When Qu’ranic legislation (i.e. the legal as opposed to moral rules explicitly and directly mentioned in the Holy Book, the Qur’an) began in 7th century Arabia, it did not take place in complete isolation. The main Arab tribe, the Bedouins, had for centuries enjoyed a tribal society which possessed its own customary laws. Whilst these were relatively primitive in character, their rules and application were complex (1).
Trade flourished in the cities of Mecca, Tai’f and Medina trading extensively with Southern Arabia, Byzantine Syria and Sassanian Iraq. Mecca possessed a rudimentary commercial law and in Medina, a largely agrarian area, an elementary form of land tenure was known to exist.
However, the Arabian tribal system continued to regulate Bedouin and the remaining sedentary population in areas of family law, inheritance, status and criminal law.
There existed little or no protection for the individual outside his tribe. Criminal justice remained largely undeveloped and law enforcement lay with the individual who had suffered injury.
All of these features and institutions, more or less modified by Islam, were to leave their traces in Islamic or Shari’a law (2).
At this point in history, however, the absence of any form of government hindered the development of an organised judicial system.
Role of the arbitrator
Within Arabian customary law, however, arbitration had provided parties with a structure within which various rights and obligations under dispute could be settled and could rightly be said be said to have laid the foundations of modern arbitration.
A suitable ad hoc arbitrator known as a “hakam” was chosen for his personal qualities, his reputation in belonging to a family famous for their competence in deciding disputes and, perhaps, for his apparent supernatural powers of divination (3).
Because these supernatural powers were most commonly found amongst the “kahin” or soothsayers, they were most frequently chosen as arbitrators. The “hakam’s” decision, which was final, was not however an enforceable judgment, but rather a statement of right on a disputed point.
This had the effect of providing an authoritative ruling on what the customary law was or indeed ought to be – thus the function of the arbitrator merged with that of the lawmaker, resulting in the application of legal custom or “sunna” (i.e. the ancient practices of the Arabs – precedent or custom).(4)
This concept of “sunna” would later become one of the most important constituents in the development of Islamic law.
The Prophet and his successors
The Prophet, Muhammad had emerged in Mecca as a religious reformer and sought to overcome the views of his pagan countrymen who regarded him merely as another “kahin” or soothsayer.
Following his arrival in Medina in 622 AD, where he migrated at the invitation of the Medinans to serve as an arbitrator in their longstanding tribal disputes, he assumed the role of ruler and lawgiver, such was his personal reputation and authority. Muhammad’s new religious ideas, especially monotheism, his belief in resurrection and free will, were an innovation in light of existing practices of idol worship, female infanticide, age-old tribal feuds and fatalism, and resulted in much opposition, but once his authority had been firmly established as a charismatic social and religious leader and the number of his adherents grew, he established himself as a leader whose established norms could also become “sunna”.(5)
Muslims believe the Qur’an to be the book of divine guidance and direction for mankind and consider the text in its original Arabic to be the literal word of God (6), revealed to the Prophet, Muhammad through the Angel Gabriel over a period of 23 years during Muhammad’s many isolated retreats to the mountains, including the Cave of Hira, the site of the first revelation.(7)
According to “hadith” or the words, actions and tacit approvals of the Prophet, and Muslim history, following the Prophet’s migration to Medina where he established an independent Muslim community, he instructed a considerable number of his “companions” or “sahaba” to recite the Qur’an and to learn and teach the laws which were being revealed daily. In this way, the bonds of a common religious faith transcended tribal ties and the Prophet’s position gradually developed into one of political and legal sovereignty, the will of God as transmitted to the community by him in the Qur’anic revelations superseding tribal custom in many respects.
Thus, the Qur’an in its present form is generally considered by academics to record the words spoken by the Prophet.(8)
The first three generations following the death of the Prophet in 632 AD were in many respects the most important period in the history of Islamic law. The ancient Arab system of arbitration and Arab customary law in general, as modified and completed by the Holy Book or Qur’an continued under the first successors to the Prophet.(9)
These were the Caliphs of Medina (632-661AD) who, as “companions” (both in physical and moral proximity) of the Prophet acted as the political leaders of the Islamic community. They acted as lawgivers of that community, and for some 30 or so years the office of “Caliph” was held in succession by four of the Prophet’s most intimate companions – Abu-Bakr (d.634AD), Umar (d.644AD), Uthman (d.656AD) and Ali (d.661AD).(10)
Their duties involved the further implementation of the Qur’anic provisions in the same spirit as their former leader.
