Introduction to Islamic Law: Foundation, sources and principles

Introduction to Islamic Law: Foundation, sources and principles

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Islamist movements in the Arab and Muslim countries are demanding for the total implementation of Islamic law as a component of their faith. Muslim minorities in the West also have increasing demands aiming at adapting the laws of the host countries to their religious demands. However, this leads to many problems, particularly due to Muslim norms which are contrary to human rights.In order to understand these claims and the problems they bring about, one must comprehend the Principles (al-usul). Without such knowledge, any dialogue between the Muslims and the non-Muslims would end up in an impasse and in incomprehension.This work is principally based on the courses taught in different faculties of law and Islamic law in Arab countries. We complemented them with the writings of Muslims outside the institutional framework. The work concludes with an analytical juridical table of the Koran.The authorSami A. Aldeeb Abu-Sahlieh. Christian of Palestinian origin. Swiss citizen. Doctor in law. Habilitated to direct researches. Professor of universities (CNU-France). In charge of Arab and Islamic Law at the Swiss Institute of Comparative Law (1980-2009). Visiting professor in different French, Italian and Swiss universities. Director of the Centre of Arab and Islamic Law. Author of many books, including translations of the Koran into French, English and Italian.

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Published 19 December 2012
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يملسلاو يبرعلا نوناقلا زكرم
Centre de droit arabe et musulman
Zentrum für arabisches und islamisches Recht
Centro di diritto arabo e musulmano
Centre of Arab and Islamic Law


INTRODUCTION
TO ISLAMIC LAW
Foundation, sources and principles


Sami A. Aldeeb Abu-Sahlieh


Translated by
Felix J. Phiri
and revised by the author













This book can be ordered online at
www.amazon.com
2012
Centre of Arab and Islamic Law
Created in May 2009, the Centre of Arab and Islamic Law provides legal
consultations, conferences, translations, research and it also offers courses concerning Arab
and Islamic Law, and the relation between Muslims and the West. In addition, the
Centre provides research assistance to students and researchers and also allows for
the free downloading of documents from the website www.sami-aldeeb.com.

The Author
Sami A. Aldeeb Abu-Sahlieh. Christian of Palestinian origin. Swiss citizen. Doctor
in law. Habilitated to direct researches. Professor of universities (CNU-France). In
charge of Arab and Islamic Law at the Swiss Institute of Comparative Law
(19802009). Visiting professor in different French, Italian and Swiss universities.
Director of the Centre of Arab and Islamic Law. Author of many books, including
translations of the Koran into French, English and Italian. The current work is an
English translation of his book: Introduction au droit musulman: fondements, sources
et principes, also available in Italian: Introduzione al diritto musulmano. Both
books can be ordered online at Amazon.

The Translator
Felix J. Phiri. Zambian of origin. Member of The Society of Missionaries of Africa
(The White Fathers). Did his licentiate at the Pontifical Institute of Arabic and
Islamic Studies (PISAI). Obtained his PhD at SOAS in 2006 and has since been
teaching Islamology at PISAI in Rome (www.pisai.it) and at Dar Comboni in
Cairo. Director of Etudes Arabes published by PISAI. Author of The resurgence of
Islam in Zambia and several articles about Islam in Zambia. Linguistic revisor of
the Koran according to the chronological order by Sami A. Aldeeb Abu-Sahlieh,
the version used for all the Koranic quotations in this book.

