Sharia is the body of Islamic law.
Linguistically speaking, the word shari’a has two meanings. The first is “a source of flowing water meant for drinking.” Secondly, it means a “straight and unwavering path,” as God Almighty says, “And now we have set thee on a shari’a, so follow it.” (Al-Jathiya: 18).
Thereafter, shari’a came to express, in the language of the jurists, the rulings prescribed by God for His servants, so that they may become proper believers. These rulings are known as the shari’a because they are decisive
There is no deviance from their program, nor divergence from their objectives.
Tashri’ is the enacting of the shari’a, that is to say, the setting down of its principles and explication of the order and system that both individuals and groups are to comply with. Of course, in this manner of speaking, the Islamic legislation properly existed only in the lifetime of the Prophet (upon him be peace), because God has not given the power of legislation to other than his prophet. In this, the Prophet relied on two types of revelation: “the recited”, i.e., the Qur’an itself; and “the unrecited”, i.e., the sunna.
Based on this, it might be said that “the history of Islamic legislation” refers only to that which took place during the Prophet’s life, and does not include the many discrete rulings which thereafter revealed themselves to the minds of the mujtahids. However, the scholars have tended to expand the referent of this branch of knowledge. As Shaykh Muhammad Ali al-Sayis says, “The history of Islamic legislation is a discipline in which is treated the nature of Islamic law during the lifetime of the Prophet, as well as in subsequent eras. It specifies the different time periods in which rulings came to be, and elucidates what occurred during them with respect to abrogation, specification, expansion, etc. It also discusses the jurists and mujtahids and their relationship to these rulings.”
The Difference Between Heavenly Legislation and Positive Legislation
The Islamic shari’a is a heavenly law, meaning that it comes from God Himself. The differences between it and the positive law created by humans are as follows:
1. The shari’a is a sacred religious law, through which one is taught how to worship God, compliance with which is considered obedience to God deserving of reward, and violation of which is sinful disobedience meriting punishment. Although it may also specify worldly punishments, it is connected to the afterlife in terms of reward and punishment, as opposed to positive legislation which does not deal with what is in people’s hearts.
2. Islamic law seeks to elevate man, purify his heart, and refine his soul. Positive legislation simply strives to regulate society without regard to individual’s character and ethics.
3. Islamic law commands the good and forbids the evil, whereas positive legislation is concerned only with prohibitions. It does not compel good works except incidentally.
4. Islamic legislation pronounces on both the internal and external actions of man, whereas positive law restricts itself to the external and observable.
5. The principles of shari’a do not apply to one people to the exclusion of another, or to one time period to the exclusion of another. They are universal principles seeking to fulfill the needs of all people, and raise their standing in all eras. As for positive legislation, it is specific to a given group in a given time, and so is in need of change whenever that constituency evolves and their particular demands change.
The Sources of Islamic Legislation
1. The First Source: The Qur’an
Definition: The Qur’an is “revealed speech which is inimitable, whose recitation is considered worship, and which has been mass-transmitted to us.” It is definitively authentic (qat’i al-thubut), though some of its verses may not be definitive in their meaning (qat’i al-dalala), but only probable. The word of God, i.e, the Qur’an is absolute; that is to say, it is independent of time and place; it addresses all, not just those at the time of the Prophet, nor simply those in the Arabian peninsula.
The Meccan and Medinese verses, and the features of each: The Qur’an was revealed to the Prophet in portions over twenty-three years, the majority of which he spent in Mecca. As Allah says, “(It is) a Qur’an that We have divided, that thou mayst recite it unto mankind at intervals.” (al-Isra’: 106).
For this reason, scholars have partitioned the Qur’an into two phases, the Meccan and Medinese, though they have differed on the precise criteria for this categorization.
The first and best-known opinion is that the Meccan is that portion of the Qur’an revealed before the Prophet’s migration (hijra), and the Medinese is that which is revealed after it even if it was technically revealed in Mecca. The second opinion is that the Meccan is whatever was revealed in Mecca even if it was after the hijra, and the Medinese is that which was revealed after the hijra. The third opinion is the Meccan is that which is addressed to the people of Mecca, and the Medinese is that which is revealed to the people of Medina.
