Crisis of legitimate lawgiver in islam Legal Anthropology of Islamic Law in the formation Period

Azarinia, Hamidreza; Bahramlou, Ihsan

Crisis of legitimate lawgiver in islam Legal Anthropology of Islamic Law in the formation Period

Document Type : Original Research

Authors

Hamidreza Azarinia ¹

ihsan bahramlou ²

¹ Anthropology PhD, University of Tehran

² History of Islam MA, University of Tehran

Abstract

In this article, through anthropological analysis, the aim is to show that the nascent Muslim society was composed of two legal agencies: the prophetic agency and the tribal agency. The prophetic agency believed that the exclusive lawgiver of Islam is the Prophet. The tribal agency consisted of the Arabs who followed the Prophet in his territory because of his dominant power. Their commitments to the Prophet and his practices were a traditional loyalty to the chief of the tribe, not faithful subordination. Muhammad’s Sunna as a community leader and his successor’s sunan as the chief of the community were almost at the same level in the context of tribal culture. The variation of views on the sources of Islamic law and legitimate legislation developed two different legal logics (Usul Al-Fiqh). For the prophetic agency, legislative interpretations and sanctions must be ascribed to the Prophet. According to tribal culture, collective minds (ijma) and rational legal thinking (Ra’y) were the logic of customary law. Hence, the “attribution logic” and “rational logic” were the base of the formation of different Islamic legal schools in the next decades.

Keywords

History of Fiqh, Historical Anthropology, Islamic law, Anthropology of Law,Nikah Mut'ah, Mut'ah of Hajj, Prophet's Sunnah, compani ons

Subjects