Fiqh

The word fiqh is an Arabic term meaning "deep understanding"^[7]: 470 or "full comprehension". Technically it refers to the body of Islamic law extracted from detailed Islamic sources (which are studied in the principles of Islamic jurisprudence) and the process of gaining knowledge of Islam through jurisprudence. The historian Ibn Khaldun describes fiqh as "knowledge of the rules of God which concern the actions of persons who own themselves connected to obey the law respecting what is required (wajib), sinful (haraam), recommended (mandūb), disapproved (makrūh), or neutral (mubah)".^[8] This definition is consistent amongst the jurists.

In Modern Standard Arabic, fiqh has also come to mean Islamic jurisprudence.^[9] It is not thus possible to speak of Chief Justice John Roberts as an expert in the common law fiqh of the United States, or of Egyptian legal scholar Abd El-Razzak El-Sanhuri as an expert in the civil law fiqh of Egypt.

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Principles of Islamic jurisprudence

Principles of Islamic jurisprudence

Principles of Islamic jurisprudence, also known as uṣūl al-fiqh, are traditional methodological principles used in Islamic jurisprudence (fiqh) for deriving the rulings of Islamic law (sharia).

Ibn Khaldun

Ibn Khaldun

Ibn Khaldun was an Arab sociologist, philosopher, and historian widely acknowledged to be one of the greatest social scientists of the Middle Ages, and considered by many to be the father of historiography, sociology, economics, and demography studies.

Mubah

Mubah

Mubāḥ is an Arabic word meaning "permitted", which has technical uses in Islamic law.

Modern Standard Arabic

Modern Standard Arabic

Modern Standard Arabic (MSA) or Modern Written Arabic (MWA), terms used mostly by linguists, is the variety of standardized, literary Arabic that developed in the Arab world in the late 19th and early 20th centuries; occasionally, it also refers to spoken Arabic that approximates this written standard. MSA is the language used in literature, academia, print and mass media, law and legislation, though it is generally not spoken as a first language, similar to Contemporary Latin. It is a pluricentric standard language taught throughout the Arab world in formal education, differing significantly from many vernacular varieties of Arabic that are commonly spoken as mother tongues in the area; these are only partially mutually intelligible with both MSA and with each other depending on their proximity in the Arabic dialect continuum.

Chief Justice of the United States

Chief Justice of the United States

The chief justice of the United States is the chief judge of the Supreme Court of the United States and the highest-ranking officer of the U.S. federal judiciary. Article II, Section 2, Clause 2 of the U.S. Constitution grants plenary power to the president of the United States to nominate, and with the advice and consent of the United States Senate, appoint "Judges of the supreme Court", who serve until they resign, retire, are impeached and convicted, or die. The existence of a chief justice is explicit in Article One, Section 3, Clause 6 which states that the chief justice shall preside on the impeachment trial of the president.

John Roberts

John Roberts

John Glover Roberts Jr. is an American lawyer and jurist who has served as the 17th chief justice of the United States since 2005. He has been described as having a conservative judicial philosophy but, above all, being an institutionalist. He has shown a willingness to work with the Supreme Court's liberal bloc, and, after the retirement of Anthony Kennedy in 2018, he has been regarded as the primary swing vote on the Court. However, Roberts is no longer regarded as the Court's median vote following the replacement of Ruth Bader Ginsburg by Amy Coney Barrett in 2020; Brett Kavanaugh is now considered to have this role.

Common law

Common law

In law, common law is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions.

United States

United States

The United States of America, commonly known as the United States or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territories, nine Minor Outlying Islands, and 326 Indian reservations. The United States is also in free association with three Pacific Island sovereign states: the Federated States of Micronesia, the Marshall Islands, and the Republic of Palau. It is the world's third-largest country by both land and total area. It shares land borders with Canada to its north and with Mexico to its south and has maritime borders with the Bahamas, Cuba, Russia, and other nations. With a population of over 333 million, it is the most populous country in the Americas and the third most populous in the world. The national capital of the United States is Washington, D.C. and its most populous city and principal financial center is New York City.

Egypt

Egypt

Egypt, officially the Arab Republic of Egypt, is a transcontinental country spanning the northeast corner of Africa and southwest corner of Asia via a land bridge formed by the Sinai Peninsula. It is bordered by the Mediterranean Sea to the north, the Gaza Strip of Palestine and Israel to the northeast, the Red Sea to the east, Sudan to the south, and Libya to the west. The Gulf of Aqaba in the northeast separates Egypt from Jordan and Saudi Arabia. Cairo is the capital and largest city of Egypt, while Alexandria, the second-largest city, is an important industrial and tourist hub at the Mediterranean coast. At approximately 100 million inhabitants, Egypt is the 14th-most populated country in the world.

