Muslim Law

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The Qur'an is the principal source of Islamic law, the Sharia. It contains the rules by which the Muslim world is governed (or should govern itself) and forms the basis for relations between man and God, between individuals, whether Muslim or non-Muslim, as well as between man and things which are part of creation. The Sharia contains the rules by which a Muslim society is organized and governed, and it provides the means to resolve conflicts among individuals and between the individual and the state.
There is no dispute among Muslims that the Qur'an is the basis of the Sharia and that its specific provisions are to be scrupulously observed. The Hadith and Sunna are complementary sources to the Qur'an and consist of the sayings of the Prophet and accounts of his deeds. The Sunna helps to explain the Qur'an, but it may not be interpreted or applied in any way which is inconsistent with the Qur'an.
Copy-boards held safely out of view on their heads, students in Djenné, Mali recite a Qur'an passage from memory. (Aramco World Magazine, September-October, 1991; photo Brynn Bruijn).
Though there are other sources of law—i.e., ijma', (consensus), qiyas, (analogy), ijtihad, (progressive reasoning by analogy)—the Qur'an is the first and foremost source, followed by the Hadith and Sunna. Other sources of law and rules of interpretation of the Qur'an and the Hadith and Sunna follow in accordance with a generally accepted jurisprudential scheme.
And nor shall we be punishing until we had sent them an Apostle.
Qur'an 17:15
The Qur'an contains a variety of law-making provisions and legal proscriptions interspersed throughout its chapters (suwar) and verses (ayat). A number of rules exist for interpreting these provisions, such as the position of a given ayah within the context of the surah, which in turn is interpreted in accordance with its place in the sequence of revelations, its reference to other revelations, and its historical context in relation to particular conditions which existed at the time of the given revelation. These and other rules are known as the science of interpretation (ilm usul aI-fiqh). According to these rules, for example, one initially is to refer to a specific provision and then to a general provision dealing with a particular situation. No general provision can be interpreted to contradict a specific provision, and a specific rule will supersede a general proposition. A general provision, however, is always interpreted in the broadest manner, while a specific provision is interpreted in the narrowest manner. Reasoning by analogy is permitted, as are applications by analogy, except where expressly prohibited. Simplicity and clear language are always preferred. Similarly, the clear spirit of certain prescriptions cannot be altered by inconsistent interpretations. A policy-oriented interpretation within the confines of the rules of jurisprudence is permissible and even recommended, as is the case with the doctrine of ijtihad (progressive reasoning by analogy).
"Avoid condemning the Muslim to Hudud whenever you can, and when you can find a way out for the Muslim then release him for it. If the Imam errs it is better that he errs in favor of innocence (pardon) than in favor of guilt (punishment)."
The Prophet's Hadith
"Were people to be given in accordance with their claim, men would claim the fortunes and lives of (other) people, but the onus of proof is on the claimant and the taking of an oath is incumbent upon him who denies."
The Prophet's Hadith
Muslim scholars do not consider Islam to be an evolving religion, but rather a religion and legal system which applies to all times. It is, therefore, the application that is susceptible to evolution. Indeed, the provisions of the Qur'an are such that by their disciplined interpretation, with the aid of the Hadith and Sunna and other sources of interpretation, Islam can, as intended, provide the solution to contemporary social problems.
Fourteen centuries ago Islam was a spiritual, social, and legal revolution. Its potential for effecting progress remains unchanged. This is essentially the belief of enlightened fundamentalist Muslims. Islamic fundamentalism is not, therefore, a regressive view of history and contemporary reality. Islam at the height of its civilization, between the seventh and eleventh centuries, was neither repressive nor regressive. It was a progressive, humanistic, and legalistic force for reform and justice.
Lo! Allah commandeth you that ye restore deposits to their owners, and , if ye judge between mankind, that ye judge justly. Lo! comely is this which Allah admonisheth you. Lo! Allah is ever Hearer, Seer.
Qur'an 4:58
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‘Islamic law’ refers to the diverse legal systems that have been and continue to be produced with the objective of being in accord with the Islamic faith. Islamic legal systems operate in multiple and sometimes discontinuous ways. Usage of the singular term ‘Islamic law’ should not be understood as suggesting the absence of legal polycentricity (multiple groups and institutions generate Islamic law) or legal pluralism (within Islamic societies, since Islamic and non-Islamic legal systems coexist). There are significant historical and substantive distinctions between ‘Islamic law’ and ‘Muslim legalities’ (the legal systems in use by Muslims). ‘Islamic law’ refers to juristic interpretations (fiqh) of divine law (sharīʿah); ‘Muslim legalities’ refers to either state law (where Muslims are the majority or minority) or the legal practices of non-state Muslim communities. The key distinction between these two overlapping categories is that Islamic jurisprudence is generated by an interpretive process anchored in canonical Islamic texts; in comparison, Muslim legalities are generated by an interpretive process anchored in a state or other legal system that may or may not be Islamic and with a population that may or may not have a Muslim majority (Salaymeh, 2014). The historical section on Islamic law in this article focuses on Arabia and other parts of the Near East, but Islamic law spread internationally by the beginning of the modern era. This article provides a basic overview of Islamic legal history and key aspects of Islamic jurisprudence.
