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THE SOURCES OF THE SHARI‘AH AND THE METHODOLOGY OF ISLAMIC JURISPRUDENCE

The most important source of theShari‘ah is the Quran, which some scholars claim to be the only basic source; all other sources serve only to elucidate and elaborate the roots and principles contained in the Sacred Text. There are some 350 legal verses, or what Western law calls juris corpus, in the Quran. Some of them deal with specific legal issues and penalties for illicit and illegal acts. A large number deal with the principles of the acts of worship and in some cases the details of such actions. Another group of verses deals with commercial and economic issues. In addition, many verses deal with the questions of justice, equality, evidence in law, legal rights, and so forth. Together these verses constitute only a small part of the Quran, but they are essential as the roots of Islamic Law.

The injunctions of the Quran would not, however, be fully understood without theSunnah and Hadith of the Prophet, which constitute its first commentary. The Quran orders Muslims to pray, but how to pray was learned from the model established by the Prophet. After the Quran, therefore, theSunnah and Hadith are the second most important source of theShari‘ah . All schools of Law, Sunni and Shi‘ite alike, accept these two as the absolutely necessary sources for Islamic Law. It is important to note that it was only after the canonical collections of Hadith were assembled in the ninth century that the definitive work on the methodology of jurisprudence was produced by Imam al-Shafi‘i.

OtherShari‘ah sources are accepted by some schools and not by others. They include qiyas, or analogy, in its juridical sense, which technically means the extension of a Shari‘ite ruling or value from a known and accepted case (asl ) to a new case with the same effective cause, legally speaking. These sources also include ijma‘, or consensus, which is usually considered to be the consensus on a legal matter of the legal scholars who are specialists in theShari‘ah , but which in Islamic history has also been the consensus of the whole community over a long period, as in the case of the banning of slavery and the acceptance of tobacco as being halal, that is, legally acceptable rather than forbidden. There is, in fact, a hadith of the Prophet that asserts: “My community shall never agree on error.”

Then there is istihsan, or equity, which differs from equity in Western law in that in the latter equity relies on the concept of natural law, whereas istihsan relies on theShari‘ah ; otherwise, they are similar in that both are concerned with the idea of fairness and conscience in law. Finally, in this brief account one must mention mas.lah. ah mursalah, or considerations of public interest that are harmonious with theShari‘ah and the objectives of the Lawgiver.

An important point here is the position within theShari‘ah of human custom and law as distinct from the Divine Law. What in classical texts is called ‘urf or ‘adah, meaning human custom or habit, is considered valid in theShari‘ah itself if such a custom or habit does not contradict or contravene theShari‘ah . Therefore, human laws not derived from the Divine Law can become integrated into the Islamic legal system as long as they do not oppose the edicts of theShari‘ah . This occurred often

throughout Islamic history. Divine Law is referred to asShar‘ , and human law is referred to asqanun (from the Greek word kanon, which is also the source for the word “canonical” in Western law). Paradoxically, nonreligious law in Islam uses the same term as religious or ecclesiastical law in Christianity.

From the point of view of theShari‘ah , to follow theqanun of any country in which one finds oneself is itself commended as long as thatqanun or law does not contradict the injunctions of theShari‘ah .

Historically and in contrast to the modern period, there was much harmony betweenShar‘ andqanun in the Islamic world, and traditional Muslims did not feel any appreciable tension between Divine Law and human law.

This tension is a modern phenomenon that began in the nineteenth and early twentieth centuries with the abrogation of theShari‘ah in certain Muslim countries and the forced implementation of various European legal codes, for example, in Persia, Egypt, Turkey, and North Africa. In these and similar countries, needless to say, the substitution of European laws for theShari‘ah created a tension between private religious life and the public domain and drew the majority of the population further away from their governments, which they began to view as anti-Islamic or at best indifferent to Islam.

In the hierarchy of the sources mentioned above, the Quran stands at the highest level, followed by theSunnah andHadith . An elaborate methodology was developed to deduce rulings from these sources and create the body of Islamic laws. This science of deriving juridical decisions from sources is called the “principles of jurisprudence” (us.ul al-fiqh ) and is central to Islamic Law. Althoughfiqh itself originally meant “understanding” or “knowledge” in general, gradually it came to be associated with the “science of the law,” or jurisprudence, corresponding to what the Romans called iurisprudentia. It deals with the body of the law and ways of concluding legal views from the principles and sources of the law.Fiqh has, therefore, a more technical legal meaning than theShari‘ah , which includes moral laws and the general framework for the religious life of Islam.