The benefits of understanding this categorization are the following:
1. We come to know which verses came later, and so may reliably consider some to abrogate or specify others.
2. We come to know the history of legislation, and the wisdom of its gradualness.
3. We come to develop a confidence in the Qur’an, and its sound transmission to us without any forgeries or changes.
Anyone who has read the Qur’an will have noticed that the Meccan verses have their own specificities and characteristics not found in the Medinese, even though the latter are an extension of the former in terms of rulings and legislation. Because the pre-Islamic Arabs would worship idols, associate partners (shirk) with Allah, deny the Day of Judgement, and because their eloquence was well-known, the Meccan revelation was concerned with addressing them with that which was appropriate for their situation; i.e., providing proofs and clear-cut arguments in an effort to invite them to monotheism, to make clear their evil ways, to prove prophethood, to offer them parables, to admonish with lessons from previous nations, to establish proofs for creation, and to engage in rational debate.
It is only upon the formation of a group of believers in Allah, His angels, His scriptures, His messengers and the Day of Judgement, and their subsequent enduring of difficulties, and migration to Medina, that the Medinese Qur’an was revealed, comprising the rulings of Islam, and its limits and punishments; explaining the principles of legislation; setting out rules for society, relationships between family members, and the connection between individuals and groups.
The term means “way” or “path”; it is the legal framework within which public and some private aspects of life are regulated for those living in a legal system based on Muslim principles of jurisprudence. It is not actually part of the canonical Qur’an; that is to say, it is not believed to be the direct word of Allah by Muslims, but rather the interpretation of it. Sharia deals with many aspects of day-to-day life, including politics, economics, banking, business law, contract law, sexuality, and social issues. Some Islamic scholars accept Sharia as the body of precedent and legal theory established before the 19th century, while other scholars view Sharia as a changing body, and include Islamic legal theory from the contemporary period.There is not a strictly codified uniform set of law pertaining to Sharia. It is more like a system of devising laws, based on the Qur’an, Hadith and centuries of debate, interpretation and precedent. Sharia has been defined as-
“Muslim or Islamic law, both civil and criminal justice as well as regulating individual conduct both personal and moral. The custom-based body of law based on the Koran and the religion of Islam. Because, by definition, Muslim states are theocracies, religious texts are law, the latter distinguished by Islam and Muslims in their application, as Sharia or Sharia law.”
- “a discussion on the duties of Muslims,” —Hamilton Alexander Rosskeen Gibb
- “a long, diverse, complicated intellectual tradition,” rather than a “well-defined set of specific rules and regulations that can be easily applied to life situations,”— Hunt Janin and Andre Kahlmeyer.
- “a shared opinion of the [Islamic] community, based on a literature that isextensive, but not necessarily coherent or authorized by any single body,” —Knut Vikor.
- “the real effective way out of all sufferings and problems,” —the Muslim Brotherhood, in its pamphlet, “Initiative”
Mainstream Islam distinguishes between fiqh (deep understanding, discernment), which refers to the inferences drawn by scholars, and sharia, which refers to the principles that lie behind thefiqh. Scholars hope that/iqh (jurisprudence) and sharia (law) are in harmony in any given case, but they cannot be sure.
Sharia has certain laws which are regarded as divinely ordained, concrete and timeless for all relevant situations (for example, the ban against drinking liquor as an intoxicant). It also has certain laws which derived from principles established by Islamic lawyers.
Origins of Sharia Law:
At the heart of sharia law lies the teachings of Allah and the acts and sayings of Prophet, Muhammad therefore, sharia, is founded on the Qur’an and the Sunnah. Sharia was not fully developed at the time of Muhammad’s death, but rather it evolved around the Muslim community or Ummah through which it would serve.
When sharia began its formation in the deserts of Arabia about 1,400 years ago, the time Islam was born, a sense of community did not exist. Life in the desert was nomadic and tribal, thus the only factor that tied people together into various tribes was through common ancestry.The nature of Islam challenged that ideology and brought all those who professed their submission to Islam into the Ummah. Additionally, Islam was not just a religion but a way of life that transformed those who were once enemies intonejghbors. Laws had to be instilled so the doctrines of sharia took root. All who are Muslim are judged by sharia -regardless of the location or the culture.
People do not change overnight nor do their habits of everyday life – sharia was indeed guided through its development by lifestyles of the tribes in which was initially absorbed into Islam. Thus, through the understandings of the tribe sharia law would be a law of the community – for the community by the community – even if initially proposed by an individual “for they could not form part of the tribal law unless and until they were generally accepted as such.” Additionally, Noel James Coulson, Lecturer in Islamic Law of the University of London, states that “to the tribe as a whole belonged the power to determine the standards by which its members should live. But here the tribe is conceived not merely as the group of its present representatives but as a historical entity embracing past, present, and future generations.” So, while “each and every law must be rooted in either the Quran or the Sunna,” without contradiction, tribal life brought about a sense of participation. Such participation is further reinforced by Muhammad who stated, “My community will never agree in error” and thus, later recorded as a hadith.
