Appendix: Fundamentals of Islamic Jurisprudence

Transcription

1 Appendix: Fundamentals of Islamic Jurisprudence Sohrab Behdad Specific acts of Muslims must be in accordance with the Islamic rules of conduct. These rules of conduct are called shari' a. The primary source of the shari' a is the Quran. The Quran, however, as a book of religious teachings contains many ambiguities and conflicting statements. The believers sought Muhammad's interpretation of the Quran during his lifetime. Soon after the death of Muhammad (AD 632), however, controversies arose on interpretation of the Quran, which gave rise to development of various schools of Islamic jurisprudence. The history of development of these schools has been studied elsewhere (Schacht, 1950, 1982, and Macdonald, 1975). Here we are concerned with the fundamentals of jurisprudence in the major sunni and shi'i schools.1 The process of deducing specific rules of conduct from the shari' a is called fiqih (jurisprudence). The person who makes these deductions is a faqih (jurist). A faqih must be a mujtahid, that is a Muslim whose intellectual capacity and integrity has been recognised by the established mujtahids. (For attributes of mujtahid see Aghnides, 1969, pp ) The act of deducing a specific rule of conduct from the shari' a is ijtihad. The bases of jurisprudence in the sunni schools of fiqh are the Quran, Tradition (sunna), Consensus (ijma) and Analogy (qiyas). The ambiguities and conflicts in the Quran are to be resolved by the wisdom of mujtahid in the light of the philosophy of Islam and through the rules of jurisprudence established for utilising the other sources. The most important source of the shari' a after the Quran is Tradition. That is the conduct of affairs by Muhammad, statements attributed to him (hadiths) and the customs of the community where Muhammad and his Companions lived (Aghnides, 1969, pp. 35-5). The problem of application of the authority of Tradition stems not only from conflicting acts or statements of Muhammad but also from the existence of many false hadiths that have been circulated and transmitted. Therefore, Science of the Hadith (ilm-al-hadith) has become an element of Islamic jurisprudence. Complex rules of logical and historical scrutiny have been established to recognise the genuine from false hadiths and to interpret Tradition for deducing Islamic rules of conduct (Aghnides, 1969,31 et seq.). This interpretation falls clearly in the domain of authority of mujtahids. Thus, neither the Quran nor Tradition may be used by lay persons for advocating a position. The reaction of the faqihs to the layman's application of the authority of the Quran and Tradition has been, historically, nothing short of condemnation. This condemnation has been particularly strong if the Quran or Tradition were relied upon to advocate a social or political action or change. 188

