Shari'ah Law - An Introduction  

Mohammad Hashim Kamali

                                                                        

 

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Details: Paperback | 398 pages | ISBN 1-85168-565-0 | Feb 2008

 

 

INTRODUCTION

This chapter begins with advancing a perspective on the origins of

SharÊ‘ah in the Qur’Én and the formative stages of its development in

the early decades of Islam. Attention is also drawn in following paragraphs

to the overly legalistic tendency which the latter-day Muslim

jurists (mutakhkhirËn) have embraced at the expense sometimes of

the spirit of Islam, its moral and devotional teachings on matters of

personal conduct. This tendency is manifested in the way authors

have expounded the relationship of law and religion so that the

Sharʑah is often presented as the core and kernel of religion and the

essence of Islam itself. The late Joseph Schacht (d. 1969) actually

described the Sharʑah in these words. So the tendency to overlegalize

Islam is common across the board in the writings of both

Muslims and Orientalists. I believe this to be an exaggeration which

does not find support in our reading of the Qur’Én and Sunnah, as I

shall presently explain. It is questionable whether Islam was meant to

be as much of a law-based religion as it has often been made out to be.

The same tendency is noted in relationship to the role of state and religion

in Islam. Hence an attempt is also made in the following paragraphs

to explore the idea of an Islamic state (dawlah Islamiyyah), its

origin and related developments, and in this context I have drawn

attention especially to the doctrine of siyÉsah shar‘iyyah (SharÊ‘ahoriented

policy) and the role it ought to play in the understanding of

an Islamic polity and state. This is followed by an overview of more

recent writings on caliphate and Islamic state. The last section of this

chapter consists of brief summaries and provides an inkling of what

the reader should expect under the various chapters that constitute the

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bulk of this volume. A slightly different summary of the book also

appears in my Conclusion at the end of this volume.

THE ORIGINS OF SHARÔ‘AH

Sharʑah literally means a way to the watering-place or a path apparently

to seek felicity and salvation. The word occurs only once in the

Qur’Én and it is used in contradistinction with ÍawÉ (whimsical

desire). The verse thus reads in an address to the Prophet Muhammad:

Thus we put you on the right way [sharʑatan] of religion. So follow

it and follow not the whimsical desire (ÍawÉ) of those who have no

knowledge. (45:18)

In an explanatory note on this verse, ‘Abdullah Yusuf Ali’s translation

reads ‘sharÊ‘atan in this verse is best translated as “the right way of

religion” which is wider than the legal provisions which were mostly

revealed in the Madinan period, long after this verse had been

revealed’. Since SharÊ‘ah as a legal code did not exist at the time this

verse was revealed, the Qur’Énic reference is to its literal sense of

belief in Islam (God’s appointed way) and avoidance of disbelief. The

renowned Qur’Én commentator al-BayÌÉwi noted that the reference

to ÍawÉ in this verse is to the pagan beliefs of the people of Makkah

who believed in idolatry and association of idols with supernatural

powers.

