Divine Law in Islam - Research Paper Example

 Divine Law in Islam Divine law in Islam has two traditional methods of interpretation and expression. Firstly, there is figh, which refers to understanding in a broad sense. All efforts to elaborate details of law, to state specific norms, to justify them by reference to revelation, to debate them and to write books or treaties are also examples of figh. On the other hand, shariah refers to god’s law in its quality as divine. Shariah evokes loyalty and is a focus of faith. Even though the relatively new phrase “Islamic law”, is applied to the Muslim juristic tradition as a whole, it carries many connotations of a western model legal system related to the bureaucratic structures of a nation state (Ziadeh, 2010). The interpretation of Islamic law differs amongst the various sects of the Islamic world. Accordingly, this essay will examine the interpretations of Islamic law through the perspective of Islam’s two major sects, Sunni and Shi’ah. The Sunni-Shi’ah division of Islam originated as a succession dispute shortly after the death of the prophet Muhammad in 632 A.D (ShaikhSiddiqui, 2005). Shi’ah believes that the proper successor of Muhammad was Ali. In contrast, Sunnis believe Abu Bakr to be the first caliph after Muhammed. Firstly, this essay will seek to trace the historical development of Sunni and Shi’ite theories of law. Secondly, it will also examine the significant differences in the theories of law between the two sects.  Sunni is the largest Muslim sect in the world, accounting for approximately 70% of Muslims worldwide. Sunni has for major schools of Islamic law; Hanafi, Maliki, Shafi’i and Hanbali (Central Intelligence Agency, 2009), (Pew Research Centre,, October 2009). Sunni Islamic law traces its roots back to the late Umayyad period in the second Islamic century. In addition to the role of the Quran and hadith, the geographical variations influenced different doctrines (Ziadeh, 2010). The most widespread school of Sunni law is the Hanafi School, founded by Abu Hanifah and located at Kufa in Iraq. The legal doctrines of Abu Hanifah are relatively more liberal and display a unique sense of respect for personal freedom. He was the first to formulate rules concerning contracts based on the principle of freedom of contract (Ziadeh, 2010). This fact is reflected in the contracts of Salam and Murabahah. The former allows the immediate payment of the price of goods for future delivery, although the contract of sale stipulates the immediate exchange of an object and its price; the latter allows a merchant to sell what he had bought at the original price plus a stipulated profit, if usury is not involved. Concerning personal law, Abu Hanifah allows a free girl who had reached her majority to marry with the intercession of a marriage guardian. However, later Hanfi doctrine restricted that right to a woman who had previously been married (Ziadeh, 2010). Unlike other jurists, Abu Hanifah would not interdict the spendthrift, stating instead, that a person who had reached his majority should be allowed to do what he wished with his property.  The Maliki School is the second of the major Islamic law schools. It was founded by Malik ibn Anas al-Asbahim, who was born in Medina in 713. He championed the teaching of the people of Medina. In the field of law proper, the Maliki School has attitudes that are more conservative in comparison to the Hanafi School, especially concerning women (Ziadeh, 2010). The Malik ruling states that no woman can be married without the consent and participation of her marriage guardian; whereas in Hanafi law, a guardian is necessary only for a virgin below the age of pubery, and she can repudiate the marriage upon attaining puberty. Also in Maliki law, the father or paternal grandfather has the right to give in marriage his virgin daughter or granddaughter without her consent, even within some limits, against her wishes; in Hanafi law such susceptibility to compulsion (jabr) terminates at puberty (Ziadeh, 2010).  The other less widespread schools are the Shafi School and the Hanbali School. In the field of law, Shafi continued to regard himself as a member of the school of Medina even though he had adopted the thesis of the traditionalists. The Shafi doctrine was first formulated in Iraq but when Shafi moved to Egypt, he retracted some of his earlier pronouncements, this change in doctrine became known as the Egyptian version or new version of the school. Shafi authored or dictated the book known as al-Umm, which defines the doctrine of Shafi and that of other schools (Ziadeh, 2010). In modern-day Egypt, the Hanafi courts are officially enforced for all matters of personal status. However, many Egyptians, especially rural areas, follow the Shafi School concerning their religious observances. This is also a personal school in that it represented the main legal opinions, sayings, and fatwas of a single person, namely, Ahmad ibn Hanbal. The school and its attachment to traditions marked its departure from other schools regarding the sources of law. The school was strengthened in the eighteenth century by Ibn Abd al-Wahhab, and his reform movement in Arabia, which aimed at taking Islam back to its simple beginnings based on the Quran and the Sunnah instead of late scholars (Ziadeh, 2010).  