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52 Cards in this Set
- Front
- Back
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Fiqh v Shari`ah
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- Fiqh is the human interpretation of what God revealed (always going to be pluralistic)
- Shari’ah is Islamic law as it exists in the divine mind; crystal clear terms of Qur`an & Sunnah |
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Usul al Fiqh
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Study of the origins, sources, and principles upon which Islamic Jurisprudence is based
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Legal Scaffolding
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Rather than abandon existing rules in favor of new interpretations, make a few adjustments
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Madhhab
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- Interpretive community
- Actual Islamic law/legal school |
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Four Sunni Madhhabs
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Hanafi, Malaki, Shafi`i, Hanbali
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Hukm
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A legal ruling
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Four agreed upon sources
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1. Qur`an
2. Sunnah 3. Unanimous Consensus 4. Analogy |
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Sunnah v Hadith
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Sunnah - general overview of topics
Hadith - individual report of a specific statement, action, or tacit approval of prophet on an individual occasion. |
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`illah
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(In re analogy)
A known reason |
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Istihsan
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Setting aside of the apparent straight application of a general text, rule, or obvious analogy in light of some extenuating circumstance
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Hikmah
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Effect a substance has on an individual
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Maslahah
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Public interests that come to be seen as important but are not articulated by the sources
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How to invoke Maslahah
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1. Cannot violate a specific text
2. Cannot violate an explicitly agreed upon law 3. Interest that is being observed must be a public interest 4. Interest must be palpable, not visceral |
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Istishab
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Presumption of continued status until the contrary is proven.
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Blocking the means
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Anytime theres legal steps taken to an illegal end, able to ban the transaction.
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General v Specific (scope)
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General - All meanings of a term.
Specific (aka Restricted) - subset of general meanings. Prophet speaks in general terms at times, then later seems to restrict the generalization. |
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Ijtihad
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- Legal decision by independent interpretation
- Institutionalized interpretations/meanings; Reliable legal authority in name of a Islamic legal community |
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Qualifications for Ijtihad
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1. Knowledge of Arabic language
2. Adequate knowledge of Qur`an 3. Adequate knowledge of Sunnah 4. Verify consensus of ijma of the companions of prophet 5. Knowledge of rule for analogy 6. Understand meaning of sharia 7. Must be upright |
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Hukm Tafliki
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5 Legal Statuses
1. Haram (Forbidden) 2. Makruh (Discouraged) 3. Mubah (Neutral) 4. Mandub (Recommended) 5. Wajib (Obligatory) |
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Sabab
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A legal cause.
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Shart
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Legal prerequisite
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Mani
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Legal impediments
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Taqlid
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Following the decisions of religious authority without necessarily examining the scriptural basis or reasoning for that decision.
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Improper Taqlid
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Jurists make mistake based on both law and fact because determination is based on their own reality.
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Mutlaq v Muqayyad
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Unqualified v Qualified
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Nass
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A statement upon which there can be NO question as to what it means.
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Mujmal
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An ambiguous term with a number of interpretations.
More than one meaning but difficult to argue for the primacy of any of them. |
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Zahir
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Preponderance (/assumption of one meaning over another)
(ex: Mouse - more likely rodent than computer clicker) |
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Mu`awwal
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A situation where in itself a word/sentence may be clear, but in a particular context it may lose that clarity
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Six ‘canonical’ collections of hadith
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1. Bukhari
2. Muslim 3. Abu Da`uh 4. Tirmidhi 5. Ibn Majah 6. Nasa`i Notes: - After Malik and Shafi`i - All contain overwhelmingly prophet hadith (compared to companions) - Majority of hadith in them are ahadi (hadith that is presumed to be sound) |
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Isnad
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Chain
Sound, Good, Weak |
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Matn
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Text
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Quanitative considerations in Hadith
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1. Tawatur
- Numbers too great for the possibility that narrators could not collude to lie or all be wrong in what they reported - Words and Deeds 2. Mashur - Started out with a few companions relating a hadith but by the time of the second or third generation number of narrators reaches tawatur - Favored by hanafi school 3. Ahadi - Not necessarily hadith - Narrated through a single chain but one that is neither tawatur or mashur - Not false, but not unfalsifiable 4. Munkar - A hadith that is narrated though only a single channel and is contradicted by other more widespread narrations |
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Qualitative considerations in Hadith
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1. Sahih
- Sound - All narrators known to be upright, reliable, good memory, reporting skills 2. Hasan - Good - All narrators presumed to be upright, reliable, etc. - No proof positive that they were, but no indication they were not 4. Da`if - weak |
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Fatwa
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- Legal opinion/license
- Not binding; only prophet's fatwa is binding |
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Mufti
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- Legal training in private madrassa (school) which are colleges of law
- Overseen by the mufti board - Oral dissertation in public, where as Americans have written dissertation - Once you were able to open grounds for discussion, you gained a license to give a fatwa |
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Legal Precepts
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(In re taqlid)
- Precedence for authority - Broad based rules or tests deduced from the aggregate of opinions of the early Imams - In order for jurist to screen unprecedented questions without having to memorize scores of individual rules and without having to refer back to scripture |
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Dalil
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(textual) proof
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`Urf
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- a custom; customary basis to invoke istihsan
- A mechanism that affects the application of the law rather than the interpretation for the law |
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Mash`hur
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Governing opinion of a school.
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Rajah
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- Own objective assessment/ preferred opinion of an individual
- Argues mashhur is not as strong as their rajah - Thus, opinion doesn’t carry the authority of the school unless he can convince the other members of the school to his side |
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Law v Fact
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Improper Taqlid (see card)
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Legal Liberalism
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- An approach that circumvents the schools of law
- Goes back to scripture but invokes context and the space time differential as a basis for reaching new conclusions - public welfare to replace analogy |
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5 Fundamental Principles
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1. Life
2. Religion 3. Mind/sanity 4. Property 5. Prodigy 6. (some add dignity) |
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Hukm Wadi
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- Legal Cause
- Legal Prerequiside - Legal Impediment - Ex: Sun descending from meridian Male of majority age – noon prayer becomes obligatory Child – noon prayer not Woman on mensus – not Woman of majority age not on mensus – obligatory |
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Rashid Rida
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- Legal Utilitarian
- Argued for marganilizing the schools of law - Going back to scripture, processing it primarily though prism of public utility |
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Fazlur Rahman
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- liberal interpreter
- heightened the importance of context and space time differential (legal liberalism) |
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Ghrar
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- unlwaful ambiguity in an exchange K
- ie: in the price, identity, or ability to deliver - ex: can't sell a bird on that tree because you don't have the ability to deliver |
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Hirabah
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publically directed violence with the effet (not necessarily intention) of spreading fear and helplessness under circumstances where a reasonable person could not take safe keeping measures
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Jihad
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organized violence for the purpose of protecting and promoting the integrity of the Muslim community
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Muhammad Shahrur
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- current generation is more sophisticated than previous generations so this generation's theories should take precedent
- curvature, not straitness - non-jurist |
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Siyasah
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- state owned muslhah (public utility) or equity
- whereby the state is recognized even by the jurists as having the authority to determine public policy - standard for the state is reversed from the jurists -- jurists must present proof positive -- state must prove their decisions do not contradict any injunction |
