Islam Lecture Notes - Shari`a Law

ISLAMIC RELIGIOUS LAW

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Shari`a is a unique form of law and central to any Islamic worldview. What makes it so unusual?

• Islamic law is the totality of God’s commands that regulate the life of every Muslim. It is the core of Islam.
• Theology has never been as important.
• Only mysticism has challenged Shari’a for primacy in regulating the relationship of the Muslim with his God and community.
• Today Shari’a is at the center of the struggle being waged by Muslims between traditionalism and modernism.
• It comprises ordinances regarding
• Worship and ritual
• Political and legal rules
• Details of toilet and formulas of greeting, table manners, and ress
• It proscribes what is lawful and unlawful (halal and haram)
• Rules of conduct are evaluated on scale of 5 values
• Obligatory, recommended, permissible, reprehensible, and forbidden
• Islam was never a Church like Christianity
• Shari`a was never supported by an organized power
• A gap has always existed between sacred law and the reality of actual practice
• Sometimes that gap was wider than at others
• There have been two important changes of direction in the history of Islamic law
• Early on legal theory denied the existence of all elements which were not in the narrowest sense Islamic
• i.e. based on the Quran and tradition, “Sunna”- the example of the Prophet and – his reported acts and sayings
• For 22 years during revelation the prophet was the prime interpreter of the Quran, and his recorded statements about how its teachings are to be put into effect form the basis of the Sunna, the paradigm of behavior that every Muslim must follow. As God says to the Prophet:
  We have revealed unto you the Remembrance, so that you may explain to people that which has been revealed from them” (Quran 16:44)
• The Quran also says: “A good example you have in Allah’s Messenger, for all whose hope is in Allah and in the Final Day and who remember Allah frequently” (33:61). “Obey Allah and the Messenger so that you may find mercy” (3:132).
• During the last century modernizing Islamic governments have tried to renovate traditional shari`a
• History of Shari`a
• The lifetime of the Prophet was unique
• Revelation and example of the Prophet
• There was no need for reasoning and intellectual exertion (Ijtihad) because Muhammad ruled
• Caliphs of Medina: Rashidun or (rightly guided) 632-61
• Traditions of the Prophet’s companions also help establish Hadith (a verified account of a statement or action of the Prophet)
• The companions interpretations are authoritative because of their participation in the origins of Islam
• They used personal reasoning to settle issues
  
• Umayyads – first dynasty of Islam, 661-750
• Framework of the new Muslim society was established
• New administration of justice
• Islamic jurisprudence (fiqh) – human understanding and knowledge created and through it Islamic law
• Emergence of two broad schools of legal thought
• “Traditionalists” (Ahl al-hadith) and Rationalists (Ahl al-Ray)
• Shiite school of law
• Advocated doctrines different from Sunnis based on continued revelation if Imams (divinely appointed leader and successor of Muhammad)
• In absence of Imam, the community must practice ijtihad
• This leads to Khomeini and Islamic republic - hukm al-faqih
• Abbasids (750-950) tried to make Islamic law the only law of the state
• Qadis were bound to the sacred law
• No permanent fusion of theory and practice
• The result: Islamic law became removed from practice, but gained power over minds of Muslims if not bodies
• Four Legal Schools emerge: Hanafi, Maliki, Shafii, and Hanbali
• Abu Hanifah, d. 767, adopted by Ottoman Turks, Most liberal school
• Advocated legal reasoning by analogy (qiyas)
• Personal opinion (istihsan)
• Prevails in Turkey. Pakistan, Jordan, Lebanon, Afghanistan
• Malik ibn Abbas al-Asbahi , d. 795
• Traditionalist – But later adopted more liberal approach
• Morocco, Algeria, Tunisia, northern Egypt, Sudan, Kuwait
• Muhammad ibn Idris al-Shafii, d. 820
• Tried to reconcile between Traditionalists and Rationalists
• Prevalent in southern Egypt, East Africa, Indonesia, Malaysia and parts of Arabia, Palestine, Syria and Jordan
• Ahmad ibn Hannibal, d. 855
• Traditionalist, preferred not to rely on human reasoning
• Prevalent in Saudi Arabia, Oman and Qatar
• By 900s, dismemberment of Islamic Empire well under way
• Shari’a became rigid and stagnant – followed precedent (taqlid)
• Closing of the gate of ijtihad
• Helped it survive despite decay of political institutions of Islam
• It lost touch with social developments
• Early modern period: Ottomans and Moguls
• Islamic law enjoyed highest degree of efficiency since early Abbasid times
• Modern times and reception of Western political ideas has provoked modernist legislation on a massive scale
• “Neo-ijtihad”
• Especially as concerns personal law, i.e. women, divorce,

• Sources of Shari’a: Quran, Sunna and Reasoning
• Revealed sources: Quran and Sunna
• 3% of Quran deals with legal matters:
• 350 legal versus, ayat al-ahkam
• 140 relate to dogma and duties – five pillars
• 70 relate to marriage, divorce, paternity, child custody, inheritance, and bequests
• 70 – commercial transactions
• 30 – crimes and penalties
• Non-revealed sources:
• Ijtihad – juristic reasoning
• Qiyas – analogy (i.e. smoking from drinking)
• Istihsan – juristic preference
• Istislah – public interest
• Ijma` - consensus
• Ijma` and Qiyas have been widely accepted by Ulama (jurists)

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