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Saturday, February 11, 2023

Enjoining good and forbidding wrong

Enjoining (what is) right and forbidding (what is) evil (Arabic: ٱلْأَمْرْ بِٱلْمَعْرُوفْ وَٱلنَّهْيْ عَنِ ٱلْمُنْكَرْ, romanizedal-amr bi-l-maʿrūf wa-n-nahy ʿani-l-munkar) are two important duties imposed by God in Islam, as revealed in the Quran and hadith.

This expression is the base of the Islamic institution of hisbah (the individual or collective duty – depending on the Islamic school of law – to intervene and enforce Islamic law). It forms a central part of the Islamic doctrine for all Muslims. The injunctions also constitute two of the ten Ancillaries or Obligatory Acts of Twelver Shia Islam.

Pre-modern Islamic literature describes pious Muslims (usually scholars) taking action to forbid wrong by destroying forbidden objects, particularly liquor and musical instruments. In the contemporary Muslim world, various state or parastatal bodies (often with phrases like the "Promotion of Virtue and the Prevention of Vice" in their titles) have appeared in Iran, Saudi Arabia, Nigeria, Sudan, Malaysia, etc., at various times and with various levels of power.

Scriptural basis

Answering the question of why there is a duty among Muslims to forbid wrong are statements in the Quran and hadith.

Quran

  • Let there arise out of you a band of people inviting to all that is good, enjoining what is right, and forbidding what is wrong: They are the ones to attain felicity. -- Quran 3:104.
  • Ye are the best of peoples, evolved for mankind, enjoining what is right, forbidding what is wrong, and believing in Allah. If only the People of the Book had faith, it were best for them: among them are some who have faith, but most of them are transgressors. -- Quran 3:110
  • The believers, both men and women, are guardians of one another. They encourage good and forbid evil, establish prayer and pay alms-tax, and obey Allah and His Messenger... (Q.9:71)
  • ˹It is the believers˺ who repent, who are devoted to worship, who praise ˹their Lord˺, who fast, who bow down and prostrate themselves, who encourage good and forbid evil, and who observe the limits set by Allah... (Q.9:112)
  • “O people! Establish prayer, encourage what is good and forbid what is evil, and endure patiently whatever befalls you. (Q.31:17)
  • O you who have believed, upon you is [responsibility for] yourselves. Those who have gone astray will not harm you when you have been guided. To Allāh is your return all together; then He will inform you of what you used to do. (Q.5:105)

Scholars have provided a number of reasons why the obvious reading of this verse is incorrect, such as that it refers not to the present but "to some future time when forbidding wrong will cease to be effective."

Hadith

Appearing in Sahih Muslim, the second most prestigious collection of Sunni hadith is a famous report:

  • Abu Sa‘id al-Khudri reported that the prophet Muhammad said, "Whoever amongst you sees an evil, he must change it with his hand. If he is not able to do so, then with his tongue. And if he is not able to do so, then with his heart, and that is the weakest form of faith".

Mutazilite and Shia Imamis quote different traditions than this Sunni Hadith, but all agree on the Quran and on "the existence of the duty" to command and forbid.

According to historian Michael Cook (whose book Commanding Right and Forbidding Wrong in Islamic Thought is the major English language source on the issue), a slightly different phrase is used in a similar hadith -- 'righting wrong' (taghyir al-munkar) instead of 'forbidding wrong' (an-nahy ʿani-l-munkar) -- but "scholars take it for granted" that 'the two "are the same thing, ..."

Sunnis, Ibadis and Twelver (also called Imami) Shia schools of Islam "made extensive use of" the "schema" set out by this hadith. 

Terminology

Depending on the translation from the Quran, the phrase may also be translated as commanding what is just and forbidding what is evil, commanding right and forbidding wrong, and other combinations of "enjoin" or "command", "right" or "just", "wrong", "unjust", or "evil".

Origins of "hisba"

Sources give different meanings for Hisbah: "accountability", according to Sami Zubaida; based on either "retribution from God" or "seeking wages", according to Ibn Manzur; from the word ‘husban’, which means "calculation" according to Al-Zubaidiy.

History

Pre-Islamic

Phrases similar to forbidding evil and commanding good can be found examining texts of the Ancient Greek philosophers -- Stoic Chrysippus (d.207 BC) and Aristotle (d.322) -- and the founder of Buddhism, Buddha. A particularly similar formulation is found in the book of Psalms: "Depart from evil, and do good; seek peace, and pursue it". (Psalm 34:14)

However, Michael Cook finds no "serious precedent" for use of the phrases "forbidding wrong' (munkar) and "commanding right" (ma'ruf) in the literature of the immediate predecessors of Muhammad his companions, pre-Islamic Arabian traditions and poetry.

Muhtasib

Traditionally, in classical Islamic administrations, there was an office of al-hisbah, an inspector of "markets and morals", the holder of which was called a muhtasib. He was appointed by the caliph to oversee the order in market places, in businesses, in medical occupations, etc. He "had no jurisdiction to hear cases—only to settle disputes and breaches of the law where the facts were admitted or there was a confession of guilt."

General term

Hisbah as a "general term for 'forbidding wrong'" has a later origin, and the difference in the terms has caused some confusion. According to Michael Cook, the second use is "mainly an invention" of Al-Ghazali" (d.1111), who followed a precedent set by "a somewhat earlier scholar", Mawardi (d.1058) and "adopted the word hisba" as it is currently used.

A slightly different definition than Al-Ghazali's comes from ʿAbd al-Ghani al-Nābulusī (d.1731), who distinguished between forbidding wrong and ḥisbah The first being a duty to call on the wrongdoer to stop but carrying "no power or duty of enforcement"; and ḥisbah or censorship, (according to ʿAbd al-Ghani), being the duty to enforce right conduct (ḥaml al-nās ʿalā ʾl-ṭāʿa) and reserved to authorities—unless the offense was being committed while the "ordinary believer" could intervene.

Islamic scholarship

Scholars opinions and ideas on forbidding wrong are found in legal literature such as collections of fatawas, in theological handbooks, monographs devoted to the subject, and in commentaries on the Qur'an and Hadith. Sunni works of jurisprudence do not cover the topic of Forbidding Wrong, but "sectarian scholars among Zaydis, Twelver (also called Imami) Shia, and Ibadi" branches of Islam do.

Al-Ghazali

Al-Ghazali (1058-1111 CE) was "perhaps the first major Islamic thinker to devote substantial amount of space" to these two duties, and his account of forbidding wrong in (Book 19 of his) The Revival of the Religious Sciences, is "innovative, insightful, and rich in detail" and "achieved a wide currency in the Islamic world." He wrote:

Every Muslim has the duty of first setting himself to rights, and then, successively, his household, his neighbours, his quarter, his town, the surrounding countryside, the wilderness with its Bedouins, Kurds, or whatever, and so on to the uttermost ends of earth.

Modern era

What Ghazali wrote about was the "personal duty to right wrongs committed by fellow believers as and when one encountered them." This theme also formed the "core" of the "scholastic heritage" on the subject created by other medieval scholars. But in the modern era "the conception" of forbidding wrong has changed and become more systematic. Now opposing wrongdoing involves "the organised propagation of Islamic values," according to Cook, which requires missionary work and organisation. And several contemporary Muslim majority states or provinces have some kind of Islamic "religious police".

Issues: By whom, to whom, about what

While scripture is clear that a community is enjoined to command right and forbid wrong, it does not indicate whether this included all Muslims or only some.

Three "basic questions arising "about the duty of forbidding wrong" are

  • who has to do it,
  • to whom, and
  • about what?"

