islamic legal interpretation muftis and their fatwas pdf

Islamic Legal Interpretation Muftis And Their Fatwas Pdf

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This article is devoted to the study of questions of knowledge, law, and ethics in Islamic context.

For more than a millenium, fatwas have guided and shaped Muslim understandings of Islamic law. The whole world knows of Ayatollah Khomeinis fatwa in the Salman Rushdi case, yet this key institution in Muslim society has not been the subject of aMoreFor more than a millenium, fatwas have guided and shaped Muslim understandings of Islamic law. The whole world knows of Ayatollah Khomeinis fatwa in the Salman Rushdi case, yet this key institution in Muslim society has not been the subject of a major examination until now. BookExpo DK Relaunches Eyewitness Travel Guides the redesign focused on giving [readers] insider information they wouldn t Sometimes a guide is the first thing you can touch that says you are going there.

Dispensing Justice in Islam

Traditional theory of Islamic jurisprudence recognizes four sources of Sharia : the Quran, sunnah authentic hadith , qiyas analogical reasoning , [note 1] and ijma juridical consensus. Classical jurisprudence was elaborated by private religious scholars , largely through legal opinions fatwas issued by qualified jurists muftis. It was historically applied in Sharia courts by ruler-appointed judges , who dealt mainly with civil disputes and community affairs.

In the modern era, traditional laws in the Muslim world have been widely replaced by statutes inspired by European models. The role of Sharia has become a contested topic around the world. Jan Michiel Otto distinguishes four senses conveyed by the term sharia in religious, legal and political discourse: [26].

According to the traditional Muslim view, the major precepts of Sharia were passed down directly from the Islamic prophet Muhammad without "historical development," [36] and the emergence of Islamic jurisprudence fiqh also goes back to the lifetime of Muhammad.

Modern historians have presented alternative theories of the formation of fiqh. According to this theory, most canonical hadiths did not originate with Muhammad but were actually created at a later date, despite the efforts of hadith scholars to weed out fabrications. While the origin of hadith remains a subject of scholarly controversy, this theory of Goldziher and Schacht has given rise to objections, and modern historians generally adopt more cautious, intermediate positions, [37] and it is generally accepted that early Islamic jurisprudence developed out of a combination of administrative and popular practices shaped by the religious and ethical precepts of Islam.

Classical jurists held that human reason is a gift from God which should be exercised to its fullest capacity. Traditional theory of Islamic jurisprudence elaborates how scriptures should be interpreted from the standpoint of linguistics and rhetoric. The classical process of ijtihad combined these generally recognized principles with other methods, which were not adopted by all legal schools, such as istihsan juristic preference , istislah consideration of public interest and istishab presumption of continuity.

Fiqh is concerned with ethical standards as much as with legal norms, seeking to establish not only what is and is not legal, but also what is morally right and wrong. Some historians distinguish a field of Islamic criminal law, which combines several traditional categories. Classical jurisprudence has been described as "one of the major intellectual achievements of Islam" [67] and its importance in Islam has been compared to that of theology in Christianity.

The transformations of Islamic legal institutions in the modern era have had profound implications for the madhhab system. Sharia was traditionally interpreted by muftis. During the first few centuries of Islam, muftis were private legal specialists who normally also held other jobs. They issued fatwas legal opinions , generally free of charge, in response to questions from laypersons or requests for consultation coming from judges, which would be stated in general terms.

Fatwas were regularly upheld in courts, and when they were not, it was usually because the fatwa was contradicted by a more authoritative legal opinion. Islamic law was initially taught in study circles that gathered in mosques and private homes.

The teacher, assisted by advanced students, provided commentary on concise treatises of law and examined the students' understanding of the text. This tradition continued to be practiced in madrasas , which spread during the 10th and 11th centuries. The madrasa complex usually consisted of a mosque, boarding house, and a library.

It was maintained by a waqf charitable endowment , which paid salaries of professors, stipends of students, and defrayed the costs of construction and maintenance. At the end of a course, the professor granted a license ijaza certifying a student's competence in its subject matter. A judge qadi was in charge of the qadi's court mahkama , also called the Sharia court. Qadis were trained in Islamic law, though not necessarily to a level required to issue fatwas.

