Introduction to Islamic Law

The Trilogy of Islam Islam (Shariah/legal) Faith, understanding that everything in universe is governed by tauhid – Oneness of God/THEOLOGY: belief in God, Messengers, the Angels, the Books, the Last Day, God’s Destiny for humans. Submission, comprising of series of activities: bearing witness (shahadah), praying, zakat (tax payment), fasting in Ramadhan, and Hajj (pilgrimage to Mecca) regulated in FIQH (narrow Shariah) – legal system Religion ISLAM/SHARIAH Doing what is beautiful, deepest dimension of Shariah, focused on human intentionality; awareness of God’s presence—TASAWWUF or SUFISM, concerned with ethical and mystical system. Ihsan (Akhlaq/ethics) Iman (Aqidah/belief)

WHAT IS ISLAM? Literal meaning: salima – yaslamu – salaaman (safe and peaceful); aslama – yuslimu – islaaman (to bring safety and peace) The Qur’an laden with aesthetics and moral ethics succeeded in transforming then Arab nomads into societies with norms and values. “And I send you not except as a Blessing to the whole universe.” PEACE: Passive (inward) through rituals; worshipness Active (outward) through social interactions – salam (greetings)

BALANCES IN ISLAM RITUAL WORLDLY LIFE TRANSCENDENTAL HUMAN RIGHTS HUMAN RESPONSIBILITIES SOCIAL LIFE IN HEREAFTER SPIRITUAL

What is SHARIAH? “Way” – to God, many ways same destination Plurality and Flexibility of Shariah : “To each among you have We prescribed a law and an open way. If Allah had so willed, He would have made you a single people, but (His plan is) to test you in what He has given you; so strive as in a race in all virtues. The goal of you all is to Allah; it is He that will show you the truth of the matters in which you dispute.” (QS al-Maidah/5:48)

Roots of Shariah: Textual and Rational Prophet The Sunnah GOD The Qur’an Human Fiqh (Law) Human Tafsir (Exegete) Textual versus Rational

ISLAMIC LAW (al-Shari'ah) Islam possesses a religious law called al-Shari'ah in Arabic which governs the life of Muslims and which Muslims consider to be the embodiment of the Will of god. The Shari'ah is contained in principle in the Quran as elaborated and complemented by the Sunnah. On the basis of these principles the schools of this day were developed early in Islamic history. This Law, while being rooted in the sources of the Islamic revelation, is a living body of law which caters to the needs of Islamic society. Islamic laws are essentially preventative and are not based on harsh punishment except as a last measure. The faith of the Muslim causes him to have respect for the rights of others and Islamic Law is such that it prevents transgression from taking place in most instances. That is why what people consider to be harsh punishments are so rarely in need of being applied.

Hegemony of Texts, locus of contestation The Qur’an Fiqh Tafsir The Sunnah These pillars of Islam came into being not in a vacuum. Each came into being in a society with social, cultural, political and technological setting, and with different internalization of religion. The Qur’an was revealed gradually; The Sunnah was never came out of the blue; The exegetes had their own personal and social backgrounds; Fiqh is actually a response to problem(s) in a society; Reference for a continually changing life should not be a source which relies on a changing life as well …

Literal meaning: “reading” or “recitation” “The Book containing God’s speech revealed to the Prophet Muhammad and transmitted to us by continuous testimony.” There are 114 Surahs, 6235 verse of unequal lengths; less than 1/10 (about 350) legal verses, most in response to actual problems encountered such as infanticide and unlimited polygamy; on a whole, confirmed and upheld customs of Arab society and changed only when necessary. The rest concerned with matters of belief and morality, faith, etc. Reciprocal dialectics between the Qur’an and human beings, The Qur’an calls itself al-huda, ‘The Guidance.’ Revealed in two phases, Mecca (19 parts) and Medina (11 parts). Mecca verses devoted to matters of belief, the Oneness of God, Prophecy, invitation to Islam; Medina verses emphasize principles regulating political, legal, social, and economic life of the new community. What is the QUR’AN?