After the death of Muhammad sharia continued to undergo fundamental changes, beginning with the reigns of caliphs Abu Bakr (632-34) and Umar (634-44) in which many decision making matters were brought to the attention of the Prophet’s closest comrades for consultation. In AD 662, during the reign of Mu’awiya b. Abu Sufyan, life ceased to be nomadic and undertook an urban transformation which in turn created matters not originally covered by sharia law. Each and every gain, loss, and turn of Islamic society has played an active role in developing sharia which branches out into fiqh and Qanun respectively.
Sources of Sharia Law:
- Primary Sources
- a) First Primary Sources (The Quran):
The Qur’an is the first and most important source of Islamic law. Believed to be the direct word of God as revealed to Muhammad through angel Gabriel in Mecca and Medina, the scripture the specific moral, philosophical, social, political and economic basis on which a society should be constructed. The verses revealed in Mecca deal with philosophical and theological issues, whereas those revealed in Medina are concerned with socio-economic laws. The Qur’an was written and preserved during the life of Muhammad, and compiled soon after his death Muslim jurists agree that the Qur’an in its entirety is not a legal code (used in the modern sense); rather its purpose is to lay down a way of life which regulates man’s relationship with others and God. The verses of the Qur’an are categorized into three fields: “science of speculative theology”, “ethical principles” and “rules of human conduct”. The third category is directly concerned with Islamic legal matters which contains about five hundred verses or one thirteenth of it. The task of interpreting the Qur’an has led to various opinions and judgments. The interpretations of the verses by Muhammad’s companions for Sunnis and Imams for Shias are considered the most authentic, since they knew why, where and on what occasion each verse was revealed.
- b) Second Primary Source (The Sunnah):
The Sunnah is the next important source, and is commonly defined as “the traditions and customs of Muhammad” or “the words, actions and silent assertions of him”. It includes the everyday sayings and utterances of Muhammad, his acts, his tacit consent, and acknowledgments of statements and activities. According to Shi’ite jurists, the sunnah also includes the words, deeds and acknowledgments of the twelve Imams and Fatimah, Muhammad’s daughter, who are believed to be infallible.
Justification for using the Sunnah as a source of law can be found in the Qur’an. The Qur’an commands Muslims to follow Muhammad During his lifetime, Muhammad made it clear that his traditions (along with the Qur’an) should be followed after his death. The overwhelming majority of Muslims consider the sunnah to be essential supplements to and clarifications of the Qur’an. In Islamic jurisprudence, the Qur’an contains many rules for the behavior expected of Muslims but there are no specific Qur’anic rules on many religious and practical matters. Muslims believe that they can look at the way of life, or sunnah, of Muhammad and his companions to discover what to imitate and what to avoid.
Much of the sunnah is recorded in the Hadith. Initially, Muhammad had instructed his followers not to write down his acts, so they may not confuse it with the Qur’an. However, he did ask his followers to disseminate his sayings orally. As long as he was alive, any doubtful record could be confirmed as true or false by simply asking him. His death gave rise to confusion over Muhammad’s conduct. Thus the Hadith were established.Due to problems of authenticity, the science of Hadith (Arabic: “Ulum al-hadith) is established. It isa method of textual criticism developed by early Muslim scholars in determining the veracity of reports attributed to Muhammad. This is achieved by analyzing the text of the report, the scale of the report’s transmission, the routes through which the report was transmitted, and the individual narrators involved in its transmission. On the basis of these criteria, various Hadith classifications developed.
To establish the authenticity of a particular Hadith or report, it had to be checked by following the chain of transmission (isnad). Thus the reporters had to cite their reference, and their reference’s all the way back to Muhammad. All the references in the chain had to have a reputation for honesty and possessing a good retentive memory. Thus biographical analysis (‘Urn al-rijal, lit. “science of people”), which contains details about the transmitter are scrutinized. This includes analyzing their date and place of birth; familial connections; teachers and students; religiosity; moral behaviour; literary output; their travels; as well as their date of death. Based upon these criteria, the reliability (thiqaj) of the transmitter is assessed. Also determined is whether the individual was actually able to transmit the report, which is deduced from their contemporaneity and geographical proximity with the other transmitters in the chain Examples of biographical dictionaries include Ibn Hajar al-Asqalani’s “TahdhTb al-Tahdhib” or al-Dhahabi’s “Tadhkiratal-huffaz.”
