Sharia originated in Arabia as a more developed system of feudal law and evolved as a confessional law, organically linked to the theology of Islam, infused with its religious-mystical concepts. Islam views legal provisions as a part of the unified divine law and order that governs the world. Sharia includes the normative part (fiqh), including legal norms that define the relationship of Muslims with Allah (ibadat). The importance of qualities such as patience, humility, and fulfillment is particularly emphasized in Sharia, with references to justice and mercy. Legal meaning was attributed to five types of actions: obligatory, recommended, permitted, prohibited, and reprehensible - all of which were connected to the life of a Muslim.
Sharia (from Arabic, "the path to follow") emerged as a result of the activities of the Prophet Muhammad, the messenger of Allah, and developed through his successors - the four Rightly Guided Caliphs: Abu Bakr, Umar, Ali, and other companions. By the 9th century, the process of establishing Sharia was nearing completion: its relative integrity emerged; however, the presence of many legal institutions, constructions, and concepts within Sharia hindered the reform of an internally coherent system and contributed to the emergence of various currents, schools, etc.
At the core of Sharia lay a confessional principle. A Muslim, being in any country, must adhere to Sharia, maintaining fidelity to Islam, which contributed to the transformation of Sharia into a peculiar "global system" of feudal law. This, in turn, led to differences in the interpretation of legal norms and the resolution of specific legal disputes, resulting in the case-by-case development of Sharia. If there was no answer to a dispute in the Quran and Sunnah, competent individuals would formulate new legal prescriptions based on the principles of ijtihad.
The most important source of Sharia, the foundation of Muslim law, the "root" of the legal system is the Quran - the Holy Book of Muslims. The Quran consists of parables, prayers, sermons, and behavioral prescriptions for Muslims attributed to Muhammad. In the mid-7th century, under Caliph Umar, the Quran was finalized. The Quran consists of 114 chapters (surahs) and 6219 verses (ayat). About 500 verses contain prescriptions for the behavior of a righteous Muslim, and only no more than 80 of them have a legal character. In the text of the Quran itself, this Holy Book of Muslims is referred to as a legal code. The legal norms of the Quran mainly concern marriage and family.
The second source of Sharia is the Sunnah (Sacred Tradition). It includes numerous accounts (hadiths) of the judgments and actions of Muhammad himself and consists of six canonical collections. It was believed that the hadiths that were narrated by the companions of Muhammad had legal force. Shiites recognized as valid only those hadiths that traced back to the last of the four Rightly Guided Caliphs - Ali (Muhammad's cousin and son-in-law) and his supporters. The Sunnah contains legal prescriptions on a wide range of issues related to marriage, inheritance, evidence, and judicial law, as well as rules concerning slaves.
The third source of Sharia was Ijma (from Arabic, "the general consensus of the Muslim community") - one of the most authoritative sources of Muslim law after the Quran and Sunnah. It was formed from the coinciding opinions on religious and legal issues expressed by the companions of Muhammad, and later from the statements of the most influential Muslim theologians-jurists (imams, muftis, mujtahids, ulama) or in the form of interpretations of the texts of the Quran and Sunnah, as well as through the formation of new norms that became mandatory for application in accordance with Muhammad's instructions: "If you do not know, ask those who know."
To Ijma as a source of law under Sharia was attached the fatwa - decisions and opinions of individual muftis on legal issues. In the 7th-9th centuries, the method of ijtihad allowed Muslim law to develop doctrinally in the works of the founders of legal schools (Hanafi, Maliki, Shafi'i, Hanbali) and their students. Later, in Central Asia, such a source was the conclusions of ulama. In the 10th century, an extensive systematization of legal material on Sharia was conducted, which contributed to its spread as a legal system. French scholar R. Charles highlights among the sources of Muslim law the tafsir (interpretation of the Quran), amal, kanun (acts issued by the state, monarch, high officials) in various forms (Turkish firman, beylical decree, Moroccan dahir). Kanuns were not to contradict Sharia.
A contentious source of Muslim law was qiyas (decision of legal issues by analogy). According to qiyas, a rule established in the Quran, Sunnah, or Ijma can be applied to a case if that rule does not directly apply to the specific case. Thus, qiyas is an analogy-based conclusion. Qiyas allowed for the rapid regulation of new social relations and contributed to the liberation of Sharia from dogmas of an ideological nature. The method of qiyas was deeply substantiated by Abu Hanifa and his followers - the Hanafis. Hanbalis and Shiites did not recognize qiyas as a source of law. The norms formulated by Muslim legal doctrine based on Ijma and qiyas constitute the second group of norms of Sharia (the first group consists of the norms of the Quran and Sunnah, which are fundamental).
