Transcript Major legal systems

Major legal systems
Islamic law
Islamic law is divine revelation
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The Islamic legal system is the most widely used
religious law, and one of the three most common
legal systems in the world
All the injunctions of Islamic Law are revelation from
Allah
It comes to regulate three different factors:
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the relationship between the individual and his Lord,
the relationship between the individual and himself,
the relationship between the individual and others.
Origins of Islamic law
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Sharia Law is founded on the teachings of Allah and
the acts and sayings of Muhammad as found in the
Qur'an and the Sunnah.
Sharia was not fully developed at the time of
Muhammad's death, but rather it evolved around the
Muslim community
Before the 19th century, legal theory was considered
the domain of the traditional legal schools of thought.
Muhammad (570 – 632)
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At age 40 he received his first revelation from God
Three years after this event Muhammad started
preaching these revelations publicly
Muhammad gained few followers early on, and was
met with hostility from some Meccan tribes
He and his followers in Mecca migrated to Medina
(then known as Yathrib) in the year 622
This event, the Hijra, marks the beginning of the
Islamic calendar
Islamic law
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Sharia – religious law of Islam
Fiqh (Islamic jurisprudence) – is an Arabic term
meaning "deep understanding" or "full
comprehension". It refers to the body of Islamic law
extracted from detailed Islamic sources and the
process of gaining knowledge of Islam through
jurisprudence
Islamic Law holds the distinction of being
comprehensive and general in its scope
Division between Shia and Sunni
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The division between Shia and Sunni dates back to the death
of the Prophet Muhammad, and the question of who was to
take over the leadership of the Muslim nation.
Sunni Muslims agree with the position that the new leader
should be elected from among those capable of the job.
Shia Muslims have not recognized the authority of elected
Muslim leaders, choosing instead to follow a line of Imams
which they believe have been appointed by the Prophet
Muhammad or God Himself
Sunni Muslims make up the majority (90%) of Muslims all over
the world. Significant populations of Shia Muslims can be found
in Iran and Iraq
Legal schools (madhhab)
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It is claimed that the schools of thought were developed in
the 9th and 10th centuries as a means of excluding
dogmatic theologians, government officials and sects from
religious discourse.
Sunni Islam was initially split into four schools: the Hanafi,
Maliki, Shafii and Hanbali.
Shia Islam was split into three schools: Ismaili, Jafari and
Zaidi.
Taqlid – accepting and following the verdict of scholars of
jurisprudence without demanding an explanation of the
processes by which they arrive at it, hence adherence to one
of the classical schools of jurisprudence
Personal validity of Islamic law
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Legal systems are generally described as being
either of personal or territorial validity – being either
applicable to the person, independently of the locus,
or to the territory, with no consideration of the
person’s background.
Modern legal systems follow the territorial principle
Islamic law must be followed by Muslims
Sometimes territorial aspect may also play its role
(criminal law)
Sources of Islamic law
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The primary sources of Islamic law are the Qur'an
and Sunnah. Sharia has certain laws which are
regarded as divinely ordained, concrete and timeless
for all relevant situations.
It also has certain laws which derived from principles
established over time by Islamic lawyers
Traditional Sunni Muslims also add the consensus
(ijma) of Islamic jurists on certain issues, and
drawing analogy from the essence of divine
principles and preceding rulings (qiyas).
Qur’an
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The Qur'an is the first and most important source of Islamic law
– believed to be the direct word of God as revealed to
Muhammad
The verses revealed in Mecca deal with philosophical and
theological issues, whereas those revealed in Medina are
concerned with socio-economic laws.
The verses of the Qur'an are categorized into three fields:
"science of speculative theology", "ethical principles" and "rules
of human conduct".
The third category is directly concerned with Islamic legal
matters which contains about five hundred verses
Sunnah
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The Sunnah is the next important source, and is commonly
defined as "the traditions and customs of Muhammad" or "the
words, actions and silent assertions of him".
It includes the everyday sayings and utterances of Muhammad,
his acts, his tacit consent, and acknowledgments of statements
and activities.
Justification for using the Sunnah as a source of law can be
found in the Qur'an. The Qur'an commands Muslims to follow
Muhammad.
Much of the sunnah is recorded in the Hadith.
Consensus
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The ijma , or consensus amongst Muslim jurists on a particular
legal issue, constitutes the third source of Islamic law. Muslim
jurists provide many verses of the Qur'an that legitimize ijma as
a source of legislation. Muhammad himself said:
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"My followers will never agree upon an error or what is wrong",
"God's hand is with the entire community".
In history, it has been the most important factor in defining the
meaning of the other sources and thus in formulating the
doctrine and practice of the Muslim community.
This is so because ijma represents the unanimous agreement
of Muslims on a regulation or law at any given time.
Analogical reason
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Qiyas or analogical reason is the fourth source of the sharia for
the majority of Sunni jurisprudence. It aims to draw analogies to
a previously accepted decision. Shiites do not accept analogy,
but replace it with reason
The general principle behind the process of qiyas is based on
the understanding that every legal injunction guarantees a
beneficial and welfare satisfying objective.
Thus, if the cause of an injunction can be deduced from the
primary sources, then analogical deduction can be applied to
cases with similar causes.
Ijtihad
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Islamic legal term that means “independent reasoning”
it requires a “thorough knowledge of theology, revealed texts
and legal theory; an exceptional capacity for legal reasoning;
thorough knowledge of Arabic.”
By using both the Qu'ran and Hadith as resources, the
scholar (mujahidin) is required to carefully rely on
analogical reasoning to find a solution to a legal problem
Today, there are many different opinions surrounding the
role of ijtihad in modern society, and whether or not the
“doors of ijtihad are closed.”
Public interest
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Al-maslahah al-mursalah – means that which is in
the best interests of the general public.
According to this source of Islamic law, rulings can
be pronounced in accordance with the "underlying
meaning of the revealed text in the light of public
interest".
In this case, the jurist uses his wisdom to pursue
public interest. This source is rejected by the
Shafi'ites, Hanbalites and Zahirites from Sunni
jurisprudence.
Local custom
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The term urf, meaning "to know", refers to the customs and
practices of a given society.
Although this was not formally included in Islamic law, the
sharia recognizes customs that prevailed at the time of
Muhammad but were not abrogated by the Qur'an or the
tradition.
Practices later innovated are also justified, since Islamic
tradition says what the people, in general, consider good is also
considered as such by God.
According to some sources, urf holds as much authority as ijma
(consensus), and more than qiyas (analogical deduction).
Fatwa
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The technical term for the legal judgment or learned
interpretation that a qualified jurist or mufti can give
on issues pertaining to the Islamic law
Fatwas generally contain the details of the scholar's
reasoning, typically in response to a particular case,
and are considered binding precedent by those
Muslims who have bound themselves to that scholar
Sunni Muslims claim that fatwa is not binding