Introduction to Islamic Law

Lily Zakiyah Munir

Center for Pesantren and Democracy Studies (CePDeS)
Indonesia
 The Trilogy of Islam

Religion ISLAM/SHARIAH

Submission, comprising of series of activities: bearing witness (shahadah),

Islam praying, zakat (tax payment), fasting in Ramadhan, and Hajj (pilgrimage to
(Shariah/legal) Mecca) regulated in FIQH (narrow Shariah) – legal system

Faith, understanding that everything in universe is governed by tauhid –

Iman
Oneness of God/THEOLOGY: belief in God, Messengers, the Angels,
(Aqidah/belief) the Books, the Last Day, God’s Destiny for humans.

Doing what is beautiful, deepest dimension of Shariah, focused on

Ihsan human intentionality; awareness of God’s presence—TASAWWUF or
(Spiritual/ethics) SUFISM, concerned with ethical and mystical system.
 WHAT IS ISLAM?

Literal meaning:
salima – yaslamu – salaaman (safe and peaceful);
aslama – yuslimu – islaman (to bring safety and peace)
The Qur’an laden with aesthetics and moral ethics succeeded in
transforming then Arab nomads into societies with norms and
values.

“And I send you not except as a Blessing to the whole

universe.”
PEACE: Passive (inward) through rituals;
Active (outward) through social interactions – salam (greetings)
 BALANCES IN ISLAM

RITUAL SPIRITUAL

WORLDLY LIFE LIFE IN HEREAFTER

TRANSCENDENTAL SOCIAL

HUMAN RIGHTS HUMAN RESPONSIBILITIES

 What is SHARIAH?

 “Way” – to God, many ways same destination

Plurality and Flexibility of Shariah:

“To each among you have We prescribed a law and an open

way. If Allah had so willed, He would have made you a
single people, but (His plan is) to test you in what He has
given you; so strive as in a race in all virtues. The goal of
you all is to Allah; it is He that will show you the truth of
the matters in which you dispute.” (QS al-Maidah/5:48)
 Roots of Shariah: Textual and Rational

GOD
The Qur’an

Prophet
The Sunnah

Human Human
Tafsir (Exegete) Fiqh (Law)

Textual versus Rational

Hegemony of Texts, locus of contestation

The Qur’an
These pillars of Islam came into being not in a vacuum.
Each came into being in a society with social, cultural, political and
technological setting, and with different
The Sunnah internalization of religion.

The Qur’an was revealed gradually;

The Sunnah was never came out of the blue;
Tafsir The exegetes had their own personal abd social backgrounds;
Fiqh is actually a response to problem(s) in a society;

Fiqh
Reference for a continually changing life should not be a source
which relies on a changing life as well …
 What is the QUR’AN?
Literal meaning: “reading” or “recitation”
“The Book containing God’s speech revealed to the Prophet Muhammad and
transmitted to us by continuous testimony.”

There are 114 Surahs, 6235 verse of unequal lengths; less than 1/10 (about 350)
legal verses, most in response to actual problems encountered such as
infanticide and unlimited polygamy; on a whole, confirmed and upheld
customs of Arab society and changed only when necessary. The rest
concerned with matters of belief and morality, faith, etc. Reciprocal
dialectics between the Qur’an and human beings,

The Qur’an calls itself al-huda, ‘The Guidance.’ Revealed in two phases, Mecca
(19 parts) and Medina (11 parts). Mecca verses devoted to matters of belief,
the Oneness of God, Prophecy, invitation to Islam; Medina verses
emphasize principles regulating political, legal, social, and economic life of
the new community.
 What is the HADITH/SUNNAH?

“All that is attributed to Prophet Muhammad, his acts, his sayings, and
whatever he has tacitly approved, plus all the reports describing his
physical attributes and character.”

The Prophet, “I have left two things among you. You shall not go astray so
long as you hold on to them: the Book of Allah and my Sunnah.”

As a second source of shariah, Sunnah could not possibly contradict the

primary source (the Qur’an). The process of hadith formation
involves interpretations of its re-teller (rawi) from the period of the
sahabat to its codification in mid 3rd century of Islam.

