LAHORE UNIVERSITY OF MANAGEMENT SCIENCES (LUMS) DEPARTMENT OF LAW & POLICY WINTER 2006-2007 LAW 161 / SS 318 ISLAMIC JURISPRUDENCE Kamaluddin Ahmed Room 237A (Next to Auditoriums A-14 and A-15) Tel.: 5722670-9 Ext. 2237 Hkamaluddin@lums.edu.pkH Class Timings: MW 9:40-11:30am Walk-in Office Hours: MW: 11:45am-1:15pm Th: 11:45am-12:45pm Sign-up Office Hours: Th: 3:30-5pm Or by appointment TA: Maria Omar mariao@lums.edu.pk UIntroduction This course concerns itself with Islamic jurisprudence its theoretical formulations and historical developments. The course begins with an introductory session on the philosophy of Islamic law followed by a discussion of the early development of Islamic law and legal theories. We then move to a detailed examination of the theoretical, textual, and rational tools employed by jurists to derive sacred law. The course concludes by examining the interaction between law, history, and society, as well as charting early trajectories of revival and reform. This course is useful for those with an interest in law and legal theory, legal history, and classical Islamic Studies. It is also beneficial for those who plan to go into NGOs, politics, journalism, human rights and related fields as debates and discussions on Islamic law and legal theory are increasingly at the forefront. It is hoped that by the end of the course, students will have engaged the literature on Islamic jurisprudence sufficiently enough to: 1-understand legal reasoning as practiced by Islamic jurists, 2- critically assess statements made in the field of Islamic law and legal theory, and 3- themselves think constructively and independently on such matters. URequirements and Grading Class Participation and Attendance 20% In-Class Response Quizzes 15% Term Paper (10-12 pages) 25% Comprehensive Final Exam 40% 1
Attendance is, by consent of the Dean, mandatory. Students who arrive in class more than 10 minutes late will be marked absent. Students will be granted one free pass to use at their discretion after which absences will be recorded. Excused absences include documented illnesses, family emergencies and the like. All other absences will be considered unexcused. The final decision lies with the instructor. 5% of your final grade will be based on Attendance. Unexcused absences will result in grade reductions according to the following chart: Number of Unexcused Absences Grade Reduction 1-1 of the 5% for attendance 2-3 of the 5% for attendance 3-5 of the 5% for attendance more than 3 5% reduction of overall grade per extra absence Class sessions will be a combination of lecture and discussion. Assigned readings form the basis of my lectures, our class discussions and your written work. Keeping up with the readings is thus crucial for satisfactory performance in the course and everyone is expected to come to class having digested the readings, ready to explain and analyze them, and to participate intensively in discussions. Occasionally, and at random, response quizzes will be given at any time during class. These will consist of term definitions and/or multiple-choice questions based on the readings for that day. Class Participation may be earned by making a thoughtful and valuable contribution in class or via email. Email CP on readings must be received before the start of class, and email CP on lectures and discussions must be received before the start of the next class. Term papers should provide a succinct analysis and/or critique of a topic covered in the course and should not be lists of quotes or summaries of the readings. For example, you may challenge the author s definition of terms, question his analysis or argument, raise relevant questions left unanswered by the author, present your own analysis of the issue under examination, or discuss a common trait in the different readings for a particular theme. Although topics will be assigned, students may also propose their own topics for approval. Questions will be based exclusively on course readings, lectures, and discussions. No further research is required for papers. Cases of plagiarism will be dealt with seriously and as per LUMS policy. Note: Late submission of papers will adversely affect your grade. Late papers will be downgraded a third of a letter grade per day. For example, a paper due Tuesday that would earn a B when handed in on Thursday will receive a C+. Papers submitted more than three days after the due date will not be accepted. The comprehensive final exam will cover material from the entire course. 2