2 Appendix 189 The other two bases of Islamic jiqih, Consensus and Analogy, are methods of interpreting shari'a from the Quran and Tradition. According to Muhammad, Consensus among Muslims is the guarantee that the laws of God have been understood correctly. (Aghnides, 1969, p. 61). In the later periods, Consensus has been considered to be the agreement among the mujtahids of the past (Schacht, 1982, p. 30). Analogy is 'the extension of the shari' a... from the original case... to a new case, because the latter has the same cause as the former' (Aghnides, 1969, p. 77). The complexity of making Analogy is in determination of the cause when the divine prescription has different attributes. Obviously, Analogy is a study in epistemology and logic. The complexity of Analogy is further expanded with possibility of abrogations in the divine prescriptions. Within this jurisprudential framework, the new questions that may arise in the society of Muslims must be resolved by ijtihad. By the fourth century of Islam (tenth century AD), the view gained dominance, however, that all the essential questions have been clearly dealt with by the great mujtahids of the past (Schacht, 1982, pp ). According to this view, there would not be any need for independent reasoning in the shari'a, and the duty of the future faqih would be limited to the interpretation of 'the doctrine as it had been laid down once and for all' (Schacht, 1982, p. 71). This is referred to as 'closing of the gate of ijtihad' and is accepted in practice, if not in theory, by all major schools of sunni fiqih. 2 The muftis who issue religious rulings (fatwa) must rely upon the ijtihad of the great mujtahids of the past in a way not unlike judges in a system of common law. Shi'i jurisprudence (Mutahhari, n.d.) provides a somewhat wider scope for interpretation of the divine prescription. Similar to sunnis, Shi'is accept the Quran, Tradition and Consensus. Shi'is, however, rely not only on the Tradition of Muhammad but also of the Imams (Tabataba'i, 1984, p. 3). This provides a longer period (lasting to the third century of Islam) and also a more varied socio-political context for Tradition. This is especially important since with the exception of the first Imam, Ali, all other Imams considered the Islamic state illegitimate. (For a brief history of the life of shi'i Imams see Momem, 1985, pp ) The most significant difference between shi'i and sunni jurisprudence is acceptance of Reason (aql), instead of Analogy, as a basis ofjiqih in shi'ism. Shi'ism maintains that Analogy 'is possible only where there is a basic common denominator between... two cases inasmuch as one can be certam that the same reason which is behind the precept in the original case, covers the other case as well' (Tabataba'i, 1984, p. 3). 'Reason', however, is 'categorical judgments drawn from pure and practical reason [and] whatever is ordered by reason is ordered by religion' (Tabataba'i, 1984, pp. 3-4). Unlike sunnis, shi'is consider 'the gate of ijtihad' open. Every shi'i mujtahid must make his view by personal investigation of the sources of shari' a and may not imitate the opinion of another mujtahid (Tabataba'i, 1984, p. 16). Thus, shi'is may have, in theory, a wider latitude of interpretation of the shari' a than sunnis. In practice, however. this latitude is significantly limited by the jurisprudential tradition of the great mujtahids of the past. Deviation from this tradition is heresy and is condemned by shari'a (Aghnides, 1969, p. 30).

3 190 Appendix NOTES 1. The sunnis and shiis differ on the issue of the succession to Muhammad (Momen, 1985, pp ). The major sunni schools of jurisprudence are Hanafi, Shafi'i, Maliki, Hanbali and Zahiri. For a review of some differences among these schools see Aghnides (1969, pp ). The main schools of shii jurisprudence are Jafari, Zaidi and Ismaili. See Momen (1985) for detailed elaborations. 2. Aghnides who considers the closing of the gate of ijtihad a fiction quotes a modern Turkish faqih saying 'that the gate of ijtihad was not closed... by an external cause... but through the mere absence of mujtahids' (1969, p. 124). Ilallaq (1984) is among the few modern scholars who believe the gate of ijtihad has never been closed in theory or practice. REFERENCES Aghnides, Nicolas P., Mohammedan Theories of Finance with an Introduction to Mohammedan Law and a Bibliography (New York: AMS Press, (1916) 1969). Hallaq, Wael B., "Was the Gate of Ijtihad Closed?" International Journal of Middle East Studies, 16 (1), March 1984, Macdonald, Duncan B., Development of Muslim Theology, Jurisprudence and Constitutional Theory (London: Darf Publishers, (1902) 1985). Momen, Moojan, An Introduction to Shi'i Islam (New Haven: Yale University Press, 1985). Mutahhari, Morteza, Jurisprudence and its Principles (Fiqh and usul ul-fiqh), translated by Muhammad Salman Tawheedi (Albany, California: Moslem Student Association, n. d., circa 1983). Schacht, Joseph, An Introduction to Islamic Law (Oxford: Clarendon Press, (1964) 1982). Schacht, Joseph, The Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press, (1950) 1985). Tabataba'i, Hossein Madarressi, An Introduction to Shi'i Law: A Bibliographical Study (London: Ithaca Press, 1984).