Editions
Centre of Arab and Islamic Law
Ochettaz 17
Ch-1025 St-Sulpice
Tel: 0041 [0]21 6916585
Mobile: 0041 [0]78 9246196
Website: www.sami-aldeeb.com
Email: sami.aldeeb@yahoo.fr
© All rights reserved 2012
2 Summarized Table of Contents
Summarized Table of Contents 3
Introduction 7
Part I. The legislator 9
Chapter I. Legislative competence belongs to God 9
Chapter II. The role of the State and legal schools 22
Chapter III. Maintaining laws of other communities 47
Part II. Sources of Islamic law 53
Chapter I. The Koran 54
Chapter II. The Sunnah 111
Chapter III. The Sunnah of the companions of Muhammad 129
Chapter IV. The Sunnah of the people of the house of the Prophet 132
Chapter V. Laws revealed before Muhammad 134
Chapter VI. Custom 142
Chapter VII. Rational effort (ijtihad) 147
Chapter VIII. Tools of rational effort (ijtihad) 180
Chapter IX. Rules and juridical adages 199
Part III. Implementation of the norms 211
Chapter I. Conflicts between sources 211
Chapter II. Linguistic interpretation 226
Chapter III. Objectives of Islamic law 246
Chapter IV. The content of the norm 256
Chapter V. The addressees and beneficiaries of norms 269
Chapter VI. The mitigation of the norm 282
Part IV. Implementation of Islamic law in time and space 321
Chapter I. Implementation of Islamic law in Muslim countries 321
Chapter II. Implementation of Islamic law outside Muslim countries 367
Part V. Analytical legal table of the Koran 391
Bibliography 433
Table of contents 453

General observations
Transliteration
Different methods of transliteration (romanization) of Arabic exist. We have
avoided the more scholarly method in order to facilitate easy reading for the
nonspecialists in this field. Hence, some of the Arabic letters have been transliterated
as follows:
' = ع + ء gh = غ
kh = خ u + w = و
d = د + ض i + y = ي
dh = ذ + ظ t = ت + ط
sh = ش h = ـه + ح
s = س + ص j = ج
In the footnotes and in the bibliography, the name of the same author is written in
two different ways, depending on whether the book is in Arabic or whether it is a
translation (e.g. Khallaf and Hallaf, Al-'Ashmawi and Al-Ashmawy, etc.).
However, for the sake of consistency, we have opted for the transliterated form in the
main text.
Quotations from the Bible and the Koran
Biblical quotations are based on the New Revised Standard Version, as found on
the website http://www.godweb.org/nrs/index2.htm, but the numbering
corresponds rather to that of the Jerusalem Bible. Koranic quotations are based on the
Koran, Arabic text with the English translation according to the chronological
order of the Azhar and with reference to variations, abrogations and Jewish and
Christian writings, by Sami A. Aldeeb Abu-Sahlieh. The chapter numbering
comprises two figures separated by a slash, the first one refers to the chronological
order of the Azhar and the second one to the usual classification of the chapters.
Hence, 72/14, in reference to the Chapter Ibrahim, signifies Chapter 72 by
chronological order and Chapter 14 according to the usual classification.
Footnotes and bibliography
The book is based mainly on the courses taught in the various faculties of law and
faculties of Islamic law in Arab countries, complemented by the positions of liberal
Muslim thinkers. In order to avoid encumbering the footnotes unnecessarily, we
have provided a list of the said courses at the beginning of the bibliography.
Footnotes either refer specifically to quotations or give supplementary and explanatory
information. The bibliographical data in the footnotes comprise the name of the
