An Introduction to Islamic Law pdf download

An Introduction to Islamic Law

By wael b. hallaq is James McGill Professor in Islamic Law in the Institute of Islamic Studies at McGill University.

He is a world renowned scholar whose publications include The Origins and Evolution of Islamic Law (Cambridge, 2004), Authority, Continuity and Change in Islamic Law (Cambridge, 2001) and A History of Islamic Legal Theories (Cambridge, 1997).

From the Book: The study of Islamic law can be a forbidding prospect for those entering the field for the first time. Wael Hallaq, a leading scholar and practitioner of Islamic law, guides students through the intricacies of the subject in this absorbing introduction.

The first half of the book is devoted to a discussion of Islamic law in its pre-modern natural habitat.

The author expounds on the roles of jurists, who reasoned about the law, and of judges and others who administered justice; on how different legal schools came to be established, and on how a moral law functioned in early Muslim society generally.

 The second part explains how the law was transformed and ultimately dismantled during the colonial period. As the author demonstrates, this rupture necessitated its reinvention in the twentieth- century world of nation-states.

In the final chapters, the author charts recent developments and the struggles of the Islamists to negotiate changes which have seen the law emerge as a primarily textual entity focused on fixed punishments and ritual requirements.

 The book, which includes a chronology, a glossary of key terms and lists for further reading, will be the first stop for those who wish to understand the funda mentals of Islamic law, its practices and its history.

Who’s who in the Shariʿa

In modern legal systems, judges, lawyers and notaries are unquestionably products of the legal profession.

They are initially educated in elementary and secondary schools that are regulated by the state, and their education in the law schools from which they eventually graduate is no less subject to such regulation.

They study the laws that the state legislates, although in some legal systems they also study the legal decisions of judges who are constrained in good part by the general policies of the state.

The point is that the legal profession is heavily regulated by the state and its legal and public policies.

It is difficult to think of any legal professional who can go on to practice law without having to pass some sort of exam that is directly or indirectly ordained by the state or its agencies. And when law students become lawyers, and lawyers become judges, their ultimate and almost exclusive reference is to law made by the state.

This situation would have been inconceivable in Muslim lands before the dawn of modernity.

The most striking fact about traditional Islamic legal personnel is that they were not subject to the authority of the state, simply because the state as we now know it did not exist (in fact it did not exist in Europe either, its beginnings there going back to no earlier than the sixteenth century).

Thus, until the introduction to the Muslim world – during the nineteenth century – of the modern state and its ubiquitous institutions, Muslims lived under a different conception and practice of government.

 (This is why we must not use the term “state” to refer to that early form of rule under which Muslims lived prior to the nineteenth century. Instead, we will reserve for that kind of authority such terms as “ruler,” “rule” or “government.”)

Pre-modern Muslim rule was limited in that it did not possess the pervasive powers of the modern state.

Bureaucracy and state administration were thin, mostly limited to urban sites, and largely confined to matters such as the army of the ruler, his assistants, tax collection and often land tenure.

 People were not registered at birth, had no citizenship status, and could travel and move to other lands and regions freely – there being no borders, no passports, no nationalities, and no geographic fixity to residential status.

A Cairene family, for instance, could migrate to Baghdad without having to apply for immigration, and without having to show documentation at borders, because, as I said, there were neither borders (not fixed at any rate) nor passports in the first place.

And the farther people lived from the center of rule, the less they were affected by the ruler, his armies and his will to impose a certain order or even taxes on them.

 And the reason for this was simple: in order for the ruler to have complete control over far-away regions, he had to send armies and government officials whose cost of maintenance may not always have been covered by the taxes they levied from the populations under their control.

So, if there was no state to regulate society and the problems that arose in it, then how did people manage their affairs?

The short answer is: self- rule. Communities, whether living in city quarters or villages, regulated their own affairs. If the civil populations felt it necessary to have a ruler, it was because of the specific need for protection against external enemies, be they raiding tribes, organized highway robbers or foreign armies who might wreak violence on them and play havoc with their lives.

 But the civil populations did not need the ruler to regulate their own, internal affairs, since such regulations were afforded by a variety of internal mechanisms developed over centuries by their own local communities.

Customary law was an obvious source of self-regulation, but the Sharʿia was equally as important.

This is to say that the Sharʿia was not the product of Islamic government (unlike modern law, which is significantly the product of the state).

It is true that the Muslim ruler administered justice by appointing and dismissing JUDGES, even defining the limits of their jurisdictions, but he could in no way influence how and what law should apply.

 So the question before us is: if the Muslim ruler did not create the law of the land, who did? The answer is that society and its communities produced their own legal experts, persons who were qualified to fulfill a variety of functions that, in totality, made up the Islamic legal system.

For now, we will speak – in a limited fashion and by way of an introduction – of four types of legal personnel who played fundamental roles in the construction, elabo- ration and continued operation of the Shariʿa.

These are the MUFTI, the AUTHOR-JURIST, the judge and the law professor. Of course there were other “players” in the legal system, including the notaries, the court witnesses and even the ruler himself (to be discussed in due course), but their role in the construction of the system and its continuing operation was not “structural” (by which I mean that the system would have remained much the same with or without their participation).

But without the fundamental contributions of mufti, author-jurist, judge and law professor, the Shariʿa would not have had its unique features and would not

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