Presentation on theme: "(7.2) Chapter 10 Islamic Law. The concepts of"— Presentation transcript:
1 (7.2) Chapter 10 Islamic 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 GodThat is, knowing God’s will and doing itThus necessary to work out the details of God’s will for practiceTheoretical knowledge about God’s nature is less importantIn thisit is like Orthodox Judaism (concerned for halakah)it is less like Christianity (where creeds have been more central)
3 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 lifeFiqh: 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 understandingFuqahā’ = those members of the ‘ulamā’ mainly engaged in fiqh
4 Sharī‘a = the way marked out by God for humans to live Sharī‘a and fiqh ctdStrictly 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 liveFiqh is often translated “jurisprudence”Usually assumed fuqahā’ have been largely successful in discovering the Sharī‘aHence what is strictly fiqh is often called Shari‘a
5 Other ways of distinguishing sharī‘a and fiqh Sharī‘a and fiqh ctdOther ways of distinguishing sharī‘a and fiqhSharī‘a is the general principles and fiqh is the detailsSharī‘a is what is in the Qur’an and the Sunna and fiqh is what is derived from these
6 Sharī‘a differs from Law in the Western sense Sharī‘a and fiqh ctdSharī‘a differs from Law in the Western senseCovers all areas of human lifeIs particularly elaborated in areas of ritualConsists of moral evaluations (ḥukm, pl. aḥkām) of actionsInfringement may or may not be punished in this world
7 The five Shari‘a valuations (aḥkām) Sharī‘a and fiqh ctdThe 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)
8 The valuations are also expressed as: Sharī‘a and fiqh ctdThe 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 followedoften needs interpretation (scholarly skills required)Sunna of the Prophet, especially ḥadīth that are ṣaḥīḥActions of Companions are also important
10 “Procedural” methods Ijtihād (1) “effort” uṣūl al-fiqh ctd“Procedural” methodsIjtihād (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 answerNormally involves derivation of the answer from the Qur’ān and SunnaMujtahid must have a high level of learning and moral standingMujtahid 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 pointConsidered authitative: “My community will not agree on an error.” (ḥadīth)Ijtihād (2) continuing ijtihādWhere there is no ijmā‘, ijtihād continuesWhere there is ijmā‘, absolute ijtihād (i.e. deriving valuations directly from the Qur’ān and Sunna) is precluded; taqlīd (imitating, following) is requiredIjtihād may continue within the framework and principles established by the existing ijmā‘
12 The welfare of the Muslim community, maṣlaḥa (or istiṣlāḥ). uṣūl al-fiqh ctdMethods of ijtihādQiyās (analogy).Find a common term (‘illa) between known and unknownE.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 ummaistiḥsān (preference): choose less strict approach on grounds of welfaremaṣlaḥa mursala: follow welfare apart from other Sharī‘a sources“Blocking the means”: actions that will lead to forbidden actions are forbidden
13 Methods of ijtihād (problematic) uṣūl al-fiqh ctdMethods 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‘aSiyāsa 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‘sḤanafī, 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 elsewhereAkhbārīs: 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., Sunna. 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 MuhammadImāms know the esoteric interpretation of the Qur’ān,Ijmā‘Less important for Shī‘is than SunnīsMainly seen as evidence of the Imāms’ views. Reason.Properly exercised, cannot contradict Sharī‘a.More dependable than qiyās
17 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 revolution.
18 The sources of jurisprudence (uṣūl al-fiqh): Akhbārīs Shi‘i uṣūl al-fiqh ctd.The sources of jurisprudence (uṣūl al-fiqh): AkhbārīsRecognize only the Qur‘an and the reports (akhbār) of the Prophet and the Imams.Reject ijtihādMore scope for ‘urf and siyāsaMore favorable to mystics
19 Muftīs and fatwas Fatwa: advisory opinion given by a faqīh. Muftī: the person who gives the fatwaThe reason for the opinion is usually explained in terms of the sources of fiqhThe opinion is not binding, in contrast to the judgment (ḥukm) of a judge or rulerA 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 – SunnīEarly period (to c 800): Law as administered, based onDecisions of Prophet, caliphs, administrators, judgesPre-Islamic local custom, administrative practiceQur’anSunna in the sense of perceived normative practice of the umma
22 Early period: views of faqīhs (to c 800) Qur’an History of fiqh – Sunnī ctdEarly period: views of faqīhs (to c 800)Qur’anSunna in the sense of perceived normative practice of the ummaRa’y: opinion (precursor to ijtihād)Ḥadīth, less important than ra’yBeginnings of Ḥanafī and Malikī madhhabs
23 History of fiqh – Sunnī ctd “Classical” period (from c 800-c 1200)Qur’anSunna as contained in the Ḥadīth of the ProphetAl-Shāfi‘ī main proponent of ḤadīthIjmā‘Qiyās / ijtihād
24 History of fiqh – Sunnī “Classical” period (from c 800-c 1200) ctd. Beginnings of Shāfi‘ī and Ḥanbalī madhhabsẒāhirī madhhab founded (c. mid-9th century), eventually died outRecognition of the right of ‘ulamā’ to interpret law and doctrineesp. after miḥnaConcept of maṣlaḥa introduced c. 900
25 Later period (from c 1200 – c 1900) History of fiqh – Sunnī ctdLater period (from c 1200 – c 1900)Claim that the “gate of [absolute] ijtihād” is closed, from c 1200Later scholars believed inferior to earlier onesSense that major issues had been decided by ijmā‘Closing of the gate of ijtihad not accepted by alle.g. Ibn TaymiyyaIjtihād still possible within the limits of a madhhab or in specific casesMutual acceptance of the four madhhabs, c
26 History of fiqh – Twelver Shī‘ī Pre-OccultationImām provided authoritative teachingSixth Imām, Ja‘far al-Ṣādiq, founder of Shī‘ī fiqhPost-OccultationVarious tendencies, emphasizing akhbār or ijtihādAkhbārī school developed, 13th to 15th centuries, predominant to 18th centuryUṣūlī school predominant from late 18th centurySystem 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 peopleMost, including ‘ulamā’ took to smokingA few remained adamant against itEffectively, 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).