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The World's Legal Systems Lecture 10
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The World’s Legal Systems – Lecture 10Islamic Law
The teacher will try to provide a summary of what we did in the previous lecture. We spoke mainly
about what is the concept or idea of Islamic law and we tried to look at how it could be seen as both
God’s law and men’s law. We also discussed why it is not possible to understand Sharia law or refer to
the Quran as legislation. This is because God’s revelation is laid down in the Quran, but at the end of
the day man has to interpret it. So human law making comes into force in trying to understand divine
law. And What Menski says, is that basically we have to understand Islamic law as being both God’s
law and men’s law. And we cannot think of Islamic law as just being completely divine / religious, but
we have to also understand as man-made law. So what Menski also says, is that you cannot refer to
the Quran as legislation because it is trying to place comparisons with the idea of state sovereigns or
the notion of legal positivism. So it is not possible to do that and he mainly talks about the conception
of religious natural law and how that should be applied to the Quran.
We will try now to go back to what we were talking about, which was Islamic legal jurisprudence and
how this was unified by Shafi’i. Last week, we stopped somewhere near Shaf’i and what the Shafi’i
actually did. Firstly, he provided a lot of importance to divine revelation and he also provided human
law making by allowing Qiyas and Ijma. What he really is known for, is that he gave primary importance
to the Hadith in terms of the Prophets Sunna and he basically articulated the concept that the Prophets
Sunna was the model behaviour of the Prophet and that it did not refer to any other kind of practice
or any other ancient customs of the Arabs. So that is his main contribution and when he came out with
this contribution, it changed the way that law was thought about in that part of the world completely
because all those kinds of debates were going on. It was no longer possible to have these kinds of
debates. They realized that this was an authentic way of understanding the Quran itself. So what Shafi’i
says, is that the Sunna was undergoing a shift in reference / shift in meaning, because of its character
as (…) of customary practice and it becomes the normative behaviour of the Prophet in accordance
with the divine revelation embodied by the Quran. So what he says, is that if you really want to know
the Quran, you have to know the normative behaviour of the Prophet, you have to study the Sunna of
the Prophet in order to understand how you can follow the Sharia as a Muslim in everyday life.
So this one thing and he also established the four sources of law. The first source is the Quran and the
Sunna is the second source and two other kinds of sources were Ijma (consensus) and Qiyas (analogical
reasoning). Shafi’i wrote a book called ‘Risala’ and he thought that there were only two main sources
of law, which is the Quran and the Sunna of the Prophet and he restricted the term Sunna to the
behaviour of the Prophet and not to local Arab customary practice. Shafi’i came up with a philosophy
which he called Nashk, which is a kind of reasoning to reconcile all the different kinds of Hadith. Shafi’I
also justified the Qiyas and Ijma. So we still had to have the concept of Ijthiad, but in the form of ‘overall
Ijtihad’ which comprises these different kinds of reasoning.
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