Philosophy of Muslim Law
Aditi Ghosh
10IP60002
Course Structure
• Module I: Introduction
• Nomenclature controversy
• Muslim law at variance
• History/Pre-Islamic Arabia
• Coming of Islam
• Module II: Development of Muslim law
• Who is Muslim?
• Development of Muslim law
• The Prophet
• Koran and Hadith
• Shariat and Fiqh
•
• Module III: Sources
• Sources of Muslim law – Primary & Secondary
•
• Module IV: Schools
• Sunni schools of Muslim law
• Shia Schools of Muslim law
Pre-Islamic Arabia
• Harsh climatic conditions
• Status of religion
• Status of women
In the midst of such adversities Muhammad
was born on 29th Aug 570 AD (Monday, the
12th Rabi-ul-Awwal) in Arabia.
Islam – ‘submission to the will of God’
5 pillars of Islam
• 1) the shahadah (monotheism),
• (2) daily prayers (salat),
• (3) fasting during Ramadan (sawm),
• (4) almsgiving (zakat), and
• (5) the pilgrimage to Mecca (hajj) at least once
in a lifetime.
Sources of Muslim Law
Shariah Sources
• Qur’an (the holy book – word of God)
• Hadith (Tradition)
• Ijma (consensus of Opinions)
• Customs and Usages
• Juristic deductions
– Qiyas (Analogy)
– Istihsan (Juristic equity and absolute good)
– Istislah (Public good)
– Istidlal (Process of hearing)
– Ijtihad and Taqlid (interpretation)
Extraneous Sources
• Legal Fiction
• Positive Legislation
• Custom
Qur’an – word of God
• 1st Source – contains verses
• Most revered, but needs interpretation –
difficult to understand
• Prophet - faced with legal problems – would
seek Divine guidance – answers received in
Divine revelation formed definite legal
element in Qur’an
Hadith or Sunnah – Traditions and practices of the Prophet
• Hadith – story of particular occurrence
• Sunnah – the rule of law deduced from it – model
behavioral practices of the prophet
• 3 categories -
Hadith Mutwatir (continuous)
Hadith Mashhoor (well known)
Hadith Ahad (isolated)
• Modern theories raised doubts as to the origin of
some of the traditions as not belonging to Prophet
and of late origin
Ijma – consensus of Opinions
• Consensus of opinion among the learned of the
community, concurrent opinion of Scholars
• Derives its authority from exts of Qur’an and
Sunnah
• Classified into 3 types –
Ijma of the Companions of the Prophet (universally
accepted)
Ijma of the jurists
Ijma of the people
• Modern critics hold it most important – it contains major
portion of the law
Requirements for validity of Ijma
• Shall not be conflicting with qur’an or Hadith
• One decided can’t be reopened by individual
jurists
• One Ijma may be reversed by a subsequent
one
• When jurists have expressed only 2 views, 3rd
view is inadmissible
Qiyas – Analogical deductions
• For cases not provided for in
Qur’an/Hadith/Ijma – to be sought by reason,
logic and opinion – analogical deduction
• Application of the laws of the text to cases
• Governed by reason of the text
• Not opinions merely based on whim
• Differences in opinion in acceptance of Qiyas.
Others..
• Sources originating from ‘equity and absolute good’-
Istihsan – preference - setting aside of analogy in the
presence of stronger source
Al-masalih al-mursalah – public interest
Istidlal – source derived from reason and logic – deduction
Istishab - permanency – presumption as to the
existency/non-existency of a thing – as it is – until disproved
• Ijtihad – interpretation – effort in arriving at rules from
various sources of law
• Taqlid – imitation – blindly following opinions without
scrutiny or understanding
Birth of Shia and Sunni sects
• Matter in issue leading to the division – Doctrine of Imamat - Position
of Iman v. prophethood and messengership
• Shias – the party associated with prophet-appointed Ali after
Prophet’s death - denied the principle of election of Imamat by the
people
- denied rightful succession of the 1st thee caliphs
- dissociation of secular and spiritualpowers
- approx. 5-10% of the Islamic community
• Sunnis – leader of Muslims is the Khalifa or caliph – ‘successor’ of the
Prophet – spiritual and temporal head
- Leader – a mortal possessing qualifications for election to the office
- Caliphate abolished in 1924 – Turkish Revolution
Schools of Muslim Law
SUNNI schools–
• Hanafi
• Maliki
• Shafii
• Hanbali
SHIA schools-
• The Imamiyah Shia or Ithna Ashriyah
• The Zaidiyah Shia
• Ismailiya Shia
Sunni School
The Hanafi School
• Founder – Imam Abu Hanifa
• Less reliance on traditions unless their authority is beyond any doubt;
• Greater reliance on Qiyas;
• A little extension of the scope of Ijma;
• Evolving the doctrine of Istihsan (Preference)-applying rule of law when
spl. circumstances demand
The School is followed in Syria, Lebanon, Turkey, Egypt, Afghanistan,
Pakistan, India etc.
The Maliki School
• Founder – Imam Malik
• Acceptance of tradition which were, in the opinion of Imam Malik,
authentic, even if the tradition carried the authority of only one narrator;
• Acceptance of practices of the people of Medina and of the sayings of the
companions of Prophet;
• Recourse to analogy (Qiyas) only in the absence of explicit text;
• Making use of a source unique to this school (al-masalih-al-mursalah-
public interest)
This School is predominant in Morocco, Algeria, Tunisia, Sudan, Bahrin,
Kuwait etc.
The Shafii School
• Founder – Imam Shafii
• Acceptance of the four sources of law;
• Rejects Istihsan (preference)and al-masalih-al-mursalah (Public
interest);
• Accept Istidlal
The School is followed in parts of Egypt, Africa Syria, Lebanon, Iraq, India,
Pakistan, China, Java, Jordan etc.
The Hanbali School
• More strict follower of traditions
• Restricted qiyas and ijma within narrow limits
• The foundation rests on :
The Koran
The Sunnah
The Ijma
Qiyas whenever necessay
• Least widespread
The School is followed in Soudi Arabia, Palestine, Syria, Iraq
etc.
Extinct Schools
• The Awzai School
• The Zahiri School
• The Tabari School
Shia Schools or Sects
• The Imamiyah Shia or Ithna Ashriyah
• The Zaidiyah Shia
• Ismailiya Shia
Shariat and Fiqh
• Law of Shariat – Doctrine of certitude – husn and qubh –
answers in sayings and deeds of the Prophet
• 5 qualifications – al-Akham-al -khamsah
• Shariat – doctrine of duties – ethical path to follow – laws
governing all human actions
- grades of approval and disapproval – farz, haraam,
mandub, makruh and ja’iz
• Fiqh – ‘intelligence’ – deals with only legal aspects – legal /
illegal
- independent exercise of intelligence in deciding a point of
law – Muslim jurists have defined the limits for free
interpretation
- divided into – roots, Usul and branches, Furu
Development of Muslim Law
• Period I – legislative period – AH 1 to 10
• Period II – AH 11 to Ummayads – period of
collection and interpretation
• Period III – Development of sunni schools
• Period IV – AH 200 to present day – period of
taqlid
Books referred
• Asaf AA Fayzee
• Khalid Rashid
