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Monday, April 30, 2012

Approaches to Shariah


Sharia (Arabic شريعة Šarīʿa; [ʃaˈriːʕa], "way" or "path") is the sacred law of Islam. Most Muslims believe Sharia is derived from two primary sources of Islamic law: the divine revelations set forth in the Qur'an, and the example set by the Islamic Prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of Sharia to questions not directly addressed in the primary sources by including secondary sources. These secondary sources usually include the consensus of the religious scholars embodied in ijma, and analogy from the Qur'an and Sunnah through qiyas. Shia jurists replace qiyas analogy with 'aql, reasoning.


Muslims believe Sharia is God's law, but they differ as to what exactly it entails.[1] Modernists, traditionalists and fundamentalists all hold different views of Sharia, as do adherents to different schools of Islamic thought and scholarship. Different countries and cultures have varying interpretations of Sharia as well.(SEE: VIEW)

Sharia deals with many topics addressed by secular law, including crime, politics and economics, as well as personal matters such as sexuality, hygiene, diet, prayer, and fasting. Where it enjoys official status, Sharia is applied by Islamic judges, or qadis. The imam has varying responsibilities depending on the interpretation of Sharia; while the term is commonly used to refer to the leader of communal prayers, the imam may also be a scholar, religious leader, or political leader.

The reintroduction of Sharia is a longstanding goal for Islamist movements in Muslim countries. Some Muslim minorities in Asia (e.g. in India) have maintained institutional recognition of Sharia to adjudicate their personal and community affairs. In western countries, where Muslim immigration is more recent, Muslim minorities have introduced Sharia family law, for use in their own disputes, with varying degrees of success (e.g. Britain's Muslim Arbitration Tribunal). Attempts to impose Sharia have been accompanied by controversy,[2][3][4][5] violence,[6][7][8][9][10][11] and even warfare (cf. Second Sudanese Civil War).[12][13][14][15]

Traditional perspectives on Sharia


The majority of Muslims regard themselves as belonging to either the Sunni or Shi'a sect of Islam. Within these sects, there are different schools of religious study and scholarship. The schools within each sect have common characteristics, although each differs in its details.

The Sunni perspective (Main article: Sunni)

In addition to the "Basic Code" of the Qur'an and Sunnah, traditional Sunni Muslims also add the consensus (ijma) of Muhammad's companions (sahaba) and Islamic jurists (ulema) on certain issues. In situations where no concrete rule exists in the sources, law scholars use qiyas — various forms of reasoning, including analogy, to derive law from the essence of divine principles and preceding rulings. The consensus of the community, public interest, and other sources are used as an adjunct to Sharia where the primary and secondary sources allow.[30] This description can be applied to the major schools of Sunni fiqh, which include the Hanafi, Shafi'i, Maliki and Hanbali.

The Salafi perspective (Main article: Salafi)

The Salafi movement looks to the actions and sayings of the first three generations of Muslims for guidance, in addition to the Qur'an and Sunnah. Salafis take these exemplary early Muslims as the source of their fiqh. The Salafi movement has attracted followers from many Muslim cultures and schools of fiqh.[31]

Main article: Wahhabi

Muslims who subscribe to the teachings of scholar Muhammad ibn Abd-al-Wahhab are considered part of the Salafi movement.[32] See the post on this LINK and also DIFFERENCE 

Ibadi

The Ibāḍī movement, Ibadism or Ibāḍiyya (Arabic: الاباضية al-Ibāḍiyyah) is a form of Islam distinct from the Sunni and Shia denominations. It is the dominant form of Islam in Oman and Zanzibar. There are also Ibadis in Algeria, Tunisia, East Africa as well as Libya.

Believed to be one of the earliest schools, it is said to have been founded less than 50 years after the death of the prophet Muhammad. Some historians think that the denomination developed out of the seventh-century Islamic sect known as the Khawarij or Kharijites.

Ibadi communities are generally regarded as conservative, for example Ibadiyya rejects the practice of qunut or supplications while standing in prayer.

Sunni Muslims traditionally regard the Ibadiyya as a Kharijite group, but Ibadis reject this designation. Ibadis regard other Muslims not as kafir "unbelievers" (as most Kharijite groups did), but as kuffar an-ni'ma "those who deny God's grace", though nowadays this attitude has relaxed.

They believe that the attitude of a true believer to others is expressed in three religious obligations: walāyah: friendship and unity with the practicing true believers, and with the Ibadi Imams.



barā'ah: dissociation (but not hostility) towards unbelievers and sinners, and those destined for Hell. wuqūf: reservation towards those whose status is unclear.

