| Below I will try to explain what Gragg meant when he said: �Islam understands religion as law, law as religion�1. To do this I have outlined the fundamental principles or roots of Islamic law, given a brief overview of the origins and development of the law from its inception up until the present day, and finally I have tried to describe the relationship between the religion of Islam and the Islamic law.
Sources or roots of Shari�ah Law The Primary sources The Shari�ah Law is derived essentially from the Qur�an and the Sunnah (practice) of the Prophet Muhammad. These are the primary sources that are consulted in order to arrive at the legal position for the matters of law2. Muslims believe that the Qur�an is God�s final and most authoritative revelation to mankind. They believe that the Arabic Qur�an is the word of God exactly as the Prophet received it from the Archangel Gabriel and that it contains not a single word that has been added or altered by the Prophet himself, or later by men3. The Qur�an describes itself as a book of guidance4, a �clear statement� with �instructions� and �direction� for believers5 and that it provides the �criterion� for judging between right and wrong and a warning to the whole world6. The Qur�an also demands that the believers obey and follow the guidance it contains7. The Qur�an, which is the first primary source of Shari�ah is explained and elucidated by the Sunnah (or the established practice) of the Prophet Muhammad. The Sunnah refers to the exemplary behaviour of the Prophet, what he said, did or approved, as recorded in the various collections of ahadith. So, the Sunnah provides the Prophetic commentary and it also translates the Qur�an into practice8. The ahadith were originally recorded and transmitted by the Prophet�s Companions to their successors and from them they were handed down to succeeding generations. The various collections of ahadith, which are available today, constitute an exhaustive record of the Prophet�s teachings. As an explanatory supplement to the Qur�an they have proved to be essential as an additional source of guidance and law9. On certain issues the Qur�an provides only scant details or none at all and so it became necessary to consult the Sunnah in order to answer the particular problem. For example Believers are commanded to pray in the Qur�an but the details of exactly how the prayer is performed is contained in the Sunnah10. The Secondary sources The secondary sources are those that are referred to in order to resolve the matters of law, which have no specific mention in the Qur'an and the Sunnah of the Prophet. Gragg lists these11 as follows: � �Ijma: This is the �consensus�, or �convergence� of opinion of the Prophet�s companions or the learned jurists. � Qiyas: This is analogical deduction or the arriving at a logical conclusion on a matter of law, which has no mention in the Qur�an, Sunnah or Ijma. � Ijtihad (independent disciplined reasoning): This is the exercise of human intellect by a qualified Mufti or Fuqaha in order to arrive at a judgment on a matter of law. � �Urf (customary practice of the community): All the schools of law recognise the known customs and practices of a community, for example a conquered community, as long as they do not oppose an established rule in the Shari�ah. Shi�ite Muslims also recognise the direction of the Imam as a source of Law. The origins and development of Islamic Law Khadduri states12 that throughout pre-Islamic Arabia, religion and law was closely intertwined. He goes on to say that the main reason for this was because the established law of Arabia, before Islam, was based on the customs (called sunna) of the forefathers, which included their religious practices. Consequently, when Muhammad began to condemn idolatry, which was a traditional practice and widespread at the time, his opponents rightly saw this as a violation of the law itself. Later on, Muhammad would replace the existing �idolatrous� law with �God�s law� using the Qur�an as his primary source of legislation. In the thirteen-year period before the Hijrah (migration), the Prophet and his followers, living amongst a hostile non-Muslim majority in Makka, started to put into practice the early injunctions of God. During the ten years after the Hijrah up until his death, the Prophet and his followers, now based in Madina, were able to expand the law of Islam into the social, economic and political spheres13. During the Prophet�s lifetime his companions would ask him to explain the injunctions (ahkam) of the Qur�an. Everything the Prophet said about the Qur�an was committed to memory and later recorded in large collections of his sayings14. The death of Muhammad brought an end to prophetic legislation15. However, the decrees issued by his successors, the early caliphs (leaders of the Muslim community), were applied to resolve those legal problems that the Qur�an failed to provide an answer for. At the same time, the local customs served as a legal precedent for regional disputes and localised problems. As Islam expanded, the foreign systems of law, for example the Byzantine (Roman) law in Syria and the Sasanian (Persian) law in Iraq, were still referred to for matters where the authoritative texts were silent. But, during all this time, the Qur�an maintained its position