SHARIA (ISLAMIC LAW)
Qur'an Islamic Law, or Sharia (also Shari'a or Shariah ) literally means "well-worn camel path to the watering place." It is a set of legal codes based on scriptures from the Qur’an and interpretations of these scriptures by classical Islamic schools of thought. Governing public, private, social, religious and political life of Muslims, the laws are based on the principal that Qur’anic commands are divine and absolute and can not be questioned. Sharia law comes from a combination of sources including the Qur'an (the Muslim holy book), the Hadith (sayings and conduct of the prophet Muhammad) and fatwas (the rulings of Islamic scholars).
All aspects of a Muslim's life are governed by Sharia. Muslim law tells followers how to perform their prayers, how to pay their alms, how to observe the fast. It also describes how Muslims should dress, what food Muslims can eat and even what greetings can be exchanged. Sharia is expected to be abided by as a system of laws and rules for living. It also sets forth an ethical ideal of which one is supposed to conform to.
Sharia is clearest on personal matters such as marriage, divorce and inheritance. It is not clear on commercial, penal and constitutional matters and does not address legal matters at all. In most Muslim countries the state has set up its own court system that operates independent of the Sharia courts. These non-Sharia courts have traditionally handled criminal cases and cases that deal with land and finance. If there a conflict between the two courts Sharia courts are generally considered more authoritative. The other courts have iften traditionally been based on local laws. Sharia often has not been applied to non-Muslims.
Arthur Goldschmidt, Jr. Wrote in “A Concise History of the Middle East”: “Islam begins with a profession of faith, but it is manifested and elaborated by what Muslims do and what they condemn. Ever mindful of the impending Judgment Day, Muslims wish to know and to obey the rules of behavior that will please God and maintain a harmonious society. These rules have been carefully compiled and organized into a law code called the Shari'ah (an Arabic word meaning "way"). It is somewhat like the Talmud for Orthodox Judaism; there is nothing comparable in Christianity. The Shari'ah tries to describe all possible human acts, classifying them as obligatory, recommended, neutral, objectionable, or forbidden in the eyes of God, the supreme legislator. The Shari'ah covers, in addition to commercial and criminal law, rules about marriage and divorce, child rearing, other interpersonal relationships, property, food and clothing, hygiene, and the manifold aspects of worship. At least up to the time of the Mongols, there was nothing a Muslim might experience or observe on which the Shari'ah was silent. [Source: Arthur Goldschmidt, Jr., “A Concise History of the Middle East,” Chapter. 8: Islamic Civilization, 1979, Internet Islamic History Sourcebook, sourcebooks.fordham.edu]
H.A.R. Gibb wrote in the Encyclopedia of the World's Religions: “Regarding Sharia as simply a complicated legal system is inadequate. As governments failed to fulfill their original functions it became the task of religious leaders to make or re-make the communal life and order to all Muslims which has given the Muslim world that psychological unity which it continue to display at the present time. The accomplishment of this task gave powerful assistance to religious leaders."
Websites and Resources: Islam Islam.com islam.com ; Islamic City islamicity.com ; Islam 101 islam101.net ; Wikipedia article Wikipedia ; Religious Tolerance religioustolerance.org/islam ; BBC article bbc.co.uk/religion/religions/islam ; Patheos Library – Islam patheos.com/Library/Islam ; University of Southern California Compendium of Muslim Texts web.archive.org ; Encyclopædia Britannica article on Islam britannica.com ; Islam at Project Gutenberg gutenberg.org ; Islam from UCB Libraries GovPubs web.archive.org ; Muslims: PBS Frontline documentary pbs.org frontline ; Discover Islam dislam.org; Sharia (Islamic Law): Oxford Dictionary of Islam oxfordislamicstudies.com ; Encyclopædia Britannica britannica.com ; Wikipedia Wikipedia ; Sharia by Knut S. Vikør, Oxford Encyclopedia of Islam and Politics web.archive.org ; Law by Norman Calder, Oxford Encyclopedia of the Islamic World oxfordislamicstudies.com ; Sharia Law in the International Legal Sphere – Yale University web.archive.org ; 'Recognizing Sharia' in Britain, anthropologist John R. Bowen discusses Britain's sharia courts bostonreview.net ; "The Reward of the Omnipotent" late 19th Arabic manuscript about Sharia wdl.org; Qur’an (Quran, Koran) and Hadith: Quran translation in English alahazrat.net ; Quran in Easy English, Urdu, Arabic and 70 other languages qurango.com ; Quran.com quran.com ; Al-Quran.info al-quran.info ; Quranic Arabic Corpus, shows syntax and morphology for each word corpus.quran.com ; Word for Word English Translation – emuslim.com emuslim.com/Quran ; Digitised Qurans in the Cambridge University Digital Library cudl.lib.cam.ac.uk ; Sunnah.com sunnah.com ; Hadith – search by keyword and by narrator ahadith.co.uk
Books: “Islam: A Sacred Law: What Every Muslim Should Know About the Shariah,” Feisal Abdul Rauf, Kazi Publications; “Teach Yourself Islam,” Ruqaiyyah Waris Maqsood, Teach Yourself publications; “Islamic Sharia and the Muslims,” M.S. Siddiqui, Kazi Publications; “Woman in Islamic Shariah,” Maulana Khan, Goodword Books; “World of Fatwas: Shariah in Action,” Arun Shourie, Sharad Saxena (illustrator), ASA publications.
Principals of Islamic Law
First Surah of the Qur’an (fragment) Faraz Rabbani wrote for the BBC: “The Sharia regulates all human actions and puts them into five categories: 1) obligatory, 2) recommended, 3) permitted, 4) disliked or 5) forbidden. Obligatory actions must be performed and when performed with good intentions are rewarded. The opposite is forbidden action. Recommended action is that which should be done and the opposite is disliked action. Permitted action is that which is neither encouraged nor discouraged. Most human actions fall in this last category. The ultimate worth of actions is based on intention and sincerity, as mentioned by the Prophet, who said, "Actions are by intentions, and one shall only get that which one intended." Classical Sharia manuals are often divided into four parts: laws relating to personal acts of worship, laws relating to commercial dealings, laws relating to marriage and divorce, and penal laws. [Source: Faraz Rabbani, BBC, September 3, 2009]
An underlying assumption of Sharia is that only God can distinguish between good and evil and man's reasoning is subject to errors and thus should be eliminated whenever possible. But even under these guide lines a number of different, often contradictory interpretations, developed.