Normative precedents of the earliest Muslim community
Human understanding or interpretation of divine law
Jurist, one who interprets divine law
Principles for interpreting divine law
Legal consensus of Companions or of Muslim community
Following established legal precedents
A nonbinding legal opinion issued by a jurisconsult (a specific kind of jurist qualified to give legal advice), sometimes in response to a question
A jurisconsult, meaning a jurist qualified to formulate Islamic legal opinions
Around the eighth century, referred to a group of students, jurists, and judges who adopted the doctrine of a particular leading jurist; later referred to the following of a particular legal school
URL: https://www.sciencedirect.com/science/article/pii/B978008097086884060X
There is a broad spectrum of constitutional recognition of Islamic law in the MENA. Turkey declared itself a secular state in 1937, after removing constitutional reference to Islam as the state religion in 1928. Syria's 1973 constitution does not identify a state religion. After the 1979 revolution, the Iranian Constitution made Islamic law the highest source of legal authority and made Iranian jurists an integral part of the government. Based on its own determination of Islamic suitability, the Iranian Council of Guardians (comprising 12 jurists) is responsible for interpreting the Iranian Constitution, has the ability to overrule any legislation, and can prevent candidates from participating in political elections. Pakistan declared Islamic law as more authoritative than its own constitution in 1991. To understand what these constitutional references (or lack of references) to Islamic law mean or how they operate, it is essential to examine actual case law. All states in the region incorporate a hybrid of secular and religious laws and institutions. Most states apply Islamic law in distinct ways and generalizations cannot be made about the role of Islamic law in a particular modern nation-state based only on the text of its constitution.
Most importantly, the overt religious/secular characteristics or structures of states do not necessarily shape the substance of a state's legal system. In contemporary political discourse, demands for the inclusion of Islamic law in the constitutions of nation-states with Muslim majority populations has become commonplace. This rhetoric must be understood within its complicated sociopolitical context: continued foreign intervention, undemocratic regimes, and limited social and economic mobility. Popular Islamist movements pose a serious threat to essentially secular, autocratic regimes. Moreover, the term Islamic law means different things to different people and is often a symbolic – rather than substantive – demand. Typically, demands for the enforcement of Islamic law are simply demands that particular orthodox or historical Islamic laws – particularly in the areas of family and criminal law – be applied. The integration of Islamic law in the legal systems of modern nation-states has a minimal impact on the daily operation of law because the preponderance of legal matters (in civil and commercial matters) is governed by ‘secular’ laws.
URL: https://www.sciencedirect.com/science/article/pii/B9780080970868861425
Efforts by Middle Eastern states to incorporate, rationalize, and secularize Islamic law have always met with ambiguous results, as the majority of Muslims remain suspicious of the motives of secular authorities. For a recent example, when al-Azhar was completely integrated into the Egyptian state in 1961, its graduates were increasingly seen as minions of the government. In response, many self-taught Muslims have opened their own local schools for the training of religious scholars (Gaffney, 1994). Similar patterns have occurred elsewhere in the Middle East, where popular mistrust of the official ulema has periodically led laymen and reformers to try to find a pathway to a purer and more egalitarian form of Islam.
This is so much the case today that, except in Iran, those offering an ‘Islamist’ critique of the state are usually autodidacts self-consciously distancing themselves from the class of the traditionally religiously educated, who are tainted by their graduation from state schools. But although ordinary Muslims are suspicious of the state, they are equally distrustful of those zealots who say they have privileged access to the truth. The best course, they believe, is to avoid conflict with the secular authorities, submit to the precepts of the Quran, sunna, and hadith, and rely on Allah’s infinite mercy.
URL: https://www.sciencedirect.com/science/article/pii/B9780080970868840143
Drug laws have been a common feature of human culture throughout history. Alcohol was prohibited under Islamic law and banned by the Koran more than a thousand years ago. Tobacco smokers returning from the Americas to Spain in the sixteenth century were subjected to torture, and in Russia Czar Michael Federovitch executed anyone on whom tobacco was found.
The United States antidrug legislation began in the late nineteenth century when smoking opium was banned in opium dens in San Francisco in 1875. The law was reported to have been a response to moral panic based on the fear that women, young girls, and young men were induced to visit the Chinese opium dens and were ruined morally and otherwise. These laws affected the use and distribution of opium by Chinese immigrants but not the use of laudanum, a combination of opium and alcohol used by Caucasian Americans. The laws were racist in both origin and intent.
