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Introduction to Islamic Law
Lily Zakiyah Munir
Center for Pesantren and Democracy Studies (CePDeS)
Indonesia
The Trilogy of Islam
Religion ISLAM/SHARIAH
Islam
(Shariah/legal)
Iman
(Aqidah/belief)
Ihsan
(Spiritual/ethics)
Submission, comprising of series of activities: bearing witness (shahadah),
praying, zakat (tax payment), fasting in Ramadhan, and Hajj (pilgrimage to
Mecca) regulated in FIQH (narrow Shariah) – legal system
Faith, understanding that everything in universe is governed by tauhid –
Oneness of God/THEOLOGY: belief in God, Messengers, the Angels,
the Books, the Last Day, God’s Destiny for humans.
Doing what is beautiful, deepest dimension of Shariah, focused on
human intentionality; awareness of God’s presence—TASAWWUF or
SUFISM, concerned with ethical and mystical system.
WHAT IS ISLAM?
Literal meaning:
salima – yaslamu – salaaman (safe and peaceful);
aslama – yuslimu – islaman (to bring safety and peace)
The Qur’an laden with aesthetics and moral ethics succeeded in
transforming then Arab nomads into societies with norms and
values.
“And I send you not except as a Blessing to the whole
universe.”
PEACE: Passive (inward) through rituals;
Active (outward) through social interactions – salam (greetings)
BALANCES IN ISLAM
RITUAL
WORLDLY LIFE
TRANSCENDENTAL
HUMAN RIGHTS
SPIRITUAL
LIFE IN HEREAFTER
SOCIAL
HUMAN RESPONSIBILITIES
What is SHARIAH?
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“Way” – to God, many ways same destination
Plurality and Flexibility of Shariah:
“To each among you have We prescribed a law and an open
way. If Allah had so willed, He would have made you a
single people, but (His plan is) to test you in what He has
given you; so strive as in a race in all virtues. The goal of
you all is to Allah; it is He that will show you the truth of
the matters in which you dispute.” (QS al-Maidah/5:48)
Roots of Shariah: Textual and Rational
GOD
The Qur’an
Prophet
The Sunnah
Human
Tafsir (Exegete)
Human
Fiqh (Law)
Textual versus Rational
Hegemony of Texts, locus of
The Qur’an
The Sunnah
Tafsir
Fiqh
contestation
These pillars of Islam came into being not in a vacuum.
Each came into being in a society with social, cultural, political and
technological setting, and with different
internalization of religion.
The Qur’an was revealed gradually;
The Sunnah was never came out of the blue;
The exegetes had their own personal abd social backgrounds;
Fiqh is actually a response to problem(s) in a society;
Reference for a continually changing life should not be a source
which relies on a changing life as well …
What is the QUR’AN?
Literal meaning: “reading” or “recitation”
“The Book containing God’s speech revealed to the Prophet Muhammad and
transmitted to us by continuous testimony.”
There are 114 Surahs, 6235 verse of unequal lengths; less than 1/10 (about 350)
legal verses, most in response to actual problems encountered such as
infanticide and unlimited polygamy; on a whole, confirmed and upheld
customs of Arab society and changed only when necessary. The rest
concerned with matters of belief and morality, faith, etc. Reciprocal
dialectics between the Qur’an and human beings,
The Qur’an calls itself al-huda, ‘The Guidance.’ Revealed in two phases, Mecca
(19 parts) and Medina (11 parts). Mecca verses devoted to matters of belief,
the Oneness of God, Prophecy, invitation to Islam; Medina verses
emphasize principles regulating political, legal, social, and economic life of
the new community.
What is the HADITH/SUNNAH?
“All that is attributed to Prophet Muhammad, his acts, his sayings, and
whatever he has tacitly approved, plus all the reports describing his
physical attributes and character.”
The Prophet, “I have left two things among you. You shall not go astray so
long as you hold on to them: the Book of Allah and my Sunnah.”
As a second source of shariah, Sunnah could not possibly contradict the
primary source (the Qur’an). The process of hadith formation
involves interpretations of its re-teller (rawi) from the period of the
sahabat to its codification in mid 3rd century of Islam.
