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72 Cards in this Set
- Front
- Back
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The Sunna of the Qur’an (second main source of Islamic law):
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• It is essentially equal to the Qur’an
• The Sunna is an explanation of the Qur’an as well as a supplement to the Qur’an. • In some senses, it is an independent sources of Islamic law. |
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What is the Sunna?
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• Literally it means a clear beaten path – a tradition that is confirmed by the community.
• Technically, in terms of Islamic law, the Sunna refers to the normative practice or established course of conduct of the Prophet Mohammed. |
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The Sunna is divided into three inter-related dimensions:
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1. The Prophet’s statements
2. The Prophet’s actions 3. The Prophet’s tacit approvals |
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Hadith
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• Literally means “report”
• It is a single report of an individual statement/action/approval of the Prophet on a single occasion. • As individual reports, they go through different modes of transmission. |
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Companions (note capital ‘C’)
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The Prophet’s followers who were there at the time of the Qur’an, who see, hear and interact with him.
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Successors
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The people who followed the Companions.
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Two modes of transmission of Sunna:
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Tawatur
Ahadi |
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Tawatur
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Diffuse congruence. When too many people share the same information in such a way that they could not have conspired to tell a lie.
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Ahadi
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A report that bears a reasonable possibility of being false. It is not as diffuse as Tawatur. It’s where it is limited to the direct descendants of one or two Companions.
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Istihsan
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Literally means “to deem good.” It is an effort to sort of have the ability to fine tune the application of the law. It provides for the possibility of drawing exceptions.
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Fiqh
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(Idea / The law itself/religious jurisprudence) – The human interpretation of what god revealed. There can be many fiqhs.
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Sharî’ah
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(Islamic law) Is Islamic law as it exists in the divine mind. The divine mind chose to manifest it (dictates). (i.e. the Qur’an and Sunna)
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Usûl al-Fiqh
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Legal theory / sources of fiqh / science. The toolbox of jurists.
It literally means “the principles of fiqh.” The basis upon which fiqh is grounded. |
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Madhhab
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An Islamic school of law,
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The four Sunni madhhabs:
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(1) The Hanafi Madhhab, (2) The Maliki Madhhab, (3) The Shafi'i Madhhab, (4) The Hanbali Madhhab
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Four agreed-upon sources (of Islamic law)
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(1) Qur’an, (2) Sunna, (3) Consensus, (4) Analogy
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Sunnah (vs. Hadith)
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Literally it means a clear beaten path – a tradition that is confirmed by the community. Technically, in terms of Islamic law, the Sunnah refers to the normative practice or established course of conduct of the Prophet Mohammed.
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The Sunna is divided into three inter-related dimensions:
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1. The Prophet’s statements
2. The Prophet’s actions 3. The Prophet’s tacit approvals |
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Hadith
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Literally means “report.” It is a single report of an individual statement/action/approval of the Prophet on a single occasion. As individual reports, they go through different modes of transmission.
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Five Fundamental Principles / Interests (implied by Islamic law):
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(1) preservation of life
(2) preservation of religion (3) preservation of mind / sanity (4) preservation of property / money (5) preservation of progeny * (6) some also include the preservation of dignity |
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Mashhûr
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The “going” opinion of a school. (Opinion of the majority) E.g. - The (hanafi) school does not have one opinion on each thing. But they will have one majority “going” opinion at the school at a time.
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Râjih
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(Preferred Opinion) The individual jurist will always be put in the position where his or her likes come into conflict with the going opinion of the school. When that happens, they put forth the “preferred” opinion. It is an individual assessment. So it does not carry the authority of the (Hanafi) school, unless, you can bring others onto your side.
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Istihsân
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(Juristic preference / Equity) Muslim scholars may use it to express their preference for particular judgments in Islamic law over other possibilities. Istihsân is simply an approach to the law that allows for certain situations – to individualize cases.
It is a disputed tool, and is primarily used for adjusting the application of the law, not the interpretation of the law. Applying the law in a particularized way noting exceptions… e.g. - It is generally agreed that a muslim woman cannot marry a non-muslim man. So there is unanimous consensus. What if a woman is married to a non-muslim man and is considering becoming muslim? The jurists would say that in this particular case, they will relax the application of that particular law. Istihsan means “to be good” They see this particular application as a way of being more faithful to the law. |
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Two modes of interpretation
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(1) Ijtihâd (reading the Koran directly). (2) Taqlîd (going through various schools of law)
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Ijtihâd
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(Independent interpretation) – Looking at the Koran directly, not using the various interpretations
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Hukm
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Legal rulings (or verdict).
