Chapter Seven
Religious law
Dr Khalil Hussein
Professor at Lebanese University
Director of studies at Lebanese Parliament
In the religious sense, law can be thought of as the ordering principle of reality; knowledge as revealed by God defining and governing all human affairs. Law, in the religious sense, also includes codes of ethics and morality which are upheld and required by God. Examples include customary Hindu law, Sharia (Islamic law), Halakha (Jewish law), and the divine law of the Mosaic code or Torah.
Established religions and religious institutions
State churches and similar established religions are connected to the governments that establish them. In some jurisdictions, this means that they operate legal systems of their own or play a part in the legal system of those governments. Canon law is one such sort of legal system; it was administered in ecclesiastical courts. In England, the system of equity was originally established by the Church.
Judaism
The basis of Jewish law and tradition ("halakhah") is the Torah (The Five Books of Moses). According to rabbinic tradition there are 613 commandments in the Torah, which pertain to nearly every aspect of human life. Some of these laws are directed only to men or to women, some only to the ancient priestly groups, the Kohanim and Leviyim (members of the tribe of Levi), some only to farmers within the land of Israel. Many laws were only applicable when the Temple in Jerusalem existed, and fewer than 300 of these commandments are still applicable today. Especially after the destruction of the Temple (70 C.E.), Jewish law was developed through intensive and expansive interpretation of the written Torah[1].
Halakhah , the rabbinic Jewish way of life is based on a combined reading of the Torah, and the oral tradition - the Mishnah, the halakhic Midrash, the Talmud and its commentaries. The Halakhah has developed gradually through a variety of legal and quasi-legal mechanisms, including judicial decisions, legislative enactments, and customary law. The literature of questions to rabbis, and their considered answers, is referred to as responsa (in Hebrew, Sheelot U-Teshuvot). Over time, as practices develop, codes of Jewish law were written based on Talmudic literature and responsa. The most important code, the Shulkhan Arukh, largely guides Orthodox and Conservative Judaism's religious practice today.
Christianity
Within the framework of Christianity, there are three possible definitions for law: the Torah/Mosaic Law (see Christian View of the Torah), only the instructions of Jesus (referred to by some as the Law of Christ), and canon law[2].
The Roman and Eastern Catholic, Orthodox, and Anglican Churches' have organized systems of bylaws known as canon law which are solely for the regulation of the internal affairs of the groups and not how salvation is sought in these churches.
In Christianity, law is often contrasted with grace (see also Law and Gospel): the contrast here speaks to attempts to gain salvation by obedience to a code of laws as opposed to seeking salvation through faith in the atonement made by Jesus on the cross. Compare legalism and antinomianism.
Islam
Muslims in Islamic societies have traditionally viewed Islamic law as essential to their religious outlook. Traditional Islamic law is called Shari`ah[3].
Imam Ahmad ibn Hanbal (780 - 855 CE) developed Five Basic Juristic Principles. The thought process applied by Ahmad in extrapolation of laws are as follows:
The Quran and the Sunnah were the first point of reference for all scholars of jurisprudence, and in this, Ahmad was not an exception. The Qur'an is the foremost source of Islamic jurisprudence. The Sunnah (the practices of the Prophet, as narrated in reports of his life) is not itself a text like the Qur'an, but is extracted by analysis of the Hadith (Arabic for "report") texts, which contain narrations of the Prophet's sayings, deeds, and actions of his companions he approved.
Verdicts issued by the Companions were resorted to when no textual evidence was found in the Quran or the Sunnah. The reasons for ranking the verdicts of the Companions after the Quran and the Sunnah are obvious: The Companions witnessed the revelation of the Quran, and its implementation by Muhammad. Hence, the Companions ought to have a better understanding than the latter generations. However, in a case where the Companions differed, Ahmad preferred the opinion supported by the Quran and the Sunnah.
In instances where none of the above was applicable, Ahmad would resort to the mursal Hadith with a link missing between the Successor and Muhammad or a weak hadith. However, the type of weak Hadith that Ahmad relied on was such that it may be regarded as fair hadith due to other evidences (Hasan li Ghairihi), not the type that is deemed very weak and thus unsuitable as an evidence for Law. This was due to the fact that, during his time, the Hadith was only categorised into ‘sound’ (sahih) and ‘weak’ (da’if). It was only after Ahmad, that al-Tirmidhi introduced a third category of ‘fair’ (hasan).
Only after having exhausted the aforementioned sources would Imam Ahmad employ analogical deduction (Qiyas) due to necessity, and with utmost care.
The Hanbali school alone maintained its own theological view, unlike the Hanafi school which adopted the Maturidi doctrine, or the Shafi’i and Maliki schools that adopted the Ash’ari doctrine. The copious volume of narrations from Imam Ahmad dealing with specific issues of doctrine made it extremely difficult for his followers to adhere to any other, yet still remain faithful followers.
Hindu Law
Hindu law is largely based on the Manu Smriti or 'Institutions of Manu.' It was recognized by the British after their occupation of India, but its influenced has largely waned in 20th century India with its general policies of secularization[4].
[1] Louis Jacobs ,For more see Jewish Law, Behrman House Publishing, 1972.
[2] Joseph C. Whyte (Author),Christ, Christianity, & the Catholic Religion, Beulah Outreach Ministries,2007.
[3] See Mawil Izzi Dien, Islamic Law: From Historical Foundations to Contemporary Practice, University of Notre , 2004.
