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ISLAMIC LAW.
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Examines concept of the law in legal theory, made by God.... More...
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Paper Abstract:
Examines concept of the law in legal theory, made by God. Historical perspective. The Shariah. Tribal unity and ties. Bases of ethical conduct. Legacy of Muhammad. Sources of Islamic law; the Quaran. Structure of the law. Representation of both a religious and social order in society. Conflict between Islamic fundamentalists and modern thought. Table of Contents.
Paper Introduction:
Derivation of Islamic Law
Table of Contents
Introduction 2
Historical Perspective 3
Muhammad 7
The Legacy of Muhammad 10
The Sources of Islamic Law 11
The Quran 12
Sunna of the Prophet 12
Analogical Reasoning 13
Consensus of the Community 13
Secondary Sources 14
The Structure of the Law 14
The Roots 16
The Branches 16
Interpretation 17
Schools of Islamic Law 17
Conclusion 19
References 20
Introduction
With the exception of the laws of the Assyrians and the Code of Hammurabi, there is no system of recorded law, literally from China to Peru, which upon first emergence, is not viewed as being linked with religious observance and ritual (Fyzee, 1963, p. 33). This can certainly be observed with respect to Islamic law.
Relatively little has been written in English with respect to Islamic legal tradition. Some would consider this a very serious shortcoming especially when considering the almost continuous state of tension in the Middle East and magnitude of the Islamic influenc
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New wealth was being established as well as a newcommercial oligarchy that was centered within the Quaraysh tribe.Additionally, there was becoming a growing division between the rich andpoorer sections of society creating greater division in the social classesand thus straining the traditional system of Arab tribal value and life.It was into this environment that Muhammad came forward. Ethical conduct was the product of tribal experience and tradition.Key virtues were manliness (emphasis was on bravery in battle), loyalty tofamily (and its protection), hospitality, patience and persistence. He would later become the business manager for thecaravans owned by a wealthy widow whom he subsequently married when he wastwenty-five years (25) of age. New York: AsiaPublishing House. Because the Quran does notdocument a large body of laws, the desire to discover and to detail Islamiclaw in a consistent manner led to the development of the science ofjurisprudence. The Legacy of Muhammad Muhammad was clearly one of history's great religious figures whopossessed a strong character and personality that inspired confidence andcommitment in his followers. Islam: The straight path. (1999). They became theobjects of cultural rituals that included sacrifice, pilgrimage and prayer. His father, a trader, died before Muhammad was born andhis mother died when he was six. He was married for fifteen (15) years, themarriage producing four (4) daughters who survived infancy, the most famousof which was Fatima. As such he served asthe ideal model for Islamic life and provided the pattern for all truebelievers to follow. It is believed that he made thistransition at approximately the age of forty, in the year of 61 AD. 5). Historical records reveal little aboutMuhammad prior to his becoming a prophet. Islamic law is totalitarian in that it governsevery action of man. By the tenth century, the basic development of Islamic law wascomplete. 43-44).Sunna of the Prophet This second source of law interpreted and more clearly detailed theprinciples presented in the Quran and was the codified form of the behaviorof Muhammad. Muslims look to Muhammad's example for guidance in all aspects oflife. It was this group loyalty or solidarity that wasthe real source of power for a clan or tribe. Rigorouscriteria were established to validate the reports and as such, during theninth and tenth centuries, scholars traveled throughout the Islamic worldto gather and assess these reports. The true interpretation of the verses within the Quran, . 84). The general consensus of Muslim jurists was that Islamic law hadbeen satisfactorily detailed in its principles and preserved, as such anyfurther substantive legal development was prohibited and is commonlyreferred to as the closing of the gate or door of "ijtihad" (Esposito,1991, p. The Sunni and the Shii accept the Quran and the Sunna as the textualsources of Islamic Law, but the Shii have maintained their own collectionsof traditions that include not only the Sunna but also that of Ali (son-in-law of Muhammad) and the Imams. Perhaps the solution to the conflict within the Islamic community and that between all of the other monotheistic religions of the world is a better understanding of the roots and recognizing that while each is different, they serve the same purpose. The consensus of the community was applied to thereligious activities practiced by all members of the faith. The Imammust