Sources (4): Secondary Sources: judicial decisions and practices, and ruler’s law (qānūn

Zubair Abbasi Lectures 6, Tuesday 4 February 2014

Role of Judges and Rulers in the Development of Islamic Law • Traditional Approach: they played no rule • Judges did play an important role during the Umayyad period (661-750) until the formation of Sunnī schools. of law. not the makers. . which had universal application but were limited territorially and to the lifetime of the ruler. • Rulers as the enforcer. • Case law did not contribute to legal discourse. • Ruler’s decrees did not have ‘normative Sharī‘a authority’.

• Grudging sanction of custom in conflict with Sharī‘a by judges under the doctrine of public interest. • Rise of Mukhtaṣar (abridged. Socio-economic Change and the Problem of Legal Indeterminacy • Authority of Custom. • Mālikī doctrine of ‘amal (judicial precedence) as a source of law.Islamic Law. . code-like manuals) which included only the most authentic rules of a law school. al-ṣaḥiḥ al-mukhtār (correct which is selected). mā ra’ahu al-muslimūna ḥasanan fahuwa ‘inda Allāhi ḥasanun • Classification of juristic views: al-rājih (preferred). al-ṣaḥiḥ (correct).

The collection of these judgments by the authors of fatāwā and furū‘ generalized them. qāḍī’s council (in Morocco). • Accumulated judgments of qāḍīs ‘created a status of established custom’. . ‫اسالمی‬ ‫( نظریاتی کونسل‬Islamic Ideology Council) in Pakistan.• Existence of ikhtilāf as a justification for the involvement of rulers in the development of Islamic law. • Islamic law an outcome of the efforts of judges. • Council of jurists: known as majlis ‘ilmī (in Algiers) and majlis shar‘ī (in Tunis). muftis and rulers. • Sultan’s ruling could choose one of the views and impose on the qāḍīs whatever view he preferred for the good of the State and society.

Doctrine of Siyāsa • Sharī‘a v Siyāsa: religious law v secular law • Qāḍī v maẓālim courts • Law in books v law in action • Siyāsa: art of governance .

Evolution of Siyāsa Doctrine 1. 756). 820) • Jurist ikhtilāf and need for legal certainty • Suggestion of Abbasid Caliph. • Ibn Muqaffa (d. secretary of Caliph al-Manṣūr proposed a theory of Mujtāhid ruler. well smoothed path) as a legal code of the Empire. • Shafi‘ī rejected this and restricted the power of Ijtihād through qiyās. Siyāsa as ruler’s discretion (Al-Shafi‘ī d. al-Manṣūr to implement Muwaṭṭā’ (literally. .

• Milla v Umma: religious v political aspect of Muslim society • Al-Ghazālī (d. 1119) Siyāsa as extra-Sharī‘a .2. Siyāsa as Public Interest • Māwardī’s (d. 1058) attempt to bring state under the domain of religion by assimilating administrative and public law into fiqh.1111): Siyāsa as pragmatism and politics • Ibn ‘Aqīl (d.

if sharīʿa is duly observed. siyāsa of rulers will not conflict with Fiqh.3. or because rulers disregard the divine will and act unjustly (siyāsa ẓālima). Siyāsa as Discipline and Complementary to Sharī‘a • Ibn Taymiyya (d. • Ibn Qayyim (d. it is either because the Fiqh is understood too narrowly. 1350): Siyāsa as complementary to Sharī‘a . neglecting the rich resources of the Sharīʿa for attaining the public good. • He argued that. He argued that if conflict between them appears. 1328) assimilated Siyāsa and Sharī‘a by emphasizing the need for state for the enforcement of Islamic law. but Ibn Taymiyya claimed that such “deviations” are imaginary. Earlier jurists had conceded that rulers had the need and the right to deviate from Fiqh in order to attain effective governance.

• Ibn Nujaym (d.4. Eg death for qiṣāṣ and causing terror amongst the public. 1441) description of two parallel legal systems in Ottoman Egypt: Sharī‘a relating to religious matters and Qānūn relating to public interest. Siyāsa as Balance between Sharī‘a. 1562) described Siyāsa as ‘an action by the ruler on grounds of what constitutes a public interest in his opinion without citing any specific scriptural text’. • Fatāwā ‘Alamgīriyya’s differential treatment of offenders based on class . Qānūn and ‘Urf • Al-Maqrīzī’s (d.

• Limitation of Sharī‘a to personal affairs and secularization of criminal law. • Doctrine of Siyāsa as a justification for separation between religion and politics. • Siyāsa as a justification for state legislation based on Ijtihād.5. Siyāsa as Politics in Modern State • Warren Hastings’ use of Siyāsa to impose strict criminal law. .

1956) definition of Siyāsa: “Management of public affairs in an Islamic state with a view to securing public welfare and removal of harm in such a way that it did not transgress the limits imposed by Sharī‘a and did not violate its universal principles. even though it may not [be] in complete conformity with the statements of the leading jurists (al-a’imma almujtahidūn)” .Siyāsa and the Modern State as an Impersonal Institution ‘Abd al-Wahhāb Khallāf’s (d.

Siyāsa as Maṣlaḥa Siyāsa as a mechanism for ensuring balance amongst various systems of adjudication in a pluralistic society. .

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