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May 2018

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Sources of Islamic Law

Opening remarks

Islam is the complete code of life. It gives guidance in all walk of life. Under Islamic law the term law includes the moral law and legal enactments. According to Islam ultimate source of any authority is God alone.

Sources of Islamic law

1. Quran

Quran is the first and primary source of law. Quran is not a legal code in the modern sense. The legislative part of Quran is the model illustration for future legislation and does not constituted a legal code by itself.

Importance

As primary source of law Quran has vital importance. It lays down a way of life which regulates the relationship of man with man and his relationship with God. The law of inheritance, marriage, divorce, theft, adultery and provisions of war and peace are meant for regulating the ties of man with the fellow beings.

2. Sunnah

Second source of Islamic law is Sunnah. The Sunnah is closely linked with the Quran. It comprises of:

All words counsels of the Prophet (S.A.W.W)
Actions, words and daily practices of the hold prophet (S.A.W.W).
Silence implying a tacit approbation his part of any individual act committed by the disciplines.

Importance

Sunnah has great importance after the Quran. It describes the functions of the Holy Prophet (S.A.W.W) namely, announcing of the revelation before people, giving then guidance.

3. Ijma

Imja is an important source of law. It is the agreement of the Jurists among the followers of Muhammad (S.A.W.W) in a particular age on a particular question.

Basis of Ijma

Ijma may be based on
Quran
Sunnah
Analogy

Kinds of Ijma

Express
Tacit
Qawli
Sakuti

Importance

Ijma as a source of law has great importance. It helps in interpretation of laws according to the changing needs of times and new legislation can be made through its procees.

4. Qiyas

Qiyas is an extension of law from the original text to which the process is applied to a particular case by means of common Illat or effective cause, which cannot be ascertained merely by interpretation of the language of the text.

Kinds

Qiyas Jali
Qiyas Khafi

Importance

The function of Qiyas is to extend the law of the text to cases not falling within the purview of its terms and not to establish a new rule of law.

5. Opinions of Muslim Jurists

Opinions of Muslim jurists are also secondary source of Islamic law.

6. Nature of laws lays down

The Holly Quran is a code of conduct laying down the fundamental principles and not the detailed provisions so in case of ambiguity reference should be made to the sunnah.

7. Naska

Nask is also secondary source of Islamic laws. It is tent of Quran and tradition which have either been totally abrogated or there application limited or modified by the subsequent text.

8. Muslalah Mursala

Muslalah Mursala means when nothing becomes clear in law after giving reasons then the course which is to be adopted according to Islamic spirit for instance. Taxation for the defence of the country.

9. Ijtehad

Ijtehad is one of the dependent source of Islamic law. If a matter is not resolved expressly in Quran and sunnah and by way of ijma the jurist must not leave the matter unresolved rather he should strive hard to find out the solution under the light of Quran and sunnah.

10. Municipal laws:

Municipal laws of the state also source of Islamic law provided that these are not contrary to Islamic concepts. It includes

Customs
Judicial precedents
Legislation
Equality

11. Istehsan

Istehsan means preference of one over another considering the former good. When a rule of law deduced y analog is either in conflict with Ijma or is likely to causes inconvenience to its narrowness. The hanfis Jurists refuse to follow it and give preference to rule, which in his opinion would better advance the welfare of man and the interest of justice.

Kinds of istihsan

1. Istihsan-e-Qiyasi
2. Istihsan-e-Zarurat
3. Istihsan-e-Ijma

Importance of Istihsan

Islamic legal system is not a rigid one rather it is much flexible to be adopted according to the changing circumstances and needs of the society. The principle of Istehsan provides an opportunity to Muslim Jurists to interpret the law according to the spirit of and true intention if Islam.

12. Istidlal

Istidlal means inferring from a thing. It is the name for a distinct method of juristic ratiocination, not falling within the scope of interpretation or analogy.

Kinds of Istidlal

i. Expression of connection existing between two proposition.
ii. Isthab ul hal
iii. Authority of previous revealed law.