Since Sharʑah is a path to religion, it is primarily concerned with

a set of values that are essential to Islam and the best manner of their

protection. Islam stands on what is known as the five pillars (al-arkÉn

al-khamsah), namely belief in God, ritual prayers, fasting, the hajj

and giving the poor due (zakah). Faith in God, the manner of worshipping

Him and observance of the five pillars of Islam thus constitute

the essential concerns of Sharʑah. The manner of worshipping

God is expounded in that part of SharÊ‘ah which is known as ‘ibÉdÉt

(devotional matters). Then there is the concern with justice, which is

a major preoccupation of Sharʑah. Justice is concerned with the

manner in which God Most High wants His creatures to be treated,

2 Sharʑah Law: An Introduction

􀋸􀏊􀋶􀎒􀍉􀎘􀋴􀎗 􀎎􀋴􀏟􀋴􀏭 􀎎􀋴􀏬􀋸􀏌􀋶􀎒􀍉􀎗􀎎􀋴􀏓 􀋶􀎮􀋸􀏣􀋴􀎄􀋸􀏟􀎍 􀋴􀏦􀍋􀏣 .􀏥􀋴 􀏮􀏤􀋵 􀏠􀋴􀋸􀏌􀏳􀋴 􀎎􀋴􀏟 􀏦􀋴 􀏳􀎬􀋶 􀏟􀍉􀎍 􀋯􀎍􀏮􀋴 􀋸􀏫􀎃􀋴 􀎔􀋳 􀏌􀋴 􀏳􀎮􀋶 􀎷􀋴 􀏰􀏠􀋴􀏋􀋴 􀏙􀋴 􀎎􀏨􀋴􀋸􀏠􀏌􀋴 􀎟􀋴 􀍉􀏢􀎛􀋵

ch1.qxp 12/8/2007 12:13 PM Page 2

expounded mainly under the general heading of mu‘ÉmalÉt (civil

transactions). One of the areas of primary concern to Sharʑah is protection

and advancement of the five essentials (al-ÌaruriyÉt alkhamsah),

namely of life, religion, property, intellect and family.1 It is

often said that Sharʑah in all of its parts is concerned with the manner

of best protecting these values. Fiqh is an equivalent term to Sharʑah

and the two are often used interchangeably; the two words are, however,

not identical. Whereas Sharʑah is conveyed mainly through

divine revelation (waÍy) contained in the Qur’Én and authentic

ÍadÊth, fiqh refers mainly to the corpus juris that is developed by the

legal schools (madhhabs), individual jurists and judges by recourse to

legal reasoning (ijtihÉd) and issuing of legal verdict (fatwÉ).

The bulk of the legal rules that later became known as Sharʑah

was revealed after the Prophet’s migration from Makkah to

Madinah, where a new Muslim community and government came

into being. During his initial twelve and a half years of campaigns in

Makkah, the Prophet was preoccupied with the belief and dogma of

Islam, the essence of moral virtue, and not so much with the enactment

of legal rules. The legal rules of the Qur’Én were mainly

revealed during the ten years of the Prophet’s residence in Madinah

and mainly towards the end of that period. Since Muslims were a

minority in Makkah, they had no power to enforce a law. Thus it is

noted that most of the Makkan sËrahs of the Qur’Én were exhortative

and imbued with warnings of the depravity and evil of idol worshipping

and oppressive practices of the pre-Islamic Arabs towards the

poor, the orphans, the widows and the needy. Most of the Makkan

sËrahs are short, brisk and forceful in their appeal to the conscience of

the reader and recipient. They talk generally of moral responsibility,

man and the universe, the day of judgement, good and evil, spiritual

awareness and so on. The persistent appeal of the Qur’Én was for people

to change their ways and lead a good moral life. Some basic rules on

ritual prayers, alms giving and justice to orphans and widows were

revealed in Makkah, but the bulk of the legal verses of the Qur’Én

(approximately 350 out of a total of over 6200 verses) were revealed

in Madinah.2 But even in Madinah, it will be noted that the penal rulings

of the Qur’Én which later became known as the ÍudËd were

revealed mainly in sËrah al-MÉ’idah during the last two years of the

Prophet’s life. This gradualist and piecemeal approach to legislation

in the Qur’Én, known as tadarruj (also tanjÊm) characterizes the

whole of the Prophet’s campaign in both Makkah and Madinah.

Introduction 3

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Much attention was paid to preparation before decisive legal rulings

were enacted and enforced.