“Shariah” can be broken down into haram (“forbidden”) and halal (“permissible”). One thing a Muslim must discover is what is covered by Islamic law and what is not with the general understanding being that if an activity is not addressed by a law then is okay to apply personal reasoning to determine whether it is okay or not.
One key to evaluating and understanding Sharia is not just analyzing the laws themselves but also examining the penalties for breaking the laws. If someone breaks a Muslim law that doesn't harm anyone too badly such as drinking alcohol or eating pork and promises to rectify it is a personal matter and the process is not all that different from a Christian committing a sin and confessing it or promising not do it again. But if a Muslim is charged with blasphemy or apostasy for questioning something in Islam, attempting to understand its history or converting to a different religion and is sentenced to death then it becomes a different matter. Sharia practiced in most extreme form is notorious of its cruel punishments: chopping of limbs, beheading and stoning to death. These practices violate most international norms of human rights.
Because Sharia is so rigid and can be interpreted in such extreme ways for a long time it was ignored. One religious scholar wrote: “Both the Muslim theory of law and the pursuit of unity implied a fixation and degree of formal rigidity which gave little room for flexibility...the eternal rigidity to the justice formulation often gave the Sharia the character of an ideal system or counsel of perfection...It became increasingly and theatrical construction, divorced from actual practice." The Sudanese American law professor Abdullah An-Na’m has said that Sharia is essentially an attempt to “protect a patriarchal system."
Sharia Versus Western Law
Sharia is not a code of laws in the Western sense in terms out of outlining laws and fixing a penalties for breaking those laws. Rather they are classifications of acts: standards of conducts and moral evaluations of this actions (such obligatory, recommended or forbidden) without necessarily attaching penalties to breaking them. Sharia also differs significantly from Western traditions in that religious obligations that would not be a legal matter in the West are regarded as such in Sharia.
Asifa Quraishi-Landes wrote in the Washington Post: “Sharia isn’t even “law” in the sense that we in the West understand it. And most devout Muslims who embrace sharia conceptually don’t think of it as a substitute for civil law. Sharia is not a book of statutes or judicial precedent imposed by a government, and it’s not a set of regulations adjudicated in court. Rather, it is a body of Qur’an-based guidance that points Muslims toward living an Islamic life. It doesn’t come from the state, and it doesn’t even come in one book or a single collection of rules. Sharia is divine and philosophical. The human interpretation of sharia is called “fiqh,” or Islamic rules of right action, created by individual scholars based on the Qur’an and hadith (stories of the prophet Muhammad’s life). Fiqh literally means “understanding” — and its many different schools of thought illustrate that scholars knew they didn’t speak for God. [Source: Asifa Quraishi-Landes, Washington Post, June 24, 2016, Asifa Quraishi-Landes is an associate professor at the University of Wisconsin School of Law. ~~]
Countries where Sharia is employed
“Fiqh distinguishes between the spiritual value of an action (how God sees it) and the worldly value of that action (how it affects others). Fiqh rules might obligate a devout Muslim to pray, but it’s not the job of a Muslim ruler to enforce that obligation. Fiqh is not designed to help governments police morality in the way, say, Saudi Arabia does today. According to classical fiqh scholarship, a Muslim ruler’s task was to put forth another type of law, called siyasa, based on what best serves the public good. The most vivid example of this was the recognition of incestuous (mother-son, brother-sister) marriages practiced by some non-Muslim minorities living under Muslim rule, dating back at least to the 14th century, despite the abhorrence, generally, of such marriages to Islam. In other words, sharia doesn’t hold that everything objectionable to Islam should be outlawed.” ~~
History of Sharia
It is has been said that Muslims were the first to enumerate both rights and obligations. During his lifetime, Muhammad held both spiritual and temporal leadership of the Muslim community. Religious and secular law merged, and all Muslims have traditionally been subject to sharia, or religious law. A comprehensive legal system, sharia developed gradually through the first four centuries of Islam, primarily through the accretion of precedent and interpretation by various judges and scholars. During the tenth century, legal opinion began to harden into authoritative rulings, and the figurative bab al ijtihad (gate of interpretation) closed. Thereafter, rather than encouraging flexibility, Islamic law emphasized maintenance of the status quo. [Source: Helen Chapin Metz, Persian Gulf States: A Country Study, Library of Congress, 1993]
Arthur Goldschmidt, Jr. Wrote in “A Concise History of the Middle East”: “The first Muslims based their ideas of right and wrong on the customary norms of the society they knew, that of western Arabia. Caravan traders had worked out elaborate rules about commercial transactions and property rights, while criminal law still held to the principles of retribution based on the tribal virtues (the muruwwah). Muhammad's mission broadened and strengthened the realm of rights and responsibilities. The Quran spelled out many points, and Muhammad's precepts and practices (what later Muslims would call his sunnah) fixed some of the laws of the nascent ummah. After the Prophet died, his survivors tried to pattern their lives on what he had said or done, and on what he had told them to do or not to do. Muhammad's companions, especially the first four caliphs, became role models to the Muslims who came later; indeed, their practices were the sunnah for the caliphs and governors who followed them. Gradually, the traditional norms of Arabia took on an Islamic pattern, as the companions inculcated the values of the Quran and the sunnah in their children and instructed the new converts to Islam. Even after the men and women who had known Muhammad died out, the dos and don'ts of Islam were passed down by word of mouth for another century. /~\
“Because of the Arab conquests, the early Muslims picked up many concepts and institutions of Roman and Persian law. Quran reciters and Muhammad's companions gradually gave way to arbiters and judges who knew the laws and procedures of more established empires. As the ummah grew and more arguments arose about people's rights and obligations within this hybrid system, the leaders and the public realized that the laws of Islam must be made clear, uniform, organized, acceptable to most Muslims, and thereby enforceable. By the time the Abbasids took power in 750, Muslims were starting to study the meaning of the Quran, the life of Muhammad and the sayings and actions ascribed to him by those who had known him. A specifically Islamic science of right versus wrong, or jurisprudence, thus evolved. Its Arabic name, fiqh, originally meant "learning," and even now a close relation exists in the Muslim mind between fuqaha (experts on the Shari'ah) and the ulama (the Muslim religious scholars, or literally "those who know").” /~\
Philosophy Behind of Sharia: Clear Path to Water
