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Shariʿa

SHARIʿA

Arabic for "the trodden path leading to a water hole." In Islam, the regulations of God's law as transmitted through a prophet; the dominant law in Islamic societies.

Muslims, Christians, and Jews each have "a law (shirʿa) and a normative way to follow," the Qurʾan attests (verse 48). In the Middle Ages, Islamic discourse referred not only to this strict definition of Shariʿa as law but also to all that which Allah has revealedwhether it pertained to actual religious practice or to belief. In Islam, those aspects relating to practice belong to the province of law (fiqh ); those that concern belief belong to theology (ilm alkalam or ilm al-tawhid). Law, however, depends on theology, since the contents and validity of law rest on textual sources, whose divine origins and truth are known. Furthermore, all sciences that are used to attain a knowledge of law and theology are considered Shariʿa sciences, even if their subject matter is not legal or theological. Therefore, the Arabic language, hadith (verbal statements of Prophetic traditions), exegesis (interpretations), and even logic are deemed Shariʿa even if designating logic this way has always been controversial.

The use of the term Shariʿa has actually, in practice, been restricted to the realm of law, and particularly to those aspects that bear upon the conduct of the individual in both worldly and religious matters. Shariʿa may be equated, therefore, with fiqh in both its components: (1) positive law (furu) and (2) legal theory (usul). Positive law delineates legal obligations, ranging from rituals to personal and penal law; contracts; sales; hunting; and more. Legal theory demonstrates how positive law is derived through legal reasoning and interpretation, which results in the law stipulating the legal and moral responsibility thrust upon Muslims.

The legal and moral elements in the Shariʿa are evident in the individual rulings classified in accordance with five norms (ahkam) : (1) the obligatory (wajib), (2) the recommended (mandub), (3) the permissible or indifferent (mubah), (4) the prohibited (haram), and (5) the repugnant (makruh). The obligatory represents an act whose performance entails reward and whose omission entails punishment. It is commonly divided into those acts that are binding on all and those that are binding on the Muslim community as a whole but which are discharged once a sufficient number of individuals perform them. The recommended act requires a reward for performance but does not involve a punishment for omission. In the permissible, both omission and commission are equally legitimate. The prohibited is an act that entails punishment upon commission. The repugnant act is rewarded when omitted but not punished when committed.

The nature of reward and punishment supports the permeating moral element in Islamic law. Reward is always bestowed in the hereafter; punishmentin rituals and in several other spheres of the lawis nothing but divine punishment to be meted out at the resurrection. As a comprehensive system of law, imbued with religious mores, the rules of the Shariʿa are not always enforceable.

As a system of legal rights and obligations that governs public and private life, Shariʿa has always been the dominant law in Islamic societies. No doubt secular organs of justice, such as the early and medieval mazalim courts and the qanun of the Ottoman Empire, have always supplemented Shariʿa ; however, their jurisdiction was confined mainly to administrative and penal law, and they were, more often than not, run by Shariʿa judges and jurists.

Judges and jurisconsults (muftis) have played the central role of developing Shariʿa since the first century of Islam. Immediately after the death of the Prophet Muhammad in 632 c.e., the Qurʾan provided the main source of the law that may be considered Islamic. To be sure, customary Arabian law and the later Umayyad dynasty's administrative practices supplemented Qurʾanic legislation, but these were not yet imbued with a religious character. The Prophet's sunna (his utterances and idealized practice as expressed in hadith ) was to gain importance as a source of law only gradually. It was not until the end of Islam's first century (c. 700 c.e.) that his sunna became a source of law, supplementing the Qurʾan and the still prevailing popular and administrative practices of the Umayyads. Islam's second century (ending c. 800 c.e.) witnessed a gradual yet definite process whereby these practices were idealized as the consensus of the geographical schoolsa consensus seen to reflect the ideal practice of the Prophet Muhammad and the early caliphs who succeeded him. Thus imbued with a religious element, these practices, expressed through verbal statements of hadith, were gradually and constantly projected back to the earlier generations until they have come to be connected with the Prophet himself. By the beginning of Islam's third century (the ninth century c.e.), the process of back-projection was virtually completed, and the law, now elaborated to its fullness, was recognized to have been exclusively derived from the Qurʾan and the sunna and sanctioned by the authoritative instrument of consensus (ijma).

