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Thematic Guide to Islamic Law

Jessica Radin, University of Toronto

Law, both divine and human, has always played an important role in Islamic thought and practice. The Prophet Muhammad can actually be credited with the creation of Islam's first explicitly legal document, the Constitution of Medina. Developed in response to civil strife which the tribes of Medina had called upon the Prophet to resolve, this document details the nature of civic relations within Medina and the punishment for undermining them, as well as the foundations and conditions of membership in the city. (It should be noted that there is some dispute over whether or not the city, which along with Arab tribes included Jews, Christians, and polytheists, constituted the ummah, or "community;" while some argue that the term denotes Muslim coreligionists, others say that ummah—at least at this point—was a political designation.)

The most fundamental pillars of Islamic law are the Qurʿān and the sunnah, the latter of which is contained within the collections of sayings and doings of the prophet (the ḥadīth). "Islamic law" might be identified as the legal process by which jurists determine the import and implementation of divine law, or sharīʿa. Divine law derives first and foremost from the Qurʿān and ḥadīth, which are closely examined using certain established methodologies.

During the Prophet Muhammad's lifetime, those with questions concerning permitted and impermissible behavior could directly ask the Prophet himself. After his death, however, questions not directly addressed by the Qurʿān had to be answered through an analysis of the Prophet's sunnah as contained in the relevant ḥadīth. Identifying the authoritative ḥadīth, and even more importantly its interpretation, has often been the source of heated debate, dialogue, and disagreement within the Muslim community.

The split between Sunnī and Shīʿī Muslims over the proper leadership of the Muslim community also determined which ḥadīth were considered reliable. For example, Shīʿī judges do not accept those ḥadīth reported by Abū Bakr (the Companion recognized by Sunnī Muslims as the first successor to the Prophet) as reliable sources of law, while Sunnī judges do not accept those ḥadīth reported by Shīʿī imams such as Jafar al-Sadiq, an eighth-century descendant of the Prophet.

The four main schools of Sunnī law were founded in the eighth and early ninth centuries. Despite sharing many similarities, each school has its own standards for what sources and interpretative doctrines are considered authoritative. While the four Sunnī schools, which are named after their founders (Ḥanbalī, Ḥanafī, Mālikī, and Shāfiʿī), uniformly assert the unquestionable authority of the Qurʿān and the sunnah, each one differs in the degree of authority it affords other sources, such as qiyās (or analogical reasoning), local custom, the sayings and examples of the Prophet's Companions, logic, and judicial precedent.

After the death of the Prophet, Islam spread across the Middle East, South Asia, northern Africa, and southern Europe. The success of the four schools, and the degree to which their legal systems and scholars were able to influence the actual law, has historically shifted according to the fortunes of the various Islamic empires with which they were associated. Thus, while the Mālikī school was tied to the Almoravid Empire, holding sway throughout Andalusia and much of North Africa, the Almohad Empire distinguished itself partly by outlawing Mālikī jurisprudence and replacing or banishing Mālikī judges.

Classically, the Islamic judge, or qāḍī, was responsible to both the political and the military leader who appointed him, and to the principles of law as accepted in their community. Their work was often overseen by state functionaries whose role was to ensure that the qāḍīs effectively balanced their responsibility to both the divine law and the sovereign. Although the concept of a jury as it is known in the West is not a part of Islamic law, shūrā, or consultation, has always played an important role is the Islamic judicial process. The Mālikī school in particular held that the ruling of a judge was invalid if he did not consult with other judicial authorities; however, the number of people who must be consulted, their status, and the weight of their testimony, has never been fixed across the schools of law.

After obtaining the best advice possible and consulting the authoritative sources of the law, the role of the qāḍī has traditionally been to determine how best to characterize a particular action according to the five-part regulatory schema outlined in Islamic law. Forbidden (ḥarām) acts require punishment; disapproved (makrūh) acts are disliked, but not subject to punishment; permissible (mubāḥ) acts attract neither approbation nor censure; recommended (mandūb) acts garner praise but their omission is not censured; and required (wājib) acts are absolutely necessary behaviors and practices whose omission requires punishment. After determining the status of the act, and drawing again on the sources of the law and the best advice, the judge must determine the most appropriate punishment for committing forbidden acts or omitting required acts, again with reference to the types and degrees of punishments outlined in the sources of law.

Today, the constitutions of many majority-Muslim countries stipulate that sharīʿa is the basis, or a basis, for civil and criminal law. In these contexts, fatwās may hold legal weight and may, in certain countries, be enforced by the police. However, it is important to note that no two Islamic countries whose constitutions mandate the use of sharīʿa law have identical penal and civil codes; each country engages in a process of interpretation which is both locally grounded and religiously guided. In many cases, one or several institutions will be designated as the official arbiter of questions concerning sharīʿa. Al-Azhar University in Cairo is one such institution.

In countries around the world where significant minority Muslim populations exist, as well as in a number of majority-Muslim countries, the scope of sharīʿa law is often limited to family and contract law. Religious courts or arbitration panels may provide a context in which devout Muslims can obtain judgments in matters of divorce or business that conform to the tenets of their faith. In some countries, such as Canada, certain Muslim covenants (such as marriage contracts) are accepted as evidence of personal contracts and must therefore be taken into account by non-Muslim courts.

The authority of Muslim law in non-Muslim countries is a topic of heated debate, particularly in North America and Europe, where some have argued that Muslim law places traditionally vulnerable members of society, such as women and children, at greater risk of abuse. Others have argued, however, that allowing some form of faith-based arbitration is a matter of conscience and a necessity for successful multiculturalism. What is certain is that both the theories and the particulars of Islamic law continue to evolve, in response to the pressures of an increasingly globalized and multicultural world and as a part of the ongoing process of debate and interpretation that can be traced back to the earliest periods of Islam.

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