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(7.2) CHAPTER 10 ISLAMIC LAW. The concepts of Sharia (the divine will as law) and fiqh (jurisprudence), the bases and practice of these; Sunni and Shii.

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Presentation on theme: "(7.2) CHAPTER 10 ISLAMIC LAW. The concepts of Sharia (the divine will as law) and fiqh (jurisprudence), the bases and practice of these; Sunni and Shii."— Presentation transcript:

1 (7.2) CHAPTER 10 ISLAMIC LAW. The concepts of Sharia (the divine will as law) and fiqh (jurisprudence), the bases and practice of these; Sunni and Shii versions.

2 Islam is often called a religion of law Islam means submission/obedience to God That is, knowing Gods will and doing it Thus necessary to work out the details of Gods will for practice Theoretical knowledge about Gods 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: Shar ī a and fiqh, Shar ī a (or shar) > from sharaa, 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 ā n and Sunna > the body of laws and prescriptions resulting from this understanding Fuqah ā = those members of the ulam ā mainly engaged in fiqh

4 Shar ī a and fiqh ctd Strictly speaking: Shar ī 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 fuqah ā have been largely successful in discovering the Shar ī a Hence what is strictly fiqh is often called Sharia

5 Shar ī a and fiqh ctd Other ways of distinguishing shar ī a and fiqh Shar ī a is the general principles and fiqh is the details Shar ī a is what is in the Quran and the Sunna and fiqh is what is derived from these

6 Shar ī a and fiqh ctd Sharīa differs from Law in the Western sense Covers all areas of human life Is particularly elaborated in areas of ritual Consists of moral evaluations ( ukm, pl. a kām) of actions Infringement may or may not be punished in this world

7 Shar ī a and fiqh ctd The five Sharia valuations (a k ā m) 1. Obligatory (w ā jib or far ). (God rewards for doing and punishes for omitting) fard ayn (individual) fard kifaya (sufficient number of a group) 2. Recommended (sunna, mand ū b, musta abb). (God rewards for doing, does not punish for omitting) 3. Permitted, neutral. (mub ā ). (God neither rewards for doing nor punishes for omitting) 4. Reprehensible, hated (makr ū h). (God rewards for avoiding, does not punish for doing) Forbidden ( ar ā m). (God rewards for avoiding, punishes for doing)

8 The valuations are also expressed as: Permitted ( al ā l) (includes Obligatory, Recommended, Permissible, Reprehensible) Forbidden ( ar ā m). Shar ī a and fiqh ctd

9 The sources (or roots) of jurisprudence (u ū l al-fiqh): Sunn ī version Authoritative texts (na ) Qur ā n: where clear and specific must be followed often needs interpretation (scholarly skills required) Sunna of the Prophet, especially ad ī th that are a ī Actions of Companions are also important

10 Procedural methods Ijtih ā d (1) effort Effort of the faq ī h to discover the proper shar ī a valuation in a case where the Qur ā n and Sunna do not provide a clear answer Normally involves derivation of the answer from the Qur ā n 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. ( ad ī th) Muqallid (imitator, follower) one who is not a mujtahid u ū l al-fiqh ctd

11 u ū l al-fiqh ctd Procedural methods ctd. Ijm ā (Consensus) Agreement of all mujtahids on a particular point Considered authitative: My community will not agree on an error. ( ad ī th) Ijtih ā d (2) continuing ijtih ā d Where there is no ijm ā, ijtih ā d continues Where there is ijm ā, absolute ijtih ā d (i.e. deriving valuations directly from the Qur ā n and Sunna) is precluded; taql ī d (imitating, following) is required Ijtih ā d may continue within the framework and principles established by the existing ijm ā

12 Methods of ijtih ā d Qiy ā s (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 ar ā m) and whiskey (to be determined) The welfare of the Muslim community, ma la a (or isti l ā ). ma la a : where other methods give more than one answer, choose the one most consistent with the welfare of the umma isti s ā n (preference): choose less strict approach on grounds of welfare ma la a mursala: follow welfare apart from other Shar ī a sources Blocking the means: actions that will lead to forbidden actions are forbidden u ū l al-fiqh ctd

13 Methods of ijtih ā d (problematic) Ray, considered opinion of the faqih, not based on formal reasoning; common in the early days but later rejected. Devices ( iyal), means of avoiding apparent intent of the law. rejected by many. Custom, (' ā da or adat, urf) Not usually recognized as formal source of fiqh but important in practice. Custom as separate from Shar ī a / Custom as incorporated within Shar ī a Siy ā sa or Q ā n ū n. (governance or policy), government actions & rules. Siy ā sa as separate from Shar ī a / Siy ā sa as incorporated within Shar ī a

