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Islamic Law
University of Iowa School of Law
Wing, Adrien K.

LAW IN THE MUSLIM WORLD
WING
SUMMER 2011
 
Hours 1 & 2:
 
Arab Spring
The Arab Spring is a revolutionary wave of demonstrations and protests that has been taking place in the Arab world since 18 December 2010. Prior to this period, Sudan was the only Arab country to have successfully toppled dictatorial regimes, in 1964 and again in 1985. To date, there have been revolutions in Tunisia and Egypt; a civil war in Libya; civil uprisings in Bahrain, Syria, and Yemen; major protests in Algeria, Iraq, Jordan, Morocco, and Oman; and minor protests in Kuwait, Lebanon, Mauritania, Saudi Arabia, and Sudan.
·         started in Tunisia
·         Mohammed Bouaizizi-man torched himself due to hopelessness
·         First President: Habib Bourguiaba (very secular)
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Elements of a Legal System
o   “Legal Culture”
§  Ie-History, language, music, holidays, religion (maybe), clothes, calendar, food, family
§  Elements according to John Merryman (Stanford University):
·         Legal rules-laws, constitutions (both written and unwritten “customary”)
·         Legal structures-judicial, legislature, executive branch/capacity, (ex, ENM), religion
·         Legal actors-lawyers, judges, politicians, law enforcement*, law students, law professors
·         Legal processes-civ pro, crim pro (ex, marriage, divorce, etc)
·         Legal penetration-the enforcement/depth of the law (ie, law says you should wear a seatbelt, but there’s little legal penetration of the law)
·         Legal extension-reach/breadth of the law (does the law extend out to cover the topic/population? Does it account for this problem/phenomenon?)
–          usually arises when there’s not a law that covers a topic, not in existence yet, or vigorous debate
–          ex, internet and technology, issues-cyber-stalking, clones, religion covering divorce in the US
o   Legal Culture in the Muslim World:
*legal culture in a Muslim world country usually consists of customary law, note: custom emphasized the group values (communitarianism vs individualism) this a principle of most of the civilizations discussed in hour 3, even parts of western civilization-such as in Europe
 
–          religious law (Islam, Christianity, Judaism or others)
–          Ottoman law (500 year empire)
–          Locally modified civil or common law traditions (colonial and post-independence) including areas studied in this course
–          International law( public int’l, human rights, trade, etc)
–          Honor killings
 
World Religions
·         1.1-1.2 billion in the world: Indonesia-largest population of Muslim/7mil in US
·         Most Muslims are not Arab, but most Arabs are Muslim*
Q’uran
·         Primary set of legal rules for Muslims
·         revelations to the Prophet Mohammed through the Angel Gabriel
·         Islam accepts Jesus, Abraham, Moses (and the last) Mohammed as prophet
·         NOTE: never depict/show pic of the prophet
·         The Prophet
o   First wife, Khadijah, 40, when he was 25, businesswoman, 1st convert
o   After she died, many more including his youngest, Ieesha, who was responsible for 2100 hadiths; her father was the first Caliph, leader of the umma (the faithful)
5 Pillars of Islam
*if you accept these legal rules, you can become a Muslim:
1.      PROFESS THE FAITH (SHAHADA) “There is no true god, but God, and Muhammad is the Messenger (Prophet) of God”
2.      Pray (salat) 5x a day
3.      Paying alms/tithing (zakat)
4.      Fasting during Ramadan
5.      Pilgrimage to mecca (hajj)
Prayer:
o   All Muslims are to pray five times a day; at dawn, noon, mid-afternoon, sunset and at night
o   It is preferred that Muslims pray the noon Friday prayer at a Mosuqe
o   Muslims are to pray in the direction of Mecca
Paying Zakat:
o   Zakat or alms is essentially a tax on idle wealth
o   Muslims are not required to pay the zakat if utilizing their wealth in business ventures
o   The amount of zakat is typically 2% of the idle wealth
            Fasting during Ramadan:
o   For an entire lunar month 27/28 days
o   Muslims are to fast  from sunrise to sunset
o   May not have food or water
o   Not allowed to engage in any “impure” activity such as using foul language or engaging in sexual intercourse (subject to exceptions, ie, pregnancy)
Pilgrimage:
o   Any Muslims who are financially able to complete a pilgrimage to Mecca must do so. Men are called the Hajji, men are Haaja
o   Pilgrims pray at the Haram mosque in Makkah, where the Kaaba is. The Kaaba is the place of worship which God commanded the Prophets Abraham and his son, Ishmael, to build
2 holidays:
o   Eid al fitr-end of Ramadan
o   Eid al adha- end of hajj period
Terms to know:
Fiqh-
Principles that Islamic jurists use to provide solutions, ie, legal views
Fawta-
A legal opinion done by a “legal scholar
 
