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The Shari’ah – Introduction and historical background

It is said that every Arabic word basically has some connection with the camel. ‘Shari’ah’ is the road to the watering place, the clear path to be followed. So the word has come to mean the path to be followed by Muslims, in the hope of arriving at the place where rivers flow under the garden, the paradise of the Quran. The Shari’ah is the canon law of Islam, said to have been given by Allah. It is mentioned in the Quran:

> ‘Then We put thee on the (right) way (shari’ah) of religion: so follow thou that (way), and follow not the desires of those who know not (Al-Jathiyah 45:18).’

Muslims say that Islam is the complete way of life not only for Muslims, but for all mankind, and the Shari’ah is the code of law by which a person can arrive at that ideal life. Many Muslims claim that the Shari’ah is permanent for all people in all nations, all the time and does not change with time and conditions. These Muslims therefore seek to introduce the Shari’ah in countries throughout the world.

Religion and politics are one and the same in Islam. Islam is a complete system of life and politics is therefore governed by the Shari’ah as are all other aspects of life. A Muslim is expected to accept the Shari’ah without enquiring into the principles on which it is based or the reason for its demands. Muslims who would like to bring the Shari’ah up to date are considered heretics. Those who have put forward proposals for a modernised law know that their lives are at risk from the fundamentalists. This is therefore an extremely sensitive area, and it may be unwise to ask Muslim friends or neighbours specific questions.

 

Historical background

The Bedouin Arabs were individualistic; they had no law and no constitution, they simply feared their tribal gods. There were more developed legal ideas at the trading centre of Mecca and the Jews of the Hijaz had Jewish law. Some of the nearby conquered lands had lived under Roman law for many years.

Historically, Muslim law evolved over a couple of hundred years, in the countries at the heart of the Islamic empire. It was completed by the Sunni law schools in the ninth century. While Muhammad was alive, the commands to his followers were given as they ‘came’ to him. Following his death the leaders of Islam referred to his words and actions. The memories of his companions lengthened as the years went by; as it was necessary to have his sanction for all that was done.

During the rapid expansion of Islam, many different elements of law became incorporated into Muslim thought and were used in the conquered countries. For example old Arab Bedouin ideas; commercial law from the trading town of Mecca; agricultural law from the oasis of Medina; Jewish law; and the customary law from conquered countries which included Roman law.

The Islamic conquest made Arabia wealthy. Money, slaves, and the luxuries of the Syrian and Persian civilizations influenced the conquerors. While the military commanders devoted themselves to conquest, the scholars who stayed behind spent a great deal of time interpreting the Quran, and studying the Hadith. Separated from the seat of political power which had been transferred to Damascus, these scholars prepared an ideal picture of Islam. As the supply of traditions grew, some were arranged according to subject matter and provided the basis for jurisprudence, e. g. the collection of Al Bukhari who died 257 years after the Hijra.

A study of the history of the Umayyad and Abbasid dynasties show that the practical politicians had problems in keeping to the exact letter of the law which was being formed by the scholars. The usual result was for the politicians to enforce whichever aspect of the shari’ah suited them at any particular time.

 

The sources of the Shari’ah

There are four sources of the Shari’ah Law and they are called the ‘Usul al Fikh.’ 1. The Quran; 2) The Hadith; 3) ijma’ (unanimous consent); 4) qiyas (reasoning by analogy).

A Muslim would say that the Quran is the main basis of the Shari’ah however, the total number of Quranic verses considered to have legal importance is not more than 600. The example of Muhammad as found in the traditions, or Hadith then provides the details of the conduct commanded by the Quran.

The original founders of the Muslim law schools varied in their use of the Quran and the Hadith. When abrogation was a problem, they sometimes agreed on various issues, and some considered that this consensus or agreement itself (ijma‘) could be used as a basis for the Shari’ah. The fourth source of the Shari’ah is ‘qiyas’, a considered opinion based on an analogy.

 

The contents of the Shar’iah law

For practical purposes the Shari’ah covers :

1) The whole aspect of the duties of Muslims in connection with their religious, political, social and personal lives while within a Muslim country.

2) The regulations of ritual duties of Muslims while outside a Muslim country.

3) The activities of members of other religions which may be tolerated within a Muslim country insofar as they may not be detrimental to Islam.