Two other derivatives of the root word shara‘a (to begin something,

to enact) that occur in the Qur’Én also confirm the foregoing

analysis that the Qur’Énic conception of SharÊ‘ah was essentially

theocentric. In one of these verses, it is provided:

The same religion has He enacted for you [shara‘a lakum min al-dÊn]

as that which He enjoined on Noah and the one we revealed to you

and that which We enjoined on Abraham, Moses and Jesus, namely

that you should remain steadfast in religion and make no divisions

therein. (42:13)

Shara‘a in this verse refers, according to Qur’Én commentators, to

‘belief in the Oneness of God (tawÍÊd), prayer, fasting, alms giving

and hajj’. For these were in common between all of the scriptures

revealed to those Prophets.3 Thus it is noted that shara‘a in this verse

could not be a reference to a legal code as the laws revealed to these

various Prophets were not the same. The word thus refers basically to

belief and dogma and not to law as such.

The bulk of the Qur’Én, that is, 85 out of the total of 114 sËrahs,

was revealed in Makkah and all of it focused on Islam as a faith and

structure of moral values. Law and government did not feature in the

Qur’Én during the Makki period. The legal rulings of the Qur’Én are

of a limited scope and are decidedly peripheral to its dogma and moral

teachings. The Prophet himself consistently referred to the Qur’Én as

a source of authority and only in his latter years in Madinah did he

refer to his own teachings and example (Sunnah) as a guide to conduct.

The words Sharʑah and fiqh do not occur in the Sunnah in their

usual meanings. This can be known, for instance, from the renowned

ÍadÊth of the Mu‘Édh Ibn Jabal: when the Prophet was sending

Mu‘Édh to the Yemen as ruler and judge, he was asked three questions

as to what he would refer to when making decisions in his capacity as

a judge! Mu‘Édh mentioned firstly the Qur’Én, then the Sunnah of the

Prophet and then his own considered judgement and ijtihÉd. There

was no reference to SharÊ‘ah in this ÍadÊth nor to fiqh as such.4 The

4 Sharʑah Law: An Introduction

􀏱􀋶􀎬􀍉􀏟􀎍􀋴􀏭 􀎎􀋱􀎣􀏮􀋵􀏧 􀋶􀏪􀋶􀎑 􀏰􀍉􀎻􀋴􀏭 􀎎􀋴􀏣 􀋶􀏦􀏳􀍋􀎪􀏟􀎍 􀋴􀏦􀍋􀏣 􀏢􀋵􀏜��􀏟 􀋴􀏉􀋴􀎮􀋴􀎷

􀎍􀏮􀏤􀋵 􀏴􀏗􀋶􀎃􀋴 􀋸􀏥􀎃􀋴 􀏰􀋴􀎴􀏴􀏋􀋶 􀏭􀋴 􀏰􀎳􀋴 􀏮􀏣􀋵 􀋴􀏭 􀏢􀋴 􀏴􀏫􀋶 􀎍􀎮􀋴 􀋸􀎑􀎇􀋶 􀏪􀋶 􀎑􀋶 􀎎􀏨􀋴􀋸􀏴􀎻􀍉 􀏭􀋴 􀎎􀏣􀋴 􀏭􀋴 􀏚􀋴 􀋸􀏴􀏟􀋴􀎇􀋶 􀎎􀏨􀋴􀋸􀏴􀎣􀋴 􀋸􀏭􀎃􀋴

.􀏪􀋶 􀏴􀏓􀋶 􀎍􀏮􀏗􀋵􀎮􀍉 􀏔􀋴􀎘􀋴􀎗􀋴 􀎎􀏟􀋴􀏭􀋴 􀏦􀋴 􀏳􀎪􀍋 􀏟􀎍

ch1.qxp 12/8/2007 12:13 PM Page 4

word Sharʑah does not seem to have been used even by the Pious

Caliphs (KhulafÉ’RÉshidËn) following the demise of the Prophet, nor

have they used its equivalent fiqh in the sense of a legal code. These

terminologies emerged much later and consist mainly of juristic designations

that found currency when a body of juristic doctrine was

developed over a period of time.

The purpose of this analysis is not to doubt or dispute the substance

of Sharʑah or of fiqh but to emphasize that identifying

Sharʑah in the sense of a legal code as the defining element of an

Islamic society and state, which became commonplace in subsequent

juristic writings, does not find a strong footing in the source evidence.

