Islamic Law: Terminology Part 1

Shar‘a  or Shari‘at means literally the way or path, that which facilitates or guides ones passage through life to our final destination (related terms: sirat, tariq, Sunna).  Those who don’t follow the path are those who stray from God’s will.  In old pre-Islamic Arabic, shari‘a  referred to a real, physical path leading to a watering hole, a very necessary path indeed.  While it is generally used today in reference to a form of law, it goes far beyond what we generally think of as law.  Rather, it is a moral guide, a guide for ethical conduct which embraces all human activities.   Fyzee describes it as a “doctrine of duties” or code of obligations, since within it our obligations to God take precedence over our rights.  Weiss writes:

The fundamental preoccupation of Muslim thinking about the Shari‘a is with duties that human beings have toward God with sanctions that belong to the world to come, not to this world.  The Shari‘a rules exist for the primary purpose of fostering obedience to God, not obedience to temporal authorities, however much the latter may be enjoined.  (Weiss, 20)

Shari‘a  as Islamic law consists of ahkam, meaning principles, rules, judgments, or even decisions.  Shari‘a  is a sacred law, a religious law, divinely endowed or inspired.  At the same time, however, Islamic law is a rare instance of jurists’ law.

 

Jurists’ law is a law formulated by jurists.  In the case of the Shari‘a , Islamic law is a jurists’ law because, while it stems from divine sources, it is constructed by men who interpret the divine and divinely-inspired sources.  Jurists’ law can produce multiple interpretations, leading to diversity of opinion, each of which is considered valid, which has led to the establishment of different schools of law [madhhab].  Nonetheless, one of their primary duties is to ensure that legal codes or decisions do not contradict the Law of God.  Law is not based on judicial decisions, on decisions derived from court cases, but on what the jurists decide, which are recorded as books of fiqh.  Shari‘a has always existed coterminous with God; Islamic law came into existence through the deliberate efforts of jurists to reform existing human law into a code which they felt best reflected the eternal divine Law of God. 

Muhammadan law came into existence through the working of Muhammadan jurisprudence on the raw material which consisted of the popular and the administrative practice of the late Umaiyad times and was endorsed, modified or rejected by the earliest lawyers.  These lawyers and their successors were guided by a double aim: by the effort to systematize…and by the effort to ‘Islamize’, to impregnate the sphere of law with religious and ethical ideas, to subject it to Islamic norms, and to incorporate it in the body of duties incumbent on every Muslim.  (Fyzee, 30)

 

Ahkam As Weiss has suggested, the attempt to define the term Shari‘a leads to the definition of a further term – ahkam.  In essence, Shari‘a are God’s injunctions concerning correct belief and practice, His guidance concerning the Way to Him through right belief and behavior.  To define this Way requires that we identify, among all the possible acts of man, which are required, which are forbidden, and which may fall into some middle categories.  These categories are the ahkam, which may thus also be referred to as divine categorizations of human actions.  One of these sets of categories concerns that which is valid [sahih] and that which is invalid [batil].  Another set places human acts into five categories known as al-ahkam al-khamsa.  These categories and their contents, which are a blending of law and morality, are often defined in terms of punishments or sanctions:

·         obligatory [fard or wajib] – an act the omission of which is punishable

·         recommended [mandub or mustahabb] – something you should do but cannot be punished for if you don’t do it; the only punishment here may be the loss of piety if one does not comply

·         indifferent [ja’iz or mubah] – that is, something the law is indifferent about, and which may therefore be interpreted as permissible because neutral

·         disapproved [makruh] – something you shouldn’t do but cannot be punished for if you do it

·         forbidden [haram or muharram or mahzur] – an act the commission of which is punishable

 

Punishments fall into two categories: those handed out by the state in this world and those given by God in the world to come.  Yawm ad-Din is the court of God, which refers to the Day of Judgment when all our deeds in this world will be laid bare before us, and God will judge us.  Naturally the judgment of God supersedes all possible judgments and punishments of this world.  This final judgment strongly preoccupies the thinking of Islamic jurists.  In books of Islamic law, many acts are considered punishable because they are forbidden or punishable in the life to come, not in this life, which makes it difficult to define such injunctions as law, since our understanding of law usually implies a sanction applied in this life.  Praying five times a day is obligatory.  However, its omission is not punishable in this life, but in the life to come.

