Islamic Law Research Paper

The word sharia is normally translated as Islamic law, but not law in a narrow sense. It might better be translated as “a way of life,” as is suggested by its literal translation, “a way” or “a path.” In other words, the sharia instructs about all that is personal, religious, economic, social, and political. Generally, only four sources for the prescriptions and prohibitions of the sharia are recognized: the Qur’an, the Sunna, consensus, and analogy. But this is an idealization of how the law came to be formed, as it actually took several centuries, the growth of the schools (madrasahs), and codification of the traditions (hadith) of Muhammad and his companions for the sharia to reach full development.

The first source of law for the sharia is the Qur’an. For Muslims all aspects of life fall under the purview of the commands of God, for he is the almighty and supreme lawgiver. His will is recorded in the Qur’an, and so following it is a religious duty of a Muslim. The Qur’an is thus both scripture and legal document.

The Qur’an repeatedly orders Muslims to obey Muhammad and states that he is their example. As the Prophet, his functions included explaining and applying the revelations, and acting as the judge for his people. And, since Muhammad was divinely guided, his actions and sayings are God’s will. Thus, the conduct of Muhammad, known as the Sunna and transmitted in the form of hadiths (traditions), is also legally binding. In the Sunna, many of the legal subjects of the Qur’an are elaborated and many others are addressed. Thus, while the Qur’an is the supreme source of the sharia, many of its laws are derived from and dependent upon the interpretations of the Sunna. There is a considerable range of opinion about the Sunna, even today. For many Muslims the traditions serve only as a general guide; but for just as many, they serve as a source of law second only to the Qur’an.

There is a hadith that states Muhammad said, “My community will never agree in error.” If hadiths are indeed legally binding, then this hadith implies that consensus is an acceptable source of law as well. Thus, whatever is accepted by the entire community as true or prescribed must be treated as true or prescribed.

The fourth source of law is reason by analogy. For example, if the Qur’an prohibits the use of wine, then narcotics are also, by analogy, prohibited. The principle is that the impairment to one’s judgment caused by wine is analogous to that caused by narcotics. If the former is prohibited, then the latter is also.

The Major Schools of Islamic Law

That Muslims came to see these four sources as the only legitimate ones is largely due to the work and influence of the great jurist, Abu ‘Abd Allah ash-Shafi’i (767–820 CE). Prior to him, Muslim rulers had laws in their empires; however, these laws could vary enormously from region to region. Arab tribal law, Qur’anic prescriptions, and local Byzantine or Sasanian law were used as needed. A rapidly expanding empire and administration forced them to be expedient. In the cities of the empire various law schools were forming. Each of them used slightly different methods and so produced different laws. In Medina a school formed around Malik ibn Anas (c. 715–795 CE), who produced the first Muslim legal compendium, in which he discussed various legal issues by citing the relevant verses from the Qur’an and hadiths from the Sunna, and then interpreted them in light of consensus of opinion of jurists in Medina. Another important school was formed around the scholar Abu Hanifah (699–767 CE) in Al-Kufa. The cosmopolitan nature of the city and its distance from the Mecca and Medina resulted in many different interpretations of the law. For example, in the case of a wrongful death in Medina, the guilty person’s whole tribe was responsible for his actions and had to pay compensation to the family of the dead man. In Medina, Arab tribal ways were still the custom. In Al-Kufa, the Arab tribal system was weakening and being replaced by new urban social structures. Thus, only the guilty party was responsible for paying the compensation. The Hanafischool in Al-Kufa respected the Qur’an and Sunna, but was more open to outside influences such as Roman law and the use of reason.

Ash-Shafi’i, seeing these differences, thought that the methods used to produce Islamic laws should be the same from place to place and ruler to ruler because the sharia, as God’s law, must itself be uniform. The supremacy of the four sources and yet another school of law, the Shafi’i, developed out of his work. So influential was ash-Shafi’i and his emphasis on the Sunna that both the Maliki and Hanafischools eventually largely adopted his four-sources model for themselves.

The last of the four schools of law that have survived until today in Sunni Islam is that of Ahmad ibn Hanbal (780–855 CE). Ash-Shafi’i, despite his focus on the Qur’an and the Sunna as sources of law, represents a compromise between those who used reason as a source and those who rejected it. Ibn Hanbal belonged to this latter group. Each and every law must be rooted in either the Qur’an or the Sunna. Ibn Hanbal took this principle so seriously that it is said that he refused to eat watermelon because it was not mentioned in the Qur’an, nor did he know of a tradition from the Sunna that indicated that Muhammad had eaten it. (This is hardly surprising, since watermelon would not have grown in any of the regions in which Muhammad had lived.)