Two tendencies: the textual approach and reasoning approach.
What is TAFSIR (Exegeses)?
“The process of understanding Qur’anic texts.”
1)
Tafsir bil ma’tsur – based on reports deriving from
the Qur’an, the Prophet, the Companions
2)
Tafsir bir ra’yi – based on ijtihad (reasoning)
Hermeneutics discourse of contemporary exegetes:
The Qur’an is not to be treated as a ‘dead’ text,
but as a living text with spirit for transformation.
What is FIQH?
Literally means “understanding.”
A discipline which seeks to understand detailed and
general rules of Islamic teachings. Fiqh deals with
practical aspects of shariah regulating human
activities in their life cycle.
As interpretation of texts which carries certain historical
context, differences of opinions of fiqh scholars are
inevitable.
Different opinions of jurists are blessing to the Muslim
community (The Prophet).
Historical Development of Sharia
Formation of Foundation
During Prophet’s life –Qur’an and Hadith in formation;
Prophet was sole authority through ijtihad
Codification and
Registration Period
Fiqh laws codified and registered by the Companions.
The Qur’an and Hadith being collected; strong role of ijtihad
Formation of Schools of
Fiqh (2nd century)
Sharia was constructed based on works of earlier
Fiqh scholars. Masterpieces of Fiqh produced.
Period of Adhering
2nd-3rd centuries
How to save the already existing Fiqh products. Monumental
activities in interpreting the Qur’an and sifting the Hadith.
Transforming Fiqh into
Laws in modern times
Fiqh becomes foundation of laws in countries
With Muslim population like Indonesia
Schools of Thought in Fiqh
Hanafi
(700-782)
Oldest, most tolerant
liberal and flexible.
Broad minded without lax, appeal to
reason over text,
and a quest for the
better; elevate
belief over practice.
The Iraqi (rational)
stream. He was
Disgraced and
imprisoned. Followers
in the Arab Middle
East, India, Pakistan
and Afghanistan
Maliki
(710-795)
Shafi’i
(782-
Lived in Medina,
locus of traditional
Fiqh. He developed
Medina consensus
of opinion using
Hadith as guide.
Medina is special
because of political
History. Most Sharia
laws were made
during Prophet’s life
In Medina.
Followers in North,
Central, and West
Africa.
Student of Maliki.
Two phases of ijtihad
Baghdad and Egypt.
Emphasizes
Importance of
analogy (qiyas) when
no context found in
texts. Shafi’i divides
texts into qath’i
(definitive) and
zhanni (doubtful).
He is Father of Usul
Fiqh (Roots of Fiqh).
Followers in Iraq,
Yemen, Southeast
Asia.
Hanbali
(796-873)
His Fiqh developed
from textual and
historical perspective.
Orthodox, opponent
of the rationalist.
Hanbali inspired
Wahhabism in 18th
century, puritanical
movement in Arab
peninsula. His
followers spread in
Northern and
Central Arabia.
Challenge to Shariah: Politicization
Formal shariah – seek power to control Muslim society;
Drain a lot of energy, scholarship, emotion;
Strikingly different face of Islam;
o Imposition of theocracy over democracy
o Violations of human rights
o Institutionalized discrimination against women
and non-Muslim
o Severe corporal punishment
Methods for Explaining Shariah
The authoritative ‘given’: the Qur’an and the Sunnah
Ahl ‘ilm (People of the ‘learning’) – Textual approach
Human intelligence and understanding (fiqh) –
to fulfill needs for succeeding generations
Ahl fiqh or ahl ra’y (People of comprehension) –
Rational approach
Normative Basis of Shariah:
Maqashid Shariah (Overall Goal) – Imam Shatiby
Basic human rights in Islam – Al Kulliyatul Khoms
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Right for protection of one’s faith
Right for protection of one’s life
Right for freedom of thoughts
Right for protection of one’s property
Right for protection of progeny
‘God loves to see that His concessions are taken advantage of,
just as He hates to see the commission of a sin.’ (Hadith)
‘Fulfill your duties to the extent of your ability.’ (Hadith)
What is Ijtihad?
A method to exert all capacities to find
a shariah ruling which can be used to reach a
legal decision.