Thus the role of legislation now fell on the shoulders of the Prophetic companions and the Caliphs and their individual attempts at applying and understanding the Shari’a. Their personal understanding of the Qur’anic teachings and Prophetic practice as well as using their own wisdom and commonsense was known as “ra’y” or personal reasoning/individual opinion. There existed a degree of subjectivism which led to substantial differences between legal practices in the many towns, cities and provinces, depending on which “companion” was the leading authority in that particular region. The four Caliphs, with the exception of Ali, had never left Medina and so these “differences” were as a result of the subsequent migration of the companions from Medina at the time of the Arab expansion during the reigns of Umar and Uthman.(11)
In 661 AD the rule of the Caliphs was replaced by that of the “Umayyads”, an Arab dynasty established by the Caliph, Mu’awiya. In place of the theocracy, he created a more autocratic and secular regime which sought to maintain the privileges of the Arabs and the fruits of their territorial conquests, as Islam was not forced upon conquered peoples.(12) This fact is and has been generally and popularly misunderstood over the centuries, especially in the West where it was believed that Islam the faith was spread by military means rather than by mere Arab rule.
A policy of continuous expansion brought North-West Africa, Spain, Western India and parts of Central Asia into the Islamic empire and added greatly to Umayyad wealth.
They took the important step of appointing Islamic judges or “kadis”, as the arbitration of pre-Islamic Arabia and of the earliest period of Islam was no longer adequate – thus the Arab “hakam” was supplanted by the Islamic “kadi”.(13)
The earliest kadis by their decisions laid the basic foundations of what was to become Islamic law.
Thus the Umayyad period (661-750AD) was characterised by “arabisation” through inter-marriage and adoption of Arabic as the common language.
This dynasty collapsed because of inter-tribal and geographical rivalries and a return to the principles of Islam as the foundation of the state.
Interestingly, the Umayyad dynasty did survive in Spain where Abdul Al-Rahman in 756AD founded the Umayyan emirate (later Caliphate) of Cordoba.(14)
Growth of jurisprudence
As groups of pious specialists grew in both number and cohesion, they developed in the first few decades of the second century of Islam into the “ancient schools of law”.(15) Their members, the scholars or “ulama” and lawyers or “fuqaha”, were individuals singled out from the great mass of Muslims by their special interest in the resultant reverence of the people and the recognition which they themselves accorded one another. This group however did not suddenly emerge out of nowhere, but rather as a result of the teaching activities of the various companions who had settled in the various conquered towns and cities.(16) The teaching activity and the intellectual legacy of the companions was continued by their students, known as the “successors” or “Tabi’un”. This group had an intellectual genealogy in the companions and the successors, and were referred to as “successors to the successors” or “Tabi’ Tab’in”.
The more important of these “schools” were those of Kufa and of Basra in Iraq, of Medina and of Mecca in Hijaz and of Syria.
Apart from their common basic attitude, there existed at that earliest stage of Islamic jurisprudence or “usul al-fiqh”, a considerable body of common doctrine which was subsequently reduced by increasing differentiation between the schools.
One important aspect, however, of the activities of these ancient schools was that for the first time they began to take the Qur’anic norms seriously.
The main schools which survived in mainstream Islam were the Hanafi school, whose eponymous founder is considered to be Abu Hanifa (d.767AD in Kufa) and his two famous students Abu Yusuf (d.798AD) and Muhammad bin Hasan al-Shaybani (d.805AD), the Maliki school founded by Malik Ibn-Anas (d.796AD in Medina), the Shafi school founded by Muhammad Ibn-Idris Al-Shafi’I (d.820AD in Egypt), and the Hanbali school founded by Ahmad Ibn-Hanbal (d.855AD)(17).
Shi’ia Muslim groups developed their own system of law and moral precepts, which became the Ja’fari school, named after its foremost scholar, the sixth Shi’a Imam, Ja’far As-Sadiq (d.765AD). Abu Hanifa and Imam Malik were amongst those who benefited from his teachings(18).
Shafi has, in particular, been recognised within Islamic law as the “Father of Muslim jurisprudence”. He insisted that all other sunnas (as applied to a host of diverse practices) be set aside and that only the sunna of the Prophet be subscribed to. Indeed, the Qur’anic verses cited by Shafi as evidence was extremely convincing and remain in use today by Muslim scholars to emphasise the Prophet’s absolute authority.(19)
Shafi went further and maintained that the claim that the established practice in an issue, adhered to by the people of a locality and attributed to the Prophet as his sunna, or the practices of the companions alleged to be the Prophet’s sunna because of their status as the closest colleagues of the Prophet and therefore most aware of his practices, would not be acceptable.
