Islamic law and its sources

Federal Agent David MacGregor is undertaking a Masters in International Law

at the University of Melbourne and has recently completed an essay about the
fundamentals of Islamic law. An excerpt of that essay follows.

In many ways, the laws and religion of Islam are inextricably linked and
an understanding of Islamic law, the shariah, is fundamental to the
understanding of Islam. In light of the increasing scope of the AFPs
International Deployment Group missions overseas, which already include
Sudan and Jordan, and the ongoing cooperative eorts between the AFP
and Indonesian authorities to counter transnational criminal groups and
terrorist organisations, the eectiveness of policing will be greatly enhanced
through a greater understanding of Islam and its system of law.
Federal Agent David MacGregor

The Muslim ideal

attending Friday prayer, during which

ambiguity, individuals charged with the

their military commanders recited

legal and religious direction of Muslim

Muslim law is inherently religious. Its

passages from the Quran and imbued

communities, the qadis, looked to other

principle source is the Quran which is

them with a single Muslim identity.

sources of authority upon which to base

considered the nal revelation of God

In this way, rules and sanctions of the

rulings and oer advice. In the earliest

to humankind and the ultimate guide

Quran became normative among

years much of this authority was derived

to which all practising Muslims must

otherwise unrelated tribes.

from customary or tribal law. By the end

adhere. Muslims believe the Quran

was rst revealed to Gods Prophet

of the rst century of Islam, many qadis

based their judgments on a hierarchy

a region populated largely by tribal

The Quran as a legal

document

Bedouin peoples whose livelihood

Even in the early years of Islam, it was

Quran.

relied on the busy trade routes of the

apparent that many facets of social and

area.

economic life were not mentioned in

Mohammad in the year 610 CE in

of authorities and the primary source of

law within this hierarchy remained the

The Prophet Mohammad

the Quran. As an example, the Quran

While both Christianity and Judaism

attributes an explicit punishment for

The Prophet Mohammad is revered

were practised widely in this region,

the crime of adultery (Quran 24:2), but

among Muslims as the consummate

many tribes were polytheistic and

says nothing specic on the legality or

personication of the Quran and the

practised their own pagan rituals. As

otherwise of rape. As Pakistani scholar

paragon of Muslim behaviour. As such,

Islam spread rapidly, the conscripted

Fazlur Rahman states, there is little in

the exemplary conduct of Mohammad,

Bedouins of the Muslim armies were

[the Quran] that is, properly speaking,

represented by his every word, deed and

unied by the shared custom of

legislative. To overcome instances of

approval and known as the Sunnah

Platypus Magazine | Edition 93, December 2006

31

Legal and religious terms

Faqih: An expert practitioner of the
shariah.
Fatwa: A legal statement in response
to a specic question.

is regarded as the second principle

became regarded by traditionalists as

authority of the shariah the system

inferior and too arbitrary as compared

of law inspired by the Quran. While not

with the wisdom of a single Prophetic

the word of God itself, the Sunnah is

voice (Hallaq, 2004). In a system of

regarded as the best example of how

law that is fundamentally religious, the

to live by Gods decree on earth. The

divine must outweigh the human.

Quran (4:80) reveals Whoever obeys

the Messenger obeys God and so the

The trend toward traditionalism

Sunnah is widely considered divine in

increased the role of dedicated

Hadith: Written collections of the

words, actions, works and deeds of
Muhammad.

nature.

specialists with expert knowledge of

Haram: An act or thing prohibited by

the shariah.

attributed to determining the validity

Ijma: Consensus, usually between

a group of Muslim scholars,
Ijtihad: The exertion of mental eort
in the pursuit of knowledge to the
absolute limit of a persons cognitive
energies.
Imam: A person with special qualities
relevant to Islam.
Islam: The religion practised by
M u s l i m s , l i te ra l l y m e a n i n g
submission (to submit under the
will and guidance of God).
Makruh: An act or thing disapproved
of by the shariah.