Faraz Rabbani wrote for the BBC: “For Muslims, life did not begin at birth, but a long time before that. Before even the creation of the first man. It began when God created the souls of everyone who would ever exist and asked them, "Am I not your Lord?" They all replied, "Yea." God decreed for each soul a time on earth so that He might try them. Then, after the completion of their appointed terms, He would judge them and send them to their eternal destinations: either one of endless bliss, or one of everlasting grief. This life, then, is a journey that presents to its wayfarers many paths. Only one of these paths is clear and straight. This path is the Sharia.” [Source: Faraz Rabbani, BBC, September 3, 2009 |::|]
The Qur’an reads: “For each We have appointed a divine law and a traced-out way. Had God willed, He could have made you one community. But that He may try you by that which He has given you. So vie one with another in good works. Unto God you will all return, and He will then inform you of that wherein you differ. — Qur'an, 5:48
Rabbani wrote: In Arabic, Sharia means "the clear, well-trodden path to water". Islamically, it is used to refer to the matters of religion that God has legislated for His servants. The linguistic meaning of Sharia reverberates in its technical usage: just as water is vital to human life, so the clarity and uprightness of Sharia is the means of life for souls and minds. Throughout history, God has sent messengers to people all over the world, to guide them to the straight path that would lead them to happiness in this world and the one to follow. All messengers taught the same message about belief (the Qur'an teaches that all messengers called people to the worship of the One God), but the specific prescriptions of the divine laws regulating people's lives varied according to the needs of his people and time. |::|
“The Prophet Muhammad (God bless him and give him peace) was the final messenger and his Sharia represents the ultimate manifestation of the divine mercy. "Today I have perfected your way of life (din) for you, and completed My favour upon you, and have chosen Islam as your way of life." (Qur'an, 5:3) The Prophet himself was told that, "We have only sent you are a mercy for all creation." (Qur'an, 21:179)” |::|
Sources of Islamic Law
The sources of the Sharia are 1) the Qur'an; 2) the Hadith , an authenticated record of sayings and deeds of the Prophet (Muhammad) and his earliest companions that use the example of the Prophet as the basis for law; 3) interpretation by analogy (qiya); 4) consensus of the ummah, or scholarly consensus (ijma'); and 5) judicial opinion.
The primary sources of Sharia are the Qur'an and the Hadith. The other sources are viewed as interpretations of the Qur’an and Muhammad’s statements and actions, with scholarly consensus (ijma') and legal analogy (qiyas) being the two agreed-upon derived sources of Sharia:. Devout Muslims regard their words, acts, and decisions — called collectively the sunna — as models to be emulated by later generations. Because of its normative character, the sunna is revered along with the Qur’an as a primary source of sharia. [Source: BBC, Library of Congress]
Arthur Goldschmidt, Jr. wrote in “A Concise History of the Middle East”: “Historians of Islam see in the Shari'ah elements taken from many ancient legal systems, but Muslims customarily view their law as having four, or most five, main sources: 1) the Quran, 2) the hadiths (documented statements about the sunnah of Muhammad), 3) interpretation by analogy, 4) consensus of the ummah, and 5) (for some) judicial opinion. Strictly speaking, only the first two are tangible sources.” [Source: Arthur Goldschmidt, Jr., “A Concise History of the Middle East,” Chapter. 8: Islamic Civilization, 1979, Internet Islamic History Sourcebook, sourcebooks.fordham.edu]
Muslims believe that the principals for all Muslim laws lie within the Qur’an and any supplementation that is done is matter of clarifying or elaborating on the texts to new application as they pop up. An example of this is the law on giving alms. The Qur’an states that one must give alms but did not state how much. The amount was determined by Muhammad's statements and actions as transmitted by his Companions.
Ruqaiyyah Waris Maqsood, a British Muslim, told the BBC: “The Prophet Muhammad (pbuh) laid down the laws - some of them were direct commands stated in the revelation of the Qur'an; other laws grew up based on the Prophet's own example and the various rulings he gave to cases that occurred during his lifetime. These secondary laws are based on what's called the Sunnah - the Prophet's words, example, and way of life. “So, all the laws of Sharia are based primarily on Qur'an and then on Sunnah, and after that, if there was no information in those two sources, judges were free to use their intelligence to make analogies. As in most legal systems, cases could then be referred to by later judges. [Source: Ruqaiyyah Waris Maqsood, BBC, September 3, 2009 |::|]
Conservative Muslims and Muslim extremists have manipulated Muslim law by merging doctrines that are under debate, such as the veiling of women, with those such etched in stone, such as the five pillars of Islam, and claiming that none of them can be changed or criticized and to do so is blasphemy or apostasy because it calls into doubt the word of God.
Quran as a Source of Islamic Law
The Qur’an provide the basis for Islamic law. It is full of rules that govern almost all aspects of public and private behavior that Muslims are expected to follow acts of as submission to God. But at the same time many of the rules and the basis for them in the Qur’an are very vague and Sharia is based more on how these vague rules and statements are interpreted. By one estimate Sharia is based on only 500 verses from the Qur’an, or about 16 percent of the holy book.
Arthur Goldschmidt, Jr. wrote: The Quran contains many commandments and prohibitions, as well as value judgments on the actions of various individuals and groups in history. Let me give some examples. The Quran lays down explicit rules, obeyed by all Muslims up to modern times, for divorce (2:226-238), contracting debts (2:281-283), and inheriting property (4: 11-17). When it describes the wickedness of the dewellers on Sodom (7:78- 82), the message is implicit: clearly their acts are unlawful for Muslims. But the variety of human action far exceeds what the Quran could cover. It might order people to pray, but only the exmaple of Muhammad taught Muslims how to do so. [Source: Arthur Goldschmidt, Jr., “A Concise History of the Middle East,” Chapter. 8: Islamic Civilization, 1979, Internet Islamic History Sourcebook, sourcebooks.fordham.edu]
Faraz Rabbani wrote for the BBC: “The Qur'an was revealed to the Prophet gradually, over 23 years. The essence of its message is to establish the oneness of God and the spiritual and moral need of man for God. This need is fulfilled through worship and submission, and has ultimate consequences in the Hereafter. The Qur'an is the word of God. Because of its inimitable style and eloquence, and, above all, the guidance and legal provisions it came with, it ensures the worldly and next-worldly welfare of humanity. [Source: Faraz Rabbani, BBC, September 3, 2009 |::|]
“God Most High said, "Verily, this Qur'an guides to that which is best, and gives glad tidings to the believers who do good that theirs will be a great reward." (Qur'an, 17:9) And, "There has come unto you light from God and a clear Book, whereby God guides those who seek His good pleasure unto paths of peace. He brings them out of darkness unto light by His decree, and guides them unto a straight path." (Qur'an, 5:15) |::|
The Hadith are an authenticated record of sayings and deeds of the Prophet Muhammad and his earliest companions. The words, acts, and decisions of Muhammad and his companions— collectively called the sunna — are viewed as precedents for Islamic social and legal customs and as models to be emulated by later generations. The Hadith also includes the sira, biographies of the Muhammad, and tafsir and tawil, Qur’anic commentary and explanation.
