Shari’a: The Progression and Use of Islamic Law


In Islam, the word “Shari’a” represents a body of Islamic law. This Arabic term means "way" or "path." The technical use of Shari’a goes back to some passages in the Qur’an. One example is the following late Meccan passage: “We gave you a Shari’a in religion; follow it and do not follow the lusts of those who do not know” (Sura 45:18). Elsewhere, it is said, “To every one of you, we have given a shri’a and a minhaj (a clear way)” (Sura 5:48).

Shari’a is a legal framework in which the public and private aspects of life are regulated to a legal system based on Islam. In other words, Sharia deals with all aspects of day-to-day life, including religion, politics, economics, banking, business law, contract law, sexuality, and social issues. The three main categories of Shari’a are: Ibadat (Worship & ritual regulations), Mu’amalat (Social regulations), and Imama (Organizational rules).

The system of laws are based on the Qur'an, Hadith and centuries of debate, interpretation and precedent. It is often stated that while Shari’a cannot be altered, the interpretation can. The interpretation is called "fiqh" – known also as schools of thought (madhab). Since the 10th century, however,  in majority circles, even ijtihad (exertion) has been seen as a no go area. Thus, Shari’a is not only considered by orthodoxy as being permanent for all, but the concept of modernising Shari’a nowadays has become a sensitive issue.

Historical Background:  After Muhammad, Shari’a evolved over a 200 year period. Scholars usually accept that this evolvement ended during the 9th century AD. It is agreed upon that the Qur’an has only 500 verses dealing with law. During Muhammad’s life, the Qur’an and his instructions worked as the sources of law. After Muhammad, during the expansion of Islamic rule into the Middle East and beyond, the legislation of conquered peoples was also incorporated.

The actual work on reforming law started when some revolutionaries later known as the Abbasids overthrew the Umayyad dynasty (750-62). Caliphs in search of political legitimacy encouraged scholars based around Medina and Baghdad to develop legal principles to supplement the Quran's very limited number of rules. The scholars obliged, drawing on sources ranging from Jewish sources, Arab tradition and Persian custom to some form of Greek philosophy were adopted.

A group of specialist scholars developed. One of the Jurists Muhammad Ibn Idris al-Shafi (d. 820) laid down the basic principles of Islamic jurisprudence in his book, Al-Risala. Following his basic principal other scholars too drew on four sources in devising law codes (Usul al-fiqh). Sources were divided into two sections. The primary sources included the Qur’an and Hadith (Sunnah) while ijma’ (consensus of the community) and qiyas (opinion based on analogy) were declared as secondary.

These were also the times when some scholars needed to investigate into the available traditions ‘more accurately’ as to what actually Muhammad said or did. They attempted for the first time to establish and document ‘precisely’ with supporting chain of reference names suggesting which oral traditions about Muhammad (Ahadith) are authentic. Jurists used the resulting compilations to re-interpret the Shar’ia.

It is also significant to state that it was during these days when Ibn Mujahid (d. 936) was authorized by the Abbasids to define the only official permissible readings of the Qur’an. Some took to write and edit on the life of the prophet and others seized their pen to write commentaries on the Qur’an in the light of such sources. A good example from around these periods of time is of the Sira (biography) material of Ibn Ishaq (d. 767), revised by Ibn Hisham (d. 827). Among the commentaries on the Qur’an was Tafsir by Ibn Jarir al-Tabari (d. 923) and also his work on history namely Tarikh.

Compilers of Islamic Law: Several compilers of Shari’a and fiqh (schools of thought-madhab) asserted themselves. Other bodies of legal thought and alternative ways of understanding the Shari’a were sidelined. Six became favorable. They were the following schools:

  1. . Al-Awza’i (d. 744) – Syria
  2. Abu Hanifa (d. 767) – Iraq
  3. Malik b. Anas (d. 795) - Madina
  4. Al-Shafi (d. 820) – Egypt
  5. Ibn Hanbal (d. 855) -Iraq
  6. Dawud b. Khalaf (d. 863) – Iraq. (Zahiri School).

In Sunni circles, due to vigorous compilation and revision by some of the immediate disciples of these scholars nowadays only numbers 2, 3, 4 and 5 are prominent. The Hanafite School has followers in Turkey, Pakistan, India, Afghanistan, Transjordan and Central Asia. The Malikite School has adherents in North Africa, Egypt, West Africa, Kuwait and Bahrain in the Gulf. The Shafi’ite School has followers in Egypt, South Arabia, East Africa, Syria, Iraq, Yemen and Indonesia. The Hanbalite School has people mainly in Saudi Arabia and a few in Lebanon and Syria.