In early years, there was little vigour

of reported Sunnah, meaning it
ranged in reliability and authenticity

with these qualications, the faqihs,

were increasingly consulted by qadis
to ensure their rulings were consistent

depending upon its source. However,

with religious authority. Interpretation

by the beginning of the third century

was still required when literal evidence

of Islam, numerous collections of

from the Quran and the Sunnah

respected written hadith (a document

remained inconclusive or caused

recording the Prophets life, customs

shariah scholars to argue over points

and consequently, his Sunnah) provided

of law.

greater consistency and validity upon

which to base legal determinations.

The tradition of ijtihad refers to an

exertion of mental eort in the pursuit

While Prophetic Sunnah was revered

of knowledge to the absolute limit of

by qadis before the establishment of

a persons cognitive energies. Unlike

authoritative hadith, its somewhat

ray, with its semantic aliation to the

inconsistent nature and sometimes

arbitrary decisions of qadis, ijtihad is

dubious authenticity allowed for a

greater scope of abstract reasoning

Mandub: An act of thing

recommended by the shariah.

on the part of the qadi. Ray is a

Mubah: An act or thing neither

allowed nor disallowed by the
shariah.

process of reasoning used by the qadi

Mufti: A religious leader who deals

with judicial questions and issuer
of statements on aspects of the
shariah (fatwas).

to the Quran or the Sunnah. Ray

32

the Quran and the Sunnah. People

collective term that describes any

to argue or resolve a point of law that
is otherwise unclear by reference

widely accepted as a necessary process

in the development of legal consensus.
As a result, schools of thought were
established based on agreement of legal
scholarship. When such consensus,
or ijma, on a ruling is reached, a third
source of shariah, subordinate in the

includes both legalistic methods of

hierarchy of authority to the Quran

analogy as well as less logical and more

and the Sunnah, is established. Ijma

discretionary approaches to problem

is described by the modern Muslim

solving. However, as the acceptance of

scholar S. Mahmassani as the

authentic hadith became widespread,

agreement by all Muslim jurisconsults

the use of discretionary reasoning

in any particular age on a ruling.

Platypus Magazine | Edition 93, December 2006

The rapid growth of Islam from the

those elements of behaviour that

Hejaz into societies of central Asia,

are obligatory or strictly forbidden

northern Africa and southern Europe

and which attract a consequential

introduced circumstances and problems

punishment when violated (as is the

that were unfamiliar to the system of

case with the majority of Western

shariah as had developed in the Arab

legal paradigms), but also those

lands. Similarly, as the passage of time

actions that determine a persons

brought new technologies and social

moral character before God. Thus, for

conditions, literal reference to the

Muslims, observance of shariah is

principal authorities of shariah could

both a legal and religious duty. Under

not provide legal answers to every

this system, all human behaviour

problem. In such circumstances, some

can be categorised into one of ve

legal scholars developed a form of

normative classications: forbidden

ijtihad whereby rules applicable to an

(haram), obligatory (wajib), disapproved

established problem could be applied

(makruh), recommended (mandub) and

to a new problem where the objectives

permissible or discretionary (mubah).

Muslim: A person belonging to

Islam, a person who believes in
God and submits to his will as it is
described in the Quran.
Qadi: A judge or public official
authorised to make judgments
before a court of law.
Qiyas: Analogical reasoning,
based on the Quran and the
Sunnah, enabling the dening of
a new injunction from a known
injunction.
Quran (Koran): The holy book of
Islam, containing the revelations
from God to Muhammad in the
period 610632.
Ray: Individual reasoning used
when there is an unresolved
matter for which no firm or
indirect regulations can be found,
representing the most unrestrained
form of intellectual reasoning in
Islam and thus not accepted by
many Muslim scholars.

