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 Koch 1

Thorsten Koch, MA
Postgraduate
University of Wales Trinity Saint David
30 June 2017

Islamic Law:
Ordained Sharī’ah Principles v. Man-Made Code

Sharī’ah is frequenty confused with Islamic law, although it is, in practice, impossible to accomplish the divine
nature of sharī’ah. Fiqh rules and verdicts, on the other hand, only represent an imperfect rapprochement of
sharī’ah, and are in large part human law. This essay will spell out how fiqh rules are partly based on custom.
They are subject to humanly-defined precedents, derived by human reasoning, to greater extent than from the
principal textual source of Islam, the Qur’ān. What is more, fiqh production is more closely related to Western
secular law than commonly known. Western law adopted by Muslim-majority states is part of the complex of
man-made content within broader Islamic law, as are elements of historical, state-issued siyāsa law, which is
seen apart from sharī’ah.

1) Introduction: The Traditionalist View of Sharī’ah

Islamic law is many-faceted. A traditionalist, rather simplistic view is that Islamic

law equals sharī’ah as "the ordained will of God"1, derived from flawless and detailed, di-
vine textual sources which, understood by way of a generic methodology, define "general
doctrines"2. Traditionalists subsume under sharī’ah all "spiritual, mental and physical" ac-
tivity, deriving legality, virtue and morals from the Qur’ān as well as from hadīths (sayings
of prophet Muḥammad), ijmā’ (consensus of medieval scholars), and qiyās (analogous rea-
soning)3. But many scholars today regard sharī’ah law as a collective attitude and an ideal
legal order. This differentiates it from fiqh, an approximate understanding of the sharī’ah,
transformed by humans into rules and verdicts.

1
Al-Muhairi, 1995, 293-94
2
Sharī’ah literally means "path to a watering place" (Zahraa, 2000, 169-70).
3
Kunhibava & Rachagan, 2011, 540, 544
 Koch 2

2) Sharī’ah: Unattainable Through Human Effort

Many scholars have emphasized that the sharī’ah "cannot be known with cer-
tainty"4. Contrary to the well-preserved Qur’ān, sharī’ah traditionally had no "fixed word-
ing", hence requiring individuals to strive for the "best solution" in a "human ... and error-
prone" effort5. Islamic judgement can result in many variants and differences of opinion,
none of which could be made the sole claim to by a jurist, before fiqh rules were encoded
into state legislatures6. The "distinction between divine ordinances and their worldly in-
terpretation"7 through fiqh is central in view of the pre-eminence of God and fallibility of
mankind. Seen through the said traditional lenses, however, this does not change the ho-
listic concept of the sharī’ah held by traditionalists, which derives worldly fiqh practice
immediately from the Qur’ān (revelation originating from God) and sunnah, and hardly
differentiates between these matters8. "Sharī’ah-minded Muslims" understand fiqh as a
collection of rules and as judgements directly derived from God’s commandments9.

Against this, modernist Muslims state that the "Qur’ān’s notion of justice as applied
to human relations is a worldly idea based on reason", concerned with conduct of, and
order between, human beings10. Ijtihād (independent human reasoning) was used in early
medieval Islamic history to "extrapolate from [the primary religious] sources more de-
tailed guidance for life"11, with the understanding that the human attempts to understand
the divine "can never per se be divine"12. Thus, sharī’ah law is an ideal goal which can
never be attained, and "suppositional" fiqh law is no more than inspired by the divine13.

