Shari'ah Law (Islamic Law)
Shari'ah literally means 'a way to a watering place.' It is not only the path leading to God, but is also the path shown by God. All ruilings fundamentally aim to achieve God's pleasure and draw near to Him. Ethically it differs to more Western norms in that an act's moral value does not reside within the act, but rather is relative to the Divine Will. In other words nothing is inherently right or wrong in of itself, making Islamic Law hugely utilitarian.
Islamic Law is broken up into two fundamental areas: acts that are between a person and God (I'badat), and acts that are between people (Muamalat). I'badat include acts of worship like prayer and fasting etc. The evidence from the primary sources is both vast and detailed and it is understood that their reasoning is beyond the human intellect. The Muamalat include social interactions such as business contracts and criminal law etc. Generally the evidence from the primary sources is less detailed and more open to interpretation. The reasoning behind the muamalat can be understood by the intellect and also their application may change if the context changes.
Usul al fiqh (Principles of Islamic Jurisprudence)
{You who believe, obey God and the Messenger, and those in authority among you. If you are in dispute over any matter, refer it to God and the Messenger, if you truly believe in God and the Last Day: that is better and fairer in the end} [4:59]
A brief explanation of the method of deriving rulings follows. The textual proof and arguments for their validity for each source of legislation are beyond the scope of this post.
Al Qur'an
The Qur'an is viewed as containing the totality of the Shari'ah, usually expressed in very general ways. It is viewed as imutable; that the legislation it contains will not change over time.
The Qur'an was revealed over a twenty three year period and legislation was given gradually (tanjim). The verses divide into two distinctive phases; the early Mekkan period and the later Madinan period of the first Islamic State.
Deriving legislation from the Qur'an is complex, verses may be; clear and definitive (Qati') or open to interpretation (Zanni); general ('Amm) in applying to all people and circumstances or specific (Khass) in applying to a specific people or circumstance; abrogating (Nasikh) or abrogated (Mansukh) meaning primarily that one verse explains another, but in a few circumstances it supersedes another. Legislation may be understood linguistically as suggesting obligation, prohibition, recommendation etc. or it may need further clarification from another verse, or the Sunnah or from the occasion of revelation (Azbab ul Nuzul).
Al Sunnah
Sunnah literally means path and has a positive connotaion, technically it refers to the words, deeds and preferences of the Prophet Muhammad (peace be upon him). The sayings (hadith) of the Prophet (peace be upon him) are an important part of the Sunnah although are not synonomous with it, for example much of the Sunnah's context can be understood from the Prophetic Biography (Sirah).
The Sunnah, unlike the Quran, is not all mass transmitted (mutawatir), most are single (ahad) transmissions and so the evidence is more probabalistic; narrations are sub-divided into categories of strength of evidence, such as sound (sahih), good (hasan) and weak (da'if). Identifying the strength of a narration is a very complex and labourious process which looks at the reliability of the chains of transmission (isnad) and the text (matn) itself as well as the number of, and differences between, the narrations of the same hadith.
The Prophet (peace be upon him) may be acting in one of three roles and so the application of a narration varies. He may be in the role as the Messenger of God and so any statements or actions are general and applicable to all people, or they may be as head of state and are therefore specific as he is talking to rulers or is referring to elements of governance, or they may be as a judge where he may have ruled on a specific case or be dictating general law for Judges to enact.
Rulings of the Companions
Of the companions around the Prophet (peace be upon him) some stand out as having exceptional understanding (fiqh) of the Law; only some eight are known to regularly have given their legal verdict. As such if an opinion from a companion known for their fiqh is recorded in a sound transmission then it is considered like that of the Sunnah as it is considered transmission of the Law rather than independent reasoning (ijtihad).
Ijma' - Scholarly Consensus
Should the people capable of independent legal reasoning (mujtahid) of the Muslim community all unanimously agree on a matter it is binding on the community. A number of verses and hadith are brought forth to justify ijma' as a source of law, perhaps most striking is the hadith: "My community shall not all agree upon error" [Tirmidhi, ibn Majah, Abu Dawud].
Qiyas - Analogical Reasoning
Literally qiyas means measuring and comparing something, technically it is the extension of a known case (asl) to a new case (far'). It entails identifying the effective cause (i'llah) of one ruling and applying it to another based on the fact they share the same effective cause.
Istihsan - Juristic Discretion
Istihsan literally means 'to approve something or deem something preferable,' technically it means setting aside an analogy in favour of an alternative that fits the principles of Islamic Law of justice and equity in a better way.
The great Hanafi jurist Al Sarakhsi consideres it a mode of avoiding hardship or 'raf' al haraj' as outilined by the verse: {God wants ease for you, not hardship} [2:185] and the hadith: "The best of your religion is that which brings ease to the people" [Ahmad].
It includes an appreciation of:
- al Maqasid: The Objectives of Islamic Law. The great Maliki jurist Al Shatabi famously identifies the five essential objectives - among others - as preservation of religion, life, intellect, lineage and property.
- Maslaha Mursalah: Public interest. Maslaha means benefit and consists of considerations which secure a benefit or prevent a harm, whilst simultaneously being harmonious with the objectives (maqasid) of Islamic Law.
- Sadd al Dhara'i: Blocking the means. Typically this means prohibiting a lawful act when it is expected to lead to an unlawful result.
'Urf - Custom.
'Urf comes from the Arabic root 'arafa (to know) and literally means that which is known. Technically it is the recurring practices that are acceptable to people of sound nature. Customs that do not contravene the principles of Islamic Law are considered authoritative and upheld in law courts.
Categorisation of Actions
Every act in Islamic Law fits into one of five broad categories: Obligatory (Wajib), Recommended (Mustahab), Permissible (Mubah), Disliked (Makruh) and Forbidden (Haram). As an additional point it is worth noting that the general position is one of permissibility and proof must be brought to justify ruling other than that: {He has subjected all that is in the heavens and the earth for your benefit, as a gift from Him} [45:13].
Further Reading
Principles of Islamic Jursiprudence by M. H. Kamali published by the Islamic Text Society, ISBN: 0-946621-82-9
The Four Imams by M. Abu Zahra (trans. A. Bewley) published by Dar al Taqwa, ISBN: 1-870582-41-1
No comments:
Post a Comment