The Origins of Islamic Law
Islamic law represents one of the world's great legal systems. Like Judaic law, which influenced western legal systems, Islamic law originated as an important part of the religion.
Sharia, an Arabic word meaning "the right path," refers to traditional Islamic law. The Sharia comes from the Koran, the sacred book of Islam, which Muslims consider the actual word of God. The Sharia also stems from the Prophet Muhammad's teachings and interpretations of those teachings by certain Muslim legal scholars. Muslims believe that Allah (God) revealed his true will to Muhammad, who then passed on Allah's commands to humans in the Koran.
Since the Sharia originated with Allah, Muslims consider it sacred. Between the seventh century when Muhammad died and the 10th century, many Islamic legal scholars attempted to interpret the Sharia and to adapt it to the expanding Muslim Empire. The classic Sharia of the 10th century represented an important part of Islam's golden age. From that time, the Sharia has continued to be reinterpreted and adapted to changing circumstances and new issues. In the modern era, the influences of Western colonialism generated efforts to codify it.
Development of the Sharia
Before Islam, the nomadic tribes inhabiting the Arabian peninsula worshiped idols. These tribes frequently fought with one another. Each tribe had its own customs governing marriage, hospitality, and revenge. Crimes against persons were answered with personal retribution or were sometimes resolved by an arbitrator. Muhammad introduced a new religion into this chaotic Arab world. Islam affirmed only one true God. It demanded that believers obey God's will and laws.
The Koran sets down basic standards of human conduct, but does not provide a detailed law code. Only a few verses deal with legal matters. During his lifetime, Muhammad helped clarify the law by interpreting provisions in the Koran and acting as a judge in legal cases. Thus, Islamic law, the Sharia, became an integral part of the Muslim religion.
Following Muhammad's death in A.D. 632, companions of Muhammad ruled Arabia for about 30 years. These political-religious rulers, called caliphs, continued to develop Islamic law with their own pronouncements and decisions. The first caliphs also conquered territories outside Arabia including Iraq, Syria, Palestine, Persia, and Egypt. As a result, elements of Jewish, Greek, Roman, Persian, and Christian church law also influenced the development of the Sharia.
Islamic law grew along with the expanding Muslim Empire. The Umayyad dynasty caliphs, who took control of the empire in 661, extended Islam into India, Northwest Africa, and Spain. The Umayyads appointed Islamic judges, kadis, to decide cases involving Muslims. (Non-Muslims kept their own legal system.) Knowledgeable about the Koran and the teachings of Muhammad, kadis decided cases in all areas of the law.
Following a period of revolts and civil war, the Umayyads were overthrown in 750 and replaced by the Abbasid dynasty. During the 500-year rule of the Abbasids, the Sharia reached its full development.
Under their absolute rule, the Abbasids transferred substantial areas of criminal law from the kadis to the government. The kadis continued to handle cases involving religious, family, property, and commercial law.
The Abbasids encouraged legal scholars to debate the Sharia vigorously. One group held that only the divinely inspired Koran and teachings of the Prophet Muhammad should make up the Sharia. A rival group, however, argued that the Sharia should also include the reasoned opinions of qualified legal scholars. Different legal systems began to develop in different provinces.
In an attempt to reconcile the rival groups, a brilliant legal scholar named Shafii systematized and developed what were called the "roots of the law." Shafii argued that in solving a legal question, the kadior government judge should first consult the Koran. If the answer were not clear there, the judge should refer to the authentic sayings and decisions of Muhammad. If the answer continued to elude the judge, he should then look to the consensus of Muslim legal scholars on the matter. Still failing to find a solution, the judge could form his own answer by analogy from "the precedent nearest in resemblance and most appropriate" to the case at hand.
Shafii provoked controversy. He constantly criticized what he called "people of reason" and "people of tradition." While speaking in Egypt in 820, he was physically attacked by enraged opponents and died a few days later. Nevertheless, Shafii's approach was later widely adopted throughout the Islamic world.
By around the year 900, the classic Sharia had taken shape. Islamic specialists in the law assembled handbooks for judges to use in making their decisions.
The classic Sharia was not a code of laws, but a body of religious and legal scholarship that continued to develop for the next 1,000 years. The following sections illustrate some basic features of Islamic law as it was traditionally applied.
Cases involving violations of some religious duties, lawsuits over property and business disputes, and family law all came before the kadis. Most of these cases would be considered civil law matters in Western courts today.
