Sharia Law & Primary Sources of Wisdom & Authority in Islamic Sacred Texts for Guidance
Muslim law consists of the injunction of the Holy Quran, of the traditions introduced by the practice of the Prophet (sunnah), of the common opinion of the jurists (ijma), of the analogical deductions of these three (qiyas).
For people who would like to learn more about Islam, The Conversation is publishing a series of articles “ Understanding Islam series”, you learned about Islam. This article will explain Islamic law, or Sharia, a core part of the faith, drawn from the Holy Quran and the Hadith, a collection of the sayings and actions of the Prophet Muhammad and his companions.
Islam is the religion of truth. Islam is a complete code of life and gives us guidance in every aspect of our day-to-day livings. The goal of Islam is for humans to become true servants of Allah. Therefore, his source of guidance and the foundations for his actions must be rooted in the revelation from Allah. It is from this vantage point that the scholars speak about the sources of law in Islam. The two ultimate authorities sources of the religion of Islam are the Holy Quran and Hadith.
In my previous article, I had talked about two main primary sources of wisdom & authority in Islamic sacred texts for guidance.
In this article, I will outline some of the most important textual sources of wisdom and authority in Islam.
Religious people also have other sources of guidance and help available to them. These include:
- Sacred texts
- Founders of the faith
- Religious principles or rules
- Faith community leaders
- Religious tradition
- Other people in the faith community
Insight and inspiration can sometimes come from the beliefs, teachings, and practices of other religions and from non-religious sources too.
Muslim Law or Shariah:
Sharia law is a core part of Islamic traditions, representing the religious law mainly drawn from the Holy Quran and the Hadith that lays down governing principles for spiritual, mental, and physical behavior that must be followed by Muslims. Regarded as Allah’s command for Muslims, Sharia law is essentially Islam’s legal system.
In Arabic, Sharia literally means “the clear, well-trodden path to water”.
Shari’a is not a legal system. It is the overall way of life of Islam, as people understand it according to traditional, early interpretations. These early interpretations date from 700 to 900 CE, not long after the Prophet Muhammad(PBUH) died in 632 CE. Shari’a can evolve with Islamic societies to address their needs today.
Misconceptions About Shariah:
There are a few prevalent misconceptions about the Shari’a among Non-Muslims. They don’t know at all, what the shariah includes. They think, “Shariah” is a word that evokes fear such as medieval legal system that issues draconian punishments, relegation of women and many other. But shariah contains far more. It’s almost about every aspect of life.
Shari’a was not revealed by Allah. It is based on the Holy Quran and things the Prophet Muhammad(PBUH) said and did. Some of the sources of Shari’a, such as the Holy Quran, are considered divine (or the “word of Allah”) by Muslims. However, Shari’a was created by people who interpreted the Holy Quran and the words and actions of the Prophet Muhammad(PBUH).
This topic is huge and i’ll try to cover it in next time.
Nature & Significance of Islamic law:
In classical form, the Sharīʿah differs from Western systems of law in two principal respects. In the first place, the scope of the Sharīʿah is much wider, since it regulates the individual’s relationship not only with neighbours and with the state, which is the limit of most other legal systems, but also with God and with the individual’s own conscience. Ritual practices — such as the daily prayers (ṣalāt), almsgiving (zakāt), fasting (ṣawm), and pilgrimage (hajj) — are an integral part of Sharīʿah law and usually occupy the first chapters in legal manuals. The Sharīʿah is concerned as much with ethical standards as with legal rules, indicating not only what an individual is entitled or bound to do in law but also what one ought, in conscience, to do or to refrain from doing. Accordingly, certain acts are classified as praiseworthy (mandūb), which means that their performance brings divine favour and their omission divine disfavour, and others as blameworthy (makrūh), which has the opposite implications. However, in neither case is there any legal sanction of punishment or reward, nullity or validity. The Sharīʿah is thus not merely a system of law but also a comprehensive code of behaviour that embraces both private and public activities.
The second major distinction between the Sharīʿah and Western legal systems is a consequence of the Islamic concept of the law as the expression of the divine will. With the death of the Prophet Muhammad in 632, direct communication of the divine will to human beings ceased, and the terms of the divine revelation were henceforth fixed and immutable. The overall image of the Sharīʿah is thus one of unchanging continuity, an impression that generally holds true for some areas of the law, such as ritual law. However, revelation can be interpreted in varying ways, and, over time, the diversity of possible interpretations has produced a wide array of positions on almost every point of law. In the premodern period, the ʿulamāʾ (Muslim religious scholars) held a monopoly over interpretation of the law, but, since the 19th century, their monopoly has been challenged by Westernized elites and laypeople. The question of which interpretations become normative at any given time is complex. Early Western studies of Islamic law held the view that while Islamic law shaped Muslim societies, the latter had no influence on Islamic law in return. However, this position has become untenable. Social pressures and communal interests have played an important role in determining the practice of Islamic law in particular contexts — both in the premodern period and to an even greater extent in the modern era.
