Most often translated as “Islamic law,” the term sharia describes both Muslim practices that relate to law in Western understanding and others that do not. It is better understood as the Muslim conception of a life in conformity with God’s will. Thus it includes both the rules that regulate the Muslim’s relationship to God, such as the ritual practices of worship (prayer, fasting, pilgrimage, etc.) and the rules that regulate the worshippers’ relationships to one another and to society. The first are called ʿibādāt (“acts of worship”), the latter muʿāmalāt (“transactions”). The divide largely coincides with the definition of legal as “concerning cases that are brought before a court of law,” which applies to the muʿāmalāt, but some legal infractions, as those falling under the category of ḥudūd, below, are considered to be crimes against God and fall under ʿibādāt.
Muslims follow the sharia because it is instituted by God. While following the ʿibādāt rules simply conveys an acceptance of God’s will and needs no further rationalization, the muʿāmalāt were put into place by God in order to promote the well-being (maṣlaḥa) of the Muslims and their society. Thus God had an intention with the law (maqāṣid al-sharīʿa) that is knowable to the believer and can be expressed as a “just society.” For many Muslims therefore, the word “sharia” simply means “justice,” and they will consider any law to conform to the sharia as long as it promotes justice and social welfare.
However, for most Muslim believers and scholars the term refers to rules developed on the basis of the divine revelation through a legal methodology known as fiqh. The sources of revelation did not provide a corpus of rules that could be applied directly by the believers, but instead in most cases provided only indications (dalālāt) from which those specifically trained in the methodology of law could derive and develop positive rules of law.
In traditional Muslim belief the sharia is based directly on God’s revelations to the Prophet Muḥammad in the Qurʾān, and on the latter’s normative practices (sunna). Historically, however, the law developed over time in the first centuries of Islam. How fast and to what degree it relied on pre-Islamic legal tradition in the regions the Muslims came to control (such as the semi-nomadic Arabian peninsula, the formerly Byzantine Syria and Egypt, and the formerly Sasanid Iraq) are a matter of considerable controversy among scholars. It is commonly held that the early Muslim governors of Syria and Iraq largely left pre-Islamic administrative and legal practices untouched as far as the non-Muslim populations were concerned. In the new communities of conquering Arabs that settled there, however, the rulers began to implement rules that marked their identity as Muslims.
These rules were often made ad hoc, and may have been amalgams of practices of the Arab nomads or of previous rulers of the conquered regions, and/or new understandings of what the early community of believers considered to be pious and moral behavior. Thus local law regulated both affairs overseen by state authorities (governors, military commanders) and customs of society that were outside political control. In the first century or so it was most likely only in the urban centers, and perhaps only in the largest of them, that the state was the effective legal authority. As long as the original inhabitants remained non-Muslim, they mostly kept their legal autonomy, while Muslims outside the major towns would most likely also have continued the middle man or arbiter (ḥākim) system that they were familiar with from the Arabic peninsula, and not involve the new authorities unless they had to. This middle man would, of course, have continued the customary legal practices from the pre-Islamic past.
In the urban centers there came together people particularly concerned with religion, whether it was their full-time profession or not. Some of them came to discuss the practical matters of what Muslims should or should not do, as to ritual but also to legal aspects of the believers’ behavior. These scholars were not necessarily linked to the state (the caliph and governor), although some were. For many of them it was an intellectual and pious exercise, but also an attempt to answer practical questions arising in the community as the new society was being formed, for which they wished to provide a “correct” solution increasingly based on religious views.
These new scholars of law often did not agree with one another, and the elaboration of law often took the form of sharp munāẓarāt (literally, “examinations” of matters) that is, disputations between individual scholars in various parts of the Muslim world. Disagreement was thus rife, but the scholars agreed on one thing: If formulating “correct practice” for the believers was to be based on religion, it had to be a matter for those who knew about religion, in other words not for the caliph or other officers of the state, who had no authority over religion. Although he was the “commander of the faithful,” the caliph was not and could not be a “commander of the faith.” In law his task was to implement the law of Islam, to “command good and prevent evil” but not to formulate it. In this the scholars, not the caliph, were the “heirs of the Prophet.” Thus whatever vague attempts there were—and they were only tentative—to establish the caliph as a legislator and establish one particular law as an official “caliphal” code were nipped in the bud.
Therefore, while the law of the Muslim lands was probably first based more on “accepted practice” than on religious ideas (although this is contested), in the course of the first three centuries it became more and more clear to the community of scholars that the law had to be firmly based on the divine revelation. The process of legislation must in fact be a process of uncovering the divine will for each and every act, based on what God had commanded. This, however, required the intellectual efforts of specialized scholars (the fiqh scholars, or fuqahāʾ). After a period of perhaps three centuries, a science of the methodology of this process, uṣūl al-fiqh, developed, and came in broad terms to be agreed upon by the scholars. This is often called the “four roots” of Islamic law—after the scholar al-Shāfiʿī (d. 820 C.E.)—but when understood as a process of discovering the divine law, it may perhaps be easier to conceive of it as “three stages”: revelation, formulation, and confirmation.
The theory of uṣūl al-fiqh.
God’s will, the basis of the sharia in Muslim belief, is expressed in the two forms of the Qurʾān and the sunna. These two provide the “raw material” for the law, because God’s will does not necessarily appear in a form directly comprehensible to the believers in these two sources. Only a minor part of the Qurʾān is relevant to the sharia (estimates vary according to definition, but it is reasonable to consider some 350 verses out of the total of 6,200 to be of direct legal relevance, most of them dealing with a few particular areas, especially inheritance). The Qurʾān is much more important as a general reference for rules and principles expounded on elsewhere. Thus the verse 4:59 “Obey those in authority among you” can be read to give divine sanction to any number of particular legal rules, according to how one interprets “those in authority” (parents, sultans, scholars?), and what is implied in “obeying.”