Sources of Islamic law (sharia):
·         Primary source-the Qu’ran
·         Secondary source-sunnah-things the prophet said or did, which have been compiled into the prophet’s hadith (or sayings)
·         A lot of controversy surrounds the hadith since it is not always possible to verify the truth of the hadith. There are sahih (sound ones) and hasan hadith (good ones), but lots of shaky ones too *Note: If very devout, on the Koran and the very valid hadith matter
·         Qiyas other secondary source- analogy
·         Ijma-consensus of the learned scholars
·         Ijtihad-process of making a legal decision by independent interpretation of the legal sources, the Koran and the Sunnah (some believes that this ended in the 10th Century)
·         Mujtahid-Muslims that engage in ijtihad-can be anyone
Principles of Sharia:
o   Some things are obligatory, ie- 5 pillars
o   Some things are forbidden: eating pork, drinking alcohol,

he gov. expressed through peoples choice of 1)leader 2) constitution
4.1 Bay’ah
·   =selling, connotes a K
·   Takes place when 1+ individuals inform another they support his assumption of the leadership position and pledge allegiance to him- if majority then he takes leadership position in election of wise ones
4.2 Istikhlaf
·         Choosing one’s own successor, less common form
5.      COMPATIBILITY OF DIVINE LAW W/A DEMOCRATIC FORM OF GOV
·   Democratic govs derive legitimacy from the will of the people and rest legality on their consent-elected reps enact laws
·   Islam- laws derive legitimacy from divine will as revealed to prophet, not enacted by reps
·   Qu’ran consented (ummah) to by Muslim people when Islamic state est.–> reflection of divine laws and consent of people (legitimacy rests in this consent, other laws are legislation by reps)= flexible enough admit democratic structures
6.      PRINCIPLE OF SEPARATION OF POWERS
·         Shura- process of consultation of gov to experts- if advice bad he did not blame them.
6.1 Shura Principle
·   Shura is not subject to interpretation, but the range of matters requiring sura, method and whether binding is
·   Range covered:  some specific laws, some limited to military
·   Is it binding:
o Arg No- Qur’an imposed on ruler duty to engage in Shura, not bind
·   Qualifications those who provide:
o Past- wise ones who ascended by recognition of Muslims at large
o Today- politicians, military leaders, religious scholars
o For religious must be mujtahids, other matters must be experts in related field
o MUST BE: moral (honest and truthful), no advice may contravene laws of Qur’an or Sunnah
o AUTHOR: need more workable method selection (could be gen election, others head of state to choose)
6.2 Checks and Balances in the Islamic
·   No sep powers in time of prophet.
·   The khalifah and state subject to rle of Qur’an and Sunnah- whoseinterp rested w/the muhahids- always understood and agreed that it was the duty of every Muslim to right wrongs even if the perpetrator was the Khalif
·   In matters of religion, Islamic law prevails even if used by ordinary Muslim over head of state.- (duty)
·   Islamic system of gov  was left to Muslims to develop in accordance w/: 1) the dictates of their own epoch, customs and needs; and 2) the few basic but flexible and democratic divine rules