Importance of Istidlal

Istidlal as secondary source of law has importance in law making.

13. Taqlid

Taqlid negates the concept of Ijtihad and in fact it is just revels of it, Taqlid means to follow the opinion of learned. It is the discussion on the historical development of Islamic Jurisprudence.

Ending Remarks:

To conclude it can be said that the Quran is the basic and primary source of Islamic jurisprudence and laws. The basic sources of Islamic laws are Quran and sunnah. Their authority is unchanged in all the times. Qiyas and Ijma are considered to be an authoritative source of law being subservient to the Quran and sunnah. All the sources have importance in Islamic jurisprudence and law making.

Starting a Law Firm: How to Develop a Niche

When thinking about the family law field, and whether you want to start your own law firm, it is important to consider your practice area or “niche”. Many new attorneys don’t know what practice area they will want to join when they come out of law school. That is understandable because law school teaches you how to “think like a lawyer” and not how to practice law. When I was in law school, I remember thinking “what does practicing law actually mean?” If you think about, the phrase “practicing law” doesn’t make a whole lot of sense.

For example, in law school, your professors teach you the substantive area of law – i.e. family law, trust and estates, evidence, criminal law, environmental law, etc. However, they don’t tell you how to use that knowledge to help a client who has a child custody problem.

After law school, you quickly that “practicing law” means getting contacted by a client, signing him or her up with a legal services agreement, negotiating payment (usually a retainer), and filing the initial paperwork necessary to get the process that person wanted started. In the child custody arena, the lawyer may need to file a Petition for Dissolution of Marriage or Motion to Modify Child Custody.

If you are an attorney coming out of law school who will be joining a small to medium size firm, the law firm partners are going to expect you to have some level of client contact and eventually start taking your own cases. Many young attorneys end up practicing in field like family law and/or criminal law because the client base is always there and it is a good way to get clients so that you can quickly generate billable hours.

So there is your niche area. But it doesn’t stop there. If you want to be good at anything – for instance, fly fishing – you need to practice. You need to hone your skills. You need to be very good at what you do and develop nuance. Don’t ever under estimate this trait when developing your niche area.

If you do choose family law, good for you. You are likely to end up with a lot of clients who take your advice to heart. You are also going to have clients who fight over their children and want custody of them. If you can handle the stress created by that situation and you truly want to help families, family law may be for you.

How A Law School Predictor Site Benefits Potential Law Students

After learning from a career counselor what the prerequisites for a career in law are, you have completed your undergraduate degree and have taken the “LSAT” Law School Aptitude Test. With your “GPA” Grade Point Average and LSAT score numbers in hand, you may now go to an online law program predictor site and enter your numbers to see what the probability is of your success in being accepted to the Top Law Schools you are considering for obtaining your law degree. Backed by solid research, these predictor engines can provide very helpful information to all potential law students.

There are currently four admission prediction calculators available online. They are the Hour University of Maryland Law School Probability Calculator, a University of Maryland website; Law School Probability Calculator (which is a standalone site); Law School Admission Council’s Search for Schools Based on “UGPA” University Grade Point Average and LSAT scores (more commonly and simply known as the “LSAC” Law School Admissions Council Calculator); and “LSP” Law School Predictor. All four use the numbers from your LSAT score and your undergraduate “GPA” Grade Point Average as the data for determining your chances of achieving admission to various law programs.

How A Law School Predictor Site Benefits Potential Law Students

The Hour University of Maryland Probability Calculator is an academic web-based resource for University of Maryland students and others. It utilizes only “LSN” Law School Nationwide data (gathered from all the law degree schools) that is self-reported by applicants then generates chance results. This site aggregates this data to calculate the user’s percentages when compared to all LSN applicants with similar scores who achieved admission to different specific law programs. The results are listed in a “Record” column. Also listed in another column are percentages of those who were accepted with worse scores than the user. Conversely, another column lists percentages of those with higher scores who did not get accepted. When reading the results, if the “In with Worse” stats are high, you stand a better chance of admission. If the “Rejected with Better” stats are low, you also stand a greater chance of admission. You may also tweak your comparison percentage according to applicants who are wait listed and by factoring in comparison to “URM” Under Reported Minorities candidates.

