The document discusses the origins and roles of various Islamic legal scholars and authorities. It describes how jurists originally studied religious texts independently before legal schools developed, and the four Sunni schools that survived. It also outlines the roles of judges, muftis who issued fatwas, author-jurists who wrote legal texts, and law professors.

1. 5th meeting
Introduction to Islamic Law
& Morality
Autumn ‘11

2. Muslim
+
Qur’anic verse
=
a specific (Islamic) act ?

3. Supported by
reality?
continuing subordinate
role of women in Muslim
majority countries

4. The dynamics of
Islamic law &
morality (sharia)
local traditions
Customary law
Quran
Sunna
‘foreign’
sharia traditions
discourses
The sharia court modern secular court
Everyday practice

5. Where do we find ‘the
rules’ of sharia?

6. Where do we find ‘the
rules’ of sharia?
• Qur’an: limited, often difficult to interpret,
incomplete or ambiguous

7. Where do we find ‘the
rules’ of sharia?
• Qur’an: limited, often difficult to interpret,
incomplete or ambiguous
• The example/Sunna of the prophet
Mohammad and his Companions: very large
corpus, open to varying interpretations

8. Where do we find ‘the
rules’ of sharia?
• Qur’an: limited, often difficult to interpret,
incomplete or ambiguous
• The example/Sunna of the prophet
Mohammad and his Companions: very large
corpus, open to varying interpretations
• Sharia legal compendiums: rules extracted
by Muslim scholars

9. The sacred sources
Authoritative interpreters
(ulama, sing. alim; fuqaha, sing. faqih)
The common believers

10. Authority of the jurists
was based on two things:

11. Authority of the jurists
was based on two things:
• Knowledge of the textual sources of the
law and ‘the law’ itself (‘epistemic
authority’)

12. Authority of the jurists
was based on two things:
• Knowledge of the textual sources of the
law and ‘the law’ itself (‘epistemic
authority’)
• Personal piety (‘moral authority’)

13. Origins of the Muslim
jurists

14. Origins of the Muslim
jurists
• 7th century: pious individuals start studying
religious literature & ‘law’

15. Origins of the Muslim
jurists
• 7th century: pious individuals start studying
religious literature & ‘law’
• gather followings of ‘students’ around them (first
‘study circles’)

16. Origins of the Muslim
jurists
• 7th century: pious individuals start studying
religious literature & ‘law’
• gather followings of ‘students’ around them (first
‘study circles’)
• 8th century: ‘personal’ legal schools/madhhabs
start to appear

17. Origins of the Muslim
jurists
• 7th century: pious individuals start studying
religious literature & ‘law’
• gather followings of ‘students’ around them (first
‘study circles’)
• 8th century: ‘personal’ legal schools/madhhabs
start to appear
✴Students ‘shop’ between different teachers or
‘personal schools’. No strict doctrinal loyalty
expected

18. Madhhab (‘that which is followed’):

19. Madhhab (‘that which is followed’):
✴ an opinion or idea

20. Madhhab (‘that which is followed’):
✴ an opinion or idea
✴ a basic (legal) principle

21. Madhhab (‘that which is followed’):
✴ an opinion or idea
✴ a basic (legal) principle
✴ opinion of a certain jurist

22. Madhhab (‘that which is followed’):
✴ an opinion or idea
✴ a basic (legal) principle
✴ opinion of a certain jurist
✴ a doctrinal, non-personal ‘school’

23. Characteristics of the doctrinal
legal ‘schools’:

24. Characteristics of the doctrinal
legal ‘schools’:

25. Characteristics of the doctrinal
legal ‘schools’:
✴ Named after supposed founders, the
‘absolute’ master-jurists

26. Characteristics of the doctrinal
legal ‘schools’:
✴ Named after supposed founders, the
‘absolute’ master-jurists
✴ Doctrinal loyalty required

27. Characteristics of the doctrinal
legal ‘schools’:
✴ Named after supposed founders, the
‘absolute’ master-jurists
✴ Doctrinal loyalty required
✴ Collective doctrines attributed to eponym
(Imam: axis of authority)

28. Characteristics of the doctrinal
legal ‘schools’:
✴ Named after supposed founders, the
‘absolute’ master-jurists
✴ Doctrinal loyalty required
✴ Collective doctrines attributed to eponym
(Imam: axis of authority)
✴ Only four schools survived within Sunni Islam