4 Index Abbasid revolution, 145 Abdul Malik, 145 Abdul-Rauf, see Rauf Abidin Ahmad Salama, 23, 25 abolition of interest, see interest abolition of riba, see riba Abu Bakr Ahmad al Khassaf, 145 Abu Dhar al-ghifarri, also Abu Dharr, 81, 118, 171 Abu Hanifa, 110, 114 Abu Sulayman see Sulayman accumulation of wealth see Ouran Abu Hatim Mahmud al Oazwini, 145 Abu Ishaq Shatibi, 121 Abu Yusof, 113 adat, 134 ad valorem tax, see tax Agabani,37 Ahmed ibn Hanbal, 110 al-adl, , also al-adl wal al-ehsan, 118 see also Islamic economic system, goals AI-Azhar, 81 Algeria, 12, 94 Ali 'Abdar-Raziq, 15 altruism, norm of, 12, injunction, 53 Alzar-ur Rahman, 11, 21 antal, 83 Aquinas' just price, 86 Arabia, 22, 27, 39, 142 see also Saudi Arabia Arabian, 24, 32, 110 Arabic, 89, 145 Arabs, 106, 145 Ashraf, Sh. Muhammad, 10, 50 Baghdad,146 bank advance, indexing, Baqir AI-Sadr, see Sadr bay mu'ajjal, 38 behavioural norms, see Ouran, zakat, norms and Sunnah benevolence, 118 Bokhara, 146 bourgeois Islam, British colonialism, 134 Brotherhood party, 135 Buddhism, 148 Buddhist, 10 Cairo, 81 Calvin, John, 147 Calvinist Protestantism, 127 capital, rights to, 90-2 capitalism, development in Muslim countries, capitalflabour ratios, 162, 169 Center for Research in Islamic Economic (Jeddah), 50 Chapra, M.U., 84 charity, see Ouran Choudhury, M.A., 88 Christianity, 50, 81, 128, 148 Christians, 35, 107, 112, 127, 128, 149 consensus, see Islamic economic system consumer sovereignty, consumption norms, 11 Council of Islamic Ideology, 31, 38 Damascus,

5 192 Index economic growth, 162, economic doctrine, see Quran education, universal, 161-2, 168 Egypt, 36 employment generation, 162, 169 equality, principle of, 51-6, 63 Ethiopia, 106 Europe, 50 European, 111, 128, 129, 131, 132, 141, 142, 143, 147, 149 fairness, principle of, 51-6, 61, 63, 86 Fahim Khan, M., 30, 37 Faisal Islamic Bank of Sudan, 36 faqih,81 Faruqi, al-, Isma il R.A., 80, 81 Faridi, F.R., 25, 34 fatalism, 128, 134 Fazlur Rahman, 28 feudal Islam, andfuquha, 109 and Islamic ideology, and Quranic Islam, 110 feudalism, in Pakistan, fiduciary principle, 83 fiqhi Islam, 109, 113, 143, 144 Fouad Agabani, 36 France, 125 free-rider problem, 14, 15 French Revolution, 69 fuquha, see feudal Islam Gandhian economic doctrine, 10 God's ultimate ownership, see property rights Great Mufti, 23 Greek, 145 Gulf Emirates, 36, 65 hadith, 81, 87, 88, 89, 109, 110, 111, 142 Hanbali jurists, 62 Hanafi school, 65, 145 Hashim, 106 Hassanein, 93 Hejaz, also Hijaz, 23, 108 hijra, 18, 107 hiyal, 35, 126, 145 Hindu, 112 hoarding, private property, 85 see also Quran Hobbes, T., 15 homo economicus, 3, 11 homo Islamicus, 3, 11 human dignity, see Quran human nature, see Quran Ibadi jurists, 62 Ibn Hazm, 121 Ibn Khaldun, 146 al-ihsan, 160, 163 see also Islamic economic goals Ikhwan al-muslimum, see Muslim Brotherhood Ikram Azam, 17 Iman Shatibi, 123 Industrial Development Bank of Pakistan (IDBP), 140 infaq, 122, 171 inflation, 64, 123, 174 see also interest and riba inheritance, Islamic law of, 52, 167 see also wealth injunctions, Islamic, Institute of Policy Studies (Islamabad), 10, 50 insurance, 34-5, 54 interest, 146, 148 abolition of, 172 and fixed wages, 33, 60, 63 and inflation, 58 and profit and loss sharing, 172 and Islamic Bank, 36-9 and riba, 27-8 and Islamic history, 35-6 Islamic alternatives to, 28-34, rationale for prohibition of, 27-8, 53 see also Islamic economic system interest-free system, 139, 140, 142