There were several other schools of law in Sunni Islam, but only the Maliki, Hanafi, Shafi’i, and Hanbali survive. The Abbasid dynasty adopted the Hanafischool. It spread to India and from there to east Africa and Southeast Asia. The Ottomans also adopted it and so today it is the law followed by Muslims of Bosnia and Herzegovina, Turkey, Syria, Iraq, Jordan, and portions of Eqypt and North Africa. The Maliki school spread west from his home in Medina to Africa. The Sudan, Eritrea, Somalia, Libya, Tunisia, Algeria, and parts of Egypt and Nigeria practice Maliki law. The Shafi’i school spread in opposite direction. It began in Egypt but moved to South Arabia, then east along trade routes to the Indian coast and Southeast Asia. Most Muslims of Malaysia, Singapore, Indonesia, the Philippines, and Sri Lanka adhere to the Shafi’i school. The last school to form, the Hanbali, is only practiced in Saudi Arabia.

Islamic law in Shi’a tradition is different. The Qur’an and the Sunna are still the most important sources of law. However, Sunnis and Shi’as differ on other sources of law in several significant ways. First, the traditions that form the Sunna for Shi’i Muslims are different than those for Sunni Muslims. Second, the legal opinions of the imams are also binding for Shi’as because God guided the imams. And third, for Imami (or Twelver) Shi’i Muslims (whose imam is hidden) consensus has no legal force, but the use of reason by the top jurists, who are thought to be under the influence of the hidden imam, is encouraged. Today, this school of law continues to be practiced in Iran.

The Use of Reason in Islamic Law

Each of the different law schools had a different approach to the use of reason. For some, the use of reason in matters of law was not much different than the scholar’s opinion. But this approach was eventually rejected by almost all and the common view was that a jurist had no right to produce law on the basis of what he supposed to be right. Instead, opinion had to backed by a source such as the Qur’an or the Sunna. The problem was that if each jurist used his own opinion, the law would not only vary from region to region, but from person to person. And, more importantly, law based on human opinion was not divine law. This use of opinion was strongly opposed by the Shafi’i and Hanbali schools. However, in the early Maliki and Hanafischools opinion in the form of reason was used, although many of their conclusions were later supported by use of the four sources of Islamic law.

Opinion or judgment was still used in analogy and consensus. That is, the jurist had to determine what was common between a previous case and a new case when an analogy was adduced. (In the example above, it was the impairment caused by both wine and narcotics.) Likewise, consensus as a source of law implies consensus of opinion. However, because of the diversity of Muslims, the use of this method was impractical in all but the most basic beliefs and practices. In addition, the opinions, or more accurately the formal legal judgments, of Muhammad’s companions, such as the rightly guided caliphs, were often considered legally binding.

Further Options for the Jurist

There are two other sources of law that are closely related to each other and to the use of reason. The first allows judges some leeway in the interest of fairness. The jurist is allowed to pick the solution that seems to him the fairest of all possible solutions to a legal case. The second is consideration of public welfare. That is, a regulation that prevents harm to or secures a benefit for the community can be issued by a jurist.

Each of these rational methods is practiced by at least some of the schools of law. None, including the use of analogy, is allowed to infringe on stipulations provided by the Qur’an and the Sunna. Nor do these methods have relevance when it comes to religious doctrines and practices; such matters are the exclusive jurisdiction of the Qur’an and the Sunna. However, they do demonstrate that the sharia can be and has been partially adaptable to new situations as they arise, despite the rigid framework that ash-Shafi’i promulgated.

Customary Islamic Law

Prior to the revelations to Muhammad, the Arab tribes may not have had a formal legal system, but they did have traditional ways of doing things that, even if they were not written down, did regulate and guide their lives. This Arab tribal custom survived the coming of Islam. In fact, Arab tribal law and perhaps even some of Roman (Byzantine) and Sasanian law as practiced in Egypt, Syria, and Iraq were incorporated into the sharia.

