Islamic Law
Winter 2009
Prof. Jackson
Outline
January 14, 2009
Introduction
Traditional Islamic Law (IL)
§Overarching Themes
§1) Origins—temporal and geographic
§2) Legitimacy
§3) Authority
§Distinctive Characteristics
§ Detachment from ‘State’
§IL was not/is not product of either a) Pre-Modern Muslim or b) Modern Secular State
§IL came into being through private sub-state interactions
§Anomalous: since most secular laws spring from GOVT—administered under State purview
§IL developed parallel /below/sometimes in conscious opposition to early Muslim State
§(Key): IL ≠ Coterminous w/ Muslim State Law
§ IL Substance’s Extracting Entities
§Madhabs (‘Schools of Islamic Law’) [EXAM]
§ IL’s Primary: 1) Repositories of Legal Authority 2) Custodians/Maintainers 3) Perpetuators
§Central Tension
§ Issue: IL ‘Proper’ vs. State’s Discretionary Power
§ SUBSTANCE vs. AUTHORITY
§Substance = value, content
§à Peer Assessed / Determined
§Authority = determinative of application / compulsion
§à Relative to Superceding Social Entities
Status, Scope, & Sources of Islamic Law
§ Question: Does IL exist?
§SCOPE: “Sacred law of Islam is all-encompassing body of religious duty on equal footing w/ social, political, & legal rules.
§Fiqh (“The Knowledge”)à Synonym for Islamic Law [EXAM]
§ EVERYTHING: Falls within the scope of legal contemplation; Islam = religion of strict obedience
§IL “infinitely expandable” / “potentially infinite scope”
§How So?
§ Qiyass (“Analogy”) à Basis through which law is extended to new contexts in Islam [EXAM]
§ No Central/Limiting Adjudicative Body: deliberative body akin to a Supreme Court non-existent;
§IL is whatever a ‘Jurist’ can VALIDATE and DEFEND in PUBLIC (inherent relativity)
§Monolithic v. Pluralistic
§ American Law = Monolithic
§ Islamic Law = Pluralistic à multiple “answers” consistent with IL’s sources/methodologies
§IL cannot be regulated b/c not part of State
§“The Islamic Law” (Wrong!) [VS] “An Islamic Law” (Yes!)
§ IL = ‘Proof/Justificatory Law’ – hopelessly pluralistic – Scriptural Evidence is a pre-requisite for any legal pronouncement made!
§NATURE of ISLAMIC LAW:
§ a) Religious Law: AUTHORITY behind it (as opposed to power) is transcendent;
§compliance is self-imposed on account of IL’s presumptively righteous source
§ b) Jurist’s Law: SUBSTANCE of IL knowable only by resort to secular modalities such as mediation/interpretation
§historically/contextually derived—i.e. not purely theologically divined
§(Key) Jurists advance/offer support for competing versions of IL
§Alternate views never extinguished! (see, secular-state where legal slates are periodically cleansed)
§Predominant approaches wax and wane in influence
§IL legal opinions never die; survive in theoretic perpetuity
§ IL Nature/Origins (In-Depth):
§ Central Premise: IL authority is transcendent—but substance is negotiated through the legal reasoning process
§ Metaphor: G-d as ‘Sole Legislator’ à only entity with the legitimate right to impose rules & obligations; however those rules & obligations must be put into effect by an ‘Administrative Agency’ with the technical capacity to summon legal parameters through legal science
§Subsidiary Premise: ‘Secular States predominated by Muslims’ and ‘Islamic Law’ frequently clash/perennial tension à IL officially indifferent to any particular State’s perpetuation/continued existence
§(Jackson) Digression: Islamic Fundamentalism: not a literal rendering of IL—rather an IDEALIZED CORRUPTION of IL advanced by fundamentalists reacting to deficient Secular Muslim practices
§History:
§ 570 C.E. à Muhammad born / 610 C.E. à became Prophet
§ First Caliphs: ‘Rightly Guided Caliphs’ / Successors to the Prophet as Political/Secular Leaders of Muslim Community
§Term: denotes the great-reverence towards these men
§ After RCG: discretionary political, legal, and religious power becomes diffusive / off-kilter following the death of the final one!
