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Additional Material
for Key Chapters

Chapter 10, Law

An alternative way of listing the usul al-fiqh (“roots” of jurisprudence).

In Introducing Islam the Sunni usul al-fiqh are listed as the Qur’an, the Sunna of the Prophet, ijtihad and ijma‘ (concensus) (p. 127). This way of listing them may be said to be diachronic, providing a somewhat simplified and idealized account of how the usul have functioned over time to develop the corpus of fiqh. It seems to me the best way to explain the usual Muslim view of this development. The section on the history of fiqh later in the chapter (p. 133 ff.) indicates that fiqh probably did not actually develop in such a schematised way.

There is an alternative way of listing the usul that you will find in many books on Islam, viz. Qur’an, Sunna, ijma‘, qiyas. This way of listing may be said to be synchronic, providing a somewhat simplified and idealized account of how a faqih will approach any question at a particular point in time. Here the ijma‘ is more or less fixed and given at that time and one is not too concerned about how the ijtihad of the past brought it into being. The existing ijma‘ thus becomes the third “root” and the faqih’s ijtihad, when appropriate, becomes the fourth. Since qiyas is the preferred form of ijtihad it is put in the list. The “gate” of other forms of ijtihad has often been thought to be closed.

I think the first way of listing the usul will be more congenial to modernists, who want to question the existing ijma‘, and the second to traditionalists. Do you agree?

 

Adat p. 129. For a recent discussion of a situation in which adat involves matriliny see “Adat, Islam and Womanhood in the reconstruction of Riau Malay identity”, Lugina Satyawati, Ch 3 in Indonesian Islam in a new era: how women negotiate their Muslim identities, ed. Susan Blackburn, Bianca J Smith & Siti Syamsiyatun. Clayton: Monash University Press, 2008.

Ad p. 129 The Aims of the Sharī‘a

Related to the concept of maṣlaḥa (welfare or public interest,) is that of maqāṣid al-sharī‘a , the aims of the Sharī‘a, elaborated by a number of scholars, in particular al-Shāṭibī (d. 1388). According to this approach the general goals of the Sharī‘a can be known and judgments taken into account in the light of them. According to al-Shāṭibī the most important goals, those that fall into the category of necessities, are protection of religious faith (dīn), of life, of progeny, of property and of mind. This approach allows considerable flexibility in legal reasoning and has become popular in modern times among Islamic modernists and Islamists although it was not so important in earlier times.

Information on this will be found in some of the items under “Further reading” to Chapter 10. See also the following:
SHATIBI'S OBJECTIVES OF SHARI'AH AND SOME IMPLICATIONS FOR CONSUMER THEORY
http://www.islamic-world.net/economics/consumer_theory.htm

Ad p. 129. For a recent discussion of a situation in which adat involves matriliny see “Adat, Islam and Womanhood in the reconstruction of Riau Malay identity”, Lugina Satyawati, Ch 3 in Indonesian Islam in a new era: how women negotiate their Muslim identities, ed. Susan Blackburn, Bianca J Smith & Siti Syamsiyatun. Clayton: Monash University Press, 2008. [I may have sent this in, but it is not on the website as of 20/3/10.]

Grehan, James, Smoking and "Early Modern" Sociability: The Great Tobacco Debate in the Ottoman Middle East (Seventeenth to Eighteenth Centuries). The American Historical Review 111.5 (2006) Good article on the debate over the permissibility of smoking when it first came into the Muslim world.
http://www.historycooperative.org/journals/ahr/111.5/grehan.html (accessed 1 Mar. 2010)

 

Websites for Fatwas (There are a number of these)
http://www.islam-qa.com/en
The source of the fatwa quoted in this chapter; deals with a wide range of topics; interpretations appear to be conservative.144 Part II: Aspects of Islam 10 | To Know God’s Will: Islamic law

http://www.islamonline.net/english/index.shtml
Scroll down the home page to “Q&A” and click on Fatwa. Has a very large number of topics. Appears conservative but less so than the previous source.

http://qa.sunnipath.com/

http://www.fatwa-online.com/
Appears to be Saudi.

http://darulifta-deoband.org/
From the Deoband school in India; appears more traditionalist than salafi.

© William Shepard

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