The Master of
Religious Studies SAIFUNOV B.
ISLAMIC LAW
Islam, like Judaism and unlike
Christianity, is a nomocracy, a religion of the law as opposed to theology. It
is evident from the Koranic text that sacred law is a crucial feature of the
covenants that God establishes, through prophets, with the various nations of
mankind. Prophets are united by their main directive, to worship God alone, by
their moral exhortations, and by accompanying miracles proving that their
messages are of divine and not human origin. Some prophets also bring with them
a Scripture: the Koran mentions the Scrolls of Abraham, the Torah of Moses, the Psalms of David, and the Gospel of Jesus. Some prophets also bring with them a new
sacred law.
In the Koran, the term that corresponds
to this sacred law is din, now the ordinary term for “religion” in Arabic, and individual
fundamental laws are termed hudud Allah (“God’s limits”). However, the term for the sacred law
that gained general acceptance from early Islamic history on is the shari‘a (“the way, or path”), parallel to
the Jewish term for the sacred law, halacha (also “the way, or path”) [1].
The shari‘a is Islamic sacred law[2] taken in toto: the idealized system of all religious
obligations God has imposed on believers. Muslim scholars of the sacred law
devote themselves to discovering the rulings of the shari‘a, in effect seeking to determine God’s intentions
concerning the specific obligations of believers on the basis of available
evidence. Law as a branch of academic study or as a product of human discourse
is termed fiqh (literally, “understanding”). A
jurist or specialist in law is termed faqih (“one who understands, is perspicacious.”) The goal of
the jurist is to determine reliably, given a set of circumstances-including
time, place, identity of the legal agent, and so on-the legal status of
particular possible acts.
There are five main categories for
the legal assessment of acts: forbidden (haram; e.g., marrying one’s aunt); disfavored but allowed (makruh; e.g., a husband’s repudiation of
his wife without cause); indifferent (mubah; e.g., eating raisins); recommended but not
obligatory (mustahabb; e.g., a man’s marrying as soon as
he can afford to do so); and obligatory (wajib; e.g., supporting one’s elderly parents, fasting
during the day in Ramadan) [3]. Other legal assessments, such as valid (sahih) and invalid (batil), do not apply to acts, but to
contracts of sale or marriage contracts, for example. Islamic law is also a
moral system; it is intended to preserve morality and not simply mete out
justice. It does so by maintaining a stable social order, whereby the five
cardinal values of religion, life, offspring, property, and rationality are
conserved.
Overall, the main
focus of Muslim jurists has been the interpretation of scripture. Classical Sunni Islamic jurisprudence has at
its heart a theory of four “roots,” or bases, of the law, generally listed as
(1) the Koran, (2) the Sunna of
the Prophet Muhammad, (3) consensus (ijma’ ), and (4) legal analogy (qiyas)[4].
The Koran is
granted pride of place as a legal source, yet many do not realize how
little of the law is based on the text of the Koran itself. Muslim jurists
reckoned that only five hundred verses of the Koran, about one-thirteenth of
the entire text,
have legal content. A genre of legal literature styled Ayat al-ahkam (“The Verses of
Legal Rulings”) developed that was a commentary on these verses in particular,
extracting the legal
content. Of these verses, many are not very specific, such as the many commands
to hold prayer and give alms that do not specify how, when, and where to perform these
actions.
In addition to the
Koran, early jurisprudence relied on Sunna, which seems to have originally meant the
general or time-honored
usage of the community, and ra’y, which at this stage meant “sound opinion” or
“considered opinion.” With the work of al-Shafi‘i, and generally for Sunnis in
the course of
the ninth century, it became standard theory that there was not one scripture
in Islam, but actually two. The definition of Sunna narrowed to refer
to the usage of the Prophet, and then further narrowed to mean “the usage of the Prophet as
established by
hadith,” oral reports concerning the Prophet’s statements and behavior
transmitted from the Companions, early Muslims who were eyewitnesses of the
Prophet’s mission. These reports were gathered and published in collections arranged
according to
the Companion transmitters (musnad), or in collections arranged for easy
reference by jurists according to the standard chapters of the law (sunan).
Six collections,
dating from the middle
to late ninth century, came to be recognized as more or less canonical by Sunni
Muslims of all madhhabs: the Sahihs of al-Bukhari (d.
870), Muslim (d. 875), and al-Tirmidhi (d. 892), and the Sunan of
Ibn Majah (d. 886), Abu Dawud (d. 888), and al-Nasa’i (d. 915)[5]. In the ninth and
tenth centuries, the
relative importance of hadith as a body of scripture was highly contested.
