(7.2) CHAPTER 10ISLAMIC LAW.

The concepts of Shari‘a (the divine will as law)

and fiqh (jurisprudence), the bases and practice of these;

Sunni and Shi‘i versions.

Islam is often called a religion of “law”

Islam means submission/obedience to God That is, knowing God’s will and doing it Thus necessary to work out the details of God’s will

for practice Theoretical knowledge about God’s nature is less

important

In this it is like Orthodox Judaism (concerned for halakah) it is less like Christianity (where creeds have been

more central)

Key terms: Sharī‘a and fiqh,

Sharī‘a (or shar‘) > from shara‘a, “to mark out a path to water” > the path God marks out for humans to follow in life > the divine law for life

Fiqh: from faqaha, to understand > to seek to understand (in a practical sense) the Qur’ān and Sunna > the body of laws and prescriptions resulting from this understanding

Fuqahā’ = those members of the ‘ulamā’ mainly engaged in fiqh

Sharī‘a and fiqh ctd

Strictly speaking:Sharī‘a = the way marked out by God for

humans to liveFiqh = the human understanding of the way

marked out by God for humans to live Fiqh is often translated “jurisprudence” Usually assumed fuqahā’ have been largely

successful in discovering the Sharī‘a Hence what is strictly fiqh is often called

Shari‘a

Sharī‘a and fiqh ctd

Other ways of distinguishing sharī‘a and fiqh

Sharī‘a is the general principles and fiqh is the details

Sharī‘a is what is in the Qur’an and the Sunna and fiqh is what is derived from these

Sharī‘a and fiqh ctd

Sharī‘a differs from Law in the Western sense

Covers all areas of human life Is particularly elaborated in areas of ritual

Consists of moral evaluations (ḥukm, pl. aḥkām) of actions Infringement may or may not be punished in this world

Sharī‘a and fiqh ctd

The five Shari‘a valuations (aḥkām)1. Obligatory (wājib or farḍ). (God rewards for doing and

punishes for omitting) fard ‘ayn (individual) fard kifaya (sufficient number of a group)2. Recommended (sunna, mandūb, mustaḥabb). (God

rewards for doing, does not punish for omitting)3. Permitted, neutral. (mubāḥ). (God neither rewards for

doing nor punishes for omitting)4. Reprehensible, “hated” (makrūh). (God rewards for

avoiding, does not punish for doing)

Forbidden (ḥarām). (God rewards for avoiding, punishes for doing)

The valuations are also expressed as:

Permitted (ḥalāl) (includes Obligatory, Recommended, Permissible, Reprehensible)

Forbidden (ḥarām).

Sharī‘a and fiqh ctd

The sources (or roots) of jurisprudence (uṣūl al-fiqh): Sunnī version

 Authoritative texts (naṣṣ)

Qur’ān: where clear and specific must be followed often needs interpretation (scholarly skills required)

Sunna of the Prophet, especially ḥadīth that are ṣaḥīḥ Actions of Companions are also important

“Procedural” methods

Ijtihād (1) “effort” Effort of the faqīh to discover the proper sharī‘a

valuation in a case where the Qur’ān and Sunna do not provide a clear answer

Normally involves derivation of the answer from the Qur’ān and Sunna

Mujtahid must have a high level of learning and moral standing

Mujtahid is not protected from error “The mujtahid who errs gets one reward; the mujtahid

who gets it right gets a double reward.” (ḥadīth) Muqallid (imitator, follower) one who is not a mujtahid

uṣūl al-fiqh ctd

uṣūl al-fiqh ctd “Procedural” methods ctd.