In the United States the Harrison Narcotics Act was passed in 1914. This act required sellers of cocaine and opiates to have a license (usually only given to Caucasian people). It was originally intended to act as a revenue-tracking mechanism requiring a paper trail between doctors, drugstores, and patients. In 1920, the Supreme Court upheld, as a violation of the Harrison Act, that if a physician provided prescription narcotics for an addict, s/he was liable to prosecution. The Controlled Substances Act in 1970 replaced the Harrison Narcotics Act as the primary drug law in the United States. Drugs were classified according to their medicinal use, potential for abuse, and their likelihood of producing dependence.
The UN Single Convention on Narcotic Drugs was introduced in 1961, and this established the current system of global drug prohibition. It considered that addiction to narcotic drugs constituted a significant evil for the individual and economic danger to society. U.S. President Richard Nixon's War on Drugs began in 1969. Countries throughout the world have accepted drug prohibition because of the enormous pressure from the U.S. government, which continues to lead the War on Drugs and has found drug prohibition useful for its own purposes (Levine, 2002). The UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances was adopted in 1988, which further entrenched the prohibitionist framework.
The United States has the highest prison population rate in the world (Walmsley, 2003). According to the U.S. Justice Department, “while the number of offenders in each major offence category increased (from 1995 to 2003), the number of persons incarcerated for a drug offense accounted for the largest percentage of total growth (49%)” (Harrison and Beck, 2005b: 10).
There are many parallels between drug prohibition and alcohol prohibition. Despite the prohibition of alcohol going into effect in 1920, alcohol was readily available in most of the United States. Beer drinking was reduced, but consumption of stronger, hard liquor increased. When alcohol use was outlawed, it gave rise to gang warfare and spurred the formation of some of the most well-known criminals. The end of prohibition in 1933 led to an immediate decrease in murders and robberies.
URL: https://www.sciencedirect.com/science/article/pii/B9780123739605003567
Islamist movements advocate the ‘purification’ of Muslim religious life. In general they seek to restrict devotional acts to those prescribed by Islamic law. They strongly oppose Sufism and rituals rooted in or associated with pre-Islamic traditions. They also seek to establish the Islamic law as the basis for social and political life. They are significant voices in intellectual, social, and political discourse throughout Islamicate Asia. Most have intellectual roots in the theology of the nineteenth century Egyptian modernist Muhammad Abduh. They emphasize a combination of modern education and religious zealotry. Many believe that the realization of the goals can be facilitated by the establishment of Islamic states. Support for these movements is found primarily among urban, middle-class movements. They are strongly opposed by traditional religious elites and in most instances ignored by rural populations.
URL: https://www.sciencedirect.com/science/article/pii/B9780080970868840155
Tenure systems cannot be separated from their social and cultural contexts. Across the world different legal traditions (such as common law, civil law, Islamic, and socialist) operate a wide spectrum of land tenure forms, which are sometimes described as a continuum of land rights. However, as the Arabic saying goes, “Land differs from one foot of ground to the next”. Land tenure can be divided into three main types: private property, state property, and various forms of common or communal property.
The first tenure type, private property, may be held by individuals or legal entities such as companies. The English philosopher John Locke in the seventeenth century argued that an individual’s input of labour established an ownership right over land, which should not be constrained by feudal ‘superior’ interests. Private property rights are normally protected by the state, and in some regions human rights conventions guarantee individuals’ rights to property (in Europe under the First Protocol of the European Convention on Human Rights). This right is limited by the state’s right to deprive individuals rights of possessions under certain conditions (compulsory purchase), and to control the use of property (land-use planning). The rights associated with private ownership (the so-called bundle of rights beloved of land lawyers) are thus constrained by various statutory provisions, such as land-use planning, environmental controls, and water rights.
In the United Kingdom, private ownership is the dominant tenure form. In 1873, a total of 7000 individuals owned about 80% of the land area of Britain, a highly concentrated distribution of landed wealth. During the twentieth century, however, this was reduced by the breakup of many large estates, the rise in homeownership, easier availability of agricultural smallholdings, and the land law reforms of 1922–25. Nevertheless an estimated 200 000 individuals (mostly comprising the monarchy, aristocracy, and gentry) still own about two-thirds of the land.
The second tenure type, state land, is the land controlled by public bodies, whether the central government in different forms, regional or local authorities, or parastatal bodies (such as utilities). Under socialist or communist governmental systems, land is regarded as a basic factor of production. Hence it was generally brought under public control; the twentieth century saw a large expansion (associated with the two World Wars), and then contraction, of state landownership. In the United Kingdom during the Second World War the Government owned a sixth of the land area, but much of this was subsequently returned to private ownership, and more land was actively sold off in the privatisation programmes of the 1980s. In a reaction against post-War socialist-driven land reform in many countries, neoliberal policies have led to large-scale transfers of state land to private individuals and legal entities, as well as increased transnational capital flows into property. For instance, in 2007, the People’s Republic of China passed legislation to protect private property right
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