The Prophetic sunna would have had to have been transmitted in the form of a “hadith” (i.e. a formal saying, even if only a solitary tradition). The Prophet’s sunna had to be universal and transmitted as a report such that it would have led to uniformity of practice.(20)
The activities of later scholars remained creative although remaining within the limits set by the nature of the law.
Complexities of living and the development in general of society still necessitated legal interpretation and mastery – thus saw the development of the “mufti” or legal specialist who could provide considered legal opinions known as “fatwas”.(21)
Turning to the primary and secondary “sources” of Islamic or Shari’a law, the primary sources are:
- The Holy Book or Qur’an, believed to be the Book of Divine Guidance and direction for those of its followers and considered to be the final revelation of God as revealed to the Prophet. Muslims believe that the Qur’an was written down by the Prophet’s adherents as dictated by him to them;
- The Sunna or Traditions, which represented the tradition of the Prophet. The Qur’an was to be interpreted in light of the sunna and the latter was to provide an explanation of the Qur’an.
The “secondary” sources consist of:
- “Ijma” or consensus – this consisted of a unanimous scholarly academic opinion on any legal issues arising after the death of the Prophet and became a legal mechanism with which scholars could apply an agreed interpretation of the Qur’an and the sunna to a particular set of circumstances; and
- “Qiyas” or analogy – this required as its starting point a principle of the Qur’an, the sunna or ijma. It could not be used to arrive at a conclusion which directly contradicted these three material sources.
Today, despite certain fundamental differences between Shi’a and Sunni Muslims, both share the same four basic sources of law as previously referred to. Ijma does, however, have some slight differences between Shi’a and Sunni in that for the Shi’a, the Ijma is that of the Shi’a scholars only and is presumed to include the opinion of the Hidden Imam and Qiyas for the Sunnis, and Aql (use of human reason). The Aql which the Shi’a resort to is a collection of logical, scientific and rational principles, some sourced from the Qur’an, some from the sayings of the Prophet and the Imams and others borrowed from other philosophies. The faculty of Aql also includes the use of “qiyas” (analogy). However, the types of analogy validated by Shi’a jurisprudence are carefully and clearly identified. The sunna for the Shi’as would also include the teachings and sayings of the Imams.
In the pre-modern and modern periods, the application of Islamic law has continued to decline due to western influences and newly-emerging civil ideas, theories and philosophies against which past decisions can seem archaic and at times even unfair.
Legislation is being enacted through parliaments in many Muslim countries and these democratic bodies are not necessarily run by Muslim jurists or even by legal experts.
Islamic law has long been correctly identified as “jurists’ law”, as it is individual jurists who carry out detailed research known as “Ijtihad” and reach a conclusion on various issues.
In these times, many Muslims have suggested that as life becomes more complex due to huge advances in medicine, education, finance etc, it is perhaps impractical to deem one individual capable of giving valid and practical judgments in all these dynamic and complex areas. It has been suggested that a council of experts could be convened which could collaborate on the various issues advanced by the Muslim world.
The author has been unable in this article to highlight and to describe the perception of Islamic jurisprudence or “usul al-fiqh” as a distinct legal discipline within the Islamic theory of knowledge, but may do so at a later date.
Aql – that which is relevant to deduction by human rationality
Caliph – a successor to the Prophet
Fatwa – the term used for a legal decision made by a doctor of Islamic law, or mufti
Fuqaha – religious lawyers of Islam
Hadith – initially in Islam it referred solely to the words of the Prophet but it had been developed to include all his words, actions and tacit approvals. For the Shi’a, this includes the words, actions and tacit approvals of the imams. Actually the sunna is the broader element and the hadith is part of the sunna. The word “hadith” means speech, talk or narrative. The word “sunna” means the norm or way of life of a person or community. Thus “hadith” would be a part of the “sunna”, the sunna being identified with the words, actions and tacit approvals of the Prophet (and the imams). Thus the “words” element is what constitutes the “hadith”. However, the terms “hadith” and “sunna” have come to be applied as synonyms today.
