Introduction to Islamic and Middle Eastern Law FS17

Transcription

1 Introduction to Islamic and Middle Eastern Law FS17 Prof. Dr. Andrea Büchler 06/03/2017 Page 1

2 Historical Overview and Sources of Islamic Law 2 The early development of Islamic Law Formation of madhabs The closed door of Ijtihad Historical overview 16 th 21 th century 06/03/2017 Page 2

3 The early development of Islamic law Emergence of Islamic law Before arriving in Medina, Muhammad did not have in mind the establishment of a new legal system Turning point: [5:48] [5:50]; beginning of substantive legislation in the Qur an Much of the Arabian law continued to occupy a place in the Shari a, but Qur an was central in the emerging state and society The conquered peoples were left to govern themselves by their own laws The importance of the Qur an as the principle guide of Muslim life required fixing it; happened during third caliphate At around 700 AD legal scholarship emerged 06/03/2017 Page 3

4 The early development of Islamic law Classical Period Islamic law reached perfection in the time of prosperity of the Abassid Caliphate, 8 th /9 th century AD Foundation of four main schools of legal thought (different methodologies) Implementation of usul al-fiqh (method of interpretation) First commentary of the Qur an 767 AD (tafsir) wording interpretation of the Prophet interpretation of the companions interpretation of the successors 06/03/2017 Page 4

5 Islamic schools of legal thought madhahib Hanafi,Abu Hanifa, Kufa, 767 AD Prevalent in Turkey, Central Asia, Balkan, Iraq, Syria, Lebanon, Jordan, Afghanistan, Pakistan, India, Bangladesh and Egypt Emphasis on human reason Maliki, Malik ibn Anas, Arabian Peninsula, 795 AD Prevalent in North Africa, Mauritania, Kuwait and Bahrain Uses the practice of the people of Medina as an additional source Limited reliance on hadith Shafii,Muhammad ibn Idris al-shafii, 819 AD Prevalent in Sudan, Ethiopia, Somalia, Indonesia, Malaysia. Founder of usul al-fiqh,islamic jurisprudence. Book: Risala standard reference Hanbali, Ahmad Hanbal, 855 AD Prevalent in Saudi Arabia, Qatar Conservative; recognizes only primary sources 06/03/2017 Page 5

6 usul al-fiqh General information Theory about sources of law, their order of priority, methods by which legal rules may be derived, regulation of ijtihad (personal reasoning) usul al-fiqh provides standard criteria for the correct deduction of the rules of fiqh from the sources of Shari a Shafii s book Risala is a coherent body of knowledge of usul al-fiqh Distinction between primary and secondary finding of justice / law 06/03/2017 Page 6

7 usul al-fiqh Types of legal verses Shari a belief morality practical legal rules fiqh rules concerning ritual duties ibadat rules concerning social life mu amalat 06/03/2017 Page 7

8 usul al-fiqh Levels of responsibility Commands and Prohibitions fard / wajib obligatory mandub commendable mubah neutral/indifferent makruh reprehensible haram prohibited 06/03/2017 Page 8

9 usul al-fiqh Primary findings of justice Wording of the religious text Classification of words Starting point: All words are presumed to convey their absolute, general and unqualified meaning unless there is reason to warrant a departure to an alternative meaning Distinction between clear and unclear words 06/03/2017 Page 9

10 usul al-fiqh Primary findings of justice: types of clear words words clear unclear zahir manifest nass explicit mufassar unequivocal muhkam perspicuous khafi obscure mushkil difficult mujmal ambivalent mutashabih intricate 06/03/2017 Page 10

11 usul al-fiqh Primary findings of justice: types of words and rules words amm general khass specific 06/03/2017 Page 11

12 usul al-fiqh Primary findings of justice: types of meaning al-dalalat arah al-nass explicit meaning [4:3] isharah al-nass alluded meaning [2:236] dalalah al-nass inferred meaning [17:23] iqtida al-nass required meaning [5:3] 06/03/2017 Page 12

13 usul al-fiqh Secondary findings of justice Methods of interpretation which are not restricted to the wording of the religious texts: ijtihad - personal reasoning in case that the religious sources do not give an answer Central interests of Islam: religion (din), life (nafs), reason / rationality ( aql), lineage ( ird), patrimony (mal) Important Qur anic guidelines for exercising ijtihad: principle of lightness and relief, leniency / forbearance, temperance, prevention of distress and hardship Flexibility of Islamic law 06/03/2017 Page 13

