2691017

Module Title: Law and Ethics as Theology in Christian and

Muslim Thought and Practice
Module Level: LM
Student ID (SRN) 2691017
Essay / assignment title: Present and critically evaluate the relationship
between law and ethics in Islamic thought
Confirmed Word Count: 2218
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Present and critically evaluate the relationship between law and ethics in Islamic
thought

Introduction

The phrase ‘Islamic law’ conjures up a legion of terms in the mind. For some, it is
synonymous with the term ‘Sharī’a’, while others argue that ‘Fiqh’ is the more accurate
terminology. Both terms are, as Reinhart (1983, p. 187) asserts, misleadingly translated as
‘Islamic law’. However, before I elucidate the phrase that is ‘Islamic law’, it is essential to
acknowledge the diverse spectrum of Islamic ethical discussions, recognising their historical
interactions and non-exclusive nature (Bhojani, 2023). Whether it involves the jurisprudential
discourse of fiqh, the philosophical virtue ethics known as Akhlāq, or the Sufi ethical thought,
there exists diversity within Islamic ethical discourses.

However, despite the plurality of these discourses, I will argue that the primary framework
for Islamic ethics is Islamic law, specifically the scholarly inferences of jurists (fuqahā’)
using the four sources of law. In this essay, I will draw upon key classical and post-classical
texts within what Hassan (1982, p. 69) describes as ‘the most liberal of all the schools’,
referring, of course, to the Hanafī school of thought. I will also conduct a brief analysis of
Reinhart’s ‘Islamic Law as Islamic Ethics’ where he argues for the primacy of Islamic law
over other discourses in the context of Islamic ethics. My essay will also highlight important
ethical discourses found in fiqh including legal maxims used by the fuqahā’ in the chapters of
business and commerce within the Hanafī jurisprudential tradition. By focusing on one of the
most discussed, explored, and addressed subsets of fiqh, within one of the most followed and
widely practised Islamic schools of thought, I aim to emphasise the centrality of Islamic law,
particularly fiqh and usūl al-fiqh, as the primary discourse for Islamic ethics.

Islamic Law – Shari’a, Fiqh and Usūl al-Fiqh

It is imperative that the reader first understands what ‘Islamic Law’ means, at least in this
essay, so there is no confusion as to what I refer to when repeating the phrase without
needing to expound its meaning each time.
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There are usually three words/phrases closely associated with and often translated as ‘Islamic
law’. According to the Tāj al-Arūs of al-Zabīdī (d. 1791), ‘Sharī’a’ means a ‘straight path’ or
a ‘path to water’ (1965-2001, vol. 21, pp. 259 – 260). Aside from this linguistic definition
which suggests that Sharī’a ultimately serves as a type of delineating legal, spiritual, and
ethical ‘pathway’ for Muslims, in the context of law, Sharī’a simply refers to the
precepts/laws (ahkām) which are in the knowledge of God (Bhojani, 2023). Interestingly,
although these ahkām are supposedly in the knowledge of God himself, the interpretation of
the ahkām is contingent on human understanding. This contrast between the divine origin of
the ahkām and the fact that their interpretation is carried out by the intellectual capacities of
human beings can be understood by the following:

The Sharī’ah originated from the direct commandment of Allāh; but there is the provision or
power given to man in order to interpret and expand Divine commandment, by means of
analogical deductions and through other processes. (Abdur Rahman, 1984, p. 6)

This human element leads us to the second term I aim to clarify – fiqh. It constitutes a
predominantly human-centric, juridical reading and interpretation of ‘Sharī’a’. In the Arabic
language, the term ‘fiqh’ refers to knowing something or understanding something (Ibn
Manẓūr, 1993, vol. 13, p. 522). In the context of Sharī’a, fiqh refers to the scholarly
inferences of rulings particularly by the fuqahā’, using the four sources of law, namely,
Qur’ān, Sunna, Ijmā’ (scholarly consensus) and Qiyās (analogical reasoning) (Hassan, 1982,
pp. 65-68; Bearman, 2016, pp. 1 – 2). These extrapolations of ethico-legal rulings typically
fall under one of five categories: farḍ/wājib (obligatory/necessary), mubāh (permissible),
mustahab/mandūb (recommended), makrūh (disliked) and harām (forbidden) (Carney, 1983,
p. 161; Reinhart, 1983, p. 195; Harvey and Abdel Haleem, 2017, pp. 38 – 39).