Ijmā‘ (Consensus) Agreement of all mujtahids on a particular point Considered authitative: “My community will not

agree on an error.” (ḥadīth)

Ijtihād (2) continuing ijtihād Where there is no ijmā‘, ijtihād continues Where there is ijmā‘, absolute ijtihād (i.e.

deriving valuations directly from the Qur’ān and Sunna) is precluded; taqlīd (imitating, following) is required

Ijtihād may continue within the framework and principles established by the existing ijmā‘

Methods of ijtihād

Qiyās (analogy). Find a common term (‘illa) between known and unknown E.g. bad effects of drunkenness are the common term

between wine (known to be ḥarām) and whiskey (to be determined)

The welfare of the Muslim community, maṣlaḥa (or istiṣlāḥ). maṣlaḥa : where other methods give more than one answer,

choose the one most consistent with the welfare of the umma istiḥsān (preference): choose less strict approach on grounds

of welfare maṣlaḥa mursala: follow welfare apart from other Sharī‘a

sources “Blocking the means”: actions that will lead to forbidden

actions are forbidden

uṣūl al-fiqh ctd

uṣūl al-fiqh ctd

Methods of ijtihād (problematic)

Ra’y, considered opinion of the faqih, not based on formal reasoning; common in the early days but later rejected.

Devices (ḥiyal), means of avoiding apparent intent of the law. rejected by many.

Custom, ('āda or adat, ‘urf) Not usually recognized as formal source of fiqh but important in

practice. Custom as separate from Sharī‘a / Custom as incorporated within

Sharī‘a

Siyāsa or Qānūn. (governance or policy), government actions & rules. Siyāsa as separate from Sharī‘a / Siyāsa as incorporated within

Sharī‘a

Sunni “Schools” of Jurisprudence, Madhhabs.

May be seen as distinct ijmā‘s

Ḥanafī, named after Abu Hanifah (d 767) Malikī, named after Malik ibn Anas (d 795) Shāfi'ī, named after Muhammad ibn Idris al-Shafi'i

(d 819) Ḥanbalī, named after Ahmad ibn Hanbal (d 855)

“Differences of opinion among scholars are a mercy from God.” (ḥadīth)

Twelver Shī‘i schools of jurisprudence:

Uṣūlīs: accept ijtihād, predominant today, in Iran and elsewhere

Akhbārīs: reject ijtihād, were strong in the past. Today found only in a few places, such as Bahrain.

The sources of jurisprudence (uṣūl al-fiqh): Uṣūlīs

Qur’an., Shi‘is are more inclined than Sunnis toward esoteric

interpretations. Sunna.

Includes the reports (akhbār) of the words and deeds of the twelve Imams as well as Muhammad

Imāms know the esoteric interpretation of the Qur’ān, Ijmā‘

Less important for Shī‘is than Sunnīs Mainly seen as evidence of the Imāms’ views. 

Reason. Properly exercised, cannot contradict Sharī‘a. More dependable than qiyās

Shi‘i uṣūl al-fiqh Uṣūlīs ctd.

Ijtihād: here refers to the whole process of discovering Sharī‘a valuations through the sources (rather than being seen as a one of the sources).

Mujtahids are generally given the title Āyatollāh (Sign of God)

Taqlīd: Every Shi‘i believer should follow (be muqallid to) a living mujtahid.

Marja‘ al- taqlīd (marja‘-i taqlid in Persian), “source of emulation”, a mujtahid who gains a following of muqallids Has the title Āyatollāh ‘Uẓmā, Grand Ayatollah. There are typically 4 or 5 marja‘s at one time, can be only

one. In the 20th century Grand Ayatollahs have established major

networks of madrasas, hospitals, etc. Grand Ayatollahs receive income from khums. The political potential of their authority was realized in the

1979 revolution.

Shi‘i uṣūl al-fiqh ctd.

The sources of jurisprudence (uṣūl al-fiqh): Akhbārīs

Recognize only the Qur‘an and the reports (akhbār) of the Prophet and the Imams.

Reject ijtihād More scope for ‘urf and siyāsa More favorable to mystics

 Muftīs and fatwas

Fatwa: advisory opinion given by a faqīh. Muftī: the person who gives the fatwa The reason for the opinion is usually explained in

terms of the sources of fiqh The opinion is not binding, in contrast to the judgment

(ḥukm) of a judge or ruler A fatwa may be requested by a judge, a ruler or an

ordinary person. Most Muslim governments today have an official mufti

or someone exercising that capacity (e.g. Council of Indonesian Ulama)

Fatwas have been the main way in which fiqh has developed in the later centuries

Dar al-Ifta’ in Cairo, the office of the Mufti of the Republic.