On the other hand, the text of the Qurʾān is clearly demarcated; all Muslims agree on its veracity and its textual content. That is not the case for the sunna, as preserved in the enormous and amorphous body of orally transmitted stories (ḥadīths, or Prophetic traditions) relating of the Prophet and his contemporaries. The ḥadīths are far more concrete and practical than the often general statements of the Qurʾān. However, not all of the vast number of stories that were told could be genuine—some contradicted each other and others could not possibly have stemmed from the Prophet. As they were written down about one to two centuries after the death of the Prophet, Muslim scholars developed a methodology of separating the true stories, which were legally binding, from the spurious, which had to be ignored. A number of ḥadīth scholars undertook this work and established a hierarchy of probability, from traditions that were considered to be absolutely true (“sound,” primarily by being tawātur, so widespread among the earliest scholars that it was inconceivable that they all shared an untruth), through “probable” in various degrees, to “weak” or false.
Not all of the ḥadīth scholars agreed on the selection of true versus probable traditions. Some collections of ḥadīth were generally accepted to have a higher normative status (the figure “six” for authoritative canonical collections is often used, although nine or ten of them did in fact gain particular authority). A ḥadīth that is included in both the collection of al-Bukhārī (d. 870) and of Muslim ibn Ḥajjāj (d. 875) is as close as one can get to absolute certainty in this field.
By and large, however, the development of ḥadīth studies left open vast areas of scholarly disagreement both in the relative merit of the texts and in how to interpret them, not least because the same ḥadīth could appear in very many variants and forms with minor but crucial differences in wording, either including a context that might limit its application, or omitting it, which would make the tradition’s pronouncement universally valid. As this was the most practically important source of revelation (the sunna explains the Qurʾān, as the expression goes), such variations allowed legal scholars considerable leeway in formulating alternative rules all of which could claim a basis in the divine revelation.
The process of formulating the divine law was therefore clearly the result of human scholarly endeavor. This introduced a duality in the authority of the law: If correctly understood, it represents God’s will and is absolute, undoubted by the pious believer. But in as far as it is the result of fallible human intellect, it cannot directly represent God’s will, and is only at best so close to it as can be humanly attained. The scholar cannot put himself in God’s place and give divine authority to his interpretation; he must—as every legal opinion does—conclude with “God knows best” (wa-Allāh aʿlam)
Yet the scholars did begin a process of formulating a consistent set of legal rules on the basis of the revealed sources. This process of formulation is called ijtihād, and it was open to every scholar who had the competence in terms of scholarship and knowledge. Ijtihād encompasses a number of specialized methodologies, of which perhaps the most important and the best known is analogy, qiyās. Qiyās is the process by which the content of a single Qurʾānic verse or ḥadīth is generalized into a legally consistent rule—for example, from the verse stating that “khamr (wine) is Satan’s handiwork” (Q 5:90), the rule “the consumption of any substance that is intoxicant in any amount is forbidden” is produced. There were also many other methods of legal elaboration open to the scholars, some of which (istiḥsān or istiṣlāḥ, among others) were also intended on mollify or nullify the very same rules produced through qiyās in cases where these would lead to socially unacceptable results.
Evidently, when many scholars using a variety of methodologies are producing laws based on a source material that is itself without clear limitations, there is bound to arise numerous disputes and disagreements. The majority of scholars came to consider such disagreement (ikhtilāf) as a natural consequence of human fallibility and, indeed, as one of God’s bounties to mankind; not all scholars agreed and these insisted that as God’s will was only one, there could also be only one valid interpretation.
If the law was to be enforceable, such a benevolent variety was impracticable. In a court of law, each party could not claim for itself the interpretation that served its cause best without the judge being able to say that one was correct and the other incorrect. Thus out of all the possible interpretations and formulations of each rule that was, or could be, provided through ijtihād, a subset had to be established that could become the positive law that the court and the authorities could enforce as “the sharia.”
The problem was the question of who was to decide which was the “correct” view. It had already been established that the ruler—the caliph or sultan—did not have the authority to intervene in what was still considered to be a religious area, to put himself in the place of the Prophet or, indeed, God. Therefore the “state” could not be the legislator; only God is the legislator in Islam. But there was also no organized religious establishment to make such decisions, no pope or ecclesiastical council; all such formal structures were unknown to Islam.
What came to be the answer, then, was again typically pragmatic and vaguely defined: The correct interpretation of the law was that which was approved as such by the community of scholars through consensus (ijmāʿ). But what would that mean? A consensus encompassing all living (and perhaps also dead) scholars? Or only a majority at any given moment? And how is such a consensus established in the amorphous body of scholars in the far-flung reaches of the Muslim world? The theorists disagreed over these issues. A concept of absolute ijmāʿ—to include every single scholar in any particular generation (a unity so miraculous that it must be a proof of God’s will, thus a third source for revelation)—was developed, but by its nature it had little practical impact on legal development.
A more pragmatic use of the concept of consensus came to be that the clear majority opinion among the scholars on a legal issue, established at one particular point in time, constituted positive law on that issue, although it might not convey the absolute divine truth. A rule thus established was final and could not be reopened for later discussion.
The Development of Different Legal Schools.