§a) Abu Bakr
§b) Umar
§c) Uthman
§d) Ali
Interplay between Islamic Law’s Custodians & Secular State
JURISTS—JUDGES—STATE—COMMUNITY
(Prong A)
*JURIST CLASS
§Capacity to Identify Law
§Possess ‘Authority’
§Proffer Fatwas à Deemed to Embody the ‘Will of G-d’
§FATWAS: Non-binding legal decrees/advisory opinions through which Jurists 1) communicate with their communities and 2) help guide case-disposition by actual presiding JUDGES
(Prong B)
*JUDGE
§Adjudicates actual case between community members
§Part of the JURIST CLASS and an OFFICER OF STATE
§ “inherently compromised entity”; all viewed w/ suspicion; Judge/Palace Hypo
(Prong C)
*STATE
§Possess Power to Enforce/Implement Law [IL Dominant Purveyors]
§Secular Entity
§Perpetually Attempting to Co-opt JUDGES / Exert Influence Over JURIST CLASS
(Prong D)
*COMMUNITY
§Muslims living in a hybrid where RELIGION and SECULARISM fuse
Key Central Premises
§Pre-Modern Islam/Islamic Jurists: Highly comfortable with the State’s incapacity to define Islam
§Promoted separation between Mosque & State!
§Jurists maintained AUTHORITY despite FORMAL DETACHMENT from STATE by à a) wielding collective sway over communal behavior and b) restraining State from deviating too far from IL’s general animating principles
§[EXAM] This inter-connected puzzle—resembles in many ways the S-of-Power in the United States (LEG / EXEC / JUD ) where the Constitution is like Allah
§IL on 2 Plains—the ‘Here’ & ‘Hereafter’:
§A) All-Encompassing—IL as encompassing features that touch every single aspect of a Muslim’s life à as impacting Believer’s status in the After-Life
§incorporating of laws whose breach is not sanctionable on Earth
§B) Limited—those well-defined IL provisions whose transgression is sanctionable by the law-enforcing Secular State here on Earth
§(Key) The sanctionable will never be precisely coterminous with the entire body of IL (i.e. there will always be provisions of IL that NO STATE will enforce) à COLLAPSE / EXPANSION in accordance with the Community’s/State’s desires…
§Discretionary Application of Islamic Law: Beginnings and Endings
§Question: Where does discretionary application become compromised law?
§ 2 Dominant Views:
§a) Follow the ‘Letter of the Law’—irrespective of instrumental ends
§b) Satisfy Law’s Instrumental Ends/Implications
§(Key-Tension) Source Fixity vs. Fluidity of Social Reality
§Theoretical Frames:
§What is the Law’s purpose?
§Who has authority? Relative statuses?
§Who is Law designed to serve?
§Recurring Line: Law & Morality
Level #1: à QURAN
Level #2: à SUNNAH
(Explanation of Quran / Prophet’s Actions)
Level #3: à Interpretation of the QURAN & SUNNAH
(Post-Prophecy)
Level #4: à Legal Interpretation Becomes Standardized
(More “Corporate” Uniformity; Expanded Legitimacy amongst Broader Sets of Muslim Community; Assumes Geographic Character as Madhabs Centers rise in several parts of Arab World)
§ Master Specific ‘Schools of Islamic Law’
(Emerge as Highly Legitimate IL Authorities)
§ HANAFI
§ MALIKI
§ SHAFI’I
§ HANBALI
§ ZAHRI (smallest / marginal influence)
§ Thesis: Each Madhab is equally authoritative and equally Orthodox (despite the fact that they approach IL from a variety of distinct philosophical and interpretive perspectives)
§ Points of Agreement Among All Schools re: INTERP METHODS:
§ Quran & Sunnah are IL’s Primary Sources
§ ‘Rule by Analogy’ is a Valid Method of Legal Analyis
§ e.g. crack-cocaine as modern wine
§ ‘Unanimous Consensus’ as Determinative of Law
§ Key: Disagreements exist as to the relative
strengths and virtues of these sources for interpretation—not whether they are in fact legitimate sources for it
January 21, 2009
Quran and Sunna (Hadith)
§Main Premise: Quran & Sunna are recognized as IL’s 2 primary textual sources
§total unanimity regarding their authenticity
§Quran (“Recitation”)—originally an “oral” text
§Revelations transmitted to the Prophet between 610 and 632 C.E.
§Prophet “rehearsed” the Quran piece-meal to his followers
§Mus’haf= any “written” record of the Quran (i.e. actual book)
§Original Dissemination: oral on account of pervasive illiteracy
§Constituent Parts:
§ a) 114 Suras (“Chapters”)
§unequal length; not arranged in chronological order of revelation; significance unrelated to #/space allotted
§Sura Arrangement: Supervised by Prophet’s ‘Companions’ (i.e. contemporary supporters)
§ Controversy: Extent to which ‘Companions’ personal opinions may have distorted order/selection
§2 Main Periods of Revelation
§ Meccan: 610-622 C.E.
