It is a unique feature of Muslim law that there has been a constant divergence between theory and practice. There are several areas where a mere lip-service is paid to theory, and the practice is allowed to have its way. Even in matters which are considered to be closely linked with religion, evasion of theory has been allowed.
Thus, in family matters, such as marriage, dower, divorce, and family relations, the actual practice has been allowed to override, not merely the spirit, but also the letter of the law. The most important areas where theory has prevailed over law, is the law of contracts and obligations. In this area, the customary law has dominating influence.
The Hiyal, the legal device, was used as a legal fiction. The Hiyal is the use of legal means for extra-legal ends, ends that could not, whether themselves were legal or illegal, be achieved directly by the means provided by the shariat.
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The “legal device enabled persons who would otherwise, under the pressure of circumstances, have had to act against the provisions of sacred law, to arrive at the desired result while actually conforming to the letter of the law.”
Thus, the Koran prohibits interest but devices were found out by which this injunction was evaded. In the words of Schacht: “we must think of the relationship of theory and practice in Islamic law not as a clear division of spheres but as one of interaction and mutual interference, a relationship in which the theory showed a great assimilating power, the power of imposing its spiritual ascendancy even when it could not control the material conditions”.
It is a remarkable aspect of Muslim jurisprudence that within its ambit are included not merely the mandatory commands which are binding or enforceable but also all norms laid down by the law-givers norms directing a man as to what he should do or what he should not to, or what he ought to do, or what he ought not to do; it also includes whatever the law-giver has declared.
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All the commands and norms emanating from the law-givers are not equally enforceable. In fact, some are not enforceable at all by the secular authority. Abdul Rahim explains this by an example.
Suppose the law-giver says, “Do not tell a lie, but tell the truth”, but lays down no penalty for the violation of the norm. But, according to Muslim jurisprudence, this norm will nevertheless create a legal obligation, since it is laid down by the law-giver.
Thus, enforceability of a norm by a secular authority is not an essential attribute of law. When we come to the realm of sanctions, Muslim law presents a still more remarkable spectacle. Since Muslim law is not a secular law alone, but also emphasizes the spiritual aspect of a man’s life, it does not talk of sanctions in terms of punishment by the secular authority.
Muslim law encourages obedience to law by offer reward. It demands obedience to law by the imposition of penalties. The secular as well as non-secular penalties may be awarded in this world or in the world hereafter, but one gets the reward only in the next life.