also be a direct descendant of the Prophet Muhammad and Ali, the firstImam. Conclusion Westerners, in order to understand and live in harmony with theIslamic world, must continue to probe and attempt to understand thecomplexities of Islamic Law, its associated society, and its strongunderpinning of tradition. Thus he toiled in Mecca for ten (1 ) years and gathered in Mecca asmall band of faithful converts. Thus it was Arab tribal society of the time that was ripe for thecoagulation of a good deal of monotheistic principle and thus formed thebasis for Islam to rise and take hold. Hira, nearMecca. The science of the Roots is likened to Western jurisprudence and dealswith the following (Fyzee, 1963, 28) elements: . In early times, the Near East spawned many religions. He was revered from perhapsthe beginning and his words and accomplishments recounted many times duringboth his lifetime and the many centuries thereafter. Among these secondary influences were custom, publicinterest, and jurist preference over equity. The tribes were led by a chief(shaykh) who achieved this leadership position by means of a selectionprocess based upon consensus of the heads of the clans or families. His message was similar to that presented by the Hebrew prophets whichhad proceeded him in that he functioned as a "warner" from God, askingpeople to repent because the final judgment was close at hand (Esposito,1991, p. Intertribal warfare was a long-established activity that was ruled by very clear rules of conduct. As such, Islamicbelief represented a truer faith and a process that would be used torestore an ignorant, deviant society (Esposito, 1991, p. Once the individual is committed to Islam, their overriding concernand question is "What do I do, what is God's will/law?" (Esposito, 1991, p.75). The bulk of the Quran contains broad, generalized directives thatreplaced, modified, and/or supplemented the earlier Arabian tribal laws.Most of these reforms consist of moral regulations and/or guidance thatlimit or refine existing practice. This did not develop as asource of law until after the death of Muhammad and the loss of his directguidance in legislation. Fyzee, A.A. . As a source of law and moral guidance, itforms the basis for both law and ethics. The Hanafi are in the Arab MiddleEast and Southeast Asia, the Maliki are in North, central and WesternAfrica, the Shafii in East Africa as well as Southern Arabia and SoutheastAsia. 5). The fiqh, by Western standards, is not in the strictestsense, law, but rather a religious doctrine of duties that claim ajurisdiction over human life. Gods and goddesses served as protectors of each of the tribes and theywere associated with various sacred objects. The Ijmá (consensus of opinion among the classical jurists) . Monotheismhad been clearly evident in Semitic and Iranian cultures for severalcenturies preceding the entrance of Muhammad on the scene. This succession was with respect to political and militaryleadership, but not the religious authority that was afforded to Muhammad.The Shii, in contrast, believe that the leadership of the Muslim communitybelongs in the hands of the Imam (their equivalent of the caliph). The fundamental difference between the Sunni and Shii Muslims has todo with the Shii doctrine of the imamate as being distinct from the Sunnicaliphate. The Structure of the Law The Law (fiqh)in Islamic tradition is divided into two parts. 8 ). While these deities were the principalobjects of worship, there was a shared belief in "Allah" (the god) who wasthe supreme high god and creator of life but remote from the every dayconcerns and as such was not the subject of cult or ritual. (1991). In addition to that practiced by theChristians of the time, native or pre-Islamic Arab monotheists calledhanifs existed in the area (Esposito, 1991, pp. New York: OxfordUniversity Press. The qiyás (analogical deduction). It is important to remember that Muhammad was not the founder of theIslamic religion, but only a reformer. Muhammad In order to properly understand the underpinnings of Islamic law, onemust also understand Muhammad. Justice therefore becameguaranteed (and administered) by the threat of group vengeance orretaliation. The Sources of Islamic Law For the early believers, following God's path (Shariah) meant strictobedience to God's continuing revelation and to His Prophet (Muhammad).Thus matters pertaining to worship, relations within the family, criminaljustice, and even warfare, could be referred back to Muhammad forinterpretation, leadership and decision. It was at this point that Muhammad had the opportunity to implementthe message of God since he was now not only prophet, but the temporal headof what had become a community. Consequently, human action is divided into five (5) classes. It is divided intothirty (3 ) sections that are further subdivided into 114 chapters called"Surahs" and are arranged in order of length. For the tribes of Arabia, the ideals and norms of their way of lifehad been held within their practices, customs or oral laws that had beenpassed down from previous generations by word and example. Consequentlythe practices of Muhammad, the Prophet, became a material source of Islamiclaw alongside the Quran (Esposito, 1991,p. Whereas following the death of Muhammad, Sunni Muslims came to placethe final religious authority for interpreting God's will in the consensusor collective belief of the community, the Shii believe in the continueddivine guidance of their Imam. As such it was destined for theidealized society and did not address the needs of the real, corrupt,world. Taurus Publishers. As a young man, Muhammad worked in thecaravan trade in Mecca. 