Gharib al-Hadith-page 19There are literally tens of thousands of hadiths, some of which contradict others. In the early centuries after Muhammad's death religious schools went through them, evaluated them, evaluated their sources and decided which ones fit the moral vision of God and deserved emphasis.
The Hadith provides the basis for much of Islamic law. It contains many laws and rules based on interpretations of the Qur’an. Much of Islamic thought is found in the Hadith partly because the Hadith has traditionally been understood to be a text open to "interpretation. argument and rigorous intellectual inquiry."
The Hadith is a collection of more than 60,000 accounts of Muhammad's words and actions. They are divided into six revered collections, or sahib , meaning “sound." The authenticity of some hadiths is still a matter of debate. Those who told the stories, and recorded them, were not always reliable.
There are 170,000 known narrations of the prophet's sayings. They are supposed to record Muhammad's words and deeds as a guide to daily life and a key to some of the mysteries the Qur’an. Many of the these anecdotes came out of specific historical contexts that occurred much later. Mehmet Gormez, a theology professor at the University of Ankara, told Newsweek, sometimes the scholars who produced the Hadiths confused “universal values of Islam with geographical, cultural and religious values of their time and place. Every Hadith narration has...a context."
Some hadiths with historical contexts are erroneously used to justify modern prohibtions. One that forbids women from traveling alone is used to deny women the right to drive in Saudi Arabia. Gormez said, “This is clearly not a religious injunction but related to security in a specific time and place. In the Qur’an Muhammad laments the days when women could travel alone from Yemen to Mecca."
History of the Hadiths
The Hadith are based on memories of people who knew Muhammad that were either written down or passed down from one generation to another. The ones that were passed on orally often given more weight. These were collected and incorporated into biographies about Muhammad from written between the mid-8th to the 10th centuries.
The hadiths that were collected often varied from place to place and time to time. Sometimes, local customs, beliefs and traditions influenced their content. Other times, polemicists presented religious principals and ideas and selectively used hadiths to back their arguments.
In the 9th century, scholars did a thorough investigation of the hadiths and their history and sources and weeded out ones of dubious origin and compiled reliable ones into texts accepted by the Islamic community as a whole. In many cases the reliable ones were picked on the basis of the worthiness of the chains of witnesses that passed down each hadith. Many of the hadiths emerged by consensus from a community of scholars after considerable discussion and rely heavily on analogies known as ijima and qiryas .
The two of most widely accepted collections of hadiths were gathered by al-Bukhari (810-70) and Muslim bin Hajjaj (817-75) With the hadiths taking on some authority there were used as the basis for much of Muslim law.
Hadiths as a Source of Islamic Law
Arthur Goldschmidt, Jr. wrote: “The sunnah of the Prophet was broader than the Quran, but Muslims had to avoid certain pitfalls in order to use it as a source for the Shari'ah. How could they be sure that an act had been committed or enjoined by the Prophet? There had to be a hadith (which literally means "news"), that said he had done it or said it. The hadith had to be validated by a chain of reporters, an isnad. The recorder of the hadith would have to start by saying who had reported to him this news, and who had told his informant, and who had told him, and so on back to the person who had witnessed the action or saying in question. The isnad served the function of a source footnote in a term paper; it authenticated the information by linking it to an established authority. Since the hadiths were not written down until more than a century had gone by, the isnads were needed to weed out those falsely attributed to Muhammad. What if the isnad, too, were fabrications? [Source: Arthur Goldschmidt, Jr., “A Concise History of the Middle East,” Chapter. 8: Islamic Civilization, 1979, Internet Islamic History Sourcebook, sourcebooks.fordham.edu /~\]
Faraz Rabbani wrote for the BBC: “The Prophet's role was expounded in the Qur'an, "We have revealed the Remembrance [Qur'an] to you that you may explain to people that which was revealed for them." (16:44) This explanation was through the Prophet's words, actions, and example. Following the guidance and the example of the Prophet was made obligatory, "O you who believe, obey God and obey the Messenger," (4: 59) and, "Verily, in the Messenger of God you have a beautiful example for those who seek God and the Last Day, and remember God much." The Prophet himself instructed, "I have left two things with you which if you hold on to, you shall not be misguided: the Book of God and my example." [Reported by Hakim and Malik] [Source: Faraz Rabbani, BBC, September 3, 2009 |::|]
Goldsmith said: “To weed out hadiths with false isnads, the early ulama became quite expert on the lives of the Prophet, his family, and his companions. If it could be proved that one link in the chain of transmitters was weak because the person in question was a liar or could not have known the previous transmitter, then the hadith was suspect. After a century of dedicated labor by many scholars, there emerged several authoritative collections of hadiths, six for Sunni Muslims and several others for the Shi'i sects. They are still being used by Muslims today. /~\
Scholarly Consensus (Ijma') and Legal Analogy (Qiyas)
There are two agreed-upon derived sources of Sharia: scholarly consensus (ijma') and legal analogy (qiyas). Analogies and generalization, in some cases, are given credence. For example the Qur’an explicitly prohibits wine made from grape juice but does not mention other fermented drinks. But by saying wine is an analogy for all alcoholic drinks the prohibition on wine can be extended to all alcoholic drinks. Muslims also believe in the principal of "the lesser of two evils." It is okay, for example, for a Muslim to eat pork to stave off starvation and it is alright for a women to get an abortion if her life is in danger.
