þ7ùFW¹øFRERETETETETETETETETEôU9UUUUDW™W™W™ W¹W¹W¹W¹( Chapter 9 Law and the State in Classical Islamic Formulations Islam as a Way of Life Like Judaism, Islam is a religion and a way of life, extending into all areas of the communityÕs existence and activity. Because of this concern for all of life, law became central from the earliest period when Muhammad was bringing the new community into being in Medina. Like Moses, Muhammad was a political leader and judge as well as a spiritual guide and teacher. He was not, of course a technical legal expert, nor was there during either his lifetime or for some time after anything resembling a legal code or system of jurisprudence. These were only gradually developed over a period of two to three centuries. But the impulse toward law was fundamental from the time of IslamÕs origins and eventually replaced the ArabsÕ customary, unwritten practices, uniting them and many other peoples into a new system of belief and order, an international umma. The SharIøÔa and Fiqh The technical Islamic word that best conveys the sense of Islamic law, in both its character and constitution, is SharõøÔa. Literally, it means Òthe way to the water holeÓ but also includes the meaning of Òthe right pathÓ to follow, and thus came to mean Òlaw.Ó Although it is correct to translate the word as simply Òlaw,Ó it is better to regard law in the strict, codified sense, as only one dimension of SharõøÔa. Like the Jewish notion of Torah, SharõøÔa is more than law; it is also the right teaching, the right way to go in life, and the power that stands behind what is right. The contemporary Muslim scholar Fazlur Rahman has translated SharõøÔa as Òthe ordaining of the way,Ó1 indicating the lawÕs divine source and purposeful direction. For Muslims, God is the sole legislator, and jurisprudenceÑthe science of the lawÑis but a system designed to facilitate human obedience to and service of God. As has often been said with respect to the SharõøÔa, ÒHumankind has no rights, only duties.Ó The SharõøÔa, then, comprises all that might be positively called law and occupies the central place in the Islamic system of final authority and ordering principle. It is an ideal as well as a reality and unites and guides the Muslims in both time and space, down through the generations and across the diverse and widespread regions of Islam. The SharõøÔa gives Muslims a profound sense of security and stability. Far from being an unwelcome or burdensome imposition, it is considered to be the greatest of blessings and guidance for successful individual and communal life in this world, in preparation for the hereafter. The SharõøÔa, as divine legislation, is not the same as fiqh, although it includes it. Fiqh means ÒunderstandingÓ and fairly early came to be the main term for the Òscience of jurisprudence.Ó As a science with classifications, methods of argumentation, and techniques of application, it is a product of human intelligence and experience. But its sources, the essence of the SharõøÔa, are revealed and immutable. Human reason cannot fully penetrate the SharõøÔa, and it certainly may not question or criticize it, for it is holy. But human intellect may and indeed should be used at the levels of judgment and application, under the SharõøÔa. This is the level of fiqh, of the science of law. The QurÕan and the Law When Muhammad was alive, he led the Muslims by means of the accumulating revelation of the QurÕan and by his own example and precept, as has been described in earlier chapters on the Message and the Sunna of the messenger. After the ProphetÕs death, the Muslims naturally turned to these sources as the most authoritative guides for the community. RaÕy In addition to the QurÕan and the SunnaÑand it must be remembered that each had its own complex and gradual developments as texts and collections of textsÑearly Muslim jurists also exercised personal opinion, known as raÕy. There was no systematized legal procedure until relatively late in the development of IslamÕs classical institutions, and so during the early generationsÑapproximately until Abbasid timesÑlegal thinking and decision making were carried out in an atmosphere both diverse and flexible. The QurÕan was the main authority, but gradually the H.adõøth also gained wide currency and influence, as we saw earlier. To a certain extent, local custom in the countries that were converted to Islam was appropriated as part of Islamic law. This had the effect of rendering the law understandable and familiar in some respects and was a pragmatic and flexible means of extending Islamic principles in places where traditional practices posed no threat to Islam. In short, the developing Islamic legal system was quite tolerant and accommodating on practical levels. But this is not to suggest that the main source, the