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Appendix: Fundamentals of Islamic Jurisprudence Sohrab Behdad

Specific acts of Muslims must be in accordance with the Islamic rules of conduct. These rules of conduct are called shari'a. The primary source of the shari' a is the . The Quran, however, as a book of religious teachings contains many ambiguities and conflicting statements. The believers sought 's interpretation of the Quran during his lifetime. Soon after the death of Muhammad (AD 632), however, controversies arose on interpreta­ tion of the Quran, which gave rise to development of various schools of Islamic jurisprudence. The history of development of these schools has been studied elsewhere (Schacht, 1950, 1982, and Macdonald, 1975). Here we are concerned with the fundamentals of jurisprudence in the major sunni and shi'i schools.1 The process of deducing specific rules of conduct from the shari'a is called fiqih (jurisprudence). The person who makes these deductions is a faqih (jurist). A faqih must be a mujtahid, that is a Muslim whose intellectual capacity and integrity has been recognised by the established mujtahids. (For attributes of mujtahid see Aghnides, 1969, pp. 117-224.) The act of deducing a specific rule of conduct from the shari'a is ijtihad. The bases of jurisprudence in the sunni schools of are the Quran, Tradition (sunna), Consensus () and Analogy (). The ambiguities and conflicts in the Quran are to be resolved by the wisdom of mujtahid in the light of the philosophy of and through the rules of jurisprudence established for utilising the other sources. The most important source of the shari' a after the Quran is Tradition. That is the conduct of affairs by Muhammad, statements attributed to him () and the customs of the community where Muhammad and his Companions lived (Aghnides, 1969, pp. 35-5). The problem of application of the authority of Tradition stems not only from conflicting acts or statements of Muhammad but also from the existence of many false hadiths that have been circulated and transmitted. Therefore, Science of the (ilm-al-hadith) has become an element of Islamic jurisprudence. Complex rules of logical and historical scrutiny have been established to recognise the genuine from false hadiths and to interpret Tradition for deducing Islamic rules of conduct (Aghnides, 1969,31 et seq.). This interpretation falls clearly in the domain of authority of mujtahids. Thus, neither the Quran nor Tradition may be used by lay persons for advocating a position. The reaction of the faqihs to the layman's application of the authority of the Quran and Tradition has been, historically, nothing short of condemnation. This condemnation has been particularly strong if the Quran or Tradition were relied upon to advocate a social or political action or change.

188 Appendix 189

The other two bases of Islamic jiqih, Consensus and Analogy, are methods of interpreting shari'a from the Quran and Tradition. According to Muham­ mad, Consensus among Muslims is the guarantee that the laws of God have been understood correctly. (Aghnides, 1969, p. 61). In the later periods, Consensus has been considered to be the agreement among the mujtahids of the past (Schacht, 1982, p. 30). Analogy is 'the extension of the shari'a ... from the original case ... to a new case, because the latter has the same cause as the former' (Aghnides, 1969, p. 77). The complexity of making Analogy is in determination of the cause when the divine prescription has different attributes. Obviously, Anal­ ogy is a study in epistemology and logic. The complexity of Analogy is further expanded with possibility of abrogations in the divine prescriptions. Within this jurisprudential framework, the new questions that may arise in the society of Muslims must be resolved by ijtihad. By the fourth century of Islam (tenth century AD), the view gained dominance, however, that all the essential questions have been clearly dealt with by the great mujtahids of the past (Schacht, 1982, pp. 69-75). According to this view, there would not be any need for independent reasoning in the shari'a, and the duty of the future faqih would be limited to the interpretation of 'the doctrine as it had been laid down once and for all' (Schacht, 1982, p. 71). This is referred to as 'closing of the gate of ijtihad' and is accepted in practice, if not in theory, by all major schools of sunni fiqih. 2 The muftis who issue religious rulings (fatwa) must rely upon the ijtihad of the great mujtahids of the past in a way not unlike judges in a system of common law. Shi'i jurisprudence (Mutahhari, n.d.) provides a somewhat wider scope for interpretation of the divine prescription. Similar to sunnis, Shi'is accept the Quran, Tradition and Consensus. Shi'is, however, rely not only on the Tradition of Muhammad but also of the Imams (Tabataba'i, 1984, p. 3). This provides a longer period (lasting to the third century of Islam) and also a more varied socio-political context for Tradition. This is especially important since with the exception of the first Imam, , all other Imams considered the Islamic state illegitimate. (For a brief history of the life of shi'i Imams see Momem, 1985, pp. 23--60.) The most significant difference between shi'i and sunni jurisprudence is acceptance of Reason (aql), instead of Analogy, as a basis ofjiqih in shi'ism. Shi'ism maintains that Analogy 'is possible only where there is a basic common denominator between ... two cases inasmuch as one can be certam that the same reason which is behind the precept in the original case, covers the other case as well' (Tabataba'i, 1984, p. 3). 'Reason', however, is 'categorical judgments drawn from pure and practical reason [and] whatever is ordered by reason is ordered by religion' (Tabataba'i, 1984, pp. 3-4). Unlike sunnis, shi'is consider 'the gate of ijtihad' open. Every shi'i mujta­ hid must make his view by personal investigation of the sources of shari' a and may not imitate the opinion of another mujtahid (Tabataba'i, 1984, p. 16). Thus, shi'is may have, in theory, a wider latitude of interpretation of the shari' a than sunnis. In practice, however. this latitude is significantly limited by the jurisprudential tradition of the great mujtahids of the past. Deviation from this tradition is heresy and is condemned by shari'a (Aghnides, 1969, p. 30). 190 Appendix