What is the HADITH/SUNNAH? “All that is attributed to Prophet Muhammad, his acts, his sayings, and whatever he has tacitly approved, plus all the reports describing his physical attributes and character.” The Prophet, “I have left two things among you. You shall not go astray so long as you hold on to them: the Book of Allah and my Sunnah.” As a second source of shariah, Sunnah could not possibly contradict the primary source (the Qur’an). The process of hadith formation involves interpretations of its re-teller (rawi) from the period of the sahabat to its codification in mid 3 rd century of Islam. Two tendencies: the textual approach and reasoning approach.

What is TAFSIR (Exegeses)? “The process of understanding Qur’anic texts.” 1) Tafsir bil ma’tsur – based on reports deriving from the Qur’an, the Prophet, the Companions 2) Tafsir bir ra’yi – based on ijtihad (reasoning) Hermeneutics discourse of contemporary exegetes: The Qur’an is not to be treated as a ‘dead’ text, but as a living text with spirit for transformation.

What is FIQH? Literally means “understanding.” A discipline which seeks to understand detailed and general rules of Islamic teachings. Fiqh deals with practical aspects of shariah regulating human activities in their life cycle. As interpretation of texts which carries certain historical context, differences of opinions of fiqh scholars are inevitable. Different opinions of jurists are blessing to the Muslim community (The Prophet).

Historical Development of Sharia Formation of Foundation Codification and Registration Period Formation of Schools of Fiqh (2 nd century) Period of Adhering 2 nd -3 rd centuries Transforming Fiqh into Laws in modern times During Prophet’s life –Qur’an and Hadith in formation; Prophet was sole authority through ijtihad Fiqh laws codified and registered by the Companions. The Qur’an and Hadith being collected; strong role of ijtihad Sharia was constructed based on works of earlier Fiqh scholars. Masterpieces of Fiqh produced. How to save the already existing Fiqh products. Monumental activities in interpreting the Qur’an and sifting the Hadith. Fiqh becomes foundation of laws in countries With Muslim population like Indonesia

Schools of Thought in Fiqh Hanafi ( ) Maliki ( ) Shafi’i (782- Hanbali ( ) Oldest, most tolerant liberal and flexible. Broad minded with- out lax, appeal to reason over text, and a quest for the better; elevate belief over practice. The Iraqi (rational) stream. He was Disgraced and imprisoned. Followers in the Arab Middle East, India, Pakistan and Afghanistan Lived in Medina, locus of traditional Fiqh. He developed Medina consensus of opinion using Hadith as guide. Medina is special because of political History. Most Sharia laws were made during Prophet’s life In Medina. Followers in North, Central, and West Africa. Student of Maliki. Two phases of ijtihad Baghdad and Egypt. Emphasizes Importance of analogy (qiyas) when no context found in texts. Shafi’i divides texts into qath’i (definitive) and zhanni (doubtful). He is Father of Usul Fiqh (Roots of Fiqh). Followers in Iraq, Yemen, Southeast Asia. His Fiqh developed from textual and historical perspective. Orthodox, opponent of the rationalist. Hanbali inspired Wahhabism in 18 th century, puritanical movement in Arab peninsula. His followers spread in Northern and Central Arabia.

Challenge to Shariah: Politicization Formal shariah – seek power to control Muslim society; Drain a lot of energy, scholarship, emotion; Strikingly different face of Islam; o Imposition of theocracy over democracy o Violations of human rights o Institutionalized discrimination against women and non-Muslim o Severe corporal punishment

Methods for Explaining Shariah The authoritative ‘given’: the Qur’an and the Sunnah Ahl ‘ilm (People of the ‘learning’) – Textual approach Human intelligence and understanding (fiqh) – to fulfill needs for succeeding generations Ahl fiqh or ahl ra’y (People of comprehension) – Rational approach

Normative Basis of Shariah: Maqashid Shariah (Overall Goal) – Imam Shatiby Basic human rights in Islam – Al Kulliyatul Khoms  Right for protection of one’s faith  Right for protection of one’s life  Right for freedom of thoughts  Right for protection of one’s property  Right for protection of progeny ‘God loves to see that His concessions are taken advantage of, just as He hates to see the commission of a sin.’ (Hadith) ‘Fulfill your duties to the extent of your ability.’ (Hadith)

What is Ijtihad? A method to exert all capacities to find a shariah ruling which can be used to reach a legal decision.