 

Sunna are the sayings and deeds of the Prophet, which, recorded as hadith, provide a second imperative source for Islamic law alongside the Qur’an.

 

Fiqh is the law as considered as a body of diverse opinions, including the possible choices to be made.  Fiqh literally means “understanding”.  Fiqh is the jurists’ understanding of what the law is.  It is the science of jurisprudence through the exercise of intelligence in deciding a point of law.  To formulate law, Muslims do not turn to archives of court cases, but to books written by jurists, which are books of fiqh.  Jurists are able to defend the integrity of the Qur’an in that they are memorizers of the Qur’an [hafiz], as well as experts in hadith [ahl al-hadith].  Their study allows them to come as close to the Shari‘a  or Law of God as possible.  Shari‘a  is the ideal divine form; fiqh is the normative or written form of Islamic law.  Shari‘a is the larger category including all human deeds and beliefs; fiqh is the smaller circle encompassing only those actions of a legal nature.  The jurists or fuqaha are the doctors or scientists of fiqh.  There are four primary sources of fiqh:

·         the Qur’an

·         the Sunna of the Prophet

·         consensus among the learned [ijma‘]

·         analogical deduction [qiyas]

 

‘Ulama’ are the learned scholars of Islam, among whom are the fuqaha or jurists who study and interpret the law of Islam.  Judges often consult with jurists in order to make the right decision in a case.  Not all fuqaha are ‘ulama’, but in African Muslim nations in particular the fuqaha have come to assume the role of the ‘ulama’.  The use of the term fuqaha emphasizes their focus on Islamic law, while an ‘alim studies beyond the law.

 

Madhhab are the Schools of Law.  While a number of schools have been established, only four have persisted in Sunni traditions of law.  Hanbali Muslims are the least populous today, living in Saudi Arabia; Hanafi Muslims are the most populous, living in India, Pakistan, Afghanistan, and Turkey; and Maliki and Shafi‘i falling somewhere in between the two, particularly in areas of Africa and Asia.  The differences between these schools tend to be fairly minute, not very substantial or fundamental.

·         Hanafi The Hanafi school of law, based in Kufa, was named after Imam Abu Hanifa (AD 699-766).  It has become the most widespread, largely thanks to the dominance and spread of the Selçuk and Ottoman empires, which were Hanafi.  Perhaps as much as half of the Sunni population of the world is Hanafi.  It has been characterized as the most liberal of the four schools, and has been noted to include a great deal of qiyas, not, as some have suggested, that Hanifa instigated the use of analogy; he did not.  However, the science of hadith had not fully developed by the time he was writing, which meant a greater necessity for analogical deduction to come to conclusions on matters of law.

·         Maliki The Maliki school of law, based in Madinah, was named after Malik ibn Anas (AD 713-795).  Ijma‘ or consensus played a more important role for this school than did analogy. 

·         Shafi‘i The Shafi‘i school was named after Imam Shafi‘i (AD 767-820), a pupil of Imam Malik and Imam Muhammad, a pupil of Abu Hanifa.  Shafi‘i is considered to have been one of the greatest jurists of Islam and the creator of the Classical Theory of Islamic Jurisprudence.  He is further regarded as the founder of the science of usul and the perfector of ijma‘. 

·         Hanbali The Hanbali school was named after the saintly Imam Ahmad ibn Hanbal (AD 780-855).  Ibn Hanbal was a pupil of Shafi‘i, but argued for a literal rendering of the hadith, which has earned him a common description as a traditionist rather than a jurist. 

 

State The role of the state is to ensure that the law is enforced.  This responsibility alone makes the existence of an Islamic state nearly a necessity in order for Muslims to live according to the Law of God.  Apart from this the state has further duties to ensure the defense and order of the Muslim community.  But in terms of law, it is there to enforce the law and to appoint qadis to hear cases, but it is not responsible for creating law. 

 

Sources

 

Fyzee, Asaf A.A. Outlines of Muhammadan Law.  New York: Oxford University Press, 1999.

Abu Zahra, Muhammad. “Family Law.” Law in the Middle East. Ed. Majid Khadduri and Herbert J.  Liebesny. Richmond: The William Byrd Press, Inc., 1955.

Schacht, Joseph. An Introduction to Islamic Law.  Oxford: At the Clarendon Press, 1964.

Weiss, Bernard. The Spirit of Islamic Law.  Athens: The University of Georgia Press, 1998.

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