NOTES

1. The sunnis and shiis differ on the issue of the (Momen, 1985, pp. 11-22). The major sunni schools of jurisprudence are , Shafi'i, , and . For a review of some differ­ ences among these schools see Aghnides (1969, pp. 133-47). The main schools of shii jurisprudence are Jafari, Zaidi and Ismaili. See Momen (1985) for detailed elaborations. 2. Aghnides who considers the closing of the gate of ijtihad a fiction quotes a modern Turkish faqih saying 'that the gate of ijtihad was not closed ... by an external cause . . . but through the mere absence of mujtahids' (1969, p. 124). Ilallaq (1984) is among the few modern scholars who believe the gate of ijtihad has never been closed in theory or practice.

REFERENCES

Aghnides, Nicolas P., Mohammedan Theories of Finance with an Introduc­ tion to Mohammedan Law and a Bibliography (New York: AMS Press, (1916) 1969). Hallaq, Wael B., "Was the Gate of Ijtihad Closed?" International Journal of Middle East Studies, 16 (1), March 1984, 3-41. Macdonald, Duncan B., Development of Muslim Theology, Jurisprudence and Constitutional Theory (London: Darf Publishers, (1902) 1985). Momen, Moojan, An Introduction to Shi'i Islam (New Haven: Yale Univer­ sity Press, 1985). Mutahhari, Morteza, Jurisprudence and its Principles (Fiqh and usul ul-fiqh), translated by Muhammad Salman Tawheedi (Albany, California: Moslem Student Association, n. d., circa 1983). Schacht, Joseph, An Introduction to Islamic Law (Oxford: Clarendon Press, (1964) 1982). Schacht, Joseph, The Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press, (1950) 1985). Tabataba'i, Hossein Madarressi, An Introduction to Shi'i Law: A Biblio­ graphical Study (London: Ithaca Press, 1984). Index

