Thursday, 28 May 2020

The General Characteristics of Islamic Law

Islamic law is “evolutionary” in that its full growth took centuries and passed through various phases. It began with general principles stated in the basic sources of Islam, namely, the Qur’an and the Traditions of the Prophet.

At first, it dealt with simple, practical problems of everday life, but as time went on it grew complex and inclusive. Its sources encompassed a wide range of basic, supplementary and rational roots, as the following simplified outline shows.”1

Basic Sources

  1. The Qur’an, the revealed word of Allah.
  2. The Sunnah of the Prophet, his deeds, words and indirect authorization or Sunnah taqririyyah.

Supplementary Sources

  1. Revelations of Allah before the Prophet, to previous prophets and peoples
  2. Consensus of the Prophet’s Companions or qualified jurists
  3. The enlightened judgment of a qualified Companion
  4. ‘Urf, i.e., customs, precedents, mores, etc.

Rational Sources

  1. Analogy (Qiyas)
  2. Preference (lstihsdn)
  3. Public interest (Maslahah)
  4. The “Means” or Instrumentalities (Dahard’V)
  5. Presumption of continuity (Istishab)
  6. Independent disciplined reasoning (Ijtihad)

Whatever the implications of the controversy over the religious versus the social origins of law and the relationship between Islamic and other legal systems, certain characteristic features of Islamic law are unmistakable. In Islam, religion and law, in Gibbs words: are indivisible. . . . Law is the external concept of religion.

From this follow two important consequences as distinguishing features of law in Islam.

The first is the width of the field it covers. . . . The second is the spirit by which its judgments are made. . . . In framing its definitions, therefore, the ethical aspect is paramount; and in no case may the legal judgment conflict with it.”2

The system as a whole “is, in Maine’s sense, a system of equity. Like other systems of equity, it is addressed to the individual conscience and acts personam.

It differs from other systems of equity in that it is not content to exist alongside the original law it supersedes, but rather abrogates or absorbs it.” In accordance with the strict legal element, justice remains, but in accordance with Islam, “religion demands that it shall be tempered with mercy or even, in the relation between man and man, replaced by mercy.”3

Moreover, one fundamental rule in Islamic law is the principle of “liberty” or “permissibility” (ibahah), that is, everything is in essence lawful unless explicitly designated otherwise.

Islamic law, like other systems of law, recognizes that social life would be unthinkable without some specific rules. But, and probably unlike them, it extends its applications to overt and covert behavior, to the manifest acts and the innermost feelings and thoughts of man.

It is true that such covert aspects of behavior may not fall within the realms of formal law; but this is probably where the moral religious precepts become most meaningful.

An act is not only legal or illegal, formally ethical or unethical, behaviorally physical or mental; it is, above all else, a total involvement that is highly consequential and judiciously weighed by a very sensitive scale.

Thus, any action can be classified in Islamic law under one of five basic categories: obligatory; voluntary but meritorious and commendable; neutral, permissible, or unlawful; reprehensible; and forbidden.

There are, of course, finer classifications and grades and intermediate grades in between."4

On the basis of this outlook, human action is highly consequential in the direct legal, moral and religious sense.

Action in Islamic law is rewarded or punishable in the here and now if it is judicially detectable, and in the hereafter if it is not so. This is part of the actor’s definition of the situation, a definition which takes the conception of Allah as a basic element of the entire situation of action. It is also part of the definition of the situation that the norms provided by Islamic law are for the welfare of man here as well as hereafter.5

What empowered this complex and multidimensional system was probably the combination of five factors. One is the belief in the absolute sovereignty of Allah and the brotherhood of Muslims.

The second is the characteristic effort to hold fast to old and well-tried ways and assimilate to them the new situations—fixity, tempered with flexibility.

Third is the application of the law to the committed only, namely to the Muslim in whose conception all is from Allah, and all shall return to Him. Fourth is the independence of the jurists in their formulations and decisions.

Finally, there is the conception of the law as a comprehensive, unified and unifying force.6

To understand and explain the system, it is necessary to realize the complementary nature of its religious, moral, and legal elements. Considering Islamic law from the strictly legal, moral, or religious point of view alone is probably more misleading than helpful.

Even taking legalism and morality into consideration, but disregarding religion, is more omissive than inclusive and may be just as misleading.

What seems lacking in the views of most critics is adequate appreciation of the religious component, whose purpose is to integrate and reinvigorate the ethical and legal elements, and whose appeal to or impact upon the actor may be greater than that of formal codes of law and ethics.7

At any rate, the most characteristic feature of Islamic law may be stated in the following proposition: while Islamic law attempts to “moralize” legal action and formalities by placing them in the context of religion and morality, it tends to discourage the formalization or “ritualization” of the religious and moral precepts.

This may be correlated with the designation of social control as ultimately moral.
The fact that Islamic law holds the religious, moral, and legal elements as indivisible may suggest that in the Islamic conception of society the mechanisms of social control are likewise indivisible.

Human behavior is so complex that to control it in a comprehensive way there must be an integrative synthesis of religion, morality and law. This tendency of Islam may also suggest that the legal system of a society is determined by, and in turn determines, the ends of that society.

Because of both the worldly involvement and the otherworldly concern of Muslim society, Islamic law was formulated with a view to incorporating in one system a religious spirit, a moral fabric, and a mundane practicality.

In short, Islamic law is distinguished by the variety of its sources, by the wide areas of “behavior” it covers as well as the range of the religious, moral, and legal principles of action it contains. It assigns to man a greater responsibility and to action more consequences than are perhaps found in comparable systems of law or behavior.

It sets before man ends beyond his immediate sense of time and space, conceiving God as an integral part of any action situation.


1. For a balanced view of this extremely controversial issue, see especially the following sources: al ‘AnI; Coulson (1 ); Vesey-Fitzgerald; Ibn Taymiyyah; al Jassas; Khadduri; Khallaf Madkur; MahmasanI; Schacht (3 ); Shaltut (2 ).
2. Gibb (1), p. 149; cf. pp. 146 ff; (2), p. 87, (3), pp. 88 ff, 99 seqq .; Khadduri, pp. 3-4; Coulson (1 ), pp. 11-4, 83; Schacht (2).
3. Gibb (3), pp. 33 ff; (1), pp. 150, 159 ff; cf. Abu Zahrah (3), p. 21; Coulson (1), p. 83; Khadduri, p. 22; MacDonald, pp. 86-7; Perelman, pp. viii-xi; Ibn Qudamah, vol. 8, pp. 166 ff.
4. See, for example, Khallaf, pp. 112-132; S h o r te r E n c y . o f Is ldm , p. 526.
5. Cf. Justice Jackson, in Khaddouri e t al., eds., p. vii; Gibb (3), pp. 99 ff; Coulson (1), pp. 83-4 Vesey-Fitzgerald, pp. 2, 7-8; Santillana, pp. 289-92, 305; MahmasanI (2), p. 106; al Q u r ’a n , 5:3; 21:107; 22:78.
6. Cf. Gibb (1), pp. 147, 164-5; (2), p. 88; (3), pp. 104 ff; Coulson ( 1 ) , pp. 25-6, 8 3-4; Khadduri, p. 22.
7. Cf. Gibb ( 1 ) , p. 163. F o r a general discussion of the highly complex concept of justice and related issues, see Perelman. On the relationship between the differential effects of social norms, see, for example, Davis ( 1 ) , ch. 3.

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