Introduction: The Early Muslim State

Islam is one of the three Abrahamic monotheistic religions and one of the most widely
followed religions in the world. The literal translation of the word Islam means surrender
or submission, 1 in this case to God. Followers of the religion believe in prophet
Muḥammad, whose message was received in the seventh century in the form of scripture,
compiled the holy book Qur’an. After the prophet’s death, there was debate over the
mode of governance. Most of the leaders of the early Muslim community met in Ṣaqifat
Banī Sāʿda in Medina to settle the future of the Muslim nation. It was agreed that Abū
Bakr would lead the Muslim community as the Caliph. Abū Bakr was succeeded by
ʿUmar who upheld earlier ordinances by Abū Bakr and ‘promulgated a number of
ordinances and regulations pertaining to state administration, family, crime and ritual.’2
In addition to these instrumental steps, Umar insisted on adherence to the Qur’an, which
‘[a]t this early period...combined with the policies of the new order, represented the sole
modification to the customary laws prevailing among the Peninsular Arabs.’3

What is Islamic Law

Sharīaʿ
Attempting to define Islamic law proves to be a daunting task. Because of the dynamic
nature of the legal system and the absence of a unified code, but not the absence of
authoritative texts, any definition of Islamic law is bound to over or under inclusion
depending on the approach taken by the different schools of thought to this highly rich
field. The term Islamic law as a translation of al-Qanūn al-Islāmī is to some extent alien
to the Muslim legal tradition and is probably closest to the term sharīaʿ in Arabic. sharīaʿ
literally means path and has been commonly used in reference to ‘a prophetic religion in
its totality, generating such phrases as s̲ h̲ arīʿat Mūsā , s̲ h̲ arīʿat al-Masīḥ (the law/religion
of Moses or the Messiah ), s̲ h̲ arīʿat Mad̲ j̲ ūs (the Zoroastrian religion) or s̲ h̲ arīʿatu-nā
(meaning our religion and referring to any of the monotheist faiths).’ 4 In the Islamic
tradition, sharīaʿ encompasses the Muslim approach or path to a pious and Islamic
compliant life, which includes but is not solely limited to legal matters.

Fiqh
The term fiqh (or fik̟ h) refers to juristic efforts aiming at coming up with rules that are
compliant with sharīaʿ. After the death of the prophet, the early Muslim community was
confronted with the issue of regulating life in accordance with Islamic law. While, as
mentioned earlier, the Qur’an’s centrality was evident from the beginning, the social,
political and economic matters that the early Muslim nation faced required development
of a legal system. The human process of development of such a legal system in which
rules were extrapolated from the various different authorities and applied to the various
hypothetical and real case scenarios is referred to as fiqh. But the term fiqh, which
literally means understanding or knowledge, took some time to evolve into the earlier
stated definition.

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Initially, Muslims made a distinction between ‘ilm and fiqh. 5 ‘Ilm referred to the
knowledge of the Qur’an and its interpretation and authoritative statements of the prophet
and the early companions, whereas fiqh referred to ‘the independent exercise of the
intelligence...in the absence or ignorance of a traditional ruling bearing on the case in
question.’6

Uṣūl al-Fiqh
With later development of Islamic law, fiqh was divided to two main categories. The first
category, Usūl al-Fiqh (trans. sources of the law), referred to jurisprudential theories
addressing the hierarchy of the sources. Early Muslim scholarship did not develop a
reasoning theory that applied to different legal questions and was more willing to shift
from one reasoning mode to the other, but with the development of the field, theoretical
frameworks were adopted with the objective of formulating general jurisprudential rules
addressing the hierarchy of the sources in Islamic law. Not all schools of legal thought
adopted the same hierarchy, nor did they all accept the same sources as authoritative. In
the section addressing schools of thought, the various theories adopted by each school is
briefly highlighted. The below section gives definitions of the most common sources of
Islamic law.

Qur’an
The Qur’an is the holy book of Muslims. The vast majority of Muslims believe that the
text of the Qur’an was transmitted literally to Muḥammed from God through the angel
Gabriel. It is the most authoritative and sacred text in the Muslim tradition. The
contemporary form of the Qur’an is the same across the Muslim world. ‘This, Muslims,
believe, is due to the fact that the compilation and arrangement of the chapters was
completed - under the divine instructions - by the Prophet himself.’7 While historical
scholarship attempting to trace the origin of the Qur’an confronts a very challenging and
a complex task, some accounts claim that the text continued to exist in its fragmented
form until shortly after the death of the prophet and that it was the third Caliph, ʿUthmān
ibn ʿAffān who commissioned the prophet’s scribe to supervise the compilation process.8
The Qur’an is not solely a legal text, but its verses also have religious, spiritual and
ethical implications. The weight of legal analysis in the Qur’an has been the subject of
debate among Islamic studies scholars. There is a general agreement that the number of
legal verses in the Qur’an amount to around 500 verses, but there is disagreement over
the qualitative significance of these 500 verses within the more than 6000 verses of
Qur’an. Some argue that the legal aspects of the Qur’an are incidental considering the
ratio between the legal and the non-legal versus.9 On the other hand, opponents of this
view state that if one were to consider the repetition of the non-legal verses and the length
of the legal verses being twice or thrice the non-legal ones, we would find that the Quran
contains no less legal material than does the Torah, which is commonly known as the
law.10

