Basics of Islamic Law and Economy

Manhaj (menhed) mean of life

According to Islamic sources, every nation has shariah revealed law, divine law.
Secular law man-made law
Hakim legislator
Shariah changes from time to time.
Islamic Shariah vs. Jewish shariah vs. Christian shariah
Latin:
1. Divine law
2. Human law
Muslims Shariah =divine law vs. man-made law
Fikh (understanding) human understanding of Shariah
Law zakon
Shariah is unchangeable fikh is changeable.
Fikh Islamic jurisprudence; system developed based upon law
Pravo law
Jewish law without state
Shariah Islamic normative system
Ahkam norme, norms
Set of rules which originate from Islamic teaching religious, ethical
Canon positive law applied by state, law which is written, produced by human authorities rulers, sultans, kings,
emirs, political power
Canon must be in accordance with Shariah.
Muslim scholars determine if canon is in accordance with Shariah.
Fikh + canon of Muslim countries.
Canon any positive law
In Christianity canon is opposite religious law.
Objectives of Islamic law:
1. To improve individuals;
2. To establish justice a- adl;
3. To secure benefit for mankind;
Personal basis applicable only to certain population legal pluralism
-territorial basis
-laws regulating worship
Muslims are careful about time punctual because of five-times daily prayers.
Ideal situations law deals with ideal situations
Justice among people ADL ime Adil pravedni, just one
Mizan balance vaga symbol of justice in ancient Greek world
Emphasis on justice in Islamic world
Justice vs. Zulm
Zulm injustice, darkness in Arabic
According to Quran, peoples before were punished because they committed injustice.
State will prosper if it is just, even non-Muslim state.
Unjust state will fail even if it is Muslim.
Just ruler will be in the shadow of Allah and he is at the first place according to hadith.
Hamurabi just ruler ar mearib
In 16th century in Bosnia Hasan Kafi Akisari (akisari white castle Prusac, Donji Vakuf) Foundation of Wisdom
in the World Order
Order of the world secure, maintain order.
Ottoman state was in decline and Hasan advised the ruler to divide people into classes:
1. Soldiers,

2. Scholars and bureaucracy,

3. Traders (economy) and craftsmen,
4. Peasants.
This is in order to establish/preserve the circle of justice krug pravde.
The most important just ruler who maintains order.
Justice cornerstone of the world order.
Mahlukat Gods creation all should benefit from the just Shariah application.
Waqf (vakuf) charitable institution (zaklada), foundation by Muslims and non-Muslims (for example Christians in
Bosnia).
Waqf long-lasting sadaqah.
Law deals with ideal categories what ought to be
ISIL Management of Barbarity Upravljanje divljatvom; reintroduction of slavery
Islam tool to eliminate the slavery.
Comparative law:
1. What is in legislation;
2. What is in scholarly books;
3. What is in reality/practice.
Sources:
1. Quran Revelation; Scripture revealed word of God; divine Book of guidance;
2. Sunna;
3. Ijma;
4. Qiyas;
5. Urf.
In the content of Quran there are 500 verses that deal with legal issues.
That is 1/3 of total number of Quran verses.
Quran is the main source of Islamic law.
Mujtehid reads directly from Quran and Sunna.
Ijtihad independent interpretation of Quran and Sunna.
Quran different way from human narration.
Methodology of Quranic interpretation.
Authenticity is what differentiate Quran from other religious texts.
Memorising by heart hefz.
Without the book of regulations it would be an anarchy.
Sunna normative practice of the Prophet Muhammed sallAllahu alayhi wa sallam
Sunna Explanation of the Quran. It also introduces new rules and explains daily life of a Muslim.
Hadith sayings of the Prophet, sallAllahu alayhi wa sallam, information about the Sunna; model of behavior of
Quran.
During the 3rd century after the Hijrah the most important compilations of the Hadith.
Quran authentic.
Hadith different levels of authenticity.
Ijma consensus of Muslim scholars from one century on one interpretation, one rule.
Ijma developed by Muslim scholars
Roman law common opinion of scholars
Qijas analogy technique of derivation of rules from sources.
It is used in many legal systems.
Auxiliary sources urf what is known, known practice, what is repeated (etymologically) customary practice
Selected customs are accepted if there is concordance with Shariah principle.
In ibadat customs are not included.
Muamalat customs are included.

