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Shari’a in Israel

BS”D

First, let me send thoughts to all the victims from Sandy, whether in the States or elsewhere. If any of you readers felt the impact, then let me express my relief that you are able to read this post by now. I sincerely hope that you weren’t affected too much of the storm.

 

Back to the title.

Yes, you read correct.

Israel is – or at least claims to be – a secular Jewish democracy, but yet is religious law part of Israeli law. One might not be so surprised that Jewish religious law, Halachah, is influencial on Israeli secular law, Mishpat Ivrit, but some might wonder why and how Shari’a can be influential on Israeli law.

There’s a good explanation. Israeli law is to a certain extent based on the model of Ottoman law, which was taken over by the British during the mandate period, and now in Israeli law. To be more precisely, based on Ottoman law Israel recognize a number of religious groups, which are governing themselves according to their respective religious law, in matters related to family law and privacy law. It is clearest expressed in matters of marriage and divorce, but also guardianship is falling under the religious courts, but whereas Israeli secular law rarely relates to the two first, the latter is more a focus of controversy, as well as cases involving the question of equality (as is the case for most conflicts between Israeli secular law and religious law in Israel). More about that in another post.

Israel has eight regional Shari’a courts, in Bir al-Sabi’, Jerusalem, Yaffo, Taybe, Baqa al-Gharbiya, Hayfa, Nazareth, and Acco, as well as the Shari’a court of Appeals, sitting in Jerusalem, which works as the court of appeals (hence the name). The Shari’a Court of Appeals plays a crucial role in the development of Shari’ah in Israel, since it is this institution which takes the most confrontations with the Israeli legal system, as well as being able to overrule rulings from the regional courts. It is headed by Qadi Ahmad Natour, and besides him has Qadi Farouk Zoebi and Qadi Zachi Madlaj, all elected in 1994 on permanent status (first time that happened).

The Shari’a Court of Appeal is challenged from three sides; the Israeli Supreme Court of Justice, on matters where Israeli secular law and the rulings of the Shari’ah Court of Appeals conflict, from the Islamic Movement(s), which questions and challenges the authority of the Court, and from feminist groups, challenging the lack of sensibility to the status of women and human rights.

 

There are a number of scholars dealing with the subject, mostly Israelis (Jewish and Palestinians), but three of them stand out in particular, Aharon Layish, who have written indepth on a number of subject connected to Islamic jurisprudence (fiqh) within Israel (both in case of the Shari’a courts and conflicts between the courts and the litigants) and historically. Moussa Abu Ramadan, who has written very indepth on the rulings and practices of the Shari’ah courts, particularly the Shari’ah Court of Appeals. And Alisa Rubin Peled, who has written about the debates and attitudes to the Shari’ah courts.

It is these three that I will base most of my study of Israeli Shari’ah upon, but still relate to others as well.

 

This post is a little introduction to my study of Shari’ah in Israel, and I hope there will come many more posts. From what I have read so far it really seems like an interesting subject, not only because it’s about Isreal and Shari’ah (in context of each other), but also because it raises some interesting thoughts on the relation between religion and a/the secular society it exists within. What is the role of religion in a modern society? Where should the borders go, if there should be any at all? Is it possible to implement religious law into secular law? And so on.

 

Enough for this time. Take care out there.

Studying Early Islamic Law

BS”D

 

So I have been busy finding material and sources for the coming assignments. Or at least for the seminar paper. As you might remember I’m going to focus on possible Jewish influences on Islamic legal thought, something which brings me back to the two first centuries AH (the 7th and 8th century), in order to see if we can find any hints of influences. It’s going to be problematic, for sure, but hopefully also very interesting and learning.

Of primary sources I have, so far, decided to focus on writings of madhhab al-Hanafi and maddhab al-Maliki, as well as ash-Shafi’i’s ar-Risâla (noticing that I’m using a phonetic transcription, eh;o). I already have gotten my hands in al-Muwatta, the “law-book” of Imam Maliki, as well as ar-Risâla, but I still need to find writings of the Hanafi law school, so if any of you out there know of any online resources of early Hanafi writings, then please let me know.

