Introduction to Sharia Law
The most characteristic activity of Islamic scholarship has not been, as in other religions, theology, but the study and explication of the Law. The Arab-Muslim Empire found itself in need of a legal system for the exigencies of political power and did not have any coherent earlier legal system of its own at its disposal as the early Christians did in the legal system of the Roman Empire.
The Bedouin Arabs were individualistic; they had no law and no constitution, they simply feared their tribal gods. There were more developed legal ideas at the trading centre of Mecca and the Jews of the Hijaz had Jewish law. Some of the nearby conquered lands had lived under Roman law for many years.
In establishing Islamic law the Quran along with the hadith was the first resort which the early Khalifas decided to adopt. This was comparatively simple for all they had to do was to administer the law according to the opinions which they knew Muhammad had held. The memories of his companions lengthened as the years went by; as it was necessary to have his sanction for all that was done. In forming their judgements they had no recourse either to speculation, to private opinion, or to arguments founded upon analogy.
Muslim law evolved over a couple of hundred years, in the countries at the heart of the Islamic empire. The Islamic conquest made Arabia wealthy. Money, slaves, and the luxuries of the Syrian and Persian civilizations influenced the conquerors. While the military commanders devoted themselves to conquest, the scholars who stayed behind spent a great deal of time interpreting the Quran, and studying the Hadith. Separated from the seat of political power which had been transferred to Damascus, these scholars prepared an ideal picture of Islam. It was completed by the Sunni law schools in the ninth century e. g. the collection of Al Bukhari who died 257 years after the Hijra.
A study of the history of the Umayyad and Abbasid dynasties show that the practical politicians had problems in keeping to the exact letter of the law which was being formed by the scholars. The usual result was for the politicians to enforce whichever aspect of the sharia suited them at any particular time.
The Sharia – the complete way of life
It has been said that every Arabic word basically has some connection with the camel. ‘Sharia’ is the road to the watering place, the clear path to be followed. So the word has come to mean the path (way) to be followed by Muslims, in the hope of arriving at the place where rivers flow under the garden, the paradise of the Quran. The Sharia is the canon law of Islam, said to have been given by Allah. It is mentioned in the Quran: “Then We put thee on the (right) way (sharia) of religion: so follow thou that (way), and follow not the desires of those who know not” (Al-Jathiyah 45:18).
Muslims say that Islam is the complete way of life not only for Muslims, but for all mankind, and the Sharia is the code of law by which a person can arrive at that ideal life. Many Muslims claim that the Sharia is permanent for all people in all nations, and does not change with time and conditions they therefore seek to introduce the system in countries throughout the world. It is seen primarily as an all-embracing legal system, which should ideally govern all phases of Islamic life however, for practical reasons of public welfare Muslim rulers have often suspended the application of certain portions of the public law substituting it with secular law; this has been especially true for the laws of punishment. The divine law, it is said, has not been revoked but has not been enforced for temporal reasons.
Muslims then, conceived their religion as being a community which says yes to Allah and his world in which legal performances were looked upon as being of positive religious value. Many Muslims belong to one of the four legal schools (madhab) whose precepts dictate how they are to perform their religious duties and how they are to interpret the law. They may feel the school they follow is best and while there have been occasions of religious and political tensions between one school and another – the official position is that all four are right and. Many western Muslims draw their guidance from multiple ones although most authorities consider this is not permissible.
For practical purposes the Sharia covers: 1) The whole aspect of the duties of Muslims in connection with their religious, political, social and personal lives while within a Muslim country. 2) The regulations of ritual duties of Muslims while outside a Muslim country. 3) The activities of members of other religions which may be tolerated within a Muslim country insofar as they may not be detrimental to Islam.
A Muslim is expected to accept the Sharia without inquiring into the principles on which it is based or the reason for its demands. Muslims who would like to bring the Sharia up to date are considered heretics. Those who have put forward proposals for a modernised law know that their lives are at risk from the fundamentalists.