Unlike the Kharijites, Ibadi have abandoned the practice of disassociation with other Muslims.[1]


The Shi'a perspective (Main article: Shi'a)



Shi'a Muslims also extend the "Basic Code" with fiqh, but strongly reject analogy (qiyas) as an easy way to innovations (bid'ah), and reject consensus (ijma) as not having any particular value in its own. During the period that the Sunni scholars developed those two tools, the Shi'a Imams were alive, and Shi'a view them as an extension of the Sunnah, so they view themselves as deriving their laws (fiqh) only from the Qur'an and Sunnah. A recurring theme in Shi'a jurisprudence is logic (mantiq),[33] something most Shi'a believe they mention, employ and value to a higher degree than most Sunnis do. They do not view logic as a third source for laws, rather a way to see if the derived work is compatible with the Qur'an and Sunnah.



In Imami-Shi'i law, the sources of law (usul al-fiqh) are the Qur'an, anecdotes of Muhammad's practices and those of The Twelve Imams, and the intellect ('aql). The practices called Sharia today, however, also have roots in comparative law [34] and local customs (urf).[30]



Most Shia Muslims followed the Ja'fari school of thought.[35]

Modern perspectives on Sharia

Muslims have responded in a variety of ways to the forces of modernity. These responses cross the lines of tradition, sect and school. They affect the way Sharia is interpreted by the individual in their personal lives, and the extent to which Sharia is implemented in the public sphere by the state. These diverse movements can be referred to collectively as contemporary Sharia(s).[36]

The spectrum of Muslim legal systems

The legal systems in 21st century Muslim majority states can be classified as follows.

Sharia in the secular Muslim states: Muslim countries such as Mali, Kazakhstan and Turkey (which is under pressure from religious political parties) have declared themselves to be secular. Here, religious interference in state affairs, law and politics is prohibited.[37] In these Muslim countries, as well as the secular West, the role of Sharia is limited to personal and family matters.


Muslim states with blended sources of law: Muslim countries including Pakistan, Indonesia, Afghanistan, Egypt, Nigeria, Sudan, Morocco and Malaysia have legal systems strongly influenced by Sharia, but also cede ultimate authority to their constitutions and the rule of law. These countries conduct democratic elections, although some are also under the influence of authoritarian leaders. In these countries, politicians and jurists make law, rather than religious scholars. Most of these countries have modernized their laws and now have legal systems with significant differences when compared to classical Sharia.[38]

Muslim states using classical Sharia: Saudi Arabia and some of the Gulf states do not have constitutions or legislatures. Their rulers have limited authority to change laws, since they are based on Sharia as it is interpreted by their religious scholars. Iran shares some of these characteristics, but also has a parliament that legislates in a manner consistent with Sharia.[39]


Modern schools of thought

Legal scholar L. Ali Khan claims that "the concept of Sharia has been thoroughly confused in legal and common literature. For some Muslims, Sharia consists of the Qur'an and Sunnah. For others, it also includes classical fiqh. Most encyclopedias define Sharia as law based upon the Qur'an, the Sunnah, and classical fiqh derived from consensus (ijma) and analogy (qiyas). This definition of Sharia lumps together the revealed with the unrevealed. This blending of sources has created a muddled assumption that scholarly interpretations are as sacred and beyond revision as are the Qur'an and the Sunnah. The Qur'an and the Sunnah constitute the immutable Basic Code, which should be kept separate from ever-evolving interpretive law (fiqh). This analytical separation between the Basic Code and fiqh is necessary to dissipate confusion around the term Sharia."[41]

The revival of the religion



Simultaneously with liberalizing and modernizing forces, trends towards fundamentalism and movements for Islamic political power are also taking place. There has been a growing religious revival in Islam, beginning in the eighteenth century and continuing today. This movement has expressed itself in various forms ranging from wars to efforts to improve education.[42]



A return to traditional views of Sharia: There is a long-running worldwide movement underway by Muslims towards a better understanding and practice of their religion. Encouraged by their scholars and imams, Muslims have moved away from local customs and culture, and towards more universally accepted views of Islam. This movement towards traditional religious values served to help Muslims cope with the effects of European colonization. It also inspired modernist movements and the formation of new governments.[43]



The Islamist movement: Since the 1970s, the Islamist movements have become prominent; their goals are the establishment of Islamic states and Sharia within their own borders, their means are political in nature. The Islamist power base is the millions of poor, particularly urban poor moving into the cities from the countryside. They are not international in nature (one exception being the Muslim Brotherhood). Their rhetoric opposes western culture and western power.[44] Political groups wishing to return to more traditional Islamic values are the source of threat to Turkey's secular government.[44] These movements can be considered neo-Sharism.[45]