Even this more pragmatic unity was impossible to achieve, however. Instead, the sharia was formulated in several slightly different variants, each stemming from a different “school of law” (madhhab). These variants share many—perhaps most—of the basic rules, but differ substantially on some points. While they also have many points of methodology in common, they are clearly distinct even in their theory of how to develop the law. Thus the schools must primarily be seen as four parallel legal systems that share many features. A scholar in the classical period was not expected to seek answers outside of his own school. Yet the schools recognized each other’s authority: a judge should not seek to overturn a verdict made in another madhhab’s court, even if his own school would have ruled differently. Modern reformers, however, often try to transcend the madhhab divisions in order to create a “unified” sharia.
Classical Muslim historians emphasized the normative link from the Prophet’s historical practices to the establishment of the madhhabs. Learned scholars who excelled in collecting information attesting to the Prophet’s example sought in the best possible way to follow in his footsteps. Around the best of these legal scholars there formed groups of students who transmitted their views to succeeding generations, thus laying the foundation for the madhhab. Some modern historians, however, question this normative chronology and believe that the views of these early scholars were rather based on established practice in their own region which they distilled into conceptions of the “best way,” the original meaning of the word sunna. For these scholars this was the Muslim way of behavior, in that the community represented the religious ideal. Only later was this behavior personalized into the authority of the Prophet, at which time support for the already established opinions of the jurists had to be sought in the ḥadīth, as far as that was possible.
The historical development of the law can thus be seen through two partly, but not completely, separate processes: On the one hand, the necessities of government forced the new state authorities to develop legal institutions and to try to universalize common rules for the empire rather than letting each province maintain its diverse pre-conquest practices. On the other, independent scholars developed discursive traditions that were also localized, albeit specifically Muslim. These were developed partly by logical reasoning and partly by conceptions of “justice” that were influenced by custom. Thus there were both individual variations between scholars in each town and more systematic differences between regions (for example, the distinctions between the “new” Arab towns of Iraq and the “old” Roman towns that the Muslims took over in Syria). However, as over time religious authority came to be vested more and more in the persona of the Prophet Muḥammad—common to all Muslims—the authority behind the laws became increasingly universal in theory even though they always retained local variety in their application.
The governors did try to recruit some of these scholars as judges in their courts or as advisors, and while it is a pious fiction that scholars sought to distance themselves from the “tainted” touch of political power, it was clearly an avenue for material and social promotion to take such a position. They were initially subservient to the governor but in the course of time established an independent role that allowed them to maintain control over the content of the laws they applied, even though each judge was always in danger of being deposed, or worse, by his political master.
While, in each major town, groups of scholars formed that may have agreed on a number of legal issues and also discussed the methodology of how exactly one discovered the most proper practice, they cannot yet be called formalized schools before the ninth century C.E. A scholar could agree on some matters with his peers and disagree on others, and in most cities—as in Kufa, the intellectual center of the time—there were a number of different such scholarly groups, some of which found fellow supporters in other major towns. The transmission of learning was informal and oral—groups of students would gather around a renowned scholar sitting in his mosque, listen to him expound on a topic of law or recite a series of ḥadīths, and, perhaps, note them down for later memorization.
In the ninth and particularly the tenth century, it appears that transmission changed to a written form, when students were allowed to copy over the texts directly. This changed the nature of the law, as it imposed a much greater conformity on the conclusions. As long as teaching was only oral, it was easier for students to introduce additions to the transferred readings—for example, in order to counter arguments from opposing groups. From the mid-tenth century on, at the latest, the basic legal texts became “frozen” in the form they are today, which helped to solidify the scholars who based their views on them into separate groups.
Over time these groups of scholars became further institutionalized. Proper schools of thought, with locally recognized leaders, were now clearly identified, and individual scholars were noted as belonging to one and only one of these groups. While they earlier might have been known as the “people of Kufa” or the “the people of Medina” (vague descriptions which might have included only some of the scholars of these towns), these schools now began to trace their lineage to legal scholars of the previous centuries and see themselves as “followers of the views of” such and such a departed figure. These early authorities became the “founding fathers” of schools that actually came into existence a century or more after their death. Initially there were many such schools, each with its own eponymous founder, but by the twelfth or thirteenth century most had faded away or merged into the four major schools within Sunnī Islam.
These four—named after Abū Ḥanīfa (d. 767), Mālik b. Anas (d. 795), Muḥammad b. Idrīs al-Shāfiʿī (d. 820), and Aḥmad b. Ḥanbal (d. 855)—came into being in the major cities of the central Middle East: Kufa, Baghdad, and [old] Cairo. In the course of time, however, they came to be distributed geographically across the Muslim world so that each madhhab dominated one region—the Mālikīs in North and West Africa east to Upper Egypt; the Shāfiʿīs in parts of the central Middle East (Lower Egypt, Syria) and along the coasts of the Indian Ocean from East Africa over the Arabic peninsula to southeast Asia; and the Ḥanafīs mostly in the north, in particular in areas governed by the Turks and Mongols, that is, in Central Asia, Mughal India, and any area later falling within the Ottoman empire. The Ḥanbalīs, the fourth and smallest of the schools, was mostly present as a minority in some of the cities of the central Middle East, but came to dominate parts of the Arabian peninsula with the Wahhābī movement from the eighteenth century onwards.
These four schools of law, which are mutually accepting, are all Sunnī and are not specifically linked to any differences in theology. From the tenth century on, the minority Shīʿīs also gained political ascendance in certain regions of the Islamic world; madhhab formation among the Shīʿa mostly followed its theological differences and three separate madhhabs were formed, one each for the Twelvers (Imāmīs), Ismāʿīlīs, and Zaydīs. The Ibāḍī minority, which came to rule in Oman, also has its own madhhab. Although there are differences of opinion between all these schools, mostly found in details, the clearest distinction may be in the less complex Twelver (Jaʿfarī) inheritance law, which developed later than its Sunnī counterpart. This last school of law was embroiled in a methodological dispute in the early modern period that pitted those who emphasized the importance of scholarly ijtihād against those who relied only on the ḥadīth of the Prophet and the Shīʿī imams—the Uṣūlīs and the Akhbārīs, respectively; the former largely won out and now dominate Shīʿī law.