In the sharia, custom is not normally a formal source of law, and when it is, it is not given much prominence. In practice however, it had an enormous impact. Custom was absorbed into the sharia in many ways. Sunna not only consists of that which Muhammad said and did, but also that of which he tacitly approved. That is to say, activities of Muslims of Muhammad’s time, if he did not explicitly comment on them, are assumed to have had his silent approval. The Maliki school based in Medina held that as the ones living in the home of the Prophet, they, more than anyone else, practiced the customs of which Muhammad approved. For the founder of the Maliki school, Malik ibn Anas, the local custom of Medina was equated with consensus—since all (Medinan) Muslims agreed on their custom. In this manner more Arab tribal custom entered the sharia.

Qanun (Sultanic Prerogative)

The sharia is normally thought of as encompassing all aspects of life. It provides regulations concerning activities as diverse as performing prayer, paying tithes, getting married, committing adultery, charging interest on loans, receiving inheritance, obeying authorities, and taxing Jews and Christians. The religious, social, economic, and political all fall under the purview of the sharia. And so it is assumed that the sharia regulates all aspects of life. However, the rulers of Muslim territories—caliphs, governors, and later sultans—found that they needed to make their own regulations for activities not addressed by the sharia. These regulations, civil laws, or codes came to be known as Qanun, from a Greek word for imperial taxes.

Qanun (especially in the sense of financial regulations issued by the ruler) began quite early in the Islamic world with the second caliph, ‘Umar I (c. 586–644 CE). He decided that the newly conquered land in Iraq that had belonged to the Sasanian state, aristocracy, and priesthood should not be divided among the conquerors, but held for the payment of salaries of Muslims. Likewise, the land tax system ‘Umar adopted was based on the Sasanian model. For such practices the sharia is silent, and so there is no conflict between it and Qanun.

From Qanun as financial regulations, which were issued by the caliph or some other ruler, developed the practice of sultans issuing laws not found in the sharia, which they ordered without any consideration for the legal principles that were used to establish laws in the sharia. That they could do so was based on power—their authority as the ruler.

Despite these dictatorial actions by some sultans, the Qanun and the sharia have generally been free of conflict. Originally, Qanun did not trespass into areas where the sharia had jurisdiction. Additionally, in the early years of Islam, there was more allowance for other sources of laws for the sharia. For example, decrees, like those by ‘Umar, along with customary law, could be integrated into the law by interpreting them as in accord with the behavior of Muhammad, his companions, and the early Muslim community, and not exclusively that of Muhammad. Also, a product of ash-Shafi’i’s reform was to produce a narrower definition of what constituted sharia. As a result, many of the administrative concerns of the caliphs and sultans fell conveniently outside of the sharia’s jurisdiction. This suited the sultans, who were eager to increase their own power vis-a-vis that of the caliph, whose duty it was to enforce the sharia. Finally, the right of the sultan to make and enforce law was justified within the sharia by arguing that it served the public interest. And so jurists, and hence the sharia, gave to the sultan the jurisdiction in matters of the military, non-Muslim taxes, conquered land, penal codes, the economy, and any matter on which the sharia was silent. Moreover, the public had a religious duty to follow these orders from the sultan.

Sharia and Qanun

The situation changed somewhat after the fall of the Abbasids in 1258, when the sultan’s authority to generate all manner of laws greatly increased. The Turks and the Mongols brought from Central Asia a tradition that gave the ruler the power to issue decrees for the sake of justice and the welfare of the state as he saw fit. This form of state law became common in the Ottoman and Mughal empires. Under the Ottoman sultan Suleyman I (1494 or 1495–1566) an official set of Qanun were promulgated in the empire. Generally, a sultan would issue an edict as the need arose. These first applied only to administrative, fi- nancial, or penal codes. For example, under the Ottomans, guilds developed codes that judges of the sharia implemented. However, later in the Ottoman empire, Qanun also addressed property laws, a subject that is well covered by the sharia. Some jurists criticized this, as they believed that the sultans were overstepping their rights and could not supersede the sharia under any circumstances. Others supported the sultans by invoking legal principles of the good of the community, customary law, or even traditional laws, especially in newly conquered territories.