Differences in scholarly debates over the duty of “commanding right and forbiding wrong” stemmed from the positions taken by jurists (Faqīh) on questions regarding who precisely was responsible for carrying out the duty, to whom it was to be directed, and what performance of the duty entailed. Often, these debates were framed according to what Michael Cook calls the “three modes” tradition, a tradition based on a prophetic hadith which identifies the “heart” (qalb), “tongue” (lisān), and “hand” (yad) as the three proper “modes” by which one should fulfill the obligation. Depending on a number of factors both intrinsic and extrinsic to their legal schools, scholars apportioned this labor in differing ways, some reserving the execution of the duty by “tongue” for the scholars and by “hand” for the political authorities such as the muḥtasib, or those invested with the authority to carry out the duty on their behalf, and others arguing that these modes extended to all qualified believers.

Who should do the enforcing

Scholars argue that free (non-slave) adult male Muslims are obliged to forbid wrong doing, and that non-Muslim are excluded from the duty. Michael Cook paraphrases al-Ghazali in asking, "After all, since the duty consists in coming to the aid of the faith, how could one of its enemies [an unbeliever] perform it?" and points out that if a nonbeliever upbraided a Muslim for wrongdoing he would "presuming to exercise an illegitimate authority over the Muslim", who should never be humiliated by an unbeliever. Children and the mentally ill are also excluded for lacking legal competency (mukallaf). However, scholars are generally "reluctant to restrict the range of those for whom forbidding wrong is a duty", and so usually include two other groups not possessing the rights of free adult male Muslims—namely slaves and women. "Sinners" are also not exempt according to the "standard" view of Islamic scholars.

Schools of law differ over whether Hisbah (forbidding wrong) is an "individual duty" (i.e. an obligation of all believers described above), or collective duty, (an obligation where once a sufficient number of Muslims undertake it, others cease to be obligated). According to Cook, "the standard view" of pre-modern scholars was that the duty was collective, though some held it was individual or both collective and individual, meaning that "at the point at which we come upon the wrongdoing, or the wrongdoer starts his mischief, we are all obligated; but once you take care of the matter, the rest of us have no further obligation."

Who is eligible to use force (their "hand") to command and forbid is disputed, some reserving it for the political authorities or their underlings. ("At different times" a position supported by the Shafites, the Malikis and the Hanafis). "The view that punishment is to inflicted only by the state, and not by individuals, is widespread, if not quite universal." Others argue that these modes extended to all qualified believers.

According to Al-Nawawi, 'changing the reprehensible by hand,' or by compulsion, like jihad, was the purview of the state alone; changing with the tongue' was the right of the ulama; ordinary, individual Muslims should only reject the reprehensible with their hearts. In practice, as far as can be determined, the people who went around commanding and forbidding in pre-modern Islam, were "overwhelmingly scholars", according to Michael Cook.

Rebellion

Regarding rebellion as a means of overturning state/ruler wrong, Cook finds the opinions of Islamic scholars "'heavily stacked' against this approach. However, scholars generally warned against subjects forbidding a ruler not because it was disrespectful to the ruler, but when and if it was foolhardy and dangerous to the subject. This did not stop political rebels in the early centuries of Islam from using forbidding wrong as their slogan, according to Cook. Examples were "found among the Kharijites, including the Ibadis, among the Shi'ites, including Zaydis, and among the Sunnis, especially the Malikis. Some instances of such rebels in the early centuries of Islam are Jahm ibn Safwan (d.746), in late Umayyad Transoxiana, Yusuf al-Barm in Khurasan in 776 CE, Al-Mubarqa in Palestine 841/42 CE, Ibn al-Qitt in Spain in 901 CE and an `Abbasid who rebelled in Armenia in 960" CE.

What was enforced

According to the well known exegete Al-Tabari (d.923) "right" refers to all that God and His Prophet have commanded, "wrong" to all that they have forbidden, i.e. the sharia. Al-Nawawi also stated that Shariah principles determined what was to be commanded and forbidden.

However, the verses are vague and do not speak of Sharia/God's law. According to Michael Cook, "a trend" in early exegesis (tafsir) indicated the duty referred to affirming the basic message of Islam—and so commanded only the "unity of God" and "veracity" of his prophet, and forbade polytheism and denial of Muhammad's prophethood.

There are also scholarly disagreements between schools of fiqh (madhhab).

Types of wrongdoing

Al-Ghazali provides "a survey" of wrongs commonly found in the mosque, the market, the street, the bath-house and hospitality". For example in "hospitality" there may be,

"laying out silk coverings for men, using censers made of silver or gold, hanging curtains with images on them [images of sentient beings are forbidden among some branches of Islam] and listening to musical instruments or singing-girls. Then there is the scandal of women gathering on roofs to watch men when there are youths among them who could give rise to temptation. Or forbidden food may be served or the house may be one occupied illegally, or someone present may be drinking wine or wearing silk or a golden signet ring, or a heretic may be holding forth about his heresy, or some joker may be regaling the party with ribald and untruthful humour. (Humour that is neither untruthful nor indecorous is acceptable in moderation, provided it does not become a habit.) On top of all this there may be extravagance and wastefulness."

Common wrongdoing described by Al-Ghazali committed (for example in the marketplace) may be divided into categories such as

  • commercial dishonesty (e.g. passing off used goods as new, concealing defects in goods),
  • transactions that violate Islamic law (e.g. allowing the customer to pay over time but charging interest), and
  • selling goods forbidden by Islamic law (musical instruments, wine).

On the other hand, looking at the violations (found not just in the marketplace) through modern eyes, they can be categorized into a different set of norms being violated:

  • Narrow "religious norms", such as "sloppy prayer, faulty recitation of the Quran". These were relatively rare, based on the fact that they were seldom mentioned  in sources available to determine "what forbidding wrong was really like" in the pre-modern Islamic world, i.e. the writings of the same scholars who wrote about forbidding wrong.
  • "Secular norms", i.e. the straightward "rights of other humans in this world", such as commercial dishonesty mentioned above and things like "blocking a street". These were even more rare than violations of the narrow "religious norms. It "is worth noting", however, that among these violations Al-Ghazali gives no sign of ... a concern for what we might call social justice", though there are occasional references to injustices such as a master beating his slave, or a man depriving "his sisters of rights of inheritance",
  • "puritanical norms", usually involving "wine, women and song". These violations, "are by far" the most widespread of the three kinds of wrongs, and among these "puritanical" violations, "liquor and music" were "the most widespread" wrongs "by far", with forbidden relations between the sexes taking "a poor third" according to the scholars.

How was good was to be enforced

A pious tract Commentary of Forty Hadiths of An Nawawi, citing different scholars, gives various advice to "callers" who enjoin good and forbid evil. They should first warn the offenders of the consequences of evil, and only after this approach has been "fully utilised" should they proceed to "the hand".

Use of the tongue could vary from "a delicate hint" to "a ruthless tongue lashing", and the hand from "a restraining hand" to use of arms. Al-Ghazali believed the use of a group of armed fighters to combat wrongdoing did not require the permission of the ruler if good Muslims thought it necessary to escalate the fight that far.

Callers should possess virtuous "qualities": sincerity, knowledge, wisdom, forbearance, patience, humility, courage, generosity. Greater evils should get priority over lower ones. Callers should speak to wrongdoers in private when possible to avoid "scolding".

When all else fails and the only portion of the hadith available to a Muslim witnessing an evil act is to dislike the evil they come across, the Muslim might say to themselves:

"O Allah, there is nothing that I can do to change this bad situation that You dislike and disapprove except that I hate it to take place. I do not agree to it. O Allah forgive me, guide me and save my heart to be influenced by it."

