THE KUTTY “ISLAMIC LAW” FLOWCHART Islam Submission to the will of God alone Seen as a continuation of the divine messages sent from the time of Adam, through Abraham, Noah, Moses, Jesus, Mohamed & numerous other prophets & messengers Tauhid (Belief in the oneness of God) Istihsan Istihsan Maqasid Al-Shariah (Jurisdic Preference) (Higher purposes of Objectives of Shariah: preservation of life, religion, progeny, property, & mental faculty) (Jurisdic Preference) Shariah Literally translated as “the way”. Overarching umbrella of rules, regulations, values & normative framework covering all aspects & spheres of life for Muslims. Constitutes the Divine injunctions of God (the Qur’an) and divinely inspired Sunna (words & deeds of the Prophet Muhammad). It has also come to refer to the human understanding, extrapolations and articulation of these ideals. Ijtihad Social (Independent Reasoning) Legal “Islamic Law” Ijtihad Spiritual Political Economic (Independent Reasoning) Sources of Islamic Law (part of Usul al Fiqh (sources & methodology of Islamic Law)) Secondary Sources Primary Sources Maslahal al-Mursalat (Public Interest) Prophetic Traditions Seerah (Definitive) (Speculative) Darrurah (Abrogation) Dhahir Qawl (apparent text) Istishab Asbab al Nuzul (Presumption of Continuity) Dalil (Public Interest) Majority Consensus Qiyas al-Hafiyi (latent or concealed qiyas) Qiyas al-Jalyii (obvious or explicit qiyas) Darrurah Nabvi (Necessity) Iqrir F’al (sayings & utterances of the Prophet) Qiyas (analogical & deductive reasoning) (prophetic hadith) (divinely inspired hadith) (explicit text) Maslahal al-Mursalat Ijtihad (Independent reasoning) Ijma (Consensus) Authoritative Consensus Reports from the prophetic traditions Qudsi Nass Naskh Hadith (biography of the Prophet) Qati + Zunni (Necessity) power), Treaties, State & Diplomatic Practice, etc. Madinan Makkan ------------ Siyasa (Govt. Sunnah Qur’an Istishab (tacit approvals of acts done & practices of Prophet’s followers) (actions & daily practices of the Prophet) (Presumption of Continuity) (indicative text) (Phenomenology or Situational Context) Tanbih Mashhoor Mutawatir Ahad (well known) (continuous) Ahsan (Custom) (Substance) (Chain) (expositive text) Urf Matn Isnad Mafhum (implicit text) Hadiths, narrators are persons of established, absolute, trustworthy reputation & possessed strong memory Urf (isolated) Hasan Gharib or Daif Hadiths, narrators are trustworthy persons of good reputation & good memory but who do not approach in moral excellence narrators (Custom) Hadiths, narrators of which are questionable authority Codification Categories Sahifa Compendium of sayings of Muhammad written down by his companions during his lifetime. Musannaf Large collections of hadiths where the traditions related to different topics are put together and compiled as books or chapters dealing with a particular topic Musnad Collection of traditions supported by a complete uninterrupted chain of authorities going back to a companion who related it from the Prophet Sunans Collections of the traditions which contain legal rulings and its scopenerer never includes which are related to historical and theological matter Mu’jams Treatises on various subjects which are arranged in alphabetical order, also known as mu’jam alsahaba Ajza’ Collection of traditions that have been handed down on the authority of one single individual whether he be any companion or any generation after the Prophet Rasa’il Collections of hadith which deal with one particular topic out of eight topics into which contents of jami books of hadith may be generally classified Mustadraks Mustakhraj Collections of hadiths in which a later compiler gathers fresh isnads for such traditions collected by previous compiler on the basis of different chains of isnad Collections of hadiths in which the compiler, having accepted the conditions laid down by previous compilers, collects other hadith fulfilling the laid down conditions, which are left due to some reason by previous compilers Jami’ Collections of hadiths which contain the traditions relating to the various subjectmatters mentioned under rasa rasa’il Arbainiyat Collections of forty hadiths relating to one or more subjects which may have appeared to be of special interest to the compiler There are differences between Sunni and Shia (major) and within Sunni and Shia schools in terms of hadith scholarship. Canonical Collections (Sunni) Sahih Bukhari Sahih Muslim Sunnan of Abu Dawood Sunnan of Tirmidhi Sunnan Nasai Sunnan Ibn Maajah Canonical Collections (Shia) Al-Kafi fi Ilm ad-Din of Muhammad al-Kulayni Man la yahduruhu al-Faqih of Muhammad ibn Babuya Al-Istibar of Shaykh Muhammad at-Tusi Tahdhib al-Akham of Shaykh Muhammad at-Tusi © 2009 Faisal Kutty Faisal Kutty, J.D. (Ottawa), LL.M. (Osgoode) Assistant Professor & Director, International LL.M. Program Valparaiso University Law School Adjunct Professor, Osgoode Hall Law School of York University Ahmad Kutty, al-Faqih fi al-ddeen (Santapuram Islamiya, India), Licentiate in Usul al-Ddeen (Islamic University of Medinah), M.A. (Toronto), Ph.D. (ABD, McGill) Senior Scholar, Islamic Institute of Toronto Jurist Consult The authors would like to acknowledge assistance from HiMY SYeD and Katherine Walker, J.D., Valparaiso University Law School ALL RIGHTS RESERVED This flowchart covered by the copyright may not be reproduced or used in the form set out by any means – graphic, electronic, or mechanical, including photocopying, recording, taping, web distribution, or information storage retrieval systems – without the prior written permission of Faisal Kutty. Fiqh, Furu, Hukm, and/or Fatwa (laws, rules, derivatives) Qada (binding adjudication) Ifta (advisory) Shia Schools Sunni Schools (There were hundreds of schools of which four have become dominant) (Many lesser known schools exist) Jafari (D765) Ja‘far al-Sadiq Ismaili, Bohra, Zaidi, etc. For a detailed explanation see Part 5 of Faisal Kutty, The Myth and Reality of Shari'a Courts in Canada: A Delayed Opportunity for the Indigenization of Islamic Legal Rulings,7 U. ST. THOMAS L.J. Iss. 3, Article 7 (2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=174 9046 or Part III of The Shari'a Factor in International Commercial Arbitration 28 LOY. L.A. INT'L & COMP. L. REV. 565 (2006), available at http://digitalcommons.lmu.edu/ilr/vol28/iss3/4. Hanafi (D767) Abu Hanifa Maliki (D795) Malik ibn Anas Shafi (D820) Idris al-Shafi Hanbali (D855) Ahmad ibn Hanbal