Shi’ah Islam follows Sunni Islam as the second largest Muslim sect in the world. Shi’ah has maintained a strong legalist tradition through its central doctrine regarding continued divine guidance available through the living imam, either in subtle or overt manner (Sachedina, 2010). The central idea of Muslim eschatology is that the descendants of the Prophet, the Mahdi would as the ultimate ideal ruler to establish the ideal public order. To the Shi'ah, the Mahdi is identified as their imam, and he serves as the authoritative precedent in interpreting and examining the Islamic revelation in order to formulate fresh legal decisions. The Shi'ah also considers the imam infallible, like the Prophet. Thus, the guidance of the Imam was treated as the living tradition, enjoying the same unequivocal status as that reserved by the Sunni for the Quran and the Sunnah (Sachedina, 2010). The Jaʿfarī madhhab is the largest and most influential Shi'ah legal school with an uninterrupted tradition of jurisprudence. Followers of the Jaʿfarī school are Twelver Shīʿah—believers in the line of twelve imams, of whom the last one is considered to be in occultation and is awaited as the messianic imam, or Mahdī. There are other minor Shīʿī schools of law, such as the Zaydī and the Mustaʿlī Fāṭimid Ismāʿīlīyah, although sharing the centrality of the Shīʿī belief in the imam’s position as the absolute legal precedent; these schools have maintained close affinity with the Sunnī in matters of law (Sachedina, 2010).    Apart from the core differences mentioned above, there are many other significant differences between the Shi’ah and Sunni schools of law. These differences include the principles of religion, the codification of law, predestination, temporary marriage and religious dissimulation (ShaikhSiddiqui, 2005). Most significantly, the Shi’ah adheres to five core principles of religion (Usul ad Din) are: belief in divine unity (Tawhid); prophecy (Nubuwwah); resurrection (Maad); divine justice (Mdl); and the belief in the Imams as successors of the Prophet (Imamah). However, Sunnis do not accept the latter principle. Furthermore, Sunnis believe the Sharia was codified fully and finally around the 10th century. Shi’ah followers believe the Sharia is always open, subject to fresh reformulations of Sunna, hadith, and Qur’an interpretations. Concerning judgement, Sunni jurists, give a decisive status to ijma (consensus) as a source of legal thought and judgment (ShaikhSiddiqui, 2005). For Shi jurist, it is admitted as evident only if it included the infallible imam's opinion, sometimes transmuted by his associates who had participated with him in reaching a consensus (Sachedina, 2010). Contrary to Sunni belief, Shi’as do not believe in predestination. Instead, they accept the teachings of the Mu’tazilities, a group of Sunni scholars who were later declared heretical (ShaikhSiddiqui, 2005). The Mu’tazilities believed that God cannot be responsible for evil, and therefore, humans must have freewill and be independent of God’s authority in this life. Accordingly, Shi’ah Muslims strongly consider divine justice and believe that individuals are responsible for their actions, which are judged by a just God. On the other hand, Sunnis believe that God's creation of man allows minimal possibility for the exercise of free will. Muslims practiced the practice of Mutah, which refers to a marriage with a fixed termination contract subject to renewal, as early as the formation of the first Muslim community at Medina. However, the second caliph later banned this and has since been unacceptable to Sunnis, but Shi’ahs insist that if it were against Islamic law it would not have been practiced in early Islam and thus, the practice cannot be invalid (ShaikhSiddiqui, 2005). Mutah differs from permanent marriage because it does not require divorce proceedings for termination because the contractual parties have agreed on its span, which can be as short as an evening or as long as a lifetime. However, while a couple may agree in the mutah, sexual acts are within the context of sharia; the act then is not considered adulterous and offspring are considered legitimate heirs of the man.   Another practice shunned by Sunni but encouraged by Shi’ah is Taqiyah. Sunni regard it as cowardly and irreligious; however, Shi’ah Islam and others such as the Alawis and Islmalis openly practice it (Ziadeh, 2010). Taqiyah refers to either hiding one’s religion or disavowing certain religious practices in order to escape persecution. Taqiyah can also be practiced in order to preserve the honour of the female members of a household or when a man could be made destitute as a result of his beliefs. Because of the persecution frequently experienced by Shi’ah imams, particularly during the period of the Umayyad and Abbasid caliphates, taqiyah has been continually reinforced and encouraged. In conclusion, this essay has examined the historical development and the difference in the core characteristics of Islamic law from the eyes of Sunni Islam and Shi’ah Islam. The laws and culture of the Sunni Islamic law schools and those of Shi’ah law schools have fundamentally different characteristics in central theology and Islamic law. However, as examined, the different sects themselves vary in certain degrees concerning their doctrines and beliefs. Sunni Islamic law and Shi’ah Islamic law have undergone an irreversible split and have come to develop and adapt two different circumstances and hence their laws have experience marked difference in doctrine and precedence. However, there are quite a number of similarities between Sunni and Shi’ah but those are incapable of reconciling the wider differences. Bibliography Carroll, L. ((1995), ). APPLICATION OF THE ISLAMIC LAW OF SUCCESSION: WAS THE PROPOSITUS A SUNNI OR A SHI'I?*. Islamic Law and Society, Vol. 2, No. 1 , pp. 24-42. 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Pew Research Centre,. (October 2009). Mapping the global muslim population. The PewReserchCentre. Sachedina, A. (2010). http://www.oxfordislamicstudies.com/article/opr/t236/e0473. Retrieved 04 12, 2010, from www.oxfordislamicstudies.com: http://www.oxfordislamicstudies.com/article/opr/t236/e0473 ShaikhSiddiqui. (2005). http://www.shaikhsiddiqui.com/shia.html. Retrieved 04 12, 2010, from www.ShaikhSiddiqui.com: www.shaikhSiddiqui.com Ziadeh, F. J. (2010). http://www.oxfordislamicstudies.com/article/opr/t236/e0473. Retrieved 04 12, 2010, from www.oxfordislamicstudies.com: http://www.oxfordislamicstudies.com/article/opr/t236/e0473 Read More