6 Index 193 International Center for Research in Islam Economics (J eddah), 10,21, 113 International Conference on Islamic Economics (1976, Mecca), First, 19 International Monetary Fund, 1,36 investment auctioning system, abolition of interest and, 175 investment companies, abolition of interest and, 176 Iran, 80, 95 Iranian-Shi'i camps, 50 Iraq, 83, 95 Islam, alternatives to interest (see interest) and liberty, 70 original or revolutionary, 1 ()(r8 Islam and Capitalism (1974), 125 Islam economic goals, priorities of, 63-6 al-adl wal al-ihsan, 118, Islamic economic blueprint, see Ouran and Sunnah Islamabad Conference on the Monetary and Fiscal Economics of Islam, 36 Islamabad Islamic University, 30, 113 Islamic Bank, see interest Islamic economic system, and al-adl wal al-ihsan, 179 and policy package, and socialism, 182 character of an, limitation of interest abolition in, 163-5, 17G-1 limitation of zakat in, 163-5, problems of consensus in, 66-9 see also property rights Islamic economic thought, see property rights Islamic financial system, Islamic Foundation (Lahore), 10 Islamic Foundation (United Kingdom), 10, 50 Islamic ideology, and capitalism, , 143, 15G-1 see also feudal Islam Islamic Ideology Council, 141 Islamic incentive system, 158 Islamic Publications (Lahore), 10, 50 Jama'at-i-Islami, 151 Jews, 35, 89, 146 Jordan, 36 Judaism, 50 Judaic, 10 jurisprudential heresy/reformism, 92-5 justice, clashes between principle of, 63 economic, social, 161 Karsten, Ingo, 36 Khan, see Fahim Khan Khaybar, 89 Khazistan, 146 Khomeini, Ayatollah, 95 King Abdulaziz University, 26 Kitabal-Kharaj of Abu Yusof, 113 Kohii, Ayatollah, 95 Kuwait Finance House, 37 labour, wage, 89 laissez taire, see property rights land, reform in, 143, rent, 88 renting, 55 rights to, landlordism, liberty, see Islam loan, consumption, 53-4 interest-free, 122, interest-free consumption, 33, 34, 40 time multiple counter, 38

7 194 Index Malaya, 133 Malaysia, 23 Malaysian Islamic Youth movement (ABIM),135 Malaysian Peoples Socialist Party (PSRM),135 Malaysia, Peninsular, Malilas, 62, 145 Malek ibn Anas, 110 Maududi, 10, 50 Mecca, 18, 19,28,87, 106, 107, 117, 121, 123 Medhat Hassanein, 92 Medina, 18, 87, 106, 107, 118, 147 Mian N. Nazeer, 11 middleman, injunction against, S4 Middle Ages, 126, 128, 132, 143, 146, 147, 149 Middle East, 19, 133 Mohammad Ibn' Abd Allah Ibn'Abd al-muttalib, 106, 110 Mohammad ibn Idris al-shafi'i, 110 Mokhzani,133 Morocco, 22 mudaraba, 29, 32, 36-7, 109, 112, 142 Muslim Brotherhood, 82 muzara'a, 143, 144, 145 see also sharecropping Nabil A. Saleh, 62 Najaf,9S Nasir-i-Khosraw, 149 Naqvi, 29, 91 National Development Finance Corporation (NDFC), 140 Nejd,23 nisab, 20, 22 North Africa, 19 North America, 13, 50 norms, in Islamic history, Islamic behavioural, 12-14, see also zakat and state Nowaihi,81 Occidental, 3 Ommayad dynasty, 133 opportunism, 32, 37 Ottawa Bureau of Statistics, 33 Pakistan,S, 22, 36, SO, 82, 140, 143, 154, 162, 163, 166, 169, 181,172,177,178 Pakistan Council of Islamic Ideology, 29 Pakistan government, 21, 140 Pakistan Industrial Credit and Investment Corporation (PICIC), 140 Pakistan Institute of Development Economics (PIDE), 5, 28 Pan-Malayan Islamic Party (PMIP), 135 Peshawar University, 11 Persia, 106, 145 populist state control approach, see property rights and Iran poverty, private property, see property rights and riba production norms, 11 profit-and-ioss sharing, history of, system, 32, 35, 58-9, , 171 see also interest profit sharing, 29, 91-2,176-7 prohibition of interest, see interest property rights God's ultimate ownership, 79-84, ls5-6 in Islamic economic system, in Islamic economic thought, laissez faire approach to, 80-2 legitimacy of return on, 86 populist approach to, 82-3 populist state control approach to, 83-4 reformation of, see also Quran qirad, see mudaraba Quran, 106