The Law as Literature.
The law was thus not codified in any fixed form as there was no authority that could do so. It existed rather in the form of a scholarly literature and through the efforts of jurists to extract judgments (aḥkām, sg. ḥukm) from it. Islamic law is thus often called a “jurist’s law” as opposed to European civil- and British common-law systems. The views and statements of the early “founders” of the schools of law were collected in basic works purportedly composed by them or by their closest students. These were then commented upon and expanded through commentaries (shurūḥ, sg. sharḥ) as well as later super-commentaries (ḥāshiyāt), in a complex system of inter-connected texts with which the scholar had to be familiar. The commentaries aimed to explain the views stated by the founders and if necessary defend them against criticisms, but could in effect also be used by later scholars to introduce new understandings and points of view under the cover of explaining a statement by the early founders. The authority of the madhhab was thus based on the stature given to its founder, and later real developments would have to be sanctioned through a link to him.
This linking of authority of madhhab rules to the person of the founder echoes in many ways the earlier linking of the law to the authority of the Prophet himself. Both of these personal identifications are essential to the credibility of the law, and the same way Muslim scholars generally will insist that sharia rules are based on the Prophet’s example and the divine revelation, the followers of any particular madhhab will most often defend their school’s view on the authority of the founder, even when the actual rule may have been elaborated later and take later contexts into consideration.
It is likely that in both cases the authority and perceived status of the early authoritative figure grew as the lifetime of the individual in question receded into the past. There is no reason to doubt that contemporaries of the Prophet remembered his words and actions and that these memories were passed down. Similarly, the statements of famous early scholars such as Mālik and Abū Ḥanīfa were noted, discussed, and remembered after their time. However, this does not mean that these stories necessarily had the absolute authority that they later came to have. Studies have shown that many of the views later ascribed to Mālik did in fact circulate among his contemporary group of scholars in Medina and Cairo. But other scholars of that group did not link these views particularly to Mālik nor accord him any special veneration. Thus while these certainly may have been views that Mālik actually subscribed to, they were when they later became identified with the school that took Mālik’s name primarily presented as views that Mālik had pronounced, and later Mālikīs therefore had to accept and follow. As the identity and internal authority of the schools increasingly came to be focused on the founder, their perceived status rose over time such that they came finally to be seen as almost infallible. Some late jurists with mystical tendencies even regarded the founders as having received supernatural knowledge by meeting directly with the Prophet himself. If such was the case, no latter-day scholar could, of course, expect to question or amend the views that had this stamp of approval.
The fiqh literature was initially mainly argumentative, comprising disputes between the schools or within them; in their presentation of different opinions and support for each, it was a literature for and by scholars. As the opinions on the various issues eventually settled into an more or less established set of rules that had attained consensus within the school, the need arose for simpler and more practical manuals that could be used by judges and understood by non-scholars. These were called “abridgments” (mukhtaṣarāt), and appeared from the fourteenth century onwards. The most famous of them was possibly the Mukhtaṣar of the Egyptian Khalīl b. Isḥāq (d. 1350) from the Mālikī school. The mukhtaṣarāt did not discourse on the topics or present alternate views, but simply stated that on a certain issue the agreed opinion was the following ḥukm. These abridgements were not properly codified laws since they had no formal authority to back them. A judge was free to (and often did) deviate from the consensual opinion if he had sufficient competence and knowledge to find another opinion that could also be supported within the school. But the rules of the abridgment did increasingly come to be seen as the views of the school.
There were also other types of legal literature, such as the succinct qawāʿid, short formulas that were meant to aid the student by summing up principles important for the law, as in “acts are [evaluated according] to intention.” Another very important genre of legal literature collected together judicial opinions (sg. fatwā) of the specialized legal scholar (muftī).
The Judge and the Legal Scholar.
The Islamic legal system includes two kinds of scholars who had structurally different tasks, the judge (qāḍī) who was in charge of the sharia court (maḥkama), and the jurist or legal scholar (muftī) who expounded on the law. It was the job of the qāḍī to establish the facts of the case before him, to evaluate the veracity of the evidence, and to make a decision in favor of one of the parties. The qāḍī was not to interpret the law to be applied if there was any doubt. In everyday cases he would, of course, know the relevant legal rule and needed no help in this. But if the use of the law was unclear or there were disagreements as to how the legal texts of the school should be understood, then he should consult a muftī.
The muftī on his part had no responsibility for the actual case or its facts, nor did he pass judgment; his role was only to elaborate on the law. He would often not be told any material facts such as the names of the parties involved, but only posed a question in the form, “If a case has such and such properties, what is then the appropriate ruling,” to which he answered, “If that is the case, then the most appropriate is such.” Such an answer is known as a fatwā, and is thus completely conditional upon the supposition of facts made in the question. Whether these facts are actually correct or not is the judge’s responsibility. Thus both parties to a conflict may approach a muftī of their choice, present the case as they understand it, and turn up in court with conflicting fatwās. The judge cannot reject a fatwā due to its content (this is the muftī’s authority), but he can reject its relevance to the case in question and thus ignore it.
