Islamic Law

The Sources of Islamic law: a quartet

Primary

Common Law & Islamic Law

Like English common law Islamic law has accumulated over centuries. There is no comprehensive or universal code: there is nothing comparable to a Civil Code or a Code Napoleon. An exception to this is the Mejelle, a bench book representing the codification of one school of Islamic law by the Ottoman imperial authorities (the predecessor to modern Turkey)  in 1876.

Rather it is the accumulation of judges adjudicating actual disputes and scholarly efforts to summarise the law. In court parties to a dispute or their representatives present their account of events and their cases to the judge in the familiar adversarial manner. In contrast to common law however judicial decisions are not binding upon  other judges and there is no well-defined hierarchy of courts. Judgments and judicial opinions are persuasive authorities; as with court reporting today the recording and transmission of judgments and the selection of those cases which will be recorded is not without an element of subjectivity and chance. The absence of a doctrine of precedent creates both flexibility and legal uncertainty.

Equity & Islamic Law

Islamic law does not distinguish between the common law so accumulated and equity. However it contains principles of fairness and doing justice when rules fail or operate harshly, in a manner similar to the court of equity in England. In fact some of the recorded statements of the founding figure of Islam, Muhammad, are not unlike the maxims of equity familiar to English lawyers.

Presumption of Legality; relation to morality

There is in the Islamic tradition a presumption of legality – that is, everything is permitted which is not expressly prohibited. Legality is also partially distinct from morality. Although all illegal acts are wrong, some immoral actions are nevertheless legal. For example in contract law a promise is distinct from a legally binding contract. Only conscience compels an individual to keep a promise. The court will enforce contracts but not promises.  As common or civil law lawyers would understand Islamic law is a set of prohibitions. It states what may not be done, not what may or should be done. At the same time Islamic law recognises gradations outside of the strictly legal, expressing moral approval and disapproval.

Sovereignty of Parliament, sovereignty of revelation

The above paragraph describes the human endeavor that is Islamic law. Muslims understand jurisprudence in the Islamic legal tradition as an effort to understand and to explain sources that they believe to be revealed, of divine origin. The counterpart to the supremacy of Parliament (the doctrine of Parliamentary sovereignty) in England then is in Islamic law the sovereignty of God. Parliament has produced and continues to produce statute. By contrast the legislative act is (for Sunni Muslims) already completed.

Qur’an & Sunnah

The task remaining, that fulfilled and continued by judges, jurists and legal scholars is the elaboration of the revealed sources which contain that law. It is the application of these sources understood as rules or principles to the facts of a case that concerns Muslim lawyers and legal scholars. Following the comparison with the common law, the statute sitting alongside the judge-generated case law is the Islamic scripture, the Qur‘an and the example of the founding prophet of Islam, Muhammad: both the actions and words of Muhammad which are recorded and transmitted from the sixth and seventh century to the present, in compilations of hadith. In cases of conflict between the hadith and the Qur’an the Qur’an prevails.The normative example of the faith encompassing hadith and the teachings of Islam comprises the Sunnah. The name of the majority sect, the Sunni is etymologically related to the Sunnah, with Sunni Muslims being followers of the Sunnah.

Whilst there are no legally significant disputes about the text of the Qur’an itself, the same is not true of the hadith as the strength of a particular hadith may be disputed, and its veracity or credibility may be questioned — for example if there are weak links in the chain of witnesses who transmitted it. There are several compilations (by different authors) of hadith and they are not identical, reflecting the possibility of argument over and selection from more or less favourable hadith authorities in the litigation of a dispute.

Facts & Texts

In English or other modern legal systems reading a statute, and applying that statute to a set of facts —  that is to an actual dispute — creates scope for interpretation and advocacy. The texts themselves are fixed but their meaning is not. The meaning of a text can never be fully or exhaustively determined and its implications for legality cannot be known in advance of actual disputes. Certainly this is one argument in favour of the common law which scholars generally consider as featuring the virtue (or sometimes perhaps the defect) of greater flexibility than its civil counterpart.

The same point about fixed texts with shifting and flexible interpretations is true for the texts of the Qur’an and (to an even greater degree) the hadith; the array of sources  and legal materials in Islam and the possibility of selecting some over others, and of impeaching the strength or credibility of some in favour of others, opens further interpretive space within which a judge or the representative of a party or a party him or herself may operate. Their success in a particular case will of course as is any legal encounter depend partly although not wholly on their knowledge, skill and imagination. As with any law the inherent ambiguity of words and language renders possible a range of judgments even in few of a set of facts (documents, statements, actions) that are agreed. The inherent interpretability of facts and events and the possibility of competing accounts of these events makes legal decisions in Islamic law as with other systems of law at least partially indeterminate.

Secondary

Consensus & Reasoning

In addition to the primary sources of the Sunnah, some of the Islamic legal schools add as a source the consensus of the Muslim community or of a learned subset of that community. Others expressly include human reasoning as a source of law; such reasoning as with Islamic jurisprudence is de-limited by the texts and sources higher in the hierarchy and works by analogy to reach judgments about a new set of facts. For example the Qur’an states a prohibition on intoxicants (khamr, 2:219). Since the time of the Qur’an’s appearance however there are any number of substances (for example, cocaine or nicotine) which have intoxicating effects. These along with so many substances or issues are not expressly banned by or mentioned in the Qur’an. Human reasoning is required to extend the Qur’anic principle regarding intoxicating substances to these new substances. There is scope for argument both for and against even on the basis of the Quranic verse itself.

The same kind of reasoning also makes possible innovation in Islamic commercial law. And it allows individuals whether in their own considered judgment or with the assistance of learned authorities to decide whether a transaction or contract characteristic of modern economic system is lawful or unlawful.

A Quartet and Some

In summary, there are four sources of Islamic law: Qur’an, Sunnah, consensus and reasoning. In addition to these four some schools and jurists will further expand the scope of sources to include equitable considerations, custom, policy, or necessity. The potential range of justifications and styles of argumentation, interpretation, and reasoning is considerable. The fact that different legal schools vary in their position regarding the secondary sources and possible supplements to these recedes in importance as a result of the possibility of selecting from one or more legal schools — and the sources and methods recognised by those legal schools — within one judgment, contract or submission to the court.

Occasional reference in the above was made to Raj Bhala, Understanding Islamic Law (Lexis Nexis 2011) together with sources cited in Sources/Bibliography.