Abbasid revolution, 145 Arabs, 106, 145 Abdul Malik, 145 Ashraf, Sh. Muhammad, 10, 50 Abdul-Rauf, see Rauf ,146 Abidin Ahmad Salama, 23, 25 bank advance, indexing, 174-5 abolition of interest, Baqir AI-Sadr, see interest see Sadr abolition of , bay mu'ajjal, 38 see riba behavioural norms, Ahmad al Khassaf, 145 see Ouran, , norms and Abu Dhar al-Ghifarri, also Abu Dharr, 81, 118, 171 benevolence, 118 , 110, 114 Bokhara, 146 Abu Sulayman bourgeois Islam, 111-12 see Sulayman British colonialism, 134 accumulation of wealth Brotherhood party, 135 see Ouran Buddhism, 148 Abu Hatim Mahmud al Oazwini, Buddhist, 10 145 Abu Ishaq Shatibi, 121 , 81 Abu Yusof, 113 Calvin, John, 147 adat, 134 Calvinist Protestantism, 127 ad valorem tax, capital, rights to, 90-2 see tax capitalism, 118-19 Agabani,37 development in Muslim Ahmed ibn Hanbal, 110 countries, 145-50 al-adl, 159--63, 168-9 capitalflabour ratios, 162, 169 also al-adl wal al-ehsan, 118 Center for Research in Islamic see also Islamic economic Economic (Jeddah), 50 system, goals Chapra, M.U., 84 AI-Azhar, 81 charity, Algeria, 12, 94 see Ouran Ali 'Abdar-Raziq, 15 Choudhury, M.A., 88 altruism, Christianity, 50, 81, 128, 148 norm of, 12, 13-14 Christians, 35, 107, 112, 127, 128, injunction, 53 149 Alzar-ur Rahman, 11, 21 consensus, antal, 83 see Islamic economic system Aquinas' just price, 86 consumer sovereignty, 157-8 Arabia, 22, 27, 39, 142 consumption norms, 11 see also Saudi Arabia Council of Islamic Ideology, 31, 38 Arabian, 24, 32, 110 , 89, 145 , 25

191 192 Index economic growth, 162, 168-9 Hejaz, also Hijaz, 23, 108 economic doctrine, hijra, 18, 107 see Quran hiyal, 35, 126, 145 education, universal, 161-2, 168 Hindu, 112 , 36 hoarding, private property, 85 employment generation, 162, 169 see also Quran equality, principle of, 51-6, 63 Hobbes, T., 15 Ethiopia, 106 homo economicus, 3, 11 Europe, 50 homo Islamicus, 3, 11 European, 111, 128, 129, 131, 132, human dignity, 141, 142, 143, 147, 149 see Quran human nature, fairness, principle of, 51-6, 61, 63, see Quran 86 Fahim Khan, M., 30, 37 Ibadi jurists, 62 Faisal Islamic Bank of , 36 , 121 faqih,81 , 146 Faruqi, al-, Isma il R.A., 80, 81 al-, 160, 163 Faridi, F.R., 25, 34 see also Islamic economic goals fatalism, 128, 134 Ikhwan al-Muslimum, Fazlur Rahman, 28 see feudal Islam, 108-10 Ikram Azam, 17 andfuquha, 109 Shatibi, 123 and Islamic ideology, 112-14 Industrial Development Bank of and Quranic Islam, 110 Pakistan (IDBP), 140 feudalism, infaq, 122, 171 in Pakistan, 149-150 inflation, 64, 123, 174 fiduciary principle, 83 see also interest and riba fiqhi Islam, 109, 113, 143, 144 inheritance, Fouad Agabani, 36 Islamic law of, 52, 167 France, 125 see also wealth free-rider problem, 14, 15 injunctions, Islamic, 51-62 French Revolution, 69 Institute of Policy Studies fuquha, (Islamabad), 10, 50 see feudal Islam insurance, 34-5, 54 interest, 146, 148 Gandhian economic doctrine, 10 abolition of, 172 God's ultimate ownership, and fixed wages, 33, 60, 63 see property rights and inflation, 58 Great Mufti, 23 and profit and loss sharing, 172 Greek, 145 and Islamic Bank, 36-9 Gulf Emirates, 36, 65 and riba, 27-8 and Islamic history, 35-6 hadith, 81, 87, 88, 89, 109, 110, Islamic alternatives to, 28-34, 111, 142 172-8 Hanbali jurists, 62 rationale for prohibition of, 27-8, Hanafi school, 65, 145 53 Hashim, 106 see also Islamic economic system Hassanein, 93 interest-free system, 139, 140, 142 Index 193

