Folio from the Blue Quran, c. ninth–tenth century. The Metropolitan Museum of Art, Purchase, Lila Acheson Wallace Gift, 2004.
What is shariʿa? It is often translated as “Islamic law,” as if it represented the law in its entirety. It is also commonly thought to be a rigid set of practices and punishments inherited directly from early Islam that are meant to be applied in a single inflexible manner. But none of this is accurate.
Shariʿa is best understood as Islam’s specifically divine law, virtually synonymous with revelation. Muslims believe it to have been revealed to the Prophet Muhammad and principally transmitted through the Quran and his own teachings. But it was not itself the letter of the law followed by early Muslims. Acceding to the commands of revelation required further human interpretation, and this effort to use shariʿa toward the establishment of rules for a moral life has a different name: fiqh (literally “understanding”).
Muhammad died in 632, and shariʿa and fiqh developed in the following years, as his community needed to figure out how to proceed without his personal authority—especially as his successors, known as the caliphs, soon expanded his Islamic state beyond the Arabian Peninsula. They consolidated control over the Near East by driving out the Byzantine Empire from North Africa and the Levant and completely destroying the Sasanian Empire in Mesopotamia, Iran, and Central Asia. Islam then spread through the region.
Local traditions developed, with members of communities debating their shared—and differing—memories and interpretations of the Prophet’s mission. Legal codes evolved through continual contestation and justification. By the second Islamic century, four schools of legal interpretation had become dominant throughout the region and had begun to articulate their legal codes in more formal ways, with doctrines that could speak to all Muslims. These interpretations of shariʿa attempted to distinguish between upright or wicked human conduct in legalistic terms, and their codes operated in tandem with various kinds civil and state law. Fiqh differed among schools, but they shared a graded approach to human ethics, in which they generally divided human actions into five categories: the obligatory (wajib), the commendable (mandub), the indifferent (mubah), the disfavored (makruh), and the prohibited (haram). By default, human actions were assumed to be morally indifferent, and express evidence was required to declare a particular act prohibited or obligatory.
After another five centuries of evolution, the schools had settled more or less into final forms. Each had produced a text that set out its authoritative legal doctrine—what American lawyers might call “black-letter law”—covering four broad domains. Schools arranged these areas of focus slightly differently but shared a common conception of what spheres of human conduct were amenable to legal regulation: ritual; contracts; marriage, divorce, and related matters; and torts, along with crime and punishment.
That last category receives so much attention today that an observer would be excused if he believed it to be the central concern of Islamic law. But this, too, is not accurate, and there is much dangerous misinterpretation about how shariʿa and fiqh dealt with crime and punishment in premodern times.
The Quran and the teachings of Muhammad do prescribe certain mandatory corporal and even capital punishments for a circumscribed set of crimes. These are limited to theft (amputation of the hand); fornication (one hundred lashes) and adultery (lapidation); slander (eighty lashes); highway robbery or brigandage (depending on the acts committed in the course of the crime, the punishment could vary from imprisonment or amputation of feet or hand to death); rebellion (may be killed on the battlefield without legal consequence); and apostasy (death in the absence of repentance). But the jurists—whose legal interpretations represented the manner in which shariʿa was actually practiced—also placed substantial evidentiary obstacles intended to preclude the application of these punishments, generally demanding eyewitness testimony to the criminal conduct at issue, thereby making it impractical to convict defendants of these crimes short of their own confessions. Even in the case of confessions, moreover, jurists allowed defendants to retract their confessions at any time prior to the sentence being fully carried out. As a result, the vast majority of criminal cases, including those that were nominally covered by revealed law, were left to be dealt with by the civil laws of governing municipalities, which themselves changed over time as dynasties and empires rose and fell.
Today, however, some Islamist groups reduce Islamic law to these scriptural penalties and describe any Muslim state that does not apply them as illegitimate. In the extreme, some groups, such as ISIS, argue that this failure to apply scriptural criminal penalties means that Muslim governments have apostatized, and their populations, insofar as they continue to support such regimes (even if only tacitly), have also apostatized. ISIS then justifies its mass violence against Muslim societies on the ground that they are apostates.
But such arguments are difficult to take seriously unless one believes that the only legitimate law in the view of Muslims is the fiqh of Muslims jurists, or that a Muslim must follow exactly the divine word as received by Muhammad. Through the pluralistic and manifold history of Islamic law this was never historically the case. The course of Muslim self-rule—from the early days of Muhammad through the fall of the last Muslim empire—tells a different story.
During the Jahiliyya, as the Age of Ignorance that preceded Islam is known, the pagan Arabs’ political life was tribal. They refused to submit to a central authority and regularly boasted of their independence in contrast to the settled peoples of the Fertile Crescent. They were not, however, uniformly nomadic: some tribes were urban and mercantile, such as the Quraysh of Mecca—which was the tribe of Muhammad—while others were settled agriculturalists. Pagan independence meant that pre-Islamic Arabian life was characterized by episodic bouts of tribal violence, restrained almost exclusively by the threat of tit-for-tat retaliation.
