By “dialectic of history and future” I mean that Sharia is an evolving living body of principles and institutions from its historical origins and development to its future potential to evolve in response to changing social and political circumstances of Islamic communities. My working definition of “the evolution of Sharia” is based on book, The Second Message of Islam by Ustadh Mahmoud Mohamed Taha, who maintained that historical Sharia is not the whole of Islam but merely the level of Sharia that suited the previous stage of human development. In response, he proposed shifting certain aspects of Sharia from their foundation in one class of texts of the Quran and Sunnah and place them on a different class of texts of the Quran and Sunnah.
The limitations of reform under traditional Usul al-Fiqh would be removed by reviving the earlier texts, which were never made legally binding in the past, and making them the basis of modern Sharia. Explicit and definite texts of the Quran and Sunnah that were the basis of discrimination against women and non-Muslims under historical Sharia are set aside as having served their transitional purpose. Other texts of the Quran and Sunnah are made legally binding to achieve full equality for all human beings, regardless of sex or religion. This shift is made possible through examining the rationale of abrogation (naskh) in the sense of selecting which texts of the Quran and Sunnah are to be made legally binding, as opposed to being merely morally persuasive.
Mahmoud Mohamed Taha, The Second Message of Islam, translated by Abdullahi Ahmed An-Naim (Syracuse University Press, 1987), pp. 23-24.
Starting with the premise explained and substantiated in this book, The Second Message of Islam, namely, that historical Sharia is not the whole of Islam but merely the level of Sharia that suited the previous stage of human development, Ustadh Mahmoud proposed to shift certain aspects of Sharia from their foundation in one class of texts of the Quran and Sunnah and place them on a different class of texts of the Quran and Sunnah. The limitations of reform noted above are removed by reviving the earlier texts, which were never made legally binding in the past, and making them the basis of modern Sharia. Explicit and definite texts of the Quran and Sunnah that were the basis of discrimination against women and non-Muslims under historical Sharia are set aside as having served their transitional purpose. Other texts of the Quran and Sunnah are made legally binding in order to achieve full equality for all human beings, regardless of sex or religion. This shift is (p. 24) made possible through examining the rationale of abrogation (naskh) in the sense of selecting which texts of the Quran and Sunnah are to be made legally binding, as opposed to being merely morally persuasive. [p. 39] Muslims maintain that the Islamic Sharia is perfect. This is true, but its perfection consists precisely in the ability to evolve, assimilate the capabilities of individuals and society, and guide such life up the ladder of continuous development, however active, vital, and renewed such social and individual life may be. When Muslims hear us speak of the evolution of Sharia, they say: “Islamic Sharia is perfect and does not therefore need to evolve and develop, as only the imperfect evolves and develops.” This position is the exact opposite of the truth. It is in fact those who are perfect who evolve and develop. Perfect men aspire to God’s description of Himself when He said: “Every day He [reveals Himself) in a fresh state. (55:29) They renew their intellectual and emotional life continuously. The tiny grass that grows at the foot of the mountain, flourishes, blossoms, sheds its seeds on the soil, then withers and is blown away by the wind is more perfect than the mountain which towers over it and endures the wildest storms. The tiny grass is part of an advanced stage of evolution, namely, that of life and death. The mountain has not yet been honored by being part of this process, although it aspires and longs for it. In the same way, the perfection of the Islamic Sharia lies in the fact that it is a living body, growing and developing with the living, growing, and developing life, guiding its steps, and charting its way toward God, stage by stage. Life continues on its way back to God, inevitably: “O man [p. 40] you are toiling along towards your Lord, and you shall meet Him.” (84:6) This meeting shall take place through the grace of God and the guidance of the Islamic Sharia in its three levels: Sharia, tarigah, and hagigah.
The evolution of Sharia, as mentioned above, is simply its evoluting from one text [of the Quran] to the other, from a text that is suitable to govern in the seventh century, and was so implemented, to a text which was, at the time, too advanced and therefore had to be abrogated. God said: “Whenever We abrogate any verse or postpone it,9 We bring a better verse, or a similar one. Do you not know that God is capable of everything?” (Sura 2, verse106) The phrase, “When we abrogate any verse” means cancel or repeal it, and the phrase “or postpone it” means to delay its action or implementation. The phrase “We bring a better verse” means bringing one that is closer to the understanding of the people and more relevant to their time than the postponed verse; “or a similar one” means reinstating the same verse when the time comes for its implementation. It is as if the abrogated verses were abrogated in accordance with the needs of the time and postponed until their appropriate time comes. When it does, they become the suitable and operative verses and are implemented, while those that were implemented in the seventh century become abrogated. The dictates of the time in the seventh century were for the subsidiary verses. For the twentieth century they are the primary verses. This is the rationale of abrogation. . .. [In other words, it was not intended to be] final and conclusive abrogation, but merely postponement until the appropriate time.