28-29). The science of the Branches is analogous to Western positive law. For thefirst ten (1 ) years, Muhammad's ministering activities were characterizedby opposition and resistance largely because he was condemning thesocioeconomic inequalities that existed in everyday life in and aroundMecca. These were the keepers of the Kaba, thereligious shrine that contained all of the tribal idolatry. Derivation of Islamic Law Table of ContentsIntroduction 2Historical Perspective 3Muhammad 7The Legacy of Muhammad 1 The Sources of Islamic Law 11 The Quran 12 Sunna of the Prophet 12 Analogical Reasoning 13 Consensus of the Community 13 Secondary Sources 14The Structure of the Law 14 The Roots 16 The Branches 16 Interpretation 17Schools of Islamic Law 17Conclusion 19References 2 Introduction With the exception of the laws of the Assyrians and the Code ofHammurabi, there is no system of recorded law, literally from China toPeru, which upon first emergence, is not viewed as being linked withreligious observance and ritual (Fyzee, 1963, p. Regardless, Islamic law differs from commonand civil law because of its religious and therefore nearly unchangeableform. 6-7). The Quran . 33). According to some Muslims, he is the "living Quran,"the witness whose behavior and words reveal the will of God. Hira at the age of forty, during the month ofRamadan, that he received the first of many revelations from God. Thus theheeding of God's warning required one to turn away from the path ofdisbelief and return to the straight path (the Shariah) or law of Godrequiring both individual as well as group submission. This process incurred tremendouseconomic and social disruptions. Additionally,by his claiming to be a prophet and insisting that all true believersbelonged to a single universal community (called the umma) transcending alltribal bondage, he was serving to undermine Meccan tribal political power. Mecca possessed a central shrine that contained the 36 idols of thetribal patron deities and as such was the site of an annualized pilgrimageand fair (Esposito, 1991, p. While Mecca had become a highly prosperous center for trade, it wasalso being torn by the societal transition from a semi-Bedouin existence toa more commercial, urbanized society. Whilethe objective of pillaging was to capture livestock from the enemy Bedouintribes, it also had the goal of weakening and absorbing tribes throughreduction and domination. It is not a structured book,but a vibrant and powerful outpouring of divine messages covering allaspects of life (Ahmed, 1999, pp. Thesepeers formed an advisory council to the shaykh within which the heexercised leadership and authority as the first among this group of equals. Christian and Judaic theology strives to attain many of the same goals as does that found in Islam-recovering the world and mankind to continue down the prescribed path of God. His followers found him to be righteous,trustworthy, pious, compassionate, and honest. By the time of his death in 632 AD he hadestablished his leadership in Medina, subdued Mecca and consolidated Muslimrule over the remainder of the Arabian peninsula by using military as wellas diplomatic approaches. Islam today: A short introduction to the Muslimworld. 13). Islam now took political form by establishing anIslamic community-state in Medina. On a local basis, thesetribal deities were respected and feared, but not loved. (1961). In 622 AD, Muhammad and about 2 ofhis followers emigrated to Medina and thus signified a turning point in thesuccess of his efforts. Since Muhammad had become a veryinfluential member of Meccan society, he appears to have been also veryprofoundly impacted by these changes. The Sunna (practice of the prophet) . Thus it came that thecommunity as well as the individual was to become the vehicle for therecognition of God's will on earth. The altered face of society in a country where analogical deduction would be the only just course. An example of this group would be givingmoney to charity. Thefirst part, is called the Roots (us?l) and the second portion is called theBranches (fur?). London: I.B. It is found in suchdiverse environments as the former Soviet Union, China and in England. Given thenature of tribal society in seventh-century Arabia and the presence of theRoman (Byzantine) and Persian empires as buffer states surrounding theArabian Peninsula, it would have seemed unlikely that any new religionwould be able to emerge. The second are those that arerecommended, but not compulsory. This can certainly beobserved