as the overriding authority and the primary source for resolving legal problems. After the death of the Prophet, his sayings and legal decisions quickly became the second point of reference, which influenced the Jurists� decisions16. God alone is seen as the Law Giver and it was considered incumbent upon Islamic leaders to establish His rule in their domain. Initially, this caused a problem during the Islamic expansion across North Africa and into Spain to the West and to the borders of India in the East when the Muslims came into direct contact with the alien cultures and practices of the conquered peoples. The early jurists resolved this issue by employing the concept of �Urf which took into account the customary practice of the people and allowed such practices so long as they did not oppose an already established rule of Shari�ah. This meant that Islamic Law provided for many customs, which did not originate from Islamic sources. Inevitably this facilitated the rapid growth of Islam and the establishment of Islamic Law in those areas17. The early Muslims put a lot of effort into resolving the practical difficulties, which confronted their communities. But while the Qur�an provided a sound source of guidance for many problems, there were still many issues for which the Qur�an was silent. Consequently, the rulers of the first century A. H. (�after Hijrah�) resolved these problems by referring back to traditional Arab practice and also by using their own judgement. At the same time, the Islamic scholars began to build and elaborate legal systems based primarily on the Qur�an but also using the traditions handed down from the Prophet�s companions, and on their own personal reasoning18. The �rightly-directed era� came to an end in around 40 A. H. and the Muslim leadership fell into the hands of the Umayyads at Damascus. They were the first to favour a more worldly outlook and, under their leadership, the Shari�ah was neglected19. Nevertheless, the Jurists engaged themselves in an intensive search for the Prophet�s legal Traditions and endeavoured to ascertain their reliability. When these Traditions were judged to be reliable, the directives contained within them were implemented. Thus, the Sunnah, quickly superseded all other sunnas, and became the second point of reference, after the Qur�an itself, which was referred to in order to formulate the points of law. Zaehner states: �It (the Qur�an) requires no supplementing in substance, but only clarification or elaboration of its texts in respect of method, interpretation or application�20. Four major centres of legal study emerged. These were the Iraq centres at Kufa and Basra and the Hijaz centres at Madina and Makka21. During this period the jurists were free to formulate rulings based on their own personal understanding and interpretation of the sources (ijtihad). But by the end of the third century A. H., every jurist and judge (Qadi) was restricted to referring to the rulings already passed by his school22. The founders of the Four Schools of Law, Abu Hanafi, Imam Makak, al-Shafi�i and Imam Hanbali, set about the task of systemising and refining the principles, or roots, of the Law. In addition to the Qur�an, the Sunnah and �urf (customary practice of the community), ijma� (consensus), istihsan (the public interest), ijtihad (independent disciplined reasoning), and qiyas (analogy) were all developed and utilized to determine legal judgements, although the four schools differed in their emphasis and employment of these supplementary sources of law. The Shi�ites believe their Imams to be infallible and recognise their legal opinions as a legitimate source of Shari�ah23. Over the centuries, Muslim rulers and governments gradually favoured a more secularised jurisdiction and the Shari�ah became increasingly overlooked and ignored. At the same, religious leaders have sought to combat the secularisation of Muslim societies by putting pressure on the ruling governments24. Recently, the Shari�ah Law has enjoyed a revival. Fisher25 sees this as directly linked to the enormous power and wealth gained by Muslim countries in recent times from their discovery of oil. He opinions that many Muslims have turned their back on this newly acquired affluence and modernity, wishing instead for a return to more stable traditional living patterns. In fact, the process of revival began around the end of the Second World War during the recession of the western empire and the appearance of self-ruling, Muslim governments in the Middle East. But leaving aside the causes of the revival in Islamic Law, its effects have been varied throughout the Muslim world. Some countries, for example Pakistan and Indonesia, have tried to balance the Shari�ah with secular law, while others, for example Turkey and Morocco have tilted the balance in favour of the secular. Nevertheless, Islamic Law has enjoyed success in countries like Saudi Arabia, Yemen, Syria, Sudan and Iran especially, and to a lesser degree, Egypt, Tunisia and Algeria etc. Generally speaking, Muslim governments seem to be becoming more and more islamised, politicians more frequently invoke Qur�anic and Islamic statements in support of their arguments, and Islamic behaviour is more readily apparent on the streets of these countries. More obvious is the decline in