Joseph Schacht, a pre-eminent

Western scholar of Islam, describes
Islamic law as a system of religious
duties, blended with non-legal elements.
of the rules were analogous. Decisions

If an act that is haram is committed,

reached through this process ensured

shariah prescribes a punishment. The

the shariah remained within the

Quran states that theft is haram and

boundaries of the Muslim tradition while

commands Muslims to [c]ut o the

allowing for major societal changes.

hands of thieves, whether they are man

This use of analogy, or qiyas, provides

or woman, as punishment for what they

shariah with a signicant element of

have done (Quran 5:38). Similarly,

exibility because, through qiyas, legal

acts of wajib that are ignored will have

rulings can be extended to similar cases

consequences for the errant Muslim,

Sura: A chapter in the Quran.

while maintaining conformity with the

but it should be noted that not all

texts of the Quran and the Sunnah.

punishments are physical or earthly

Wajib: An act or thing made

compulsory by the shariah.

in nature. It is obligatory to believe

Crime and punishment

in God, his revelation and have faith in

life after death (Quran 2:4). For those

Joseph Schacht, a pre-eminent Western

who disbelieve, the Quran promises

scholar of Islam, describes Islamic

that agonising torment awaits them

law as a system of religious duties,

(Quran 2:10) in the afterlife. In this

blended with non-legal elements. As

way, Shariah depends on the belief by

such, the shariah regulates not only

all Muslims in God and their fear that

Shariah: The system of law inspired

by the Quran, the Sunnah, older
Arabic law systems, parallel
traditions, and work of Muslim
scholars.
Sunnah: The examples, deeds,
sayings and unspoken approvals of
Muhammad.

Zina: Adulter y, fornication,

having sexual intercourse outside
marriage.
The notation CE (Common Era) is the
period of measured time beginning
with the year 1 on the Gregorian
calendar and aligns with AD (Anno
Domini)

Platypus Magazine | Edition 93, December 2006

33

indiscretions escaping punishment in

Methods of legal reasoning,

interpretation and fatwa

necklines and not reveal their charms

physical or spiritual, both haram and

The Quran and the Sunnah as sources

Such ambiguous wording leaves much

wajib establish positive rules where an

of denitive and speculative rulings

life will be rebuked by God in death.

Irrespective of whether punishment is

action or omission will elicit a punitive

except to their husbands (24:31).

to individual interpretation. What is

acceptable and to whom? What are

The authority of the Quran and the

a womans charms and how should

Sunnah is undisputed in Islamic

she conceal them? Which parts of a

From a Western legal perspective,

legal thought. But shariah originates

womans body are private? An ultra-

it is more dicult to conceive of

from human reason as well as divine

conservative regime, such as the former

the remaining three categories as

revelation, and the method of combining

Taliban government in Afghanistan,

positive sources of law. For example,

and interpreting these elements to

could read such text as wajib and use it,

the Quran says, marry o the single

derive meaningful law remains a source

particularly when read in conjunction

among you and those of your male

of tension in the Muslim world. It is

with verse, or sura, 33:59, Prophet,

and female slaves who are t (for

important to recognise that, with the

marriage) (24:32). While marry o is

exception of the key tenets of Islam

posed in the innitive, no immediate

and those denitive rulings from the

punishment is proscribed for someone

Quran or the Sunnah that are specic

who does not marry. Rather, this rule

to the degree that there is no cause

is a recommendation that attracts

for human interpretation, such as You

consequence.

tell your wives, your daughters, and

women believers to make their outer
garments hang low over them so as to
be recognised and not insulted, to
justify the covering of all women from
head to toe. But if the same text is read
as mandub in a more liberal context,
local laws may leave the question of

Shariah depends on the belief by all

Muslims in God and their fear that
indiscretions escaping punishment in
life will be rebuked by God in death.

what is acceptable to the discretion of

each individual. Any derived ruling will
depend greatly on the context in which
that ruling was made.
As discussed briey above, a number

Gods approval and is likely to benet

are forbidden to eat carrion; blood;

individuals through His provisions.

pigs meat (Quran 5:3), considerable

While not positive sources of law in the

traditional legal sense, these categories
of action should not be considered
any less important in the scheme of
the shariah simply because they elicit

variations in the law can and do exist.

