PRINCIPLES AND PRACTICES OF ISLAMIC LAW

WHAT IS ISLAMIC LAW

• Shari’ah or Islamic law: “is the centerpiece and backbone of the religion of Islam.” is based on the Qur’an, the Sunnah (examples of Muhammad, who Muslims believe was divinely guided) and the Hadith( reports of things Muhammad is said to have done or said).

• Islamic law prescribes Muslim behavior in every aspect of life: marriage, business, international relations, etc.

• The Shari’ah contains categories and subjects of Islamic law called the branches of fiqh. They include: Islamic worship, family relations, inheritance, commerce, property law, civil (tort) law, criminal law, taxation, war and ethics, international relations, constitution, and administration

What are a Muslim jurist’s qualifications and authority?

• Have different titles:– Qadi: a judge that serves in a court– Mufti: gives legal responses (fatwa) to people’s

questions– Fuqaha: Muslim scholars who dealt in theoretical

Islamic law (fiqh)The basis for respecting a judgment in Islamic is the

jurist’s ability to carefully apply knowledge to theory and practice.

• To be qualified to interpret the sources of law, a jurist had to possess many branches of knowledge:– The Qur’an– The Hadith– Arabic language and its grammer– Logic, history, general knowledge as well as specialized

areas for specific cases (commerce or international relations)

– History of the law and schools of law– Legal precedants

Jurists were scholars but authority very limited. No clergy or priesthood in Islam and no central authority to hand out final judgments.

The source of a Muslim jurist’s authority comes only from their recognized knowledge-not from the government, not a central religious authority, from divine right.

Any Muslim consulting a jurist must follow their own conscience on deciding the course of action to take. (ijtihad: individual reasoning)

• The jurist must follow his conscience as well since so many people respect and follow his advice.

HOW DOES A JURIST REACH A DECISION?

• An Islamic decision is called a hukm, or ruling, such a judge would make. A jurist’s response to a question from an individual or group is called a fatwa. In order to reach a decision, the jurist starts with asking:

• 1. is it forbidden? (murder)• 2. Discouraged? (wasting resources)• 3. Permitted? (using a phone)

• 4. encouraged? (giving charity)• 5. Obligatory ?(praying 5 times a day)• So how does the issue fit into this chain.

SOURCES OF LAW: USUL AL-FIQH

• 1. Qur’an• 2. Sunnah• 3. Hadith(report)• Or 3. Ijma (unanimous consensus among

jurists)• 4. Qiyas (decision by analogy)• Ijma is contested today

• Analogy (Qiyas) means using logic and reasoning to apply a known law to a new situation not covered in the original law. i.e. can’t drink wine; can you drink beer? No wine intoxicates so does beer, so can’t drink intoxicates.

• Istihsan: deciding in favor of the “public interest” in a matter that is not otherwise prohibited. i.e. the owner of private property wants to do something to the property that will harm the environment than he can be stopped.

Urf ( custom)

• What is familiar to a people in a certain place, based on established tradition. i.e. tradition of sharing irrigation water. Arab jurists tried respect these systems in their judgments rather than imposing something from somewhere else. Important with the diversity of Islam. If something did not violate Islamic principles or standards was ok.

PRINCIPLES AND METHODS

• Two important principles guided jurists’ use of evidence in making ijtihad. (individual reasoning). – 1. istihab (continuity) means a situation or thing

known to exist continues to exist until its opposite is proven. (Person is innocent until proven guilty)

• 2. ibahah : anything is permitted if it is not expressly prohibited.

• 3. bayina: the plaintiff or accuser bears the burden of proof.

• All are common in modern systems of law.

Legal schools

• Formed around 1100 c.e. As Islam spread into new areas and faced new cultures, languages, new problems, and new questions not around before.

• The Qur’an contains all the principles of Islamic law, but few legal injunctions or commands. Muhammad’s life and sayings helped give precedents to go by, but needed more as time went on.

JIHAD

• To make an effort to overcome difficulty to struggle.

• 1. internal dimension: struggle against destructive and self-destructive inclinations, sins or excess. Jihad al Nafs: the struggle to become a better person, to acquire virtuous character and obedience to God.

