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Shari’a Law and its Role

What is Shari’a and what role does it play in the lives of Muslims?

This essay primarily seeks to determine what Shari’a is through an examination of its four main sources, or ‘usul.
Firstly, the Qur’an and Sunna, which are generally considered divine law and the basic immutable truth for all Muslims.
Secondly, Ijma (consensus) and Qiyas (analogy), which are methods of understanding the laws already believed to be present in the Shari’a.

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Ijtihad refers to the process of legal decision-making through the independent interpretation of the Shari’a by a Mujtahid. Taqlid is the “imitation” of a Mujtahid, the opposite of ijtihad. These concepts will be discussed in the context of their effect on the five main schools of Islamic jurisprudence within Sunni and Shi’ite tradition.

Once the roots of Shari’a are explored, the essay will progress to its secondary objective and discuss the role of Shari’a in the lives of Muslims in modern societies.

Shari’a translates as “way to a watering-place” which illustrates its purpose of helping followers achieve salvation. It does this by regulating society and the individual with a legal structure governing aspects of personal and public life, especially for those living under Islamic jurisprudence.

Before examining what makes up Shari’a it is prudent to deal with a confusing issue around the term Shari’a and its roots, which the following quote from an Islamic scholar helps dissipate:

“The concept of Shari’a has been thoroughly confused in legal and common literature. For some Muslims, Shari’a consists of the Qu’ran and Sunna, for others, it also includes classical fiqh. Most encyclopedias define Shari‘a as law derived from the Qur’an, the Sunna and classical fiqh derived from ijma and qiyas. This definition inappropriately lumps together the revealed with the unrevealed.

This blending of sources has created a muddled assumption that scholarly interpretations are as sacred and beyond revision as the Qur’an and Sunna which constitute the immutable Basic Code, which should be kept separate from ever-evolving interpretative law (Fiqh). This analytical separation between the Basic Code and fiqh is necessary.” (Khan, 2003, 346)

This illustrates the accepted mainstream Islamic distinction between fiqh; the “understanding of details” by Mujtahidun and Shari’a; the principles underpinning fiqh which are held to be divinely appointed, immutable and eternal.

The ‘usul-al fiqh or roots of Islamic law are, in order of primacy:
1. The Qu’ran
2. The Sunna
3. Ijma (consensus)
4. Qiyas (analogical reasoning)

The Qu’ran is the primary, undisputed source of Islamic law, a holy scripture of 114 suras (chapters) which are believed to be the word of God dictated to Muhammad through the angel Gabriel. This means Muslims believe the Qu’ran is the unadulterated word of god, incontestable, eternal and to be obeyed without question.

Only a small percentage of the 6,000 Qu’ranic verses pertain to law and none are free from ambiguity or contradiction, which has led to centuries of debate about its meaning.

The Sunna is the second primary source of Islamic law after the Qu’ran and translates as “trodden path”. The Sunna is the way of the Prophet Muhammad contained in hadith reports and contains much more legal material than the Qu’ran. Qu’ran-alone Muslims reject Sunna and hadith but most Muslims agree Sunna is vital to grasp and apply Islamic teachings.
There is a theological difference between Sunni and Shi’ite groups about what constitutes reliable transmission of the Sunna, or acts of the prophet.

The interpretation of hadith is science for both with Sunni believing all Sahaba (companions) of the prophet are reliable transmitters of Sunna. Shiites divide the reliability of the Sahaba and give precedence to hadith narrated by Sahaba who supported Ali, whom they believe was appointed by Muhammad as the next leader.

Ijma is the third root of Islamic law and often cited as valid by the hadith “my community will never agree upon an error”. An example of ijma is circumcision, a practice that was based on custom and yet became accepted because the community agreed.

Ijma“was active in the earliest days of Islam when the memory of the Prophet’s example was still alive and the community small and culturally homogenous enough to engage in common practice” (Ruthven, 2000, 77). When communities spread the practice of ijma could have led to regional chaos and, noting this, the jurist Shafi’i standardized the law by tracing important hadith to the Prophet so that the oral law came from God and was consistent. (Ruthven, 2000, 77)
It has been debated that ‘community agreement’ refers to consensus among Islamic scholars and that truly democratic consensus should involve a whole community rather than only the clerical class, especially since Islam has no hierarchical system.

Qiyas is the fourth root of Islamic law and is analogical reasoning from a known ban (nass) to a new ban, which means existing situations in the Qu’ran and hadith can be extended if the situations share the same operative cause (‘ilah).
The best example of this is alcohol; fermented vine and date-palm are forbidden (haraam) and some use qiyas to insist intoxication is the common ‘ilah and so all alcohol is forbidden. The hikmah (reason behind the reason) is that intoxication removes Muslims from mindfulness of god and this ban on intoxication has recently been applied to cocaine, among others. (Ibn Sa`d on http://www.submission.org)

Shiites hold that ijma has no particular value on its own and reject qiyas as an easy way to innovations (bid’ah). Shi’a rely on logic (mantiq) over analogy although they do not view logic as a third source of law, only as a way to see if things are compatible with the Qur’an and Sunna (Alam on http://enwikipedia.org/wiki/Sharia). While Sunni scholars developed ijma and qiyas the Shi’a Imams were alive, Shiites believe Imams were an extension of the Sunna and, in turn, believe they only derive their laws from the Qur’an and Sunna.

