This piece includes overviews of the schools of Islamic law and an introduction to how Islamic law is integrated into legal systems around the world.
Islamic Law
Islamic Law, commonly referred to as Shariah, governs interpersonal conduct and regulates the ritual practices of Muslims. In some countries it is also the governing law, while other countries apply Islamic law to specific areas, such as personal status or finance.
There are two primary sects of Islam, Sunni and Shi’i. Sunnis account for about 90 percent of Muslims worldwide, Shi’i about 10 percent. The split between the two sects followed a disagreement over the leadership of the Muslim community (ummah) when the Prophet Muhammad died in 632 CE.
Sources
Islamic law is derived primarily from two textual sources: the Qur’an, the holy book of Islam, and the Sunnah, the sayings and conduct of the Prophet Muhammad.
The Qur’an is believed to be the word of God, as revealed to the Prophet through Archangel Gabriel over twenty-three years in seventh-century Arabia. When faced with a legal question, scholars (ulama) first look to the Qur’an However, this sacred text is shorter than the New Testament and not primarily legal; only about 10 percent is devoted to precise commands.
If unable to resolve a legal question with reference to the Qur’an, scholars turn to the Sunnah. The Sunnah consists of hadith or verbal narratives about the Prophet. After the death of the Prophet, hadith were compiled, organized around authenticity and subject matter, and recorded. Sunni and Shi’ia disagree over which hadith are valid.
When an answer to a legal query cannot be found in either the Qur’an or Sunnah, scholars rely upon two secondary doctrines: qiyas and ijma.
Qiyas (literally, “measuring” or “ascertaining” the length, weight, or quality of something) is reasoning by analogy. The doctrine of qiyas is based on the idea that God had reasons for commanding or forbidding a particular activity in the Qur’an. The doctrine of qiyas tests whether an injunction or position held within the Qur’an or Sunnah can be extended from its original case to a new set of facts.
Ijma is invoking the Prophet’s declaration that “[m]y community [of believers] will never agree on an error,” legal scholars established the doctrine of consensus known as ijma. Although an individual scholar’s opinion may not be deemed dispositive, if consensus is reached about a particular matter, it is regarded as conclusive and binding law. The legal authority of ijma is second only to the Qur’an and the Sunnah.
Schools of Jurisprudence
In the first hundred years after the Prophet’s death, legal doctrines and schools of jurisprudential thought, madhab, began to form around a particular legal paradigm. The schools of jurisprudence, originally numerous, merged over time. There are four primary Sunni schools: Hanafi, Shafi’i, Maliki, and Hanbali. Jafari is the predominant Shi’i school.
Hanafi
- is most prevalent in terms of geographic scope and population
- treats Qur’anic proscriptions as inherently based on God’s rational nature and, by extension, favors human rationality, with some limitations
- supports analogical reasoning and maintains strict criteria as to which hadith form the basis of the Sunnah
- embraces doctrines such as equity to avoid restrictive textual arguments that deny justice
Shafi’i
- is second-most prevalent by population
- is traditionalist, with a focus on textual prescriptions of the Qur’an and Sunnah; Shaf’i limits independent analogical reasoning
- supports an expansive view of which hadith may constitute the Sunnah
- rejects doctrines such as equity and instead maintains strict adherence to textual concerns
Maliki
- is third-most prevalent by population
- focuses on the traditions of the Madinah people who either lived during or immediately after the life and reign of the Prophet Muhammad
- emphasizes communal reflection of the Sunnah, favoring broad-based positions on collective good
- embraces textual prescriptions as well as concepts like maslahah (for public benefit)
Hanbali
- is fourth-most prevalent by population; Hanbali is followed in the Gulf States
- maintains the most literal approach to the Qur’an, with strict criteria regarding which hadith constitute the Sunnah; its adherence to literalism also permits all things not explicitly prohibited
- limits legal doctrines that allow for textual departures, including reasoning by analogy
Jafari
- is the primary school of law for Twelver Shi’ism
- embraces the concept of the Imamate: the twelve bloodline descendants of the Prophet Muhammad guide the community of believers; these recognized descendants or Imams are considered infallible (they do not commit sin)
- affirms not only the traditions of the Prophet Muhammad but also those of the Imams
- mandates the concept of “Taqleed” whereby believers who do not have expertise follow the instruction of expert scholars
- favors the concept of ’aql (literally intellect, but meaning reasoning by logic) instead of the Sunni doctrine of qiyas; scholars adopt a position on an issue by using intellect or logic to deduce the law
Islamic Legal Systems
There is a perception that many Muslim-majority countries have legal systems governed entirely by Islamic law (also commonly referred to as Shariah). This is the case in a small number of countries. However, most Muslim-majority countries have mixed systems of law incorporating elements of Islamic law into common law or civil law frameworks, and many others have entirely secular legal regimes.
