Islamic Law
1. Definition
The term ‘Islamic law’ or sharīca (sharia) is generally used to refer to the religious law of Islam. These terms, however, are not synonyms. It would be an oversimplification to equate ‘sharia’ with law. It is rather a generic term for the entire set of rules of conduct imposed on Muslims without differentiating between legal, moral or ethical norms. The sharia thus encompasses more than just legal norms. Islamic law conversely is derived from the sharia; however, there is no uniform Islamic law. It is rather divided into schools of law which have developed at different places and different times.
2. Sources of Islamic law
a) Primary sources
The sources of Islamic law are divided into primary and secondary sources according to their origin and their relevance. The primary sources are the Qur’an (qur’ān), the holy book of revelations, and the traditions, which are narrations of the deeds and words of the Prophet Muhammad related by a chain of reliable transmitters (sunna). The Shiite legal doctrine additionally acknowledges the traditions of the 12 Imams. The secondary sources of Islamic law comprise the consensus of the jurists (ijmāc) and the legal findings by means of analogy (qiyās) and logic (caql).
The final compilation process of the Qur’an was accomplished under the third caliph ’Uthman (AD 644–656). The Qur’an is neither a scientific work nor a legal text. Of its approximate 6,200 verses, only 500 are declared legal provisions with the majority of these verses dealing with acts of worship and ritual law, such as prayer, washings or fasting. Of these 500 verses, about 80 to 100 have legal content, primarily assigned to succession, penal, procedural, marriage and sales law. These represent areas that desperately needed regulation in pre-Islamic Arabia and include the introduction of inheritance and proprietary rights for women, the protection of widows and orphans, the rule of good faith in commercial transactions and the prohibition of gambling and interest. Since the verses of the Qur’an above all want to set ethic principles, they mostly refrain from ordering worldly sanctions. Wrongdoers will be punished on the Day of Judgment in the afterlife, as will observants be rewarded.
In order to complement and interpret the Qur’an, the traditions, ie the deeds and words of the Prophet, were consulted. The traditions are based on individual narrations or messages (hadīth) about the behaviour and views of the Prophet, reports on his decisions as a judge as well as his judgments on particular behaviours and deeds. In the course of its development, the validity of the hadīth did not depend on their contents, but rather on the reliability of the authorities in the chain of transmitters. The narrated material was considered authentic if a chain of transmitters (isnād) back to the Prophet gave reason for the conviction that the transmitted event had happened exactly that way and not otherwise.
b) Secondary sources
Because of the complex language and meanings of the Qur’anic verses and the sunna, it became apparent in the early era of Islamic law that not all legal questions could be answered by directly applying provisions from the primary sources of law. The task of deducing the law in such cases, ie interpreting and explaining the Qur’an with the aid of the traditions, was incumbent on scholars specially trained in grammar and syntax of the Arabic language as well as in jurisprudence and theology, the mujtahid. The work they performed, ijtihād, means ‘making an effort’ in Arabic; in the legal sense, ijtihād is the effort of a jurist to solve a legal question by independent reasoning and interpretation of the sources. If the answer to a question was unambiguous in the sources, the scholar did not need to make an effort to find the solution, ie exercise ijtihād, but could apply the provision directly. In contrast to this, where the rule was not directly apparent from the texts, the scholars had to find a solution by using their own skills. These findings consequently reflected the scholar’s personal opinion on a particular question and had to be specified as such (zann). If a majority of the scholars came to the same results or if gained insights met with the approval of the majority of the scholars, the subjective assumption of a scholar turned into secure knowledge (cilm). In a next step, the legal rule supported by the consensus of the jurists, ijmāc, was elevated to the status of a source of law.
The doctrine of consensus was crucial for the development of Islamic law and an important tool for adapting law to social changes. It was the basis for many legal concepts emanating neither from the Qur’an nor from the traditions. Additionally, it allowed the ruling academic circles to express their opinions. Indeed, consensus in the rapidly spreading Islam was regional, often limited to the respective geographic sphere in which the emerging schools of law were particularly influential.