Historical Development of Sharīʿah law:
For the first Muslim community, established under the leadership of the Prophet Muhammad at Medina in 622, the Qurʾānic revelations laid down basic standards of conduct. But the Qurʾān is in no sense a comprehensive legal code: only about 10 percent of its verses deal with legal issues. During his lifetime, Muhammad, as the supreme judge of the community, resolved legal problems as they arose by interpreting and expanding the general provisions of the Qurʾān, thereby establishing a legal tradition that was to continue after his death. With the rapid expansion of the Islamic realm under Muhammad’s political successors, the Muslim polity became administratively more complex and came into contact with the laws and institutions of the lands that the Muslims conquered. With the appointment of judges, or qadis, to the various provinces and districts, an organized judiciary came into being. The qadis were responsible for giving effect to a growing corpus of administrative and fiscal law, and they pragmatically adopted elements and institutions of Roman-Byzantine and Persian-Sasanian law into Islamic legal practice in the conquered territories. Depending on the discretion of the individual qadi, judicial decisions were based on the rules of the Qurʾān where these were relevant, but the sharp focus in which the Qurʾānic laws were held in the Medinan period was lost with the expanding horizons of activity.
Muslim jurisprudence, the science of ascertaining the precise terms of the Sharīʿah, is known as fiqh (literally, “understanding”). Beginning in the second half of the 8th century, oral transmission and development of this science gave way to written legal literature devoted to exploring the substance of the law and the proper methodology for its derivation and justification. Throughout the medieval period, the basic doctrine was elaborated and systematized in a large number of commentaries, and the voluminous literature thus produced constitutes the traditional textual authority of Sharīʿah law.
The Sources of Sharīʿah law:
These two are where the majority of the teachings come from. When looking for guidance, a Muslim often refers back to one of these two in order to educate themselves on a topic.
Muslim laws are classified into two categories:
•Primary sources
•Secondary sources
Sharia Law is unchangeable and legitimate.
Primary Sources of Sharia Law:
The four primary sources of Sharia Law are:
1. The Holy Quran:
The Holy Quran is the central spiritual-religious text guidance of Islam. It represents the fountainhead of Divine guidance for every Muslim. It is a holy book that is sent down by the ALLAH Almighty for the guidance of the whole of mankind. The chapters in this book touch upon all aspects of human existence, including matters of doctrine, social organization, and legislation. The Holy Quran instructs Muslims on how to behave and sets out what is right and wrong, as in the example below, which teaches about fairness.
“Then is it other than Allah I should seek as judge while it is He who has revealed to you the Book explained in detail?” And those to whom We [previously] gave the Scripture know that it is sent down from your Lord in truth, so never be among the doubters.”
Quran, 6:114
The Holy Quran has a clear focus on education as it starts with “Read with the name of ALLAH who created you”. In Islam, getting an education is compulsory for all men and women.
The Holy Quran is an eternal guide for us with its basic and fundamental beliefs. It is an authentic and dependable channel from where we can take guidance for our whole life. It covers all aspects of human life including spiritual aspects as well. The holy Quran is a book of guidance that guides us towards the right path where the rewards are waiting for us and stops us to adopt the wrong path where punishment will be given to those who adopted it.
Allah does command you to render back your trust to those to whom they are due; and when you judge between man and man, that you judge with justice.
The Holy Quran 4:58
2. Hadith :
Muslims also seek guidance from the Hadith, which are writings about the life of the Prophet Muhammad. They were remembered by close followers of the Prophet and were later written down. The hadith is information about the Prophet and the Sunnah is what the Prophet has said or done and Quran was revealed on Prophet Muhammad seen by Allah. How the Prophet practiced what was revealed in Holy Quran is recorded in sunnah and hadith, which Muslims use as guidance to emulate.
The importance of the hadith and sunnah depends on what it is that you are trying to understand or learn. They teach Muslims how to live their lives, and to understand and follow the teachings of the Holy Quran.
As such, Muslims want to emulate and follow the example of the Holy Prophet Muhammad exactly laid out in the Hadith, they are following the Sunnah or customary practices of the Holy Prophet Muhammad. These practices may become second nature, for example, the actions Muslims undertake while they are praying, then the hadith and Sunnah are important.
