Chapter 5
Philosophy Of Islamic Law
One of the principles of Islam which precedes juristic discussion proper is
that God, the creator and lord of the world, has commissioned humanity to
believe, confess and act in particular ways. The details of this commission
(taklif) were handed down through a sequence of prophets, culminating in
Muhammad, and were then embedded in two literary structures which together
constitute revelation (wahy): the Qur'an, which is the word of God, and the
hadith, short narratives of the prophet's life and sayings which give
expression to his (and his community's) ideal practice or sunna. The totality
of beliefs and rules that can be derived from these sources constitutes God's
law or shari'a.
Juristic literature has generated two major literary genres. One, known as
usul al-fiqh (roots of jurisprudence), deals with hermeneutical principles that
can be used for deriving rules from revelation; it represents, in part,
something like a philosophy of law. The other, dominant genre, furu' al-fiqh
(branches of jurisprudence), is an elaboration of rules which govern ritual and
social activities. An overall philosophy of law in Islam, not fully articulated
in the pre-modern tradition, can only be discovered through consideration of
both genres.
In Islamic belief there are a number of principles, derived from the
exercise of the intellect or from history, which precede juristic discussion
proper. These include, for example, that God exists, that he is creator and
lord of the world, and that he has commissioned humanity to believe, confess
and act in particular ways. The details of God's commission (taklif)
have been mediated through a sequence of prophets culminating in the seal of
all the prophets, Muhammad, whose message abrogates previous messages and is
for all peoples. With the death of the Prophet, the divine command has been
embedded in two literary structures which together constitute revelation (wahy):
the Qur'an, which is the word of God, a miracle, and the hadith, short
narratives of the Prophet's life and sayings which give expression to his (and
his community's) ideal practice or sunna. The totality of beliefs and
rules that can be derived from these sources constitute God's law or shari'a
(see islamic theology).
The Qur'an is usually deemed to contain no more than about 500 verses of
legal import. The body of hadith was immensely larger. It was contained
in a number of admired collections, the core of which included, for the
mainstream Sunni community, the pre-eminent collections of Bukhari (d. ah 256/ad 870) and Muslim ibn al-Hajjaj (d. ah 261/ad 875). Beyond these, there
were a number of collections that might be brought into the play of juristic
discussion; the major sectarian group, the Shi'is, also had their own collections.
The vast bulk of hadith material, as contrasted with the modest quantity
of juristic material in the Qur'an, ensured that hadith was in practice
the dominant element of revelation in hermeneutical discussions. The Book is
more in need of the sunna than the sunna of the Book, said the
Syrian jurist Awza'i (d. ah 157/ad 774), echoing the efforts of other scholars to
articulate the controlling effects (judging, abrogating and explaining) of sunna
on the Qur'an.
