Jurisprudence and Law

Sources

Comprehensive Law . Muslim law, based on the divinely revealed and guided sources of the Qur’an and hadiths, forms the centerpiece and backbone of the religion of Islam. Unlike western systems of law, Muslim law covers and prescribes behavior in all areas of life, including both individual actions that are private to the self and relationships involving two or more parties. Thus, Muslim law is more comprehensive than most other legal systems. Indeed, the Qur’an makes clear that there can be no legitimate legal rulings that are not according to what God has revealed (5: 44–45, 47). Muslim law is also different from Western law in its source. It traces the origin of its principles and prescriptions back to texts of divine origin interpreted by scholars not usually in the employ of the state, thus establishing for a whole society a general legal system that is not directly administered by the state. Nevertheless, the rulers usually intervened in those areas of law that had public impact, often adding laws decreed and enforced by themselves. Thus, the Shari‘ah (sacred law) became more developed and remained more applied in the private realms

than in the public. In fact, one can place different categories of law on a continuum from more private to more public in order to show in a descending order the extent of the application of the Shari‘ah. These categories would be: forms of worship, necessarily the most private and the most ruled by religion, family law, commercial law, criminal law, judicial procedure, foreign relations and war, and lastly the administration of the state. In classical times, both religion and family law were thoroughly governed by the Shari‘ah.

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The commercial law of the Shari‘ah was extensive and detailed, but it could not always be enforced in practice, and the degree of its application varied. The criminal law was not as developed and was not thoroughly applied because the governments felt that the laws of evidence were too exacting to control crime effectively. Therefore, criminal cases were often handled by state mazalim courts rather than by Shari‘ah courts. Shari‘ah rules of judicial procedure were partly, but not completely, applied. Foreign relations, war, and governmental administration were under the total control of the state, which was only rarely swayed by religious arguments away from doing what was expedient.

Sources

Ahmad Hasan, Analogical Reasoning in Islamic Jurisprudence: A Study of the Juridical Principle of Qiyas (Islamabad: Islamic Research Institute, 1986).

Ahmad Ibn Naqib al-Misri, The Reliance of the Traveller: The Classic Manual of Islamic Sacred Law ‘Umdat al-Salik, 2 volumes, edited and translated by Nuh Ha Mim Keller (Evanston, I11.: Sunna Books, 1994).

Muhammad ibn Ahmad Ibn Rushd, The Distinguished Jurist’s Primer: A Translation of Bidayat al-Mujtahid, translated by Imran Khan Nyazee (Reading, U.K.: Garnet Publishing, 1994).

Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, revised edition (Cambridge: Islamic Texts Society, 1991).

Chibli Mallat, ed., Islam and Public Law: Classical and Contemporary Studies (London: Graham &,Trotman, 1993).

Burhan al-Din al-Marghinani, The Hedaya, or Guide: A Commentary on the Mussulman Laws, translated by Charles Hamilton (London: Bensley, 1791).