An Introduction to Islamic Law (47 page)

mullah:
a Twelver-Shi
i religious intellectual, jurist and/or theologian.

munasaba:
see
istislah
and
suitability
.

necessity:
see
darura
.

opinion:
statement of law or normative rule espoused by a jurist with regard to a particular case. A
fatwa
(q.v.) is such an opinion. Islamic substantive law largely consists of opinions.

Ottoman:
referring to the Ottoman Empire that existed between 1389 and 1922, first in Anatolia, but later extending its domains to South-East Europe, North Africa, Egypt, Greater Syria and the Hejaz.

peacemakers (
muslihun
):
persons who mediate between parties in dispute with a view to reaching an amicable settlement; such persons as appointed by a judge, especially in the case of marital discord.

positive law:
the body of rules legislated or sanctioned by the modern state, including those that originally belonged to the Shari
a. The decrees issued by pre-modern Muslim governments do not qualify as positive law.
See also
substantive law
.

post-formative period:
occurring roughly between the second half of the tenth century and the end of the eighteenth.
See also
formative period
.

qadi:
the magistrate or judge of the Shari
a court who also exercised extra-judicial functions, such as mediation, guardianship over orphans and minors, and supervision and auditing of public works. When faced with difficult cases, a
qadi
petitioned the
mufti
(q.v.) who provided a
fatwa
(q.v.) or legal opinion (q.v.) on the basis of which he rendered a decision.
See also
jurist
.

qadi-
askar:
Ottoman chief justice, usually appointed in pairs, one to the European side of the Empire, the other to the Asian side.

qanun:
edicts and decrees legislated by the Ottoman sultans, often asserting provisions of Islamic legal doctrine and at times supplementing it on matters related to taxes, land, public order, and court procedure and evidence (e.g., allowing torture to extract evidence).
Qanun
s contradicting Shari
a provisions (which abhorred torture) were at times resisted and ignored by
qadi
s and jurists.

qiyas:
the fourth source of Islamic law; a general term referring to various methods of legal reasoning, analogy being the most common; other methods subsumed under
qiyas
are the syllogistic, relational,
a fortiori
,
e contrario
and
reductio ad absurdum
arguments.

ratio legis
(
illa
):
cause; occasional factor; the attribute or set of attributes common between two cases and which justify the transference, through inference, of a norm from one case (that has the norm) to another (that does not have it).
See also
qiyas
.

recurrence:
a mode of transmitting Prophetic
hadith
(q.v.). Recurrence obtains when a
hadith
is narrated through so many channels and by so many people that collusion upon forgery is deemed inconceivable (because of the assumption that such a large number of transmitters cannot find ways to conspire amongst themselves); knowledge engendered by this type of
hadith
is considered certain.

Shafi
i:
a legal school (q.v.); a legist (q.v.) loyal to the principles and substantive law of Shafi
ism.
See
legal school
.

Shaykh al-Islam:
before the Ottomans (q.v.), a leading
mufti
(q.v.) who, inter alia, supervised legal education in a city; under the Ottomans, the head of the judicial hierarchy, appointing and dismissing judges, opining on points of law, and wielding significant political powers which he at times exercised to depose sultans.

siyasa shar
iyya:
the ruler’s governance according to juristic political theory; discretionary legal powers of the ruler to enforce Shari
a court judgments and to supplement the religious law with administrative regulations (
see
qanun
); the ruler’s extra-judicial powers to prosecute government officials on charges of misconduct (
see
mazalim
).