1. Introduction to Islamic law
Islamic Law is also called and known by Sharia. Sharia is the moral
code and religious law of Islam. Sharia deals with many topics addressed
by secular law, including crime, politics, and economics, as well as
personal matters such as sexual intercourse, hygiene, diet, prayer,
everyday etiquette and fasting. Though interpretations of sharia vary
between cultures, in its strictest definition it is considered the infallible law
of ALLAH—as opposed to the human interpretation of the laws. (fiqh)
There are two primary sources of sharia law: the precepts set forth in
the Quranic verses (ayahs), and the example set by the Islamic
prophet Muhammad in the Sunnah. Where it has official status, sharia is
interpreted by Islamic judges (qadis) with varying responsibilities for the
religious leaders (imams). For questions not directly addressed in
the primary sources, the application of sharia is extended through
consensus of the religious scholars (ulama) thought to embody the
consensus of the Muslim Community (ijma). Islamic jurisprudence will also
sometimes incorporate analogies from the Quran and Sunnah
through qiyas.
The concept of crime, judicial process, justice and punishment embodied in
sharia is different from that of secular law.The differences between sharia
and secular laws have led to an on-going controversy as to whether sharia
is compatible with secular democracy, freedom of thought, and women's
rights.
In secular jurisprudence, sharia is classified as religious law, which is one
of the three major categories that individual legal systems generally fall
under, alongside civil law and common law.
2. History of Islamic Law (Sharia)
The origin of sharia is the Quran, and traditions gathered from the life of the
Islamic Prophet Muhammad P.B.U.H.
Sharia underwent fundamental development, beginning with the reigns
of caliphs Hazrat Abu Bakr R.A (632–34) and Hazrat Umar Farooq
R.A (634–44), during which time many questions were brought to the
attention of Muhammad's closest comrades for consultation. During the
reign of Muawiya & Abu Sufyan ibn Harb, Islam undertook an urban
transformation, raising questions not originally covered by Islamic law.
Since then, changes in Islamic society have played an ongoing role in
developing sharia, which branches out into fiqh andQanun respectively.
The formative period of fiqh stretches back to the time of the early Muslim
communities. In this period, jurists were more concerned with pragmatic
issues of authority and teaching than with theory. Progress in theory
happened with the coming of the early Muslim jurist Muhammad ibn Idris
ash-Shafi'i (767–820), who laid down the basic principles of Islamic
jurisprudence in his book Al-Risala. The book details the four roots of law
(Quran, Sunnah, ijma, and qiyas) while specifying that the primary Islamic
texts (the Quran and the hadith) be understood according to objective rules
of interpretation derived from careful study of the Arabic language.
There has been a growing religious revival in Islam, beginning in the
eighteenth century and continuing today. This movement has expressed
itself in various forms ranging from wars to efforts towards
improving education.
3. Definition and Descriptions
Sharia, in its strictest definition, is a divine law, as expressed in the Quran
and Muhammad's example (often called the sunnah). As such, it is related
to but different from fiqh, which is emphasized as the human interpretation
of the law. Many scholars have pointed out that the sharia is not formally a
code, nor a well-defined set of rules. The sharia is characterized as a
discussion on the duties of Muslims based on both the opinion of the
Muslim community and extensive literature.Hunt Janin and Andre
Kahlmeyer thus conclude that the sharia is "long, diverse, and complicated.
From the 9th century, the power to interpret and refine law in traditional
Islamic societies was in the hands of the scholars (ulema). This separation
of powers served to limit the range of actions available to the ruler, who
could not easily decree or reinterpret law independently and expect the
continued support of the community. Through succeeding centuries and
empires, the balance between the ulema and the rulers shifted and
reformed, but the balance of power was never decisively changed. At the
beginning of the nineteenth century, the Industrial Revolution and the
French Revolution introduced an era of European world hegemony that
included the domination of most of the lands of Islam. At the end of the
Second World War, the European powers found themselves too weakened
to maintain their empires. The wide variety of forms of government,
systems of law, attitudes toward modernity and interpretations of sharia are
a result of the ensuing drives for independence and modernity in the
Muslim world.
4. Sources of Islamic law (Sharia)
There are two sources of Sharia (understood as the divine law): the Quran
and Sunnah:
The Quran is viewed as the unalterable word of God. Much of the
Quran exhorts Muslims to general moral values; only 80 verses of the
Quran contain legal prescriptions.