Family law always made up an important part of the Sharia. Below are some features of family law in the classic Sharia that would guide the kadi in making his decisions.
- Usually, an individual became an adult at puberty.
- A man could marry up to four wives at once.
- A wife could refuse to accompany her husband on journeys.
- The support of an abandoned infant was a public responsibility.
- A wife had the right to food, clothing, housing, and a marriage gift from her husband.
- When the owner of a female slave acknowledged her child as his own, the child became free. The child's mother became free when the owner died.
- In an inheritance, a brother took twice the amount as his sister. (The brother also had financial responsibility for his sister.)
- A husband could dissolve a marriage by repudiating his wife three times.
- A wife could return her dowry to her husband for a divorce. She could also get a decree from a kadi ending the marriage if her husband mistreated, deserted, or failed to support her.
- After a divorce, the mother usually had the right of custody of her young children.
The classic Sharia identified the most serious crimes as those mentioned in the Koran. These were considered sins against Allah and carried mandatory punishments. Some of these crimes and punishments were:
- adultery: death by stoning.
- highway robbery: execution; crucifixion; exile; imprisonment; or right hand and left foot cut off.
- theft: right hand cut off (second offense: left foot cut off; imprisonment for further offenses).
- slander: 80 lashes
- drinking wine or any other intoxicant: 80 lashes.
Officials of the caliph carried out the penalties for these crimes.
Crimes against the person included murder and bodily injury. In these cases, the victim or his male next of kin had the "right of retaliation" where this was possible. This meant, for example, that the male next of kin of a murder victim could execute the murderer after his trial (usually by cutting off his head with a sword). If someone lost the sight of an eye in an attack, he could retaliate by putting a red-hot needle into the eye of his attacker who had been found guilty by the law. But a rule of exactitude required that a retaliator must give the same amount of damage he received. If, even by accident, he injured the person too much, he had broken the law and was subject to punishment. The rule of exactitude discouraged retaliation. Usually, the injured person or his kinsman would agree to accept money or something of value ("blood money") instead of retaliating.
In a third category of less serious offenses such as gambling and bribery, the judge used his discretion in deciding on a penalty. Punishments would often require the criminal to pay a reparation to the victim, receive a certain number of lashes, or be locked up.
The victim of a criminal act or his kinsman ("the avenger of the blood") was personally responsible for presenting a claim against the accused criminal before the court. The case then went on much like a private lawsuit. No government prosecutor participated although certain officials brought some cases to court.
The classic Sharia provided for due process of law. This included notice of the claim made by the injured person, the right to remain silent, and a presumption of innocence in a fair and public trial before an impartial judge. There were no juries. Both parties in the case had the right to have a lawyer present, but the individual bringing the claim and the defendant usually presented their own cases.
At trial, the judge questioned the defendant about the claim made against him. If the defendant denied the claim, the judge then asked the accuser, who had the burden of proof, to present his evidence. Evidence almost always took the form of the direct testimony of two male witnesses of good character (four in adultery cases). Circumstantial evidence and documents were usually inadmissible. Female witnesses were not allowed except in cases where they held special knowledge, such as childbirth. In such cases, two female witnesses were needed for every male witness. After the accuser finished with his witnesses, the defendant could present his own.
If the accuser could not produce witnesses, he could demand that the defendant take an oath before Allah that he was innocent. "Your evidence or his oath," the Prophet Muhammad taught. If the defendant swore he was innocent, the judge dismissed the case. If he refused to take the oath, the accuser won. The defendant could also confess to a crime, but this could only be done orally in open court.
In all criminal cases, the evidence had to be "conclusive" before a judge could reach a guilty verdict. An appellate system allowed persons to appeal verdicts to higher government officials and to the ruler himself.
Islamic Law Today
In the 19th century, many Muslim countries came under the control or influence of Western colonial powers. As a result, Western-style laws, courts, and punishments began to appear within the Sharia. Some countries like Turkey totally abandoned the Sharia and adopted new law codes based on European systems. Most Muslim countries put the government in charge of prosecuting and punishing criminal acts. In the area of family law, many countries prohibited polygamy and divorce by the husband's repudiation of his wife.
Modern legislation along with Muslim legal scholars who are attempting to relate the will of Allah to the 20th century have reopened the door to interpreting the Sharia. This has happened even in highly traditional Saudi Arabia, where Islam began.