In this evolution we consider the rationale beyond the text. If a subsidiary verse, which used to overrule the primary verse in the seventh century, has served its purpose completely and become irrelevant for the new era, the twentieth century, then the time has come for it to be abrogated and for the primary verse to be enacted. In this way, the [p. 41] primary verse has its turn as the operative text in the twentieth century and becomes the basis of the new legislation. This is what the evolution of Sharia means. It is shifting from one text that served its purpose and was exhausted to another text that was postponed until its time came. Evolution is therefore neither unrealistic or premature, nor expressing a naïve and immature opinion. It is merely shifting from one text to the other.”
Although the First Message was not democratic, it approached democracy at a time when society as a whole was not yet ready for true democracy. Again, the First Message, while not socialist, was close to socialism at a time when society was not ready for real scientific socialism. Since humanity has evolved over fourteen centuries [since the time of the First Message] towards maturity, becoming, through the grace of God, materially and intellectually capable of implementing both socialism and democracy, Islam must be propagated in these terms. This signifies a development from the more primitive base of the Sharia of the First Message to a less primitive level, somewhat approaching the peak, while the peak remains, as always, in the realm of ultimate individuality. The beginning of the new Islamic base is the threshold of socialism, by prohibiting the ownership of the means and sources of production by a single individual or a few persons in association. This opens the gates of Islamic legislation into socialism. The beginning of the new Islamic base is the threshold of democracy. Here the right to vote is secured to every citizen of a certain age, male or female, as is the right to nominate oneself for election.
This opens the gates of Islamic legislation into democracy. This process is called tatwir al-tashri’ [evolution of the law], which signifies development from a subsidiary Quranic text to an original text. It is a shift from one text of the Quran to another. There is an area of overlap between the First Message and the Second Message, such as the Shariaht al-‘ibadat[worship practices], in which there is no evolution except where it opens into the realm of Sharia fardiyah, law of the individual. Each individual may grow through the grace of God and by perfecting imitation [of the Prophet] until he finally achieves his own individuality which distinguishes him from other members of the human herd. Sharia fardiyah, individual law rather than community law, is the original principle of Islam, just as the individual rather than the community is Islam’s original goal. But people have grown so accustomed to The Second of Islam that they become bewildered and frightened when one speaks to them about Sharia fardiyah. Moreover, Sharia fardiyah addresses a stage of maturity and responsibility, whereas most people remain irresponsible children who wish others to shoulder their responsibilities.
Generally, when responsibility is assumed, it is done as part of the herd, and along the well-trodden path. The self-evades responsibility and to avoids starting out on an unknown path. The threshold of the Second Message is the First Message, except those aspects of its Sharia that are subject to evolution. There is no evolution of al-‘ibadat [worship practices], except the zakah, alms in accordance with the specified proportions, which was previously made one of the pillars of the faith only because the people were incapable of anything better. Otherwise, the real pillar of the faith is zakah according to the standard of the Prophet because it is an original principle based on firm primary sources of religion. There will be evolution, however, in the realm of al-mu’amalat [the rules of social transactions]. These include the fundamental individual rights, and economic and political structures. All matters associated with social change must evolve with society and exhibit the necessary vitality for growth and renewal. The original principles of the Second Message are vitality, development, and renewal. The diligent worshipper [al-salik] who is evolving with the Second Message must seek to renew his intellectual and emotional life at every moment of the day and night. His ideal is God, who describes Himself as “Every day He [reveals Himself] in a fresh state” (55:29), and yet “nothing distracts Him from anything else.” [END OF QUOTATION]
The main propositions I seek to clarify and develop in this website from an Islamic perspective can be summarized as follows:
1. It is impossible to identify specific and definitive norms of Sharia for any legal system to enforce as the formal law of the state.
2. An Islamic state is a logical and normative impossibility because whatever the state does is based on human understanding and can never be religious.