While there is no priesthood or clergy in Islam a class have acquired social and religious prestige identical to that exercised by the priests of other religions. This is the ulema (the learned) and the fuqaha (lawyers) – the scholars and custodians of the law. It is they who have traditionally decided what is the ‘official position.’ The legal texts produced by the ulema while authoritative are not held to be infallible and they frequently differed amongst themselves. Exactly what bearing their endeavours should have on the life of Muslims today is one of the more pressing and hotly debated issues of modern Islam. It is an extremely sensitive area.
The sources of the Sharia
There are four sources of the Sharia Law and they are called the ‘Usul al Figh.’ 1. The Quran; 2) The Hadith; 3) ijma’ (unanimous consent); 4) qiyas (reasoning by analogy). A Muslim would say that the Quran is the main basis of the Sharia however, the total number of Quranic verses considered to have legal importance is not more than 600. The example of Muhammad as found in the traditions, or Hadith provides the details of the conduct commanded by the Quran.
The principle of unanimous consent (ijma‘)
With the expansion of the empire and under new conditions of life, questions arose about which Muhammad had given no explicit direction. In these circumstances Muslim doctors had recourse to the exercise of their own reason, thus giving rise to a new criterion, ijma’. The original founders of the Muslim law schools varied in their use of the Quran and the Hadith. When abrogation was a problem, they sometimes agreed on various issues, and some considered that this consensus or agreement itself (ijma‘) could be used as a basis for the Sharia.
This foundation of the unanimous consent of the doctors is based on the words said to be affirmed by Muhammad “My people will never agree in an error.” An interesting example of the exercise of this principle in its simplest form can be seen in the election of Abu Bakr to the Caliphate. This act came to be spoken of as the ijma’-ul-ummat, or the unanimous consent of the Muslim community. The “six books” of the ahadith and the four schools of law also owe their official recognition to the ijma‘ of the Muslim people.
At first it seemed natural to conclude that such agreement should be found only in the opinions of the Companions of the Prophet and their successors (the Sahaabah), because, as the first disciples, they were supposed to have been directly trained by Muhammad, and because all of them had lived in what came to be thought of as the golden age of Islam. There were some who restricted the principle to the ijma’ of the Ashab, i.e. the Companions, including the first four caliphs but in practice it was found impossible to limit its use to these.
The principle of analogical reasoning (qiyas)
A further additional procedure was the practice of reasoning “by analogy.” Once again it was justified by an incident recorded in the life of Muhammad. He wished to send a man named Mu’adh to Yaman to receive some money collected for alms, which he was then to distribute to the poor. On appointing him, he said: “O Mu’adh, by what rule will you act?” He replied, “By the law of the Quran.” “But if you find no direction therein?” “Then I will act according to the sunna of the Prophet.” “But what if that fails?” “Then I will make a logical deduction and act on that.” Muhammad is reported to have raised his hand and said, “Praise be to God who guides the messenger of His Prophet in what He pleases !”
This principle embodies the idea, held tenaciously by the orthodox that in Islam a perfect law has been given to govern the details of religious, social and political life. In other words, it is believed that the teaching of Muhammad contains the solution of every difficulty likely to arise: that is to say, every law not provided, can be, and must be, deduced analogically, and since all first principles are contained in the Quran and the sunna, what does not coincide with them must be wrong.
Fiqh (‘understanding’) – the science of laws in respect of all aspects of religious, political and civil life
Books dealing with law were written before the hadith, because this was encouraged by the state. The different law schools which later developed, worked out in minute detail the various regulations affecting the total life of Muslims, this jurisprudence is called fiqh. The four principle methods from which legal prescriptions derived were: the Quran, Sunna, qiyas, and ijima – fiqh became the science which co-ordinated all these roots.
The Ummayads failed to develop a systematic codification of the material in existence. An endeavour to harness a completed system, based on these roots, was made in the second century A.H. under the Abbasids in Medina, Syria and Iraq. In selecting one of the roots in preference to another they attained different results on particular points of law. The oldest corpus which has survived is the Sunni Muwatta (‘the paved way’) of the Medina teacher Malik b. Anas (715-795). He created an original synthesis of the four roots of jurisprudence in the chapters on private law. At the same time the fiqh was being developed in other lands of the Muslim Empire particularly in Iraq from where Abu Hanifa’s school originated.