• 2. social dimension: struggling for social justice, “to be part of the solution” in one’s life work. Can be achieved by writing, speaking and doing community service, putting aside ambition to do what is right.

• 3. institutional dimension: to fight oppression and persecution, to defend against aggression, but within strict limits of conduct that preserve the lives of innocents and the environment.

• Two ways to look at Jihad:• 1. jihad as a principle: a broad , abstract

concept, a general idea and value that is not limited to a single application: applying the principle to a given situation requires discretion and understanding of its multiple implications. A sacrificial struggle” at its basis is the commitment to sacrifice of self and personal interests in order to seek God-given aims.

• It includes the struggle to protect the weak in a society, to guard and strive against oppression and injustice. i.e. speaking out against tyranny, placing one’s goods and physical strength in the service of the poor, writing and scholarship, or to simply overcome one’s appetites and weaknesses, personal obstacles. Is has NOTHING TO DO WITH ARMED STRUGGLE. It is not a means of achieving social justice.

• 2. jihad as an institution: an institution is a concrete, established presence that emerges out of essential human interests, needs, and concerns; an institution relies less on discretion, BUT it is essential that the institution be established so that it has the integrity to carry out its function.

JIHAD AS SOCIAL JUSTICE MEANS:

• 1. If a person is in a position of authority and power, it means “to do the right thing” to be part of the solution rather than part of the problem. It means to overcome the baser instincts to put aside ambition in favor of the greater good, to right wrongs.

2.For an individual, jihad means stating the truth in front of a tyrannical ruler, or indeed any ruler, to care for the weak, oppressed and disenfranchised.

3. For the ulama or religious scholars, the principle of jihad means NOT using religious or official authority to promote one’s career and self-interest. Rather calling people to promote the greater good (maslahah = public interest).

LIMITS ON THE CONDUCT OF JIHAD

• 1. Jihad can only be declared by a legitimate, recognized religious authority with the means. To carry out such action responsibly under its authority.

• 2. jihad may not be defined as a call for any group of Muslims to wage war against indefinite others, such as a general call for” jihad against all unbelievers.”

• 3. Using the concept of jihad to justify indiscriminate violence is contrary to Islamic law. Violence that springs from such a misguided interpretation is not Jihad. It fall under other Islamic principles and categories of law, such as hirabah, or terrorism.

JIHAD SHOULD NOT BE TAKEN:

• 1. to force people to convert• 2. to annihilate non-Muslims.

LAW OF HIRABAH

• Hirabah: a concept of Islamic law that protects public safety. According to the law of hirabah, publicly directed violence is a capital crime. It is unlawful and punishable to target the public in ways that make it impossible for people to take safe-keeping measures against injury to their persons and property.

FASAD

• A term used in the Qur’anic verse that is the source of the law of hirabah. Fasad means causing mischief, mayhem, and destruction in the land, including acts of terror. Fasad as a concept may also include other forms of disruption of peaceful civic life, but only hiraba is a capital offense.

• Terrorism is a capital crime, because it denies public safety, creates fear, and destroys lives and property.

• What if the ruler is a tyrant? • Rebellion needs to be put down, but the state cannot

execute the rebels except for crimes like rape and theft committed in the course of the rebellion. If the rebels won, then the new government would be seen as legal and legitimate, unless it was illegitimate for other reasons. So is sort of ok to rebel against tyranny.

HIRABAH

• 1. individuals or groups carrying out violence directed against the public, against civilians.

• 2. an action that has the effect of spreading fear by preventing people from taking any safekeeping measures against physical or property damage.

• 3. such violence may be overt or stealthy, and may include serial murders, burnings, bombings or property damage

• 4. by arousing general fear and lack of safety, public life is endangered and civic life becomes completely disrupted and unpredictable.

• The jurists prohibited hirabah because Islam places an absolute value on public safety and protection as human rights. These rights belong to the sphere of God. A right of God in Islamic law is one based on universal rights, whose penalty is not subject to the discretion of the judges.

Baghy

• Violence by a segment of the public against the government.

• Hirabah: violence by a segment of the population against another segment of the public, specific or general. In the past hirabah was associated with highway robbery, extortion through violence, roving bands of robbers, and pirates. Today applies to terrorism too.