" In so doing "the heart of the believer who witnesses that evil" is protected from being influenced by it, though of course, this is not really hisbah in the sense that it does not command or forbid.

Other means

A step between use of the tongue and a "purely mental act" of the heart in fighting evil is showing disapproval by "range of behavior running from frowns to turning away from the offender to formally ostracising him (hajr)".

Some believed there was yet another mode beyond hand, voice and heart -- "spiritual power" (inkār al-munkar biʾl-ḥāl). According to some Sufis, they could fight wrong doing by supernatural means—turning wine into vinegar or water, using spiritual force to cause wine vessels to break, or a rapist to collapse, etc.

What was destroyed or disrupted

In Islamic literature on the subject, an "ubiquitous theme" is attack on forbidden objects—the overturning of chessboards, the destruction of musical instrument and sacred trees, defacing of decorative images.

Punishment could be very broadly enforced. Cook writes that

"according to a thirteenth-century geographer, a custom was observed each year in Gilan in the north of Iran, [whereby] scholars would seek permission from the ruler to command right. Once they had it, they would round up everyone and flog them. If a man swore that he had neither drunk nor fornicated, the scholar would ask him his trade; if he said he was a grocer, the scholar would infer that he cheated his customer, and flog him anyway."

Arguments against, or for limitations on

"Straightforward denial" that forbidding wrong is a duty of Muslims is "very rare", and non-existent after the first two centuries of Islam.

Some scholars (Hasan al-Basri, Abdullah ibn Shubruma d.761) have argued that forbidding wrong is to be encouraged but not an obligation. Other groups (Hanbalites, Shia) have been accused (unjustly or with exaggeration) of denying it is obligatory.

Sufis have been linked to concepts "that downplay forbidding wrong in one way or another" (tolerance, mysticism, introspection), but there is "no mainstream Sufi doctrine rejecting the duty as such", and many Sufis practice it.

The only "consolidated doctrine" that Muslims ought not to forbid wrong came from Sufi ʿAbd al-Ghani al-Nābulusī (d.1731), a sufi who lived in the midst of the Kadizadeli puritanical campaign in Baghdad, a campaign whose "prime target" was Sufis. ʿAbd al-Ghani argued that while forbidding wrong was righteous in theory, the intentions of the believers in forbidding wrong were paramount, and what with the danger of "those who whose obsession with prying into the faults of others" making "them blind to their own", what was needed instead was "less self-righteousness and more self-knowledge". His argument "achieved no wider success".

Hisbah v. privacy

An argument for commanding right and forbidding wrong and against the concept of "minding ones own business" comes from Hanafi jurist `Ismat Allah of Saharanpur who writes:

were it pleasing to God to leave people alone, He would not have sent prophets, nor established their laws, nor called to Islam, nor voided other religions, but would rather have left people to their own devices, untroubled by divine visitations; ...

The issue is relevant to situations scholars examined (and disagree on) where an enforcers saw what could be a "bottle of liquor or lute" hidden under a robe, or a man and woman that looked like they might be unmarried, or heard music coming from a home.

In modern times, when privacy is much more under threat from technology and state power, Cook notes Sunni fundamentalist clerics "give relatively attention" to the issue and approve of violation of homes when reliable information indicates wrong doing within.

On the other hand at least one Iranian Twelve Shia cleric (Seyyed Hassan Eslami Ardakani), has argued that there are Islamic precedents for denouncing intrusive efforts to forbid wrong as violations of Islamic law, and that the category of Islamic norms (ādāb) developed by Ghazali for forbidding sin should include prohibitions on interference in the private lives of others by "spying" or "curtain-ripping", (i.e. the "exposure of hidden sins"). (Cook questions whether this suggestion is a contemporary attack on "the entire apparatus of religious enforcement in the Islamic Republic" and influenced by "Western conceptions of rights".)

Eslami sites the story of how the second Caliph, Umar ibn al-Khattab, climbed a wall to catch a man in the act of wrong doing but in so doing violated the Quran in three ways; by spying (tajassus) (Q.49:12), by entering through the roof (instead of the door) (Q.2:189), and by entering his home without first pronouncing a greeting (Q.24:27).

Modern world

Difficulties confronting pious forbidders

Some of the challenges to Al-Ghazali's concept of individual Muslims forbidding wrong in the modern world include the influence of "universal" western values, and the growth of the strength and reach of the state.

While pious forbidders of wrong have always had to deal with the riposte: "What's it to you?", in the modern world they also hear "I'm free! It's a free country, it's a democracy!" from people "with their heads stuffed full of western ideas" like personal freedom and individualism. Conservatives despair that "debauchery and sin [when "victimless crimes"], are considered to be 'personal matters'" in which interference is a violation of the sinners' rights. Many if not most Muslims live in secular countries where the charging of interest on loans, drinking of wine and fornication are all legal. The decline in seclusion of Muslim societies and the stronger sense that the Muslim community is "just one among others" with no special "monopoly on moral judgement", has also brought an "unprecedented degree of moral scrutiny and condemnation from outside" the community. The Western concept of universal human rights propagates the idea that it is both everyone's business how Muslims treat other Muslims (when human rights are violated), and no one's business how people choose to live their lives (when no one's rights are violated).

The growth of the influence of the modern state over education, the economy, military, "intellectual life, culture", etc., has meant forbidding wrong has become "a function of the state apparatus" in states, including some Sunni states, and tendency of (Sunni) scholars to choose between two directions: either "giving ground" to the state and limiting the performance of forbidding; or confronting the state "in the name of Islam".

Changes in Islamic scholarship since Medieval era

Among the things that have changed in the Islamic world from the medieval to the modern era are the divisions among Muslims. Whereas before the twentieth century differences among the Hanafi, and Shafite legal schools, and between the Sunnis, Zaydis, and Ibadi "sectarian scholars" were important; in modern times the significant cleavage in many Islamic legal and political issues (including the forbidding of wrong and commanding of right), is:

  • Between Sunni and Twelver Muslims (the Sunni scholastic heritage becoming revered heritage (turāth), while scholars of the Twelver Shia give their scholastic tradition "continuity and adaptation"); the Sunni world being "enormously diverse and confusing" having no one country or event defining the evolution of doctrine, while Twelver Shia thought is dominated by the Iranian Islamic revolution, its supporters and "mild" (clerical) dissidents.
  • Between the Islamic modernists and Islamists/fundamentalists/revivalists Muslims; both seeking to revive Islam by restoring it to its "original purity", but modernists thinking this will lead to "living comfortably in the modern world", while fundamentalists work to move Islam "away from, not towards" Western culture).

Some post-medieval Muslims (Rashīd Rīda, d.1935, Khayr al-Din Pasha, d.1878) see the forbidding of wrong in western institutions such as the representative assemblies and free press of republics and constitutional monarchies, whose check on arbitrary power is a way of preventing wrong by rulers. But fundamentalists/Islamist scholars and/or preachers (Sayyid Qutb d.1966, Saʽid Ḥawwa d.1989) see the influence of western concepts mentioned above as a direct challenge to Islam. European countries, for example, being "nothing but wrongs" according to one conservative, (Faysal Mawlawi speaking to an audience of Muslims in France). Among the new wrongs fundamentalists have identified in the modern world are cafes, playing cards, cinema, music on radio and television, and the shaving of beards.