Abd El-Razzak El-Sanhuri

Abd El-Razzak El-Sanhuri

Abd el-Razzak el-Sanhuri or ‘Abd al-Razzāq al-Sanhūrī was an Egyptian jurist, law professor, judge and politician. He is best remembered as the primary author of the revised Egyptian Civil Code of 1948. Al-Sanhūrī's multi-volume masterwork, Al-Wasīṭ fī sharḥ al-qānūn al-madanī al-jadīd, a comprehensive commentary on the Egyptian Civil Code of 1948 and on civil law more generally, published during 1952-1970, remains in print and is highly regarded in legal and juristic professions throughout the Arab world. Al-Sanhūrī was Minister of Education in the Cabinet of Mahmoud El Nokrashy Pasha from 1945-1946 and again from late 1946 to 1948. He was subsequently appointed as President of the Egyptian Council of State. Al-Sanhūrī's tenure as President of the Council of State lasted until 1954, when he was dismissed by coercion. He has been described as "a personality of unique embroidery, never to reoccur". An avowed advocate of Arab unity, al-Sanhūrī was notably active in the legal and institutional reforms of different Arab countries throughout most of his adult life. He presided over a committee which drafted the Iraqi Civil Code, while at the same time serving as dean of the Baghdad Law School, from 1935 to 1937. He also contributed to a drafting project of a Syrian civil code throughout the early 1940s. Al-Sanhūrī also drafted various public and private laws of Kuwait, Sudan, Libya and Bahrain.

According to Sunni Islamic history, Sunni law followed a chronological path of:

• Allah-> Muhammad-> Companions-> Followers-> Fiqh.^[10]

The commands and prohibitions chosen by God were revealed through the agency of the Prophet in both the Quran and the Sunnah (words, deeds, and examples of the Prophet passed down as hadith). The first Muslims (the Sahabah or Companions) heard and obeyed, and passed this essence of Islam^[11] to succeeding generations (Tabi'un and Tabi' al-Tabi'in or successors/followers and successors of successors), as Muslims and Islam spread from West Arabia to the conquered lands north, east, and west,^{[12][Note 1]} where it was systematized and elaborated^[11]

The history of Islamic jurisprudence is "customarily divided into eight periods":^[14]

• the first period ending with the death of Muhammad in 11 AH.^[14]
• second period "characterized by personal interpretations" of the canon by the Sahabah or companions of Muhammad, lasting until 50 AH.^[14]
• from 50 AH until the early second century AH there was competition between "a traditionalist approach to jurisprudence" in western Arabia where Islam was revealed and a "rationalist approach in Iraq".^[14]
• the "golden age of classical Islamic jurisprudence" from the "early second to the mid-fourth century when the eight "most significant" schools of Sunni and Shi'i jurisprudence emerged."^[14]
• from the mid-fourth century to mid-seventh AH Islamic jurisprudence was "limited to elaborations within the main juristic schools".^[14]
• the "dark age" of Islamic jurisprudence stretched from the fall of Baghdad in the mid-seventh AH (1258 CE) to 1293 AH/1876 CE.
• In 1293 AH (1876 CE) the Ottomans codified Hanafi jurisprudence in the Majallah el-Ahkam-i-Adliya. Several "juristic revival movements" influenced by "exposure to Western legal and technological progress" followed until the mid-20th century CE. Muhammad Abduh and Abd El-Razzak El-Sanhuri were products of this era.^[14]However, Abduh and El-Sanhuri were modernists. Note that, 19th century Ottoman Shariah Code was built on the views of the Hanafi school.
• The most recent era has been that of the "Islamic revival", which has been "predicated on rejection of Western social and legal advances" and the development of specifically Islamic states, social sciences, economics, and finance.^[14]

The formative period of Islamic jurisprudence stretches back to the time of the early Muslim communities. In this period, jurists were more concerned with issues of authority and teaching than with theory and methodology.^[15]

Progress in theory and methodology happened with the coming of the early Muslim jurist Muhammad ibn Idris ash-Shafi`i (767–820), who codified the basic principles of Islamic jurisprudence in his book ar-Risālah. The book details the four roots of law (Qur'an, Sunnah, ijma, and qiyas) while specifying that the primary Islamic texts (the Qur'an and the hadith) be understood according to objective rules of interpretation derived from scientific study of the Arabic language.^[16]

Secondary sources of law were developed and refined over the subsequent centuries, consisting primarily of juristic preference (istihsan), laws of the previous prophets (shara man qablana), continuity (istishab), extended analogy (maslaha mursala), blocking the means (sadd al-dhari'ah), local customs (urf), and sayings of a companion of the Prophet (qawl al-sahabi).^[17]

Diagram of early scholars

Islamic schools of thought

The Quran set the rights, responsibilities, and rules for people and societies to adhere to, such as dealing in interest. Muhammad then provided an example, which is recorded in the hadith books, showing people how he practically implemented these rules in a society. After the passing of Muhammad, there was a need for jurists, to decide on new legal matters where there is no such ruling in the Quran or the Hadith, example of Islamic prophet Muhammad regarding a similar case.^[18][19]

In the years proceeding Muhammad, the community in Madina continued to use the same rules. People were familiar with the practice of Muhammad and therefore continued to use the same rules.

