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from Vol. 3, No. 2

Rumi and the Whirling

by Sheikh Abdul Azziz

from Vol. 9, No. 2

Najm al-Din Kubra
and the Kubrawiyyah Order

by Atosa Aria Abedinni

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This Article Appeared
in Volume 9, Number 3


Shari'a, Tariqa & Haqiqa
A Survey of Sufi Philosophy and Islamic Law,
Part Two






By Seyedeh Sahar Kianfar

Sahrì’a is derived from the root shara’a, ‘to introduce’ or ‘prescribe,’ and is the canonical law of Islam as put forth in the Qur’an and the Sunnah and elaborated by the analytical principles of the Sunni and Shi’a schools of law (madhahib). The Sharì’a is the heart of Islamic law as it sets to establish the norms for all Muslim institutions and societies. Islamic law takes into its purview relationships of all kinds, both toward God and towards men, including such things as the performance of religious duties and the giving of alms, as well as domestic, civil, economic, and political institutions. By its origin, nature, and purpose it is intimately bound up with the religious ethic. Therefore, Islamic law, in theory, is not restricted to any specific fields of law. Islamic jurisprudence, in contrast to Judaic and Christian law, has evolved into a real legal and political system that faces unique issues.

Whereas Christianity, from its advent, had to adhere to Roman law, Islamic law, from its advent, sought to minimize ‘urf, or customary laws, and establish its own legal tradition. Islamic law prevailed in countries with high Muslim populations so that the Sharì’a became the dominant legal tradition. Islamic law faced, and still faces, the unique challenge of developing alongside the establishment of modern nation-states while ensuring the ethical rights and livelihood of all its citizens, Muslim and non-Muslim alike.

The evolution of the Sharì’a can be divided into five phases, loosely labeled as: initial, systematization, secularization, modernization, and remodification. As mentioned in “Part One: An Introduction”, both the Prophet (pbuh) and the Rashidin1 (first four ‘Rightly Guided’ Caliphs) alone had the power of positive legislation and, therefore, there was no cause to establish a separate legal system outside their authority during the first phase. The legal structure of Islam began as a result of the consolidation efforts under the Umayyads2 , which focused on developing systematized Islamic institution. This institutionalization, in its rudimentary form, is highlighted by the creation of the position of qadi, or judge, whose primary function was to settle disputes, which later evolved to autonomous legal administrators. By this time, the five objectives of Islamic law were defined as the right to life, mind, property, family, and religion. With these objectives in mind, jurists sought (and still seek) to develop regulations based on: Qur’an, Hadith, ‘aql (intellect), ijma’ (consensus of scholars), qiyas (anological deduction of a law), fatwa (judgement) of the Companions, istihsan (equity), maslaha (public interest), ‘urf (local customary precedent), and istishad (exercise of reason). A myriad of sources were used in early Islamic legal tradition during the Umayyad period, including elements of foreign law (especially Sasanian Persian).3

Eventually, the Islamic community grew disappointed with Umayyad dynasty, believing the legal tradition departed from the classical Medinan example set forth by the Prophet (pbuh) and the Companions (pbuh). Pious scholars began to give voice to their ideas regarding standards of conduct that represent the fulfilment of the true Islamic religious ethic. Grouped together for this purpose, in loose, studious fraternities, they formed, in the last decades of Umayyad rule, the early schools of law. The following ‘Abbassid dynasty incorporated these emerging legal scholars, who were predominately from the religious sector, into the administrative system in an attempt to integrate their legal practice with the practice of the courts. Their main focus was to review local practice in light of Islamic principles as detailed in the Qur’an and Hadith and decided whether to maintain or overturn the practices. The ‘Abbassid support for the early reformation of legal practice may have been rooted in their attempt to change tribal Arab allegiances to a unified Islamic allegiance.

It is difficult to determine when the schools of law developed in their modern form since no detailed account is recorded. Although the central ‘government’ had an influence on the development of the schools, the major component in the systemization of the Sharì’a was the self-identification of legal scholars with a certain school of thought associated with a region. Ibn Khaldun (d. 806/1408) is the earliest scholar to address the formation of the schools, dedicating a section of his Prolegomena to describing the change in focus from the Iraqi, qiyas-based school of jurisprudence and the Hijaz, hadith-based school of jurisprudence. Modern scholars depict the early geographical units of jurisprudence as having developed a minimum consensus on their doctrines. Both schools became associated with their foremost scholars, Abu Hanifah in Iraq and Malik in Hijaz, where they developed a community of disciples. Iraqi jurisprudence had a greater tendency to incorporate Zoroastrian and Roman law into their legal doctrines.

