ISLAMIC LAW

Islamic law is designated in Arabic by the term sharī‘a, the original sense of which is a place resorted to for drinking, and by extension, a way of conduct leading to eternal life. islam is a lay theocracy. God is head of the Islamic community. God alone legislates, and His will is carried out by the community of believers. The law is what God has made known to the community of believers through revelation to the Prophets (among whom are Moses and Jesus), the last of whom is muḤammad, "seal of the Prophets." The prophets are the obedient instruments of the revelation, passing it on intact to the believing community. In its broadest sense, the law encompasses articles of belief, regulating man's relation to God (religion), as well as rights and obligations regulating man's relation to his fellow man (law). Thus religion and law, in the modern sense of the words, are found included, though distinct one from the other, under God's law.

Foundations of the Law. The law is found in scripture and tradition; i.e., in the qur’Ān, which is the sacred book of Islam, and in the Tradition of the Prophet Muḥammad. God's revelation ceased with the death of the Prophet. The Qur’ān was soon thereafter committed to writing and the traditions were codified. The science of jurisprudence (fiqh ) came into being, including the auxiliary sciences of the Qur’ān and of tradition.

A Muslim submits to the law as a precept of faith (the literal meaning of Islām is "submission"); in so doing he fulfills his duty toward God. He also obeys the law as a social duty imposed by God, and in so doing he fulfills his duty toward man. Disobedience to the law is a sin committed against God, not only an infringement of the legal order.

While the Qur’ān contains the stories of many biblical prophets, Islam considers both Judaism and Christianity as suffering from their followers' having tampered with the divine revelations they received through the Prophets. The purest form of the divine revelation is to be found in its last manifestation through Muḥammad. God's creation is to be enjoyed by man, whose weakness is taken into consideration by the law. Man is not to be burdened beyond his capacity. The fundamental rule of law is liberty (al-aṣl fī ’lumūr al-ibāḥa ).

Liberty is the starting point of the law. This is illustrated by the five categories under which the actions and omissions of men are classified: (1) obligatory, (2) recommended, (3) permissible, (4) disapproved, (5) forbidden. Between the absolutes of obligatory and forbidden, there are three categories under which actions and omissions may be classified in order to lessen the rigor of the law. All of the schools of law agree as to the definition of each of these categories but differ greatly as to the classification of actions and omissions therein. The tendency, however, of the four orthodox schools of law which have survived to the present day is to make frequent use of the three intermediate categories. The Ẓāhirite school, no longer in existence, gave more leeway to the absolutes, going against the spirit of the law. But liberty cannot be absolute, lest it destroy itself. So the function of the law is to set limits on this liberty so as to guide it towards the benefit of the individual and society. Good and evil are defined by the law, that is, by God. It is divine voluntarism that characterizes Islamic law; there is no question of natural law as a "supreme reason existing in God," inscribed in the very nature of things. In Islam, there is no question of positive law subordinating itself to divine law and respecting its dictates; they are both the same: Islamic positive law is a divine positive law.

Sources of the Law. To scripture and tradition, the doctors of the law add two more sources: the consensus of the community (ijmā' ) and the analogical method (qiyās ); this was called for by the developing needs of the community as it expanded after the great conquests following the death of Muḥammad.

The Qur’ān is believed to be the uncreated word of God as it was literally revealed to Muḥammad in mecca and medina, the two holy cities of Islam. It is the most important single document for the study of Islam, not only in the fields of religion and law, but also in those of language and literature. The Sunna of the Prophet Muḥammad are his words, actions and tacit approval retained in the memory of his companions and later fixed in writing. The vehicle of the Sunna is the ḥadīth (tradition), which is composed of two parts: (1) a chain of transmission (isnād ) containing the names of persons who transmitted the text of the tradition and upon whom rests its authenticity, and (2) the text (matn ) itself, usually a terse statement. [see islamic traditions (hadith)]. The importance of the Sunna gave rise to the science of tradition (transmission of traditions, their falsification, criticism, codification, and commentaries). The authority of the consensus (ijmā' ) of the community of believers is based on the Qur’ān (4:115; 2:137; 3:98; 4:85); and it in turn guarantees the authenticity of the other sources.

The consensus, like the Sunna, appears under three forms: word, action, and tacit approval. This source is an extremely important one in the history of jurisprudence. It made possible the adoption and the elimination, as the need arose, of many elements of various provenance (Greek, Roman, Jewish, Persian, and Arab) in Islamic law. The fourth source, analogy, differs from the three cited above in that, unlike them, it is not in any way infallible. This source gave rise to bitter struggles in the Islamic community before it became adopted. The one school of law that failed to adopt it, the Ẓāhirite school, ceased to exist as a juridical school in the Middle Ages. Other schools, characterized by staunch traditionalism, accept the analogical method in the legal realm, but oppose this rational element in theology on the basis that the Sacred Book does not omit anything that must be known for salvation. Besides these four principal sources of the law, juridical methodology has recourse to subsidiary principles as developed by the various schools of law.

Science of Jurisprudence. Knowledge of scripture and tradition, highly desirable in itself, was not sufficient in order to arrive at a knowledge of the law. The law was not plainly written in the sacred texts, but had to be arrived at by painstaking study. This gave rise to the science of jurisprudence (fiqh ) and to the science of the principles of jurisprudence (uṣūl al-fiqh ).