14 usul al-fiqh Secondary findings of justice: Principles of ijtihad ijtihad istihsan equity, fairness [2:185] urf custom [22:78] istishab presumption of continuity maslaha consideration of public interests [21:107] 06/03/2017 Page 14

15 usul al-fiqh Secondary findings of justice: requirements for the mujtahid mujtahid knowledge of Arabic knowledge of sources and methods of deduction 06/03/2017 Page 15

16 The closed door of ijtihad The end of ijtihad Classical period: Islamic law = clear identifiable, predetermined, consistent and fully accomplished set of rules Focus on primary (wording) and secondary (ijtihad) principles of interpretation 9 th / 10 th century AD: closure of the gate of ijtihad Islamic law was considered as having reached its final phrasing Islamic law was considered to be binding to all future generations ijtihad replaced by taqlid Islamic law became a stiff and frozen system of norms and was hardly accessible to outside influences Growing gap between legal system and legal practice 06/03/2017 Page 16

17 The closed door of ijtihad Meaning Muslim jurisprudence [...] in its traditional form provides an extreme example of a legal science divorced from historical considerations. Law, in classical Islamic theory, is the revealed will of God, a divinely ordained system preceding and not preceded by the Muslim state, controlling and not controlled by Muslim society. There can thus be no notion of the law itself evolving as an historical phenomenon closely tied with the progress of society. Naturally the discovery and formulation of the divine law is a process of growth, systematically divided by traditional doctrine into several distinct stages. Master-architects were followed by builders who implemented the plans; successive generations of craftsmen made their own particular contribution to the fixtures, fittings, and interior decor until, the task completed, future jurists were simply passive caretakers of the eternal edifice. But this process is seen in complete isolation from the historical development of society as such. The role of the individual jurist is measured by the purely subjective standard of its intrinsic worth in the process of discovery of the divine command. It is not considered in the light of any external criteria or in its relationship to the circumstances of particular epochs or localities. In this sense the traditional picture of the growth of Islamic law completely lacks the dimension of historical depth. Since direct access to revelation of the divine will had ceased upon the death of the Prophet Muhammad, the sharia, having once achieved perfection of expression, was in principle static and immutable. Floating above Muslim society as a disembodied soul, freed from the currents and vicissitudes of time, it represented the eternally valid ideal towards which society must aspire. (Noel J. Coulson, A History of Islamic Law, Edinburgh 1964, pp. 1) 06/03/2017 Page 17

18 taqlid Meaning taqlid = principle of imitation, conformism End of development of new rules of law Pre-modern Islamic legal system following the era of usul al-fiqh 10 th -19 th century AD Era of schools of law: Jurists and judges focused on consolidating the legal doctrine of their school of law Changes in the legal doctrine of a school of law were acknowledged implicitly (imitation) rather than explicitly approved 06/03/2017 Page 18

19 Historical overview Early modern expansion and transformation 16 th century: major Islamic states emerged or reached the height of their power: Ottoman empire ( ): Turkey, Syria, Egypt, Balkan Mughal empire ( ): India Safavid dynasty ( ): Iran 1492 End of Iberian peninsula under Muslim rule 17 th century: weakening of empires due to war and internal strife 06/03/2017 Page 19

20 Historical overview Reform 18 th / 19 th century: European, Russian and Chinese expansion in Muslim world 19 th century: Ottoman reforms: separation of powers, creation of religious institutions which were separated from the state, codification of existing law Islamic law replaced by European-inspired codes to a large extent (criminal law, commercial law) E.g.: Mecelle code as civil code of the Ottoman Empire Influenced by earlier European codifications but based on Hanafi tradition; lasting influence in many of the successor states Only family law remained untouched (exception: Turkey). Later: codification of family law, but within the frame of classical Islamic law, no dissociation from Shari a 06/03/2017 Page 20

21 Historical overview Nationalization First half of the 20 th century: attempts towards further nationalization on political and economic level Marginalization of Islamic traditions in favor of modernism (western models, social policies) Second half of the 20 th century: political independence of Muslim countries New radicalism, without having Qur anic rules as a prominent feature 06/03/2017 Page 21