International Center for Research Islamic ideology, in Islam Economics (Jeddah), and capitalism, 112-14, 143, 10,21, 113 15G-1 International Conference on see also feudal Islam (1976, Islamic Ideology Council, 141 ), First, 19 Islamic incentive system, 158 International Monetary Fund, 1,36 Islamic Publications (Lahore), 10, investment auctioning system, 50 abolition of interest and, 175 investment companies, abolition of Jama'at-i-Islami, 151 interest and, 176 Jews, 35, 89, 146 Iran, 80, 95 Jordan, 36 Iranian-Shi'i camps, 50 Judaism, 50 Iraq, 83, 95 Judaic, 10 Islam, jurisprudential heresy/reformism, alternatives to interest (see 92-5 interest) justice, and liberty, 70 clashes between principle of, 63 original or revolutionary, 1()(r8 economic, 49-70 Islam and Capitalism (1974), 125 social, 161 Islam economic goals, 159-63 priorities of, 63-6 Karsten, Ingo, 36 al-adl wal al-Ihsan, 118, 159-60 Khan, Islamic economic blueprint, see Fahim Khan see Ouran and Sunnah Khaybar, 89 Islamabad Conference on the Khazistan, 146 Monetary and Fiscal Khomeini, Ayatollah, 95 Economics of Islam, 36 King Abdulaziz University, 26 Islamabad Islamic University, 30, Kitabal-Kharaj of Abu Yusof, 113 113 Kohii, Ayatollah, 95 Islamic Bank, Kuwait Finance House, 37 see interest Islamic economic system, labour, wage, 89 and al-adl wal al-Ihsan, 179 laissez taire, and policy package, 163-78 see property rights and socialism, 182 land, character of an, 159-63 reform in, 143, 167-8 limitation of interest abolition in, rent, 88 163-5, 17G-1 renting, 55 limitation of zakat in, 163-5, rights to, 87-90 171-2 landlordism, 143-4 problems of consensus in, 66-9 liberty, see also property rights see Islam Islamic economic thought, loan, see property rights consumption, 53-4 Islamic financial system, 172-3 interest-free, 122, 173-4 Islamic Foundation (Lahore), 10 interest-free consumption, 33, 34, Islamic Foundation (United 40 Kingdom), 10, 50 time multiple counter, 38 194 Index

Malaya, 133 Ottawa Bureau of Statistics, 33 Malaysia, 23 Malaysian Islamic Youth movement Pakistan,S, 22, 36, SO, 82, 140, (ABIM),135 143, 154, 162, 163, 166, 169, Malaysian Peoples Socialist Party 181,172,177,178 (PSRM),135 Pakistan Council of Islamic Malaysia, Peninsular, 133-5 Ideology, 29 Malilas, 62, 145 Pakistan government, 21, 140 Malek ibn Anas, 110 Pakistan Industrial Credit and Maududi, 10, 50 Investment Corporation Mecca, 18, 19,28,87, 106, 107, (PICIC), 140 117, 121, 123 Pakistan Institute of Development Medhat Hassanein, 92 Economics (PIDE), 5, 28 , 18, 87, 106, 107, 118, 147 Pan-Malayan Islamic Party (PMIP), Mian N. Nazeer, 11 135 middleman, injunction against, S4 Peshawar University, 11 Middle Ages, 126, 128, 132, 143, Persia, 106, 145 146, 147, 149 populist state control approach, Middle East, 19, 133 see property rights and Iran Mohammad Ibn' Abd poverty, 169-70 Ibn'Abd al-Muttalib, 106, 110 private property, Mohammad ibn Idris al-Shafi'i, 110 see property rights and riba Mokhzani,133 production norms, 11 Morocco, 22 profit-and-Ioss sharing, mudaraba, 29, 32, 36-7, 109, 112, history of, 141-2 142 system, 32, 35, 58-9, 139-42, Muslim Brotherhood, 82 171 muzara'a, 143, 144, 145 see also interest see also sharecropping profit sharing, 29, 91-2,176-7 prohibition of interest, Nabil A. Saleh, 62 see interest Najaf,9S property rights Nasir-i-Khosraw, 149 God's ultimate ownership, 79-84, Naqvi, 29, 91 lS5-6 National Development Finance in Islamic economic system, Corporation (NDFC), 140 155-7 Nejd,23 in Islamic economic thought, nisab, 20, 22 77-96 North Africa, 19 laissez faire approach to, 80-2 North America, 13, 50 legitimacy of return on, 86 norms, populist approach to, 82-3 in Islamic history, 17-19 populist state control approach Islamic behavioural, 12-14, 10-19 to, 83-4 see also zakat and state reformation of, 166-8 Nowaihi,81 see also Quran