Dealing with the power and reach of the modern state there has been a tendency of scholars to choose between two directions: either "giving ground" to the state and limiting the performance of forbidding; or confronting the state "in the name of Islam". Among Shia scholars doctrine has moved "sharply" from quietism to activism in keeping with the Islamic Republic.

On the issue of women's rights, the forbidding of wrong is reconciled with the traditional position of "subordination and seclusion" of women by calling for women to practice the duty at home.

Using the hand in forbidding

Hence some scholars (such as former Mufti of Egypt from 1986-1996, Muhammad Sayyid Tantawy) either insist use of "the hand" is reserved for the state—a quietist position that is a "flagrant divergence from the mainstream of traditional Islamic doctrine"—or should only be applied to things and not people. Taking the standard view that the permission of the ruler not is required to use physical force against wrong doers, was Abd al-Qadir Awda and Jalal ad-Din Amri. Both Rashid Rida and Ali ibn Hajj quote approvingly Al-Ghazali's view that Muslims do not need a ruler's approval to form armed bands to combat wrong doing, Rashid maintaining Al-Ghazali's doctrine "should be written in letters of gold" and memorized by da‘wāt preachers.

Among many contemporary Twelver Shia clerics, "wounding and killing" require the permission of a qualified jurist or specifically the Supreme Leader of the Islamic Republic.

Other issues

One of the original thinkers of Islamism, Sayyid Qutb, argued that forbidding wrong is hopeless/pointless when society has become corrupt, and instead efforts should be directed towards reconstructing Islam and social/political revolution, but this notion has not become "standard fundamentalist doctrine". What has become standard is that forbidding wrong requires "the organized propagation of Islamic values" in today's world.

Islamic religious police

If the "modern conception" of forbidding wrong is "the organized propagation of Islamic values", then in the late 20th century and/or early twenty first, one important way is by enforcing these values using the state's power of policing. The institution of hisbah has been used in some countries as a rationale for establishing Islamic religious police to stop wrong doing. Islamic religious police have arisen in some Muslim majority states and regions (Saudi Arabia, Sudan, Aceh province of Indonesia, Afghanistan, Egypt, and Iran).

Between 1996-2001 the Taliban in Afghanistan had a Ministry for the Propagation of Virtue and the Prevention of Vice (at different times called a Committee or a Department for the propagation ...).

A religious policeman beating a woman for removing her burqa headpiece in public, Kabul, 2001 (image obtained by the Revolutionary Association of the Women of Afghanistan)

In Saudi Arabia, the state authority responsible for hisbah is the Committee for the Promotion of Virtue and the Prevention of Vice, or hay'a. Established in 1976, (or 1940) the committee was known for banning the sale of Pokémon, Barbie dolls, and forcibly prevented school girls from escaping a burning school in 2002 by beating rescuing firemen and locking the school's doors (15 girls died). The once feared Committee lost most of its power by 2016 when it was reduced to submitting reports about infractions to civil authorities.

Iran has had different institutions enforcing proper covering (hijab) for women, preventing the mingling of unrelated men and women without a male guardian (mahram), and other infractions since shortly after the Iranian Revolution.

Hisbah doctrine has been invoked by Islamic prosecutors in cases of apostasy and acts of blasphemy. In Egypt, the Human Rights group Freedom House complains, "hundreds of hisba cases have been registered against writers and activists, often using blasphemy or apostasy as a pretext". In one high-profile case, Nasr Abu Zayd, a Muslim scholar "critical of old and modern Islamic thought" was prosecuted under the statute when his academic work was held to be evidence of apostasy.

Religious law

From Wikipedia, the free encyclopedia

Religious law includes ethical and moral codes taught by religious traditions. Different religious systems hold sacred law in a greater or lesser degree of importance to their belief systems, with some being explicitly antinomian whereas others are nomistic or "legalistic" in nature. In particular, religions such as Judaism, Islam and the Baháʼí Faith teach the need for revealed positive law for both state and society, whereas other religions such as Christianity generally reject the idea that this is necessary or desirable and instead emphasise the eternal moral precepts of divine law over the civil, ceremonial or judicial aspects, which may have been annulled as in theologies of grace over law.

Examples of religiously derived legal codes include Christian canon law (applicable within a wider theological conception in the church, but in modern times distinct from secular state law), Jewish halakha, Islamic sharia, and Hindu law.

Established religions and religious institutions

A state religion (or established church) is a religious body officially endorsed by the state. A theocracy is a form of government in which a God or a deity is recognized as the supreme civil ruler.

In both theocracies and some religious jurisdictions, conscientious objectors may cause religious offense. The contrary legal systems are secular states or multicultural societies in which the government does not formally adopt a particular religion, but may either repress all religious activity or enforce tolerance of religious diversity.

Baháʼí Faith

Baháʼí laws are laws and ordinances used in the Baháʼí Faith and are a fundamental part of Baháʼí practice. The laws are based on authenticated texts from Bahá'u'lláh, the founder of the Baháʼí Faith, subsequent interpretations from `Abdu'l-Bahá and Shoghi Effendi and legislation by the Universal House of Justice. Baháʼí law is presented as a set of general principles and guidelines and individuals must apply them as they best seem fit. While some of the social laws are enforced by Baháʼí institutions, the emphasis is placed on individuals following the laws based on their conscience, understanding and reasoning, and Baháʼís are expected to follow the laws for the love of Bahá'u'lláh. The laws are seen as the method of the maintenance of order and security in the world.

A few examples of laws and basic religious observances of the Kitáb-i-Aqdas which are considered obligatory for Baháʼís include:

  • Recite an obligatory prayer each day. There are three such prayers among which one can be chosen each day.
  • Observe a Nineteen Day Fast from sunrise to sunset from March 2 through March 20. During this time Baháʼís in good health between the ages of 15 and 70 abstain from eating and drinking.
  • Gossip and backbiting are prohibited and viewed as particularly damaging to the individual and their relationships.

Buddhism

In Buddhism, Patimokkha is a code of 227 rules and principles followed by Buddhist monks and nuns.

Christianity

The Corpus Juris Canonici, the fundamental collection of Catholic canon law for over 750 years.

Within the framework of Christianity, there are several possible definitions for religious law. One is the Mosaic Law (from what Christians consider to be the Old Testament), also called Divine Law or biblical law; the most famous example is the Ten Commandments. Another is the instructions of Jesus of Nazareth to his disciples in the Gospel (often referred to as the Law of Christ or the New Commandment or the New Covenant, in contrast to the Old Covenant). Another is the Apostolic Decree of Acts 15, which is still observed by the Greek Orthodox Church. Another is canon law in the Catholic, Anglican, and Orthodox churches.

In some Christian denominations, law is often contrasted with grace (see also Law and Gospel and Antithesis of the Law): the contrast here speaks to an attempt to gain salvation by obedience to a code of laws as opposed to seeking salvation through faith in the atonement made by Jesus on the cross. From the Gospel of John:

John 1:16-18

— And of his fullness have all we received, and grace for grace. For the law was given by Moses, but grace and truth came by Jesus Christ., KJV

Biblical/Mosaic law

Christian views of the Old Covenant vary and are to be distinguished from Christian theology, ethics, and practice. The term "Old Covenant", also referred to as the Mosaic covenant and the Law of Moses, refers to the statements or principles of religious law and religious ethics codified in the first five books or Pentateuch of the Old Testament. Views of the Old Covenant are expressed in the New Testament, such as Jesus' antitheses of the law, the circumcision controversy in Early Christianity, and the Incident at Antioch and position of Paul the Apostle and Judaism. Most Christians hold that only parts are applicable, while some Protestants have the view that none is applicable. Dual-covenant theologians have the view that only Noahide Laws apply to Gentiles. The Jewish Christianity movement is virtually extinct. According to the New Testament Christians are no longer regarded as Gentiles (Romans 8: 28–29)

Canon law

Canon law is the body of laws and regulations made by or adopted by ecclesiastical authority for the governance of the Christian organization and its members. It is the internal ecclesiastical law governing the Roman Catholic Church, the Eastern and Oriental Orthodox churches, and the Anglican Communion of churches. The way that such church law is legislated, interpreted and at times adjudicated varies widely among these three bodies of churches. In all three traditions, a canon was initially a rule adopted by a church council (From Greek kanon / κανών, Hebrew kaneh / קנה, for rule, standard, or measure); these canons formed the foundation of canon law.

