LSJ 510 30
Review
1/25/10
What this course is about and its central aims: learning about this esoteric subject, “Islamic law” and how knowledge-formation takes place and is shaped. We began with Derrida to show the nature of critique is both linguistic and historical analysis, with the ‘anti-foundationalism’ of post-structuralism, influencing moves towards reform in Islamic law.
Started with: Hallaq on Shari’a and Derrida and Deconstruction
Contemporary work on the topic has a genealogy that dates back to overcoming Max Weber’s critique of Islamic law as “qadi justice” and later Orientalist scholarship (Schacht) describing it pejoratively as “jurists’ law.”
Most of what we are reading in some way responds to these critiques, but more relevant today perhaps, draws on internal debates and engages with and explains the diversity and depth of debates in Muslim societies both among the ulama and lay persons.
Shari’a is discourse (see below)
USE Fiqh NOT Shari’a:– because (1) the concept of shari’a is both vague and obfuscating and also overly broad in that it includes more than just ‘law,’ while the term figh is a product of human endeavor, and shows that ‘law’ can be revised.
Reform approaches:
Nasr Abu-Zayd - Humanistic hermeneutics
Maqasid of Mohammad Hashim Kamali
Renewal of Al-Qaradawi
Discourse
Discourse (L. discursus, "running to and from") means either "written or spoken communication or debate" or "a formal discussion of debate." The term is often used in semantics and discourse analysis.
Drawing from the work of Michel Foucault, however, discourse has a special meaning. It is "an entity of sequences of signs in that they are enouncements (enoncés)" (Foucault 1969: 141). An enouncement (often translated as "statement") is not a unity of signs, but an abstract matter that enables signs to assign specific repeatable relations to objects, subjects and other enouncements (Ibid: 140). Thus, a discourse constitutes sequences of such relations to objects, subjects and other enouncements. A discursive formation is defined as the regularities that produces such discourses. Foucault used the concept of discursive formation in relation to his analysis of large bodies of knowledge, such as political economy and natural history (Foucault 1970).
Discourse can be observed in the use of spoken, written and sign language and multimodal/multimedia forms of communication, and is not found only in "non-fictional" or verbal materials.
Shari'a – Sum of all God’s rulings on human actions
Shari’a (Arabic: 'شريعة Šarīʿa; [ʃɑˈriːɑ]) is an Arabic word meaning ‘way’ or ‘path’. It is used to refer both to the Islamic system of law and the totality of the Islamic way of life. Shari’a deals with many things, including politics, economics, banking, business, contracts, family, sexuality, hygiene, and social issues.
Islamic law is now the most widely used religious law, and one of the three most common legal systems of the world alongside common law and civil law. During the Islamic Golden Age, classical Islamic law may have influenced the development of common law, and also influenced the development of several civil law institutions.
The term Shari’a derives from the verb "shara'a" ( شرع), which according to Abdul Mannan Omar's "Dictionary of the Holy Qur'an" connects to the idea of "system of divine law; way of belief and practice." [Qur'an 45:18].
The definition of Shari’a could be traced from the verbal Arabic noun “Shari’a” that appears in the Qur’an only once at 45:18. Moreover, its derivative form appears three times at 42:13, 42:21, and 5:51 verses. According to the modern definition, Shari’a is the comprehensive body of Islamic laws that should regulate the public and private aspects of the lives of the Muslims. Shari’a is not a single code of laws; rather, it consists of four sources that legal experts refer to. The first two sources are the Qur’an and the Sunnah, and the other two complementary sources are consensus (ijma) and analogy (qiyas). Moreover, some schools of thought accept other additional sources as secondary sources where the first four primary sources allow.
Legal scholar L. Ali Khan claims that "the concept of shari’a has been thoroughly confused in legal and common literature. For some Muslims, shari’a consists of the Qur'an and Sunnah. For others, it also includes classical fiqh. Most encyclopedias define shari’a as law based upon the Qur'an, the Sunnah, and classical fiqh derived from consensus (ijma) and analogy (qiyas). This definition of shari’a lumps together the revealed with the unrevealed. This blending of sources has created a muddled assumption that scholarly interpretations are as sacred and beyond revision as are the Qur'an and the Sunnah. The Qur'an and the Sunnah constitute the immutable Basic Code, which should be kept separate from ever-evolving interpretive law (fiqh). This analytical separation between the Basic Code and fiqh is necessary to" dissipate confusion around the term Shari’a.
