essay about islamic law

Islamic Law Blog

Content and Context on Islamic Law

What Is Islamic Law? How Should We Study It?

By Joseph Lowry (University of Pennsylvania)

I study the legal doctrine and legal theory, broadly construed, found mostly in formal written works produced by qualified Muslim jurists ( ʿulamāʾ , fuqahāʾ ), that may or may not have been practiced, enacted, or enforced. Other literary and documentary evidence may shed light on that body of doctrine and theory and on practices derived from them. [1] Khaled Abou El Fadl has referred to such materials as “juristic discourses.” [2]

When did pious speculation by individual Muslims evolve into the formal, organized production of Islamic legal knowledge? Ibn al-Muqaffaʿ (d. ca. 139/757), in his Risāla fī al-ṣaḥāba, highlights one negative consequence of that evolution—legal disagreement—as an impediment to efficient imperial administration. So the very late 1st/early 8th centuries seems like a reasonable starting point, but determining precisely how and why that process commenced will require painstaking study of compilations such as the Muṣannaf s of ʿAbd al-Razzāq al-Ṣanʿānī (d. 211/827) and Ibn Abī Shayba (d. 235/849) with careful attention to individual doctrinal complexes, critical scrutiny of pathways of transmission, and appropriate contextualization relative to neighboring legal traditions (West Arabian, South Arabian, Roman, Christian, Jewish, Zoroastrian). Marion Katz and Kecia Ali have provided model studies of early Islamic legal doctrine, studies that are sensitive to the logics of the early sources and contexts while employing productive and modern critical lenses. [3] Harald Motzki and others have pursued a method for dating early legal dicta that is defensible and potentially fruitful for reconstructing that early history, but the history of the emergence and early development of individual areas of doctrine remains to be written. [4]

The appearance toward the end of the 2rd/8th century of law books that share similar principles of organization and extensive presentations of doctrine (Mālik’s (d. 179/795) al-Muwaṭṭaʾ and the works of al-Shaybānī (d. 198/804-5) and al-Shāfiʿī (d. 204/820), for example) signals an advanced state of sophisticated and self-conscious legal expertise and thus the emergence of jurists and their legal literature as institutions in their own right. In addition to jurists and doctrine, Wael Hallaq would require a judiciary and a clearly articulated legal theory before we can speak of Islamic law as fully formed. [5] Legal theory is evidence of the jurists’ consciousness of being involved in an enterprise governed by rules (in this case, rules of interpretation, broadly construed), so that may be a useful criterion, but I am not sure a judiciary is required before we can speak of Islamic law. On the one hand, the histories of early judges by al-Kindī (d. 350/961) and Wakīʿ (d. 306/918) can be illuminating for studying the early evolution of doctrine. [6] The early judges’ activities provide a window onto what Schacht famously labeled “Umaiyad administrative practice.” [7] On the other hand, there is something to Norman Calder’s point that much of what is distinctive about Islamic law—conceived of as juristic discourses—may remain distinctive in the complete absence of real-world application. [8] Perhaps the jurists’ pious speculation about norms is sufficient for Islamic law to exist.

It may be instructive to compare the modern study of premodern Islamic law with the modern critical study of Rabbinic law in its Palestinian and Sasanian-Babylonian settings. Recent studies of the Rabbis suggest that their own self-presentation may vastly overstate their social importance and thus the social footprint of Rabbinic law in the Jewish communities of those two areas. [9] If Rabbinic law were not actually applied and enforced in Roman Palestine and Sasanian Babylonia in the ways implied by the Mishna and the Talmuds and related texts, would we think, as a result, that there was no such thing as Rabbinic law?

One consequence of locating the “beginnings” of Islamic law in the decades of the late 1st/early 8th centuries may be that legal materials datable to a time before the rise of jurists and doctrine require separate handling and conceptualization. Qur’anic legal material, considered in its original Meccan and Medinan setting, emerged in Arabia as part of the Biblical literature of Late Antiquity. Likewise, the Prophet’s acts, such as ransoming rather than executing prisoners of war, belong to the law of early 7th-century Medina (in this case, the law of armed conflict). [10] Early jurists’ efforts to accommodate Qur’anic doctrines and formally collected Prophetic precedents ( ḥadīth ) represent the inception of a distinctively Islamic legal hermeneutics. We should not assume that Islamic law was an inevitable outcome of the early Qur’anic-Prophetic community in Mecca and Medina.

Some will probably find my working definition (and that’s all it is) of Islamic law too narrow; no doubt there are other valid ways of conceptualizing and studying Islamic law. The most important thing is to explain, when we write, what we mean by Islamic law, what sources we study and why, and why we hold the views we do. That is how we signal the bodies of evidence to which our conclusions may validly be applied. Of course we should argue about definitions, about what counts as evidence, and about our assumptions, language, conclusions, method, theoretical orientation, and so on. Everyone’s views are contestable, which quality may be what makes everyone’s views valuable (in this or any other field of humanistic inquiry).

Can ‘law’ be defined so narrowly—as the literary output of private scholars—without reference to the state? Knut Vikør, in his Islamic law textbook, begins by suggesting that there may be no such thing as Islamic law. [11] He says this because he recognizes that, in regard to doctrine, Islamic law is multi-vocal (as Ibn al-Muqaffaʿ complained), but also because he assumes that ‘law’ must always be state law and therefore uni vocal. It is definitely possible to make the case for an Islamic legal system, in which doctrine and public law are equally relevant, and equally ‘Islamic’ in some sense. [12] But is every decisory or administrative action of a Muslim holder of executive or administrative authority, in a political context in a premodern Muslim society, an Islamic act such that it deserves to be deemed a part of Islamic law?

That would be one way to understand the question posed by the 7th/13th-century jurist Shihāb al-Dīn al-Qarāfī (d. 684/1285) in his work on adjudication and legal opinions, recently translated by Mohammad Fadel. [13] I worry about this question for reasons different than those that drove al-Qarāfī to grapple with it. I worry that public discourse (including academic discourse) often threatens to impute religious motives, sensibilities, or doctrines to Muslims in a way that makes them paragons of unrelenting religiosity—exoticized, hyper-religious actors who serve as foils for an ideologically driven picture of secular modernity. (As an aside, and back to the topic of “beginnings,” a noteworthy trend in the historiography of Late Antique Arabia proposes accounting for Arab political domination of Western Asia without assuming that religious ideology played a primary role. [14] )

For some, even defining ‘law’ as necessarily including power and enforcement is too narrow. Wael Hallaq makes Islamic law stand, metonymically, for premodern Muslim societies. Doing so allows him to argue that the dismantling of Islamic legal institutions by European colonizers should be understood as the wanton destruction of whole societies. Hallaq’s approach is politically attractive in some respects, but it flattens out the Islamic legal tradition and robs actors of agency and the capacity to innovate. The Ottomans, for example, with their codified administrative law and routinization of penal law, might have been portrayed, in a Foucauldian vein, as modernizers. [15] Hallaq’s critical stance toward modernity and the state seems also to preclude considering elements of modern legal systems that draw on the tradition of fiqh as authentic. [16]

The humanistic study of pre-modern Islamic legal thought in the present moment presents a dual challenge. Careful examination of the rich Islamic legal tradition through the lens of current travails will reveal familiar injustices, to be sure, and perhaps illuminate important aspects of this moment of social and political turmoil and upheaval. But we must also take care not to reduce our sources to a mirror of our own pressing predicaments, howsoever urgent.

[1] There is much to study outside the literature of fiqh , uṣūl al-fiqh , and related genres, such as Ottoman court records, the madhhab s’ own prosopographical literature, to say nothing of the recent, important work on documentary evidence (including that drawn from the Cairo Geniza, as in Uriel Simonsohn’s A Common Justice: The Legal Allegiances of Christians and Jews under Early Islam (Philadelphia: University of Pennsylvania Press, 2011)). I cannot cite all the new and exciting scholarship in these and many other areas, so I have limited myself to a few representative works (not all of them recent) to illustrate the limited number of points I am trying to make in this short, informal essay.

[2] Abou El Fadl distinguishes between Islamic law, Muslim law, and juristic discourses. He uses “Muslim law” for “the way in which the political and legal order actually dealt with” specific legal issues, as “qualified by specific historical and social practices.” By “Islamic law” he seems to mean an authoritative rule presented as capable of actualization in response to certain facts—a univocal rule of the kind that juristic discourse does not really produce. By “juristic discourses” he means the totality of the products of the jurists’ intellectual efforts and imaginations, which include their expressions of commitments to moral, political, or theological principles. Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2001), 2–3.

[3] Marion Katz, Body of Text: The Emergence of the Sunnī Law of Ritual Purity (Albany: SUNY Press, 2002); Kecia Ali, Marriage and Slavery in Early Islam (Cambridge: Harvard University Press, 2010).

