Islamic Natural Law Theories (original) (raw)
Related papers
"Islamic Natural Law Theories," in Natural Law: A Jewish, Christian, and Islamic Trialogue
This is my substantive chapter on Islamic natural law theories, which appears in a co-authored book on natural law published by Oxford UP. My coauthors are Matthew Levering and David Novak. The book brings together work on Jewish, Christian, and Islamic natural law, and features commentaries by the authors on each other's substantive essay. This essay both addresses and extends my previous scholarship on Islamic natural law theories, in part by delving into Islamic natural philosophy, and exploring the differences between a jurisprudence of natural law and a natural philosophy of causation. It is written for both specialists and a broad audience, and the structure of the book is intended to generate conversation across traditions of difference.
A Brief Introduction to Islamic Natural Law
Natural Law and Positivism have been at loggerheads for long when it comes to law-making. Thus, law, religion, and morality, have over the years, formed a baffling trinity and kept the scholars constantly engaged in debates. The positivists argue that one should stick to the black letter of the law and that one should not have their own morality in deciding a given situation. This is much like Immanuel Kant's concept of morality. Kant argues that one should not do a good deed because of an ulterior motive of gaining reward from a superior being, i.e., God. On the contrary, one should perform that good act simply because it is good in itself, and that is the right thing to do. However, separation of law and morality isn't as easy a task as positivists might claim it is. Natural Law, on the other hand, stands in clear contradiction to Positivism, in that it is based on moral and ethical values. This work argues how Natural Law is indispensable in the process of law-making and that it guides Positivism, albeit to some extent. We have been exposed to the concept of Natural Law from a Western perspective, which is primarily proposed and culled out from the teachings of Christianity. This essay intends to set out, in brief, the concept of Natural Law that Islam has to offer. Islamic Natural Law is different in its operation and concept as against the normal understanding of Natural Law. Towards the end of the paper, I would argue that Austin's understanding of Positivism is drawn its essential elements from Islamic Natural Law.
Cambridge Companion to Natural Law Ethics, 2019
This essay outlines natural law approaches in the study of Islamic Law, engaging various debates in the field, while locating them within the politics and sociology of knowledge production about Islam and Islamic law.
A Critical Review Essay of Anver M. Emon’s Islamic Natural Law Theories
2015
The concept of "natural law" is not one that is commonly associated with Islamic law. In his monograph, Islamic Natural Theories, Anver M. Emon attempts to shed light on this issue and uncover a natural law tradition in the legal theories of a number of premodern Muslim jurists. In doing so, Emon draws a distinction between the Hard Naturalists and the Soft Naturalists, two schools of natural law that differ on theological points but ultimately find common ground in their conclusions. For Emon, the conception of natural law concerns the extent to which reason is granted the ontological authority to determine norms, as opposed to a textualist approach to producing law. This essay investigates the primary sources relied on by Emon in his study and questions his reading of the texts, his arguments, and his conclusions. I conclude that Emon's study, ambitious in its goals and important as a first step, presents a strained reading of the texts and struggles to convince the reader of the genuineness of a natural law tradition in Islamic legal theory as he presents it.
WHITHER ISLAMIC LEGAL REASONING? The Law and Judicial Reasoning of The Religious Courts 1
The article analyses the judicial reasoning employed by the religious courts in giving decisions on inheritance, particularly since the promulgation of the 1991 Compilation of Islamic Law. It seeks to examine whether these courts use Islamic legal reasoning. This paper argues that the structure of the courts' decisions is to be found in most Civil Law courts. It then offers three different approaches of reasoning employed by the religious courts in their decisions on inheritance: the use of the legislations particularly the Compilation as the sole source of deductive reasoning, the combination of the legislations and the Islamic sources which share the same implication, and the application of Islamic legal reasoning with the emphasis on the objectives of Islamic law (maqāsid al-sharī'a) which does not contradict the legislations. Although Islamic legal reasoning is employed, in most cases the decisions are simple and straightforward.
2016
Muslims both in the past and present are concerned with the legal validity of their religious devotion and worship, especially in view of their increasing interactions with other civilizations, cultures, behaviors, economies, sciences, legislation, and politics. Confusion however arises in regards to which legal doctrine (madhhab) Muslims need to follow today; what should Muslims do to cope with contemporary problems and challenges of life; and where should they draw lines of distinction between the revealed and profane, as well as between jurisprudence and secular law and legislation in the Muslim world. Some contemporary Muslim scholars have raised serious concerns regarding such issues because of the interaction between the East and West. Muslim scholars and reformers responded to these concerns through a number of legal reform initiatives, and also through alignment and integration of Muslim faith with contemporary needs. This article discusses whether Islamic jurisprudence can ...
