2009年6月ACCA試題：F4試題（全球）答案三

　?。╟） Precedent in Islamic Law

　　Sharia， or Islamic law， in its pure form derives its authority from two sources： the Quran， which is held to express the commandments and instructions of Allah as revealed to the prophet Muhammad， and the Hadith， which are held to be the practices and teachings of the prophet， and consequently to be divinely sanctioned.

　　The Quran， being the fundamental source of law upon which even the hadith is based， is primary precedent： its rulings are binding and not subject to any dispute or further interpretation. The hadith is secondary to the Quran， for it was collected and written down by humans. In spite of the care taken to authenticate the many thousands of examples remembered by the companions of the Prophet， it is recognised that due to human frailty the sources were prone to error， and this gave rise to the different categories of hadith depending on their authority.

　　After the Prophet‘s death there was a need， to develop a system of jurisprudence that would serve the dual purpose of safeguarding the central belief system of Islam， whilst simultaneously allowing the generation of legal rulings to deal with previously unprecedented matters， not dealt with directly in the Quran or the Hadith texts. This necessary process gave rise to the development of the science of understanding and interpreting legal rulings known as fiqh.

　　Fiqh in Arabic means ‘knowledge’， ‘understanding’， or ‘comprehension’。 Besides direct rulings from the Quran and hadith， the scholars of fiqh generated a body of additional rulings， using tools of jurisprudence， that serve as a third source of law.

　　The tools involved in giving life to this third body of rules were ijma （consensus）， istihsan （legal extrapolation）， ijtihad （interpretation）， and qiyas （analogy）。

　　Some would argue that the body of Islamic jurisprudence has been completed by the jurists of the earlier centuries. Such views gave rise to the doctrine of Taqlid， which requires the adherence to， and the refusal to further develop through the use of itjihad， the legal principles established by the legal scholars of the second and third centuries of Islam. The more general opinion， however， would appear to be that Islamic law may be seen as consisting of two elements， the unambiguous and unchanging rules contained in the Quran and Hadith texts on one hand and the second element， developed through itjihad， which is still capable of development in line with social changes.

　　In conclusion it can be said that the Quran， and hadith， together with the legal rulings of scholars from the accepted schools of thought make up the body of Islamic law， the Shari‘ah. However within Islamic jurisprudence， only the authority of the rulings of the Quran， and at least the sahih （strong） hadith， cannot be challenged and constitute binding authorities. The rulings from scholars are， ultimately open to reinterpretation， nevertheless， if scholars unanimously agree on a certain point of law， the ruling is binding and has the force of law.

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