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Introduction to Islamic Law 3 Sources of Law Vít Šisler Anglo-American University vsisler [at] gmail.com http://uisk.jinonice.cuni.cz/sisler Digitalislam.eu Introduction to Islamic Law – Islam and Origins of Islamic Law Introduction to Islamic Law – Islam and Origins of Islamic Law Islam (The Bare Essentials) Islam (The Bare Essentials) • 2nd most popular faith in the world, over a thousand million adherents • Muslims believe that Islam has always existed (given to Adam) • The word Islam means submission to God (s*l*m) • multifaceted character, orthopraxis • unity of Faith, Law and Culture • Islamic Law – crucial and inseparable part of Islam The Prophecy – Adam, Abraham (Ibrahim), Moses (Musa), Jesus (Isa) Ahl al-Kitab – The People of the Book, Christian and Jews Muhammad – the last Prophet of God The Holy Qur`an Universalism of Islam – revelation to the whole mankind, geopolitical aspects, International Law Introduction to Islamic Law – Islam and Origins of Islamic Law Introduction to Islamic Law – Islam and Origins of Islamic Law The Revelation Methodological problems when studying Islam and Islamic Law: Mecca (Makkah), 610 AD Muhammad, archangel Gabriel (Jibril) The Scripture of Qur`an (‘Uthman Khalif) - Religious Law, ambiquity, variant angles of perception - Muslim perception - word of God, divine origin History of Islam (The Bare Essentials) - Western academic approach 632 – 661 The four Khalifs – Khulafa ar-Rashidun (Mecca) Expansion (Syria, Egypt, Persia, Byzantine Empire) 661 – 750 Banu ‘Umayya (Damascus) Consolidation, hereditary government 750 – 1258 The Abbasids (Baghdad) - Schacht – unique phenomenon, unlike any other standard textbased legal system - contesting the divine origin in part or its entirety - existing pre-Islamic practise ‘The Golden Age’, Art & Science, decline Full development of Islamic Law - each methodology has its own strength and prejudices 1 Introduction to Islamic Law – Islam and Origins of Islamic Law Introduction to Islamic Law – Islam and Origins of Islamic Law Islamic Law – shari’ah The Holy Qur`an Shari’ah – the secure path (esp. to the water source) Fiqh – science about Law, ‘jurisprudence’ `Usul al-Fiqh – ‘the methodologies of Jurisprudence’, sources of Law • The Holy Qur`an The Revelation Mecca (Makkah), 610 AD Muhammad, archangel Gabriel (Jibril) The Scripture of Qur`an (‘Uthman Khalif) - surah • Sunnah - ayah • Qiyas – analogy • Idjma’ – consensus Introduction to Islamic Law – Islam and Origins of Islamic Law Introduction to Islamic Law – Islam and Origins of Islamic Law Al Fatiha 1. In the name of God, Most Gracious, Most Merciful. 2. Praise be to God, the Cherisher and Sustainer of the world; 3. Most Gracious, Most Merciful; 4. Master of the Day of Judgment. 5. Thee do we worship, and Thine aid we seek. 6. Show us the straight way, 7. The way of those on whom Thou hast bestowed Thy Grace, those whose (portion) is not wrath, and who go not astray. Introduction to Islamic Law – Islam and Origins of Islamic Law Introduction to Islamic Law – Islam and Origins of Islamic Law The number of direct & concrete normative verses in Qur`an is small. Al-Baqara (Cow) Need for different, yet Islamic sources. The Revelation to mankind – finished and complete Law of God. 282. O ye who believe! When ye deal with each other, in transactions involving future obligations in a fixed period of time, reduce them to writing Let a scribe write down faithfully as between the parties: let not the scribe refuse to write: as Allah Has taught him, so let him write. Let him who incurs the liability dictate, but let him fear His Lord Allah, and not diminish aught of what he owes. If they party liable is mentally deficient, or weak, or unable Himself to dictate, Let his guardian dictate faithfully, and get two witnesses, out of your own men, and if there are not two men, then a man and two women, such as ye choose, for witnesses, so that if one of them errs, the other can remind her. The witnesses should not refuse when they are called on (For evidence). Sunnah Way or custom, The way of the prophet, commonly known as the Prophet’s traditions. The deeds, sayings and approvals of Muhammad during the years of his ministry. Muslims are recommended to follow Sunnah in every aspect of human life. Hadith Tradition relating to the sayings and doings of Muhammad. Hadith collections are important tools for determining the Sunnah by all traditional schools of jurisprudence. 2 Introduction to Islamic Law – Islam and Origins of Islamic Law Introduction to Islamic Law – Islam and Origins of Islamic Law Example of Hadith Structure of Hadith Isnad (citations, backing of validity, legitimating part) Yahya related to me from Malik from Abu'r-Rijal Muhammad ibn Abd ar-Rahman ibn Haritha from his mother, Amra bint Abd ar-Rahman that the Messenger of Allah, may Allah bless him and grant him peace, (Isnad) said, "If palm trees are sold after they have been pollinated, the fruit belongs to the seller unless the buyer makes a stipulation about its inclusion." (Matn) Matn (the saying or doing itself, normative part) Isnad An isnad is in the form "A said that B said that C wrote (in a lost work) that D read (in a work known to exist but also lost) that E said that Muhammad had said...", where A, B, C, D, E were known figures with known histories. The focus was to determine if in fact these individuals could have met, under what circumstances or social pressures, if translation were involved, if lost records are involved were they actually likely to have been lost, etc. and therefore to come to conclusions about the validity. Introduction to Islamic Law – Islam and Origins of Islamic Law Introduction to Islamic Law – Islam and Origins of Islamic Law Validity of Hadith Additional sources Political interests, falsification ‘ilm al-hadith, ‘ilm ash-shakhsiyat – science of biography • ‘urf – local customs (Jewish, Roman, Persian, Tribal Laws) • qiyas - analogy • ijma – consensus of authorities Canonization of Sunnah The scholars categorized literally millions of hadith as authentic, agreeable, weak, narrated by a weak source, missing a transmitter, provably false, etc. There are six well-known collections of authentic hadith, each named after its compiler. Sahih Muslim • ijtihad – independent interpretation of the legal sources • taqlid – imitation (Return to the Source) • istislah – the optimal solution for community, public interest • istihsan - preference for particular judgements over others • etc. Sahih Bukhari Introduction to Islamic Law – Islam and Origins of Islamic Law Main Division of Norms in Islamic Law • ‘ibadat – duties towards God • mu’amalat – rights and duties between human beings ‘Ibadat The Five Pillars of Islam • shahadah – The profession of faith in God • salat – prayer • zakat – the paying of alms • sawm – fasting • hajj – the pilgrimage 3