Robinson And Hallaq-1.docx

Robinson and hallaq class notes  Write about Islamic jurisprudence  Sources of law – in order – Quran, Sunnah, Ijma, Qiyas, Ijtihad QURAN  Muamalaat – dealings or interaction with beings  Some laws in the Quran were revealed over time in the form of abrogation – every new revelation revealed a law that abrogated the last one e.g. the abolition of wine drinking  Doctrine of ‘Tanjim’ – gradual revelation of law– wine drinking  Mutawatir version of the Quran was given precedence over the variant versions of the Quran when Islamic law was being established by scholars  Hanafi believe that meanings from the variant versions of the Quran can be used as well for law-making. Other schools do not agree with this.  A later verse can in some matters abrogate an earlier verse. One should always follow the latest verse – Doctrine of Abrogation – related to Doctrine of Tanjim  Some laws are general (Aam) while others are (Khaas)  Scholars ask if the verse of The Quran being used is to be taken literally or metaphorically  Sunnah can or cannot abrogate the Quran – punishment for adultery IJMA    

Unanimous agreement Imam Shafi’i – Mujtahidun and laymen Imam Malik – companions of the Prophet Imam Abu Hanifa – Mujtahidun only

QIYAS  A comparison is drawn between an original case to a new case, where a clear cut ruling is not mentioned for the latter

 Some scholars encourage the use of Qiyas while others do not claiming that it stretches the line of argument too far ISTIHSAN  Approving or deeming something preferable  Laws set in the Quran could be altered or changed to an extent to suit the times and the situation of the society  Example – limiting of the theft punishment by Hz. Umar because of the famine in his time ISTISLAH    

Taking into account the public interest New laws could be introduced which had no basis in the Quran or Sunnah Should not violate the larger objectives of Sharia Example – unified text of the Holy Quran

ROBINSON  An introduction to Islam and Islamic law  No systematic law code in the Holy Quran  Quran does not give complete detail to detail guidance to Muslims on how to fulfill their obligations – methods of praying and punishment  The Quran’s silence wasn’t a problem when the Prophet was alive but after his demise it did give birth to multiple problems  Even the first 4 caliphs faced much criticisms and problems in their interpretations of the Quran  In the Umayyad period – provincial governors appointed qadis to overlook day-to-day judicial affairs – in charge of daily administration of justice

 Qadis – pious Muslims – stuck with the Quran and Hadith as far as they could – did resort to their personal opinions in places where the Quran and Sunnah were silent or not clear enough - many of their decisions became part of Islamic law  This led to the emergence of different law schools in the Abbasid period Hanafi School of thought         

Founded by Imam Abu Hanifa Most liberal and flexible Believed in analogical reasoning over weak traditions Practical – when women can take off their hijab Believed in the power of the Ijma to establish Islamic law – hadith = my people will never agree on an error Ijma – consensus by qualified jurists of a certain time Official school of the Ottoman and Abbasid empires Preferred istihsan – legal discretion Was born in Kufa

Maliki School of thought      

Founded by Imam Malik Born in Medina First is the Prophet’s word, then the companions’, then the Medinan values Ijma – consensus of the people of Medina Favored istislah – taking into account public interest New laws can be introduced without them having a link to the Quran or Sunnah as long as they aim to do no harm and offer no contradiction to any laws set down by the Quran or Sunnah

Shafi’i School of thought  Founded by Imam Shafi’i  Redefined existing terms so as to lay down a strict hierarchy of authorities  First was the Quran, second was the Sunnah, third was the Ijma , and final was the analogical reasoning or Qiyas  Ijma – agreement by the entire Muslim community – jurists and laymen

 Did not approve of istislah and istihsan

Hanbali School of Thought     

Founded by Imam Ahmad bin Hanbal Student of Imam Shafi’i Quran and Sunnah were primary sources of law Texts were supposed to be understood literally Four further sources of law were included as long as they did not contradict the Quran and Sunnah – sayings of the Companions, sayings of individual companions, zaif ahadith, and Qiyas

Sheikh Al-Mufid  Shi’ite scholar and jurist  The Quran and Shi’ite Sunnah were at the top  Argued that reason should be used to interpret texts if they appeared somewhat contradictory  Ijma – consensus of the Islamic community as long as it corresponds to the opinion of the Imam  Rejected the use of analogy  Points 3 and 5 are contradictory – Page 6 of 29 Sheikh Al-Murtada    

Shi’ite scholar Championed the authority of traditions (Sunnah) Those traditions that are contrary to reason can be rejected Those traditions with only one narrator can also be rejected – Sheikh AtTaifa believed that a hadith with only one narrator could be accepted

Hudud Punishments  Based on the Quran and Sunnah  Rarely implemented in traditional Islamic societies  Serve as a deterrent and reminder of God’s wrath towards anti-social crimes

 Prophet mentioned to avoid their use if any doubt existed thus the jurists have laid down a strict criteria for them  Another form of punishment was the tazirat punishments – these were based on legal discretion Read through pages 10 and 11

HALLAQ o For a text to be considered credible and authentic – it must be recurrent o Recurrent – so many multiple transmissions must be present that it is impossible for the transmitters to be joined together in a lie on such a large scale o 2 conditions for recurrence – must be conveyed from one generation to the other + channels of transmission must be numerous + first class of transmitters must have an understanding of what the Prophet said or did o A text transmitted through fewer reports than are sufficient for “recurrent” is referred to as “solitary” o Abrogation – repeal, cancel out effects – one text repeals another contradictory text that was revealed prior to it in time Shar’i – Lawful Categorized according to five norms 1. 2. 3. 4. 5.

Category of the forbidden – haram Obligatory Recommended Neutral Disapproved

Consensus by the jurists and Muslim community - Ijma – is not based entirely on reasoning – needs to be backed by evidence found in the Quran or Sunnah

Various types of Legal reasoning  Qiyas – analogy – most common and prominent  Istislah – public interest  Istihsan – juristic preference Qiyas consists of the following:1. The new case that calls for an analogy 2. The original case that is being used in the reference – found in the revealed texts or sanctioned by consensus 3. Ratio Legis – find the common between the two cases 4. Legal norm found in the original case that must be transported to the new case  A method for discovering and evaluating the ratio is that of “suitability” – Munasaba  Suitability’s goal – offer relevant ways of reasoning that serve the public interest  Munasaba is performed independently - without the use of revealed texts  Based entirely on rationality – Munasaba Istihsan – inference starts from revealed texts but the conclusion reached is different from the one reached via Qiyas Based either on consensus or on the principle of necessity Istislah – reasoning that does not appear to be directly based on the texts Reasoning is based on public interest Five universal principles that underlie Shari’a Protection of life Mind Religion Property Offspring Pluralism – refers to Ijtihad

Employed by jurists to come to a conclusion Gave Islam the opportunity to adapt and develop according to the different changes faced by society Madhab – a group of students, LEGISTs, judges, and jurists who had adopted the doctrine of a particular leading jurist Refers to the school of law as a whole as well Refers to a group of jurists loyal and integral to a certain legal doctrine