Islam is a faith and a moral code first and foremost; it stands on its

own five pillars, and following a legal code is relative and subsidiary

to the original call and message of Islam. The persistent line of

emphasis on legalism that has dominated the juristic legacy of Islam

and Sharʑah should therefore be moderated. The overarching

Islamic principle of divine unity (tawÍÊd) which requires an integrated

approach to values should not simply be subsumed under the

rubric of legality that focuses on the externalities of conduct often at

the expense of the inner development of the human person.

The literalist tendency of scholastic jurisprudence and its emphasis

on conformity to rules evoked strong critique from the Sufis and

spiritual masters of Islam. The Sufis turned their attention to the spirit

and meaning of religion and God-consciousness in personal conduct.

They denounced the fiqh tendency of undivided attention to the external

manifestations of religion at the expense often of its meaning and

message.

Shah Wali Allah Dihlawi (d. 1762), who was influenced by the

thought and philosophy of Sufism, saw in Islam a process of progressive

development of the inner self of the individual that could lead to

greater refinement and stages of closeness to God (a process he

expounded and termed as iqtirÉbÉt). In his renowned magnum opus,

‘The Conclusive Evidence from God’ (×ujjat Allah al-BÉlighah),

Shah Wali Allah criticized the literalist legalism which had characterized

Islamic juristic thought and looked at the inner meanings of

religion (asrÉr al-din) that was informed by the totality of existential

phenomena as a manifestation of the principle of divine unity. In

doing so, Shah Wali Allah drew much inspiration from

the works of AbË ×amid al-Ghazali (d. 1111), the author of the

renowned ‘Rivivification of the Religious Sciences’ (IhyÉ’ ‘ulËm

Introduction 5

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al-Din), who was also motivated by the idea of restoring the meaning

and spirit of Islam to its erstwhile disciplines of learning. Shah Wali

Allah’s purpose was to ensure greater harmony of the law with the

ethical and spiritual dimensions of Islamic teachings. Muhammad

al-GhazÉlÊ, who translated Hujjat Allah al-BÉlighah (2001), wrote in

his Introduction to this work: ‘Shah Wali Allah understood himself as

living in an age of crisis in which the integrity of the various Islamic

sciences was threatened by the tendency to abandon broader vision

and principles in favour of narrow disciplinary specializations and

polemical rejection of other perspectives.’ That crisis has not

receded, but was exacerbated, when scholastic jurisprudence was

brought to fresh prominence by the Ottoman state’s adoption of the

×anafi school of law as the official school of the empire. This marked

the beginning of a new phase in juristic imitation (taqlÊd) whereby

Muslim states specified, as they do to this day, the adoption of one or

other of the schools of Islamic law in their constitutions. I hasten to

add here, perhaps, that this tendency should now be abandoned, as it

has become largely redundant due to the promulgation of statutory

codes of law that now expound the applied law for purposes of judicial

practice. Specification of a particular school of jurisprudence was

deemed necessary when the courts of Sharʑah relied mainly on the

manuals of fiqh, which often left the judges with the uncertainty as to

which ruling, school, or opinion they had to apply to cases under adjudication.

In our times, the protagonists of Islamic fundamentalism,

especially the radical factions among them, have once again taken

legalism as the principal theme of their mission, shown by their persistent

demand for conformity to the juristic legacy of Islam and

restoration of the Sharʑah.