4
Quraishi-Landes, 2015, 554; Vikor, 2008, 222
5
Vikor, 2008, 222
6
idem, 225
7
Bälz, 2008, 122
8
see Vikor, 2008, 240
9
Quraishi-Landes, 2015, 545-46
10
Shabestari, 2004, 54
11
Quraishi-Landes, 2015, 554
12
Sparr, 2014, 36
13
ibid
 Koch 3

3) The Underlying Principles of the Sharī’ah

There is ijmā’ (consensus) among leading scholars of all schools of law on maqāṣid
al-sharī’ah, the underlying objectives, or principles, of sharī’ah divine orientation. Maqāṣid
involves the preservation and protection of religion, human life, human intellect and rea-
son, family, and property14. By and large, holding on to these points of consensus and oth-
ers guaranteed Islamic law a certain coherence in the absence of a central religious au-
thority. The Egyptian constitutional court in 1993 labelled the objectives of the sharī’ah
"definite with regard to their existence and textual basis", whereas the specific interpre-
tations of Islamic law are open to ijtihād, fitting "time and clime"15. A number of Muslim-
majority states have adopted constitutions according to which "all law" has to conform to
the "core tenets" of the divine orientation16, out of consideration for popular sentiment of
submission under God. In its essence, the maqāṣid constitutes an important linkage be-
tween the divine realm and Islamic law. However, it is an exceptionally general concept.

4) Western ‘Rationalist’ Law and Islamic ‘Divine’ Law?

Oba alleges that natural law, fundamental "in Christianity[, is] bereft of content",
contrary to Islamic "divine law"17, whereas Özsoy states that since the age of Enlighten-
ment, the Western political order has detached itself from its religious legitimation18. Both
points are not exact, as one can discern a certain continuity between Christian philosophy
and Western law; in addition, on the Muslim side, legal thinking during the era of
Muḥammad and his successors "was substantially different from legal thinking after the
ninth century CE"19.

14
Quraishi-Landes, 2015, 575; Shabestari, 2004, 56
15
Bälz, 2008, 122-23
16
Hamoudi, 2009, 328
17
Oba, 2002, 822
18
Özsoy, 2008, 23
19
Shabestari, 2004, 53
 Koch 4

To many traditionalist Muslims, all the same, no set of legal values and rules can be
"formulated by mere human reason" but must inevitably conform to the revelation as cod-
ified in the Qur’ān20, leading, through its application, to dār al-Islam: the utopia of a ‘per-
fect society’21. It follows a theoretical dichotomy between Western ‘epistemological ration-
alism’22 and fiqh, imagined as divinely inspired, since Islamic classical thinkers dislocated
Western law to the realm of pure theory and logic, the divine Islamic law transcending
these23. What they habitually omit to say is that the divine is, per se, never fully attainable
to humanity. According to other views, taken that so-called sharī’ah courts have enforced
very little of the sharī’ah as such, "for the rest, the sanction is reserved for the Hereafter"24.
In the issue, it must be duly noted that rule-law derived from the Qur’ān, which is, strictly
speaking, considered the only divine source of sharī’ah, merely constitutes a small part of
Islamic fiqh law, the overwhelming rest being a matter of human extrapolation, involving
conjecture. This elucidates that a strict dichotomy between Western and ordained Islamic
law does not withstand much scrutiny.

5) Similarities and Differences Between Fiqh and Western Law

Even though fiqh law is basically human law, its concept differs from two families:
"Romano-Germanic and common law"25. Common law harks back to historical British legal
decisions. The Napoleonic or German civil codes "descend from Roman law ... and also from
Christian canon law"26. Both Western families of law nowadays, in part, deal with the prec-
edents of case law, as they concern codified rule law on the one, and instance decisions,
on the other hand27. The differences between Islamic and Western law lies in that, in com-
parison, sharī’ah courts less frequently apply recent, contemporary case law – although
that is changing in some nations –, and that the institution of juries is absent from the
Islamic court system28.

20
Anderson, 1949, 18
21
Bonderman, 1968, 1170
22
Ahmad, 2009, 4
23
idem, 7
24
Anderson, 1949, 18
25
Oba, 2002, 821
26
Kunhibava & Rachagan, 2011, 541
27
idem, 541-42
28
see Hamzeh, 1994, 84; Coulson, 1959, 20-21
 Koch 5