Shari’a has been defined as
* "Muslim or Islamic law, both civil and criminal justice as well as regulating individual conduct both personal and moral. The custom-based body of law based on the Quran and the religion of Islam. Because, by definition, Muslim states are theocracies, religious texts are law, the latter distinguished by Islam and Muslims in their application, as Shari’a or Shari’a law."
* "a discussion on the duties of Muslims," —Hamilton Alexander Rosskeen Gibb
* "a long, diverse, complicated intellectual tradition," rather than a "well-defined set of specific rules and regulations that can be easily applied to life situations," —Hunt Janin and Andre Kahlmeyer
* "a shared opinion of the [Islamic] community, based on a literature that is extensive, but not necessarily coherent or authorized by any single body," —Knut S. Vikor
Mainstream Islam distinguishes between fiqh (deep understanding, discernment), which refers to the inferences drawn by scholars, and shari’a, which refers to the principles that lie behind the fiqh. Scholars hope that fiqh (jurisprudence) and shari’a are in harmony in any given case, but they cannot be sure.
The primary sources of Islamic law are the Qur'an and Sunnah. Certain Shari’a laws are regarded as divinely ordained, concrete, and timeless for all relevant situations. It also has laws derived from principles established over time by Islamic lawyers.
Traditional Sunni Muslims also add the consensus (ijma) of Muhammad's companions (sahaba) and Islamic jurists (ulema) on certain issues, and drawing analogy from the essence of divine principles and preceding rulings (qiyas). In situations where no concrete rules exist under the sources, law scholars use qiyas — various forms of reasoning, including by analogy. The consensus of the community or people, public interest, and others are also accepted as secondary sources where the first four primary sources allow.
Shi'a Muslims reject this approach. They strongly reject analogy (qiyas) as an easy way to innovations (bid'ah), and also reject consensus (ijma) as having any particular value in its own. During the period that the Sunni scholars developed those two tools, the Shi'a Imams were alive, and Shi'a view them as an extension of the Sunnah, so they view themselves as deriving their laws (fiqh) only from the Qur'an and Sunnah. A recurring theme in Shi'a jurisprudence is logic (mantiq), something most Shi'a believe they mention, employ and value to a higher degree than most Sunnis do. They do not view logic as a third source for laws, rather a way to see if the derived work is compatible with the Qur'an and Sunnah.
In Imami-Shi'i law, the sources of law (usul al-fiqh) are the Qur'an, anecdotes of Muhammad's practices and those of The Twelve Imams, and the intellect ('aql). The practices called Shari’a today, however, also have roots in local customs (urf).
Classic Islamic law
The formative period of fiqh stretches back to the time of the early Muslim communities. In this period, jurists were more concerned with pragmatic issues of authority and teaching than with theory. Progress in theory happened with the coming of the early Muslim jurist Muhammad ibn Idris ash-Shafi`i (767-820), who laid down the basic principles of Islamic jurisprudence in his book Al-Risala. The book details the four roots of law (Qur'an, Sunnah, ijma, and qiyas) while specifying that the primary Islamic texts (the Qur'an and the hadith) be understood according to objective rules of interpretation derived from careful study of the Arabic language.
A number of important legal concepts and institutions were developed by Islamic jurists during the classical period of Islam, known as the Islamic Golden Age, dated from the 7th to 13th centuries.
Origins
According to Muslims, Shari’a Law is founded on the teachings of Allah and the acts and sayings of Muhammad as found in the Qur'an and the Sunnah. However, shari’a was not fully developed at the time of Muhammad's death, but rather it evolved around the Muslim community or Ummah through which it would serve.
When shari’a began its formation in the deserts of Arabia about 1,400 years ago, the time Islam was born, a sense of community did not exist. Life in the desert was nomadic and tribal, thus the only factor that tied people together into various tribes was through common ancestry. However, the nature of Islam challenged that ideology and brought all those who professed their submission to Islam into the Ummah. Additionally, Islam was not just a religion but a way of life. Laws had to be instilled so the doctrines of shari’a took root. All who are Muslim are judged by shari’a – regardless of the location or the culture.
