(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.
Islam is often called a religion of “law”
Islam means submission/obedience to God
 That is, knowing God’s will and doing it
 Thus necessary to work out the details of God’s will for practice
 Theoretical knowledge about God’s nature is less important
In this
 it is like Orthodox Judaism (concerned for halakah)
 it is less like Christianity (where creeds have been more central)
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 life
Fiqh: 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 understanding
Fuqahā’ = those members of the ‘ulamā’ mainly engaged in
fiqh
Sharī‘a and fiqh ctd
Strictly speaking:
Sharī‘a = the way marked out by God for humans to live
Fiqh = the human understanding of the way marked out
by God for humans to live
 Fiqh is often translated “jurisprudence”
 Usually assumed fuqahā’ have been largely successful in
discovering the Sharī‘a
 Hence what is strictly fiqh is often called Shari‘a
Sharī‘a and fiqh ctd
Other ways of distinguishing sharī‘a and fiqh
 Sharī‘a is the general principles and fiqh is the
details
 Sharī‘a is what is in the Qur’an and the Sunna and
fiqh is what is derived from these
Sharī‘a and fiqh ctd
Sharī‘a differs from Law in the Western sense

Covers all areas of human life


Is particularly elaborated in areas of ritual
Consists of moral evaluations (ḥukm, pl. aḥkām)
of actions

Infringement may or may not be punished in this world
Sharī‘a and fiqh ctd
The 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)
Sharī‘a and fiqh ctd
The valuations are also expressed as:


Permitted (ḥalāl) (includes Obligatory,
Recommended, Permissible, Reprehensible)
Forbidden (ḥarām).
The sources (or roots) of jurisprudence (uṣūl al-fiqh): Sunnī
version
Authoritative texts (naṣṣ)

Qur’ān:



where clear and specific must be followed
often needs interpretation (scholarly skills required)
Sunna of the Prophet, especially ḥadīth that are ṣaḥīḥ

Actions of Companions are also important
uṣūl al-fiqh ctd
“Procedural” methods

Ijtihād (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 answer
Normally involves derivation of the answer from the Qur’ān and
Sunna
Mujtahid must have a high level of learning and moral standing
Mujtahid 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
uṣūl al-fiqh ctd “Procedural” methods ctd.

Ijmā‘ (Consensus)
Agreement of all mujtahids on a particular point
 Considered authitative: “My community will not agree on an
error.” (ḥadīth)


Ijtihād (2) continuing ijtihād
Where there is no ijmā‘, ijtihād continues
 Where there is ijmā‘, absolute ijtihād (i.e. deriving
valuations directly from the Qur’ān and Sunna) is precluded;
taqlīd (imitating, following) is required
 Ijtihād may continue within the framework and principles
established by the existing ijmā‘

uṣūl al-fiqh ctd
Methods of ijtihād

Qiyās (analogy).



Find a common term (‘illa) between known and unknown
E.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 umma
istiḥsān (preference): choose less strict approach on grounds of welfare
maṣlaḥa mursala: follow welfare apart from other Sharī‘a sources
“Blocking the means”: actions that will lead to forbidden actions are
forbidden
uṣūl al-fiqh ctd
Methods of ijtihād (problematic)

Ra’y, considered opinion of the faqih, not based on formal reasoning;


Devices (ḥiyal), means of avoiding apparent intent of the law.


rejected by many.
Custom, ('āda or adat, ‘urf)



common in the early days but later rejected.
Not usually recognized as formal source of fiqh but important in practice.
Custom as separate from Sharī‘a / Custom as incorporated within Sharī‘a
Siyāsa or Qānūn. (governance or policy), government actions & rules.

Siyāsa as separate from Sharī‘a / Siyāsa as incorporated within Sharī‘a
Sunni “Schools” of Jurisprudence, Madhhabs.
May be seen as distinct ijmā‘s




Ḥanafī, 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)
Twelver Shī‘i schools of jurisprudence:


Uṣūlīs: accept ijtihād, predominant today, in Iran
and elsewhere
Akhbārīs: reject ijtihād, were strong in the past.
Today found only in a few places, such as Bahrain.
The sources of jurisprudence (uṣūl al-fiqh): Uṣūlīs

Qur’an.,


Sunna.