It has two meanings: (a) A legal ruling in the sense of a judge’s ruling (making it different from a fatwa) it is only binding on the parties in that case. (b) Legal ruling in the sense of the five legal statuses. |
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Hukm Taklîfî (Five Legal Statuses)
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These are the main legal statuses of things in existence. All things in existence come under one of 5 petitionary rulings. Petitionary legal statuses indicate only the status of an individual who engages in a particular act before god on the day of judgment. The fact that it is obligatory or forbidden does not entail any earthly punishment. (it may or may not). They only indicate how we will be met by god on the day of judgment.
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Fatwâ
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A non-binding legal opinion. It may be socially binding within a school of law. It will carry some social weight, but it has no legally binding status. Just because it is not binding, does not mean that it is not probative and that it does not confer legal rights. It can be authoritative if it comes from an authorized jurist.
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Dalîl
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(Proof) Every claim of a right or legal obligation (not a permission) must be backed up by objective proof. (Dalil). Permissions do not require proof.
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Four Main Categories of Word Interpretation Level:
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(1) Nass (“Closed”)
(2) Zâhir (“touch,” in “Or you ‘touch’ women”) (3) Mu’awwal (4) Mujmal (Qur’, for menstruation and its cessation) |
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Difference between Shari’ah & Fiqh
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Shari’ah is the abstract version of Islamic law as it appears in the divine mind. Fiqh is the human interpretation of what god revealed. We have predominantly been studying Fiqh in this course.
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Legal Scaffolding
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(Lego concept) It takes what you have within the school and rearranges it without going back to scripture, and without arguing that the school is wrong. If it is wrong, you can’t make authoritative doctrine out of wrong doctrine. The doctrines of the school are like legos – you can rearrange them while maintaining the authority of school doctrine.
The Process of building on the schools of law as opposed to going back to revelation and the sources. Child custody case. Went back and found exceptions in the school and based on those exceptions, developed the conclusion that women could keep their children. Nothing from the Koran, nothing from the sunnah, only the school’s authority. |
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Legal Liberalism
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An approach that circumvents the schools of law, goes back to scripture and invokes context and the space time differences as the basis for reaching new conclusions / different interpretations.
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*‘illah
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The ratio ascendi in analogy, the reason for the law. It is key to analogy because we can’t do analogy without the ‘illah.
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hikmah
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The reason behind the reason in analogy. If intoxication is the ratio ascendi, then the question becomes “well why is intoxication bad?” That is the hikmah. Say it promotes belligerance…
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Maslahah
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Public utility / public interest. It is primarily a means of promulgating laws where scripture is silent. E.g. there is nothing in scripture that would mandate that muslims must have drivers licenses. Maslahaha says that without drivers licenses, the community would become vulnerable which goes against Islam.
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Istishâb
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(Presumption of Continued Status) If we know something is present, we assume that presence to continue into the future unless there is some proof of its discontinuity. If we know or can presume something is absent, we assume that until we have proof of presence.
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Blocking the Means
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Where a prima facie legal act will lead to an illegal end. We can band a prima facie legal act if it is to be taken for the purpose of an illegal end. Selling the magic marker & buying it back. On its face its legal, but underneath, it is a loan for riba. Some jurists ban this transaction.
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General vs. Specific (scope)
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If you take the word “women” if its’ general it refers to every woman. If we take it to be specific, it can mean “wives” or even “slave women.” It could be a subset of the motherset. Specific – khass / General – ‘amm
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Hukm Wad’î
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Positive, Descriptive/Declaratory Rulings. As opposed to taklifi which is petitionary. Hukm contains: (1) Sabab (2) Shart (3) Mani’
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Sabab
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(legal cause) - The sun declining from its meridian. (you must go to the noon prayer)
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Shart
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(legal prerequisite) - That the person be of majority age. (the noon prayer becomes obligatory when you come of age)
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Mâni’
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(legal impediment) – A woman being on her mensus. (the noon prayer is not obligatory)
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Taqlîd
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Interpretation of scripture through the medium of the schools of law. Their interpretations become the starting point and they stand as authoritative interpretations. (borrowing authority) Equal to stare decisis.
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Improper Taqlîd
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Following the schools of law on questions of fact as opposed to questions of law. You are putting authority behind their factual assessments as opposed to limiting their authority to their legal assessments. (User error) e.g. – how long is the warranty period on real estate? 36 days is a factual assessment of how long it would take to be fair, not a legal assessment.
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Rashid Ridâ
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A legal utilitarian. Argued for marginalizing the schools of law, going back to scripture, processing it primarily through maslahah (public utility). He died in 1935.
Believed that: -God perfected matters related to worship but only gave guidelines to worldly matters. - The only credible consensus is that of the Companions. - Concepts of necessity, interest and human needs were a large part of his doctrine. - Natural law |
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Fazlur Rahman
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(Legal Liberalist) Heightened the importance of context and space time differential.