[4] Harald Motzki, The Origins of Islamic Jurisprudence: Meccan Fiqh before the Classical Schools , tr. Marion Katz (Leiden: Brill, 2002). In his short “Afterword” (at p. 299), Motzki notes that the history of early Islamic legal doctrine remains to be written. For some relevant reservations about Motzki’s methodological assumptions, see Paul Gledhill, “Motzki’s Forger: The Corpus of the Follower ʿAṭāʾ in Two Early 3rd/9th-Century Ḥadīth Compendia, Islamic Law and Society (2012) 19:1/2, 160–193. A recent study exploring techniques for dating early legal ḥadīths is Hiroyuki Yanagihashi, Studies in Legal Hadith (Leiden: Brill, 2019). A geographically oriented method for dating early traditions is offered by Behnam Sadeghi, “The Traveling Tradition Text: A Method for Dating Traditions,” Der Islam 85.1 (2008), 203–42. Patricia Crone’s learned attempt to locate the Islamic patronate in Roman Provincial Law yielded only ambiguous results. Patricia Crone, Roman, Provincial and Islamic Law: The Origins of the Islamic Patronate (Cambridge: Cambridge University Press, 1987).

[5] Hallaq requires these “essential attributes” to be in place before the “formation” of Islamic law can be called complete. Hallaq understands the madhhab s, not merely the jurists, as an essential component. Wael Hallaq, Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press, 2005), 3.

[6] Matthieu Tillier’s many studies of the early judiciary are important. See, for example, his translation of al-Kindī’s history of judges, Histoire des cadis égyptiens: Aḫbār quḍāt Miṣr (Cairo: IFAO, 2012).

[7] Joseph Schacht, The Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press, 1967), esp. 190–213. On Islamic tort law as product of the administration of the garrison cities, rather than a survival of pre-Islamic Arabian custom, see Norman Calder, Studies in Early Muslim Jurisprudence (Oxford: Clarendon Press, 1993), 202–08. Al-Kindī’s portrayal of the activities of judges in early Islamic Egypt seems to support Calder’s suggestion.

[8] Norman calder referred to works on positive law, fiqh , as “a literary tradition, abstracted from reality” and held that the jurists exhibited, in their writings, “a literary purpose [that does] not include reference to the contingent world of social events.” Norman Calder, Islamic Jurisprudence in the Classical Era , ed. C. Imber (Cambridge: Cambridge University Press, 2010), 35, 47.

[9] It has been argued that the Rabbis were “neither the political nor the religious leaders of the Jews… [the Rabbis were] little more than a marginal sect, with little or no constituency or influence” [83] and that their texts were “propagandistic fictions composed to serve the interests of later rabbis” that sought “to create a fictive sense of reality for polemical purposes.” Seth Schwartz, “The Political Geography of Rabbinic Texts,” in The Cambridge Companion to the Talmud and Rabbinic Literature , ed. C. Fronrobert, M. Jaffee (Cambridge: Cambridge University Press, 2007), 75–96 (quotations from pp. 83 and 86). Another author in the same volume describes Rabbinic depictions of instruction as “exaggerated or utopian projections of Rabbinic ideals.” Jeffery Rubinstein, “Social and Institutional Settings of Rabbinic Literature,” 58–74, at 58.

[10] Lena Salaymeh shows that Islamic legal doctrine deviated from the Prophet’s practice on this point. Lena Salaymeh, The Beginnings of Islamic Law: Late Antique Islamicate Legal Traditions (Cambridge: Cambridge University Press, 2016), ch. 2, 43–83. I borrow the useful term “beginnings” from the title of her provocative book. She refers to “Islamicate” law, which is a good way to avoid an over-theologization of the wide range of legal practices attested in premodern Muslim societies and to leave space for, among other things, non-Muslim legal practices. I reviewed Salaymeh’s book in Marginalia <https://marginalia.lareviewofbooks.org/breaking-law-criticizing-modern-study-islamic-law/>.

[11] Knut S. Vikør, Between God and the Sultan: A History of Islamic Law (Oxford: Oxford University Press, 2005), 1.

[12] For a study conceived and executed along such lines, in which public law figures prominently, see Kristen Stilt, Islamic Law in Action: Authority, Discretion, and Everyday Experiences in Mamluk Egypt (Oxford: Oxford University Press, 2011). For a complementary study in which the connectedness of fatwā -giving and litigation is explored in an exemplary manner, see David Powers, Law, Society, and Culture in the Maghrib, 1300–1500 (Cambridge: Cambridge University Press, 2002). Noah Feldman makes a convincing case for a pre- and early-modern Islamic constitutional order in which Muslim jurists played a key role. Noah Feldman, The Fall and Rise of the Islamic State (Princeton: Princeton University Press, 2008).

[13] Mohammad Fadel, tr., The Criterion for Distinguishing Legal Opinions form Judicial Rulings and the Administrative Acts of Judges and Rulers (New Haven: Yale University Press, 2017).

[14] See Robert Hoyland , In God’s Path: The Arab Conquests and the Creation of an Islamic Empire (Oxford: Oxford University Press, 2015) and Greg Fisher, ed., Arabs and Empires Before Islam (Oxford: Oxford University Press, 2015).

[15] In his important history of Islamic law, Hallaq studiously avoids viewing pre-colonial Muslim societies through a Foucauldian lens. Wael Hallaq, Sharīʿa: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009).

[16] The modern claim, made recently in Egypt and elsewhere, that dissolution of marriage through the doctrine of khulʿ is a wife’s right under Islamic law rather than something that requires a husband’s agreement certainly draws on fiqh doctrine. See, for example, Nadia Sonneveld, Khul‘ Divorce in Egypt: Public Debates, Judicial Practices, and Everyday Life (Cairo: American University of Cairo Press, 2012). However, the criminalization of polygamy in the Tunisian law of personal status, which obviously has Islamic law in mind, is something I would be hesitant to include as part of Islamic law (see Tunisian Code of Personal Status ( Majallat al-aḥwāl al-shakhṣiyya ) of 1956, Art. 18, as amended). The seriousness with which Islamic law was discussed as an element in modern legal systems in the late 19th and early 20th centuries is well illustrated by Leonard Wood in his monograph Islamic Legal Revival: Reception of European Law and Transformations in Islamic Legal Thought in Egypt, 1875–1952 (Oxford: Oxford University Press, 2016).

(Suggested Bluebook citation: Joseph Lowry, What is Islamic Law? How Should We Study It? , I slamic L aw B log (Dec. 31, 2020), https://islamiclaw.blog/2020/12/31/what-is-islamic-law-how-should-we-study-it/)

(Suggested Chicago citation: Joseph Lowry, “What is Islamic Law? How Should We Study It?,” Islamic Law Blog , December 31, 2020, https://islamiclaw.blog/2020/12/31/what-is-islamic-law-how-should-we-study-it/)

Understanding Sharia: The Intersection of Islam and the Law

Friday prayers at the Wazir Khan mosque in Lahore, Pakistan.

Sharia is the ideal form of divine guidance that Muslims follow to live a righteous life. Human interpretations of sharia, or fiqh, are the basis of Islamic law today.
About half the world’s Muslim-majority countries have sharia-based laws, and most Muslims worldwide follow aspects of sharia in their private religious practices.
Debate continues to flare over sharia’s place in the modern world, particularly with regard to its teachings relating to criminal justice, democracy, and social equality.

Introduction

Most of the world’s nearly fifty Muslim-majority countries have laws that reference sharia, the guidance Muslims believe God provided them on a range of spiritual and worldly matters. Some of these nations have laws that call for what critics say are cruel criminal punishments, or place undue restrictions on the lives of women and minority groups. However, there is great diversity in how governments interpret and apply sharia, and people often misunderstand the role it plays in legal systems and the lives of individuals.

What is sharia?

Sharia means “the correct path” in Arabic. In Islam, it refers to the divine counsel that Muslims follow to live moral lives and grow close to God. Sharia is derived from two main sources: the Quran, which is considered the direct word of God, and hadith—thousands of sayings and practices attributed to the Prophet Mohammed that collectively form the Sunna. Some of the traditions and narratives included in these sources evolved from those in Judaism and Christianity , the other major Abrahamic religions. Shiite Muslims include the words and deeds of some of the prophet’s family in the Sunna. However, sharia largely comprises the interpretive tradition of Muslim scholars.

Middle East and North Africa
Rule of Law

The Prophet Mohammed is considered the most pious of all believers, and his actions became a model for all Muslims. The process of interpreting sharia, known as fiqh , developed over hundreds of years after he died in the seventh century and as the Islamic empire expanded outward from Mecca and Medina, where he lived and died, in modern-day Saudi Arabia.

Sharia isn’t the same as Islamic law. Muslims believe sharia refers to the perfect, immutable values understood only by God, while Islamic laws are those based on interpretations of sharia. Interpreting sharia requires deep knowledge of the Quran and Sunna, fluency in Arabic, and expertise in legal theory. However, modern Islamic seminaries have not standardized the level of competency nor the length of study necessary to qualify as a jurist, says Khaled Abou El Fadl , a Muslim jurist and law professor at the University of California, Los Angeles. Also, interpretations of sharia can conflict depending on who is interpreting them. “On any legal issue, there are ten different opinions,” Abou El Fadl says.

“On any legal issue, there are ten different opinions.”

Islamic law varies by country, is influenced by local customs , and evolves over time. Sharia is also the basis of legal opinions called fatwas, which are issued by Muslim scholars in response to requests from individual Muslims or from governments seeking guidance on a specific issue. In Sunni Islam, fatwas are strictly advisory; in Shiite Islam, practitioners are obligated to follow the fatwas of the religious leader of their choosing.

Why is it so controversial?

