Islamic lawMain characters:• Containing both religious precepts

and rules of conduct• Regulating relations between

humans and God and interaction among humans

• Confessional, ethical, imperative, extraterritorial and immutable in nature

Shar’ia and Fiqh

• Right path, limits set by God to human freedom of action

• More specifically, the study and application of fiqh allows to extract from the sources (usul al-fiqh) the qualification of human actions into the five categories of obligatory (fard/wagib), prohibited (haram), advisable (mandub/mustahabb), unadvisable (makruh) and free (ga’iz)

Usul al Fiqh

• Qur’an (divine revelation through Muhammad)

• Sunna (traditions of the Prophet handed down through hadith)

• Igma (consensus of the Muslim scholars) • Qiyas (analogic reasoning based on

comparison)• Other secondary sources

Arkan ud-Din – Pillars of Islam

• Shahada – profession of faith attesting the unicity of God and Muhammad’s prophetic mission

• Salat – mandatory formal worship• Zakat – mandatory alms-giving• Sawm – fasting during prescribed periods• Hajj – pilgrimage to Mecca

Establishment of Islam

• 610 (circa) – beginning of the Qur’anic revelation to Muhammad

• 613 – beginning of public preaching in Mecca• 622 – Hijra/Hegira, migration of Muhammad

and the first Muslims from Mecca to Medina• 632 – Death of the Prophet, Muslim control

Mecca and most of Arabia

Rightly guided Caliphs

• Abu Bakr (632-634) – consolidation in Arabia, expansion to Siria

• Omar (634-644) – conquest of Persia and Egypt

• Othman (644-656) – written compilation of the Qur’an

• Ali (656-661) – political divisions and rise of the Umayyads

Umayyad dynasty (661-750)• Caliphate becomes hereditary• Capital moves to Damascus• Conquests extend to North Africa, Spain, parts of

Central and South Asia• Beginning of political and religious schisms

Abbasid dynasty (750-1257)• Capital moves to Baghdad• Caliphate fragments into multiple polities• Caliphs’ role becomes progressively symbolic

Expansion of the Islamic World

Sunni and Shi’a Islam

Islamic scholars (ulama, fuqaha)• Non-existent during the first Caliphs’ era • Need for a specialised body of legal experts

arise with conquests, increased administrative burden and secularisation of the political leadership

• First Islamic judges appointed during the Umayyad period

• First specialised scholars appeared in Kufa, Basra, Medina and Mecca

The Four Schools of Jurisprudence (madhab)

• Maliki (from Malik ibn Anas, m. 795) – Medina, first to develop, leans progressively more on established judicial practice

• Hanafi (from Abu Hanifa, m.767) – Kufa, emphasis on reasoning and jurist’s preference

• Shafi’i (Muhammad al Shafi’i, m.820) – Baghdad, first to systematise the sources of jurisprudence

• Hanbali (Ahmad ibn Hanbal, m.855) – Baghdad, rejects to a great extent Qiyas, limits Igma to the first generations of Muslims

Current distribution of the schools of jurisprudence

Usul al Fiqh – Sources of the Law

• Qur’an (divine revelation through Muhammad)

• Sunna (traditions of the Prophet handed down through hadith)

• Iğma (consensus of the Muslim scholars) • Qiyas (analogic reasoning based on

comparison)• Other secondary sources

Qur’an• Word of God • Eternal, non-created• Inimitable

• Divided in 114 suras, each sura composed of different number of ayat

• Out of 6200+ verses, around 500 contain juridical rules

Rules contained in the Qur’an• Religious dogmas about God, Scriptures and

the Day of Judgement• Moral norms for humans as to what virtues

and qualities to seek• Guidelines for how to perfom worship• Rules regarding food and dress• Juridical rules about different fields of human

action

Juridical rules found in the Qur’an• Slavery, freedom and human statuses• Marriage, repudiation and successions• Offenses and punishments set for illegal sexual

relationship, false witness in cases of illegal sexual relationship, theft, banditry, consumption of alcohol, apostasy

• Commercial transactions• Taxes, regulation of warfare, prisoners• Political consultation and governance

Sunna - Tradition

• Sunnat al Nabi - Traditions of the Prophet Muhammad recorded by his companions and family members, called hadith

• Hadith integrate rules explicitly set in the Qur’an and provide a model for all Muslims

• Hadith can consist of deeds, sayings or tacit approvals

Development of the science of hadith in the 9° century

• Sunna considered autonomous as a source of law• Six main collections of hadith are compiled and

since then accepted as the official Sunni canon• Classification of the hadith according to their isnad

