ISLAMIC CONTRACT COMMERCIAL AND FINANCIAL LAW PLENARY BASICS OF ISLAMIC LAW 1 The Sources of Islamic Law Sherman Jackson University of Michigan Ann Arbor The Formative Period I Obvious starting point for contemplating a properly constituted Islamic life is the Qur n and the explanatory and supplementary addenda of the Prophet Muhammad the so called Sunna A Qur n and Sunna considered equal in terms of authority B But the identity of the Sunna differs from that of the Qur n in that the attribution of individual reports about the Prophet s words and actions reports known as hadith remain open to debate 1 each individual in the chain of transmission subject to critique 2 in the early period the Sunna of the Prophet was not always distinguishable from local practice of the various centers especially that of the Prophet s city of Medina C The spread of Islam outside Arabia further complicated this matter by augmenting the number of local practices that could be conflated with Prophetic Sunna and credited with the authority of religious law D This gives rise to the first revolution in Islamic law II Prior to late 2nd 8th century legal deliberations had been proceeded on the basis of the primary sources mediated through local custom sometimes accurately and sometimes inaccurately equated with Prophetic Sunna and an Arab nativist practical reasoning This would all change with the famous jurist Muhammad b Idris al Sh fi who laid the foundations for a formal legal theory and emphatically separated Prophetic Sunna from local practice A Al Sh fi s contribution was two fold 1 He imposed formal strictures on the enterprise of legal argument identifying both the sources of law and the acceptable methods of interpreting them a His efforts in this regard eternalized the following as the four universally agreed upon sources of Islamic law i Qur n ii Sunna iii Unanimous Consensus iv Analogy Qiy s Ijm 2 He vehemently argued that only the Sunna or established practice of the Prophet Muhammad was probative as a source of law a His efforts in this regard are reflected in the chronological development of the canonical collections of hadith i al Sh fi dies in 204 819 ii All of the authors of the so called Six Sound die between the middle and the end of the 3rd 9th century B Al Sh fi s efforts also resulted indirectly and unintentionally in the rise of legal formalism as the established method of interpretation 1 Meaning limited to the observable features of the Arabic language 2 Legal formalism leveled the playing field between Arab nativists and the Arabicized non Arab Muslims from the conquered territories as the history social customs and non linguistic indicators of meaning to which the Arabians had direct access are marginalized a Full blown Islamic legal theory basically a compromise between al Sh fi and the legal formalists III Disputed sources and methods A Excesses of formalism recognized This confers recognition upon certain controls and countervailing methods carried over from the pre theory period 1 Istihs n Equity 2 Maslahah Public Utility 3 Urf Custom The Post Formative Period I Ijtih d or independent interpretation both on the basis of the sources and practical reasoning of the pretheory years and on the basis of methodologies enshrined by the full blown formal theory produces authoritative figures and transform interpretive communities or madhhabs into sources of legal authority A Formal theory confers prima facie authority upon all views that could be vindicated on the basis of the recognized methodology This inaugurates the post formative period of Islamic law and the regime of taql d or following precedent 1 Four equally orthodox equally authoritative schools Hanaf M lik Sh fi and Hanbal schools B With the settling down of the madhhabs legal interpretation evolves to the point that it now begins with the doctrines precepts and precedents of the established schools rather than the primary sources 1 Basis of authority shifts from the individual jurist to the school of law as a whole Whereas the jurist in the formative period gave a fatw or legal opinion in his own name he now issued fatw s primarily in the name of the school to which he belonged Where his own views diverged from those of his school he had now either to bring the school over to his way of thinking or disguise his view as that of the school 2 Legal precepts Qaw id what American Constitutional law refers to as tests replace the primary sources i e Qur n Sunna as the starting point of legal deliberation a II E g oscillation between loan and price Ijtih d i e reverting to the primary sources now the exception and must be justified A Taql d a cognate of stare decisis now the norm and diverging from it must be justified B This tension between ijtih d and taql d the individual jurist and the collective madhhab and the primary sources and legal precepts define Islamic law from the high classical period right down to modern times 2 The Characteristics of Islamic Law John Makdisi St Thomas University School of Law Miami I The Function of Islamic Law A Individual Self Definition B Justice Not Morality II 1 Subject Matter Jurisdiction 2 Qualifications of Legal Acts C Law Above the State D Individualism E Freedom of Contract F Impartial Judge G Res Judicata H Judge as Blank Slate I Passive Judge J Privilege Against Self Incrimination K Fairness over Truth L Individual Autonomy The Structure of Islamic Law A Untrained and Transitory Decisionmakers B Overlap of Testimonial and Adjudicative Tasks C Judge as Moderator Supervisor Announcer and Enforcer not Adjudicator D No Appeal E Dissent F Day in Court G Prosecution for Perjury H Oral Testimony 3 The Islamic Legal System Frank E Vogel Harvard Law School How did the law described so far get translated into a functioning legal system I First does the Qur an lay down law A Some Qur anic texts B Accounts about Prophet Muhammad as ruler and judge C Accounts about his early companions legal activities II At least as understood by the classical Sunni tradition the Qur an and Sunna adumbrate two distinct ideal types of implementation or enforcement A First type ijtihad effort to learn from revealed texts God s command as to a particular action 1 Ijtihad of individual seeking to know God s law in order to follow it in conditions of uncertainty a Few are capable of this effort emphasis on knowledge of the revelation and on piety naturally leads to reliance taqlid on others who possess greater
View Full Document
Unlocking...