We note a tendency sometimes that places total emphasis on conformity

to rules and statements also in some academic writings that

designate Islam as a law-based religion, a nomocracy and so forth,

and not enough emphasis on the meaning and purpose of Islam and

integration of its values in one’s conduct. Declaring a state as Islamic,

or Sharʑah as the applied law, has often co-existed with despotism

and corrupt governance such that the ethical norms of Islam and its

unmistakable stress on personal conduct have been conspicuously

absent in the track record of the majority of Muslim political leaders

of the post-colonial period. To say that alienation of Islamic values

from law and governance has been a source of widespread dissatisfaction

is to state the obvious, for this has also been the principal

6 Sharʑah Law: An Introduction

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motto of the Islamic resurgence movement of recent decades. Yet due

to a variety of factors that I shall later elaborate, the necessary corrective

has not materialized. This tendency in Islamic juristic thought,

and how it has been manifested in the practice of law and governance,

namely to target externality at the expense of meaning and substance

is due for a corrective. I shall have occasion to elaborate on this a

little further in a section below on ‘externality and intent’ that has

also led to some differences of opinion among the schools of

jurisprudence.

THE STATE AND THE SHARÔ‘AH

When AbË’l-×assan al-MÉwardi (d. 1058) defined the caliphate as

‘protection of religion and management of temporal affairs’ (ÍirÉsat

al-d n wa siyÉsat al-dunyÉ), he did not think of implementing the

Sharʑah as a defining element of an Islamic government and state.

Al-MÉwardi’s definition was evidently focused on the preservation

and protection of religion. To declare Sharʑah as the principal

criterion of an Islamic state initially featured, though somewhat less

categorically, in the writings of Ibn Taymiyyah (d. 1328). This was

later given prominence by Syed QuÏb (d. 1966) and Abu’l-A‘la

Mawdudi (d. 1979), MuÍammad al-GhazÉli (d. 1992) and YËsËf

al-QaraÌÉwi who saw the Islamic state essentially as a SharÊ‘ah state

committed to the enforcement of Sharʑah.

Ibn Taymiyyah was influenced by the tension that had developed

between the norms and principles of the original caliphate and the

practice of dynastic caliphs, the Umayyads (660–750) and the

Abbasids (750–1258), marked by the Mongol invasion of Baghdad

(1258) and the destruction of what had remained of the caliphate. Ibn

Taymiyyah emphasized that the Qur’Én and Sunnah did not contain

any reference to caliphate as an organizational model or a system of

government, and since the rightly guided caliphate had only lasted for

thirty years, he ignored the hollowed theory and rhetoric of caliphate

and called attention to the Sharʑah and a Sharʑah-oriented policy

(i.e. siyÉsah shar‘iyyah). The Wahabi movement of nineteenthcentury

Arabia that was moulded on Ibn Taymiyyah’s thought placed

additional emphasis on the Sharʑah -based identity of Islamic governance.

Twentieth-century writings on Islamic state and government

Introduction 7

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became even more specific on Sharʑah than what Ibn Taymiyyah had

meant by a Sharʑah-oriented polity. As I elaborate in a separate chapter

below, Ibn Taymiyyah’s idea of siyÉsah shar‘iyyah conveys the

message that policy (siyÉsah) was an integral part of Islamic governance,

and that governance in Islam was not a matter simply of rule by

the text but of politics and administration by judicious rulers whose

decisions were to be guided by the Sharʑah, but that they also took

into consideration a variety of factors that could not be encapsulated

by the legal text alone. This was a pragmatic and yet principled

approach to governance. But we note that Islamic scholarship on constitutional

law and governance focused on the observance of Sharʑah

in a dogmatic fashion at the expense often of concern for accountability,

popular participation, justice and fundamental rights. Instead

of engaging in Islamic political thought that would ameliorate the

failures of the dynastic caliphate in devising mechanisms and

procedures for consultation, democratic rights and accountable

governance, with some exceptions, many Sharʑah scholars continued

expounding the defunct caliphate and expatiated on theoretical

themes of Islamic state as a dogmatic principle rather than a

mechanism to serve the people and show commitment to the welfare

objectives of its citizens.

SUMMARY OF CHAPTERS

The first of the thirteen chapters presented in this volume are devoted

to an exposition of the sources, nature and objectives of the Sharʑah.

The discussion here begins with the definition of Sharʑah, which is

often used in a general sense that includes not only the law that is contained

in the Qur’Én and Sunnah but also the detailed rules of fiqh that

jurists and scholars have developed through interpretation and ijtihÉd.

