2. That which relates to spiritual development and reform. This includes those injunctions that deal with the virtues that a person must adorn himself with, like honesty, integrity, keeping promises, courage, altruism, humility, good conduct with others, pardon, and forgiveness. It also deals with the base qualities that a person must avoid at all costs, like lying, deception, breach of promise, cowardice, stinginess, selfishness, pride, bad conduct with others, as well as other qualities that degrade a person’s moral makeup. These issues are dealt with in the study of Islamic Ethics.
3. That which relates to the regulation of the outward behavior of people. This includes the injunctions pertaining to the conduct of the human being with respect to his Creator, like the injunctions relating to prayer, fasting, zakâh (alms tax), and the Hajj pilgrimage. It also includes the injunctions concerning the interactions between people, such as those pertaining to commerce, lease transactions, marriage, and divorce. Likewise, it includes the injunctions pertaining to the individual and the state in both war and peace, among other things. The science that specializes in these issues is known as fiqh (Islamic Law).
It is clear from this breakdown that the Sharî`ah is more general than fiqh and that fiqh is completely contained within the Sharî`ah.
The Subject Matter of Islamic Law
Islamic Law is a comprehensive system covering the human being’s relationship with his Creator, with his fellow human beings, and with his society and nation. It also deals with the relationship between nations in both war and peace. Most jurists divide the study of Islamic Law into two broad categories: Devotional Law and Transaction Law.This division is built upon the fact that the injunctions dealt with by each of these two categories have quite different and distinct primary objectives. Devotional Law deals with the injunctions that have as their primary objective attaining nearness to Allah, showing Him gratitude, and seeking eternal reward in the Hereafter. This includes prayer, fasting, Hajj, jihâd, zakâh, and the fulfillment of covenants. Transaction Law, on the other hand, deals with realizing worldly benefits and regulating human activity, both on the individual and societal level. This covers many branches of law, including Commercial Law and Personal Law.
Devotional Law also differs from Transaction Law in that Devotional Law is generally beyond the scope of human reason. There is no way for man to understand the ultimate objectives behind the injunctions except that they constitute the worship of Allah. As for Transaction Law, its injunctions are generally understandable, and human reason is often able to ascertain the intent behind them. Because of this, people who lived in times when there was no divine guidance were still able to use their faculties of reason to develop legislation. When Islam came, it reaffirmed more than a few of these laws that they used to govern themselves with.
Scholars of Islamic Law do not take the distinction between these different branches of law very far – in contrast to scholars of secular law – because, in their view, such distinctions do not yield any real benefit. In Islamic Law, there are no procedural differences for establishing different kinds of legal rights. There is practically one judicial procedure for all. The judge passes judgment in every case brought before the court, without any distinction being made between property matters – for instance – and anything else.
In spite of this, we find that Islamic Law comprehends all branches of modern Law, general and specific. It investigates matters of International Law when dealing with issues relating to war, its methods, purposes, and results, and when dealing with issues pertaining to the relationship between the Islamic state and others. Some of these questions can be found collected under the heading of “Campaigns and Military Expeditions”. All the books of Islamic Law, irrespective of the school of thought they were written for, give these issues a thorough treatment. Some jurists also prepared specialized works on this subject, most notably the works of Muhammad b. al-Hasan al-Shaybânî.
The Islamic jurists, in works that range from concise to comprehensive, have investigated all four forms of modern Law that deal with internal affairs – Constitutional Law, Administrative Law, Commercial Law, and Criminal Law.
There are chapters in the Islamic Law books devoted to Criminal Law. They come under the heading of “Crime, Prescribed Punishments, and Discretionary Punishments.”
The Islamic jurists investigated Fiscal Law in various places in their general legal works, under such headings as “The Zakâh Tax”, “Tariffs”, “Land Tax”, and “Tax on Discovered Treasure” as well as others. These issues have been dealt with in specific essays as well, such as Kitâb al-Kharâj (The Book of Land Tax) by Abû Yûsuf, the Chief Justice in the era of the Caliph Hârûn al-Rashîd. This same topic, in more general terms, is dealt with when discussing the injunctions relating to the state treasury, its sources of revenue, the types of wealth it deals with, and how that wealth is to be allocated.
Constitutional Law defines the form that government is to take, the relationship between the various political authorities within it, and the distribution of special powers between them. Administrative Law constitutes a body of statutes that regulates the activities of executive authority in performing its duties and assuring that such activities are carried out in a harmonious way. The books of Islamic Law do not refer to these branches of Law by these terms. Instead, it places all of these injunctions under the heading of “Islamic Politics” or “Injunctions Pertaining to Political Authority”. Books have been written specifically on this topic, like al-Ahkâm al-Sultâniyyah (Injunctions Pertaining to Political Authority) by al-Mâwardî (d. 450 A.H.).
The subsidiary branches of Law have also been dealt with. Civil Law is dealt with as a branch of Transaction Law, whether dealing with individuals or property. With respect to Commercial Law, the Islamic jurists of old had dealt with the issues that were relevant to their needs under such headings as “Partnerships”, “Limited Partnerships” and “Bankruptcy”. Thereafter, they made custom the deciding factor in business practices. The reason for this is the simplicity of the business environment at that time. Commerce was not as diversified and complex as it is today.
Lastly, we find that the Islamic jurists, under such headings as “Lawsuits”, “Judicial Decisions”, and “Testimony”, have dealt with the Code of Procedure, the statutes regulating the judicial process in its application of Civil and Commercial Law.
We can see how fiqh – Islamic Law – covers every domain of human activity, whether it be on the level of the individual, the society, or the international arena. As for those issues that Islamic Law does not cover in particular, it deals with them in broad terms, making it possible for the particulars of the law to be ascertained in light of general, flexible principles.
