Since the publication of Joseph Schacht’s seminal text, The Origins of Muhammadan Jurisprudence (1950), the Shari’ah has been mistakenly perceived by Western scholars as merely an ethical guideline that does not contain ‘real’ legal commandments in the Austinian sense.
This paper will argue that, the Shari’ah, as understood by those grounded in the Islamic intellectual tradition (Baderin, Kamali, Hallaq), broadly covers the religious, moral, social, economic, political and legal duties, without the Austinian dichotomy between the moral and legal. In other words, the [Islamic] cosmology is itself part of enveloping moral system that transcended the categories of theology, theosophy, and metaphysics.
To articulate this argument this paper will explain the following: the contested definition of the Shari’ah between Orientalist and Western scholars; the interconnectedness of the moral and legal through the Oneness of God (tawhid); an explanation of usul al fiqh, and the categorization of fiqh into fiqh ibadaat and fiqh mu’amalaat.
The Shari’ah is derived from the two canonical texts of Islam and is understood in a general religious sense to refer to the Muslims’ way of life. It covers both non-law and strict “law” matters. The Qur’an and the Sunnah are the two canonical texts of Islamic. The former was revealed to the Prophet Muhammad and is considered by Muslims to be immutable and infallible word of God. The latter is the example of the life of the Prophet Muhammad, which is now accessed through hadith literature, which is the compilation of the sayings of the Prophet Muhammad compiled by his followers, then later collected and organized into six trustworthy (Sahih) books. The authority of the Prophet Muhammad is proclaimed in verse 33:31 of the Qur’an, ‘Ye have indeed in the Messenger of Allah an excellent example for him who hopes in Allah and the Final Day, and who remembers Allah much.’ There has been an ongoing debate between Orientalist legal scholars (Schacht, Coulson) and those grounded in the Islamic intellectual tradition (Hallaq, Kamali) over what is defined as Shari’ah and what is defined as Islamic law.
Joseph Schacht, the foremost Orientalist Islamic scholar describes Islamic law as “part of a system of religious duties, blended with non-legal element”. Schacht falls into the trap of defining the Shari’ah as synonymous with Islamic law, whereby Islamic law is considered to be the verses in the Qur’an fit the Austinian definition of law i.e. law is the command of the sovereign, and when infringed, consequences are given by that sovereign power, usually the state. Another eminent Orientalist Islamic scholar, N. J. Coulson, also posits that the verses of the Quran that are legislative in nature, does not attempt to deal with any general topic comprehensively. In other words, because these verses command a duty or obligation without providing a systematic sanction, Coulson does not consider them to be legal verses. Nonetheless, Coulson does agree with many scholars that are grounded in the Islamic intellectual traditional that, ‘the ideal code of behavior which is the Shari’a has in fact much a wider scope and purpose than a simple legal system in the Western sense of the term.’
The Rebuttal to Orientalists
Scholars that are grounded within the Islamic intellectual tradition such as Baderin, Hallaq and Kamali believe that, ‘the Shari’ah, strictly speaking, refers to the fundamental sources of Islam,’ that is the Qur’an and the authenticated Traditions (Sunnah) of the Prophet Muhammad and it is from these sources from which Islamic religious, moral, social economic, political and legal norms are derived. Kamali expands this definition to include the ‘commands, prohibitions, guidance and principles that God has addressed to mankind pertaining to their conduct in this world and salvation in the next’. Furthermore, Shari’ah literally means the pathway, path to be followed or clearway to be followed. Islamic Law, meaning the legal duties of Muslims that can be applied judicially are derived from the Shari’ah, but the Shari’ah encompasses more then legal duties and state backed sanctions. The concept of the Shari’ah is derived from the verse 45:18 from the Qur’an, ‘Then We put thee on the (right) Way of religion; so follow thou that (Way), and follow not the desires of those who know not.’ The Shari’ah encompasses all aspects of human life without placing a dichotomy between law and ethics/morals.
Islamic Law and Ethics
The Shari’ah encompasses a comprehensive cosmology that provides guidance for all aspects of human life with the understanding that humanity is interconnected with the Oneness of God (tawhid). It is understood by Muslims that God created the universe, and every aspect of it reflects the unity of God, including the creation of human being. Therefore, Islam and the Shari’ah do not admit to the compartmentalization of knowledge and human life into separate unrelated spheres; here lies the problem with the Austinian perspective of law, which will be addressed later. Kamali explains that tawhid ‘manifests itself into ritual devotion and personal piety, in theology and law, in politics and economics, in faith and deeds, all of which are manifestations of the same all-pervasive principle.’