Secondary sources have been extensive, fortunately. Of major importance are books and articles by Goldziher, Schacht, and Hallaq. The first is a little outdated, but his observations are of major importance, and have played a huge role in the study of early Islam. Schacht, with his “Origins of Muhammadan Jurisprudence,” is (still) considered one of the giants when it comes to the study of Islamic jurisprudence, while Wael B. Hallaq is the scholar of Islamic law of our days, taking points with many of Schacht’s theories. Especially one of the points of discussion between Schacht and Hallaq is of importance for me, namely which geographical center played the greatest importance, Iraq or Hijaz (Mecca and Medinah in particular). Also on influences do they differ, Schacht pointing to many possible (and like) influences from Roman law, whereas Hallaq attempts to explain these influences as not being influences (for another scholar on this subject, see Muhammad M. al-A’zami). Another scholar, who doesn’t get much mentioning in the Western world, is Ahmad Hasan, who also deals with these subjects on an introductory level in his “The Early Development of Islamic Jurisprudence.”

As far as the question of which of the centers that left the biggest impression, it will be of importance to me in terms of the possibility of relations between Jews and Muslims in the first centuries. Since there, as far as we know, were no great Jewish presence in the Hijaz after the death of Muhammad, it is unlikely that there was much contact between early Islamic scholars from that area and Jewish ditto. That would be much more likely concerning Iraq, where we have the greatest Jewish centers of law of the time. That Hijaz would be of greatest importance, does not rule out any Jewish influence though, especially not considering that Shafi’i attempted to assimilate the two traditions in one, and – apparently – succeeded in it. But also here do we see differences of opinion between Schacht and Wallaq, the former believing that Shafi’i was the concluding scholar of great importance, whereas the latter only believe that that importance came some centuries after Shafi’i’s death.

There are some threads I have to deal with in this subject, though I won’t be able to focus on all of them, only one or two. As stated earlier, it is an extensive subject, which also can be seen from the books written by mentioned scholars. Especially Hallaq has attempted to deal with this in depth and via more books, so I don’t believe myself being able to deal with the subject on a satisfactory level, unless I be very specific in my focus.

Two recommendations

BS”D

 

Once in a while I try to find new interesting blogs, and sometimes I am lucky. Today I feel myself really lucky, having found two blogs, one called The Talmud Blog, publishing mainly articles on the study of the Talmud, and another called The Immanent Frame, publishing articles on the interdisciplinary perspectives on secularism, religion, and the public sphere. I highly recommend any with interest in the subjects to visit either or both, they are seriously goldmines.

Especially one writer, Lena Salaymah, who writes on The Immanent Frame, wrote an article for The Talmud Blog, where she explains her motives for and thoughts on studying and researching Near Eastern Legal Culture. For my readers it will come as no surprise that exactly that is my focus.

The article is interesting and well-written, explaining and putting words on many thoughts I have myself, but which I haven’t been able to express as well as Salaymah does it. Especially when she writes about “proto-Semitic” that “as a metaphor, “proto-Semitic” offers a useful heuristic for thinking through how we approach the study of Jewish and Islamic law.  If you imagine scholars of Jewish law articulating their ideas in Hebrew and Aramaic, while scholars of Islamic law articulate their ideas in Arabic, then my objective is to converse with both groups of scholars in a meta-language (proto-Semitic) that engages both legal traditions.  Just as “proto-Semitic” is the common ancestor of the Semitic language family, Near Eastern legal culture is the shared antecedent of Jewish and Islamic legal systems,” do I feel that she puts the finger precisely on my own thoughts.

After I wrote my assignment on Ibrahim as an early Monotheist (which I will publish later on), did I feel too that we are dealing with a common Middle Eastern – or maybe rather Near Eastern – expression, more than we are talking about a “Jewish” on the one hand and a “Muslim” on the other. Of course, I’m not attempting to say that the two religions are basically the same, though there are many similarities to be find, they are not only products of their original geographical homes, and even so there would have been differences, but they are also that, products of their original geographical homes, and therefore – of course – have many similar expressions and thoughts.

I am looking forward to see what results she must create from her coming works, and I hope that you also will find it interesting, at least some of you.

Anyway, take a look of the blogs, I can highly recommend it.

