Transcript principles and practices of islamic law - johnson-budd

PRINCIPLES AND PRACTICES OF
ISLAMIC LAW
WHAT IS ISLAMIC LAW
• Shari’ah or Islamic law: “is the centerpiece and
backbone of the religion of Islam.” is based on
the Qur’an, the Sunnah (examples of
Muhammad, who Muslims believe was
divinely guided) and the Hadith( reports of
things Muhammad is said to have done or
said).
• Islamic law prescribes Muslim behavior in every
aspect of life: marriage, business, international
relations, etc.
• The Shari’ah contains categories and subjects of
Islamic law called the branches of fiqh. They
include: Islamic worship, family relations,
inheritance, commerce, property law, civil (tort)
law, criminal law, taxation, war and ethics,
international relations, constitution, and
administration
What are a Muslim jurist’s
qualifications and authority?
• Have different titles:
– Qadi: a judge that serves in a court
– Mufti: gives legal responses (fatwa) to people’s
questions
– Fuqaha: Muslim scholars who dealt in theoretical
Islamic law (fiqh)
The basis for respecting a judgment in Islamic is the
jurist’s ability to carefully apply knowledge to
theory and practice.
• To be qualified to interpret the sources of law, a
jurist had to possess many branches of
knowledge:
–
–
–
–
The Qur’an
The Hadith
Arabic language and its grammer
Logic, history, general knowledge as well as
specialized areas for specific cases (commerce or
international relations)
– History of the law and schools of law
– Legal precedants
Jurists were scholars but authority very limited. No
clergy or priesthood in Islam and no central
authority to hand out final judgments.
The source of a Muslim jurist’s authority comes
only from their recognized knowledge-not from
the government, not a central religious authority,
from divine right.
Any Muslim consulting a jurist must follow their
own conscience on deciding the course of action
to take. (ijtihad: individual reasoning)
• The jurist must follow his conscience as well
since so many people respect and follow his
advice.
HOW DOES A JURIST REACH A
DECISION?
• An Islamic decision is called a hukm, or ruling,
such a judge would make. A jurist’s response
to a question from an individual or group is
called a fatwa. In order to reach a decision,
the jurist starts with asking:
• 1. is it forbidden? (murder)
• 2. Discouraged? (wasting resources)
• 3. Permitted? (using a phone)
• 4. encouraged? (giving charity)
• 5. Obligatory ?(praying 5 times a day)
• So how does the issue fit into this chain.
SOURCES OF LAW: USUL AL-FIQH
•
•
•
•
1. Qur’an
2. Sunnah
3. Hadith(report)
Or 3. Ijma (unanimous consensus among
jurists)
• 4. Qiyas (decision by analogy)
• Ijma is contested today
• Analogy (Qiyas) means using logic and
reasoning to apply a known law to a new
situation not covered in the original law. i.e.
can’t drink wine; can you drink beer? No wine
intoxicates so does beer, so can’t drink
intoxicates.
• Istihsan: deciding in favor of the “public
interest” in a matter that is not otherwise
prohibited. i.e. the owner of private property
wants to do something to the property that
will harm the environment than he can be
stopped.
Urf ( custom)
• What is familiar to a people in a certain place,
based on established tradition. i.e. tradition of
sharing irrigation water. Arab jurists tried
respect these systems in their judgments
rather than imposing something from
somewhere else. Important with the diversity
of Islam. If something did not violate Islamic
principles or standards was ok.
PRINCIPLES AND METHODS
• Two important principles guided jurists’ use of
evidence in making ijtihad. (individual
reasoning).
– 1. istihab (continuity) means a situation or thing
known to exist continues to exist until its opposite
is proven. (Person is innocent until proven guilty)
• 2. ibahah : anything is permitted if it is not
expressly prohibited.
• 3. bayina: the plaintiff or accuser bears the
burden of proof.
• All are common in modern systems of law.
Legal schools
• Formed around 1100 c.e. As Islam spread into
new areas and faced new cultures, languages,
new problems, and new questions not around
before.
• The Qur’an contains all the principles of
Islamic law, but few legal injunctions or
commands. Muhammad’s life and sayings
helped give precedents to go by, but needed
more as time went on.
JIHAD
• To make an effort to overcome difficulty to
struggle.
• 1. internal dimension: struggle against
destructive and self-destructive inclinations,
sins or excess. Jihad al Nafs: the struggle to
become a better person, to acquire virtuous
character and obedience to God.
