Islamic Jurisprudence

• Islamic Jurisprudence
• Islamic jurisprudence is both a very important and a frequently
misunderstood and misrepresented view of the nature and working of law.
• It is also a model of law of vast importance in the modern world, not only
in that substantial number of countries in which it is the sole or dominant
tradition but also more generally through international and trans-national
interactions, for example, in the distinctive character of Islamic
commercial law in the area of international trade.
• Islamic law is a religious law, founded upon the Qu'ran revealed to the
Prophet Muhammad.
• As with any anciently established system of religious law, its jurisprudence
is called upon to deal with two basic structural issues.
• The law was revealed, by definition, at a given point in history and it has
therefore been necessary to develop modes of interpretation to enable
the application of legal rules and principles in social circumstances in
some ways very significantly different from the context in which they were
first received.
• There is then also the question of relations with 'secular' provision,
which is to some degree permitted in Islam. This too has parallels with
other perceptions although the Islamic understanding is very clearly
distinct in its nature.
• From the viewpoint of a general textbook upon jurisprudence a
preliminary question arises as to the basic character of Islamic legal
theory.
• Is it to be considered a form of 'naturalism' as its religious base and
ethical structure must seem strongly to suggest, or is it better considered
to be sui generis in its character and essentially outside such
categorisations?
• The first point to be understood is that the Islamic theory of law is not, as
most western naturalism is, a theory about law upon the basis of which
comparisons and evaluations may be made about its substance.
• On the contrary, Islamic law, the Shari'ah, in the Muslim concept quite
simply is the law. In this sense Islamic jurisprudence should not strictly
be seen as either 'naturalist' or 'positivist' in character since these
categories have little real meaning in a Muslim context. However, whilst
this is true in principle, the reality is, inevitably, somewhat more complex.
• In practice Islamic States, and multi-cultural States in which Islam is the
dominant faith tradition, do have 'secular' law-making institutions and
indeed do so by necessity.
• The Shari'ah lays down both highly specific rules and broad principles
and the latter at least require implementation in given, and mutable,
social circumstances which may differ in a number of regards from those
which obtained in the lifetime of the Prophet.
• To take an obvious example, the Shari'ah makes no direct provision for
the regulation of modem vehicular traffic and by reason of historical fact
could not realistically have done so. Basic principles of social
responsibility within the law, however, indicate clearly what sort of
measures are required and these can be translated into specific rules by
a 'secular' legislative process.
• In many Islamic States there will be one or another form of Religious
Council which advises the government upon the Shariat correctness of
its 'secular' legislation.
• THE STRUCTURE AND SOURCES OF ISLAMIC LAW
• The Shari'ah is considered a holy law revealed by Allah through the Prophet
Muhammad. The matter of divine origin is fundamental to Islamic
jurisprudence and the bedrock and primary source of Islamic law is the text of
the Qu'ran received by the Prophet between the ages of 41 and 63 over a
period of 22 years, 2 months and 22 days.
• As suggested above, the Qu'ranic texts require interpretation and application
and in these processes lie much of the Islamic 'science' of jurisprudence.
• One possible source of confusion is immediately obviated in that only the
classical Arabic text is accepted as authentically the Qu 'ran - translations are
permissible but are not in themselves authoritative.
• All other 'sources' of the Shari'ah are thus not in any way conceived as
alternatives to or variations of Qu'ranic norms but rather as parts of the
process of Tafsir - interpretation and clarification.
• The accepted hierarchy and significance of these other 'sources' was
established by one of the greatest of early Islamic jurists, Muhammad ibn-Idris
ash-Shafi'i, to whom much credit is due for the systematisation of 'scientific'
Islamic jurisprudence at a time when there was a real danger of
fragmentation.
• A significant amount of customary Arabian practice was almost certainly
ingested into the Shari'ah which came thereby to have attributed to it the
authority of God.
• The most important of the sources of the Shari'ah beyond the Qu'ran itself
is treated in effect as a supplementary, but not alternative, primary source
and is the Sunnah - the life and teaching of the Prophet.
• The secondary interpretative sources are then Ijma - the consensus of the
Muslim community, Qiyas - understanding by analogy, and Ijtihad -
understanding by personal reasoning, supposedly ended with the early
'closing of the gates of ijtahad' but possibly reopened in the l3th/14th
centuries AH (i.e., 19th century AD).
• The point at which the law is received is necessarily in some fixed
historical era and whilst general principles may hold good for all time,
detailed applications will need to be considered in the light of social
changes which will almost certainly become more radical as the time of
accepted revelation becomes more remote.
• This is not a problem unique to Islam, it is found in one way or another in
most faiths, certainly all those with significant normative content.
