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Islamic Law: a Question of Adaptability

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Islamic Law: a Question of Adaptability www.mruni.eu Juozas VALČIUKAS Juozas Juozas Valčiukas DOCTORAL DISSERTATION ISLAMIC LAW: A QUESTION OF ADAPTABILITY LAW: ISLAMIC ISLAMIC LAW: A QUESTION OF ADAPTABILITY ISBN 978-9955-19-893-2 2018 SOCIAL SCIENCES, LAW 01 S VILNIUS, 2018 MYKOLAS ROMERIS UNIVERSITY Juozas Valčiukas ISLAMIC LAW: A QUESTION OF ADAPTABILITY Doctoral dissertation Social Sciences, Law (01 S) Vilnius, 2018 The Doctoral Dissertation was written from 2011 to 2017, defended at Mykolas Romeris Univer- sity according to the right to carry out doctoral studies provided to Mykolas Romeris University and Vytautas Magnus University under the order of the Minister of Education and Science of the Republic of Lithuania, dated 8 June 2011, No. V-1019. Scientific supervisor: Prof. Dr. Justinas Žilinskas (Mykolas Romeris University, Social Sciences, Law, 01 S). ISBN 978-9955-19-892-5 (online) © Mykolas Romeris University, 2018 ISBN 978-9955-19-893-2 (print) MYKOLO ROMERIO UNIVERSITETAS Juozas Valčiukas ISLAMO TEISĖ: ADAPTYVUMO KLAUSIMAS Daktaro disertacija Socialiniai mokslai, teisė (01 S) Vilnius, 2018 3 Daktaro disertacija rengta 2011-2017 metais, ginama Mykolo Romerio universitete pagal Mykolo Romerio universitetui su Vytauto Didžiojo universitetu Lietuvos Respublikos švietimo ir mokslo mi- nistro 2011 m. birželio 8 d. įsakymu Nr. V-1019 suteiktą doktorantūros teisę. Mokslinis vadovas: Prof. dr. Justinas Žilinskas (Mykolo Romerio universitetas, socialiniai mokslai, teisė, 01 S) 4 In the memory of prof. Leonidas Donskis To my grandmother Vanda Borodkiniene for lessons of patience and everlasting optimism To all the students who devote their life to execute a last will of Stasys Lozoraitis Jr., Lithuanian President of Hope 5 GLOSSARY OF ISLAMIC TERMS Darrura, pl. daruriyyat – necessity; basic necessities of human beings that the law must fulfil. Fatwa – non-binding religious-legal opinion issued by a mufti in response to a question. Fiqh – understanding of law written in the sources; the science of law. Hadith, pl. ahadith – normative statement about what the Prophet said or did; the body of reports attributed to the Prophet. Ijma – consensus, agreement. Ijtihad – reasoning and interpretation of the sources of law; the process of exerting one’s utmost in an effort to derive laws from sources. Istihsan – juristic preference, equity; the juristic method that considers equity in applying the law. Madhab – school of thought, juristic school, orientation or view. Majalla – Ottoman Islamic law written in the form of Civil Code. Maqasid al-Sharia – the methodology of law based on the purposes or goals of the Sharia. Maslaha – public interest; the juristic assumption that considers public interest and general welfare in applying the law. Mufti – scholar who is qualified to issue a non-binding legal response. Mujtahid – a person who applies original analysis and independent judgment to legal is- sues. Naskh – abrogation or replacement of an earlier Quranic verse or Sunna by a later one. Qadi – judge in a Sharia court. Qanun – secular positive law. Qiyas – deduction by analogy; juristic methodology that relies on the use of analogy for unprecedented cases in which the source texts do not provide a legal decision. Ray’a – personal opinion, judgment. Sharia – the path given by God to human beings, the path by which human beings search God’s will; All categories of rules written in the Quran and Sunna. Sunna – the example of the Prophet embodied in his statements, actions, and those matters that he silently approved or disapproved as reported in hadith literature. Taqlid – imitation; the imitation of more knowledgeable scholars, usually within a particu- lar school. Taqlid is often considered the opposite of ijtihad. Ulama – the members of the scholarly community, jurists. Umma – the community of Muslims. Urf – custom, customary practice. Usul al-fiqh – the methodology of law; the theory of sources of Islamic law. 6 CONTENTS INTRODUCTION ................................................................................................................................. 