Islamic court decisions have "produced many conflicting opinions ... which repre-
sent merely probable rules", making uniformity and equality before the law unlikely29 30.
On the other hand, "all fiqh rules are respected as equally valid understandings"31. But
identifying facts and aligning them to Islamic legal principles "poses tremendous difficul-
ties in the judicial process", which is the case in the realm of common law as well32. Claim-
ing that case law has never been relevant at all in the Islamic World would be improper:
historical fatwas (legal opinions) of certain distinguished scholars were, time and again,
adopted by others, "preserved, refined and included into the ever-developing juridical lit-
erature of" particular madhabs (schools of law), thus entering positive Islamic law33. One
significant difference between Islamic law and Western law, agreed by many Islamic mod-
ernists, is that provisions of the relationship between God and human beings are binding
and cannot become archaic under changing circumstances34. This runs counter to rules of
Western common law which, in principle, can be reviewed and changed by human bodies
of legislation35. But, as mentioned, the difference is limited to the relationship of creed
between God and human beings, more specifically to the rules of ‘ibādāt (acts of worship).

6) Fiqh Reasoning: From Confinement to Postmodern Ijtihād

A "diverse community of fiqh scholars" has developed heterogenous interpretative

rules according to the standards36 of their madhabs37. When the rationalistic concept of
maṣlaḥah (welfare) was superseded by the strict technique of qiyās (analogical reasoning),
the formulation of law became more substantive38 and, on the other hand, schematic. Sub-
sequently, the ‘door of ijtihād’ near-closed, most jurists acted as muqallids, merely applying
rules of predecessors within the same madhab39, with an occasional creative decision40.
Sparr, therefore, claims that "no new interpretations of the legal sources were made" due

29
Coulson, 1959, 20-21
30
Equality before the law is a cherished right in Western legal systems.
31
Quraishi-Landes, 2015, 548
32
Zahraa, 2000, 186
33
Vikor, 2008, 229
34
see Al-Ahram Weekly, 2013, 1
35
ibid
36
Quraishi-Landes, 2015, 554
37
Emon, 2012, 59
38
see Powers, 2012, 334
39
Anderson, 1949, 19
40
Layish, 2004, 87
 Koch 6

to the closing of the gate, except for adaptations on the narrow basis of established meth-
ods41 42. According to al-Shāfi’ī, what had not been predetermined in the Qur’ān and the
ḥadīths or through ijmā’ had to be deduced by way of qiyās43. In practice, then, decisions
across the schools of law varied considerably44 since muqallids were inclined to preserve
interpretations stemming from differing passages within their sources45 46. But that does
not signify that man is capable of knowing God’s intention, nor that he would be able to
apply universal justice.
Between what was and what is, postmodern ijtihād is based on istiṣlāḥ (public in-
terest), rationality and "utilitarian human reasoning"47. As a case in point, the 1983 act in
Sudan for the interpretation of the Islamic statutes allows the judge, in case of inclarity, to
exercise ijtihād based on legal sources and principles in the following order: ijmā’, qiyās,
maṣlaḥah, legal precedents (of the Sudanese national courts), and ‘urf (custom), provided
they do not contradict the sharī’ah and natural justice (to be distinguished from God’s jus-
tice), as well as English-inspired "principles of justice, equity and good conscience"48. In
the Northern states of Nigeria, before the advent of the ultra-Islamist group Boko Haram,
qāḍīs (sharī’ah judges) used to have a tendency "to take previous [court] decisions into
account" instead of referring solely to Islamic source scriptures49.

7) Early Amalgamation of Fiqh and Customary Law

As we have seen, Islamic law has, through the periods of its genesis, consisted of
temporary rules co-existing besides sharī’ah-inspired regulations50, whereas sharī’ah is
said to have been derived from prophetic normative traditions and the Qur’ān51. However,
during early Islamic history, human customary laws, many having existed prior to the

41
Sparr, 2014, 37
42
The ‘closing of the gate of ijtihād’ is a matter of controversial debate in contemporary Islamic Studies.
43
Al-Muhairi, 1995, 299
44
Anderson, 1949, 19
45
see Kamālī, 2007, 404
46
Fiqh originally consisted of discretionary, rather than encoded statuary, law (see Sfeir, 1988, 730), and
was not levelled into national laws.
47
Al-Muhairi, 1996a, 40
48
Layish, 2004, 104-105
49
Coulson, 1959, 20-21
50
see Bonderman, 1968, 1175
51
see Emon, 2012, 54; Layish, 2004, 86
 Koch 7