In the Quran, there will be a verse from God that will state “All Muslims must pray five times a day.” However, from all of the collections of Hadiths, we are guided on how we are supposed to perform our prayers. The hadiths give us an in-depth process for every step of the prayer from start to finish. Whereas in the Quran we were only commanded to do the prayers.
One gives you the ordinance (Authority) the second gives you the methodology of implementation and execution. Or prevention.
Implied Sources from the above two.
Other important Muslim sources of authority:
If a Muslim is struggling to interpret or understand the teachings of the Holy Quran or needs advice in their day-to-day lives, they may seek guidance at their local mosque. The imam, the cleric or scholar who leads prayers in the mosque, will usually have studied the Holy Quran and its teachings in-depth and will have the knowledge and experience to guide or teach other Muslims.
Once synthesized and fleshed out, the Sunnah served as a normative paradigm and a source of law. The notion of Sunnah is by no means novel to Islam; it has its roots in the pre-Islamic tribal tradition, accentuating an exemplary way of acting and conducting oneself.
3. Consensus (Ijma):
These are the consistent choices of the legal advisers. At the point when the Quran and different increments couldn’t flexibly a standard of law, law specialists utilized their simultaneous sentiment and set out another law. These law specialists were not allowed to give their choice with no premise. The authority of Ijmaa, as a wellspring of law dependent on convention, “my supporters can never concur upon what’s up”.
4. Qiyas:
Qiyas is the analogy from the Quran, the Sunnat, and the Ijma. Qiyas doesn’t purport to create new laws but applies the old principles to the new circumstances.
Secondary Sources of Sharia Law:
without essential sources, the law can be gotten from the accompanying sources. Secondary sources of Islamic laws use the same principle as qiyas, which is the deduction of Islamic laws and opinions based on the use of discretion. Because the rulings and opinions are based on discretion, this leads to some differences among various schools of thought.
The secondary sources of Muslim law are:
- Urf or Custom
- Judicial decision
- Legislation
- Equity, Justice, & Good conscience
Intricacies of Sharia Law:
Sharia law encompasses legal as well as moral and ethical directives. It characterizes all man’s acts into the following five categories:
- Obligatory
- Recommended
- Permitted
- Discouraged
- Forbidden
Basic Elements of Sharia Law:
Sharia comprises three basic elements:
1. Aqidah:
Aqidah concerns all forms of faith and belief in Allah, held by a Muslim. Many schools of Islamic theology expressing different views on aqidah exist. However, this term has taken a significant technical usage in the Islamic theology, denoting those matters over which Muslims hold conviction. It is a branch of Islamic studies describing the beliefs of Islam.
2. Fiqh:
Fiqh governs the relationship between man and his Creator (ibadat) and between man and man (muamalat). Political, economic, and social activities fall within the ambit of muamalat. Islamic finance, covered in economic activities, is thus linked with Sharia principles through muamalat.
3. Akhlaq:
Akhlaq covers all aspects of a Muslim’s behavior, attitude, and work ethic. While directives relating to aqidah, ibadah, and akhlaq are fixed and unchangeable, directives of muamalat (including rulings such as contractual law transactions, criminal law, the judiciary, and Islamic finance) which govern the relationship between man and man, may change with the changes in circumstance, custom, time and place.
While directives relating to aqidah, ibadah, and akhlaq are fixed and unchangeable, directives of muamalat (including rulings such as contractual law transactions, criminal law, the judiciary, and Islamic finance) which govern the relationship between man and man, may change with the changes in circumstance, custom, time and place.
The Substance of Traditional Sharīʿah law:
Sharīʿah duties are broadly divided into those that an individual owes to God (the ritual practices, or ʿibādāt) and those that the individual owes to other human beings (interpersonal matters, or muʿāmalāt). Only the latter category of duties, which constitutes law in the Western sense, is described here.
Penal law:
Offenses against another person, from homicide to assault, are punishable by retaliation (qiṣāṣ), the offender being subject to precisely the same treatment as the victim. This type of offense is regarded as a civil injury rather than a crime in the technical sense, since it is not the state but only the victim or the victim’s family who has the right to prosecute and to opt for compensation or blood money (diyah) in place of retaliation.
For a handful of specific crimes, the punishment is fixed (ḥadd): death for apostasy, amputation of the hand for theft and of the hand and foot for highway robbery, death by stoning for extramarital sexual relations (zinā) when the offender is married and 100 lashes when the offender is unmarried, and 80 lashes for an unproved accusation of unchastity (qadhf) and for the drinking of any intoxicant.
Beyond the ḥadd crimes, both the determination of offenses and decisions regarding the punishment meted out for them lie within the discretion of the executive or the courts.