Muamalat transactions
Istishan continuation of situation
Criminal law there is no analogy
Naruriyat protected values in Islamic law:
1. Life (hayat)
2. Religion (din)
3. Progeny (nasl) offspring, children
4. Property (mal)
5. Dignity (aid)
Property should be acquired in legal way.
Men have special position between creations.
Dignity
Prohibition of intoxicants
Protected values influence way of behavior.
IJTIHAD
TAQLID
FATWA
Ijtihad independent interpretation of main sources, deviation of rules from them
Individual or collective ijtihad
Ebu Hanife individual ijtihad
Collective ijtihad ijma
Academy for fikh
Muhamed Iqbal Principle of Dinamics in Structure of Islam IJTIHAD
4th century ijtihad because of political reasons Mongol invasion endangers Islamic rule
From 13th century no new ijtihad schools
Taqlid blind following people of later centuries do not individually approach texts but follow what was reached
before.
Legal scholars lawyers follow old schools
After Muslim Spain decline of madrasah
Real sciences were expelled from curriculum of madrasah.
From 17th century slow decadence of madrasahs.
From 19th century movement for restoration of ijtihad.
Fatwa response (exists also in Roman and Jewish law) interpretation of Islamic law written document that
provides answer to the question.
Fatwa in taqlid just information about law.
In Ottoman period there was a good practice. Elements of fatwa were:
1. Question summarized in short way without mentioning name,
2. Clear answer in form of YES/NO
3. Reference.
Only official muftis, ulama were given right to give fatwa.
Ottoman fatwa hypothetical answers muftis did nor research what did really happen.
John Maqdisi Influence of Islamic Law to Canon Law
Maliki law entered English law
Influence of madrasahs to European education

SOURCE

ISLAMIC LAW
Revelation

COMMON LAW
Decisions of courts

AREAS
IMPLEMENTATION

Whole life
Muslims

Secular dimensions of life

Citizens

Common law English law from 12th century onwards.

Statute law passed by government
Ijma consensus of scholars after the time of the Prophet, sallAllahu alayhi wa sallam, and issue must be legal issue.
Ijma mostly retrospective process
Ottoman Empire men of sword, book and pen were exempted from paying taxation.
1839-1876 Tanzimat reforms under sultan Abdulmecid.
Medela frist codification
Europe 19th cent.
Islamic law of transactions majalah (medela) in Ottoman Empire
Main scholar Ahmed Jawdet-pasha (17th cent.)
Ottoman Empire family law incorporated Muslim law and other religious laws.
After 2nd World War Arab countries adopted their own family laws.
Trade based on consent contract best way mutual consent of two parties
-agreement
-transfer of property
-conditions
-offer and acceptance, transfer latter
Majalah medela contract of sail. Everything is based on this contract.

Structure of legal system

Objectives Maqasid

Legal maxims Ganaid

General rules
Particular norms / rules Hukm
Reality
All human beings are judged according to intentions
Legal maxims formulated by Islamic scholars formulated in order to explain spirit of Shariah.
Maxims:
1.
2.
3.
4.
5.

Acts are judged according to intentions.

Harm must be eliminated.
Certainty is not overruled by doubt.
Hardship begets facility.
Custom is the basis of judgement important for mualamat (transactions).

6. Harm cant be eliminated by another harm.

Majalah (medela) 99 general rules (transactions)
Rules can be understood better by legal maxims.
Roman Law has maxims, as well as Jewish law, Anglo-American law also.
-burden of proof
In essence everybody is innocent.
Ko god poselami ili kae da je musliman, treba ga smatrati muslimanom.
Islamic law one of the major systems / traditions in the world.
Most important legal systems:
1. European Continental Law romanistic, german
2. Common Law Anglo-American system USA, UK, Canada, Australia, New Zealand. In Common law
judges create law, not only implement that.
3. Native African legal system,
4. Chinese legal system,
5. Islamic legal system with other religious legal systems Jewish and Canon (Christian legal system)
6. Socialist law North Corea, China, Eastern Europe before 1990s. Now EE uses Germanic continental law.
Religious law law based on revelation.
Canon / Christian religious law revelation + decisions of Church
Religious laws imply responsibility in this world and thereafter. They also imply inclusion of ethical and legal rules.
Islamic law is the most influential religious law.
Israel secular law.
Canon / Christian law marriage, divorce, eclectic
Shariah applied in many countries
Islamic law influenced EU legal system through Sicily and through Andalus (Maliki madhab)
12th cent. codification of Spanish law

Periods of Islamic Law

1.
2.
3.
4.
5.
6.
7.

Risala
Khulafa-u-rashidin
Early schools of law monarchy, kingdom
Classical schools of law
Finalization of legal development
Taqlid
Reform and revival.

Political rulers and scholars were together till the third period (30 years).
By the third period (early schools of law) political rulers Umayid and scholars split and that split lasts up to our times.
There were circles of scholars and their students in Hijaz, Iraq, Sham etc. Madhabs emerged hanafi, maliki, shafi,
hanbeli from 2nd to 4th century.

Hanefi school originated in Iraq, Maliki in Hijaz. Shafi was established to bring together these two schools. Hanbeli
reaction to rationalism; it is traditional.
Taqlid begins with conquest of Baghdad in the middle of 13th century Mongol invasion very brutal. At the same
time Hilafet was attacked from the west Crusades that began by 11th century.
Ijtihad influenced by political events the doors of ijtihad were closed because hilafet was attacked from two sides.
From 19th century movement for revival we are still in this period.
Some say with tanzimat
Some say with emergence of reform schools in India, Egypt, Syria, Zarist Russia, South-Eastern Asia and Bosnia.
Teddid revival
Isla to change for better
Assasinidi Shias assassinated in public
Started in Iran, Syria against Sunni Seljuks.
Ruling power vs. emerging power