Sharia is a source of debate among both Muslims and non-Muslims. Among the many reasons sharia generates controversy is that it’s often contrasted with modern legal regimes in predominantly secular countries. “If sharia is being compared to premodern legal systems, there’s hardly anything controversial about it,” Abou El Fadl says.

Sharia can also be seen as problematic depending on who is interpreting it. Many observers view sharia as a rigid legal system that can’t evolve to reflect modern, Western values. Debates over sharia tend to center on certain topics:

Corporal punishment . For certain crimes, such as theft, blasphemy, and adultery, traditional interpretations of Islamic law prescribe punishments that are considered draconian compared to those in most modern legal systems. Among them are the hudud punishments, which include stoning, lashing, and amputation. (The Quran never mentions stoning, which is a punishment derived from the Book of Deuteronomy in both the Hebrew and Christian Bibles.) However, applying such punishments requires meeting extensive evidentiary thresholds, so scholars say they are largely meant to serve as a deterrent rather than have a punitive effect through application.

Today, most Muslim-majority countries don’t administer physical punishments, though about a dozen of them have the authority to do so under state laws. Local and international backlash often dissuades authorities from following through with such sentences. However, Indonesia, Iran, the Maldives, and Qatar are among the countries where flogging is still conducted ; and Iran, Mauritania [PDF], Nigeria , Saudi Arabia, and Sudan have in recent decades punished convicted thieves with amputations. Additionally, the Taliban implemented public executions and amputations when they ruled Afghanistan in the 1990s and have said these punishments will return under their new government.

Jihad. Many non-Muslims assume that this word, which means “ to strive ,” only refers to an armed struggle by Muslim extremists against non-Muslims. However, as a tenet of sharia, it refers to the effort to achieve a moral aim, which could be an armed struggle against injustice, the desire to better oneself morally, or the pursuit of knowledge, for example.

Religious tolerance . Some critics say that Muslim-led states that follow sharia are particularly intolerant of nonbelievers or those who practice other religions. Scholars say that this intolerance largely stems from premodern restrictions applied to non-Muslim minorities in Muslim lands, which were supported by certain hadiths later introduced into the Muslim canon that recommend the death penalty for Muslims who commit apostasy. Nigeria and Pakistan have carried out capital punishment for blasphemy and apostasy, as did Sudan for many years.

Additionally, religious minorities in some Muslim countries have fewer rights under modern laws and are otherwise discriminated against. In Saudi Arabia, for instance, only Muslims can construct places of worship and pray in public. And other countries that claim to allow religious freedom—particularly authoritarian states—don’t do so in practice (and routinely deny their citizens rights regardless of their faith).

Democracy . Though scholars say sharia doesn’t recommend a specific system of government, it is used by different groups to argue both against and in favor of democracy. Some Muslims say democracy is a purely Western concept imposed on Muslim countries. Others say that democracy has a basis in the Quran, since “mutual consultation” among the people is commended (42:38 Quran). For example, during the so-called Arab Spring, Egypt’s Al-Azhar University issued a statement saying sharia promotes a transition to democracy . Moderate Islamist groups such as Tunisia’s Ennahda Movement party also espouse democracy as the preferred form of government. Meanwhile, the leaders of Iran and Saudi Arabia insist that sharia requires nondemocratic governance.

Women’s rights . The Quran states that women are morally and spiritually equal to men but also indicates that wives and mothers have specific roles in the family and society. Certain sharia guidance applies specifically to women, and some governments use Islamic law to significantly restrict women’s rights , dictating how they dress and barring them from or segregating them in certain spaces.

For example, Iran and Saudi Arabia have Islamic law–based regulations that require women to wear veils and be accompanied by male guardians [PDF] in public places. Some Afghans and Western observers fear that Afghan women will face similar restrictions under the Taliban . Critics say these modesty rules create inequality, including by limiting education and employment opportunities for women. Other laws prevent women from initiating divorce and marriage on their own, contributing to child marriages and gender-based violence. Even in some places where sexist laws have been abolished, attitudes and practices are slow or resistant to change.

LGBTQ+ rights . All major schools of Islamic thought say that practicing homosexuality is a sin (even though same-sex attraction has long been accepted ), and laws in most Muslim-majority countries discriminate against LGBTQ+ people. In the extreme, same-sex behavior is punishable by death under Islamic law in ten countries. In others, it is often harshly punished, as it is in some more conservative Christian-majority countries .

How much room is there for reform?

Some Muslim scholars say the religious tenet of tajdid allows for practices under sharia to be modified or eliminated. The concept is one of renewal, an idea suggesting that Islamic societies should be reformed constantly to remain pure. At the same time, others consider the purest form of Islam to be the one practiced in the seventh century.

Moreover, there is significant debate over what the Quran sanctions versus what practices come from local customs. For example, Muslim feminists have long argued that sexist interpretations of sharia stem from social norms, not from Islam itself. Other scholars take that principle more broadly: “The reality of it is that Islamic principles or Islamic laws can accommodate many things, so there’s actually very little that Islamic law requires or dictates,” says Intisar Rabb , a professor of Islamic law at Harvard University.

“A lot of the rules that are called Islamic are often local, culturally inflected preferences that come to have an Islamic veneer.”

Modern governments have been known to alter laws considered to be Islamic. Saudi Arabia cited Islamic law when it granted women the right to drive in 2018. “If it’s truly Islamic, shouldn’t that not change? But it changed a few years ago,” Rabb says. “It’s just yet another example that a lot of the rules that are called Islamic are often local, culturally inflected preferences that come to have an Islamic veneer.”

How do governments in the Muslim world interpret and enforce sharia?

About half of the world’s Muslim-majority countries have some sharia-based laws, typically governing areas such as marriage and divorce, inheritance, and child custody. Only about a dozen Muslim countries apply sharia to criminal law, in part or in full. Governments tend to favor one of the major schools, or madhhabs, of Islamic law, although individual Muslims don’t usually adhere to one school in their personal lives. Each school is named after the scholar who founded it, and they differ in their methods of interpreting Islamic law:

The Hanafi school is regarded as the most liberal and the most focused on reason and analogy. It’s favored by Sunnis in the Balkans, the Caucasus, Central Asia, China, Egypt, India, Pakistan, Turkey, and large parts of the Arab world.
The Hanbali school, Islam’s most conservative and focused on select texts, spawned the Wahhabi and Salafi branches. Saudi Arabia and the Taliban embrace this school.
The Jaʽfari school, the main Shiite madhhab, is preferred by Shia-majority Iran, Iraq, parts of Lebanon and South Asia, and eastern Saudi Arabia. It places great significance on the fatwas of early jurists and emphasizes reason over analogy.
The Maliki school dominates in North and sub-Saharan Africa, as well as in parts of the Arab Gulf. It is the only school that considers the consensus of the people of seventh-century Medina as a source of law, out of the belief that the people of Medina best preserved the traditions of the Prophet Mohammed, who lived there.
The Shafiʽi school prevails in Brunei, Indonesia, Malaysia, Yemen, and some areas in the Middle East. This was the first school to systematize the sources of Islamic law in order of authority, with the Quran as superior, followed by the Sunna, the consensus of Muslim scholars, and analogy.

European-style law also influences legal systems in Muslim countries, even in Iran and Saudi Arabia, which claim to only follow Islamic law. This owes in part to the effects of colonialism, the requirements for economic modernization, and the fact that many of the elite who built the legal systems in Muslim-majority countries had Western educations. Opinions on the best balance of Islamic law and secular law vary, but political systems tend to incorporate sharia-based laws in three ways:

Dual legal system . In some countries with large Muslim populations, such as Malaysia and Nigeria, the government has a secular judicial system but Muslims can choose to bring certain matters to Islamic courts . The exact jurisdiction of these courts varies by country but usually includes marriage, divorce, inheritance, and guardianship.

Government under God . In countries where Islam is the official religion , the constitution designates sharia as “a source,” or sometimes “the source,” of the law. Examples of the former include Afghanistan and Saudi Arabia, while Bahrain, Kuwait, and the United Arab Emirates are among those that apply Islamic law in personal but not civil or criminal matters. In Pakistan, Iran, and Iraq, among others, it is forbidden to enact legislation that is antithetical to Islam. Non-Muslims are not expected to obey sharia, and, in most countries, they are under the jurisdiction of special government committees and adjunct courts.

Secularism . Muslim countries where the government is formally secular include Azerbaijan, Chad, Senegal, Somalia, Tajikistan, and Turkey. Still, Islamist parties run for office and occasionally take power in these countries. Turkey’s ruling Justice and Development Party (AKP) is one such example.

How do extremist groups interpret sharia?

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Islamist militant groups are notorious for embracing puritanical interpretations of sharia. Al-Qaeda, al-Shabab , and the self-declared Islamic State, among others, want to establish what they call fundamentalist regimes. Such organizations rely on violence and terrorism to push their extreme versions of Islamic law, establish and expand their influence, and persecute their opponents. They have been known to mete out gruesome punishments rarely used by governments in Islamic history, such as stoning, and others that traditional Islamic law expressly prohibits, such as crucifixion.

