legal Logic and Equity in Islamic Law", The American Journal of Comparative Law, 33 (1): 63-92
14. ^ ^{a b} Mahmasani, S. Falsafe-e Ghanoongozari dar Eslam. Tehran: Amir Kabir. pg. 143
15. ^ Verses Qur'an 2:143, Qur'an 3:103, Qur'an 3:110, Qur'an 4:59, Qur'an 4:115 and Qur'an 9:119 are presented by Mahmasani.
16. ^ Muslehuddin, M. Philosophy of Islamic Law and the Orientalists. New Delhi: Taj printers, 1986. pg.146
17. ^ ^{a b c} Encyclopedia Britannica, Ijma.
18. ^ "Id̲j̲māʿ", Encyclopaedia of Islam
19. ^ ^{a b} Nomani and Rahnema (1994), p. 7–9
20. ^ ^{a b c d e f} Nomani and Rahnema (1994), p. 9–12
21. ^ Mahmasani, S. Falsafe-e Ghanoongozari dar Eslam. Tehran: Amir Kabir. pg. 140
22. ^ ^{a b c d e f} Nomani and Rahnema (1994), p. 13–15
23. ^ ^{a b} Encyclopedia Britannica, Istihsan
24. ^ ^{a b c} Hasan (2004), p.157–160
25. ^ Hallaq, "Considerations on the Function and Character of Sunnī Legal Theory".
26. ^ Hodkinson, Keith. Muslim Family Law: A Sourcebook. India: Routledge, 1984.
27. ^ ^{a b} Nomani and Rahnema (1994), p.15–16
28. ^ ^{a b c} Ijtihad, Encyclopaedia of Islam
29. ^ ʻAlwānī (1973), p. 9
30. ^ ^{a b} "Urf", Encyclopaedia of Islam
31. ^ ^{a b} Hasan (2004), p. 169–71

islamic law is based upon four main sources:

The Qur'an

Muslims believe the Qur'an to be the direct words of Allah, as revealed to and transmitted by the Prophet Muhammad. All sources of Islamic law must be in essential agreement with the Qur'an, the most fundamental source of Islamic knowledge. When the Qur'an itself does not speak directly or in detail about a certain subject, Muslims only then turn to alternative sources of Islamic law.

The Sunnah

Sunnah is the traditions or known practices of the Prophet Muhammad, many of which have been recorded in the volumes of Hadith literature. The resources include many things that he said, did, or agreed to -- and he lived his life according to the Qur'an, putting the Qur'an into practice in his own life. During his lifetime, the Prophet's family and companions observed him and shared with others exactly what they had seen in his words and behaviors -- i.e. how he performed ablutions, how he prayed, and how he performed many other acts of worship. People also asked the Prophet directly for rulings on various matters, and he would pronounce his judgment. All of these details were passed on and recorded, to be referred to in future legal rulings. Many issues concerning personal conduct, community and family relations, political matters, etc. were addressed during the time of the Prophet, decided by him, and recorded. The Sunnah can thus clarify details of what is stated generally in the Qur'an.

Ijma' (consensus)

In situations when Muslims have not been able to find a specific legal ruling in the Qur'an or Sunnah, the consensus of the community is sought (or at least the consensus of the legal scholars within the community). The Prophet Muhammad once said that his community (i.e. the Muslim community) would never agree on an error.

Qiyas (analogy)

In cases when something needs a legal ruling, but has not been clearly addressed in the other sources, judges may use analogy, reasoning, and legal precedent to decide new case law. This is often the case when a general principle can be applied to new situations. (See the article Smoking in Islam for an example of this process at work.)