Implementing Islamic Law

1. Implementing Islamic Law Seth Ward

2. Sources and Precedents • Qur’an: Basic source of Islamic law • Revealed over 22 years. • Earlier sections poetic, after 622 more legal

3. Sources for Law • Other sources: • Traditional Arab practice • Practices of Muhammad or other early Muslims • Practice of Christians and Jews • Decisions of early judges

4. Umayyad • Abd al-Malik’s reforms

5. Emergence of the Law Schools • Abu Hanīfa (Iraq) d. 767 • Malik b. Anas (Madina) d. 795 • Al-Shāfi‘ī (b. Gaza, d. Egypt) d. 819 – often credited with four principles of Islamic law • Qur’ān • Hadīth • Qiyās (“analogy”) • Ijmā‘ (“consensus”) • Ahmad ibn Hanbal (Baghdad) d. 855

6. Hadith Collections • Al-Bukhārī (d. 870) and Muslim b. al-Hajjaj (875): The “Sahihayn” • Four other sunni books (sunan): Abu Dawud, al-Tirmidhi, al-Nasa’I and Ibn Majah.

7. Shia • 12ers: The last imam disappeared in 874 • “Ambassadors” until 941. • By this time there were collections of “Shia hadith” notably by al-Kulayni d. 941 • Principles: Qur’an, Hadith of Muhammad, traditions of Imams, Aql or mantiq. • Other collections by Ibn Babawayh and al-Tusi.

8. Five categories (ahwal), Hadd, and Kings • Required Wājib, fard (individual and community). sunna mu‘āqada • CommendableMustahabb • Allowed or Neutral Mubāh • Reprehensible Makrūh • Prohibited Harām http://hi-in.facebook.com/topic.php?uid=2441569136&topic=3510 • “King’s Law” – al-ahkam al-sultaniyya. “Law of Government” • Muhtasib “Market Inspector” • “HADD” PUNISHMENTS – theft, fornication, false accusation of fornication

9. Modern Times Various regions came to be dominated by one school • Hanafi Law—preferred by Ottomans, and by Mughals and the British in India. • Shafi’i—Egypt and parts of the Middle East until Ottoman times; Southeast Asia • Maliki—West Africa. • Hanbali—preferred school of Saudi Arabia and Wahhabi movement • Ja’fari (12-er Shia)—imposed by Safavids

10. Distribution of madhahib (law schools)

12. Ottoman and British India Reforms Ottoman Tanzimat 1839-1859, and Constitution of 1876, mecelle (mejelle). “Anglo-Muhammadan Law” in India

13. New Paths in Sharia • Muhammad Abduh • Sayyid Sabiq • Fazlur Rahman • Khaled Abou El Fadl: “Puritans” vs. “Moderates,” Engineers as experts. • Iranian Revolution as a model • Convergence of various “extremists and puritans.”

14. Some issues to discuss • Financial – prohibition of riba • Prisoner considerations • Halal food and religious rights • Ibadat – such as prayer, fasting, • Religious Guidance • Human and Civil Rights • Cairo Declaration

15. Women’s Status • “Sharia Debates” in Britain, Australia and Canada • Shari’a courts: agents of shari’a or of the State?

17. Gallup summary • The significance of religion provides important context to understand the influence of Sharia in all three countries. • In Iran, 73% of men and 78% of women say religion plays an important role in their lives, • in Egypt, virtually all men (98%) and women (99%) say the same. • But even in staunchly secular Turkey, religion looms large for most individuals. Seventy-four percent of Turkish men and 72% of Turkish women tell Gallup that religion plays an important role in their lives. • For many Muslims, the combination of the importance of religion and the divine foundations of Islamic religious law give Sharia legitimacy to provide checks and balances on a government's powers. Overall, the poll findings show that within each country, men and women hold similar views about Sharia. Iranians, Egyptians, and even many Turks believe religion and government can be integrated. • http://www.gallup.com/poll/108724/iranians-egyptians-turks-contrasting-views-sharia.aspx

18. What role can U.S. legal scholars play? Noah Feldman’s Fall and Rise of Shari’a I certainly am not arguing that American society should welcome Sharia courts, or that we should fear them. In the US, those who wish to follow Sharia should be able to do so within the rights and limitations of our 1st amendment Religious Civil Rights—including the free exercise and no establishment clauses.

19. Implementing Islamic Law Today We should be aware of the complexities of the issues raised, with ample opportunities for open, informed discussion. In approaching these issues, whether in traditionally Islamic countries, in the US or elsewhere, we should be aware of: • The history and complexity of the discourse about law and its meanings for Muslims; • Human rights (including rights to freedom of belief, practice, and spiritual guidance); • Discussion about what to do when Muslims implement Shari’a in ways inconsistent with human rights—or interpret Sharia in ways that are themselves un-Islamic;

20. Implementing Islamic Law and issues of national, political and individual identity surrounding the implementation of Sharia. Thank you