There are three types of Islamic law systems: classical, mixed, and secular.
Classical
Countries adhering to the classical model of Islamic law either incorporate Islamic law as their common law, have legal codes based completely or partly on Islamic legal principles, or invoke Islamic law if there is no relevant controlling statute.
- Countries following this model include Saudi Arabia, Iran, and the Maldives.
- The state adopts Islamic laws derived from the Quran and Sunnah. These national laws may or may not be codified, but typically are based on Islamic legal principles governing civil, criminal, and personal status disputes.
- Legal provisions may be similar to those in secular countries, particularly for emerging areas of law, science, and technology.
- Islamic law may be interpreted in parallel by both judges (empowered by the ruling government to decide legal cases) and Islamic law scholars.
The Difference Between Judges and Scholars
Qadhis usually serve as the acting judge in a case, taking on a role similar to judges in secular legal systems. When required to apply Islamic law to a matter, Qadhis tend not to issue opinions on broad areas, but instead deduce rules that apply to the specific case before them. Qadhis are usually trained in civil, criminal, and Islamic law at public and private universities.
Ulema are religious scholars trained in Islamic schools and seminaries. Depending on their training and expertise, they may issue fatwas or legal opinions to help resolve disputes. Ulema usually operate independently of the state but may be called on to provide an opinion that can be applied by a Qadhi. The status of Ulema and the binding nature of their opinions varies depending on the country. Their opinions can be extremely influential among Muslims, even if not formally enforceable by the state.
In Saudi Arabia, Islamic law applies directly as the common law of the country. The Saudi legal system is overseen by the King, who serves as the final court of appeal and exercises the power of pardon. There are two types of court structures, each with courts of first instance, appeals, and final appeal. One is the Sharia Court system and the other is the Board of Grievances. Courts within the Board of Grievances system have jurisdiction over administrative matters as well as cases brought by and against the government. In recent years, Saudi Arabia has begun to codify many Islamic laws and rulings into statutes and royal orders. Historically, they were uncodified, and judges relied upon scholarly text. Interest is strictly forbidden under Islamic law, and Saudi banks are not permitted to charge interest. Although banks in some Islamic countries do charge interest, referred to as a “commission” or “service charge,” these transactions are not legal in Saudi Arabia. Courts and other tribunals do not award interest in any form, but contracts containing interest provisions are severable.
The head of Iran, the Supreme Leader, is required to be an Islamic jurist. He is elected to leadership by the Assembly of Experts, a deliberative body of publicly elected officials. The Supreme Leader appoints the head of the judiciary who oversees judicial administration. Iran’s legal system is inquisitorial; courts enforce and apply codified law. First instance courts are separated into civil, family, and criminal divisions. There are intermediate appellate courts, and a supreme court. Specialized courts include military, clergy, administrative, and arbitration courts. The Revolutionary Courts adjudicate crimes against national and international security, conspiracies against the government, spying, smuggling, narcotics, and certain financial crimes.
Mixed
Countries with mixed systems incorporate Islamic law into legal statutes. The constitution may require that laws do not violate Islamic principles, but the state may also have laws incorporating customary law or non-Muslim legal principles.