The Sunnah is the life and example of the Islamic prophet
Muhammad P.B.U.H. The Sunnah's importance as a source of Sharia, is
confirmed by several verses of the Quran
The process of interpreting the two primary sources of Islamic law is
called fiqh (literally meaning "intelligence") or Islamic jurisprudence. While
the above two sources are regarded as infallible, the fiqh standards may
change in different contexts. Fiqh covers all aspects of law, including
religious, civil, political, constitutional and procedural law. Fiqh depends on
4 sources:
1. Interpretations of the Quran
2. Interpretations of the Sunnah
3. Ijma, consensus amongst scholars ("collective reasoning")
4. Qiyas/Ijtihad analogical deduction ("individual reasoning")
Primary Sources:
Quran
Sunnah
Quran:
The Qur'an is the first and most important source of Islamic law.
Believed to be the direct word of God as revealed to Muhammad through
angel Gabriel in Mecca and Medina, the scripture specifies the moral,
5. philosophical, social, political and economic basis on which a society
should be constructed. The verses revealed in Mecca deal
with philosophical and theological issues, whereas those revealed in
Medina are concerned with socio-economic laws. The Qur'an was written
and preserved during the life of Muhammad P.B.U.H, and compiled soon
after his death.
The verses of the Qur'an are categorized into three fields: "science of
speculative theology", "ethical principles" and "rules of human conduct".
The third category is directly concerned with Islamic legal matters which
contain about five hundred verses or one thirteenth of it. The task of
interpreting the Qur'an has led to various opinions and judgments. The
interpretations of the verses by Muhammad's companions for Sunnis
and Imams for Shias are considered the most authentic, since they knew
why, where and on what occasion each verse was revealed.
Sunnah:
The Sunnah is the next important source, and is commonly
defined as "the traditions and customs of Muhammad" or "the words,
actions and silent assertions of him". It includes the everyday sayings and
utterances of Muhammad, his acts, his tacit consent, and
acknowledgments of statements and activities. According to Shi'ite jurists,
the sunnah also includes the words, deeds and acknowledgments of
the twelve Imams and Fatimah, Muhammad's daughter, who are believed
to be infallible. Hadith are classified into three categories.
1. Undubitable (mutawatir), which are very widely known, and backed
up by numerous references.
2. Widespread (mashhur), which are widely known, but backed up with
few original references.
3. Isolated or Single (wahid), which are backed up by too few and often
discontinuous references.
In a shariah court a qadi (judge) hears a case, including witnesses’ nd
evidence. Then the qadi makes a ruling. Sometimes the qadi consults a
mufti or scholar of law, for an opinion.
6. Secondary Sources:
Ijma (Consensus)
Qiyas (Analogical reason)
Ijma:
The ijma' , or consensus amongst Muslim jurists on a
particular legal issue, constitutes the third source of Islamic law.
Muslim jurists provide many verses of the Qur'an that
legitimize ijma' as a source of legislation. Muhammad P.B.U.H.
himself said:
"My followers will never agree upon an error or what is
wrong".
"God's hand is with the entire community".
In history, it has been the most important factor in defining the
meaning of the other sources and thus in formulating the doctrine
and practice of the Muslim community. This is so
because ijma' represents the unanimous agreement of Muslims
on a regulation or law at any given time.
Qiyas:
Qiyas or analogical reason is the fourth source of
the sharia for the majority of Sunni jurisprudence. It aims to draw
analogies to a previously accepted decision. Shiites do not accept
analogy, but replace it with reason (aql); among Sunnis,
the Hanbalites have traditionally been reluctant to accept analogy
while the Zahirites don't accept it at all. Analogical reason in Islam
7. is the process of legal deduction according to which the jurist,
confronted with an unprecedented case, bases his or her
argument on the logic used in theQur'an and Sunnah. Legally
sound analogy must not be based on arbitrary judgment, but
rather be firmly rooted in the primary sources.
Supporters of the practice of qiyas will often point to passages in
the Qur'an that describe an application of a similar process by
past Islamic communities. According to supporters of the practice,
Muhammad P.B.U.H. said: "Where there is no revealed
injunction, I will judge amongst you according to reason."