29. Four surviving Sunni
madhhabs:

30. Four surviving Sunni
madhhabs:
• Hanafi (Abu Hanifa, d. 767)

31. Four surviving Sunni
madhhabs:
• Hanafi (Abu Hanifa, d. 767)
• Maliki (Malik bin Anas, d. 795)

32. Four surviving Sunni
madhhabs:
• Hanafi (Abu Hanifa, d. 767)
• Maliki (Malik bin Anas, d. 795)
• Shafi’i (Ibn Idris al-Shafi’i, d. 820)

33. Four surviving Sunni
madhhabs:
• Hanafi (Abu Hanifa, d. 767)
• Maliki (Malik bin Anas, d. 795)
• Shafi’i (Ibn Idris al-Shafi’i, d. 820)
• Hanbali (Ahmed ibn Hanbal, d. 855)

34. Why did these (doctrinal)
madhhabs arise?

35. Why did these (doctrinal)
madhhabs arise?
• Need for (legal) unity in Islamic Empire

36. Why did these (doctrinal)
madhhabs arise?
• Need for (legal) unity in Islamic Empire
• Need for legal authority/legitimacy

37. Why did these (doctrinal)
madhhabs arise?
• Need for (legal) unity in Islamic Empire
• Need for legal authority/legitimacy
✦ Legal authority resided in individual jurists
(based on moral and epistemic authority)
not in state institutions or ruler’s court

38. Why did these (doctrinal)
madhhabs arise?
• Need for (legal) unity in Islamic Empire
• Need for legal authority/legitimacy
✦ Legal authority resided in individual jurists
(based on moral and epistemic authority)
not in state institutions or ruler’s court
✦ Rulers needed ‘institutions’ to reach the
general public

39. Results:

40. Results:
• Relative independence of the jurists

41. Results:
• Relative independence of the jurists
• Distrust of (‘secular’) state authorities

42. Results:
• Relative independence of the jurists
• Distrust of (‘secular’) state authorities
• Caliphs ‘secular’ political leaders, not law-
makers or interpreters of ‘God’s laws’

43. Results:
• Relative independence of the jurists
• Distrust of (‘secular’) state authorities
• Caliphs ‘secular’ political leaders, not law-
makers or interpreters of ‘God’s laws’
• Jurists acted as intermediaries between
(distant) rulers and general populace

44. Types of legists

45. (Origins of) the judge:

46. (Origins of) the judge:
• Appointed by secular authorities in
garrison towns

47. (Origins of) the judge:
• Appointed by secular authorities in
garrison towns
• mediated between tribes

48. (Origins of) the judge:
• Appointed by secular authorities in
garrison towns
• mediated between tribes
• Became connected to mosques, placed in
center of town

49. Official tasks not limited to adjudication,
but also included:

50. Official tasks not limited to adjudication,
but also included:

51. Official tasks not limited to adjudication,
but also included:
• mediation

52. Official tasks not limited to adjudication,
but also included:
• mediation
• supervising local public infrastructure:
bridges, fountains etc.

53. Official tasks not limited to adjudication,
but also included:
• mediation
• supervising local public infrastructure:
bridges, fountains etc.
• auditing of charitable endowments (waqfs)

54. Official tasks not limited to adjudication,
but also included:
• mediation
• supervising local public infrastructure:
bridges, fountains etc.
• auditing of charitable endowments (waqfs)
• inspection of institutions or individuals
providing for the poor and orphans

55. Official tasks not limited to adjudication,
but also included:
• mediation
• supervising local public infrastructure:
bridges, fountains etc.
• auditing of charitable endowments (waqfs)
• inspection of institutions or individuals
providing for the poor and orphans
• act as legal guardian for married women
without male relatives

56. Judge or qadi was

57. Judge or qadi was
• appointed and dismissed by authorities

58. Judge or qadi was
• appointed and dismissed by authorities
• (ideally) a member of the community he
served

59. Judge or qadi was
• appointed and dismissed by authorities
• (ideally) a member of the community he
served
• had only limited knowledge of the law,
resorted to manuals and mufti’s

60. Mufti

61. Mufti
• private legal specialist, capable of higher forms of ijtihad or
legal reasoning

62. Mufti
• private legal specialist, capable of higher forms of ijtihad or
legal reasoning
• authority based on personal piety and knowledge of the law

