(7.2) Chapter 10 Islamic Law.

1. (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.

2. 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)

3. Key terms: Sharī‘aandfiqh, 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

4. Sharī‘a and fiqh ctd Strictly speaking: Sharī‘a = the way marked out by God for humans to live Fiqh = 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

5. 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

6. 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

7. 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) • fardkifaya(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)

8. Sharī‘a and fiqh ctd The valuations are also expressed as: • Permitted (ḥalāl) (includes Obligatory, Recommended, Permissible, Reprehensible) • Forbidden(ḥarām).

9. 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

10. uṣūl al-fiqh ctd “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

11. 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 • Ijtihādmay continue within the framework and principles established by the existing ijmā‘

12. uṣūl al-fiqh ctd 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

13. 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

14. 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)

15. 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.

16. 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

17. Shi‘i uṣūl al-fiqhUṣūlīs 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.

18. Shi‘iuṣūl al-fiqhctd. 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

19. 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

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

21. History of fiqh – Sunnī Early 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

22. History of fiqh – Sunnī ctd 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

23. 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

24. 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

25. History of fiqh – Sunnī ctd 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.

26. 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

27. 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)

28. 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

29. 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