3. Islamic family law (shariat al-ahwal al-shakhsiya) is in fact secular law of the state and not the immutable laws of Islam.
4. Hudud punishments enforced by the state are in fact a myth created by post-colonial Islamist movements to delude Muslim communities to submit to false claims of an Islamic state to enforce Sharia.
5. Islamic norms and culture as internalized by individual Muslims will always influence their moral choices and political behavior everywhere.
6. As affirmed by many verses of the Quran, permanent and profound differences and disagreements are constant features of human beings and their communities, past, present and future.
7. The Golden Rule (al-mo‘awada, i.e., reciprocity) requires all human beings to treat each other as they would want to be treated. To have the realistic expectation to be treated with respect and compassion by others, Muslims must strive their best to uphold this mandate among themselves and in collaboration with others.
I hold these propositions to be valid and necessary on my own personal responsibility for which I am accountable as a Muslim. From this perspective, I expect to be challenged and corrected on any or all the above propositions and their implications. I will elaborate on my position in this website by adding commentary, excerpting from my books and articles as well as examining relevant +historical and contemporary scholarship about Islam, Sharia and Fiqh.
The Foundational Reality of Disagreement and its Consequences
Difference and disagreement are not only permanent facts of the human experience, but the deliberate nature of Divine design. Since the universal reality of difference and disagreement are foundational facts of life, human beings must organize all aspects of human experience on the acceptance, and not merely toleration, of diversity of views, interests, concerns, and choices. For all Muslims such acceptance is a fundamental devotional obligation by virtue of numerous verses of the Quran.
To confirm this point and prepare for further analysis I will develop later, I would quote, for example, verse 48 of Surat al-Ma’ida and verses 118, 119 of Surat Hud; herein 5: 48; and 11:118,119):
﴿وَأَنزَلنا إِلَيكَ الكِتابَ بِالحَقِّ مُصَدِّقًا لِما بَينَ يَدَيهِ مِنَ الكِتابِ وَمُهَيمِنًا عَلَيهِ فَاحكُم بَينَهُم بِما أَنزَلَ اللَّهُ وَلا تَتَّبِع أَهواءَهُم عَمّا جاءَكَ مِنَ الحَقِّ لِكُلٍّ جَعَلنا مِنكُم شِرعَةً وَمِنهاجًا وَلَو شاءَ اللَّهُ لَجَعَلَكُم أُمَّةً واحِدَةً وَلكِن لِيَبلُوَكُم في ما آتاكُم فَاستَبِقُوا الخَيراتِ إِلَى اللَّهِ مَرجِعُكُم جَميعًا فَيُنَبِّئُكُم بِما كُنتُم فيهِ تَختَلِفونَ﴾ [Al-Mā’idah: 48]
وَلَوْ شَآءَ رَبُّكَ لَجَعَلَ ٱلنَّاسَ أُمَّةًۭ وَٰحِدَةًۭ ۖ وَلَا يَزَالُونَ مُخْتَلِفِينَ ١١٨ إِلَّا مَن رَّحِمَ رَبُّكَ ۚ وَلِذَٰلِكَ خَلَقَهُمْ ۗ وَتَمَّتْ كَلِمَةُ رَبِّكَ لَأَمْلَأَنَّ جَهَنَّمَ مِنَ ٱلْجِنَّةِ وَٱلنَّاسِ أَجْمَعِينَ ١١٩
This point is also reconfirmed by verse 7 of Surat Aal-Imran (i.e. 3:7) which states that, as I understand it, affirms that only God knows the accurate interpretation of the Quran, but I must also concede that my understanding of verse 3:7 can also be contested.
The underlying point is that there is no meaning of the Quran or Hadith that is accessible to human beings which is independent of the agency of the human subject. The possibility of comprehension itself is limited a human understanding of the text in question, whether Quran, Hadith, or any other text for that matter.
That is not to say that all the sources of Islam are permanently and inherently incoherent or incomprehensible, because the historical evidence overwhelmingly supports the reality that Muslims were indeed able to interpret and practice the normative and practical implications of their faith. In fact, Muslims have developed and articulated highly sophisticated philosophical and legal concepts and doctrines in every field of human endeavor. What I am affirming is that whatever some human being believes a text of the Quran or Hadith to mean, other human beings can legitimately dispute as the product of human understanding of the text rather than the text itself.