The Talmud Blog

Thoughts on Near Eastern Legal Culture – Guest blog by Lena Salaymah on The Talmud Blog

The Immanent Frame

Comparative study on the law schools and overall structure of Islam and Judaism – Defining the Schisms

BS”D

 

Considering finding the comparison of the evolution of the Jewish maḍhab, I think there are some things that need to be in place, before we can begin the comparison. First off, one of the reasons the various maḍâhib appeared was the internal split as well as the geographical distance between the centers. People became more focused on their local center than on the overall center. When do we see the same in Judaism? Another thing which needs to be in place, is the acknowledgment of the same basic sources. When talking about Islam the split in the legal sources is the Sunnah and the Imams, where the Shi’as don’t acknowledge the Sunni compilations of Hadith, so the Sunnis don’t acknowledge the Shi’a ditto as well as the status of the Imams. Within the Sunni maḍâhib the basic sources where agreed upon, as they were, I believe, in the case of the Shi’a maḍâhib.

So we have two levels of comparison here. One is in the schism of disagreement on basic sources, that is, the sources considered holy and thus basic for further understanding of Allah’s will, the other the schisms within the major movements, where it is a question more about different principles in the interpretation of these sources, than the sources themselves.

When I think of examples on the first schism in Judaism, I find many and from various periods of time. During the Biblical times the obvious example is that of the Samarians and the Judeans. During the time of the Second Temple there are the schisms between the Pharisees and the Sadducees, the Essenes and the other Jewish groups (in regards to the status of the Temple as well as the priesthood of the Essenes), and later on between the Rabbinic Jews and the Karaites. Today we might even talk about the schism between the Orthodox on the one hand and the Reform on the other (with the Conservative movement somewhere in between). What is worthwhile to notice here is that we are talking about schisms, which emphasis the struggle on who are the right ones to define what “true Judaism” is, that is, where do we put the limits. That is also the case in the Islamic schism between the Sunnis and the Shi’as. Of course, which I dare say is obvious, it doesn’t mean that the two parts in each schism, whether Jewish or Muslim, denies the other side’s right to leave an imprint on the religion, as well as the case can be that sometimes the one part denies the other side’s right, while the other side acknowledge the right of the first side.

The schisms which I believe cannot be placed within this category of schisms, let’s call it the Schism of Who is Right, are those of the Ashkenazim and Sfaradim, and that of the Talmuds Yerushalmi and Bavli, simply because we have two sides, in both cases, agreeing on the basic sources.

This leaves me though with maybe even more work. First off, which groups should I focus on? It is clear that I need to decide on whether I focus on the Rabbinical Jews, the Sadducees, the Reform, the Sunni, or the Shi’as, for the sake of focus. Second off, I also need to establish whether we can find examples on the maḍâhib in all cases. Maybe I find it among the, let’s say, Karaites, but it doesn’t mean that it exists in the case of the Sadducees. I need to define my approach, my focus, and be able to explain why I chose that focus.

 

Some recommended reading:

 

“Studies in Usul al-Fiqh,” Iyad Hilal, can be found at www.islamic-truth.fsnet.co.uk

“Principles of Islamic Jurisprudence,” M. H. Kamali, can easily be found by search on Google.

“Hadith : Muhammad’s Legacy in the Medieval and Modern World,” Jonathan A. C. Brown. Oneworld Publication, 2009.

“The Most Learned of the Shi’a: The Institution of the Marja’ Taqlid,” edited by Linda S. Walbridge. Oxford University Press, 2001.

“Introduction to Islamic Theology and Law,” Ignaz Goldziher (translated by Andras and Ruth Hamori). Princeton University Press, 1981.

“Halakha in the Making: The Development of Jewish Law from Qumran to the Rabbis,” Aharon Shemesh. University of California Press, 2009.

“The Talmud: A Selection,” Edited by Norman Solomon. Penguin Books Ltd, 2009.

“Who Owns Judaism? Public Religion and Private Faith in America and Israel,” edited by Eli Lederhendler. Oxford University Press, 2001.

“For the Love of God and People: A Philosophy on Jewish Law,” Elliot N. Dorff. The Jewish Publication Society, 2007.

“An Introduction to the History and Sources of Jewish Law,” edited by N. S. Hecht, B. S. Jackson, S. M. Passamaneck, D. Piatelli, and A. M. Rabello. Oxford University Press, 1996.

“The Sages,” R. Ephraim Urbach. The Magnes Press, 1987.

“The Halakhah: Its Sources and Development,” R. Ephraim Urbach. Modan Ltd, 1996.

