The Sharia. Where did Islamic Law come from?

Essay, 2014
10 Pages, Grade: 2,0


Thinking about where Islamic Law comes from, we have to distinguish between the scientific side, fiqh, and the religious side, the revealed texts.[1] With God as the legislator, society has to incorporate the given rules into daily life. However they are not always clear, so frictions are attempted to be solved using the four sources of Islamic Law.[2] Hence, Islamic Law can not exist just as a fixed statute, which regulates rights and duties of Muslims.[3] It is more a method to interpret what the law includes, influenced strongly by the opinions of different legal scholars. There exists therefore an uncertainty in what the law finally includes, because of disagreements between scholars, called ikhtilāf.[4]

'Sharï'ah' is often mentioned in connection with Islamic Law. The original meaning is God's will, but now is used as a term for the Islamic legal rules applied to the lives of Muslims.[5] The applicable rules are the achievements of scholars, who tried to interpret God's will. God's will is expressed in the primary

Islamic texts, the Qur'an and the Sunnah. This is the Revelation.[6] The Qur an is the word of God, written down in text form.[7] It contains rules, which are free of uncertainty.[8] On one side, the Qur an is general in many cases and arising problems can only be solved by the help of the Sunnah. Conversely, the Qur an can be specific in telling stories about very detailed cases. Conversely, the Qur an can be specific in telling stories about very detailed cases. Then it is

possible to create a general rule from a specific case.[9] [10]

Beside the Qur'an, exists the Sunnah as another source of Islamic Law, equal to the Qur'an.1Ω The Sunnah represents the actions and sayings of the Prophet Mohammed himself.[11] They are written down in text form as well, called hadith.'[12] A haďth is divisible in two parts. These two parts are the isnād and the main. Isnād mentions the names of the direct source and the transmitters.[13] After the isnād follows the main. It contains the action or saying of the Prophet. Sometimes the matn can be about actions or sayings of students or companions of Mohammed.[14] In contrast to the Qur'an, ahadith are not free of uncertainty.[15] This is due to the number of ahadith and the method of oral transmission through the isnād.'[16] This increases the possibility of loosing important details of the haďth or to add falsities. From this it follows that a haďth has to be proven. Firstly, the isnād is disputable, it must be clarified if the narrators between the action or saying and the final written formulation are trustworthy. Secondly, the text of the haďth can be interpreted in different ways. Thus, it must be ensured that a suitable person interprets it.[17] [18] [19] Thirdly, there are contradictory ahaďth about the same topic or the same action. Resulting from that, it is possible to categorise haďth in sahih18 and da'if,'9■[20] practised by legal scholars.[21] The Qur'an and the Sunnah, summarised under the headline

'Revelation', can be qualified as the first “level in the process of establishing the law”.[22]

Therefore, the requirement to test the ahaďth were the initial point of the examination with the juristic understanding process.[23] A main point of this process is to conceive what God wants by studying the revealed texts, this science is called fiqh.[24] In the middle of the eighth-century,[25] some legal scholars acquired a diversified knowledge of the actions and sayings of the Prophet by working intensely on fiqh.[26] They also interpreted the ahadlth, but every one in a different way. Some scholars interpreted quite strictly and literally close to the written texts, denying that there is a law beyond the Qur an, the Sunnah and the traditions, others took a more flexible approach.[27] By and by, four big opinion leaders became increasingly important. Their names were Abū Hanīfa, Mâlik b. Anas, Muhammad b. Idrīs al-Shāfiī and Ahmad b. Hanbal.[28] Later, the four Sünnî schools of law: the Hanafi school, the Maliki school, the Shafi'i school and the Hanbali school, were founded, named after the big legal scholars. The Arabic term for the schools is 'madhhabs'.[29] They consolidated fiqh as 'study of law'.[30] These lawyers, especially Shāfi ī, developed a methodology to compose actual legal rules considering the texts of the Qur an and the Sunnah.[31] The process starting from rare religious texts to a legal rule is called ijtihād.[32] The madhhabs specified this for their own school by using particular methods. But all in all, there are two important instruments, which represent the second and third level of establishing Islamic Law.[33] These are /)'ma' and qiyas.

