The notion of shari’a rests on a theological base: it consists of rules and commands which have divine origin, first in the Quran, which is the word of God, then in the sunna of the Prophet, also of divine inspiration. …
The shari’a, then, rules of divine origin, is transmitted and developed through human agency. Fiqh is literally ‘understanding’, the effort of pious men to understand and formulate the divine will. The historical shari’a, as it developed in texts and practices, is the work of fuqaha (plural of faqih, the practioner of fiqh). The shari’a, then, as it came down to us, is largely man-made, based on practices (‘urf, recognized as a source of law) and existing local … legal traditions, such as Babylonian, Jewish and Arab, as well as possible adaptations of Roman law. This hybrid formation poses interesting questions for modern contexts of reform and of ‘fundamentalism’: both try to rescue the divine message from the man-made historical accretions, but come to quite different conclusions regarding the essence of the divine message ….
Another terminological problem is the common translation of ‘shari’a’ as ‘Muslim law’, which is not strictly true. The shari’a is much more than law in the modern sense. So much of its contents cover ritual and religious practice of prayer, alms, pilgrimage, diet and food taboos … It also functions as a vocabulary of morality and justice … It is a flexible vocabulary of a ‘moral economy’ of claims and counter-claims between the classes and factions… Messick, adapting a phrase from Marcel Mauss, characterizes the shari’a as a ‘total discourse’, ‘wherein “all kinds of institutions find simultaneous expression: religious, legal, moral and economic”’ … It displays what Weber calls ‘substantive rationality’, one in which law, morality, religion and politics are not distinguished, as against the ‘formal rationality,’ which he attributes to Western capitalism, the product of a chain of the unique development of the West, in which law is clearly differentiated from these other spheres, and proceeds according to its own principles and institutions.
In practice, however, legal principles and institutions did become quite specialized and differentiated … Legal theory and its elaboration also became a specialised activity, often distinct in its institutions and practitioners from the practical applications of the law in courts and notaries. This is a characteristic which Weber attributes to Western law, which featured a distinction between the university or church academics, who did not practise law but engaged in the development of theories and methodologies of law, and the actual practitioners of law. This feature was clearly shared by the Muslim world. Fiqh, indeed, developed an elaboration of highly speculative discourses, often concerning hypothetical cases with no practical application, what has been termed ‘casuistry’.
In its aspect as ‘law’, the shari’a continued to be, until recent times, jurists’ and judges’ law, derived and elaborated in books of jurisprudence and commentaries, as against statute law, deriving from the edicts of rulers or state traditions. These latter were prevalent in the world of Islam, but always kept distinct from the shari’a.
Sami Zubaida, Law and Power in the Islamic World (London and New York: I.B. Tauris, 2003) at 10-1.
