Islamic Law: Nature, Sources & Schools

Islam, Islamic Law and Sharia:

Islamic law is a divine law. It affirmed only one true God. It demanded that believers obey God's will and laws. 

–“And indeed this, your religion, is one religion, and I am your Lord, so fear Me." (23:52) 

Then Allah declared at the time of Hajjul Bida: 

–“This day have I perfected your religion for you, completed my favour upon you, and have chosen for you Islam as your religion.” (Q- 5:3)

Then Islam was Introduced to remove all the darkness into the chaotic Arab world. 

–“There shall be no compulsion in [acceptance of] the religion. The right course has become clear from the wrong.” (2:256) 

–“And say,“Truth has come, and falsehood has perished. Indeed falsehood, [by its nature], is ever perishing/bound to perish (The Night Journey (17:81) 

This verse is rationalized due to chaotic situation in the then Arab because Before Islam, the nomadic tribes inhabiting the Arabian peninsulas used to worship 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. The Holy Quran declares that:

“And most of them believe not in Allah without associating (others as partners) with Him.” (Q. 12:06) 

Then women did not have any recognized social status. “In general, women were treated as chattels. There was no limit to a man’s taking as many wives as he liked. There was no recognized rule for a woman to inherit from her ancestors or husband. Birth of a daughter was regarded as inauspicious and disliked (Q. 16:58-59). Most inhuman was that many Arabs, out of a false sense of honour and for fear of poverty buried alive their young daughters (Q. 6:137; 6:151).”  

However, laws and rules came from principles of Islam are regarded as Islamic Law. David Pearl and Werner in Muslim Family law/ Joseph Schacht in An Introduction to Islamic Law pointed out correctly that:

“The sacred law of Islam is an all-embracing body of religious duties, the totality of Allah’s commands that regulate the life of every Muslim in all its aspects; it comprises on an equal footing ordinances regarding worship and ritual, as well as political and legal rules.”

Sharia is an Arabic word which means "the right path,". It refers to traditional Islamic law. And Fiqh refers to deep knowledge about Sharia. It can be termed as the science of studying Sharia law. The Sharia comes from the Holy Quran, the sacred book of Islam, which Muslims consider the actual words of God, Hadith and Sunnah of the prophet Mohammad (SM. Again, developments to Islamic Law come from Analogy and consensus are also recognized in Islamic jurisprudence.  

Why is Islamic law relevant to our Legal System? 

In spite of having a secular legal system, we find relevancy of Islamic Law in our country. Our legal system recognizes personal laws to be followed for personal matters like marriage, divorce and inheritance etc. This matter is reflected in the following definition of law contained in our Constitution which includes customs and usages having force of law as laws applicable in Bangladesh:

"law" means any Act, ordinance, order rule, regulation, bye-law, notification or other legal instrument, and any custom or usage, having the force of law in Bangladesh; (Art 152 of the Constitution of BD)

Again article 41 of the Constitution provides that:

“Subject to law, public order and morality- (a) every citizen has the right to profess, practice or propagate any religion”

Again, section 2 of the Muslim Personal Law (Shariat) Application Act, 1937  requires Muslims to follow Islamic Law in all the personal matters. Section 2 of the said Act reads as follows:

“Application of Personal Law to Muslims.—Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal properly inherited or obtained under contract or gift or any other provision of Personal Law. marriage, dissolution of marriage, including talaq, ila, zihar, lian, khulaand mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs(other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”

Above discussion about relevancy of Islamic Law in our country carries process that we have a pluralistic legal system. Legal pluralism refers to the idea that in any one geographical space defined by the conventional boundaries of a nation state, there is more than one law or legal system. Thus having the recognition of the practice of personal law for personal matters covers the nature of pluralistic legal system.  

Sources of Islamic Law

The Quran: First Source of Sharia Law: Quran is the sacred book of Muslims, and is the primary source of the Muslim Law. Allah revealed the Holy Quran through Angle Jibrael (AS) to Prophet Muhammad (Peace be upon him). The Holy Quran is a complete code of life. It tells us what Allah wants us to do and not to do from birth to death. However, when it does not speak directly on a certain subject, Muslims only then turn to alternative sources. 

Sunnah: Second Source of Shariah Law: The word Sunnah means “a system”, “a path”, or “an example”. In Islam, it refers to the words, practices and consensus of the Prophet Muhammad (Peace be upon him. Sunnah and hadiths are regarded as the interpretation of Holy Quran because it clarifies details of what is stated generally in the Quran. Thus Sunnah, it is the part of every Muslims’ faith that it must be followed.

