Introduction to Islamic Law

Transcription

1 Introduction to Islamic Law Lily Zakiyah Munir Center for Pesantren and Democracy Studies (CePDeS) Indonesia

2 The Trilogy of Islam Religion ISLAM/SHARIAH Islam (Shariah/legal) Submission, comprising of series of activities: bearing witness (shahadah), praying, zakat (tax payment), fasting in Ramadhan, and Hajj (pilgrimage to Mecca) regulated in FIQH (narrow Shariah) legal system Iman (Aqidah/belief) Faith, understanding that everything in universe is governed by tauhid Oneness of God/THEOLOGY: belief in God, Messengers, the Angels, the Books, the Last Day, God s Destiny for humans. Ihsan (Spiritual/ethics) Doing what is beautiful, deepest dimension of Shariah, focused on human intentionality; awareness of God s presence TASAWWUF or SUFISM, concerned with ethical and mystical system.

3 WHAT IS ISLAM? Literal meaning: salima yaslamu salaaman (safe and peaceful); aslama yuslimu islaman (to bring safety and peace) The Qur an laden with aesthetics and moral ethics succeeded in transforming then Arab nomads into societies with norms and values. And I send you not except as a Blessing to the whole universe. PEACE: Passive (inward) through rituals; Active (outward) through social interactions salam (greetings)

4 BALANCES IN ISLAM RITUAL SPIRITUAL WORLDLY LIFE LIFE IN HEREAFTER TRANSCENDENTAL SOCIAL HUMAN RIGHTS HUMAN RESPONSIBILITIES

5 What is SHARIAH? Way to God, many ways same destination Plurality and Flexibility of Shariah: To each among you have We prescribed a law and an open way. If Allah had so willed, He would have made you a single people, but (His plan is) to test you in what He has given you; so strive as in a race in all virtues. The goal of you all is to Allah; it is He that will show you the truth of the matters in which you dispute. (QS al-maidah/5:48)

6 Roots of Shariah: Textual and Rational GOD The Qur an Prophet The Sunnah Human Tafsir (Exegete) Human Fiqh (Law) Textual versus Rational

7 Hegemony of Texts, locus of contestation The Qur an The Sunnah Tafsir These pillars of Islam came into being not in a vacuum. Each came into being in a society with social, cultural, political and technological setting, and with different internalization of religion. The Qur an was revealed gradually; The Sunnah was never came out of the blue; The exegetes had their own personal abd social backgrounds; Fiqh is actually a response to problem(s) in a society; Fiqh Reference for a continually changing life should not be a source which relies on a changing life as well

8 What is the QUR AN? Literal meaning: reading or recitation The Book containing God s speech revealed to the Prophet Muhammad and transmitted to us by continuous testimony. There are 114 Surahs, 6235 verse of unequal lengths; less than 1/10 (about 350) legal verses, most in response to actual problems encountered such as infanticide and unlimited polygamy; on a whole, confirmed and upheld customs of Arab society and changed only when necessary. The rest concerned with matters of belief and morality, faith, etc. Reciprocal dialectics between the Qur an and human beings, The Qur an calls itself al-huda, The Guidance. Revealed in two phases, Mecca (19 parts) and Medina (11 parts). Mecca verses devoted to matters of belief, the Oneness of God, Prophecy, invitation to Islam; Medina verses emphasize principles regulating political, legal, social, and economic life of the new community.

9 What is the HADITH/SUNNAH? All that is attributed to Prophet Muhammad, his acts, his sayings, and whatever he has tacitly approved, plus all the reports describing his physical attributes and character. The Prophet, I have left two things among you. You shall not go astray so long as you hold on to them: the Book of Allah and my Sunnah. As a second source of shariah, Sunnah could not possibly contradict the primary source (the Qur an). The process of hadith formation involves interpretations of its re-teller (rawi) from the period of the sahabat to its codification in mid 3 rd century of Islam. Two tendencies: the textual approach and reasoning approach.

10 What is TAFSIR (Exegeses)? The process of understanding Qur anic texts. 1) Tafsir bil ma tsur based on reports deriving from the Qur an, the Prophet, the Companions 2) Tafsir bir ra yi based on ijtihad (reasoning) Hermeneutics discourse of contemporary exegetes: The Qur an is not to be treated as a dead text, but as a living text with spirit for transformation.

11 What is FIQH? Literally means understanding. A discipline which seeks to understand detailed and general rules of Islamic teachings. Fiqh deals with practical aspects of shariah regulating human activities in their life cycle. As interpretation of texts which carries certain historical context, differences of opinions of fiqh scholars are inevitable. Different opinions of jurists are blessing to the Muslim community (The Prophet).

12 Historical Development of Sharia Formation of Foundation During Prophet s life Qur an and Hadith in formation; Prophet was sole authority through ijtihad Codification and Registration Period Fiqh laws codified and registered by the Companions. The Qur an and Hadith being collected; strong role of ijtihad Formation of Schools of Fiqh (2 nd century) Sharia was constructed based on works of earlier Fiqh scholars. Masterpieces of Fiqh produced. Period of Adhering 2 nd -3 rd centuries How to save the already existing Fiqh products. Monumental activities in interpreting the Qur an and sifting the Hadith. Transforming Fiqh into Laws in modern times Fiqh becomes foundation of laws in countries With Muslim population like Indonesia

13 Schools of Thought in Fiqh Hanafi ( ) Maliki ( ) Shafi i (782- Hanbali ( ) Oldest, most tolerant liberal and flexible. Broad minded without lax, appeal to reason over text, and a quest for the better; elevate belief over practice. The Iraqi (rational) stream. He was Disgraced and imprisoned. Followers in the Arab Middle East, India, Pakistan and Afghanistan Lived in Medina, locus of traditional Fiqh. He developed Medina consensus of opinion using Hadith as guide. Medina is special because of political History. Most Sharia laws were made during Prophet s life In Medina. Followers in North, Central, and West Africa. Student of Maliki. Two phases of ijtihad Baghdad and Egypt. Emphasizes Importance of analogy (qiyas) when no context found in texts. Shafi i divides texts into qath i (definitive) and zhanni (doubtful). He is Father of Usul Fiqh (Roots of Fiqh). Followers in Iraq, Yemen, Southeast Asia. His Fiqh developed from textual and historical perspective. Orthodox, opponent of the rationalist. Hanbali inspired Wahhabism in 18 th century, puritanical movement in Arab peninsula. His followers spread in Northern and Central Arabia.

14 Challenge to Shariah: Politicization Formal shariah seek power to control Muslim society; Drain a lot of energy, scholarship, emotion; Strikingly different face of Islam; o Imposition of theocracy over democracy o Violations of human rights o Institutionalized discrimination against women and non-muslim o Severe corporal punishment

15 Methods for Explaining Shariah The authoritative given : the Qur an and the Sunnah Ahl ilm (People of the learning ) Textual approach Human intelligence and understanding (fiqh) to fulfill needs for succeeding generations Ahl fiqh or ahl ra y (People of comprehension) Rational approach

16 Normative Basis of Shariah: Maqashid Shariah (Overall Goal) Imam Shatiby Basic human rights in Islam Al Kulliyatul Khoms Right for protection of one s faith Right for protection of one s life Right for freedom of thoughts Right for protection of one s property Right for protection of progeny God loves to see that His concessions are taken advantage of, just as He hates to see the commission of a sin. (Hadith) Fulfill your duties to the extent of your ability. (Hadith)

17 What is Ijtihad? A method to exert all capacities to find a shariah ruling which can be used to reach a legal decision.