10 What is Shar’ia Law?
Camron Michael Amin; Alam Payind; and Melissa McClimans
Islamic law, or sharī‘a, is based on a set of sophisticated legal systems, and provides a basis for government as well as for personal life. The processes of developing shar‘ia are based on strict standards. Religious legal interpretation, or fiqh, encompasses nearly every permutation of social structure, area of human activity and aspect of government. The uṣūl al-fiqh are the sources of Islamic legal interpretation. These sources are used according the sequence below:
- The Koran/Quran, or qur’ān (as fully transliterated in the Library of Congress system)
- The traditions of the Prophet, the sunna, his words and actions as recorded in reports (ḥadīth),
- Consensus , or ijmaʿ
- Analogy by Deduction, or qīyās
- Process of Setting New Precedents Based on the Above Sources, ijtihād
There is a misconception that sharī‘a is taken directly from the Qur’an without any process of interpretation, or application of legal precedents. The Qu’ran is the most important source, and must be looked to first, but it is not the only source. Islamic jurisprudence, or fiqh, considers five main sources to be valid authorities. The first, and most authoritative is the Qur’an, which is considered the word of God. The Qur’an, however, did not address every particular aspect of daily life, but mainly gave principles to live by. Thus, accounts of the prophet (hadīth) Muhammad’s life and quotes of his words are the second most important source. In more complicated matters, the scholar can refer to the consensus of his peers. Jurist scholars then use analogy when the exact case they are considering is not mentioned in these sources. For example, drugs like crack or heroin are not mentioned, but the prohibition on alcohol is issued due to its effect on the judgment and perception. This is a clear analogy the judge can use. Finally, if there is no precedent, he or she must engage in the intellectual struggle of ijtihād. Ijtihād is based on the same root as jihad (which means to struggle – refer to “The Concept of Jihad” for more details), indicating the level of effort required for identifying new paths for new circumstances that remain true to God’s will.
The idea of of consensus requires some explication. It actually derives from a ḥadīth in which Muhammad is said to have said, “My community will never agree on an error.” It does not imply that all Muslims have reached perfect unanimity of matters of doctrine or faith. Religious scholars can talk about a consensus of opinion among themselves (within or across different schools of legal thought). The term consensus can also refer to a set of ḥadīth sharing the same kind of information on a point of fact. By the 10th Century, muslim scholars relied upon collections of ḥadīth that were judged to be sound/correct/reliable based on a host of criteria. One of these criteria, was scholarly consensus about the “chain of narrators” (or isnād, also the plural for the term “source.” Because reports of Muhammad’s life and teaching could contain miraculous content or have information that would conflict with the text of other reports, sometimes the reliability of a report hinged on the reliability of the recorded chain of narrators. The fact that different legal schools of thought could rely on different collections of ḥadīth, is an indication of the connection between the difference of religious sects that emerged over time. While these sects might generally consider themselves aligned with Sunni or Shi‘i Islam, there are multiple sects within those categories, some of which have been historically at odds with each other ideologically and politically.
Religious legal interpretation, or fiqh, encompasses nearly every social structure, area of human activity and aspect of government. There is a massive body of law from which scholars of Islamic jurisprudence may draw upon. The Sunni schools of thought, or madhāhib, are: Hanafi, Maliki, Shafi‘i, and Hanbali, while the primary Shi‘i school of thought is Ja‘fari (also known as Twelver, or “ithna ‘asharī ,” based on the line of authoritative imams this sect of Shi‘ism follows; historically they have also been known as imāmī shī‘a.)
Among the Sunni schools of thought, Hanbali, is the one with the most associated with movements seeking to purify Islam by stricter adherence to the text of the Qur’an and the Sunna. This interpretive outlook has made Hanbali jurisprudence attractive to movements such as Wahhabism and the salafi more generally. See Wikipedia’s map of madhāhib distribution to understand what the countries of the Middle East and other Muslim-majority regions adhere to in regard to these schools of thought in Islamic legal interpretation. It is important to note that this map is the result of historical processes and political events. It would look different at different points in time and even the implications of sectarian difference have changed over time. In the 9th and 10th centuries, or example, it was possible for adherents of different sects within Sunni Islam to have violent confrontations over control of religious institutions in a given town. A lot of the reconciliation that emerged over time was the result of policies enforced by empires that controlled populations adhering to different sects. The Ottoman Empire’s official creed, like that of the Saljuq Empire for which they were former vassals, was Hanafi Sunni Islam. Nonetheless, when they conquered areas with majority adherents of the Shafi’i or Maliki schools (as in North Africa), they would appoint top officials of the other sects also. The accommodation with Shi‘i sects was more complicated and less consistent especially when a regional rival (such as the Safavid Dynasty, 1501-1722) made Twelver Shi‘i Islam its official creed.
For all these differences — some of which are irreconcilable matters of doctrine or practice – the fact is that all these sects tied their legitimacy to the two textual sources of jurisprudence: the koran and records of the example/teachings of Muhammad. This results in a lot of consensus on many issues , some of which was derived from de facto dialogues across sects over the centuries. Sometimes there were different interpretive paths to the same religious opinion (or fitwa, sometime rendered in English as fetwa) or ruling (in a court) or in other texts of Islamic jurisprudence. Islamic law, like all other bodies of law, is a matter of persuasion and active enforcement. Therefore it always important to consider the broader context of any religious movement within Islam, including Islamic jurisprudence, despite all the assertions of certainty and universality in a given moment.