• Islam shares with other faiths the need both to conserve the purity of
foundational doctrine whilst also finding effective application in,
sometimes radically, changing historical circumstances.
• More recently the need has in fact been felt for an increase in the
moulding of application to changing circumstances which has led in some
sense to a reopening of ijtihad.
• These recent developments have given to Islamic law a new historical
perspective. Shar'ia [Shari'ah] doctrine, which grew to maturity in the first
three centuries of Islam and which then remained essentially static for a
period of ten centuries, appears now in the course of further evolution.
• The means by which Islam deals with this basic issue of anciently received
religious laws is one of primary jurisprudential interest and importance.
• 1. Sunnah
• Sunnah is in essence the understanding gained from the life and
practice of the Prophet, including what amounted to judicial
decisions made by him as the first leader of the Muslim community.
• The Sunnah is founded upon reports of the particular Prophetic
decisions and actions known as hadith.
• Two points require immediately to be made. The first is that the
Prophet himself is not being presented as an alternative to the
Qu'ranic revelation.
• The argument is rather that since the Prophet was the one through
whom the Qu'ran was revealed and who in his life lived closely in
understanding of its precepts, his life and practice may be accepted
as a revealed elucidation of the holy text.
• The second, and very important, point is that of the authenticity of
the tradition relied upon - in short the degree of confidence which
may be reposed in the accuracy of the reports of Prophetic speech
and actions. Initially, authenticity was established by an absence of
challenge from those who had actually heard the utterance or
witnessed the action.
• Over the years collections of hadith were built up and after
the lifetimes of the original Companions of the Prophet,
who had personally witnessed his words and actions, a
tradition of critical hadith scholarship developed by
necessity for the testing of the authenticity of claimed
traditions.
• Six canonically accepted collections of hadith were made by
the end of the 3rd century AH (9th century AD) upon the
basis of the techniques of isnad according to which the
authority of any claimed hadith could be assessed.
• Isnad rested in broad outline upon establishing a reputable
chain of report back to a known original witness, or ideally
a group of witnesses. The latter was of especial importance
where the hadith comprised an event rather than a
reported Prophetic statement. Equally obviously, a
purported hadith which was clearly contrary to Qu 'ranic
statement or to another better established hadith would
necessarily be rejected as inauthentic.
• 2. Ijma
• The concept of ijma is basically that of the scholarly consensus of the Islamic
community (the Ummah). As a source of law it is clearly derivative in
distinction from the Qu'ran itself and from the traditions of the Sunnah, is
nonetheless accepted as an authority upon the basis of an interpretation,
understanding which the Islamic community as a whole, or at least its ex jurists,
agree is exceedingly unlikely to be erroneous.
• Ijma is not, however, viewed as an independent source as a means of
ascertaining reliable Islamic opinion upon the meaning interpretation of the
primary sources - the Qu'ran and the Sunnah.
• 3. Qiyas
• This is a process of reasoning by analogy from existing principle understandings
to find solutions to categorically similar problems which not otherwise precisely
addressed. The process is one commonly found where it is required to apply a
fixed prescription to new or altered circumstances specifically covered
• It was specifically established by Abu Hanifah founder of the Hanafi School
of jurisprudence, in part as a way of curbing the development of a
speculative jurisprudence which, as the Islamic community expanded, was
feared to threaten a 'corruption' of Islamic juristic understanding and may
as such be seen as a product of the work of ash-Shafi'i .
• 4. Ijtihad
• Ijtihad was the process of independent reasoning and interpretation an
such represented the contribution of human reasoning sricto sensu to
development of the Shari'ah.
• It fell within the scheme of ash-Shafi'i's juristic analysis and was supposed
to commence from the Qu'ran and the Sunnah in this sense to be an
interpretative application rather than a process of justicein its own right.
• Nonetheless in the 4th century AH (10th century AD; Islamic community
reached the conclusion that the phase of this form of development had
come to an end and that there had consequently occurred a 'closure of
the gates of ijtihad', closing this mode of development off until at least the
13th century AH (19th century AD).
• THE FOUR SCHOOLS
• The four established Schools of Islamic jurisprudence, the Hanifi, Maliki,
Shafi'i and Hanbali, emerged from the post-Prophetic development of
Islamic jurisprudence and are in essence the survivors of a phase of
expression which generated a great many 'schools' of jurisprudence,
primarily resulting in the development of local practices and
understandings by Qadis (judges) which was perhaps inevitable as the
Islamic community expanded well beyond the point of origin in the Hijaz
(the region of the Hijaz).