Since 1980, some countries with fundamentalist Islamic regimes like Iran have attempted to reverse the trend of westernization and return to the classic Sharia. But most Muslim legal scholars today believe that the Sharia can be adapted to modern conditions without abandoning the spirit of Islamic law or its religious foundations. Even in countries like Iran and Saudi Arabia, the Sharia is creatively adapted to new circumstances.
For Discussion and Writing
- How did the Sharia develop differently than Western law systems like our own?
- What differences do you see between the criminal law and court procedures of the classic Sharia and the criminal justice system in the United States today? What similarities are there?
- Which features of the classic Sharia do you agree and disagree with the most? Why?
For Further Reading
'Awa, Muhammad Salim. Punishment in Islamic Law : A Comparative Study. Indianapolis: American Trust Publications, 1982.
Bassiouni, M. Cherif, ed. The Islamic Criminal Justice System. London: Oceana, 1982.
Hallaq, Wael B. Law and Legal Theory in Classical and Medieval Islam. Brookfield, Vt. : Variorum, 1995.
Khadduri, Majid, Law in the Middle East, edited by Majid Khadduri and Herbert J. Liebesny. Washington: Middle East Institute, 1955.
A C T I V I T Y
The Classic Sharia and Early Islamic Society
Laws can tell us much about a culture. They can inform us about the society's government, economy, geography, family relations, religious beliefs, technology, and much more.
Listed below are seven statements concerning the classic Sharia of the 10th century. Form small groups. Assign each group one of the statements. Members of each group should:
(1) Examine their assigned statement and any other material relating to it in the article.
(2) Write down as many facts about early Islamic society as they can infer from the statement.
(3) Report the facts they have discovered to the rest of the class in order to develop a picture of early Islamic society.
Statements From the Classic Sharia
- A Muslim could be tried and punished for not performing his religious duties.
- A woman counted as one-half a man if called as a witness in a trial.
- When the owner of a female slave acknowledged her child as his own, the child became free. The mother became free when her owner died.
- The most serious crimes in the Sharia included adultery, highway robbery, theft, and drinking alcohol.
- Islamic criminal courts exercised due process of law.
- If witnesses were not produced, the defendant could be asked to take an oath before Allah that he was innocent.
- Punishments included death by sword and stoning, mutilation, lashes, retaliation, "blood money," reparation, and imprisonment.
The following are some important general overviews of Islamic law as an ideal-theoretical endeavor and some problems of studying Islamic law in practice. The works of Goldziher 1981 and Schacht 1964 represent the first few generations of modern Western (“Orientalist”) scholarship on Islamic law and theology. Their contributions have been built on, and corrected for, by others such as Wael Hallaq.
Amanat, Abbas, and Frank Griffel, eds. Shariʿa: Islamic Law in the Contemporary Context. Palo Alto, CA: Stanford University Press, 2007.
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Edited volume by a number of prominent scholars that includes essays examining a range of issues, from modern Muslim discourses on justice, natural law, and the common good, to democracy, the social contract, and “the authority of the preeminent jurist” (Khomeini's vilayet-e-faqih).
Bearman, Peri, Wolfhart Heinrichs, and Bernard G. Weiss. The Law Applied: Contextualizing the Islamic Shariʿa. New York: I. B. Tauris, 2008.
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Collection of essays in honor of Frank Vogel on a wide variety of topics broadly connected to the application of Islamic law.
Doi, ʿAbdur Rahman I. Shariʿah: the Islamic Law. Kuala Lumpur: A. S. Noordeen, 2002.
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Thematic introduction to both jurisprudence and positive law.
Kamali, Mohammad Hashim. Shariʿah Law: An Introduction. Oxford, UK: Oneworld, 2008.
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An introduction to a number of aspects of Islamic law, with a recognizable slant towards Kamali's modernist and reformist views. The chapters on legal maxims and the maqasid al-shariʿa are very helpful, although most readers will find the book less useful for the study of Islamic jurisprudence than his Principles of Islamic Jurisprudence.
Goldziher, Ignaz. Introduction to Islamic Theology and Law. Princeton, NJ: Princeton University Press, 1981 .
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Goldziher's classic lectures on Islamic theology and law from 1910.
Schacht, Joseph. An Introduction to Islamic Law. Oxford, UK: Clarendon Press, 1964.
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This work represented the state of knowledge of Western scholarship on Islamic law, along with his Origins of Muhammadan Jurisprudence. It should now be read alongside more recent works, particularly those by Hallaq.