1. THE DEVELOPMENT OF THE SHARIA

Like all religions, Islam consists of two basic divisions: the Eateqadat (beliefs) and the Ahkam (rules and laws), called Sharia or Fiqh. The former constitute the “foundation”, and reign over the realm of human mind and cognition; but being abstract, they can be judged only in terms of their concrete, i.e., behavioural manifestations; hence the Ahkam, which constitute the operational definitions of the Eateqadat, and govern the realm of human conduct.

In the Ahkam, human conduct, and thus the Sharia itself, is classified on two bases. The first, an ordinal classification, has as its basis the “degree of desirability” of conduct, and hence the well-known quintuple: commanded, recommended, indifferent, reprobated and forbidden behaviour. The second typology, a nominal one, is based on the nature or the immediate objective of the conduct, and hence the dichotomy: the Ibadat (acts of worship) or “services to God”, on the one hand,² and the Moamalat (social actions) which relate to the rights of God's servants and cover a wide area from family to international relations, on the other.

As the direct and primary indicators of the beliefs, the Ibadat and their related rituals occupy a major part of a Moslem's life and thus a major part of the Sharia³; on these the rules were set and fully developed during the lifetime of the Prophet, and are applied uniformly – leaving aside some minor variations of later development between different schools of the Sharia – throughout the Islamic community.

The situation with the other part, the Moamalat, however, was very different. With the phenomenal expansion of Islam after the death of the Prophet it became increasingly obvious that the simple social rules which had developed in the tribal community of the Madinah under the Prophet (622-632) and his Four Caliphs (632-661) were far from sufficient to meet the exigencies of the vastly complex new territories.

From the beginning of the eighth century however, changes started to take place. Disturbed by the increasing erosion of the Islamic ethics under the Umayyads, a group of pious scholars began systematic work on the Islamic law, and this marked the beginning of a movement which lasted for about 150 years, having a lasting impact on the future of the Islamic civilization.

The main purpose of the movement was to fill the persistent gap which separated the community of the Prophet from the rest of the Islamic Empire and to end the wide divergences which existed in the administration of justice between, and even within, the cities. Under normal conditions, this would be done through either new legislation or “reception.” But given the basic premise of Islam which considered legislation an exclusively divine prerogative, the process, though inherently the same, took a different form and name – ijtehad which, broadly speaking, meant the process of extracting new laws from the Quran and other authentic sources.

But what constituted an “authentic source” and what was the nature and process of “extraction” were jurisprudential questions which were not easy to answer. On these there developed a number of schools,⁵ each with its own doctrine of jurisprudence and independent set of laws.

This conflict continued throughout the Islamic history, and ultimately ended in the victory of the conservative traditionalism. In the formative years of the Sharia, however, it reached its closest resolution in the work of the most renowned architect of the Islamic law, Mohammad ibn Idris ash-Shafei (767–820) whose work has rightly been termed as “the greatest individual achievement in the Islamic jurisprudence” (Schacht 1955a: 54).

Like others, Shafei's theory was also built on the four basic sources or osul (roots): the Quran, the Sunna, ijmaa (consensus) and qiyas (reasoning by analogy), all of which had been elaborated before him. But Shafei redefined these concepts and welded them into a more coherent scheme which both made “the essential thesis of the Traditionalists prevail in the Islamic law” and “brought systematic legal reasoning to its zenith.”⁶

After Shafei, interest in jurisprudence in general and in systematic reasoning in particular declined. In the unprecedented upsurge towards traditionalism which followed, there developed some highly conservative schools,⁷ and by the end of the ninth century all groundwork for a climax was laid: there was the Quran, whose authenticity had never been questioned; there was the Sunna, which had been critically sifted and compiled,⁸ and finally there was the Sharia which, through the efforts (ijtehad) of the Grand Mojtahids (doers of ijtehad) and their disciples, had been extracted in detail and to the fullest possible degree. Thus, by the beginning of the tenth century, a consensus developed among the scholars of all schools that the “doors of ijtehad were closed;” from that time on, all Moslems were to be the moqallids (followers) of the established schools, and the juristic activity of the scholars came to be confined to the explanation, application and, at the most, interpretation of the laws which had thus been formulated once and for all. In the subsequent centuries, although occasional objections to the closing of the doors of ijtehad were voiced and even though there developed several “personal” schools of law, the doctrine took a firm hold and the formative period of Sharia came to an end. Gradually the various minor schools which failed to attract many followers, became extinct⁹and from 1300 the schools of Hanafi, Maliki, Shafei and Hanbali became the only recognized ones of the orthodox Sunni world; they have remained so to the present day.