with respect to Islamic law. The rugged nomadic andindividualistic nature of the Bedouins was countered by the subordinationto tribal authority and tribal customs that were unwritten. The Sunni believe the earlysuccess of Islam was due to God's guidance and rewards to faithfulsupporters as well as validating the overall theater of Islamic beliefs.For the Shii, conversely, history was the theater for the struggle of anoppresses and disinherited minority community to re-establish the rule ofGod on earth over the entire Muslim community under the leadership of theImam. Consequently, Arab religion, at the time had little sense ofmoral purpose or responsibility on either an individual or community basis. Bedouin tribes pursued a nomadic existence and the mostprominent of towns was Mecca which was the center of trade and commerce,and Medina which was primarily an agricultural settlement. Some would consider this a very serious shortcomingespecially when considering the almost continuous state of tension in theMiddle East and magnitude of the Islamic influence in general. 4). Those aspects of life whichthe law encompasses in other societies and cultures forms only one part ofthe fiqh and as such, any purely "legal" approach to it as doctrine wouldlead to misunderstanding (Udovitch, 197 , p. Forms ofmonotheistic practice existed beside pre-Islamic tribal polytheism inArabia before the time of Muhammad. The body of Islamic law is contained in the Shariah, and is consideredto be central to the way Islamic society is perceived and understood,especially by Western culture. The Shiialso developed its own schools, the most important of which is the Jafarinamed after Jafar al-Sadiq. Associatedwith Allah were three goddesses who were his daughters-al-Lat, Manat, andal-Uzza. It does not, however,represent a highly comprehensive codification of law. Thisworked hand in hand with a fatalism that believed there was no meaning oraccountability beyond this life. Relatively little has been written in English with respect to Islamiclegal tradition. Muhammad, asProphet and leader of the community, reformed these traditions and as aresult it was the practice of the Prophet (his path or "sunna") that becamethe way in which life and society was conducted within the community. It is interesting to note that the fiqh was developed by religiousscholars during the golden age of Islamic religion which occurred duringthe time of the first four caliphs. Today, the Islamic community is global and numbers in excess of 9 million practitioners (Esposito, 1991, p. The resistance and opposition to hispreaching became even more intense in 619 AD, following the death of hiswife and that of his uncle, Abu Talib, who had also been his protector.Ultimately the resistance to Muhammad would become active persecution, withthe primary intensity coming from the Umayyad clan of the Quaraysh tribe,the latter being the dominant constituency within Meccan society. He was not only greatly respected forhis judgment and his trustworthy character he also had a highly reflectivenature that frequently caused him to retreat to a cave on Mt. When faced with anew situation, one would seek out a similar situation in the Quran or inthe Sunna. Social order and identity became based upon membership in an extendedfamilial structure. In Islam, as in Hinduism, the law is in legal theory, made by God.Human requirements, the expediency of a political situation, the evolutionof civilized life, the lessons of anthropology, and even the notions abouthuman justice, all become secondary to this basic tenet (Fyzee, 1963, p.28). The Sunni represent approximately 85 percent of the totalpopulation of believers and the Shii approximately 15 percent (Esposito,1991, p. The Prophet, Muhammad, belonged to the Banu Hashim which was a lesser clanwithin the powerful Quarysh tribe that dominated society in Mecca. Islamic jurisprudence. For the Sunni, four schools predominated which included theHanafi, Hanbali, Maliki, and Shafii. (1963). A modern approach to Islam. Baltimore: The JohnsHopkins Press. The fiqh (literal translation is "understanding") is thescience or discipline within Islam that sought to determine, interpret andapply God's will as found in the Quran to all aspects of life. 9). In understanding Islamic law, one must recognize thatthere is a very clear delineation between the first principles and therules deduced from the application of these principles.Interpretation Interpreting the distinction between Roots and Branches is necessaryto fully understand the complexity presented in a Westerner attempting tounderstand Islamic Law. It was Fatima who would later marry Ali the fourthcaliph of Sunni Islam who was also the first legitimate leader of the ShiiMuslims. The threat of retaliation by means offamily or group means (vendetta) became highly important in this societywhere there was a lack of any formal central political authority or code oflaw. Six collections of reports came to beaccepted as valid, two of which have gained an especially high status asauthoritative source material.Analogical Reasoning