SHARIAsource

In this excerpt, Thaʿlabī claims, on the authority of Saʿīd b. al-Musayyab, that God’s epithet al-muhayminis interpreted by some to mean “the judge” (al-qāḍī); some even consider al-qāḍīone of the beautiful names of God. In his chapter comparing earthly justice with heavenly justice in the early Islamic imagination in Justice and Leadership in Early Islamic Courts, Christian Lange uses this source, among others, to argue that although God is not referred to as qāḍīin the Quran, medieval exegetes regularly identified Him as such in their exegetical works. Lange notes, however, that the inclusion of al-qāḍīamong the divine names did not become standard.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Krasner Balbale(ILSP/HUP 2017)—a collection of primary sources and other material used in and related to the book.

This is a reference to a story about one of Jaʿfar al-Ṣādiq's slaves, together with someone else, who killed a person. When permission for retaliation was sought from al-Ṣādiq by the governor of Medina, al-Ṣādiq at first remained silent because his view was that two people could not be put to death for the murder of one person, later withdrawing his protection of his slave after the victim's family convinced the governor to put pressure on him. Hossein Modarressi cites this reference to explain that al-Ṣādiq was keenly attuned to social sensitivities.

This source is part of the Online Companion to Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Harvard University Press, 2022). 

This is a reference to Jaʿfar al-Ṣādiq's use of term Āl Umayya rather than the more common term Banū Umayya to refer to the Umayyads. Hossein Modarressi draws on this reference to make the case that al-Ṣādiq's advice to his followers to follow that which contradicts the masses had no sectarian implications; rather, it was because the Umayyads had insisted on promoting beliefs and practices that explicitly contradicted the legal legacy of the House of the Prophet. 

This source is part of the Online Companion to Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Harvard University Press, 2022).

This is a reference to a report by Jaʿfar al-Ṣādiq where he is asked about the permissibility of consuming an eel-like fish (jirrī/jirrīth); al-Ṣādiq states that eating it is impermissible based on the view of ʿAlī b. Abī Ṭālib. Hossein Modarressi cites this reference to argue that, contrary to reports found in some Sunnī works that claim that ʿAlī agreed with others on the lawfulness of eating jirrī, reports from al-Ṣādiq and his father al-Bāqir challenge the validity of this attribution.

This source is part of the Online Companion to Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Harvard University Press, 2022).

This is a reference to the opinion that held to the continuing legality of mutʿa in the first century and the first half of the second century of Islam, represented by Ibn ʿAbbās and the school of Mecca, which was also held by Jaʿfar al-Ṣādiq. Hossein Modarressi cites this reference to make the case that mutʿa was considered to be lawful and established by the Qurʾān and the Prophetic Sunna in the legal legacy of the House of the Prophet.

This source is part of the Online Companion to Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Harvard University Press, 2022). 

This is a reference to a report by Jaʿfar al-Ṣādiq that indicates the importance of performing each daily prayer in its respective best time. Hossein Modarressi cites this reference to show that, although al-Ṣāḍiq and his father al-Bāqir endorsed the practice of the Prophet that permitted combining prayers (outside of special circumstances), they also emphasized the importance of performing each prayer separately during its time. This is another example of differing legal practices between the Shīʿa and other Muslims.

This source is part of the Online Companion to Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Harvard University Press, 2022).

In this paper, Muftī Faraz Adam considers whether Bitcoin can be considered currency in Islamic law by interpreting relevant classical legal texts with the aim of identifying the principles defining money in Islamic law. He identifies three necessary elements for currency to be money: that it constitute māl (wealth), taqawwum (legal value) and thamaniyya (monetary usage in exchange markets). He determines that Bitcoin constitutes wealth (māl) and has legal value (taqawwum), However, he determines that it cannot be considered to possess valid or stable monetary usage (thamaniyya) due to its volatility and associated risks. Muftī Adam further determines that this form of cryptocurrency does not pass the principle of preservation of wealth (hifẓ al-māl) that form part of the fundamental objectives of Islamic law (maqāṣid al-sharīʿa) and its associated values of justice or equity (‘adl).

""Khan v. Hasan, the New York intermediate appellate court held that a mahr agreement under which the husband agreed to pay a sum of money to the wife in the event of divorce was unenforceable under New York state law because the verbal agreement did not conform to New York's laws on matrimonial agreements, which require such agreements to be in writing. The Court further held with regard to the question of applying Islamic law to interpret the alleged agreement: 'It is without question that when courts must touch upon questions of religious concerns, they may not consider religious doctrine.'"

