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Hadith, Transmission and The Idiom of Islamic Law. The Great Question of Islamic Law…. How do we live as Muslims?. What is “Islamic Law”/ Shariah ?. Crime: theft, murder, slander… Transactions: buying, selling, interest… Family Law: marriage, divorce, inheritance
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Hadith, Transmission and The Idiom of Islamic Law
The Great Question of Islamic Law… How do we live as Muslims?
What is “Islamic Law”/Shariah? • Crime: theft, murder, slander… • Transactions: buying, selling, interest… • Family Law: marriage, divorce, inheritance • Warfare: treaties, civilians… • Ritual: how should I pray, do pilgrimage? • Pleasing God: what acts please or don’t please God? • Boundaries of Community: what makes you Muslim or not?
Aims of the Shariahمقاصد الشريعة أو الكليات الخمس The 5 rights that the Shariah seeks to protect: • Life • Property • Honor • Reason • Religion
Judging Actions 2. Required (wajib): ex. five daily prayers 1. Recommended (mandub): ex.extra charity 0. Permitted (mubah): ex. wearing a blue dress instead of a green one • Disliked (makruh): not returning the greeting of another Muslim • Prohibited (haram): drinking alcohol, fornication
Types of Punishment • Most issues of Islamic law would never be in court! They are personal and optional. The rulings exist to provide Muslims with answers to any question. • Hadd Punishments: corporal and capital punishments for murder, fornication, drunkeness, slander, and theft. To be avoided! • Ta’zeer Punishments: non-severe corporal punishments (below 10 lashes), fines etc. Subject to discretion.
Sources of Authority • God, His Prophet and the Authority that Muhammad bequeathed (depends on how you believe it should be inherited)… imams or ijma’(consensus) Tools for Manipulating and Applying Authority • Analogy: includes a fortiori, reductio ad absurdam reasoning • Considering best interests; aims of the Shariah
How do we apply Quran and Sunna? The First two Centuries Interpretation Companions Sunna Principles applied in reasoning Texts to be followed literally Quran • Partisans of Hadith: • Quran • Reliable Hadith • Ruling of Companions • Weak hadith • analogy • ‘Partisans of Reason’ • Quran • Reliable hadith • Rulings of Companions • Best judgment
Al-Shaf’i’s Compromise Sources of the Law: • Quran • Hadith: sunna as texts to be applied literally • Ijma’: consensus • Analogy: applying Quran and hadith to similar situations Rulings based on these can become consensus (ijma’) 100% compelling
Sunni Schools of Law Hanafi: based on Abu Hanifa (d. 767) and his followers in Kufa, the official school of the Ottoman Empire, widespread in India Maliki: based on the teachings of Malik b. Anas (d. 796) in Medina, the school of North African and Andalusia Shafi’i: based on the teachings of al-Shafi’i (d. 820), found in Egypt, Southeast Asia, Yemen Hanbali: based on the teachings of Ibn Hanbal (d. 855), found in great numbers only in Arabia (and Syria)
Diversity & Disagreement • Law is probabilistic (zanni) due to… • 1. Questions about the reliability of sources • 2. Tremendous potential for interpretive difference • “I believe I am right, with the possibility that I am wrong; I believe that my opponent is wrong with the possibility that they are right.” • There always more than one answer! (bother between the madhhabs and within one madhhab)
Case Study: The Hand of a Thief • Quranic Verse: ‘The thief, male or female, cut off their hand in retribution for what they have done, an exemplary punishment from God, for God is mighty and wise’ (Quran 5:38). • Hadith: ‘Do not cut off the hand of the thief for less than ¼ dinar’ ≈ $25 • Companion Ruling: Umar suspended the punishment during famine (aims of the Shariah)
Case Study: The Hand of a Thief two • Madhhab Difference: Hanafis say no amputation for the theft of any food or substance that was licit to begin with, such as animals or vegetables • Mitigation: some argue that punishment for theft cannot be established without two confessions; it’s reported that Umar and Abu Darda’ would encourage the accused to deny the charge, then handle the problem privately.
Applying Islamic Law – Law and the State • Muslim rulers (caliphs or sultans/amirs) do not determine Shariah (but they could enact secular laws = qanun, and they provide law enforcement) • Shariah was determined by the ulama • Faqih (a jurist): develops law and legal theory (sometimes in an ivory tower) • Mufti: a jurisconsult, asked about rulings by people or courts • Qadi (judge): works for the state applying a school of law, rulings enforced by the police
Hadith: How do we know what’s true vs. forged? • Demand an isnad : • Who is in the isnad ? • Is there corroboration? Us H G A F Hadith Canon: 6 collections of relied-upon hadiths, the most famous are… Sahih al-Bukhari (d. 870) Sahih Muslim (d. 875) B D C Prophet: Be nice to your mother
Does this Method Work? • Where does the burden of proof lie? • Muslim hadith critics had different priorities than we do: they cared about law and doctrine, not exegesis and history. • Maybe the Prophet really… prophesized?