Branches of Jurisprudence

The first case that is analyzed in any book of Islamic law is MARRIAGE: it is the basis of human society and for this reason it has to be disciplined as a contract by the law. It can take:
- a licit form;
- an illicit form.

Then there are patrimonial rights, juridical capacity, penal law.


1. JURIDICAL CAPACITY

It depends on physical existence, Islamic faith, freedom.
➔ A Christian living in a Muslim country does not have juridical capacity.

Loss of juridical capacity:
- death;
- absence;
- apostasy (change of religion: it is forbidden).

Limitation:
- age;
- physical and mental illness;
- sex in public services;
- awful behaviour;
- insolvency.


2. MARRIAGE

In the Islamic conception of law, marriage is a contract (‘AQD) that is stipulated between three parts (man, woman and curator) and represents the basis of the society.

MAHR: “price of the bride”: it is paid by the man for having lawful sexual intercourse with a woman in order to procreate.
MAN: in order to be considered a man, he has to be Muslim and mukallaf (mental and physical wellness).
CURATOR: who testifies woman’s will (he has to be Muslim and mukallaf).

Blood relations, religious differences ➔ ABSOLUTE NULLITY;
Marriage between a Muslim man and a non-Muslim woman ➔ LAWFUL;
Marriage between a non-Muslim man and a Muslim woman ➔ VOID.

Nullability causes:
- vitia of the mutual consensus;
- vitia of the amount of mahr;
- lackness of the curator;
- huge social differences;
- impotence.

End of marriage contract:
- natural causes (death);
- voluntary causes (repudiation);
- legal causes (RIDDA: apostasy).


3. PENAL LAW

Penal law classifies punishments in 3 groups according to the offences.

Lex talionis (QISAS) ➔ bodily harms, murder in all cases. Possibility of forgiveness. Idea of blood price (➔ compensation).

Fixed punishments (HUDUD) ➔ prescribed in the Qur’an for 5 kinds of offences:
ZINA: unlawful sexual intercourse ➔ 100 lashes;
QADHF: false accusation of unlawful sexual intercourse ➔ 80 lashes;
QAT’AL-TARIQ: banditry ➔ crucifixion;
SARIQA: theft ➔ hand amputation (of foot in case of reiteration);
SHURBAT AL-KHAMR: drunkness ➔ lashes.

Discretionary punishments (TA’ZIR): sentences pronounced by the judge (QADI) ➔ no provision for death (according to a corrective ratio) ➔ prison, exile, confiscation, corporal punishments, etc.