Shi’a Law Codes: Among Shi’as three schools, Jafari, Zaydi and Ismaili have survived. The majority of Shi’a adherent follow the school known as Ja’fariyya after their sixth Imam Ja’far ibn Muhammad al-Sadiq (d. 765). The books on Ja’fari jurisprudence were later written by Muhammad ibn Ya'qub al-Kulayni (d.941), Ibn Babawayh (d.991), and Nasir al-Din al-Tusi (d.1274). This school differs from the four schools (madhhabs) of Sunni jurisprudence in its reliance on ijtihad, as well as on matters of inheritance, religious taxes, commerce, personal status and the allowing of temporary marriage or mutʿa. Different groups within the Shia denominations follow different procedures. For example the main group, Ithna Ashari or the Twelvers recognize the Qur’an, Sunna and the twelve Imams as basis of law. Their Usuli law school teaches that after the disappearance of the 12th imam, reason and consensus became additional sources of law.

Other minority Muslim groups: There are other minority fiqhs as well, such as the Ibadi school of Khawarij sect, and those of Sufi and Ahmadiyya sects. The Salafi movement attracts followers from various schools of fiqh, and is based on the Quran, Sunnah and the actions and sayings of the first three generations of Muslims.

Reformation of Shari’a:

As mentioned above, some Sunni Muslims prefer one madhhab out of the four (normally a regional preference) but also believe that ijtihad must be exercised by the contemporary scholars capable of doing so, thus jurists who build on patchwork. Some rely on taqlid, or acceptance of religious rulings and epistemology from a higher religious authority in deferring meanings of analysis and derivation of legal practices instead of relying on subjective readings.

During the Colonial era and even after, law reforms brought two codes of law. While a state used secular law for its government policies, for Muslim families, Islamic law was incorporated. Some recent examples of reform include the following actions:

In the 1950’s, amendments to family law (divorce pronouncement) in Tunisia, Morocco, Iraq, Egypt and Syria were introduced. In 1956, Tunisia prohibited polygamy. Mauritania completed the process of all Muslim countries abolishing slavery. Some Muslim countries have laid down a minimum age for marriage.

Since the 1970s, the Islamist movements have become prominent. Their goals are the establishment of Islamic state(s) and Shari’a not just within their own countries but expand worldwide so to have a united states of Islam under a leader known as Kahalifa. The Shi’a sect on the other hand looks for the return of the 12th Imam and will be the leader of the Muslim Ummah (Community).

Radical groups in Muslim countries reject reforms however and call for a return to the Shari’a based on Muhammad’s community in Madina. In 1979, the Iranian Revolution caused Shi’a Muslims to return to power, but they are now finding it difficult to manage. In the 1980’s, Pakistan stepped into the Islamic Sharia system known as Nizam-e-Mustafa, though they still have not come to a clear conclusion on many issues.

In some Muslim majority countries some political groups in their efforts to gain power to rule join Shari’a lobbyists in their rhetoric to oppose western culture and western powers. Such political groups wishing to return to more traditional Islamic values are seen by some Muslims as the source of threat to secular and semi secular governments in Muslim majority countries.

The situation among Muslims in the West is diverse. Muslim organizations in Europe and America are demanding that laws should be adjusted to have room for Islamic laws so to use them for Muslims. Anti-Shari’a groups complain that such a permission will cause two parallel laws in existence and in opposition of each other.

Who is Eligible to Explain the Shari‘a?

After the time of Muhammad, from over 100,000 of his followers (who personally met him), fewer than thirty are recorded actually issuing ruling  (fatwā, pl. fatāwā)  on new issues in which Ijtihād, or juristic reasoning, was required. None of the founders of the schools of thought established later were of his company. They relied on each other’s research on the life of Muhammad, what he said and lived.

Today the authority for Ijtihād is with the mufti, or Dar al-Ifta, center of rulings, which gives general rulings about an incident or legal question. As scholars, they are able to look at the entire package of Islam and issue a ruling on the question at hand. The judge (qādī) on the other hand issues a judgment (ray al-qadā) on particular cases or incidents pertaining to an individual or groups, typically in cases involving two adversaries.

Religious Minorities under Shari’a: Christians and Jews are termed Dhimmis under Muslim rule. While they are guaranteed some measured freedom of life and worship in return for a special tax (protection money), they experience being treated as second-class citizens. They are given lower status of testimony in law courts and cannot build new worship buildings. The religious head is responsible to the Muslim government.

Attempted evangelism of Muslims is a criminal offence, so Jesus’ command to make new disciples is not legally allowed. Apostasy by a Muslim is forbidden and punishable by death (depending on the school of thought). An apostate’s marriage is annulled; children are taken away. The property is distributed to Muslim heirs and placed outside the protection of the law. Thus, a Muslim accepting another faith is highly discouraged; freedom of religion is therefore under threat from Islamic laws.