The scholars appearing in the diagram below were taught by Muhammad's companions, many of whom settled in Madina.^[20] Muwatta^[21] by Malik ibn Anas was written as a consensus of the opinion, of these scholars.^[22][23][24] The Muwatta^[21] by Malik ibn Anas quotes 13 hadiths from Imam Jafar al-Sadiq.^[25] Aisha also taught her nephew Urwah ibn Zubayr. He then taught his son Hisham ibn Urwah, who was the main teacher of Malik ibn Anas whose views many Sunni follow and also taught Jafar al-Sadiq. Qasim ibn Muhammad ibn Abi Bakr, Hisham ibn Urwah and Muhammad al-Baqir taught Zayd ibn Ali, Jafar al-Sadiq, Abu Hanifa, and Malik ibn Anas.

Imam Jafar al-Sadiq, Imam Abu Hanifa and Malik ibn Anas worked together in Al-Masjid an-Nabawi in Medina. Along with Qasim ibn Muhammad ibn Abi Bakr, Muhammad al-Baqir, Zayd ibn Ali and over 70 other leading jurists and scholars.

Al-Shafi‘i was taught by Malik ibn Anas. Ahmad ibn Hanbal was taught by Al-Shafi‘i. Muhammad al-Bukhari travelled everywhere collecting hadith and his father Ismail ibn Ibrahim was a student of Malik ibn Anas.^{[26][27][28][29][30]}

In the books actually written by these original jurists and scholars, there are very few theological and judicial differences between them. Imam Ahmad rejected the writing down and codifying of the religious rulings he gave. They knew that they might have fallen into error in some of their judgements and stated this clearly. They never introduced their rulings by saying, "Here, this judgement is the judgement of God and His prophet."^[31] There is also very little text actually written down by Jafar al-Sadiq himself. They all give priority to the Qur'an and the Hadith (the practice of Muhammad). They felt that the Quran and the Hadith, the example of Muhammad provided people with almost everything they needed. "This day I have perfected for you your religion and completed My favor upon you and have approved for you Islam as religion" Quran 5:3.^[32]

These scholars did not distinguish between each other. They were not Sunni or Shia. They felt that they were following the religion of Abraham as described in the Quran "Say: Allah speaks the truth; so follow the religion of Abraham, the upright one. And he was not one of the polytheists" (Qur'an 3:95).

Most of the differences are regarding Sharia laws devised through Ijtihad where there is no such ruling in the Quran or the Hadiths of Islamic prophet Muhammad regarding a similar case.^[31] As these jurists went to new areas, they were pragmatic and continued to use the same ruling as was given in that area during pre-Islamic times, if the population felt comfortable with it, it was just and they used Ijtihad to deduce that it did not conflict with the Quran or the Hadith. As explained in the Muwatta^[21] by Malik ibn Anas.^[22] This made it easier for the different communities to integrate into the Islamic State and assisted in the quick expansion of the Islamic State.

To reduce the divergence, ash-Shafi'i proposed giving priority to the Qur'an and the Hadith (the practice of Muhammad) and only then look at the consensus of the Muslim jurists (ijma) and analogical reasoning (qiyas).^[22] This then resulted in jurists like Muhammad al-Bukhari^[33] dedicating their lives to the collection of the correct Hadith, in books like Sahih al-Bukhari. Sahih translates as authentic or correct. They also felt that Muhammad's judgement was more impartial and better than their own.

These original jurists and scholars also acted as a counterbalance to the rulers. When they saw injustice, all these scholars spoke out against it. As the state expanded outside Madina, the rights of the different communities, as they were constituted in the Constitution of Medina still applied. The Quran also gave additional rights to the citizens of the state and these rights were also applied. Ali, Hassan and Hussein ibn Ali gave their allegiance to the first three caliphs because they abided by these conditions. Later Ali the fourth caliph wrote in a letter "I did not approach the people to get their oath of allegiance but they came to me with their desire to make me their Amir (ruler). I did not extend my hands towards them so that they might swear the oath of allegiance to me but they themselves extended their hands towards me".^[34] But later as fate would have it (Predestination in Islam) when Yazid I, an oppressive ruler took power, Hussein ibn Ali the grandson of Muhammad felt that it was a test from God for him and his duty to confront him. Then Abd Allah ibn al-Zubayr, Qasim ibn Muhammad ibn Abi Bakr's cousin confronted the Umayyad rulers after Hussein ibn Ali was betrayed by the people of Kufa and killed by Syrian Roman Army now under the control of the Yazid I the Umayyad ruler.^[35] Abd Allah ibn al-Zubayr then took on the Umayyads and expelled their forces from Hijaz and Iraq. But then his forces were depleted in Iraq, trying to stop the Khawarij. The Umayyads then moved in. After a lengthy campaign, in his last hour Abd Allah ibn al-Zubayr asked his mother Asma' bint Abu Bakr the daughter of Abu Bakr the first caliph for advice. Asma' bint Abu Bakr replied to her son, she said:^[36] "You know better in your own self, that if you are upon the truth and you are calling towards the truth go forth, for people more honourable than you have been killed and if you are not upon the truth, then what an evil son you are and you have destroyed yourself and those who are with you. If you say, that if you are upon the truth and you will be killed at the hands of others, then you will not truly be free". Abd Allah ibn al-Zubayr left and was later also killed and crucified by the Syrian Roman Army now under the control of the Umayyads and led by Hajjaj. Muhammad ibn Abi Bakr the son of Abu Bakr the first caliph and raised by Ali the fourth caliph was also killed by the Umayyads.^[37] Aisha then raised and taught her son Qasim ibn Muhammad ibn Abi Bakr who later taught his grandson Jafar al-Sadiq.

