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Fruit of the Tree of Knowledge >
The Institutionalization of Islamic Practice in the Shariah

In creeds such as that of ibn Abi Zayd al-Qayrawani, the concept of practice becomes more than just a matter of doctrine; it also becomes a matter of law. The notion of the law in Islam is expressed by two different but semantically related terms: shariah (the “way” or method set out by God) and fiqh (the “understanding” or application of this method in specific cases). In theory, all Islamic law is divine in origin because it is rooted in God's commandments in the Quran. In practice, however, most of the precedents for Islamic legal decisions are found not in the Quran but in the Sunna—particularly in that portion of the hadith that reflects the prophet Muhammad's interpretations of Quranic rulings. Despite this apparent discrepancy, it is not correct to assume that Islamic law is extrascriptural like the Western system of secular laws. Although not all of the content of Islamic law comes directly from the Quran, the Quran still retains its scriptural nature for Muslims because the Prophet's precedent-setting judgments are believed to be divinely inspired.

When speaking about Islamic law, informed Muslims use the term shariah to connote the sacred law as a global concept or ideal, while fiqh is used to connote the ongoing interpretation of the law through the schools (four Sunni and one Shiite) of juridical practice (madhhab, pl. madhahib). From the earliest days of Islamic history, knowledge of the law was regarded by Muslims as essential knowledge, the very epitome of “science” (ilm) itself. But the science of the law, like any other science, does not stand still. Ideal principles are useless unless they are put into practice, and the changing conditions of Islamic society demanded new interpretations and applications of the way set forth by God and the Prophet Muhammad. For this reason the interpretive science of fiqh was developed in the first Islamic century. From an historical perspective the relationship between shariah and fiqh can be summarized by saying that the shariah developed as the paradigm or model of the Islamic way of life, whereas fiqh, the application of the shariah to specific cases, developed as the paradigm of Islamic reasoning. In these two concepts, one normative and ideal and the other hermeneutical and practical, a true complementarity between theory and practice is achieved. Without the open-ended interpretive process of fiqh, the shariah is no more than an immobile edifice, unresponsive to changing times. Without the anchor of tradition embodied in the shariah, the interpretive process of fiqh is liable to cut itself off from its scriptural roots and reduce Islamic law to a system of situational ethics.

As an institution, Islamic law has been weakened considerably over the past century. A combination of debilitating factors, including the substitution of Western notions for Islamic conceptions of justice under colonialism, attempts by authoritarian regimes to bypass the judicial process, the rise of Islamic populism under various forms of Islamic modernism, and the trivialization of religious training in modern secular education have conspired to undermine the status of the four Sunni schools of fiqh. Today, few Muslims can claim to be true scholars of the law (fuqaha, sg. faqih), and most believers are confused about what the shariah really means. A common belief fostered by modern political Islamists is that only the shariah—but not fiqh—constitutes the true law of God. According to this perspective, the content of the shariah is to be found in the Quran, the Sunna, and in cases in which consensus has been reached among the four Sunni schools of fiqh. However, the interpretive methodologies of these schools—their very reason for being—are to be eliminated as sources of dissension that undermine Muslim unity. This negative view of Islamic jurisprudence—which is advocated by such groups as the Muslim Brotherhood, the Jamaat-i-Islami of Pakistan, and the Taliban of Afghanistan—ignores the essential complementarity of shariah and fiqh and threatens to deny Islamic law the ability to adapt to changing conditions. Even worse, the refutation of fiqh has often led to a travesty of the Islamic practice of justice by opening the process of legal reasoning to the influence of political demagoguery.

Partisans of hadith and other scriptural literalists see fiqh as an extrascriptural (and hence, invalid) form of law because it entails the extension of rulings from the Quran and Sunna into new domains on the basis of analogical reasoning. Some rulings in Islamic law come directly from the Quran; these are seldom disputed. Others come from the hadith and are usually held to be binding if they are transmitted from reliable sources. Still other rulings, however, are found neither in the Quran nor in the hadith but are analogically derived from similar or comparable cases found in these primary texts. This last category of rulings provides most of the differences of opinion that separate the schools of Islamic jurisprudence from one another. This is also where culture and hermeneutical methods play their most significant roles in the process of interpretation.