Qur’ānic revelation, were incorporated into fiqh. Early Islam retained "seventh-century
Arabian[,] pre-Islamic customary laws and institutions[,] subject only to changes as [the
Prophet] Muḥammad decreed"52. After the revelation had ceased, jurists came to be "in-
fluenced both by Judaic code and Roman law, as well as by the traditional law of the various
newly conquered lands" (1173). What is more, the sunnah, the "lived example"53 of the
Prophet Muḥammad, "cannot always be relied upon as authentic statements of what the
Prophet said, did, or decided"54. Thus, parts of the sunnah can decidedly not be traced back
to prophetic authority but must be considered to have originally constituted customary
rules.

Meanwhile, the existence "of state-centred law" not always stringently connected
to sharī’ah, as conceded by Islamic jurists, "masked the presence of customary laws out-
side [the] formal system" of Islamic law55. At a close look, revealed Qur’ānic rules compete
with strands of "customary and statutory law in contemporary Muslim states"56, some of
them of pre-Islamic origin, as identified by Rosen in the historical Berber regions of North
Africa57.

8) Fiqh, Adaptable to Context Through Human Effort

Some Islamists today postmark Islamic law as "a consolidated body of knowledge"
and, hence, "a finished product" not to be doubted; this view is questioned by many
Islamic modernists, since fiqh originally was "conceived as a process" of "dynamic
understanding"58. Scholar Ziba Mir-Hosseini understands fiqh as "the human effort" of
extracting regulations from the sacred texts; he considers mu’amalāt, the order between
human beings, as "open to interpretation given changing circumstances"59 of social and
historical context, agreeing with "many classical writers" who, by the by, consider the

52
Bonderman, 1968, 1172
53
Quraishi-Landes, 2015, 547-48
54
Emon, 2012, 55
55
Turner & Zengin Arslan, 2014, 439
56
Layish, 1982, 132
57
Rosen, 1995, 195
58
Africa News Service, 2000, 1
59
Musawah, 2012, 1
 Koch 8

competency of the sharī’ah courts to reside solely in the regulation and mediation of inter-
personal circumstances60 61.

Human capacity limits fiqh, but also leads to a "rich diversity of legal opinion
throughout Islamic legal history" which kept Islamic law "relevant to social norms" 62 ,
thanks to human effort. The Supreme Constitutional Court of Egypt gave "broad discretion"
in interpretative matters to judges in instances where "unclear or multiple answers" arise,
provided they decide in the spirit of sharī’ah, even if they shift between interpretations of
different madhabs63.

9) Separation Between Law and Religion v. Holism

All of the above contributes to a real dichotomy, if one takes a closer look, between
law and religion in Islam, which "has been fundamental" to jurists’ patterns of thought for
centuries: unattainable sharī’ah revelation, on the one hand, and "the mundane effort to
understand, interpret and implement" law and jurisprudence, on the other64. Quraishi-
Landes hence states that "fiqh is fallible" and jurists’ efforts "at best only probable articu-
lations of God’s law" 65 . With respect to the sunnah, one must note that the Prophet
Muḥammad is said to have expressed the view that commandments due to his opinion,
thus outside religion, are only human, and that Muslims know their worldly affairs better
than him66.

Strangely, customary principles quite often are "not regarded as separate from Is-
lamic law but as Islamically legitimised categories for all local practice that is not clearly
forbidden by the sharī’ah"67, expanding Islamic law to other realms and leading to some