The main type of evidence was oral witness testimony. The standards of evidence for criminal cases were so strict that a conviction was often difficult to obtain even for apparently clear-cut cases. If an accusation did not result in a verdict in a qadi's court, the plaintiff could often pursue it in another type of court called the mazalim court, administered by the ruler's council.

Islamic jurists were commonly in attendance and a judge often presided over the court as a deputy of the ruler. The police shurta , which took initiative in preventing and investigating crime, operated its own courts. The social fabric of pre-modern Islamic societies was largely defined by close-knit communities organized around kinship groups and local neighborhoods.

Conflicts between individuals had the potential to escalate into a conflict between their supporting groups and disrupt the life of the entire community.

Court litigation was seen as a last resort for cases where informal mediation had failed. This attitude was reflected in the legal maxim "amicable settlement is the best verdict" al-sulh sayyid al-ahkam. In court disputes, qadis were generally less concerned with legal theory than with achieving an outcome that enabled the disputants to resume their previous social relationships. This could be accomplished by avoiding a total loss for the losing side or simply giving them a chance to articulate their position in public and obtain a measure of psychological vindication.

Unlike pre-modern cultures where the ruling dynasty promulgated the law, Islamic law was formulated by religious scholars without involvement of the rulers. The law derived its authority not from political control, but rather from the collective doctrinal positions of the legal schools madhhabs in their capacity as interpreters of the scriptures.

Although the relationship between secular rulers and religious scholars underwent a number of shifts and transformations in different times and places, this mutual dependence characterized Islamic history until the start of the modern era. This early attempt to turn Islamic law into semi-codified state legislation sparked rebellions against Mughal rule. In both the rules of civil disputes and application of penal law, classical Sharia distinguishes between men and women, between Muslims and non-Muslims, and between free persons and slaves.

Traditional Islamic law assumes a patriarchal society with a man at the head of the household. Sharia was intended to regulate affairs of the Muslim community. Cases involving litigants from two different religious groups fell under jurisdiction of Sharia courts, [4] where unlike in secular courts [92] testimony of non-Muslim witnesses against a Muslim was inadmissible in criminal cases [93] or at all.

In some periods or towns, all inhabitants apparently used the same court without regard for their religious affiliation. Classical fiqh acknowledges and regulates slavery as a legitimate institution. Formal legal disabilities for some groups coexisted with a legal culture that viewed Sharia as a reflection of universal principles of justice, which involved protection of the weak against injustices committed by the strong.

This conception was reinforced by the historical practice of Sharia courts, where peasants "almost always" won cases against oppressive landowners, and non-Muslims often prevailed in disputes against Muslims, including such powerful figures as the governor of their province. Starting from the 17th century, European powers began to extend political influence over lands ruled by Muslim dynasties, and by the end of the 19th century, much of the Muslim world came under colonial domination.

The first areas of Islamic law to be impacted were usually commercial and criminal laws, which impeded colonial administration and were soon replaced by European regulations. The first significant changes to the legal system of British India were initiated in the late 18th century by the governor of Bengal Warren Hastings.

Hastings' plan of legal reform envisioned a multi-tiered court system for the Muslim population, with a middle tier of British judges advised by local Islamic jurists, and a lower tier of courts operated by qadis. Hastings also commissioned a translation of the classic manual of Hanafi fiqh, Al-Hidayah , from Arabic into Persian and then English, later complemented by other texts.

In the traditional Islamic context, a concise text like Al-Hidayah would be used as a basis for classroom commentary by a professor, and the doctrines thus learned would be mediated in court by judicial discretion, consideration of local customs and availability of different legal opinions that could fit the facts of the case.

The British use of Al-Hidayah , which amounted to an inadvertent codification of Sharia, and its interpretation by judges trained in Western legal traditions anticipated later legal reforms in the Muslim world. British administrators felt that Sharia rules too often allowed criminals to escape punishment, as exemplified by Hastings' complaint that Islamic law was "founded on the most lenient principles and on an abhorrence of bloodshed".

Like the British in India, colonial administrations typically sought to obtain precise and authoritative information about indigenous laws, which prompted them to prefer classical Islamic legal texts over local judicial practice.

This, together with their conception of Islamic law as a collection of inflexible rules, led to an emphasis on traditionalist forms of Sharia that were not rigorously applied in the pre-colonial period and served as a formative influence on the modern identity politics of the Muslim world.

