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The Ashgate Research Companion to Islamic Law pdf

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 The Ashgate Research Companion To Islamic Law
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Peri Bearman, Rudolph Peters
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The Nature of the Sharia

It should be said at the outset that the term “Islamic law,” with which this volume is concerned, is not unequivocal. It denotes at least two different concepts. On the one hand it can stand for Islamic normativity in the fields of ritual, morality, and law—in other words, Sharia in its totality. As such Islamic law is then used in the same way one speaks of, for example, Jewish law.

On the other hand Islamic law can refer only to the legal normativity of Sharia—Sharia in a narrow sense. In this Research Companion the latter use is paramount but not exclusively so (see, for instance, Part IV). In general the context will make clear in what sense the term is used.

Our point of departure for the concept of Sharia is the definition found in the standard works of Islamic jurisprudence as the set of divine injunctions (aḥkām, sg. ḥukm) revealed to humanity through God’s messenger Muḥammad. God has communicated these injunctions through His words as recorded in the Quran and through the Prophet’s divinely inspired sayings and exemplary behavior (Sunna), as recorded in the hadith compilations.

The texts of Quran and Sunna, however, are the raw material of the Sharia and not immediately ready for use. They need interpretation and reasoning in order to formulate the rules that they were meant to convey. This human activity is called fiqh, jurisprudence, which term in practice is extended to the rulings derived by the jurists from the two foundational texts.

 Strictly speaking, the Sharia is the set of divine commands, transmitted by God through the foundational sources of Quran and Sunna, and fiqh is the human endeavor to identify and elucidate these divine injunctions. Often, however, the terms Sharia and fiqh are used indiscriminately and interchangeably.

The divine instructions addressed to mankind are commands or prohibitions regarding human behavior; obeying or disobeying God’s instructions (taklīf, obligation or duty) entails reward or punishment in the hereafter.

The acts that are the object of the instructions are sorted into one of five categories (al-aḥkām al-sharÊ¿iyya): they are either obligatory (wājib) or forbidden (ḥarām), meaning that obedience is rewarded and disobedience is punished; recommended (mandÅ«b) or reprehensible (makrÅ«h), meaning that compliance is rewarded but non-compliance is not punished; or they are neutral (mubāḥ)—they offer neither reward nor punishment in the hereafter and believers are free to perform or not to perform the act.

The Sharia, then, is God’s prescription for a life of submission (islām) to Him (Weiss 1998: 18), serving as the normative guide for Muslim behavior. The Sharia is also the basis and the reference point for the Islamic law and legal system.

As a code animated by rules believed to be set forth by a divine lawgiver, the Sharia embodies normative and legal domains that transcend temporal and state-appointed ones. For Muslims, the Sharia is morality, law, etiquette, and religion in one. In order to fully capture the nature of the Sharia, in particular its multifold understanding in contemporary times, a description must branch out to include all of its components.

This broad nature of Sharia gives rise to a different experience of law than that understood by subjects of a common-law or civil-law system. The criterion to establish whether a Sharia rule is legal is whether its compliance can be enforced by the judiciary or by executive state organs. If this is not the case, such rule is not legal, but religious or moral. These latter sets of rules are complied with voluntarily or by virtue of social pressure, and the consequences of disobedience have, theoretically, only ramifications in the hereafter. Although the boundaries sometimes overlap, Muslim jurists separated the rules of worship (ʿibādāt) from the norms of social conduct, or the civil obligations (muʿāmalāt), which then were further divided between the domain of adjudication (qaḍāʾ), that is, enforceable in this world, and the domain of conscience (diyāna), their compliance only affecting the relationship between the believer and God.

Sharia, the Religious Law

The Sharia can be labeled as religious law for two reasons. First, because of its theological foundation: Muslims hold that the Sharia is what God revealed—in word and by mediation of His messenger Muḥammad—to lead the believer on the straight and narrow path to salvation; and second, because it contains rules that are primarily meaningful in the relationship between a believer and his or her Creator, such as those defining practices of worship (ʿibādāt).