Sharia, as an additional source of law, allowed for legal customs (urf), including local customs that were not directly included in Muslim law but did not contradict its principles and norms. Urf refers to customs that have developed in Arab society. Additionally, there were adats - legal customs of numerous conquered peoples, as well as those customs that were influenced by Sharia and Islam. Urf and adats were ordinary unwritten law.
As already noted, Muslim law is closely linked to Islam - it is its product. The developed Muslim legal doctrine based on the Quran and Sunnah is a source of law in the narrow sense of the word. On its basis, state norm-setting is developing (in Saudi Arabia, Oman, UAE). The Islamic system of social-normative regulation includes various types of rules of behavior (religious, moral, legal customs, rules of coexistence, politeness), i.e., it has a complex character. The modern Muslim legal doctrine does not equate Sharia with law (all norms of Sharia are called fiqh, while norms regulating interpersonal relations are called muamalat, as a legal category).
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Researchers of Muslim law distinguish two of its aspects: religious origin - divine nature and obligatory legal character - faith in the state. Muhammad Yusuf Musa points out: "Muslim law is religious in its origin, and the faithful regard it as divine revelation." According to Muslim political-legal theory, legislative power in a Muslim state belongs to mujtahids - authoritative experts in religious and legal matters, and the goal of the Islamic state (imamate) is to implement the prescriptions of Islam, affirm the "Muslim way of life," and "personal status." Another point to note is that Islam contains two groups of norms, one of which is endowed with "earthly sanctions," while the other has "otherworldly" ones. Religious norms are divided into cultic (ibadat) and non-ecclesiastical (muamalat and akhlaq).
As already mentioned, from the mid-7th century, the main schools of Muslim law began to form, marking a new stage in the development of Muslim legal science - the period of codification and the imams - founders of schools (madhhabs), which lasted about two and a half centuries and became an era of maturity, a "golden age" in the development of law based on the interpretation of the Quran and Sunnah. The schools developed their relatively autonomous system of legal norms based on the principle of freedom of ijtihad, referring to "necessity," "interests of the community, benefit," and ultimately altering the prescriptions of the Quran and Sunnah, and in the absence of them, creating new norms (rational sources). Within their doctrine, the majority of the norms of current Muslim law were created.
At the turn of the 10th and 11th centuries, ijtihad began to be viewed not as free discretion beyond the Quran and Sunnah, but merely as the possibility of choosing any of the legal schools of Muslim law, and the age of Ijtihad was replaced by the age of taqlid ("imitation," "tradition"), which meant that in the case of silence from the Quran and Sunnah, judges lost the right to make decisions based on their legal consciousness and had to adhere to one of the legal schools and consult with scholars-jurists of the relevant school, who interpreted the norms of the Quran and Sunnah in accordance with the interpretation, canonizing the conclusions of their legal school.
Thus, from the mid-11th century, the legal doctrine, as repeatedly noted by authoritative scholars, became the main source of Muslim law. For example, Egyptian scholar Shafiq Shihata wrote: "It is true that after the formation of various schools during the Abbasid era (750-1258 AD), judges began to refer to the works created by the faqihs." R. Charles notes that "historically, Muslim law does not originate directly from the Quran; it developed based on practices that often deviated from the sacred book, and the highest degree of development of sacred law coincides with the emergence of schools." Muslim jurists long hesitated to formulate generalized abstract rules and sought solutions to specific cases.
Significant changes in Muslim law occurred in the second half of the 19th century - in the legal systems of the most developed Muslim countries, fiqh ceded leading positions to legislation based on the reception of Western European models, as well as due to the issuance of the Matlalah - a kind of civil and civil procedural code of the Ottoman Empire, which was in effect in a number of Arab countries until the mid-20th century. This was a state law based on the works of the Hanafi school - its interpretation since the 16th century was official. Works by Ibn Nujaym and Abu Said al-Khadimi were used, among others. The Matlalah stipulated the mandatory force of this law for the law enforcement bodies of the empire, i.e., ijtihad on issues sufficiently regulated by law was prohibited.
In Egypt, there was an attempt to codify personal status law. The task was assigned to Muhammad Qadri Pasha. By 1875, a draft was prepared. It regulated all major issues of personal status. The draft was not enacted but was effectively applied in Egypt until the 1920s when family legislation emerged in the country. In Tunisia, a similar role was played by the doctrinal version of the family code compiled in 1899 by D. Santillana, while in Algeria, Muslim courts on family matters relied on a set of norms of the Maliki school prepared in 1916 by M. Moran. Currently, in Egypt, Algeria, Syria, Iraq, Lebanon, Tunisia, and other Arab countries, Muslim law regulates family relations through state-adopted normative acts that enshrine the relevant principles and norms of fiqh.