Faraz Rabbani wrote for the BBC: “The basis for scholarly consensus being a source of law is the Qur'anic command to resolve matters by consultation, as God stated, "Those who answer the call of their Lord, established prayer, and whose affairs are by consultation." (42:38) Scholarly consensus is defined as being the agreement of all Muslim scholars at the level of juristic reasoning (ijtihad) in one age on a given legal ruling. Given the condition that all such scholars have to agree to the ruling, its scope is limited to matters that are clear according to the Qur'an and Prophetic example, upon which such consensus must necessarily be based. When established, though, scholarly consensus is decisive proof. [Source: Faraz Rabbani, BBC, September 3, 2009 |::|]
“Legal analogy is a powerful tool to derive rulings for new matters. For example, drugs have been deemed impermissible, through legal analogy from the prohibition of alcohol that is established in the Qur'an. Such a ruling is based on the common underlying effective cause of intoxication. Legal analogy and its various tools enables the jurists to understand the underlying reasons and causes for the rulings of the Qur'an and Prophetic example (sunna). This helps when dealing with ever-changing human situations and allows for new rulings to be applied most suitably and consistently. |::|
Arthur Goldschmidt, Jr. wrote: “Various scholars helped to formulate the Shari'ah itself, which they did by writing books that compiled the laws of Islam for reference and guidance. Because of the numerous changes that had occurred in the ummah since the lifetime of the Prophet, the Quran and the hadith compilations could not, in the view of most ulama, cover every conceivable problem. They also adopted reasoning by analogy, comparing a new situation with one for which legislation already existed. The Quran forbids Muslims to drink wine; therefore, the ulama reasoned that all liquors having the same effect as wine should also be banned. [Source: Arthur Goldschmidt, Jr., “A Concise History of the Middle East,” Chapter. 8: Islamic Civilization, 1979, Internet Islamic History Sourcebook, sourcebooks.fordham.edu /~\]
“In much of what they wrote, Muslim scholars looked to the consensus of the ummah to settle hard legal points. This did not mean polling every Muslim from Cordoba to Samarqand. Rather, consensus meant that which could be agreed upon by those who had studied the law. It was through this practice that many laws from older societies were incorporated into the Shari'ah. Thus the laws of Islam could cover lives far removed from conditions known to Muhammad: a sailor in the Indian Ocean, a rice farmer in the marshes of lower Iraq, or a Turkish horse nomad in Transoxiana. In addition, the early legists incorporated decisions that had been made by the wisest judges in difficult or contested cases, rather as legal precedents are used in the administration of Anglo-Saxon law. The inclusion of "judicial opinion" gave the Shari'ah added flexibility and relevance to changing needs and changing conditions. In time, however, this fifth source fell out of common use.” /~\
Sunni Legal System: the Four Schools
Only four attracted a large enough following to remain today: 1) Hanifah, the most liberal school (common in India, Pakistan, Bangladesh, Turkey, Afghanistan and Central Asia); 2) Shafi, a conservative school that emphasizes on the opinions of the companions of the Prophet Muhammad (common in Egypt, Indonesia, East Africa and Syria); 3) Maliki, or reformed school based on the practices of the people of Medina during Muhammad's lifetime. (North and West Africa)," and 4) Hanbali (Arabia and Northern Nigeria, linked with the puritanical Wahhabi sect), the smallest and strictest sect. The latter has traditionally rejected the use of analogy and wide extension of ijma . The Hanifah school is the one most open to new ideas.
The four schools are named after and based on the principals of four famous legal scholars in the early Islamic period (See Below). They were pretty much established before the 10th century and are now associated mostly with Sunni Islam. They are pretty similar and difference are connected with principals of legal reasoning, justifications based on the hadiths and the limits of the law. Each school has its own law books and courts. Local customs in the places where the schools developed have also influenced the legal code of each school.
Arthur Goldschmidt, Jr. wrote in “A Concise History of the Middle East”: “The compilation of the Shari'ah into authoritative books was, at least for the Sunni majority, completed by the late ninth century. Several "rites" or systems of Sunni legal thought (madhhab, a term no English word adequately translates) resulted, of which four have survived: Hanafi, Maliki, Shafi'i, and Hanbali. [Source: Arthur Goldschmidt, Jr., “A Concise History of the Middle East,” Chapter. 8: Islamic Civilization, 1979, Internet Islamic History Sourcebook, sourcebooks.fordham.edu /~\]
“The Hanafi rite is the largest of the four. It grew up in Iraq under Abbasid patronage and made considerable use of consensus and judicial reasoning (in addition, of course, to the Quran and hadiths) as sources. Today, the Hanafi rite predominates in Muslim India and Pakistan and in most of the lands formerly part of the Ottoman Empire. /~\
“The Maliki rite developed in Medina and made heavy use of the Prophetic hadiths that circulated there. It now prevails in Upper Egypt and in northern and western Africa. The Shafi'i rite grew up in ninth-century Egypt as a synthesis of the Hanafi and Maliki systems, but with greater stress on analogy. It was strong in Egypt and Syria at the time of Salah al-Din; it now prevails in the Muslim lands around the Indian Ocean and in Indonesia. The fourth canonical rite, that of the great jurist and theologian Ahmad ibn Hanbal (d. 855), rejected analogy, consensus, and judicial opinion as sources. /~\
“Because of its strictness, the Hanbali rite has tended to have a smaller following, though its adherents have included the thinkers who inspired the modern reform movement within Islam. It is also the official legal system in present-day Saudi Arabia. Other Sunni rites used to exist but have died out. The substantive differences among the four rites are minor except in matters of ritual, and each (except at times the Hanbali rite) has regarded the others as legitimate.” /~\
Shia have their own legal schools of Sharia that defines their way of doing prayer actions, going about personal relations, treating criminals and dealing with other matters. Legal precedents are reached on the basis of decisions made with imam rather than made by the Muslim community, which is the case with the four main schools. Shia law refuses to accept traditions not transmitted through Ali or one of his descendants. Shia rejecte the doctrine of the ijma, saying that laws can only be interpreted by the Imams of the House of Ali. The primary schools of law for Shia are the Jafari and Zaydi schools.
