Islamic Law
Islamic Law – Introduction
Islamic law is known as Shari’ah Law, which is derived from the Qur’an and Hadith and applied to the public and private lives of Muslims within Islamic states. Shari’ah law governs many aspects of day-to-day life—politics, economics, banking, business, contracts, social issues, etc.
Havva G. Guney-Ruebenacker sees Islamic law as follows: “The Qur’an deals with legal and social issues at a secondary level and only to the extent necessary to give some guide lines to pursue the higher principles, purposes and policies of divine revelation, called ‘Maqasid al-Shari’ah,’ such as protection of human life, human reason, offspring, right to property and freedom of speech.”1
In fact, the Islamic worldview has highly developed and detailed legal traditions. As we saw in the discipline of Theology, Islam affirms that God exists and that God is the ultimate Lawgiver. Shari’ah is the name of the body of laws Muslims believe are applicable, while fiqh is the human endeavor to understand and apply those laws.2 “The goal” of Muslim jurists “is not law making, but fiqh—understanding or knowledge of a law deemed to exist already.”3 Some of the legal pronouncements encased in Shari’ah include the stoning of adulterers (though the Qur’an says the punishment should be whipping), cutting off the hands of thieves, and killing apostates.
Islamic Law – Shari’ah
In contrast to the Christian worldview that affirms that God reveals both His will and Himself, Islam holds that “God has not revealed Himself and His nature, but rather His law.”4 Indeed, “the Shari’ah itself is considered to be a timeless manifestation of the will of God, subject neither to history nor circumstance.”5 There are four main tributaries for Islamic Shari’ah: the Qur’an, the Sunnah, the Ijma’, and Qiyas (analogical reasoning).6
Islamic Law – Qur’an
The foremost source of Shari’ah is the Qur’an, which records “prohibitions on certain foods (pork, carrion, wine, animals slaughtered in pagan ceremonies), a number of legal rules concerning family law (marriage, divorce, and inheritance), criminal law (the hudud crimes, including penalties of highway robbery, illicit sexual activity, slander, and wine-drinking), rules about witnesses, and commercial regulation including the ban on riba (usury) and forms of contracts.”7 Yet several difficulties result from depending exclusively on the Qur’an: it simply does not speak to all (or even many) legal issues.8
In addition, many of its statements are ambiguous and addressed to specific historical situations. Ruthven comments, “As for the specific injunctions about the Muslims’ struggles against and relationship with the non-Muslims, these varied according to situations and were too specific to be termed ‘laws’ in the strict sense.”9 While Ruthven may want to limit the applicability of these specific commands, throughout Islamic history many Muslims have read such commands as normative throughout time, for example those passages regarding aggression against non-Muslims. Modern Muslims, especially those educated in the West, perceive the difficulty inherent in failing to acknowledge the historically specific nature of such interactions and responses.
To illustrate the threatening nature of Shari’ah law, consider the case of Abdul Rahman. He was born a Muslim in Afghanistan. He converted to Christianity at the age of 25 while working with a group of Christians in Pakistan.10 In 2002, at about the age of 41, he returned to Afghanistan in the hopes of gaining custody of his daughters who had been living with theizzthe authorities. Under Shari’ah law, a Muslim should be sentenced to death for converting to another religion. He was put on trial for an “attack on Islam” and threatened with death.11 Probably due to international pressure, the case was dropped “for lack of evidence” and he was granted asylum in Rome, a feat accomplished in part by Pope Benedict XVI.12
Also, the Islamic belief that some passages overrule (or abrogate) others has led to debate over which rulings still remain obligatory.13 Thus Muslim jurists (legal scholars) historically have turned to the traditions regarding what Muhammad declared or practiced as having more practical significance than the Qur’an.
Islamic Law – Hadith
Islamic traditions, or Hadith, contain records of Muhammad’s practices and customs called Sunnah. Among these traditions we read of Muhammad’s practices, significant actions or abstentions, rulings, and sayings. The Muslim approach to these records perceives Muhammad as expressing what should be normative among Muslims.14 Because the Qur’an does not address all questions of law, Muslim legal scholars turn to the Sunnah to discern the shape of Shari’ah. This body of material contains many more legal rulings and examples than the Qur’an. A fundamental difficulty is that many of the Hadith present conflicting or contradictory rulings arising from different places and times. Because much of the historical context is unrecorded, examples and rulings are left open to debate.15
Islamic Law – Ijma’
A third source for Shari’ah is the communal consensus, called ijma’, expressed among Muslim jurists of the first three centuries of Islam. An example of Shari’ah arising from this source is male circumcision, a practice not commanded in the Qur’an. In some areas, the practice of female “circumcision” (really female genital mutilation, often including a removal of part or the entire clitoris) is seen as demanded by Shari’ah as well. This illustrates how local customs sometimes rise to the level of Shari’ah in Muslim communities.
