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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?