Applied to our subject in this website, any Muslim or group of Muslims can accept a certain meaning of a text of Quran or Hadith and act accordingly, but that person or group are not entitled to claim that what they accept is the only possible meaning of the text in question. In other words, everything Muslims know about the sources of Islam and their meaning has always been and can only be the product of human understanding and interpretation. Every understanding of the verses quoted above or any other verse of the Quran or report of Hadith by any human being is never divine, though I do believe that the text of the verse or Hadith are themselves divine revelation. Whether any human being accepts or rejects the validity of any understanding or interpretations of any verse or Hadith, that will never be more than the view of one human being as opposed to the view of another human being who rejects or accept the same text of Quran or Hadith. It is then up to whoever encounters one understanding of any verse or Hadith to accept or oppose that understanding, with each person being accountable for his or her view.
Contextual Meaning of the Quran and Contingent Authority of Hadith
The challenge for appreciating the relevance and authority of a presumably relevant verse to the argument in question is determined by the contextual nature of human comprehension of the meaning and implications of any text of the of the Quran or the contingent nature of Hadith. These two concepts are embedded in verse :48, quoted above, in the progressive content of Divine Revelation for human persons and communities over time, hence to each their own normative system (Shiratun- this term is from the same root in Arabic as Sharia) and methodology (minhaja) for mapping or monitoring their individual and collective normative system. Yet the equal human dignity for persons and communities is confirmed by the progressive route of their normative systems. Otherwise, there would be no point for the Quran to instruct the Prophet of Islam to respect the reality of normative diversity among different communities of believers in a variety of religious beliefs or cultures.
For Hadith, the authority of a norm based on what the Prophet said or did depends on the established authenticity of the text in question, namely, whether the Prophet said or did what is reported in isnadand in which precise formulation. Isnadrefers to the process of investigating the authenticity of reported Hadith texts down generations of “oral history,” and the credibility of various “reporters” along the chain of narration. Among present-day Sunni Muslims, for example, many authoritative Hadith are attributed to Aisha, the wife of the Prophet, or Abu Hurirah, one of the Companions of the Prophet. Imami Shia, in contrast, refuse to acknowledge the authenticity of any Hadith unless reported by their own Imams. In either doctrine, controversy continues among Muslims concerned with the norm in question about the standing of subsequent transmitters (reference page in this website where sources are discussed, and citations given).
Debates about the role of limitations on human comprehension continued to be frequent and inconclusive. Such debates also included the role of “asbab al-nuzul”, i.e., the cause or occasion for the revelation of the text, whether received in the form of Quran or Hadith. For Hadith, debates also included assessment of the impact of isnad on authenticity and authority of reports of text of Hadith. With the decline in the drive for exploration and innovation which propelled ijtihad(self- exertion) in the understanding of Islamic jurisprudence during the first three centuries of Islam, Muslims came to accept the formulations of Sharia principles by early generations as final and conclusive. This is what came to be known as the closing of the gate of ijtihad. In fact, there was neither a gate that can be closed nor did any human entity, group or an organization which had the authority to close it.
Whatever sense we see and accept or not depends on our individual understanding and life experience. There is always a variety of possible meanings for any part of the Quran, and the outcome always depends on our understanding and whether we are act or fail to act accordingly. Therefore, we are responsible and accountable for our understanding and behavior in our specific historical context, whether we see ourselves as Muslims or not. When we accept the understanding of another as binding on us, that acceptance becomes the basis of our accountability.
This perspective is the core and anchor of what I call “Islamic political theory,” and more generally everything about Islam, the Quran, Sunna of the Prophet. The underlying question is whatever the resolution of any problem I face is what I received from my parents or people I trust? If not, then what is the criteria or standard of Islamic validity I should apply?
History and Future of Sharia
The distinctive issue in the study of Sharia is the tension between Muslim’s belief in the “divinity” of Sharia and realities of secular experiences of present Islamic societies. Familiar themes in the comparative law field, like the structure of courts and their jurisdiction, legal profession and the relationship of legislation to judicial practice, are coherent when understood in the context of specific countries like Indonesia, Iran or Pakistan, as discussed below in chapters 24-26. From this perspective, such legal systems may be broadly identified as part of civil law or common law traditions. It is also true that there is an “Islamic dimension” that defies clear classification as either civil or common law systems. This section on Sharia seeks to clarify the nature of Sharia, and its relationship to modern legal systems.