Traditional Islamic Laws in African and Asian Societies

Just as the pre-Islamic Arabs had customary laws, so too did the peoples to whom Islam came later. No less than those of the Arabs, the indigenous customs of these peoples, particularly in Africa, south Asia, and Southeast Asia, were very durable. However, they could not be absorbed into the sharia through Sunna by means of tacit approval and consensus. Nor did these traditional laws, unlike Qanun, try to avoid the jurisdiction of the sharia. The traditions had to stand apart or even in opposition to the sharia. For some Muslim peoples, the social reality did not concur with the religious ideal that the sharia was the sole guide to a Muslim life. Islam became their religion, but not their way of life.

Of course, in reality there was often a compromise between the sharia and custom. At one end of the spectrum, the religious courts that implemented the sharia had largely eliminated local custom, and at the other there may not even have been religious courts, so that all legal matters fell under the purview of customary courts. However, the two could also operate in conjunction, dividing up the legal realm between them. That the sultan had some discretion in this matter made it easier to join traditional laws and the sharia. Occasionally, traditional practices could still be sanctioned by the sharia through the use of various legal means, such as juristic preference and ensuring public welfare. It was also possible for the sharia to function within the established religious courts, but for people to simply ignore the courts in favor of traditional ways. North Africa, India, and Southeast Asia are three regions of the Muslim world where people have often preferred their traditional laws and customs to the all-encompassing claims of the sharia. And, as we see below, in these contexts, an accommodation was often made between the two legal systems producing unique forms of Islamic law or at least unique ways in which it was enforced.

North Africa

In North Africa, the sharia and local custom often differed about such matters as marriage, inheritance, and rent for agricultural land. For example, when a Berber man marries, his family makes a payment to the bride’s father, not to the bride as specified in the sharia. Nor, in direct contradiction to the Qur’an and the sharia, is a woman allowed to inherit property under Berber custom. And the Berber practice of renting farmland by paying a percentage of the crops to the owner goes against the sharia’s demand for a fixed, predetermined monetary fee. In matters of inheritance, some Berbers simply ignore the religious courts of the sharia in favor of custom, and in the matter of land rental, the sharia courts have come to recognize and administer the customary practice. Of course, this becomes even more complicated because the customs might differ among the Berbers of Tunisia, Morocco, and Algeria and even among those of a single country. In other regions of Africa, the sharia and local custom have combined to form a single, composite legal system.

India

In India, Muslims have always been a minority among a very large Hindu population. Hindu customs and laws therefore remained dominant even among the Indian Muslims. This is particularly true for inheritance and marriage laws. Several Muslim groups, following certain Hindu practices, excluded females from inheritance. Other Muslims, in the south, did direct inheritance to a woman and her descendants. Both practices violate the strict proportions assigned to various male and female family members by the sharia. Moreover, according to the sharia, no more than one-third of an individual’s estate can assigned by him. This means that at least two-thirds of it must be divided in the stipulated proportions. Again, some Muslims followed the practice of Hindus, which allows the whole estate to be distributed as desired. With respect to the marriage, Muslim Indians of the South do exchange money, but it is the bride’s family who makes a payment to the groom, a custom called dowry. Even the charging of interest on loans, an activity that is expressly forbidden in the sharia, was practiced by some Indian Muslims. Therefore, it seems that for Indian Muslims living in a Hindu society, customary practice was often more compelling than the sharia.

Southeast Asia

The third region in which the sharia and traditional ways clashed is Southeast Asia. Islam did not come to the region by conquest, so the Islamic legal system was not imposed on the native peoples of what are now Malaysia and Indonesia by force. Thus, unlike Muslims of North Africa and India, where elements of customary practice survive despite the presence of the sharia, Muslims in Southeast Asia continued to follow their traditional customs. For example, the sharia has not overridden the customs of the matrilineal societies on the island of Sumatra. In these societies, unlike in the Middle East, people trace their family ties only through their mother’s family. This means that the relatives who matter most when it comes to inheritance are your mother’s parents and her brothers and sisters.

The Ideal Versus the Reality in Islamic Law

The assertion that the sharia, as God’s eternal divine will for humanity, is applicable to all Muslims, at all times, in all places, and in all circumstances remains an ideal, but is often modified by the actual local practice of many Muslims. Customs concerning family and finances, particularly when combined as in issues of inheritance and marriage, tend to have a tenacious hold. Even in Arabia itself some Yemeni tribes refuse to abandon their custom of denying women the right to own property in contradiction to the sharia. Historical factors such as the manner in which Islam was brought to a region and the degree to which people have adopted Islam affect whether it is the sharia or customary practice that is followed in daily life.

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