Canons of the Apostles

The Canons of the Apostles or Ecclesiastical Canons of the Same Holy Apostles is a collection of ancient ecclesiastical decrees (eighty-five in the Eastern, fifty in the Western Church) concerning the government and discipline of the Early Christian Church, incorporated with the Apostolic Constitutions which are part of the Ante-Nicene Fathers

Catholic Church

The canon law of the Catholic Church (Latin: jus canonicum) is the system of laws and legal principles made and enforced by the hierarchical authorities of the Church to regulate its external organization and government and to order and direct the activities of Catholics toward the mission of the Church. It was the first modern Western legal system and is the oldest continuously functioning legal system in the West, predating the European common law and civil law traditions. What began with rules ("canons") adopted by the Apostles at the Council of Jerusalem in the 1st century has blossomed into a highly complex and original legal system encapsulating not just norms of the New Testament, but some elements of the Hebrew (Old Testament), Roman, Visigothic, Saxon, and Celtic legal traditions spanning thousands of years of human experience. while the unique traditions of Eastern Catholic canon law govern the 23 Eastern Catholic particular churches sui iuris.

Positive ecclesiastical laws derive formal authority in the case of universal laws from promulgation by the supreme legislator—the Supreme Pontiff—who possesses the totality of legislative, executive, and judicial power in his person, while particular laws derive formal authority from promulgation by a legislator inferior to the supreme legislator, whether an ordinary or a delegated legislator. The actual subject material of the canons is not just doctrinal or moral in nature, but all-encompassing of the human condition.

It has all the ordinary elements of a mature legal system: laws, courts, lawyers, judges, a fully articulated legal code for the Latin Church as well as a code for the Eastern Catholic Churches, principles of legal interpretation, and coercive penalties. It lacks civilly-binding force in most secular jurisdictions. Those who are versed and skilled in canon law, and professors of canon law, are called canonists (or colloquially, canon lawyers). Canon law as a sacred science is called canonistics.

The jurisprudence of Catholic canon law is the complex of legal principles and traditions within which canon law operates, while the philosophy, theology, and fundamental theory of Catholic canon law are the areas of philosophical, theological, and legal scholarship dedicated to providing a theoretical basis for canon law as a legal system and as true law.

In the early Church, the first canons were decreed by bishops united in "Ecumenical" councils (the Emperor summoning all of the known world's bishops to attend with at least the acknowledgement of the Bishop of Rome) or "local" councils (bishops of a region or territory). Over time, these canons were supplemented with decretals of the Bishops of Rome, which were responses to doubts or problems according to the maxim, Roma locuta est, causa finita est ("Rome has spoken, case is closed").

Later, they were gathered together into collections, both unofficial and official. The first truly systematic collection was assembled by the Camaldolese monk Gratian in the 11th century, commonly known as the Decretum Gratiani ("Gratian's Decree"). Pope Gregory IX is credited with promulgating the first official collection of canons called the Decretalia Gregorii Noni or Liber Extra (1234). This was followed by the Liber Sextus (1298) of Boniface VIII, the Clementines (1317) of Clement V, the Extravagantes Joannis XXII and the Extravagantes Communes, all of which followed the same structure as the Liber Extra. All these collections, with the Decretum Gratiani, are together referred to as the Corpus Juris Canonici. After the completion of the Corpus Juris Canonici, subsequent papal legislation was published in periodic volumes called Bullaria.

By the 19th century, this body of legislation included some 10,000 norms, many difficult to reconcile with one another due to changes in circumstances and practice. This situation impelled Pope Pius X to order the creation of the first Code of Canon Law, a single volume of clearly stated laws. Under the aegis of Cardinal Pietro Gasparri, the Commission for the Codification of Canon Law was completed under Benedict XV, who promulgated the Code, effective in 1918. The work having been begun by Pius X, it was sometimes called the "Pio-Benedictine Code" but more often the 1917 Code. In its preparation, centuries of material was examined, scrutinized for authenticity by leading experts, and harmonized as much as possible with opposing canons and even other Codes, from the Codex of Justinian to the Napoleonic Code.

Pope John XXIII initially called for a Synod of the Diocese of Rome, an Ecumenical Council, and an updating to the 1917 Code. After the Second Ecumenical Council of the Vatican (Vatican II) closed in 1965, it became apparent that the Code would need to be revised in light of the documents and theology of Vatican II. After multiple drafts and many years of discussion, Pope John Paul II promulgated the revised Code of Canon Law (CIC) in 1983. Containing 1752 canons, it is the law currently binding on the Latin (Western) Roman Church.

The canon law of the Eastern Catholic Churches, which had developed some different disciplines and practices, underwent its own process of codification, resulting in the Code of Canons of the Eastern Churches promulgated in 1990 by Pope John Paul II.

The institutions and practices of canon law paralleled the legal development of much of Europe, and consequently both modern Civil law and Common law bear the influences of canon law. Edson Luiz Sampel, a Brazilian expert in canon law, says that canon law is contained in the genesis of various institutes of civil law, such as the law in continental Europe and Latin American countries. Sampel explains that canon law has significant influence in contemporary society.

Currently, all Latin rite Catholic seminary students are expected to take a course in canon law (c. 252.3). Some ecclesiastical officials are required to have the doctorate (JCD) or at least the licentiate (JCL) in canon law in order to fulfill their functions: Judicial Vicars (c. 1419.1), Judges (c. 1421.3), Promoters of Justice (c. 1435), Defenders of the Bond (c. 1435). In addition, Vicars General and Episcopal Vicars are to be doctors or at least licensed in canon law or theology (c. 478.1), and canonical advocates must either have the doctorate or be truly expert in canon law (c. 1483). Ordinarily, bishops are to have advanced degrees in sacred scripture, theology, or canon law (c. 378.1.5). St. Raymond of Penyafort (1175–1275), a Spanish Dominican priest, is the patron saint of canonists, due to his important contributions to the science of Canon Law.

Orthodox Churches

The Greek-speaking Orthodox have collected canons and commentaries upon them in a work known as the Pēdálion (Greek: Πηδάλιον, "Rudder"), so named because it is meant to "steer" the Church. The Orthodox Christian tradition in general treats its canons more as guidelines than as laws, the bishops adjusting them to cultural and other local circumstances. Some Orthodox canon scholars point out that, had the Ecumenical Councils (which deliberated in Greek) meant for the canons to be used as laws, they would have called them nómoi/νόμοι (laws) rather than kanónes/κανόνες (rules), but almost all Orthodox conform to them. The dogmatic decisions of the Councils, though, are to be obeyed rather than to be treated as guidelines, since they are essential for the Church's unity.