Wael Hallaq, An Introduction to Islamic Law (Cambridge: Cambridge University Press, 2009), p. 35.
… the embryonic formation of the schools [of law, which established the parameters of fiqh] started sometime during the last decades of the seventh century, taking the form of study circles in which pious scholars debated religious issues and taught interested students. The knowledge and production of legal doctrine began in these circles – nowhere else. Legal authority, therefore, became epistemic (i.e., knowledge-based) rather than political, social or even religious. That epistemic authority is the defining feature of Islamic law [i.e. Sharia] need not be doubted, although piety and morality played important supporting roles. A masterly knowledge of the law was the sole criterion in deciding where legal authority resided; and it resided with the scholars, not with the political rulers or any other source.
If legal authority resided with scholars, not with the political rulers or any other source, what makes it “legal”. I suggest that moral, ethical, and social authority historically resided with scholars, but legal authority must have resided with political rulers if the judicial decisions or judgements were to be implemented or executed.
Sharia is the religious normative system of Islam as a whole, as distinguished from the legal system off any country or communities. The scope of Sharia for believers is comprehensive, from doctrine of beliefs and religious ritual practices like prayer and fasting, ethical principles of moral conduct in family, community and trade, to matters of etiquette and personal hygiene. It also includes matters of rights and obligations that can be seen as “legal” in nature, as explained later. In all its dimensions Sharia is religiously binding on Muslims, wherever they happen to live and regardless of whether state law seeks to enforce Sharia principles or not. However, the fact that it governs the totality of human existence for Muslims, in every aspect of individual and social life, does not mean Sharia is a comprehensive or systematic code or codes that provide accessible and uniform definitive answers to all legal issues facing modern societies.
At the same time, Sharia can be the source of authoritative answers to many current legal issues, in addition to being the basis of the socialization of children, framework of social and political institutions and personal motivation for Muslims everywhere. As we will see later, Sharia formulations include many clear and precise legal principles that can be applied through modern legal systems. In fact, certain principles of Sharia are currently incorporated into the legal systems of Muslim-majority countries, especially in the family law field. Since we are focusing here on such “legal” dimensions of Sharia, we will use the terms Sharia and Sharia interchangeably to indicate this legal emphasis while reminding readers of the religious nature of this normative system. This usage, however, does not mean that most of Sharia is legal in subject matter, or that any aspect of Sharia as such is state law anywhere.
Some scholars make a distinction between Sharia and fiqh, in which Sharia is taken to be the divine, and fiqh is the human understanding of God’s law. We prefer to use the term Sharia for two reasons. First, all human comprehension of Sharia is fiqh (the term “fiqh” in Arabic means “understanding”). As explained in chapter 21, fiqh is the only way of accessing a divine meaning out of the Quran and Sunna It is impossible to identify a principle of Sharia which is not fiqh. Second, the term Sharia is the one commonly used by the vast majority of Muslims in daily life as well as in public discourse about the role of Islam in politics and law. Our preferred usage does not deny the transcendental dimension of Sharia for Muslims, but only to indicate the unavoidable role of interpretation as the human way of knowing Sharia.
The Sharia/fiqh distinction is sometimes presented as a way of facilitating popular acceptance of the outcome of the reform methodology of fiqh, like the status of women or freedom of religion, without appearing to challenge divine Sharia. However, since the vast majority of Muslims take fiqh to be synonymous with Sharia, distinguishing the two in reform discourse postpones the difficulty of popular acceptance, rather than resolving it. The difficulty facing Islamic reformers is popular resistance to the substance of the proposals, and not whether the traditional understanding of those aspects is called Sharia or fiqh. For instance, this distinction is unlikely to make a difference to Muslims who believe the death penalty is the appropriate punishment for apostasy (conversion away from Islam). Reformers cannot avoid confronting that belief by calling it a principle of fiqh rather than Sharia.
Regarding the “legal” nature of Sharia, it is helpful to note Professor Wilfred Caldwell Smith’s conclusions on the nature and history of Sharia in light of his close examination of many original sources from the first four centuries of Islamic theology (Kallam). His conclusions can be quoted as follows:
The evidence that I have collected strongly suggests that a Sharia is not a major concept for classical Islamic thinkers….
My first observation is that to a considerable degree these thinkers do not use a concept Sharia at all. In the later centuries, they use the idea in passing, incidentally; or use other forms from the root shr. Yet I see no escaping from the main conclusion: that the Sharia is a concept with which Islamic thinkers in the formative and classical periods were not concerned.
