Islamic Law

Islamic law represents an immensely complex and rich system of law, which has spread throughout the world. The wide spread of Islam has meant that many legal systems have either incorporated some elements of Islamic law, which govern the Muslim citizens of these countries — as in India or more recently South Africa — or are to a large extent completely based on classical Islamic law — as in Saudi Arabia.

In an introductory subject like this one, we cannot hope to do complete justice to the richness and complexity of Islamic law. Rather, we would like to give you a basis from which to explore Islamic law further by concentrating on the various aspects of family law — gifts, wakfs and some other areas of law, such as criminal law, contract and tort — outlined in the syllabus. (You will see that we have also included a chapter on succession in this guide: this will only become part of the syllabus in 2001.) We would like to encourage you to tackle these foundations of Islamic law before endeavouring to examine the actual manifestations of Islamic law throughout the world.

The study of Islamic law will lead you into areas rarely visited by lawyers practising law in the United Kingdom. Whereas English law and the English legal system are for all practical purposes largely secular, Islamic law is firmly based on religion. The main sources of Islamic law, namely the Qur’an and the sunna, represent not only the foundations of Islamic law but embody the religion Islam as well. A separation between law and religion is therefore impossible in Islam. The religious basis and nature of Islamic law contrasts sharply with the ideals of secularism, both in the political and in the legal sphere, that have formed the basis of the English legal system in the modem age. There can be no doubt that many principles of English law are informed by Christian ethics and values, but unlike Islamic law these origins remain unacknowledged. In contrast, Islamic law cannot be understood, and cannot be studied, without an appreciation of the religious nature of its sources.

The study of Islamic law is therefore as much a study of religion as it is of law. This fact has implications for the way you will study Islamic law. Your studies on English law subjects will have introduced you to a range of sources. Your primary sources (i.e. reported case law and legislation) are normally supported by a wide range of secondary sources, including textbooks on individual subjects, collections of cases and material, and academic writing. The study of Islamic law, however, will lead you to sources that are quite different from case law and legislation. The primary sources of Islamic law, namely the Qur’an and sunna, cannot be compared to English case law or legislation, and it is therefore necessary to go beyond these primary sources and to consult other sources in order to understand how Islamic law emerged as a complete legal system from these religious origins.

In this course you will find therefore many references to books that are not strictly speaking ‘legal’ in nature but are concerned with the religious and historical aspects of Islam. You will find that it is essential to consult this background literature in order to understand and appreciate the basic principles of Islamic law. It is only once you have grasped the religious and historical foundations of Islam that you will be introduced to Islamic law proper. You will find that there are a number of textbooks on Islamic law and that the study of these principles is not all that different from the study of English law subjects. The only important difference is that the basic principles of Islamic law are not contained in case law but were developed by jurists. For the same reason legislation has no role to play in the emergence of these basic principles, though you will find that in many modem legal systems Islamic law has now been codified.

Your study of English law subjects is concerned with those laws that are applied by English courts. In contrast, the study of Islamic law is not based on the legal systems of individual countries but on basic principles of law developed by different schools of jurists over a long period of time. Some of these principles do form the basis of law in contemporary legal systems. For instance, both in India and Pakistan, Muslims are governed in most areas of family law by Islamic law. Your first step in the study of Islamic law is, however, the study of basic principles. From time to time we will guide you to individual countries so as to show you how these principles are applied in practice. Apart from these ‘excursions’ your encounter with Islamic law will not be concerned with contemporary legal systems or countries.

Aims and objectives of the course

The primary aim of this subject is to enable you to gain an overview of the vast and complex body of law commonly referred to as Islamic law.

This aim breaks down into specific objectives. By the time you have finished studying this subject and all the requisite reading, you should be able to:

• discuss the religious and historical basis of Islamic law
• outline the historical origins of Islamic law
• list and describe the main sources of Islamic law
• distinguish between the different sects and schools of Islamic law
• address areas of substantive Islamic law covered by the syllabus.