Ijma: Third Source of Sharia: It may be defined as: “Consensus of opinion of the companions of the Holy Prophet Muhammad (Peace be upon him) or Muslim jurists of the first three centuries of the Hijra.” Ijma can be simply described as the agreement on any dispute arisen after the departure of prophet Mohammad (SM). The recognition of Ijma may be understood from the following Hadith of Prophet Muhammad (SM), who said: 

“If anything comes to you for decision, according to the book of Allah, if anything comes to you, which is not in the book of Allah, then look to the Sunnah of the Prophet (Peace be upon him). If anything comes to you, which is not in the Sunnah of Prophet Muhammad (Peace be upon him), then look to what people unanimously agrees upon.” 

• Qiyas: Fourth and Last Source of Shariah Law: Qiyas means analogy or “Judging by comparing with a something”. It may be defined as “The analogy from the Quran, the Sunnah, and Ijma”. Qiyas can be carried out only when it be in accordance with Quran, Sunnah, and Ijma but direct contradiction with these sources invalidates Qiyas. Qiyas may be validated from the following Hadith of Prophet Muhammad (SM), who said: 

“Judge upon the book of Allah, upon the Sunnah of the Prophet, and if you do not find it in that, then use your personal opinion.” 

For example, about smoking there is no explicit quranic verses or hadith that told Muslims about smoking. But some scholars consider smoking as "haram" (forbidden) and some consider as “makruh e tahrimi” using qiyas because scientific research told us that smoking has a harmful effect for our body (health) and The Quran says that Muslims are forbidden to do something harmful to their body.

Methods of analyzing or interpreting Sharia law 

Ijtihad: Ijtihad is the secondary source of Islamic law. It is the interpretation of principles and provisions of Quran and hadith by faqeeh or imam.  

Istihsan: it means preference. If the number of solutions to a given problem are available then the jurists will accept the most favourable one.

Istislah: this means public good. The jurist will reach to a solution in order to ensure public good.

Statutory law and Judicial Ijtehad 

Statutory Law: For unification and codification the legislatures make law relating to family matter in modern time following the fundamental principles of Islamic Sharia law. In Bangladesh we have many legislations on Islamic personal matters like: 

1.    The Dissolution of Muslim Marriage Act, 1939

2.    The Muslim Family Laws Ordinance, 1961 

3.    The Family Courts Ordinance, 1985 

4.    The of Muslim Marriages and Divorces (Registration) Act, 1974 

Judicial Ijtehad/ Judicial Precedent: the decision of the Supreme Court and interpretation regarding any sharia matter is regarded as judicial ijtehad. For example; Hefzur Rahman vs. Shamsun Nahar (51 DLR, AD 172) case.

Schools of Islamic law  

• The difference in opinion of Islamic jurists regarding Qiyas in any disputing matters signifies the identity of a new discipline. This gave birth to different schools of Islamic law. • Sunni and Shia are the two main sections in Islam. 

• There are four important schools of law among Sunnis. They are Hanafi, Maliki, Shafie and Hanbali. 

Hanafi School: Hanafi school is the most popular one amongst Muslims. This school’s name derives from its founder, Abu Hanifa. This school basically relies on customs and precedents of the Muslim traditions came from Prophet Mohammad (SM). And following the tradition Hanafi school emphasizes on Qiyas and tries to give solution regarding many disputing matters. Hedaya is the most authoritative book of this school.

Maliki School: This school got its name after the name of its founder Malik-bin-Anas. It originates almost to the same period as the Hanafi school but it flourished first in the city of Madina. While the Hanafi school relies on Qiyas (interpretations of jurists), the Maliki school originates from Sunna and Hadith.

Shafie School: This school originates from Muhammed bin Irdis Shafi, who was a student of both Imam Malik and Imam Hanafi. The Muslim world considers him to be one of his most important jurists. The Shafi school is basically a combination of the Maliki school and the Hanafi school. 

Hambali School: Ahmed bin Hanbal, a disciple of Imam Shafi, was the creator of this school. His theory rejected the Shafi school for relying on Qiya, i.e. the personal analogical reasoning and interpretations of the people. Instead, he insisted on going back to Sunna and Hadith to interpret the Quran and other laws.

(If any dispute arises between the opinions of two imams on any subject matter, every opinion will be regarded as correct.)