Ijmā' is the third source of Islamic Law, after the Qur'an and the Sunnah. The literal meaning of ,ijmā" is 'what our society [where we live] agrees on'.[34] It describes the consensus between all Muslims.[35] The idea behind this source is that Muslim society could not agree on a topic and form a view, which is in conflict with the Revelation.[36] There cannot be consensus in the community, which at the same time disagrees with the Qur'an and the Sunnah. Consequently, ijmā' is the result of ijtihād.[37] By ascertaining God's will through consensus in society, they establish a legal rule. In practise, consensus only exists about very general and undoubted topics.[38] Regarding the categories of Ahkam, such topics are often under Islamic commandments of fard or wãjib[39] and haram[40]. An undoubted topic in the category of wãjib, which Muslim society reached a consensus on is the performance of the daily prayer.[41] There are juristic disagreements in connection to the third source of Islamic Law. It is debatable who has to reach the consensus - legal scholars or the whole society. The convincing majority established the idea that consensus between the scholars is crucial.[42]


[1] N Calder and others, 'Law' [1] in OEIW. Oxford Islamic Studies Online, <http://> ac It contains rules, which are free of uncertainty In their content cessed 5th November 2014

[2] К Vlkor, 'Between God and the Sultan: A History of Islamic Law' (2005), Preface V

[3] К Vlkor, loc. cit., p.1

[4] К Vlkor, loc. cit p.1

[5] K Vlkor, loc. cit., p.2

[6] N Calder, loc. cit, [2]

[7] ΚΑΕΙ Fadl, 'Speakingin God's Name: Islamic Law, Authority, and Women' (2001 ), p. 100

[8] К Vlkor, loc. cit., p.32

[9] К Vikor, loc. cit., p.36

[10] ΚΑΕΙ Fadl, loc. cit., p.100

[11] ΚΑΕΙ Fadl, loc. cit, p.100

[12] Arabic plural: ahadTth

[13] Isnād = chain of narrators, which transmitted the story orally

[14] K Vikor, loc. cit., p.38-9

[15] K Vikor, loc. cit., p.32

[16] ΚΑΕΙ Fadl, loc. cit, p.101

[17] ΚΑΕΙ Fadl, loc. cit, p.101

[18] = trustworthy

[19] = less trustworthy

[20] K Vikor, loc. cit., p. 41

[21] К Vikor, loc. cit, p. 41

[22] К Vi kor, loc. cit., p. 31

[23] N Calder, loc. cit, [2]

[24] K Vikor, loc. cit., p.27

[25] N Calder, loc. cit, [2]

[26] K VI kor, loc. cit., p.22

[27] K Vlkor, loc. cit., p.23

[28] N J Coulson, A History of Islamic Law (1964), p.86 et seq.

[29] N J Coulson, loc. cit, p.86

[30] К Vi kor, loc. cit., p.28

[31] K Vikor, loc. cit., p.31

[32] K Vlkor, loc. cit., p.31

[33] к Vikor, loc. cit., p.31

[34] К Vikor, loc. cit., p.78

[35] K Vikor, loc. cit., p.352

[36] N J Coulson, Ioc. cit, p.59

[37] N J Coulson, loc. cit, p.78

[38] N J Coulson, loc. cit, p.59

[39] = Cumpolsory actions

[40] = Sinful actions

[41] N J Coulson, loc. cit., p.59

[42] К Vikor, loc. cit., p.79

[43] ΚΑΕΙ Fadl, loc. cit., p.64

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The Sharia. Where did Islamic Law come from?
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Peter Krause (Author), 2014, The Sharia. Where did Islamic Law come from?, Munich, GRIN Verlag,


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