The Fundamentalist movement: Fundamentalists, wishing to return to basic religious values and law, have in some instances imposed harsh Sharia punishments for crimes, curtailed civil rights, and violated human rights. These movements are most active in areas of the world where there was contact with Western colonial powers.[46]

Extremism: Extremists have used the Qur'an and their own particular version of Sharia [47] to justify acts of war and terror against Western individuals and governments, and also against other Muslims believed to have Western sympathies. [48] Friction between the West and Islam, particularly with regard to the Palestinian question, continues to fuel this conflict.[49]

Confusion between Sharia and customary law

According to Jan Michiel Otto, Professor of Law and Governance in Developing Countries at Leiden University, "Anthropological research shows that people in local communities often do not distinguish clearly whether and to what extent their norms and practices are based on local tradition, tribal custom, or religion. Those who adhere to a confrontational view of sharia tend to ascribe many undesirable practices to sharia and religion overlooking custom and culture, even if high ranking religious authorities have stated the opposite." Professor Otto's analysis appears in a paper commissioned by the Netherlands Foreign Ministry.[52]

After Muhammad's death, the revelations were collected and organized into the Qur'an, and accounts of his life eventually formed the basis for the Sunnah. (to listen the contemporary views click SUNNAH , SHAH KARIM)

In pre-Islamic Arabia, bonds of common ancestry formed the basis for tribal association.[58] The advent of Islam brought the tribes together under a single religion. As Islam is not just a religion, but also a way of life, a new common basis of law and personal behavior (Sharia) began to take shape.[59]

Sharia continued to undergo fundamental changes, beginning with the reigns of caliphs Abu Bakr (632–34) and Umar (634–44), during which time many questions were brought to the attention of Muhammad's closest comrades for consultation.[60] During the reign of Muawiya b. Abu Sufyan ibn Harb, ca. 662 CE, Islam undertook an urban transformation, raising questions not originally covered by Islamic law.[60] Since then, changes in Islamic society have played an ongoing role in developing Sharia, which branches out into Fiqh and Qanun respectively.

Among the Muslims, tribal laws were adapted to conform to Sharia "for they could not form part of the tribal law unless and until they were generally accepted as such."[58] Additionally, Noel James Coulson, Lecturer in Islamic law of the University of London, states that "to the tribe as a whole belonged the power to determine the standards by which its members should live. But here the tribe is conceived not merely as the group of its present representatives but as a historical entity embracing past, present, and future generations."[58] So, while "each and every law must be rooted in either the Qur'an or the Sunnah,"[61] without contradiction, tribal life brought about a sense of participation. Such participation was further reinforced by Muhammad who stated, "My community will never agree in error".[61]

Source: http://en.wikipedia.org/wiki/Sharia

THE FABRICATED PILLARS OF ISLAM
                                                          
The term "Pillars of Islam”is absolutely non-Qur’anic. There is no such term as 'Imaadil Islam' or 'Imaad-id-Deen’ in the Book of Allah. ('Imaad means pillars.) But our clergy, the "Imams" of Hadith, invented the so-called five pillars of Islam.

The Sunni Pillars:
*Iman (Faith) – *Salat (relegated to ritual prayers five times a day) - *Zakaat (degraded to annual charity or poor-due) - *Saum (reduced to fasting in the month of Ramadhan) - *Hajj (Pilgrimage to Makkah).
The clergy, however, abjectly fail to describe a beautiful building on these “pillars”. Guarding human rights, benefiting people are the central themes in the Qur’an. Give and grow!

I can imagine “Imam” Bukhari committing an atrocious forgery, writing an incomplete, erroneous sentence with a fibrillating heart and a trembling hand, "Al-binaa-il-Islam ‘ala khams.” (The foundation of Islam is on five.) Notice the word 'Pillars' missing even here, betraying his attempt at frank forgery.

The Shi’a Pillars are quite different:

*Tawheed (Monotheism) – *‘Adl (Justice) *Nubuwwat (Belief in the prophets of God) - *Imamat (Imamate or belief in "Imams") -*Qiyamat (Resurrection).

Shabbir Ahmed, M.D.
drshabbir@bellsouth.net 
www.Ourbeacon.com (Be sure to check out the new and old Forums!)  http://www.galaxydastak.com/cgi-bin/bbs60x/webbbs_config.plwww.youtube.com/drshabbir2 6440 NW 53 ST

Wilayat


Wilayat conveys several intricate meanings which are deeply tied to their history. Morphologically, it is derived from the Arabic wilaya the verbal noun of waliyan: to be near and to have power over something. Technically, wilayat means rule, supremacy or sovereignty. In another sense, wilayat means friendship, loyalty, or guardianship (see Wali).[6]

What is Wilãyat?