Law of Transactions:
A legal capacity to transact belongs to any person “of prudent judgment” (rāshid), a quality that is normally deemed to accompany physical maturity or puberty. The law presumes that (1) boys below the age of 12 and girls below the age of 9 have not attained puberty and (2) by the age of 15 puberty has been attained for both sexes. Persons who are not rāshid, on account of minority or mental deficiency, are placed under interdiction: their affairs are managed by a guardian, and they cannot transact effectively without the guardian’s consent.
The basic principles of the law are laid down in the four root transactions: (1) sale (bayʿ), transfer of the ownership or corpus of property for a consideration; (2) hire (ijārah), transfer of the usufruct (right to use) of property for a consideration; (3) gift (hibah), gratuitous transfer of the corpus of property, and (4) loan (ʿāriyah), gratuitous transfer of the usufruct of property. These basic principles are then applied to the various specific transactions of, for example, pledge, deposit, guarantee, agency, assignment, land tenancy, partnership, and charitable foundations (waqf). Waqf is a uniquely Islamic institution in which founders relinquish their ownership of real property to God and dedicate the income or usufruct of the property in perpetuity to some pious or charitable purpose. This may include settlements in favour of the founder’s own family.
The doctrine of ribā significantly influences the Islamic law of transactions. Basically, this is the prohibition of usury, but the notion of ribā was rigorously extended to cover, and therefore preclude, any form of interest on a capital loan or investment. And since this doctrine was coupled with the general prohibition on gambling transactions, Islamic law does not, in general, permit any kind of speculative transaction the results of which, in terms of the material benefits accruing to the parties, cannot be precisely forecast.
Family law:
A patriarchal outlook is the basis of the traditional Islamic law of family relationships. Fathers have the right to contract their daughters, whether minor or adult, in marriage, but jurists agree that an adult woman who is no longer a virgin must give her explicit consent to a marriage. The question of whether a virgin daughter has the right to object to a marriage contracted for her by her father has been the subject of debate among jurists, given that a widely accepted saying of Muhammad seems to imply this right. Some jurists have held that the daughter’s objection should be taken into account but is not binding, while others have considered such an objection to preclude the marriage. In Ḥanafī and Shiʿi law, an adult woman may conclude her own marriage contract, but her guardian may have the marriage annulled if his ward has married beneath her social status.
In traditional Islamic family law, husbands have the right of polygamy and may be validly married at the same time to a maximum of four wives. Upon marriage, a husband is obliged to pay his wife a dower, the amount of which may be fixed by agreement or by custom. During the marriage, he is bound to maintain and support her, provided that she shows no recalcitrance toward him. A wife who rejects her husband’s dominion by leaving the family home without just cause forfeits her right to maintenance.
A divorce may be effected simply by the mutual agreement of the spouses. Such a divorce, known as khulʿ, requires the payment of some financial consideration by the wife to the husband for her release — most commonly a return of the dower. In addition, according to all schools except the Ḥanafī school, a wife may obtain a judicial decree of divorce on the grounds of some matrimonial offense committed by the husband, such as cruelty, desertion, or failure to provide. However, the husband alone has the power to terminate a marriage unilaterally by repudiation (ṭalāq) of his wife. Ṭalāq is an extrajudicial process: a husband may repudiate his wife at will, and his motive for doing so is not subject to scrutiny by the court or any other official body. A repudiation repeated three times constitutes a final and irrevocable dissolution of the marriage. However, a single pronouncement may be revoked at will by the husband during the wife’s waiting period (ʿiddah), which lasts for three months following the repudiation (or any other type of divorce pronouncement) or, if the wife is pregnant, until the birth of the child.
The legal position of children within the family group with regard to guardianship, maintenance, and right of succession depends on their legitimacy. A child is legitimate if it can be reasonably assumed to have been conceived during the lawful wedlock of the parents. For a legal relationship to exist between a father and his illegitimate child, the father must publicly claim the child as his own, but there is always a legal tie between a mother and her illegitimate child. Guardianship of a child (the right to make decisions concerning, e.g., education and marriage) and of the property of minor children belongs to the father or another close male agnate relative. However, the right of custody (ḥaḍānah) of young children whose parents are divorced or separated belongs to the mother or another female maternal relative.
Law of Succession:
An individual’s power of testamentary disposition is basically limited to one-third of his or her net estate (i.e., the assets remaining after the payment of funeral expenses and debts). Two-thirds of the estate passes to the legal heirs of the deceased under the compulsory rules of inheritance.