- Quran must be understood as a whole AND in a situational context. - One must understand the reasoning behind the text to deduce the general principles, which are then applied to muslim society. |
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Mutlaq vs. Muqayyad
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(Unqualified vs. Qualified): If they say “bring forth a witness”, they mean any witness (unqualified). If they say bring forth a Muslim witness, that is qualified.
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Nass
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The highest ranking it can get. It is express. There can be no other meaning inferred. Nass is univocal (bearing one meaning only, e.g., “Closed”). There is one and only one meaning you can get from it.
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Zâhir
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A term that has more than one meaning, but one of them is primary. E.g. “men” - primary meaning is “adult male” / secondary meaning is “humankind” including women. “touch usually means to physically touch a meaning” it can also mean (secondarily) “to sleep with.”
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Mu’awwal
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You take the secondary meaning as the chosen meaning. One of the things that you can always do is to argue that a term has more than one meaning, even where its apparent meaning is very apparent. To add meaning to words to opt out of a primary meaning. If you are going to argue for the non-apparent meaning, you have to present proof.
E.x. - “Any woman who gets married without a male representative the marriage is invalid” The primary meaning of this is that “any women” (adult female) would require a male representative to validate her marriage. “Women” can mean a free woman or a slave woman. Hanafis claim that the above does not apply to free women, but only to slave women. |
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Mujmal
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Ambiguous in the sense that it carries more than one meaning, none of which is primary. E.g. Qur’ – Means both the beginning and the end of the menstrual cycle.
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Gharar
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Unlawful ambiguity in an exchange contract (sale / barter). (e.g. in the price, identitiy of the commodity, ability to deliver.)
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Six “Canonical” Collections of hadith (KNOW AT LEAST 3)
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(1) bukahari, (2) Muslim, (3) Abu Daud, (4)Tirmidhi, (5) Nasa’i (6) Ibn Majah
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Isnâd
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Chain of a hadith.
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Matn
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Text of a hadith. Every Hadith contains 2 parts – chain and the text.
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Quantitative considerations in hadith:
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Two main ones – Tawatir & Ahadi
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Tawâtir (diffusely congruent) vs. Ahâdî (‘isolated’ or falsifiable):
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Tawatir – an unfalsifiable report (reason we know Australia exists). Ahadi – Quantitative designation, has to do with the number of chains there are (not with the quality). It does not mean weak, it only means that only 5 people have reported Oswalt killed Kennedy. It isn’t necessarily wrong, but it is potentially falsifiable.
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Qualitative considerations in hadith:
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Sahîh (sound), Hasan (good), Da’îf (weak) – Weakness refers to the chain, not to the text.
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Hirâbah
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Publicly directed violence that has the effect of spreading fear and helplessness under circumstances where the reasonable person could not take safekeeping measures.
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Qualifications for Ijtihâd
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Knowledge of: Koran, sunnah, consensus, disagreement, analogy, Arabic language.
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Jihâd
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Organized violence for the purpose of protecting and preserving the integritiy of the Muslim community. The purpose behind this was living in a society with a presumption of constantly being in a state of war.
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Muftî
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One who gives authoritative fatwas. The whole point of Islamic education is to produce Muftis. (Another name for a jurist in his capacity of giving legal opinions.)
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Legal Precepts
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General rules and principles that are derived from the schools of law, not from scripture.
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‘Urf
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Custom. Constituting an opinion based on the current time period. We don’t need to argue that jurists/people in the past were wrong and neither are we wrong. On the basis of the same law two different applications can be right, if we know that much of Islamic law is based on custom. Does a woman deserve a house with electricity? (Changes based on time period).
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Muhammad Shahrur
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(Legal Liberalist) (Engineer)
The Quran, preserved by divine power, is as much the property of later generations as the earliest generation. - Modern muslims are more qualified to understand the Quran because they are more cultured. More culture = better comprehension. Straightness and curvature. (Remember the diagram on the board). One wife versus four wives. |
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Siyâsah
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State owned (public utility) maslahah and to a lesser extent equity. Where the state is authorized to develop public policy. Where the jurists must produce proof positive of every declaration they make. The state needs to only prove that their policy does not contradict any injunction.
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Hukm Taklîfî (Five Legal Statuses) - List them.
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Forbidden – (Haram)
Discouraged – (Makruh) Neutral – (Mubah) Recommended – (Mandub)* Also known as Sunna. Obligatory – (Wajib) |
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Law vs. Fact
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Remember that confusion of law and fact results in improper taqlid.
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Sahih
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Sound
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Hasan
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Good
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Da'if
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Weak
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