During the early Umayyad period, there was more community involvement. The Quran and Muhammad's example was the main source of law after which the community decided. If it worked for the community, was just and did not conflict with the Quran and the example of Muhammad, it was accepted. This made it easier for the different communities, with Roman, Persian, Central Asia and North African backgrounds to integrate into the Islamic State and that assisted in the quick expansion of the Islamic State. The scholars in Madina were consulted on the more complex judicial issues. The Sharia and the official more centralized schools of fiqh developed later, during the time of the Abbasids.^[38]

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Sharia

Sharia

Sharia is a body of religious law that forms a part of the Islamic tradition. It is derived from the religious precepts of Islam and is based on the sacred scriptures of Islam, particularly the Quran and the Hadith. In Arabic, the term sharīʿah refers to God's immutable divine law and is contrasted with fiqh, which refers to its human scholarly interpretations. The manner of its application in modern times has been a subject of dispute between Muslim fundamentalists and modernists.

Allah

Allah

Allah is the common Arabic word for God. In the English language, the word generally refers to God in Islam. The word is thought to be derived by contraction from al-ilāh, which means "the god", and is linguistically related to the Aramaic words Elah and Syriac ܐܲܠܵܗܵܐ (ʼAlāhā) and the Hebrew word El (Elohim) for God.

Muhammad

Muhammad

Muhammad was an Arab religious, social, and political leader and the founder of Islam. According to Islamic doctrine, he was a prophet divinely inspired to preach and confirm the monotheistic teachings of Adam, Abraham, Moses, Jesus, and other prophets. He is believed to be the Seal of the Prophets within Islam. Muhammad united Arabia into a single Muslim polity, with the Quran as well as his teachings and practices forming the basis of Islamic religious belief.

Hadith

Hadith

Ḥadīth or Athar refers to what most Muslims and the mainstream schools of Islamic thought, believe to be a record of the words, actions, and the silent approval of the Islamic prophet Muhammad as transmitted through chains of narrators. In other words, the ḥadīth are transmitted reports attributed to what Muhammad said and did.

Tabi'un

Tabi'un

The tābiʿūn, "followers" or "successors", are the generation of Muslims who followed the companions (ṣaḥāba) of the Islamic prophet Muhammad, and thus received their teachings secondhand. A tābiʿ knew at least one ṣaḥābī. As such, they played an important part in the development of Islamic thought and knowledge, and in the political development of the early caliphate.

Tabi' al-Tabi'in

Tabi' al-Tabi'in

The Tābiʿū al-Tābʿīn is the generation after the Tābi‘ūn in Islam.

Muhammad in Islam

Muhammad in Islam

Muḥammad bin ʿAbd Allāh bin ʿAbd al-Muṭṭalib bin Hāshim is believed to be the seal of the messengers and prophets of God in all the main branches of Islam. Muslims believe that the Quran, the central religious text of Islam, was revealed to Muhammad by God, and that Muhammad was sent to restore Islam, which they believe did not originate with Muhammad but is the true unaltered original monotheistic faith of Adam, Abraham, Moses, Jesus, and other prophets. The religious, social, and political tenets that Muhammad established with the Quran became the foundation of Islam and the Muslim world.

Siege of Baghdad (1258)

Siege of Baghdad (1258)

The siege of Baghdad was a siege that took place in Baghdad in 1258, lasting for 13 days from January 29, 1258 until February 10, 1258. The siege, laid by Ilkhanate Mongol forces and allied troops, involved the investment, capture, and sack of Baghdad, which was the capital of the Abbasid Caliphate at that time. The Mongols were under the command of Hulagu Khan, brother of the khagan Möngke Khan, who had intended to further extend his rule into Mesopotamia but not to directly overthrow the Caliphate. Möngke, however, had instructed Hulagu to attack Baghdad if the Caliph Al-Musta'sim refused Mongol demands for his continued submission to the khagan and the payment of tribute in the form of military support for Mongol forces in Persia.

Mecelle

Mecelle

The Mecelle was the civil code of the Ottoman Empire in the late 19th and early 20th century. It was the first attempt to codify a part of the Sharia-based law of an Islamic state.

Muhammad Abduh

Muhammad Abduh

Muḥammad ʿAbduh was an Egyptian Islamic scholar, journalist, teacher, author, editor, judge, and Grand Mufti of Egypt. He was a central figure of the Arab Nahḍa and Islamic Modernism in the late 19th and early 20th centuries.