The methodology of each school of fiqh is founded on the concept of living tradition, which consists of a combination of the Sunna of the Prophet and the practice (amal) of a particular legal school. The methodological perspective of each school has been refined over centuries of legal research and dialectical disputation and holds the status of a canon to which all jurists in a particular school adhere. This canon, or “imitation” (taqlid) of the decisions and interpretive methodology of a particular legal school, should not, however, be thought of as a formal law code. Very few decisions of Islamic jurists attain the status of binding consensus (ijma). Instead, juridical opinion (ijtihad) is likely to coalesce around a majority interpretation or ruling, while minority positions continue to exist as alternative interpretations. Although the opinion of the majority may attain the status of de facto consensus in certain regions, the fiqh system, as traditionally applied, remained open to differences of opinion and even allowed later revisions of the majority opinion. Cases even exist in which practices permitted by the Quran or the Sunna were abandoned by Muslims in later generations, according to the needs of equity (istihsan) or legitimate public interest (maslahah mursalah). Such is the case, for example, with the practice of slavery. Although the effects of slavery are clearly mitigated in the Quran, the practice itself was never abolished in Islam. Slavery has become so abhorrent to modern sensibilities, however, that no Muslim country officially allows it within its borders. To justify this change of opinion, Muslim jurists used the concept of gradualism to argue that the mitigation of slavery's cruelty in the Quran implied God's intention that the practice be ultimately abolished.

The actions of individuals in Islamic law are judged on the basis of five valuations, which rate each act according to its permissibility in a specific context. Most religious obligations, such as the Five Pillars of Islam, are regarded as obligatory (fard or wajib). These are acts whose commission is rewarded by God and whose omission may be punished by God, the Islamic state, or both. In many Muslim countries, for example, willful neglect of the fast of Ramadan may result in fines or even imprisonment. In some countries, such as Saudi Arabia, parajudicial organizations exist whose purpose is to ensure that people make their five daily prayers at the proper times and adhere to consensual standards of decency. Most acts in Islamic law, however, although still ethically valued, are not considered obligatory. Instead, they fall under the three central categories of moral valuation: approved (mandub or mustahabb), morally neutral (mubah), and morally reprehensible (makruh or mahzur). Although the omission of obligatory acts may bring about punishment from the state, this is not the case for acts that are merely approved; conversely, the commission of acts that are disapproved is not likely to bring about punishment. In such cases, whatever reward or punishment accrues from the act is a matter for God to decide, while the commission or omission of an act is a matter for each person's conscience. The neutrality or permissibility (ibaha) of an act means exactly what it says: neither reward nor punishment accrues to the perpetrator.

At times, members of the public may seek an opinion (fatwa) about the permissibility of an act from a specialist in Islamic law (faqih or mufti). In coming up with his opinion, the legal expert is likely to collapse the three middle categories of moral valuation into two: permissible (jaiz) for acts that are either approved or neutral, and impermissible (ghayr jaiz) for acts that are either disapproved or forbidden (haram). For the most part, acts that are clearly forbidden are mentioned in the Quran and include such vices as murder, sexual license, cheating, gambling, eating pork, consuming alcohol, and taking usury. In such cases the opposite of the rule applied to obligatory acts pertains: the comission of a forbidden act is likely to be punished by both God and the state, while its omission is rewarded by God. Forbidden acts of a particularly severe nature, which threaten the social and moral order of the Muslim community, are seen as transgressing the limits (hudud, sg. hadd) set by God Himself and thus have punishments that are mandated in the Quran. In such cases, which include the crimes of murder, theft, and (by analogy) adultery, not only the rights of the victim but also the “rights of God” (huquq Allah) are violated.

The “five values” of Islamic law were never meant to be abstract ideals, totally divorced from the contexts in which they occurred. This point is often forgotten by contemporary Muslim politicians, who seek to create legal mandates for moral or ethical ideals without the benefit of juridical training or experience. In earlier, more judicious times a number of important questions were asked about human actions before they were assigned a specific status in the hierarchy of values. Such questions included: Which is the primary valuation to be used when judging an act: permissibility or prohibition? If an act is not explicitly prohibited in the Quran or the Sunna, is it automatically permissible? Or should it be deemed forbidden until proven otherwise? Which actions are obligatory for every Muslim (fard ayn) and which are obligatory only for the community in general (fard kifayah)? If an act is fard kifayah, what is the minimum number of people required to perform it? Questions such as these were often asked about Islamic rituals. For example, the five canonical prayers are required for every Muslim and thus are considered fard ayn. But the two festival (Id) prayers, which are performed in commemoration of the end of Ramadan and the sacrifice made by the hajj pilgrims after the “standing” at Arafat, are fard kifayah. Although both prayers are to be held congregationally, it is not required that every Muslim attend them. Similarly, while attendance at the Friday congregational prayer (salat al-jumu ah) is fard ayn for all Sunni men, for women it is fard kifayah. For Shiite Muslims the Friday prayer is fard ayn for men only when the Imam is present. In the absence of the Imam (who is presently believed to be in a state of occultation), it is fard kifayah. This is why in a Shiite country such as Iran the Friday prayer is often held in only a single location in each city.

