Development of Sharia Law

Sharia law had a formative period from the Qur'an and the life (sunnah) of the Prophet Muhammad, both being equal in authority except that the reports of the Prophet's words and actions (hadith) are debatable whereas the text is fixed.
That hadith was often confused with local practice (e.g. Madinah) in the formative period. When Islam spread this problem grew - up to the 900s.
Muhammad bin Idris al-Shafi'i (d. 820 CE) produced a legal theory to shift Sunna from local practices. This involved identifying the sources of law and acceptable methods of interpreting them. The sources for law are the Qur'an, the sunnah, unanimous consensus (Ijma') and analogy (Qiys).
Formalism took over from localism, but a formalism that was give a tradition in al-Shafi'i that tackled excessive formalism. Important were equity (Istihsan), public utility (Maslahah), and, still, custom ('Urf).
This introduced the post-formative period. Interpretations could be made using these formal rules and background and reasoning from before. This was independent interpretation (ijtihad). Ijtihad meant finding God's law in conditions of uncertainty. Over time however interpreters became authoritative and so did some interpretive communities or schools (madhhabs) for legal authority. Each set a precedent (taqld) that was then relied upon.
Four schools (madhhabs) arose:
  • Hanafi - after abu Hanifa (d. 767 CE)
  • Maliki - after Malik ibn Anas (795 CE)
  • Shafi'i - after Muhammad bin Idris ash Shafi'i (as above)
  • Hanbali - after Ahmad ibn Hanbal (d. 855 CE)
So the schools of law came to govern practice. The jurist no longer accounted for himself but according to the school and indeed authority rested in the school.
Precepts and tests of the law (qawa'id) replaced sources.
Ijtihad was marginalised and required stronger justification. A collective taqlid (reliance on others) became all the more established, and sharia has remained this way from the Middle Ages.
There was and remains a tension between the ruler and law and the legal scholar and law. The Qur'an states that a ruler decides on war, taxes, criminal punishments and justice as fairness. The Caliph effectively succeeds the Prophet as head of state, but it is questionable about his religious authority. In this pattern judges are as scholars but who rule. Ijtihad implies the scholar gains over ruler, but taqlid is the ruler over the scholar - and this is dominant and conserves against change. Itijad is therefore also reformist whereas taqlid upholds existing power.
In addition there is a jurists' law based in texts and is religious (fiqh), and thus beyond the State in an ideal sense; however, this rarely happens independently of the State and of the schools of law. Set in ternsion with this there is a law for rulers (siyasa) in which actions and laws can be made that do not contradict shari'a - but this needs scholars to say the additional law is non-contradictory. Such law is based on community needs.
Today some strict Islamic states continue with the rule based law and an emphasis sharia (but local custom law often confused with it). Other such Islamic systems were often removed due to colonialisation and in the modern period even most Islamic countries balance (many secular based) ruling laws with consistency with Islamic sharia. Some states are attempting to increase the place of sharia law over other law, even if consistent with Islam.
On the other hand political reformers are stressing the need for Islamic reformation and draw on itijad.
Note that Shia law is more similar to Sunni law than different. It has undergone the same clericalisation and conservatism.

 

Adrian Worsfold

Pluralist - Liberal and Thoughtful