The Shar'ia (Islamic Law)

The Shari'a, for which the English expression 'Islamic Law' is a convenient rendering, occupies a central position in Islamic society and thought: it is in fact 'the epitome of Islamic thought, the most typical manifestation of the Islamic way of life, the core and kernel of Islam itself'. It has been described as 'the sacred Law of Islam' and defined as 'an all-embracing body of religious duties, the totality of Allah's commands that regulate the life of every Muslim in all its aspects; it comprises on an equal footing ordinances regarding worship and ritual, as well as political and (in the narrow sense) legal rules'. It is from the Shari'a that man knows, on the positive side, what is obligatory. What is permissible and what is recommended, i.e. recommended with the effect that performance of act so categorised earns a reward from God, while non-performance entails no punishment. Likewise it is from the Shari'a that man knows, on the negative side, what is forbidden and what is reprehensible i.e. reprehensible with the effect that non-performance of an act so categorised earns divine reward, while performance entails no punishment.

Islamic Law is a sacred law in the sense that it is based on knowledge attainable only through revelation. Human reason cannot of itself either differentiate between good and bad standards of behaviour or determine human values. What is good or bad is so, not because human judgement so decides, but because God has so decided. It is not for society to create and shape the law: 'In the Islamic concept, law precedes and moulds society; to its eternally valid dictates the structure of State and society must, ideally, conform'. The Shari'a, then, is the symbol of God's supremacy and sovereignty, and by acceptance of the Shari'a man surrenders to God's will. To live in conformity with the will of God is the road to salvation.

As may be expected, the Shari'a has its roots, first and foremost, in the plain and unequivocal commands and prohibitions to be found in the Quran. Since the text of the Quran is held by Muslims to be the very word of Almighty God Himself, it almost goes without saying that the Quran is the primary material source of Islamic Law. It is the Quran that identifies six specific crimes against religion for which there are prescribed penalties. Best known are unlawful sexual intercourse, i.e. any sexual relationship beyond that between husband and wife, a slanderous allegation of unlawful sexual intercourse, wine drinking, and theft. The scope of Quranic legislation does, of course, extend well beyond the narrow confines of crime against religion, which is solely concerned with God's rights in the matter of the six offences referred to. It covers a range of topics, e.g. homicide - a tort, or private wrong-marriage and divorce, and, by no means least, inheritance, on which there are possibly more rulings than on any other legal subject.

But the Quran is not a code of law, nor are such regulations as it contains in anyway comprehensive. For answers to the many problems to which the Quran offers no solution jurists turn to the second of the classical sources of Islamic Law the Messenger of God as the interpreter of the Message. For, according to the Message itself, Prophet Muhammed was not only in possessions of the Book; he was also endowed with Wisdom. Accordingly, such clarification and comment as he may have made on matters arising out of the sacred text could be relied upon as inspired teaching, as could also his behaviour and utterances in a wide range of situations relevant to Muslim belief and practice. Care was therefore taken to preserve a record of the Prophet's rulings, sayings and actions, which collectively constitute what is known in Arabic as al-sunna, whence the English ' the sunna'. This record- nowadays termed 'Tradition' by English-speaking scholars (in Arabic al-hadith) - is contained in a body of literature comprising authenticated narratives. The Sunna, then, as contained in Tradition, is the second source of the Shari'a and is a supplement to and, in its own way, a commentary on the Quran.

But the Quran and the Sunna, even when taken together, do not constitute a comprehensive legal system. Nor are they intended to do so. The essential business of both is religion. In Islam, it should be noted, no distinction is made between the spiritual and temporal, and law is therefore subsumed under the heading of religion. What the Quran and the Sunna have to offer in the way of legal material in the Western sense of the expression is 'a collection of piecemeal rulings on particular issues scattered over a wide variety of different topics' which 'hardly comprises the bare skeleton of a legal system'. How, then, were the early jurists to proceed in cases raising points of law on which neither the Quran nor the Sunna offered clear rulings? One obvious course open to them in such circumstances was the exercise of human reason. Now, human reason could be exercised in more than one way. It would have been possible to exercise it on the principle (a sure recipe for the promotion of diversity in the law) that a judge or jurists, having discretion to decide the facts relevant to an issue, should arrive at a judgement on the basis of his own opinion in order to reach a conclusion deemed by him to be, in all justice, desirable. It was not a principle destined to commend itself. Human reason was not to be exercised independently of the Divine Will as manifested in the Quran and the Sunna, but rather in accordance with what God, having regard to man's welfare in this world and the next had decreed right and desirable. It was to be exercised within the framework of a strict discipline based on 'analogy' Analogy or, in expanded form, juristic reasoning by analogy, denoted, as it still does, that method whereby a rule of law in new cases was to be analogically deduced from the Quran or the Sunna. The method consisted in taking comparable cases from those sources and applying the principles whereby such cases had been divinely regulated. No simpler example of the procedure can be found than that provided by the prohibition of alcohol. As has already been noted the drinking of wine is one of the Quraranic crimes against religion. With the appearances of other alcoholic drinks unknown to early Islam the jurists extended the prohibition of wine to include such drinks by analogical deduction from the Quranic ruling.

That there may be rare cases in which analogical reasoning may result in an injustice or a solution contrary to public interest is a fact recognised by he classical theory of Islamic Law. Accordingly, it permits, where no alternative will suffice, the exercise of discretion to secure a decision that will either be equitable or serve the public interest. It does so on the ground that equity and the public interest are God's purposes, which it is 'the task of jurisprudence to implement in the absence of any more specific indication of the Quran or the sunna.

The infallible sources of the Shari'a, or Islamic Law, are four, and in the classical legal theory analogy is placed fourth. The third, which, for the sake of narrative convenience, has here been displaced, is consensus of opinion. Whether such consensus is to be taken as that of the first generation of Muslims only or that of the community as represented at any given time by those recognised as learned in religion (for Islamic Law is religious truth) or that of the entire community of Muslims are questions on which we need not linger here. It must be stressed, however, that the classical system of Islamic Law gives prominence to the concept of consensus as the consensus of those learned in religion.

Today there are in Sunnite (as opposed to Shi'ite) Islam four ancient schools of Law presenting differences admittedly not radical on points of law and ritual on which the jurists centuries ago agreed, on the basis of consensus, to differ. Fir them the doctrine of consensus was a source of harmony, providing an all-embracing authority for divergences of doctrine.

The Quran, the Sunna, Consensus, and Analogy are collectively known as 'the sources of understanding' and the understanding in question is the understanding of the Shari'a, a term and a concept for which the authority is God Himself: 'Then we set you (Muhammed) on a path to be followed (Shari'a) so follow it, and follow not the caprices of those who do not know'. Since Shari'a, or the path to be followed, has the basic meaning of 'a way to water', the Shari'a is obviously the way to the source of life. It behoved the Muslim community from the very outset to seek it and explain it. This it did in the manner we have described, and the results of its labours are enshrined in a comprehensive system of personal and public conduct that subsumes all legal and social transactions as well as public and private behaviour. It is 'the comprehensive principle of the total way of life'. More than that, it is a system that is without true parallel in the Jewish and Christian schemes of things a system that reflects the nature of Islam as a universal religion and message and places it in a class of its own.