William andrew kopwe the open university of tanzania

CHAPTER TWO

2.0 LITERATURE REVIEW

2.1 Introduction

According to Islam Sharī’a (The Islamic Law) is a blueprint of a Muslim's lifestyle. It is a wholistic phenomenon in nature because it concerns with everything of a Muslim's life. In other words there is nothing which is not Sharī’a in the life of a Muslim. Everything a Muslim does both in private and public spheres is supposed to be guided by Sharī’a. Because of this, everything that is happening or discussed pertaining to life of a Muslim or Muslim community is considered as Sharī’a discourse in this study. This chapter discusses and presents selected previous literatures which gives a theoretical background of the whole study of Sharī’a. The aim of this chapter is twofold: firstly it presents the general undersanding of Sharī’a and secondly it presents different dynamics ascribed to sharia directly and indirectly.

2.2 Sharī’a

The discussion about Sharī’a may turn to be confusing and uninteresting to many if they do not understand what the phenomenon is all about. The aim of this part is to present basic social-anthropological information of Sharī’a. This part acts as a foundation for the understanding of the proceeding discussions about Sharī’a in the Tanzania context.

2.2.1 Meaning of Sharī’a

Sharī’a is an Arabic expression which is commonly interpreted in English as ‘Islamic law’. The word Sharī’a is common to the Arabic-speaking peoples of the Middle East and designates a prophetic religion in its totality, generating such phrases as Sharīat Mås§ (the religion or law of Moses), Sharī’at al-MasÊÈ (law/religion of Messiah) Sharī’at aldjås (the Zoroastrian religion) or Sharī’atu-na (meaning our religion and referring to any of the monotheist faiths) (Encyclopedia of Islam 2002: X: 321a).
Also Sharī’a in an Arabic language means a way that leads to an oasis. An oasis is a fertile or green area in a desert, usually having a spring or well. Oasis symbolizes life because without water there is no life. The term was adopted and used in Muslim understanding to show that Sharī’a is the “path of life the human being must walk to reach the kingdom of Allah” (Norlene, 2001: 209). Just as water is a necessity of life, so is the Sharī’a to Muslims for order and harmony of their private and public life (Braswell, 1996). Islam believes that Sharī’a is the path that leads not only to Allāh, but is the way shown by Allāh, the Creator Himself through His messenger, Prophet Muhammad (Doi, 1984).
Sharī’a occupies an important position in the lives of Muslims (Jomier, 1988). Muslims’ daily conducts are supposed to be guided by Sharī’a. While theology teaches Muslims what to believe, Sharī’a teaches Muslims how to behave. Sharī’a is a distilled essence of Islam as a religion and the Islamic civilization (Anderson, 1976). In theological understanding Sharī’a and DÊn (which can loosely be translated as religion) are one. The two are inseparable and can be spoken of interchangeably (Rahman, 1966). According to the Muslim traditional views, Sharī’a is an integral part of the “word of Allāh incarnate. It coexisted with him.” Hence Sharī’a is eternal, perfect, universal, fit for all men at all times and in all ages. Because of this, Sharī’a does not differentiate between the sacred and secular (Hitti, 1970). With such Muslim understanding, therefore, Sharī’a is not only the essence of Islam but also it is the Islam by itself. That is to say Sharī’a implementation is tantamount to Muslims’ practicing Islam rightly.
Sharī’a addresses two broad sets of relationships: the first being spiritual relationship between Allāh and human being and the second deals with the relationship between one human being and another (Waines, 1995). Generally, Sharī’a implementation deals with five particular areas. These are Iti’gat (belief), Adab (moralities), ‘ibādātt (devotional), Mu'amalat (transactions) and Uqubat (punishment) (Byang, 1988). This is to say that Sharī’a guides all aspects of Muslims’ life. A scholar of Islamic law at The State University of Zanzibar summarizes fiq saying that:

Fiqhi can be divided into two main categories

1. 
   Ibadat (religious obligations/commands), which manages relations between human being and his/her Creator in the sense of pillars of Islam. This category includes prayers (salat), fasting (sawm), taxes on income (zakat) and pilgrimage (Hajj).
   

