Muslim Law

The close link between law and religion

Islam includes a set of beliefs and rules. It has a theology that outlines what a
Muslim must believe and a code of conduct called Sharia for their behavior.
Sharia is like Muslim law, guiding how to live according to the religion without
differentiating between duties to others (like helping and obeying authorities)
and duties to God (like fasting). It only applies to interactions between Muslims
and doesn't apply to non-Muslims.
The fundamental idea of Islam is that the state should serve the revealed
religion, shaping a theocratic society. Instead of just stating principles, Muslim
jurists and theologians have developed a detailed law based on religious
references. This law envisions an ideal society fully under Islamic control. To
understand it, one needs some knowledge of Islam and its civilization. Islamic
law has significantly shaped the social order and community life of Muslims. Its
influence spans all aspects of society, economics, and literature.
The laws structure
The study of Muslim law, known as Fiqh, has two main parts. The first part
explains how the rules of Divine law, called Sharia, were established. The
second part involves the detailed explanation of these rules. Muslim law is
organized differently from other legal systems, but we'll focus on a brief
overview of its sources. We'll also see how it adapts to the modern world and
look at the laws in various Muslim countries today.
Immutable Basis of Muslim Law
Various sources of law
Muslim law comes from four sources: the Quran, the holy book of Islam; the
Sunna, the Prophet's modal behaviour; the ijma, the agreement of Muslim
scholars; and the kiyas, which is making legal decisions by comparing cases.
The Quran and Sunna
Muslim civilization and its law are based on the Quran, the holy book of Islam.
It contains Allah's revelations to Prophet Muhammad (570-632). The Quran is
the main source of Muslim law, but it mainly covers personal relations and only
mentions basic Islamic institutions.
The Sunna shows how the prophet lived and is a guide for believers. It includes
traditions or hadith, documenting Muhammad's (570-632) actions and sayings.
In the 9th century, Al-Bukhari (810-870) and Muslim (820-875) carefully
researched and verified these traditions. Despite some uncertainty about the
authenticity of certain hadith, their work formed the strong basis of the Muslim
faith.
Ijma is the third source of Muslim law, based on the unanimous agreement of
legal scholars. It was created because the Quran and Sunna may not cover all
situations. Ijma works on the idea that the Muslim community can't be wrong
when united, and what they find fair is fair to God too. This principle allows
accepting solutions that aren't directly from the Quran or the Sunna.
For a rule of law to be accepted in Islam, it doesn't need backing from all
believers, unlike in Western law. The agreement required is among competent
people, specifically the legal scholars of Islam (Faqiha). They merge tradition,
custom, and practice to form a legal rule or principle. When Islamic scholars
and doctors agree on a legal solution, it becomes the accepted truth.
Muslim rites (Mazhab)
In Islam, unanimity among experts isn't mandatory. According to a hadith,
differences of opinion are seen as a manifestation of God's grace. Islam
acknowledges some room for flexibility in certain matters, although these
differences are considered less significant compared to what's universally
accepted. There are various schools (madhhab) within the Muslim community,
each offering its unique interpretation of Islamic law.
These rites came into existence in the second century of Hijra. There are four
main branches of Sunnites, named after their founders: the Hanafi, Maliki,
Shafi'i, and Hanbali. The Hanafi has the most followers and is widespread in
Turkey, Russia, Afghanistan, Jordan, Syria, Pakistan, and India. The Maliki is
popular in North and West Africa. The Shafi'i prevails in Malaysia, Indonesia,
East Africa, and parts of South India. The Hanbali is dominant in Saudi Arabia.
Apart from the orthodox rites, the major Shiite branch predominates in Iran and
Iraq. Shiites differ from Sunnites in their view of the caliphate, which seems to
perpetuate the monarchical traditions of Persia. Additionally, the Abadi (Ibadi)
or Harigite rite is found in Oman, East Africa, and Zanzibar.
Analogical reasoning:
Because the regal casuistry might not cover all possible situations, and since
Muslim law aims to be comprehensive, providing answers to all questions,
some means had to be found to deal with any new situation not directly
addressed in the books of Fiqh.
It is agreed that analogical reasoning (kiyas) should be accepted as a source of
Muslim law, even though some groups oppose it. While this method seems
logically sound, some fundamentalists vehemently reject it. Consequently, in
important texts, the use of kiyas is either tacitly understood by some or seen as
deductions made by analogy by others.
Analogical reasoning is only for interpreting and applying the law. Islamic law
is rooted in the principle that it can't create new fundamental rules comparable
to the traditional ones established in the tenth century. Muslim and Western law
differ in how they develop rules. Western jurists use technical reasoning,
making distinctions based on logical and psychological principles. On the other
hand, the Muslim jurist tends to avoid generalizations, preferring to handle
cases on a day-to-day basis according to specific needs, rather than drawing
inferences from general principles. By analogical reasoning, it is possible to
discover from the rules the Fiqh the required solution in any particular case.
Rejection of other sources
Islam is cautious about letting the law change. It rejects legal solutions based on
personal opinion (rai's) because it's based on divine inspiration and isn't rational.
Deviating from legal rules for the sake of public order or justice isn't generally
allowed. There's also disagreement about whether legal solutions should be tied
to their original circumstances, although some schools, like the Shafi and
Hanafi, have allowed this sometimes.
Characteristics of Muslim Law
Muslim law, as a science, began taking form and became stable during the
Middle Ages. Its distinctiveness lies in its foundation on the Quran, considered
a book of divine revelation. As a result, it's seen as independent from other legal
systems. Any resemblance to other legal systems is seen as purely coincidental
from the perspective of orthodox Muslims, as it's believed that Muslim law
never borrowed from any foreign system of thought. However, the influence of
Muslim law on European laws is visible, indicating its impact on global legal
development.