Reasoning had played an important role in the development of Islamiclaw as caliphs, judges, jurists, and scholars struggled to makeinterpretations where there was no explicit direction. Udovitch, A.L. The last of the four, the Hanbali, are in Saudi Arabia. For the believers, law is a religious and concrete expression of God'sguidance, or path to follow, for humanity. Consequently, throughouthistory, Islamic law has been the core element in self-identity andpractice because it provides an ideal social pattern for what isappropriate in society. While regional differences exist in the local characteristics of theShariah, the establishment of the Shariah signified a highly progressivestep in the development of legal process with respect to Islamic customs ofblood revenge and retaliation. No single human act, regardless of its importance,can remain unclassified with respect to the very precise and logicalsegmentation provided by the jurists. While it is commonly believed that Islam emerged in the seventhcentury, it is important to note that the monotheistic message of the Quranand the preaching of Muhammad did not simply occur overnight. Consequently, what Westerners view today in terms of thebehavior of Muslim society is largely a conflict between Islamicfundamentalists and modern thinking with respect to the practice andinterpretation of the law as it relates to the needs and dictates ofsociety today. Similar differences exist between themeaning of history between these two elements. AState may have either a codified law or case law. Arabian religion and society at the time, reflected the tribal natureof the region. NewJersey: Princeton University Press. 3) and continues to spreadthroughout Europe, Asia, Africa and North America. It was here on Mt. Like the Hebrew prophets before him, it is said that Muhammad reactedto his calling by being both frightened and reluctant to proceed. The Shariah had now been transformed into a legal "blueprint"for society and any consideration for innovation came to be viewed asunwarranted and equivalent to heresy in the Christian religion. The continuing conflict between Islamicfundamentalists and those embodying more modern, consensus of the community-oriented thought is one that has been in progress for many centuries andcertainly will not be resolved easily. The circumstances in which consensus among the jurists may be accepted, and . In 62 AD Muhammad was invited to Medina to judge a feud that had beenongoing between some of its tribes. The firstare the obligatory, those that are performed as an absolute command, suchas praying five (5) times a day. Historical Perspective Within Islamic society, there are two historical divisions, the Sunniand the Shii. Whilethe Imam is not a prophet, is considered to be divinely inspired, sinless,without fault, and in short the overall leader of the community. In spite of the differencesbetween the segments within Islamic culture, it has provided an underlyingsense of identity and common mode of behavior for the aggregate society.As such, the role of Islamic law within Muslim society has always been, andwill continue to be a central issue for those within the community ofbelievers. It washere that he transcended from businessman and member of society to Prophetof God. If a similar reason could be identified in a new situation,then the Shariah judgment was extended to resolve the new situation.Consensus of the Community The fourth source of law is the authority for consensus and isusually derived from a saying of the Prophet. Equally important, for the time,was the fact the period was marked by many societal questions associatedwith the society moving from its nomadic, Bedouin existence, to that beingmore sedentary in nature. Muslim tradition andthe Quran portray the hanifs as descendants of Abraham and his son Ismail. Third in the hierarchy are those that are deemed aspermissible (neutral in the eyes of the law) and subject to choice by theindividual, such as whether or not to travel somewhere by airplane or car.The fourth class is that action which is disapproved, such as the eating ofcertain types of fish. In Islam, however, theparticular rules governing drinking of wine (forbidden under allcircumstances) and smoking tobacco (not specifically approved, but on theother hand neither is it specifically forbidden) are passed down in thebooks that have been written by jurists and are logically derived byapplying the principles prescribed in the Roots. Today they remain dominant but indifferent parts of the Islamic world. The most pressing problems of civil, ritualand criminal law are therefore on the same level as the formula forgreeting and the amenities of table manners. Esposito, J.L. As such it deals with the following primary four (4)classical sources of law. Thus it wastribal law and membership that became the basis for individual identity aswell as protection in this culture. Unfortunatelyclassical Islamic jurisprudence defined the "community" as the community oflegal scholars or religious persons acting on behalf of the entire membercommunity.Secondary Sources