Abd El-Razzak El-Sanhuri

Abd El-Razzak El-Sanhuri

Abd el-Razzak el-Sanhuri or ‘Abd al-Razzāq al-Sanhūrī was an Egyptian jurist, law professor, judge and politician. He is best remembered as the primary author of the revised Egyptian Civil Code of 1948. Al-Sanhūrī's multi-volume masterwork, Al-Wasīṭ fī sharḥ al-qānūn al-madanī al-jadīd, a comprehensive commentary on the Egyptian Civil Code of 1948 and on civil law more generally, published during 1952-1970, remains in print and is highly regarded in legal and juristic professions throughout the Arab world. Al-Sanhūrī was Minister of Education in the Cabinet of Mahmoud El Nokrashy Pasha from 1945-1946 and again from late 1946 to 1948. He was subsequently appointed as President of the Egyptian Council of State. Al-Sanhūrī's tenure as President of the Council of State lasted until 1954, when he was dismissed by coercion. He has been described as "a personality of unique embroidery, never to reoccur". An avowed advocate of Arab unity, al-Sanhūrī was notably active in the legal and institutional reforms of different Arab countries throughout most of his adult life. He presided over a committee which drafted the Iraqi Civil Code, while at the same time serving as dean of the Baghdad Law School, from 1935 to 1937. He also contributed to a drafting project of a Syrian civil code throughout the early 1940s. Al-Sanhūrī also drafted various public and private laws of Kuwait, Sudan, Libya and Bahrain.

Legal systems of the world

The sources of sharia in order of importance are
Primary sources

1. Qur'an
2. Hadith

Secondary sources

3. Ijma, i.e. collective reasoning and consensus amongst authoritative Muslims of a particular generation, and its interpretation by Islamic scholars.

4. Ijtihad, i.e. independent legal reasoning by Islamic jurists^[39][40]

Majority of Sunni Muslims view Qiyas as a central Pillar of Ijtihad.^[40] On the other hand; Zahirites, Ahmad ibn Hanbal, Al-Bukhari, early Hanbalites, etc. rejected Qiyas amongst the Sunnis. Similarly, the Shi’a jurists almost unanimously reject both pure reason and analogical reason; viewing both these methods as subjective.^[41][42][43]

The Qur'an gives clear instructions on many issues, such as how to perform the ritual purification (wudu) before the obligatory daily prayers (salat). On other issues, for example, the Qur'an states one needs to engage in daily prayers (salat) and fast (sawm) during the month of Ramadan but further instructions and details on how to perform these duties can be found in the traditions of Muhammad, so Qur'an and Sunnah are in most cases the basis for (Shariah).

Some topics are without precedent in Islam's early period. In those cases, Muslim jurists (Fuqaha) try to arrive at conclusions by other means. Sunni jurists use historical consensus of the community (Ijma); a majority in the modern era also use analogy (Qiyas) and weigh the harms and benefits of new topics (Istislah), and a plurality utilizes juristic preference (Istihsan). The conclusions arrived at with the aid of these additional tools constitute a wide array of laws, and its application is called fiqh. Thus, in contrast to the sharia, fiqh is not regarded as sacred and the schools of thought have differing views on its details, without viewing other conclusions as sacrilegious. This division of interpretation in more detailed issues has resulted in different schools of thought (madh'hab).

This wider concept of Islamic jurisprudence is the source of a range of laws in different topics that guide Muslims in everyday life.

Component categories

Islamic jurisprudence (fiqh) covers two main areas:

1. Rules in relation to actions, and,
2. Rules in relation to circumstances surrounding actions.

These types of rules can also fall into two groups:

1. Worship (Ibadaat)
2. Dealings and transactions (with people) (Mu`amalaat)

Rules in relation to actions ('amaliyya — عملية) or "decision types" comprise:

1. Obligation (fardh)
2. Recommendation (mustahabb)
3. Permissibility (mubah)
4. Disrecommendation (makrooh)
5. Prohibition (haraam)

Rules in relation to circumstances (wadia') comprise:

1. Condition (shart)
2. Cause (sabab)
3. Preventor (mani)
4. Permit / Enforced (rukhsah, azeemah)
5. Valid / Corrupt / Invalid (sahih, fasid, batil)
6. In time / Deferred / Repeat (adaa, qadaa, i'ada)

Methodologies of jurisprudence

The modus operandi of the Muslim jurist is known as usul al-fiqh ("principles of jurisprudence").

There are different approaches to the methodology used in jurisprudence to derive Islamic rulings from the primary sources of sharia (Islamic law). The main methodologies are those of the Sunni, Shi'a and Ibadi denominations. While both Sunni and Shi'ite (Shia) are divided into smaller sub-schools, the differences among the Shi'ite schools is considerably greater. Ibadites only follow a single school without divisions.

Fatawa

While using court decisions as legal precedents and case law are central to Western law, the importance of the institution of fatawa (non-binding answers by Islamic legal scholars to legal questions) has been called "central to the development" of Islamic jurisprudence.^[44] This is in part because of a "vacuum" in the other source of Islamic law, qada` (legal rulings by state appointed Islamic judges) after the fall of the last caliphate the Ottoman Empire.^[14] While the practice in Islam dates back to the time of Muhammad, according to at least one source (Muhammad El-Gamal), it is "modeled after the Roman system of responsa," and gives the questioner "decisive primary-mover advantage in choosing the question and its wording."^[14]

Arguments for and against reform

Each school (madhhab) reflects a unique al-urf or culture (a cultural practice that was influenced by traditions), that the classical jurists themselves lived in, when rulings were made. Some suggest that the discipline of isnad, which developed to validate hadith made it relatively easy to record and validate also the rulings of jurists. This, in turn, made them far easier to imitate (taqlid) than to challenge in new contexts. The argument is, the schools have been more or less frozen for centuries, and reflect a culture that simply no longer exists. Traditional scholars hold that religion is there to regulate human behavior and nurture people's moral side and since human nature has not fundamentally changed since the beginning of Islam a call to modernize the religion is essentially one to relax all laws and institutions.