Anglican Communion

In the Church of England, the ecclesiastical courts that formerly decided many matters such as disputes relating to marriage, divorce, wills, and defamation, still have jurisdiction of certain church-related matters (e.g., discipline of clergy, alteration of church property, and issues related to churchyards). Their separate status dates back to the 11th century when the Normans split them off from the mixed secular/religious county and local courts used by the Saxons. In contrast to the other courts of England, the law used in ecclesiastical matters is at least partially a civil law system, not common law, although heavily governed by parliamentary statutes. Since the Reformation, ecclesiastical courts in England have been royal courts. The teaching of canon law at the universities of Oxford and Cambridge was abrogated by Henry VIII; thereafter practitioners in the ecclesiastical courts were trained in civil law, receiving a Doctor of Civil Law (D.C.L.) degree from Oxford, or an LL.D. from Cambridge. Such lawyers (called "doctors" and "civilians") were centred at "Doctors Commons", a few streets south of St Paul's Cathedral in London, where they monopolized probate, matrimonial, and admiralty cases until their jurisdiction was removed to the common law courts in the mid-19th century. (Admiralty law was also based on civil law instead of common law, thus was handled by the civilians too.)

Charles I repealed Canon Law in Scotland in 1638 after uprisings of Covenanters confronting the Bishops of Aberdeen following the convention at Muchalls Castle and other revolts across Scotland earlier that year.

Other churches in the Anglican Communion around the world (e.g., the Episcopal Church in the United States and the Anglican Church of Canada) still function under their own private systems of canon law.

Presbyterian and Reformed Churches

In Presbyterian and Reformed Churches, canon law is known as "practice and procedure" or "church order," and includes the church's laws respecting its government, discipline, legal practice and worship.

Lutheranism

The Book of Concord is the historic doctrinal statement of the Lutheran Church, consisting of ten credal documents recognized as authoritative in Lutheranism since the 16th century. However, the Book of Concord is a confessional document (stating orthodox belief) rather than a book of ecclesiastical rules or discipline, like canon law. Each Lutheran national church establishes its own system of church order and discipline, though these are not referred to as "canons".

The United Methodist Church

The Book of Discipline contains the laws, rules, policies and guidelines for The United Methodist Church. It is revised every four years by the General Conference, the law-making body of The United Methodist Church; the last edition was published in 2016.

Hinduism

Hindu law term is colonial origin.It is derived from Hindu texts such as Vedas, Upanishads, Dharmashastras, Puranas, Itihasas, Dharmasutras, Grihya Sutras, Arthashastra, Niti Shastras

Islam

A manuscript of Ibn Hanbal's legal writings, produced October 879.

Sharia, also known as Islamic law (قانون إسلامي qānūn ʾIslāmī), is the moral code and religious law of Islam. Sharia is derived from two primary sources, the precepts set forth in the Quran and the example set by the Islamic prophet Muhammad in the sunnah. Islamic jurisprudence (fiqh) interprets and extends the application of sharia to questions not directly addressed in the primary sources (the Quran and the sunnah) by including secondary sources. These secondary sources usually include the consensus of the sahabah (companions of the prophet) and ulama (religious scholars) embodied in ijma, as well as analogy from the Quran and sunnah through qiyas. In the Maliki school of law also, 'amal ahlil madinah (the practices of the people of Medina) is also included.

Muslims believe the sharia is Allah's law, but they differ as to what exactly it entails. Modernists, traditionalists and fundamentalists all hold different views of sharia, as do adherents to different schools of Islamic thought and scholarship. Different countries, societies and cultures have varying interpretations of sharia as well.

Sharia deals with many topics addressed by secular law, including crime, politics and economics, as well as personal matters such as sexual intercourse, hygiene, diet, prayer, inheritance and fasting. Where it has official status, sharia is applied by Islamic judges, or qadis. The imam has varying responsibilities depending on the interpretation of sharia; while the term is commonly used to refer to the leader of communal prayers, the imam may also be a scholar, religious leader, or political leader.

The reintroduction of sharia is a longstanding goal for Islamist movements in Muslim countries. Some Muslim minorities in Asia (e.g., in India) have maintained institutional recognition of sharia to adjudicate their personal and community affairs. In Western countries, where Muslim immigration is more recent, Muslim minorities have introduced sharia family law for use in their own disputes with varying degrees of success, e.g., Britain's Muslim Arbitration Tribunal. Attempts by Muslims to impose sharia on non-Muslims in countries with large Muslim populations have been accompanied by controversy, violence, and even warfare (cf. Second Sudanese Civil War).

Jainism

Jain law or Jaina law refers to the modern interpretation of ancient Jain Law that consists of rules for adoption, marriage, succession and death for the followers of Jainism.

Judaism

Halakha (Hebrew: הלכה; literally "walking") is the collective body of rabbinic Jewish religious laws derived from the Written and Oral Torah, including the Mishnah, the halakhic Midrash, the Talmud, and its commentaries. After the destruction of the Second Temple by the Romans in the year 70 during the First Jewish-Roman War, the Oral Law was developed through intensive and expansive interpretations of the written Torah.

The halakhah has developed gradually through a variety of legal and quasi-legal mechanisms, including judicial decisions, legislative enactments, and customary law. The literature of questions to rabbis, and their considered answers, are referred to as Responsa. Over time, as practices develop, codes of Jewish law were written based on Talmudic literature and Responsa. The most influential code, the Shulchan Aruch, guides the religious practice of most Orthodox and some Conservative Jews.

According to rabbinic tradition there are 613 mitzvot in the written Torah. The mitzvot in the Torah (also called the Law of Moses) pertain to nearly every aspect of human life. Some of these laws are directed only to men or to women, some only to the ancient priestly groups (the Kohanim and Leviyim) members of the tribe of Levi, some only to farmers within the Land of Israel. Some laws are only applicable when there is a Temple in Jerusalem (see Third Temple).

Wicca

The Wiccan Rede is a statement that provides the key moral system in the neopagan religion of Wicca and certain other related witchcraft-based faiths. A common form of the Rede is "An it harm none, do what ye will".

Sources of Sharia

From Wikipedia, the free encyclopedia

Various sources of Islamic Laws are used by Islamic jurisprudence to elaborate the body of Islamic law. In Sunni Islam, the scriptural sources of traditional jurisprudence are the Holy Qur'an, believed by Muslims to be the direct and unaltered word of God, and the Sunnah, consisting of words and actions attributed to the Islamic prophet Muhammad in the hadith literature. In Shi'ite jurisprudence, the notion of Sunnah is extended to include traditions of the Imams

Since legally relevant material found in Islamic scriptures did not directly address all the questions pertaining to Sharia that arose in Muslim communities, Islamic jurists developed additional methods for deriving legal rulings. According to Sunni schools of law, secondary sources of Islamic law are consensus, the exact nature of which bears no consensus itself; analogical reason; seeking the public interest; juristic discretion; the rulings of the first generation of Muslims; and local customs. Hanafi school frequently relies on analogical deduction and independent reasoning, and Maliki and Hanbali generally use the Hadith instead. Shafi'i school uses Sunnah more than Hanafi and analogy more than two others. Among Shia, Usuli school of Ja'fari jurisprudence uses four sources, which are Qur'an, Sunnah, consensus and the intellect. They use consensus under special conditions and rely on the intellect to find general principles based on the Qur'an and Sunnah, and use the principles of jurisprudence as a methodology to interpret the Qur'an and Sunnah in different circumstances. Akhbari Ja'faris rely more on scriptural sources and reject ijtihad. According to Momen, despite considerable differences in the principles of jurisprudence between Shia and the four Sunni schools of law, there are fewer differences in the practical application of jurisprudence to ritual observances and social transactions.