Arthur Goldschmidt, Jr. wrote in “A Concise History of the Middle East”: “Shi'i jurisprudence also relies on the Quran, hadiths (with the difference that an authenticating isnad should include one of the legitimate imams), analogy, and consensus. Some differences do exist between Shi'i and Sunni Muslims over the authenticity of certain statements by the Prophet, especially on whether he was partial to Ali. [Source: Arthur Goldschmidt, Jr., “A Concise History of the Middle East,” Chapter. 8: Islamic Civilization, 1979, Internet Islamic History Sourcebook, sourcebooks.fordham.edu /~\]
“In certain matters Shi'i law is more permissive: it allows temporary marriage, the female line receives a slightly larger share of the inheritance, and some sects let a Shi'i Muslim deny his religious identity if his safety is at stake. The major difference is that, while most Sunni rites allow no reinterpretation of the Shari'ah, in Shi'ism the imams can interpret the law and are regarded as being, in principle, alive. /~\
“Among Twelve-Imam Shi'is, whose last imam is hidden, certain qualified legal experts called mujtahids can interpret the Shari'ah until the twelfth imam reappears. This "interpretation" (Vtihad) does not mean changing the law to suit one's temporary convenience, but rather the right to go back to and examine the Quran and the hadith compilations without being bound by consensus. /~\
“In this sense, Shi'ism has kept a flexibility long since lost by the Sunni majority, and the Shi'i ulama, especially the mujtahids, have remained influential in countries like Iran right up to modern times. Indeed, the central issue among Sunni Muslim ulama committed to Islamic reform has been to regain for themselves the right of ijtihad.” /~\
Development of Islamic Law and Sharia Schools
By the end of the eighth century, four main schools of Muslim jurisprudence had emerged in Sunni Islam to interpret the sharia (Islamic law). Prominent among these groups was the Hanafi school and the Shafii school. Because Islam has no ordained priesthood, direction of the Muslim community rests on the learning of religious scholars (ulama) who are expert in understanding the Quran and its appended body of commentaries. [Source: Library of Congress *]
Islamic law evolved between the eighth and tenth centuries. Islamic scholars reputed for their knowledge of the Qur’an, hadis , and sunna were accepted as authoritative interpreters of seriat . Several of them compiled texts of case law that formed the basis of legal schools. Eventually, Sunni Muslims came to accept four schools of law as equally valid. Two schools of seriat exist in contemporary Turkey: the Hanafi, founded by Iraqi theologian Abu Hanifa (ca. 700-67), and the Shafii, founded by the Meccan jurist Muhammad ash Shafii (767-820). Most Muslim Turks follow the Hanafi school, whereas most Sunni Kurds follow the Shafii school. *
Islamic law has it roots in the laws and rules laid out in the Qur’an. These were first supplemented with rules, interpretations and insights offered by early Caliphs and governors who drew on Arab traditions and their own experience and judgements and by Muslim scholars who gave various issues a great deal of study, discussion and thought. The drive to create a Muslim legal system began when groups of students of the Qur’an in major cities who felt these laws and rules needed to be codified.
During the first centuries of Islam there were hundred schools of Islamic law. Some were influenced by Roman law and Greek-style speculative reasoning, which alarmed conservatives and divided the community and triggered a movement to unify the Muslim community and reduce the number of schools.
Islamic law was originally not developed just for Muslims it was developed for all of mankind. It was regarded as the word of god and thus had to be universally and absolutely followed by everyone. The basic foundation of Sharia, argued by the pioneering jurist al-Shafi (died 820), is that the laws of the Qur’an and laws with direct eye-witness links to Muhammad would have precedence over all other laws.
The problem of dealing with doctrinal disputes was dealt with within the schools through the “Consensus of the Community ( ijma ), based on the principal that the “Community will never agree upon an error." Rulings within each school were unified and consolidated by a particular ijma . Each school recognized the ruling that were acceptable and authoritative with the system of that school.
The problem of dealing with so many schools was a weeding out process and popularity contest influenced by group politics, fashion, trends, ideas and political and religious support and respect and authority that certain schools had at certain times. Over time certain schools fell out of favor and lost adherents while other schools gained favored and won adherents; minor schools were squeezed and large ones grew into orthodox, established institutions.
Scholars of the Islamic Legal Schools
Abu Hanifah (699-767) founded the Hanifah school, the first of the great schools of Islamic law, and was a pioneer in Islamic law. He was one of the first to use the Qur’an and the hadiths to sort out legal questions and develop a legal code. His code emphasized judgments made through reasoning.
Imam al-Sadiq Malik ibn Anas (715- 795) founded the second great school of Muslim law, the Maliki school. He emphasized reasoning and the concerns of the community. Ahamd ibn Hanbal (780-855) was the founder of the Hanbali school of Muslim law. He argued that the only truths worth knowing were in the Qur’an and applying human thought processes are not applicable.
Muhammad Idris ibn al-Shafii (767- 820) founded the Shafi school. He saw the law as something based on the Qur’an and God's Will. Every law, he argued, should be based on a direct commandment or a general principal that could be directly traced back to the Prophet either through the Qur’an or the hadiths. He also developed the idea that once the Islamic community made a final decision on a matter that decision was infallible and permanent.
The development of Sharia law clearly had some political aspects. Malik ibn Anas and al-Shafii participated in Shia uprisings and opposed what they perceived as corruption in the ruling caliphate. Many efforts to modernize Sharia law have been thwarted by Islamists. People that have tried to reform or modify Muslim law have been accused as “apostates” and “sinful innovators."
Later Developments in Islamic Law
The 19th century saw the emergence of new Civil Courts and the relegation of Sharia to mostly family law. This process was accelerated in the 20th century and some Muslim countries such as Turkey got rid of Sharia altogether.
In the civil courts and in some of the Islamic courts laws based on new legislation were introduced and other matters were addressed with laws based on new interpretations of Islamic scriptures and traditions and were not bound to any one particular Islamic legal school and included Sunni and Shia interpretations.
Aqabozorg Some interpretations---such as limiting polygamy and giving women the rights in divorce--- contradicted or went again the spirit of the Qur’an . Many of the new laws and interpretations were made by the ruling elite and were influenced by colonialism and West legal concept. Some of the decisions not only went against Islam but also undermined the spirit of the ijma (the Muslim community).