Using this criteria, Hadith are classified into three categories
- Undubitable (mutawatir), which are very widely known, and backed up by numerous references.
- Widespread (mashhur), which are widely known, but backed up with few original references.
- Isolated or Single (wahid), which are backed up by too few and often discontinuous references.
- Secondary Sources:
The Consensus of opinions of the Muslim scholars. All medieval Muslim jurists rejected arbitrary opinion, and instead developed various secondary sources, also known as juristic principles or doctrines to follow in case the primary sources (i.e. the Qur’an and Sunnah) are silent on the issue
- a) Consensus (Ijma)
- b) Analogical deduction (Qiyas)
- c) Preference (istihsan)
- d) Public good(al-maslaha al-mursalah)
- e) Reason (Ijtihad)
- f) Common practice (Urf)
(a) Consensus (Ijma):
The ijma’, or consensus amongst Muslim jurists on a particular legal issue, constitutes the third source of Islamic law. Muslim jurists provide many verses of the Qur’an that legitimize ijma’ as a source of legislation. Muhammad himself said:
- “My followers will never agree upon an error or what is wrong”,
- “God’s hand is with the entire community”.
In history, it has been the most important factor in defining the meaning of the other sources and thus in formulating the doctrine and practice of the Muslim community. This is so because ijma’ represents the unanimous agreement of Muslims on a regulation or law at any given time.
There are various views on ijma’ among Muslims. Sunni jurists consider ijma’ as a source, in matters of legislation, as important as the Qur’an and Sunnah. Shiite jurists, however, consider ijma’ as source of secondary importance, and a source that is, unlike the Qur’an and Sunnah, not free from error. Ijma’ was always used to refer to agreement reached in the past, either remote or near.
(b) Analogical deduction:
Qiyas or analogical deduction is the fourth source of Sharia for the Sunni jurisprudence. Shiites do not accept qiyas, but replace it with reason (aql). Qiyas is the process of legal deduction according to which the jurist, confronted with an unprecedented case, bases his or her argument on the logic used in the Qur’an and Sunnah. Qiyas must not be based on arbitrary judgment, but rather be firmly rooted in the primary sources.
Supporters of qiyas will often point to passages in the Qur’an that describe an application of a similar process by past Islamic communities. According to Hadith, Muhammad said: “Where there is no revealed injunction, I will judge amongst you according to reason. Further, he extended the right to reason to others. Finally, qiyas is sanctioned by the ijma, or consensus, amongst Muhammad’s companions.
The success and expansion of Islam brought it into contact with different cultures, societies and traditions, such as those of Byzantines and Persians. With such contact, new problems emerged for Islamic law to tackle. Moreover, there was a significant distance between Medina, the Islamic capital, and the Muslims on the periphery on the Islamic state. Thus far off jurists had to find novel Islamic solutions without the close supervision of the hub of Islamic law (back in Medina). During the Umayyad dynasty, the concept of qiyas was abused by the rulers. The Abbasids, who succeeded the Ummayads defined it more strictly, in an attempt to apply it more consistently.
The general principle behind the process of qiyas is based on the understanding that every legal injunction guarantees a beneficial and welfare satisfying objective. Thus, if the cause of an injunction can be deduced from the primary sources, then analogical deduction can be applied to cases with similar causes. For example, wine is prohibited in Islam because of its intoxicating property. Thus qiyas leads to the conclusion that all intoxicants are forbidden.
The Hanafi school of thought very strongly supports qiyas. Imam Abu Hanifa, an important practitioner of qiyas, elevated qiyas to a position of great significance in Islamic law. Abu Hanifa extended the rigid principle of basing rulings on the Qur’an and Sunnah to incorporate opinion and exercise of free thought by jurists, hi order to respond suitably to emerging problems, he based his judgments, like other jurists, on the explicit meanings of primary texts (the Qur’an and sunnah). But, he also considered the “spirit” of Islamic teachings, as well as the whether the ruling would be in the interest of the objectives of Islam. Such rulings were based on public interest and the welfare of the Muslim community
- c) Preference (istihsan):
Abu Hanifa developed a new source called istihsan, or juristic preference, as a form of analogical deduction (qiyas). Istihsan is defined as:
- Means to seek ease and convenience,
- To adopt tolerance and moderation,
- To over-rule analogical deduction, if necessary.