[4] See for more, Essays in Classical and Modern Hindu Law, J.Duncan M. Derrett, BRILL,1995.,
Religious law
Dr Khalil Hussein
Professor at Lebanese University
Director of studies at Lebanese Parliament
In the religious sense, law can be thought of as the ordering principle of reality; knowledge as revealed by God defining and governing all human affairs. Law, in the religious sense, also includes codes of ethics and morality which are upheld and required by God. Examples include customary Hindu law, Sharia (Islamic law), Halakha (Jewish law), and the divine law of the Mosaic code or Torah.
Established religions and religious institutions
State churches and similar established religions are connected to the governments that establish them. In some jurisdictions, this means that they operate legal systems of their own or play a part in the legal system of those governments. Canon law is one such sort of legal system; it was administered in ecclesiastical courts. In England, the system of equity was originally established by the Church.
Judaism
The basis of Jewish law and tradition ("halakhah") is the Torah (The Five Books of Moses). According to rabbinic tradition there are 613 commandments in the Torah, which pertain to nearly every aspect of human life. Some of these laws are directed only to men or to women, some only to the ancient priestly groups, the Kohanim and Leviyim (members of the tribe of Levi), some only to farmers within the land of Israel. Many laws were only applicable when the Temple in Jerusalem existed, and fewer than 300 of these commandments are still applicable today. Especially after the destruction of the Temple (70 C.E.), Jewish law was developed through intensive and expansive interpretation of the written Torah[1].
Halakhah , the rabbinic Jewish way of life is based on a combined reading of the Torah, and the oral tradition - the Mishnah, the halakhic Midrash, the Talmud and its commentaries. The Halakhah has developed gradually through a variety of legal and quasi-legal mechanisms, including judicial decisions, legislative enactments, and customary law. The literature of questions to rabbis, and their considered answers, is referred to as responsa (in Hebrew, Sheelot U-Teshuvot). Over time, as practices develop, codes of Jewish law were written based on Talmudic literature and responsa. The most important code, the Shulkhan Arukh, largely guides Orthodox and Conservative Judaism's religious practice today.
Christianity
Within the framework of Christianity, there are three possible definitions for law: the Torah/Mosaic Law (see Christian View of the Torah), only the instructions of Jesus (referred to by some as the Law of Christ), and canon law[2].
The Roman and Eastern Catholic, Orthodox, and Anglican Churches' have organized systems of bylaws known as canon law which are solely for the regulation of the internal affairs of the groups and not how salvation is sought in these churches.
In Christianity, law is often contrasted with grace (see also Law and Gospel): the contrast here speaks to attempts to gain salvation by obedience to a code of laws as opposed to seeking salvation through faith in the atonement made by Jesus on the cross. Compare legalism and antinomianism.
Islam
Muslims in Islamic societies have traditionally viewed Islamic law as essential to their religious outlook. Traditional Islamic law is called Shari`ah[3].
Imam Ahmad ibn Hanbal (780 - 855 CE) developed Five Basic Juristic Principles. The thought process applied by Ahmad in extrapolation of laws are as follows:
The Quran and the Sunnah were the first point of reference for all scholars of jurisprudence, and in this, Ahmad was not an exception. The Qur'an is the foremost source of Islamic jurisprudence. The Sunnah (the practices of the Prophet, as narrated in reports of his life) is not itself a text like the Qur'an, but is extracted by analysis of the Hadith (Arabic for "report") texts, which contain narrations of the Prophet's sayings, deeds, and actions of his companions he approved.
Verdicts issued by the Companions were resorted to when no textual evidence was found in the Quran or the Sunnah. The reasons for ranking the verdicts of the Companions after the Quran and the Sunnah are obvious: The Companions witnessed the revelation of the Quran, and its implementation by Muhammad. Hence, the Companions ought to have a better understanding than the latter generations. However, in a case where the Companions differed, Ahmad preferred the opinion supported by the Quran and the Sunnah.
In instances where none of the above was applicable, Ahmad would resort to the mursal Hadith with a link missing between the Successor and Muhammad or a weak hadith. However, the type of weak Hadith that Ahmad relied on was such that it may be regarded as fair hadith due to other evidences (Hasan li Ghairihi), not the type that is deemed very weak and thus unsuitable as an evidence for Law. This was due to the fact that, during his time, the Hadith was only categorised into ‘sound’ (sahih) and ‘weak’ (da’if). It was only after Ahmad, that al-Tirmidhi introduced a third category of ‘fair’ (hasan).
Only after having exhausted the aforementioned sources would Imam Ahmad employ analogical deduction (Qiyas) due to necessity, and with utmost care.
The Hanbali school alone maintained its own theological view, unlike the Hanafi school which adopted the Maturidi doctrine, or the Shafi’i and Maliki schools that adopted the Ash’ari doctrine. The copious volume of narrations from Imam Ahmad dealing with specific issues of doctrine made it extremely difficult for his followers to adhere to any other, yet still remain faithful followers.
Hindu Law
Hindu law is largely based on the Manu Smriti or 'Institutions of Manu.' It was recognized by the British after their occupation of India, but its influenced has largely waned in 20th century India with its general policies of secularization[4].
[1] Louis Jacobs ,For more see Jewish Law, Behrman House Publishing, 1972.
[2] Joseph C. Whyte (Author),Christ, Christianity, & the Catholic Religion, Beulah Outreach Ministries,2007.
[3] See Mawil Izzi Dien, Islamic Law: From Historical Foundations to Contemporary Practice, University of Notre , 2004.
[4] See for more, Essays in Classical and Modern Hindu Law, J.Duncan M. Derrett, BRILL,1995.,