Finally, the fourth source of law is legal reasoning through analogy (qiyās) in Sunni Islam and through rational analysis (caql) in Shiite Islam. They are better referred to as methods of legal reasoning, since it is actually the application of ijtihad. Qiyās is the extension of a ruling from an original case to a new case due to a similar divine reason underlying both. The prohibition of consuming grape wine, for instance, has been extended to other intoxicating beverages, like date wine, because both dull the senses and make people incapable of fulfilling God’s commandments. The Shiite doctrine, on the other hand, follows the thesis that everything dictated by reason is God’s will as well. In compliance with this rule, norms may thus also be obtained by rational analysis. These include, for instance, the permission of an act implying the prohibition of its opposite and the principle of causality.
3. Deducing law
The result of these deductive efforts is called fiqh. The Arabic word fiqh means literally ‘understanding’ or ‘insight’. Islamic jurisprudence differentiates clearly between the deduced fiqh law and the sharia as such. The sharia is of divine origin and hidden in the revelation without being spelled out in a precise legal manner. The Islamic jurist forms the necessary link between God and men by formulating the fiqh law. This fiqh law is the result of human and therefore fallible analysis. Another possible description of this relationship is to refer to the sharia law as God’s law and to the fiqh law as jurists’ law.
The fiqh works are not systematically arranged according to subject matters. Rather, general legal issues are dealt with by reference to single provisions. These works deal meticulously and in detail with a particular problem, thereby disclosing the method of analysis and the rules of deduction applied. Fiqh works classify human behaviour into five categories: besides the legally binding categories of the obligatory and the prohibited, there are also the categories of the recommended, the disapproved and the indifferent, which, however, are not legally binding and are only of moral importance.
4. Schools of law
The first schools of law developed during the first half of the 8th century, particularly in the competition between the cities of Kufa (in contemporary Iraq) and Medina. Different interpretations of the primary sources as well as the disparate social structures of the two cities led to the development of divergent schools of Islamic thought. While, for instance, in the consistently homogeneous and tribal society of Medina a young woman needed the consent of her legal guardian for marriage, in the cosmopolitan and more penetrable society of Kufa, women of legal age were allowed to marry independently.
Eventually, the connection to geographic regions gave way to adherence to the doctrines associated with an eminent personality. The four major Sunni schools of law that emerged were: the Hanafi school of law, which emerged from the school of thought in Kufa, founder Abu Hanifa (699–767), prevalent in central Asia, Pakistan, Turkey, Syria, Jordan, Egypt; the Maliki school of law, the former school of Medina, founder Ibn Malik (715–795), prevalent in North and West Africa, Sudan and some Gulf States; the Shafi’i school of law, founder al-Shafi’i (767–820), prevalent in East Africa, Indonesia and Far East; and the Hanbali school of law, founder Ibn Hanbal (780–855), prevalent in Saudi Arabia and Qatar.
The main difference between these schools lies in the weighting of the hadīth. On the one side, the so-called people of the traditions (ahl al-hadīth) measured the authenticity of a hadīth by the formal criterion of the isnād, ie how strong and reliable the chain of transmitters was, and took the view that the Qur’an could only be understood with the aid of the traditions. On the other hand, the so-called people of opinion (ahl ar-ra’y) did not confine themselves to the formal criterion of the isnād when evaluating a hadīth, but measured the hadīth against the yardstick of a rationalistic interpretation of the Qur’an. Within the Sunni schools of law, only the Hanafi school belongs to the ahl ar-ra’y. Shafi’is and Hanbalis adhere to the ahl al-hadīth. The Malikis, too, are counted among the ahl al-hadīth, although they also possess elements of the ra’y school. Nevertheless, the schools of law cannot be clearly classified under categories such as ‘static’ or ‘dynamic’. The Hanbali school of law, for instance, is regarded as being very conservative in the field of family law; however, it is the only Sunni school of law which acknowledges the principle of freedom of contract within the framework of Islamic ethics (prohibition of interest and speculation).