In this sense, the muftī was an aide to the judge, but also his superior in knowledge of the law. However, in practice the distinctions between the two offices were not always so sharp. Going from one position to the other—in either direction—would often be a step on a jurist’s career path that was decided on the size of the salary or the importance of the town he moved to; these factors determined whether the change in position was a promotion or a demotion. Also, while in theory the muftī had no place in the courtroom itself, a resident muftī might in many cases be present. Often a verdict in serious criminal cases required the approval of a senior muftī, even if the legal basis for the decision was unproblematic. This was in particular the case of death sentences, which generally required a second opinion from a muftī, who then evidently knew and could evaluate the actual facts of the case. At the other end of the scale, a local muftī, perhaps meaning anyone with some religious learning, could himself settle disputes between parties in small villages that did not have a court. Such a solution would then not carry the authority of the state, but the social pressure of the community would compel the parties to accept the muftī’s decision.
The sharia does not actually recognize the distinction between private and public law. Thus criminal cases and arbitration between private parties are treated in the same manner, most often in the same court. There is no public prosecution, every criminal case beginning with an injured party suing the suspected perpetrator. Most of the court procedures are identical in civil and criminal cases, with the plaintiff making a claim against the defendant and having the onus of presenting evidence for his case. The judge may make his own inquiries by asking expert witnesses to testify or in other ways, but the burden of proof rests squarely on the plaintiff. If the plaintiff is not able to prove his case satisfactorily, the defendant is acquitted; he is asked to swear to his innocence, and having done so has won the case. But if the judge finds the evidence compelling, it is the plaintiff who is “given the oath” and by swearing to the truth of his claim wins the case. In criminal cases, the judge then passes judgment, and it is up to the court officials, police, or prisons to effectuate the sentence.
The judge thus decides between right and wrong, but he can also have an important role as a middle-man and effect a compromise between civil parties, continuing the older function of ḥākim, arbitrator. The judge also had a number of other functions, such as officiating at marriages, authorizing marriage contracts, overseeing religious trusts (waqfs), etc.
The rules of procedure in Islamic law were very strict and it was often difficult to get convictions even when the facts of the matter appeared to be evident. Short of admission, the main type of evidence was the testimony of witnesses. To prove a case, a plaintiff had to provide the required number of firsthand witnesses, normally two, to give identical evidence. The witnesses had to be morally upright and free Muslims, normally male (although in most cases two Muslim females could substitute for one male). Many court disputes were about the status of witnesses: their moral standing, whether their statements coincided—both had to be the same type of witnesses, not one having heard and the other seen the act—and so on. In some cases, policemen could not be accepted because their closeness to the state made them morally suspect; a witness need not be a notable—a morally unblemished laborer was fully acceptable.
If the required number of witnesses was provided and they could not be challenged, the case was proven and closed. If not, the judge could use circumstantial evidence to reach his conclusion, such as documents or material objects, but it had to supported by witness statements as to its relevance. Particularly in criminal cases, however, if the strict rules of procedure were not met, the case had to be dismissed as inconclusive.
Who Was the Law for?
The sharia is intended to regulate a Muslim community in a Muslim state. Thus at least in theory, religious affiliation is paramount for its application. Accepted religious minorities (dhimmīs) had legal autonomy, that is, the Muslim state did not intervene in intracommunity affairs, but in disputes between Muslims and dhimmīs, as well as between parties of different religions (e.g., Jew against Christian), the Muslim sharia was applied by a qāḍī. Otherwise, non-Muslims could not be admitted to a sharia court and could not, for example, be used as witnesses in a case between Muslims.
The application of this exclusion clearly varied. Sometimes it was strictly upheld, while in other periods or towns it appears that all members of the local community used the same court without much regard for the religious affiliation of the parties involved. The same variation probably applied in relation to women. Free Muslim women did have access to the court, and were in many cases very active on their own behalf; in family matters the court was often seen as a way to protect the wife’s rights against the capricious will of the husband. But women might also avoid this public arena and let themselves be represented, as plaintiffs or defendants, by a male spokesman, unlike male parties who had to attend in person. The sharia does not assume an equality of individuals. Both the rules of civil cases and the application of criminal penalties distinguished between male and female, Muslim and non-Muslim, free and slave, and in many cases even between social classes.
In cases where the sharia court could not reach a verdict, the aggrieved party could often go to other courts. Although the sharia was the only law of the Islamic state, the qāḍī’s court was not the only court. These other tribunals were generally linked more closely to the state, and thus provided the ruler with the legal institution that the legal scholars had deprived him of by insisting that the sultan or caliph had no business in deciding on God’s law.
These courts were often called the “sultan’s council” (majlis), but in the literature they are subsumed under the concept of maẓālim courts. They certainly meant to apply the sharia, but were freed from some of the procedural constraints of the actual qāḍī’s courts. Their rationale was to “right wrongs” that the sharia courts proper were unable to address. The sultan’s council was generally considered to work hand in hand with the sharia courts. Thus the sultan would normally have qāḍīs, muftīs, or both sitting in attendance to his council and the sultan’s judgment was to conform to the “spirit of the sharia” if not the letter of the law. Other courts also, such as the “magistrate courts” of the police (shurṭa), applied the “content” of the sharia norms without being fettered by its procedures.
Areas of Law.
All sharia cases are grouped into one of five categories known as “the five decisions” (al-aḥkām al-khamsa). An act may be mandatory (wājib or farḍ), meaning that it is a sin or crime not to perform it. A mandūb act is recommended, but it is not a sin to omit it. An act that is neither recommended nor disliked is neutral (mubāh), that is, God has no particular opinion about it. If an act should be avoided, but is not an actual sin, it is “despised” (makrūh). Finally, an act that is a sin or a crime to commit is ḥarām. The term ḥalāl, “allowed,” covers the first three or four categories; there is disagreement about whether the despised makrūh acts are included in ḥalāl. The law of the courts, however, is only concerned with the mandatory, the forbidden, and the neutral. Acts that are mandūb or makrūh are matters between the believer and God, not for the court to decide upon. An act may also be committed out of necessity, ḍarūra, such as one to prevent a greater sin, which also influences its legal as well as moral verdict.