(chain of transmission) into:- Sahi (sound)- Hasan (good)- Da’if (weak)- Maudu’ (forged)

Iğma - Consensus

• Consensus of the community, through the consensus of the scholars of fiqh, on a certain issue

• Infallibility of the umma attested by hadith

• Consensus gives a powerful legitimacy to norms and institutions in the Islamic world

Qiyas – Analogy

• The application of comparison with a legal solution included in the Qur’an or Sunna to a similar problem

• The use of Analogy as a source of Law was resisted by many scholars, and it is still limited according to different schools

Secondary sources of Law

• Ra’y / Istihsan (personal reasoning / preference)

• Istislah (consideration for public interest)• ‘Urf (custom)• Amal (existing practice of jurisprudence)

Iğtihad and Taqlid • Iğtihad = individual effort at interpreting

sources and making decisions in Islamic Law• Taqlid = relying on the authority of past

scholars and previous legal rulings• After the consolidation of the madhab system

between the 9° and 10° centuries, “ther doors of Iğtihad” are considered closed.

• Several Islamic scholars, especially reformists, advocated for a renewed Iğtihad in modern times

Juridical responsibility• Legal capacity is complete in the mukallaf:

Muslim, adult, sane• The actions of the mukallaf are classified

according to five degrees lawfulness: - fard/wagib (obligatory) - mandub/mustahabb (recommended) - ğa’iz (free) - makruh (unrecommended) - haram (prohibited)

The status of non-Muslims

• non-Muslims living in Islamic countries are called dhimmi, they are protected under payment of a separate tax (jazya)

• They are excluded from some privileges and some duties specific to Muslims

• In other respects they enjoy equal legal status, religious freedom and legal autonomy when Muslims are not involved

Furu’ al Fiqh – Branches of the Law

• ‘Ibadat – rules for worship, relations between humans and God

• Mu’amalat – juridic relationships among human beings:

- Marriage and Family Law - Successions and inheritance - Contracts and obligations - Crimes and penalties

Nikah - Marriage• Muslim marriage is a contract between

husband and wife (thorugh her tutor), it can be poligamous (up to four wives)

• Husband pays a nuptial gift (mahr) to wife • Husband can repudiate wives on condition or

by talaq (declaration of repudiation)• Wives can obtain dissolution of marriage by

mutual accord, on condition or because of husband faults

Fara’id - Successions

• Islamic Law does recognize legal heirs, the deceased’s will can affect only 1/3 of the patrimony

• Two main types of heirs: - Ahl al fard, obligatory shares stipulated in the Qur’an - ‘asaba, other agnates which receive what is left from the first group

Goods and Ownership

• Goods which can be made the object of commerce are called mal

• Goods are composed of substance and usufruct/enjoyment

• Goods that are excluded by rights of ownership (milk) are either illicit, below or above commercial value, or public property

‘Aqd - Contract

• In the absence of a classification of different types of contracts, the contract of sale works as a model

• The prohibition of riba (monetary interest) affected Islamic commercial law

• Legal devices such as the hawala (transfer) or the salam contract made up for some of the functions of a banking system

Crimes and Punishments

• Hadd – crimes for which corporal punishment is fixed by the Qur’an and that are haqq Allah (right of God), automatically prosecuted by the community and for which no pardon is possible

• Ta’zir – other crimes for which punishment is discretionary and decided by the judge

• Qisas/diya – retaliation or blood-money for crimes of damage against persons or property

Hadd punishments

• Illegal sexual intercourse (zina), capital punishment/lashes

• False accusation of illegal sexual intercourse (qadhf), lashes

• Drinking wine (shurb al khamr), lashes• Theft (sariqa), mutilation• Highway Robbery (qat al tariq),

mutilation/capital punishment

Ta’zir - Discretionary sanctions

• Ta’zir are decided by the judge and can consist of corporal punishment, imprisonment, public disgrace, banishment, confiscation of money or goods

• The discretionaty power of the judge is wide but limited (by the political power and the custom), punishment cannot cause death, and anyway always be inferior to hadd

Qisas - Retaliation

• ‘Amd – intentional, deliberate offence (like intentional homicide), there is no possibility of espiation, the next of kin has the right to ask and waive retaliation (gratuitously o for blood-money)

• Quasi-deliberate, entails both espiation and heavier blood-money

• Mistake, as above but normal blood-money• Indirect offence, only blood-money