Leaders of such groups often have little to no training in interpreting sharia. Many insurgent groups see the imposition of an extreme version of Islamic law as a way to rebuke Western influence and hearken back to when Muslims ruled powerful empires. “They focus on the power and not on the interpretation or on law as a sophisticated discipline or area of expertise,” Rabb says. “With these organizations, you have all of the trappings and benefits of claiming religious commands, but none of the substance or procedure that came along with the complex system of Islamic law through informed and changing interpretations over time.”

How do Muslim-minority countries approach sharia?

Some governments let independent religious authorities apply and adjudicate their faith’s laws in certain situations. For instance, the United Kingdom (UK) allows Islamic tribunals governing marriage, divorce, and inheritance to make legally binding decisions if both parties agree. Similar mechanisms exist for Jewish and Anglican communities. In Israel, Christians, Jews, and Muslims can adjudicate matters of family law in religious courts, as can members of a few other faiths . Additionally, Muslim-minority countries such as Australia, Japan, the UK, and the United States allow Islamic banking , or sharia-compliant banking.

Conversely, officials in certain Muslim-minority countries seek to block sharia from influencing state law or practice. Some have prohibited behaviors encouraged under sharia, such as veil wearing for women or ritual slaughter to make meat halal. The ban on wearing veils or headscarves exists in France, for example, where secularism is part of the national identity and conspicuous religious symbols are banned in certain public spaces. Supporters of such laws say they promote women’s empowerment and social harmony, while critics say they ignore individual freedoms and unfairly target Muslims.

Recommended Resources

In this meeting, George Mason University’s Heba F. El-Shazli discusses religious freedom in the Middle East with the U.S. Commission on International Religious Freedom’s Dwight Bashir and authors Janine di Giovanni and Daniel Philpott.

Harvard University’s Islamic Law Blog provides expert analysis on issues relating to Islamic law.

Harvard Professor Intisar Rabb discusses the purpose of doubt in Islamic criminal law and explains why premodern jurists rarely sentenced criminals to harsh physical punishments.

University of California, Los Angeles, Professor Khaled Abou El Fadl and other scholars debate the relationship between Islam and democracy for the Boston Review .

Leiden University’s Maurits S. Berger explores the role of sharia in the West for the Journal of Law, Religion and State .

The Washington Post ’s Andrew Jeong, Jennifer Hassan, and Sarah Pulliam Bailey lay out the Taliban’s view of sharia .

Toni Johnson, Mohammed Aly Sergie, and Lauren Vriens contributed to this article. Will Merrow and Michael Bricknell created the graphic.

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Table Of Contents

sharia , the fundamental religious concept of Islam —namely, its law .

The religious law of Islam is seen as the expression of God’s command for Muslims and, in application, constitutes a system of duties that are incumbent upon all Muslims by virtue of their religious belief. Known as the sharīʿah (literally, “path leading to the watering place”), the law represents a divinely ordained path of conduct that guides Muslims toward a practical expression of religious conviction in this world and the goal of divine favour in the world to come.

In classical form, the sharia differs from Western systems of law in two principal respects. In the first place, the scope of the sharia is much wider, since it regulates the individual’s relationship not only with neighbours and with the state, which is the limit of most other legal systems, but also with God and with the individual’s own conscience . Ritual practices—such as the daily prayers ( ṣalāt ), almsgiving ( zakāt ), fasting ( ṣawm ), and pilgrimage ( hajj )—are an integral part of sharia law and usually occupy the first chapters in legal manuals. The sharia is concerned as much with ethical standards as with legal rules, indicating not only what an individual is entitled or bound to do in law but also what one ought, in conscience, to do or to refrain from doing. Accordingly, certain acts are classified as praiseworthy ( mandūb ), which means that their performance brings divine favour and their omission divine disfavour, and others as blameworthy ( makrūh ), which has the opposite implications . However, in neither case is there any legal sanction of punishment or reward, nullity or validity. The sharia is thus not merely a system of law but also a comprehensive code of behaviour that embraces both private and public activities.

The second major distinction between the sharia and Western legal systems is a consequence of the Islamic concept of the law as the expression of the divine will. With the death of the Prophet Muhammad in 632, direct communication of the divine will to human beings ceased, and the terms of the divine revelation were henceforth fixed and immutable. The overall image of the sharia is thus one of unchanging continuity , an impression that generally holds true for some areas of the law, such as ritual law. However, revelation can be interpreted in varying ways, and, over time, the diversity of possible interpretations has produced a wide array of positions on almost every point of law. In the premodern period the ʿulamāʾ (Muslim religious scholars) held a monopoly over interpretation of the law, but since the 19th century their monopoly has been challenged by Westernized elites and laypeople. The question of which interpretations become normative at any given time is complex. Early Western studies of Islamic law held the view that while Islamic law shaped Muslim societies, the latter had no influence on Islamic law in return. However, this position has become untenable . Social pressures and communal interests have played an important role in determining the practice of Islamic law in particular contexts—both in the premodern period and to an even greater extent in the modern era.

Historical development of sharia law

For the first Muslim community , established under the leadership of the Prophet Muhammad at Medina in 622, the Qurʾānic revelations laid down basic standards of conduct. But the Qurʾān is in no sense a comprehensive legal code: only about 10 percent of its verses deal with legal issues. During his lifetime, Muhammad, as the supreme judge of the community, resolved legal problems as they arose by interpreting and expanding the general provisions of the Qurʾān, thereby establishing a legal tradition that was to continue after his death. With the rapid expansion of the Islamic realm under Muhammad’s political successors , the Muslim polity became administratively more complex and came into contact with the laws and institutions of the lands that the Muslims conquered. With the appointment of judges, or qadis , to the various provinces and districts, an organized judiciary came into being. The qadis were responsible for giving effect to a growing corpus of administrative and fiscal law, and they pragmatically adopted elements and institutions of Roman -Byzantine and Persian-Sasanian law into Islamic legal practice in the conquered territories. Depending on the discretion of the individual qadi , judicial decisions were based on the rules of the Qurʾān where these were relevant, but the sharp focus in which the Qurʾānic laws were held in the Medinan period was lost with the expanding horizons of activity.

Muslim jurisprudence , the science of ascertaining the precise terms of the sharia, is known as fiqh (literally, “understanding”). Beginning in the second half of the 8th century, oral transmission and development of this science gave way to a written legal literature devoted to exploring the substance of the law and the proper methodology for its derivation and justification. Throughout the medieval period the basic doctrine was elaborated and systematized in a large number of commentaries, and the voluminous literature thus produced constitutes the traditional textual authority of sharia law.

Islamic Legal Theory

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First Online: 28 July 2023
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Chibli Mallat 3 , 4

Introduction

Philosophy tends to be “the mother of sciences” in the West since Plato put it at this meta-level in the disciplines of the intellect. In classical Islam, intellectual primacy finds in law its characteristically dominant discipline as the chief exponent of religion. Within law, the tradition developed its own philosophy in a sophisticated theoretical reflection on legal categories. This is the self-contained discipline known as usul al-fiqh , literally the principles or sources of law. The closest Western rendition of the genre would be jurisprudence in its widest Anglo-American acceptation as a theory of law.

There is nothing closer to legal theory in the Islamic tradition than usul . “Although it would be rash to suppose that usul al-fiqh subsumes everything that may be regarded as Muslim legal theory in the broadest possible sense of that term, nonetheless there can be no denying that it constitutes, or came over time to constitute, the mainstream of legal-theoretical...

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Chibli Mallat

Ecole de Droit à Sciences-Po, Paris, France

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Mortimer Sellers

Professor for Legal and Social Philosophy, Department of Legal Theory, International and European Law, University of Salzburg, Austria, Churfurststrasse 1, 5020 Salzburg, Austria

Stephan Kirste

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Department of Philosophy, Uppsala University, Uppsala, Sweden

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Charles III University, Madrid, Spain

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Mallat, C. (2023). Islamic Legal Theory. In: Sellers, M., Kirste, S. (eds) Encyclopedia of the Philosophy of Law and Social Philosophy. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-6730-0_1148-1

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DOI : https://doi.org/10.1007/978-94-007-6730-0_1148-1

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Published : 28 July 2023

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The Justice of Islam: Comparative Perspectives on Islamic Law and Society

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3 Islamic law as common law: Power, culture, and the reconfiguration of legal taxonomies

Published: February 2000
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Taxonomies of law often include a category called religious law. This chapter argues that this is useless, as is the Orientalist assumption that all law can be understood through the concepts generated by European legal systems. In fact, Islamic law is best seen as a kind of common law system, and a revised taxonomy of legal systems is offered within which Islamic law may now be placed.

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Islamic Law

Encyclopedias, dictionaries, a note about translations, the sources, hadith collections, al-jami' al-kabir li-kutub al-turath (digital book collection), a note about books and catalogues, bibliographies, introductory books in english, introductory books in arabic, related books in the harvard libraries, subject-specific and multidisciplinary indexes for articles, topical journals, legal indexes for journal articles and books (multiple jurisdictions), a note about the sources highlighted, regional sources, saudi arabia, muslim law systems, fatawa - religious rulings, islamic law collections and islamic legal studies programs, subject guide, contact us, introductory sources.

The sources recommended in this guide are only a sample of what's available in our collection on Islamic law. If you don't see what you need, contact us using the information to the left! We are available for quick questions or for private research consultation by appointment.

