Shari'ah law is considered quite central to Islam and one can hardly think of Islam without it. Its centrality to Islam is unquestionable. However, very few Muslims know that it evolved over a period of time and that much human effort have gone into its evolution. It is considered as wholly divine and hence immutable. This assumption comes in the way of any re-thinking on issues like rights of women, which is quite crucial today. It is therefore, very important to understand the nature of Shari'ah law and its evolution.
Arabia was a by and large a Bedouine or nomadic society except Mecca, Madina etc. which had sedantic population. Nomadic societies have no written laws and hence nomadic Arabs too, had no such laws. The settlements in Mecca and Madina came into existence out of nomadic populations settling around watering places but continued to follow their oral customary laws and traditions. They did not evolve any written laws unlike their Jewish and Christian neighbours who had revealed laws. The Arabs, in fact, had no tradition of learning and Arabic to them was more sacred to ears than to eyes. Even before Islam appeared on the scene there were no more than 16-17 people who knew how to read and write. The Arabs relied mostly on oral traditions.
In fact the Arabs looked down upon scholarship as to them nomadic life was more precious and settled life was a sort of economic compulsion. They used to send their children to nomadic tribes for learning proper language. Thus they were nearly illiterate and were quite proud of their nomadic culture. Thus this pre-Islamic culture was referred to later as jahiliyyah i.e. one based on ignorance. The Qur'an brought to them, for the first time, the written culture and written laws. No wonder than that the first revelation of the Qur'an began with iqra' i.e. read. (see 96:1)
Thus the Qur'an became every thing to the Arabs, a storehouse of knowledge, knowledge ('ilm) they had never known. The Qur'an repeatedly stresses the word 'ilm. 'Ilm is a very comprehensive word in Arabic which embraces entire range of human knowledge. Thus the Qur'anic revelation was highly enriching experience. It gave them great wealth of knowledge and also laws to organise their society in keeping with just laws. The Arabs had very little in terms of knowledge ('ilm) and laws except some tribal customs and traditions which could not go too far. The Arabs were acquiring wealth as some of them were in international trade but they had no higher knowledge which could give them a place in the world.
It is important to note that the Arabs were surrounded by Roman and Sassanid Empires both of which were highly cultured and had highest achievements in terms of learning and scholarship. The Arabs, on the other, were at the bottom compared to their achievements. But once the Qur'an was revealed to them and they became masters of new knowledge this equation changed fast and Muslims raced far ahead and Baghdad evolved as a centre of knowledge and boasted of world's treasure of knowledge.
Thus the Quran was more than a miracle for the Arabs and all those who accepted it as the book of guidance. It was treasure house of science, philosophy, religion and law. However, often it provided guidelines and one had to extract from it what we can call istinbat. It has whetted the Arabs' thirst for knowledge and as long as the Prophet (PBUH) was alive they went to him asking for guidance and the Prophet obliged them abundantly. Often many verses were revealed in response to questions from the believers.
The Qur'an, needless to say, became the major source of the Shari'ah law. As the Arabs wanted to base every thing now on the religion they embraces and which meant so much to them, they would ask flurry of questions so much so that at times the Prophet had to tell them not to ask too many questions lest all this become binding on them. Thus next to Qur'an Prophet's sayings and doings called (sunnah) became another source of Shari'ah law. However, the Prophet and hence his guidance was not available forever after his death. Other sources had to be found as new problems continued to arise particularly as Islam spread to other areas outside the Arabian Peninsula.
Even within Arabian Penisla problems arose after the death of the Holy Prophet necessitating proper guidance. For example the Quran does not mention the punishment for drinking and this problem arose during the Khilafat of Hazrat Umar. Neither there was anything in the sunnah of the Prophet as everyone had stopped drinking completely after prohibition and the Prophet had no occasion to punish anyone. Thus analogical reasoning (qiyas) had to be used to prescribe punishment for drinking. Thus third source of Shari'ah law became qiyas i.e. analogy.