9 1. THE CONCEPT OF SHARIA IN ISLAM ..............................................................................23 1.1. Sharia as faith: five pillars of Islam..................................................................................25 1.2. The Umma of the Prophet and the second meaning of the Sharia .............................28 1.3. Sharia as law .......................................................................................................................35 1.4. Summary ............................................................................................................................39 2. ISLAMIC LAW AND ITS HISTORICAL DEVELOPMENT ..............................................40 2.1. Formative period of Islamic law ......................................................................................41 2.1.1. Islamic law in the hands of the qadis and scholarly community .....................43 2.1.2. The theory of sources (Usul al-fiqh) ...................................................................49 2.1.2.1. The key idea of bayan to construct the theory of sources ..................52 2.1.3. The birth of schools of law....................................................................................58 2.2. Post-formative period of Islamic law ............................................................................59 2.2.1. The maqasid-based approach and the spirit of Islamic law .............................64 2.3. Summary ...........................................................................................................................72 3. PRIMARY AND SUPPLEMENTARY SOURCES OF ISLAMIC LAW .............................74 3.1. Twin divine sources of Islamic law: the Quran and Sunna of the Prophet ...............75 3.1.1. Quranic legislation ................................................................................................77 3.1.2. The Sunna of the Prophet .....................................................................................87 3.2. Ijma as a source of rulings, limits and possibilities ......................................................93 3.3. Analogical reasoning (Qiyas) ........................................................................................100 3.4. Supplementary sources of Islamic law .........................................................................103 3.5. Summary ..........................................................................................................................108 4. INTERPRETATION OF THE SOURCES AND MAN-MADE LAW IN ISLAM ..........109 4.1. The concept of ijtihad .....................................................................................................110 4.1.1. Definition and textual authority ........................................................................111 4.1.2. Who are traditionally entitled to exercise ijtihad? ..........................................113 4.2. The closure of the doors of ijtihad and the notion of taqlid .....................................117 4.3. Fiqh law: from schools of fiqh to fiqh rules ................................................................122 4.3.1. Comparing four Sunni schools of law ..............................................................124 4.4. Hanafi fiqh law and its peculiarities ............................................................................130 4.4.1. A study of some Hanafi fiqh rules .....................................................................131 4.4.2. Hanafi fiqh rules within modern Muslim state-made law .............................138 4.5. Summary ..........................................................................................................................141 5. ISLAMIC SCHOLARLY DISCOURSE IN CONTEMPORARY TIME ...........................143 5.1. Three interpretative approaches towards Islamic law ................................................144 5.2. A case study of reform proposal to reverse Islamic theory of abrogation ..............147 5.2.1. Methodological basis of the theory ...................................................................149 5.2.2. Some Islamic law issues: a test of reform proposal .........................................154 5.3. Summary ..........................................................................................................................158 6. ISLAMIC LAW IN ACTION TODAY: TRENDS, CONCEPTS, CASE ANALYSIS ......160 6.1. Islamic law and neo-ijtihad: new trends and concepts ..............................................160 6.1.1. The role of fatwas in the age of Internet ...........................................................163 6.1.1.1. Fatwas: definition, classification, actors..............................................165 7 6.1.1.2. Case analysis of online fatwas ..............................................................168 6.1.2. The doctrine of fiqh for Muslim minorities and its development .................173 6.1.2.1. Fiqh for minorities: history and divergent opinions .........................174 6.1.2.2. Methodological basis of fiqh for minorities and its analysis ...........177 6.1.2.2.1. A paradigmatic shift in the system of Islamic law .........................182 6.2. Sharia in the West ..........................................................................................................184 6.2.1. Some general remarks .........................................................................................185
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