II. Muamalat (transactions) which plans the relations between human and human, human and society, human and state, state and state etc. This category can be divided in other sub parts such as:-

1. 
   Ah-wali Shakhsia: (personal Laws) e.g. marriage, divorce, polygamy, inheritance.
   
2. 
   Jinayat: (penal Law) e.g. retaliation (Qisas), which deals with offences against the person including homicide and assault; fixed Laws (Huduud), which deal with offences against property, and honour, including theft, robbery, false accusation, extramarital sex (Zina), drinking alcohol etc.
   
3. 
   Ahkam Madaniat: which deal with Business, employment etc.
   
4. 
   Ahkam Murafa’at: which deal with bearing witness, testify etc.
   
5. 
   Ahkam Desturiat: which deal with governing procedures
   
6. 
   Ahkam Dawliat: which deal with war Laws, neighborhood principles etc.
   
7. 
   Ahkam Iqtis’adia walmaliat: these deals with economy and finance.
   
8. 
   Ada-b: This deal with manner, good habits and conduct.(Ziddy, 2004:4)
   

2.2.2 Origin and Development of Sharī’a

According to Islam Sharī’a originated from Allāh himself and was given to human beings as a gift in the Qur’ān. The Qur’ān states that: “Then We put thee on the (right) Way of Religion: so follow thou that (Way) and follow not the desires of those who know not” (Surah 45: 18). This makes Muslims believe that Sharī’a originated from Allāh.
However, some anthropologists argue that the formation of Sharī’a was also influenced by the pre-Islamic Arab customs. Schacht (1964) for instance, opines that Arabia, before and in the time of Muhammad, had legal systems which differed with place and subjects. There was the customary law which was central among the Bedouins. There was also the commercial law which was mainly practiced in Mecca, Medina and Taif. Also, there was the law of personal status and family inheritance. He further reports that in Arabia during that time there was the concept of arbitration among people by person who was known as Hakam (arbitrator). The Hakam was chose for his personal qualities, his reputation coming from the family famous for their competence in resolving disputes and by his supernatural powers mostly found among the Kahin (soothsayers). Winttle (2003) identifies with Schacht (1964) that, “what was perceived as correct Islamic behavior was also partly a matter of Arabic custom-or at least those customs that Muhammad had selected not to jettison”.
During the few years after the death of Muhammad, when Islam was expanding and the capital of Islam was still in Medina, the Muslim umma (community) was under the leadership of Caliphs. The Caliphs were political leaders and did not act as supreme arbitrators in the community. But rather there was room for choosing Hakam (arbitrator) from Quraish, the tribe of the prophet (Hallaq, 1964). At that time, there were mainly two sets of laws on which leaders of Muslim community based their judgments; pre-Islamic Arab customary laws and the Qur’ān. The concept of Sunna³ of the prophet arose after the third Caliph, Uthman, who was appointed in the year 644 AD. The earliest authentic evidence for the use of the term Sunna of the prophet is a letter addressed by the Khariji leader Abdallah Ibn Ibādhi to the Umayyad Caliph Abd al-Malik dated 695 AD (Schacht, 1994).

The rule of the Caliphs of Medina was supplanted by that of the Umayyad. Their main concern was not with religion and religious law but with political administration. They supervised the application of the purely Islamic penalties for the welfare of their rule. Hence, they appointed |§∙ī (judges).The office of |§∙ī was created for the new Islamic society which extended beyond Arab community in Madina. The Arab Hakam (arbitrator) was replaced by the Islamic |§∙ī. |§∙ī was a delegate of the governors. The governors retained the power of reserving their decision in any lawsuit they wished, and of course dismissing the |§∙ī at will. The decisions of the earliest Umayyad |§∙ī laid the basic foundation of what was to become the Islamic law. The Islamic |§∙ī had to apply Islamic law in various perspectives: |iyās Bottom of Form

(Analogical deduction), Ijmā’ (unanimous consensus) and by istihsan (public interest or convenience) (Schacht, 1994).