More specifically, however, Sharʑah is grounded in the

revealed laws of the Qur’Én and Sunnah in contradistinction with fiqh

which is a juristic edifice. This line of discussion is advanced in the

early part of the first chapter, which is then followed by an exposition

of the sources of SharÊ‘ah under the three main headings of Qur’Én,

Sunnah, and ijtihÉd. The remaining portion of this chapter addresses

the objectives, or maqÉÎid, of the SharÊ‘ah which are in one way or

another elaborated and pursued by the detailed rules of Sharʑah in all

8 Sharʑah Law: An Introduction

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of its various branches. An understanding of the maqÉÎid is thus

important for gaining an insight into the rest of the Sharʑah.

SharÊ‘ah is often described as a diversity within unity – diversity in

the detailed interpretations of individual jurists and schools that has

become a characteristic feature of the Sharʑah, and unity in the goals

and purposes that are followed by the detailed elaborations of the law.

It is through awareness of its goals and purposes that the unity of

Sharʑah is protected and upheld.

‘Characteristic features of SharÊ‘ah’ is the theme of the next chapter.

As the title indicates, the emphasis here is on highlighting the

salient features of Sharʑah where the discussion sets the background

by explaining the lines of distinction between Sharʑah and fiqh and

proceeds with an outline of the major themes and classifications

of fiqh. The chapter then focuses on the salient characteristics of

Sharʑah. What it precisely means to say, for instance, that Sharʑah

is a divine law of permanent validity which also manifests the unitarian

outlook of monotheism (tawÍÊd) in its juristic formulations.

Sharʑah also seeks to protect the interests both of continuity and

change just as it also provides mechanisms for the interplay of revelation

and reason in the formulation of its rules. Our discussion along

these lines is followed by a brief section on the scope respectively of

externality and intent, the notion on the one hand of compliance to the

rules and the emphasis on the other that a dry conformity to rules that

is divorced from the intention and purpose of law should not be

encouraged. This kind of disjuncture is occasionally found in some of

the outlandish sections of fiqh, such as the legal stratagems (al-Íiyal),

which is problematic to say the least, and its place in Islamic juristic

thought must be reduced to the minimum possible.

Chapter 4 addresses the origins and development of the legal

schools (madhÉhib). The chapter begins with a brief history of

scholastic divisions which is followed by a section each on the four

leading Sunni schools of law and one also on the Shi‘ite school of

jurisprudence, explaining the basic features and also major differences

in their juristic thought. Asection is also devoted to methodologies

of legal reasoning in each school, as well as their respective

approaches to interpretation of the textual rulings of the Qur’Én and

ÍadÊth.

Chapter 5 addresses juristic disagreement (ikhtilÉf ) which is at

once a characteristic feature of the Sharʑah as well as an academic

discipline and branch thereof. The law faculty of the International

Introduction 9

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Islamic University Malaysia, for instance, offers a course of study on

ikhtilÉf. The discussion in this chapter basically supplements the

preceding chapter on the madhÉhib, to say that without differences

in ijtihÉd and disagreement over matters of interpretation, and

some distinctive contribution to juristic thought, separate madhhabs

could not have come into existence. The opposite of ikhtilÉf is

general consensus (ijmɑ) and I discuss the respective role and

value of both of these in the development of Islamic law. This chapter

also advances the view that ijtihÉd and also ikhtilÉf are valuable,

indeed inevitable, features of Islamic law, but we now live in a

period of history, perhaps, that emphasizes the need for consensus

more than disagreement. It would appear that ijtihÉd has in the past

been used as an instrument of disagreement more than of unity and

consensus. Agreater level of consensus would now seem to be advisable,

even necessary, for the revival of SharÊ‘ah and ijtihÉd and the

role they ought to play in contemporary laws and governance in

Muslim societies.