Comparison with Canon law
Muslim law, unlike the Canon law of Christianity, holds a unique position
within the Islamic faith. It is deeply rooted in the principles of the Quran and is
considered divinely inspired, making it independent of worldly authorities.
Disobedience to Muslim law is viewed as a grave sin, leading to punishment in
the afterlife, while challenging it is deemed heretical and can lead to exclusion
from the Islamic community. In contrast, the Catholic Church historically did
not feel compelled to develop a comprehensive Christian law to supplant
Roman law. Saint Paul and Saint Augustine did not advocate for a distinct
Christian law but instead promoted the decline of law through arbitration and
the practice of brotherly love. Canon law, though based on the revealed
principles of Christian faith, is considered the work of man and not the word of
God. Violations of Canon law do not necessarily result in punishment in the
afterlife, as long as the immutable principles of doctrine are upheld.
Ecclesiastical (related to Christian church) authorities have the authority to
introduce changes to Canon law to adapt it to specific times and circumstances.
The Church of Rome itself has different Canon law codes for adherents to the
Latin or Eastern rites. This situation contrasts sharply with that of Muslim
countries, where the law is an integral part of the revealed Islamic religion. The
idea of a purely secular legal system in such countries is inconceivable.
According to orthodox views, any law not strictly conforming to the rules of the
sharia is excluded.
Adaptation of Muslim Law to the Modern World
Permanent authority of muslim law
Despite appearances, Muslim law isn't just a thing of the past. It remains a
major legal system in the modern world, governing the lives of over 500 million
Muslims worldwide. Many Muslim-majority countries expressly integrate
Islamic principles into their legal and constitutional frameworks. For example,
countries like Morocco, Tunisia, Syria, Mauritania, Iran, Afghanistan, Yemen,
and Pakistan state their submission to Islamic principles in their constitutions.
Civil codes in countries like Egypt, Syria, and Iraq direct judges to apply
Muslim law principles in cases where there are legal gaps. In the process of
modernization, many of these countries are embracing progressive reforms in
the field of private law, indicating an evolving and active role for Muslim law in
contemporary society.
Possibilities adapting to the modern world
Muslim law is both unchanging and adaptable. It's important to remember that
even in Western countries, the law was once considered unchangeable, although
not sacred. Authorities didn't have the right to alter its content, yet new
solutions were found when needed without undermining the law itself. Similarly,
Muslim law is also unchanging, but it allows room for customs, contracts, and
administrative regulations, enabling the development of modern societies while
respecting its principles. Only in rare cases does the outdated nature of certain
institutions or rules pose obstacles.
Recourse to custom
For centuries, many Muslim societies have balanced customary practices with
the authority of Muslim law. Although not part of the official law, customs
aren't condemned. They're often seen as complementary to Islamic law,
governing matters not covered by it, like certain payment customs, water use,
and commercial practices. Muslim law categorizes actions as obligatory,
recommended, indifferent, blameworthy, or forbidden. While customs can't
order forbidden behavior, they can regulate actions allowed or discouraged by
the law.
Legal stratagems and fictions
Apart from relying on custom and contractual agreements, Muslim law can also
utilize legal devices or stratagems (known as hiyal) and fictions to maneuver
around certain archaic solutions. These techniques allow adherents to stay
within the formal rules while finding ways to make certain practices less
effective or discourage their use, without directly violating the letter or spirit of
the law. For instance, the prohibition of interest-bearing loans can be avoided by
structuring financial arrangements in a way that adheres to the rules but allows
for practical transactions. Similarly, concepts like solidarity and association can
be emphasized in contracts to introduce practices that might otherwise be
prohibited, such as certain types of insurance or complex financial arrangements.
Intervention of authority
One commonly used method to modernize Muslim law is the intervention of
ruling authorities. Despite the traditional restrictions, rulers have been able to
exert influence within the framework of Islamic law. For instance, they have
directed Muslim judges to apply rules from various rites on specific matters.
This has enabled some flexibility, like allowing women to seek judicial divorces
under certain conditions. In some cases, legal concepts previously unknown in
Muslim law have been introduced, reflecting the changing social needs. While
these interventions may exceed the authority traditionally granted to rulers, they
often align with the principles of Muslim law, thus preserving its superiority
and excellence in theory.
Modernist Tendency
The growth of Muslim law halted in the tenth century when the door of
interpretation, or Ijtihad, closed. This was an effort to prevent a schism in the
Muslim world due to a crisis. Some Muslims today question whether the
restrictions imposed during that time should be upheld. They argue that much of
Muslim law was shaped by medieval jurists based on the practices of the
seventh century, which may not be relevant today. They advocate for a return to
the original principles of the law, considering the public good and necessity.
They fear that Muslim law might become irrelevant if it remains inflexible,
serving only a few scholars, while everyday life is governed by laws that do not
align with true Muslim values.
The current trend to reopen the door of interpretation has gained traction in
some countries. While this idea appeals to those who favor rationalist thinking
and challenge traditional authority, many Muslims are hesitant to fully embrace
it. They believe that the age-old approach should not be easily abandoned and
any departure from orthodoxy must be handled cautiously. Reopening the door
of interpretation to modernize Muslim law could threaten the unity of the
Muslim community across independent nations. Instead, it might be more
preferable to utilize other methods, such as custom, contracts, and regulations,
to adapt Muslim societies to modern life without contradicting traditional
principles that uphold the unity of the faithful.