The annual pilgrimage to Mecca taken by the tribes was helpful in this regard: it was preceded by four months of a sacred truce, during which violence was taboo. The pilgrimage was to the Kaaba, a plain, cube-shaped building in Mecca that was the center of pre-Islamic Arabian religion. The Quraysh controlled access to the Kaaba and oversaw this pilgrimage, known as the Hajj. Mecca was itself an inviolable sanctuary, and this local peace and security allowed the Quraysh to assume a certain political preeminence among the pre-Islamic Arabs.
According to Arabian lore, Abraham and his son Ishmael (Ibrahim or Ismail in Arabic) were responsible for the Kaaba’s construction, and although it had become a center of Arabian paganism by the time of Muhammad’s birth in 570, it continued to be associated primarily with the worship of Allah, the God of Abraham.
When Muhammad made his religious call, he affirmed the exclusivity of Allah’s divinity and decisively rejected the pagan gods. This message was taken by the local Arab pagans as profoundly threatening, and it was not surprising that they persecuted Muhammad and his followers. In 622, after thirteen years of being a besieged and marginalized community, Muhammad’s small group fled from Mecca, an event known as the hijra (the migration), traveling to Yathrib, a small oasis town in western Arabia, where their fortunes radically changed. Yathrib had in the years prior suffered a debilitating civil war between its leading clans, and representatives from the town had gone during the annual pilgrimage to meet with Muhammad. Some converted to Islam and invited him to come to Yathrib to live under their protection and act as their leader. Muhammad agreed. Now, unlike his previous years in Mecca, the Prophet and his followers were able to preach Islam openly and live out its ideals practically.
The town’s association with Muḥammad and Islam soon became so distinct that it lost its proper name and came simply to be known as al-madina, the city—or to better reflect its political significance, the polis. This new political community even had its own founding document, which Muslim historians came to call the Charter of Medina. It recognized Yathrib’s separate tribes and clans as independent while obliging them to act collectively in certain matters: to defend against external aggression and to uphold basic principles of internal justice. Crucially, it brought into one political body the non-Muslim Arabian pagans of Yathrib (still at that point the majority of the population) with the local Jewish clans, which were explicitly granted the right to maintain their own religion but required to recognize the political authority of Muhammad.
Now firmly entrenched in Medina, the Muslim community was able to defend itself against Meccan attacks and then to return to Mecca in victory. Their former persecutors largely reconciled themselves to Islam and recognized Muhammad’s leadership. Over the last year of his life, Muhammad extended his dominion to the rest of the Arabian Peninsula, though both he and many of his most prominent followers continued to live in Medina. Then, ten years after the hijra, Muhammad died, leaving the Quran and his teachings to guide the way.
At least that was the view of the majority of the Prophet’s followers, who would come to be known as Sunnis. A separate group of Muslims, who would later become known as the Shia, believed that the Prophet had designated his cousin and son-in-law, ʿAli b. Abi Talib, as his successor. Unlike the majority of the Muslim community, the Shia came to believe that the Prophet Muhammad also left, in addition to the Quran and his teachings, infallible leaders from among his own descendants, known as imams. But even though substantially divergent theological views became entrenched, Sunnis and Shia were, as a practical matter, in agreement on most points of law. (For this reason, and particularly in the twentieth century, there has been an attempt to transcend the Sunni-Shia divide by recognizing much Shia thought as another school of Islamic law that stands alongside the Sunni schools.)
Despite these theological and political divisions, Muslims successfully forged a common law that bound both the ruler and the ruled, with the law emerging as a result of mutual discussion and debate. A ruler did not, for instance, have special authority to interpret the content of the law or the meaning of its rule, at least according to the majority of Sunnis. So while the new Muslim empire was hardly the first in history to fuse the religious and the political, its manner was perhaps unique: unlike the Holy Roman Emperor, for example, a Muslim caliph did not lead public rituals as a high priest but in shared obligation with each person in the community—if circumstances required, the rituals could be performed by any them.
The rapid expansion of the early Muslim state brought new problems. In 661 the Umayyads formed the first dynasty in Islamic history, making Damascus their capital. But as they expanded the Islamic state’s frontiers into Central Asia, greater numbers of the non-Arab conquered population embraced Islam, and a political crisis ensued. The Umayyads could conceive of Islam only as an Arab religion, and as the number of converts grew, a branch of the Quraysh tribe who were the descendants of Muhammad’s uncle al-ʿAbbas allied with discontented members of the non-Arab Muslim population to drive the Umayyads from power in 750 and establish the ʿAbbasid dynasty.