Chapter 6 is devoted to a discussion of the goals and purposes, or

the maqÉÎid, of SharÊ‘ah. This subject is briefly addressed in the first

chapter, but due to the importance of the topic and renewed interest

that is shown in it in contemporary writings on Sharʑah, a more

detailed presentation of the history and methodology of maqÉÎid has

been attempted in this chapter. My earlier treatment did not address

historical developments and the contributions of prominent scholars

in this area, to which I turn in this chapter. The discussion here

refers more specifically to the works of al-ShÉÏibi, al-GhazÉli, Ibn

Taymiyyah and some contemporary scholars on the subject. The chapter

ends with a section on the importance of maqÉÎid for ijtihÉd.

Legal maxims of fiqh, which is the subject of chapter 7, basically

supplements the preceding chapter on the maqÉÎid, or objectives, of

Sharʑah, so much so that they often appear as an extension of one

another and a unified chapter in the writings of many Muslim jurists.

The reason for this thematic unity between the maqÉÎid and legal

maxims is that the latter are naturally focused on the goals and purposes

of the law, and provide theoretical, but also condensed and epithetic,

entries into the various fields of Sharʑah. Legal maxims

provide an efficient exposition of the goals and purposes of the law

either generally or in reference to its particular themes and yet they

are a branch of Islamic legal studies in their own right, separately

from the maqÉÎid.

10 Sharʑah Law: An Introduction

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Independent reasoning (ijtihÉd) and juristic opinion ( fatwÉ) are

the focus of the succeeding chapter, which basically explores the

potentials of ijtihÉd and fatwÉ, their resources, and their relevance to

addressing contemporary issues encountered in the rapid pace of

social change. The chapter also highlights the problematics of ijtihÉd

and fatwÉ in modern times. They are both instrumental to relating the

resources of Sharʑah to contemporary issues but their utility is hampered

by a number of shortcomings that need first to be addressed.

IjtihÉd may consist of a novel interpretation of the text in conjunction

with a particular issue that has not been encountered before, or it may

consist of taking a step beyond interpretation by applying one or the

other of the various doctrines, such as analogy (qiyÉs), considerations

of public interest (istiÎlÉÍ), juristic preference (istiÍsÉn) and so forth

that are in reality sub-varieties of ijtihÉd and are designed to provide

a structured approach and methodology for it. FatwÉ normally consists

of a response that a qualified jurist provides to a question, a counsel

that may consist of a brief answer, agreement or disagreement, and

it may resemble ijtihÉd or fall below that level. The chapter ends with

an exposition of the problematics of fatwÉ in modern times and gives

suggestions for reform.

Chapter 9 bears the title ‘SharÊ‘ah and the Principle of Legality’

which explores the basic requirements of the modern-law principle of

legality and the extent of their application in Sharʑah. The principal

of legality, also known as the principal of the rule of law (sometimes

also referred to as due process) is essentially guided by the idea of

government under the rule of law and it applies to almost every area

of the law that seeks to protect the citizen against the arbitrary use of

power. This principle naturally acquires prominence in the sphere of

criminal law, arrest, interrogation and trial proceedings, and the chapter

before us raises these questions with regard to the Sharʑah and the

extent of its compliance with the constitutional principle of legality.

Chapter 10 focuses on ‘Democracy, Fundamental Rights and the

SharÊ‘ah’, offering a perspective on the extent of harmony or otherwise

between the basic postulates of democracy and those of the

Sharʑah. Attention is drawn in this connection to a growing support

for democracy among Islamic parties and movements and their

unprecedentedly increased presence in electoral politics especially

since 1999 in the Middle East, Turkey, Pakistan, Indonesia and

Malaysia. The chapter also advances a perspective on the position in

Sharʑah regarding basic rights and liberties, while addressing some

Introduction 11

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relevant aspects of the Orientalist debate on the subject. There is also

a discussion of Islam and civil society, exploring the history of this

idea in Muslim society and institutions. The chapter ends with a brief

introductory discussion of moderation (i‘tidÉl, wasaÏiyyah), an

important dimension of Islamic teachings, which is then treated in

greater detail in chapter 13.

