THE SHARl'A

Автор: Albert Hourani
Источник: "A history of the Arab peoples", Albert Hourani, Belknap, Harvard, Cambridge, Mass., 1991, pages 65-69

    Except by implication, the Qur'an does not contain within itself a system of doctrines, but it does tell men what God wishes them to do. It is above all a revelation of His Will: what men must do to please Him, and how they will be judged on the last day. It contains some specific commands, for example in regard to marriage and the division of a Muslim's property after death, but these are limited, and for the most part God's Will is expressed in terms of general principles. Commands and principles concern both the ways in which men should worship God and those in which they should act towards one another, but to some extent this is an artificial distinction, for acts of worship have a social aspect, and acts of justice and charity are also in a sense directed towards God.
    Reflection upon the Qur'an and the practice of the early community soon produced general agreement upon certain basic obligations of the Muslim, the so-called 'Pillars of Islam'. These included the oral testimony that 'there is no god but God, and Muhammad is the Prophet of God'. Secondly, there was ritual prayer, with certain forms of words repeated a certain number of times with particular postures of the body; these should take place five times a day. Other 'Pillars' were the giving of a certain proportion of one's income for specified kinds of work of charity or public benefit; a strict fast, from daybreak to sunset, throughout a whole month of the year, that of Ramadan, ending in a festival; and the Hajj, the pilgrimage to Mecca, at a fixed time of the year, involving a number of ritual acts, and also ending in a festival celebrated by the whole community. To these specific acts was also added a general injunction to strive in the way of God (jihad), which might have a wide meaning or a more precise one: to fight in order to extend the bounds of Islam.
    From the beginning, however, more was needed than an agreement about the essential acts of worship. On the one hand there were those who took the Qur'an seriously and believed that it contained by implication precepts for the whole of life, since all human acts have significance in the eyes of God and all will be taken into account on the Day of Judgement. On the other there were the ruler and his deputies, needing to make decisions on a whole range of problems, and both their own convictions and the terms in which they justified their rule would lead them to decisions which at the very least would not be in contradiction of what the Qur'an was taken to mean or imply.
    In the period of the first caliphs and the Umayyads, therefore, two processes took place. The ruler, his governors and special deputies, the qadis, dispensed justice and decided disputes, taking into account the existing customs and laws of the various regions. At the same time, serious and concerned Muslims tried to bring all human acts under the judgement of their religion, to work out an ideal system of human conduct. In doing so they had to take into account the words of the Qur'an and to interpret them, and also the transmitted memories of the community: how the Prophet was supposed to have acted (his habitual behaviour or sunna, increasingly recorded in 'traditions' or hadiths); how the early caliphs made decisions; what the accumulated wisdom of the community believed to be the right way to act (the sunna of the community).
    These two processes were not wholly different from each other. The caliph, governor or qadi no doubt would modify existing customs in the light of developing ideas of what Islam demanded; the scholars would introduce into their ideal system something taken from the inherited customs of their communities. During the early phases, however, they remained broadly separate. Within each process, moreover, there were different tendencies. Given the way in which the empire was created and administered, the customs and regulations of the various regions must have differed widely. The scholars for their part were scattered over various cities, Mecca and Madina, Kufa and Basra, and cities of Syria, and each of them had its own ways of thought, reflecting its transmitted memories as well as the needs and practices of the region, and crystallized in a local consensus {ijma').
    With the coming of the 'Abbasids in the middle of the second Islamic century (the eighth century AD) the situation changed. The creation of a centralized state, bureaucratically ruled, made it necessary to reach agree¬ment on ways in which disputes should be settled and society regulated; and the claim of the 'Abbasids to a religious justification for their rule made it essential that whatever was agreed upon should be seen to be based on the teachings of Islam. Thus the two processes drew closer to each other. The qadi became, in theory at least, a judge independent of the executive power and making decisions in the light of the teachings of religion. The need therefore for some general agreement about the practical implications of Islam became greater. The Qur'an, the practice or sunna of the Prophet embodied in hadiths, the opinions of groups of scholars, the developing practice or sunna of local communities: all these were impor¬tant, but so far there was no agreement about the relations between them. Scholars held varying views: Abu Hanifa {c. 699-767) placed more emphasis on opinions reached by individual reasoning, Malik (c. 715-95) on the practice of Madina, although he also admitted the validity of reasoning in the light of the interest of the community.