WHITHER ISLAMIC LEGAL REASONING? The Law and Judicial Reasoning of The Religious Courts
JOURNAL OF INDONESIAN ISLAM, 2014
The article analyses the judicial reasoning employed by the religious courts in giving decisions on inheritance, particularly since the promulgation of the 1991 Compilation of Islamic Law. It seeks to examine whether these courts use Islamic legal reasoning. This paper argues that the structure of the courts' decisions is to be found in most Civil Law courts. It then offers three different approaches of reasoning employed by the religious courts in their decisions on inheritance: the use of the legislations particularly the Compilation as the sole source of deductive reasoning, the combination of the legislations and the Islamic sources which share the same implication, and the application of Islamic legal reasoning with the emphasis on the objectives of Islamic law (maqāsid al-sharī'a) which does not contradict the legislations. Although Islamic legal reasoning is employed, in most cases the decisions are simple and straightforward.
Islamic Law: Theory and Practice
Journal of Law and Religion, 2000
Orthodoxification of the Muslim society through the instrument of the Islamic legal code (shari'a) has continued unabated since the twilight of last millennium and the title under review, in spite of its age, underscores the perdurable relevance of this development in Muslim majority and minority societies, excluding, for inexplicable reasons, sub-Saharan Africa, its stupendous theoretical and practical legacies in the subject matter notwithstanding. 1 This volume is made up of contributions by several authors and is divided into four parts. Part 1, "Legal Theory", contains two essays; one on ijtihad (deriving a new rule of law from the foundational sources) in Sunni discourse and the other on usul al-fiqh (legal theory) in shi'ism as found in Yusuf al-Bahrani. Part 2, "Ifta", Fatwas and Muftis', has four contributions in which issues relating to jurisconsults, and legal responsa as a process and source of legislation are discussed. Part 3, "Minorities under Islamic Law", consists of two papers; one on the theory and practice of Church vaķs (Arabic waqf-endowment) in Ottoman Law as exposited by the grand juris consult Ebu Su'ud (r. 1545-1574), and the other is on how shari'a provisions were applied to the Yemeni Jewish community between 1900 and 1940. Part 4, "Modern Islamic Law" which can rightly be interpreted as a discourse on etatization of law in theory and practice, contains three essays in which are examined the legal rationality of organ transplant, a key issue in modern bioethics, 2 state reforms on family law in Algeria before and after the 1984 Family Code, and the operation of Islamic law in modern day Israel vis-à-vis the role of the Qadis. The issue of ijtihad looms large in this book. Ironically, the strength and weakness of the discourse on the subject matter lie in the lack of a consensus on its definition in relation to judicial practice, legislation, and proclamation of fatwas. Moreover, the fundamental objective of the spirit auctores behind this collection is in fact to provoke and stimulate varying perspectives from Joseph Schacht's (1950) absolutist position to Wael Hallaq's (1984) liberalist stance, such that we can now safely agree that the notion is a multi-dimensional and multi-faceted concept with a demonstrable gradation that ranges from folk adherence to a scholar/school (taqlid) to absolute legal authoritativeness (ijtihad mutlaq), solely attributable to founders of legal school. 3 Besides, it is even possible now to talk of neo-Ijtihad, as the original notion has now transformed into a fundamental matrix in contemporary revivalist discourse. 4 The importance of fatwas in legal operation and legislation is set within the concept of "Legal Realism", that is, law taken to be "what its authoritative spokesmen declare it to be" (p. 50). It is on this premise that we see an articulate rebuttal of many Western legalistic, (especially Noel Coulson's) prejudices and an exposition of how judicial officials upheld the rule of law on account of received fatwas in medieval Muslim Spain, specifically in Granada (pp. 49-86). And on the basis of a fifteenth-century Māliki fatwa from Fez in which the question of equality/parity (kafa'a) in marriage is discussed, it is possible to establish the intricacies involved among the various coordinates of Islamic legalism, that is, between fatwa and history, fatwa and furu' (positive stratigraphical law) literature, and fatwa and usul al-fiqh foundational texts. This title is doubtless a useful textbook; it provides information on the basic aspects of Islamic legal code in theory and practice. It is also useful as a research document in legal