Then it was also necessary to develop a consensus among the learned of the ummah for acceptability and universality of the law so evolved and this was known as ijma' i.e. consensus. Thus ijma became the fourth source of Shari'ah law. The corpus of Shari'ah law developed over centuries using these four sources. However, it must be made clear here that this applies to Sunni Islam and the Shi'i Islam does not accept two later sources i.e. qiyas and ijma'as sources of Shari'ah law. For the Ithna 'Ashari Shi'ahs and Isma'ili Shi'ahs qiyas and ijma' are replaces by the sayings of the imams. For Shi'ahs imams are considered as ma'sum (i.e. infallible) and hence what they say about law becomes part of the law.
For Isma'ili Shi'ahs the final compilation of the Shari'ah laws took place during the time of the 14th imam Imam Mo'iz and compilation was done by his Chief Da'i Sayyidna Qadi al-Nu'man and this compilation is known as Da'im al-Islam and there is now no question of re-opening any issue. All these laws are based on the Qur'an, sunnah and sayings of Ali and Imams from Hasan to Ja'far al-Sadiq and finally approved by Imam Mo'iz. The principle of ijtihad cannot be applied. Whatever is written in Da'a' im al- Islam is final.
However, it is not so, at least theoretically, as far as other sects of Islam are concerned. As we referred to above spread of Islam outside Arabian Peninsula gave rise to many new problems and these problems had to be satisfactorily tackled, especially after the death of the Prophet. The main guidance was available from the companions of the Prophet after his death.
These problems had to be solved within the frame-work of Islamic teachings but real problem arose when the Qur'an and sunnah were silent on the issue. Here before we proceed further it is necessary to point out that the Shari'ah can be sub-divided into matters pertaining to 'ibadat and mu'amalat. According to us 'ibadat (though there are differences among different sects in these matters too) should be re-opened for a discussion. 'Ibadat of course include prayers (salat), fasting (saum), haj, and zakat. These are fixed and immutable and cannot be affected by social changes. These are thus beyond scope of any discussion and are matter between human beings and Allah.
However, in what we call mu'amalat.i.e. matters between human beings and human beings, social changes can have an impact and the Shari'ah law can be reviewed in these matters and here it is useful to understand how social conditions have affected compilation of these laws. Among these laws too we can sub-divide these laws as those pertaining to crimes (jara'im) like theft, robbery, rape, adultery, murder etc. for which the Qur'an or Shari'ah law prescribes punishment and personal laws like marriage, divorce, maintenance, inheritance, custody of children etc.
In most of these matters pertaining to crime or personal matters the Shari'i-i.e. law giver has given clear guidance and detailed laws have been compiled. The basic theory, it is important to note, is that Shari'i-i.e. the law giver is Allah and all these laws are divine and hence immutable. But this is to be qualified as in common perception every bit of Shari'ah law is divine and hence immutable.
It is important to note that in Sunni Islam out of four sources two i.e. qiyas and ijma' are non-divine and part of human efforts to solve the new problems arising. There are four main schools in the Sunni Islam i.e. Maliki, Hanbali, Shafi'I and Hanafi. Of these Maliki and Hanbali are traditionalist while Hanafi is categorised as based on ra'i i.e. opinion. Imam Abu Hanifa lived in Kufa and Baghdad and had to face very complex situations. Baghdad was confluence of Arab and non-Arab civilizations and problems being thrown up were also far more complex and not easily found in first two sources i.e. the Qur'an and sunnah. Thus Abu Hanifa had to resort to his opinion.
Imam Malik and Imam Hanbal, on the other hand lived in Hijaz and were much closer to the Arab traditions and it was easier for them to find guidance within traditional sources especially within the frame-work of Prophetic sunnah itself. Thus they had no need for resorting to opinion or ra'i.