Some rationalist jurists threw it out completely; most rationalists restricted
the use of individual reports severely, setting very stringent requirements for
establishing its authenticity.
Many
traditionalists, on the other hand, based their understanding of the law
almost entirely on hadith reports and sought thereby to emulate the Prophet’s sunna, or exemplary behavior,
as closely as possible, even in everyday matters such as trimming one’s
mustache and letting one’s beard grow long, or using
a miswak twig as a sort of toothbrush. They set out to avoid all innovations,
bid‘a in opposition to sunna, which could lead one into error.
Even these traditionalist scholars realized that many hadith reports were
forged: some hadiths spoke for and against sectarian and other theological
positions that had only arisen generations after the Prophet. Others contained translations
of Bible verses or other Jewish or Christian lore. They devised criteria for
establishing the authenticity of hadith reports, but most of these were formal,
probabilistic criteria, based on examination of the authorities in the chain of
transmission (isnad) of the hadith report. If they were all known to be
reliable and each could have met the preceding person in the chain, then the
report was considered formally reliable, even if the text itself was recognized
to be odd.
In the genre of usul
al-fiqh, Islamic jurisprudence developed sophisticated scriptural
hermeneutics, focusing on the interpretation of God’s address (khitab Allah)
to mankind, in which He conveyed the law. Particular attention was paid to commands
(awamir) and prohibitions (nawahi ) in the text, for they
establish obligations and set up legal boundaries. Several concepts were
developed to cope with apparent contradictions in the text, including
abrogation, according to which a later prooftext canceled out the legal effect
of an earlier prooftext, the distinction between general and particular
prooftexts, which allowed jurists to distinguish the intended audience or set
of legal agents to which a particular command was addressed. Over the centuries,
the discussions of these topics grew more and more elaborate and linguistically
sophisticated, anticipating a number of theories of modern linguistics and
philosophy by many centuries.
The third “source”
of the law according to classical Sunni jurisprudence was consensus, usually
defined as “the unanimous agreement of legal authorities of a given generation
on a particular legal.” This has often been confused with popular opinion, but
is in essence the agreement of the community of interpretation constituted by
qualified master jurists, after debate has subsided. The existence of consensus
is established [6] through the
absence of dissent. The legal questions subject to consensus, together with the
disputed questions, on which a number of authoritative variant opinions are
held, form the range of orthodox opinion.
The fourth ”source”
of the law has been variously designated as qiyas (“legal analogy”) or ijtihad
(“exhaustive investigation”). They both came about in an attempt to eschew ra’y
(“considered opinion”) as a source of the law and to tie elaboration of the
law more closely to scripture[6]. By the tenth century, and particularly in
traditionalist circles, ra’y came to take on the pejorative meaning
“completely unfounded or idiosyncratic opinion,” as opposed to its early usage.
All four Sunni madhhabs eventually renounced ra’y and accepted qiyas.
Qiyas, in its simplest form, is an analogy tying the ruling of Y to the ruling
of X based on a crucial similarity, termed the ‘illa (“cause”) of the ruling.
For example, it is established from the Koranic text that drinking alcoholic
beverages is forbidden, but there are no scriptural texts that apply to other
drugs, such as hashish or opium. If jurists could show (1) that God declared drinking
alcoholic beverages forbidden specifically because they intoxicate and (2) that
hashish and opium intoxicate in a manner similar to alcohol, then the
consumption of hashish or opium should also be forbidden.
The jurists of the
short-lived Zahiri madhhab rejected qiyas altogether, arguing
that it is impossible for humans to assign a cause to God’s legal declarations without
explicit designation in scripture. To do so is to usurp God’s legislative
power. Qiyas also came to serve as a general rubric encompassing a number
of logical arguments, many of which were not actually based on analogy,
including reduction ad absurdum, a fortiori, and other logical
arguments. Ijtihad (literally, “effort”) is the term used to describe
the process of legal interpretation undertaken by a qualified expert in
jurisprudence. Such an expert is termed a mujtahid and is forbidden from
adopting the opinions of other experts on authority (taqlid ). Only a
layman, or a jurist who is not fully qualified, is permitted to perform taqlid.
A great deal of controversy surrounds the term ijtihad; it was until
recently commonplace to claim that “the gate of ijtihad ” was closed
long ago, as early as the ninth or tenth century, and that from that time
forward, “independent” interpretation was forbidden. This is not true. Those
who claimed that the gate of ijtihad was closed meant that it was
forbidden or impossible to establish a new legal madhhab, not that there
was a moratorium on independent thought.