"Wilãyat," derived from wilã', means power, authority or a right of certain kind. In Shí'a theology, "wilãyat" is the authority invested in the Prophet and the Ahlul Bayt as representatives of Almighty Allãh on this earth.

A wilāyah (Arabic: ولاية‎) or vilâyet (in Persian) and vilayat (in Urdu) is an administrative division, usually translated as "province" rarely as "governorate". The word comes from Arabic w-l-y 'to govern': awāli 'governor' governs a wilayah 'that which is governed'. Under the Caliphate, it referred to one of the constituent near-sovereign states.

The Word ‘Wilayat’ in the terminology of the Shari’ah when referring to the authority of the Faqih involves the following terms:

1. Wali (one who enjoys Wilayat or authority). 
2. Muwla 'alayh (those subject to this authority). 
3. Wilayat. The authority. 

The term Muwla 'alayh refers to the individuals, groups, or society when Wali’s Wilayat is applied.
'Wilayat' is the office, power and authority of the Faqih established on legal grounds.

The functions of Wilayat are authoritative rules on the basis of religious evidence or from reason.

'Wilayat al Faqih' ( may watch the speech on this topic by SHEIKH HAMZA SODAGAR)

Guardianship of the Jurist or Providence of the Jurist (Arabic: ولاية الفقيه, Persian: ولایت فقیه, Urdu: ولایت فقیه, Wilayat al Faqih) is a post-Age-of-Occultation theory in Shi'a Islam which holds that Islam gives a faqih (Islamic jurist) or fuqaha (jurists) custodianship, divine providence or guardianship over those in need of it. Ulama supporting the theory disagree over how encompassing custodianship should be. One interpretation - limited Guardianship of the Jurist - holds that guardianship should be limited to non-litigious matters (al-omour al-hesbiah)[1] including religious endowments (Waqf)[2] judicial matters[3] and the property which no specific person is responsible for it. Another - "Absolute Guardianship of the Jurist" - maintains that Guardianship should include all issues for which Prophet of Islam and Shi'a Imam have responsibility, including governance of the country. The idea of guardianship as rule was advanced by the Ayatollah Ruhollah Khomeini in a series of lectures in 1970 and now forms the basis of the constitution of the Islamic Republic of Iran. The constitution of Iran calls for a faqih, or Vali-ye faqih (Guardian Jurist), to serve as the Supreme Leader of the government.[4][5] In the context of Iran, guardianship of the jurist is often referred to as "rule by the jurisprudent," or "rule of the Islamic jurist".


Walayat and Nubuwat

Suriya Osman: tariqas@stderr.org 

I have to explain these 2 terms as Sirhindi used them so that we are clear what the way of the saint (walayat) and the way of the prophet means (Nubuwat). And in this I pray for Allah to help me give the right meaning of what I read!!

It seems that what Sirhindi means are stages in the evolution of the state of the person.
Walayat is a state of the person where he is intoxicated, and experiences sukr and feels himself one with God, it is the state of Fana. Walayat is the nearness to God which has an element of the shadow, ie zilliyat and is still with veils.

Nubuwat on the other hand is a state of nearness to God without the sukr and without the shadow and trasnceds the veils of names and considerations.


Sirhindi says that Nubuwat is a higher state than Walayat. According to him, the companions of the Prophet, he give eg Omar, reached the stage of Nubuwat. He also says Raba'a was in the stage of Walayat which is why she said things about not wanting paradise. Because in the state of Nubuwat one does not differentiate between wanting God and wanting paradise.

And this is where the difference lies in that in Walayat there seems to be no duality but in Nubuwat, the duality returns.

He says, raptures, dances and whirlings happen at the stage of Walayat and disappears when the stage of Nubuwat is reached.

He says the object in Nubuwat is not to eliminate human attributes as the one in the stage of Walayat does , but the object is to eliminate the undesirable objects of the attributes rather than the attributes themselves.

Walayat is the preparatory state of Nubuwat but for some they do not pass through the state with the sukr and the zilliyat (shadow).

I get the impression that Sirhindi says the Nubuwat is a shorter route than the Walayat, so here it gets kind of confusing but I think what is meant is that to follow the way of the Prophet, using his guidelines is easier than trying to seek it through severe practices.


The Wilayat of Ali (1) By Al-Mu’ayyad fid-din as-Shirazi

"O Mu’mins, may God help you in deriving the fullest benefit from the glories of the day. (Eid e Ghadir) (2) It was on this day that God conferred on us the highest of His favors. It was on this day that a great ordinance was issued by God which is the terminating point in the revelation of the religious laws. It was on this day that everything was made clear and the path was made smooth for the seekers of truth by the verse (of the Quran):"

"I have perfected your religion. I have bestowed on you my highest favors. I have chosen for you Islam as a religion."

