By Ayman Daher (2005)
Islamic law is a complete legal system. It is not limited to “religious” aspects. Under Islam, all human behaviour is in some manner religious. Therefore, there is always a moral and immoral way of acting. There are, in fact, five classifications:
Wajib : Actions obligatory on Believers
Matlub : Desirable or recommended (but not obligatory) actions
Mubah : Indifferent actions
Makruh : Objectionable, but not forbidden actions
Haram : Prohibited actions
Islamic law deals with obligations, property, family law, criminal law, administrative law, etc. The religion of Islam and the government are one.
There are three words that are used to mean “law” in the Islamic tradition: fiqh, which can be loosely translated as jurisprudence; qanun, which encompasses positive law rules that are set, such as state-made law; and shari’a, the generic term for Islamic law. Shari’a denotes Islamic law as a whole. It is meaning was extended to cover all issues which were considered vital to human existence, including what God has decreed for the people in terms of fasting, prayer, pilgrimage, marriage, contracts, succession and war. Shari’a is thus the all-encompassing notion of the Islamic tradition; it contains written sources, qawanin (plural of qanun), and interpretations of those sources. In principle, the shari’a recognizes only two written sources: the Qur’an, the divine Book revealed to the Prophet Muhammad in the early 7th century AD, and the sunna, the reported compilation of the conversations (hadith) and deeds of the Prophet collected after his death by his Companions. The Qur’an counts approximately five hundred verses that deal with law and thus acts as foundational “Code” of sorts. This basic foundation lies under a heavy field of legal texts that were written by jurists. This is fiqh, which also means knowledge, understanding and comprehension. It refers to the legal rulings of the Muslim scholars, based on their knowledge of the shari’a; and as such is the third source of rulings. The science of fiqh started in the late 7th century AD, when the Islamic state expanded and faced several issues that were not explicitly covered in the Qur’an and Sunnah. These writings are interpretive and, although not strictly authoritative, are fundamental to the development of the law.
THE JURIST IN ISLAM
The jurist is Islam, is both a legal and religious expert. Muslim jurists have been known by different titles. Fuqaha are the class of Muslim scholars who dealt in theoretical Islamic Law, or fiqh while a mufti gives legal responses (fatwa) to people’s questions. It is the mufti, or jurisconsult, that attracts attention.
In order to be qualified to interpret the sources of law, a jurist had to master many branches of knowledge. Deep knowledge of the Qur’an and the hadith are essential of course, as well as an understanding of the science of interpreting these sources. his learning would be done at the hands of another learned man, by following in his footsteps and by attending meetings at assemblies . Knowing the history of the law and the schools of law, their differences and legal precedents (“decisions” of other jurists in the past) is also part of the curriculum. Other disciplines such as logic, history, rhetoric and general knowledge as well as specialized areas like commerce or international relations might be important in deciding specific cases. Being proficient in commercial matters was expected. Indeed, most jurists were also merchants and tradesmen. Muslim jurists were scholars with specialized professional training, but their authority was very limited. There is no clergy or priesthood in Islam, and no central authority hands out final judgments. The source of a Muslim jurist’s authority comes only from their recognized knowledge, not from the government, and not from a central religious authority. Judges (Qadi) are appointed and have the backing and support of the states. But judges’ rulings, however, are not the foundation of Islamic law, but only its application to specific cases and often, one could go directly to a mufti to resolve an issue and avoid the appearance in front of a judge.
Islamic Law thus allowed affluent learned people to become legally authoritative. These men become authoritative if they could, by a discussion, internal to the community, agree or supplant the arguments of the other. The common pattern for jurist-made law is as follows: (1) law is not created primarily by legislation or by judges, (2) in their capacity as jurists, these individuals are largely independent of government, (3) their prestige, fundamental for their role, is independent of any job that they hold, indeed being a jurist was not a profession: they took no money for their services, (4) the materials on which they work are usually older, regarded as authoritative, but are insufficient and require a great deal of interpretation. Islamic law is religious; and religious law is a search for fundamental truth. But the shari’a is “of this world and the other”. In other words, it is both religious law as well as civil law. In modern times it has even extended to cover web-surfing and cellular phone usage.
The role of the Islamic jurist in the incorporation of “foreign” ideas to the shari’a can therefore be seen as primordial. It is the jurist that became the link between the customary interactions of the population and the written qawanin. By analogy and reasoning, the mufti rationalized behaviours to fit general principles of law. Unlike the judge, who deals with discreet matters, the jurist must account for dialectic reasoning when rendering opinions. This adds to the law an analytical thread giving regard to broad ideas and notions as well as “on the ground” policy concerns. Jurist-made law is thus a way to systemize popular behavioural interaction into broad notions of justice. The Volkgeist is thus “sublimated” from society and “synthesized” back to the people.
It is the unique structure of jurist dominated legal systems that allows them to be so malleable to outside influence. In addition, Islam is individualist and decentralized. This decentralization does not allow for a predominant figure to emerge or a unique set of ideas to dominate. It is because of the looseness of this structure, the liberalism of the institutions, that external influence is particularly strong on Islamic Law. In essence, any rule that makes sense will find at least some followers.
Sources: H.A.R. Gibb, Mohammedanism, An Historical Survey (London: Oxford University Press 1950) at 77. (Author Unknown) Fixed and Variable Aspects of Islamic Legislation, (Tehran: Al-Balagh Foundation Publishing 2001). C. Mallat, “From Islamic to Middle Eastern Law, a Restatement of the Field,” 51 (2003) Am. J. Comp. L. 699 at 719. This lasted until the custom started, after 1200 AD, to assign an official state Mufti with legal authority. “Fatwa Online” Islamonline (05 December 2004), online: http://www.islam.tc/ask-imam/index.php See generally A. Daher, La construction de l’islamité et l’intégration des musulmans au Québec dans le discours de leurs leaders (Doctorat en sociologie, U. du Québec à Montréal, 1999) and P. Berger,. La religion dans la conscience humaine, (Paris: Centurion Presse) 1971.
