This work on shari’ah is a four part series and this is part one. Parts two, three, and four will follow in the future months.
To begin, shari’ah is an old Arabic word which has been used to designate Islamic law. It literally means a path to a water hole, thus, a route to the source of life.
In terms of Islamic law, the way is understood to be one that keeps the righteous believers on the right path – siraat al mustaqeem – and this right path when followed makes life in this world comfortable and satisfactory and at the same time paves the way to paradise in the Afterlife.
Islamic law was neither known as shari’ah nor was it a legal code per se at this point in time and the words shari’ah and fiqh only came into use later in the Medinan period.
Shari’ah in the Prophetic Era and Under the Khulafa I-Rashidun (632 – 661 CE)
In Arabian Peninsula, the birth place of Islam, Islamic law (Coulson, 1984; Singh, 2011; Kamali, 2010) assumed a central role in Muslim life and quickly became an integral part of the discourses and institutions of Muslim societies. As the legislative and ethico-moral provisions of Islamic faith, Islamic law emerged in the lifetime of Prophet Muhammad (s) to meet the needs of every facet of life. Islamic law was premised on the idea of public interest – maṣlaḥa – the objective of which was to minimise the privation – rafʽ al-ḥaraj – of nomadic desert living.
In other words, the purpose of the divine law was to offer guidance for human good and this ultimately assumed and continues to have a pivotal function in Islamic legal theory (Kamali, 2010). The era of Prophet Muhammad (s) was marked by revelation, wherein was introduced a new legal framework which continued to remain important and effective for several centuries.
The origin of Islamic law is the Qur’an, the word of God, and traditions gathered from the life of Prophet Muhammad (s). The early Islamic law is marked by the new set of instructions which came directly from God. Divine instructions were so important that even Prophet’s own personal opinions were informed by the revelations – waḥy (Saeed, 2008; Abdel-Haleem, 2005).
The essence of this divine revelation, however, varied from one place to another and, therefore, producing a difference in legal approach between the urban centres of Makkah and Medina (Abdel-Haleem, 2005). The rationale behind this was that there existed complex geographical differences and the circumstances surrounding the newly born Islam was in constant flux.
The vast majority of Qur’anic revelation, in fact 85 out of 114 chapters, took place in Makkah over thirteen years whose focus was on faith and ethico-moral ideals (Coulson, 1984). There was very little reference in the Qur’an regarding legal matters and the instructions for practical elements of human need. Mohammad Kamali notes that:
The legal rulings of the Qur’ān are of a limited scope and are decidedly peripheral to its dogma and moral teachings. The Prophet himself consistently referred to the Qur’ān 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 (2010:4).
When Prophet Muhammad (s) immigrated to Medina in 622 where he established the first Islamic state, the Islamic law entered a new phase. The Medinan reality demanded new legal and practical considerations. In practical matters such as marriage, family, inheritance, trade and commerce, and also matters pertaining to religious rituals and practices a clear legal code needed to be formulated.
The legislation had to emerge and it did in its embryonic form in Medina seeking to address the new challenges a young Muslim community faced on a day-to-day basis. This legislation not only accommodated evolving socio-cultural, economic, and political needs but laid out the legislative principles for the future Muslim community.
The application of practical legislation took place in direct response to new issues facing Muslims which Prophet Muhammad (s) took upon himself to address. Shari’ah duties became generally divided into those that an individual owes to Allah (ʿibadat – the ritual practices) and those that he or she owes to fellow humans (mu’amalat).
During Muhammad’s (s) prophesy he often exercised his own judgement in a legislative fashion and even encouraged his fellow adherents to do so and allowed them to exercise ijtihad (personal reasoning) (Kamali, 2010). As I mentioned above the words shari’ah and fiqh were not in use at the time and Prophet Muhammad (s) permitted his followers to practice individual opinion which proved very useful for his close colleagues and the general Muslim population after he had passed away.
We learn this from a famous ḥadith of Mu’adh Ibn Jabal whom the Prophet made the ruler and judge of Yemen. When sending him to his posting in Yemen Prophet Muhammad (s) asked Mu’adh Ibn Jabal how he would judge between his peers and those under his rulership and he replied that he would refer to the Qur’an and the Sunnah of the Prophet. Prophet Muhammad (s) then proceeded on to ask Mu’adh Ibn Jabal what he would do if these two sources proved inadequate and Mu’adh Ibn Jabal replied that in that case he would exercise his own judgement (Sookhdeo, 2013).
During the lifetime of Prophet Muhammad (s), his companions were able to consult him directly, however, once he had passed away the companions had to rely on the Qur’an and Sunnah beyond that they were very much left to their own devices.
The companions had to assess and address prevailing social, cultural, economic, and political issues, the nature of which was significantly different from the time of Prophet because by now Islam had moved beyond the confines of the cities of Makkah and Medina, by themselves.
Although Prophet Muhammad was never perceived as divine or super-human, he nevertheless was God’s messenger who had a direct contact with Him. Now that the Prophet – the source of God’s legislation – was gone a void was created in the Muslim society to which he gave so much and in which he played the perfect role and inspired a whole generation of men and women. It was not all doom and gloom, however, because despite the fact that the Prophet was gone, the Qur’an and the Sunnah remained and Muslims had the divine source and its supplementation to draw upon to shape their personal and social lives.
After the Qur’an, Sunnah became the second most important source of guidance for all Muslims. Yet, the Sunnah proved inadequate in providing answers to numerous new questions and solutions to many new problems as society grew and Islam expanded beyond the Arabian Peninsula.
The Sunnah was not an elaborate case law, rather was an overarching behavioural norms and an interpretive process which Prophet’s followers could adapt to develop law to changing circumstances. The demand for an innovative mechanism emerged and ijtihad found a fitting role (Hallaq, (1984). This legal mechanism, based on the Qur’an and Sunnah, developed as a practical device methodologically equipped to determine a legal outcome after the Qur’an and Sunnah proved inadequate.
Ijtihad assumed a legal role and became an independent source of legislation. It came into common use as a means to reaching legal solutions for a myriad of cases. Ijtihad as a legal mechanism was being used during the life time of Prophet Muhammad (s) but only marginally, and the Prophet himself acknowledged its usefulness in circumstances where the divine source failed to provide answers (Hallaq, 1984).
Of course it was only inevitable that given that the ijtihad is all about personal reasoning, different opinions over same matter sometimes led to disagreement, something that did not exist in the time of Prophet Muhammad (s) as he was the ultimate arbiter. Whilst there were occasional disagreements, frequently individuals inclined to agree (Hallaq, 1984). Around the time of the development of ijtihad, ijma (consensus) as another legal mechanism also developed.