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Shari‘ah (Islamic law) has been the dominant moral and legal code of Muslim societies for the greater part of their history. During the early centuries of Islam, Shari’ah facilitated the social growth and development of the Muslims, growth that culminated in the establishment of a vast empire and an outstanding civilization. By the close of the fifth century of Islam, however, Shari’ah began to lose its role as the guiding force that inspired Muslim creativity and ingenuity and that nurtured the growing spirit of the Muslim community (Ummah). Consequently, the Ummah entered a period of stagnation that gradually gave way to intellectual decline and social decadence. Regrettably, this painful trend continues to be more or less ‘part of the individual consciousness and collective experience of Muslims.
This paper attempts to trace the development of the principles of Islamic jurisprudence, and to assess the impact of Shari‘ah on society. It argues that the law ceased to grow by the sixth century of Islam as a result of The development of classical legal theory; more specifically, law was put on hold, as it were, after the doctrine of the infallibility of ijma’ (juristic consensus) was articulated. The rigid principles of classical theory, it is contended, have been primarily induced by the faulty epistemology employed .by sixth-century jurists.
Shari’ah, or Islamic law, is a comprehensive system encompassing the whole field of human experience. It is not simply a legal system, but rather a composite system of law and morality. That is, Islamic law aspires to regulate all aspects of human activities, not only those that may entail legal consequences. Hence, all actions and relationships are evaluated in accordance with a scale of five moral standards.
According to Shari’ah, an act may be classified as obligatory (wajib), recommended (mandub), permissible (mubah), reprehensible (makruh), or prohibited (haram).’ These five categories reflect the varying levels of moral demand placed on human acts by Divine Will. Acts that fall in the categories on the two opposite extremes are strictly demanded, whereas acts falling in the two categories around the neutral center of the scale are not as solemnly demanded, and hence their violation, though discouraged, is not condemned. To put it differently, while the individual is morally obliged to follow the commands of the first and last categories — i.e., the obligatory and prohibited —he is only encouraged to observe the commands of the second and fourth— i.e., the recommended and reprehensible.
It should be emphasized, however, that even the absolute commands of the law have essential moral, or more accurately religious, implications, and thus are not necessarily under state sanction. For instance, the pilgrimage to Makkah once in a lifetime is obligatory (wajib) for every Muslim who is physically and financially capable of performing this duty. Yet the state, according to Shari’ah, may not compel the individual to fulfill this personal obligation.
Notwithstanding the inextricable association between law and morality in Shari’ah, Muslim jurists conveniently differentiate between private and public morality—or, using Islamic-law vocabulary, haq Allah (rights of God) and huquq al ‘ibad (rights of humans) — and hold that only the latter may be subject to legal sanctions. Private morality includes purely religious activities pertaining directly to the spiritual relationship between a human being and God, labeled as ‘ibadat (services). Since ‘ibadat, or services, do not have, for the most part, any social consequences, the individual, it is argued, is answerable to God for fulfilling them, not to society. Public morality, on the other hand, encompasses those patterns of behavior that have social consequences, appropriately labeled mu‘amalat (transactions). Because of the direct implications mu‘amalat activities have on society’s ability to maintain public peace and order, their regulation may be legally enforced by the state. The division of individual obligations and duties into categories of public and private is, nonetheless, more apparent than real; for, according to Islamic theory, all human activities, regardless of whether they are public or private, are subject to ethical judgment, because all human beings are ultimately accountable to God for their actions.
Law and morality, though interrelated, are perceived by most Western lawyers to be two distinct and separate spheres. Positive law theories predominant in Western society insist that law is only one of a number of social mechanisms—including religion, morality, education, etc.—employed in society to ensure individual conformity to social norms. This means that the ability of Western law to regulate social behavior is limited by, and contingent on, the performance of other social institutions. Only when the ideals and values promoted by other social institutions are compatible with those of the legal system can the law function effectively. Addressing the question of the impact of law on individual and social development, Iredell Jenkins argues that
law is not an effective instrument for the formation of human character or the development of human potentialities. It has a very limited power to make men into acceptable social members or to help them become accomplished individuals. Furthermore, law can set minimum standards and define broad guidelines to assure that institutions do in fact provide the services and promote the purposes for which they acknowledge obligation and claim credit. Though law cannot secure the essential similarities that are necessary to a sound society, it can eliminate gross dissimilarity among individuals and groups, and it can prevent serious nonfeasance or misfeasance on the part of other institutions.