Thus according to Mahmasani "If we were to arrange the various schools in accordance with the degree of their recourse to opinion, the Hanafi school would be placed first and the Zahiri school last. The remaining Sunni schools would be placed in the following order: the Shafi'I, the Maliki and lastly the Hanbali. It is necessary to point out, however, that the above classification is but an approximation, for it is unlikely to find a particular situation in which we can justify a diametrically opposite listing. For example, we shall see in the Hanbali school's acceptance of one witness for purposes of evidence a less rigid stand than the Hanafi school." (Mehmasani Falsafat al-Tashri fi al-Islam, tr. By Farhat J. ZiadehI, Leiden E.J.Brill 1959, Pp18)
After the death of the Prophet (PBUH) people use to consult prominent companions who had spread to different parts of conquered territories. These companions like Abdullah bin Abbas, Abdullah bin Umar, Abdullah bin Mas'ud and others. They were considered good at fiqh problems and their opinions had lot of weight. After them came another generation called tabi'in i.e. followers of the companions of the Prophet and then taba' tabi'in i.e. followers of the followers.
It was then that need was felt for systematising Shari'ah rules into different schools and the famous four schools came into existence i.e. Maliki, Hanbali, Shafi'i and Hanafi. These schools or madhaib spread in different parts of Islamic world. And it must be said that Imam Ja'far al-Sadiq played very important role as directly or indirectly all the four Imams befitted from his fiqhi thinking.
During early period there were many re schools one of which was that of Tabari who was also a great commentator of the Qur'an. But these schools didn't t survive and among Sunni Islam only these four schools survived. The Fiqh Ja'fari was followed by the Ithna 'Ashari Shi'ahs and the Isma'ilis also developed their own fiqh complied as Da'a'im al-Islam in two volumes.
Thus it will be seen that there are significant differences in these schools both in the category of 'ibadat and mu'amalat. These differences were due to both ideological differences as well as those of socio-cultural conditions. The earlier period i.e. up to second century hijra was quite dynamic and productive. This was mainly the formative period for Islamic Shari'ah. This was also the period when Islam was spreading to other territories in Central Asia, South Asia and parts of Africa. These converted Muslims entered into Islam with their cultural and mental baggage.
It is important to note that any law has to have some social base. It cannot be created out of vacuum. Even divine pronouncements have a social base. That is why the Shari'ah law provides space for what is called 'aadat i.e. customs and traditions which do not clash with divine objectives. Thus many Arab customs became part of the Shari'ah laws. Some customs were of course modified suitably so as to make them conform to the divine objectives and goal of justice.
Thus nikah, mehr and certain forms of divorce all existed before Islam appeared on the scene. These were suitably changed to make them acceptable with Islamic values. Earlier these were followed by the Arabs just because they happened to be the customs and traditions but the Islamic law giver made justice central to these practices.
In pre-Islamic period or period of jahiliyyah nikah, mehr, divorce, inheritance etc. were not based on the concept of justice whereas in Islam justice is quite central. These customs such as above were heavily loaded against women. Women had absolutely no say in matters of her nikah. Her father or grand father or brother could give her away to any man and take away the mehr himself. This was obviously very unjust to women.
The Qur'an, therefore, adopted nikah as a valid procedure for marriage but changed its nature and made it quite just for women. No nikah could be valid without woman's consent in presence of two witnesses and it was she who would fix the mehr amount and mehr would belong to her, not to her father as a wali or a marriage guardian. Thus it would be seen that Islamic marriage became very just to women.
It is important to note that in pre-Islamic Arabia women did not count for much in social and family life. Islam gave her a place of dignity and elevated her to status of equality with man (2:228). It was a great revolutionary step. As far as the Qur'an is concerned women as believers had in no way inferior status. This has been spelled out unambiguously in the verse 33:35. This verse leaves should not leave anyone in nay doubt about equal status of women.
However, society was not ready for such revolutionary step. As pointed out above socio-cultural norms of a society overrides religious ideals and jurists succumb to social pressures in bringing women's status to given social levels. This is precisely what happened with the status of women in the Shari'ah formulations. For example, father hardly ever allowed her to make free choice for her marriage and exercised his authority to compel her to accept his choice and Shari'ah developed the doctrine of kufw i.e. of status. Also, even if she cried it was taken as her consent as she is thought to be crying for being separated from her parents. Such extrapolations eroded her free choice.