ʿAbbasid rule, which lasted five centuries, until 1258, opened up a transformative moment for Muslim juristic culture. The dynasty built its new capital city of Baghdad in Iraq and gave a prominent place in its administration to non-Arab converts—who hailed largely from the Persian-speaking populations of Iran and central Asia—even making room for the cultural contributions of numerous non-Muslim populations. From within this newly cosmopolitan political framework emerged variant interpretations of Islamic law: the four schools that became widely recognized, applied, and practiced.
Each of these Sunni legal schools held prominence in a particular region of the empire. The school dominating in Upper Egypt, North Africa, Islamic Spain, and sub-Saharan Africa was the Malikis, named after Malik b. Anas, an eighth-century scholar who was born, lived, and died in Medina, and whose Muwattaʾ remains the oldest surviving systematic treatise of Islamic law. In Persian and Turkish regions, as well as the Indian subcontinent, were the Hanafis, named after Abu Hanifa, an Iraqi jurist. In Cairo and Lower Egypt, Yemen (and later the east African coastal region, the southern coast of India, and the Spice Islands) were the Shafiʿis, named after Muhammad b. Idris al-Shafiʿi, a peripatetic figure originally from the Hejaz who studied the Medinese and Iraqi traditions of Islamic law and authored the first work of theoretical jurisprudence in Islamic history. And in the urban centers of the Middle East, particularly among the lower classes, were the Hanbalis, named after Ahmad b. Hanbal, a staunch traditionalist who rejected speculative reason.
One consequence of having four different circulating schools was the increasing frustration of civil administrators. Judges in one town, for example, might find a certain set of facts sufficient to prove intentional murder, but the judge in a neighboring town would refuse to find guilt on the same set of facts. This situation was apparently frustrating enough that while on pilgrimage to Mecca and Medina, the second ʿAbbasid caliph, al-Mansur (or according to other accounts, the fifth ʿAbbasid caliph, Harun al-Rashid), met with Malik b. Anas and proposed to make the Muwatta the universal law of the empire. Malik, Islamic history tells us, attempted to dissuade the caliph from this plan, arguing that the various local traditions were all valid, warning that any attempt to displace entrenched local practices with unfamiliar ones—even if Malik believed his own to involve sounder interpretation of the shariʿa—could only lead to trouble. The caliph took Malik’s advice and abandoned his plan to impose a uniform law on the Muslim empire.
As a result, legal pluralism became a normative feature of applied Islamic law, with various regions of the Muslim world continuing to apply different versions of Islamic law, all of which were considered equally Islamic, despite their differences in various secondary doctrines. By the end of the fourth Islamic century, Islamic law was fully decentralized, with control over legal production, instruction, and transmission in the hands of scholars rather than the state.
Daily ritual practices helped spread knowledge of various jurist’s legal interpretations. Particularly in urban areas, the widespread availability of scholars in local institutions of worship gave nonspecialists ample opportunity to listen in on legal instruction and to ask questions of experts. Jurists’ legal opinions—called fatwas—were further in the service of making the knowledge accessible to anyone willing to approach a legal expert and ask his or her question.
About what, exactly, were these fatwas offering opinions? As a system of ethical guidance, the shariʿa is, in principle, comprehensive; no human act or omission escapes its vision. No morally responsible Muslim should engage in conduct without considering first what the shariʿa might have to say about performing or abstaining from that act.
But as a practical matter, only the presence of specific divine law obliging, prohibiting, commending, or discouraging an act is sufficient to require adherence. So the jurists did not attempt to regulate every conceivable human action but effectively specialized in those teachings of divine law that were directly, or indirectly, connected to public life, such as the rules for the observance of public rituals (for example, daily prayers, the Ramadan fast, and the annual pilgrimage to Mecca). They effectively ignored other aspects of ritual law, neglecting to legislate how to cultivate such inward psychological virtues as reverence, piety, and contentment.
Focused almost exclusively on ensuring well-ordered public observance, jurists left thicker ethical judgments to others. Their own judgments as set out in lawbooks were more narrowly legal in a Western sense. Their language is largely limited to the valid, invalid, void, voidable, binding, and revocable, from the perspective of rules potentially enforceable by the legal system. If the ethical commands of the shariʿa could be said to regulate ethical lives directly, the rules of the jurists could be said to regulate ethical lives indirectly—helping a Muslim respect the boundaries of rightly ordered relationships with God and fellow human beings.
Over time, as Near Eastern societies became more complex, Muslim states adopted legislation to supplement jurists’ law, sometimes even to displace it. Civil society was held separate from religious law, and institutions were developed to incorporate the two, including a judge of Islamic law called a qadi. Along with punishing criminals, the state’s own fora and administrative offices took on other roles, including resolving civil disputes, hearing administrative complaints, and regulating the market. Though jurists might review whether civil laws were repugnant to divine law—examining if a law required conduct condemned as sinful—they generally did not work against them. Religious and civil life were intertwined but not collapsed into one.
