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Introduction to Islamic Law
Lily Zakiyah Munir
Center for Pesantren and Democracy Studies (CePDeS)
Indonesia
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The Trilogy of Islam
Islam(Shariah/legal)
Faith, understanding that everything in universe is governed bytauhid
Oneness of God/THEOLOGY: belief in God, Messengers, the Angels,
the Books, the Last Day, Gods Destiny for humans.
Submission, comprising of series of activities: bearing witness (shahadah),
praying, zakat(tax payment), fasting in Ramadhan, and Hajj(pilgrimage toMecca) regulated in FIQH(narrow Shariah) legal system
Religion ISLAM/SHARIAH
Doing what is beautiful, deepest dimension of Shariah, focused on
human intentionality; awareness of Gods presenceTASAWWUF or
SUFISM, concerned with ethical and mystical system.
Ihsan(Spiritual/ethics)
Iman(Aqidah/belief)
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WHAT IS ISLAM?
Literal meaning:
salima yaslamu salaaman (safe and peaceful);
aslama yuslimu islaman (to bring safety and peace)
The Quran laden with aesthetics and moral ethics succeeded intransforming 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;
Active (outward) through social interactions salam (greetings)
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BALANCES IN ISLAM
RITUAL
WORLDLY LIFE
TRANSCENDENTAL
HUMAN RIGHTS HUMAN RESPONSIBILITIES
SOCIAL
LIFE IN HEREAFTER
SPIRITUAL
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Roots of Shariah: Textual and Rational
ProphetThe Sunnah
GOD
The Quran
Human
Fiqh(Law)
Human
Tafsir(E
xegete)
Textual versus Rational
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Hegemony ofTexts, locus of contestation
The Quran
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 differentinternalization of religion.
The Quran was revealed gradually;
The Sunnah was never came out of the blue;
The exegetes had their own personal abd 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
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Literal meaning: reading or recitation
The Book containing Gods speech revealed to the Prophet Muhammad andtransmitted 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 asinfanticide and unlimited polygamy; on a whole, confirmed and upheld
customs of Arab society and changed only when necessary. The restconcerned with matters of belief and morality, faith, etc. Reciprocal
dialectics between the Quran and human beings,
The Quran calls itselfal-huda, The Guidance. Revealed in two phases, Mecca(19 parts) and Medina (11 parts). Mecca verses devoted to matters of belief,
theOneness of God, Prophecy, invitation to Islam; Medina versesemphasize principles regulating political, legal, social, and economic life of
the new community.
What is the QURAN?
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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 Quran). The process of hadith formation involves
interpretations of its re-teller (rawi) from the period of the sahabatto itscodification in mid 3rd century of Islam.
Two tendencies: the textual approach and reasoning approach.
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What is TAFSIR (Exegeses)?
The process of understanding Quranic texts.
1) Tafsir bil matsur based on reports deriving from
the Quran, the Prophet, the Companions2) Tafsir bir rayi based on ijtihad(reasoning)
Hermeneutics discourse of contemporary exegetes:
The Quran is not to be treated as a dead text,
but as a living text with spirit for transformation.
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What is FIQH?
Literally means understanding.
A discipline which seeks to understand detailed andgeneral 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 historicalcontext, differences of opinions of fiqh scholars are
inevitable.
Different opinions of jurists are blessing to the Muslimcommunity (The Prophet).
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Historical Development of Sharia
Formation of Foundation
Codification and
Registration Period
Formation of Schools of
Fiqh (2nd century)
Period of Adhering
2nd-3rd centuries
Transforming Fiqh into
Laws in modern times
During Prophets life Quran and Hadith in formation;
Prophet was sole authority through ijtihad
Fiqh laws codified and registered by the Companions.
The Quran 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 Quran and sifting the Hadith.
Fiqh becomes foundation of laws in countries
With Muslim population like Indonesia
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Schools ofThought in Fiqh
Hanafi
(700-782)
Maliki
(710-795)
Shafii
(782-
Hanbali
(796-873)
Oldest, most tolerant
liberal and flexible.Broad minded with-
out lax, appeal toreason over text,
and a quest for the
better; elevate
belief over practice.The Iraqi (rational)
stream.He wasDisgraced and
imprisoned. Followersin theArab MiddleEast, India, Pakistan
and Afghanistan
Lived in Medina,
locus of traditional
Fiqh.He developedMedina consensusof opinion using
Hadith as guide.
Medina is special
because of politicalHistory. Most Sharia
laws were madeduring Prophets life
In Medina.Followers in North,
Central, and West
Africa.
Student of Maliki.
Two phases of ijtihad
Baghdad and Egypt.EmphasizesImportance of
analogy (qiyas)when
no context found in
texts. Shafii dividestexts into qathi
(definitive) andzhanni (doubtful).
He is Father of UsulFiqh(Roots of Fiqh).
Followers in Iraq,
Yemen, Southeast
Asia.
H
is Fiqh developedfrom textual and
historical perspective.
Orthodox, opponentof the rationalist.Hanbali inspired
Wahhabism in 18th
century, puritanical
movement in Arabpeninsula.His
followers spread in
Northern andCentral Arabia.
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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-Muslimo Severe corporal punishment
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Methods for Explaining Shariah
The authoritative given: the Quran and the Sunnah
Ahl ilm (People of the learning) Textual approach
Human intelligence and understanding (fiqh)
to fulfill needs for succeeding generations
Ahl fiqhor ahl ray(People of comprehension)
Rational approach
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Normative Basis of Shariah:
Maqashid Shariah (Overall Goal) Imam Shatiby
Basic human rights in Islam Al Kulliyatul Khoms
Right for protection of ones faith
Right for protection of ones life
Right for freedom of thoughts Right for protection of ones property
Right for protection of progeny
God loves
tos
ee that His
concess
ions
are taken advantage of, jus
t as
He hates
tosee the commission of asin. (Hadith)
Fulfill your duties to the extent of your ability.(Hadith)
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What is Ijtihad?
Amethod to exert all capacities to find
a shariah ruling which can be used to reach a
legal decision.
