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Islamic Law
An Introduction to Islamic Jurisprudence and Legal Methods
Mosa Sayed
Doctoral thesis
”Islam and Inheritance law in the
multicultural Sweden – A study in private
international and comparative law”
Outline
1. Islamic law
• The Islamic sources
• The development of the Sharia
• The structure of Sharia
2. Contemporary problems – European
context
• Examples of tensions
• Discriminating rules?
• Islamic law in a Western context
(possibilities or impossible)
The sources for Islamic law
• 4 Islamic sources, within sunni fiqh
• Roots of law (usul fiqh)
• Means for understanding the Sharia
1. Koran
• The word of God (do not come in new
edition and problematic to translate)
• Announced between the years 610-632
by the prophet Muhammad
• 114 sura (chapters), around 6600 ayat
(verses)
• The Koran is not a legal document;
mainly of moral, ethical, religious
character
2. Sunna
• The acts and sayings of the Prophet
• The Prophet the best commentator of the
Koran
• Complements and explains the koranic
text
• Can be found in the hadith-collections
(al-Bukhari and Muslim the most important)
3. Ijtihaad; Personal reasoning
• Qiyas (analogical reasoning)
• Fundamental in developing the law
• Legal solutions out of already established
principles
4. Ijma; Consensus
• The legal schools agreed upon a legal
matter (since it is, according to the
Islamic view, impossible to agree in what
is wrong)
• To some extent the Islamic law became
more similar and coherent through the
institute of ijma
Legal principles
- Maslahat al-Umma (common good)
- Islah (istilah and istihsan) – well-being of
the Muslim community
- Darura (necessity based of essential
goals – maqasid of sharia)
Abortion as an example!
The Koranic message and the Sharia
• The Koranic message is not primary a
legal reformation
• Moral character
The development of the law
• Started and was completed in the
formativ period (ca. 750-950)
• Established through individual jurists and
schools of law
Islamic law an extreme form of jurist’s
law
Legal schools
Two major branches
Sunni and Shia
The (4) sunni schools of law;
• Maliki
• Hanafi
• Shaafii (named after imam Muhammad ibn idris
ash Shafii)
• Hanbali
Shia school of law;
• Jafari (ithna ashariya: the twelvers)
Taqliid; imitation
• From the 10 to 19 century the doors of
ijtihaad (personal reasoning) closed and
was replaced by the duty of imitation
• Right to exercise ijtihaad reopened i
modern time
The nature of Sharia
• Normative system of Islam
• Includes more than legal subjects
• God the law-giver; his will is the law
Sharia; A code of living
Al-Ahkaam al-Khamsa (The five folded
division)
Human acts are according to the Sharia of
five kinds:
• Fard (obligating acts)
• Haraam (strictly forbidden)
• Manduub (advised to do)
• Makruuh (advised to refrain from)
• Jaiz (acts which are indifferent)
Sharia is associated with:
• Men´s one-sided right to divorce
• Men´s right to polygamy
• The position of women in the inheritance
system
I often appear without
any reason …
The grounds for polygamy
Chapter 4 verse 3:
”If ye fear that ye will not deal justly with the
orphans, marry of the women, who seem
good to you, two or three or four; but if ye
fear that you shall not be able to deal
justly (with them) then only one…”
Modern Muslim legislation
Polygamy; an example
• The marriage form is less restricted
• Exentensiv restrictions (polygamy
extraordinary i practical life)
• Forbidden
Polygama forbidden
The Tunisian law of personal status
(Majallat al-Ahwaal al-Shakhsiyya) art 18
states:
”Polygamy is prohibited.
Any man who marries while he is already
married before the bond of his previous
marriage is dissolved shall be punished by
one year in jail and by fine in the amount
of two hundred and forty thousand francs
or by one of the penalties.”
The Tunisian arguments
Chapter 4 verse 129 Koran:
”You are never able to be fair and just as
between women, even if it is your sincere
desire…”
Representation
Grandfather
Deceased
According to the
traditional Muslim law
of inheritance the son
will in this case exclude
all grandchildren
Son (son
deceased
Son
before father)
g. child
g. child
g. child
Obligatory wills
Grandfather
The
deceased
Obligatory will
Dead son
g. child g. child
Son
g. child
Legal (Islamic) basis:
Chapter 2 vers 180 in the Koran:
”It is prescribed for you, when death
approaches any of you, if he leave any
estate, that he make a will to parents and
next of kin …”
Islam in Europe
• Large Muslim population in Europe
• Swedish private international law (the law
of nationality is applicable to inheritance)
The Islamic law of inheritance
•
•
•
•
Regulated in the Koran
The knowledge of the religious duties
Strong religious significance
Applied throughout the world of Islam
Al-Ahkaam al-Khamsa (The five
folded division)
Human acts are according to the Sharia of
five kinds:
• Fard (in plural; faraiid) (obligating acts)
• Haraam (strictly forbidden)
• Manduub (advised to do)
• Makruuh (advised to refrain from)
• Jaiz (acts which are indifferent)
Pre-Islamic conditions
• Tribal society
• Group solidarity
• Inheritance were designed to secure the
individual tribe within the tribal warfare
• Right to inheritance belonged to male
relatives, the asaba
The koranic inheritance rules
• A new group of heirs (the holders of the
religious duties or the sharers)
• Consist of those who were not entitled to
succed in the pre-Islamic time (mostly
women)
• The sharers is always allotted their share
in the first instance
Characteristic for the sharers
• They are entitled to fixed shares (fard, in
plural faraaid)
• The shares are always given in the first
instance
• What is left, the residue, shall go to the
pre-Islamic customary heirs
Summary; The Islamic inheritance
system
• Two important groups of heirs (sharers
and the residuaries)
• The group division is not a matter of
priority
Example
Mother Father
D
Son
Husband
Son
Sharers:
Father 1/6
Mother 1/6
Husband 1/4
The sons inherit as
residuaries
To sum up….
Of the totally 100 000 kr
Husband: 1/4, 25 000 kr
Father: 1/6, 16 667 kr
Mother: 1/6, 16 667 kr
Residue: 41 666
Sons: 41 666 kr
Swedish law
The surviving
spouse will
take it all
Exampel
Mother
Father
Husband
D
Father: X
Mother: X
Son
Son
Sons: succeeds
after the death of
the surviving
spouse
Tasiib
The portion of a male relative should in
some circumstances be equal to the
portion of two female relatives
The example
Husband: 1/4, 25 000 kr
Father: 1/6, 16 667 kr
Mother: 1/6, 16 667 kr
Residue: 41 666 kr
Son 1: around 20 833 kr
Son 2: around 20 833 kr
The principal of Tasiib
Applicable when the deceased leaves
female and male relatives of the same
class, degree and strength of blood tie.
Three situations:
• Daughters together with sons
• Sisters together with brothers
• Granddaughters together with grandsons
Operation of Tasiib
Sharers:
Mother
Mor Father
Father: 1/6
Mother: 1/6
P
Daughter
Husband
Son
Husband: 1/4
Operation of Tasiib:
Daughter: 1/3 of the
residue
Son: 2/3 of the residue
Distribution according to Tasiib
Estate 100 000 kr
Husband: 1/4, 25 000 kr
Father: 1/6, 16 667 kr
Mother: 1/6, 16 667 kr
Residue: 41 666
Son: 27 777 kr
Daughter: 13 889 kr
The Muslim explanation of Tasiib
.
Inheritance
2
1
mahr
Male
Female
Maintenance
The multicultural society
Closing questions
• How should we respond to the principal
of Tasiib?
• What is the meaning of legal pluralism?