Islamic law
Main characters:
• Containing both religious precepts
and rules of conduct
• Regulating relations between
humans and God and interaction
among humans
• Confessional, ethical, imperative,
extraterritorial and immutable in
nature
Shar’ia and Fiqh
• Right path, limits set by God to human
freedom of action
• More specifically, the study and application of
fiqh allows to extract from the sources (usul
al-fiqh) the qualification of human actions into
the five categories of obligatory (fard/wagib),
prohibited (haram), advisable
(mandub/mustahabb), unadvisable (makruh)
and free (ga’iz)
Usul al Fiqh
• Qur’an (divine revelation through
Muhammad)
• Sunna (traditions of the Prophet handed down
through hadith)
• Igma (consensus of the Muslim scholars)
• Qiyas (analogic reasoning based on
comparison)
• Other secondary sources
Arkan ud-Din – Pillars of Islam
• Shahada – profession of faith attesting the
unicity of God and Muhammad’s prophetic
mission
• Salat – mandatory formal worship
• Zakat – mandatory alms-giving
• Sawm – fasting during prescribed periods
• Hajj – pilgrimage to Mecca
Establishment of Islam
• 610 (circa) – beginning of the Qur’anic
revelation to Muhammad
• 613 – beginning of public preaching in Mecca
• 622 – Hijra/Hegira, migration of Muhammad
and the first Muslims from Mecca to Medina
• 632 – Death of the Prophet, Muslim control
Mecca and most of Arabia
Rightly guided Caliphs
• Abu Bakr (632-634) – consolidation in Arabia,
expansion to Siria
• Omar (634-644) – conquest of Persia and
Egypt
• Othman (644-656) – written compilation of
the Qur’an
• Ali (656-661) – political divisions and rise of
the Umayyads
Umayyad dynasty (661-750)
• Caliphate becomes hereditary
• Capital moves to Damascus
• Conquests extend to North Africa, Spain, parts of
Central and South Asia
• Beginning of political and religious schisms
Abbasid dynasty (750-1257)
• Capital moves to Baghdad
• Caliphate fragments into multiple polities
• Caliphs’ role becomes progressively symbolic
Expansion of the Islamic World
Sunni and Shi’a Islam
Islamic scholars (ulama, fuqaha)
• Non-existent during the first Caliphs’ era
• Need for a specialised body of legal experts
arise with conquests, increased administrative
burden and secularisation of the political
leadership
• First Islamic judges appointed during the
Umayyad period
• First specialised scholars appeared in Kufa,
Basra, Medina and Mecca
The Four Schools of Jurisprudence
(madhab)
• Maliki (from Malik ibn Anas, m. 795) – Medina, first
to develop, leans progressively more on established
judicial practice
• Hanafi (from Abu Hanifa, m.767) – Kufa, emphasis on
reasoning and jurist’s preference
• Shafi’i (Muhammad al Shafi’i, m.820) – Baghdad, first
to systematise the sources of jurisprudence
• Hanbali (Ahmad ibn Hanbal, m.855) – Baghdad,
rejects to a great extent Qiyas, limits Igma to the first
generations of Muslims
Current distribution of the schools of
jurisprudence
Usul al Fiqh – Sources of the Law
• Qur’an (divine revelation through
Muhammad)
• Sunna (traditions of the Prophet handed down
through hadith)
• Iğma (consensus of the Muslim scholars)
• Qiyas (analogic reasoning based on
comparison)
• Other secondary sources
Qur’an
• Word of God
• Eternal, non-created
• Inimitable
• Divided in 114 suras, each sura composed of
different number of ayat
• Out of 6200+ verses, around 500 contain
juridical rules
Rules contained in the Qur’an
• Religious dogmas about God, Scriptures and
the Day of Judgement
• Moral norms for humans as to what virtues
and qualities to seek
• Guidelines for how to perfom worship
• Rules regarding food and dress
• Juridical rules about different fields of human
action
Juridical rules found in the Qur’an
• Slavery, freedom and human statuses
• Marriage, repudiation and successions
• Offenses and punishments set for illegal
sexual relationship, false witness in cases of
illegal sexual relationship, theft, banditry,
consumption of alcohol, apostasy
• Commercial transactions
• Taxes, regulation of warfare, prisoners
• Political consultation and governance
Sunna - Tradition
• Sunnat al Nabi - Traditions of the Prophet
Muhammad recorded by his companions and
family members, called hadith
• Hadith integrate rules explicitly set in the
Qur’an and provide a model for all Muslims
• Hadith can consist of deeds, sayings or tacit
approvals
Development of the science of hadith
in the 9° century
• Sunna considered autonomous as a source of law
• Six main collections of hadith are compiled and
since then accepted as the official Sunni canon
• Classification of the hadith according to their
isnad (chain of transmission) into:
- Sahi (sound)
- Hasan (good)
- Da’if (weak)
- Maudu’ (forged)
Iğma - Consensus
• Consensus of the community, through the
consensus of the scholars of fiqh, on a certain
issue
• Infallibility of the umma attested by hadith
• Consensus gives a powerful legitimacy to
norms and institutions in the Islamic world
Qiyas – Analogy
• The application of comparison with a legal
solution included in the Qur’an or Sunna to a
similar problem
• The use of Analogy as a source of Law was
resisted by many scholars, and it is still limited
according to different schools
Secondary sources of Law
• Ra’y / Istihsan (personal reasoning /
preference)
• Istislah (consideration for public interest)
• ‘Urf (custom)
• Amal (existing practice of jurisprudence)
Iğtihad and Taqlid
• Iğtihad = individual effort at interpreting
sources and making decisions in Islamic Law
• Taqlid = relying on the authority of past
scholars and previous legal rulings
• After the consolidation of the madhab system
between the 9° and 10° centuries, “ther doors
of Iğtihad” are considered closed.