The sharia encompasses all areas of human activity, but can be separated into different fields. What we call “criminal law” falls in the sharia into three or four categories that are treated in widely divergent ways. Five specific crimes are considered “crimes against God” and fall into the category of ʿibādāt. They are set apart because the punishment for them is based directly on the revealed text, and thus cannot be subject to human interpretation, notwithstanding the fiqh process that went into formulating their legal form. They are known as the ḥudūd crimes. There is some disagreement as to which crimes fall under the ḥudūd category, but the normal list is: theft (penalty is amputation of the right hand), “highway robbery” (ḥirāba, often translated as “rebellion”; death), drinking wine (80 lashes), committing fornication (100 lashes or death), and unsubstantiated accusation of fornication (qadhf, 80 lashes).
On the basis of a ḥadīth asking for restraint in applying these rules, jurists developed various sets of restrictions (shubuhāt, or “similarities”) that specified in what cases the ḥudūd rules should not be applied. In many cases these restrictions, along with the general restrictions on evidence in sharia courts, became so stringent that it was virtually impossible to convict anyone under these rules (except for qadhf, which was not restricted by shubuhāt). However, if there was political and judicial will, we find in periods a greater willingness to apply them.
Murder or other crimes that relate to bodily harm are not part of the ḥudūd. They are judged according to a version of lex taliones called qiṣāṣ. If the death or harm was caused intentionally, the victim (or his heirs) was given the choice between retaliation or recompense. If he chose the former, a disfigurement similar to that the victim received was applied to the culprit, for example, an eye removed for an eye blinded. If the victim chose recompense, he was free to ask for whatever sum of money he wanted. In the event of accidental harm, only recompense (diya, “blood money”) was allowed, and here the court followed established fiqh guidelines that determined the rate for each type of injury.
All criminal cases that were neither ḥudūd nor bodily harm were termed taʿzīr, where the verdict was largely left to the qāḍī’s discretion, thus allowing adjustments to the custom and expectations of the time and place. Theft that did not fall under ḥudūd rules (because of the shubuhāt restrictions, i.e., the item stolen had been left in the open, was of little value, etc.) was often treated as “unlawful appropriation” (ghasb), whereby the aim was primarily to restore the stolen object to its owner in its original state rather than to sanction the act of appropriation.
The largest area for conflict concerned the family, personal status, and inheritance. As marriage and divorce were primarily seen as legal matters where the content of the marriage contract was of paramount importance, the courts were often used to resolve conflicts within families. The qāḍī was regularly asked to intervene in issues such as economic maintenance or the domicile of husband and wife. In these fields the gendered nature of the sharia stands out clearly. While a marriage may be described as an exchange of (differentiated) rights and duties between husband and wife, divorce was without a doubt a male prerogative, even if all madhhabs allowed the wife some options to seek dissolution of a marriage (the Ḥanafī school hardly so, while the Mālikī applied a fairly wide interpretation of “harm,” ḍarar, that allowed the qāḍī to dissolve the union).
The Ottoman empire expanded the state’s intervention into legal affairs, not just by applying the law but also by influencing its content. The early sultans began to apply rules, kanun (< Ar. qānūn), that were collected into a separate law book, kanun-name, which dealt with primarily administrative and economic matters but also criminal law. The kanuns were by definition subservient to the sharia and were only meant to fill those gaps where the sharia did not provide clear answers. However, it soon became clear that judges in Ottoman-controlled lands had to give the kanun precedence but could apply sharia according to the fiqh literature if the kanun did not provide an answer. In many matters, such as in criminal law, the kanun followed the content of the sharia fairly closely, so the difference may not always have been dramatic.
The Ottomans also reinforced state control by drawing the legal professions closer under its management. Qāḍīs had always been appointed by the state and could be deposed by the governor or sultan at will (often, however, through the intermediary of a chief judge, qāḍī al-quḍāt). Muftīs, on the other hand, were as religious scholars generally only recognized through the acceptance of their peers and through the public seeking them out for fatwās. Some earlier rulers did draw some renowned muftīs into closer contact by appointing them as advisors in their council, but the Ottomans made the muftīs akin to state employees. They were salaried and a hierarchy was established, with a chief muftī (shaykh al-islām) at the top. Scholars had to pass formal exams to gain access to this source of remuneration. These Ottoman reforms were most influential in the central regions of the empire; in the provinces as well as on the local village level, muftīs continued to be recruited informally as before.
The Ottomans also favored the Ḥanafī madhhab and made this the official school of law of the empire to be applied in the court (alongside kanun and local custom, örf). In Anatolia and the northern parts of the empire, this school was dominant anyway, but in many of the Arab lands it was not. Other madhhabs were still adhered to in matters of religious ritual, so believers maintained their identication with Mālikism or Shāfiʿism. Jurists of these schools also continued to practice—either in separate courts, which parties could choose to consult, or attached to the state courts as assistant judges, advisors to the main Ḥanafī judge, or in other ways. The central cities of the Middle East had for centuries known a cosmopolitan mixture of madhhabs, which the Ottomans continued, but now with one madhhab in clear preference, unlike in earlier periods where a balance between the four was sought in the large towns.
