Islamic law Main characters: Containing both religious precepts and rules of conduct Regulating relations between humans and God and interaction among humans Confessional, ethical, imperative, extraterritorial and immutable in nature

Shar’ia and Fiqh Right path, limits set by God to human freedom of action More specifically, the study and application of fiqh allows to extract from the sources (usul al-fiqh) the qualification of human actions into the five categories of obligatory (fard/wagib), prohibited (haram), advisable (mandub/mustahabb), unadvisable (makruh) and free (ga’iz)

Usul al Fiqh Qur’an (divine revelation through Muhammad) Sunna (traditions of the Prophet handed down through hadith) Igma (consensus of the Muslim scholars) Qiyas (analogic reasoning based on comparison) Other secondary sources

Arkan ud-Din – Pillars of Islam Shahada – profession of faith attesting the unicity of God and Muhammad’s prophetic mission Salat – mandatory formal worship Zakat – mandatory alms-giving Sawm – fasting during prescribed periods Hajj – pilgrimage to Mecca

Establishment of Islam 610 (circa) – beginning of the Qur’anic revelation to Muhammad 613 – beginning of public preaching in Mecca 622 – Hijra/Hegira, migration of Muhammad and the first Muslims from Mecca to Medina 632 – Death of the Prophet, Muslim control Mecca and most of Arabia

Rightly guided Caliphs Abu Bakr ( ) – consolidation in Arabia, expansion to Siria Omar ( ) – conquest of Persia and Egypt Othman ( ) – written compilation of the Qur’an Ali ( ) – political divisions and rise of the Umayyads

Umayyad dynasty ( ) Caliphate becomes hereditary Capital moves to Damascus Conquests extend to North Africa, Spain, parts of Central and South Asia Beginning of political and religious schisms Abbasid dynasty ( ) Capital moves to Baghdad Caliphate fragments into multiple polities Caliphs’ role becomes progressively symbolic

Expansion of the Islamic World

Sunni and Shi’a Islam

Islamic scholars (ulama, fuqaha) Non-existent during the first Caliphs’ era Need for a specialised body of legal experts arise with conquests, increased administrative burden and secularisation of the political leadership First Islamic judges appointed during the Umayyad period First specialised scholars appeared in Kufa, Basra, Medina and Mecca

The Four Schools of Jurisprudence (madhab) Maliki (from Malik ibn Anas, m. 795) – Medina, first to develop, leans progressively more on established judicial practice Hanafi (from Abu Hanifa, m.767) – Kufa, emphasis on reasoning and jurist’s preference Shafi’i (Muhammad al Shafi’i, m.820) – Baghdad, first to systematise the sources of jurisprudence Hanbali (Ahmad ibn Hanbal, m.855) – Baghdad, rejects to a great extent Qiyas, limits Igma to the first generations of Muslims

Current distribution of the schools of jurisprudence

Usul al Fiqh – Sources of the Law Qur’an (divine revelation through Muhammad) Sunna (traditions of the Prophet handed down through hadith) Iğma (consensus of the Muslim scholars) Qiyas (analogic reasoning based on comparison) Other secondary sources

Qur’an Word of God Eternal, non-created Inimitable Divided in 114 suras, each sura composed of different number of ayat Out of verses, around 500 contain juridical rules

Rules contained in the Qur’an Religious dogmas about God, Scriptures and the Day of Judgement Moral norms for humans as to what virtues and qualities to seek Guidelines for how to perfom worship Rules regarding food and dress Juridical rules about different fields of human action

Juridical rules found in the Qur’an Slavery, freedom and human statuses Marriage, repudiation and successions Offenses and punishments set for illegal sexual relationship, false witness in cases of illegal sexual relationship, theft, banditry, consumption of alcohol, apostasy Commercial transactions Taxes, regulation of warfare, prisoners Political consultation and governance

Sunna - Tradition Sunnat al Nabi - Traditions of the Prophet Muhammad recorded by his companions and family members, called hadith Hadith integrate rules explicitly set in the Qur’an and provide a model for all Muslims Hadith can consist of deeds, sayings or tacit approvals