Comparative study on the law schools and overall structure of Islam and Judaism – Defining Madhhab

BS”D

 

When we take a look at the meaning and understanding of the term maḍhab, we are introduced for some short and not very informative explanations, such as a maḍhab being “a school of thought whether legal or philosophical (Bilal Philips), “a legal opinion or juristic principle adopted by a legist; a legal school” (Hallaq), “a school of thought, such as a school of law or theology” (Saeed), “’way,’ that is, one of the recognized Sunni schools of law” (Berkey).

According to these four short definitions, a maḍhab is a “school of thought,” concerning itself with either legal, philosophical or theological thoughts. Berkey states that it is a Sunni school of law, which leaves me a little baffled, since I would think it obvious that it also is used for the Shi’a ditto.

Nevertheless, I don’t quite feel that I have reached the core of the matter, still wanting to understand what constitutes, creates a maḍhab rather than just knowing what it is being defined as.

 

Hallaq attempts to define the meaning of the word, as well as the structure and evolution of the maḍhab in his Introduction to Islamic Law. The word maḍhab, he explains, holds several meaning, all of them interconnected, hinting at the following of an opinion or idea which one chooses to adopt, resulting here in the particular opinion of a jurist. Besides this definition there are three other meanings to define the word. One is as “a principle defining the conceptual juristic boundaries of a set of cases.” That is, what is the criterion for reaching a solution on a case in question. Hallaq uses here the case of misappropriation, that is, forcefully taking something. We are left with the question on how to define when that is. According to Hanbali it involves removing the object from its original place, while it merely needs to be taken hold of according to Hanafi. The definition here, that is “the conceptual juristic boundary” for the case, is defined as having to remove the item taken hold off from its place in the case of Hanbali, while it just have to be taken hold of in the opinion of Hanafi. The second meaning of the word is considering the opinion on the jurist of the highest authority in a certain school, that is, the jurist who has the last word. And the third referring to a group of jurist, of any size, who are loyal to an integral and collective legal doctrine attributed to the founder of a certain school, defined by a set of particular and distinct characteristics, not shared by other schools.

Based on this it would seem that we could get the understanding of a maḍhab as being a school, following a certain limits of opinions on definitions and how to reach these definitions, following the founder or highest authority within those limits. That is, if we relate to the Shafi’i school, then the founder of this school of thoughts is Imam Muhammad ibn Idrîs ash-Shafi’i, who established the limits of opinions and methods on the definitions and how to reach them.

If we look at the historic evolution of the maḍhab, we will have this understanding further strengthened, seeing that they were formed around what I guess can be called “a learned man,” forming study circles, which later on became more established, having formulated clear enough principles to differ them from each other.

The schools were formed in the time of the Umayyad Caliphate, where the Muslims experienced some socio-political problems, caused by a number of factors, among them the growing number of non-Arab Muslims, expanded rule, and internal struggle for power among various groups. This made it harder to establish a general consensus on questions of law, making it necessary for the local judges to make decisions based on other principles. The questions being presented for them, was typically solved while studying and discussing with their disciples or students, who would visit other study circles as well. With time some circles would attract more attention, and thereby becoming more notable. Also the area of their situation would play a factor, seeing that Mecca had one approach, traditionally being said to be focused on tradition, since the availability of people who actually had seen and talked with Muhammad, as well as their descendants, was high, while Iraq would be more based on reasoning, being somewhat distant to Mecca. It wasn’t always like that though, but true is it that the two places witnessed the creation of two distinct schools, Maliki in Mecca and Hanafi in Iraq.

 

That said, what I feel that I need to find in the Jewish counterpart are examples on individuals or groups, having some clear defined principles and methods on defining them, which makes them apart from other similar individuals and/or groups, which then created a precedent for a continued tradition formed around these principles.

This is going to be the harder part of the project I feel. There are some cases which could be the answer, though I feel that they each have some weaknesses, at least in the direct approach. One of them is the schism between the Ashkenazi and Sfaradi tradition, which both have different later legal authorities, though certainly have differing characteristics, though I feel that that is more based on tradition than principles on definitions. Another could be the Yerushalmi-Bavli schism between the two Talmuds, but I don’t know whether their difference is more based on different geographical locations than on differing principles on definitions. Yet a third example could be the Rabbinic-Karaite schisms, which was suggested me, though here I would rather think of the Sunni-Shi’a schism, rather than of the maḍâhib (maḍhab in plural), seeing that they disagree on the sources, the Karaites refusing the Oral Tradition.