Manuals of
jurisprudence throughout the middle ages and up until the present have stressed
the necessity of performing ijtihad on the part of the qualified jurist,
and Muslim jurists have been addressing novel issues in the law and coming up
with new interpretations throughout history. Nevertheless, it is true that many
jurists felt that their interpretative leeway had narrowed considerably by the
late middle ages and that they were constrained by the tradition of their own madhhab
in ways that earlier jurists had not been.
By the eleventh and
twelfth centuries, Sunni jurists had come to accept the role of probability in
legal interpretation. In the absence of clear scriptural prooftexts, the
individual jurist, after exhaustive investigation of a legal question,
professed that answer that was preponderant in his mind. This opinion did not
rest on certitude (yaqin) but on strong presumption (ghalabat al-zann).
Although it was not guaranteed to be correct, the mujtahid was not held
to have sinned for coming up with the wrong answer as long as he had investigated
the topic exhaustively, and the lay petitioner was permitted to perform his
religious obligations according to this opinion. Probable answers to legal
questions acquired authority in the absence of a certain answer.
In the modern era,
traditional Islamic law and its institutions have been eclipsed by secular law
and institutions at the hands of the colonial powers and modern nation-states.
In most Muslim nations, the endowment properties that supported legal education
have been confiscated by the government and put under the control of a government
ministry.
The professors and
others who teach and work in these institutions have become government
employees. Secular education has radically reduced the importance of the madrasas
in the contemporary world. There has been a widespread application of Western
legal codes, whether the Napoleonic code or the related Swiss code, on the law
of modern nation-states in the Muslim world, especially in the areas of
commercial and criminal law. The only areas that have remained under the
purview of Islamic law in most countries are family law, including marriage,
divorce, inheritance, and related topics. In these areas, the flexibility of
the law has been radically reduced by attempts to establish a standard code. About
it D.J. Stewart writes in New Dictionary of
the History of Ideas so, in British India the Hidaya by al-Marghinani
(d. 1196), Minhaj al-talibin by al-Nawawi (d. 1277), and Shara‘i’
al-Islam by al-Muhaqqiq al-Hilli (d. 1276) were chosen to serve as the law
codes for Hanafi Sunnis, Shafi‘i Sunnis, and Twelver Shiis, respectively. At
the same time, beginning in the nineteenth century, Muslim reformers such as
Muhammad ‘Abduh, Rashid Rida, and others attempted to reform Islamic law from
within. Approaches have varied widely. Some thinkers have criticized the insularity
of the individual madhhabs, arguing for a sustained study of comparative
law (fiqh muqaran) within traditional institutions. Other methods
include choosing freely (takhayyur) among the opinions of past
authorities, or combining the legal doctrines of various madhhabs to
come up with an appropriate solution, a process termed talfiq (“patching,
piecing together”). These last methods have been used in many actual reforms of
Islamic family law, such as the well-known reform of Anglo-Muhammadan law that
drew on the Maliki tradition to alter Hanafi marriage law so as to facilitate
access to divorce for women in bad marriages[7].
Other, more radical
thinkers have argued that the law of the madhhabs should be jettisoned altogether
and that a new Islamic law should be derived directly from the scripture, from
the Koran alone, or from that portion of the Koran that was revealed at Mecca.
These radical reforms have met with little success, as most movement in the Muslim
world today seems to be in the opposite direction. In Saudi Arabia, Iran under
the Islamic Republic, Afghanistan under the Taliban, and Sudan, various forms
of Islamic law have been applied. In addition, Islamist political groups
throughout the Muslim world are clamoring for application of the shari‘a in
an attempt to fend off Western cultural influence, fight corruption, and
engender public morality and social justice. The classical legal system has not
lost its vitality, and, given the centrality of a divinely ordained law to
Islam, it cannot easily be replaced or substituted.
Literature
1. J. Wentzel Vrede
van Huyssteen, Encyclopedia of Science
and Religion, 484p, New York-2003
2. Stephen G.
Post Encyclopedia of Bioethics, 1333p, New York-2004
3. Lindsay Jones, Encyclopedia
of Religion, 4683p, Farmington
Hills-2005
4. I.Chalyshkan,
A.Yildyrym, Islam kukugy 28p, Turkistan-2011
5. A.Yildyrym History
of Hadith. 119p. Turkistan-2011
6. A.Asalyoglu, Islam madhhabtar tarihi, 33 p,
Turkistan-2011
7. Horowitz, Maryanne
Cline, New Dictionary of the History of
Ideas 1252-1253p, Farmington Hills-2005