During the colonial era, Muslim rulers concluded that they could not resist European pressure unless they modernized their armies and built centrally administered states along the lines of Western models. In the Ottoman empire , the first such changes in the legal sphere involved placing the formerly independent waqfs under state control. This reform, passed in , enriched the public treasury at the expense of the waqfs, thereby depleting the financial support for traditional Islamic legal education.

Over the second half of the 19th century, a new hierarchical system of secular courts was established to supplement and eventually replace most religious courts. Students hoping to pursue legal careers in the new court system increasingly preferred attending secular schools over the traditional path of legal education with its dimming financial prospects.

It adopted the Turkish language for the benefit of the new legal class who no longer possessed competence in the Arabic idiom of traditional jurisprudence. The code was based on Hanafi law, and its authors selected minority opinions over authoritative ones when they were felt to better "suit the present conditions". The Mecelle was promulgated as a qanun sultanic code , which represented an unprecedented assertion of the state's authority over Islamic civil law, traditionally the preserve of the ulema.

Westernization of legal institutions and expansion of state control in all areas of law, which began during the colonial era, continued in nation-states of the Muslim world. Court procedures were also brought in line with European practice. While in the traditional Sharia court all parties represented themselves, in modern courts they are represented by professional lawyers educated in Western-style law schools, and the verdicts are subject to review in an appeals court.

In the 20th century, most countries abolished a parallel system of Sharia courts and brought all cases under a national civil court system. In most Muslim-majority countries, traditional rules of classical fiqh have been largely preserved only in family law.

In some countries religious minorities such as Christians or Shia Muslims have been subject to separate systems of family laws. In reality, they generally represent the result of extensive legal reforms made in the modern era. Abduh viewed only Sharia rules pertaining to religious rituals as inflexible, and argued that the other Islamic laws should be adapted based on changing circumstances in consideration of social well-being. Following precedents of earlier Islamic thinkers, he advocated restoring Islam to its original purity by returning to the Quran and the sunna instead of following the medieval schools of jurisprudence.

One of the most influential figures in modern legal reforms was the Egyptian legal scholar Abd El-Razzak El-Sanhuri — , who possessed expertise in both Islamic and Western law. Sanhuri argued that reviving Islamic legal heritage in a way that served the needs of contemporary society required its analysis in light of the modern science of comparative law. He drafted the civil codes of Egypt and Iraq based on a variety of sources, including classical fiqh, European laws, existing Arab and Turkish codes, and the history of local court decisions.

Aside from the radical reforms of Islamic family law carried out in Tunisia and Iran , governments often preferred to make changes that made a clear break from traditional Sharia rules by imposing administrative hurdles rather than changing the rules themselves, in order to minimize objections from religious conservatives. Various procedural changes have been made in a number of countries to restrict polygamy, give women greater rights in divorce, and eliminate child marriage.

Inheritance has been the legal domain least susceptible to reform, as legislators have been generally reluctant to tamper with the highly technical system of Quranic shares. For example, the reform of Egyptian family law, promulgated by Anwar Sadat through presidential decree, provoked an outcry and was annulled in by the supreme court on procedural grounds, to be later replaced by a compromise version.

Islam portal. The Islamic revival of the late 20th century brought the topic of Sharia to international attention in the form of numerous political campaigns in the Muslim world calling for full implementation of Sharia.

They accused secular leaders of corruption and predatory behavior, and claimed that a return to Sharia would replace despotic rulers with pious leaders striving for social and economic justice.

In the Arab world these positions are often encapsulated in the slogan "Islam is the solution" al-Islam huwa al-hall. Full implementation of Sharia theoretically refers to expanding its scope to all fields of law and all areas of public life.

Modern Islamists have often rejected, at least in theory, the stringent procedural constraints developed by classical jurists to restrict their application. A number of legal reforms have been made under the influence of these movements, starting from the s when Egypt and Syria amended their constitutions to specify Sharia as the basis of legislation.

Advocates of Islamization have often been more concerned with ideology than traditional jurisprudence and there is no agreement among them as to what form a modern Sharia-based " Islamic state " should take. This is particularly the case for the theorists of Islamic economics and Islamic finance , who have advocated both free-market and socialist economic models. The legal systems of most Muslim-majority countries can be classified as either secular or mixed.

