Monday, March 25, 2013

Key Terms in Islamic Law

Islamic Law
By David Madewell

1.     Shari’a – although this term is used for law, shari’a is also used as a reference to one’s everyday lives. This not only effects our lives legally, but morally, and ritually (8). Literally meaning “path to the water hole”, its meaning is said to be when one travels in the desert through paths people have made for travelers, there are water holes along the way. If one does not follow this path they will die. However, if one does in fact follow this path, they will live happily and be rewarded (17). Shari’a defines correct ways of worship, how one’s life must be conducted, how to interact with one particular person (18). The shari’a, next to the Qur’an is the single core perception of Islam. In the shari’a, there are five categories that, depending on a particular action one does, define it as right or wrong legally and morally, and how one should dictate the severity of the punishment or if it is even worth being punished over (18). The five categories are “obligatory” (wajib); “recommended” (mandub); “neutral” (mubah); “disapproved” (makruh); and “forbidden” (haram) (18).       Weiss
2.     Usul al-fiqh – the legal theory invented by the “Modern Architect” of Islamic law, al-Shafi’i (30). The theory is defined by answering the questions that relate to law, in respect to the sources and their beginnings, to define it as legitimate (31). Al-Shafi’i sets the theory in his famous text al-Risala (30). This theory was created during the second and third centuries, when textual sources became a sense of priority in order for a particular question of law to be answered legitimately (31-32). Even though al-Risala doesn’t give a definite explanation of usul al-fiqh, it gives six simple regulations on whether an answer to a legal question is legitimate or not. One, a particular law must be derived from the Qur’an. Two, the Sunna is a legitimate source of law. Three, there is no contradiction between both the Sunna and the Qur’an. Four, in fact the two sources are in a harmonious relationship to each other. Five, legal rulings that are derived strictly or mostly by the texts are not to be disagreed upon, but through legal rulings of one’s own judgment can and will be subjected to questioning. Six, consensus will be derived by backing up consensus with said textual sources (30-31).      Hallaq
3.     Hadith – the writings of the statements or actions that the Prophet Muhammad had initiated in order to permit or disapprove of a particular legal theory or legal ruling (12). Caliph Uthman, who was the third caliph after the death of Muhammad, initiated that scholars write down the testimonies and actions of Muhammad, because up until this particular time (about one hundred years after the death of Muhammad) the actions and testimonies Muhammad had spoken were only interpreted orally generation after generation (15). This helped the legitimacy of not only the legitimacy of Muhammad, but also the legitimacy of one’s particular legal ruling. There, however, was some form of questioning into what legitimized one’s testimony of Muhammad. In that case, there were scholars that were established in order to interpret what particular hadiths were true over the others, called ahl al-hadith (12).            Weiss
4.     ‘Ilm – the term meaning knowledge within the Qur’an and the Sunna (15). This is interpreted by the fact that instead of going about somebody else’s own opinion, ra’y, it is emphasized that one established legitimacy in legal theory to the textual sources given to Muslims, such as the Qur’an or the Sunna (15). Also, the term can be defined as ‘ilm is in fact Islam, being that Islam is the ultimate source of knowledge, and also with the thought of ‘ilm meaning knowledge as well. Therefore, ‘ilm could be taken as knowledge. It is a Muslim’s personal responsibility and duty to find ‘ilm in respect to the scriptures (22). Shafi’i writes in ­al-Risala that ‘ilm can be interpreted in two different ways: one is the individual in a mass community living amongst eachother has a certain sense of knowledge. Second, is a few group of people who are scholars that differentiate between the community at large search for a different meaning of ‘ilm for the greater good of the cause (26).           Hallaq
5.     Ra’y – the complete polar opposite of ‘ilm, Instead of it meaning the true source of knowledge coming from textual sources, ra’y is defined as a matter of opinion (15). This legal term isn’t merely something that can be interpreted by any scholar. Instead, it is interpreted by specific scholars called ahl al-ra’y, or the people of good sense (15). This legal theory, however, didn’t last long after the push in textual sources being expanded, which ’ilm then took control as the major gatherer of legitimacy in legal theory, whereas ra’y was prior to (15). During the turn of the third century, ra’y had officially lost its true definition of legal discourse (19). Islamic legal theory definitely enhanced intellectually from its roots of discourse being specifically ra’y.            Hallaq
6.     Ijithad – the literal term meaning “arduous effort”, this definition actually corresponds to the term in the sense of what the meaning is about. In the Qur’an and other scripture as reference, there is only so much information that these texts give in order to conclude with a legal ruling. Jurists and legalists were constantly in struggle in what made a legal formulation legitimate or not (88). Henceforth, became the term ijtihad. It is not the case that this is a theory that is used primarily, but rather as a part of the technical line of questioning that is often used (128). Ijtihad is more thought of as how can the law be interpreted morally and legitimately in real life situations, this is something that most legal scholars have a hard time doing at times, yet it is up to them to come up with different interpretations that correlate to different situations, which is the more humane and a very selfless theory to accept (128).          Weiss
7.     Qiyas – the process of making arguments of what makes a particular legal ruling right or wrong by deducing a number of premises in order to make the final legal statement (26). As initiated by al-Shafi’i, he didn’t limit exclusively on one particular situation over the other, rather than determining the legal ruling on a case by case basis. Like ‘ilm, it was determined by a group of scholars that emphasized a very realistic approach (27). This practice alone can’t be found legitimate, so Shafi’i concluded that the Prophet had used the same concept during his reign (27).