• This diversity of juristic opinion, however, posed a further threat to the
cohesiveness of the Islamic consensus which was suppressed through the
development of a more rigorous, but also more conservative, Shari'at
scholarship and out of this process the four canonically orthodox Sunni
Schools emerged in their present forms.
• The four Schools are still to a degree geographically based, the Hanafi
being dominant in the Middle East and the sub-Continent, the Maliki
in much of Muslim Africa, the Shafi'i in Malaysia, Indonesia and
some of the Gulf States, whilst the highly conservative Hanbali is the
principally accepted School in Saudi Arabia.
• The distinctions are not of course solely geographical, there are also
significant substantive distinctions.
• The Hanafi and Maliki Schools, which predate the work of ash-Shafi'i,
essentially accepted his stricter formulation of Shar'at scholarship, but
also retained much of their existing understanding and practice which
they reconciled with the implications of ash-Shafi'i's reforms.
• The Shafi'i School follows directly the work of ash-Shafi'i himself, its
founder.
• The Hanbali school was originally much the most conservative of the
Schools and sought to reject the role of human reason in Islamic
jurisprudential development altogether. Later, however, the Hanbalis
accepted the validity of Qivas.
• The end result is that, whilst the four Schools retain certain clear
distinctions of both understanding and interpretation, there is a
consensus upon fundamental elements of the law.
• In much of the Islamic world elements of each of the four Schools may be
resorted to for guidance in the application of Shari'at principle. They thus
represent to some degree a spirit of flexibility at least upon peripheral
matters which can be, and has been, used as a means of legal
development and reform of practice.
• There are, however, limits to this flexibility and it was partly for this reason
that the practice of neo-ijtihad developed in the modern age.
• ISLAM AND THE STATE
• The post-Prophetic expansion of the Islamic community from the original
small community in Medina naturally led to the development of formal
structures of State.
• The central element of the historical structure was the office of Caliph.
The Caliph ul-Islam, Commander of the Faithful, was in a loose sense seen
as the successor of the Prophet as leader of the community.
• The Ottoman Sultans of Turkey of the House of Othman, having
murdered their final predecessor, were the last to claim the
Caliphate which endured after the Sultanate itself, being finally
suppressed by Kemal Ataturk in the 1920s.
• The office of Caliph is also the root of the division between Sunni
and Shiite Islam.
• The Shia accept the validity of the Caliphate only in the era
immediately following the life of the Prophet and have since that
era relied on the authority of leading Imams, which in its most
significant modern expression may be. seen in the position of the
Iranian Ayatollahs following the overthrow of the regime of the
Shah.
• It may be added in parenthesis that there is not really a distinction
of fundamental doctrine between Sunni and Shia Muslims,
although there is also not infrequently considerable political
bitterness - exemplified in an extreme form by the persecution of
the Shiite Marsh Arabs in Southern Iraq.
• Shari'ah and Secular Law in Islamic States
• The relationship between the Shari'ah and secular law in Islamic States is
obvious rather more complex.
• Secular government and legislation are recognised as necessary by Islam,
not least because by its nature the Shari'ah does not and could not
provide a completely comprehensive prescription down to minute details
of regulation.
• Shari'at prescription is indeed variable in the rigour of its assertion. There
are matters which are either compulsory or forbidden, the well-known
ban upon the consumption of alcohol would be an example of the latter.
• There are also, however, matters which are rather more ambiguously
defined as either recommended or unrecommended but not actually
mandated in either direction.
• There are then also some matters for which the Shari'ah does not
actually prescribe at all.
• In these latter categories from a Shari'at perspective the State is free to
give legislative direction and may even be required to do so, so long as
such legislation does not contravene fundamental principles of Shari'ah.
• In many of the Gulf States, for example, a Shura Council, literally a
Consultative Council, has been set up in which Islamic experts advise the
government upon the Shari'at rectitude of legislation and other
government decisions.
• How these Councils are structured and what practical impact they have is,
obviously, somewhat variable but it would be an unwise Islamic
government which overtly flouted the Shari'ah or expert advice upon it.
• In countries in which Islam is the dominant but not the sole national
religion a somewhat more complex situation naturally arises. Thus in
Malaysia, for example, in which Islam is the national religion but where
there are also very significant Buddhist, Taoist, Hindu and Christian
populations, the Shari'ah is applied to Muslims along with the secular
law of the land but not to followers of other faiths.
• This, it may be added, is wholly concordant with Islamic understanding
which is in principle far more tolerant of populations of other faiths than is
commonly supposed, both within and beyond the Islamic world.
• Shari'ah and human rights
• In much western writing Islamic law is taken to be essentially anti-
thetical to ideas of human rights.
• This is in fact by no means necessarily the case. It must first be said that
the Islamic world is not monolithic in its social structures and practices.