History of fiqh – SunnīEarly period (to c 800): Law as

administered, based on Decisions of Prophet, caliphs,

administrators, judges Pre-Islamic local custom, administrative

practice Qur’an Sunna in the sense of perceived

normative practice of the umma

Early period: views of faqīhs (to c 800) Qur’an Sunna in the sense of perceived

normative practice of the umma Ra’y: opinion (precursor to ijtihād) Ḥadīth, less important than ra’y Beginnings of Ḥanafī and Malikī

madhhabs

History of fiqh – Sunnī ctd

History of fiqh – Sunnī ctd

“Classical” period (from c 800-c 1200) Qur’an Sunna as contained in the Ḥadīth of the

Prophet Al-Shāfi‘ī main proponent of Ḥadīth

Ijmā‘ Qiyās / ijtihād

History of fiqh – Sunnī “Classical” period (from c 800-c 1200) ctd.

Beginnings of Shāfi‘ī and Ḥanbalī madhhabs

Ẓāhirī madhhab founded (c. mid-9th century),

eventually died out

Recognition of the right of ‘ulamā’ to interpret

law and doctrine esp. after miḥna

Concept of maṣlaḥa introduced c. 900

Later period (from c 1200 – c 1900) Claim that the “gate of [absolute] ijtihād” is

closed, from c 1200 Later scholars believed inferior to earlier ones Sense that major issues had been decided by

ijmā‘ Closing of the gate of ijtihad not accepted by all

e.g. Ibn Taymiyya Ijtihād still possible within the limits of a

madhhab or in specific cases Mutual acceptance of the four madhhabs, c.

1300.

History of fiqh – Sunnī ctd

History of fiqh – Twelver Shī‘ī

Pre-Occultation Imām provided authoritative teaching Sixth Imām, Ja‘far al-Ṣādiq, founder of Shī‘ī fiqh

Post-Occultation Various tendencies, emphasizing akhbār or ijtihād Akhbārī school developed, 13th to 15th centuries,

predominant to 18th century Uṣūlī school predominant from late 18th century

System of marja‘s developed in the 19th and 20th centuries

Views on smoking tobacco

Tobacco was introduced in the Muslim world shortly before 1600 and the Ottomans, Safavids and Mughals all tried to forbid it at first.

Fiqh arguments against it, based on qiyās or maṣlaḥa (along with counter arguments):

Intoxicating, thus ḥarām on analogy with wine. (no more so than coffee, which had become acceptable)

Associated with harām activities such as use of hashish (preferable to hashish)

Inducement to idleness and profligacy (also stimulates the mind)

Bad for health (many doctors prescribed it) Generally disgusting (not all agreed) An innovation (an innovation in custom, not in religious

matters) Associated with Christian Europeans (not all European customs

are bad)

Views on smoking tobacco, ctd.

These arguments did not convince most people

Most, including ‘ulamā’ took to smoking A few remained adamant against it Effectively, the ijmā‘ favored tobacco

Views on smoking tobacco, ctd.

Today: Some ‘ulama’ forbid tobacco on health grounds but to my knowledge there is not yet an ijmā‘ among the ‘ulamā’.

"In view of the harm caused by tobacco, growing, trading in and smoking of tobacco are judged to be ḥarām. The Prophet, peace be upon him, is reported to have said, 'Do not harm yourselves or others.' Furthermore, tobacco is unwholesome, and God says in the Qur'an that the Prophet, peace be upon him, 'enjoins upon them that which is good and pure, and forbids them that which is unwholesome'" (Permanent Committee of Academic Research and Fatwa, Saudi Arabia).

http://islam.about.com/od/health/a/smoking_fatwa.htm