Islamic Law: Historical Development and Debate
Course Syllabus for Graduate Students in Malaysia
Over the last few decades there has been much debate concerning the Islamic institution of shari’ah, which is the formal name for Islamic law. Shari’ah literally means “path” or “way”. The shari’ah embodies a systematisation of the path of conduct ordained by God for Muslims. It was formulated essentially during the eighth and ninth centuries A.D. and was originally conceived as regulating all aspects of a Muslim’s life: not only his relationships with the state and other individuals but also his obligations to God and his own conscience. Its scope extends over ethical and religious duties, the laws of marriage, divorce and inheritance, as well as the entire field of criminal law.
Recently, topics of debate have included questions such as: the compatibility of shari’ah with liberal ideologies and institutions; the rights of non-Muslims in an Islamic state; the political implications of shari’ah; the degree of consensus between the four schools of Islamic law; and, above all, the possibility and validity of re-opening the doors of legal and theological interpretation in Islam. This course will offer an overview of the historical formation and development of shari’ah, of the debates which led to its solidification in the tenth century, and of the various aspects of shari’ah which are of current concern in both Malaysia and the Islamic world in general.
Unit One: Early History:
The course will initially focus on a selective study of the Qur’an and its stipulations in various areas of individual and communal conduct. A study of the hadith (traditions or sayings of the prophet Muhammad) will provide some insight into how the prophet acted as the supreme judge of the Islamic community, addressing whatever legal problems might arise by explaining the rules laid down in the Qur’an. After his death, this interpretative authority passed to the caliphs, the temporal and spiritual leaders of the Islamic community. The first four caliphs, Abu Bakr, Umar, Uthman and Ali, were referred to as rashidun or “rightly guided” since they had all been companions of the prophet. Their reign extended from 632 until 661.
Reading: Selections from the Qur’an, trans. A.J. Arberry.
Selections from Hadith: Mishkat-Ul-Masabih, Vol. I.
Shari’ah: The Islamic Law, Ch.2: “The Qur’an: The First Primary Source of Shari’ah,” pp. 21-39; Ch. 3: “The Sunnah: Second Primary Source of Shari’ah,” pp. 45-58.
Unit Two: The Mu’tazilah:
The Ummayyad dynasty, established in 661, eventually provoked diverse challenges to its authority and its claim to be the arbiter of divine law. These subversive movements included the Ibadis, various Shi’i movements, the Zaydis, and Sunnis. The questions of authority embraced issues such as the status of the Qur’an as created or uncreated and eternal, the problems of free will and divine justice, the attainment of knowledge by reason as opposed to revelation, and appropriate ways of interpreting the Qur’an. There were two broad kinds of movement, the one, represented by the Mu’tazilah, was rationalist, believed in the createdness of the Qur’an and in the absolutely spiritual nature of God; the other was more tradional, viewing the literal word of God as eternal and as the only firm basis, along with the sunna or practice of the prophet, for faith and conduct.
We will study this profound polarisation of theological and legal principles that occurred in Islam between the late eighth through the ninth centuries.
Reading: The Book of Five Principles, written by the Mu’tazilite rational theologian Qadi ‘Abd al-Jabbar.
Hourani, Chapter Nine, “Ways of Islam,” pp. 147-157.
Montgomery-Watt, Chs. 1-4: “the Ummayyad Period and its Prelude,” pp. 1-25.
Ch. 8: “The Mu’tazilites,” pp. 46-55.
Unit Three: The Foundations of Islamic Law:
It was the other, more traditional, reaction against the Ummayyad claim to authority that led to the formalisation of Islamic law, a process that gained considerable impetus during the rule of the Abbasids which replaced Umayyad rule in 750, the capital of the Empire being transferred from Damscus to Baghdad. The Abbasids pledged a new commitment to a truly Islamic state and claimed religious sanction for their rule, creating a widespread impetus to found the legal administration on an Islamic basis. The sources of the law were acknowledged as the Qur’an, the sunna or practice of the prophet, the hadith or sayings of the prophet; other factors included the opinions of scholarly communities and the customs of various communities. In this unit we will investigate the process whereby Islamic law began to be formalised and consolidated, focusing on the use of hadith and the development of what are known as the “secondary” sources of shari’ah, whereby a jurist could employ qiyas or analogy, the principles of istihsan or equitable preference, istislah which refers to the public interest, and individual reasoning or ijtihad. The results of this process are then assessed according to ijma or the consensus of a community of qualified scholars. It was al’Shafi’i (767-820) who systematised the sources of Islamic Law.
Reading: Shari’ah: The Islamic Law: Ch. 4: “The Secondary Sources of Shari’ah,” pp. 64-84.
al-Shafi’is Risala: Treatise on the Foundations of Islamic Jurispridence, selections on the authority of the Prophet, duties laid down in the Qur’an, and the secondary sources of law.
Unit Four: The Four Schools of Islamic Law:
There were many early schools of law, the two most important of which were founded by Malik ibn Anas (c. 715-795) who emphasised the practice of the community in Medina as well as reasoning based on communal interest, and Abu Hanifah (c.699-767) who stressed the process of individual reasoning. The most strictly traditional school of law was founded by Ibn Hanbal (780-855), who insisted that the bases of Islamic law were the Qur’an and the sunna of the prophet and who himself compiled an authoritative collection of hadith. By the early tenth century, Islamic law or shari’ah and the principles of jurisprudence, known as usul al-fiqh, were standardised, and the four movements mentioned above, the Maliki, Hanafi, Shafi’i and Hanbali were established as the orthodox schools. In this section we will examine the doctrines and character of each school.