Such variations will often reect the
geopolitical circumstances of a society

of legal schools have developed

throughout the history of Islam. Each
has its own methods of nding the law
and, even at the most fundamental
levels, each may disagree with the
principles of the others. While it is

and its lawmakers. For example, the

universally accepted that the Quran is

Quran says to Muslim women that:

the supreme source of legal authority,

some scholars have argued that the

no direct consequence. A practising

they should lower their glances,

Muslim must follow the word of God

guard their private parts, and not

can supersede the Quran in instances

and the example of the Prophet as

display their charms beyond what (it

where the Sunnah diers in favour of

closely as possible to achieve success in

is acceptable) to reveal; they should

the good of society. Other scholars

both life and the afterlife.

let their headscarves fall to cover their

vehemently reject this theory, standing

34

Platypus Magazine | Edition 93, December 2006

Sunnah, being a form of revelation,

rmly by their belief that the Quran

losers in the Hereafter (Quran 3:85),

as a capital oence, it can be argued

is the only true word of God. It is,

appears to abrogate the earlier verse.

the Sunnah abrogates the Quran in this

therefore, important to understand

Such matters must be closely examined

instance. Nevertheless, as a general

both the geopolitical and scholastic

by Muslim scholars to determine the

rule of Islamic legal methodology,

backgrounds of any decision or ruling

true meaning of the Quran.

the Sunnah should be consulted as a

within the shariah. If this is understood,

it is possible to appreciate how two
scholars can resolve the same legal
problem and arrive at dierent legal
opinions.

supplementary source to the Quran.

Second, if earnest consultation of the

Quran has failed to enlighten a legal

Some Muslim scholars will go no further

scholar on an aspect of law, reference

than this secondary stage in search of

to the Sunnah should be made. Given

legal guidance, claiming all divine law

the Prophets every word, deed and

is contained within these two sources.

Legal Methodology and Fatwa

To nd the shariah, a basic process of
consultation should be undertaken.
First, a clear decree should be sought
from the Quran. If such a ruling is

Given the Prophets every word, deed

and approval is considered the basis
of a legal ruling, the Sunnah adds
considerable depth and detail to the
shariah.

evident, it is unnecessary to look further

approval is considered the basis

However, many legal practitioners

for the law. However, as has been

of a legal ruling, the Sunnah adds

believe that ijma is a legitimate third

discussed, the Quran is rarely specic

considerable depth and detail to the

source of law, whether such consensus

shariah. Issues of contradiction within

relates to agreement on a legal aspect

the Sunnah and even, as mentioned

that was not otherwise addressed in

briey above, between the Sunnah and

the Quran or the Sunnah or agreement

the Quran, have forced Muslim jurists

on how to interpret a ruling within the

to further argue the respective merits

primary sources. The fourth, and nal,

and appropriate weight attributable

source of law is qiyas derived from

to each authority. At verse 24:3, the

ijtihad. When no denitive ruling can be

Quran tells us that the crime of zina

deduced from the Quran, the Sunnah or

(illicit sexual relations) is punishable

ijma, a legal practitioner must combine

by one hundred lashes. There is no

their knowledge of these sources with

apparent distinction between sexual

their ability to reason and intellectualise

[t]he (Muslim) believers, the Jews, the

acts between two unmarried people,

the problem until a solution has been

Christians, and the Sabians all those

and adultery, where it is implied that at

derived.

who believe in God and the Last Day

least one of the fornicators is married

and do good will have their rewards

to a third party. However, the hadith of

with their Lord. No fear for them, nor

al-Bukhari (Volume 8, Book 82, Number

A judge, or qadi, is responsible for

will they grieve (Quran 2:62). However,

815) states the Prophet prescribed 100

ensuring human aairs are regulated

a later revelation stating, [i]f anyone

lashes as punishment for a fornicator,

in court, with sucient reference to

seeks a religion other than (Islam)

but death by stoning as punishment for

sources of the shariah and its rules

complete devotion to God, it will not be

an adulterer. Given the shariah appears

of evidence and procedure and their

accepted from him: he will be one of the

widely to regard the crime of adultery

judgments are binding on those

on matters of a technical legal nature.