Asifa Quraishi-Landes wrote in the Washington Post: “While it’s true that sharia influences the legal codes in most Muslim-majority countries, those codes have been shaped by a lot of things, including, most powerfully, European colonialism. France, England and others imposed nation-state models on nearly every Muslim-majority land, inadvertently joining the crown and the faith. In pre-modern Muslim lands, fiqh authority was separate from the governing authority, or siyasa. Colonialism centralized law with the state, a system that carried over when these countries regained independence. [Source: Asifa Quraishi-Landes, Washington Post, June 24, 2016 ~~]
“When Muslim political movements, such as Jamaat-e-Islami in Pakistan or the Muslim Brotherhood in Egypt, have looked to codify sharia in their countries, they have done so without any attention to the classical separation of fiqh and siyasa, instead continuing the legal centralization of the European nation-state. That’s why these movements look to legislate sharia — they want centralized laws for everything. But by using state power to force particular religious doctrines upon the public, they would essentially create Muslim theocracies, contrary to what existed for most of Muslim history.” ~~
In most Muslim countries modern laws have been introduced for almost all matters except for family law — mostly laws governing women and children — in which Sharia is used. Moderate Muslim states apply Sharia to family and religious law but not criminal, legal and state matters. Among 49 Muslim nations only Iran and Saudi Arabia follow Sharia law in its strictest sense. Afghanistan used to when it was ruled by the Taliban. Sharia is said to be applied behind close doors even in secular countries like Canada.
Since the Iranian Revolution in 1979 and the Islamic revival the reintroduction of Sharia and to what degree has been a major issue in many Muslim countries. A 2007 Gallup survey of 10,000 Muslims in ten predominately Muslim countries, found there is widespread support Sharia but only a small minority want religious leader to make the laws. Most the Muslim women surveyed said they believed Sharia should be a source of national laws, but also strongly believed in equal rights for women.
Islamic Legal Philosophy of Needs and Comforts
Faraz Rabbani wrote for the BBC: “God sent prophets and books to humanity to show them the way to happiness in this life, and success in the hereafter. This is encapsulated in the believer's prayer, stated in the Qur'an, "Our Lord, give us good in this life and good in the next, and save us from the punishment of the Fire." (2:201) [Source: Faraz Rabbani, BBC, September 3, 2009 |::|]
“The legal philosophers of Islam, such as Ghazali, Shatibi, and Shah Wali Allah explain that the aim of Sharia is to promote human welfare. This is evident in the Qur'an, and teachings of the Prophet. The scholars explain that the welfare of humans is based on the fulfillment of necessities, needs, and comforts. Necessities are matters that worldly and religious life depend upon. Their omission leads to unbearable hardship in this life, or punishment in the next. There are five necessities: preservation of religion, life, intellect, lineage, and wealth. These ensure individual and social welfare in this life and the hereafter. |::|
“The Sharia protects these necessities in two ways: firstly by ensuring their establishment and then by preserving them. 1) To ensure the establishment of religion, God Most High has made belief and worship obligatory. To ensure its preservation, the rulings relating to the obligation of learning and conveying the religion were legislated. 2) To ensure the preservation of human life, God Most high legislated for marriage, healthy eating and living, and forbid the taking of life and laid down punishments for doing so. 3) God has permitted that sound intellect and knowledge be promoted, and forbidden that which corrupts or weakens it, such as alcohol and drugs. He has also imposed preventative punishments in order that people stay away from them, because a sound intellect is the basis of the moral responsibility that humans were given. 4) Marriage was legislated for the preservation of lineage, and sex outside marriage was forbidden. Punitive laws were put in placed in order to ensure the preservation of lineage and the continuation of human life. 5) God has made it obligatory to support oneself and those one is responsible for, and placed laws to regulate the commerce and transactions between people, in order to ensure fair dealing, economic justice, and to prevent oppression and dispute. |::|
“Needs and comforts are things people seek in order to ensure a good life, and avoid hardship, even though they are not essential. The spirit of the Sharia with regards to needs and comforts is summed up in the Qur'an, "He has not placed any hardship for you in religion," (22:87) And, "God does not seek to place a burden on you, but that He purify you and perfect His grace upon you, that you may give thanks." (5:6) Therefore, everything that ensures human happiness, within the spirit of Divine Guidance, is permitted in the Sharia.” |::|
Theological Basis of Sharia
Faraz Rabbani wrote for the BBC: “The ultimate aim of those who submit to the Sharia is to express their slavehood to their Creator. But the Sharia does bring benefit in this world too. This way has been indicated in a Divine statement conveyed by the Prophet. “My servant approaches Me with nothing more beloved to Me than what I have made obligatory upon him, and My servant keeps drawing nearer to Me with voluntary works until I love him. And when I love him, I am his hearing with which he hears, his sight with which he sees, his hand with which he seizes, and his foot with which he walks. If he asks Me, I will surely give to him, and if he seeks refuge in Me, I will surely protect him.” ---- Prophet Muhammad, reported by Bukhari [Source: Faraz Rabbani, BBC, September 3, 2009 |::|]
“If the legal dimension of the Sharia gives Islam its form, the spiritual dimension is its substance. The spiritual life of Islam, and its goal, was outlined in the Divine statement (mentioned above). The Prophet explained spiritual excellence as being, "To worship God as though you see Him, and if you see Him not, [know that] He nevertheless sees you. |::|
“The spiritual life of Islam is a means to a realization of faith and a perfection of practice. It is to seek the water that the Sharia is the clear path to, water that gives life to minds and souls longing for meaning. It is this spiritual life, at its various levels, that attracts Muslims to their religion, its way of life, and to the rulings of the Sharia. “And those who believe are overflowing in their love of God.” — Qur'an 2:165 |::|
Ruqaiyyah Waris Maqsood, a British Muslim, told the BBC: “These are to see the will of God done on earth as it is in Heaven (as in the Christian Lord's Prayer). How can we possibly know this will? By study of the revealed scriptures and by choosing talented, intelligent and far-sighted merciful people of excellent character as our judges. The whole principle of God's will is to bring about compassion, kindness, generosity, justice, fair play, tolerance, and care in general, as opposed to tyranny, cruelty, selfishness, exploitation etc.” [Source: Ruqaiyyah Waris Maqsood, BBC, September 3, 2009 |::|]
Sharia and Muslim Society
On how sharia addresses ndividual rights versus the needs of society, Ruqaiyyah Waris Maqsood told the BBC: “Basically in Islam the needs of society always come first, with the proviso that injustices should always be able to be taken to judges who are not corrupt. The old Arab system allowed any person, no matter how humble, to take his/her case to the highest in the land personally. Islam brings a very strong sense of justice, and care of the oppressed and exploited. [Source: Ruqaiyyah Waris Maqsood, BBC, September 3, 2009 |::|]
Does Sharia make life easier or harder for the ordinary Muslim? “Much easier for those who strive to live the correct life pleasing to God and in kindness and peace with the neighbour; much harder for the one who is selfish, callous, cruel, exploitative, dishonest etc. There is virtually no sympathy for such people - unless they really are mentally ill, in which case they are not regarded as culpable in Sharia. All those before the age of puberty, or not of sound mind, are not regarded as culpable.