The source, inspired by the principle of conscience, is a last resort if none of the widely accepted sources are applicable to a problem. It involves giving favor to rulings that dispel hardship and bring ease to people. This doctrine was justified directly by the Qur’an: “Allah desires you ease and good, not hardship”. Though its main adherents were Abu Hanifa and his pupils (such as Abu Yusuf), Malik and his students made use of it to some degree. The source was subject to extensive discussion and argumentation, and its opponents claimed that it often departs from the primary sources.
This doctrine was useful in the Islamic world outside the Middle East where the Muslims encountered environments and challenges they had been unfamiliar with in Arabia.22 One example of isthisan is cited as follows: If a well is contaminated it may not be used for ritual purification. Istihsan suggests that withdrawing a certain number of buckets of water from the well will remove the impurities. Analogical deduction (qiyas), however, says that despite removing some of the water, a small concentration of contaminants will always remain in the well (or the well walls) rendering the well impure. The application of analogical deduction means the public may not use the well, and therefore causes hardship. Thus the principle of istihsan is applied, and the public may use the well for ritual purification.
- d) Public good (al-maslaha al-mursalah):
Imam Malik developed a tertiary source called al-maslaha al-mursalah, which means social benefit. According to this source of Islamic law, rulings can be pronounced in accordance with the “underlying meaning of the revealed text in the light of public interest”. In this case the jurists uses his wisdom to pursue public interest. This source is rejected by the Shafi’is.
- e) Reason (Ijtihad):
Shi’ite jurists maintain that if a solution to a problem can not be found from the primary sources, then aql or reason should be given free rein to deduce a proper response from the primary sources. The process, whereby rational efforts are made by the jurist to arrive at an appropriate ruling, when applied is called ijtihad (literally meaning “exerting oneself). Shi’ite jurists maintain that qiyas is a specific type of ijtihad. The Sunni Shafi school of thought, however, holds that both qiyas and ijtihad are the same.
Sunni jurists accepted ijtihad as a mechanism for deducing rulings. They, however, announced an end to its practice during the thirteenth century. The reason for this was that centers of Islamic learning (such as Baghdad, Nishapur, and Bukhara) had fallen into the hands of the Mongols. Thus, the “doors to ijtihad”, were closed In Sunni Islam, thus, ijtihad was replaced by taqlid or the acceptance of doctrines developed previously.
There are many justifications, found in the Qur’an and sunnah, for the use of ijtihad. For example, during a conversation with Mu’adh ibn Jabal, Muhammad asked the former how he would give judgments. Mu’adh replied that he would refer first to the Qur’an, then to the Sunnah and finally commit to ijtihad to make his own judgment. Muhammad approved of this. A lawyer who is qualified to use this source is called a mujtahid. The founders of the Sunni madhabs (schools of law) were considered such lawyers. All mujtahid exercise at the same time the powers of a mufti and can give fatwa. Some mujtahid have claimed to be mujaddid, or “renewer of religion.” Such persons are thought to appear in every century. In Shi’ite Islam they are regarded as the spokespersons of the hidden Imam.
- f) Common practice (Urf):
The term urf, meaning “to know”, refers to the customs and practices of a given society. Although this was not formally included in Islamic law, the Sharia recognizes customs that prevailed at the time of Muhammad but were not abrogated by the Qur’an or the tradition (called “Divine silence”). Practices later innovated are also justified, since Islamic tradition says what the people, in general, consider good is also considered as such by God. According to some sources, urf holds as much authority as ijma (consensus), and more than qiyas (analogical deduction). Urf is the Islamic equivalent of “common law”
Urf was first recognized by Abu Yusuf an early leader of the Hanaff school. However, it was considered part of the sunnah, and not as formal source. Later al-SarakhsT opposed it, holding that custom cannot prevail over a written text.
According to Sunni jurisprudence, in the application of urf, custom that is accepted into law should be commonly prevalent in the region, not merely in an isolated locality. If it is in absolute opposition to Islamic texts, custom is disregarded. However, if it is in opposition to qiyas (analogical deduction), custom is given preference. Jurists also tend to, with caution, give precedence to custom over doctoral opinions of highly esteemed scholars. Shia does not consider custom as a source of jurisprudence.