22 Historical overview Re-islamization Second half of 20 th century: tendencies of re-islamization Possible reasons: Social and economic problems Disillusion and disappointment, feelings of lost identity International political events, such as the six-day war Dependency on former (western) colonial powers: increasing gap between the West and Islamic world Identity politics: Islam is not the problem, but the solution ; return to the religious-cultural heritage as an expression of protest Willingness of the political rulers to support islamization of law Reduction of the power of competing Islamist forces Islam as source of legitimization for political goals 06/03/2017 Page 22

23 Historical overview The effects of re-islamization Re-islamization has not led to a break with the nation-state concept, it rather has assigned a place to Islamic law within this concept (although the concept of individual nations is contrary to the Umma) Constitutional islamization = constitutional identification of the state as an Islamic state, Islam as state religion and the Shari a as the source of legislation In all Middle Eastern countries (except Saudi Arabia which has no constitution per se) Battle for the monopoly over law and the interpretation of religious sources between different actors Considerable continuity in law despite constitutional islamization Differences among the Middle Eastern countries laws are hidden behind the banner of Shari a 06/03/2017 Page 23

24 Egypt Egypt in the 19 th century under Ottoman influence Early 19 th century: Mohammad Ali as Ottoman Governor Centralization and modernization of the state Alienation of the ulama Public law and judicial bodies in addition to taqlid law and qadi courts Family law as a matter of taqlid Second half of 19 th century: defeat of Ali Europeanization Establishment of unified legal system of Capitulations in > independence from Ottoman jurisdiction and court administration Civil and Commercial Codes with strong French influence 06/03/2017 Page 24

25 Egypt Egypt under British influence : colonization by the British Establishment of the national court system; national courts became primary courts (qadi courts had only limited jurisdiction) 1948: Enactment of Egyptian Civil Code (excl. family law) Only Hanafi school was relevant for family law Some criticized the theory of usul al-fiqh, which resulted in the nomination of the Great Mufti a contemporary legal jurist and advisor to the Minister of Justice Others (secular nationalists) criticized British colonialism 1953: Republic of Egypt 1956: qadi courts incorporated into national court system 06/03/2017 Page 25

26 Egypt Islamic law in Egypt Islamic law in civil, criminal and constitutional law Art. 1 Civil Code: Shari a as subsidiary source of law (next to customary law) Criminal law: Consultation of the Great Mufti in cases of death penalty Art. 2 of the Egyptian Constitution: 1971: Islam is [ ] principal source of legislation in Islamic Jurisprudence. 1980: [ ] the principles of Islamic Sharia are the principal source of legislation. Religious communities have their own personal status law (based on Hanafi school) hisbah: life in compliance with the laws of Allah (Shari a) 06/03/2017 Page 26

27 Egypt Islamic law in Egypt: Jurisdiction Supreme Constitutional Court 1985: no retroactive application of art. 2 of the Constitution Supreme Constitutional Court 1993: This signifies that no legislative text may contradict those formal rules of sharia whose origin and meaning are definite: these rules exclusively, cannot be the object of interpretive effort (ijtihad) [ ] It is inconceivable, consequently, that the content thereof be modified according to changes in time and place. The authority of the High Constitutional Court in this regard is limited to safeguarding their implementation and their overruling any other legal rule that contradicts them. On the opposite side, there are hypothetical rules, which are hypothetical in their origin or their meaning, or both: thus interpretive effort (ijtihad) is restricted to these rules and does not extend to other ones. Hypothetical rules are modifiable according to time and place, in order to secure their flexibility and dynamism and to face circumstances [ ] It is imperative that this interpretive effort should aim at the realisation of the general ends of sharia in its very principle of safeguarding the religion, physical integrity, reason, virtue, and wealth of the subjects. niqab case in 1996; cases on divorce and polygamy in 1997: distinction between fixed rules and rules that are accessible to ijtihad 06/03/2017 Page 27

28 Egypt The Arab Spring and its aftermath February 2011: revolution; transfer of power from Hosni Mubarak to the Supreme Council of the Armed Forces (SCAF); suspension of the 1971 constitution and dissolution of the parliament March 2011: referendum; adoption of the Provisional Constitution of the Arab Republic of Egypt / the Constitutional Declaration of 2011 (63 articles) Article 2 of the Constitutional Declaration: [ ] The principles of Islamic law are the chief source of legislation. November 2011 to January 2012: parliamentary election June 2012: Mohammad Mursi elected as President New Constitution. Power of Al Azhar as body of interpretation July 2013: Mursi was overthrown January 2014: Vote on new Constitution 98% approval 06/03/2017 Page 28