Early legal specialists developed the
theory of abrogation based on the
logic, described by Hallaq (2005), that
nothing can repeal the word of God
except another word from the same
source. If contradictions appear to exist
within the Quran, a careful analysis
of the chronology of conicting suras
is made so that the later decree is
determined to have annulled the earlier
one. As an example, the Quran says,

Court Judgments and Fatwas

Platypus Magazine | Edition 93, December 2006

35

before the court, but only as far as

questions of law. As such, the

acts Satans doing shun them so

the specic circumstances and facts

incorporation of authoritative fatwas

that you may prosper. With intoxicants

of that case determine. The role of a

into this reference provided a source

and gambling, Satan seeks only to incite

mufti diers considerably in that he

that was both the oldest and most

enmity and hatred among you, and to

or she provides advice or an opinion

recent material relevant to the needs of

stop you remembering God and prayer.

on specic matters of shariah, again

society and responsive to the changes

based upon the abovementioned

it had undergone over time (Hallaq,

sources, in response to a specic

1995). The inuence of fatwa on the

question (where, as distinct from the

development of the shariah has been

factual disagreements common to

signicant.

court proceedings, the factual basis of a

question is assumed to be self-evident).

However, neither the Quran nor the

Sunnah says anything about the use of
cocaine or ecstasy, given that it is widely
agreed that the term intoxicants refers
specically to alcohol and its eect on
Muslims of the 7th century. Does this

The advice, or fatwa, of a mufti is

Development of the shariah

non-binding and traditionally based on

Alcohol and drugs in the shariah: a

that persons detailed knowledge and

practical example of analogy and the

understanding of the shariah texts as

to Mohammad in 610 CE. The Prophet

law.

died and his Sunnah ended in the year

mean the shariah allows the use by

Muslims of these drugs? As previously

they relate to the question. As a result

of these distinctions, a muftis scope

With regard to determining the status

broadens beyond purely legal issues to

of alcohol as haram, it is unnecessary

discussed, the Quran was rst revealed

632 CE, but it was not for another

thousand years that the international
trade in recreational narcotics began.
Hence, an obvious problem exists for

Neither the Quran nor the Sunnah says

anything about the use of cocaine or
ecstasy.

practitioners of the shariah in the 21st

century when faced with determining
the law regarding the use, sale and
tracking of these narcotics. Given

encompass the full range of moral and

to look further than the Quran. Verse

it is impossible for substances such

spiritual questions that involve Muslim

2:219 reveals, [t]hey ask you (Prophet)

as cocaine and ecstasy to have borne

life.

about intoxicants and gambling: say

any relevance to early generations of

There is great sin in both, and some

Muslims, their standing before God and

While a fatwa is technically non-binding,

the implied legal expertise required

benet for people: the sin is greater than

of the mufti gives their opinion some

the benet. Verse 4:43 commands,

weight in the law. Unlike the decision

[y]ou who believe, do not come

of a judge, a fatwa can be applied

anywhere near the prayer if you are

widely to inuence cases of similar

intoxicated, not until you know what

circumstances. Fatwas were, especially

you are saying; nor if you are in a state

in Ottoman times, incorporated into

of major ritual impurity and at verses

works of positive law that were widely

5:90 and 5:91, it is stated:

regarded by legal practitioners as

the law was never determined by either

the Quran or the Sunnah. Nevertheless,
it is important that shariah jurists
develop a stance on the act of trading in
and consuming drugs so Muslims can
be condent their behaviour remains
consistent with their religion.
Through ijma and the use of qiyas, legal
scholars have been able to expand

standardised authoritative references.

