we must look to the founder of Islam to understand why there was never any separation of state and church. Muhammad was not only a prophet but also a statesman; he founded not only a community but also a state and a society. He was a military leader, making war and peace, and a lawgiver, dispensing justice. Right from the beginning, the Muslims formed a community that was at once political and religious, with the Prophet himself as head of state. The spectacular victories of the early Muslims proved to them that God was on their side. Thus right from the start in Islam, there was no question of a separation between sacred history and secular history, between political power and faith, unlike Christianity, which had to undergo three centuries of persecution before being adopted by “Caesar.”
The sharia or Islamic law is based on four principles or roots (in Arabic, “usul,” plural of “asl”): the Koran; the sunna of the Prophet, which is incorporated in the recognized traditions; the consensus (“ijma”) of the scholars of the orthodox community; and the method of reasoning by analogy (“qiyas “or “kiyas”).
The Koran, as we saw earlier, is for Muslims the very word of God Himself. Though it contains rules and regulations for the early community on such matters as marriage, divorce, and inheritance, the Koran does not lay down general principles. Many matters are dealt with in a confusing and perfunctory manner, and a far greater number of vital questions are not treated at all.
The sunna (literally, a path or way; a manner of life) expresses the custom or manner of life of Muslims based on the deeds and words of the Prophet, and that which was done or said in his presence, and even that which was not forbidden by him. The sunna was recorded in the traditions, the hadith, but these, as we saw earlier, are largely later forgeries. Nonetheless, for Muslims the sunna complements the Koran and is essential for understanding it properly, for clarifying the Koranic vaguenesses and filling in the Koranic silences. Without the sunna Muslims would be at a loss for those details necessary in their daily lives.
The Koran and the sunna are the expressions of God’s command, the definitive and inscrutable will of Allah that must be obeyed absolutely, without doubts, without questions, and without qualifications.
But with all their attendant obscurities, we still need some kind of interpretation of the sunna and the Koran, and this is the task of the science of sharia (fiqh). The specialists on law were called “faqih.” They founded many “schools” of interpretation, four of which have survived to the present day and share among the whole population of orthodox (sunni) Islam. Oddly, all four are considered equally valid.
1. Malik ibn Abbas (d. 795) developed his ideas in Medina, where he is said to have known one of the last survivors of the companions of the Prophet. His doctrine is recorded in the work, Muwatta, which has been adopted by most Muslims in Africa with the exception of those in Lower Egypt, Zanzibar, and South Africa.
2. Abu Hanifa (d. 767), the founder of the Hanifi school, was born in Iraq. His school is said to have given more scope to reason and logic than the other schools. The Muslims of India and Turkey follow this school.
3. Al-Shafi’i (d. 820), who was considered a moderate in most of his positions, taught in Iraq and then in Egypt. The adherents of his school are to be found in Indonesia, Lower Egypt, Malaysia, and Yemen. He placed great stress on the sunna of the Prophet, as embodied in the hadith, as a source of the sharia.
4. Ahmad ibn Hanbal (d. 855) was born in Baghdad. He attended the lectures of al-Shafi’i, who also instucted him in the traditions. Despite persecution, ibn Hanbal stuck to the doctrine that the Koran was uncreated. The modern Wahhabis of Saudi Arabia are supposed to follow the teachings of ibn Hanbal.
When the various school came under criticism for introducing innovations without justification for adapting religious law to suit worldly interests, and for tolerating abuses, the learned doctors of the law developed the doctrine of the infallibility of the consensus (ijma), which forms the third foundation of Islamic law or sharia.
The saying “My community will never agree on an error” was ascribed to the Prophet and, in effect, was to make an infallible church of the recognized doctors of the community as a whole. As Hurgronje says, “This is the Muslim counterpart of the Christian Catholic doctrine of ecclesiastical tradition: ‘quod semper, quod ubique, quod ab omnibus creditum est.’” The notion of consensus has nothing democratic about it; the masses are expressly excluded. It is the consensus of suitably qualified and learned authorities.
However, there were still disputes as to whose ijma was to be accepted: some only accepted the ijma of the companions of the Prophet, while others accepted only the ijma of the descendants of the Prophet, and so on.
The doctrine of the infallibility of the consensus of the scholars, far from allowing some liberty of reasoning as one might have expected, worked “in favor of a progressive narrowing and hardening of doctrine; and, a little later, the doctrine which denied the further possibility of ‘independent reasoning’ sanctioned officially a state of things which had come to prevail in fact.”
By the beginning of A.D. 900, Islamic law became rigidly and inflexibly fixed because, to quote Schacht:
The point had been reached when the scholars of all schools felt that all essential questions had been thoroughly discussed and finally settled, and a consensus gradually established itself to the effect that from that time onwards no one might be deemed to have the necessary qualifications for independent reasoning in law, and that all future activity would have to be confined to the explanation, application, and, at most, interpretation of the doctrine as it had been laid down once and for all.
This closing of the gate of independent reasoning, in effect, meant the unquestioning acceptance of the doctrines of established schools and authorities. Islamic law until then had been adaptable and growing, but henceforth, it
became increasingly rigid and set in its final mould. This essential rigidity of Islamic law helped it to maintain its stability over the centuries which saw the decay of the political institutions of Islam. It was not altogether immutable, but the changes which did take place were concerned more with legal theory and the systematic superstructure than with positive law. Taken as a whole, Islamic law reflects and fits the social and economic conditions of the early Abbasid period, but has grown more and more out of touch with later developments of state and society.
Kiyas or analogical reasoning is considered by many learned doctors to be subordinate to, and hence less important than, the other three foundations of Islamic law. Its inclusion may well have been a compromise between unrestricted liberty of opinion and the rejection of all human reasoning in religious law.
1. All human acts and relationships are assessed from the point of view of the concepts obligatory, recommended, indifferent, reprehensibl , and forbidden. Islamic law is part of a system of religious duties, blended with nonlegal elements.
2. The irrational side of Islamic law comes from two of its official bases, the Koran and the sunna, which are expressions of God’s commands. It follows from the irrational side of Islamic law that its rules are valid by virtue of their mere existence and not because of their rationality. The irrational side of Islamic law also calls for the observance of the letter rather than of the spirit: this fact has historically facilitated the vast development and acceptance of legal devices such as legal fictions. For example, the Koran explicitly prohibits the taking of interest, and, to quote Schacht:
“This religious prohibition was strong enough to make popular opinion unwilling to transgress it openly and directly, while at the same time there was an imperative demand for the giving and taking of interest in commercial life. In order to satisfy this need, and at the same time to observe the letter of the religious prohibition, a number of devices were developed. One consisted of giving real property as a security for the debt and allowing the creditor to use it, so that its use represented the interest…. Another…device consisted of a double sale…. For instance, the (prospective) debtor sells to the (prospective) creditor a slave for cash, and immediately buys the slave back from him for a greater amount payable at a future date; this amounts to a loan with the slave as security, and the difference between the two prices represents the interest.”
