What is Shariah

Transcript of the Talk delivered by Dr. Munawar Haque on Sept 2, 2016 on occasion of the Friday Family Night Event at AMDA*

One of the buzzwords we hear these days is ‘Shariah.’ Much publicity and confusion surrounds this loaded term. Most people who speak against Shariah do not really understand it. There are forces that are trying to polarize our communities and create a division, not only between Muslims and non-Muslims but also among Muslims themselves. The anti-Shariah movement has created an opportunity for Muslims living in the West to share their faith with those who are unaware of the true teachings of Islam. The entire world seems to be discussing Islam. Unless we Muslims understand and gain at least some basic knowledge about Islam and Shariah, we will not be able to effectively communicate with others and live together in peace and harmony.

Shariah is often defined as ‘Islamic law,’ causing one to assume wrongly that it consists mostly of criminal rulings and penalties. Shariah encompasses much more than the conventional understanding of law. While it provides the legal framework for the foundation and functioning of a society, it also details moral, ethical, social and political codes of conduct for Muslims at an individual and collective level.

Shariah is an Arabic word that literally means ‘a way leading to an interrupted source of water.’ Figuratively, it refers to a clear, straight path. The word occurs only once in the Qur’an, and is used in contradistinction (i.e., distinction by contrast) with the word ‘hawa,’ which means whimsical desire. Addressing the Prophet Muhammad (SAW), Allah (SWT) says,

ثُمَّ جَعَلْنَاكَ عَلَىٰ شَرِيعَةٍ مِّنَ الْأَمْرِ فَاتَّبِعْهَا وَلَا تَتَّبِعْ أَهْوَاءَ الَّذِينَ لَا يَعْلَمُونَ 

“Then We put you on the right way of religion. So follow it and follow not the whimsical desire of those who have no knowledge.” (al-Jathiyah, 45:18)

Since Shariah is a path to religion, it is primarily concerned with a set of values that are essential to Islam and the best manner of their protection. Islam stands on what is known as the five pillars: belief in the oneness of God, prayer, fasting, alms giving and hajj. Faith in God, the manner of worshiping Him and observance of the five pillars of Islam thus constitutes the essential part of Shariah. The manner of worshiping God is expounded in that part of shariah which is known as ‘ibadat or devotional matters. Then there is a concern with justice, which is a major preoccupation of Shariah. Justice is concerned with the manner in which Allah (SWT) wants His creatures to be treated. This is expounded mainly under the general heading of mu’amalat or civil transactions.

One of the areas of primary concern to Shariah is the protection and advancement of the five necessities. These are: religion, life, intellect, lineage, and wealth. The Shariah protects these necessities in two ways: firstly by ensuring their establishment and then by preserving them.

·         Religion: Belief and worship are ordained. To ensure their preservation, rulings relating to obligation of learning and conveying the religion have been legislated.

·       Life: The sanctity and sacredness of human life is recognized. Murder or any form of unlawful killing is prohibited, and punishments are laid down for doing so.

·        Intellect: The intellect, which differentiates humans from animals, is a blessing from God.  Anything that corrupts or weakens the intellect such as alcohol, drugs, and other intoxicants are prohibited. Preventive punishments are imposed in order that people stay away from them, because a sound intellect is the basis of the moral responsibility that humans have been given.

·      Lineage: Marriage has been legislated for the continuation of human life and preservation of lineage. Sex outside marriage is forbidden. Punitive laws have been laid out in order to ensure the preservation of lineage.

·         Wealth: It is obligatory to support oneself and those one is responsible for. There are laws to regulate commerce and transactions between people, in order to ensure fair dealing, and economic justice, and to prevent oppression and dispute.