Hakam – an arbitrator
Hidden Imam – Shi’a Muslims believe that the Hidden Imam or “Mahdi” is the Twelfth Imam, Muhammad al-Mahdi the Twelfth and last Imam who was born in 869AD and who was hidden by God at the age of five years. He remains in occultation and awaits God’s decree for his return
Ijtihad – this designates the utilisation of individual opinion to find legal solutions for a variety of cases. This methodology is a practical source based on the Qur’an, sunna and a general awareness of Islam
Ijma – a consensus of academic opinion on any legal issue which arose after the Prophet’s death
Kadis – Islamic judge
Qiyas – literally means “measurement”. Technically it designates legal analogy or syllogism which assimilates the injunction of one case and applies it to a similar one which has no specified injunction either in the Qur’an or the body of Prophetic teachings, i.e. the sunna
Ra’y – individual opinion
Sahaba – the Prophet’s closest companions
Shari’a – literally means “the way or path to the water source”. It is the legal framework within which Muslim public and private life is regulated for those living in a legal system based on Islamic principles of jurisprudence and for Muslims living outside the domain of Islamic rule
Shi’ite – 10% of Muslims follow Shi’a teachings. They believe that the only legitimate successors of the Prophet are Ali bin Abi Talib, the Prophet’s cousin and son-in-law and the fourth Caliph of the generality of the Muslims and his 11 descendants in succession. Not until the ascendency of Ayatollah Khomeini in 1978 did they believe that they had once again begun to live under the authority of a legitimate religious leader
Sunna – traditions attributed to the Prophet or the path which is directly related to his religious guidance. It is also recognised to apply also to the practices and decisions of the Caliphs, the companions, the jurists and the practices of the Prophet
Sunni – 90% of Muslims are Sunni. They believe that the first four Caliphs, the Prophet’s successors, rightly took their place as leaders of the Muslims. They also believe that the “Mahdi” or “ the rightly-guided one” has yet to appear and when he does, he will fulfil the role of a just and global caliphate
Theocracy – a country ruled by religious leaders
An Introduction to Islamic Law by Joseph Schacht (1982)
A History of Islamic Law by N J Coulson (1964)
Islamic Law – From Historical Foundations to Contemporary Practice by Mawil Izzi Dien (2004)
Understanding Islamic Sciences by Murtada Matahhari (2002)
Rules, Judicial Discretion and the Rule of Law in Nasrid Grenada by Mohammad Fadel
Revivalism or Reformation: The Reinterpretation of Islamic Law in Modern Times by Liyakat Takim
The Doctrine of Ijma: Is There a Consensus? by Dr Mohammad Omar Farooq (2006)
An Earlier Focus on Islamic Ethics by Reinhart (1983)
(1) Schacht, p10.
(2) Schacht, p7.
(3) Coulson, p10.
(4) Schacht, p10.
(5) Schacht, p10.
(6) Qur'an verses 2.23-24.
(7) Fisher, Living Religions: An Encyclopaedia of The World’s Faiths (1997) p338.
(8) Peters, The Quest of The Historical Mohammad (1991), pp3-5.
(9) Schacht, p15.
(10) Coulson, p23.
(11) Izzi Dien, p11.
(12) Schacht, p23.
(13) Schacht, p24.
(14) Shaban, The Abbasid Revolution (1970).
(15) Schacht, p28.
(16) Schacht, p31.
(17) Coulson, pp50-51.
(18) Coulson, p113.
(19) Coulson, p55.
(20) Coulson, p57.
(21) Schacht, p73.
In this issue
- Islamic law - the beginnings
- Depriving criminals of their ill-gotten gains: is it happening?
- Burdening the legal aid lawyer
- Landlord's hypothec: the permutations
- Time to push for Gill
- Plus ça change, plus c'est la même chose
- Seconds out
- Help at hand
- Win-win situation
- Giving and taking away
- Home and away
- Quest for power
- A crumbling monument?
- No happy ending
- Seminars target money laundering awareness
- DP/FOI specialism opens to applicants
- Law reform update
- Points of access
- Diploma or not?
- From the Brussels Office
- Are you who you say you are?
- Ask Ash
- Social media: a revolution
- A commercial approach
- Growth industry
- Price of success
- Variations: some more thoughts
- Tenancy or bust
- Another nibble of the cherry
- Planning with add-ons
- Website review
- Scottish Solicitors' Discipline Tribunal
- Book reviews
- It's never too early to call your external solicitor?
- Dereliction of duty?
- To grant or not to grant?