Fiqh typically goes hand in hand with our third phrase often associated with Islamic law –
usūl al-fiqh (legal theory). This was arguably first introduced by al-Shāfi’ī (d. 204/820) in his
al-Risālah, where he discussed the four sources of Islamic law and the methodology of
deriving legal rulings (Kamali, 2003, pp. 4 – 6). Al-Shāfi’ī’s introduction, however, served as
a rudimentary one and was later developed by the likes of Ibn Surayj (d. 306/918) and his
students (Hallaq, 2009, pp. 59 – 60).
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The role of usūl al-fiqh is, as Bhojani (2019, p. 153) posits, to outline ‘how normative
expressions of Sharī’a ought to be derived.’ Kamali (2003, p. 2) comments on the
relationship between fiqh and usūl al-fiqh, saying that ‘Fiqh… is the law itself, whereas usūl
al-fiqh is the methodology of the law.’ Whilst I disagree with the notion that fiqh
encapsulates the totality of Islamic law and rather refers to the practice of human interpretive
applications of what ought to be the law (as well as other mundane things outside the realm
of legality), he does nicely capture the relationship between the two disciplines in that it
‘resembles that of the rules of grammar to the language.’

One of the challenges in accurately translating 'Islamic law' arises from the legal implications
associated with the word 'law'. As I’ve just mentioned regarding fiqh, Sharī’a also cannot be
simplistically confined to a legal framework. Instead, it encompasses the theorisation of
divine guidance and serves as a religious and moral comprehensive mode of life for Muslims
(Schacht, 1982, p. 199; Bearman, 2016, pp. 1 – 5).

Nevertheless, there is no doubt that these three terms constitute a major part of Islamic law
and for this reason, I will use the term ‘Islamic law’ to encompass all three of these
interrelated terms/phrases: Sharī’a, fiqh and usūl al-fiqh. I will argue that Islamic law, with a
particular focus on the Islamic jurisprudential tradition, is the primary discourse for Islamic
ethics.

Analysing Reinhart: ‘Islamic Law as Islamic Ethics’

Moving on from the important clarification of the aforementioned terms, I will now briefly
comment on an article by Reinhart where he argues that Islamic law, especially fiqh and usūl
al-fiqh, is the locus for Islamic ethics.

According to Hodgson (1974, p. 59), the adjectival term ‘Islamic’ refers to those things
‘pertaining to Islam in the proper, the religious sense’, while the term ‘Islamicate’
encompasses the socio-cultural complex historically associated with Islam and Muslims. In
this context, Reinhart (1983, p. 186) contends that ‘Islamic ethics can refer only to Islamic
law and legal theory’. Essentially, his assertion that Islamic ethics should be exclusively
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linked to Islamic law is because he sees it as the only discipline which uniquely combines
practical and theoretical elements, addressing both human conduct and religious precepts.

One may then argue that, while Reinhart emphasises the distinctive blend of theory and
practice in law, he may not fully appreciate similar dynamics in other Islamic disciplines and,
therefore, he adopts a legal-supremacist approach towards his conceptualisation of Islam in
general.

The late Shahab Ahmed (2015, pp. 119 – 121; 168 – 170), on the other hand, challenges this
very idea by examining what he deems a major paradigm of Islam – the Balkans-to-Bengal
complex. He emphasises that a legal-supremacist view is unable to capture the inherent
contradictions found within Islam.

Nevertheless, it can be argued that Ahmed’s focus on the non-Arabic speaking world limits
his portrayal of Muslims’ attitudes towards Islamic law. When considering the global Muslim
community today, particularly in the context of modernity and liberal secularism, remnants of
a long-standing resistance to various reforms persist due to the adherence to Islamic law. One
may inquire why it is 'only in the Arabian Peninsula, that the law remains rigidly
conservative’ today (Anderson, 1960, p. 196) and not in most, if any, of the regions
historically associated with the Balkans-to-Bengal complex. This conservative stance can
more likely than not be attributed to strong opposition to anti-legal norms that have prevailed
across various periods in Islamic history, exemplified by the Balkans-to-Bengal complex. It is
this unwavering commitment to law and the subsequent resistance against anti-Islamic
ideologies because of law that bolsters Reinhart’s argument regarding the centrality of
Islamic law in the discourse of ethics. Thus, the contention that Islamic law is just an ordinary
cog in a machine comprising various intellectual disciplines can still be subject to challenge,
particularly in the realm of Islamic ethics.

The Significance of Business in Hanafī Jurisprudence

The argument for the centrality of fiqh in ethical discussions leads me to what I have
previously mentioned to be a pivotal subset of classical and post-classical fiqh engagements:
business.
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The legal framework governing Islamic business practices within the Hanafī tradition, like all
other facets of Islamic law, stands as a quadrilateral structure established on the foundations
of Qur’ān, Sunna, Ijmā’ and Qiyās. The Hanafī school has accorded significant importance to
business in their discussions. Al-Shaybānī (d. 189/805), the jurist behind the renowned
collection known as the Ẓāhir al-Riwāyah1, allocates a dedicated chapter on business (kitāb
al-buyū) in his magnum opus al-Mabsūt (also known as al-Aṣl). It is evident that a cyclical
trend then emerged where a significant number of Hanafī jurists often allocated a section
exclusively for kitāb al-buyū’, delving into the complexities of transactional issues.