The same procedure regulates the regime of waqf property, contracts, and civil procedure.
Currently, in none of the Muslim countries is Muslim law the sole legal system, but it has not completely lost its positions in any of these countries either. The exception is the Republic of Turkey, where in the 1920s, Muslim law was replaced by bourgeois law, composed based on the borrowing of Western European models (in particular, Switzerland). Considering the influence of Muslim law on current legislation, the following classification of modern legal systems in Eastern countries can be proposed.
The first group consists of countries where Muslim law is applied as widely as possible - these are Saudi Arabia and Iran. It is leading in state, civil, family, and procedural law, which is reflected in the Constitution of Iran - the Basic Law of Hijaz of 1926 according to the Jafari school - after the overthrow of the Shah's regime, the proclamation of the Islamic Republic in connection with the Islamization of socio-political, economic, state, and personal life. In Saudi Arabia, legislation is based on the provisions of the Hanbali school. In Iran and Saudi Arabia, special institutions of Muslim control and inspection (hisbah) operate, which can impose Muslim punishments for deviations from trade, public order, and moral norms without trial or investigation.
The second group consists of countries where the principles and norms of Muslim law have a significant influence on the main legal acts of the state, on the structure and activities of their state mechanism. These include the Yemen Arab Republic, Libya, Pakistan, and Sudan. The military regime in Pakistan is explained by Islamic ideas, the dissolution of parliament, and its replacement with a Consultative Council. In Libya, in 1977, the Quran was declared the law of society, replacing the Constitution. The Constitution of the Yemen Arab Republic of 1970 and Pakistan's of 1923 enshrine provisions of Muslim law as the main source of legislation, while the Constitution of Sudan of 1985 considers Muslim law and customs as a source of legislation. In Pakistan, in 1977, the Council of Islamic Ideology was established to align legislation with the norms of Sharia. A law on the Islamization of the socio-political life of the country came into effect.
In 1975, in the Yemen Arab Republic, according to its Constitution, a scientific commission for the codification of Muslim law norms began to operate, and in 1983, new criminal legislation came into force, adopting the main institutions of Sharia. This group of countries also includes contemporary Afghanistan. The opposition in the territories controlled by the state is implementing Sharia norms, reviving its traditions that place women in a subordinate position.
A separate group can be distinguished for the legal systems of several countries in the Persian Gulf (UAE, Bahrain, Kuwait). Their main laws enshrine the state character of Islam and proclaim Muslim law as the main source of legislation. For example, the Criminal Code of Kuwait of 1960 and the Criminal Code of Bahrain of 1976 provide for criminal punishment for the consumption of alcoholic beverages and gambling. The legislation of the UAE regulates the legal status of imams and khatibs of mosques, while in Bahrain, laws on the organization of Hajj and the zakat fund (from Arabic - "purification") - a religious "purifying" tax are in effect. In Bahrain, it is established that in the case of silence of the law, courts apply general principles and specific norms of Sharia. In Eastern countries such as Brunei and Malaysia, norms of Muslim law apply to violators of religious duties.
A large group consists of the legal systems of most Arab countries (Egypt, Syria, Iraq, Lebanon, Morocco, etc.) and other countries in Africa and Asia, in whose constitutional law a special position of Islam and Muslim law is enshrined. For example, the head of state can only be a Muslim man. Muslim law is a source of legislation, especially family and inheritance law (the Ottoman family rights law of 1917, Egyptian family laws of 1920 and 1929, the Syrian personal status law of 1953, and similar laws of Jordan, Iraq, Morocco, Somalia, etc.). Laws (codes) on inheritance, wills, guardianship, custody, and restrictions on legal capacity and competence have been adopted in many countries of this group. This is very important, as the number of Muslims is about one billion adherents, Muslim communities exist in 120 countries, and in 30 countries, Islam is the state religion.
Another feature of Islam and Muslim law is the profound influence on society of legal culture, the level of legal consciousness, legal ideology, and psychology based on the postulates of Islam. This leads to legal motives, views, and ideas becoming sources for the formation of legal norms when understanding Sharia in a broad sense (fiqh). Muslim law is perceived as a universal religious-moral-legal doctrine (doctrine), a guide for evaluating any action from the perspectives of major legal schools that have doctrinally articulated the main legal principles and solutions to specific cases. The Muslim legal form has a tremendous impact on the broad masses of the people. It has particularly strengthened with the consolidation of Islam, expanding its influence on many states that emerged after the collapse of the colonial system. And currently, among all world religions, Islam is the one that most closely interacts with the state and law.