There is a fundamental divergence between the Sunni and Shiʿi schemes of inheritance. Sunni law is essentially a system of inheritance by male agnate relatives, or ʿaṣabah — i.e., relatives who, if they are more than one degree removed from the deceased, trace their connection to the deceased through male links. Among the ʿaṣabah, priority is determined by: (1) class, with descendants excluding ascendants, who in turn exclude brothers and their issue, who in turn exclude uncles and their issue; (2) degree, with relatives nearer in degree to the deceased excluding the more remote within each class; and (3) strength of blood ties, with germane, or full-blood, connections excluding consanguine, or half-blood, connections among collateral relatives. This agnatic system is mitigated by allowing surviving spouses and a limited number of females and nonagnates — daughters; sons’ daughters; mothers; grandmothers; germane, consanguine, and uterine sisters; and uterine brothers — to inherit a fixed fractional portion of the estate in certain circumstances. But the females among these relatives receive only half the share of the male relatives of the same class, degree, and blood tie, and no female excludes from inheritance any male agnate, however remote. No other female or nonagnatic relative has any right of inheritance in the presence of a male agnate. If, for example, the deceased is survived by his wife, his daughter’s son, and a distant agnatic cousin, the wife will be restricted to one-fourth of the inheritance, the grandson will be excluded altogether, and the cousin will inherit three-fourths of the estate.
Shiʿi law rejects the criterion of the agnatic tie and regards both maternal and paternal connections as equally strong grounds of inheritance. In the Shiʿi system, as in Sunni law, the surviving spouse always inherits a fixed portion, but all other relatives, including females and nonagnates, are divided into three classes: (1) parents and lineal descendants; (2) grandparents, brothers and sisters, and their issue; and (3) uncles and aunts and their issue. Any relative of class 1 excludes any relative of class 2, who in turn excludes any relative of class 3. Within each class, the nearer in degree excludes the more remote, and the full-blood excludes the half-blood. While, therefore, a male relative normally takes double the share of the corresponding female relative, females and nonagnates are much more favourably treated in Shiʿi law than they are in Sunni law. In the case mentioned above, the wife would receive one-fourth, but the remaining three-fourths would go to the daughter’s son, or indeed to the daughter’s daughter, and not to the agnatic cousin.
Under Shiʿi law the only restriction upon testamentary power is the one-third rule, whereas Sunni law does not allow any bequest in favour of a legal heir. Under both systems, however, bequests that infringe these rules are not necessarily void and ineffective; when testators have acted beyond their powers, the bequests may still be ratified by the legal heirs. Further protection is afforded to the rights of the legal heirs by the doctrine of death sickness. Any gifts made by a dying person in contemplation of his death are subject to precisely the same limitations as bequests and, if they exceed these limits, will be effective only with the consent of the legal heirs.
Procedure & Evidence:
Traditionally, Sharīʿah law was administered by the court of a single qadi, who was the judge of the facts as well as the law, although on difficult legal issues he might seek the advice of a professional jurist or jurisconsult (mufti). There was no hierarchy of courts and no organized system of appeals. Through his clerk (kātib), the qadi controlled court procedure, which was normally characterized by a lack of ceremony or sophistication. Legal representation was not unknown, but the parties would usually appear in person and address their pleas orally to the qadi.
The first task of the qadi was to decide which party bore the burden of proof. This was not necessarily the party who brought the suit; rather, it was the party whose contention was contrary to the initial legal presumption applying to the case. In the case of an alleged criminal offense, the relevant presumption was the innocence of the accused, and, in a suit for debt, the presumption was that the alleged debtor was free from debt. Hence, the burden of proof would rest upon the prosecution in the first case and upon the claiming creditor in the second. The burden of proof might of course shift between the parties several times during the same suit — for example, when an alleged debtor would plead a counterclaim against the creditor.
The standard of proof required — whether on an initial, intermediate, or final issue — was rigid and basically the same in both criminal and civil cases. In the absence of a confession or an admission by the defendant, the plaintiff or prosecutor was required to produce two witnesses to testify orally to their direct knowledge of the truth of his contention. Written evidence and circumstantial evidence, even of the most compelling kind, were normally inadmissible. Moreover, the oral testimony (shahādah) usually had to be given by two male adult Muslims of established integrity and character. In certain cases, however, the testimony of women was acceptable (two women being required in place of one man), and, in most claims of property, the plaintiff could satisfy the burden of proof through one witness and his own solemn oath as to the truth of his claim.
If the plaintiff or prosecutor produced the required degree of proof, judgment would be given in his favour. If he failed to produce any substantial evidence at all, judgment would be given in the defendant’s favour. If he produced some evidence but the evidence did not fulfill the strict requirements of shahādah, the defendant would be offered the oath of denial. Properly sworn, this oath would secure judgment in his favour; but if he refused it, judgment would be given in the plaintiff’s favour, provided, in some cases, that the latter himself would swear an oath.