Two tendencies: the textual approach and reasoning approach.

 What is TAFSIR (Exegeses)?

“The process of understanding Qur’anic texts.”

1) Tafsir bil ma’tsur – based on reports deriving
from the Qur’an, the Prophet, the Companions
2) Tafsir bir ra’yi – based on ijtihad (reasoning)

Hermeneutics discourse of contemporary exegetes:

The Qur’an is not to be treated as a ‘dead’ text,
but as a living text with spirit for transformation.
 What is FIQH?

Literally means “understanding.”

A discipline which seeks to understand detailed and
general rules of Islamic teachings. Fiqh deals with
practical aspects of shariah regulating human
activities in their life cycle.

As interpretation of texts which carries certain historical

context, differences of opinions of fiqh scholars are
inevitable.

Different opinions of jurists are blessing to the Muslim

community (The Prophet).
 Historical Development of Sharia

During Prophet’s life –Qur’an and Hadith in formation;

Formation of Foundation
Prophet was sole authority through ijtihad

Codification and Fiqh laws codified and registered by the Companions.

Registration Period The Qur’an and Hadith being collected; strong role of ijtihad

Formation of Schools of Sharia was constructed based on works of earlier

Fiqh (2nd century) Fiqh scholars. Masterpieces of Fiqh produced.

Period of Adhering How to save the already existing Fiqh products. Monumental
2nd-3rd centuries activities in interpreting the Qur’an and sifting the Hadith.

Transforming Fiqh into Fiqh becomes foundation of laws in countries

Laws in modern times With Muslim population like Indonesia
 Schools of Thought in Fiqh

Hanafi Maliki Shafi’i Hanbali

(700-782) (710-795) (782- (796-873)

Lived in Medina, Student of Maliki.

Oldest, most tolerant
locus of traditional Two phases of ijtihad
liberal and flexible. His Fiqh developed
Fiqh. He developed Baghdad and Egypt.
Broad minded with- from textual and
Medina consensus Emphasizes
out lax, appeal to historical perspective.
of opinion using Importance of
reason over text, Orthodox, opponent
Hadith as guide. analogy (qiyas) when
and a quest for the of the rationalist.
Medina is special no context found in
better; elevate Hanbali inspired
because of political texts. Shafi’i divides
belief over practice. Wahhabism in 18th
History. Most Sharia texts into qath’i
The Iraqi (rational) century, puritanical
laws were made (definitive) and
stream. He was movement in Arab
during Prophet’s life zhanni (doubtful).
Disgraced and peninsula. His
In Medina. He is Father of Usul
imprisoned. Followers followers spread in
Followers in North, Fiqh (Roots of Fiqh).
in the Arab Middle Northern and
Central, and West Followers in Iraq,
East, India, Pakistan Central Arabia.
Africa. Yemen, Southeast
and Afghanistan
Asia.
 Challenge to Shariah: Politicization

Formal shariah – seek power to control Muslim society;

Drain a lot of energy, scholarship, emotion;
Strikingly different face of Islam;

o Imposition of theocracy over democracy

o Violations of human rights
o Institutionalized discrimination against women
and non-Muslim
o Severe corporal punishment
 Methods for Explaining Shariah

The authoritative ‘given’: the Qur’an and the Sunnah

Ahl ‘ilm (People of the ‘learning’) – Textual approach

Human intelligence and understanding (fiqh) –

to fulfill needs for succeeding generations
Ahl fiqh or ahl ra’y (People of comprehension) –
Rational approach
 Normative Basis of Shariah:
Maqashid Shariah (Overall Goal) – Imam Shatiby

Basic human rights in Islam – Al Kulliyatul Khoms

 Right for protection of one’s faith
 Right for protection of one’s life
 Right for freedom of thoughts
 Right for protection of one’s property
 Right for protection of progeny

‘God loves to see that His concessions are taken advantage of, just
as He hates to see the commission of a sin.’ (Hadith)

‘Fulfill your duties to the extent of your ability.’ (Hadith)

 What is Ijtihad?

A method to exert all capacities to find

a shariah ruling which can be used to reach a
legal decision.