I do not mean that the idea does not occur…. The word Sharia occurs, but it is not an important concept in the sense that writers are found discussing it or analyzing it, or are concerned to get their readers to give attention to it. It is not treated as one of the Islamic issues…..… I begin the enumeration with number 2, counting as number 1 the negativeconclusion, already set forth, that the Sharia was not a central concept.
I (Professor Smith) suggest, then: …
- That Shari means, primarily, “moral”, not “legal.” Similarly taklif (accountability) means moral responsibility, not legal responsibility. The implication is that the concept of law is not prior to the concept of responsibility, but vice versa. …
- That what has lately… been conceived as obedience to, or transgression of, a law, was conceived and felt by the Muslim writers under survey as obedience or disobedience to God. [i.e. the early emphasis among Muslims was a relationship to God, not to “law”]… At least, it would not be impossible to contend that, historically, the rise of a concept law (sic) as religiously absolute may be correlated with a decline, if not of Islamic civilization, anyway of the vigor of its intellectual and religious life…
- That for kalam writers (Muslim theologians), during the centuries surveyed, the (or a) law does not determine right and wrong. Only God can, and only God does, do that.
- … the central Islamic fact religiously has been the idea of moral responsibility. The law is the result of that responsibility, not its cause; the sociological or mundane product, not its cosmic basis (emphasis added). END OF QUOTATION
Origins and Development of Sharia
The fact that Islam is believed by Muslims to be divinely revealed does not mean that history and context are irrelevant to their understanding of Sharia, including what is now called legal norms. The process of revelation and interpretation unfolded in specific contexts of time and place and in response to human experience and conditions. However, reference should be made here to profound contestations of Islamic history and the methodological and epistemological issues of the historicity of sacred history versus scholarly study of religion. It is unavoidable that perceptions of any history would be more important for current debates about Islam and the state, politics and law than the “objective” version of that history as established among scholars of Islamic studies. Participants in those debates tend to invoke and rely on how they “remember” and retrieve the sacred history of their community and its relationship to other communities in framing questions and identifying “proof” of the validity of their positions. Still, it is important to seek relatively independent and non-partisan perceptions of the same historical events and personalities in attempting to mediate competing perspectives in current debates.
Another caveat to note here is that any narrative of history, whether partisan or not, will necessarily be selective because it cannot possibly present every conceivable event or relevant “fact”. Even if that is possible, the narrative would be incoherent unless related to or contrasted with other competing narratives. For instance, the most significant, and therefore most contested, period of Islamic history is that between the migration of the Prophet and his Companions (early followers) from Mecca to Medina in 622 to the assassination of Ali, the fourth Caliph in 661 and establishment of the Umayyad dynasty (661-750) which ruled from Damascus. This founding period also includes the first civil wars during the Medina Caliphate and the conquests of Syria, Iraq and Egypt. The early Abbasid dynasty that overthrew the Umayyad and ruled from Baghdad, Iraq, is particularly important for the development of Sharia, as outlined below. In trying to understand what happened during those critical periods and what that meant then, and what it means now, one needs to navigate several competing political, social/religious and legal narratives in the broader context of pre-Islamic and early Islamic state formation and socio-economic conditions of the time and region in general.
The Quran was collected into a written text (al-Mushaf) within two decades of the death of the Prophet in 632. The Sunna, also known as Hadith, is the exemplary model action of the Prophet, as reported as oral history before being recorded several generations later. The term Hadith literally means “speech”, but in this context it refers to reports of what the Prophet is believed to have said and did, approved or disapproved, which is the “Sunna” or living example of the Prophet. In other words, Hadith are the vehicle through which we can access the Prophetic tradition:
Written collections of Hadith date from the late second and early third centuries after Muhammad’s migration from Mecca to Medina in 622 CE. The Hadith are the only vehicle through which, according to the vast majority of Muslims, we can access the Prophetic Sunna: that which Muhammad said and did, and of which he approved or disapproved. As such, these stories have been instrumental in shaping the development of Islam as we know it in its various forms. (2)
Other so-called “sources”, which are actually methodologies rather than substantive sources, of Sharia among Sunni Muslims include consensus (ijma), reasoning by analogy (qiyas), and relatively independent juridical reasoning (ijtihad) when there is no applicable text of Quran or Sunna. The early generations of Muslims are believed to have applied those techniques to interpreting and supplementing the original sources (Quran and Sunna) in regulating their individual and communal lives. Some general principles began to emerge through the growing influence of the leading scholars at that stage which constituted early models of the schools of Islamic jurisprudence (madhabib, singular madhhab) that matured during subsequent stages of Islamic legal history. These terms will be clarified further later.