Law School Predictor (LSP) provides comparisons with the top 100 full-time school programs, full-time unranked law programs and schools with part-time law programs. It relies on all law studies’ admissions index formulas (which each develops from their own students’ data) plus the 75% and 25% GPA and LSAT data of students who matriculated from each school to develop chance percentages. This program also factors in information on URM status and its most unique component is the application of a hidden penalty or boost to the user’s chances based on being a splitter, although this part of the program is still being developed. A splitter may have a high LSAT score when compared to his or her GPA, or a lower LSAT with a high GPA. The newest available predictor program available, it is also loads the most slowly of the four.

The Law School Probability Calculator is basically like the Hour University of Maryland choice, but with less incorporated features. It also generates a 95% interval of confidence using logistic regression to provide data the user can see at the site. The Law School Admission Council Calculator takes all the gathered data from applicants of the previous admission cycle at each school to generate its chance predictions. This site displays the results as colored bar graphs, with green for the applicant’s prediction and purple for the college’s comparative data. Because the prediction range can be very broad at times, a number of the very top law programs choose not to participate in this site’s program, so predictions for you with those schools are not available.

The LSAT is a much researched testing device that yields consistently useful results. That is why any law studies admission committee is going to give great consideration to your LSAT score. When considered concurrently with your GPA, this data offers predictive validity to your chances of admission when compared to admission data of various law schools’ previous candidates. Making use of one of these online school predictor sites can give you a fairly accurate picture of your chances of admission to the law schools of your choice.

California’s Gun Control Laws and Legislation

California is considered to have some of the strictest gun control laws in the country with approximately 950 firearm laws currently in effect. Supporters of stricter gun laws argue that these laws are necessary to curb crime and enhance safety, while critics of gun control argue that the laws infringe upon the Constitutional right to bear arms afforded to all citizens by the Second Amendment, and that safety is reduced because citizens are less able to use firearms to protect themselves. Because there are very few federal firearms laws, individual states have been left to regulate the sale, possession, and use of firearms and ammunition. As a result, state laws vary significantly from state-to-state.

In 2012 alone, no fewer than six bills have been introduced in California that address existing gun laws or create new gun laws. These bills include:

Senate Bill 610 – Concealed Handgun Permit Application (in effect since January 2012)
Senate Bill 819 – Transfer of Background Check Fees (in effect since January 2012)
Assembly Bill 144 – Unloaded Handgun Open Carry Ban (in effect since January 2012)
Assembly Bill 809 – Long Gun Registration Law (effective in 2014)
Assembly Bill 1527 – Long Gun Open Carry Ban (pending)
Senate Bill 427 – Ammunition Registration (vetoed)
Senate Bill 610 states that Gun owners are not required to obtain liability insurance before getting a permit to carry a concealed weapon. The law also standardizes the application process and does not require an applicant to pay for training courses prior to obtaining a permit. This was the only recent legislation that was applauded by groups who urge less restrictive gun laws.

Senate Bill 819 allows the Department of Justice to access the Dealer Record of Sales (DROS) funds in order to pay for the enforcement of certain gun possession laws. Originally, DROS funds were used only to pay for the administrative costs of obtaining background checks. Critics of this law argue that there will be insufficient DROS funds to fund enforcement.

Gun control advocates supported both Assembly Bill 144 and 809. AB 144 prohibits a person from openly carrying an unloaded handgun in most public places; and is already effective; and AB 809 will become effective on January 1, 2014, and requires the registration of all newly purchased rifles and shotguns. Currently, there is no state law that requires registration of rifles or shotguns, and only new residents of California are required to register handguns within 60 days. Failure to register a handgun is a misdemeanor; however, law enforcement typically will not charge gun owners who comply with the registration law after the 60 days.