At first the Prophet was reluctant to proclaim the ordinance to the people who, he believed, were prejudiced against it. A Qur’anic verse made the matter clear and left no room for hesitation in his mind. The verse is as follows:


"O Prophet, deliver the message which has been revealed to you by your Lord. If you fail to do so, it will mean that you have not delivered His message to the people. God will guard you against the people." 

Please click the link to hear the contemporary view on Wilayat-e-Ali.

The Evolving Nature of the Shari’a
By Neguin Yavari

The shari’a, the corpus of divine law in Islam, defines the parameters of legality in the Islamic tradition; it serves to distinguish the lawful from the illicit, and to delineate the boundaries within which a legitimate Muslim life can be carried out. “[It] is traditionally expressed by two words, fiqh and shari’ah. Fiqh originally meant understanding in a broad sense. The specialist usage, meaning understanding of the law, emerged at about the same time as the first juristic literature, in the late eighth and early ninth centuries. All efforts to elaborate details of the law, to state specific norms, to justify them by reference to revelation, to debate them, or to write books and treatises on the law are examples of fiqh. The word connotes human and specifically scholarly activity. By contrast, shari’ah refers to God’s law in its quality as divine. Loosely used, it can indicate Islam, God’s religion.”

In that the shari’a is, first and foremost, a moral appraisal of the Muslim way of life, it has expanded throughout its history to incorporate more and more facets of social activity that were dearly not foreseeabie in the Qur’an. The shari’a is, simply put, a series of answers inspired by God and, in essence, delivered by His Messenger to guide the lives of Muslims for generations along the path of righteousness and propriety. The interpretation of the divine message, as well as of the Prophet’s utterances and actions (sunna), is later entrusted to a body of Muslim scholars, as we shall further explore below. Following the death of the Prophet Muhammad (peace be upon him) and as an ongoing dialogue conducted between his community and the scholars of his teachings, the shari’a is marked with a remarkable dynamism and fluidity, and a consequent propensity to accommodate change.

It is important to begin with the realisation that the contemporary concept of the shari‘a as a divinely-ordained and incessantly applied rigid, unchanging and immutable body of laws encompassing the lives and actions of every Muslim, is by and large a creation of the late 19th century. Faced with encroaching Westernisation, a secularisation of educational structures and the advent of modernity, Muslim reformers and administrators sought to cast the shari‘a into a Western, constitution-like mould. It has been repeatedly pointed out that the concept of a well defined and unchanging corpus of law known as the shari’a, with undisputed centrality for understanding the Islamic faith and quintessentially opposed to change, is a relatively recent phenomenon.

This is not to say that the shari’a itself is a novel formulation, but that this present phase of history which places it at the centre of Muslim life, setting the normative standards for what is Islamic and what is not, with an answer for every question. is a relatively short-lived one. Following the emergence of nationalist movements in the Islamic world in the late 18th century, the shari’a proved instrumental in the forging of new and modern legal codes for the newly independent nations. “The greatest theoretician of the idea that the shari’ah could be a source of practical and effective codification was probably the Egyptian jurist ‘Abd al-Razzaq al Sanhuri who played a part in drafting new civil codes for more than one Arab country. The magnitude of the achievement of modem Muslim states in creating and implementing their new legal structure is rarely appreciated outside legal circles, but it is an achievement of immense importance and complexity and not one that is unduly at odds with the practical history of the shari‘ah.” 

In the 19th century then, the traditional conception of the shari’a, offering only a generalised guidance and an overall paradigm of legality, was replaced with a practical one. The creation of the Mecelle in 1876 by the Ottoman authorities, and still in effect in some former Ottoman territories, is a case in point. The Mecelle was a codification of some parts of the shari’a, along the lines of Hanafi teachings - to which the Ottoman ruling strata adhered - and was meant for practical purposes. The ability of the Shi’i tradition to accommodate modern law-making techniques was also demonstrated in Iran in 1906 when a majority of high-ranking jurists rallied to the nationalist cause of the constitution to curb the autocratic powers of the monarch.

Modern scholarship is only beginning to arrive at a more refined explanation of the origins of Islamic legal thinking in the classical period or a genealogy of various aspects of legal formulation. Beset with problems of interpretation and, as Norman Calder has pointed out, the formal structures of juristic literature plus many specific statements, modern Western scholars have come out to define the shari’a as a set of static and unchanging norms. This trend is best exemplified by Joseph Schachi in his influential monograph, An Introduction to Islamic Law, published in 1964. Misinterpreting the signs and codes of Islamic discourse, Schacht asserted that the shari’a and the enterprise of Islamic jurisprudence had become rigid and fossilised after the 4th/lOth century when an end was put to independent reasoning or ijtihad.

