Robinson and hallaq class notes
Write about Islamic jurisprudence
Sources of law – in order – Quran, Sunnah, Ijma, Qiyas, Ijtihad
QURAN
Muamalaat – dealings or interaction with beings
Some laws in the Quran were revealed over time in the form of abrogation –
every new revelation revealed a law that abrogated the last one e.g. the
abolition of wine drinking
Doctrine of ‘Tanjim’ – gradual revelation of law– wine drinking
Mutawatir version of the Quran was given precedence over the variant
versions of the Quran when Islamic law was being established by scholars
Hanafi believe that meanings from the variant versions of the Quran can be
used as well for law-making. Other schools do not agree with this.
A later verse can in some matters abrogate an earlier verse. One should
always follow the latest verse – Doctrine of Abrogation – related to Doctrine
of Tanjim
Some laws are general (Aam) while others are (Khaas)
Scholars ask if the verse of The Quran being used is to be taken literally or
metaphorically
Sunnah can or cannot abrogate the Quran – punishment for adultery
IJMA
Unanimous agreement
Imam Shafi’i – Mujtahidun and laymen
Imam Malik – companions of the Prophet
Imam Abu Hanifa – Mujtahidun only
QIYAS
A comparison is drawn between an original case to a new case, where a clear
cut ruling is not mentioned for the latter
Some scholars encourage the use of Qiyas while others do not claiming that
it stretches the line of argument too far
ISTIHSAN
Approving or deeming something preferable
Laws set in the Quran could be altered or changed to an extent to suit the
times and the situation of the society
Example – limiting of the theft punishment by Hz. Umar because of the
famine in his time
ISTISLAH
Taking into account the public interest
New laws could be introduced which had no basis in the Quran or Sunnah
Should not violate the larger objectives of Sharia
Example – unified text of the Holy Quran
ROBINSON
An introduction to Islam and Islamic law
No systematic law code in the Holy Quran
Quran does not give complete detail to detail guidance to Muslims on how to
fulfill their obligations – methods of praying and punishment
The Quran’s silence wasn’t a problem when the Prophet was alive but after
his demise it did give birth to multiple problems
Even the first 4 caliphs faced much criticisms and problems in their
interpretations of the Quran
In the Umayyad period – provincial governors appointed qadis to overlook
day-to-day judicial affairs – in charge of daily administration of justice
Qadis – pious Muslims – stuck with the Quran and Hadith as far as they
could – did resort to their personal opinions in places where the Quran and
Sunnah were silent or not clear enough - many of their decisions became
part of Islamic law
This led to the emergence of different law schools in the Abbasid period
Hanafi School of thought
Founded by Imam Abu Hanifa
Most liberal and flexible
Believed in analogical reasoning over weak traditions
Practical – when women can take off their hijab
Believed in the power of the Ijma to establish Islamic law – hadith = my
people will never agree on an error
Ijma – consensus by qualified jurists of a certain time
Official school of the Ottoman and Abbasid empires
Preferred istihsan – legal discretion
Was born in Kufa
Maliki School of thought
Founded by Imam Malik
Born in Medina
First is the Prophet’s word, then the companions’, then the Medinan values
Ijma – consensus of the people of Medina
Favored istislah – taking into account public interest
New laws can be introduced without them having a link to the Quran or
Sunnah as long as they aim to do no harm and offer no contradiction to any
laws set down by the Quran or Sunnah
Shafi’i School of thought
Founded by Imam Shafi’i
Redefined existing terms so as to lay down a strict hierarchy of authorities
First was the Quran, second was the Sunnah, third was the Ijma , and final
was the analogical reasoning or Qiyas
Ijma – agreement by the entire Muslim community – jurists and laymen
Did not approve of istislah and istihsan
Hanbali School of Thought
Founded by Imam Ahmad bin Hanbal
Student of Imam Shafi’i
Quran and Sunnah were primary sources of law
Texts were supposed to be understood literally
Four further sources of law were included as long as they did not contradict
the Quran and Sunnah – sayings of the Companions, sayings of individual
companions, zaif ahadith, and Qiyas
Sheikh Al-Mufid
Shi’ite scholar and jurist
The Quran and Shi’ite Sunnah were at the top
Argued that reason should be used to interpret texts if they appeared
somewhat contradictory
Ijma – consensus of the Islamic community as long as it corresponds to the
opinion of the Imam
Rejected the use of analogy
Points 3 and 5 are contradictory – Page 6 of 29
Sheikh Al-Murtada
Shi’ite scholar
Championed the authority of traditions (Sunnah)
Those traditions that are contrary to reason can be rejected
Those traditions with only one narrator can also be rejected – Sheikh At-
Taifa believed that a hadith with only one narrator could be accepted
Hudud Punishments
Based on the Quran and Sunnah
Rarely implemented in traditional Islamic societies
Serve as a deterrent and reminder of God’s wrath towards anti-social crimes
Prophet mentioned to avoid their use if any doubt existed thus the jurists
have laid down a strict criteria for them
Another form of punishment was the tazirat punishments – these were based
on legal discretion
Read through pages 10 and 11
HALLAQ
o For a text to be considered credible and authentic – it must be recurrent
o Recurrent – so many multiple transmissions must be present that it is
impossible for the transmitters to be joined together in a lie on such a large
scale
o 2 conditions for recurrence – must be conveyed from one generation to the
other + channels of transmission must be numerous + first class of
transmitters must have an understanding of what the Prophet said or did
o A text transmitted through fewer reports than are sufficient for “recurrent” is
referred to as “solitary”
o Abrogation – repeal, cancel out effects – one text repeals another
contradictory text that was revealed prior to it in time
Shar’i – Lawful
Categorized according to five norms
1. Category of the forbidden – haram
2. Obligatory
3. Recommended
4. Neutral
5. Disapproved
Consensus by the jurists and Muslim community - Ijma – is not based entirely on
reasoning – needs to be backed by evidence found in the Quran or Sunnah
Various types of Legal reasoning
Qiyas – analogy – most common and prominent
Istislah – public interest
Istihsan – juristic preference
Qiyas consists of the following:-
1. The new case that calls for an analogy
2. The original case that is being used in the reference – found in the revealed
texts or sanctioned by consensus
3. Ratio Legis – find the common between the two cases
4. Legal norm found in the original case that must be transported to the new
case
A method for discovering and evaluating the ratio is that of “suitability” –
Munasaba
Suitability’s goal – offer relevant ways of reasoning that serve the public
interest
Munasaba is performed independently - without the use of revealed texts
Based entirely on rationality – Munasaba
Istihsan – inference starts from revealed texts but the conclusion reached is
different from the one reached via Qiyas
Based either on consensus or on the principle of necessity
Istislah – reasoning that does not appear to be directly based on the texts
Reasoning is based on public interest
Five universal principles that underlie Shari’a
Protection of life
Mind
Religion
Property
Offspring
Pluralism – refers to Ijtihad
Employed by jurists to come to a conclusion
Gave Islam the opportunity to adapt and develop according to the different changes
faced by society
Madhab – a group of students, LEGISTs, judges, and jurists who had adopted the
doctrine of a particular leading jurist
Refers to the school of law as a whole as well
Refers to a group of jurists loyal and integral to a certain legal doctrine
