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52 Cards in this Set

  • Front
  • Back
Fiqh v Shari`ah
- 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
Usul al Fiqh
Study of the origins, sources, and principles upon which Islamic Jurisprudence is based
Legal Scaffolding
Rather than abandon existing rules in favor of new interpretations, make a few adjustments
- Interpretive community

- Actual Islamic law/legal school
Four Sunni Madhhabs
Hanafi, Malaki, Shafi`i, Hanbali
A legal ruling
Four agreed upon sources
1. Qur`an
2. Sunnah
3. Unanimous Consensus
4. Analogy
Sunnah v Hadith
Sunnah - general overview of topics

Hadith - individual report of a specific statement, action, or tacit approval of prophet on an individual occasion.
(In re analogy)
A known reason
Setting aside of the apparent straight application of a general text, rule, or obvious analogy in light of some extenuating circumstance
Effect a substance has on an individual
Public interests that come to be seen as important but are not articulated by the sources
How to invoke Maslahah
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
Presumption of continued status until the contrary is proven.
Blocking the means
Anytime theres legal steps taken to an illegal end, able to ban the transaction.
General v Specific (scope)
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.
- Legal decision by independent interpretation

- Institutionalized interpretations/meanings; Reliable legal authority in name of a Islamic legal community
Qualifications for Ijtihad
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
Hukm Tafliki
5 Legal Statuses

1. Haram (Forbidden)

2. Makruh (Discouraged)

3. Mubah (Neutral)

4. Mandub (Recommended)

5. Wajib (Obligatory)
A legal cause.
Legal prerequisite
Legal impediments
Following the decisions of religious authority without necessarily examining the scriptural basis or reasoning for that decision.
Improper Taqlid
Jurists make mistake based on both law and fact because determination is based on their own reality.
Mutlaq v Muqayyad
Unqualified v Qualified
A statement upon which there can be NO question as to what it means.
An ambiguous term with a number of interpretations.

More than one meaning but difficult to argue for the primacy of any of them.
Preponderance (/assumption of one meaning over another)

(ex: Mouse - more likely rodent than computer clicker)
A situation where in itself a word/sentence may be clear, but in a particular context it may lose that clarity
Six ‘canonical’ collections of hadith
1. Bukhari
2. Muslim
3. Abu Da`uh
4. Tirmidhi
5. Ibn Majah
6. Nasa`i

- 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)

Sound, Good, Weak
Quanitative considerations in Hadith
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
Qualitative considerations in Hadith
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
- Legal opinion/license

- Not binding; only prophet's fatwa is binding
- 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
Legal Precepts
(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
(textual) proof
- a custom; customary basis to invoke istihsan

- A mechanism that affects the application of the law rather than the interpretation for the law
Governing opinion of a school.
- 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
Law v Fact
Improper Taqlid (see card)
Legal Liberalism
- 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
5 Fundamental Principles
1. Life
2. Religion
3. Mind/sanity
4. Property
5. Prodigy
6. (some add dignity)
Hukm Wadi
- 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
Rashid Rida
- Legal Utilitarian

- Argued for marganilizing the schools of law

- Going back to scripture, processing it primarily though prism of public utility
Fazlur Rahman
- liberal interpreter

- heightened the importance of context and space time differential (legal liberalism)
- 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
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
organized violence for the purpose of protecting and promoting the integrity of the Muslim community
Muhammad Shahrur
- current generation is more sophisticated than previous generations so this generation's theories should take precedent

- curvature, not straitness

- non-jurist
- 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