Course Outline All readings are in a reading packet available for purchase from the Nashuatec photocopy center and for loan from the library. Students are strongly encouraged to acquire their own packet so that they may mark and highlight passages while reading. You must bring the readings with you to class as we may refer to specific passages during class discussions. There will be 20 class sessions of 100 minutes each. There is no midterm for this course. UMODULE ONE: PRELIMINARIES Session 1 AN ISLAMIC PARADIGM OF JURISPRUDENCE Divine Sovereignty and Human Subordination in Bernard Weiss, The Spirit of Islamic Law (Athens, GA: The University of Georgia Press, 1998), 24-37. "Islamic Law as Islamic Ethics," A. Kevin Reinhart, Journal of Religious Ethics 11 (1983): 186-203. Introduction to Usul al-fiqh in Mohammad Hashim Kamali, Principles of Islamic Jurisprudence (Cambridge: Islamic Texts Society, 1991), 1-13. Session 2 Introduction in Bernard G. Weiss, The Search for God s Law: Islamic Jurisprudence in the Writings of Sayf al-din al-amidi (Salt Lake City, UT: The University of Utah Press, 1992), 1-16. UMODULE TWO: DEVELOPMENT OF ISLAMIC JURISPRUDENCE THE FORMATIVE PERIOD The Qur an as a Legal Document in Wael Hallaq, A History of Islamic Legal Theories (Cambridge: Cambridge University Press, 1997), 3-7. Jurisprudence in the First Century, A History of Islamic Legal Theories, 7-15. Session 3 THE EVOLUTION OF ISLAMIC LAW The Textualist/Intentionalist Bent, The Spirit of Islamic Law, 38-65. The emergence of an Islamic legal ethic in Wael Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press, 2005), 45-54. 3
The early judges, legal specialists and the search for religious authority, The Origins and Evolution of Islamic Law, 63-78. UMODULE THREE: ISLAMIC LEGAL THEORY Session 4 ISLAMIC LEGAL THEORY I PRIMARY SOURCES THE QUR AN The First Source of Shariah: The Quran, Principles of Islamic Jurisprudence, 14-43. Treatise on the Principles of Tafsir, Imam Ibn Taymiya translated by Jane Dammen Mcauliffe in John Renard, ed., Windows on the House of Islam (Berkeley: University of California Press, 1998), 35-43. Qanun at-ta wil, Imam Abu Hamid al-ghazali translated as The Canons of Ta wil by Nicholas Heer, Windows on the House of Islam, 48-54. Rules of Interpretation I: Deducing the Law from its Sources, Principles of Islamic Jurisprudence, 86-99. Session 5 Rules of Interpretation I: Deducing the Law from its Sources, Principles of Islamic Jurisprudence, 99-123. Session 6 Rules of Interpretation II: Al-Dalalat (Textual Implications), Principles of Islamic Jurisprudence, 124-138. THE SUNNAH The Sunnah, Principles of Islamic Jurisprudence, 44-50, 58-65, 68-78. Weak Hadiths, Mulla Ali Qari and others, Reliance of the Traveler, 954-957. Legal Significance of Traditions and Matn Analysis and Criticism in Muhammad Zubayr Siddiqui, Hadith Literature: Its Origin, Development & Special Features (Cambridge: Islamic Texts Society, 1993), 110-114. Sessions 7 and 8 Guest Lecturer: Dr. Iftikhar Zaman 4
Discovering Practice: Textual and Non-Textual Sources in Ghassan Abdul Jabbar, Bukhari (Oxford: Oxford University Press, in press, 2007), 1-14. Readings on Hadith and Sunnah, translated by Dr. Iftikhar Zaman, 1-10. o Letter of Malik to Layth ibn Saad o Letter of Abbad (from the Sunan of Darimi) Lecture Notes and Handouts (available online) Session 9 ISLAMIC LEGAL THEORY II TEXTUAL TRANSMISSION "On Inductive Corroboration, Probability and Certainty in Sunni Legal Thought," Wael Hallaq, in Nicholas Heer, ed., Islamic Law and Jurisprudence (Seattle: University of Washington Press, 1990), 3-31. "Knowledge of the Past: The Theory of Tawatur According to Ghazali," Bernard Weiss, Studia