- Countries following this model include: Egypt, Iraq, Syria, Afghanistan, Nigeria, Algeria, Morocco, Indonesia, Malaysia, the Philippines (BARMM), and Mali.
- Secular civil and criminal codes may be influenced by Islamic law or drafted so as not to violate Islamic legal principles.
- Personal status laws (addressing inheritance, marriage, divorce, and custody) are typically regulated by Islamic law. Many mixed-Islamic law systems recognize the religious law of other faiths, including Christian, Jewish, and various denominations within Islam.
- Islamic law may be interpreted in parallel by both judges (empowered by the ruling government to decide legal cases) and Islamic law scholars.
- The application of personal status laws varies on a country-by-country basis. Generally, personal status laws are not codified entirely, requiring the application of uncodified Islamic rulings. These rulings are based on the country’s dominant Islamic school of thought, or the school of thought commonly adhered to by the parties to the dispute. In cases where parties abide by different schools of thought, judges may turn to Islamic scholars or scholarship to identify and determine the applicable law.
In Egypt, personal status laws are guided by the Hanafi school of jurisprudence for Muslim citizens; non-Muslim citizens apply the laws of their respective religions that govern such matters.
Nigeria’s legal system is a hybrid of English common and statutory law, customary law, and Islamic Law. Its constitution prohibits the federal and state governments from establishing a state religion but gives the country’s thirty-six states considerable autonomy to establish judicial systems that enforce local religious and customary practices. The secular court system governs all civil and criminal cases. There are also customary and Islamic (Sharia) courts which may serve as first instance courts in parts of the country (mostly the northern states). The jurisdiction of the Sharia Courts in northern Nigeria is limited to Muslims, though non-Muslims may consent to the jurisdiction of a Sharia Court. Rulings by these courts are subject to review by the common law courts and may be appealed in the secular court system.
Malaysia’s federal system incorporates secular common law, Islamic law, and customary law. Islamic law is regulated by the states. Most states have Islamic law (“Syariah”) courts with jurisdiction over Muslims for the adjudication of cases involving personal status, family law, and minor criminal offenses (those subject to smaller fines and no more than three years imprisonment). Syariah courts do not have jurisdiction over non-Muslims. In civil cases where Syariah courts have jurisdiction, federal law prohibits federal courts from exercising jurisdiction. Some Malaysian states also have customary law courts that operate in tandem with the federal secular courts and Muslim Syariah courts.
Although Morocco is not formally a secular country and Islam is the official religion, the legal system is based primarily on the French civil law tradition and consists of a mostly secular court system with first-instance, regional, and appellate courts as well as a supreme court (Court of Cassation). There are specialized first-instance courts with jurisdiction over personal status disputes for Jewish and Muslim citizens. These “Sadad” courts are divided into different sections: Sharia, Rabbinical, civil, commercial, administrative, and penal. Although the criminal code is largely based on French legislation, the Moroccan criminal code expressly prohibits attempts to undermine Islam and to convert Muslims to other religions.
Secular
In Muslim-majority countries where the legal system is secular, as well as countries where Muslims are a minority, Islamic law may be followed by citizens in matters affecting family law, personal property, and lifestyle (e.g., prayer rules, the giving of charity, and interpersonal conduct). The state, however, does not formally incorporate Islamic law into its laws or jurisprudence.
- Muslim-majority countries with secular legal systems include Tunisia, Azerbaijan, Albania, and Senegal.
- In Muslim-majority countries with largely secular systems, there may be government offices responsible for religious affairs or mandates that specify government positions be filled by certain religious or ethnic groups.
In Turkey, the principle of secularism is constitutionally enshrined, but the government Office of Religious Affairs (Diyanet) administers places of worship and religious education in schools.
In Lebanon, civil and criminal laws are largely secular, except for personal status laws where the religious laws of those affected by a dispute govern the matter. In addition, the constitution mandates that certain political offices be held by representatives of certain ethno-religious communities (Maronite Christians, Sunni Muslims, and Shia Muslims).