Philosophy of Muslim Law

8/7/2019 Philosophy of Muslim Law

1/22

Philosophy of Muslim Law

Aditi Ghosh

10IP60002


2/22

Course Structure

Module I: Introduction Nomenclature controversy

Muslim law at variance

History/Pre-Islamic Arabia

Coming of Islam

Module II: Development of Muslim law Who is Muslim?

Development of Muslim law

The Prophet

Koran and Hadith

Shariat and Fiqh

Module III: Sources

Sources of Muslim law Primary & Secondary

Module IV: Schools

Sunni schools of Muslim law

Shia Schools of Muslim law


3/22

Pre-Islamic Arabia

Harsh climatic conditions

Status of religion

Status of women

In the midst of such adversities Muhammad

was born on 29th Aug 570 AD (Monday, the12th Rabi-ul-Awwal) in Arabia.

Islam submission to the will of God


4/22

5 pillars of Islam

1) the shahadah (monotheism),

(2) daily prayers (salat),

(3) fasting during Ramadan (sawm), (4) almsgiving (zakat), and

(5) the pilgrimage to Mecca (hajj) at least once

in a lifetime.


5/22

Sources of Muslim LawShariah Sources

Quran (the holy book word of God)

Hadith (Tradition)

Ijma (consensus of Opinions)

Customs and Usages

Juristic deductions Qiyas (Analogy)

Istihsan (Juristic equity and absolute good)

Istislah (Public good)

Istidlal(Process of hearing)

Ijtihadand Taqlid(interpretation)

Extraneous Sources

Legal Fiction

PositiveLegislation

Custom


6/22

Quran word of God

1st Source contains verses

Most revered, but needs interpretation

difficult to understand

Prophet - faced with legal problems would

seek Divine guidance answers received in

Divine revelation formed definite legal

element in Quran


7/22

Hadith or Sunnah Traditions and

practices of the Prophet

Hadith story of particular occurrence

Sunnah the rule of law deduced from it modelbehavioral practices of the prophet

3 categories -Hadith Mutwatir(continuous)

Hadith Mashhoor(well known)

Hadith Ahad(isolated) Modern theories raised doubts as to the origin of

some of the traditions as not belonging toProphet and of late origin


8/22


9/22

Requirements for validity of Ijma

Shall not be conflicting with quran or Hadith

One decided cant be reopened by individual

jurists One Ijma may be reversed by a subsequent

one

When jurists have expressed only 2 views, 3rd

view is inadmissible


10/22

Qiyas Analogical deductions

For cases not provided for in

Quran/Hadith/Ijma to be sought by reason,

logic and opinion analogical deduction

Application of the laws of the text to cases

Governed by reason of the text

Not opinions merely based on whim Differences in opinion in acceptance ofQiyas.


11/22

Others..

Sources originating from equity and absolute good-

Istihsan preference - setting aside of analogy in thepresence of stronger source

Al-masalih al-mursalah public interest

Istidlal source derived from reason and logic

deductionIstishab - permanency presumption as to the

existency/non-existency of a thing as it is untildisproved

Ijtihad interpretation effort in arriving at rulesfrom various sources of law

Taqlid imitation blindly following opinions

without scrutiny or understanding


12/22

Birth ofShia and Sunnisects Matter in issue leading to the division Doctrine ofImamat-

Position of Iman v. prophethood and messengership

Shias the party associated with prophet-appointed Ali afterProphets death - denied the principle of election ofImamatby the people

- denied rightful succession of the 1st thee caliphs

- dissociation of secular and spiritualpowers

- approx. 5-10% of the Islamic community

Sunnis leader of Muslims is the Khalifa or caliph successor of the Prophet spiritual and temporal head

- Leader a mortal possessing qualifications for election tothe office

- Caliphate abolished in 1924 Turkish Revolution


13/22

Schools of Muslim Law

SUNNI schools Hanafi

Maliki

Shafii

Hanbali

SHIA schools- The Imamiyah Shia or Ithna Ashriyah

TheZaidiyah Shia

Ismailiya Shia


14/22

Sunni School

The Hanafi School

Founder Imam Abu Hanifa

Less reliance on traditions unless their authority is beyond anydoubt;

Greater reliance on Qiyas;

A little extension of the scope of Ijma;

Evolving the doctrine of Istihsan (Preference)-applying rule of lawwhen spl. circumstances demand

The School is followed in Syria, Lebanon, Turkey, Egypt, Afghanistan,Pakistan, India etc.


15/22

The Maliki School

Founder Imam Malik

Acceptance of tradition which were, in the opinion of Imam Malik,authentic, even if the tradition carried the authority of only one narrator;

Acceptance of practices of the people of Medina and of the sayings of thecompanions of Prophet;

Recourse to analogy (Qiyas)only in the absence of explicit text;

Making use of a source unique to this school (al-masalih-al-mursalah-public interest)

This School is predominant in Morocco, Algeria, Tunisia, Sudan, Bahrin,Kuwait etc.


16/22


17/22

The Hanbali School

More strict follower of traditions

Restricted qiyas and ijma within narrow limits

The foundation rests on :

The Koran

The Sunnah

The Ijma

Qiyas whenever necessay

Least widespread

The School is followed in Soudi Arabia, Palestine, Syria, Iraqetc.


18/22

Extinct Schools

The Awzai School

The Zahiri School

The Tabari School


19/22

Shia Schools or Sects

The Imamiyah Shia or Ithna Ashriyah

The Zaidiyah Shia

Ismailiya Shia


20/22

Shariatand Fiqh Law of Shariat Doctrine of certitude husn and qubh

answers in sayings and deeds of the Prophet 5 qualifications al-Akham-al -khamsah

Shariat doctrine of duties ethical path to follow laws governing all human actions

- grades of approval and disapproval farz,haraam,mandub, makruh and jaiz

Fiqh intelligence deals with only legal aspects legal / illegal

- independent exercise of intelligence in deciding apoint of law Muslim jurists have defined the limits forfree interpretation

- divided into roots, Usuland branches, Furu


21/22

Development of Muslim Law

Period I legislative period AH 1 to 10

Period II AH 11 to Ummayads period of

collection and interpretation Period III Development ofsunnischools

Period IV AH 200 to present day period of

taqlid


22/22

Books referred

Asaf AA Fayzee

Khalid Rashid

Philosophy of Muslim Law

Documents

Transcript of Philosophy of Muslim Law