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Studying Shari’a and Shari’a Courts in light of Legal Pluralism

BS”D

 

Time for a new article. This time I’m relating to Ido Shahar’s “Legal Pluralism and the Study of Shari’a Courts”, brought in Islamic Law and Society, 15, 2008. But before that I feel the need to define what is meant by “Legal Pluralism”, as this might seem as an unfamiliar term for many.

In general a state is supposed to be run by legal monism, that is, one single law. A state alone should be able to decide on and govern laws and rules, in order that the state might “be able to penetrate society, regulate social relationships, extract resources and appropriate or use these resources in determined ways”.[1] This is rarely the case though, even in states which we believe to be governed by one law alone. Often various legal practices, custom, or other legal bodies, influence and decides, and this is legal pluralism, that is, when law in a state is decided by more than one legal body or principle.

As is clear, Israel is one such case. We don’t only have one law, the secular Israeli law (whether influenced by Jewish religious law or not, that is, Mishpat Ivrit, Hebrew law), but several bodies of law, Israeli law, Jewish religious law, Islamic law, and so on. So when I am talking about legal pluralism, I am talking about a plurality of laws within one state.

So far so good.

Mainly the scope in the use of Legal Pluralism as a theoretical tool, has been from the legal institution, that is, we relate to how the legal bodies, various courts and so on, relate to each other and litigants, but Shahar chooses to approach it from the litigant rather than the legal bodies. That is, he attempts to relate to what makes the litigants choose one court instead of another, what their needs and motives are, in order to discover the relations between the legal bodies.

In his article, “Legal Pluralism and the Study of Shari’a Courts”, he attempts to point out these relations by focusing on how Shari’a courts relate to other non-state courts under Islamic rule, the mazalim courts, and other legal functionaries, the hajibs, as well as civil courts. Besides that he also describes the relations between qadis of the various four Sunni schools of law (madhahib).

Let us look on the three examples:

The Mazalim courts existed from the time of the later Umayyad until the Ottoman abolished them, and covered many of the same cases as the Shari’a courts, which and to what extent depending on the changing power balance between the two courts, having the proponents of the mazalim courts fully aware that they encroached on cases covered by the Shari’a courts, even going so far as to establish that in cases of “Rights of Man” (criminal cases, huquq adami) litigants were allowed to attend Shari’a courts, but in cases involving violations of “the Rights of God” (huquq Allah) only mazalim courts were allowed. We even hear about examples where people stopped using the Shari’a court totally, as related by al-Kindi in Egypt, and only attended the mazalim courts.

The hajibs were based on Mongol Yasa code of law, and though it was described in less positive terms than the mazalim, it still witness of a power struggle between two legal bodies. In case of the hajibs people were forcibly moved from Shari’a courts and taken to the hajibs, rather than going to the hajibs freely and of own initiative.

In case of the civil courts Shahar explains how the Ottomans gradually removed more and more jurisdictions, until only cases of personal status were left for them, showing a transition from tradition religious courts to modernity, not happening at once and thus leaving periods where the courts overlapped each other jurisdictions.

Based on this we see that religious authority was not always the deciding factor, leaving cases of legal pluralism encouraging to competition over prestige and litigants, both by being attentive to the needs of the litigants, as well as forcing them to choose the legal body of preference, which again forced the Shari’a courts to relate to this and thus forcing them to make certain changes in practice.

In case of the relation between the four Sunni schools of law, we see another interesting example, namely that of cooperation between the qadis, so that the leniency of one school would be followed rather than the stringency of another school, such as the annulment of marriages when the husband did not provide for his wife, which is not allowed according to the Shafi’i school, then directing the Shafi’i qadi to rule according to the Hanafi or Hanbali schools, which do allow this, such as was the example in 17th and 18th century Syria and Palestine.

 

I find this interesting, the relation between legal bodies and within legal bodies, and how this changes practices and conceptions. I don’t think it has changed much today, the needs of the litigants being the most important part, and in cases where one legal body is too inflexible, and alternative bodies can be found, litigants will find these alternatives, whether these bodies are acknowledged by the state or not.

Here I can relate to the practice of ṣulḥa in Israel (and other places), which is private settlements between two groups in conflict, brokered by a neutral third group chosen by the two groups for exactly this. This is a non-state body, which is used by Arabs in Israel to solve conflicts, but the interesting thing is that the Israeli criminal courts are relating to these agreements, either in their rulings or in consideration whether a person should be in custody or not. More about that later.


[1] Yüksel Sezgin, ”A Political Account for Legal Confrontation Between State and Society: The Case of Israeli Legal Pluralism”. Studies in Law, Politics, and Society, volume 32, p. 198, 2004.

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