Is Islamic Family Law today really based on Shari'a?
Why it is important to know.
By Professor Abdullahi Ahmed An-Nai'm | Adapted for MPV by Tynan Power
Page: Preface| 1 | 2| 3| Notes
There is a lot of confusion about Shari'a and Islamic Family Law
What is Shari'a?
In Arabic, the word "shari'a" means "way" or "path". It is pronounced SHA-ree-ah. Shari'a is not a legal system. It is the overall way of life of Islam, as people understand it according to traditional, early interpretations. These early interpretations date from 700 to 900 CE, not long after the Prophet Muhammad(PBUH) died in 632 CE. Shari'a can evolve with Islamic societies to address their needs today.
Is Shari'a the "word of God"?
No. Shari'a was not revealed by Allah (God). It is based on the Qur'an and things the Prophet Muhammad(PBUH) said and did. Some of the sources of Shari'a, such as the Qur'an, are considered divine (or the "word of God") by Muslims. However, Shari'a was created by people who interpreted the Qur'an and the words and actions of the Prophet Muhammad(PBUH).
How did Shari'a come about?
To understand how Shari'a came about, it's important to understand a little bit about history. The Prophet Muhammad(PBUH) is believed to have been born in 570 CE. The Qur'an was revealed to Muhammad(PBUH) starting around 610 CE. Early Muslims followed the guidance of the Qur'an and the example of the Prophet Muhammad(PBUH). If they had a question, they could just ask him. After he died, people would ask their questions to the Prophet's family and friends—people who had a good idea of what he might have answered. The Prophet's friends and family would often tell stories about things the Prophet said or did, to help explain their answers. These stories came to be called Hadith.
It wasn't long before the Prophet's friends and family—and everyone who knew him—had died. People needed a way to figure out answers based on the Qur'an and Hadith. They started looking for patterns—"Did the Prophet(PBUH) always give the same kind of answer in similar situations?"—and principles—"Does the Qur'an tell us to be compassionate in many different situations?" These patterns and principles were put together into a system, along with specific rules in the Qur'an and Hadith, so people could figure out the answers to their questions. The people who put the traditional interpretations of Shari'a together also included some other things, like common practices from their time and cultural practices from their area of the world.
How was Shari'a used in the beginning?
As time went on, people had new questions about new problems. Religious scholars could use Shari'a to try to figure out what people should do. The goal was to try to get as close as possible to what the Prophet Muhammad(PBUH) would have said if he were still around. When early scholars interpreted Shari'a, it was called ijtihad.
Even very religious, well-educated scholars could make mistakes, though. Sometimes they disagreed with each other. That is why there are different Islamic schools of thought, called madhahib.
Is there a difference between Shari’a and Islamic Law?
Yes. Shari'a isn't a legal system. It includes Islamic principles to help guide people to new answers, and it includes common cultural practices that had to do with a specific time and place in history. Muslim rulers wanted a way to make Shari'a into law. To do that, they decided which rules needed to be laws, first. Then they used interpretations of Shari'a to show people that the new laws were Islamic. The result was what we call Islamic Law.
Islamic Law is always based on someone's interpretation of the Shari'a (which is an interpretation of the Qur'an and Hadith). Because it is a human interpretation, Islamic Law can mean different things in different places and at different times in history.
Today, interpretations of Shari'a are usually still limited to rules of interpretation (called usul al-fiqh) that were established by early scholars before 900 CE. More recently scholars have called for new ijtihad to meet the changing needs of modern Islamic societies.
Do Islamic countries today use Islamic Law?
Yes and no. Many Islamic countries believe they are following Shari'a in family law matters, but Shari'a is not a legal system. These countries actually use some kind of Islamic Law in family matters, and in all other matters apply European-style law left over from colonization. Iran, Saudi Arabia and a few other countries claim that most of their laws are based on Shari’a, but, in fact, most of those laws are secular. Even those laws which come from Islamic Law are different from place to place because they are interpreted by people—and those people are influenced by their culture.
Still, Islamic Law is followed by many Muslims as a way of life, not as law. In that case, it is a personal choice, based on the person's own understanding and beliefs.
Are all laws in Islamic countries based on Islamic Law?
No. Today, many Islamic countries use some version of Islamic Family Law (also called "IFL" in this article), even if they use secular laws for all other kinds of laws.
What is Islamic Family Law?
IFL is a type of law that covers topics like marriage, divorce, custody of children and the status of women. It also may be called Muslim Personal Status Law. The idea of IFL was introduced by European colonial powers. Colonial governments separated the field of family law from the rest of Shari’a, then enforced IFL as national law, according to European models of government. All other fields of law came under secular European-style laws.
Read on to learn what laws were like in Islamic countries before and during colonization.