QurÕan, was compromised. Rather, it is to acknowledge that the communityÕs needs far exceeded the limited and often quite general commands and prescriptions of the QurÕan. Although all Muslims are united in the conviction that the divine legislation is first and foremost contained in the QurÕan, the sacred scripture nevertheless is impossible to use as a law by itself. It provides no clear, consistent method for its own use and in any case simply does not touch upon many areas of human life that a detailed code must consider. Even though the QurÕan may contain the essence of Islamic law and the basis for adjudicating any imaginable situation that might arise, it still does not show how to proceed on a practical level. The conviction is unexceptionable, but its application is impossible without some sort of system and method, which the QurÕan does not provide. But the QurÕan did unite the Muslims ritually, linguistically, and spiritually and in these ways prevented any irretrievable deviations from developing even in a varied legal environment. And the Sunna of the Prophet, although it did not become fully developed and did not include the notion of MuhammadÕs infallibility until later, was nevertheless paired with the QurÕan from the time of the rightly guided caliphs in Medina and exploited for guidance and legislation. But in the earliest periods of the ummaÕs development, in Medina, Kufah, and Damascus, there was not nearly the amount of h.adõøth material circulating that was to be available by the time of the Abbasids. To the extent that it did exist, it was simply not available in literary form, but dispersed among the companions and their descendants. The exemplary collecting and sifting of reports of such scholars as Muslim and al-Bukhaørõø was still far in the future, as we have seen. There is much more legislative matter in the H.adõøth than in the QurÕan, and the question arose as to which was the more authoritative. Theoretically, of course, the QurÕan had to be regarded as primary, because it was held to be the word of God and not of humanity. But Muhammad, as the messenger of God, was obviously the sole authentic interpreter of the QurÕan. Thus, his words on this or that QurÕanic passage were accepted as authoritative. Gradually everything Muhammad did was to be considered infallible and thus worthy of emulation as Sunna. Qiyaøs Even the Sunna did not provide all that the Muslims needed for specific legislation and legal guidance. Thus there was created a practice of analogical reasoning known as qiyaøs, which was nearly universally recognized as a third source of law. Qiyaøs developed from raÕy, Òpersonal judgment,Ó but was generally logically stricter and productive of a far narrower range of possible conclusions. When a problem arose that neither the QurÕan nor the H.adõøth could resolve, an attempt was made to find an analogous situation in which a clear determination had already been made. There was a difference of opinion over analogical deduction, but it was finally accepted in some form by most law schools, which sometimes cited the following h.adõøth, relating what Muhammad asked MuÔaødh b. Jabal when he sent him to the Yemen to be a judge (qaød.õø): ÒHow will you decide when a question arises?Ó He replied: ÒAccording to the Book of Allaøh.ÓÑÒAnd if you do not find the answer in the Book of Allaøh?ÓÑÒThen according to the sunna of the Messenger of Allaøh.ÓÑÒAnd if you do not find the answer either in the Sunna or in the Book?ÓÑÒThen I shall come to a decision according to my own opinion without hesitation.Ó Then the Messenger of Allaøh slapped MuÔaødh on the chest with his hand saying: ÒPraise be to Allaøh who has led the messenger of the Messenger of Allaøh to an answer that pleased him.Ó2 Ijtihaød RaÕy is the term used in this h.adõøth for Òopinion,Ó but it is immediately preceded by a verb meaning Òto exerciseÓ oneÕs intellect, from which we get the technical term ijtihaød, independent legal reasoning in search of an opinion. Ijtihaød contains within it a sense of exertion, even struggle, and is from the same root as jihaød, ÒexertionÓ in the way of God, including holy war if necessary. Ijtihaød and qiyaøs are often used interchangeably, but the former is actually more general, including within its purview other forms of legal reasoning. One who exercises ijtihaød is known as a mujtahid. Although this kind of intellectual exertion served as a main method in the elaboration of Islamic law in the early centuries, as positions gradually solidified and opinions were widely adopted, the Muslims tended more and more to imitate and accept on authority what their predecessors had to struggle to achieve. This development led to taqlõød, ÒimitationÓ and acceptance on authority, without engag...
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