Shari’a was guided through its development by lifestyles of the tribes in which was initially absorbed into Islam. Thus, through the understandings of the tribe, Islamic law would be a law of the community – for the community by the community – even if initially proposed by an individual "for they could not form part of the tribal law unless and until they were generally accepted as such." Additionally, Noel James Coulson, Lecturer in Islamic law of the University of London, states that "to the tribe as a whole belonged the power to determine the standards by which its members should live. But here the tribe is conceived not merely as the group of its present representatives but as a historical entity embracing past, present, and future generations." So, while "each and every law must be rooted in either the Qur'an or the Sunnah," without contradiction, tribal life brought about a sense of participation. Such participation is further reinforced by Muhammad who stated, "My community will never agree in error".
After the death of Muhammad, shari’a continued to undergo fundamental changes, beginning with the reigns of caliphs Abu Bakr (632–34) and Umar (634–44) in which many decision making matters were brought to the attention of Muhammad's closest comrades for consultation. In AD 662, during the reign of Muawiya b. Abu Sufyan ibn Harb, life ceased to be nomadic, and undertook an urban transformation that created matters not originally covered by Islamic law. Every change of Islamic society has played an active role in developing shari’a, which branches out into Fiqh and Qanun respectively.
Before the 19th century, legal theory was considered the domain of the traditional legal schools of thought. The legal schools followed by most Sunni Muslims were Hanafi, Hanbali, Maliki or Shafi`i. Most Shi’a Muslims followed the Ja'fari school of thought.
Shari'a – may be divided into five main branches:
* ibadah (ritual worship)
* mu'amalat (transactions and contracts)
* adab (morals and manners)
* i'tiqadat (beliefs)
* 'uqubat (punishments)
* The acts of worship, or al-ibadat includes:
o Faith in God (shahadah)
o Prayers (salah)
o Fasts (sawm and Ramadan)
o Charities (zakat)
o Pilgrimage to Mecca (hajj)
* Human interaction, or al-mu'amalat includes:
o Financial transactions as applied to Shari’a-compliant Islamic finance
o Endowments
o Laws of inheritance
o Marriage, divorce, and child care
o Foods and drinks (including ritual slaughtering and hunting)
o Penal punishments
o Warfare and peace
o Judicial matters (including witnesses and forms of evidence)
****
Fiqh (Arabic: فقه, [fɪqəh]) is Islamic jurisprudence. Fiqh is an expansion of the Shari’a Islamic law—based directly on the Quran and Sunnah—that complements Shari’a with evolving rulings/interpretations of Islamic jurists.
Fiqh deals with the observance of rituals, morals and social legislation. There are four prominent Sunni schools of Fiqh (Madh'hab) and two schools for the Shi'a. A person trained in fiqh is known as a Faqih (plural Fuqaha).
The word fiqh is an Arabic term meaning "deep understanding" or "full comprehension". Technically it refers to the science of Islamic law extracted from detailed Islamic sources (which are studied in the principles of Islamic jurisprudence)--the process of gaining knowledge of Islam through jurisprudence, and the body of legal advisements so derived, is known as fiqh.
The historian Ibn Khaldun describes fiqh as "knowledge of the rules of God which concern the actions of persons who own themselves bound to obey the law respecting what is required (wajib), forbidden (haraam), recommended (mandūb), disapproved (makruh) or merely permitted (mubah)".
This definition is consistent amongst the jurists.
There are cases where the Qur'an gives a clearly defined and concrete answer on how to deal with different issues. This includes how to perform the ritual purification (wudu) before the obligatory daily prayers (salat). On other issues, the Qur'an alone is not enough to make things clear. For example, the Qur'an states one needs to engage in daily prayers (salat) and fast (sawm) during the month of Ramadan, however, it does not define how to perform these duties. The details about these issues can be found in the traditions of Muhammad (Sunnah). This is true for most detailed issues, thus the Qur'an and Sunnah are the basis for the Islamic Divine Law (Shari’a).
With regard to some topics, the Qur'an and Sunnah are simply silent. In those cases, the Muslim jurists (Fuqaha) try to arrive at conclusions using other tools. Sunni jurists use analogy (Qiyas) and historical consensus of the community (Ijma). The conclusions arrived at with the aid of these additional tools constitute a wider array of laws than the Shari’a constitutes of, and is called fiqh. Thus, in contrast to the shari’a, fiqh is not regarded as sacred, and the schools of thought have differing views on its details, without viewing other conclusions as sacrilegious. This division of interpretation in more detailed issues has resulted in different schools of thought (madh'hab).