8.     Isnad – a chain of scholars that dissect perspective legal rulings and to ultimately come to some consensus (13). In order to consider matters of opinion through one’s own perceptions, there was a standard for allowing these scholars into the circle, for example, by being tested sturdily on the characteristic of trustworthiness (13). Also, one of the prerequisites for becoming an isnad is by having a map of direct correlation or a decendent of the other group of isnads without any break within the flow (13). If hypothetically, there was in fact a scholar who broke that chain, that man would often be much more scrutinized and questioned strongly on the matter of his opinion (13). Weiss
9.     ‘ulama – the term given to scholars that deal with legitimizing legal rulings and theories (801). ‘ulama are also not only in the occupation of legitimizing, but also to interpret these laws, and with this takes a skilled and intelligent individual (801). This is a very filtered and small group of individuals who mold and shape the way one must perceive Islamic law and theory (802). They are considered also to be not only the igniters of Islamic law and doctrine, but also the progressive movement of the legitimacy of the Prophet and his successors (802).   Encyclopedia Vol. X
10.  Sunna – the term meaning an exceptional mode of conduct, the Sunna is a collection of events on the life of the Prophet Muhammad (10). Being that Muhammad is a solid example of how a Muslim should live, successors of Muhammad made it of vital importance to collect the actions and testimonies of the Prophet displayed in order for every Muslim to live righteously and to go about one’s life in a guided way (11). This has been practiced amongst Arabs for quite some time, even before Islam. For example, in pre-Islamic Arabia, if one was to be considered with good moral standards, charisma, and highly wise among the masses was to give a Sunna on themselves in order for their good life to be recorded and practiced after their death (10).  Hallaq
11.  Zahir – meaning “apparent”, it’s used to define a certain type of action or statement given has given the case that it is in fact apparent; that it is clear, concise, and is not intended to wonder in context (99). This is something that scholars use in order to convey the final message or to legitimize a certain legal ruling without becoming abstruse (99). Most scholars research one’s legitimacy in text that is “univocal expressions” (99). If a certain text is zahir, there are multiple ways of looking at that particular text, whether it is meant to be literal or allegorical (100). This brings endless possible choices of what a certain text could mean, which creates more dissection into that text, in turn delving more into building a solid and more complex part of Islamic law and jurisprudence (101). This goes into the five principles of Shari’a values (18).      Weiss
12.  Wajib – one of the five legal norms of Shari’a, meaning that all legal rulings should come to one of these conclusions (40). Wajib, meaning “obligatory”, meaning that a certain legal act that one follows is either given a consequent in which one is compensated or is punished by his/her act (40). There are two types of obligatory and were argued against for some time, which are wajib and fard (40). Fard is a defined legal norm that is founded of solid evidence, whereas wajib is determined on possible, but credible, evidence (41). Though it is argued amongst scholars on the matter of simply contrasting the terms is simply “splitting hairs”, it completely takes the individual and one’s case from guilty to not-guilty (41).            Hallaq
13.  Mandub – another Shari’a legal norm, meaning “recommended”, in which meaning one’s action is given compensation for doing the right act, but omitted from any kind of punishment (41). This legal norm is given in order to promote goodness and faithfulness as a Muslim, to focus on the positive of doing virtuous deeds and not as much emphasis on promoting the bad consequence in essence strengthens the promotion of being legally just (41). However, just because one doesn’t follow this certain act doesn’t mean one has violated anything legally (41). Hallaq
14.  Mubah – meaning “permissible” or “neutral”, this is where one performs an act that has neither reward nor any punishment (41). In this case, one will do a certain act that is either not given via textual source or that certain legal text is not certain or firm in its stance on that particular act (41). The ultimate conclusion of one who has done such an act, and text has failed to give the act as either an order or an inadvertence, a Muslim is free on the notion that it gives neither punishment nor any reward for such an act (41).      Hallaq