Islamica 61 (1985): 81-105. Session 10 ISLAMIC LEGAL THEORY III SECONDARY SOURCES IJMA Ijma (Consensus of Opinion), Principles of Islamic Jurisprudence, 168-182, 185-189. "On the Authoritativeness of Sunni Consensus," Wael Hallaq, International Journal of Middle East Studies 18 (1986): 427-54. NASKH Naskh (Abrogation) Principles of Islamic Jurisprudence, 149-167. Session 11 QIYAS The Venture Beyond the Texts, The Spirit of Islamic Law, 66-87. Qiyas (Analogical Deduction), Principles of Islamic Jurisprudence, 196-228. Non-Analogical Arguments in Sunni Juridical Qiyas, Wael Hallaq, Arabica 36 (Leiden), 1990: 286-306. Session 12 FATWA OF A COMPANION The Fatwa of a Companion, Principles of Islamic Jurisprudence, 235-244. COMMANDS AND PROHIBITIONS 5
Commands and Prohibitions, Principles of Islamic Jurisprudence, 139-148. UMODULE FOUR: ISLAMIC LEGAL HISTORY THE FORMATIVE PERIOD "The legal text, the world, and history," A History of Islamic Legal Theories, 125-143. Session 13 "The formation of legal schools, The Origins and Evolution of Islamic Law, 150-177. "Legal Reasoning and its Practitioners" in A History of Islamic Legal Theories, 117-124. "Juristic Typologies" in Wael Hallaq, Authority, Continuity, and Change in Islamic Law (Cambridge: Cambridge University Press, 2001), 1-23. Session 14 AUTHORITY, CONTINUITY, AND CHANGE "The Rise and Augmentation of School Authority," Authority, Continuity, and Change in Islamic Law, 66-85. "The Logic of the Opinions" in Brannon Wheeler, Applying the Canon in Islam: The Authorization and Maintenance of Interpretive Reasoning in Hanafi Scholarship (New York: SUNY Press, 1996), 115-165. Session 15 Taqlid: Authority, Hermeneutics, and Function, Authority, Continuity, and Change in Islamic Law, 86-132. Session 16 Operative Terminology and the Dynamics of Legal Doctrine, Authority, Continuity, and Change in Islamic Law, 133-165. Ijtihad versus Taqlid in Sherman Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shihab al-din al-qarafi (Leiden: E.J. Brill, 1996), 79-96. Legal Change, Rank, and Legal Scaffolding, Islamic Law and the State: The Constitutional Jurisprudence of Shihab al-din al-qarafi, 96-102. 6
Session 17 UMODULE FIVE: LEGAL CHANGE, CULTURE, & SOCIETYU IJTIHAD, ISTIHSAN, MASALAH MURSALAH, URF: THEORY "Istihsan (Equity in Islamic Law), Principles of Islamic Jurisprudence, 323-350. Legal Logic and Equity in Islamic Law, John Makdisi, The American Journal of Comparative Law, Vol 33 (1985): 73-92. "Maslahah Mursalah (Considerations of Public Interest), Principles of Islamic Jurisprudence, 351-360. "Urf (Custom), Principles of Islamic Jurisprudence, 369-383. Session 18 IJTIHAD, ISTIHSAN, MASALAH MURSALAH, URF: PRACTICE Ijtihad in Haim Gerber, Islamic Law and Culture: 1600-1840 (Leiden: E.J. Brill, 1999), 71-91. Istihsan and Other Types of Innovation, Islamic Law and Culture: 1600-1840, 92-104. Urf (Custom) The Practical Secularization of Islamic Law, Islamic Law and Culture: 1600-1840, 105-115. "Social Reality and the Response of Theory, A History of Islamic Legal Theories, 162-206. Session 19 LEGAL CHANGE The Jurisconsult, the Author-jurist, and Legal Change, Authority, Continuity, and Change in Islamic Law, 174-194, 213-233. INTERRELATIONS BETWEEN THEORY AND PRACTICE The Furu and Their Interrelations with the Usul in Ahmad Atif Ahmad, Structural Interrelations of Theory and Practice in Islamic Law: A Study of Six Works of Medieval Islamic Jurisprudence (Leiden: E.J. Brill, 2006), 182-196. Session 20 MODULE SIX: SHIA JURISPRUDENCE The Ithna Ashari-Shi i Juristic theory of Political and Legal Authority, Joseph Eliash, Studia Islamica, No. 29 (1969): 17-30. Rationalism and Traditionalism in Shi i Jurisprudence: A Preliminary Survey, Hossein Modarressi, Studia Islamica, no. 59 (1984): 141-158. 7
Intra-Madhab Ikhtilaf and the Late Classical Imami Shiite Conception of the Madhab, Robert Gleave in The Islamic School of Law: Evolution, Devolution, and Progress edited by Peri Bearman, Rudolph Peters and Frank Vogel (Harvard University Press, 2005),126-146. Course Review and Evaluation: Where do we go from here? THE END 8