60
Vikor, 2008, 232
61
Kinds of law to which this applies are contractual, criminal law, transactional, and finance law, as well as
rules pertaining to judiciary proceedings, which need to accommodate to changes (Kunhibava & Rachagan,
2011, 542). This is of special importance in cases of "indeterminacy or conflict between rulings" (Brown &
Revkin, 2015, 5).
62
Musawah, 2012, 1-2
63
Hirschl, 2010, 41
64
Bälz, 2008, 122
65
Quraishi-Landes, 2015, 548
66
Özsoy, 2008, 24
67
Rosen, 1995, 195
 Koch 9

level of amalgamation. True to a transcendentalist approach, Islamic scholars often stress

that the sharī’ah is a holistic system and "meant to cover more than [the source-texts’]
scriptural rules"68. For instance, state law issued by worldly authorities was not thought
of "as ‘outside’ of sharī’ah" by "pre-modern Muslims"69. But Schacht rightly argues that
postmodern Islamic law "finds itself in circumstances similar to those prevailing in the
formative period[,] absorbing many foreign legal elements" and, in parallel, undergoing
Islamisation with regard to socio-ethical norms70, which would confirm the existence of
the twofoldness between law and religion stated above.

Sharī’ah, in this sense, is an orientation towards doing what is right and serves "as
a political principle for finding good laws"; however, fiqh "laws are the product of human
understanding and reasoning, and they represent the political will of people"71 72. One is
left to keep ajar whether these laws represent the explicit will of God, depending on one’s
concepts of destiny, human liberty and responsibility.

10) State-Issued Siyāsa Law as a Form of Islamic Law

It is often argued that Islamic law is bifurcated, consisting of scholarly fiqh and
state-issued siyāsa law73, which are both man-made, to a large degree. Some deny this,
hence, Bedir writes: "It is well known that the idea of governmental legislation is alien to
classical Islamic legal theory"74. Yet, even anti-constitutionalist Fażlullāh Nūrī admitted
that, albeit "outside of religion", government regulations – dastūrāt – have always ex-
isted75.

On the one hand, then, there is classical theory understanding sharī’ah as divinely
ordained, with only "administrative regulations" permitted as "human legislature"; on the
other hand, in contemporary Muslim-majority states, Islamic law is not considered "in

68
Quraishi-Landes, 2015, 558-59
69
ibid
70
Layish, 1982, 134-35
71
Sparr, 2014, 42
72
They also comprise many non-religious elements.
73
see Quraishi-Landes, 2015, 578-79
74
Bedir, 2004, 384
75
Martin, 1986, 189
 Koch 10

force unless a secular legislature ... promulgates its rules"76. This is due to political con-
sensus, but also practical necessity: "rules extrapolated from scripture" do not cover all
"public needs of civil society", hence fiqh needs a complement to meet public interest77:
siyāsa (state) law comprising legislation on "environmental protection, labour relations,
and economic regulation", just to name a few examples78.

The practical necessity79 of government law-making "came to be seen as Islami-

cally legitimate" in view of the principle of maṣlaḥah (welfare)80. If one considers sharī’ah
as a holistic concept, it follows that it comprises legal enactment by human government
in a melange of part-divinely inspired and, indeed, human-made but religiously acceptable
law, because siyāsa law has no "direct grounding in sacred texts"81, at least literally. This
contradiction is bridged in that the intention of serving public good, and, therefore, God,
through good governance, renders government law-making "Islamic without looking to
[express] fiqh rules"82, as traditionalists see it.

While Quraishi-Landes83 does not consider siyāsa law to be secular, for reasons of
theoretical integrity, one can practically consider it as such from a Western perspective,
while maintaining, from an Islamic position, that it is a form of religiously-inspired law-
making, with siyāsa as "part of a sharī’ah rule of law"84, at least broadly. This would em-
phasise the maqasid (underlying principles of the sharī’ah), which are, however, largely
dependent on human interpretation.