63. Mufti
• private legal specialist, capable of higher forms of ijtihad or
legal reasoning
• authority based on personal piety and knowledge of the law
• provides legal opinions or fatwa’s

64. Mufti
• private legal specialist, capable of higher forms of ijtihad or
legal reasoning
• authority based on personal piety and knowledge of the law
• provides legal opinions or fatwa’s
• consulted by both qadi’s and general public

65. Mufti
• private legal specialist, capable of higher forms of ijtihad or
legal reasoning
• authority based on personal piety and knowledge of the law
• provides legal opinions or fatwa’s
• consulted by both qadi’s and general public
✴easily accessible, free of charge (in principle)

66. Mufti
• private legal specialist, capable of higher forms of ijtihad or
legal reasoning
• authority based on personal piety and knowledge of the law
• provides legal opinions or fatwa’s
• consulted by both qadi’s and general public
✴easily accessible, free of charge (in principle)
✴generally non-elite, lower or middle class descent

67. Mufti
• private legal specialist, capable of higher forms of ijtihad or
legal reasoning
• authority based on personal piety and knowledge of the law
• provides legal opinions or fatwa’s
• consulted by both qadi’s and general public
✴easily accessible, free of charge (in principle)
✴generally non-elite, lower or middle class descent
✴opinion was non-binding, but routinely upheld in court

68. Mufti
• private legal specialist, capable of higher forms of ijtihad or
legal reasoning
• authority based on personal piety and knowledge of the law
• provides legal opinions or fatwa’s
• consulted by both qadi’s and general public
✴easily accessible, free of charge (in principle)
✴generally non-elite, lower or middle class descent
✴opinion was non-binding, but routinely upheld in court
• fatwa’s, not decisions of the judges, were recorded, discussed
and summarized, to be used in both court and teaching
sessions

69. author-jurist

70. author-jurist
• recorded and explained rules, principles and fatwa’s that were
relevant to contemporary needs: the ‘law books’

71. author-jurist
• recorded and explained rules, principles and fatwa’s that were
relevant to contemporary needs: the ‘law books’
✴ from short treatises on specific subjects to large overviews
of the law

72. author-jurist
• recorded and explained rules, principles and fatwa’s that were
relevant to contemporary needs: the ‘law books’
✴ from short treatises on specific subjects to large overviews
of the law
✴ reflected ‘the changing conditions of people and of the age’

73. author-jurist
• recorded and explained rules, principles and fatwa’s that were
relevant to contemporary needs: the ‘law books’
✴ from short treatises on specific subjects to large overviews
of the law
✴ reflected ‘the changing conditions of people and of the age’
✴ change under the cover of tradition: axis of authority
remained (formally) intact, through the continued attribution
of newly formulated doctrines to the absolute master-jurists

74. author-jurist
• recorded and explained rules, principles and fatwa’s that were
relevant to contemporary needs: the ‘law books’
✴ from short treatises on specific subjects to large overviews
of the law
✴ reflected ‘the changing conditions of people and of the age’
✴ change under the cover of tradition: axis of authority
remained (formally) intact, through the continued attribution
of newly formulated doctrines to the absolute master-jurists
✴ Idea of ‘closure of the gates of ijtihad’ after 10th century has
been discredited by modern scholars

75. author-jurist
• recorded and explained rules, principles and fatwa’s that were
relevant to contemporary needs: the ‘law books’
✴ from short treatises on specific subjects to large overviews
of the law
✴ reflected ‘the changing conditions of people and of the age’
✴ change under the cover of tradition: axis of authority
remained (formally) intact, through the continued attribution
of newly formulated doctrines to the absolute master-jurists
✴ Idea of ‘closure of the gates of ijtihad’ after 10th century has
been discredited by modern scholars
• Could be a mufti, law-professor or judge (or all combined)

76. The law-professor

77. The law-professor
• teaching took place in circles or halqa’s (like
court sessions)

78. The law-professor
• teaching took place in circles or halqa’s (like
court sessions)
• teacher provided personal licenses to
successful students

79. The law-professor
• teaching took place in circles or halqa’s (like
court sessions)
• teacher provided personal licenses to
successful students
• intimate relationship with best students

80. The law-professor
• teaching took place in circles or halqa’s (like
court sessions)
• teacher provided personal licenses to
successful students
• intimate relationship with best students
• lessons open to any interested male, in
principle