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Summary of 6 pages for the course The Worlds Legal Systems at UVT (Chapter 5)
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Islamic law: God’s law or men’s law?• The four sources of Shari’a law and their relative role
Understanding Islamic law from a legal pluralist perspective (5.1)
The Islamic law is a complex family of laws rather than one single legal system. A
good Muslim therefore is of necessity a pluralist. Islamic law asserts itself,
through numerous spokespersons and various approaches, as first and foremost
a religious law based on divine revelation, laid down in the Qur’an. Yet,
Muslims also know that the Qur’an does not answer all legal questions directly,
but offers a broadly guiding ethical framework. The Islam is a way of life and a
lived experience is thus intricately linked to Muslim law as a matter of belief and
socio-cultural acceptance and interpretation. At its base, the religious Muslim law
is clearly a matter of natural law philosophy.
The Prophet acted as ruler, human recipient and guardian of the divine message,
and as head of the emerging Muslim community. He is the only one that can
claim to fully understand God’s will. Muslim jurists as learned individuals can view
themselves only as faithful interpreters of the divine will, never as autonomous
law-makers. The principle of limitation of human knowledge and the resulting
axiom of ‘tolerated diversity’, or margin of error (ikhtilaf) suggests that
pluralism is structurally inherent in post-revelation Islamic law. The Qur’an
contains the essence of God’s law, not the law itself. This is why human
interpretations have a margin of error, because it is their interpretation of the
divinely revealed word and can’t (always) be the correct one. Transmission of the
Proghet’s advice (sunna) became the second most authoritative source of Islamic
law, after the Qur’an.
The sacred law, the Shari’a, is more than a law in the western sense, it contains
an infallible guide to ethics. It is fundamentally a doctrine of duties, a code
of obligations. The precise number of explicitly legal verses in the Qur’an has
been assessed as not more than 80 to a maximum of 600 out of a total of about
6000 verses, mostly in books two and four of the Qur’an.This revelation
introduced a comprehensive all-encompassing new ethic, a new natural law. It
therefore created solid foundations for what Chiba called legal postulates.
The Prophet’s roles: leader, judge and guide (5.3)
During his lifetime Muhammed was accepted as the supreme arbitrator of the
community and solved legal problems, as and when they arose, by interpreting
the relevant Qur’anic revelations. Muhammed has been elevated to the position
of judge supreme, with the function of interpreting and explaining the general
provisions of the divine revelation. But he always had to give ad hoc solutions as
problems arose. His advisory and judicial activities until his death created a large
body of rulings, regulations, decisions and statements. This is why the sunna is
extremely important: it is referred to as ‘good local practice’.
Shafi’I laid down a formal system of 4 sources of shari’a in which the role of
the Prophet’s sunna is clearly identified as second in line immediately after the
Qur’an.
Early Islamic law after the Prophet’s death (5.4)
Even after the death of the Prophet, there was continuity. The mantle of judicial
authority was assumed by the Calips and their decisions together with those of
the Prophet marked the beginning of the growth of a body of law which
supplemented and expanded the general precepts of the Qur’an. The 3 rd Caliph,
, Uthman, finally made sure that an authoritative collection of the Qur’an was
prepared. The periods of the Caliphate ended in turmoil and political agenda
threatened to overshadow and marginalize the core religious issues.
Legal developments in the early Muslim empire: the Umayyads (5.5)
Under the Umayyads, the process of legal restructuring involved frequent
borrowing of legal models from other legal systems in the region. They also
created the formal office of the qadi, who is called ‘a judge of a special kind’. It
was a specialized legal office that focused on administrative efficiency rather
than religious elements that were originally taken care of by the Companions.
There is also an element of Islamisation, beyond the superficial aim of increasing
bureaucratic efficiency and strengthening the claims of the state to control
dispute settlement. As a result of intensive efforts to apply Qur’an and sunna, this
led to numerous divergencies and outright conflicts of interpretation. This is
because of the fact that the Qur’an is open for human interpretation and that
inevitably produced different results. As a result of diverse influences and local
standards, Islamic legal practice under the Umayyads lost the unity and cohesion
it had enjoyed during the Medinan period. The opposition to excessive human
law-making in this period is also crystallised to some extent in the concept of
ra’y, or ‘personal opinion’. Views based on ra’y may be entirely sound, but they
are considered arbitrary. This personal interpretation is the margin of error: no
individual scholar could ever fully understand God’s will.
2 remedies were possible at this stage: 1st renewed efforts in faithful preservation
and painstaking study of God’s word. 2nd the systematic collection of the
Prophet’s sunna, which was then still widely scattered, became an urgent task.
Scholar-jurists and the Abbasids (5.6)
The Abbasids favored more explicit recourse to Qur’an and sunna over political
and administrative expediency. They claimed that all human acts were either
good or bad, permitted or forbidden. Consequently, they treated all actions
contrary to the religious law as sins and went as far as justifying the killing of
sinners on various grounds. It soon appeared that the rule of God on earth as
preached by the early Abbasids was but a polite formula to cover their own
absolute despotism. Aside of the qadis, a system of mazalim courts were enacted
that were more or less secular, separate jurisdictions. The result was a dual
system.
• The different legal functions and the role of the schools of law
Schools of law and competing doctrines (5.7.1)
Shari’a made the distinction between the Muslim individual’s obligation to God
and the obligations to individuals. The emerging scholar-jurists, on the basis of
classical learning and pious endeavor, acquired a central role in developing the
classical knowledge base about what constituted right and appropriate conduct
for Muslims was. The major problems are always centered around two major
conflicts and tensions: divine revelation versus human reason, and uniformity
versus diversity.
Shafi’I scheme to unify Muslim jurisprudence (5.7.2)
Muhammad Ibn Idris Al-Shafi’I was born into the clan of the Prophet and was
dissatisfied with almost everything he saw and heard. Thus he developed his own
theory, ‘the principle that certain knowledge of Allah’s law could be attained only
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