8 Index 195 and accumulation of wealth, 118 and behavioural norms, and economic doctrine, 12~ and hoarding, 118 and human nature, 119, 157 and property rights, 79, 81 and the Islamic economy blueprint, 40, 117 vision of society, 123 human dignity and charity, Quraysh, 106, 107 Qutb, Sayyid, 10, 50 Rauf,81 reform, see land, property rights and zakat rent, see land revolutionary, see Islam riba, abolition in Pakistan, 142-3, 145, and inflation, 123 and private property, essence of, see also interest rights to land, see land Riyadh University, 23 Rodinson, Maxime, 35, 79 on Islam and capitalist development, ruses, 126 see also hiyal Sa'd Ibn Waqqas. 88 Sadr, Muhammad Baqir, 3, 6 on hoarding, 85 on property rights, 83-4 on rights to land, 87-8 on role of Islamic state Sardar Ziauddin, 3 Saudi Arabia, 22, 23, 24, 25, 36, 65,80 Sayyid Abu'l-a'la Maududi, see Maududi Shaft'i, 62, 68, 145 sharecropping, 55, 88-9, shari'a, 92 and accumulation of capital, 92 and capital ownership, 91 and property rights, 85 Sheikh, Nasir Ahmad, 88 Sheikh Mahmud Ahmad, 21 Shi'i, 83, 95 Sh. Muhammad Ashraf (Lahore), see Ashraf Siddiqi, Muhammed Nejatullah, 88, 90 Sismondian-Saint Simonian synthesis, 94 social security programmes, socialism, see Islamic economic system society, vision of, see Quran speculation, 54, 61 state, and abuse of power, and economic freedom, and Islamic norms, and property rights, 80, 83-4 role of, 93-4, 159, , 182 Sudan, 36 Sukamo, 133 Sulayman, Abu, on land rent, 88 on mudaraba, 91-2 on property rights, 82-3 on sharecropping, 89 Sunnah, and behavioural norms, and economic doctrine, 126 and Islamic economy blueprint, 40 Sunni, 50, 68, 95, 133, 145 Syed Attab Ali, 33 Syed Nawab Haider Naqvi, see Naqvi Syria, 81,82,94, 146 tax, zakat and ad valorem, 22 taxation, progressive, 59-60

9 196 Index taxation - continued proportional, 60 tawhid,82 Tawney, 149 Third World, 50, 77, 106, 132, 148, 150 time deposit, indexing of, trusteeship, concept of, 166 Umar Ibn al-khattab, also Umar, Umar I, 1, 20, 24, 25, 26, 65, 108, 144 Umayyyads, 81, 108, 144, 145 usury, Uthman Ibn 'Affan, 108 wage, fixed, see interest Waqar Ahmad Husaini, 14 wealth, inherited, 167 Weber, 125, 127, 128, 132, 134 Western experience, 13 influence, 19 world,27 Europe, 148 Yathrib, 107 Yusuf, 88, 89 zakat, and behavioural norms, 2~7 contemporary experience of, 23-4 critique of, 21-2, 5~7 dispute over disbursements of, 60 historical evolution of, 24-5 reforming, 25--{) the essence of, 122 the scheme of, 19-21, 52 see also Islamic revolution system Ziauddin Sardar, see Sardar Zia-ul Haq, General, 5