Early shariah had a much more flexible character, and some modern Muslim scholars believe that it should be renewed, and that the classical jurists should lose special status. This would require formulating a new fiqh suitable for the modern world, e.g. as proposed by advocates of the Islamization of knowledge, which would deal with the modern context. This modernization is opposed by most conservative ulema. Traditional scholars hold that the laws are contextual and consider circumstance such as time, place and culture, the principles they are based upon are universal such as justice, equality and respect. Many Muslim scholars argue that even though technology may have advanced, the fundamentals of human life have not.

Fields of jurisprudence

Schools of jurisprudence

There are several schools of fiqh thought (Arabic: مذهب maḏhab; pl. مذاهب maḏāhib)

Map of the Muslim world with the main madh'habs.

The schools of Sunni Islam are each named by students of the classical jurist who taught them. The Sunni schools (and where they are commonly found) are

• Hanafi (Turkey, the Balkans, the Levant, Central Asia, Indian subcontinent, China, Alexandria, Egypt, and Russia's Muslim community)
• Maliki (North Africa, West Africa and Eastern Arabia#Religion)
• Shafi'i (Kurdistan, Indonesia, Malaysia, Brunei, Cairo, East Africa, Southern Yemen, and southern parts of India)
• Hanbali (Saudi Arabia) see Wahhabism
• Ahl-i Hadith
• Zahiri (minority communities in Morocco and Pakistan)
• Jariri, Laythi, Awza'i, Thawri, and Qurtubi no longer exist.

The schools of Shia Islam comprise:

• Ja'fari (Twelver Shia: Iran, Azerbaijan, Iraq, Lebanon, etc.)
• Isma'ili (minority communities in Central Asia, Levant, India, and Pakistan)
• Zaydi (Northern Yemen)

Entirely separate from both the Sunni and Shia traditions, Khawarij Islam has evolved its own distinct school.

• Ibadi (Oman)

These schools share many of their rulings, but differ on the particular hadiths they accept as authentic and the weight they give to analogy or reason (qiyas) in deciding difficulties.

The relationship between (at least the Sunni) schools of jurisprudence and the conflict between the unity of the Shariah and the diversity of the schools, was expressed by the 12th century Hanafi scholar Abu Hafs Umar an-Nasafi, who wrote: `Our school is correct with the possibility of error, and another school is in error with the possibility of being correct.”^[45]

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Principles of Islamic jurisprudence

Principles of Islamic jurisprudence

Principles of Islamic jurisprudence, also known as uṣūl al-fiqh, are traditional methodological principles used in Islamic jurisprudence (fiqh) for deriving the rulings of Islamic law (sharia).

List of national legal systems

List of national legal systems

The contemporary national legal systems are generally based on one of four basic systems: civil law, common law, statutory law, religious law or combinations of these. However, the legal system of each country is shaped by its unique history and so incorporates individual variations. The science that studies law at the level of legal systems is called comparative law.

Hadith

Hadith

Ḥadīth or Athar refers to what most Muslims and the mainstream schools of Islamic thought, believe to be a record of the words, actions, and the silent approval of the Islamic prophet Muhammad as transmitted through chains of narrators. In other words, the ḥadīth are transmitted reports attributed to what Muhammad said and did.

Ijma

Ijma

Ijmāʿ is an Arabic term referring to the consensus or agreement of the Islamic community on a point of Islamic law. Sunni Muslims regard ijmā' as one of the secondary sources of Sharia law, after the Qur'an, and the Sunnah. Exactly what group should represent the Muslim community in reaching the consensus is not agreed on by the various schools of Islamic jurisprudence. Some believe it should be the Sahaba only; others the consensus of the Salaf ; or the consensus of Islamic lawyers, the jurists and scholars of the Muslim world, i.e. scholarly consensus; or the consensus of all the Muslim world, both scholars and lay people. The opposite of ijma is called ikhtilaf.

Ijtihad

Ijtihad

Ijtihad is an Islamic legal term referring to independent reasoning by an expert in Islamic law, or the thorough exertion of a jurist's mental faculty in finding a solution to a legal question. It is contrasted with taqlid. According to classical Sunni theory, ijtihad requires expertise in the Arabic language, theology, revealed texts, and principles of jurisprudence, and is not employed where authentic and authoritative texts are considered unambiguous with regard to the question, or where there is an existing scholarly consensus (ijma). Ijtihad is considered to be a religious duty for those qualified to perform it. An Islamic scholar who is qualified to perform ijtihad is called as a "mujtahid".