Includes the reports (akhbār) of the words and deeds of the twelve Imams as
well as Muhammad
Imāms know the esoteric interpretation of the Qur’ān,
Ijmā‘



Shi‘is are more inclined than Sunnis toward esoteric interpretations.
Less important for Shī‘is than Sunnīs
Mainly seen as evidence of the Imāms’ views.
Reason.


Properly exercised, cannot contradict Sharī‘a.
More dependable than qiyās
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 1979
revolution.
Shi‘i uṣūl al-fiqh ctd.
The sources of jurisprudence (uṣūl al-fiqh): Akhbārīs
 Recognize only the Qur‘an and the reports (akhbār)
of the Prophet and the Imams.
 Reject ijtihād
 More scope for ‘urf and siyāsa
 More favorable to mystics
Muftīs and fatwas







Fatwa: advisory opinion given by a faqīh.
Muftī: the person who gives the fatwa
The reason for the opinion is usually explained in terms of the
sources of fiqh
The opinion is not binding, in contrast to the judgment (ḥukm) of a
judge or ruler
A 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
Dar al-Ifta’ in Cairo, the office of the Mufti of the Republic.
History of fiqh – Sunnī
Early period (to c 800): Law as administered, based
on
 Decisions of Prophet, caliphs, administrators, judges
 Pre-Islamic local custom, administrative practice
 Qur’an
 Sunna in the sense of perceived normative practice
of the umma
History of fiqh – Sunnī ctd
Early period: views of faqīhs (to c 800)
 Qur’an
 Sunna in the sense of perceived normative practice
of the umma
 Ra’y: opinion (precursor to ijtihād)
 Ḥadīth, less important than ra’y
 Beginnings of Ḥanafī and Malikī madhhabs
History of fiqh – Sunnī ctd
“Classical” period (from c 800-c 1200)
 Qur’an
 Sunna as contained in the Ḥadīth of the Prophet
 Al-Shāfi‘ī


main proponent of Ḥadīth
Ijmā‘
Qiyās / ijtihād
History of fiqh – Sunnī “Classical” period (from c 800-c 1200) ctd.



Beginnings of Shāfi‘ī and Ḥanbalī madhhabs
Ẓāhirī madhhab founded (c. mid-9th century),
eventually died out
Recognition of the right of ‘ulamā’ to interpret
law and doctrine
 esp.

after miḥna
Concept of maṣlaḥa introduced c. 900
History of fiqh – Sunnī ctd
Later period (from c 1200 – c 1900)
 Claim that the “gate of [absolute] ijtihād” is closed,
from c 1200
 Later
scholars believed inferior to earlier ones
 Sense that major issues had been decided by ijmā‘
 Closing of the gate of ijtihad not accepted by all
 e.g.
Ibn Taymiyya
 Ijtihād
still possible within the limits of a madhhab or in
specific cases

Mutual acceptance of the four madhhabs, c. 1300.
History of fiqh – Twelver Shī‘ī
Pre-Occultation
 Imām provided authoritative teaching
 Sixth Imām, Ja‘far al-Ṣādiq, founder of Shī‘ī fiqh
Post-Occultation
 Various tendencies, emphasizing akhbār or ijtihād
 Akhbārī school developed, 13th to 15th centuries, predominant to
18th century
 Uṣūlī school predominant from late 18th century

System of marja‘s developed in the 19th and 20th centuries
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)
Views on smoking tobacco, ctd.
These arguments did not convince most people
 Most, including ‘ulamā’ took to smoking
 A few remained adamant against it
 Effectively, the ijmā‘ favored tobacco
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).
http://islam.about.com/od/health/a/smoking_fatwa.htm