The Encyclopaedia of Islam Available in print and electronic formats with three editions dating back to 1913.
Encyclopaedia of the Qur’an Encyclopedia covering all aspects of the Qur’an including qur’anic terms, concepts, personalities, place names, cultural history and exegesis as well as essays on important themes and subjects within qur’anic studies. more... less... English language encyclopedia covering all aspects of the Qur’ān including qur’ānic terms, concepts, personalities, place names, cultural history and exegesis as well as essays on important themes and subjects within qur’ānic studies. This site also includes 62 Early Printed Western Qur’āns Online and the Electronic Qur’ān. Concordance.
Encyclopaedia of Islam editor-in-chief, M. Mukarram Ahmed
Encyclopaedia of Islamic law and jurisprudence Multi-volume set: v. 1. Basic aspects of Islamic law; v. 2. Dimensions of Islamic law; v. 3. Islamic law and society; v. 4. Islamic law and family; v. 5. Islamic law and marriage; v. 6. Islamic law and divorce; v. 7. Islamic law and security; v. 8. Islamic law and criminology; v. 9. Jurisprudence under Islamic law; v. 10. Islamic law and endowment; v. 11. Islamic law and human rights
Encyclopaedia of Islamic law v. 1. Concepts of Islamic law; v. 2. Foundations of Islamic law; v. 3. Islamic law in practice; v. 4. Civil law in Islam; v. 5. Family law in Islam; v. 6. Law of marriage and divorce in Islam; v. 7. Law of Waqf in Islam; v. 8. Criminal law in Islam; v. 9. Jurisprudence in Islam; v. 10. Law of governance in Islam
Encyclopedia of Islamic law: a compendium of the views of the major schools Based on two main Arabic sources: al-Fiqh alal madhdhab al-arbaah and al-Fiqh alal madhdhab al-khamsa
Oxford Islamic Studies Online This authoritative, dynamic resource brings together the best current scholarship in the field for students, scholars, government officials, community groups, and librarians to foster a more accurate and informed understanding of the Islamic world. Oxford Islamic Studies Online features reference content and commentary by renowned scholars in areas such as global Islamic history, concepts, people, practices, politics, and culture, and is regularly updated as new content is commissioned and approved. more... less... Oxford Islamic Studies Online features articles, biographies, primary texts, Qur'anic materials, and books by scholars in areas such as global Islamic history, concepts, people, practices, politics, and culture. Articles come from The Oxford Encyclopedia of the Islamic World, The Oxford Encyclopedia of the Modern Islamic World, The Islamic World: Past and Present, The Oxford Dictionary of Islam, The Oxford History of Islam, and What Everyone Needs To Know About Islam. The Koran Interpreted (a verse translation by A.J. Arberry) and The Qur'an (a prose translation by M.A.S. Abdel Haleem) are included, as is the first electronic version of Hanna E. Kassis's A Concordance of the Qur'an.

Restricted Access: HarvardKey or Harvard ID and PIN required

A dictionary of Islam by Thomas Patrick Hughes
Qāmūs al-muṣṭalaḥāt al-dīnīyah = Dictionary of religious terms / ʻIzz al-Dīn Muḥammad Najīb
"Hukukı islâmiyye ve ıstılahatı fıkhiyye" kamusu / Ömer Nasûhi Bilmen In Turkish, with some Arabic text.
Muʻjam muṣṭalaḥāt alfāẓ al-fiqh al-Islāmī / Sāʼir Baṣmahʹjī
Farhang-i vāzhagān va iṣṭilāḥāt-i Islāmī / Parvīz Āzhīdah Persian and English.
Muʻjam al-muṣṭalaḥāt al-fiqhīyah / taʾlīf Ibrāhīm Ismāʻīl al-Shahrakānī
Farhang-i fiqh : muṭābiq-i maẕhab-i ahl-i bayt, ʻalayhim al-salām / taḥqīq va taʼlīf Mūʾassasah-i Dāʻirat al-Maʻārif-i Fiqh-i Islāmī ; zīr-i naẓar-i Maḥmūd Hāshimī Shāhrūdī

Primary Sources - Qur'an and Hadith

There are many authoritative translations in other languages available in our collection. Please consult the reference staff if you have a specific title or would like to inquire about translations in another language.

The sources of Islamic Law are the Qur'an and the Sunnah (the traditions of the Prophet). Most of these texts have been digitized in various translations and are available on the web.

In addition to the web collections below, the Harvard University Libraries hold tremendous collections on the sources--in Arabic and English as well as Western European Languages. Please consult HOLLIS or a reference librarian for further assistance.

The Noble Qur'an Translations of the Qur'an.
Al-Tafsir.com Translations of the Holy Qur’an in various languages. Please note that not all of the following translations are authentic.
The Holy Qur'an : text, translation & commentary / by Abdullah Yusuf Ali. English and Arabic in parallel columns.
The Gracious Quran : a modern-phrased interpretation in English / Ahmad Zaki Hammad. Arabic-English parallel ed.
Collections of Ahadith Collections include: Sahih Bukhari صحيح البخاري Sahih Muslim صحيح مسلم Sunan al-Nasa'i سنن النسائي Sunan Abi Dawud سنن أبي داود Jami` al-Tirmidhi جامع الترمذي Sunan ibn Majah سنن ابن ماجه
al-Jāmiʻ al-kabīr li-kutub al-turāth al-Islāmī wa-al-ʻArabī [CD-ROM] : akthar min 30000 mujallad ḥāsūbī, akthar min 2600 ʻunwān kitāb, akthar min 1400 ʻunwān yanfaridu bi-hi al-barnāmaj, al-iṣdār 5.0, al-naskhah al-dhahabīyah al-muṭawwarah, 9Extrenal H.D) A large collection of Islamic and Arabic heritage books Ver 5.0. Law School Islamic Ref - hard disk is installed on both PCs next to Islamic Law Collection in L1N.

A good place to start is the Harvard online public catalogue called Hollis . General books dealing with Islamic law are catalogued under Islamic Law . Other topics are catalogued with the topic-- marriage for example and Islamic law. To find the application of Islamic law in a specific country, search for Islamic Law and a particular country like Egypt . At Harvard, most materials on Islamic law will be found in HLSL, Widener and Andover-Harvard Theological Library . If you are interested in knowing about books at other libraries, WorldCat is an excellent resource. Here you will access to the collections at major research libraries all over the world. Search terms are the same as for Hollis.

Islamic Law: A Bibliography of Recent Works Published in English This bibliography covers English-language books and articles within books that discuss Islamic law. The titles have all been published since 2003 and are held in the Library of Congress. The listing is divided into three sections: works on Islamic law in general, works on the history of Islamic law, and works devoted to a specific area of law.
Oxford Bibliography on Hadith by J.A.C. Brown Lists major hadith collections in Arabic and translations.
An Introduction to Islamic Law by Joseph Schacht
An introduction to Islamic law by Wael B. Hallaq
A history of Islamic law by N.J. Coulson
Between God and the sultan : a history of Islamic law by Knut Vikør
Islamic law : from historical foundations to contemporary practice by Mawil Izzi Dien
al-Madkhal ilá dirāsat al-Sharīʻah al-Islāmīyah / Rābiḥ Bin Gharīb
al-Madkhal li-dirāsat al-fiqh al-Islāmī / li-Ṣalāḥ Muḥammad Abū al-Ḥājj
al-Sharīʻah al-Islāmīyah kamāl fī al-dīn wa-tamām lil-niʻmah / Muḥammad Riyāḍ
al-Madkhal ilá al-sharīʻah wa-al-fiqh al-Islāmī / ʻUmar Sulaymān al-Ashqar
Madkhal li-dirāsāt al-sharīʻah al-Islāmīyah / Yūsuf al-Qaraḍāwī
Materials from the Harvard libraries on Islamic law and jurisprudence Preset catalog search so you can browse the Harvard libraries' collection.
Islamic Manuscripts (HathiTrust Digital Library) Over 900 Islamic manuscripts from U. of Michigan.
Index Islamicus, 1665-1905: a bibliography of articles on Islamic subjects in periodicals and other collective publications Print edition of the above index for earlier years (1665-1905).
JSTOR This full-text database spans many disciplines, primarily in the humanities and social sciences. more... less... Includes all titles in the JSTOR collection, excluding recent issues. JSTOR (www.jstor.org) is a not-for-profit organization with a dual mission to create and maintain a trusted archive of important scholarly journals, and to provide access to these journals as widely as possible. Content in JSTOR spans many disciplines, primarily in the humanities and social sciences. For complete lists of titles and collections, please refer to http://www.jstor.org/about/collection.list.html.
PAIS International (Harvard Login) Multidisciplinary resource. "PAIS indexes publications in English, French, German, Italian, Portuguese, and Spanish. The database is comprised of abstracts of thousands of journal articles, books, directories, conference proceedings, government documents and statistical yearbooks." more... less... PAIS International indexes the public and social policy literature of public administration, political science, economics, finance, international relations, law, and health care, International in scope, PAIS indexes publications in English, French, German, Italian, Portuguese, and Spanish. The database is comprised of abstracts of thousands of journal articles, books, directories, conference proceedings, government documents and statistical yearbooks.
Academic Search Premier (Harvard Login) A multi-disciplinary database that includes citations and abstracts from over 4,700 scholarly publications (journals, magazines and newspapers). more... less... Academic Search Premier (ASP) is a multi-disciplinary database that includes citations and abstracts from over 4,700 scholarly publications (journals, magazines and newspapers). Full text is available for more than 3,600 of the publications and is searchable.
Islam in Contemporary Sub-Saharan Africa The bibliography contains several thousand references to secondary literature in European languages about Islam in contemporary Sub-Saharan Africa, published between 1960 to 2005. more... less... The bibliography of Islam in Contemporary Sub-Saharan Africa has been prepared in conjunction with the African Studies Centre (ASC) and the Centre d’Etude d’Afrique Noire project “Islam, the Disengagement of the State, and Globalization in Sub-Saharan Africa,” that was funded by the Netherlands Ministry of Foreign Affairs, which resulted in a Conference held at the UNESCO in May 2005. ####The bibliography contains several thousand references to secondary literature in European languages about Islam in contemporary Sub-Saharan Africa, published between 1960 to 2005. Many of the entries also have abstracts produced by the ASC library. Select entries have abstracts from the authors, publishers, and journals themselves.
Berkeley Journal of Middle Eastern & Islamic law The Berkeley Journal of Middle Eastern & Islamic Law is a US-based law journal that covers relevant topics in Middle Eastern, Islamic, and comparative law.
Arab law quarterly Published on behalf of: the Society of Arab Comparative and International Law.
Islamic law and society Provides a forum for research in the field of classical and modern Islamic law, in Muslim and non-Muslim countries. Articles are published in French or English.
UCLA journal of Islamic and Near Eastern Law The UCLA Journal of Islamic and Near Eastern Law contains the full text of documents that are dedicated to the scholarly review of legal issues that are of importance to Muslims and Near Easterners.
The journal of Islamic law & culture The Journal of Islamic Law & Culture contains the full text of documents that are dedicated to the understanding of Islamic law and culture in America's legal, religious, and Muslim communities.
Majallat al-sharīʻah wa-al-dirāsāt al-Islāmīyah Alternate title: Journal of shari’a and Islamic studies. Articles are mainly in Arabic with some in English.
Islamic Law & Law of the Muslim World eJournal The only Social Science Research Network (SSRN) journal that focuses on this area of law, the Islamic Law and Law of the Muslim World Research Paper Series at New York Law School.