You who believe, intoxicants and

the laws pertinent to the consumption

Ideally, reference to these texts would

gambling, idolatrous practices, and

and trade of alcohol to make them

provide clarity on all imaginable

(divining with) arrows are repugnant

equally applicable to the consumption

36

Platypus Magazine | Edition 93, December 2006

Kamali, Mohammad Hashim, Law and

Society: The Interplay of Revelation and
Reason in the Shariah in John Esposito (ed)
The Oxford History of Islam (2000)

and trade of narcotic drugs. It must be

process that have allowed it to apply

recalled that the analogy sought by

ancient but divine law to problems and

shariah scholars is that which pertains

circumstances unique in fact to the

to the eect or outcome of an action

modern world. Muslim jurists are able

to which a law expects to cause or

to employ these methods to arrive at all

negate. Alcohol is haram because of

manner of solutions to contemporary

its intoxicating eects which incite

problems. Thus, the shariah is not

enmity and hatred and (prevent

necessarily an antiquated or irrelevant

Muslims from) remembering God and

system of law and should not be

prayer (Quran, 5:91) and lead to the

universally criticised as such. Rather, if

commission of further sins. The mufti

Sheikh Yusuf Al-Quradawi summarises
the symptoms of the destructive social
disease of intoxicants as wasting time
and money, creating poor physical
health and distracting Muslims from

Masud, Muhammad Khalid, Messick,

Brinkley & Powers, David, Islamic Legal
Interpretation: Muftis and their Fatwas
(2001)

practised with appropriate intellectual

Rahman, Fazlur, Islam (1966)

vigour, it has the potential to be as

dynamic as any other system of law

Schacht, Joseph, An Introduction to Islamic

Law (1982)

while remaining true to its religious

foundations.

Wiechman, Dennis, Azarian, Mohammad

& Kendall, Jerry, Islamic Courts and
Corrections, (1995) 19(1) International
Journal of Comparative and Applied Criminal
Justice

prayer and other important social

duties. If these consequences are
realised as a result of consuming a
similarly intoxicating substance, which
in the cases of heroin, cocaine and
ecstasy they are, it is accepted that
this substance is also haram and any
subsequent fatwa delivered on this

References
1 Throughout this essay it can be assumed
unless otherwise specied that passages
from the Quran have been taken from the
English translation of this text by M.A.S
Abdel Haleem (2005).

AlAlwani, Tahir Jabir,

Usul al Fiqh: Methodology for research
and knowledge in Islamic jurisprudence,
<http://www.usc.edu/dept/MSA/law/
alalwani_usulalqh/ch1.html>, 10.07.2006.

Bibliography

subject will indicate as such.

Conclusion
There is no singular or all-encompassing
version of the shariah. Certainly,

Abdel Haleem, M. A. S, Introduction, The

Quran A new translation by M.A.S. Abdel
Haleem (2005)
Calder, Norman, Mojaddedi, Jawed & Rippin,
Andrew (eds), Classical Islam: A Sourcebook
of Religious Literature (2003)

in an incontestable vacuum and are

accepted by all Muslims across all
schools of thought. However, outside
the parameters of these key tenets,
the shariah diverges at various points
of secularism, intellectualism, cultural
relativism and nationality. Islamic
legal jurisprudence has developed
sophisticated methods of reason and

Ibrahim, Farooq, The Problem of Abrogation

in the Quran, <http://answering-islam.org.
uk/Authors/Farooq_Ibrahim/abrogation.
htm>, 19.07.2006.

Hallaq, Wael, Authority, Continuity and

Change in Islamic Law (2001)

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Hallaq, Wael, The Origins and Evolution of

Islamic Law (2004)

Sahih Bukhari, <http://www.usc.edu/dept/

MSA/fundamentals/hadithsunnah/

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Practice in Irwing (ed) The New Cambridge
History of Islamic Civilization (2005)

bukhari/008.sbt.html#001.008.371>,
18.07.2006.

there are fundamental elements, or

key tenets, of the shariah that exist

Mahmassani, S, Falsafat Al-Tashri Fi Al-Islam:

The Philosophy of Jurisprudence in Islam
(1961)

Inciardi, James, American Drug Policy and

the Legalization Debate, in James Inciardi
(ed), The Drug Legalization Debate (1991)

Vikor, Knut, The development of ijtihad and

Islamic reform, 1750-1850, <http://www.
hf-fak.uib.no/institutter/smi/paj/Viktor.
html>, 10.07.2006.

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