Another key concept is salihat (good deeds). Hallaq argues that the cored Islamic concept of salihat (good deeds) is integral to iman (belief) in Islam by Muslims. Salihat (good deeds) is an overreaching divine message that when one does an act, whether it is a legal duty or social act, it must be done with in a good manner and with conduct that is ethical, moral and honorable. Therefore, Hallaq states, ‘to speak kindly to people, to greet them, and to show them human compassion are attributes that have the same level of importance as those we come to call ‘strictly legal’ conduct.’ Working within a holistic and comprehensive epistemology Islamic scholars derived their rulings from the Qur’an and Sunnah to find the roots of understanding (usul al fiqh).
Usul al fiqh known as the roots or principles of Islamic jurisprudence describes the process of Islamic jurists in deriving the legal principles from the Qur’an and Sunnah to apply to practical and theoretical issues of the community. Muslim jurists within each of the four Sunni madhabs have a hierarchy of legal tools they apply to derive the hukm of the law, this process is known as fiqh, is understood as the movement from the bases or roots (usul) to specific determinations. They are: (1) the extraction of Qur’anic injunctions and principles based on interpretations of it; (2) the application of the principles reflected through the Hadith of Prophet Muhammad; (3) the consensus of opinion from amoung the companions of Muhammad or the learned scholars (ijma); and (4) analogical deduction (qiyas).
The majority of scholars have categorized the legal rulings into two categories of ibadat (devotional matters) and mu’amalat (civil transactions). The distinction between the devotional matters and civil transactions; the former deals with the relationship between man and his Creator, therefore they fall outside the court’s jurisdiction; whereas the latter is concerned with the relationship between man and his fellow human beings, these rules are enforceable by the courts of justice. The nature of these two categories of fiqh aptly demonstrates how the Shari’ah encompassed religious, social, moral and legal aspects.
Fiqh ibadat (worship)
Kamali states that the rules pertaining to devotional matters (fiqh ibadat), such as ritual prayers and fasting, etc., constitute religious obligations. Failure to fulfill these calls for moral reprimand in this world and punishment in the next, but they are not justiciable in the courts. Fiqh ibadat is categorized under the six main headings of: cleanliness, ritual prayer, fasting, hajj (holy pilgrimage), zakat (legal alms) and jihad (holy struggle). The guideline for these acts are proclaimed in the Qur’an and further elaborated upon by the practice of the Prophet Muhammad.
(a) Salah (Prayer)
The Qur’an establishes the requirement for the Believers to fulfill their obligatory five daily prayers. There is a general guidance for how one is to conduct these prayers, but the Sunnah provides the living example of how one is to do so. The information regarding this can be found in the Sahih (trustworthy) hadith literature.
21:73: And We made them leaders, guiding (men) by Our Command, and We sent them inspiration to do good deeds, to establish regular prayers, and to practice regular charity; and they constantly served Us (and Us only).
The positions of the obligatory prayers are found in the Quran, including the standing position;
3:39 While he was standing in prayer in the chamber, the angels called unto him: “(Allah) doth give thee glad tidings of Yahya, witnessing the truth of a Word from Allah, and (be besides) noble, chaste, and a prophet,- of the (goodly) company of the righteous.
and, the bowing and prostrating positions; 2:43 ‘And be steadfast in prayer; practice regular charity; and bow down your heads with those who bow down (in worship).
The Sunnah as described in the Sahih (trustworthy) hadith literature is used to describe the minute details of the obligatory prayers as the practice of the Prophet Muhammad further instantiated the general provisions of the Qur’an. For example, during the obligatory prayers of Fajr, Magrib and Ishah the Imam recites Surah Fatihah out loud as the Believers follow silently behind him. It is stated in a hadith in Sahih al Bukhari 1:108 that the Prophet Muhammad said the following:
When the imam says “ghayr al-maghdubi ‘alayhim wala ‘l-dallin,” say amin, because the angels say amin. And whoever’s amin coincides with the amin of the angels, all his past sins are forgiven.