Legal periodical indexes generally only allow you to search the title, citation, abstract, keywords (sometimes author-supplied), and subject terms given to a journal article, rather than the full text. A benefit to using a legal periodical index is that it will include all issues and volumes of a given journal, without any gaps in coverage, back to a certain date. (For example, Legaltrac's contents go back to 1980. Full text databases can have gaps in coverage, sometimes many years' worth, for an individual journal.

Index to Legal Periodicals and Books [Harvard Law only] Provides citations to articles in over 800 legal periodicals such as law reviews, bar association journals, yearbooks, institutes, and government publications from August 1981 to the present. Focus of content is mainly on journals from Anglo-American countries.
Legal Journals Index, only on Westlaw [Harvard Law only] Indexes articles from legal journals published in the United Kingdom and Europe as well as journals covering topics pertaining to the laws of the European Community and its Member States. Coverage is from 1986 to present.
Le Doctrinal Indexes French language law journals.

Domestic Legal Systems

This tab includes the sources on opinions, judgments and finding aids such as digests or indexes from the various states with Islamic law component (historical and/or contemporary). Most of the compilations include domestic relations cases in the vernacular and English translations, if available.

In-Library only. This resource is available on campus at the Harvard Law School Library.

al-Fatāwá al-Islāmīyah min Dār al-Iftāʼ al-Miṣrīyah Fatwas issued by Dār al-Iftāʼ al-Miṣrīyah. 39 volume set; coverage period 1895-2012
Official Gazette - al-Jarīdah al-rasmīyah
al-Maḥkamah al-Dustūrīyah al-ʻUlyā - Egyptian Constitutional Court cases Egyptian Constitutional Court cases are also available on the Court's website, http://hccourt.gov.eg/Pages/Rules/Rules_Search.aspx.
Mawsūʻat al-fatāwá al-muʼaṣṣalah min Dār al-Iftāʼ al-Miṣrīyah Fatwas issued by Dār al-Iftāʼ al-Miṣrīyah. Coverage 2013 supplements the above set.
Himpunan putusan kasasi peradilan agama Supreme Court’s decisions in cases involving Islamic family law for Indonesian Muslims. Published in 2001.
Himpunan putusan kasasi peradilan agama Supreme Court’s decisions in cases involving Islamic family law for Indonesian Muslims. Published in 2000.
Official Gazette - Rūznāmah-ʾi rasmī-i Jumhūrī-i Islāmī-i Īrān. Official Gazette
Ḥudūd : jarāʼim-i khilāf-i akhlāq-i ḥasanah
Iran Criminal Code
al-Qarārāt al-istiʾnāfīyah fī al-aḥwāl al-shakhṣīyah
al-Qaḍāʼ al-sharʻī al-Jaʻfarī: ijtihādāt - nuṣūṣ
Muṭālaʻāt al-niyābah al-ʻāmmah al-istiʼnāfīyah ladá al-maḥkamah al-Sharʻīyah al-Sunnīyah al-ʻUlyā
Shariah law reports Quarterly case reporter of Malaysian shariah judgments.
Mudawwanat al-usrah wa-al-ʻamal al-qaḍāʾī al-Maghribī Covers cases on domestic relations.
Toma Legal Retrieve IP access. Access may be limited to users with a valid Harvard ID. Full text of all legislation in force (1990- ); full text of selected judgments of Court of Appeal of Nigeria, federal high courts of Nigeria, and states’ high courts of Nigeria; legal precedents and business letters; Supreme Court of Nigeria judgments (1956- ); investment, petroleum, company, and taxation laws of Nigeria; court rules; judgments of West African Court of Appeal (WACA) and appeals from WACA to Privy Council.
37 years’ excellent digest on family laws, 1961 to 1997: with digest of Islamic laws on family matters
Complete digest on Mahomedan law
Select ruling on family laws in Pakistan
Twenty eight years’ digest on Muslim laws, 1947-1974 : containing custody of minor, dower, gift, guardianship, maintenance, marriage, pre-emption. Muslim personal law (Shariat) application act (X of 1973), Muslim family laws ordinance (VIII of 1961)
The Board of Quazis’ law reports: with a digest Cases from the Board of Quazis from 2001-2010 on domestic relations.
al-Mawsūʻah al-ḥadīthah fī al-anẓimah al-Saʻūdīyah
Istanbul Kadi Sicilleri Available in print and searchable online, http://www.kadisicilleri.org/index.php, this 40-volume set includes Istanbul court records from the Ottoman period.

Other Resources

Muslim Law Systems and Mixed Systems with a Muslim Law Tradition provided by University of Ottawa

JuriGlobe - World Legal Systems
Fatawa - Muslim World League (Makkah) The Muslim World League was founded in accordance with a resolution adopted during the meeting of the General Islamic Conference, which was held in Holy Makkah on the 14th of Dhul Hijjah 1381 Hijra corresponding to the 18th May 1962. Affiliations: - The United Nations Organization: Observer in consultative status with the ECOSOC. - Organization of the Islamic Conference: Observe status in attendance at all meetings and conferences. - ISESCO: Member - UNICEF: Member
Islamic Legal Studies Program (Harvard Law School) Harvard Law School's Islamic Legal Studies Program (ILSP), established in 1991, is a research program that seeks to advance knowledge and understanding of Islamic law. As stated in its statement of objectives (incorporated into the terms of its major grants), the Program is dedicated to achieving excellence in the study of Islamic law through objective and comparative methods. It aims to foster an atmosphere of open inquiry that embraces many perspectives: Muslim and non-Muslim, scholar and practitioner, contemporary and classical, Sunni and Shi'i, law and religion. It seeks to promote appreciation of Islamic law as one of the world's major legal systems.
Bibliographic Resources for Middle East & Islamic Studies (Columbia University) This is a selective guide to major reference resources on Middle Eastern history, religion, literature, politics, and culture, available at Columbia University Libraries. The guide includes encyclopedias, biographical and subject-specific dictionaries, foreign-language dictionaries, research guides and subject bibliographies, and relevant databases for periodical articles and other writings.
Islamic Heritage Project IHP is a multi-disciplinary collection of high-quality digital reproductions of more than 270 Islamic manuscripts, more than 300 published texts, and 58 maps from Harvard's renowned library and museum collections. Subjects represented include religious texts and commentaries; Sufism; history, geography, law, and the sciences (astronomy, astrology, mathematics, medicine); poetry and literature; rhetoric, logic, and philosophy; calligraphy, dictionaries and grammar, as well as biographies and autobiographical works. Coverage 10th-20th centuries CE. more... less... IHP is a multi-disciplinary collection of high-quality digital reproductions of more than 270 Islamic manuscripts, more than 300 published texts, and 58 maps from Harvard's renowned library and museum collections. Subjects represented include religious texts and commentaries; Sufism; history, geography, law, and the sciences (astronomy, astrology, mathematics, medicine); poetry and literature; rhetoric, logic, and philosophy; calligraphy, dictionaries and grammar, as well as biographies and autobiographical works.
Islamic Manuscripts Cataloging Project (Princeton University) Online Cataloging for the New Series of Islamic Manuscripts at Princeton Cataloging is now available online for the entire collection of the nearly 2200 manuscripts comprising the New Series of Islamic Manuscripts in the Manuscripts Division, Department of Rare Books and Special Collections, Princeton University Library. The New Series constitutes the premier collection of predominantly Shi`ite manuscripts in the Western Hemisphere and among the finest in the world. The online records have been created as part of the Islamic Manuscripts Cataloging and Digitization Project, to improve access to these rich collections and share them worldwide through digital technology. Researchers can now locate Arabic, Persian, and Ottoman Turkish manuscripts by searching the Library’s online catalog: http://catalog.princeton.edu.