anti-Islamic behaviour. Egypt has banned the consumption of alcohol in public, Saudi Arabia and Iran employ morality squads to enforce obligatory prayers, dress code and so on, fasting is strictly enforced in both these two countries. Iran has strived to make the Shari�ah applicable to all aspects of everyday life26. Further evidence that Muslim countries are moving closer to the Shari�ah can be seen in their constitutions: Article one of the Constitution of Saudi Arabia, adopted in March 1992, states that the kingdom of Saudi Arabia is a sovereign Arab Islamic state and that God�s Book and the Sunnah of His Prophet is its constitution. The Constitution of the Islamic Republic of Iran, adopted in October 1979, states (article four): �All civil, penal financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic criteria. This principle applies absolutely and generally to all articles of the Constitution as well as to all other laws and regulations, and the wise persons of the Guardian Council are judges in this matter�. The constitution of Kuwait, as adopted in 1962, states that the Shari�ah is the main source of legislation. Article three of the Constitution of Syria, adopted in 1973, states: �Islamic jurisprudence is a main source of legislation�. Article three of the Constitution of Yemen, as amended in 1994, states: �Islamic Shari'ah is the source of all legislation�27. In 1979, Iran became the focus of world attention when its monarchy was swept aside during �the Islamic revolution� and the country was declared an Islamic Republic after the return of the exiled Ayatollah Khomeini. A Muslim government was established and the Shari�ah law became the basis of all legislation. In 1983, President Numayri established Shari�ah law in Sudan. More recently, the Taleban brought Afghanistan under the jurisdiction of Islamic law during their rule from 1996-2001 but this was brought to an abrupt end during the American led invasion in 2001. Zamfara, one of the 36 states in the Nigerian Federation, also established Shari�ah Law in January 200028. The relationship between religion and law Graggs states that religious law plays a greater role in mainstream Islam than that of theology. For example, understanding God�s nature and so on takes second place to the practical obedience, or submission, to and performance of God�s directives as found in the Qur�an29. Thus God�s communication with mankind is viewed primarily and most importantly as guidance for life rather than an exploration of the unseen. Indeed one of the principle features of a Muslim�s prayer, after the believers� praise of and thankfulness to God, is his plea that God will direct and guide him on the �straight path�30. While the Qur�an describes the characteristics of the ideal believer, the Islamic law seeks to set out a clear and practical guide so that Muslims are able to achieve this position. Compliance to the Law is considered to be an achievable objective and within a Muslim�s capability. Disobedience is traced to God having allowed it, or more accurately having willed it, to happen. Therefore, the sinner is not viewed as a rebel against God, as this would be conceited. Instead he is deemed to be living in a state of divine damnation31. There is no distinction in Islam between the sacred and the secular. To make such a distinction is to exclude God from certain areas of everyday life. Rather, Islam, by means of the Shari�ah, seeks to introduce a religious influence into every aspect of life32. Islam is called a �way of life� which affects all facets of man�s worldly, as well as religious, experience. The term �Din� is used to describe the religion of Islam or, more specifically, the practical implementation of its religious duties. So, Din consists of the Islamic Law (Shari�ah), duties, and actions. Din al-Islam means Islam as a way of life, or the practical implementation of the Shari�ah into everyday life33. Not only does Islam exhort the good and moral behaviour of mankind but it also demands a political authority and legal system to oversee that this becomes a reality and all aspects of human activity are judged to be liable to their regulation. The proper enforcement of such an all encompassing rule of law is considered to be crucial and necessary for the welfare of the Islamic society as a whole as well as for the individuals living within it. The Shari'ah is the general title for the Islamic moral and legal system, which covers every aspect of a Muslim's life, from the etiquette's of worship to the rules governing everyday living. The Shari�ah Law seeks to characterise the ideals of faithful behaviour as described in the Qur�an and is designed to regulate both the relationship between man and God and also to legalise the relations between men. So, the Shari�ah Law offers the Muslim community a clear picture of the lawful (Halal) and the unlawful (Haram) conduct. It is also considered to be the political constitution of Islam and the ideal legal order. The Qur�an lies at the very heart of Islam. It is also the foundation of the Shari�ah and the overriding authority when legislation is drawn up. In the same way that religion and law in Arabia before the advent of Islam was closely intertwined34, so are the religion of Islam and the Islamic Law. When Cragg states: �Islam understands