Sharia plays no role in secular legal systems. In mixed legal systems, Sharia rules are allowed to influence some national laws, which are codified and may be based on European or Indian models, and the central legislative role is played by politicians and modern jurists rather than the ulema traditional Islamic scholars. Saudi Arabia and some other Gulf states possess what may be called classical Sharia systems, where national law is largely uncodified and formally equated with Sharia, with ulema playing a decisive role in its interpretation.

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Islamic Legal Interpretation: Muftis and Their Fatwas by Muhammad Khalid Masud

Traditional theory of Islamic jurisprudence recognizes four sources of Sharia : the Quran, sunnah authentic hadith , qiyas analogical reasoning , [note 1] and ijma juridical consensus. Classical jurisprudence was elaborated by private religious scholars , largely through legal opinions fatwas issued by qualified jurists muftis. It was historically applied in Sharia courts by ruler-appointed judges , who dealt mainly with civil disputes and community affairs. In the modern era, traditional laws in the Muslim world have been widely replaced by statutes inspired by European models.

For more than a millennium, fatwas have guided and shaped Muslim understandings of Islamic law. Ranging in import from the routine to the revolutionary, and in form from one-line answers to short treatises, fatwas have served to reaffirm received wisdom, caution against error, and chart novel responses to changing circumstances. The interpreters, the muftis of Islam, have included the greatest independent scholars of the ages, heads of large state bureaucracies, and unassuming jurists in local districts. Islamic Legal Interpretation uses an approach unique in Islamic studies, a casebook of expert analyses of fatwas from a wide range of times and places. The approach throughout is interdisciplinary, as historians, lawyers, language specialists, and social scientists address fatwas as fundamental sources on both Islamic legal thought and Islamic social history.

Muftis, Fatwas, and Islamic Legal Interpretation

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Navigationsleiste aufklappen. Sich einloggen Anmelden Registrierung Spende: Sehr geehrter ZLibrary-Benutzer! Wir haben Sie an die spezielle Domain de1lib. The whole world knows of Ayatollah Khomeini's fatwa in the Salman Rushdie case, yet this key institution in Muslim society has not been the subject of a major examination until now.


methodology and jurisproclcnce (~iil al-fiqh), its more practical aspect is in the Islamic legal system, both the accivity of the mufti and the fatwa genre.


Qadis and their Judgements

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 Ну ладно, - вздохнул Стратмор.  - Похоже, вышла какая-то путаница.  - Он положил руку на плечо Чатрукьяна и проводил его к двери.  - Тебе не нужно оставаться до конца смены. Мы с мисс Флетчер пробудем здесь весь день. Будем охранять нашу крепость.

На пальцах ничего. Резким движением Халохот развернул безжизненное тело и вскрикнул от ужаса. Перед ним был не Дэвид Беккер. Рафаэль де ла Маза, банкир из пригорода Севильи, скончался почти мгновенно. Рука его все еще сжимала пачку банкнот, пятьдесят тысяч песет, которые какой-то сумасшедший американец заплатил ему за дешевый черный пиджак. ГЛАВА 94 Мидж Милкен в крайнем раздражении стояла возле бачка с охлажденной водой у входа в комнату заседаний.

Офицер пропустил удостоверение через подключенный к компьютеру сканер, потом наконец взглянул на. - Спасибо, мисс Флетчер.  - Он подал едва заметный знак, и ворота распахнулись. Проехав еще полмили, Сьюзан подверглась той же процедуре перед столь же внушительной оградой, по которой был пропущен электрический ток.

Интуиция подсказывала ей спасаться бегством, но у нее не было пароля от двери лифта. Сердце говорило ей, что она должна помочь Стратмору, но. Повернувшись в полном отчаянии, она ожидала услышать шум смертельной борьбы на полу, но все было тихо.

 Никому не позволено действовать в обход фильтров. - Ошибаешься, - возразила.  - Я только что говорила с Джаббой.

 Утечка информации! - кричал кто-то.  - Стремительная. Все люди на подиуме потянулись к терминалу в одно и то же мгновение, образовав единое сплетение вытянутых рук. Но Сьюзан, опередив всех, прикоснулась к клавиатуре и нажала цифру 3.

Хейл, видимо, не догадывается, что она видела его внизу. - Стратмор знает, что я это видел! - Хейл сплюнул.  - Он и меня убьет.

Islamic Legal Interpretation

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