This view has come under attack from many angles, and especially by Wael HaIlaq who shows that that “in Islamic legal theory ijtihad was reckoned indispensable in legal matters because it was the only means by which the Muslims could determine to what degree their acts were acceptable to God. To facilitate the practice of ijtihad minimal legal knowledge was required...The continuity of ijtihad throughout Islamic history suggests that the developments in positive law, legal theory, and the judiciary have indeed taken place, and only through a chronological study of the jurists’ writing is it possible to trace these developments and to reconstruct a more accurate picture of the legal history of Islam.”

The development of Islamic law reveals myriad foreign influences and borrowings, particular contexts and circumstances, and several identifiable watersheds. The definition of legality, what was condoned by the Prophet and what was not, became reformulated over time. A cursory glance at the course of Islamic history confirms Hallaq’s assertions, The office of the caliphate, once held by the most pious of men and closest to the Prophet, was deprived of all religious authority and legitimacy by the mid-4th/10th century. In the absence of a centralised source of doctrinal authority, local Muslim societies largely found their own way, nominating their own legal religious leaders through their willingness to follow those amongst them who seemed to be the most pious or learned. The mechanism of elaboration was the dialectic of question and answer. Muslims, geographically disparate, wanted to know what Islam was and how it resembled or differed from the other religions they were familiar with. They wanted to know how Islam could solve their problems and assuage their pains.

We should therefore agree with Richard Bullet’ that those aspects of Islam that are so often deemed characteristic - such as the shari’a, the ‘ulama, the partnership of state and religion through a commitment on the part of the state to uphold and abide by the shari’a of the ‘ulama, the Sufi orders, the popular piety manifested in pilgrimages and shrine devotions - were present only in embryo at the time of the Prophet. They all became elaborated over time, a process that took place without the benefit or burden of an organised ecclesiastical structure of popes, patriarchs, archbishops, synods, councils and suchlike religious authorities which accompanied the evolution of Christianity.

The Qur’an announces itself as a divine revelation communicated to humanity through the medium of the Prophet Muhammad. Empowered by divine guidance, he instituted a series of rules and practices in the areas of ritual behaviour, purity, social relations and the economy. When faced with resistance from the nascent community, the Prophet would turn to God for guidance and clarification. “As represented in the Qur’an, the activity of consultation involves a three-way relationship between God, Muhammad and the Muslim community, with the Prophet serving as the medium through which community members know God’s laws and ordinances, A slightly different pattern of question and response is reflected in the hadith literature where, typically, we find a Companion approaching Muhammad and asking him a question about a certain practice. Here, without awaiting the reaction of the Divinity, Muhammad responds immediately to his interlocutor, speaking in his own voice. The authoritative nature of his responses came to be understood as being based on verse 63 of Sura 4: ‘0 Believers, obey God, obey the Messenger and those in authority among you’ “

With the death of the Prophet and his companions, the majority of the Muslim community (the Sunnis) felt cut off from their immediate sources of guidance, and in their place the isnad or chains of transmission were engendered. whereby the Qur’an and the Prophetic traditions (hadith) passed through a human chain of authorities. Gradually, a professional class of Muslims emerged who dedicated themselves to the preservation and analysis of Islamic knowledge, the ‘ulama. The acquisition of this knowledge came to be associated exclusively with the study of the Qur’an, the hadith and increasingly, the “roots” and “branches” of substantive law or fiqh.

By the mid- 3rd/9th century, various aspects of the Islamic faith were translated into social institutions. In the realm of law, then, the ‘ulama endeavoured to define the relation of the shari’a to the concrete world of human affairs. “Across time and space. two distinct categories of legal interpreters have stood at the meeting points of law and fact. The domain of legal procedure, including adversarial cases, rules of evidence, binding judgements and state enforcement, belongs to the judge (qadi); the issuance of nonbinding advisory opinions (fatwas) to an individual questioner (mustafti), whether in connection with litigation or not, is the separate domain of the juriconsult (mufti). In their different venues, both qadis and muftis have specialised in handling the everyday traffic in conflicts and questions falling within the purview of the shan’a.”