• Several Islamic scholars, especially reformists,
advocated for a renewed Iğtihad in modern
times
Juridical responsibility
• Legal capacity is complete in the mukallaf:
Muslim, adult, sane
• The actions of the mukallaf are classified
according to five degrees lawfulness:
- fard/wagib (obligatory)
- mandub/mustahabb (recommended)
- ğa’iz (free)
- makruh (unrecommended)
- haram (prohibited)
The status of non-Muslims
• non-Muslims living in Islamic countries are
called dhimmi, they are protected under
payment of a separate tax (jazya)
• They are excluded from some privileges and
some duties specific to Muslims
• In other respects they enjoy equal legal status,
religious freedom and legal autonomy when
Muslims are not involved
Furu’ al Fiqh – Branches of the Law
• ‘Ibadat – rules for worship, relations between
humans and God
• Mu’amalat – juridic relationships among
human beings:
- Marriage and Family Law
- Successions and inheritance
- Contracts and obligations
- Crimes and penalties
Nikah - Marriage
• Muslim marriage is a contract between
husband and wife (thorugh her tutor), it can
be poligamous (up to four wives)
• Husband pays a nuptial gift (mahr) to wife
• Husband can repudiate wives on condition or
by talaq (declaration of repudiation)
• Wives can obtain dissolution of marriage by
mutual accord, on condition or because of
husband faults
Fara’id - Successions
• Islamic Law does recognize legal heirs, the
deceased’s will can affect only 1/3 of the
patrimony
• Two main types of heirs:
- Ahl al fard, obligatory shares stipulated in
the Qur’an
- ‘asaba, other agnates which receive what is
left from the first group
Goods and Ownership
• Goods which can be made the object of
commerce are called mal
• Goods are composed of substance and
usufruct/enjoyment
• Goods that are excluded by rights of
ownership (milk) are either illicit, below or
above commercial value, or public property
‘Aqd - Contract
• In the absence of a classification of different
types of contracts, the contract of sale works
as a model
• The prohibition of riba (monetary interest)
affected Islamic commercial law
• Legal devices such as the hawala (transfer) or
the salam contract made up for some of the
functions of a banking system
Crimes and Punishments
• Hadd – crimes for which corporal punishment
is fixed by the Qur’an and that are haqq Allah
(right of God), automatically prosecuted by
the community and for which no pardon is
possible
• Ta’zir – other crimes for which punishment is
discretionary and decided by the judge
• Qisas/diya – retaliation or blood-money for
crimes of damage against persons or property
Hadd punishments
• Illegal sexual intercourse (zina), capital
punishment/lashes
• False accusation of illegal sexual intercourse
(qadhf), lashes
• Drinking wine (shurb al khamr), lashes
• Theft (sariqa), mutilation
• Highway Robbery (qat al tariq),
mutilation/capital punishment
Ta’zir - Discretionary sanctions
• Ta’zir are decided by the judge and can consist
of corporal punishment, imprisonment, public
disgrace, banishment, confiscation of money
or goods
• The discretionaty power of the judge is wide
but limited (by the political power and the
custom), punishment cannot cause death, and
anyway always be inferior to hadd
Qisas - Retaliation
• ‘Amd – intentional, deliberate offence (like
intentional homicide), there is no possibility of
espiation, the next of kin has the right to ask
and waive retaliation (gratuitously o for bloodmoney)
• Quasi-deliberate, entails both espiation and
heavier blood-money
• Mistake, as above but normal blood-money
• Indirect offence, only blood-money