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Shari`ah and the Emergence of Principles from Cases

Islamic ethics, mediated through God's will, is an integral part of Islamic law: theShari`ah. TheShari`ah is the divinely ordained blueprint for human conduct, which was inherently and essentially religious. It enjoys comprehensive scope, for it encompasses judgments of public interest and equity which link the overall prosperity of the community in this life and the next. The end of humanity is happiness, and this is attained fully through the rewards of God on the Day of Judgment for everything that humans do to improve the quality of spiritual and moral and material life of humanity.

Islamic jurisprudence (fiqh) was developed to determine normative Islamic conduct as detailed in theShari`ah. The legal precedents and principles provided by the Qur`an and Sunna were used to develop an elaborate system of rules of jurisprudence. By the middle of the eighth century, Islamic jurists had developed and laid down a legal theory to allow a judge or a mufti to find out in all circumstances what was the legal and moral action. The two sources for deriving authoritative guidance were the Qur`an, the basic scripture of Islam, and the Sunna, the normative directives deduced from the Prophet Muhammad's own actions. Two further resources in Sunni law were provided by the consensus (ijma`) of the scholars of legal tradition, and by a method of analogical deduction (qiyas). Sunni jurists used qiyas to project a new ruling from a known ruling by using data furnished by the Qur`an and the Sunna. Al-Shafi`i (d. 820), a rigorous legal thinker, systematically and comprehensively linked these four sources to extend Shari`ah to cover all possible contingencies. In the Shi`ite jurisrudence, the methodology of their founding scholar and Imam Ja`far al-Sadiq (d. 748) allowed greater use of human reason in deriving the entire system of theShari`ah. Shi`ite jurists perfected the principle of the correlation between a judgment derived from reason and the one promulgated by the Qur'an and the Sunna, thereby giving human intuitive reason a substantial role in deriving legal decisions at all times. The `rule of correlation' (qa`idat al-mulazama) in Shi`ite law allows the jurists to infer the rulings in theShari`ah from the sole verdict of reason.

Legal scholars and other administrative officials exercising judicial powers usually issued judgments of public interest, convenience or similar considerations. Duties and right actions that were not mentioned in the Qur`an and Sunna were to be determined by the exercise of independent personal judgment of lawyers. As developed in the classical Islamic legal theory (usul al-fiqh), justifications in religious-moral action consists of a dialectic between judgments (fatawa) in specific cases and the generalizations derived from effective causes (`ilal) in cases in the light of which generalizations themselves are modified. Hence, to derive a specific ethical judgment - for example, that an act of distribution of surplus wealth among the needy is obligatory - is to confirm that it satisfies a certain description of the religious-moral concept of justice according to one's belief in social responsibility. Social responsibility as part of the generalizable command to be just could then be applied to other acts.

The criterion of social responsibility has made it necessary for Islamic jurists to nuance the stringency of moral rules. In contemporary Islamic thinking, human conduct is to be determined in terms of how much legal weight is borne by a particular rule, and whether a rule renders a given practice obligatory or merely recommended. For instance, bribery is ethically and legally forbidden. But if it becomes necessary under an unjust system in order to influence a decision leading to the betterment of the community, then Islamic law excuses it after a careful risk-benefit analysis. The underlying principle in deciding such cases was the proportion of benefit as compared to harm to the well being of the community. Some rules are categorical. For example, cases involving blatant moral-spiritual corruption are excluded from risk-benefit analysis. Another factor in determining the weight of a rule is whether it is to be enforced by penalties in the courts because it occurs in Muslim territory, or whether it is to be left to God's judgment in the hereafter because it occurs outside. Thus, for instance, transactions involving selling or buying of alcohol are regarded as illicit and punishable by theShari`ah courts when they occur within Muslim communities. However, when a Muslim businessman living in the West sometimes has to entertain his non-Muslim clients with alcohol while abstaining himself, his action, although sinful in itself, is regarded as being beyond the jurisdiction of the Shari`ah court.

Adapted from the book: "The Issue of Riba in Islamic Faith and Law" by: "Dr. Abdulaziz Sachedina"

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