The word shari’a has a history among Jewish and Christian communities prior to its usage in Islam. The translation of the Old Testament into Arabic attributed to Saadia Gaon (d. 933) shows that shari’a was used by the Arabic-speaking Jewish community. The most commonly used term for translating Hebrew torah is Arabic shari’a or its plural. The word shari’a is also used to designate single rules or a system of rules in the Hebrew Bible. Around the tenth century, we also have the word shari’a in certain Christian writings, where the Christian religion, the law of the Messiah is referred to as shari’at al-Masih. In Islamic literature , sharia and its various cognates also refer to a rule of law, laws or the totality of a particular Prophetic message.
Most Muslims use shari’a to mean God’s law; sharia is the transcendent moral law of God, known only to God. Laws that are accessible to humans are referred to as figh, and are based on the elaborate interpretative works of the scholar jurists called the fuqaha. In other words, sharia is divine in origin, while fiqh – which means ‘understanding’ or ‘jurisprudence’ – is always a human activity. Although the concept of Gods ideal law is encapsulated in the word shari’a, it was the juristic discipline of fiqh that came to dominate the intellectual world of Islam. Jurisprudence was the most prestigious branch of Islamic sciences, valued more highly than theology or philosophy, despite some overlap. This was the situation right up until the period of European colonialism, after which European legal codes combined with aspects of sharia. From the end of the 19th century, however, in most Muslim countries, Islamic law was relegated largely to family law, including inheritance.
Fiqh was never more than a human approximation of a sacred ideal, a product that was ultimately a pious, but imperfect, effort. Its stylistic features combined juristic speculation with literary ingenuity.
While there were several schools of law in early Sunni Islam, the groupings of these jurists eventually settled out at four schools (maddhabs). According to medieval Islam, these schools were named after their founders: Malik ibn Anas (d.796), Abu Hanifa (d. 767), Al-Shafi’i (d. 822), and Ibn Hanbal (d.855). Many western scholars have argued that the founder of the schools were not responsible for establishing the ‘schools’ named after them, for example, Hanafi, Maliki, Shafi’i and Hanbali, but that it was the pupils of the founders who established the basic elements of the school. There are also Shi’i schools – the Zaydis and Ithna ‘Asharis – which developed separately.
As the four schools became established, jurists of individual schools wrote according to the methods and disciplines of that particular school, despite spatial and temporal differences. There were two ways by which the views of different writers from different eras were established. One was through the exploration of those problems that each generation of jurists inherited from their ancestors and the other was through the process of citing past authorities.
The richness of juristic speculation within each school and across schools is contained in the diversity of juristic opinion (ikhtilaf), the central stylistic feature of fiqh. The principle of ikhtilaf allowed the jurists to put forward various perspectives on a single point of principle by the discussion of options and circumstances. As fiqh literature grew, these principles often became buried under the mound of detail and formula, but never lost the element of discussion and debate.
Sunni Islam recognizes four sources through which Islamic law is derived. These are the Qur’an, the sunna of the Prophet, the consensus (ijma’) of the community and analogical reasoning (qiyas). Islamic law is divided between works of positive law (furu) and the principles of law (usul). A fundamental hermeneutical aspect of furu is ijtihad, meaning ‘effort’. Technically it refers to individual effort made by each jurist to take into account all principles of interpretation to discover a rule of law.
Those who exercised ijtihad became known as mujtahids. A mujtahid who was asked a direct question was known as a mufti and his legal opinion is known as a fatwa. From the ninth to the tenth centuries, major works of positive law have largely covered the same topics and have a similar structure. As well as exploring areas of worship, such as purity, prayer, fasting, topics include marriage, divorce, inheritance laws, sale and penal laws. All areas of life are subject to moral and legal reflection.
Most non-Muslims, however equate sharia with the fixed penalties known as hudud. In classical law, these are known as crimes against God, mentioned either in the Qur’an or the hadiths. The crimes are unlawful intercourse, false accusation of unlawful intercourse, drinking wine, theft, armed robbery, and, in most schools apostasy. For these crimes, there are fixed penalties, invoking a mixture of flogging, amputation and even death.
Strict rules of evidence and complex nuances on what counted as a crime, made application of the penalties very difficult to carry out. During the 19th Century, many Muslim countries abolished Islamic criminal law completely and replaced it with Western statue law. While some Muslims majority societies continue practice these punishments, or threaten their use, many reformers, scholars and human rights activists in the Islamic world argue that they should be abolished completely, as they were never meant to be immutable and are used only as a means of oppressing society; they go against the ethical and interpretive spirit of Islamic law.