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Lecture notes Islamic Law Week 1-6
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Week 1: History Islamic lawIn Islamic legal literature they use the word sharia (‘path’) not only as a path in islamic law
but also Christian sharia or the sharia of Jews. It is not just a regular law, it is a religious or
divine law. Sharia is a term reserved for any rules that somehow relate to God or religion.
Lawyers see law as organising societies and communities.
The first written source of islamic law is the Word of God, the Qur’an. From a legal
perspective, there are very few rules found, but there are rules found about family, especially
women. Which at that time were very progressive.
The second written source is the Sunna, the actions and sayings of the prophet
Muhammad. The example of the prophet works much better, first because there is a
practical matter and he has had quite a career. He was a merchant, judge and general. In all
these fields, he has said and done things that from a legal perspective makes more sense.
The third source is customary laws.
How are we going to organise running an empire? Muslim warriors came from a tribal
environment, so they copied the things they found in the area such as Byzantine and Greek
examples. But that changed, it had to be run as an islamic empire with islamic rules and
laws. So they were relying on the Qur'an, Sunna and customary laws.
After the death of the prophet, the first four (‘righteous’) caliphs came. They also referred to
the oral traditions of the Word of God (Qur’an), because it was not written yet. They also
followed the Sunna, additionally they gave their own little interpretations.
Since the first caliphs, within the islamic tradition, referred as very close to the prophet, they
themselves were given enormous authority. So the rules they set also became known as the
authoritative islamic rules.
For example, the first Caliph Umar, he came up with ‘state law’ for the administration of the
empire. So for example: courts of complaints against state officials; strictly anti-corruption
and anti-nepotism; bureaucracy and police force. Also ‘welfare state’ in the form of state
allowances (booty from conquest) for poor and needy (muslims and non-muslims). Laws of
‘war and peace’ : “Remember, I have not appointed you as commanders and tyrants over
the people. I have sent you as leaders instead, so that the people may follow your
example.”.
Then we have this very fascinating phase of a single ‘Islamic’ empire from 750-1200 EC in
Damascus and Baghdad. It was the time of the safe ‘pax islamica’ and high culture with
relative peace within the prosperous empire. But also the unification of a legal system (the
‘Islamization’ of law) with more or less the same rules for everyone.
Part of that process was the shift from oral to written tradition occured.
,Which leads to the emergence of scholarship (fiqh), law was a science that was to be
discovered, to uncover the rules of God (ijtihad). The oral tradition of master and students
gradually evolves into systemized teaching (madrassa) and into the writing of (massive)
books.
Also the gradual development of legal trends (‘schools’): madhhab, with people who have
more or less the same ideas. Only later did they become geographically determined.
These madhhabs were based on the choice of method and the use of local customs. E.g.
in Baghdad, Kufa, Basra they were the ‘rationalists’ and in Medina, Mecca were the
‘traditionalists’.
With agreeing/compromising about the choice on method/methodology they consolidated
the scholarship (fiqh).
Shi’a law is not that different, until the 1500’s Shiites were a minority sect under Sunnite rule.
Any different idea that they might have had, was kind of oppressed or had to be hidden. That
changed after the 1500’s with the Safavid state which had Imami (or Twelver Shi’a) law as
state law.
Mahmud Shaltut, the rector of Azhar University said in 1960 ‘Islamic law according to the
five madhahib’. So, sunni ánd shi’a madhhabs. Nowadays this is completely politicised, that
is why today Shi’ite sharia is now considered a separate thing.
Up until now we have only talked about societal rules, so the relation between state and
man, or man and man. In the sources there are many many rules and therefore sharia about
the relationship between man and God. How to behave and be a good muslim. Qur’an and
Sunna provide plenty of rules for that. Usually worldly powers and lawyers do not deal with
that aspect of sharia, we call that freedom of religion. That is why it is ridiculous to ban
sharia, because then you ban all the islamic rules including the rules of prayer, burial, fasting
and many more. The discussion about sharia is a very legally based discussion, while in fact
sharia is much more than that.
The way that players are acting in islamic law is very different than we might expect in a
regular law society.
Players in Islamic law
The scholars dominate and monopolise the rules that are related to Qur’an and Sunna.
Their goal is different from the lawyers that work for the state. The scholars (ulama) are
dealing with the intentions of God and are truly independent, the judges (qadi) are appointed
by the state (sulta) to apply the rules that the state has promegated, they are in charge of the
politics (siyasa). But they will ask the scholars about what islam says about a particular
situation, they ask for a ruling (fatwa).
In islam anyone can be a scholar; a man; a woman; a slave. If you have the wisdom and
intellect to work with the Word of God you can become a scholar. The state had to deal with
it because these scholars represent authority, the sultan is ruling in the name of islam but
, those are the people who know everything about islam. So you want these people on board
and preferably say the stuff you want them to say.
In most muslim majority states the state appointes a state-mufti because of the appointment
the scholar has authority. The state will use that person to legitimise its actions.
In Sunni Islam the authority of the scholar is attributed by the people. The importance of
the scholar is seen in the people waiting ‘outside his office’ to consult him. Among sunnite
scholars any muslim can walk up to any scholar and ask him for a fatwa. Sort of democracy,
the muslim himself choices who he wants to deal with. There is a ‘separation of clergy and
state’.
Not among the shi’ites, in Shi’a islam the scholar is appointed by the state, there is a
hierarcy of ayatollahs and marjas. This makes shi’ite islamic law much more organised,
because it works top-down. In the Safavid Empire you have ‘state clergy’.
So, shari’a is a scholar’s law rather than a judge's law with its own aims (uncovering ‘God’s
plan’), methods and sources.
In the 1200-1600s we saw a disunity and collapse of the Islamic Empire. They struggled with
foreign invasions; crusades in the 10th-12th century and the Mongols in the 13th century.
Additionally, we see the emergence of new (muslim) powers in the 1500-1800s: Ottoman,
Safavid and Mughal.
What followed was the period of taqlid (ones following authority), the free-thinking stops. It is
officially said that the gates of ijtihad are closed, what are the books and authorities that we
are going to follow... The assumption was that all law was already discovered. Higher
authorities (consensus, imams) to be followed. Therefore, consolidation of the madhhab
doctrine. Books were still written, but only as commentaries.
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