Qiyas

Qiyas

In Islamic jurisprudence, qiyas is the process of deductive analogy in which the teachings of the hadith are compared and contrasted with those of the Quran, in order to apply a known injunction (nass) to a new circumstance and create a new injunction. Here the ruling of the Sunnah and the Quran may be used as a means to solve or provide a response to a new problem that may arise. This, however, is only the case providing that the set precedent or paradigm and the new problem that has come about will share operative causes. The ʿillah is the specific set of circumstances that trigger a certain law into action. An example of the use of qiyās is the case of the ban on selling or buying of goods after the last call for Friday prayers until the end of the prayer stated in the Quran 62:9. By analogy this prohibition is extended to other transactions and activities such as agricultural work and administration. Among Sunni Muslims, Qiyas has been accepted as a secondary source of Sharia law along with Ijmāʿ, after the primary sources of the Quran, and the Sunnah.

Ahmad ibn Hanbal

Ahmad ibn Hanbal

Ahmad ibn Hanbal al-Dhuhli, was a Muslim jurist, theologian, ascetic, hadith traditionist, and founder of the Hanbali school of Sunni jurisprudence — one of the four major orthodox legal schools of Sunni Islam. The most highly influential and active scholar during his lifetime, Ibn Hanbal went on to become "one of the most venerated" intellectual figures in Islamic history, who has had a "profound influence affecting almost every area of" the traditionalist perspective within Sunni Islam. One of the foremost classical proponents of relying on scriptural sources as the basis for Sunni Islamic law and way of life, Ibn Hanbal compiled one of the most important Sunni hadith collections, the Musnad, which has continued to exercise considerable influence in the field of hadith studies up to the present time.

Shia Islam

Shia Islam

Shīʿa Islam, otherwise known as Shīʿism or as Shīʿite or Shīʿī Islam, is the second-largest branch of Islam. It holds that the Islamic prophet Muhammad designated ʿAlī ibn Abī Ṭālib as his successor (khalīfa) and the Imam after him, most notably at the event of Ghadir Khumm, but was prevented from succeeding Muhammad as the leader of the Muslims as a result of the choice made by some of Muhammad's other companions (ṣaḥāba) at Saqifah. This view primarily contrasts with that of Sunnī Islam, whose adherents believe that Muhammad did not appoint a successor before his death and consider Abū Bakr, who was appointed caliph by a group of senior Muslims at Saqifah, to be the first rightful (rāshidūn) caliph after Muhammad. Adherents of Shīʿa Islam are called Shīʿa Muslims, Shīʿites, or simply Shīʿa, Shia, or Shīʿīs.

Wudu

Wudu

Wuḍūʾ is the Islamic procedure for cleansing parts of the body, a type of ritual purification, or ablution. The 4 Fardh (Mandatory) acts of Wudu consists of washing the face, arms, then wiping the head and the feet with water.

Ramadan (calendar month)

Ramadan (calendar month)

Ramadan is the ninth month of the Islamic calendar, and the month in which the Quran is believed to be revealed to the Islamic prophet Muhammad.

A number of important legal institutions were developed by Muslim jurists during the classical period of Islam, known as the Islamic Golden Age. One such institution was the Hawala, an early informal value transfer system, which is mentioned in texts of Islamic jurisprudence as early as the 8th century. Hawala itself later influenced the development of the agency in common law and in civil laws such as the aval in French law and the avallo in Italian law.^[46]

The Waqf in Islamic law, which developed during the 7th–9th centuries, bears a notable resemblance to the trusts in the English trust law.^[47] For example, every Waqf was required to have a waqif (settlor), mutawillis (trustee), qadi (judge) and beneficiaries.^[48] The trust law developed in England at the time of the Crusades, during the 12th and 13th centuries, was introduced by Crusaders who may have been influenced by the Waqf institutions they came across in the Middle East.^[49][50]

In classical Islamic jurisprudence, litigants in court may obtain notarized statements from between three and twelve witnesses. When the statements of all witnesses are consistent, the notaries will certify their unanimous testimony in a legal document, which may be used to support the litigant's claim.^[51] The notaries serve to free the judge from the time-consuming task of hearing the testimony of each eyewitness himself, and their documents serve to legally authenticate each oral testimony.^[52] The Maliki school requires two notaries to collect a minimum of twelve eyewitness statements in certain legal cases, including those involving unregistered marriages and land disputes.^[53][54] John Makdisi has compared this group of twelve witness statements, known as a lafif, to English Common Law jury trials under Henry II, surmising a link between the king’s reforms and the legal system of the Kingdom of Sicily. The island had previously been ruled by various Islamic dynasties.^[55][56]

Several other fundamental common law institutions may have been adapted from similar legal institutions in Islamic law and jurisprudence, and introduced to England by the Normans after the Norman conquest of England and the Emirate of Sicily, and by Crusaders during the Crusades. In particular, the "royal English contract protected by the action of debt is identified with the Islamic Aqd, the English assize of novel disseisin is identified with the Islamic Istihqaq, and the English jury is identified with the Islamic lafif." John Makdisi speculated that English legal institutions such as "the scholastic method, the licence to teach", the "law schools known as Inns of Court in England and Madrasas in Islam" and the "European commenda" (Islamic Qirad) may have also originated from Islamic law.^[56] The methodology of legal precedent and reasoning by analogy (Qiyas) are also similar in both the Islamic and common law systems.^[57] These influences have led some scholars to suggest that Islamic law may have laid the foundations for "the common law as an integrated whole".^[56]

Discover more about Influence on Western laws related topics

Institution

Institution

Institutions are humanly devised structures of rules and norms that shape and constrain individual behavior. All definitions of institutions generally entail that there is a level of persistence and continuity. Laws, rules, social conventions and norms are all examples of institutions. Institutions vary in their level of formality and informality.