In contrast, the impact of Islamic law on society is pervasive and far-reaching, for Shari’ah is an all-inclusive system combining both the legal and moral realms. Shari‘ah has guided the development and performance of not only legal institutions, but also those of other institutions and agencies of society, including governmental, business, and educational institutions. This aspect of Islamic law can partially explain to us the success the law had in transforming heterogeneous and incongruent societies into one relatively homogeneous political community during the early centuries of Islam.
The Purpose of Shari’ah
According to Islamic theory, Shari’ah was revealed to provide a set of criteria so that right (haq) may be distinguished from wrong (bati1). By adhering to the rules of law, the Muslims would develop a society superior in its moral as well as material quality to societies which fail to observe the revealed will of God. Shari’ ah, as a comprehensive moral and legal system, aspires to regulate all aspects of human behavior to produce conformity with Divine Law. According to the faqih (Islamic jurists), adhering to the rules and principles of Shari’ah not only causes the individual to draw closer to God, but also facilitates the development of a just society in which the individual may be able to realize his or her potential, and whereby prosperity is ensured to all. In other words, while religion, as a set of values and beliefs, establishes the goals and ideals which society must strive to attain, Islamic law furnishes the code of conduct that should be observed by Muslims if they are to achieve the desired goals.
Islamic Law (Shari’ah) is closely intertwined with religion, and both are considered expressions of God’s will and justice, but whereas the aim of religion is to define and determine goals (justice or others) the function of law is to indicate the path (the term Shari’ah indeed bears this meaning) by virtue of which God’s justice and other goals are realized.
The purpose of Shari’ah, therefore, is to provide the standards and criteria that would gain the ends prescribed by revelation. According to Islamic legal theory, justice, as the ultimate value that justifies the existence of law and as the ultimate criterion for the evaluation of social behavior, cannot be realized apart from the understanding of the purpose of human existence. Such understanding cannot be discovered by human reasoning, as natural law theory asserts. It must be acquired by direct exposure to Divine Will through revelation. Therefore, justice may only be fully realized when Divine Law is recognized and implemented by society.
Justice can be defined either as material or substantive (the goals and ideals that law intends to further), or as formal or procedural (the procedures and standards that must be observed to realize the ends of law). Substantive justice is the set of ideals that depict the best Islamic society, which in the end Shari’ah endeavors to achieve. Procedural justice is the standards and patterns of behavior that must be adhered to if a just society is ever to be realized.
The Development of Shari’ah
Classical legal theory was developed over the first five centuries of Islam. Initially, the Prophet was the sole legislator of the community (Ummah). Community affairs were regulated by Qur’anic statements revealed in a piecemeal fashion to instruct Muslims regarding the appropriate patterns of behavior in relation to the various problems and questions that confronted the first community.
The early verses of the Qur’an, revealed in Makkah before the establishment of the Islamic city-state of Medina, consisted of general statements concerning divine attributes, as well as mans mission and destiny. With the establishment of the first Islamic state in Medina, the Qur’anic verses began to include injunctions and statements concerning the characteristics of the just society, along with sporadic legal enunciations. In addition to his principal mission as the bearer and verbalizer of revelation, the Prophet served as the head of the community and the interpreter of the Qur’an; he was always available both to clarify the intent of the Qur’anic verses and to respond to inquiries on issues and questions of which the Qur’an was either silent or ambiguous. The personal judgments made by the Prophet were later referred to as the Sunnah or Hadith, to distinguish them from the Qur’an.