The next chapter, entitled ‘Beyond the SharÊ‘ah: An Analysis of

SharÊ‘ah-oriented Policy (SiyÉsah Shar‘iyyah)’ explores the place

of judicial policy and discretion, political acumen and non-textual or

extra-Sharʑah procedures in an Islamic system of governance. The

history of government in almost every period and every legal system

testifies to the basic truism that rulers and governors, administrators

and statesmen did not conduct the affairs of state by reference only to

the legal text. Some of the renowned figures of Islamic scholarship

have articulated this theme under the rubric of Sharʑah-compliant

policy (siyÉsah shar‘iyyah) which is often guided by the spirit, goal

and purpose of Sharʑah and the values it upholds rather than its textual

formulations. This chapter also briefly addresses the question

whether it is really the basic idea of siyÉsah shar‘iyyah, rather than

the much talked about Islamic state, that relates to the realities of governance

that now obtain in the Muslim world. The chapter ends with

a reference to Malaysia and the extent to which Malaysia could be

said to comply with the requirements of siyÉsah shar‘iyyah.

Chapter 12 reviews recent developments and reforms of Islamic

law in various areas through legislation, teaching and research, the

establishment of Islamic law academies, fatwÉ collections, judicial

decisions and ijtihÉd. The twentieth century has probably marked a

turning-point in the history of Islamic law and the developments we

discuss here were spurred to some extent by Islamic revivalism and

the persistent call for its renewal and reform. Providing adequate

responses to the challenges of modern society and its rapid pace of

change is bound to require a sustained engagement in fresh enquiry

and research into the sources of Sharʑah.

Chapter 13 of this volume addresses some of the most challenging

issues facing contemporary Muslim societies. The chapter comprises

five sections beginning with an overview of the secularist debate and

some of the Islamic responses given to the challenges it has posed.

Gender justice issues are discussed in section two, followed by a

review of the decline of the madrasah education, and then the somewhat

disturbing phenomenon of suicide bombing. The last section of

12 Sharʑah Law: An Introduction

ch1.qxp 12/8/2007 12:13 PM Page 12

this chapter reviews the Qur’Énic principle of moderation and balance

(wasaÏiyyah, i‘tidÉl) which is a most important yet widely

neglected aspect of the teachings of Islam and its broader civilizational

perspective. Much of what has been said in these survey-style

presentations is based on my own views and responses to these issues.

My conclusion at the very end winds up the book by highlighting

its salient themes and my own reflections on them. This chapter actually

ties up with the introductory chapter of the book and takes to conclusion

some of the points that were raised in the Introduction.

Readers without a background in Sharʑah studies might even wish to

read the Introduction and Conclusion together before reading the rest

of the text.

NOTES

1. Cf. al-ShÉÏibÊ, MuwÉfaqÉt, II, 3–5. Further detail on continuity of themes in the

Qur’Én appears in chapter 6 below.

2. Muslim jurists have differed over the precise number of legal verses (ayat

al-aÍkÉm) in the Qur’Én, due mainly to their differential approaches to the subject.

Some were inclined to increase the number as they often extracted a legal

ruling from a historical passage, or even a parable in the Qur’Én, whereas others

counted a lesser number as they looked for legal verses mainly in a legal context.

Differences over the rules of interpretation among jurists also explain some of

their different conclusions. Similar differences obtain, even more widely with

regard to the ÍadÊth which resulted in different accounts of the legal ÍadÊths

(aÍÉdÊth al-aÍkÉm) given by the scholars of ÍadÊth, whereas some put the total

number of legal ÍadÊth at 3000, others have reduced this number to 1200

ÍadÊths.

3. Cf. al-ØÉbËnÊ, Øafwat al-TafÉsÊr, III, 135.

4. AbË DawËd, Sunan (Hasan’s trans.), III, 1091, ÍadÊth 3585.

Introduction 13

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