Islamic Golden Age

Islamic Golden Age

The Islamic Golden Age was a period of scientific, economic and cultural flourishing in the history of Islam, traditionally dated from the 8th century to the 13th century.

Hawala

Hawala

Hawala or hewala, originating in India as havala, also known as havaleh in Persian, and xawala or xawilaad in Somali, is a popular and informal value transfer system based on the performance and honour of a huge network of money brokers. They operate outside of, or parallel to, traditional banking, financial channels and remittance systems. The system requires a minimum of two hawaladars that take care of the "transaction" without the movement of cash or telegraphic transfer. While hawaladars are spread throughout the world, they are primarily located in the Middle East, North Africa, the Horn of Africa and the Indian subcontinent. Hawala follows Islamic traditions but its use is not limited to Muslims.

Informal value transfer system

Informal value transfer system

An informal value transfer system (IVTS) is any system, mechanism, or network of people that receives money for the purpose of making the funds or an equivalent value payable to a third party in another geographic location, whether or not in the same form. Informal value transfers generally take place outside of the conventional banking system through non-bank financial institution or other business entities whose primary business activity may not be the transmission of money. The IVTS transactions occasionally interconnect with formal banking systems, such as through the use of bank accounts held by the IVTS operator.

Common law

Common law

In law, common law is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions.

Civil law (legal system)

Civil law (legal system)

Civil law is a legal system originating in mainland Europe and adopted in much of the world. The civil law system is intellectualized within the framework of Roman law, and with core principles codified into a referable system, which serves as the primary source of law. The civil law system is often contrasted with the common law system, which originated in medieval England. Whereas the civil law takes the form of legal codes, the law in common law systems historically came from uncodified case law that arose as a result of judicial decisions, recognising prior court decisions as legally-binding precedent.

Law of France

Law of France

French law has a dual jurisdictional system comprising private law, also known as judicial law), and public law.

Italy

Italy

Italy, officially the Italian Republic or the Republic of Italy, is a country in Southern and Western Europe. Located in the middle of the Mediterranean Sea, it consists of a peninsula delimited by the Alps and surrounded by several islands; its territory largely coincides with the homonymous geographical region. Italy shares land borders with France, Switzerland, Austria, Slovenia and the enclaved microstates of Vatican City and San Marino. It has a territorial exclave in Switzerland, Campione, and some islands in the African Plate. Italy covers an area of 301,230 km2 (116,310 sq mi), with a population of about 60 million. It is the third-most populous member state of the European Union, the sixth-most populous country in Europe, and the tenth-largest country in the continent by land area. Italy's capital and largest city is Rome.

Charitable trust

Charitable trust

A charitable trust is an irrevocable trust established for charitable purposes and, in some jurisdictions, a more specific term than "charitable organization". A charitable trust enjoys a varying degree of tax benefits in most countries. It also generates good will. Some important terminology in charitable trusts is the term "corpus", which refers to the assets with which the trust is funded, and the term "donor", which is the person donating assets to a charity.

England

England

England is a country that is part of the United Kingdom. It shares land borders with Wales to its west and Scotland to its north. The Irish Sea lies northwest and the Celtic Sea area of the Atlantic Ocean to the southwest. It is separated from continental Europe by the North Sea to the east and the English Channel to the south. The country covers five-eighths of the island of Great Britain, which lies in the North Atlantic, and includes over 100 smaller islands, such as the Isles of Scilly and the Isle of Wight.

Crusades

Crusades

The Crusades were a series of religious wars initiated, supported, and sometimes directed by the Latin Church in the medieval period. The best known of these military expeditions are those to the Holy Land in the period between 1095 and 1291 that were intended to conquer Jerusalem and its surrounding area from Muslim rule. Beginning with the First Crusade, which resulted in the conquest of Jerusalem in 1099, dozens of military campaigns were organised, providing a focal point of European history for centuries. Crusading declined rapidly after the 15th century.

Middle East

Middle East

The Middle East is a geopolitical region commonly encompassing Arabia, Asia Minor, East Thrace, Egypt, Iran, the Levant, Mesopotamia, and the Socotra Archipelago. The term came into widespread usage as a replacement of the term Near East beginning in the early 20th century. The term "Middle East" has led to some confusion over its changing definitions, and has been viewed by some to be discriminatory or too Eurocentric. The region includes the vast majority of the territories included in the closely associated definition of Western Asia, but without the South Caucasus, and additionally includes all of Egypt and all of Turkey.