An Introduction to Islamic Law (45 page)

abrogation:
making a revealed text supersede another. The grounds on which abrogation can be made are many, one of which is the chronologically later provenance of the repealing text (reflecting a change of mind or position adopted in the earlier text); another reason for abrogation is when one text itself commands the abandonment of a matter specified in another text.

adat:
usually unwritten customary laws prevailing in Malaysia and Indonesia.

amicable settlement:
see
peacemakers
.

author-jurist:
a highly learned legist (q.v.) who is capable of exercising certain faculties of
ijtihad
(q.v.) in writing legal manuals and/or long treatises on law.

Azhar:
a religious university in Egypt (based mainly in Cairo) that originated as a
madrasa
(q.v.) and that has incorporated into its twentieth-century curriculum many fields in the sciences.

caliph:
the political and religious head of Islamic government; a deputy of the Prophet, also known as the Commander of the Faithful and Imam (q.v.). After the ninth century, and with the ascendancy of tribal dynasties hailing mainly from Central Asia, the caliph lost his political and military powers, and was progressively reduced to a religious symbol. The effective ruler became the sultan. In 1924, the caliphate was abolished by Kemal Atatürk.

certifying-witness:
functionary of the court whose task it was to examine and certify the integrity of witnesses produced, inter alia, by the litigating parties.

charitable endowment:
see
waqf
.

chief justice (
Qadi al-Qudat
):
in the early period, the judge sitting in the capital, who appointed
qadi
s to the provinces and cities of the empire; later, especially under the Ottomans, each province or city could have a chief justice, since the authority that appointed them was the Shaykh al-Islam (q.v.), the chief mufti of the Empire. A chief justice, however, could not quash or reverse decisions of other
qadi
s, not even those whom he appointed; thus the hierarchy was administrative – one of appointment to office and dismissal – and not of legal authority.

circle:
see
study circle
.

consensus:
generally, the agreement of the community on a particular matter; the third source of Islamic law, technically defined as the agreement of
mujtahid
s (q.v.) in a given age on a particular point of law. Consensus was determined in a back-projected manner, namely, when jurists looked back at earlier generations and observed that there was no disagreement amongst them on a particular point of law. Juristic disagreement, however, was the norm, whereas rules subject to consensus were relatively few. While a
mujtahid
(q.v.) was required merely to know the cases subject to consensus, the hallmark of his
ijtihad
(q.v.) was intimate knowledge of the reasons for juristic disagreement (an intellectually demanding field of enquiry).

Council of Guardians:
having the powers of a constitutional court in the Islamic Republic of Iran, it consists of twelve members, six of whom are Shari
a jurists while the rest are experts in other areas of the law; it has the power to veto any bill introduced by the Majlis (Parliament) on the grounds that it is repugnant to Shari
a norms.

Court of Cassation:
a high court that holds the power to review and overturn the decisions of lower courts; in some countries, it is the highest of all courts while in others it stands below the constitutional court.

darura:
a legal principle, mainly in the law of rituals, allowing a person to set aside the law in a particular circumstance if fulfilling the legal obligation is believed to lead to undue hardship or harm. For example, stopping, while on travel, to pray is an obligation that may be waived if the life or security of the worshiper is in danger (for example, the threat of highway bandits).

divorce:
marital dissolution in the Shari
a takes one of at least three forms: (1) unilateral divorce by the husband (
talaq
) whereby he owes his wife financial compensation; (2) contractual dissolution (
khul
) whereby the wife usually surrenders her entitlement to dowry plus
maintenance she would have received for three months had the husband divorced her unilaterally; and (3) judicial divorce by the court.

faqih:
a legist (q.v.); an expert in the law; an
alim
(pl.
ulama
, q.v.).

fatwa:
legal opinion issued by a
mufti
(q.v.); although they were formally non-binding, judges adhered to
fatwa
s routinely, as they were deemed authoritative statements on particular points of law.

formative period:
the first three and a half centuries of Islam (roughly 620–960 AD) when Islamic law took its full form. Thereafter, the law continued to change in a piecemeal fashion and on a case-by-case basis, but its major principles and chief characteristics maintained remarkable continuity.

four sources:
the main sources of the law, i.e., the Quran, the Prophetic Sunna (q.v.), consensus (q.v.) and
qiyas
(q.v.).

habous:
see
waqf
.

hadith:
Prophetic traditions or reports of what the Prophet had said, done or tacitly approved with regard to a particular matter. The term is both singular and plural.
See
recurrence
and
Sunna
.

Hanafi:
a legal school (q.v.); a legist (q.v.) loyal to the principles and substantive law of Hanafism.
See
legal schools
.

Hanbali:
a legal school (q.v.); a legist (q.v.) loyal to the principles and substantive law of Hanbalism.
See
legal schools
.

hudud:
severe punishments for certain offenses specified in the Quran, rarely applied in pre-modern Islam because of the strict requirements of procedural law. For example, to prove adultery/fornication, four male witnesses must independently testify to the fact that they have, among other things, seen the man’s sexual organ penetrate the woman. Should any of the four testimonies contradict the other three in any fashion (e.g., with regard to the position of the two while having sex or where they were having it), the four witnesses will be charged with slander and whipped eighty lashes each.

ijtihad:
legal methods of interpretation and reasoning by which a
mujtahid
(q.v.) derives or rationalizes law on the basis of the Quran, the Sunna and/or consensus; also, a judge’s evaluation of customary practices as they bear on a case brought before him.
See also
consensus
,
mujtahid
and
qiyas
.

imam:
leader of Friday prayer; a preacher in a mosque; a caliph (q.v.) in Sunni Islam.

Imam:
The infallible head of the Shi
i Muslim community who is a descendant of Imam
Ali and who is in hiding (occultation).