Shari'ah Law

I

Introduction

Shari'ah Law or Islamic Law, for Muslims, God's law, as revealed through the prophet Muhammad. The Arabic word “shari'ah” refers, in an Islamic context, sometimes to Islam as a total religious system, but more frequently to the rules that govern the conduct of individuals and the community. The discovery and expression of the law was a human task, usually called fiqh, and carried out by a jurist (faqih): hence, the fiqh of Malik. By contrast, the shari'ah can be attributed only to God, the Prophet, or the community: God's shari'ah. The shari'ah evokes loyalty and commitment in a Muslim; fiqh, at most, respect. In so far as the law of modern Muslim states is perceived to be in line with God's law, it is sometimes called shari'ah. Oppositional and resistance groups also use the term to express the ideal of a just system, and to underline the injustice of a current system.

II

Emergence and Early Development

The earliest systematic expression of Islamic law is found in a bundle of texts attributed to scholars of the late 8th and early 9th centuries. The most important names are Abu Hanifa, Malik, Shafi'i, and Ahmad Ibn Hanbal. These are the four Imams of the Sunni community, each regarded as the founder of a juristic school (madhhab). These schools, together with the legal tradition of the Shi'ah (the other main branch of Islam), represent the five major traditions of juristic thought in Islam. According to Muslim belief, the prophet Muhammad, by virtue of his ideal practice or Sunna, was model and exemplar for his community. When he died in 632 he left the Koran as a primary source of law, together with his Sunna, which was passed on from generation to generation in the form of anecdotes (the Hadith). Over time, the Hadith gave rise to discussion, dispute, and, finally, formal juristic reasoning in the works of the four Imams. This picture of the emergence of Islamic law was challenged by the 20th-century scholar Joseph Schacht. He proposed that the earliest works of Islamic law reflect in fact the “living tradition” of local communities in, for example, Al Kūfah, Medina, and Damascus. This tradition was based on local practice and was only loosely related to the idea of Prophetic Sunna. As a result of dispute, and the consequent need for justification, the principle gradually emerged that all law must be justified by reference to Prophetic hadith. According to Schacht, it was the jurist Shafi'i who first formulated this principle in a systematic manner, thereby providing an impetus to the collection and classification of hadith, and laying the foundations of a methodology for the interpretation of revelation (Koran and hadith).

III

The Literature of the Law

There are two major genres of juristic literature: furu' al-fiqh and usul al-fiqh. The first of these (the “branches” of the law) is a presentation of rules, organized according to topics. Always first in a work of furu' are the topics of worship ('ibadat), namely purity, prayer, alms-giving, fasting, and pilgrimage (sometimes also holy war). The remaining topics include all the normal topics of legal discourse (such as marriage, divorce, inheritance, retribution for wounding, killing, and usurpation of goods, contracts of sale, agency, and hire) and some that have a more private aspect (for example, rules of dress, hygiene, eating). Works of furu' traditionally had many functions—educational, aesthetic, and theological, as well as strictly legal. They were not codes of law, rather, discussions of law.

Works of usul (roots) expound a methodology of interpretation; they identify the sources of the law, explore hermeneutical principles, and elaborate a theory of authority (based on the concepts ijtihad and taqlid; see below).

IV

The Personnel of the Law

The community's guardianship of divine law depended on three functionaries, each fulfilling a community duty: the qadi (judge), the mufti (responding jurist), and the teaching jurist. The qadi was appointed by the governor. His task was to adjudicate in disputes and to oversee some of the affairs of the community (such as the property of orphans or the management of trusts). Highly practical and inextricably social, his post was necessary, but open to corruption, and a potential threat to individual salvation. The mufti was at a higher level. His task was to issue decisive statements of the law in response to questions from the people. His rulings were authoritative, but not binding in the same way as those of the judge. He ranged more widely in the law than a judge, but, mediating between God and man, his task also was dangerous. Of highest honour and rank was the teaching jurist. His task was to explore the law in the light of revelation and school tradition. Though he might articulate preferences, he did not unequivocally declare the law. Esteem within the tradition thus increased with distance from practical legal affairs. Western observers have found this puzzling, and have sometimes characterized Islamic law as failing to be effective in a strictly legal manner. This is perhaps unfair to a tradition of thought that was concerned with more than the merely legal.