Sharia in the Modern World
Arthur Goldschmidt, Jr. Wrote in “A Concise History of the Middle East”: “But is the Shari'ah relevant today? The laws are immobile, critics claim, and cannot set the norms for human behavior in a rapidly changing world. Even in the period we have studied so far, strong rulers tried to bypass certain aspects of the Shari'ah, perhaps by a clever dodge, more often by issuing secular laws, or qanuns. The ulama, as guardians of the Shari'ah, had no police force with which to punish such a ruler. But they could stir up public opinion, even to the point of rebellion. No ruler would have dared to change the five pillars of Islam and, until recently, none interfered with laws governing marriage, inheritance, and other aspects of personal status. [Source: Arthur Goldschmidt, Jr., “A Concise History of the Middle East,” Chapter. 8: Islamic Civilization, 1979, Internet Islamic History Sourcebook, sourcebooks.fordham.edu /~\]
“Islam today must deal with the same problem facing Orthodox Judaism: How can a religion based on adherence to a divinely sanctioned code of conduct survive in a world in which many of its nation-states and leading minds no longer believe in God -- or at any rate act as if they do not? Perhaps the time will come when practicing Muslims, Christians, and Jews will settle their differences -- even the Arab-lsraeli conflict -- in order to wage war on their common enemies: secularism, positivism, hedonism, and the various ideologies that have arisen in modern times. /~\
“What parts of the Shari'ah are irrelevant? Are the marriages contracted by young people for themselves more stable than those arranged for them by their parents? Has the growing frequency of fornication and adultery in the West strengthened or weakened the institution of the family? If the family is not to be maintained, in what environment should children be nurtured and taught how to act like men or women? Has the blurring of sex roles in modern society increased or decreased the happiness and security of men and women? Should the drinking of intoxicating beverages be allowed, let alone encouraged, when alcoholism is a major public health problem in most industrialized countries today? Does lending money at interest encourage or inhibit capital formation? Do gambling and other games of chance enrich or impoverish most of the people who engage in them? If the appeal to jihad in defense of Islam seems aggressive, in the name of what beliefs have the most destructive wars of this century been fought? Would Muslims lead better lives if they ceased to pray, fast in Ramadan, pay zakat, and make the hajj to Mecca? These are just some of the questions that must be answered by people who claim that Islam and its laws are anachronistic.” /~\
Sharia and Women
The Qur’an and Muslim law grants women the rights of property, divorce, inheritance, child custody, alimony, education, choosing a husband, divorce, working, engaging in business and entering a profession. Islam also recognizes the right of women to enjoy sex in their marriage and make decisions about contraceptives and family size. Even in conservative Saudi Arabia women are allowed to run businesses, donate land for schools and endow trusts.
But for many of the things listed above, according to some interpretations of sharia, women need permission of a man. According to Muslim law, every girl and woman has a guardian---her father, brother, or some male relative---and he makes major decisions about her life. Marriage contracts, for example, are worked out by him and the groom's family and the woman has no say in the matter and must follow the wishes of her guardian. The views towards women are often conveyed as being protective of women and serving their own interests rather than being discriminatory. Where honor or kin group is concerned Muslim law is often protective of women, for example, providing the widest possible limits within which the legitimacy of children born in wedlock are recognized.
Asifa Quraishi-Landes wrote in the Washington Post: “There is a verse in the Qur’an that holds that men are the “protectors” of women, but many contemporary scholars dispute the notion that this suggests women must obey men or that women are inferior. While it’s true that many majority-Muslim societies have laws that treat women unfairly, many of these laws, like Saudi Arabia’s ban on female drivers, have no basis in fiqh [Islamic rules of right action]. In instances where there is a fiqh origin for modern legislation, that legislation often cherry-picks certain rules, including more woman-affirming interpretations. And on a range of issues, Islam can fairly be described as feminist. Fiqh scholars, for instance, have concluded that women have the right to orgasm during sex and to fight in combat. (Women fought alongside the prophet Muhammad himself.) Fiqh can also be interpreted as pro-choice, with certain scholars positing that although abortion is forbidden, first-trimester abortions are not punishable. [Source: Asifa Quraishi-Landes, Washington Post, June 24, 2016. Asifa Quraishi-Landes is an associate professor at the University of Wisconsin School of Law. ~~]
“Fiqh doctrine says a woman’s property, held exclusively in her name, cannot be appropriated by her husband, brother or father. (For centuries, this stood in stark contrast with the property rights of women in Europe.) Muslim women in America are sometimes shocked to find that, even though they were careful to list their assets as separate, those can be considered joint assets after marriage. To be sure, there are patriarchal rules in fiqh, and many of these are legislated in modern Muslim-majority countries. For example, women in Iran can’t run for president or attend men’s soccer matches. But these rules are human interpretations, not sharia.” ~~
Image Sources: Wikimedia Commons
Text Sources: Internet Islamic History Sourcebook: sourcebooks.fordham.edu “World Religions” edited by Geoffrey Parrinder (Facts on File Publications, New York); “ Arab News, Jeddah; Islam, a Short History by Karen Armstrong; A History of the Arab Peoples by Albert Hourani (Faber and Faber, 1991); Encyclopedia of the World Cultures edited by David Levinson (G.K. Hall & Company, New York, 1994). Encyclopedia of the World’s Religions” edited by R.C. Zaehner (Barnes & Noble Books, 1959); Metropolitan Museum of Art, National Geographic, BBC, New York Times, Washington Post, Los Angeles Times, Smithsonian magazine, The Guardian, BBC, Al Jazeera, Times of London, The New Yorker, Time, Newsweek, Reuters, Associated Press, AFP, Lonely Planet Guides, Library of Congress, Compton’s Encyclopedia and various books and other publications.
Last updated September 2018