So my challenge now consists in researching the various schisms and see whether any of them have any similarities to my definition and understanding of the maḍâhib. That’ll take some time for sure.

 

 

Recommended reading:

 

“An Introduction to Islamic Law,” Wael B. Hallaq. Cambridge University Press, 2010.

“A History of Islamic Legal Theories,” Wael B. Hallaq. Cambridge University Press 1997 (2008).

“The Formation of Islam: Religion and Society in the Near East, 600-1800,” Jonathan P. Berkey. Cambridge University Press, 2003.

“Islamic Thought,” Abdullah Saeed. Taylor & Francis, 2007.

“The Evolution of Fiqh,” Abu Ameenah Bilal Philips. Tawheed Publication, 1988.

“Comparing Religions through Law,” Jacob Neusner & Tamara Sonn. Routledge, 1999

Comparative study on the law schools and overall structure of Islam and Judaism

BS”D

 

In Islam, when talking about Fiqh and Usul al-Fiqh, which is normally translated as “Jurisprudence,” though that doesn’t convene the full or exact meaning of the expressions, we deal with various “schools” of law. In Arabic these “schools” are called “maḍhab” (مذهب). These schools, which are named Hanafi, Hanbali, Shafi’i, Maliki (which are forming the four Sunni-schools), Jafari, and Zayidiyyah (forming the two Shi’a-schools), convey various approaches to how to deduce law from the primary sources (for Sunni-Islam they are the Quran and the Sunnah, compiled in the six works of Hadith, for Shi’a-Islam they are the Quran, the four works on Hadith, as well as the sayings of the Imams), which are not clear.

So today we have two major streams of Islam, namely Sunni- and Shi’a-Islam, which each have a number of “schools,” structured around a number of authorities. I am aware, of course, that there are more streams and groups than just the ones mentioned here, but we have to keep a certain focus, in order to get – at least – a basic understanding of things at hand.

Why do I state all this? Well, when I was sitting and studying the principles of the four Sunna-schools (please forgive me all you Shi’as, I haven’t forgotten you, just need to keep one thing at a time), suddenly thought about the Jewish ditto, or rather, whether there is a Jewish ditto, whether we can make some comparison between the Islamic situation and the Jewish situation. For example, in Judaism we talk about two major traditional schisms, namely the Ashkenazi and the Sfaradi, normally being translated to the “Western” and the “Oriental” traditions, though this is highly misleading. These two traditions are again parted in smaller traditions with their differences. These two traditions are being expressed in laws, prayers, and attitudes. For example, during Pessah, Passover, Ashkenazim do not eat “kidniyot,” rice and the like, while Sfaradim do. There are also differences in prayers, not so much in which prayers we pray, though also, but more dialects and certain wordings being different between the two traditions. The most well-known difference, I think, is the time we wait between eating meat and milk, which is six hours for the Sfaradim and three or one hour for Ashkenazim (again depending on which stream you belong to).

But the Sfaradi-Ashkenazi schism isn’t the one I’m focused on the most, since it doesn’t refer much to what is at stake when we talk about the Islamic schools of law, at least, that is, I don’t feel that it is so. I’d rather focus on the schism between the schools of Eretz Yisrael, the Palestinian schools, and that of Babylon, which laid the foundation for the two Talmuds, the Bavli and the Yerushalmi. Of course, these were finished in around 650 CE and 425 CE respectively, but the two areas kept on having a mutual struggle and disagreement of authority, which – among other things – can be witnessed by the fight for authority on the calendar between Sa’adia Gaon and R. Meir, Z”L.

In order to get to a better understanding on the similarities, if any, between the two religions, I need to establish a basis for comparison. I have chosen to focus on the understanding of the term maḍhab, in order to see if the two religions share any basis in the foundation of their legal traditions. The problem here is that we don’t have a term in Judaism which answers to the Islamic term maḍhab, at least not what I know of, so in order to find out what can be compared, we need to know what to compare with, the mentioning of the term maḍhab not being enough, at least not in the understanding of “school,” for what does a “school” constitute.

 

More on that the following days.