In sum, the traditional system of procedure was largely self-operating. After his initial decision as to the incidence of the burden of proof, the qadi merely presided over the predetermined process of the law: witnesses were or were not produced; the oath was or was not administered and sworn; and the verdict followed automatically. This formalistic law of evidence was not, however, universally held. Dissenting jurists, such as the influential 14th-century Ḥanbalī scholar Ibn Taymiyyah, believed that any type of evidence, including circumstantial evidence and the testimony of any witness, was admissible to help the qadi reach the correct decision.
Sharīʿah law in Contemporary Islam:
Scope & Mode of Administration:
During the 19th century the impact of Western civilization on Muslim society brought about radical changes in the fields of civil and commercial transactions and criminal law. In these areas, the Sharīʿah courts were felt to be wholly out of touch with the needs of the time, not only because of their system of procedure and evidence but also because of the substance of the Sharīʿah doctrine, which they were bound to apply. As a result, the criminal and general civil law of the Sharīʿah was abandoned in most Muslim countries and replaced by new codes, based on European models, with a new system of secular tribunals to apply them. Thus, with the notable exception of the Arabian Peninsula, where the Sharīʿah is still formally applied in its entirety, the application of Sharīʿah law in Islam has been broadly confined, from the beginning of the 20th century, to family law, including the law of succession at death and the particular institution of waqf endowments.
Nor, even within this circumscribed sphere, is Sharīʿah law today applied in the traditional manner. Throughout the Middle East, Sharīʿah family law is now generally expressed in the form of modern codes, and it is only in the absence of a specific relevant provision of the code that recourse is had to the traditionally authoritative legal manuals. In India and Pakistan, much of family law is today embodied in statutory legislation, and, since the law is there administered as a case-law system, the authority of judicial decisions has superseded that of the legal manuals.
In addition, in most Muslim countries, the court system has been reorganized to include, for instance, the provision of appellate jurisdictions. In Egypt and Tunisia, the Sharīʿah courts as a separate entity have been abolished, and Sharīʿah law is now administered through a unified system of national courts. In India and, since partition, in Pakistan, it has always been the case that Sharīʿah law has been applied by the same courts that apply the general civil and criminal law.
Finally, in many countries, special codes have been enacted to regulate the procedure and evidence of the courts that today apply Sharīʿah law. Across the Middle East, documentary and circumstantial evidence are now generally admissible; witnesses are put under oath and may be cross-examined; and the traditional pattern in which evidence is brought only by one side while the other side, in suitable circumstances, takes the oath of denial has largely broken down. In sum, the court has a much wider discretion in assessing the weight of the evidence than it had under the traditional system of evidence. In India and Pakistan the courts apply the same rules of evidence to cases of Islamic law as they do to civil cases generally. The system is basically English law, codified in the Indian Evidence Act of 1872.
Reform of Sharīʿah law
Traditional Islamic family law reflected to a large extent the patriarchal nature of Arabian tribal society in the early centuries of Islam. Not unnaturally, certain institutions and standards of that law have been deemed out of line with the circumstances of contemporary Muslim societies, particularly in urban areas, where tribal ties have disintegrated and movements for the emancipation of women have arisen. At first, this situation seemed to create the same apparent impasse between the changing circumstances of modern life and an allegedly immutable law that had caused the adoption of Western codes in civil and criminal matters. Hence, the only solution that seemed possible to Turkey in 1926 was the total abandonment of the Sharīʿah and the adoption of the Swiss Civil Code (chosen for its simplicity and modernity) in its place. No other Muslim country, however, has as yet followed this example. Instead, traditional Sharīʿah law has been adapted in a variety of ways to meet present social needs.
A central reformist concern in the Middle East has been the question of the juristic basis of reforms: granted their social desirability, reforms have had to be justified in terms of Islamic jurisprudential theory in order to frame them as a new, but nonetheless legitimate, version of the Sharīʿah. In the early stages of the reform movement, the doctrine of taqlīd (unquestioning acceptance) was still formally observed, and the juristic basis of reform lay in the doctrine of siyāsah, or “government,” which allows the political authority (who, of course, has no legislative power in the real sense of the term) to make administrative regulations of two principal types.