The significance of this aspect of the Sharia is affirmed in that the ritual duties of Islam, the five pillars, are traditionally spelled out in the opening chapters of the handbooks on legal doctrine (fiqh), preceding all other rules. Here are found, for instance, detailed instructions on ritual purity and cleansing, on performing the ritual prayer (ṣalāt), on fasting during the month of Ramadan, on calculating, collecting, and distributing the religious taxes (zakāt), and on performing the pilgrimage to Mecca (ḥajj).

In other chapters one finds instructions as to what food and drinks may or may not be consumed, how people ought to dress, how young boys must be circumcised. There are also rules about playing music and listening to it, wearing jewelry, defining the parts of the body that may be visible in public, ways of salutation, accepting or not accepting invitations to dinner, furnishing rooms, and proper greetings. Many of these straddle the line between religion and good manners.

Some religious rules overlap with enforceable law: one of the pillars of Islam, the zakāt, is a property tax collected by the state and distributed to special groups, such as the poor.1 The rules regarding this tax constitute legal norms both enforceable in this world and rewarded or punished in the next.

The religious character of the Sharia is often used in the West to disparage it as being irrational and unadaptable, lacking the properties that ideally are supposed to characterize viable legal systems. One of the first to formulate this and underpin it with an academic discourse was the renowned sociologist Max Weber (d. 1920). He argued that religious law in general cannot be rational since its lawmaking is grounded in revelation and not in rational decision making, and its adjudication allows non-legal considerations to be taken into account and magic or supernatural procedural elements to be used.

 Being a religious law, Islamic law must therefore be irrational, both procedurally and substantively, and because it is based on fixed revealed texts, rigid and not adaptive (Crone 1987). Weber borrowed the notion of the rigidity of Islamic law from the Dutch scholar (and colonial official) Christiaan Snouck Hurgronje (d. 1936), who asserted that fiqh was a theoretical construct and could hardly work in practice. Weber contrasted Islamic law (as well as other religious laws) with Roman law, the foundation of most Western legal systems, which he regarded as showing the highest degree of legal rationality.

Weber’s ideas were adopted by many subsequent scholars and were used to establish the inferiority of Islamic law compared to Western legal systems (for Weber’s typification of qadi justice, see Chapter 6, below). This characterization of Islamic law, which overlooked any empirical research into Sharia practice, became the authoritative Western view of Islamic law until the 1970s, when researchers began studying Islamic law in action from judicial records (Johansen 1999: 46–54).

Sharia, the Moral Law

As befits rules revealed to believers to keep them on the right path toward a sinless life in this world and toward eternal bliss in the next, God’s ordinances encompass a set of moral qualifications of all human acts. This forms such a large part of the Sharia that Western pioneers of the study of fiqh, such as Snouck Hurgronje, denied it its legal character, preferring to call it a “deontology,” a system of moral obligations rather than law. More recently, while acknowledging the legal elements of the Sharia, Kevin Reinhart (2010: 220 n. 5) suggested that it can best be translated with “morality” instead of “law” to emphasize how much the Sharia constitutes a moral basis for the Muslim community and how much of it is regulated by the pious conscience.2 Indeed, Sharia governs a spectrum of moral, religious, and social behavior denied to the reach of law by a secularist or positivist view, famously defined by the distinguished legal philosopher H.L.A. Hart (d. 1992) as “the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality” (Hart 1994: 184–5).

The fact that Muslims regard morality and law as part of one single ideational institution and derived from the same foundational texts is contrary to the Western perception of the contrast between law and morality, which are seen to have separate domains.

Many Western scholars have criticized the intimate connection between morality and law in the Sharia, just as they criticized its religious character. Noel Coulson, for example, qualified the Sharia as “a rigid and immutable system, embodying norms of an absolute and eternal validity, which are not susceptible to modification by any legislative authority” (Coulson 1964: 5), thus blaming the Sharia’s alleged rigidity on the “failure” to distinguish between law and morality.

The connection between law and morality, however, may well be one of the strengths of the Sharia and enhance its efficacy, for its transcendental properties could incline Muslims to comply with the law also in worldy, legal affairs. In other words, the fact that fasting during the month of Ramadan and paying a worker’s wages as contracted belong to the same divine normative system could enhance compliance with the mundane obligations of daily life. Wael Hallaq (2005/2006: 152) argues that this intimate connection between morality and law equipped the law

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