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Islamic Law

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Islamic Law Two terms are used to refer to the law in Islam: Shariah and fiqh. Shariah refers to God’s divine law as contained in the Qur’an and the sayings and doings of Muhammad (hadith). Fiqh refers to the scholarly efforts of jurists (fuqaha) to elaborate the details of Shariah through investigation and debate. Muslims understand Shariah to be an unchanging revelation, while fiqh, as a human endeavor, is open to debate, reinterpretation, and change. Scholars and jurists developed the law by combining knowledge of the Qur’an, hadith, and analogical reasoning with local practice. Beginning in the mid-eighth century, the major Sunni madhhabs, or schools of legal thought (Hanafi, Maliki, Shafii and Hanbali) and the Twelver Shi’i Jafari madh’hab emerged. Other minor and short-lived schools also developed.

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There are two types of fiqh: that dealing with usul al-fiqh (roots) and that dealing with furu al-fiqh (branches). Usul al-fiqh explores the four sources of the law ? the Qur’an, hadith, consensus (ijmaa), and analogical reasoning (qiyas) ? to provide structures for interpreting revelation. The Qur’an and hadith are considered to be equal in authority, although the Qur’an, as God’s word, is superior in its nature and origins. Other issues include the principles of abrogation (naskh); the application, ramifications, and limitations of analogical argument; and the value and limits of consensus. This whole set of interpretative structures is brought together in the idea of ijtihad, or independent reasoning, which both recognizes and encourages a variety of interpretations on all but the fundamental structures of the law. Only those with sufficient educational background in the sources of the law are qualified to practice ijtihad. Education in fiqh was a critical part of Islamic education from the 10th century onward. It provided training in systematic thought and controlled argument, serving the needs of the merchant classes and governing bureaucracies. In the modern period, exclusive training in the traditional Islamic sciences has become less relevant as legal education has been reconstituted along European lines and the jurisdiction of religious courts has been restricted or eliminated.

Furaa al-Fiqh (branches of law) both legal manuals and collections of cases, discusses rules for rituals (ibadah) and social relations (muamalah). Ritual topics include purity, prayers, alms (zakat), pilgrimage, fasting, and jihad. Social relations topics include marriage, divorce, inheritance, buying, selling, lending, hiring, gifts, testamentary bequests, agency, deposit, crimes, torts, penalties, compensations for injury, judicial practice and procedure, rules relating to slaves, land ownership, land holding, contractual partnerships, slaughter of animals for food, and oaths and their effects. There are five categories of actions in furu literature: mandatory, recommended, permitted, abhorred and prohibited.

Historically, there were two types of court systems: the qadi (judge) court, responsible for family law (marriage, divorce, inheritance, testamentary bequests), administration of charitable endowments (waqf) and the property of orphans, and overseeing contracts and civil disputes, and the mazalim, a supplemental court system that administered criminal law and investigated complaints against government officials. Interpretation of fiqh was carried out on an informal level by muftis who produced fatawa (responses to legal questions). A mufti’s rulings could be given to individuals, qadis and/or agents of the government, and could either legitimize policies or restrict their practical effect. Muftis typically remained outside the official government bureaucracy. In the 19th and 20th centuries, the impetus for reform has come both from within the Islamic tradition itself, as specialists in Islamic law have sought to incorporate changing attitudes and social needs into law, and from without, as political leaders have imposed modernization programs. Many Sunni Muslim administrators and reformers felt that Islamic law ought to be practical and resemble Western codes. Some reformers advocated disregarding school traditions and reinterpreting ijtihad to create modern Muslim administrative and institutional forms. Most 20th-century Islamic legal reform efforts have focused on personal status matters.

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