The emergence of a professional class of Islamic scholars led to the compilation of Prophetic hadith and legal rulings. As the authority of the hadith attributed to the Prophet was mainly a function of the reliability of the human chains of transmission, Muslim scholars found it paramount to establish the veracity or falsity of the thousands of sayings and decrees attributed to the Prophet; hence the normative collections of the traditionalists al-Bukhari (d. 256/870) and Muslim al-Nishapuri (d. 261/875). Independent schools of law (madhabs) emerged in the 8th and 9th centuries. Although medieval Islamic history is marked with the emergence of a dozen or so different schools of legal thought, only those of four Sunni jurists, Abu Hanifa (d. 150/767), Malik b. Anas (d. 179/795), Al-Shafi’i (d. 250/820) and Ibn Hanbal (d. 241/855) have survived to the present day. 

An inevitable outcome of the establishment and consolidation of the four different schools of law in various parts of the Sunni world was the emergence of diversity, of a plurality of legal rulings, which often placed their adherents at odds with one another. Known as the doctrine of ikhtilaf, it is the clue to understanding the shari‘a in a historical perspective. Traditionally, differences between the schools were considered as the results of the legitimate exercise of independent judgement (ijtihad) in the absence of any explicit guidance from divine revelation. Recourse was set in this regard to the Prophetic saying: “Difference among my community is a sign of the bounty of God.” 

The Shi’a too have produced several legal collections of their own. They too accept the Qur’an and the sunna of the Prophet as the principal sources of law. The fundamental difference between the Shi’i and Sunni systems of fiqh, however, centres around the doctrine of the Imamate. For all the Shi’is - lthna’ashari (Twelver). Ismaili and Zaydi - after the Prophet the Imam is the final authority for interpreting the ordinances of God and of validating the rules of human conduct and worship. For the Ismaili Shi’i in particular, the Imam is also the sole repository of the inner meaning of the Qur’an and the shari’a.” In addition, Shi’i compilations of the Prophetic traditions only included those which were reported by their Imams. For both Ismaili and lthna‘ashari compilations of hadith, the main source of these traditions was the lmam Ja’far al-Sadiq (d. 148/756). 

The role of the Imamate and divine guidance in various shoots of Shi’i jurisprudence is subordinated to the competing definitions of the Imamate. For the Isna’ashari Shi’is, whilst awaiting the reappearance of their hidden Imam, the mahdi, interpretations of Qur’anic injunctions and the precedence set by the Prophet and his family is largely entrusted to the ‘ulama, who carry out this task not only by exercising independent judgement, but by recourse to the legal concept of analogy (qiyas) as well. In lsmaili jurisprudence, however, the living Imam continues to be the final authority on any exercise in interpretation and elaboration of the law.

The first attempt at systemisation of Ismaili law dates to the Fatimid period (297-567/909-1171) and the efforts of the indefatigable jurist Qadi al-Nu’man to compose his findings, compiled over the course of thirty years, into a single volume. Entitled the Da‘a'im al-Islam (The Pillars of Islam), al-Nu’man’s compilation gained wide acceptance as the officially promulgated Fatimid code. One of the main contributions of the Da'a'im is its formulation of the doctrine of walaya or devotion to the lmam. In Ismaili doctrine it served to define the paradigm of religious and political leadership. Wadad al-Qadi has argued that by delineating the religio-political doctrines of the Ismaili creed, the Da'a'im served not just as a compendium of the divine code, but as the civil constitution of the Fatimid state as well.

Several contextual elements serve to illuminate the juridical outlook of al-Nu’man. To begin with, the Qadi was writing after the solid entrenchment of most Sunni and Shi’i schools of law. Thus, he not only had their collected teachings at his disposal, but was also faced with taking them into account, be it to confirm or to discredit their findings. To cite one example, on the subject of ritual purity, a point of contention between Sunni and Shi’i scholars, al-Nu’man relates both sets of arguments in his work and approves of both. However, contrary to both Twelver Shi’i and Sunni systems of jurisprudence which accept independent judgement by jurists to deal with legal queries that remain unresolved after searching the Qur’an, the Prophetic. traditions and, for the Shi’i, those of the early Imams, al-Nu’man maintains that all such issues are to be directed to the living Ismaili lmam since only he has the authoritative knowledge to interpret divine revelations. 

