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p. 92


The Law: Fiqh, Sharī‘a

The most characteristic activity of Islamic scholarship has not been, as in other religions, theology, but the study and explication of the Law. The concept of a divine law is of course a very ancient one in the Semitic Orient; in Islam the concept of the Law follows naturally enough from the Qur’ān, where God appears as commanding and forbidding, rewarding and punishing. In addition, there is the Ḥadīth, and the belief, present from the earliest times, that rules of right behavior may be found in the example of the Prophet and the practice of the early Community at Medina. We may add that the early Arab-Muslim Empire found itself in need of a legal system for the exigencies of political power and did not have any coherent earlier legal system of its own at its disposal, as the early Christians did in the legal system of the Roman Empire. Islam is submission to the will of God; it follows therefore that the will of God, already partly made explicit in the Qur’ān, is knowable and that its study is a matter of primary concern for Muslims.

Early Islam made no distinction between law and religion. It is significant that the word for the legal system of Islam--the Sharī‘a--or "Way"--was relatively late in making an appearance, and the somewhat earlier word, fiqh, as "understanding," was used at first equally for the study of law and theology, though it has come to have an almost exclusively legal connotation. God speaks and

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commands, man submits and obeys. This obedience is not simply a passive or servile acceptance, however; Muslims conceive of their religion as a community which says "Yes" to God and His world, and the joyful performance of the Law, in most areas of the Islamic world, is looked on as a positive religious value. It is true that important segments of the Community have registered from early times a protest against the activities of the lawyers because they felt that the spirit was in danger of being lost in the legalistic debates of the jurisprudents; one must submit oneself to God, the mystics argued, not to the Sharī‘a. The lawyers could reply, however, that God is made known by His Word, and right conduct by the sunna; the Sharī‘a is only the explication of the Sacred Law contained in both; moreover, it is necessary for the right ordinance of the Community.

In later times, the Sharī‘a is seen by Muslims primarily as an all-embracing legal system, which should ideally govern all phases of Islamic life--though for reasons of public welfare the legists grant the Muslim rulers the right of suspending the application of certain portions of the public law and substituting secular law; this has especially been true for the laws of punishment. Still, the Sharī‘a is not thereby abolished or revoked--one does not revoke Divine Law--it is merely not enforced, because for temporal reasons it may not be feasible at that time and place to do so.

The collecting of the Ḥadīth and the codification of the Law formed the chief activity of the Muslim scholars of the first four centuries. Of the various law-schools, four main tendencies have survived and absorbed the other schools in Sunnī (Traditional) Islam, the orthodoxy of the Muslim majority, or better, their orthopraxy 1 (as one

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orientalist has penetratingly observed): for Muslims, consonant with their emphasis on the Law, have been more concerned with what men do than with what they believe, and very slow to reject any group of Muslims for wrong doctrine, unless that doctrine led the group to actively exclude itself, by its deeds, from the Community.

Every Sunnī must follow one school (madhhab) of the four accepted schools--Ḥanafī, Mālikī, Shafi‘ī or Ḥanbalī. Its precepts dictate how he performs religious duties and how he interprets the Law. Though he may properly feel that his own school is in some sense "better"--and there have been occasions of religious and political tensions between one school and another--the official position is that all four are right and acceptable.

While there is no priesthood or clergy in Islam, properly speaking, there is a class which has played a clerical role in Islamic society, and which has acquired social and religious prestige identical in kind to that exercised by the priests of other religions. This is the ‘ulamā’ (the "learned") and the fuqahā’ ("lawyers"), the scholars and custodians of the Law. It is they who have traditionally decided what is an "official position."

Perhaps a word is in order about the legal texts which follow. All of them are the work of medieval ‘ulamā’, who were revered because their work was held to indeed explicate the Divine Law in some way. But while authoritative, they are not held to have been infallible, and they frequently differed among themselves. Exactly what bearing their endeavors should have on the life of Muslims today is one of the more pressing and hotly debated issues of modern Islam. How much of their work is to be incorporated in the legislation of modern Muslim states is a matter of earnest questioning among the responsible classes

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of Muslims, while it still forms an important part of the studies of the ‘ulamā’.


95:1 Wilfred Cantwell Smith, Islam in Modern History (Princeton, 1957), p. 20.

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