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Fall 2022 • Seminar

Introduction to Islamic Law

Prerequisites: None

Exam Type: No Exam

This course will survey core concepts in Islamic law ( sharia ) in historical and comparative modern contexts. Popular perceptions of this legal system imagine it to be a static code from 7th-century Arabia. By contrast, we explore aspects of Islamic law and society, as a dynamic system, that uncover rich debates about cases historically alongside processes of “legislation” and interpretation analogous to our own. We also explore the substantive rulings and institutional structures that substantially diverge from our own. Those laws and structures evolved over time, with notable changes accompanying the breakup of the Islamic empire in the 10th and 12th centuries, colonial interventions in the 18th and 19th centuries, and independence movements in the 20th and 21st centuries. How and why did Muslim jurists, judges, and political leaders define or operate within the grammar of Islamic law? Did the law impose religious-moral values or reflect cultural and socially constructed ones? What explains the recent appeal of shari’a in the last few decades and how might we understand Islamic law in our times? This course will equip students with tools to examine these questions in the course of conversations about key subjects of Islamic law and methods of interpretation. This term, we will also experiment with data science approaches to both. Students must complete one presentaton and one short paper (10pp); they may opt for a long paper (15pp) and/or data science project with two short writing assignments for an additional credit.* Students need not have prior knowledge of Islamic law.

* The additional credit options allow students to conduct in-depth research on a single issue of Islamic law or legal theory using primary sources -cases, legislation, manuals of legal theory, etc. (in English or any other language with which students are familiar), together with new data science tools in connection with the SHARIAsource Lab. This Lab allows students to workshop papers, receive feedback on their works-in-progress, and the opportunity to publish short papers as posts on the Islamic Law Blog.

Note: This course is cross-listed with the History department (History 2538) at FAS.

| | | | | |

– "continuous" chain consists of a large group of transmitters in each generation, sufficient in and of itself to dispel suspicion of fabrication. – "well-known" constitutes a widely disseminated hadith with individual narrators that could be traced back to the time of the Prophet. – "isolated" refers to ahadith where the last link (sanad) in the chain was only one authority. – "not connected" refers to ahadith where the last link in the chain is unnamed.

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Formation of the Concept of Istihsan in Islamic Law

Istiḥsān (juristic preference) has played a crucial role in intellectual heritage of Islamic law and the development of Islamic legal reasoning by inserting a judge‘s contribution into judgments based on the primary principles of securing ease and avoiding hardship. During the process of formulating istiḥsān, the main factor was qiyās (analogy). If the result of qiyās caused hardship for the people, istiḥsān was applied to give preference to any unconsidered evidence that it could possibly eradicate the hardship. No technical definitions of istiḥsān have reached us from the very early period Islamic legal history, although it has been used from the beginning. This paper investigates empirically the application of istiḥsān over time and critically discusses its application in Islamic law with a special emphasis on itsi relationship with qiyās. Keywords: Istiḥsān (juristic preference); Isl

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Diky Faqih Maulana

Mohd Hafiz Jamaludin

Malaysia is among the countries, which have very close relations with Shafi'i madhhab in term of Islamic Law. This can be seen from the provisions of Syariah Law in Malaysia where the opinion of the Shafi'i madhhab is preferred than other madhhabs. However, the current situations and issues cause that the other opinions from the other madhhabs are also used and practiced in order to provide the best solutions. This is also true in respect on the use of sources of Islamic law, such as Istihsan, Istislah and Qawl Sahabi, which are rejected by the Shafi'i madhhab. Therefore, this study attempts to analyze the development of Islamic law, particularly in the application of the concept of Istihsan in the Syariah Courts in Malaysia. This study has examined a number of cases reported in the Jurnal Hukum issued by the Syariah Judiciary Department of Malaysia (JKSM). The result of this study found that in several cases, the judges have applied indirectly the concept of Istihsan in their judgment. It is also found that it is actually the provisions of the law that allows the Shariah judges to indirectly apply this concept.

Ahmad Rofii

The article analyses the judicial reasoning employed by the religious courts in giving decisions on inheritance, particularly since the promulgation of the 1991 Compilation of Islamic Law. It seeks to examine whether these courts use Islamic legal reasoning. This paper argues that the structure of the courts' decisions is to be found in most Civil Law courts. It then offers three different approaches of reasoning employed by the religious courts in their decisions on inheritance: the use of the legislations particularly the Compilation as the sole source of deductive reasoning, the combination of the legislations and the Islamic sources which share the same implication, and the application of Islamic legal reasoning with the emphasis on the objectives of Islamic law (maqāsid al-sharī'a) which does not contradict the legislations. Although Islamic legal reasoning is employed, in most cases the decisions are simple and straightforward.

Dr. Md. Tuhin Mia

Masrur Ahmed

We come to see that throughout the development of Islamic law, a number of sources and methods were established from which jurists may derive the law. This is very different from the limited view that only the Quran and sunnah (habitual practice) are recognised as the crux of law. The sources and methods go beyond those of the Quran, sunnah, ijma, and qiyas. These 4 sources can be referred to as the roots of law, given their grounding in revealed texts and their status within the law as the foundation of any law making. Aside from these, other methods, such as istihsan (juristic preference), maslahah (public interest), ‘urf (custom), and ijtihad, exist. Together, Islamic law comes to recognise a plethora of sources and methods, which clearly demonstrates its ability to remain flexible and relevant to the modern age. It has long been the view of orientalists such as Schacht that Islamic law is inflexible, but we come to see that the various methods that are available suggest otherwise.

Ikenga Oraegbunam

This paper examined and discussed the sundry controv the nature, sources and interpretations of Islamic law. The study was engendered by the fact that differences in views and attitudes to these variables have contributed in no mean way to political and religious unrests in many parts of t Middle East where Islam has much stronghold. This paper considered it expedient to engage in the study so as to enhance the inevitable development of democracy, rather than theocracy, in enclaves that regard themselves as utterly Islamic in spite of their multi religious pluralism. Discovering that many principles taken as immutable and sacrosanct are not after all eternal and unchangeable, the paper recommended legal reform, avoidance of fundament religious dialogue, and patriotic sense, among other factors, as the panacea. The methodology used is jurisprudential, phenomenological.

Hamza Elbuhaisi

Legal rulings define the relationship of the individual and society. Because of the religious context, in Islamic countries, such legislation is implemented within the judiciary, which leads to dichotomy of within definitions of the demarcations of the ruling, policy in relation to “Western” models based on the “Three Branches of Government”, on account of the overlap between the Islamic laws and positive laws and its attempt to correlate with human rights principles. Muslims devoted their efforts to establish jurisprudence as an Islamic science without providing a vision that establishes jurisprudence as a civilizational cognitive science. Therefore, the conflict that occurred between religion and the state led to a scientific and practical disruption in presenting an Islamic civilizational model of governance. Such a matter stems from a misunderstanding of the relationship between religion and society, in addition to the retraction of the movement of “Ijtihad”, and the shortcomings in the level of enacting legislations or introducing new visions to control the relations between Sharia and ruling. Also, the orientalist discourse and the state of backwardness in society resulting from the dependence on the Western systems helped to promote the dispute making between religion and the state in Islam. This article that using the qualitative method answer two questions: First: What is the source of the ruling and its main pillars in Islam? Second: What is the relation of jurisprudence with guardianship, caliphate and Imamate? And how to understand and define the origin of ruling in Islam?

Rai Shahzeb

US-China Law Review

Hamid Harasani

While new and complicated legal issues continuously come to the fore, Islamic sacred texts that deal with legal issues are finite. Ijtihad is an interpretive tool that applies legal reasoning based on sacred texts to derive new legal rules that meet emerging legal problems. This paper will elucidate the nature of Ijtihad and comment on the status of Ijtihad today. The paper will also explain why it is necessary to replace macro-Ijtihad with micro-Ijtihad, and will highlight the importance of the continuance of Ijtihad by Islamic jurists despite Islamic law’s reduced application.

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LAW AND ETHICAL PARADIGMS IN THE DISCOURSE ON WESTERN PHILOSOPHY AND ISLAMIC PHILOSOPHY

Citra Widyasari S , Mukarramah Mukarramah , +1 author Rahma Pramudya Nawangsari
Published in Kanz Philosophia: A Journal… 15 June 2024
Law, Philosophy

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Plato’s ethical philosophy and relevance to the concept of birr al-wālidayn in the qur’an, syari'ah : antara hukum dan moral, tarikh tasyri’: sejarah pembentukan hukum islam, menguak tabir hukum, pengantar filsafat hukum, related papers.

