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Islamic Law: Jurists
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Islamic Law rests upon a set of stable, unchanging principles derived from the Quran and Sunnah. The texts of the Quran and Sunnah have been most carefully and accurately recorded and preserved. Most of these texts contain general injunctions for legislation without going into the precise details relating to application. This affords the jurist broad powers of discretion that allow him to take ever-changing circumstances into consideration.
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During the first decades after the Prophet’s death, an Islamic polity took shape, guided by both the Quranic legal ethic and the customary laws of the Peninsular Arabs – laws that underwent a gradual transformation under the influence of emerging religious values. Chapter 2 provides a sketch of the evolving legal culture as reflected in the transformations that took place in the office of the proto-qāḍīs, the earliest quasi-judges of Islam. The increasing specialization of this office as a judicial function represents an index of the evolution of an Islamic legal ethic, signified by the concomitant rise of Prophetic authority. Chapter 3 continues this theme by exploring the emergence of the so-called legal specialists, a group of men who in their private lives elaborated a legal doctrine that became the juristic foundation of legal practice. With the rise of the class of legal specialists at the end of the first century H and the beginning of the next (ca. 700–40), there again occurred a concomitant development in the construction of Prophetic authority, represented by the emergence of ḥadīth, the verbal expression of the Prophetic model.
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The cases handled by way of analogy in Islamic Law are too numerous to count. The greater portion of Islamic legislation is made up of these cases. Analogy continues to be used for every new issue that is not directly addressed by the sacred texts. For example, the texts that deal with injunctions pertaining to an agreement of sale are more than those that deal with a lease agreement. Consequently, the jurists, by way of analogy, took many of the injunctions referring to sales and applied them to lease agreements due to the fact leasing is essentially the sale of rights and benefits.
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“Islamic law is not just about these rules about cutting hands off thieves or discriminating against women. It’s a living tradition in which jurists are trying to embrace and engage in active acts of interpretation,” Mr. Emon says.
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