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Islamic jurisprudence is a much misunderstood system. The misunderstanding is due to lack of information and to centuries of prejudice. This book seeks to present information, not at present available in a single work, on the pioneering efforts of Islamic jurists to develop a comprehensive body of human rights, principles and practice, as well as a corpus of international law principles. The attempt to develop such international law principles long anticipated any similar work in other legal or cultural systems. Human rights doctrine based upon the Qu'ran and the Sunna of the Prophet was expressed in terms which will strike the reader as surprisingly modern. In international law, Islamic treatises anticipated the work of Grotius by eight centuries. It is hoped that this systematic exposition, not attempted before in such detail, will help considerably in reducing misunderstanding and the resulting tensions, as well as being of considerable value to the Islamic world. The work will be of interest not only to lawyers, but also to philosophers, historians, sociologists, political scientists and students of international affairs.
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ISLAMIC JURISPRUDENCE
Also by C.G. Weeramantry THE LAW OF CONTRACfS, 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: Wake of Technology LAW:
Law and Human Rights in the
The Threatened Peripheries
NUCLEAR WEAPONRY AND SCIENTIFIC RESPONSIBILITY
Islamic Juris prudence 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 Al-Azhar University, Cairo
Palgrave Macmillan
ISBN 978-1-349-19458-2 ISBN 978-1-349-19456-8 (eBook) DOI 10.1007/978-1-349-19456-8 © C.G. Weeramantry 1988 Softcover reprint of the hardcover 1st edition 1988 All rights reserved. For information, write: Scholarly and Reference Division, St. Martin's Press, Inc., 175 Fifth Avenue, New York, NY 10010 First published in the United States of America in 1988
ISBN 978-0-312-01204-5 Library of Congress Cataloging-in-Publication Data Weeramantry, C. G. Islamic jurisprudence: an international perspective I C.G. Weeramantry: foreword by M. Hidayatullah: message from His Eminence the Grand Sheikh of AI-Azhar University. em. p. Bibliography: p. Includes index.
ISBN 978-0-312-01204-5: $39.95 (est.)
1. Islamic law. 2. International law (Islamic law) LAW 340.5'9-dc19
I.
Title. 87-32917 CIP
To the cause of international peace through cross-cultural understanding
Table of Contents Foreword Preface Message from His Eminence the Grand Sheikh of Al-Azhar 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
XI
xv xvii 1 1 2 3 5 8 9
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
14 14 15 17 19 26
3 The Sources of Islamic Law The Primary Sources (a) The Qur'an (b) The Sunna The Dependent Sources (a) ljma (Consensus) (b) Qiyas (Reasoning by analogy)
30 32 32 34 39 39 40
4 The Schools of Law Sunnis and Shi'ites