An Introduction to Islamic Law

by Wael B. Hallaq

For example, the content of our modern rationalist thinking about the natural environment may be our immediate concern with material welfare and physical comfort (leading, among other things, to heavy industrialization), but the consequences of this thinking and the ensuing actions could well lead us to an environmental disaster. On the other hand, if the positive content of our rationalist thinking were to be, say, the integrity of the natural order (as, for example, Buddhism teaches), then our conclusions and therefore resultant actions and effects would be entirely different, despite the fact that nothing in our rationalist methods themselves has changed.

Thus, all acts are regarded as shari (i.e., subject to the regulation of the Sharia and therefore pronounced as law – “law” being a moral-legal commandment), and are categorized according to five norms.

offers an array of opinions on one and the same set of facts. This pluralism gave Islamic law two of its fundamental features, one being flexibility and adaptability to different societies and regions, and the other an ability to change and develop over time, first by opting for those opinions that have become more suitable than others to a particular circumstance, and second by creating new opinions when the need arose. That Islamic law was accused of rigidity by European colonialism to justify – as we shall see later – the dismantling of the Sharia system is therefore not only wrong but highly ironic.

In fact, it was the ruler who – from the beginning of Islam until the middle of the nineteenth century – consistently had to bow to the dictates of the Sharia and its representatives in governing the populace.

Lol. Wrong

The Muslim court succeeded precisely where the modern court fails, namely, in being a sanctified refuge within whose domain the weak and poor could win against the mighty and affluent.

Their interest in the success of their daughter’s marriage explains the close scrutiny many families exercised (and still do) to prevent abuse by the husband of their daughter (including such measures as the beating of the abusive husband by the wife’s brothers). Unlike the present situation of many women who, in the nuclear family of today, must fend for themselves, women in earlier Islamic societies continued to have the psychological and social – and when necessary economic – backing of their original families.

By 1517, the three holiest cities of Islam – Mecca, Medina and Jerusalem – had fallen under Ottoman rule, while at the same time the surviving Abbasid caliph in Egypt had been moved to Istanbul to lend the regime a semblance of legitimacy.

(Many Muslims nowadays view the modern state as operating within this mandate, thereby missing in this evaluation the crucial fact that, in the functioning of pre-modern siyasa, the political regimes were subordinated to independent Sharia, whereas in modernity the state has come to sit on top of a largely dismantled Sharia.)

First, the civilian population was subject to the law of the Sharia, an unwavering standard of justice. The people thus enjoyed immunity from the sovereign’s crude power whether with regard to life or property. The government’s servants, by contrast, were subject to a less merciful code, which may aptly be called sultanic. We have here a unique feature of justice in the lands of Islam, for while no man or woman, Muslim, Christian or Jew, in the civilian population could be punished without a Sharia court trial – largely independent of the sovereign’s will – the sultanic code was absolute with regard to the sovereign himself and his men.

The sovereign himself was expected to observe not only his own code but, more importantly, the law of the Sharia. Forbearance, mercy and near infinite forgiveness were expected,

It may even be argued that Anglo-Muhammadan law at times involved the forceful application of English legal precepts as Islamic law, such as the highly subjective notions of “justice, equity and good conscience.”