Shari’a Law: Where does it come from?
“Islamic” Law… “Shari’a Law”… where does it come from? Not in a geographical sense… but in the simple sense of “where do the majority of Muslims turn to for clarification of the law”? Is it to the Qur’an? Is it to Allah himself? Is it to trained legal specialists? This question is unlikely to produce a definitive answer given that “Islamic law has been alternatively described as a divine law and as a jurists’ law” (Coulson, 1969:3). Its ambivalent nature is further demonstrated by Joseph Schacht who unflinchingly refers to Islamic law as both an “extreme case of a jurists’ law” (1964:209) and as “typical of a ‘sacred law’” (ibid:211). It is evident, whatever the answer, that this question depends upon the definition of some key terms… “Islamic”, “divine” and “jurists.’” If you want a quick 101 on “Shari’a”, please see the relevant section in my earlier post “A very, very short introduction to Islam“.
Before beginning discussion, it is necessary to understand what is meant by Islamic law. Does this law apply to Muslims living in non-Muslim countries, or to non-Muslims living in Muslim countries? Schacht attempts to answer these questions by indicating that “Islamic law does not claim universal validity.” Rather, “it is binding for the Muslim to its full extent in the territory of the Islamic state, to a slightly lesser extent in enemy territory, and for the non-Muslim only to a limited extent in Islamic territory” (ibid:199). However, one need only look at the media to see that non-Muslim citizens of some Islamic states live very much under “Islamic” law, and that many Muslims living in non-Muslim countries wish to have autonomy to implement their own law. This is largely to do with the recent politicisation of Islamic law “[in conjunction with] modernist legislation on the part of contemporary Islamic governments” (ibid:3). Thus, a compromise is necessary, and for my purposes, “Islamic law” shall refer to law directly related to Muslim religious beliefs and not to the laws implemented by political ‘Islamic’ states, regardless of the incorporation of ‘religious’ law into their codes.
There are two key points that should be made about “Islamic law”. Firstly, Islamic and “Western” law are two quite different things. In fact, “classical Arabic [has] no precise equivalent for the English word “law” in the ordinary, everyday sense” (Weiss, 1998:17). Whilst admitting that his “superficial” summary expresses the difference “in a wholly inadequate way”, Anderson plainly defines “Western law, as we know it, [as] essentially secular, whereas Islamic law is essentially religious” (1959:2). Western law is strongly influenced by Christianity, which “existed for three centuries within a polity that was very much not of its own making” meaning that “Roman law would become the foundational law of the Christian world” (Weiss, 1998:4). In contrast, “Muslims did not appropriate an empire but rather created one,” intending “to bring to the world a new polity and law, replacing all outmoded polities and laws” (ibid:5). However, the distinction is not simply one of sacred versus secular, as “the two other representatives of a ‘sacred law’ which are historically and geographically nearest to [Islamic Law], Jewish law and Canon law, are [also] sensibly different” (Schacht, 1964:1-2).
It is common nowadays to equate “Shari’a law” with “Islamic law,” however, “since the Shari’a includes norms beyond those which constitute law in the strict sense, it is incorrect to equate Shari’a and law simpliciter” (Weiss, 1998:5). Shari’a “is an all-embracing body of religious duties [which] comprises on an equal footing ordinances regarding cult and ritual, as well as political and (in the narrow sense) legal rules” (Schacht, 1950:v). Therefore, “Islamic law” may be characterised as “those rules of the Shari’a that the temporal authority and its judicial representatives are likely to apply and enforce” (Weiss, 1998:21). These important distinctions from the Western conception of law must be recognised in the context of this post.
A second point is, simply, that “there is no such thing as a, that is one, Islamic law” (Vikor, 2005:1). Not only are there geographical variations, accounting “for much of the divergences between the ancient schools of law” (Schacht, 1964:3), but there is another form of Islamic law, siyasa justice, which was/is administered by “the political authorities on the basis of custom, of equity and fairness” (ibid:55) in parallel with the religious courts. This post only focuses on the Shari’a inspired Islamic law which “both does and does not exist, through the many, different, and often conflicting views and individual rules that Muslim scholars have developed.” (Vikor, 2005:1).
Nazreen Kazi’s typical affirmation of Islamic law as a “preordained system of Allah’s commands” (1960:6) is unfortunately not as simple as it first appears. Weiss believes that “it is a presupposition of Muslim juristic thought that the law of God has not been given to human beings in the form of a ready-made code” (1998:22). God’s commands can only be accessed through His revelation which is commonly located in four sources – the Qur’an, the Sunna [traditions], “analogical extensions of rules already established” and the acceptance of an umma [community] wide consensus (Vikor, 2005:31). If the Qur’an is accepted as genuine revelation then a Qur’an based law is clearly a ‘divine law.’ However, “the Qur’an [only] contains some [350 to] 500 verses with legal content” (Hallaq, 1997:3 cf. Vikor, 2005:33) and thus does not provide Muslims “with an all-encompassing or developed system of law” (Hallaq, 1997:5), meaning that other sources are necessary to provide a legal framework. The Sunna of the Prophet are more problematic because of their human transmission. Hadith specialists were required to “evaluate the presumed hadith stories according to [external] criteria” (Vikor, 2005:39), and even among the “canonical” accounts there is the problem of context, which requires recorded laws/decisions to be analogised to fit with contemporary circumstances. This concept of analogical extension played a major part in the early development of Islamic law (Coulson, 1969:4) however, over time “the field of individual decision was continuously narrowed down” (Schacht, 1964:70), resulting in a “retrospective singling out of certain masters of the past as uniquely authoritative” (Weiss, 1998:10). This gradual compilation of legal opinion, resulted in the emergence of “an entire educational institution […] whose primary function was to train scholars in all the disciplines entailed in legal study” (ibid:15). And the concept of consensus is dependent upon the accepted definition of the umma meaning that “’society in some form – all Muslims, or the scholars, or most of them – through their agreement establish that specific legal rules are part of God’s law” (Vikor, 2005:76).