Thus we see cultural practices find their ways into juristic pronouncements. No Qur'anic pronouncement confines women to four walls of home. Women are seen as active social agents like all believers. She is charged with all Islamic duties including that of enforcing good and fighting evil (amr bi'il ma'ruf wa nahiy 'an al-munkar). This is most important duty a believer has to perform and a believing woman is also charged with this duty. No woman can perform this duty sitting at home. She as an active and sincere believer must perform this role with great sense of responsibility. It was for this reason that Imam Abu Hanifa was of the opinion that she can become a qadi as she is also charged with the function of enforcing good and fighting evil.
However, it was our cultural influence that she was required to sit at home and look after her husband and children. This is nowhere mentioned in the Qur'an as part of her duty. But it became part of juristic thinking and almost a sacred duty of a woman to look after her husband and children. One can easily see how cultural norms become part of so called 'Islamic behaviour' and part of Shari'ah law. In early Islamic society particularly during the Prophet's time and immediately thereafter she performed active public duties. Hazrat 'Umar had even appointed her as inspector of weights and measures.
There is another controversial issue of hijab. Our conservative jurists under the influence of their own socio-cultural practices interpreted the Qur'anic verses in such a manner as to restrict her freedom. In fact there is no mention of hijab in Qur'an for all Muslim women. It has been particularly mentioned for azwaj-I-mutahharat i.e. wives of the Prophet (33:53). The word hijab has not been used for other believing women at all.
The women in fact have been advised not to display their adornments publicly as during the period of ignorance the women would stand in public places dressed in their best and also wearing anklets and try to attract men's attention towards them and their adornments by striking their feet. This was not in keeping with the dignity of women. The Qur'an thus advised them not to display their adornment publicly except what should be displayed (24:31).
Basically it is an advice from Allah to protect her chastity and again exception has been made for what should remain open thereof and there is near unanimity among the fuqaha' that she can keep her face and hands up to elbows open. This opinion too, needless to say, culturally mediated. The then prevailing culture permitted face and hand to be kept open. The purpose is to protect her chastity, not to confine her within four walls. In fact in a given culture a dignified dress should suffice for her.
However, in the Shari'ah law great deal of restrictions were imposed on her and she was held responsible entirely for her chastity though the Qur'an lds holds men equally responsible for this. In the preceding verse i.e. in verse 24:30 it is said "Say to the believing men that they lower their gaze and restrain their sexual passions. This is purer for them." Thus primarily it is men's duty to restrain their sexual passion but in Shari'ah law all the restrictions have been imposed on women, not on men,
This is also because of cultural influences and not the Qur'anic pronouncements. The men has, equal, if not greater responsibility, to maintain sexual norms and chastity. Men also has to dress properly in this respect. To cover head or not to cover head is more cultural than Qur'anic requirement. We must learn to distinguish between cultural and what is Qur'anic. Our Shari'ah formulations in respect of female norms have been greatly influenced by our cultural norms.
Even practice of polygamy, as we have discussed separately in our article on the subject, was made more pervasive due to our cultural norms than due to the Qur'anic pronouncements. If we read the Qur'anic verses 4:3 and 4:129 together polygamy is hardly permissible. The Qur'an was the first divine Book to stipulate such harsh conditions for polygamy so as to make it almost impossible. Justice is so central to the Qur'anic pronouncements on polygamy that without fulfilling that condition it would never be permissible and there is great deal of debate whether material justice is enough for polygamy or equal love is also part of it. The verse 4:129 leaves us in no doubt that equal love is also part of it.
In this brief discussion on sources of influences on the jurists it becomes obvious that social dynamism ultimately leads to legal dynamism and the legal philosophy should not be based on outdated medieval concepts. Legal philosophy while based on Islamic and Qur'anic values should not become stagnant but should remain dynamic and ijtihad should be a continuous process. Ijtihad, of course, should reflect consensus of ummah and all leading minds of ummah should be involved. The Qur'anic values unfortunately were neglected in favour of our cultural norms and because of this slam began to stagnate. We must again make these Qur'anic values central to our jurisprudence and Islam would become the most progressive religion of the world.