Books dealing with law were written before the hadith, because this was encouraged by the state. The different law schools which later developed, worked out in minute detail the various regulations affecting the total life of Muslims, This jurisprudence is called fiqh. The word ‘fiqh‘ means knowledge or understanding. Fiqh is the study which co-ordinates Islamic law or jurisprudence. There is no distinction between personal or public, civil or criminal law. The Shari’ah has rules for every aspect of life and is said to be perfect. Throughout the law books there are scattered regulations concerning varied matters, e.g. permitted and forbidden musical instruments, ornaments, etc. Although the Shari‘ah relates to every detail of man’s activities, e g. it prescribes and describes the use of the toothpick, it is not concerned with conscience or religious feelings. The external practices which distinguish Muslims from other people are usually held to be most important.

The knowledge of the Shari‘ah is communicated through the study of fiqh. In the fiqh books, the Shari’ah is expounded in a way which is binding on the Muslim, according to whichever law school he belongs to. In the countries where the various schools are followed, a large number of commentaries and codices are found. Any cases which do not have provision in the codices are decided by a ‘mufti‘. A mufti is a canon lawyer who is able to give an opinion on how the law affects a particular case. He cannot follow his own judgment. This kind of opinion is called a ‘fatwa‘. Fatwas, are then collected and referred to by others.

One school, the Shafi’i School, arranges its subjects studied in the following manner: the pillars, contracts, inheritance, marriage and family law, criminal law, war against unbelievers, attitude to unbelievers generally, food laws, sacrifice and killing of animals, oaths and vows, judicial procedure and evidence, liberation of slaves. The five ‘pillars’, i.e. the profession of belief, ritual prayer, almsgiving, fasting, and pilgrimage are normally arranged at the beginning of the study of the law books. Islamic law divides all human activities into various categories. The various law schools can differ over these, and the circumstances can also place an action in different categories at different times.

 

Present day practice of Shar’iah law

Modern conditions have produced reforms of legal practice in some Muslim countries. Some Muslims say that ‘ijma’ can be used to develop and adapt Islamic law to changing circumstances, and every opinion which is not rejected unanimously will not entail excommunication.

In some Muslim countries, there are two codes of law administered by two separate courts. One judges by the Shari’ah for private and family affairs, marriages, divorces, inheritance, details of ritual law, law of oaths and vows. Yet in the “family law” courts there are problems for citizens who are not Muslims for example no non-Muslim is allowed to inherit from a Muslim. The other court administers the law and custom of the country, and decides all matters of public and criminal law. Muslim fundamentalists say only heretics and unbelievers take part in such non-Shari’ah courts, as the Shari’ah cannot be divided.

In countries which do not have a majority Muslim population, efforts are made to persuade the non-Muslim majority that Muslims should be allowed to live under their own law, beginning with the ‘family law’.

Non-Muslim citizens and visitors in Muslim countries are advised to not offend any aspect of Islam, whether religious, political or cultural. Muslims, however, when living in non-Muslim countries, expect to continue their Muslim practices. They are told that they need not obey any non-Muslim authority.

Muslim fundamentalists call for a return to the Shari’ah throughout the world, and brand reformers as heretics. They look back to the days of the ‘rightly guided’ khalifs when there was one law in Islam, and forward to the days of the Mahdi, when the law will be restored, They are convinced that the law which was finalised in the ninth or tenth century is perfect for today. Yet even in the early period of Islam, the Shari’ah was not always practised as practical rulers often used the customary law found in their conquered territories.

Supporters of the Islamic fundamentalists aim to convert the world to Islam. They say that an Islamic state is based on the model of Muhammad’s state in Medina. In countries where the attempt has been made to introduce the Muslim Shari’ah as the law of the land, non-Muslims have suffered, and no attempt is made to observe human rights as called for by the United Nations.

 

Present day problems with the Shar’iah law

It is incorrect to say that there is a unified concept of the shar’iah law as several competing versions of it exist. They were devised by different scholars of the eighth and ninth centuries A.D. Problems arise because the shar’iah has little to say about modern situations in which Muslims may be unsure how to conduct themselves. Perplexed, Muslims therefore turn to their modern leaders for guidance and those leaders give a variety of different instructions which fail to unify the Muslim community.

 

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