An Introduction to Islamic Law Read Free

second with and in society. The law bids one to do the right thing, to the extent one can and wherever one happens to be. Thestate permits and forbids, and when it does the latter, it punishes severely upon infraction. It is not in the least interested in what individuals do outside of its spheres of influence and concern. Islamic law, on the other hand, has an all-encompassing interest in human acts. It organizes them into various categories ranging from the moral to the legal, without however making conscious distinctions between the moral and the legal. In fact, there are no words in Arabic, the lingua franca of the law, for the different notions of moral/legal.
    Thus, all acts are regarded as shari (i.e., subject to the regulation of the Sharia and therefore pronounced as law – “ law ” being a moral-legal commandment), and are categorized according to five norms. The first of these is the category of theforbidden, which entailspunishment upon commission of an act considered prohibited, whilst the second category, that of theobligatory, demands punishment upon omission of an act whose performance is regarded as necessary. Breach of contract and theft are infractions falling within the forbidden category, while prayer and payment of pecuniary debts are instances of the obligatory. Both categories require punishment upon non-compliance.
    The three remaining categories are therecommended,neutral anddisapproved. Helping the poor, consuming particular lawful foods andunilateral DIVORCE by the husband are, respectively, examples of these three categories. Performing the disapproved and not performing the recommended entail no punishment. But if a person is compliant, i.e., by performing a recommended act or refraining from a disapproved act, then he or she will be rewarded, although the reward is assumed to await one in the Hereafter. Since the category of the neutral prescribes neither permission nor prohibition, then neitherreward nor punishmentis involved.
    Thus, when the reasoning jurist encounters in the Quran and/or the Sunna a word that has an imperative or a prohibitive form (e.g., “Do” or “Do not do”), he must decide to which of the five legal norms they belong. When someone commands another, telling him “Do this,” should this command be regarded as falling only within the legal value of theobligatory, or could it also be within that of therecommended and/or theindifferent? The very definition of the imperative was itself open to wide disagreement. Some writers saw it aslanguage demanding of a person that he or she perform a certain act. Others insisted that an element of superiority on the part of the requestor over the person ordered must be present for the expression to qualify as imperative; i.e., an inferior’s language by which he commands his superior cannot be taken as imperative. Against the objection that one can command one’s equal, they argued that such a command, though it may take the imperative form, is merely a metaphoric usage and should not be treated as a command in the real sense.
    These varied interpretive positions do not seem to have offered a satisfactory or consistent solution to the problem of the imperative form. But by the eleventh century, some jurists had succeeded in resolving the issue. They pointed out that the significations of linguistic forms, including the imperative, must be understood in light of what has been established by convention, which is known by means of widespread usage of thelanguage. Through this pervasive usage, which cannot be falsified, we know from past authorities what the convention is with regard to the meaning of a word, or we know that the Lawgiver has accepted and confirmed the meaning as determined by that convention. Such reported usage also informs us of the existence of any consensus in the community on how these words are to be understood or, in the absence of a consensus, how they were understood by scholarly authorities whose