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History of Shariah

Date Published: 
Wednesday, 6 June, 2018
Summary: 

Shariah rules were part of the positive law applied by the government of the early Muslim community, which was originally conceived as an entity where political and religious loyalties would be coterminous. At the same time, the shariah was also understood as a system of moral guidance for the individual believer.

In the Islamic view, governments exist only to ensure that the shariah is properly administered and enforced. Governments are subordinate to the shariah and must execute its commands and prohibitions. In other words, what Islam envisages is a scheme of divine nomocracy, in which the law is the medium of social control—truly, a government of laws, not of men.

Should the government of a Muslim society fail in its obligation to uphold the shariah as the positive law, or the judges of this world fail in their obligation to administer justice in accordance with the shariah, the individual believer would still be held to the responsibility incumbent upon all Muslims to conform their behavior to the shariah. On the Day of Judgment each Muslim will be held to account for any personal failures to comply with the commands and prohibitions of the shariah.

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Al-Shafii succeeded in persuading subsequent jurists that the sunnah of the Prophet should be treated as the second root of Islamic jurisprudence and a source co-equal with the Qur'an. It is generally accepted among Muslims not only that the Prophet was a perfect human being and thus worthy of emulation, but also that he enjoyed divine inspiration and thus could make no error in matters of religion or shariah law. As noted, challenges to the authenticity of the hadith literature on which the understanding of the Prophet’s sunnah rested generated a science of hadith criticism to weed out unsound or dubious accounts. In addition, methodologies were worked out to reconcile seeming contradictions and inconsistencies in different hadith and between hadith and verses of the Qur'an. As in the case of the Qur'an, reading the hadith literature without a grasp of how orthodox Islamic scholarship interprets the legal implications of the hadith and the relevant jurisprudence can lead to erroneous conclusions.

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Most Sunni Muslims have taken the view that the hadith assembled in certain classic collections, such as those of al-Bukhari and Muslim, which date from the latter part of the third century AH, should be regarded as genuine, while members of the other sects rely on their own hadith collections, which include many hadith accounts that conflict with those in other collections and support their respective sectarian legal positions. Challenges to the authenticity of the hadith, which have repeatedly arisen in various forms over the history of Islam, have important implications for the shariah. Since the hadith literature is very extensive (classical collections contain more than four thousand reports) and covers a much wider range of topics than the legal verses in the Qur'an, it has supplied the Islamic rationale for a major part of shariah law, which would forfeit its Islamic legitimacy if the hadith literature were discredited.

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Comparisons of the rules of the classical fiqh. In detail the rules of the various Sunni schools are often different enough to affect the outcome of a legal dispute. On the average legal question, the degree of doctrinal difference between a given Sunni school and a Shia school is often not much greater. Notwithstanding the different approaches that Sunni and Shia fiqh purport to have to the sources of law, aside from their differences regarding who should rule the Muslim community, one finds few major divergencies except on some points of religious ritual and worship, certain rules of marriage and divorce, and the laws of inheritance.

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Another factor mandating change from the old shari'ah-based system of law was the international political setting. The rulers of Muslim states in the nineteenth and twentieth centuries were obliged to deal with a historical reality that was vastly different from what had been contemplated in early shariah theory. The shariah was originally conceived as a law whose application would be coextensive with religious affiliation. The world was to be converted to Islam, and there would result one community of believers with a common political allegiance and a common obligation to follow the shariah. This conception did not envisage the appearance of obstacles in the way of the realization of this ideal, such as the fragmentation of the Muslim community into separate and mutually hostile political units, the development of national identities and the rise of modern nationalism, the failure of large non-Muslim communities within the Muslim world to convert, and the need to deal with non- Muslim countries possessed of greater economic and military resources.

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European powers also objected to the inferior legal status accorded to non-Muslims under the shariah and exploited this as a pretext for political intervention.