The first type concerns procedure and evidence and restricts the jurisdiction of the Sharīʿah courts in the sense that these courts are instructed not to hear cases that do not fulfill defined evidential requirements. Thus, according to an Egyptian law enacted in 1931, no disputed claim of marriage was to be entertained if the marriage could not be proved by an official certificate of registration, and no such certificate could be issued if the bride was younger than 16 or the bridegroom younger than 18 years of age at the time of the contract. Accordingly, the marriage of a minor contracted by the guardian was still perfectly valid but would not, if disputed, be the subject of judicial relief from the courts. In theory, the doctrine of the traditional authorities was not contradicted, but, in practice, the law represented an attempt to abolish the institution of child marriage.
The second type of administrative regulation was a directive to the courts as to which particular rule among existing variants they were to apply. This directive allowed the political authority to choose from the views of the different schools and jurists the opinion that it deemed best suited to present social circumstances. For example, the traditional Ḥanafī law in force in Egypt did not allow a wife to petition for divorce on the basis of any matrimonial offense committed by the husband, a situation that caused great hardship to abandoned or ill-treated wives. Mālikī law, however, recognized a wife’s right to judicial dissolution of her marriage for reasons such as the husband’s cruelty, failure to provide maintenance and support, or desertion. Accordingly, an Egyptian law of 1920 codified the Mālikī rule as the law henceforth to be applied by the Sharīʿah courts.
By way of comparison, in the Indian subcontinent, reform in the matters of child marriage and divorce was effected by statutory enactments that directly superseded the traditional Ḥanafī law. The Child Marriage Restraint Act of 1929 prohibited the marriage of girls younger than 14 and boys younger than 16 under pain of penalties, while the Dissolution of Muslim Marriages Act of 1939, modelled on the English Matrimonial Causes Acts, allowed a Ḥanafī wife to obtain a judicial divorce on the standard grounds of cruelty, desertion, failure to maintain, or the like.
By the 1950s, the potential for legal reform under the principle of siyāsah had been exhausted in the Middle East. Since that time, the basic doctrine of taqlīd has been challenged to an ever-increasing degree. On many points, the law recorded in the medieval manuals, insofar as it represents the early jurists’ interpretations of the Qurʾān and Hadith, has been deemed no longer to possess paramount and exclusive authority. Contemporary jurisprudence has claimed the right to renounce those interpretations and to interpret the original texts of divine revelation for itself, independently and afresh in the light of modern social circumstances — in short, to reopen the door of ijtihād that had, in theory, been closed since the 10th century.
The developing use of ijtihād as a means of legal reform may be seen through a comparison of the terms of the Syrian Law of Personal Status (1953) with those of the Tunisian Law of Personal Status (1957) in relation to the two subjects of polygamy and divorce by repudiation (ṭalāq).
As regards polygamy, the Syrian reformers argued that the Qurʾān itself urges a husband not to take additional wives unless he is financially able to make proper provision for the wives’ maintenance and support. Classical jurists had construed this verse as a moral exhortation binding only on the husband’s conscience, but the Syrian reformers maintained that it should be regarded as a positive legal condition precedent to the exercise of polygamy and enforced as such by the courts. This novel interpretation was then coupled with a normal administrative regulation that required the due registration of marriages after the permission of the court to marry had been obtained. The Syrian law accordingly states, “The qadi may withhold permission for a man who is already married to marry a second wife, when it is established that he is not in a position to support them both.”
Far more extreme was the approach of the Tunisian reformers. They argued that, in addition to a husband’s financial ability to support a plurality of wives, the Qurʾān required that co-wives be treated with complete impartiality. This Qurʾānic injunction too should be construed not simply as a moral exhortation but as a legal condition precedent to polygamy, in the sense that no second marriage should be permitted unless and until adequate evidence was forthcoming that the wives would in fact be treated impartially. However, under modern social and economic conditions, such impartial treatment was a practical impossibility. Since the essential conditions for polygamy could not be fulfilled, the Tunisian law succinctly declares: “Polygamy is prohibited.”
With regard to ṭalāq, the Syrian law provides that a wife who has been repudiated without just cause might be awarded by the court compensation from her former husband to the maximum extent of one year’s maintenance. The reform was once again represented as giving practical effect to certain Qurʾānic verses that had been generally regarded by traditional jurisprudence as moral rather than legally enforceable injunctions — namely, verses that enjoin husbands to “make a fair provision” for repudiated wives and to “retain wives with kindness or release them with consideration.” The effect of the Syrian law, then, is to subject the husband’s motive for repudiation to the scrutiny of the court and to penalize him, albeit to a limited extent, for abuse of his power.
