ancient, islamic and jewish law Flashcards
sunni schools of jurisprudence
—Malaki (North Africa)
— Shafi’i (East Africa, Indonesia & Kurds)
— Hanafi (Central Asia, Egypt, Syria, Turkey)
— Hanbali (Saudi Arabia)
malaki school
Emphasizes the practice of the people of Medina as a source of law and is known for being somewhat conservative but also flexible in areas where tradition allows.
shafi’i school
Balances hadith and reason, with a strong focus on textual evidence from the Quran and hadith. It is known for its systematic legal methodology. It protects only monotheists believing in a sacred book.
hanafi school
The most flexible and rationalist of the four, emphasizing reason and analogy in legal rulings, making it adaptable to different cultures. It says nearly anybody can be protected under Islamic law.
hanbali school
The most conservative and literalist, relying heavily on the Quran and hadith with minimal use of reason or local customs. It forms the basis of modern Wahhabism. It protects only monotheists believing in a sacred book.
shia schools of jurisprudence
— Jafari (Iran)
— Zaidi (Houties in yemen)
four main sources of islamic law
- Qur’an: The primary and most authoritative source.
- Sunna: The recorded practices and sayings of the Prophet Muhammad, essential for interpreting the Qur’an.
- Ijmāʿ: The consensus of qualified scholars, often used to solidify rulings and establish them as binding.
- Qiyās: Analogical reasoning used to derive rulings on issues not explicitly covered in the Qur’an or Sunna.
additional sources of islamic law
- Ijtihād (scholarly effort): The process of deriving legal rulings through independent reasoning, particularly in cases not directly addressed in the sacred texts.
- ʿAql (reason): preferred approach of Shia instead of Qiyas
differences between sunni and shia jurisprudence
Sunni school: recognizes the Qur‘an, the normative practice of the prophet (Sunna), and consensus (ijma) as sources of law and analogy (qiyas) as a valid method of law derivation.
Shi‘ i schools: recognizes the Qur‘an and the normative practice not only of the prophet but also of the imams as sources of the law.
- the normative practice of the imams is attributed infallibility
- Instead of analogy, they accept “reason” (‘aql) and rational argument as the main methodological source
five types of acts under islamic law
- Wājib (Obligatory)
- Mandūb (Recommended)
- Mubāḥ (Permissible)
- Makrūh (Reprehensible)
- Ḥarām (Forbidden)
spheres of law in fiqh
Worship (ʿIbādāt): The fiqh treats acts of worship as legal obligations. However, the judiciary typically does not intervene in the correctness of worship, except in extreme cases of neglect (e.g., refusing to pray).
Transactions (Muʿāmalāt): Transactions cover family relations, property law, and contracts. Legal norms here ensure fairness, especially in commercial exchanges. For example, while swine and wine are forbidden for Muslims, a non-Muslim’s right to such property is protected.
claims of god and claims of men
Legal norms are divided between public interest (claims of God) and private rights (claims of men). Islamic law prioritizes resolving personal legal disputes (e.g., in contracts) but also emphasizes protecting the public good, especially in matters like acts of worship and public conduct.
fuqahāʾ
= jurists specialized in Islamic jurisprudence, responsible for deriving and interpreting Islamic legal norms from sacred texts
→ They viewed their work as distinct from other religious scholars, such as theologians or transmitters of hadith, because of the complexity of legal reasoning.
→ Ijmāʿ (Consensus): A key principle in Islamic law, but only jurists trained in fiqh are considered qualified to form a consensus.
fiqh
= Islamic jurisprudence—the process of interpreting and applying Islamic law (Sharia) to everyday life.
→ allows scholars to engage in ijtihad (independent legal reasoning)
→ highly argumentative structure
→ different schools produce different norms
code of hammurabi
- c. 1754 BCE
- wide range of legal topics: criminal law, property law, family law, commercial law, and slavery
- one of the earliest examples
- casuistic laws, expressed as “if … then” conditional sentences.
- lex talionis principle: “eye for an eye, tooth for a tooth”
- essence is debatable: customary or statutory law?
other mesopotamian legal codes
→ Ur-Nammu Code (Sumerian, c. 2100 BCE)
→ Lipit-Ishtar Code (c. 1900 BCE).
mesopotamian treaties
→ Stele of the Vultures
→ Peace Treaty of Ebla-Abarsal = oldest treaty document in the world (24th BC)
foundational texts of halakha
- Torah (Pentateuch): the first five books of the Hebrew Bible: Genesis, Exodus, Leviticus, Numbers, and Deuteronomy
- Talmud: vast compendium of Jewish oral law, and elaborating on the Torah’s laws through rabbinical debate and interpretation, and it consists of the Mishnah (the written compilation of oral traditions) and the Gemara (the rabbinical analysis and commentary on the Mishnah)
noahide laws
address humanity as a whole → a broader, universal dimension to its ethical outlook eg. prohibition of bloodshed, robbery, eating flesh cut from a living animal.
distinct historical periods of jewish law
- Biblical period.
- Talmudic period (1st century BCE – 5th century AD).
- Geonic period (6th–12th centuries).
- Early Authorities (Rishonim) period (13th–16th centuries).
- Later Authorities (Aharonim) period (17th century – present).
geographic centers of jewish law
- Israel and Babylonia in early periods.
- Later, Sfarad (Iberian Peninsula and North Africa) and Ashkenaz (Franco-Germany)
responsa literatura
Responsa are written decisions and rulings made by rabbis in response to legal and religious questions. This literature developed significantly during the medieval period and continues to be an important source for understanding the practical application of Jewish law in various contexts.
role of custom in jewish law
Minhagim: Local customs that develop within different Jewish communities
codes of jewish law (halakhic codes)
— Rashi (Rabbi Shlomo Yitzhaki): commentaries on Torah & Talmund
— Maimonide: Mishneh Torah (12th century)
— Rabbi Jacob ben Asher: Arba’ah Turim (14th century)
— Rabbi Joseph Caro: Shulchan Aruch (literally “Set Table”) is a legal code compiled in the 16th century. It is a comprehensive guide to Jewish law and remains a central reference work.
characteristics of jewish law
- Jewish law is personal, not territorial, and applies to Jews worldwide.
- Concepts like equity courts, appeal courts, or binding precedent are absent in Jewish law due to its flexible, case-by-case approach.
- legal pluralism: communities are guided by different authorities and there are no rigid schools of thought, the works and rulings of every authority are considered as relevant
- Judges in Jewish law can deviate from the law in certain cases, guided by the spirit of the Torah: “governed by men, not rules” → it ensures justice according to divine principles, even if it means disregarding formal rules.
- lacks the hierarchical institutional structure typical of state-based legal systems. Central institutions like the Great Sanhedrin ceased around 2,000 years ago.
four spaces through which jewish law functions
- Rabbinical establishment: Rabbinical academies (yeshivot) where legal debates happen.
- Communal establishment: Civic affairs managed by Jewish communities.
- Community members: Traditions and customs that evolve organically.
- Interaction with Gentile societies: Local customs influence Jewish law
Muhammad ibn Idris al-Shafiʿī
= one of the most influential Islamic jurists and the founder of the Shafiʿi school of thought.
His greatest contribution was the systematic development of Usul al-Fiqh (Foundations of Islamic Jurisprudence), which provided a structured methodology for deriving Islamic law (Sharia). His work helped bridge the gap between different legal schools by establishing clear principles for interpretation.