Having highlighted the significance of business within Hanafī jurisprudential thought, it is

essential to explore the ethical foundations that underlie these commercial activities so that
we can gain a better understanding of the ethical nature of the fiqh discourse. The Qur’ān and
Sunna, as primary sources interpreted through the lens of fiqh along with other scholarly
analyses such as ijmā’ and qiyās, offer profound insights into these ethical dimensions of
business dealings. The overarching ethical principles that are engrained in the fiqh discourse
further solidify its position as, I believe, the primary framework for Islamic ethics.

The Qur’ān (Q. 83:1 – 36), in fact, dedicates an entire chapter addressing the ethical themes
of dishonesty and unfairness in business dealings. It condemns those who engage in
fraudulent practices when conducting business, warning them of grave eschatological
consequences:

Woe to those who give short measure, who demand of other people full measure for
themselves, but when it is they who weigh or measure for others give less than they should. Do
these people not realize that they will be raised up on a mighty Day, a Day when everyone will
stand before the Lord of the Worlds? (Abdel Haleem, 2005, p. 413)

Similarly, the significance of trustworthiness and honesty in the context of business can be
gleaned from a non-canonical hadīth attributed to the Prophet Muhammad: ‘The trustworthy

1
This compilation stands as the most authoritative compendium of doctrines within the Hanafī
tradition (Hallaq, 2009, p. 65). It consists of six books compiled by al-Shaybānī, namely: Al-
Mabsūt/Al-Aṣl, al-Ziyādāt, al-Jāmi’ al-Kabīr, al-Jāmī’ al-Saghīr, al-Siyar al-Kabīr and al-Siyar al-
Saghīr.
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honest Muslim business merchant will be with the martyrs on the day of resurrection’ (Ibn
Mājah, 2020, vol. 2, p. 605).

The ethical considerations within the fiqh and usūl al-fiqh discourses can be further
demonstrated by foundational principles like istihsān, maṣālih and mursalah. These
fundamentally ethical principles have integrated themselves into both legal theory and
Islamic jurisprudential thought (Bauer, 2021, p. 21). This integration is even more
pronounced when we scrutinise the contributions of key Hanafī jurists. Ibn Ābidīn (d.
1252/1836), the eminent Damascene Hanafī jurist of the nineteenth century, writes in the
kitāb al-buyū’ section of his marginalia on al-Haskafī’s (d. 1088/1667) al-Durr al-Mukhtār: a
work which Islahi (2014, p. 85) hails as ‘the most authoritative book on Hanafī fiqh’,
regarding the necessity of knowing the quantity and price of a product only if the ambiguity
is not too severe and does not lead to a dispute between the two contracting parties:

It is a condition for the validity of a transaction that the quantity of a product and its price is
known… if someone sells ‘all that which is in this town’ or ‘all that which is in this house’ and
the buyer does not know what is in it, then this will not be a valid transaction due to the severe
nature of the ambiguity. As for when he sells ‘all that which is in this room or box or bag’, then
this will be valid. (Ibn Abidīn, 1966, vol. 4, pp. 529 – 530)

This case example effectively demonstrates the actualisation of a Hanafī legal maxim
wherein we can vividly appreciate, like in the examples of the Qur’ān and Sunna, a symbiotic
relationship between fiqh and ethics, further cementing Islamic law as a powerful authority
for Islamic ethics and ultimately portraying it as the cornerstone and primary discourse for
Islamic ethics.

Conclusion

In examining the relationship between Islamic law and ethics, we discern a dynamic interplay
of multiple discourses. While various ethical frameworks exist within the Islamic tradition, it
can be reasonably argued that Islamic law, despite not being the sole locus of Islamic ethics,
emerges as the paramount and decisive framework for ethics.
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However, it is crucial to acknowledge the complexity of this relationship. Further research

could delve into the nuanced perspectives of different Islamic schools of thought, as well as
explore how historical and socio-cultural contexts shape ethical interpretations. Additionally,
probing into alternative ethical discourses, such as Akhlāq or Sufi thought, can offer richer
insights into the multifaceted nature of Islamic ethics. Nevertheless, the question persists:
could there be another discourse capable of toppling the influence of the giant that is Islamic
law? I think not.

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