Furthermore, there are several Shiite schools of law. The prevailing Shiite school is the Twelver Shia, also called Ja’fari school of law, founder Ja’far al-Sadiq, the 6th Shiite Imam (702–765), prevalent in Iran, parts of Afghanistan, in southern Iraq and Bahrain.
5. Codification of Islamic law
Until the 20th century, the fiqh works of the respective schools of law essentially remained the main sources of law. Although there are movements declaring that the process of independent legal reasoning by jurists had come to an end after the 11th century and the gates of ijtihād had been closed, as a matter of fact, Islamic scholars—Sunni as well as Shiite—have continually applied ijtihād as a method of legal reasoning until today. They have enriched and further developed (secondary) law over the past thousand years via a multitude of textbooks, commentaries, monographs and legal opinions.
Only the emergence of the codification movement has challenged the dominance of the uncodified Islamic legal provisions. Thereby, the European civil codes, particularly the continental European codes, acted as models. Even today, the impact of European private law on the laws of the Islamic countries is evident (Islamic countries, influence of European private law). Apart from a few exceptions, like Saudi Arabia, today justice in Islamic countries is dispensed on the basis of modern private law codifications. The uncodified classical Islamic law only applies where there is a lacuna in the law. Thus, for instance, Art 3 of the Iranian Code of Civil Procedure refers to ‘the Shiite law’ and Art 1(2) of the Egyptian Civil Code to ‘the principles of Islamic law’.
6. Islamic law in Europe
According to the central institute of Islamic archives in Germany (Zentralinstitut Islam-Archiv-Deutschland), in 2008 approximately 15 million Muslims were living in the European Union. About 2.2 million nationals of Islamic countries are living in Germany. Thus, according to the provisions of the conflict of laws rule, European courts may have to apply family and inheritance laws of these countries in cases involving their nationals (foreign law (application)). This sometimes presents the courts with difficult qualification problems and conflicting views on the compatibility of the foreign rule with the value system of the European Union. For example, provisions on child custody often refer to rigid age boundaries instead of relying on the principle of the best interest of the child. Furthermore, in most Islamic countries, there are different divorce laws for men and women, and in inheritance law, female heirs are disadvantaged over male heirs simply because of their gender. This has led, in Germany, for instance, to an increased application of the public policy (ordre public) proviso (Art 6 EGBGB (Introductory Act to the German Civil Code)), according to which a foreign norm does not apply if the result of its application is evidently repugnant to the basic principles of German law (Grundrechte). Therefore, family and inheritance law influenced by Islam is applied in European courts subject to the guaranteed basic rights.
Literature
Noel J Coulson, A History of Islamic Law (1964); Y Linant de Bellefonds, Traité de Droit Musulman comparé (1965–73); Hossein Modaressi Tabatabai, Introduction to Shii Law: A Bibliographical Study (1985); David S Powers, Studies in Qur’an and Hadīth: The Formation of the Islamic Law of Inheritance (1986); Abdullahi Ahmed An-Na’im, Toward an Islamic Reformation, Civil Liberties, Human Rights, and International Law (1990); Bernard G Weiss, The Search for God’s Law: Islamic Jurisprudence in the Writings of Sayf al-Dīn al-Āmidī (1992); Parviz Owsia (ed), Formation of Contract: A Comparative Study Under English, French, Islamic and Iranian Law (1994); Laleh Bakhtiar, Encyclopedia of Islamic Law: A Compendium of the Views of the Major Schools (1996); Barber Johansen (ed), Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh (1999); Jürgen Basedow and Nadjma Yassari (eds), Iranian Family and Succession Laws and their Application in German Courts (2004); Mathias Rohe, Das islamische Recht, Geschichte und Gegenwart (2009).