§80 chapters
§Content: 1) basic historiography 2) description of “customary” Meccan life 3) Modified by religious message
§ Medinan: revealed after Prophet’s Hijra
§22 chapters (Quran begins with 5 of these Medinan Suras which confirms its non-chronological codification)
§despite being fewer in number, Medinan chapters are deemed more substantial
§Content: Contain bulk of Quran’s indigenous legal data (formal rules governing marriage, life, etc.)
§ i.e. where Prophet’s own community emerged and came int
as Serving a Quran Clarifying Function
§Source of Prophetic Conduct’s Divinity?
§ Ismah (“divine protection from error”) [EXAM]
§divine conferral of veracity that Prophet’s final understanding of the revelation—as imparted in his words/actions prior to death—was the guidance G-d intended be held to control!
§‘Notion of Prophetic Infallibility’
§ Distinct Authoritative Quality
§ NO ‘Companion’ / ‘Successor’ / or Ulema’s Actions are viewed as embodying this much Divinity
§Main Points:
§ Sunnah—means by which Prophet explains & supplements Quran
§2 Functions Sunnah Plays:
§a) Explains the Quran
§b) Independent Source of Shariah in Own Right
§Chunks of Sharia—otherwise absent from the Quran—directly originate in the Sunnah.
§(Key) Quran & Accurate Rendition of Prophet’s Words/Actions are…EQUALLY AUTHORITATIVE sources of Islamic Law
§ Hypo: Man divorces wife 3 times—Quran instructs that before he can remarry her she must “MARRY” another man.
§Issue: Does the definition of “marriage” imparted in this word encapsulate consummation to?
§SUNNAH à Demonstrates that it Need Not!
Main Issue with Respect to Quran & Sunnah:
Not their theoretically equal AUTHORITY—but their practical AUTHENTICITY
§No one doubts the universal legitimacy of the former; some continue, however, to question the legitimacy of some of the sources constituting the latter
§Quran = Question of Interpretation
§Hadith = Question of Interpretation + Authenticity
§Hadith = (Collections, Individual Reports of the Prophet’s Sunnah—i.e. his personal practice) [as a distinct and narrower category than Sunnah]
§2 Quantitatively-Derived Qualitative Divisions of Hadith
§Mutawatir = Legitimacy through Popular-Observational Diffusion at Moment of Occurrence [top-quality]
§Ahadi = lower, per se credibility; solitary; one person’s purported observance and transmission of the Prophet’s actions/words
§(Key): Most Hadith are Ahadi in manifestation—not a terminal feature—but is a “red flag” that invites closer scrutiny
§2 Elements of Hadith
§Matn = (“Text”) à Hadith’s substantive content: the Sharia’h material actually imparted through the Hadith
§Isnad = (“Chain of Transmission”) à Articulation of Hadith’s temporal mode of transmission à Evaluated reputationally
§Objective Science of/Criteria for Hadith Criticism
§ Each element—especially the isnad—is evaluated for…
§Chronological Soundness
§Substantive Representation of ‘Quranic’ Spirit
§Reputation Credibility of a) Narrator b) Prior Transmitters
§As captured by several factors…
§i.e. honesty, accuracy, credibility, dogmatism
§ Categories of Hadith Reliability (i.e. factors influencing Sharia’h acceptance)
§Three Gradations
§Sahih = (“Sound”) à Direct/ or / Context Proof Exists!
§Hasan = (“Sound…but”)à No reason to doubt but Absence of Direct / or / Context Proof
§Daif = (“Weak”)à Positive grounds to doubt veracity
§Central Problem w/ Hadith:
§ Susceptibility to fabrication for self-serving / aggrandizement
§e.g. political, cultural, territorial fights à fabrication
§ COMPETING VIEWS RE: MEANS for AUTHENTICATION
§1) Hadith Must Be Traceable to ‘Companion’
*as the people most reliable / best positioned to attest to Prophet’s Actions & Words, isnad must begin with them
[MAJORITY OPINION]
§ 2) Hadith Need Not Begin w/ ‘Companion;
Sufficient if Originating with Sound ‘Successor’
*How so? à Given foreknowledge that non-Companion Hadith will be scrutinized especially intensely à counter-intuitively confers legitimacy
[MINORITY OPINION]
§3) Presumptively Weak Ahadi Hadith (e.g. single-statement running through MANY ‘Ahadi-Lines’) Assumes Cumulative Corroborative Value despite none of the Hadith’s being singularly credible
§(e.g. akin to quantitative authentication via mutawatir except ‘many-ones’ as opposed to ‘one-many’)