Primary sources

Qur’an

A copy of the Qur'an, one of the primary sources of Sharia.

The Qur'an is the first and most important source of Islamic law. Believed to be the direct word of God as revealed to Muhammad through angel Gabriel in Mecca and Medina, the scripture specifies the moral, philosophical, social, political and economic basis on which a society should be constructed. The verses revealed in Mecca deal with philosophical and theological issues, whereas those revealed in Medina are concerned with socio-economic laws. The Qur'an was written and preserved during the life of Muhammad, and compiled soon after his death.

The verses of the Qur'an are categorized into three fields: "science of speculative theology", "ethical principles" and "rules of human conduct". The third category is directly concerned with Islamic legal matters which contains about five hundred verses or one thirteenth of it. The task of interpreting the Qur'an has led to various opinions and judgments. The interpretations of the verses by Muhammad's companions for Sunnis and Imams for Shias are considered the most authentic, since they knew why, where and on what occasion each verse was revealed.

Sunnah

The Sunnah is the next important source, and is commonly defined as "the traditions and customs of Muhammad" or "the words, actions and silent assertions of him". It includes the everyday sayings and utterances of Muhammad, his acts, his tacit consent, and acknowledgments of statements and activities. According to Shi'ite jurists, the sunnah also includes the words, deeds and acknowledgments of the twelve Imams and Fatimah, Muhammad's daughter, who are believed to be infallible.

Justification for using the Sunnah as a source of law can be found in the Qur'an. The Qur'an commands Muslims to follow Muhammad. During his lifetime, Muhammad made it clear that his traditions (along with the Qur'an) should be followed after his death. The overwhelming majority of Muslims consider the sunnah to be essential supplements to and clarifications of the Qur'an. In Islamic jurisprudence, the Qur'an contains many rules for the behavior expected of Muslims but there are no specific Qur'anic rules on many religious and practical matters. Muslims believe that they can look at the way of life, or sunnah, of Muhammad and his companions to discover what to imitate and what to avoid.

Much of the sunnah is recorded in the Hadith. Initially, Muhammad had instructed his followers not to write down his acts, so they may not confuse it with the Qur'an. However, he did ask his followers to disseminate his sayings orally. As long as he was alive, any doubtful record could be confirmed as true or false by simply asking him. His death, however, gave rise to confusion over Muhammad's conduct. Thus the Hadith were established. Due to problems of authenticity, the science of Hadith (Arabic: 'Ulum al-hadith) is established. It is a method of textual criticism developed by early Muslim scholars in determining the veracity of reports attributed to Muhammad. This is achieved by analyzing the text of the report, the scale of the report's transmission, the routes through which the report was transmitted, and the individual narrators involved in its transmission. On the basis of these criteria, various Hadith classifications developed.

To establish the authenticity of a particular Hadith or report, it had to be checked by following the chain of transmission (isnad). Thus the reporters had to cite their reference, and their reference's reference all the way back to Muhammad. All the references in the chain had to have a reputation for honesty and possessing a good retentive memory. Thus biographical analysis ('ilm al-rijāl, lit. "science of people"), which contains details about the transmitter are scrutinized. This includes analyzing their date and place of birth; familial connections; teachers and students; religiosity; moral behaviour; literary output; their travels; as well as their date of death. Based upon these criteria, the reliability (thiqāt) of the transmitter is assessed. Also determined is whether the individual was actually able to transmit the report, which is deduced from their contemporaneity and geographical proximity with the other transmitters in the chain. Examples of biographical dictionaries include Ibn Hajar al-Asqalani's "Tahdhīb al-Tahdhīb" or al-Dhahabi's "Tadhkirat al-huffāz."

Using this criterion, Hadith are classified into three categories:

  1. Undubitable (mutawatir), which are very widely known, and backed up by numerous references.
  2. Widespread (mashhur), which are widely known, but backed up with few original references.
  3. Isolated or Single (wahid), which are backed up by too few and often discontinuous references.

in a Shariah court a qadi (judge ) hears a case, including witnesses and evidence . then the qadi makes a ruling . sometimes the qadi consults a mufti or scholar of law, for an opinion.

Secondary sources

All medieval Muslim jurists rejected arbitrary opinion, and instead developed various secondary sources, also known as juristic principles or doctrines, to follow in case the primary sources (i.e. the Qur'an and Sunnah) are silent on the issue.

Consensus

The ijma' , or consensus amongst Muslim jurists on a particular legal issue, constitutes the third source of Islamic law. Muslim jurists provide many verses of the Qur'an that legitimize ijma' as a source of legislation. Muhammad himself said:

  • "My followers will never agree upon an error or what is wrong",
  • "God's hand is with the entire community".

In history, it has been the most important factor in defining the meaning of the other sources and thus in formulating the doctrine and practice of the Muslim community. This is so because ijma' represents the unanimous agreement of Muslims on a regulation or law at any given time.

There are various views on ijma' among Muslims. Sunni jurists consider ijma' as a source, in matters of legislation, as important as the Qur'an and Sunnah. Shiite jurists, however, consider ijma' as source of secondary importance, and a source that is, unlike the Qur'an and Sunnah, not free from error. Ijma' was always used to refer to agreement reached in the past, either remote or near. Amongst the Sunni jurists there is diversity on who is eligible to participate in ijma' , as shown in the following table:

School of jurisprudence Formation of ijma' Rationale
Hanafi through public agreement of Islamic jurists the jurists are experts on legal matters
Shafi'i through agreement of the entire community and public at large the people cannot agree on anything erroneous
Maliki through agreement amongst the residents of Medina, the first Islamic capital Islamic tradition says "Medina expels bad people like the furnace expels impurities from iron"
Hanbali through agreement and practice of Muhammad's Companions they were the most knowledgeable on religious matters and rightly guided
Usuli only the consensus of the ulama of the same period as the Prophet or Shia Imams is binding. consensus is not genuinely binding in its own right, rather it is binding in as much as it is a means of discovering the Sunnah.

In modern Muslim usage it is no longer associated with traditional authority and appears as democratic institution and an instrument of reform.

Analogical reason

Qiyas or analogical reason is the fourth source of Sharia for the majority of Sunni jurisprudence. It aims to draw analogies to a previously accepted decision. Shiites do not accept analogy, but replace it with reason (aql); among Sunnis, the Hanbalites have traditionally been reluctant to accept analogy while the Zahirites don't accept it at all. Analogical reason in Islam is the process of legal deduction according to which the jurist, confronted with an unprecedented case, bases his or her argument on the logic used in the Qur'an and Sunnah. Legally sound analogy must not be based on arbitrary judgment, but rather be firmly rooted in the primary sources.

Supporters of the practice of qiyas will often point to passages in the Qur'an that describe an application of a similar process by past Islamic communities. According to supporters of the practice, Muhammad said: "Where there is no revealed injunction, I will judge amongst you according to reason." Further, supporters claim that he extended the right to reason to others. Finally, supporters of the practice claim that it is sanctioned by the ijma, or consensus, amongst Muhammad's companions. Islamic studies scholar Bernard G. Weiss has pointed out that while analogical reason was accepted as a fourth source of law by later generations, its validity was not a foregone conclusion among earlier Muslim jurists. Thus the issue of analogical reason and its validity was a controversial one early on, though the practice eventually gained acceptance of the majority of Sunni jurists.

