Formation of the Shari’a (Islamic Law)

Copyright 2001 James G. Lochtefeld, Assoc. Prof. of Religion, Carthage College.  This may be copied and duplicated for any non-commercial or educational use.

Introduction:  The basic religious assumption behind the Shari'a is that Allah has a plan for human life, and that people should both desire and strive to follow this (as a "Muslim," or "one who submits to Allah"). For Muslims, the instructions and assumptions for this divine plan have been revealed by Allah through direct revelation, and through the lives and example of Allah's Messengers. The implications of these instructions were then clarified and extended through fiqh ("understanding"), or jurisprudence.

Material Sources for the Shari’a

• The Qur'an was the most authoritative source (as the direct revelation of Allah), and gave instructions on things including Articles of Faith, Worship and Religious Practice, Civil Law, Criminal Law, Family Law (marriage, divorce, and inheritance), Dietary Laws, and Prohibitions (e.g., drinking alcohol and gambling)

• B. The Sunnah ("practice" of Muhammad as recorded in the Hadith) was taken as normative for the community. This included Muhammad’s sayings (what he instructed his followers to do), Muhammad’s actions (e.g., the way that he performed salat/required worship); Muhammad’s responses to others' actions (in either praising or condemning), and Muhammad’s character.

Interpretive Tools/Procedural Sources for the Shari'ah

Although the Qur`an sets forth a very high moral ideal for the faithful, only about 250 of its 6000 verses give specific behavioral instructions. Since the community was seeking to discern an entire way of life, in practical terms Muhammad’s Sunnah was enormously influential as a source for the Shari'a. The specific instructions from these sources were then extended and codified into the Shari'a by Islamic jurists (fuquhah) using: 

• A. Analogy (qiyas) in which jurists worked from a specific case in which there was clear instruction, and applied the principle to other cases that were not specifically mentioned (for example, the Qur'an forbids consuming grape wine, and this prohibition was extended to other alcoholic beverages). There were strict rules governing the use of analogy, to ensure that the comparison between these two cases was valid (in part, these strict rules came about because the jurists recognized the power of people to deceive themselves).

• B.  Consensus (Ijma) eventually became the most influential interpretative tool, especially for ruling about new practices and technologies (e.g., in vitro fertilization, which is allowed). The authority for this comes from a Hadith of Muhammad, "My community will never be in error." Although the Hadith in questions refers to the consensus of the entire community, in practice this came to refer to the consensus of legal scholars, as the community's learned people.

In addition to these widely-acknowledged sources, there are some additional ones for more particular situations: 

• Public interest (benefit for the community).  This was originally mainly used by the Maliki School (see below), but has become increasingly used in modern times.

• Customary Practice: (if it did not run counter to the Qur`an or the Sunnah).

• Example/Opinion of one of the Prophet's Companions (see as above)

Major Schools (madhhab) of Islamic Law

 There are currently 4 schools (several others have become extinct). These 4 schools agree on something like 75% of legal content, but even when they disagree they are all considered to be valid.   The four schools are:

Hanifi: founded by Abu Hanifa (d. 767 CE) in
Basra (Iraq)

• Predominant in Turkey, West and Central Asia, South Asia.

• Most liberal and flexible of the 4 schools; Abu Hanifa heavily stressed the use of Analogy (qiyas).

 Maliki: Founded by Malik ibn Anas (d. 795 CE) in Medina.

• Predominant in Egypt, North Africa, W. Africa, medieval Spain.

• Stressed the "living tradition" of Medina (the place where Muhammad had lived, and the initial Muslim capital).

Shafi'i: Founded by Muhammad ibn Idris al-Shafi'i (d. 820) in Egypt.

• Predominant in Egypt, East Africa, Philippines, and Malaysia-Indonesia.

• Shafi'i developed the main principles of Islamic jurisprudence (fiqh), and pioneered the stress on ijma (consensus of legal scholars) as the most important interpretive tool.

Hanbali: Founded by Ahmad Ibn Hanbal (d. 855 CE) in Baghdad.

• Predominant in Mesopotamia, Syria, Palestine (until the 15th c.), and Saudi Arabia.

• Most conservative and literal in its interpretations.

Legal Classifications for Actions: All actions were classified into one of 5 categories:

• Obligatory (fard): are required actions for either the individual (daily salat) or community (funeral prayers). Must be performed, and  nonperformance can be punished by legal penalties.

• Recommended/Praiseworthy are laudable actions (such as non-required prayers); performing these is not required, but is upheld by public opinion (that is, those who perform these actions are considered good and pious people).

• Neutral Actions can either be performed or not performed, according to the person’s desire.  Neither carries any penalty, and many daily actions fall into this category.

• Reprehensible (makruh) Actions are considered Detestable/offensive; abstention from these cannot be required by law, but is supported by public opinion (that is, those who perform these actions are NOT considered good/pious Muslims).

• Prohibited (haram) actions are specifically forbidden (e.g., drinking wine or gambling); performing these actions is punishable by law.

Acknowledgements: Some examples here come from “Shari`ah and Fiqh,” from the USC Islamic server at  http://www.usc.edu/dept/MSA/law/shariahintroduction.html (originally from Perspectives magazine).  The information on the current location for each madhab comes from chapter eleven in Frederic Denny’s An Introduction to Islam (New York: Macmillan, 1994).