The decentralized nature of this balance and arrangement helped the law remain stable; even when the ʿAbbasids lost effective control over their provinces in the thirteenth century, state collapse did not spell the end of this system. The civil and religious institutions were robust enough for local leaders to imitate them in their own territories for many years to come.
Toward the end of the thirteenth century, there emerged a new Islamic empire, one which would ultimately spell the end of this system. The Ottoman Empire was founded in Anatolia and spread through much of what is now southeastern Europe, North Africa, the Levant, and Mesopotamia. For much of the empire’s history, the Ottomans relied on Muslim jurists as the primary dispensers of justice throughout their domain, though they systematically privileged the Hanafi school of law. While they did not impose Hanafi doctrines everywhere they went, the Hanafi school did come to be the official law of the Empire, and leading Hanafis became tightly integrated into the ruling infrastructure of the state.
But by the early nineteenth century, Ottoman rulers came to appreciate the rising strength of Europe, recognizing it as an existential threat to their existence. In response, rulers in the empire’s center as well as in some of its provinces adopted wholesale legal reforms—in many cases, copying modern European codes. For Ottoman reformers, the great advantage European states had relative to them was the centralization of power in the hands of rulers, and so they believed that by adopting such European legislation, the Ottoman state would be able to implement its policies more effectively, successfully making the economic and social reforms needed to put the empire on an equal footing with a rapidly industrializing Europe. As part of these reforms, the state attempted to apply a universal code of Islamic law for the first time in Muslim history. Drawing primarily from the Hanafi school, the Ottomans produced the first universal Islamic civil code, called the Majallah.
The protection effort didn’t work; the empire fell at the end of World War I. And the most lasting effect of the Ottoman reforms would turn out to be sounding the death knell for the Sunni system of four decentralized legal schools. State-led reforms created a universal code by adopting legal reasoning that was, from the perspective of traditional adherents, ad hoc, piecemeal, and in many cases simply cut and pasted from different, otherwise incompatible legal doctrines. Traditionally trained jurists lost their monopoly over interpreting the shariʾa. Competition came not only from other branches of the state but also from a broad range of religious movements in civil society, some challenging the pace of reforms as too timid and others rejecting them as illegitimate.
One of the most prominent, influential, and long-lasting of these popular religious movements was the Muslim Brotherhood, which was founded by Hasan al-Banna, an Egyptian schoolteacher, after the fall of the Ottomans. The Muslim Brothers called for a fusion of personal and communal religious renewal with political reform and renaissance—a combination characteristic of Islamist political movements that arose in the twentieth century. Such Islamism broadly challenges the role of the traditional Islamic scholars—who offered their interpretations of the shariʿa with a sense of bounded legality, viewing religion largely through the prism of personal virtue—instead seeing religion as a tool of social and political reform.
The Brothers encouraged Muslims to return directly to the revealed sources of Islam, accusing the clerical class of traditional jurists of having divided Muslims along partisan lines based on historical doctrines that were, they believed, irrelevant to modern Muslims and unintelligible to all but the initiated. What was needed instead was the moral, spiritual, and political awakening of individual Muslims through a reintroduction of fundamental Islamic values. This vision was, to be sure, in stark contrast to that of the traditional scholars who generally adopted a paternalistic view of both religion and politics, with the masses expected to defer to them in authority. The Brothers boiled down their call to the rhetorical slogan “Islam is the solution,” by which they meant that only by restoring Islamic law to its central place in the lives of Egyptians could Egyptians expect national renewal.
The rise of the Muslim Brotherhood offered but one response to a post-Ottoman world in which traditional Islamic legal doctrines had been formally displaced through the reforms of Muslim rulers and by colonial masters. There have been many other approaches and responses, both Islamist and nationalist. But none of them has led to a stable theo-political equilibrium in the Muslim world—not under colonialism, not through the immediate postcolonial period, not into the modern era.
Even with this lack of stable Muslim governance in the century since the fall of the Ottomans, however, political calls to restore the shariʾa—or fears of its unwanted imposition—seem strange, for they imply that the shariʾa at some point disappeared from Muslim private and public life. This is simply not and has never been the case. It has been constant as a religious system of ethical guidance. But when the tradition of the four legal schools lost its authority, a problem arose that has yet to be solved, one that has become only increasingly complicated: how the legal interpretation of the shariʾa may fit into a larger political society in the absence of the traditional structures provided by the old legal schools. It is a problem that has less to do with what the shariʾa is or has ever been than with how movements—in both good faith and bad, in societies either pluralistic or authoritarian—may attempt to interpret it in the service of their own political goals.
Read more on the law in our Spring 2018 issue, Rule of Law.