The Islamic Legal System

1.) Comparative legal perspective

Western legal system Islamic legal system

Christianity was born in an organised state Islam was born amidst a series of wars
with a considerable legal tradition (Roman between two Empires (Byzantine and
Empire). Its later development took place inSasanian), non of which exercised practical
the very core of that state. (Rome) authority on the Arabian Peninsula.
no need to organize a state -> urgent need to organise a state and a legal
system ->
Religion played a minor role in forming the Religion had a considerable role in the
Western legal system. formation of law.
Christianity modelled its centralised Centralisation of religious governance was
governance after Rome. (First significant impeded by frictions few decades after the
schism appeared after 1.000 years) death Muhammad.
orthodoxy orthopraxy (and orthodoxy)

philosophy as the mother of sciences law as the primary and dominant discipline

separation of the Church and the State no such separation -> theocratic way of
development

2.) Historical course of development (public law – Islam and the State)
- circumstances of the birth of Islam and the first Islamic state (war and trade)
- Constitution of Medina
- the role of Muhammad and the first four Caliphs - tribal confederation
- expansion and dynamism as a prerequisite of the successful early Islamic state
- Umayyad and Abbasid Caliphate as a ‘beadlike geopolitical structure’
- Sunni and Ottoman Caliphates
- 100 years without a Caliph in the 20th century and the characteristics of ISIS

3.) Islamic private law

- the importance of Mesopotamian legal heritage
- usul al-fiqh: theoretical reflection on legal categories
- the classification of deeds in Islamic law:
- fard (obligatory): shahada (declaration of faith), salat (prayer), sawm (fasting),
zakat (taxation of wealth), hajj (pilgrimage to Mecca) – these are the Five Pillars of
Islam + some add jihad (fight against the evil)
- mustahabb (recommended): areas which belong to civil law in the West
- muhab (indifferent): behaviours without much legal significance
- makruh (discouraged): not sinful in itself, but might result criminal liability
- haraam (forbidden): all actions expressly forbidden by the Quran
- sources of Islamic law
- primary sources: 1.) Quran 2.) Interpretation of the Sunnah (Muhammad’s
practices) – the Hadiths
- auxiliary sources: 1.) Ijma (consensus or individual reasoning by Muhammad’s
authoritative contemporaries) 2.) Qiyas (analogy) 3.) Istihsan (Islamic jurists’
works) 4.) Istihab (pre-Islamic traditions if they are in line with the Quran)