Islamic jurisprudence recognized that there were also otherinfluences that must be considered and as such relegated these influencesto secondary status. Partnership and profit in medieval Islam. Grouping of several families together comprised a clanand a cluster of clans constituted a tribe. As aprophet, he served as both the human instrument of God, bearing Hisrevelation, and well as a model for all to emulate in terms of their dailylives and living. The caliph was selected or elected as the successor to theProphet. He also believed that both the Christian and Jewish religions haddistorted God's original revelation to Moses and Jesus. Finally, the fifth class, represents those actionsthat are absolutely forbidden, such as eating pork. References Ahmed, A.S. As such,classical Islamic jurisprudence recognized four (4) primary and severalsecondary sources.The Quran The Quran represents the primary source of Islamic law and is thesourcebook of Islamic principle and value structure. The Arabs placed a large measure of importance on the value of tribalunity and tribal ties. This event is important because itmarks the beginning of the Islamic calendar. He brought forward a way in whichhis followers could purify and redefine their lives in a monotheisticmanner. (197 ). In contrast to positive law, Islamic law was considered to besupernatural and for a high purpose (Khaddui, 1961, pp. These two typesof rules are given a divine origin within Islamic Law.The Roots The Roots, as mentioned previously, correspond to Westernjurisprudence. 31).The Branches The Branches establish the particular rules of daily living as wellas those observed in the courts of law, such as that dealing with marriageand inheritance. Thus there was no belief in resurrection,divine judgment, or eternal punishment/reward. Records of Prophetic deeds were recorded and preserved in reportsknown as the "hadith." As one would expect, the number of such reportsgrew as did questions related to their accuracy and validity. The Shii reject analogy and consensus aslegal sources because they regard Imam as the supreme legal interpreter andauthority. The authenticity, force and validity of traditions attributed to the Prophet, . Dominantsources of income for the people of this time were herding, agriculture,trade and pillaging of neighbors. 14). For manyyears thereafter, the descendants of the Umayyad clan, even after they hadbeen converted to Islam, would continue to challenge the family of theProphet. Despite these obstacles, Islamic tradition didemerge and begin to grow based upon the revelation of the Quran (The Word)and under the leadership of the Prophet, Muhammad. This was a direct challenged to the traditional, polytheistic,religious beliefs as well as a threat to the economic, social, andpolitical interests of those in control. He continued to receive these divine revelations for a period oftwenty-two years (from 61 to 632 AD), which were ultimately collected andwritten down in the Quran (The Recitation), Islam's most sacred scripture. It appears that he was born Muhammad ibn Abdullah, the son of AbdAllah, in 57 AD. It was the belief that Muhammad, as inspired by God to actwisely in accordance with God's will, led to the acceptance of his example(Sunna) as a supplement to the Quran and thus became a major textual sourceof the law (Esposito, 1991, p. What is hard for most Westerners to comprehend is that Islamic Lawrepresents both a religious as well as a social order within society.Because of this there are devotional obligations and rules that regulatecivil as well as commercial relationships between people. Schools of Islamic Law By the thirteenth century, the number of schools of Islamic law hadstabilized. Itrepresents the second largest of the world's religions and therefore mustbe considered a very prominent presence. As such, in his rejection of polytheistic belief, heundermined the religious prestige of the Umayyad clan and others inreligious power in Mecca. While these statistics focus on the common faith and beliefepitomized by the Five Pillars of Islam, there is still much in the way ofdifferences internal to each of these groups. Quranic legislation was given divine status literally from the verybeginning, but Islamic law, customary or otherwise, that was not repealedby the divine legislation, was incorporated into Islam following a longprocess. His actionsalso threatened the economic benefits that had been traditionally providedby the believers by way of their annual pilgrimage and festival surroundingthis central repository of Arabian tribal religious belief. Mecca was emerging as a major center ofmercantilism and as such was precipitating a new political, social, andeconomic environment. Khadduri, M. In addition, the Roots also deal with secondary sources which areoffshoots of analogical deduction as well as material sources of law suchas custom, the influence of other systems of law, the force of publicopinion, the changing circumstances of society, and the conditions andneeds at the time (Fyzee, 1963, p.
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