Read An Introduction to Islamic Law Online
Authors: Wael B. Hallaq
Tags: #Law, #General, #Jurisprudence, #History, #Middle East, #Religion, #Islam, #International, #Political Science, #Social Science, #Sociology
An Introduction to Islamic Law (6 page)
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Legal pluralism
Contents and arrangement of legal subjects
The foregoing interpretive methods constituted the
tools of
IJTIHAD
, the processes of reasoning that the jurist employed in order to arrive at the best guess of what he thought might be the law pertaining to a particular case. Except for a relatively few Quranic and Prophetic statements which were unambiguous and which contained clear and specific normative rulings, the rest of the law was the product of
ijtihad
. For unlike the unambiguous textual rulings, which were certain and hence not susceptible to
ijtihad
(because the mind cannot see any other meaning in the language in which they were stated), this latter involved inferences, both linguistic and legal.
Ijtihad
, therefore, was the domain of
probability.
tools of
IJTIHAD
, the processes of reasoning that the jurist employed in order to arrive at the best guess of what he thought might be the law pertaining to a particular case. Except for a relatively few Quranic and Prophetic statements which were unambiguous and which contained clear and specific normative rulings, the rest of the law was the product of
ijtihad
. For unlike the unambiguous textual rulings, which were certain and hence not susceptible to
ijtihad
(because the mind cannot see any other meaning in the language in which they were stated), this latter involved inferences, both linguistic and legal.
Ijtihad
, therefore, was the domain of
probability.
Islamic law is therefore overwhelmingly the result of
ijtihad
, a domain of interpretation that rests on probability. Every accomplished jurist could exercise
ijtihad
, and no one knew, except for God, which
MUJTAHID
(the jurist conducting
ijtihad
) was correct. This relativity gave rise to the famous tenet and maxim that “Every
mujtahid
is correct.”
ijtihad
, a domain of interpretation that rests on probability. Every accomplished jurist could exercise
ijtihad
, and no one knew, except for God, which
MUJTAHID
(the jurist conducting
ijtihad
) was correct. This relativity gave rise to the famous tenet and maxim that “Every
mujtahid
is correct.”
Ijtihad
also gave Islamic law one of its unique features. For every eventuality or case, and for every particular set of facts, there are anywhere between two and a dozen opinions, if not more, each held by a different jurist. In other words, there is no single legal stipulation that has monopoly or exclusivity, unlike the situation that obtains in the
modern state. Islamic law is thus also characterized by legal pluralism, not only because it acknowledges local custom and takes it into serious account, but also because it offers an array of opinions on one and the same set of facts. This pluralism gave Islamic law two of its fundamental features, one being flexibility and adaptability to different societies and regions, and the other an ability to change and develop over time, first by opting for those opinions that have become more suitable than others to a particular circumstance, and second by creating new opinions when the need arose. That Islamic law was accused of rigidity by European colonialism to justify – as we shall see later – the dismantling of the Shari
a system is therefore not only wrong but highly ironic
.
also gave Islamic law one of its unique features. For every eventuality or case, and for every particular set of facts, there are anywhere between two and a dozen opinions, if not more, each held by a different jurist. In other words, there is no single legal stipulation that has monopoly or exclusivity, unlike the situation that obtains in the
modern state. Islamic law is thus also characterized by legal pluralism, not only because it acknowledges local custom and takes it into serious account, but also because it offers an array of opinions on one and the same set of facts. This pluralism gave Islamic law two of its fundamental features, one being flexibility and adaptability to different societies and regions, and the other an ability to change and develop over time, first by opting for those opinions that have become more suitable than others to a particular circumstance, and second by creating new opinions when the need arose. That Islamic law was accused of rigidity by European colonialism to justify – as we shall see later – the dismantling of the Shari
a system is therefore not only wrong but highly ironic.
Muslim jurists viewed the Shari
a as a mandate to regulate all human conduct, from religious rituals and family relations to commerce, crime and much else. The following is an overview of the contents and range of subjects treated in legal works, from short manuals to much longer treatises. These works tended to differ from each other in terms of the organization of their subject matter, although the chapters on ritual in these works always occupied first place and followed a fixed order (i.e., ablution, prayer, alms-tax, fasting and pilgrimage). The differences in the order of treatment of other legal spheres, at times great, can be attributed to the various ways the
LEGAL SCHOOLS (to be discussed in
chapter 3
) conceived of the logical and juristic connections between one area of law and another, which is to say that the most significant organizational variations between and among these works can be attributed to school affiliation and the particular commentarial and interpretive tradition in each of them.
a as a mandate to regulate all human conduct, from religious rituals and family relations to commerce, crime and much else. The following is an overview of the contents and range of subjects treated in legal works, from short manuals to much longer treatises. These works tended to differ from each other in terms of the organization of their subject matter, although the chapters on ritual in these works always occupied first place and followed a fixed order (i.e., ablution, prayer, alms-tax, fasting and pilgrimage). The differences in the order of treatment of other legal spheres, at times great, can be attributed to the various ways theLEGAL SCHOOLS (to be discussed in
chapter 3
) conceived of the logical and juristic connections between one area of law and another, which is to say that the most significant organizational variations between and among these works can be attributed to school affiliation and the particular commentarial and interpretive tradition in each of them.
Generally, Muslim jurists gave the main topics of law the title
kitab
(“book”), e.g., the Book of Agency, which, in our modern organizational scheme, we recognize as a chapter. A sub-chapter was termed “
bab
,” which would in turn be broken into a number of
fasl
s (sections).
kitab
(“book”), e.g., the Book of Agency, which, in our modern organizational scheme, we recognize as a chapter. A sub-chapter was termed “
bab
,” which would in turn be broken into a number of
fasl
s (sections).