Fiqh, according to traditional authorities, is knowledge of the practical regulations and rules of theShari‘ah acquired by reference to and detailed study of the sources.

Although the fifth and sixth Shi‘ite Imams, Muh.ammad al-Baqir and Ja‘far al-Sadiq, said much aboutfiqh and its principles, it was Imam al-Shafi‘i who, in his Risalah (“Treatise”), established the systematic methodology for deriving laws from the sources. To exercise such an intellectual undertaking is called ijtihad, and the person who can give fresh views on matters of law by going back to the sources is called a mujtahid. In the Sunni world the “gate of ijtihad” closed after the tenth and eleventh centuries, when the major schools were established, whereas in the Shi‘ite world it has remained open to this day and in each generation the mujtahids have derived the laws from the established principles and sources, which for

Shi‘ites are the Quran, theHadith of the Prophet, and the teachings of the Imams.

Through the meticulous following of the methodologies elaborated inus.ul al-fiqh , the major schools of Sunni Law already mentioned, that is, the Hanafi, Maliki, Shafi‘i, and Hanbali, came into being, as did the Twelve-Imam Ja‘fari School and the Zaydi, Isma‘ili, and ‘Ibadi schools. Since the last century, a great debate has taken place in the Sunni world about opening the “gate of ijtihad” again, and in both the Sunni and the Shi‘ite worlds, fundamental discussions are taking place today about the future development and application of theShari‘ah to Islamic society facing major new challenges, including those issuing from biotechnology and all the problems that it poses for ethics.

In this domain the recent responses of Jewish and Christian thinkers are close to Muslim ones, and the followers of the three monotheistic faiths can certainly collaborate together on many issues in the fields of bioethics and environmental ethics.

TheShari‘ah can best be understood through the use of the symbol of the tree, mentioned in the Quran: “Seest thou not how God coineth a similitude: A good saying, as a goodly tree, its roots set firm, its branches reaching into heaven” (14:24). This symbol has many levels of meaning, one of which concerns theShari‘ah . Divine Law is like a tree whose roots are sunk firmly in the ground of revelation, but whose branches extend in different directions and have grown in various ways. The firmness of the roots does not mean that the tree is not living. On the contrary, it is the very firmness and immutability of the roots that guarantee the flowing of the sap into the branches and the continuous life of the tree. TheShari‘ah has developed in many different cultural and political climates over the centuries.

It has harbored many differences of interpretation, and yet it has remained theShari‘ah . Today it is faced with unprecedented challenges both from within the borders of the “Abode of Islam” and from outside, but it remains a living body of law that Muslims consider the concrete embodiment of God’s Will for them to follow on the basis of their faith and free will.

TO WHOM DOES THE SHARI‘AH APPLY?

According to all schools of Islamic Law, the injunctions of theShari‘ah of Islam apply to all Muslims, male and female, who have reached the legal age and only to them. All Muslims are in principle equal before the law, whether they are kings or beggars, women or men, black or white, rich or poor. The Quran especially emphasizes that its injunctions concern both men and women in several verses where both sexes are addressed clearly and in a distinct manner, as when it says:

Verily, men who surrender unto God, and women who surrender, and men who believe and women who believe, and men who obey and women who obey, and men who speak the truth and women who speak the truth . and men who give alms and women who give alms, and men who fast and women who fast, and men who guard their modesty and women who guard (their modesty), and men who remember God much and women who

remember-God hath prepared for them forgiveness and a vast reward. (33:35)

In a society ruled by theShari‘ah and in which Muslims are the majority, accepted religious minorities are absolved from following the IslamicShari‘ah except in that which concerns public order. According to the IslamicShari‘ah itself, Jews, Christians, and other “People of the Book,” which in India included Hindus and in Persia the Zoroastrians, have their ownShari‘ah , and therefore their personal and communal affairs should be left to them. This is how the “community system,” or millat system, of the Ottoman world functioned for many centuries. In the millat system the central government, although Islamic, recognized fully the social, economic, and especially religious rights of established minorities, so that there was no danger of the majority destroying the presence or identity of minority groups. Under the Ottomans the rights of Jews and Christians were guaranteed by the state itself. Although there were occasionally social frictions, by and large there was certainly much greater tolerance between various groups than what we have observed in Yugoslavia since its breakup, with all those horrendous acts of ethnic cleansing and genocide that followed.