The advent of European influence in the nineteenth century furthered the development of greater state control over the legal arena. As before, state courts and sharia courts continued to exist alongside each other. But while the sultanic courts were in theory and largely also in practice subservient to the ideals of the sharia and should implement those, the Europeans brought new legal norms that were in no way related to the sharia and Islam, and in the course of time these came to dominate over the sharia. Criminal law, which the political authorities had always kept a grip on, was transferred to new laws inspired by Europe. Foreign traders refused to submit to Islamic economic regulations, so the finance-starved Middle Eastern states soon came to apply European, in particular French, law. Judicial administrative procedures were also brought into line with European practice. Appeals courts, new to the sharia court system, were set up. In the sharia courts, the parties presented their own cases and the judge ensured their rights. Now, professional lawyers and barristers, increasingly educated in Western law only, were introduced to plead the cases. While Islamic terms such as qāḍī and maḥkama were preserved, these now mainly came to mean judge and court in the Western sense. Only in family law were the sharia rules largely preserved. In the course of the twentieth century, most countries finally abolished the parallel sharia courts altogether and brought all legal matters under the “civil” state court system.
Thus family and personal matters remained in many Muslim countries the last stronghold for the sharia. This meant that in this field (but sometimes also in other fields related to religious identity, such as the permission to serve alcohol), the classical divisions along religious lines were preserved. Most Muslim countries with Christian or Jewish minorities allowed these to maintain a separate family law, codified by the state or, more usually, left to each religious authority to define. Some countries (such as Lebanon) also allowed different Islamic currents—e.g., the Shīʿīs and Druze—to apply their own family law, while others (such as Syria) had only one, state-determined, Muslim family law.
While the governing law related to family and personal status matters was based on the sharia to a much greater extent than in other fields of law, there was also a fundamental shift in who defined this law. In most countries family and personal status laws were codified in the same way as other laws by a legislative body of some kind. Thus they were subject to the authority of the state, unlike the autonomous control of the fiqh scholars of pre-modern times. The state as legislator also had the opportunity to influence the content of the law, insofar as the community was willing to recognize and adopt such changes. In this way most modern states have introduced amendments and modernizations to family law. Often this is done by drawing upon the differences between madhhabs. While the classical law did not—or only to a very limited degree—allow a madhhab’s interpretation to be influenced by the views of other schools, modern states often use a “cut-and-paste” (talfīq) method, picking the rules or interpretations most in line with their wishes from whichever madhhab they want, for example, the more liberal view on divorce from the Mālikī school and the more liberal view on marriage from the Ḥanafī school. Thus they may end up with a hybrid “state madhhab” unlike any of the original four, even though each individual rule may be based on fiqh. By the same process, each modern Muslim state ends up with its own, national “sharia” law that differs at least in detail from the sharia of other states, rather than the universal madhhabs of the classical period that transcended political frontiers. Still, the main lines of classical sharia family law can be said to persist in this development, and most actors will accept these laws as variations of the sharia.
The Islamic resurgence of the last quarter of the twentieth century brought this issue to the fore again, with renewed calls by Islamist groups for full implementation of the sharia. By this is meant expanding the sharia’s scope from personal status law to all fields of law, and for many the symbolic and key aspect is to implement Islamic criminal law, in particular the ḥudūd rules. Since they are considered to be directly based on the divine text rather than on the jurists’ interpretation or ijtihād, it is particularly important—at least symbolically—to follow God’s direct statements in these matters. The ḥudūd are thus seen by Islamist groups as the core of the divine sharia, and the restraints that later jurists built in to limit their application (the shubuhāt rules) are often rejected, at least in theory. Several Muslim countries under Islamist influence have thus reintroduced the ḥudūd, such as Iran, Sudan, certain states in Nigeria, and others. This is in many cases, however, more a matter of symbolism—the rules had to be on the books and some cases brought to trial to show they were enforced—for they are in practice often used only sparingly or not at all. Clearly, this varies in accordance with the political vagaries of each country, as well as with the enthusiasm of the legal institutions to prosecute and convict such cases.
Thus the role of the sharia has become a contested topic in many countries, and may have, for example, been a contributing factor to the break-up of at least one Muslim state, Sudan. While the term clearly has more of a symbolic value than a real value for many—calling up a purity of religious ideals—it has also brought about actual legal reform in a more conservative direction in some Muslim countries. Only Saudi Arabia may be said to follow a classical qāḍī court system, but other countries have established review boards of some sort, composed of religious scholars, in order to vet proposed laws. On the other hand, secular forces and in particular women’s movements have argued for either a reinterpretation of the sharia to allow for greater flexibility in application or a reduction in impact of classical sharia rules altogether. In some countries, such as Morocco, such argumentation has resulted in considerable revisions to the family law, despite their still being drawn from concepts and principles derived from the sharia. While most Muslim countries continue to refer in their constitution to the sharia, or use formulations such as “based on the principles of the sharia,” to describe the basis for their legal system, the actual interpretation and content of the sharia seem to allow for greater variation, with some developments embracing traditionalism and others modernized reform.
- Brockopp, Jonathan E. Early Mālikī Law: Ibn ʿAbd al-Ḥakam and His Major Compendium of Jurisprudence. Leiden: Brill, 2000.
- Brown, Nathan J. The Rule of Law in the Arab World: Courts in Egypt and the Gulf. Cambridge, U.K.: Cambridge University Press, 1997.
- Cook, Michael. Commanding Right and Forbidding Wrong in Islamic Thought. Cambridge, U.K.: Cambridge University Press, 2000.
- Calder, Norman. Studies in Early Muslim Jurisprudence. Oxford: Clarendon, 1993. A very controversial thesis on the dating of early law.
- Gleave, Robert. Inevitable Doubt: Two Theories of Shī‘ī Jurisprudence. Leiden: Brill, 2000.