law as religion, religion as law�35 he is explaining the fact that the Islamic legal system cannot exist without the religion and its followers and that the religion of Islam is in fact a legal religiosity. They are two inseparable entities. He is drawing our attention to the dependent relationship that the religion of Islam has with the Law. Furthermore, the principles of Islamic Law are for the most part based on religious texts and these form the most authoritative elements of the law. Where human reasoning is permitted in legal judgements these too are tied up with the religious texts and principles, and are only permitted to be drawn up by jurists who possess a thorough knowledge of the Islamic sciences. While the religion of Islam describes the ideal life, the Shari�ah spells this out and thus reveals the �path� which, if followed, would lead to the ideal life. It is also viewed as the system and constitution of Islam. Unsurprisingly, various thinkers and revivalist groups and even some terrorist organisations have emerged calling for greater implementation of Shari�ah law in their homelands and, more broadly, throughout the Muslim world. The terror groups preach that Muslims are obligated to involve themselves in direct action and violence in order to achieve a truly Islamic society and reason that the ends justify their means. These reactionary movements are a small but resourceful minority among the worldwide community of Muslims. But the overwhelming majority of Muslims remain more or less indifferent to their cause36. Although most practicing Muslims would prefer to be ruled and regulated by religious laws because their submission to Islam requires obedience and submission to the Shari�ah, and the Shari�ah represents the ideal Islamic way of life, I would say that even the vast majority of those Muslims who live as a minority under a non-Muslim law are, for the most part, content to carry on living their lives under secular law. This is because the majority of the secular laws do not conflict with Islamic standards. In a way they become islamised in the eyes of Muslims. Off course some secular laws do conflict with the teachings of Islam, for example the laws that permit the consumption of alcohol, gambling, prostitution and so on. But, because the faithful Muslim would refrain from such activities anyway, I believe that he simply distances himself from such laws. Generally speaking then, most Muslims are willing to live under the particular system of law that applies to where they live. Notes 1. Cragg, K. (1987). ISLAM (UNITS 5-6), The Open University, (Milton Keynes, England), p. 41. 2. Ali, A. Y. (translator) (1934). THE HOLY QUR�AN, TRANSLATION AND COMMENTARY, The Holy Koran Publishing House (Madina, Saudi Arabia), verse 5: 92. 3. See ibid verses 85: 21-22. 4. Ibid verse 2: 2. 5. Ibid verses 3: 138, 10: 57, 43: 2-4. 6. Ibid verse 25: 1. 7. There are numerous verses calling on the Believers to �obey� God, or in other words his �Word� or the Qur�an: See for example ibid verses 12: 92, 8: 59. 8. Cragg, K, op cit, p. 24. 9. Ibid p. 40. 10. Ibid pp. 39-40. 11. Ibid pp. 39-41. 12. Khadduri, M. (translator) (1961). AL-SHAFI�IS RISALA, Islamic Texts Society (Cambridge, England) p. 4. 13. Faruki, K. A. (1994). ISLAMIC JURISPRUDENCE, Adam Publishers (Delhi, India), p. 21. 14. See for example Hasan, A (translator) (1993). SUNAN ABU DAWOOD, Kitab Bhavan (Delhi, India), hadith 4449. 15. See Ali, A. Y, op cit, verse 33: 40. 16. Khadduri, M, op cit, pp. 4-7. 17. See Cragg, K, op cit, p. 39. 18. Zaehner, R. C. (1959). THE HUTCHINSON ENCYCLOPEDIA OF LIVING FAITHS, Helicon Publishing L. T. D. (Oxford, England), pp. 170-1. 19. Faruki, K. A, op cit, p. 23. 20. Zaehner, R. C, op cit, p. 171. 21. Khadduri, M, op cit, pp. 5. 22. Zaehner, R. C, op cit, p. 173. 23. Faruki, K. A, op cit, pp. 20-28. 24. Zaehner, R. C, op cit, p. 172. 25. Fisher, M. P. (1997). LIVING RELIGIONS, AN ENCYCLOPEDIA OF THE WORLD�S FAITHS, I. B. Tauris Publishers (London, England), p. 368. 26. Ibid p. 368-371. 27. Internet web site: http://www.oefre.unibe.ch/law/icl/home.html. 28. Internet web site: http://news.bbc.co.uk/. 29. Cragg, K, op cit, p. 35. 30. See Ali, A. Y, op cit, verses 3: 16, 3: 20, 3: 22, 26: 213. 31. Cragg, K, op cit, p. 35. 32. Ibid 33. Ibid p. 39. 34. Khadduri, M, op cit, p. 4. 35. Cragg, K, op cit, p. 41. 36. Faruki, K. A, op cit, pp. 32-33. Bibliography Ajijola, A. A. D. (1998). WHAT IS SHARI�AH? Adam Publishers (Delhi, India). Ali, A. Y. (translator) (1934). THE HOLY QUR�AN, TRANSLATION AND COMMENTARY, The Holy Koran Publishing House (Madina, Saudi Arabia). Cragg, K. (1987). ISLAM (UNITS 5-6), The Open University, (Milton Keynes, England). Faruki, K. A. (1994). ISLAMIC JURISPRUDENCE, Adam Publishers (Delhi, India). Fisher, M. P. (1997). LIVING RELIGIONS, AN ENCYCLOPEDIA OF THE WORLD�S FAITHS, I. B. Tauris Publishers (London, England). Hasan, A (translator) (1993). SUNAN ABU DAWOOD. Kitab Bhavan (Delhi, India). Khadduri, M. (translator) (1961). AL-SHAFI�IS RISALA, Islamic Texts Society (Cambridge, England). Zaehner, R. C. (1959). THE HUTCHINSON ENCYCLOPEDIA OF LIVING FAITHS, Helicon Publishing L. T. D. (Oxford, England). |
| The relationship between religion and law in Islam R McDowell |
| Islamic Review |
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