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Uniform Civil Code and the Dynamics of Muslim Identity in India: An Introduction

(2023) 19(4) Manchester Journal of Transnational Islamic Law and Practice 1

22 Pages Posted: 17 Jun 2024

Nizamuddin Ahmad Siddiqui

Jindal Global Law School, O.P. Jindal Global University

Date Written: March 1, 2024

Article 44 of the Indian Constitution seeks promulgation of a "Uniform Code" to regulate the civil affairs of the citizens. The language of the provision neither indicates the nature of such a Code nor does it specify the framework within which it shall operate. The Constituent Assembly Debates, however, highlight two sequential implicationsone, that the Code will bind Indians in one single identity; and two, that the minorities, especially Muslims find the idea troubling on account of its potential dilution of the Muslim identity. The 21 st Law Commission submitted its Consultation Paper (2018) rejecting the possibility of a Uniform Civil Code (UCC). The suggestion was nullified by a fresh consultation issued by the 22 nd Commission (2022) in favour of UCC but without any terms of reference. Several Muslim bodies issued their strong disapproval of the exercise while reiterating that codification on civil matters will be disastrous for minority rights in the country. More recently, however, the State of Uttarakhand has passed the UCC Bill (2024) which seeks to define issues like marriage, divorce, succession and inheritance along majoritarian lines. This introduction to the Special Issue particularly traces these developments to understand and situate the dynamics of Muslim identity in India along with giving a brief overview of the articles included in the Special Issue.

Keywords: Uniform Civil Code, Law Commission of India, Consultation Paper, All India Muslim Personal Law Board (AIMPLB), Jamaat e Islami Hind (JIH), Jamiat Ulama-i-Hind (JUH), UCC Uttarakhand Bill, 2024

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Methods and Meaning in Islamic Law: Introduction
By Intisar Rabb*. This essay is part of the Islamic Law Blog's Roundtable on Islamic Legal History & Historiography, edited by Intisar Rabb (Editor-in-Chief) and Mariam Sheibani (Lead Blog Editor), and introduced with a list of further readings in the short post by Intisar Rabb: "Methods and Meaning in Islamic Law: Introduction." How should we think about the most pressing questions of ...
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By Joseph Lowry (University of Pennsylvania). This essay is part of the Islamic Law Blog's Roundtable on Islamic Legal History & Historiography, edited by Intisar Rabb (Editor-in-Chief) and Mariam Sheibani (Lead Blog Editor), and introduced with a list of further readings in the short post by Intisar Rabb: "Methods and Meaning in Islamic Law: Introduction."
PDF INTRODUCTION TO ISLAMIC AW
Background papers are selected for wider distribution based on such factors as their contemporary relevance and potential to contribute to ongoing discussions. This paper was produced for a February 2009 Thematic Workshop on Islamic Law and Protection of Civilians that took place in Amman, Jordan. The views expressed herein are those of the ...
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Summary. Sharia is the ideal form of divine guidance that Muslims follow to live a righteous life. Human interpretations of sharia, or fiqh, are the basis of Islamic law today. About half the ...
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Moreover, the essay will demonstrate that the Islamic law doesn't govern international law per se, but the way its modern reinterpretation has rekindled Muslim-majority states' attitude towards international relations with non-Muslim states. Foremost though the historic influence will be noted.
Sharia
Muslim jurisprudence, the science of ascertaining the precise terms of the sharia, is known as fiqh (literally, "understanding"). Beginning in the second half of the 8th century, oral transmission and development of this science gave way to a written legal literature devoted to exploring the substance of the law and the proper methodology for its derivation and justification.
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The present issue will deal chiefly with Islamic Law, placing special emphasis on five major issues. These lie in the sources of Islamic Law, its interpretation, economics, its finance as well as the translation between it and other laws written in English. 5.1 Issues Related to the Qurʾān and the Interpretation of Its Legal Contents
(PDF) "Wael B. Hallaq on the Origins of Islamic Law: A Review Essay
He begins the essay with a reference to recent scholarship on Islamic law in the West: Recent scholarship on the history of Islamic law—especially in the United States, Canada, and Germany—has shown the impressive extent to which Islamic law was a working system that evolved in tandem with the developments that Islamic societies from ...
Islamic Legal Theory
The importance of usul is the more so striking since classical Islam, despite the centrality of law, never knew a discipline described as "philosophy of law." At best, the field may just be nascent on the contemporary scene (Mallat 2007: 57-70).This is supported in a review published at the turn of the century of relevant modern writings in the Qum (Iran) seminary by one of its active ...
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ISLAMIC LAW AND ETHICS An earlier focus on Islamic ethics, edited by Frederick S. Carney (Fall 1983), brought to readers of the Journal of Religious Ethics five excellent essays, each dealing with a central discipline of classical Is-lamic tradition. At the time, the editors hoped to follow with a second focus on contemporary developments in Islam.
islamic law (sharia)
Sharia, or sharia law, is the Islamic legal system derived from the religious precepts of Islam, particularly the Quran and the Hadith. The term sharia comes from the Arabic language term sharīʿah, Arabic: شريعة‎ which means a body of moral and religious law derived from religious prophecy, as opposed to human legislation.
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A useful starting point for the consideration of Islamic law as a common law system is Edward Levi's characterization of common law reasoning. 7 Levi speaks of American common law as a system of 'moving categorizing concepts,' a system in which each court has the ability to regroup the facts of present and past cases in such a way as to ...
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that Islamic law invests women 'with many personal rights and independent privileges.'3 A more successful attempt to use this approach is realized in his essay on Muhammad's sociological jurisprudence (chapter 10). This piece challenges much of the Orientalist scholarship on the origins of Islamic law - especially Joseph Schacht4 - which places ...
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A good place to start is the Harvard online public catalogue called Hollis.General books dealing with Islamic law are catalogued under Islamic Law.Other topics are catalogued with the topic--marriage for example and Islamic law.To find the application of Islamic law in a specific country, search for Islamic Law and a particular country like Egypt.At Harvard, most materials on Islamic law will ...
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This course will survey core concepts in Islamic law ( sharia) in historical and comparative modern contexts. Popular perceptions of this legal system imagine it to be a static code from 7th-century Arabia. By contrast, we explore aspects of Islamic law and society, as a dynamic system, that uncover rich debates about cases historically ...
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Abstract: This essay deals with the four main sources of Islamic Law. Its goal is to introduce some of the prevailing concepts of Islamic thought and to analyse the different disciplines and opinions that shape the practice of Islam today. It is known that there are four Muslim schools of thoughts. However, each differs in their interpretations .
Quran as a Source of Law in Islamic Law
To avoid such conflation, Islamic law is better perceived as having two sources, namely, the Qur'an and the Sunnah, while Ijmaʿ and Qiyās (or ʿAql in S hīʿah jurisprudence) constitute the methods of Islamic law rather than 'sources' in the true sense". - (Baderin, M. A. , Islamic Law: A Very Short Introduction, OUP, 2021, pp. 28-29).
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Muhammad ibn Idris al-Shafi'i (d. 819) was concerned about the variety of doctrine and sought to limit the sources of law and establish a common methodology for all schools of Islamic law.3 His efforts resulted in the systemization of usul al-fiqh, the following four sources of Islamic law: the Quran; the sunna or tradition of the Prophet;
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Guardianship essay - I got a 76 in Islamic using these materials. Essays 100% (4) 3. Sources OF LAW. Essays 100% (2) 11. IJMA, Qiyas, Istihsan, Istishab, Urf. Essays 83% (6) 3. ... Abdul decides to bring a claim to recover the debt under Islamic law. Discuss how Abdul can establish his claim with reference to the rules of evidence and testimony ...
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Istiḥsān (juristic preference) has played a crucial role in intellectual heritage of Islamic law and the development of Islamic legal reasoning by inserting a judge's contribution into judgments based on the primary principles of securing ease and avoiding hardship. During the process of formulating istiḥsān, the main factor was qiyās ...
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There are differences in the approach to law and ethics in Western philosophy compared to law and ethics in Islamic philosophy. Western philosophy itself is divided into several schools, including natural law philosophy, legal realism or positivistic philosophy, historical philosophy of law, sociological philosophy of law, and utilitarianism. These schools have different views on the position ...
Uniform Civil Code and the Dynamics of Muslim Identity in India: An
The Constituent Assembly Debates, however, highlight two sequential implicationsone, that the Code will bind Indians in one single identity; and two, that the minorities, especially Muslims find the idea troubling on account of its potential dilution of the Muslim identity. The 21 st Law Commission submitted its Consultation Paper (2018 ...
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Ans) In Islamic law, there are said to be multiple sources from where the laws can be derived, to name some, it is the Holy Book Quran, Sunnah of the Holy Prophet (PBUH), ijmah (consensus) and lastly Qiyas (analogy), there are other sources as well but these four are considered to be primary. ... Guardianship essay - I got a 76 in Islamic using ...

What Is Islamic Law? How Should We Study It?

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Understanding Sharia: The Intersection of Islam and the Law

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LAW AND ETHICAL PARADIGMS IN THE DISCOURSE ON WESTERN PHILOSOPHY AND ISLAMIC PHILOSOPHY

Figures from this paper

23 References

Uniform Civil Code and the Dynamics of Muslim Identity in India: An Introduction

Nizamuddin Ahmad Siddiqui

Nizamuddin Ahmad Siddiqui (Contact Author)

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