In the wake of the recent gun crimes in Arizona and Colorado, Assembly Bill 1527 was recently passed in California and is now awaiting the governor to approve or veto. The bill would prohibit the open carry of long guns, which includes rifles and shotguns. Critics of AB 1527 argue that this is unconstitutional, while supporters argue that this is merely a necessary expansion of AB 144, which now outlaws the carry of open unloaded handguns. Supporters argue that the sight of rifles and shotguns can be frightening and should be prohibited in most public places.

Governor Jerry Brown, who is a gun-owner, vetoed Senate Bill 427, which would have allowed police to collect sales records from ammunition retailers, required retailers to notify the police if they intended to sell ammunition; and prohibited the online and mail order purchase of certain calibers of ammunition. Critics of SB 427 argued that many of the calibers of ammunition that were identified in the law are popular among hunters, and would have an impact on sales.

In general, groups that advocate for gun laws argue that strict gun laws help reduce violence, particularly domestic violence. Advocates point out that states with strict gun laws have lower incidences of suicides and crimes of passion that result in homicide. In 2010, 8,775 out of almost 13,000 murders were committed with firearms. Opponents of gun laws, however, argue that the right to bear arms must not be infringed upon, and that law abiding citizens do not need restrictions; while non law-abiding gun owners will not be deterred from criminal activity regardless of gun laws. A 2010 survey estimates that approximately 300 million firearms are owned by civilians in the United States, which is 50% of all guns in the world. It is estimated that there are 88 guns per 100 U.S. residents, the highest per capita in the world. In comparison, the second highest gun ownership per capital is Serbia, with 58 guns per 100 residents.

The debate regarding gun control extends beyond California and the United States. The United Nations has tried to create an international treaty to regulate global arms trades, which is estimated at $60 billion every year. The treaty would require all countries to establish national regulations to control the transfer of firearms and to regulate firearms brokers. It would also require countries to determine whether exported weapons would be used to violate international human rights or humanitarian laws, or be used by terrorists or organized crime. Presently, there are 192 member States of the United Nations.

What Role Does “The Law” Play In Mediation?

The role that the law can and should play in mediation is one of the most widely discussed topics in the field of dispute resolution. It comes up in almost all mediations. It takes volumes to fully develop all the ideas, but the introduction we can make in a blog post should be a useful starting point for your own thinking.

By agreeing to mediate, the parties have chosen to try to resolve the dispute to their own mutual liking, rather than ceding to a judge the power to impose a decision about the outcome. In theory, if a judge decides a dispute, he does so by applying “the law”, as that judge understands the law to be. We all know that two lawyers often disagree about how “the law” would make their case come out in court. We know that trial-level judges’ decisions are often reversed on appeal. Just from recognizing those few facts, perhaps the best we can hope for from the court system is an approximate adjudication of how “the law” applies to the parties’ case.

If all we can depend on in litigation is an approximation of what some Platonic ideal of the law would say, then why do we litigate anything? For one thing, it beats fisticuffs. For another, it’s in our culture, if not our genes. We all want to think that we’re law-abiding citizens. I do what the law says I should, so if I’m in court, I should win. (If I made a mistake and know it, or if I cheated, then by going to court I’m either trying to delay or I’m hoping the courts make a mistake about the law in my case, as they have in so many others.)

There are other reasons why we rely on “the law”. By convention and the social compact, we trust that “the law” provides general rules of behavior and defines some aspects or relationships for most run-of-the-mill situations. Even if we don’t know the millions of details in statutes, case decisions, ordinances, regulations, etc., we have the sense that they’re all there for the public good. We each think we have a general sense of what they say, even without having specific training. We think that they’re dependable. We accept that they state the way we’re supposed to live, even when we’re not consciously thinking about what the law requires or permits. Suppose two parties enter into a contract to buy and sell gizmos. They don’t have to say in their contract what happens if the seller fails to ship, or if the buyer fails to pay. They know “the law” will provide an after-the-default answer about their rights and remedies.