The more systemic development of Sharia as a coherent system began during the early Abbasid era (after 750 CE), as demonstrated by the emergence of the major schools of jurisprudence, the systematic collection of Sunna as the second and more detailed source of Sharia, and the development of the methodology, which came to be known as the science of the foundations or principles of human understanding of divine sources (Usul al-Fiqh). These developments took place about 150 to 250 years after the Prophet’s death, which means that the first generations of Muslims did not know and apply Sharia in the sense this concept came to be accepted by the majority of Muslims for the last one thousand years. The early Abbasid era witnessed the emergence of the main schools of Islamic jurisprudence, including the main schools which survive to the present day that are attributed to Abu Hanifa (died 767); Malik (died 795); al-Shafi`i (died 820); Ibn Hanbal (died 855), and Ja`far al-Sadiq (died 765), the founder of the main school of Shi`a jurisprudence. That period also witnessed the emergence of authoritative compilations of Sunna (Hadith), like those attributed to al-Bukhari (died 870) and Muslim (died 875) on the Sunni side, and al-Kulayni (died 941) and Ibn Babawayh (died 991) for the Shia.
What came to be known among Muslims as Sharia was therefore the product of a very slow, gradual and spontaneous process of interpretation of the Quran, and collection, verification and interpretation of Sunna during the first three centuries of Islam (the seventh to the ninth centuries CE). That process took place among scholars and jurists who developed their own methodology for the classification of sources, derivation of specific rules from general principles, and so forth. Modern scholars debate whether, or to what degree, was the early formative process based on and responding to the concrete needs of daily practice in the communities or a more speculative development of theoretical principles to their logical conclusions. In either case, it is clear that the framework and main principles of Sharia were developed into an ideal normative system by scholars who were clearly independent of the state and its institutions. Sharia is said to have evolved as ‘jurists law’ in the sense that the founding jurists proclaimed the norms and institutions of Sharia as they believed them to be stipulated by the Quran and Sunna, and not as judicial precedents in actual cases as happened some four to five centuries later in the development of English Common Law.
As to be expected, there was much disagreement and disputation among those early scholars about the meaning and significance of different aspects of the sources with which they were working. Moreover, although those founding scholars are generally accepted to have been acting independently from the political authorities of the time, their work could not have been in isolation from the prevailing conditions of their communities, in local as well as broader regional contexts. Those factors must have also contributed to disagreements among the jurists, and sometimes to differences in the views expressed by the same jurist from one time to another, as is reported of the changes in the juridical opinions of al-Shafi` when he moved from Iraq to Egypt. Even after those disagreements eventually evolved into separate schools of Islamic jurisprudence (madhahib), differences of opinion persisted among scholars of the same schools, as well as between different schools.
One factor to note about the nature and development of Sharia is that the founding jurists followed an integrated approach to their subject as a total normative system that included doctrinal or dogma matters, ritual practices, ethical norms as well as legal issues. The original manuscripts compiled by the early jurists out of the oral tradition of their master scholars would normally begin with issues of confession of the faith, various ritual practices, rules of jihad and conduct of war, treatment of heretics and apostates, justice and fairness in social and commercial dealings, and so forth. That method of organizing original manuscripts and subsequent commentaries was familiar and logical for the early Muslim scholars and jurists, judges and practitioners of subsequent generations who were trained in the specialized colleges (madrassa). However, as those foundational sources are inaccessible to modern lawyers who have to go through the whole text to discover relevant legal principles and rules, those manuscripts are now “translated” through modern European concepts and terminology in order to reproduce the material into modern-style legal textbooks.
 Wilfred Candwell Smith, The Concept of Sharia Among Some Mutakallimun [Theologians], in Arab and Islamic Studies In Honor of Hamilton A. R. Gibb George Makdisi ed., 1965), pp. 581, 581–602
 Aisha Y. Musa, Hadith as Scripture: Discussions on the Authority of Prophetic Traditions in Islam (2008), p. 1.