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Sunna
The other textual source in Islamic law is the sunna of the prophet. Linguistically, sunna
is a value neutral term that is ‘defined as a way of acting, whether approved or
disapproved, and is normally associated with the people of earlier generations, whose
example has to be followed or shunned by later generations.’11 Eventually, sunna ended
up to connote the traditions relayed from the Prophet. There has been an extensive debate
in the academic field over the initial authoritativeness of the Prophet’s acts and sayings as
a legal source, with many scholars, like Schacht, arguing that the Prophet’s sunna
acquired its legal nature during the time of the Umayyads,12 and others arguing that the
term was ‘applied by the Prophet as a legal term comprising what he said, did and agreed
to.’13 One of the prominent contemporary Islamic law scholars, Hallaq, argues that both
narratives are rather simplistic. On one hand, the Qur’an itself, as detailed in classical
juristic works, establishes the prophet’s legal authority. Moreover, ‘it would be difficult
to argue that Muḥammad, the most influential person in the nascent Muslim community,
was not regards as a source of normative practice.’14 On the other hand, there is early
reference to the prophet’s biography as sīra, a terms that does not connote the same
authority and need for imitation.15 Hallaq’s survey of Islamic legal history offers strong
evidence that authoritativeness of sunna was established by the middle of the first
century, when the candidates for the third caliph “were asked whether they were prepared
to ‘work according to the sunna of the Prophet and the sīra of' the two preceding
caliphs.”16
With the established authority of the prophet’s sunna and the need for a second
authoritative source to address legal questions unanswered solely in the Qur’ān, there was
an expansion in the body of sunna and the number of quṣṣaṣ (story-tellers) who ‘spread
stories with ethico-legal content about the Prophet and his immediate followers.’17 The
season of Hajj (pilgrimage) played a significant role in the exchange of different
traditions across the different regions of the Muslim nation.18 But the expansion in sunna
literature led to questions over authenticity of the traditions transmitted and accusations
of fabrication of sunna among transmitters started.19 Gradually, a new science, isnād,
aiming at developing ‘criteria by which the sound – or what was thought to be sound –
reports from the early paragons could be sifted from the massive body of spurious
material’ 20 gained prominence. In addition to exclusion of some traditions, approved
ones were rated on the basis of strength of the transmission chain. It should be noted,
however, that many scholars, predominantly western, raise questions over authenticity of
the sanitised tradition.

Ijmāʿ (Consensus)
Ijmāʿ ‘is in theory the unanimous agreement of the Umma [nation] on a regulation
(ḥukm) imposed by God. Technically, it is the unanimous doctrine and opinion of the
recognized religious authorities at any given time.’21 Consensus had been in existence as
an imperative in social consciousness before the advent of Islam, but it started to play a
significant role in sanctioning the doctrines of geographical schools of thought, where
each of the schools perceived consensus of its polity as an authoritative source.22

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Like other sources of Islamic law, the definition of consensus proves to be rather
complex. For example, Ibn Hazm argues that only consensus of the companions of the
Prophet is recognizable as a legal source and that consensus reached after that era may
not be considered authoritative. On the other hand, Mālikīs (followers of one of the four
main schools of Sunni thought) argue that the legitimate consensus ‘is limited to the
common practice of Medina,’23 whereas the Ḥanafīs (followers of another main school)
believe in universality of consensus.24

‘Urf (Custom)
As noted by Hallaq, in areas were Islam did not challenge pre-existing practices, the
Prophet was often willing to acknowledge and apply pre-Islamic customs. The Prophet’s
position on these customs proves that there was no detachment from accepted ‘urf.
Whereas custom was not widely recognised as a formal source of law, it was informally
relied upon. As mentioned earlier, the Malīkīs perceived customs of Medina as indicative
of consensus in a society where un-Islamic acts would not have been tolerated or passed
on from one generation to the other. ‘Abū Yūsuf (d. 182/798), an early leader of the
Ḥanafī school, was inclined to recognise custom (ʿurf ) not as a formal source, but rather
as part of the sunna, which in his view is based both on custom and on the practice of the
Prophet.’25

Ijtihād
Earlier sections were addressing sources not reliant on positive interaction with the
sources on the side of the jurist. In engaging with the sources and developing unique legal
positions, the jurist would be exercising Ijtihād. Ijtihad is literally translated as exerting
oneself, but in Islamic law, it is generally understood as ‘the exertion of mental energy in
the search of a legal opinion to the extent that the faculties of the jurist become incapable
of further effort.’26

Al-Khudārī states that the rules of farḍ ʿayn and fard kifāya apply to ijtihad. 27 It is
considered farḍ ʿayn when the jurist personally encounters an incident and fears that
God’s will may not be upheld, but it is considered a farḍ kifāya when there is no such
fear and other jurists are addressing the matter.28 But in order for a jurist to exercise
ijtihād, two conditions apply. Firstly, the jurist must prove to be just. Secondly,
knowledge of the Qur’an, sunna, consensus and deductive techniques must be
established.29 The history of the exercise of ijtihād is again subject to extensive debate.
Schacht’s hypothesis that the gate of ijtihād was closed around the fourth hijri century
(900 AD) gained prominence in western evidence, 30 but later research conducted by
Hallaq offers a serious challenge to this hypothesis.31

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