    The decisive step in defining the relations between the different bases for legal decisions was taken by al-Shafi'i (767—820). The Qur'an, he maintained, was the literal Word of God: it expressed God's Will in the form both of general principles and of specific commandments in regard to certain matters (prayer, alms, fasting, pilgrimage, the prohibition of adult¬ery, of drinking wine and eating pork). Equally important, however, was the practice or sunna of the Prophet as it was recorded in hadiths; this was of greater weight than the cumulative practice of communities. The sunna of the Prophet was a clear manifestation of God's Will, and its status was confirmed by verses of the Qur'an: 'O you who have believed, obey God and His Apostle. The deeds and words of the Prophet drew out the implications of the general provisions of the Qur'an, and also gave guidance on matters on which the Qur'an was silent. According to Shafi'i, Qur'an and sunna were equally infallible. The sunna could not abrogate the Qur'an, but equally the Qur'an could not abrogate the sunna. They could not contradict each other; apparent contradictions could be reconciled, or else a later verse of the Qur'an or saying of the Prophet could be regarded as abrogating an earlier one.
    However clear might be the expression of God's Will in Qur'an or sunna, there would remain questions of interpretation, or of applying principles to new situations. For the way of thought articulated by Shaf'i, the only method of avoiding error was for ordinary Muslims to leave it to those learned in religion to use their reason in order to explain what was contained in Qur'an and Hadith, and to do so within strict limits. Con¬fronted with a new situation, those who were qualified to exercise their reason should proceed by analogy {qiyas): they should try to find some element in the situation which was similar, in a relevant way, to an element in a situation on which a ruling already existed. Such a disciplined exercise of reason was known as ijtihad, and the justification for it could be found in a hadith: 'The learned are the heirs of the prophets.'3 When there was general agreement as a result of such an exercise of reason, then this consensus (ijrna') would be regarded as having the status of certain and unquestionable truth.
    Shafi'i himself stated this principle in the broadest form: once the community as a whole had reached agreement on a matter, the question was closed for ever; according to a hadith, 'in the community as a whole there is no error concerning the meaning of the Qur'an, the sunna and analogy'. Later thinkers, however, including those who regarded Shafi'i as their master, formulated the principle rather differently: the only valid ijrna' was that of the scholars, those competent to exercise ijtihad, in a particular period.
    To these principles of interpretation a kind of appendage was added by Shafi'i, and generally accepted: those who interpreted Qur'an and sunna could not do so without an adequate knowledge of the Arabic language. Shafi'i quoted passages from the Qur'an which mentioned the fact that it had been revealed in Arabic: 'We have revealed to thee an Arabic Qur'an ... in a clear Arabic tongue'. Every Muslim, in Shafi'i's view, should learn Arabic, at lest to the point at which he could make the act of testimony (shahada), recite the Qur'an, and invoke the name of God {Allahu akbar, 'God is most great'); a religious scholar needed to know more than this.
    Once these principles had been stated and generally accepted, it was possible to attempt to relate the whole body of laws and moral precepts to them. This process of thought was known as fiqh, and the product of it came ultimately to be called shari'a. Gradually there grew up a number of 'schools' of law (madhhab), taking their names from early writers from whom they traced their descent: the Hanafis from Abu Hanifa, Malikis from Malik, Shafi'is from al-Shafi'i, Hanbalis from Ibn Hanbal, and some others which did not survive. They differed from each other on certain substantive points of law, and also on the principles of legal reasoning (usul al-fiqh), and in particular on the place of Hadith and the legitimacy, limits and methods of ijtihad.
    The four schools all lay within the Sunni community. Other Muslim groups had their own systems of law and social morality. Those of the Ibadis and Zaydis did not differ greatly from the Sunni schools, but among the 'Twelver' Shi'is the bases of law were defined in different ways; the consensus of the community was only valid if the imam was included in it. There were also some distinctive points of Shi'i substantive law.
    In spite of the partly theoretical nature of the shari'a, or perhaps because of it, those who taught, interpreted and administered it, the 'ulama, were to hold an important place in Muslim states and societies. As guardians of an elaborated norm of social behaviour they could, up to a point, set limits to the actions of rulers, or at least give them advice; they could also act as spokesmen for the community, or at least the urban part of it. On the whole, however, they tried to hold themselves apart from both government and society, preserving the sense of a divinely guided community, persisting through time and not linked with the interests of rulers or the caprice of popular feeling.