Islamic Law – Qiyas
The fourth source for Shari’ah arises from legal reasoning needed to address situations otherwise unaddressed in the Qur’an and the Hadith. But not all Muslims support this approach to legal rulings, giving rise to various legal traditions. One of the more pronounced differences regards the consumption of alcohol. Ruthven notes, “While some jurists would argue that only fermented products of the date-palm and vine are prohibited, others, basing their judgments on the qiyas, would insist that all alcoholic drinks are forbidden, since the effective cause or common denominator (‘illa) behind the prohibition was the same in each case...”16
Islamic Law – Conclusion
Law cannot be discussed in isolation from other aspects of a worldview. In order to retain personal freedoms within a society, its legal system must have a solid, sustainable foundation. Only a biblical worldview provides a basis for law that respects both human dignity (that we are created in God’s image) and human depravity (that we have fallen into sin). These two ideas also have implications in the area of politics and will be explored in more detail in the following article.
Notes:
Rendered with permission from the book,Understanding the Times: The Collision of Today’s Competing Worldviews(Rev. 2nd ed), David Noebel, Summit Press, 2006. Compliments of John Stonestreet, David Noebel, and the Christian Worldview Ministry at Summit Ministries. All rights reserved in the original.
1 Havva G. Guney-Ruebenacker, “Islamic Law: An Ever-Evolving Science Under The Light of Divine Revelation and Human Reason,” http://www.averroes-foundation.org/articles/islamic_law_evolving.html.
2 Malise Ruthven, Islam: A Very Short Introduction (Oxford, UK: Oxford University Press, 1997), 86. “The Shari’ah is divine, co-eternal with God. Fiqh, by contrast, is the product of human endeavor.”
3 Ibid., 81.
4 Ibid., 73.
5 Additionally, Ruthven observes, “By defining correct behavior or orthopraxy at the social level, the Shari’ah has left its distinctive imprint on a way of living that has evolved over time and varies from one country to another in accordance with local custom” (86).
6 Ibid., 68: “The mutual relationship of these four principles is highly confusing and it is not at all easy to make it fully clear.”
77 Ibid., 75.
8 Ibid., 69: “But still the strictly legislative portion of the Qur’an is relatively quite small. Besides the detailed pro¬nouncement on the law of inheritance and laying down punishments for crimes such as theft and adultery, which are not defined legally, there is little in it that is, properly speaking, legislative.”
9 Ibid.
10 Associated Press, “Afghan Man Faces Death for Allegedly Converting to Christianity” Associated Press, Sunday, March 19, 2006; online: http://www.foxnews.com/story/0,2933,188364,00.html (accessed 23 May 2006).
11 “Apostasy (Irtidad) in Islam: The Case of Abdul Rahman, an Afghan Christian,” online: http://www.religioustolerance.org/isl_apos1.htm (accessed 23 May 2006).
12 “World Briefing | Europe: Italy: Afghan Convert Thanks The Pope,” The New York Times, 31 March 2006; online: http://query.nytimes.com/gst/fullpage.html?res=9B06E1DB1230F932A05750C0A9609 C8B63 (accessed 23 May 2006).
13 Ibid.: “But, further, it had to be set out as to which specific command was earlier in time and which later.” This briefly describes the Islamic teaching on “abrogation,” i.e., the more recent commands or rulings supersede those earlier and remain obligatory.
14 Ibid.: “The only natural method to be adopted in this comparative and interpretative procedure for a fresh ap¬plication of the Qur’an to any given new situation was to see it as it had been actually worked in the lifetime of the Prophet, who was its most authoritative factual exponent and to whose conduct belonged a unique religious normativeness. This is the Sunna of the Prophet. . . . the doctrine of the sinlessness of the Prophet was formulated considerably later, but it was only the formal outcome of the inner logic of a process which goes back to the starting point of Islamic history . . . While he was alive, this authority was sufficient for and at any given point of time; the future remained open until it became present and was filled with decisive content by the Prophet bring¬ing his authority to bear upon it. But after his death, that living authority was no longer available and had to be transformed formally into a doctrine of infallibility. This means that whatever decisions or pronouncements of the Prophet were authoritative during his lifetime became infallible after his death. This is the specific legal ground of the Prophetic infallibility. There is also a theological ground for a different, more general doctrine of infallibility, embracing all the Prophets, which is based on the consideration that a human who is a recipient of divine revelation cannot be expected to err grossly, especially in moral terms. . . . [A]fter his death his authority continued as it had been in his lifetime. . . . [N]o one person could claim authority except under the Prophet’s aegis” (70).
15 Ibid., 76.
16 Ibid., 79.
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