Implementing Islamic Law Seth Ward
Mar 30, 2015
Implementing Islamic Law
Seth Ward
Sources and Precedents
Qur’an: Basic source of Islamic law Revealed over 22 years. Earlier sections poetic, after 622 more legal
Sources for Law
Other sources: Traditional Arab practice Practices of Muhammad or other early
Muslims Practice of Christians and Jews Decisions of early judges
Umayyad
Abd al-Malik’s reforms
Emergence of the Law Schools
Abu Hanīfa (Iraq) d. 767 Malik b. Anas (Madina) d. 795 Al-Shāfi‘ī (b. Gaza, d. Egypt) d. 819 – often
credited with four principles of Islamic law Qur’ān Hadīth Qiyās (“analogy”) Ijmā‘ (“consensus”)
Ahmad ibn Hanbal (Baghdad) d. 855
Hadith Collections
Al-Bukhārī (d. 870) and Muslim b. al-Hajjaj (875): The “Sahihayn”
Four other sunni books (sunan): Abu Dawud, al-Tirmidhi, al-Nasa’I and Ibn Majah.
Shia
12ers: The last imam disappeared in 874 “Ambassadors” until 941. By this time there were collections of
“Shia hadith” notably by al-Kulayni d. 941 Principles: Qur’an, Hadith of Muhammad,
traditions of Imams, Aql or mantiq. Other collections by Ibn Babawayh and al-
Tusi.
Five categories (ahwal), Hadd, and Kings
Required Wājib, fard (individual and community). sunna mu‘āqada
Commendable Mustahabb Allowed or Neutral Mubāh Reprehensible Makrūh Prohibited Harām
http://hi-in.facebook.com/topic.php?uid=2441569136&topic=3510
“King’s Law” – al-ahkam al-sultaniyya. “Law of Government”
Muhtasib “Market Inspector” “HADD” PUNISHMENTS – theft, fornication, false
accusation of fornication
Modern Times
Various regions came to be dominated by one school
Hanafi Law—preferred by Ottomans, and by Mughals and the British in India.
Shafi’i—Egypt and parts of the Middle East until Ottoman times; Southeast Asia
Maliki—West Africa. Hanbali—preferred school of Saudi Arabia
and Wahhabi movement Ja’fari (12-er Shia)—imposed by Safavids
Distribution of madhahib (law schools)
Ottoman and British India Reforms
Ottoman Tanzimat 1839-1859, and Constitution of 1876, mecelle (mejelle).
“Anglo-Muhammadan Law” in India
New Paths in Sharia
Muhammad Abduh Sayyid Sabiq Fazlur Rahman Khaled Abou El Fadl: “Puritans” vs.
“Moderates,” Engineers as experts. Iranian Revolution as a model Convergence of various “extremists and
puritans.”
Some issues to discuss
Financial – prohibition of riba Prisoner considerations
Halal food and religious rights Ibadat – such as prayer, fasting, Religious Guidance
Human and Civil Rights Cairo Declaration
Women’s Status
“Sharia Debates” in Britain, Australia and Canada
Shari’a courts: agents of shari’a or of the State?
Gallup summary The significance of religion provides important context to understand
the influence of Sharia in all three countries. In Iran, 73% of men and 78% of women say religion plays an
important role in their lives, in Egypt, virtually all men (98%) and women (99%) say the same. But even in staunchly secular Turkey, religion looms large for most
individuals. Seventy-four percent of Turkish men and 72% of Turkish women tell Gallup that religion plays an important role in their lives.
For many Muslims, the combination of the importance of religion and the divine foundations of Islamic religious law give Sharia legitimacy to provide checks and balances on a government's powers. Overall, the poll findings show that within each country, men and women hold similar views about Sharia. Iranians, Egyptians, and even many Turks believe religion and government can be integrated.
http://www.gallup.com/poll/108724/iranians-egyptians-turks-contrasting-views-sharia.aspx
What role can U.S. legal scholars play?Noah Feldman’s Fall and Rise of Shari’a
I certainly am not arguing that American society should welcome Sharia courts, or that we should fear them.
In the US, those who wish to follow Sharia should be able to do so within the rights and limitations of our 1st amendment Religious Civil Rights—including the free exercise and no establishment clauses.
Implementing Islamic Law Today
We should be aware of the complexities of the issues raised, with ample opportunities for open, informed discussion. In approaching these issues, whether in traditionally Islamic countries, in the US or elsewhere, we should be aware of:
The history and complexity of the discourse about law and its meanings for Muslims;
Human rights (including rights to freedom of belief, practice, and spiritual guidance);
Discussion about what to do when Muslims implement Shari’a in ways inconsistent with human rights—or interpret Sharia in ways that are themselves un-Islamic;
Implementing Islamic Law
and issues of national, political and individual identity surrounding the implementation of Sharia.
Thank you