Islamic Jurisprudence: An International Perspective

\N INTERNATIONA PERSPECTIVE C. G. WEERAMANl ISLAMIC JURISPRUDENCE Also by C. G. Weeramantry THE LAW OF CONTRACTS Being a comparative study of the Roman-Dutch, English and customary laws of contract in Ceylon THE LAW IN CRISIS: Bridges of Understanding EQUALITY AND FREEDOM: Some Third World Perspectives HUMAN RIGHTS IN JAPAN APARTHEID: The Closing Phases? AN INVITATION TO THE LAW THE SLUMBERING SENTINELS: Law and Human Rights in the Wake of Technology LAW: The Threatened Peripheries NUCLEAR WEAPONRY AND SCIENTIFIC RESPONSIBILITY: An International Perspective r, I. Islamic Jurisprudence An International Perspective c. G. Weeramantry Professor of Law, Monash University, Australia formerly Justice of the Supreme Court of Sri Lanka Foreword by M. Hidayatullah formerly Chief Justice and Vice-President of the Republic of India Message from His Eminence the Grand Sheikh of AI-Azhar University, Cairo M MACMILLAN PRESS * © c. G. Weeramantry 1988 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright Act 1956 (as a~ended), or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 33-4 Alfred Place, London WC1E 7DP. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. First publi!Jlhed in 1988 Published by THE MACMILLAN PRESS LTD Houndmills, Basingstoke, Hampshire RG21 2XS and London Companies and representatives throughout the world Printed in Hong Kong British Library Cataloguing in Publication Data Weeramantry, C. G. Islamic jurisprudence: an international perspective 1. Islamic law I. Title 340.5'9 [LAW] ISBN 0-333-44668-2 To the cause of international peace through cross-cultural understanding Table of Contents Foreword Preface Message from His Eminence the Grand Sheikh of A I-A zhar University 1 The Origins of Islamic Law The Shari'a Arabia Before and After Islam The Prophet Muhammad The Qur'an Submission to God The Territorial Expansion of Islamic Law 2 The Arabic Resurgence of Learning The Explosion of Knowledge Arabic Libraries The Synthesis of Knowledge The Entry of Arabic Knowledge into the West The Religious Stimulus to Learning The Place of Jurisprudence in the Realm of Knowledge 3 The Sources of Islamic Law The Primary Sources (a) The Qur'an (b) The Sunna The Dependent Sources (a) /jma (Consensus) (b) Qiyas (Reasoning by analogy) 4 The Schools of Law Sunnis and Sri'ites The Sunni Schools (a) The Hanafi School (b) The Malikite School (c) The Shafi'ite School (d) The Hanbalite School xi xv xvii 1 1 2 3 5 8 9 14 14 15 17 19 26 27 301 32 32 34 39 39 40 I. !r (;., I ----f,..i 46 47 49 49 51 52 54 vii I Contents viii Institutions of Learning The Role of the Jurist The Legal Profession 54 55 56 5 Some Basic Islamic Legal Ideas 59 59 ~6· == The Notion of Sharing The Notion of Caring The Notion of Trusteeship of Property The Notion of Brotherhood and Solidarity The Notion of Universalism The Notion of Fair I