• 2. social dimension: struggling for social
justice, “to be part of the solution” in one’s life
work. Can be achieved by writing, speaking
and doing community service, putting aside
ambition to do what is right.
• 3. institutional dimension: to fight oppression
and persecution, to defend against aggression,
but within strict limits of conduct that
preserve the lives of innocents and the
environment.
• Two ways to look at Jihad:
• 1. jihad as a principle: a broad , abstract concept,
a general idea and value that is not limited to a
single application: applying the principle to a
given situation requires discretion and
understanding of its multiple implications. A
sacrificial struggle” at its basis is the commitment
to sacrifice of self and personal interests in order
to seek God-given aims.
• It includes the struggle to protect the weak in
a society, to guard and strive against
oppression and injustice. i.e. speaking out
against tyranny, placing one’s goods and
physical strength in the service of the poor,
writing and scholarship, or to simply
overcome one’s appetites and weaknesses,
personal obstacles. Is has NOTHING TO DO
WITH ARMED STRUGGLE. It is not a means of
achieving social justice.
• 2. jihad as an institution: an institution is a
concrete, established presence that emerges
out of essential human interests, needs, and
concerns; an institution relies less on
discretion, BUT it is essential that the
institution be established so that it has the
integrity to carry out its function.
JIHAD AS SOCIAL JUSTICE MEANS:
• 1. If a person is in a position of authority and
power, it means “to do the right thing” to be
part of the solution rather than part of the
problem. It means to overcome the baser
instincts to put aside ambition in favor of the
greater good, to right wrongs.
2.For an individual, jihad means stating the truth
in front of a tyrannical ruler, or indeed any
ruler, to care for the weak, oppressed and
disenfranchised.
3. For the ulama or religious scholars, the
principle of jihad means NOT using religious or
official authority to promote one’s career and
self-interest. Rather calling people to promote
the greater good (maslahah = public interest).
LIMITS ON THE CONDUCT OF JIHAD
• 1. Jihad can only be declared by a legitimate,
recognized religious authority with the means.
To carry out such action responsibly under its
authority.
• 2. jihad may not be defined as a call for any
group of Muslims to wage war against
indefinite others, such as a general call for”
jihad against all unbelievers.”
• 3. Using the concept of jihad to justify
indiscriminate violence is contrary to Islamic
law. Violence that springs from such a
misguided interpretation is not Jihad. It fall
under other Islamic principles and categories
of law, such as hirabah, or terrorism.
JIHAD SHOULD NOT BE TAKEN:
• 1. to force people to convert
• 2. to annihilate non-Muslims.
LAW OF HIRABAH
• Hirabah: a concept of Islamic law that protects
public safety. According to the law of hirabah,
publicly directed violence is a capital crime. It
is unlawful and punishable to target the public
in ways that make it impossible for people to
take safe-keeping measures against injury to
their persons and property.
FASAD
• A term used in the Qur’anic verse that is the
source of the law of hirabah. Fasad means
causing mischief, mayhem, and destruction in
the land, including acts of terror. Fasad as a
concept may also include other forms of
disruption of peaceful civic life, but only
hiraba is a capital offense.
• Terrorism is a capital crime, because it denies
public safety, creates fear, and destroys lives and
property.
• What if the ruler is a tyrant?
• Rebellion needs to be put down, but the state
cannot execute the rebels except for crimes like
rape and theft committed in the course of the
rebellion. If the rebels won, then the new
government would be seen as legal and
legitimate, unless it was illegitimate for other
reasons. So is sort of ok to rebel against tyranny.
HIRABAH
• 1. individuals or groups carrying out violence
directed against the public, against civilians.
• 2. an action that has the effect of spreading
fear by preventing people from taking any
safekeeping measures against physical or
property damage.
• 3. such violence may be overt or stealthy, and
may include serial murders, burnings,
bombings or property damage
• 4. by arousing general fear and lack of safety,
public life is endangered and civic life becomes
completely disrupted and unpredictable.
• The jurists prohibited hirabah because Islam
places an absolute value on public safety and
protection as human rights. These rights belong
to the sphere of God. A right of God in Islamic law
is one based on universal rights, whose penalty is
not subject to the discretion of the judges.
Baghy
• Violence by a segment of the public against
the government.
• Hirabah: violence by a segment of the
population against another segment of the
public, specific or general. In the past hirabah
was associated with highway robbery,
extortion through violence, roving bands of
robbers, and pirates. Today applies to
terrorism too.