By the eighth and ninth centuries, the body of Shariʿa law was elaborated by a variety of legal schools, ranging from those that resorted to free reasoning and expediency in elaborating their positive lawsuch as the Hanafi school of lawto those standing on the other end of the spectrum, such as the Zahiris, who interpreted the texts literally. Such radical tendencies and their schools, including the Zahiri, soon disappeared; but liberal tendencies were not sufficient to bring the Hanafi school to extinction. Nevertheless, they had to be rationalized and modified to be admitted by mainstream jurisprudence. A classical example of this process of adjustment may be seen in the concept of istihsan, which represented to the eighth-century Hanafis a means of formulating law on the basis of practical considerations, without being restricted by the imperatives of the religious texts. Whereas problems of law solved by istihsan were largely accepted, even in later centuries, the procedure of istihsan had to be, and indeed was, restructured by the likes of Dabusi and Sarakhsithis was based on the proposition that the sunna and the Qurʾan were the ultimate sources of the law and that no human intervention can be allowed in the unraveling of divine law.

The Sunni schools of law thus came finally to acknowledge a common legal theory, though differences among them continued to existpartly as a reflection of the legacy they inherited from their early development within differing geographical schools. Be that as it may, in addition to the Shiʿa schools, only four Sunni schools survive and they provide, in effect, a comprehensive system of Shariʿa.

Shariʿa continued to dominate the life of Muslims until the nineteenth century, when, because of influences and pressures from the West, changes in the law were deemed necessary. Formally, the most notable legal change was the introduction of the code system, which was foreign to Shariʿa, a law based on interpretation of religious doctrine. Substantively, several attempts were made to wholly substitute European codes for a number of Shariʿa laws. Thus, during the Ottoman Empire, commercial and penal codes based on their French counterparts were promulgated in 1850 and 1858, respectively. A more important codification of this period was the Mejelle (1876), which represented the first attempt ever to codify Islamic law. Selectively codified, Hanafi law was restricted to contracts, some torts, and a law of procedure. The last part, however, was soon replaced by the Code of Civil Procedure (1880), again based on French law.

A more drastic set of reforms was adopted in Egypt in 1875. In addition to new penal, commercial, and procedural codes based on French law, a new court structure was introduced. It incorporated into the Egyptian court system the Mixed Courts, with a majority of non-Egyptian judges, one of whom presided over the bench.

In 1917, the first attempt at reforming family law was made by the Ottomans, without resorting to European codes. It promulgated the Ottoman Law of Family Rights, which regulated matters of personal status and was based on a comprehensive amalgamation of legal doctrines belonging to the Maliki, Shafiʿi, and Hanbali schools of law, and sometimes weak authorities from the Hanafi school. One of the main concerns in this promulgation was the improvement of the legal status of married women.

Legal reforms, introduced by national legislation, have become an ongoing process in the Muslim states since the beginning of the twentieth century (based on Sunni and Shiʿite principles). In these reforms, Shariʿa law was to some extent preserved in the area of family matters, but even here it was applied in a new system of courts and administered through a modern law of procedure. With these sweeping changes, the officials of the traditional court virtually disappeared, and the traditional role of the qadi (judge) has been drastically diminished.

see also fiqh; hadith; hanafi school of law; hanbali school of law; maliki school of law; mixed courts; muhammad; qanun; qurʾan; shafiʿi school of law.


Bibliography

Anderson, Norman. Law Reform in the Muslim World. London: Athlone Press, 1976.

Fyzee, A. A. Outlines of Muhammadan Law, 2d edition. London and New York: Oxford University Press, 1955.

Khadduri, Majid, and Liebesny, Herbert J., eds. Law in the Middle East. Washington, DC: Middle East Institute, 1955.

Schacht, Joseph. An Introduction to Islamic Law. Oxford and New York: Clarendon, 1982.

Schacht, Joseph. The Origins of Muhammadan Jurisprudence. Oxford: Clarendon, 1953.