Reading: Shari’ah: The Islamic Law: Ch. 5: “The Four Schools of Fiqh and their Leaders,” pp. 85-111.
Hourani, Ch. 10: “The Culture of the ‘Ulama,” pp. 158-171.
Selections from the writings of Malik ibn Anas, Abu Hanifah and Ibn Hanbal.
Unit Five: The Closing of the Door of Ijtihad:
While the doctrine of ijtihad or personal reasoning might be thought to have allowed a variety of interpretations, in practice its use was strictly guided and limited by the principle of consonance with other authoritative sources. Moreover, once unanimous qualified consensus on an issue had been reached, the issue was regarded as forever closed. This led to a general process of solidification of Islamic law by the tenth century and, as Arab thinkers phrased it, “the door of ijtihad was closed” and further legal speculation ceased, at least for several centuries. The overwhelming phenomenon of this closure in the tenth century looms large over the entire subsequent history of Islamic thought. This closure was due in part to the development of Hadith studies, wide agreement by theologians on many central points of doctrine, as well as to the clearer formulation of Sunni doctrine by the followers of Hanbal and Hanafi.
In one aspect, all of these developments can be regarded as elements of a general reaction against Mu’tazilite doctrine. This reaction reached its most articulate expression in the work of al-Ash’ari (873-935) who studied under the leader of the Mu’tazilites al-Jubbai in Baghdad. However, at the age of 40, he turned away from the Mu’tazilites and accepted the Sunni doctrine as established by Ibn Hanbal. Al–Ash’ari now vehemently opposed the Mutazilite dogmas, and in their place he asserted that the Qur’an was uncreated, that the statements of the Qur’an should be taken literally, and argued against the Mu’tazilite doctrine of free will. Some of these orthodox tendencies were to receive considerable reinforcement in the work of the later theologian al-Ghazali (1058-1111).
Reading: al-Ash’ari, The Elucidation of Islam’s Foundation.
al-Ghazali, Deliverance from Error.
Montgomery Watt, Ch. 10: “Al-Ash’ari,” pp. 64-68.
Ch. 12: “The Progress of Ash’arite Theology,” pp. 75-83.
Ch. 13: “Al-Ghazali and Later Ash’arites,” pp. 85-96.
Unit Six: Modern Debates:
There have been several attempts in the nineteenth and twentieth centuries to re-open the door of ijtihad or individual reasoning: scholars have argued both for and against the notion of literal meaning, and the nature of its connection with figurative speech in the text of the Qur’an. Recent debates about Islamic law have impinged on the nature of fundamentalism and Islamism, Islam and democracy, Islam and pluralism, the status of women, the political system of Islam. In this unit we will study a variety of perspectives, including those of Abul a’la Mawdudi, Hasan Turabi, Robin Wright, John Esposito, Shanti Nair, Mona Abaza and ’Abdur Rahman.
Abasa, Mona. Debates on Islam and Knowledge in Malaysia and Egypt. 2002.
Ahmed, Akbar S., and Hastings Donnan, eds. Islam, Globalization and Postmodernity. Routledge, 1994.
The Holy Qur’an. Trans. A. Yusuf Ali. 1934; rpt. Amana Corp., 1983.
Allen, Roger. An Introduction to Arabic Literature. Cambridge University Press, 2000.
The Koran Interpreted. Trans. A.J. Arberry. Macmillan, 1955.
Doi, ‘Abdur Rahman I. Shari’iah: The Islamic Law. Kuala Lumpur: A.S. Noordeen, 1984.
Esposito, John L. Islam and Democracy (New York: Oxford University Press, 1996).
Al-Ghazzali. The Alchemy of Happiness. Trans. Claud Field. 1980; rpt. Octagon Press, 1983.
———-. Deliverance from Error.
Gocek, Fatma Muge, and Shiva Balaghi, eds. Reconstructing Gender in the Middle East: Tradition, Identity, and Power. Columbia University Press, 1994.
Hamdi, Mohamed Elhachmi. “The Limits of the Western Model,” Journal of Democracy 7, No. 2 (April 1996): 81-85.
Hussain, M. Hadi. Imam Abu Hanifah: Life and Works. New Delhi: Islamic Book Service, 1998.
The Qur’an. Trans. Muhammad Zafrulla Khan. 1970; rpt. Olive Branch Press, 1991.
Montgomery Watt, W. Islamic Philosophy and Theology. Edinburgh University Press, 1985.
Nair, Shanti. Islam in Malaysian Foreign Policy. Politics in Asia Series, 1997.
al-Shafi’i, Risala: Treatise on the Foundations. Trans. Majid Khadduri. Islamic Texts Society, 1961.
Siddiqui, Abdul Hameed, trans. Mishkat-Ul-Masabih: Vol I. Kitab Bhavan, 1984.
Wright, Robin. “Islam, Democracy and the West,” Foreign Affairs, 71, No. 3 (Summer 1992): 131-145.