Wilferd Madelung, a prominent scholar of Shi’i and Ismaili Studies, has postulated that Ismaili law appears in the writings of al-Nu’man, both materially and theoretically, as a compromise between Ithna’ashari and Zaydi systems of law. Like the Zaydis, al-Nu’man accepts the authority of all members of the Prophet’s family, the ahl al-bayt, in addition to that of the Imams. But in line with the Twelver Shi’i jurists, in his Ismaili system the Imams have a superior authority to that of the other ‘Alids. The Qadi al-Nu’man’s receptivity to other schools of Islamic thought is further confirmed by the 4th/10th century historian al-Muqaddasi who. after studying the Da'a'im, noted a number of Mu’tazili influences in it.

lsmail K. Poonawala has aptly summed up the ecumenical character of the Da'a'im in the following words: “It is fair to state that the juridical and legal system constructed in the Da'a'im, both for the use of the state and the Ismaili community, was oriented towards reconciliation of the Shi’i Isma’ili doctrine with that of the Sunni Maliki madhab of North Africa.” The Qadi al-N’uman’s incorporation of select teachings from a variety of legal traditions, as well as the active role of law-maker ascribed to the living Imam in Ismaili thought created, in principle, the infrastructure for a more cohesive society under the Fatimids. It is worth noting that the Fatimids never imposed Ismaili laws on the Sunni community.

In the medieval period, individual questions were put to religious scholars and answered in the form of a fatwa. Although the issuance of the fatwas belonged, initially, in the domain of private citizens and was free from any sort of government control, already in the Umayyad times (41-132/661-750). muftis served local governors as legal consultants. The judges, although government appointees, were powerful enough to all but openly defy coercion by the state. Many an ‘aIim rose to oppose temporal powers by his rulings. For instance, al-Hasan al-Basri (d. 110/728) was critical of the Umayyad Caliph Umar II (d. 101/720), and Ahmad bin Hanbal, the jurist, defied the Abbasid Caliph al-Ma’mun (d.218/833) when the latter sought to universalise a particular doctrine of Islam.

The emergence of Islamic reformist movements in the latter part of the 20th century is the topic of numerous writings. The re-casting of religion as one of the defining components of Muslim identity in this period has served to revive discussions of Islamic jurisprudence and to wrest its boundaries from obsolescence. Faced with the perils of modernity and Westernisation, Muslims all over the world are looking to their respective sources of guidance for answers. Increasingly, as the constituency of Islamic politics has widened to incorporate traditional as well as modernised sectors of society, religious authorities have been hard pressed to accommodate conflicting needs. In the Islamic Republic of Iran, for instance, the traditionist interpretations concerning divorce laws are being reformulated to enhance the rights of women to alimony, child custody, etc).


The Islamisation of the political and cultural discourses in the modem period, and the growing familiarity of Muslims at large with feminist ideas and human rights principles, means that laws affecting women, including those of Islamic provenance, are increasingly evaluated in terms of their conformity with the modem norm of male-female equality. Exemplary in this regard are the works of Fatima Mernissi, a Morrocan scholar, who has become one of the most vigorous advocates of the proposition that male attitudes rather than authentic Islamic teachings stand in the way of women’s equality).


Abdulaziz Sachedina has recently asserted that “There are numerous ways of understanding the texts, the intent of the legislator, of drawing analogies, and of applying the rules of discretion and preference regarding certain points where there is no fixed and clearly defined text.” Empowered by such developments in the study of the shari’a, women are vigorously challenging its exigencies, mandate and spirit as opposed to their interpretations. In a recent study of the historical evolution of the representation of women in Islam, Barbara Stowasser has observed: “Each of the three groups - modernists, conservatives, and fundamentalists - has understood the Qur’an’s female images and models in different ways, and always in accordance with their own larger worldview and sociopolitical agenda. The interpretations thus symbolized larger ideas, while also contributing to their formation.”

In the 1940s, when asked whether according to the shari’a it is permitted to perform a post-mortem examination, Shaykh Hasanayn Muhammad Makhluf, the chief mufti of Egypt and member of the Supreme Council of Scholars at al-Azhar, engaged in complex reasoning to discover references (usually indirect) in the Qur’an, hadith and shari’a, to indicate that God and His Messenger gave preference to the promotion of health over religious obligations. Thus, rather than elaborating on the inviolability of the human body, Makhluf argued that because post-mortems are the primary means of learning about the internal anatomy of the body, and since knowledge of the human body cannot be gained from an animal’s body, they should be recognised as promoting human health.

With Islam in the forefront of political and social life in almost all Muslim countries, the permissibility of certain political strands within the domain of the shari’a has resumed its erstwhile urgency. One should be quick to remember that differing judgements regarding the legitimacy of dissent and opposition to oppressive rule, admonishing usurpers and submitting to unfair arbitration, have engaged the Islamic body politic since that fateful day in the year 37/657 when Mu’awiya rose to challenge the caliphate of the Imam ‘Ali and precipitated divisions in Islam.


In conclusion, it would be useful to return to the opening proposition of this study and bear in mind that historically, Islamic jurisprudence has developed in different contexts and in response to differing needs, and that it continues to respond to the changing exigencies of altered times.

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