Smith, Wilfred Cantwell. "The Concept of Shariʿa among Some Mutakallimun." In Arabic and Islamic Studies in Honor of Hamilton A. R. Gibb, edited by George Makdisi. Cambridge, MA: Harvard University Press, 1965.

wael b. hallaq

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sharia

sharia, the religious law of Islam. As Islam makes no distinction between religion and life, Islamic law covers not only ritual but many aspects of life. The actual codification of canonic law is the result of the concurrent evolution of jurisprudence proper and the so-called science of the roots of jurisprudence (usul al-fiqh). A general agreement was reached, in the course of the formalization of Islam, as to the authority of four such roots: the Qur'an in its legislative segments; the example of the Prophet Muhammad as related in the hadith; the consensus of the Muslims (ijma), premised on a saying by Muhammad stipulating "My nation cannot agree on an error" ; and reasoning by analogy (qiyas). Another important principle is ijtihad, the extension of sharia to situations neither covered by precedent nor explicable by analogy to other laws. These roots provide the means for the establishment of prescriptive codes of action and for the evaluation of individual and social behavior. The basic scheme for all actions is a fivefold division into obligatory, meritorious, permissible, reprehensible, and forbidden.

Numerous schools of jurisprudence emerged in the course of Islamic history. Four coexist today within Sunni Islam, with one or more dominant in particular areas—Maliki (N and W Africa), Hanafi (Turkic Asia), Shafii (Egypt, E Africa, SE Asia), and Hanbali (Saudi Arabia; see Ibn Hanbal, Ahmad). While these schools of jurisprudence vary on certain rituals and practices, they are often perceived as complementary rather than mutually exclusive. Twelve-Imam Shiite jurisprudence is often referred to as Jafari. Islamic law is an important legal influence, to a greater or lesser degree, in nearly all nations with a Muslim majority population; the primary exception is Turkey, which has been a secular state since Atatürk.

See study by S. Kadri (2012).

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Sharīʿa

Sharīʿa (Arab., ‘the path worn by camels to the water’). The path to be followed in Muslim life. The term goes back to Qurʾān. It became the description of the systematic organization of how Muslims should live, wherever there is no permitted freedom (see AL-HALAL WAʾL-ḤARĀM). This especially applies to the four classic schools, Ḥanafite, Ḥanbalite, Mālikite, and Shāfiʿite. They are rooted in Qurʾān and ḥadīth, the sunna of the Prophet, but with different attitudes to what else is legitimizing (see further SCHOOLS OF LAW). Sharīʿa is constantly extended in the present, since Islam cannot be a reproduction of life in 6th-cent. Arabia. The extension of sharīʿa is made particularly by ijmaʿ, qiyās and ijtihād, and in practice through fatwā. It is also modified by local custom (adat).

Actions are classified in sharīʿa into five categories (with detailed sub-divisions in each case: (i) obligatory (fard or wājib); (ii) meritorious; (iii) indifferent; (iv) reprehensible; (v) forbidden (ḥarām: see AL-HALAL WAʾL-ḤARĀM). Fundamental to all are the Five Pillars.

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sharia

sha·ri·a / shäˈrēə/ (also sha·ri·ah or sha·ri·at / -ät/ ) • n. Islamic canonical law based on the teachings of the Koran and the traditions of the Prophet (Hadith and Sunna), prescribing both religious and secular duties and sometimes retributive penalties for lawbreaking. It has generally been supplemented by legislation adapted to the conditions of the day, though the manner in which it should be applied in modern states is a subject of dispute between Islamic fundamentalists and modernists.

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sharia

sharia Islamic canonical law based on the teachings of the Koran and the traditions of the Prophet (Hadith and Sunna), prescribing both religious and secular duties and sometimes retributive penalties for lawbreaking. It has generally been supplemented by legislation adapted to the conditions of the day, though the manner in which it should be applied in modern states is a subject of dispute between Islamic fundamentalists and modernists.

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Sharia

Sharia Traditional law of Islam, believed by Muslims to be the result of divine revelation. It derives from a number of sources, including the Koran and a collection of teachings and legends about the life of Muhammad known as the Hadith.

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sharia

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