15.  Haraam – meaning a “prohibited” act, naturally meaning punishment is given upon acting on such (41). This could be taken as the binary opposite as the act of mandub, where one is rewarded for doing the act and no possibility of punishment. In haram, one is rewarded for not doing the offensive act, but punishment upon doing so (41). This could be considered what is referred to as an abomination. For example, it is strictly prohibited for a Muslim to drink alcohol and if said Muslim acted upon that, would in fact be punished for his unlawful deed; and vice-versa if not conducted then that particular individual will be rewarded by pleasing Allah.          Hallaq 
16.  Makruh – meaning “disapproved”, which is often defined the same as haraam, but contrasted in huge ways. The major difference between the two is that categorized as makruh is acceptable, however, is extremely disliked and the punishment, if one, is much more mild than if one were to fall under the category of haram (175). Muslims are to stay away from doing acts such as this as much as possible, and will be rewarded as well if one deters from this act (175). For example, it is permissible to sing and chant is legitimate as long as it is on occasion or on a particular day, but if this were to become an ongoing thing it is looked down upon, but not reprehensible (175).       Hallaq
17.  Kalam – meaning “discourse”, it’s the term meant for theology (25). For kalam is considered to be the solid foundation that builds jurisprudence and finds Islam legitimate, for legal scholars and theologians are to be one of the same person due to the correlation faith and law have in Islam (25). Originally, when kalam came to be, scholars disagreed with this entirely in the sense that the basis of knowing Allah and legal doctrine should come from the textual sources, and nothing more – being that’s what Allah has given the masses (25). Those in support of kalam would generally argue upon the notion that Allah has given us a clear and concise obligation to search for Him and his creation and the other things that make of this world by pondering that legitimately seeking truth (26).     Weiss
18.  Mujtahid – named for the leading jurists who are responsible for legal reasoning, which are jurists (faqih) and the jurisconsult (mufti) (117). This particular scholar is one who is constantly working diligently and efficiently more than his colleagues by dissecting every single legal theory and doctrine, all the while living up to the degree of almost perfection on every single one of these theories and doctrines (117). One must understand the legal verses, all 500 of them, in the Qur’an; must comprehend and be able to extract good information out of the textual sources given to one from Allah (ie Qur’an and the hadith); and also able to understand Arabic fluently in order to capture the language used within these particular texts (118).            Hallaq
19.  Fard – meant as a religious obligation, this is something that is and should be remaining constant in every aspect of legal doctrine and theory (123). This is the source of one’s validity, meaning that there is evidence that is fully and undeniably true in regards to the textual sources such as the hadith and/or the Qur’an (123). This is a legal norm that is so undeniably clear and that there are no room for errors that there is but one way to interpret this legal ruling, which is literally what is written is how it should be taken and in no way possible is there is any possible doubt of legitimacy due to the sources a particular theory or doctrine is based on (40).         Hallaq
20.  Naskh – term meaning the theory in which something should be nullified, and is mostly pertained to and is used in finding two different texts within specific sources that contradict eachother (68). This is sometimes thought of as scholars changing the legal doctrines that were set up to legitimately remain constant on the notion that said particular theory is rooted in Islamic textual sources (68). However, nullifying is proven to be approved by both Muhammad at the time of his reign, and of Allah in the scriptures in the sense that it is not the texts that are found contradicting another text, but rather the theories that are contradicting eachother, and therefore should be abrogated (69).     Hallaq 

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