Shariah Notes

Islamic law

**Itjihad – a process where a scholar of islam strives to come to a resolution/conclusion on a legal issue (nutshell) - process of reasoning

Shariah

- Process of extracting rules

- Has certain meanings and also has meanings which are not attached to the literal meanings – certain assumptions – Arabic word which means the road/path to be followed – but literal terminology to narrow it down even further means not just a path – path that leads somewhere – path has a destination, leads to a watering place which demotes purity – so when we talk about shariah we are referring to a water way that leads to a main water source and an analogy can be made that for justice, water is necessary – scholars have said that shariah is a path that leads to God, through a particular agent and that agent is Prophet Muhammed (SAW), whose teachings are taken on board.

The law as a divinely ordained path of conduct – path that leads towards a particular destination

One of the meanings of Islam is peace.

Jurisprudence: - when we talk about Islamic law, we are talking about jurisprudence

What is (muslim) jurisprudence? Legal theory and the philosophy of the law, the rationale behind the law, the ‘what’ and the ‘why’ of the law

Muslim jurisprudence is the science of ascertaining the precise terms of the shariah and is known as fiqh – fiqh means understanding and intelligence – it’s a means of comprehending things, means of making sense of things – this is the role of the mujtahid (someone who exercises itjihad)

Fiqh and usul go together usually or are referenced together – the usul are the roots of Islamic law and the usul expounds the methods by which the detail comes out (the fiqh)

A lot of islamic law was framed after the passing away of the prophet (SAW).

How would shariah law differ from the law we have here in the west?

• Scope of change in western law whereas itjihad – which has always existed

• Here in the UK we have a unwritten constitution

• The scope in shariah is arguably larger because its regulating humans and there relationship with their neighbors but not just neighbors, also their relationship with state, God and themselves, their inner conscious.

• Shariah law is the expression of the divine law

Study of Islamic law, also a study of religion, they have a strong bond between the two of them – in shariah you have duties which are placed on the individual in a society, in a state, those duties which the individual is considered to owe to his or her creator (God) and those duties which a individual is considered to owe to fellow human beings – ibadat (duty owed to God) and ma’amalat (duty owed to others) – examples of second category are inheritance law, family law, contract law, criminal law, ethics, administrative procedure, constitutional law, wills, trusts, estates, torts, evidence etc…

The history of Islam as a religion

Pre Islamic Arabia

• Tribal system – heart of the system, a system of tribes, a group of individuals joined together by common ancestor, each set of tribes had its own customary laws – laws of inheritance, criminal law etc. in the tribal system you had two sets of people, you had the Bedouins and the sedentary population within the Arab society - Bedouins travel from place to place, the sedentary population were those who had a permanent base, they remained or lived in one particular area e.g. mecca, medina – the tribal system was such that there was no protection from outside ones tribe. – Why would this be the case? Because they were accustomed with it

• System of blood money compensation

One of the main cities was mecca, it was a trading city, it had commercial relations with southern Arabia, and also South Persia and Iraq – Taif was another city not far from mecca which was also significant and also Madina, which was 250 miles north from Mecca. Mecca was prosperous because of its position; it was in the center of trade route. In madina, the two main tribes that you had were the Aws tribe and the khazraj tribe.

The judicial system – there was no organized judicial system, you had mediators who were considered to have some kind of super natural powers, other than that there was no real organized judicial system.

Belief in Animism – belief in spirits

Mediatiors (kaheens)– dealing with disputes

Arbitrator – matters would be referred here if there were disputes before the arbitrator the tribal chiefs would try and resolve the disputes

Marriage – in pre Islamic Arabia there were four categories of marriage

1. Hand in marriage

2. A man who desired noble offspring would ask his wife to send for a great chief and with the consent of the noble and the wife, there would be intercourse between the noble and the wife

3. A number of men, less than 10 would be invited by a woman to have intercourse with her

4. You had a number of ladies who are well known, and they had a definite number of visitors, and the flag outside their home was a system of calling or inviting the men, the men who came to the premises of that person were all assembled alongside a physiognominist (basing them on their facial features)

• There was also a form of temporary marriage known as Mutta – which was later prohibited

• Patriarchal society – women not given any rights what so ever, everything had to be done through the male of the family , women weren’t ever a free agent in marriage, there was unlimited polygamy.

• It was also considered shameful to give birth to a daughter – there was a practice of burying daughters alive – alternative sources suggest that it was not as widespread as it was assumed to be but it did occur – these daughters who were buried alive would be resurrected and would question their fathers

Inheritance and succession – in pre Islamic Arabia, women were not allowed to inherit property but there were exceptions, only the males inherited.

Religion – main system of belief was idolism, there were 360 idols worshipped for different purposes, but these worshippers did believe in Allah but...

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