The principal figure in the development of the law was the jurisconsult or interpreter of the law (faqīh ). The study of the law became the most respected of all endeavors, assuming a position commensurate with its object: it enabled the community to fulfill the divine precept (Qur’ān 3:106) that it "promote the good and repress evil." Endowed chairs in the colleges (madrasa ) in the 11th century were given to professors of jurisprudence (mudarris ) and scholarships, including room and board, were given to students of the law (mutafaqqiha ). Fiqh had first developed in close connection with the study of the Qur’ān and tradition; by now, it had become an independent study, the pursuit of which led to important official positions in the state. There being no clergy in Islam, the jurisconsult took on the highly important position of minister and interpreter of the law. By exerting himself to the utmost degree (ijtihād ) to arrive at a legal decision in a case or concerning a rule of law, he was considered to be a mujtahid, capable of making his own decisions, as opposed to a muqallid who practiced taqlīd, that is, the imitation or following of the decision of another.

Not all jurisconsults were capable of the same degree of ijtihād, and they were ranked accordingly. As for the layman, he was understandably an "imitator." For the solution of a legal problem or a clarification of some point of law, anyone could approach a jurisconsult for a legal opinion, or fatwā, and the jurisconsult acting in this capacity is referred to as a muftī. Many of these legal opinions were collected and published under the designation of Fatāwā (pl. of fatwā ). These legal sources contain a mine of information on the actual social, political, and religious life of their respective periods, for they dealt with questions that arose out of the need of the times, rather than with theoretical problems.

Law Books and Modern Practice. In time there came into being an extremely rich literature in the field of law, the Islamic science par excellence. The flourishing of this literature took place under the ’abbĀsids (750–1258). Soon books on the law became standardized as to their content. These works are divided into two parts: the first dealing with ritual duties, i.e., the believer's relations with God; and the second, with prescriptions concerning the believer's relations with his fellow man. The ritual duties are five in number: ritual purity, prayer, alms, fasting, and pilgrimage. These are called the "pillars of faith." The other parts of the book include prescriptions concerning marriage, inheritance, contracts, and public and penal law.

In modern times, however, Islamic law is no longer operative in all of these fields in many Islamic countries. Its influence is limited to the spheres of dogma and ritual, and to the field of law concerning personal status, in the life of the Muslim family as well as in the relation of Muslims with non-Muslims (see dhimmi). Certain Islamic states have adopted European civil codes, now operative side by side with Islamic law, each in its own sphere of action; but there have also been extreme solutions attempted. On the one hand, Turkey has abolished the caliphate and the whole notion of the Muslim community. On the other, Saudi Arabia under the wahhĀbis has maintained Islamic law as the only law of the land. The moderate solution between these two extremes has been to adopt Western-inspired or Western-derived codes of law except in matters of personal status. It was in Egypt that the modernist movement (Salafīya ) took place, which advocated the maintenance of the supremacy of Islamic law, but urged a new era of interpretation (ijtihād ) capable of meeting the changing needs of the community. This movement drew its inspiration from the Ḥanbalite school of law, especially from its foremost representative Ibn Taimīya (d. 1328).

By the end of the third century after the hijra (9th century) several schools of law had developed, of which four orthodox schools remain to this day. They are named after their founders as follows: the Ḥanafite school (named after Abū Ḥanīfa, d. 767), the Mālikite (Mālik, d. 795), the Shāfi‘ite (Shāfi‘ī, d. 820) and the Ḥanbalite (Ibn Ḥanbal, d. 855). All these schools (which are neither sects nor rites) are orthodox (sunnites) distinguishing themselves from the sectarian shĪ’ites, whom they consider to be heterodox. They represent 90 percent of Islam (as against 9 percent for the Shī’ite and one percent for the Khārijites, other heterodox sects whose origins date from a few decades after the death of Muḥammad).

Their geographical distribution is as follows: (1) Ḥanafites: Tatarstan, North Caucasus and Daghestan, Georgia and Kinghizia, China (Gansu, Kunming), India, Afghanistan, Turkey, Iraq, Syria, Jordan, Egypt, Libya, Eritrea, Ethiopia, Albania, Yugoslavia, Bulgaria, Greece, and Romania; (2) Mālikites: Saudi Arabia, Oman, and Qatar, Iraq, Syria, Algeria, Tunisia, Morocco, Libya, Sudan, Togo, Chad, and Ethiopia; (3) Shāfi‘ites: Saudi Arabia, Yemen, Azerbaijan, China (Xinjiang), Indonesia, Malaysia, Singapore, Thailand, Pakistan, India, Turkey, Iraq, Syria, Jordan, Chad, Madagascar, Tanzania, Somalia, Ethiopia; (4) Ḥanbalites: Saudi Arabia, Oman, Trucial Oman, Iraq, Jordan, and Egypt.

Bibliography: d. santillana, Istituzioni di diritto Musulmano Malikita, 2 v. (Rome 1926–33) 1:1–119; "Law and Society," in The Legacy of Islam, ed. t. w. arnold (Oxford 1931). h. laoust, Essai sur les doctrines sociales et politiques de Takī-d-Dīn Aḥad b. Taimīya (Cairo 1939). j. schacht, Origins of Muhammadan Jurisprudence (Oxford 1950). l. massignon, ed., Annuaire du monde Musulman (Paris 1955). j. n. d. anderson, Islamic Law in the Modern World (New York 1959), and the bibliographies cited in these works.

[g. makdisi/eds.]