It is clear from these verses of the Qur’an and the practice of the Sunnah that the Shari’ah provides guidance in religious matters that are not punishable in court. Yet, prayer is one of the five pillars of Islam and carries with it a high duty on the believer to fulfill.
Fiqh Mua’malat (civil transactions)
The Qur’an and the Sunnah provide legal injunctions and the ethical conduct of those provisions of how one should conduct their matters with fellow human beings, especially in matters concerning commercial transactions. Kamali explains that the laws of Shari’ah in the sphere of mu’amalat, which seek to regulate relations among individuals constitute the primary concern of government authorities and the judiciary. These are, in other words, justiciable and the individual can seek judicial relief if his rights are violated by others or by the government.
(a) Trade and Business
Islamic commercial law is well known for its prohibition of usury (riba) and all forms of interest. The Qur’an provides a categorical rejection of the use of usury, rather it suggests the use of mutual trade to provide benefit for the larger society. The verse below can be interpreted as a legal injunction, one that provides the prohibition of an act, although the sanction for breaching the prohibition is a punishment in the afterlife.
2:275 – Those who devour usury will not stand except as stands one whom the Evil One by his touch hath driven to madness. That is because they say: “Trade is like usury, but Allah hath permitted trade and forbidden usury. Those who, after receiving direction from their Lord, desist, shall be pardoned for the past; their case is for Allah (to judge); but those who repeat (the offense) are companions of the fire: they will abide therein (forever).
Nonetheless, the Qur’an also provides a moral guideline for the social relations for the Believers when they are dealing in commercial transactions. As mentioned earlier by Hallaq, iman (belief) is synonymous with salihat (good deeds), therefore providing compassion and mercy unto fellow believers is considered to be a duty for the Believers. The following is the social guidance provided to dealing with those that are indebted.
2:280 – If the debtor is in a difficulty, grant him time till it is easy for him to repay, but it ye remit if by way of charity, that is best for you if ye only knew.
On the issue of inheritance the Qur’an provides moral guidance for the Believer towards preparing their will for the purpose of ensuring social good and in providing the appropriate distribution of property. The first portion of verse 4:9 focuses on the moral duty of the Believer to act with justice when disposing of another’s will, therefore acting as a Trustee. The second part of the verse guides the Trustee to complete the act with the correct etiquette that in required of them in such a situation.
4:9 – Let those (disposing of an estate) have the same fear in their minds as
they would have for their own if they had left a helpless family behind: let
them fear Allah, and speak words of appropriate (comfort).
Verse 4:11 is the well known verse that provides the detailed explanation for how a Believer should organize the distribution of their property in their will to their kin.
4:11 – Allah (thus) directs you as regards your children’s (inheritance): to the male, a portion equal to that of two females: if only daughters, two or more, their share is two-thirds of the inheritance; if only one, her share is a half. For parents, a sixth share of the inheritance to each, if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased left brothers (or sisters), the mother has a sixth. (The distribution in all cases is) after the payment of legacies and debts. Ye know not whether your parents or your children are nearest to you in benefit. These are settled portions ordained by Allah and Allah is All-Knowing, All-Wise.
Verse 4:9 and verse 4:11 interact with one another in the sense that the first explains the etiquette of one who is the Trustee of a will, therefore establishing the moral, social and ethical element of the distribution. Implying that one should deal justly, as God has ordained, with the understanding that they should deal as if they had left a helpless family behind. Verse 4:11 explains the practice of how the will should be written and how the Trustee should ensure the property is justly distributed as ordained by God. Is it evident that the Shari’ah provides moral, social, ethical and legal guidance for the Believers in dealing with commercial transactions and duties.
Once again the Qur’an provides moral, ethical and social guidance upon the Believers in how they should enter into the social contract of marriage. The following verse emphasizes the divine blessing of God having created a partner for the Believers and the social benefit for one another.
30:21 And among His Signs is this, that He created for you mates from among yourselves, that ye may dwell in tranquility with them, and He has put love and mercy between your (hearts); verily in that are Signs for those who reflect.
The Qur’an also provides duties upon Believing men to provide a dowry to their wives in order to fulfill the marriage contract. This stipulation can be viewed as a legal injunction that works with the moral and ethical guidance of the previous verse.