author and/or the first elements of the title of the quoted works. The rest of the
information is found in the bibliography. Unless otherwise specified, the dates
which appear in this book refer to the Christian Era (CE). We have indicated as
much as possible the date of the death of the personalities referred to, in the text as
well as in the bibliography, in order to situate them historically. For example,
AbuHanifah (d. 767). Abbreviations
Ac Acts of the Apostles
Col The Letter of St. Paul to the Colossians
d. (ca) Died (circa)
Dt Deuteronomy
Ex Exodus
Ga The Letter of St. Paul to the Galatians
Gn Genesis
GSCC Gulf States Cooperation Council
H Era of the Hegira (Muslim calendar)
UDHR Universal Declaration of Human Rights
Is Isaiah
Jn The Gospel according to St. John
Jon Jonas
Lk The Gospel according to St. Luke
Lv Leviticus
Mt The Gospel according to St. Matthew
O.I.C. Organization of the Islamic Cooperation
Rm The Letter of St. Paul to the Romans
S.a. No author
S.d. No date of publication
S.l. No place of publication
S.ed. No name of publisher
6 Introduction
A comprehensive demographic study of more than 200 countries indicates that
there are 1.57 billion Muslims of all ages living in the world today, representing
23% of an estimated 2009 world population of 6.8 billion. They live mainly in the
fifty-seven countries which are members of the Organization of the Islamic
Coop1eration (O.I.C.). However, more than 300 million Muslims, that is, one-fifth of the
world's Muslim population, live in countries where Islam is not the majority
reli2gion.
Muslim communities in countries where they have been previously a minority are
in net increase due to the migratory flux, higher birth-rates among Muslims in
comparison to non-Muslims, mixed marriages (the children ensuing from such
marriages being presumed Muslims by birth) and conversions. In France, Islam is
now the second most important religion, right behind Catholicism, surpassing thus
Protestantism and Judaism. The prohibition of conducting census based on
religious affiliation renders it difficult to provide exact figures of their numbers.
However, they are estimated to be between two and six millions, out of a population of
3approximately sixty-five million inhabitants.
Of late, Islamist movements in the Arab and Muslim countries have been asking
for the total implementation of Islamic law as a fundamental component of Islamic
faith. Increasingly, Muslim minorities in the West are also making claims aimed at
adapting the laws of the host countries to their religious demands. Such attempts
are not without problems due to contradictions between Shari'ah (Islamic law)
related norms and some elements of Human Rights as defined by international
documents.
To understand these claims and the problems they pose, one has to understand the
principles of jurisprudence (usul al-fiqh), a module prescribed for all the students
of religious and legal sciences in the Arab and Muslim countries. Without such
knowledge, dialogue between Muslims and non-Muslims would lead to an impasse
and to incomprehension.
In analogy to a tree comprised of roots and branches, Islamic law is divided into
two parts.
- Usul al-fiqh (principles or roots of jurisprudence): this part responds to the
following questions: Who is the legislator? Where is the law found? How can one
understand the law? What is its content? What is its objective? Who are the
addressees and the beneficiaries of the law? Is the law applicable at all times and
in all places? Al-Shafi'i (d. 820) is regarded as the pioneer of the science of usul
4al-fiqh, through his famous work Al-risalah.