Many jurists conceived of the whole of Islamic law as falling into four major fields, which were called “
the four quarters,” i.e., “rituals, sales, marriage and injuries.” Each of these terms, used in this context metaphorically, stands for a staggering variety of subjects that belong to a single quarter. Thus, the “quarter of sales” would encompass, among many other subjects, partnerships, guaranty, gifts and bequests, while that of “marriage” would cover as varied a field as dissolution of matrimony, foster relationships, custody, and wifely and family support. In the same vein, the “quarter of injuries” includes homicide, the Quranic punishments and the laws of war and peace, among other topics. Works generally ended with what we term procedural law, supplemented by coverage of slave manumission. Other works ended instead with inheritance and bequests.
the four quarters,” i.e., “rituals, sales, marriage and injuries.” Each of these terms, used in this context metaphorically, stands for a staggering variety of subjects that belong to a single quarter. Thus, the “quarter of sales” would encompass, among many other subjects, partnerships, guaranty, gifts and bequests, while that of “marriage” would cover as varied a field as dissolution of matrimony, foster relationships, custody, and wifely and family support. In the same vein, the “quarter of injuries” includes homicide, the Quranic punishments and the laws of war and peace, among other topics. Works generally ended with what we term procedural law, supplemented by coverage of slave manumission. Other works ended instead with inheritance and bequests.
What follows is a schematic account of legal subject matter. It will be noticed that the main “book” topics are followed by percentages indicating the space typically allocated to the discussion of each topic in legal works. Obviously, works differed from each other in this respect, and so what are given here are rough estimates of space, intended to give a general idea of the quantitative weight of each subject in the overall coverage of the law. However, the legal works had much in common in
their proportionate coverage of the law. For example, the Book of Pledge, however short or long it is in various works, can never reach the magnitude of the Book of Prayer or that of Sales.
their proportionate coverage of the law. For example, the Book of Pledge, however short or long it is in various works, can never reach the magnitude of the Book of Prayer or that of Sales.
A.
The First Quarter1.
Book of Purity and Washing (7%)2.
Book of Prayer (14%)3.
Book of Alms-Tax (4%)4.
Book of Fasting (3%)5.
Book of Pilgrimage (6%)6.
Book of Food and Drink (less than 1%) [some jurists discuss this and the following Book toward the end of the Third Quarter]7.
Book of Hunting and Butchering Animals (less than 1%)B.
The Second Quarter[Some jurists treat these topics in the Third Quarter, with the exception of inheritance and bequests which are generally delayed to the very end of their works.]8.
Book of Sales (4%)9.
Book of Pledge (1%)10.
Book of Insolvency and Interdiction (1%)11.
Book of Amicable Settlement (less than 1%)12.
Book of Transfer (less than 1%)13.
Book of Guaranty (less than 1%)14.
Book of Partnership (less than 1%)15.
Book of Agency (1%)16.
Book of Acknowledgments (1.2%)17.
Book of Deposit (less than 1%)18.
Book of Loans (less than 1%)19.
Book of Unlawful Appropriation (1.5%)20.
Book of Preemption (1%)21.
Book of Sleeping Partnership (less than 1%)22.
Book of Agricultural Lease (less than 1%)23.
Book of Rent and Hire (2%)24.
Book of Cultivating Waste Land (less than 1%)25.
Book of Charitable Trusts (
WAQF
, 1.5%)26.
Book of Gifts (1%)27.
Book of Found Property (less than 1%)28.
Book of Foundling (less than 1%)29.
Book of Rewards for Returning Escaped Slaves (less than 1%)30.
Book of Quranic Shares (inheritance, 3.5%)31.
Book of Bequests (2.5%)C.
The Third Quarter[Some jurists treat these topics in the Second Quarter.]32.
Book of Marriage (3.5%)33.
Book of Dower (1%)34.
Book of Contractual Dissolution of Marriage (
khul35.
Book of Unilateral Dissolution of Marriage by Husband (2%)36.
Book of Re-marriage by the Same Couple (less than 1%)37.
Book of Husband’s Oath not to have Sexual Intercourse with his Wife for Four Months (
ila; less than 1%)
38.
Book of Husband’s Oath not to have Sexual Intercourse with his Wife (
zihar
; less than 1%)39.
Book of Husband’s Accusing his Wife of Being Unfaithful (less than 1%)40.
Book of Oaths (2%)41.
Book of Waiting Periods (1%)42.
Book of Foster Relationships (less than 1%)43.
Book of Family Support (1.2%)44.
Book of Child Custody (less than 1%)D.
The Fourth Quarter45.
Book of Torts (2%)46.
Book of Blood-Money (less than 2%)47.
Book of Quranically Regulated Infractions (5%)a.
Sub-chapter on Apostasyb.
Sub-chapter on Rebelsc.
Sub-chapter on Illicit Sexual Actsd.
Sub-chapter on Accusing Someone of an Illicit Sexual Acte.
Sub-chapter on Theftf.
Sub-chapter on Highway Robbersg.
Sub-chapter on Drinking Intoxicants48.
Book of Discretionary Punishments (
TA
; less than 1%)49.
Book of War and Peace (
JIHAD
, 1.5%) [some jurists place this Book at the end of the First Quarter]50.
Book of Division of Booty (1%)51.
Book of Judges and Judgeship (3%)52.
Book of Suits and Evidence (1%)53.
Book of Testimonies (2%)54.
Book of Manumission (less than 1%)55.
Book of Manumission after Master’s Death (less than 1%)56.
Book of Manumission for Payment (less than 1%)57.
Book of Female Slaves who had Children with their Master (less than 1%)
.
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