4:4 – And give the women (on marriage) their dower as a free gift; but if they, of t heir own good pleasure, remit any part of it to you, take it and enjoy it with right good cheer.
The guidance continues to the necessary conditions for divorce, which is read as a legal injunction that can be tried in court, but is also provides the social etiquette in how one should deal with the process of the divorce.
2:229: A divorce is only permissible twice: after that, the parties should either hold together on equitable terms or separate with kindness. It is not lawful for you, (men), to take back any of your gifts (from your wives), except when both parties fear that they would be unable to keep the limits ordained by Allah. If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she give something for her freedom. These are the limits ordained by Allah; so do not transgress them. If any do transgress the limits ordained by Allah, such persons wrong (themselves as well as others).
The Shari’ah provides guidance for the Believers in how they should enter in a valid marriage contract, how to fulfill it and the guidance to end the contract. Furthermore, it provides the social, moral and ethical etiquette that one should fulfill while in the process of doing any of the acts.
It is evident that the Shari’ah, as understood by those grounded in the Islamic intellectual tradition (Baderin, Kamali, Hallaq), broadly covers the religious, moral, social, economic, political and legal duties, without the Austinian dichotomy between the moral and legal. By explaining: the contested definition of the Shari’ah between Orientalist and Western scholars; the interconnectedness of the moral and legal through the Oneness of God (tawhid); an explanation of usul al fiqh; and the categorization of fiqh into fiqh ibadaat and fiqh mu’amalaat; this paper intended to explain the following statement by Reinhart ‘… it may be said that Islamic law stands as a significant example of moral and legal theory of human behavior in which initial moral insights are systematically and self-consciously transformed into enforceable guidelines and attractive ideals for all of human life.’ 
 Wael Hallaq, ‘Groundwork of Moral Law: A New Look at the Qur’an and the Genesis of Shari’a’ (2009) 16 ILS 239.
 Schacht, An Introduction to Islamic Law 1982 (Oxford University Press) 200.
 Coulson, History of Islamic Law 1964 (Edinburgh University Press) 13.
 Ibid 83.
 Mashood Baderin, ‘Historical and Evolutional Perspectives of Islamic Law in a Continually Changing World’ The Middle East in London (July-August 2009) 7.
 Mohammed Hashim Kamali, Shari’ah Law: An Introduction 2008 (Oneworld Publications) 14.
 Irshad Abdal-Haqq, ‘Islamic Law: An Overview of its Origin and Elements’ (2002) 7 TJILC 27, 33.
 Yusuf Ali, Holy Qur’an 45:18.
 Kamali (n5) 17.
 Hallaq (n1) 269.
 Abdal-Haqq (n7) 36.
 Kamali (n6) 17.
 Ibid 17.
 Qur’an, 21:73.
 Ibid 3:39.
 Ibid 2:43.
 Sahih al Bukhari 1:108.
 Kamali (n6) 17.
 Mufti Muhammad Taqi Usmani, An Introduction to Islamic Finance (2007) 11.
 Qur’an 2:275.
 Hallaq (n1) 269.
 Qur’an 2:280.
 Qur’an 4:9.
 Ibid 4:11.
 Ibid 30:21.
 Ibid 4:4.
 Ibid 2:229.
 A. Kevin Reinhart ‘Islamic Law as Islamic Ethics’ (1983) 11 JRE 2, 199.
A. Yusef Ali , The Holy Qur’an, Text, Translation and Commentary 1989
Usmani MT, An Introduction to Islamic Finance (Idarat al-Maarif) 2007
Coulson NJ, History of Islamic Law (Edinburg University Press) 1964
Schacht J, An Introduction to Islamic Law (Oxford University Press) 1982
Kamali MH, Shari’ah Law: An Introduction (Oneworld Publications) 2008
Abdal-Haqq I, ‘Islamic Law: An Overview of its Origin and Elements’ (2002) 7 The Journal of Islamic Law and Culture, 27-81
Baderin M, ‘Historical and Evolutional Perspectives of Islamic Law in a Continually Changing World’ The Middle East in London (2009)
Hallaq W, ‘Groundwork of Moral Law: A New Look at the Qur’an and the Genesis of Shari’a’(2009) 16 Islamic Law and Society, 239-279
Reinhart AK, ‘Islamic Law as Islamic Ethics’ (1983) 11 Journal of Religious Ethics 2, 186-220