In these excerpts, Ṭabarī comments on the kinds of “exposures” or “showings” (ʿaraḍāt) that are implied inQ. 69:18 (“On that day you will be exposed; no secret of yours will be concealed”) by presenting the opinions of Ibn Masʿūd, al-Ḥasan al-Baṣrī, and al-Ḍaḥḥāk. These opinions include terms such as disputation (jidāl), excuses (maʿādhīr), arguments (khuṣūmāt), and the flying of scrolls (taṭāyur al-ṣuḥuf). In his chapter comparing earthly justice with heavenly justice in the early Islamic imagination in Justice and Leadership in Early Islamic Courts, Christian Lange draws parallels between these procedures of heavenly judgment and those encountered in earthly courtrooms to argue that exegetes imagined the heavenly courtroom along lines similar to its earthly counterpart. But there were differences as well. Regarding the procedure for witness testimony as mentioned in Q. 82:11 (“Over you are guardians, noble, recording [kātibīna]”), Ṭabarī explains that these guardians record what humans say and intend. Ṭabarī’s explanation thus distinguishes heavenly judgment from earthly judgment, in which intentions are not taken into account. Lange also argues that exegetes such as Ṭabarī made sure to avoid anthropomorphic interpretations of the verses. For instance, Ṭabarī deploys a Prophetic ḥadīth, “This is not a reckoning, it’s a [simple] exposure (ʿarḍ),” to avoid interpreting Q. 84:7–9 (“As for one who is given his book in his right hand, he will be reckoned with an easy reckoning and will return to his people joyful”) in anthropomorphic terms.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Krasner Balbale(ILSP/HUP 2017)—a collection of primary sources and other material used in and related to the book.

In this excerpt, Ṭabarī comments on the meaning of Q. 50:21, “Every soul shall come, and with it a driver (sāʾiq) and a witness (shahīd).” Ṭabarī adduces reports on the authority of Qatāda and Mujāhid specifying what the “driver” (sāʾiq) is. For Qatāda, the sāʾiqis one who drives people to their reckoning (ḥisāb), whereas Mujāhid identifies the sāʾiqas a scribe (kātib). In his chapter comparing earthly justice with heavenly justice in the early Islamic imagination in Justice and Leadership in Early Islamic Courts, Christian Lange uses these reports to highlight parallels between the functionaries of the heavenly court and those found in earthly courtrooms, noting that Qatāda’s interpretation of sāʾiq brings to mind a court sheriff (jilwāz) who coerces recalcitrant litigants to appear before a judge, while Mujāhid’s scribe was an established functionary of the court by the end of the first century of Islam. Nevertheless, there were also more abstract presentations that aimed to avoid interpreting the verse in anthropomorphic terms. Ṭabarī provides an alternative report on the authority of Mujāhid that claims that the people are actually “driven” to God’s command (amr).

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Krasner Balbale(ILSP/HUP 2017)—a collection of primary sources and other material used in and related to the book.

In its judgment dated October 10, 2023, the Constitutional Court of South Africa (the "Court") interpreted section 7(3) of South Africa's Divorce Act. The relevant provision allowed redistribution orders from one spouse to another in marriages that took place "out of the community of property," where marital assets are kept separate between the spouses at all times. Instead, the section introduced an "accrual system" for out-of-community property marriages, allowing spouses, in the event of the marriage's dissolution, to claim from the other spouse some of the assets accruing during the marriage as equitable relief. While the section has been lauded for protecting financially vulnerable spouses, especially those whose domestic and reproductive labor went unnoticed, the Court still invalidated the section to the extent that it excluded two groups from its coverage: (1) spouses who married out of the community of property without accrual after November 1, 1984 (the section's cut-off date) and whose marriage ended through divorce; and (2) spouses who married out of the community of property without accrual before or after November 1, 1984, and whose marriages ended through death.

The Court's judgment has been interpreted as extending the accrual system protections to these two groups. One commentator, Waheeda Amien (University of Cape Town), noted in her contribution to The Conversation: "The Court's judgment will provide much-needed financial relief to spouses whose marriages out of the community of property without accrual end, regardless of when the parties were married or how the marriage ended."  The same piece also noted the impact of the judgment on Muslim marriages in South Africa: now, spouses in Muslim marriages that are out of community of property without accrual, too, will be able to ask courts to order the redistribution of marital assets in the event the marriage ends. 

This Country Profile provides a basic overview of the legal history and institutional structures of the Union of the Comoros (Udzima wa Komori (Comorian); Union des Comores (French); Jumhuriyat al Qamar al Muttahidah (Arabic)), based on research produced by the Library of Congress. Under Comoros' Constitution, Islamic law (sharīʿa or fiqh) has legal status. 

This Country Profile provides a basic overview of the legal history and institutional structures of the Kingdom of Saudi Arabia (Al Mamlakah al Arabiyah as Sa'udiyah), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Saudi Arabia's Constitution, Islamic law (sharīʿa or fiqh) is the primary source of legislation.  

This Country Profile provides a basic overview of the legal history and institutional structures of the Kingdom of Bahrain (Mamlakat al Bahrayn), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Bahrain’s Constitution, Islamic law (sharīʿa or fiqh) has legal status, and is the principal source of legislation.

Islamic finance creates financial products specifically aimed at Muslims that are sharīʿa compliant. Many scholars have condemned Islamic finance for condemning ribā (interest) on the one hand, particularly where usurious, but then many others have created workarounds that allow modern big-finance firms to avoid it in name only on the other hand. Those who argue against the workaround argue that nominal interest-avoidance goes against the spirit of the guidelines set forth in Islamic law (sharīʿa). Weighing in on the controversy, University of Toronto Law Professor Mohammad Fadel considers whether ribā might serve a function that goes beyond simple definitions of it as either interest or usury. Historically, the prohibition on interest was a means of regulating medieval financial industries, in ways that have little application to the modern financial instruments. The medieval prohibitions and the modern controversies about Islamic finance then, he argues, are misaligned and need rethinking. This post provides a "plain English" review of the article: Mohammad H. Fadel, Ribâ, Efficiency and Prudential Regulation: Preliminary Thoughts, 25 Wisconsin Journal of International Law 655 (2008).