While Sharia is believed by Muslims to represent divine law as revealed in the Quran and the Sunnah, fiqh is the human understanding of the Sharia expanded and developed by interpretation (ijtihad) of the Quran and Sunnah by Islamic jurists (ulama) and implemented by the rulings (fatwa) of jurists on questions presented to them. A person trained in fiqh is known as a Faqih (plural Fuqaha). Sharia is immutable and infallible, fiqh is fallible and changeable.
Issues that fiqh addresses are religious observances (ibadat); what should be performed and what should be abstained. Family law, law of inheritance, of property and contract – all legal questions that arise in social life – criminal law and procedure, constitutional law, administration of the state and conduct of war.
At present fiqh has developed in four directions within Sunni Islam, they are called after the the Imams on whose teaching they are founded. The Hanafi School is the most prominent – it was the only authoritative code of law in the public life and official administration of justice in all the provinces of the Ottoman Empire. The schools differ from one another only in details which do not constitute fundamental differences. In the Al-Azhar University all four schools are represented as was the condition of the schools before the Ottoman supremacy.
The Shia’ have developed their own legal systems, particularly rich are ‘the Twelvers’ and the Zaidi’s. The most fundamental differences between these and the Sunni lie in constitutional law concerning the caliphate. Shia’s also allow differences in marriage (mut’a) and marriage with women from Jewish and Christian backgrounds (ahl-e-kitab). Their are trifling differences in their call to prayer liturgy and their calendar of feasts, the differences are scarcely more considerable than the differences between the four Sunni schools.
Present day practice and problems with Sharia law
Modern conditions have produced reforms of legal practice in some Muslim countries. Some Muslims say that ‘ijma’ can be used to develop and adapt Islamic law to changing circumstances, and every opinion which is not rejected unanimously will not entail excommunication.
In some Muslim countries, there are two codes of law administered by two separate courts. One judges by the Sharia for private and family affairs, marriages, divorces, inheritance, details of ritual law, law of oaths and vows. Yet in the “family law” courts there are problems for citizens who are not Muslims for example no non-Muslim is allowed to inherit from a Muslim. The other court administers the law and custom of the country, and decides all matters of public and criminal law. Muslim fundamentalists say only heretics and unbelievers take part in such non-Sharia courts, as the Sharia cannot be divided.
In countries which do not have a majority Muslim population, efforts are made to persuade the non-Muslim majority that Muslims should be allowed to live under their own law, beginning with the ‘family law’. Non-Muslim citizens and visitors to Muslim countries are advised to not offend any aspect of Islam, whether religious, political or cultural. Muslims, however, when living in non-Muslim countries, expect to continue their Muslim practices.
Muslim fundamentalists call for a return to the Sharia throughout the world, and brand reformers as heretics. They look back to the days of the ‘rightly guided’ khalifs when there was one law in Islam, and forward to the days of the Mahdi, when the law will be restored. They are convinced that the law which was finalised in the ninth or tenth century is perfect for today. Yet even in the early period of Islam, the Sharia was not always practised as practical rulers often used the customary law found in their conquered territories.
Supporters of the Islamic fundamentalists aim to convert the world to Islam. They say that an Islamic state is based on the model of Muhammad’s state in Medina. In countries where the attempt has been made to introduce the Muslim Sharia as the law of the land, non-Muslims have suffered, and no attempt is made to observe human rights as called for by the United Nations.
It is incorrect to say that there is a unified concept of the sharia law as several competing versions of it exist. They were devised by different scholars of the eighth and ninth centuries A.D. Problems arise because the sharia has little to say about modern situations in which Muslims may be unsure how to conduct themselves. Perplexed, Muslims therefore turn to their modern leaders for guidance and those leaders give a variety of different instructions which fail to unify the Muslim community.
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