Thus, to take the important question of the status of and opportunities for
women in Islamic societies, in some Islamic countries women are in
practice accorded almost no enforceable rights whilst in others the
practical opportunities for women to attain important public positions are
at least as good as in many western states.
• The Shari'ah is a law directed to a community and as such includes highly
significant provision for human welfare.
• At the same time the underlying concepts are commonly cornmunitarian
rather than individualistic and this raises the important question of the
supposed division between 'Eastern' collectivism and 'Western'
individualism. This supposed dichotomy is at best questionable.
• In essence it represents an arguably false division between rights and
duties which are in fact different views of the same normative
phenomenon.
• One person's right may be seen as the duty of another. Human beings
are also social creatures destined to live in one way or another in
community with others have acknowledged, and in this sense collective
rights are actually in principle protections of the individuals comprising
the society.
• In practice there is manifestly a proper balance to be drawn between
individual expectations and collective entitlements and this is one,
although not the only, foundation of the human rights concept.
• Shari'ah and the rights of non-Muslims
• In principle non-Muslims in an Islamic State enjoy the protection of the
Shari'ah and have their rights protected no less than Muslims.
• Since the Dhimmis [non-Muslims under Muslim rule] are under Dhimmat
Allah, they enjoy complete religious, administrative and political
freedom - a right guaranteed to them in return for their loyalty and the
payment of a reasonable tax called Jizyah which will be utilized in the
defence and administration of the state.
• This principle is well-established and in some places is scrupulously
observed, in others, however, it is not.
• Religious persecution is certainly not a uniquely Islamic phenomenon,
most religions have perpetrated, many in some cases continue to
perpetrate, such cruelties, but Islam is no more free from this
malpractice than any other faith, or indeed ideological, community.
• SHARI'AH AND INTERNATIONAL LAW
• International law, Al Siyah, has an important role in Islam and took
shape at an early stage in the development of the Shari'ah.
• It is recorded that the Prophet himself was insistent that
agreements entered into with foreign, non-Muslim States should
be faithfully performed - an instance of the basic international legal
doctrine that pacta sunt servanda, which is the foundation, inter
alia, of modern treaty law.
• In practice there is very little conflict between the Shari'ah and
modern public international law and the issue is not a large one in
Islam.
• It is, however, important that with the changing shape of relations
within the Islamic community, the concept of Al Siyah which first
defined relations between the Muslim community and non-Muslim
community, now also deals with relations between Islamic States
inter Se.
• Dar ul-Islam and Dar al-Harb
• From an Islamic perspective the world is divided into two communities, or
'houses', the Dar ul-Islam (House of Faith) and the Dar al-Harb (House of
War).
• Some commentators suggest that this means that there is thus a duty
laid upon Muslims to fight against those of other faiths and to secure
their conversion by force.
• In an eschatological vision (relating to the end of the world) there may be
an element of this in the view taken of the Dar al-Harb, but it is not the
view taken in the present time frame; indeed in principle, if by no means
always in practice, Islam is remarkably tolerant of other faiths.
• Jihad
• The idea of Jihad is much misunderstood outside the Islamic world and, to some
extent, even within it.
• Jihad is not a concept of 'holy war' enjoining aggression against non-Islamic
States, it is rather an idea of a 'war of necessity' coming close to the concept of
collective self-defence now embodied in Article 51 of the United Nations Charter.
• It has its origins in the Hijrah, the flight of the Prophet from the hostility of the
Meccans to refuge in Medina and is an idea of struggle against the enemies of
faith.
• Upon the basis of a comment made by the Prophet when returning to Medina
from battle, the greater jihad is seen as a Muslim's own spiritual struggle for
purity of faith and contention for the observance of Islamic standards in Islamic
society.
• The lesser jihad, armed struggle against external enemies, is a carefully limited
concept which is concerned strictly with defence of the Muslim community if it is
attacked. The key Qu'ranic text reads:
• O you who believe, fight the unbelievers who restrain you about, and let them
find firmness in you: and know that Allah is with those who fear Him.
• In this sense the lesser jihad is quite simply a system of Islamic collective security.
• FURTHER READING
• Coulson, N. J., Conflicts and Tensions in Islamic Jurisprudence (Chicago:
University of Chicago Press, 1969).
• Coulson, N. J., A History of Islamic Law (Edinburgh: Edinburgh University
Press, 1964).
• Doi, Abdur Rahman I., Shari'ah: The Islamic Law (London: Ta Ha Publishers,
1984).
• Fyzee, A. A. A., Outlines of Muhammadan Law, 4th ed. (Delhi: Oxford
University Press, 1974).