This qanun was devised to foster and maintain the Islamic beliefs and religiosity of the individual and society in Aceh, providing legislative protection from misguided teachings. Crucially, at art 1(7), the qanun defines as Islamic creed (Aqidah Islamiah) a conservative interpretation of al-sunna wa'l-jama'a (Sunni Islam). It also seeks to increase understanding and the practice of worship, as well as the availability of appropriate places of worship. The qanun authorises the shari'a police (Wilayatul Hisbah) to conduct surveillance to ensure adherence thereto, and grants prosecutorial powers to general prosecutors to investigate and refer cases to the shari'a courts (Mahkamah Syar'iyah) in the event of a breach. Conduct punishable pursuant to this qanun includes disseminating un-Islamic teachings, apostasing, failing to attend Friday prayers (shalat jum'at) three times consecutively, and failing to provide prayer facilities. Punishment can include caning or imprisonment.

This fatwa states that the Universal Declaration of Human Rights accords with the aims and values of Islamic teachings, which protect the rights of every person to life and dignity. It qualifies, however, that the following articles of the Declaration are contrary to Islam:

1. art 16(1) and (2) on the freedom to marry without limitation due to nationality, race or religion;
2. art 18 on the freedom to change religion; and
3. art 23 on work.

The fatwa obliges Muslims to accept, respect and uphold universal human rights with the following conditions:

1. to value and respect differences of understanding, interpretations and implementation of human rights based on differences of culture, morality and laws in each country; and
2. an understanding and implementation of human rights must show a balance between individual rights and individual obligations, individual rights and communal rights, and freedoms and responsibilities.

The fatwa also states that, in relation to arts 16(1) and (2) and 18 of the Universal Declaration of Human Rights, Muslims are to adhere to Islamic teachings as freedom of religion is a human right.

This fatwa acknowledges the recent development of a stream of Islamic leadership established by Ahmad Moshaddeq which teaches a creed (syahadat) that differs from traditional Islamic teachings. The fatwa finds that, contrary to Islamic teachings, this new stream of Islam:

1. states: "Asyhadu alla ilaha illa Allah wa asyhadu anna masih al-Mau'ud Rasul Allah" ("I bear witness that there is no God except Allah, and I bear witness that the promised Messiah is the Messenger of God");
2. teaches that there is a new prophet/messenger (nabi/rasul) who came after the Prophet Muhammad SAW; and
3. does not oblige its followers to pray (shalat), fast (puasa) or perform the hajj (haji).

The fatwa declares that followers of this particular stream of Islam are apostates (murtad). It also urges the government to prohibit the dissemination of this interpretation of Islam, to close all places associated with it, and to silence its leadership, pursuant to current legislative provisions.

Amina Lawal appealed her zinā (fornication) conviction by the lower court on several grounds, including: the inconclusive proof of zinā by the appellant's pregnancy because she had been married within the previous five years; the improper constitution of the Court as the kadi (qāḍī) had sat alone, without two other members, as required by law; and the invalidity of the appellant's confession by the failure of the Court to explain the meaning of zinā. Along with the grounds of appeal, the appellant’s counsel tendered a retraction of the confession that was made before the lower court. All grounds of the appeal failed. The Court held that the appellant’s confession before the lower court was valid as her testimony there indicated that she understood the meaning of zinā. This valid confession coupled with her failure to assert that her divorced husband fathered the child constituted proof of commission of zinā. The Court determined that sharīʿa (based on its understanding of Qurʾān, ḥadīth [prophetic reports], ijmāʿ [consensus], ijtihād [interpretation], and ʿurf [custom]) is supreme and overrides legislative enactments on the composition of the court. Therefore, the failure of the trial court to be constituted as required by legislation does not invalidate the decision, because the decision was issued in compliance with the dictates of sharīʿa. Amina Lawal successfully appealed this decision to the Sharia Court of Appeal.

In this excerpt of his compendium of law-related ḥadīth reports, al-Ṣanʿānī (d.211/827) relays prophetic sources on various topics, among them an ambiguous ḥadīth on the criterion for witness eligibility, which states that, “No community may testify against another, except the community of Muḥammad.” Ahmed El Shamsy notes in Justice and Leadership in Early Islamic Courts that this verse is legally ambiguous. Later authorities debate its correct interpretation. While it is widely agreed that non-Muslims are ineligible to serve as witnesses against Muslims, some argue that in certain circumstances a scripturalist (generally defined as Jews and Christians) might testify against another scripturalist. Notably, Ṣanʿānī is the only source which transmits this ḥadīth, and it is not included in the work of his contemporary Ibn Abī Shayba.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts (ILSP/HUP 2017)—a collection of sources and other material used in and related to the book.