Development of the science of hadith in the 9° century Sunna considered autonomous as a source of law Six main collections of hadith are compiled and since then accepted as the official Sunni canon Classification of the hadith according to their isnad (chain of transmission) into: -Sahi (sound) -Hasan (good) -Da’if (weak) -Maudu’ (forged)

Iğma - Consensus Consensus of the community, through the consensus of the scholars of fiqh, on a certain issue Infallibility of the umma attested by hadith Consensus gives a powerful legitimacy to norms and institutions in the Islamic world

Qiyas – Analogy The application of comparison with a legal solution included in the Qur’an or Sunna to a similar problem The use of Analogy as a source of Law was resisted by many scholars, and it is still limited according to different schools

Secondary sources of Law Ra’y / Istihsan (personal reasoning / preference) Istislah (consideration for public interest) ‘Urf (custom) Amal (existing practice of jurisprudence)

Iğtihad and Taqlid Iğtihad = individual effort at interpreting sources and making decisions in Islamic Law Taqlid = relying on the authority of past scholars and previous legal rulings After the consolidation of the madhab system between the 9° and 10° centuries, “ther doors of Iğtihad” are considered closed. Several Islamic scholars, especially reformists, advocated for a renewed Iğtihad in modern times

Juridical responsibility Legal capacity is complete in the mukallaf: Muslim, adult, sane The actions of the mukallaf are classified according to five degrees lawfulness: - fard/wagib (obligatory) - mandub/mustahabb (recommended) - ğa’iz (free) - makruh (unrecommended) - haram (prohibited)

The status of non-Muslims non-Muslims living in Islamic countries are called dhimmi, they are protected under payment of a separate tax (jazya) They are excluded from some privileges and some duties specific to Muslims In other respects they enjoy equal legal status, religious freedom and legal autonomy when Muslims are not involved

Furu’ al Fiqh – Branches of the Law ‘Ibadat – rules for worship, relations between humans and God Mu’amalat – juridic relationships among human beings: - Marriage and Family Law - Successions and inheritance - Contracts and obligations - Crimes and penalties

Nikah - Marriage Muslim marriage is a contract between husband and wife (thorugh her tutor), it can be poligamous (up to four wives) Husband pays a nuptial gift (mahr) to wife Husband can repudiate wives on condition or by talaq (declaration of repudiation) Wives can obtain dissolution of marriage by mutual accord, on condition or because of husband faults

Fara’id - Successions Islamic Law does recognize legal heirs, the deceased’s will can affect only 1/3 of the patrimony Two main types of heirs: - Ahl al fard, obligatory shares stipulated in the Qur’an - ‘asaba, other agnates which receive what is left from the first group

Goods and Ownership Goods which can be made the object of commerce are called mal Goods are composed of substance and usufruct/enjoyment Goods that are excluded by rights of ownership (milk) are either illicit, below or above commercial value, or public property

‘Aqd - Contract In the absence of a classification of different types of contracts, the contract of sale works as a model The prohibition of riba (monetary interest) affected Islamic commercial law Legal devices such as the hawala (transfer) or the salam contract made up for some of the functions of a banking system

Crimes and Punishments Hadd – crimes for which corporal punishment is fixed by the Qur’an and that are haqq Allah (right of God), automatically prosecuted by the community and for which no pardon is possible Ta’zir – other crimes for which punishment is discretionary and decided by the judge Qisas/diya – retaliation or blood-money for crimes of damage against persons or property

Hadd punishments Illegal sexual intercourse (zina), capital punishment/lashes False accusation of illegal sexual intercourse (qadhf), lashes Drinking wine (shurb al khamr), lashes Theft (sariqa), mutilation Highway Robbery (qat al tariq), mutilation/capital punishment

Ta’zir - Discretionary sanctions Ta’zir are decided by the judge and can consist of corporal punishment, imprisonment, public disgrace, banishment, confiscation of money or goods The discretionaty power of the judge is wide but limited (by the political power and the custom), punishment cannot cause death, and anyway always be inferior to hadd

Qisas - Retaliation ‘Amd – intentional, deliberate offence (like intentional homicide), there is no possibility of espiation, the next of kin has the right to ask and waive retaliation (gratuitously o for blood- money) Quasi-deliberate, entails both espiation and heavier blood-money Mistake, as above but normal blood-money Indirect offence, only blood-money