The Formation of the Shari

The Formation of the Shari’a (Islamic Law)

Introduction
Material Sources for the Shari'a
Procedural Sources for the Shari'a
Major Schools of Islamic Law
Shari'a Classification of Human Actions

Click here for a print-formatted version (that has each of the tables on one page).

The basic Islamic assumption behind the Shari'a is that Allah has a plan for human life, and that people should both desire and strive to follow this (as a "Muslim," or "one who submits to Allah"). For Muslims, the instructions and assumptions for this divine plan have been revealed by Allah both through direct revelation, and through the lives and example of Allah's Messengers. The implications of these instructions were then clarified and extended through fiqh ("understanding"), or jurisprudence.

Material Sources for the Shari'a

The Qur'an

The most authoritative (as the direct revelation of Allah). The Qur`an gave instructions on:

· Articles of Faith

· Worship and Religious Practice

· Civil Law

· Criminal Law

· Family Law (marriage, divorce, and inheritance)

· Dietary Laws

· Prohibitions (e.g., drinking alcohol and gambling)

The Sunnah ("practice") of Muhammad

(as recorded in the Hadith)

As the Messenger of Allah, Muhammad's example was taken as normative for the community. This included:

· Muhammad's sayings (what he instructed his followers to do)

· Muhammad's actions (e.g., the way that he performed salat)

· Muhammad's response to others' actions (in either concurring or demurring).

· Muhammad's character

Problem: Although the Qur`an sets forth a very high moral ideal for the faithful, only about 250 of its 6000 verses give specific behavioral instructions. Since the community was seeking to discern an entire way of life, in practical terms Muhammad's Sunnah was enormously influential as a source for the Shari'a.

The specific instructions from these sources were then extended and codified into the Shari'a by Islamic jurists (fuquhah) using

Interpretive Tools (Procedural Sources) for the Shari'a

Analogy (qiyas)

Straightforward. Here the jurists worked from a specific case in which there was clear instruction, and applied the principle to other cases that were not specifically mentioned (for example, the Qur'an forbids consuming grape wine, and this prohibition was extended to other alcoholic beverages). There were strict rules governing the use of analogy, to ensure that the comparison between these two cases was valid (in part, these strict rules came about because the jurists recognized the power of people to deceive themselves).

Consensus (Ijma)

This eventually became the most influential interpretative tool, especially in terms of making ruling about new things (e.g., in vitro fertilization). The source of this comes from a Hadith of Muhammad, "My community will never be in error." Although the Hadith in questions refers to the consensus of the entire community, in practice this came to refer to the consensus of legal scholars, as the community's learned people.

Other Tools

Public Interest: benefit benefit for the community): This was originally mainly used by the Maliki School (see below), but has become increasingly used in modern times

Customary Practice: (if it did not run counter to the Qur`an or the Sunnah)

Example/Opinion of one of the Prophet's Companions (as above).

Major Schools (madhhab) of Islamic Law

There are now 4 schools (several others have become extinct). These 4 schools agree on about 75% of legal rulings (the differences tend to be minor), and all 4 schools are judged to be valid

School	Founder	Place	Current Locations/characteristics
Hanifi	Abu Hanifa (d. 767 CE)	Basra	· Turkey, West and Central Asia, South Asia · Most liberal and flexible of the 4 schools, Abu Hanifa heavily stressed the use of Analogy (qiyas)
Maliki	Malik ibn Anas (d. 795 CE)	Medina	· Egypt, North Africa, W. Africa, medieval Spain · Stressed the "living tradition" of Medina (the Prophet's city, and the first Muslim capital).
Shafi'i	Muhammad ibn Idris al-Shafi'i (d. 820)	Egypt	· Egypt, East Africa, Philippines, Malaysia-Indonesia · Shafi'i developed the main principles of Islamic jurisprudence (fiqh), and pioneered the stress on ijma (consensus of legal scholars) as the most important tool.
Hanbali	Ahmad Ibn Hanbal (d. 855 CE)	Baghdad	· Mesopotamia, Syria, Palestine (until the 15th c.), Saudi Arabia · Most conservative.

Legal Classifications for Actions: All actions were classified into one of 5 categories:

Obligatory Actions	Required actions for either the individual (daily salat) or communal (funeral prayers). Must be performed, nonperformance can be punished by legal penalties.
Recommended Actions	Laudable actions (such as non-required prayers); performance cannot be required, but is supported by public opinion (those who perform these actions are considered good and pious people)
Neutral Actions	Can be either performed or not performed, according to the person’s desire. Neither carries any penalty, and many actions fall into this category.
Reprehensible Actions	Detestable/offensive actions; abstention from these cannot be required by law, but is supported by public opinion (those who perform these actions are NOT considered to be good and pious Muslims).
Prohibited Actions	Specifically forbidden (drinking wine/gambling); performing these actions is punishable by law

Acknowledgements: Some examples here come from “Shari`ah and Fiqh,” from the USC Islamic server at http://www.usc.edu/dept/MSA/law/shariahintroduction.html (originally from Perspectives magazine). The information on the current location for each madhab comes from chapter eleven in Frederic Denny’s An Introduction to Islam (New York: Macmillan, 1994).

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Last modified 24 January 2006