Ijtihad is legal decision-making through the independent interpretation of the Shari’a by a Mujtahid or Islamic clergyman. Taqlid is the “imitation” of recognized Mujtahid and became the prevalent practice in Sunni tradition around the eleventh century, with a few 7th and 8th-century Mujtahid gaining legal allegiance. This prominent Mujtahid became namesakes for four main Sunni legal schools of jurisprudence (madhab): Hanbali, Hanafi, Maliki and Shafi’i.

Sufi masters are accredited with powers of interpretation similar to Shi’a Imams, who have always exercised the right to ijtihad; the main Shi’ite legal school is Ja’fari.

The goal of the five legal schools is “not lawmaking, but fiqh – understanding or knowledge of a law deemed to exist already”. (Ruthven, 2000, 81)

As social and economic environments change new fiqh rulings are made, though there is little change in methodology in the Sunni schools. Tobacco was initially declared ‘disliked’ because of its smell but, when evidence of its medical damage appeared, it was declared ‘forbidden’.

Modernity has involved less displacement for Shi’a communities with their greater adaptability in hermeneutics and logic than their Sunni counterparts. This has led to modernists and Islamists alike calling for re-opening the ‘gates of ijtihad’ (Herbert, 2005, 125 and Ruthven, 2000, 68) to deal with complex issues such as cloning and technological pirating.
A meeting on ijtihad took place in Washington DC on March 19th, 2004, hosted by the U.S. Institute of Peace. Some liberal movements argued here that ijtihad can be performed by any Muslim because Islam has no accepted hierarchical system. This was greeted with controversy!

Shari’a law still has a massive role in the Muslim majority world, especially for those living under a legal system based on doctrines of Islamic jurisprudence, it is fair to argue that Shari’a is still a way of life that governs most aspects of personal and public life for these Muslims.

Media attention and the European Court of Human Rights have recently focused on punishments meted out under Shari’a and this has cultivated considerable criticism. Islamic scholars have argued back that punishments act as a deterrent to crime when implemented properly. It is appropriate to say violent crime in Saudi Arabia was more than 7000% less than in the UK in 2005. (http://www.hrw.org/reports/2005/saudi0904/5.htm)

It is almost impossible to separate religion from the state or social institutions in Muslim majority society and it has been controversially “implied that the economic and political development of Muslim societies has been restricted by the influence of Shari’a” (Islam Study Guide, 2005, 126) because institutions which stand between god and the individual are given little authority. However, in the modern western world, while Shari’a will unquestionably continue to affect Muslim life, the scope of its legal power will inevitably be limited by the state and social institutions which develop as separate entities from religion.

“The cutting edge of change is going to come from Muslims in the west who live in democratic societies, pluralist societies, the very fact that people are faced with religious alternatives means Islam is going to become a religion as Christianity has become in the west, rather than an all-encompassing way of life as it was in the past.” (Audio CD 1, Track 34)

This illustrates Ruthven’s opinion of the future of Islam, and therefore Shari’a, a future which is, perhaps, inevitable. If Islam is a religious choice for its followers, rather than a way of life, Muslim society will face great change and will be obligated, like Christianity, to reach out more to the community as the following quote from an Imam demonstrates:

“We need to retain our Islamic identity but make the mosque part of the wider community, like the church, the synagogue… we will see more British Muslims but these young people will have a different vision of Islam, of how they want Islam to evolve.” (Audio CD 1, Track 41)

In conclusion, Shari’a is a term for Islamic law and its role in Muslim life is, as we have seen, huge. Islam’s emphasis on proper ritual has created a massive impression on Muslim society and Shari’a has been the key instrument of this impression. Shari’a encapsulates god’s word, the method of interpreting the word and the application of the word. It is, quite simply, a route to god.

In the modern world, Shari’a is often controversial but its role and purpose is changing in increasingly diverse societies.
“The purpose of Islamic law is not to present as set of arbitrary hurdles to test the belief of Muslims. It is a set of norms that direct an individual towards a spiritually and materially good life. It provides constitutional principles that will help ensure justice and welfare for all as society develops political and legal institutions to manage the ever-increasing complexity of life and human interactions.” (Khan on http://www.ijtihad.org/islamiclaw.htm)

This quote beautifully shows how Islamic law can evolve into a moral code rather than a legal obligation, which is arguably the future role of Shari’a in Muslim life.

Shari’a is religious language and all language is based on analogy and metaphor. Language is no substitute for experience and its use can be limited because “religion is a way of walking, not a way of talking”(Inge, 1926, 1). It is important to remember that in Islam, as in all religions, “scripture is the tool not the goal” (Toporov and Buckles, 2004, 342). Shari’a is essentially a tool and its role at any time, in any society, is to help achieve direct experience of god and salvation.

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