Alright, how do those observations about “the law” apply to mediation? We digress for a moment to negotiation and dispute resolution theory. Negotiating parties should always understand what the likely outcomes would be if they can’t agree to a resolution. The range of those other likely outcomes makes up a huge part of the reality in which the parties are negotiating or resolving disputes. This concept was popularized by Roger Fisher and William Ury (of the Harvard Negotiation Project) in their ground-breaking book, Getting to Yes. The acronym is BATNA, the best alternative to a negotiated settlement. If both parties come out better with their proposed deal than they would under the best alternative likely outcome, then it makes sense for both of them to agree. That’s why knowing “the law” can be important in mediation. It’s vital for everyone in the discussion to have of sense of the range of what a judge would probably say the outcome should be. Knowing the BATNA — including “what the law would say” — can be crucial in deciding the shape and dimensions of a mediated deal.

But that doesn’t mean that the point of mediation is to come to the same result that a judge would arrive at in litigation. The parties of course might choose to do that (and save a great deal of time and expense by doing so.) But a great strength of mediation is that the parties don’t have to do what “the law” would do. (The parties shouldn’t enter into a deal that’s “against the law,” but that’s a conversation for another day.)

A few examples can make this clearer than a long discussion. Suppose Alice, a patent holder, claims that Barry infringed on his patent because he’s been incorporating Alice’s invention in some products that Barry sold over the last few years. “The law” might say that if Alice proves the infringement, then Barry would have to pay a zillion dollars in damages whether or not he know of that he was infringing any patents. But Barry, and eventually Alice, know that Barry priced the products he has already sold without building in any license fee for the use of Alice’s patents. Therefore, he just doesn’t have a zillion dollars lying around to pay her. All “the law” would permit a judge to do is enter a judgment for a zillion dollars — assuming Alice could prove everything at a very expensive trial and the judgment withstood years of very expensive appeals. That would put Barry out of business and he couldn’t pay it all to Alice anyway. But in mediation, there is a whole world of opportunity for resolving this dispute to the advantage of both Alice and Barry. For example, they could agree that for products sold in the future, Barry will pay Alice a license fee of 6% instead of a more reasonable 4%. Then Barry would know how to price his future products to include enough to cover a 6% fee to Alice. Barry could stay in business, making money for himself and extra money for Alice every time he sold a product. A judge couldn’t order that, but the parties can certainly agree to it in mediation.

Take an example from another realm I’m familiar with. New York has a statute that sets forth how child support is to be calculated. Generalizing, it says that child support has to be paid by the parent with whom the child spends less time, to the parent with whom the child spends more time. Calvin and Doris are getting divorced. Calvin makes much more money than Doris does, but for their family, it makes sense that their child, Eddy, spend more time with Calvin. A judge would likely not have the power in a divorce case to compel Calvin to pay Doris any child support. But in mediation, Calvin can say, “OK, I understand that the law doesn’t require me to pay any child support. But to me, it only makes sense that I help Doris by paying her some child support. I want Eddy to know that his mom can also afford to live in a home where he has his own room, and she has enough money to pay for things that Eddy needs.” Doris and Calvin can make that agreement, and even if a judge wouldn’t have the power on his own to order child support payments to Doris, he does have the power to approve their agreement to that effect. That judicial approval of the parties’ agreement becomes a judgment.

The patent lawyers for Alice and Barry told them what “the law” is. Each could see that the law would probably provide a remedy that did neither of them any good, and harmed Barry. For Alice and Barry, “the law” helped them understand their circumstances, and they elected to resolve their disputes in a completely different way. The divorce lawyers for Calvin and Doris told them about “the law” of child support. Knowing that law, the couple decided to do what made sense to the two of them, and what was best for Eddy, despite what “the law” would have said.

The beauty is that in mediation, the role of the law is important, but not because it dictates an outcome. It’s just one more thing the parties can consider and discuss. The parties can decide how much weight to give “the law,” how much sense it makes in their situation. The parties, with the help of the mediator, can use “the law” only in the way they want to, only in the way that makes sense to both of them, in resolving their disputes.