When discussing about the law, you may think of a legal system with the appearance of judges, lawyers and a potent mechanism to enforce the law. But, there was, I said there was which means before the dawn of modernity, a land in which these things happened in entirely different way.
The most striking fact about Shari’ah – Islamic Law, is that it was not controlled by the state but by the kind of authority such as “ruler” (the ruler, is not similar to the government of the state, he rules his country mostly by armies and the cost of using army to control the remote areas is often higher than the taxes they levied from low populations in centre regions). In this situation, there was not birth registration or no citizenship status or they could travel freely. Therefore, the question is, when the problems arise in such far-away areas, how do people deal with their affairs? The answer is simple: “self-rule”. In the affairs between people, a variety internal mechanisms were formed gradually over centuries, which adjust the behaviour standard of people in local communities.
Why do I mention this fact before we go further into the Islamic world? Because I want to show you how to breathe before we learning how to swim. Because if the Islam lacked of this fundamental principle, it would lack of itself.
That is to say, the Shari’ah was not the product of Islamic government. This fact leads to the next question, if the ruler did not make and enact the law, who did? In order to solve this question, I would like to take into account some “intermediaries”. According to some researches, there were four types of legal personnel who play critical roles in applying and developing the Shari’ah. They are, first, the Mufti – the Islamic scholar who interprets and expounds Shari’ah, second, the Fatwa – the legal answer to which the Mufi is asked and confronted, third, Qadi – the Muslim judge, and finally, other factors around this legal system such as notaries, the court and persons involved the court, the ruler and so on.
In the next part, I will discuss more about each role of these four types of legal personnel in order to find out what is the origin of Shari’ah.
(Move to Chapter 1 – Part 2)