Furthermore, is forbidden the opposite of lawful? Does a rule apply in all cases or must the jurist first investigate the merits of each case before making a decision? Is it possible to forbid an act because of its consequences, even if it is not forbidden per se? What makes a thing forbidden? Is it forbidden intrinsically, in that it is bad in and of itself, or is it forbidden extrinsically, in that it is bad only because of the way in which it is used? Such questions are often asked about such forbidden substances as pork or alcoholic beverages. Many Indian and Pakistani Muslims, who still preserve the notions of intrinsic purity and impurity held by the Hindu religion, consider not only the flesh but all other parts of the swine to be forbidden. Thus, they forbid the use of such products as pig-bristle hairbrushes or pigskin footballs. In the Middle East and North Africa, however, it was usually not the pig itself that was deemed forbidden but only the act of eating its flesh. In these regions grafts made of pig skin might even be used to treat head wounds. At what point do circumstances change the valuation of an act? Although the flesh of swine and carrion are forbidden for Muslims, it is permissible to eat them if the alternative is starvation. But what about the Quranic order to “command the good and forbid evil?” (Quran 3:104). When should this be applied? And might the imperative to enforce the good cause an even greater evil than the original sin itself if this leads to social unrest, terrorism, or revolution? Such questions are all too pertinent today in such countries as Algeria and Egypt, where this injunction has been applied by Muslim insurgents in an especially severe and uncritical manner.

The answers to such questions lie at the heart of the differences between Islamic schools of law. Other differences are methodological in nature and revolve around the assessment of tradition. The Hanafi school of jurisprudence, for example, founded by the Iraqi jurist Abu Hanifa (699–767), tends to be somewhat distrustful of the hadith as a source of law and gives greater weight to the analogical reasoning (ray or qiyas) of jurists in the formation of legal opinions. This stance has led to both a greater flexibility in decision making and a potential for political abuse. The Maliki school of jurisprudence, founded by the Medinan scholar Malik ibn Anas (ca. 715–795), is also somewhat critical of the hadith but still prefers to ground its decisions in tradition. Malik chose to take the collective tradition of the Prophet's city of Medina as his main source of precedent, while later Maliki scholars saw this tradition continued in the decisions made by Maliki jurists in North Africa and Muslim Spain. Although it was respected for its consensual approach to tradition, the Maliki school of law was often criticized for going its own way in the Muslim West and ignoring a wider consensus that may have formed in other parts of the Muslim world.

The Shafii school of law—founded by the successors of Muhammad ibn Idris al-Shafii (767–820), the first systematic legal theorist in Islam—sought to balance reason and tradition by prioritizing sources of knowledge. For al-Shafii the primary source of legal decisions is the Quran, followed by the Sunna of the Prophet, analogical reasoning, and binding consensus. This model is now accepted by all schools of jurisprudence in Sunni Islam. The Hanbali school, founded by al-Shafii's student Ahmad ibn Hanbal (780–855), also adheres to this method, but it depends more on tradition and uses analogical reasoning only as a last resort. The dominant Shiite school of jurisprudence, the Jafari, named after the sixth Shiite imam Jafar al-Sadiq (ca. 699–765), adheres for the most part to the methodology associated with the Hanbali school of law, but it includes traditions of the twelve Shiite imams among its corpus of hadith. Each of these last three schools of law can be criticized for reifying and idealizing tradition to such a degree that the corpus of hadith is not subjected to rational analysis or content criticism. Individual ahadith are accepted as true by these schools even if only one transmitter links these traditions to either the Prophet or an imam and regardless of whether they agree or disagree with an apparent ruling in the Quran.

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