This all-to-brief summary of the four main sources of law raises some interesting points. It is important to realise that a fundamental of Muslim faith is that “law is the divinely ordained system of God’s commands” (Coulson, 1969:1), and that there is universal “refusal to accord to human reason any role in the creation of the law” (Weiss, 1998:38 cf. ibid:37; Schacht, 1964:70). However, there has been a recent resurgence of the belief that “the human reason provides a link between the divine mind and the human mind” meaning that jurists can evaluate, using reason, any legal judgements extrapolated from the texts and reject, on the basis of interpretive error, those judgements that cause conflict (Weiss, 1998:37). And, the concept of consensus means that all schools of law are “deemed to translate into individual legal rules the will of Allah […]; their alternative interpretations are all equally valid, their methods of reasoning equally legitimate; in short, they are equally orthodox” (Schacht, 1964:67). These observations clearly indicate that, at least in the eyes of Muslims, it is correct to consider Islamic law as a divine law. However, “divine authority [has] little value if it [is] not channelled through human instruments” (Weiss, 1998:10 cf. Coulson, 1969:1-2).
Quite apart from accusations that jurists have “invented” Islamic law, there are three main arguments to support referring to it as a jurists’ law. Firstly, the texts of revelation contain “few precisely worded rules of law,” and even if they did “it is the business of the jurists […,] not of prophets, to provide such statements” (ibid:22). Secondly, in opposition to the concept of a “politicians’ law,” Islamic law is very much a jurists’ law. Because the root of Islamic law is enshrined in texts enjoying “canonical status”, the jurists, “far from being beholden to [political regimes, are] in a position to make the regime answerable to them” (Schacht, 1964:16). Islamic Law “was expressed in textbooks as the doctrine of the jurists, not in law reports containing the decisions of the judiciary” (Coulson, 1969:9). And finally, Schacht importantly notes the incorporation of various pre-Islamic elements into Islamic law, such as “the ancient Arab concept of sunna”, the Roman “concept of the opinio prudentzum” and various Stoic influences (1964:17,20). This acknowledgement doesn’t directly support conceiving Islamic law as a jurists’ law, however it does pose a common objection to the ‘divine law’ appellation (which can admittedly be refuted by emphasising God’s omnipotence/omniscience).
This has been a brief discussion of a very complex subject, and unfortunately many aspects of the history of Islamic law, including a discussion of the main schools could not be included. However, it should be sufficient to demonstrate that it isn’t possible to provide a definitive answer to the question of Islamic law’s divine/juristic character. On the one hand, it is evident that its formation occurred “neither under the impetus of the needs of practice, nor under that of juridical technique, but under that of religious and ethical ideas” (ibid: 209). Yet the law is not implemented directly by Allah, but by jurists who have been left the task of interpreting and adapting His revelation to specific circumstances. Schacht importantly notes that “Islamic law is conscious of its character as a religious ideal” (ibid:199), and in this light, with jurists striving after this ideal, “Islamic law is both a divine law and a jurists’ law” (Coulson, 1969:19). Coulson provides a suitable conclusion to this discussion which, although brief and full of generalisations, “is perhaps sufficient to show that in the fully fashioned fabric of the law the threads of divine revelation and human reason are so closely interwoven as to be almost inseparable” (ibid).
- Anderson, J.N.D., 1959. Islamic Law in the Modern World, London: Stevens & Sons.
- Coulson, Noel J., 1969. Conflicts and Tensions in Islamic Jurisprudence, Chicago/London: The University of Chicago Press
- Hallaq, Wael B., 1997. A History of Islamic Legal Theories: An Introduction to Sunni Usul-al-Fiqh, Cambridge: Cambridge University Press.
- Kazi, Nazreen, 1960(?). “Sources of Islamic Law of ‘Fiqh’” in Some salient features of the Islamic law and constitution: this constitution safeguards the interest of Muslims and non-Muslims, Karachi: Pakistan Institute of Arts and Design.
- Schacht, Joseph, 1950. The Origins of Muhammadan Jurisprudence, Oxford: Oxford University Press.
- Schacht, Joseph, 1964. An Introduction to Islamic Law, Oxford: Oxford University Press.
- Vikor, Knut S., 2005. Between God and the Sultan: A History of Islamic Law, London: Hurst & Company.
- Weiss, Bernard G., 1998. The Spirit of Islamic Law, Athens/London: The University of Georgia Press.