76
Al-Muhairi, 1996c, 367
77
Quraishi-Landes, 2015, 551
78
idem, 573
79
see Emon, 2012, 71
80
Quraishi-Landes, 2015, 558-59
81
idem, 552
82
ibid
83
idem, 552-54
84
ibid
 Koch 11

11) Sharī’ah-Led Harmonisation of Mixed Islamic Law

Approximate human implementation of the sharī’ah, which does not equal sharī’ah
law85, has, in its consequence, always been a mixed law. Through the transcendentalisa-
tion of sharī’ah, i.e. nominally subsuming fiqh rules under the concept, cleavages and con-
flicts in the interpretation of Islamic law have been reduced. Proponents of the flexible
character of fiqh, on the other hand, contend that one needs a marketplace of differing
jurist – and these are forcibly human – opinions, and pan-Islamic thinkers strive for an
international convergence of Islamic law, which would render it more incontestable.
Whether Islamic law, and "siyāsa as its human-made public law arm", can serve as "law of
the land" in Muslim-majority states, today effectively depends on harmonisation and
whether human elements of nominal fiqh, with its manifold elements of customary law,
can pass a ‘sharī’ah check’ based not primarily on details of the primary sources, but first
and foremost the five maqasid (purposes) of sharī’ah86. Again, it is to be emphasised that
the process of harmonisation depends on human intellect.

12) Implantation of and Borrowing from Western Law

In many instances, secular Western law was imposed by European powers during
colonialism on Arabic countries. In other instances, "borrowing was done by the choice of
indigenous Muslim leaders who saw in the retention of medieval religious law a barrier to
progress"87. In India, quite prominently, administration of fiqh "by common law judges"
gave way to an ‘Anglo-Mohammedan law’88.

Islamist movements condemned secular elements in law as an expression of the

"West’s socio-cultural hegemony over the Muslim world", calling for an elimination of such
provisions from their legal systems, invoking the "aspirations of Muslim people", while

85
as that can only exist in the sphere of the divine
86
Quraishi-Landes, 2015, 565
87
Mayer, 1987, 128
88
Oba, 2002, 835
 Koch 12

other parts of society supported Westernization89. In dual colonial systems, sharī’ah-de-

rived fiqh lost its importance except in the areas of "religious, moral, or customary
norms" 90. Secularism gained in standing, and the dichotomy between religion and law
grew.

13) Western Commercial Law within Islamic Hybrid Legal Systems

Nowadays, the legal structures in Muslim-majority countries are, in general, hybrid

systems between fiqh and secular provisions. Commercial law has in many countries been
secularised. In Saudi Arabia, there was, at the outset, a tendency to rid the legal system of
"secular and customary" elements91. One can now find "economic jurisdictional enclaves"
of secular law in the legal systems of Saudi Arabia, Qatar, and Dubai, permitting "lucrative
industries" in striving economies 92. Kuwait, in 1980, passed similar commercial provi-
sions, while maintaining a fiqh-based Civil Code93. The principles of the sharī’ah in trans-
actions were rejected in 1961 because fiqh adaptation was judged impractical 94 . One
needs to acknowledge that sharī’ah, in a classically holistic understanding, includes eco-
nomics, prohibiting ribā (excess in profit) and gharar (risk-laden contracts)95, while com-
mon law "attaches greater value to freedom of contract and considerations of clarity, cer-
tainty and consistency in the law"96. But realistically, many aspects of the broad realm of
Islamic law in Muslim-majority countries has become a manifestation of hybridity.

14) Conclusion

The dichotomy between divine and human legal provisions in Islam is an artificial,
"ideological construction". Fiqh "pretends to speak in the name of divine revelation",
which constitutes an obvious danger because it attributes "to its passions and errors a

89
Al-Muhairi, 1995, 288
90
An-Naim, 2010, 15
91
Schacht, 1959, 136
92
Hirschl, 2010, 39
93
Ballantyne, 1986, 246
94
idem, 246
95
Halmo, 2013, 9
96
Kamālī, 2007, 400
 Koch 13

sacredness and infallibility to which it has no title"97. According to Shalakany, "Islamic law
can be viewed as the traditional, religious, and immutable opposite of functionally evolv-
ing Western law only if, historically, we insist on removing siyāsa and [customary] ‘urf
from the scriptural ambit"98, which are elements of early Islamic secularism. If the latter
are included into the equation, the allegedly different pairs – Islam and the West – possess
similar characteristics. Moreover, they are "functionally evolving" in similar ways 99, due
the ever-enduring necessity to apply law, via human interpretation, to changing context.

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