1 See the list in http://www.oic-oci.org/member_states.asp.
2 http://www.pewforum.org/Mapping-the-Global-Muslim-Population.aspx.
3
http://www.lefigaro.fr/actualite-france/2011/04/05/01016-20110405ARTFIG00599-francecomment-est-evalue-le-nombre-de-musulmans.php.
4 See bibliography for the Arab version and the English and French translations (under Shafi'i). - Furu' al-fiqh (branches of jurisprudence): this part deals with the relationship
between human beings and Allah, 'ibadat (profession of faith, prayer, legal
alms-giving, fasting during Ramadan and pilgrimage) and their relationship
with one another, mu'amalat (family law, inheritance law, contracts, criminal
law, State organization, international relations, war related questions, etc).
In this book we are only concerned with the principles of jurisprudence (usul
alfiqh), while incidentally having recourse to their applications in the domain of
branches of jurisprudence (furu' al-fiqh). As already stated above, the work is
based on the courses taught in the various faculties of law and faculties of Islamic
law of Arab countries. The courses represent the teachings of classic Muslim
authors and reflect the official point of view of Muslim religious authorities, more so
that of the States on which these faculties depend, without taking into account the
debate stirring up the Muslim society. For this reason, we have sought to
complement them with works written by Muslims outside the institutional framework.
This will help the reader to appreciate the evolution of the Muslim thought in the
concerned countries.
The book is mainly addressed to lawyers, theologians, politicians and employees of
governmental and non-governmental organizations involved with Muslims.
However, as questions regarding Muslims have come to occupy more and more space in
the media, the work is also addressed to the general public.
Certainly, the work will not be to the satisfaction of everybody. Nevertheless, the
author remains open to any further constructive remarks of the readers, Muslims
and non-Muslims alike.
We wish to express our deepest gratitude to Professor Felix J. Phiri for his
excellent translation. Our gratitude also goes to Margaret Slynn and Marlis Naef for
their meticulous proofreading and constructive suggestions. We remain, however,
solely responsible for mistakes and opinions expressed herein.
8 Part I.
The legislator
The first question Muslim jurists ask themselves is of a theological and
philosophical nature: Who is the legislator? The answer to this question guides the whole of
the Muslims' thought and it is the basis of Muslim demands both in Islamic and
Western countries.
Chapter I.
Legislative competence belongs to God
I. The divine origin of law
There are three manners of conceiving law:
- as an emanation of a dictator;
- as an emanation of the people, by a direct or indirect democratic process;
- as an emanation of a divinity, either directly through prophetic revelation, or
indirectly through religious leaders, the presumed representatives of the divinity
on earth.
The concept of law as an emanation of a divinity is the approach adopted by Jews
and Muslims, to mention but these two. Such a concept is almost non-existent
among Christians. In order to show the conceptual differences between Jews,
Christians and Muslims, we need to briefly present their points of view.
1) The Jewish concept
For the Jews, the law is to be found in the Bible, notably in the first five books
attributed to Moses, the Torah. Moses was a Head of State and he was, in this
capacity, supposed to govern the society of his time. He did so not in his own name,
but in the name of the divinity that had inspired his law. The revealed law imposes
itself on the Jewish believer at all times and in all places.
The Jewish Bible is supplemented principally by the Mishnah (written between 166
CE and 216 CE) and its commentary, the Talmud (composed of two versions: the
thJerusalem one, written in Tiberias and finished towards the end of the 4 century
thCE; and the Babylonian one, written in Babylon around the 5 century CE).
Mishnah and Talmud are regarded as the Jewish oral Bible and they contain the
teachings of the Jewish religious leaders. The Bible gives some indications of the Jewish
concept of law:
You must diligently observe everything that I command you; do not add to it or
take anything from it (Dt 12:32).
The secret things belong to the Lord our God, but the revealed things belong to
us and to our children for ever, to observe all the words of this law (Dt 29:28). It is a statute for ever throughout your generations in all your settlements (Lv
23:14).
Evoking these verses, Maimonides, one of the greatest Jewish theologians and
philosophers who died in Cairo in 1204, wrote: "It is clearly stated in the Torah
itself that it contains the Law which stands for ever, which may not be changed,
and nothing may be taken from it or added to it." He who pretends the contrary,
according to Maimonides, "shall die by hanging." The same punishment is also
meted out to the one who "uproots any… verbal traditions" just as it is for the one
who gives an interpretation that is different from the traditional one, even if he
1produces the sign that he is a prophet sent by God.
2) The Christian concept
Although he belonged to the Jewish tradition, Jesus was less inclined to respect the
laws laid down by the Bible.
When the Scribes and the Pharisees brought before him a woman caught
committing adultery in flagrante delicto and asked him what he thought about the
application of the penalty of stoning to death as prescribed by the law of Moses (cf. Lv
20:10; Dt 22:22-24), he replied: "Let anyone among you who is without sin be the
first to throw a stone at her." As they all left without anyone daring to throw a
stone at her, he said to the woman: "Neither do I condemn you. Go your way, and
from now on do not sin again" (Jn 8:4-11). On another occasion, someone said to
Jesus: "Teacher, tell my brother to divide the family inheritance with me." Jesus
answered him: "Friend, who set me to be a judge or arbitrator over you?" and he
added for the sake of the audience: "Take care! Be on your guard against all kinds
of greed; for one's life does not consist in the abundance of possessions" (Lk
12:1315). His abolition of the law of retaliation was equally significant (Cf. Mt 5:38-39).
We can also recall here his celebrated phrase, the one on which is based the
separation between religion and State: "Give therefore to Caesar the things that are
Caesar's, and to God the things that are God's" (Mt 22:21).
Due to a lack of a sufficient number of juridical norms in the Gospels and in the
letters of the Apostles, the Christians had to resort to the Roman law which the
jurist Gaius (d. ca. 180) defined as being "that which the people prescribe and
es2
tablish" (Lex est quod populus iubet atque constituit). The modern democratic
system is based on this concept of law.
3) The Muslim concept
The message of Muhammad advocates for a return to the biblical concept of law,
with which it shares many norms (e.g. the law of retaliation: 87/2:178-179 and
112/5:45). Muslim jurists use the term "legislator" (hakim) exclusively to designate
God. He is the only one who can prescribe laws.
This concept is determined by the Koran itself, which states that:

1 Maimonides: The book of knowledge, p. 23-24.
2 Gaius: Institutes, I.3.
10