Occidental, 3 qirad, Ommayad dynasty, 133 see mudaraba opportunism, 32, 37 Quran, 106 Index 195

and accumulation of wealth, 118 Shaft'i, 62, 68, 145 and behavioural norms, 10-11 sharecropping, 55, 88-9, 143-5 and economic doctrine, 12~ shari'a, 92 and hoarding, 118 and accumulation of capital, 92 and human nature, 119, 157 and capital ownership, 91 and property rights, 79, 81 and property rights, 85 and the Islamic economy Sheikh, Nasir Ahmad, 88 blueprint, 40, 117 Sheikh Mahmud Ahmad, 21 vision of society, 123 Shi'i, 83, 95 human dignity and charity, Sh. Muhammad Ashraf (Lahore), 117-18 see Ashraf Quraysh, 106, 107 Siddiqi, Muhammed Nejatullah, 88, , , 10, 50 90 Sismondian-Saint Simonian Rauf,81 synthesis, 94 reform, social security programmes, 169-70 see land, property rights and socialism, zakat see Islamic economic system rent, society, vision of, see land see Quran revolutionary , speculation, 54, 61 see Islam state, riba, and abuse of power, 16--17 abolition in Pakistan, 142-3, 145, and economic freedom, 157-8 148-50 and Islamic norms, 15-17 and inflation, 123 and property rights, 80, 83-4 and private property, 86--7 role of, 93-4, 159, 166--7, 182 essence of, 122-3 Sudan, 36 see also interest Sukamo, 133 rights to land, Sulayman, Abu, see land on land rent, 88 Riyadh University, 23 on mudaraba, 91-2 Rodinson, Maxime, 35, 79 on property rights, 82-3 on Islam and capitalist on sharecropping, 89 development, 125-35 Sunnah, ruses, 126 and behavioural norms, 10-11 see also hiyal and economic doctrine, 126 and Islamic economy blueprint, Sa'd Ibn Waqqas. 88 40 Sadr, Muhammad Baqir, 3, 6 Sunni, 50, 68, 95, 133, 145 on hoarding, 85 Syed Attab Ali, 33 on property rights, 83-4 Syed Nawab Haider Naqvi, on rights to land, 87-8 see Naqvi on role of Islamic state. 93-4 , 81,82,94, 146 Sardar Ziauddin, 3 Saudi Arabia, 22, 23, 24, 25, 36, tax, 65,80 zakat and ad valorem, 22 Sayyid Abu'l-a'la Maududi, taxation, see Maududi progressive, 59-60 196 Index taxation - continued influence, 19 proportional, 60 world,27 ,82 Europe, 148 Tawney, 149 Third World, 50, 77, 106, 132, 148, Yathrib, 107 150 time deposit, indexing of, 174-5 Yusuf, 88, 89 trusteeship, concept of, 166 zakat, Umar Ibn al-Khattab, also Umar, and behavioural norms, 2~7 Umar I, 1, 20, 24, 25, 26, 65, contemporary experience of, 108, 144 23-4 Umayyyads, 81, 108, 144, 145 critique of, 21-2, 5~7 usury, 148-9 dispute over disbursements of, 60 Ibn 'Affan, 108 historical evolution of, 24-5 reforming, 25--{) wage, fixed, the essence of, 122 see interest the scheme of, 19-21, 52 Waqar Ahmad Husaini, 14 see also Islamic revolution system wealth, inherited, 167 Ziauddin Sardar, Weber, 125, 127, 128, 132, 134 see Sardar Western experience, 13 Zia-ul Haq, General, 5