Once again, the Tunisian ijtihād concerning repudiation is far more radical. The Tunisian reformers argued that the Qurʾān orders the appointment of arbitrators in the event of discord between husband and wife. A pronouncement of repudiation by a husband clearly indicates a state of discord between the spouses. Equally clearly, the official courts are best suited to undertake the function of arbitration that then becomes necessary according to the Qurʾān. It is on this broad ground that the Tunisian law abolishes the right of a husband to repudiate his wife extrajudicially: “Divorce outside a court of law is without legal effect.” Although the court must dissolve the marriage if the husband persists in his repudiation, it has unlimited power to grant the wife compensation for any damage she has sustained from the divorce — although in practice this power has been used most sparingly.
In Pakistan a new interpretation of the Qurʾān and Hadith was the declared basis of the reforms introduced by the Muslim Family Laws Ordinance of 1961, although the provisions of the ordinance in relation to polygamy and ṭalāq are much less radical than the corresponding Middle Eastern reforms, since a second marriage is simply made dependent on the consent of an Arbitration Council and the effect of a husband’s repudiation is merely suspended for a period of three months to afford opportunity for reconciliation.
Judicial decisions in Pakistan have also unequivocally endorsed the right of independent interpretation of the Qurʾān. For example, in Khurshīd Bībī v. Muḥammad Amīn (1967), the country’s Supreme Court held that a Muslim wife could as a right obtain a divorce simply by payment of suitable compensation to her husband. This decision was based on the court’s interpretation of a relevant Qurʾānic verse. However, under traditional Sharīʿah law, this form of divorce, known as khulʿ, in which a wife pays for her release, is a contract between the spouses and, as such, is entirely dependent upon the husband’s free consent.
These are just a few examples of the many far-reaching changes that have been effected in Islamic family law. But the whole process of legal reform as it has unfolded so far still involves great problems of principle and practice. A hard core of traditionalist opinion continues to reject adamantly the validity of reinterpretation of the basic texts of divine revelation. The traditionalists argue that the texts are being manipulated to yield the meaning that suits the preconceived purposes of the reformers; therefore, contrary to fundamental Islamic ideology, it is social desirability and not the will of God that is ultimately determining the law.
As regards the practical effects of legal reform, in many Muslim countries there is a deep social gulf between a Westernized and modernist minority and the conservative mass of the population. Reforms that aim at satisfying the standards of progressive urban society have little significance for the traditionalist communities of rural areas or for Muslim conservatives, whose geographical and social distribution crosses all apparent boundaries. It is also often the case that the qadis, given their background and training, are not wholly sympathetic to the purposes of the modernist legislators — an attitude often reflected in their interpretations of the new codes.
The one supreme achievement of Islamic jurisprudence over the past few decades has been the emergence of a functional approach to the role of law in society. Jurisprudence has discarded the introspective and idealistic attitude that the doctrine of taqlīd had imposed on it since medieval times and now sees its task to be the solution of the problems of contemporary society. It has emerged from a protracted period of stagnation to adopt again the attitude of the earliest Muslim jurists, whose aim was to relate the dictates of the divine will to their own social environment. It is this attitude alone that has ensured the survival of the Sharīʿah in modern times as a practical system of law and that provides inspiration for the future.
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Final Thoughts:
Islamic Sharia law is a code of basic principles which determine the relationship between man and Allah on one hand and among the individuals themselves. It prescribes the limits to do or not do certain things. These four sources namely Quran, Sunnah, Ijma, and Qiyas are the primary sources of law. Muslim law is mainly based on verses of the Quran and practices of hadith.
For Muslims, the Quran is the word of Allah. Both Sunni and Shi’ah traditions regard it as the one and only source of authority, though they may look to other works or teachers for guidance on its interpretation. Muslims regard the Quran as a source of guidance, as well as being a source of knowledge about their faith and traditions. The Hadith is the Prophet Muhammad’s teachings about how to live life according to the Qur’an. If a Muslim is facing a difficult situation, he might look to the Hadith to see if the Prophet ever had to deal with a similar issue. Sunni and Shi’ah Muslims interpret the Hadith in different ways.
There is a secondary source of Muslim law that subsequent of it. Sects of Shias do not accept the Qiyas as a source of Muslim law. It is due to the contribution of all that an orderly and systematic theory of personal laws of Islam came into existence that governs the Muslim community.
verily good deeds do away with evil deeds.
And that is a reminder for those who remember.
Be patient with yourself. And Keep learning!!
I will be calmer, I will spread love as long as I can, I will live a spiritual life, I would do what I please no matter what and I would prove my theories.
Always start your day with renewing your intention that everything you do for yourself and your community, whether it be your acts of worship or daily chores. It all has to be merely for the sake of Allah (SWT) and Also, I ask Allah (SWT) to make my work dedicated only to him and forgiveness from Allah (SWT), if I have got anything wrong. It is He who is the hearing, the knowing.
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