14 Sunni Schools of Jurisprudence, Madhhabs. May be seen as distinct ijm ā s anaf ī, named after Abu Hanifah (d 767) Malik ī, named after Malik ibn Anas (d 795) Sh ā fi' ī, named after Muhammad ibn Idris al-Shafi'i (d 819) anbal ī, named after Ahmad ibn Hanbal (d 855) Differences of opinion among scholars are a mercy from God. ( ad ī th)

15 Twelver Sh ī i schools of jurisprudence: U ū l ī s: accept ijtih ā d, predominant today, in Iran and elsewhere Akhb ā r ī s: reject ijtih ā d, were strong in the past. Today found only in a few places, such as Bahrain.

16 The sources of jurisprudence (u ūl al-fiqh): U ūlīs Quran., Shiis are more inclined than Sunnis toward esoteric interpretations. Sunna. Includes the reports (akhb ā r) of the words and deeds of the twelve Imams as well as Muhammad Im ā ms know the esoteric interpretation of the Qur ā n, Ijm ā Less important for Sh ī is than Sunn ī s Mainly seen as evidence of the Im ā ms views. Reason. Properly exercised, cannot contradict Shar ī a. More dependable than qiy ā s

17 Shii u ū l al-fiqh U ū l ī s ctd. Ijtih ā d: here refers to the whole process of discovering Shar ī a valuations through the sources (rather than being seen as a one of the sources). Mujtahids are generally given the title Ā yatoll ā h (Sign of God) Taql ī d: Every Shii believer should follow (be muqallid to) a living mujtahid. Marja al- taql ī d (marja-i taqlid in Persian), source of emulation, a mujtahid who gains a following of muqallids Has the title Ā yatoll ā h U m ā, Grand Ayatollah. There are typically 4 or 5 marjas 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 Shii u ū l al-fiqh ctd. The sources of jurisprudence (u ū l al-fiqh): Akhb ā r ī s Recognize only the Quran and the reports (akhb ā r) of the Prophet and the Imams. Reject ijtih ā d More scope for urf and siy ā sa More favorable to mystics

19 Muft ī s and fatwas Fatwa: advisory opinion given by a faq ī h. Muft ī : 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 ( ukm) 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 – Sunn ī Early period (to c 800): Law as administered, based on Decisions of Prophet, caliphs, administrators, judges Pre-Islamic local custom, administrative practice Quran Sunna in the sense of perceived normative practice of the umma

22 Early period: views of faq ī hs (to c 800) Quran Sunna in the sense of perceived normative practice of the umma Ray: opinion (precursor to ijtih ā d) ad ī th, less important than ray Beginnings of anaf ī and Malik ī madhhabs History of fiqh – Sunn ī ctd

23 Classical period (from c 800-c 1200) Quran Sunna as contained in the ad ī th of the Prophet Al-Sh ā fi ī main proponent of ad ī th Ijm ā Qiy ā s / ijtih ā d

24 History of fiqh – Sunn ī Classical period (from c 800-c 1200) ctd. Beginnings of Shāfiī and anbalī madhhabs āhirī madhhab founded (c. mid-9th century), eventually died out Recognition of the right of ulamā to interpret law and doctrine esp. after mi na Concept of ma la a introduced c. 900

25 Later period (from c 1200 – c 1900) Claim that the gate of [absolute] ijtih ā d is closed, from c 1200 Later scholars believed inferior to earlier ones Sense that major issues had been decided by ijm ā Closing of the gate of ijtihad not accepted by all e.g. Ibn Taymiyya Ijtih ā d still possible within the limits of a madhhab or in specific cases Mutual acceptance of the four madhhabs, c History of fiqh – Sunn ī ctd

26 History of fiqh – Twelver Sh ī ī Pre-Occultation Im ā m provided authoritative teaching Sixth Im ā m, Jafar al- ā diq, founder of Sh ī ī fiqh Post-Occultation Various tendencies, emphasizing akhb ā r or ijtih ā d Akhb ā r ī school developed, 13th to 15th centuries, predominant to 18th century U ū l ī school predominant from late 18th century System of marjas 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 qiy ā s or ma la a (along with counter arguments): Intoxicating, thus ar ā m on analogy with wine. (no more so than coffee, which had become acceptable) Associated with har ā m 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 ulam ā took to smoking A few remained adamant against it Effectively, the ijm ā 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 ijm ā among the ulam ā. "In view of the harm caused by tobacco, growing, trading in and smoking of tobacco are judged to be ar ā m. 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).

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