3. THE BASIC CHARACTERISTICS OF THE SHARIA
The Sharia, whether of Sunni or Shii, has a set of unique characteristics which must be taken into account not only to explain its phenomenal role in the Islamic societies but also to understand the great many events which took place in the Islamic World since the beginning of the nineteenth century.
The first and most significant of these characteristics is that it is not conceived of as a reflection of the collective conscience or the will of man but as the revealed and concretized Will of God. It has exteriority and constraint, to use Durkheimian terms, not only in relation to the individual but also in relation to the whole society, and thus instead of being controlled by society, it controls it and remains immutable.
Second, although in its details and final form the Sharia was worked out by a group of specialists over a period of more than a century, and although its raw materials and even its most important theoretical concepts basically came from the pre-Islamic practices in the Umayyad and Abbasid periods,13 it is nevertheless highly idealistic. Especially in the case of Shiism, it grew not from the practical realities of the-world-as-it-is, but from a set of preordained religious dicta; the mojtahids who quarrelled, sometimes for years, over even minor issues of the Sharia, were concerned not with whether the point in question was applicable or practical, but whether it reflected the true Intention or Command of God, and it is revealing to notice that the technical term for the Sharia, namely Fiqh, means “understanding” or “comprehension.”
Third, although idealistic, the Sharia in its formative period enjoyed a degree of vitality and, taken as a whole, reflected and met the social and economic conditions of the time (Schacht, 1955b: 77). But after the “closing of the doors of ijtehad” in the tenth century it became stagnant and grew more and more out of touch with the developments of the state and society.
Occasionally new texts were published but they rarely went beyond simple reorganization and interpretation of the ideas of the founding fathers. Yet detached and rigid as it increasingly became, it never ceased to be uniformly applied throughout the Islamic world, from Mauritania to China and from Turkey to Indonesia, irrespective of the different socio-political conditions of these societies. The situation was even worse in the Shii Fiqh. Although the Shii mojtahids did not accept the idea of closing of the doors of ijtehad, they always used this self-proclaimed right as a means of wielding political power – a privilege of which their Sunni colleagues were deprived.14 Their Fiqh unlike the Sunni Sharia found very little, if any, chance for application until the sixteenth century, and after that it followed exactly the same course which had been followed in the Sunni world.Fourth, to all these we must add the fact that the Sharia as it has developed is the most “totalitarian” system of religious law in the sense that it covers every aspect of life. “Every human act... – from murder to social etiquette, from incest to the rules of religious retreat – is thus evaluated, and may be classified,” according to the widely accepted five-fold classification mentioned above, “and it is only – in theory at least – in the category of things left legally indifferent by the Almighty that there is any essential place for human regulations” (Anderson, 1957: 14).
Yet exhaustive as it seems in its scope, the content of the Sharia is more encapsulating than comprehensive. Concentrating on the relation of man to God, or the Ibadat, the Sharia fell short on many mundane matters in the area of Moamalat which were of vital interest even to the Medieval world. For example, the early mojtahids rarely touched the issues of constitutional law and the theories of caliphate and imamate which developed later were retrospective abstractions dealing more with the attributes and qualifications of the rulers than the questions of the nature of political power and its distribution.
Similarly, very little attention was paid to the fields of public and procedural law. “Criminal law, for example, did not exist in the technical sense of a comprehensive scheme of offences against the public order. Homicide... was treated as a private and not as a public offence. For the rest, the doctrine was largely confined to the exposition of six specific offences – illicit sexual relations, slanderous allegations of unchastity, theft, wine-drinking, armed robbery and apostasy – in which the notion of man's obligations toward God predominated and which, because God himself had �defined’ the punishment therefore, were known as the hadd... offences” (Coulson, 1964: 124; Schacht, 1964: 175–187). The same could be said of fiscal matters, contracts and obligations. In short, except for the family, inheritance and pious endowments (vaqf), on which the Sharia had the “firmest hold” (Schacht, 1955b: 77), in other areas such as criminal law, contracts and obligations, constitutional law, fiscal matters, etc., it had a very limited reign.15