A. Etymology
The term sharia itself derives from the verb “shara’a”, which according to Abdul Mannan Omar’s “Dictionary of the Holy Qura’an” connects to the idea of “system of divine law; way of belief and practice”.
In the Qur’an, the word “Shari’a” that appears only once at 45:18. Moreover, its derivative form appears three times at 42:13, 42:21, and 5:51 verses. According to the modern definition, shari’a is the comprehensive body of Islamic laws that should regulate the public and private aspects of the lives of the Muslims. The first two sources are Qura’an and the Sunna, and the other complementary sources are consensus (Ijma) and analogy (Qiyas).
B. Definitions and Descriptions
Base on the Koran and the religion of Islam, Sharia has been defined as moral or Islamic law, both civil and criminal justice as well as regulating individual conduct both personal and moral.
The primary sources of Islamic law are the Qur’an and sunnah. Sharia has certain laws which are regarded as divinely ordained, concrete and timeless for a relevant situations. It also has certain laws which derived from principles established over time by Islamic lawyers.
Sunni Muslims:
1. The consensus (ijma) of Muhammad’s companions (sahaba)
2. Islamic jurists (ulema) on certain issues
3. Drawing analogy from the essence of divine principles
4. Preceding rulings (qiyas).
Shi’a Muslims:
1. They strongly reject analogy (qiyas) as an easy way to innovations (bid’ah)
2. And also reject consensus (ijma) as having any particular value in its own.
A recurring theme in shi’a jurisprudence is logic (mantiq). In imami-Shi’a law, the sources of law (ushul al-fiqh) are the Quran, anecdotes of Muhammad’s practices and those of The Twelve Imams, and the intellect (‘aql). The practices called Sharia today, however, also have roots in local custums (urf).
C. Classic Islamic Law
The formative of fiqh stretches back to the time of the early Muslim communities. In this period, jurists were more concerned with pragmatic issues of authority and teavhing than with theory. Progress in theory happened with the coming of the early Muslim jurist Muhammad Ibnu Idris ash-Shafi’I (767-820), who laid down the basic principles of Islamic jurisprudence in this book Al-Risala. The book details the four roots of law (Qur’an, Sunnah, Ijma, and Qiyas) while specifying that the primary Islamic texts (the Qur’an and the hadith) be understood according to objective rules of interpretation derived from careful study of the Arabic language.
D. Origins
According to Muslims, Shari’a Law is founded on the teaching of Allah and acts and sayings of Muhammad as found in the Qura’an and the Sunnah. However, shari’a was not fully developed at the time of Muhammad’s death, but rather it evolved around the Muslim community or Ummah through which it would serve.
When Shari’a began its formation in the deserts of Arabia about 1,400 years ago, the time Islam was born, a sense of community did not exist. Life in the desert was nomadic and tibal. However, the nature of Islam challenged that ideology and brought all those who professed their submission to Islam into Ummah. Additionally, Islam was not jus a reigion but a way of life.
After the death oh Muhammad, shari’a continued to undergo fundamental changes, beginning with the reigns of caliphs Abu Bakr (632-34) and Umar (634-44) in which many decision making matters were brought to attention of Muhammad’s closest comrades for consultation.
Before the 19th century, legal theory was considered the domain of the traditional legal schools of thought. The legal schools followed by most Sunni Muslims were Hanafi, Hanbali, Maliki or Shafi’i. most Shia Muslims followed the Ja’fari school of thought.
E. Comparisons with Common Law
The methodology of legal precedent and reasoning by analogy (qiyas) used in Islamic law was similar to that of the common law legal system.
English Common Law
Since the publication of legal scholar John Makadisi’s The Islamic Origins Of the Common Law in the North Carolina Law Review in 1999, there has been controversy over weather English common law was inspired by Islamic law.
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