The success and expansion of Islam brought it into contact with different cultures, societies and traditions, such as those of Byzantines and Persians. With such contact, new problems emerged for Islamic law to tackle. Moreover, there was a significant distance between Medina, the Islamic capital, and the Muslims on the periphery on the Islamic state. Thus far off jurists had to find novel Islamic solutions without the close supervision of the hub of Islamic law (back in Medina). During the Umayyad dynasty, the concept of qiyas was abused by the rulers. The Abbasids, who succeeded the Umayyads defined it more strictly, in an attempt to apply it more consistently.

The general principle behind the process of qiyas is based on the understanding that every legal injunction guarantees a beneficial and welfare satisfying objective. Thus, if the cause of an injunction can be deduced from the primary sources, then analogical deduction can be applied to cases with similar causes. For example, wine is prohibited in Islam because of its intoxicating property. Thus qiyas leads to the conclusion that all intoxicants are forbidden.

The Hanafi school of thought very strongly supports qiyas. Imam Abu Hanifa, an important practitioner of qiyas, elevated qiyas to a position of great significance in Islamic law. Abu Hanifa extended the rigid principle of basing rulings on the Qur'an and Sunnah to incorporate opinion and exercise of free thought by jurists. In order to respond suitably to emerging problems, he based his judgments, like other jurists, on the explicit meanings of primary texts (the Qur'an and sunnah). But, he also considered the "spirit" of Islamic teachings, as well as whether the ruling would be in the interest of the objectives of Islam. Such rulings were based on public interest and the welfare of the Muslim community.

The knowledge of ours is an opinion, it is the best we have been able to achieve. He who is able to arrive at different conclusions is entitled to his own opinion as we are entitled to our own.

The Shafi'i school of thought accepts qiyas as a valid source. Imam Shafi'i, however, considered it a weak source, and tried to limit the cases where jurists would need to resort to qiyas. He criticized and rejected analogical deductions that were not firmly rooted in the Qur'an and sunnah. According to Shafi'i, if analogical deductions were not strictly rooted in primary sources, they would have adverse effects. One such consequence could be variety of different rulings in the same subject. Such a situation, he argued, would undermine the predictability and uniformity of a sound legal system. 

Imam Malik accepted qiyas as a valid source of legislation. For him, if a parallel could be established between the effective cause of a law in the primary sources and a new case, then analogical deduction could be viable tool. Malik, however, went beyond his adherence to "strict analogy" and proposed pronouncements on the basis of what jurists considered was "public good".

Juristic preference

Abu Hanifa developed a new source known as juristic preference. Juristic preference is defined as:

  • A means to seek ease and convenience,
  • To adopt tolerance and moderation,
  • To over-rule analogical reason, if necessary.

The source, inspired by the principle of conscience, is a last resort if none of the widely accepted sources are applicable to a problem. It involves giving favor to rulings that dispel hardship and bring ease to people. The doctrine was justified directly by the Qur'anic verse stating: "Allah desires you ease and good, not hardship". Though its main adherents were Abu Hanifa and his pupils (such as Abu Yusuf), Malik and his students made use of it to some degree. The source was subject to extensive discussion and argumentation, and its opponents claimed that it often departs from the primary sources.

This doctrine was useful in the Islamic world outside the Middle East where the Muslims encountered environments and challenges they had been unfamiliar with in Arabia. One example of isthisan is cited as follows: If a well is contaminated it may not be used for ritual purification. Istihsan suggests that withdrawing a certain number of buckets of water from the well will remove the impurities. Analogical reason, however, dictates that despite removing some of the water, a small concentration of contaminants will always remain in the well (or the well walls) rendering the well impure. The application of analogy means the public may not use the well, and therefore causes hardship. Thus the principle of justistic preference is applied, and the public may use the well for ritual purification.

Public interest

Malik developed a tertiary source called al-maslahah al-mursalah, which means that which is in the best interests of the general public. According to this source of Islamic law, rulings can be pronounced in accordance with the "underlying meaning of the revealed text in the light of public interest". In this case, the jurist uses his wisdom to pursue public interest. This source is rejected by the Shafi'ites, Hanbalites and Zahirites from Sunni jurisprudence.

Inference

Shafi'i accepted cases in which he had to be more flexible with the application of Qisas. Similar to Abu Hanifa and Malik, he developed a tertiary source of legislation. The Shafi'i school adopted istidlal or inference, a process of seeking guidance from the source. Inference allowed the jurists to avoid strict analogy in a case where no clear precedent could be found. In this case, public interest was distinguished as a basis for legislation.

Muslim scholars divided inference into three types. The first is the expression of the connection existing between one proposition and another without any specific effective cause. Next, inference could mean presumption that a state of things, which is not proved to have ceased, still continues. The final type of inference is the authority as to the revealed laws previous to Islam.

Reason

Shi'ite jurists maintain that if a solution to a problem can not be found from the primary sources, then aql or reason should be given free rein to deduce a proper response from the primary sources. The process, whereby rational efforts are made by the jurist to arrive at an appropriate ruling, when applied is called ijtihad (literally meaning "exerting oneself"). Shi'ite jurists maintain that qiyas is a specific type of ijtihad. The Sunni Shafi' school of thought, however, holds that both qiyas and ijtihad are the same.

Sunni jurists accepted ijtihad as a mechanism for deducing rulings. They, however, announced an end to its practice during the thirteenth century. The reason for this was that centers of Islamic learning (such as Baghdad, Nishapur, and Bukhara) had fallen into the hands of the Mongols. Thus, the "doors to ijtihad", were closed. In Sunni Islam, thus, ijtihad was replaced by taqlid or the acceptance of doctrines developed previously. Later in Sunni history, however, there were notable instances of jurists using reason to re-derive law from the first principles. One was Ibn Taymiyya (d. 728/1328), another was Ibn Rus̲h̲d (Averroes d. 595/1198).

There are many justifications, found in the Qur'an and sunnah, for the use of ijtihad. For example, during a conversation with Mu'ādh ibn Jabal, Muhammad asked the former how he would give judgments. Mu'ādh replied that he would refer first to the Qur'an, then to the Sunnah and finally commit to ijtihad to make his own judgment. Muhammad approved of this.

A lawyer who is qualified to use this source is called a mujtahid. The founders of the Sunni madhabs (schools of law) were considered such lawyers. All mujtahid exercise at the same time the powers of a mufti and can give fatwa. Some mujtahid have claimed to be muj̲addid, or "renewer of religion." Such persons are thought to appear in every century. In Shi'ite Islam they are regarded as the spokespersons of the hidden Imam.

Local custom

The term urf, meaning "to know", refers to the customs and practices of a given society. Although this was not formally included in Islamic law, Sharia recognizes customs that prevailed at the time of Muhammad but were not abrogated by the Qur'an or the tradition (called "Divine silence"). Practices later innovated are also justified, since Islamic tradition says what the people, in general, consider good is also considered as such by God. According to some sources, urf holds as much authority as ijma (consensus), and more than qiyas (analogical deduction). Urf is the Islamic equivalent of "common law".

Local custom was first recognized by Abū Yūsuf (d. 182/798), an early leader of the Ḥanafī school. However, it was considered part of the Sunnah, and not as formal source. Later, al-Sarak̲h̲sī (d. 483/1090) opposed it, holding that custom cannot prevail over a written text.

According to Sunni jurisprudence, in the application of local custom, custom that is accepted into law should be commonly prevalent in the region, not merely in an isolated locality. If it is in absolute opposition to Islamic texts, custom is disregarded. However, if it is in opposition to analogical reason, custom is given preference. Jurists also tend to, with caution, give precedence to custom over doctoral opinions of highly esteemed scholars. Shi'ite scholars do not consider custom as a source of jurisprudence, nor do the Hanbalite or Zahirite schools of Sunni jurisprudence.

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