- Hallaq, Wael B. A History of Islamic Legal Theories: An Introduction to Sunnī uṣūl al-fiqh. Cambridge, U.K.: Cambridge University Press, 1997. An in-depth study of the thinking behind the Sharia.
- Hallaq, Wael B. Authority, Continuity, and Change in Islamic Law. Cambridge, U.K.: Cambridge University Press, 2001.
- Hallaq, Wael B. Sharia: Theory, Practice, Transformations. Cambridge, U.K.: Cambridge University Press, 2009.
- Imber, Colin. Ebuʾs-suʿud: The Islamic Legal Tradition. Edinburgh: Edinburgh University Press, 1997. On the most famous Ottoman shaykh al-islām.
- Jackson, Sherman A. Islamic Law and the State: The Constitutional Jurisprudence of Shihāb al-Dīn al-Qarāfī. Leiden: Brill, 1996. Puts the later development of the madhhabs into new perspective.
- Masud, Muhammad Khalid. Shāṭibī’s Philosophy of Islamic Law. Islamabad: Islamic Research Institute, 1995. Important for the concept of maṣlaḥa, God’s intentions with the law.
- Melchert, Christopher. The Formation of the Sunni Schools of Law, 9th-10th Centuries C.E. Leiden: Brill, 1997. A basic work for the historical dating of early law.
- Messick, Brinkley. The Calligraphic State: Textual Domination and History in a Muslim Society. Berkeley: University of California Press, 1996. Classical study of how legal texts meet practice in modern Yemen.
- Motzki, Harald. The Origins of Islamic Jurisprudence: Meccan Fiqh before the Schools. Translated by Marion H. Katz. Leiden: Brill, 2002.
- Müller, Christian. Gerichtspraxis im Stadtstaat Córdoba: Zum Recht der Gesellschaft in einer mālikitisch-islamischen Rechtstradition des 5./11. Jahrhunderts. Leiden: Brill, 1999. The most detailed modern study on “state courts” in medieval Islam.
- Peters, Rudolph. Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century. Cambridge, U.K.: Cambridge University Press, 2005.
- Powers, David S. Law, Society, and Culture in the Maghrib, 1300-1500. Cambridge, U.K.: Cambridge University Press, 2002.
- Schacht, Joseph. The Origins of Muhammadan Jurisprudence. Oxford: Clarendon Press, 1979. A classical work of the “revisionist” history of the Sharia.
- Schacht, Joseph. An Introduction to Islamic Law. Oxford: Clarendon Press, 1991. Still the unavoidable basic study in the field.
- Shaham, Ron. Family and the Courts in Modern Egypt: A Study Based on Decisions by the Sharī‘a Courts, 1900–1955. Leiden: Brill, 1997.
- Skovgaard-Petersen, Jakob. Defining Islam for the Egyptian State: Muftis and fatwas of the Dār al-iftā. Leiden: Brill, 1997. On the modern state’s use of the traditional muftī office.
- Tillier, Mathieu. Les cadis d’Iraq et l’état abbasside (132/750-334/945). Damas: IFPO, 2009.
- Tucker, Judith E. Women, Family, and Gender in Islamic Law. Cambridge, U.K.: Cambridge University Press, 2008.
- Tyan, Emile. Histoire de l’organisation judiciaire en pays d’Islam. Leiden: Brill, 1960. Still the basic study on courts and classical court practice.
- Vikør, Knut S. Between God and the Sultan: A History of Islamic Law. London: Hurst, 2005.
- Vogel, Frank E. Islamic Law and Legal System: Studies of Saudi Arabia. Leiden: Brill, 2000. Fundamental study on the state today that follows classical Sharia practices most closely.
- Zubaida, Sami. Law and Power in the Islamic World. London: Tauris, 2003. A political sociologist’s essay on the modern history of Islamic law.
Articles and Edited Works
- Bearman, Peri, Rudolph Peters, and Frank E. Vogel, eds. The Islamic School of Law: Evolution, Devolution, and Progress. Cambridge, Mass.: Islamic Legal Studies Program, Harvard Law School, distributed by Harvard University Press, 2005.
- Hallaq, Wael B. “From fatwās to furūʿ: Growth and Change in Islamic Substantive Law.” Islamic Law and Society 1 (1994): 29–65.
- Krawietz, Birgit. “Cut and Paste in Legal Rules: Designing Islamic Norms with talfīq.” Die Welt des Islams 42 (2002): 3–40.
- Layish, Aharon. “The Transformation of the Sharia from Jurists’ Law to Statutory Law in the Contemporary Muslim World.” Die Welt des Islams 44 (2004): 85–113.
- Masud, Muhammad Khalid, Brinkley Messick, and David S. Powers, eds. Islamic Legal Interpretation: Muftis and Their Fatwas. Cambridge, Mass.: Harvard University Press, 1996. Comprehensive studies on fatwās in theory and practice.
- Masud, Muhammad Khalid, Rudolph Peters, and David S. Powers, eds. Dispensing Justice in Islam: Qadis and Their Judgments. Leiden: Brill, 2006.
- Melchert, Christopher. “Religious Policies of the Caliphs from al-Mutawakkil to al-Muqtadir, A.H. 232–295/A.D. 847–908.” Islamic Law and Society 3 (1996): 316–342.
- Peters, Rudolph. “From Jurists’ Law to Statute Law or What Happens when the Shariʿa is Codified.” Mediterranean Politics 7 (2002): 82–95.
- Welchman, Lynn. “Islamic Law: Stuck with the State?” In Religion, Law and Tradition: Comparative Studies in Religious Law, edited by Andrew Huxley, pp. 61–83. London: RoutledgeCurzon, 2002.