The rise of the Traditionalist (ahl al-hadith) movement in Hijaz, which was based on the authority of the Hadith, is identified as the fundamental cause for the movement away from regional schools to those developed on collections of the legal writings of scholars. Traditionalists disagreed with the incorporation of pre-Islamic customs into jurisprudence and called for a more rigid adherence to the Qur’an. The hadith-minded viewed the Qur’an and the Hadith as the only legitimate sources of law whereas the scholars relied on legal tradition as well as personal discretion. This division between the legal-minded and the hadith-minded began the evolution in jurisprudence towards the current model of madhabs (schools of law).

After the systematization of the Sharì’a, each Islamic country went through three phases of development: secularization, modernization, and remodification. During the initial phase, which began around 1850, there was a clear dichotomy in the law between the secular criminal and commercial codes of foreign inspiration and the rigid, unchallenged family and personal laws of the Sharì’a. However, although the criminal and commercial codes were predominantly Persian and French in origin, they did include a number of provisions taken from the Sharì’a and all were in accordance with Islamic law.
The dichotomy was accentuated by the emergence of parallel legal systems: the Sharì’a courts which were staffed by the ulema and continued the tradition of the madhab and the secular courts which were staffed by Western education judges and lawyers who adopted European legal thought.

During the modernization phase, which began around 1915, the process of reform extended into the family law of Islam. In contrast to the civil and criminal laws, family law was not openly secularized, rather, it was reformed within an Islamic framework. For example, the principle of takhayyur (the principle of choosing between authorities of the past) allowed the ulema to turn to a broader range of legal scholars within the Sunni and Shi’a traditions. The extensive adoption of various Islamic legal practices to family law allowed the Sharì’a courts to be administered by traditional as well as modern jurists. Thus, it is not surprising to discover that this phase of reform was introduced with varying degrees of cooperation from the ulema, who recognized a need to modernize the Islamic legal system in order to preserve it.

During the final phase of remodification, which paralleled the modernization phase, the civil law was revised in light of the changing attitude of the ulema towards modernization. Rather than borrowing a foreign code, the ulema believed that a system of law adequate for modern life could be derived from the principles of the Sharì’a. Thus, after 1915, the dichotomy between secular law and the Sharì’a was blurred so that both Islamic and secular laws are permeated by principles derived wholly or in part from the other.

The legal system of Islamic countries can be loosely branched into three main groups: those that still apply the Sharì’a as the fundamental law (ex: Iran), those that have replaced the Sharì’a with wholly secular laws (ex: Turkey), and those that have reached a compromise between the two positions (ex: Egypt). The modern schools of law consist of four Sunni schools (Hanafi, Hanbali, Maliki and Shafi’i) and three Shi’a schools (Ja’fari, Isma’ili, and Zaydi).4 The legal traditions often diverge on their approach of and reliance on the sources of Islamic law.5 Although all six schools are rooted in the same process of development and in the same religion, there is much variance in the methods of jurisprudence. For example, legal scholars vary on their reliance on the Hadith depending upon levels of authenticity.6 Which Hadith one chooses to accept can significantly change the rule and application of law, especially with respect to family law and inheritance rights.

The Hanafi tradition, which includes about seventy percent of the Sunni population, is characterised by the importance placed on the qadi’s belief and theories. With their heavy use of ra’y in the development of Islamic law, the Hanafi school is often attacked by Ahl al-Hadith. With a small number of disciples throughout the Arabic Islamic regions, the Hanbali school is rooted in the Traditionalist movement, ahl al-Hadith, and has a literal interpretation of the Qur’an and Hadith . . .

. . . to be continued

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1 The Rashidin (pbuh) refers to the first four ‘Rightly-Guided’ Caliphs: Abu Bakr, Omar, Uthman and Hazrat Ali.
2 This primarily occurred during the second half of the Umayyad Dynasty during the second Islamic century (eighth Gregorian century).
3 Orientalists often characterize the use of foreign law as an ‘infiltration’ that greatly influenced the development of Islamic law. This is a fallacy as evidence clearly indicates that early jurisconsults only incorporated elements of foreign law into the Sharì’a when they were certain that it coincided with the sources of Islamic law.
4 Traditional and modern scholars often divide the schools of Islamic law into the four Sunni schools (Hanafi, Hanbali, Maliki, and Shafi’i). In so doing, they often ignore the contributions of Shi’a scholars to legal thought, especially from Imam Jafar al-Sadiq (pbuh), the sixth Shi’a Imam. It is more academically and philosophically sound to discuss the Sharì’a with respect to seven schools of law.
5 Qur’an, Hadith, ‘aql, ijma’, qiyas, fatwa of the Companions, istihsan, maslaha, ‘urf, and istishad.
6 Hadith has three levels of authenticity: (1) mutawatir, where there are multiple accounts of the Hadith from reliable, authoritative sources; (2) mashhur, where there are two accounts of the Hadith; and (3) ahad, where there is only one account.

Seyedeh Sahar Kianfar completed her Masters in Islamic Studies at the University of Cambridge, England, with an emphasis in Islamic jurisprudence.