During his initial twelve and a half years of campaign in Makkah, the Prophet (SAW) was preoccupied with the belief and dogma of Islam, the essence of moral virtue, and not so much with the enactment of legal rules. The legal rules of the Qur’an were mainly revealed during the ten years of the Prophet’s stay in Madinah, and mainly towards the end of that period.  Since Muslims were a minority in Makkah, they had no power to enforce a law. Law and government did not feature in the Qur’an during the Meccan period. Thus it is noted that most of the Makkan surahs of the Qur’an were filled with warnings of the evil of idol worshiping and oppressive practices of the pre-Islamic Arabs towards the poor, the orphans, the widows and the needy. Most of the Makkan surahs are short, brisk and forceful in their appeal to the conscience of the people. They generally talk of moral responsibility, man, and the universe, the day of judgment, good and evil, spiritual awareness and so on. The persistent appeal of the Qur’an was for people to change their ways and lead a good moral life.

The bulk of the legal rules that later became known as Shariah was revealed after the Prophet’s migration from Makkah to Madinah, where a new Muslim community and government came into being. But even in Madinah, the penal rulings of the Qur’an which later became known as the hudud were revealed mainly in Surat al-Ma’idah during the last two years of the Prophet’s life. Much attention was paid to preparation before legal rulings were enacted and enforced.

The word shara’a (شَرَعَ) meaning to begin something or to enact also occurs in the Qur’an in the verse,

شَرَعَ لَكُمْ مِنَ الدِّينِ مَا وَصَّى بِهِ نُوحًا وَالَّذِي أَوْحَيْنَا إِلَيْكَ وَمَا وَصَّيْنَا بِهِ إِبْرَاهِيمَ وَمُوسَى وَعِيسَى أَنْ أَقِيمُوا الدِّينَ وَلَا تَتَفَرَّقُوا فِيهِ

“God has ordained for you the same religion which He enjoined on Noah, and which We have revealed to you, and which We enjoined upon Abraham and Moses and Jesus, so that you should remain steadfast in religion and not become divided in it.” (Al-Shura, 42:13) 

Shara’a in this verse refers, according to Qur’an commentators to ‘ibadat or devotional matters for these were in common between all of the scriptures revealed to those prophets. Hence shara’a in this verse could not be a reference to a legal code as the laws revealed to these various prophets were not the same. The word thus refers basically to belief and dogma and not to law as such. This shows that the Qur’anic conception of Shariah is essentially theocentric, or having God as the focal point of attention.

There is tendency at times to place total emphasis on conformity to rules and to designate Islam as a law-based religion. There is hardly any emphasis on the meaning and purpose of Islam and integration of its values on ones conduct. Declaring a state as Islamic or Shariah as the applied law, has often coexisted with corrupt governance such that the ethical norms of Islam and its stress on personal conduct have been absent in the track record of the majority of Muslim political leaders of the post-colonial period.

Abul Hassan al-Mawardi (d. 1058) was the first political thinker of Islam. He defined khilafah or caliphate as ‘protection of religion and management of worldly affairs.’ He did not think of implementing the Shariah as a defining element of an Islamic government and state. Al-Mawardi’s definition was focused on the preservation and protection of religion.

To declare Shariah as the principal criterion of an Islamic state initially featured in the writings of Ibn Taymiyyah (d. 1328). This was later given prominence by Syed Qutb (d. 1966) and Abul A’la Mawdudi (d. 1979), Muhammad al-Ghazali (d. 1992) and Yusuf al-Qaradawi who saw the Islamic state essentially as a Shariah state committed to the enforcement of Shariah.

Ibn Taymiyyah was influenced by the tension that had developed between the norms and principles of the original caliphate of the Righteous Caliphs and the practice of dynastic caliphs, the Umayyads (660-750) and the Abbasids (750-1258), marked by the Mongol invasion of Baghdad (1258) and the destruction of what had remained of the caliphate.

Ibn Taymiyyah emphasized that the Qur’an and Sunnah did not contain any reference to caliphate as an organizational model or a system of government, and since the rightly guided caliphate had only lasted for thirty years, he called attention to the Shariah and a Shariah-oriented policy (i.e., Siyasah Shariah). The Wahhabi movement of 19^th century Arabia was molded on Ibn Taymiyyah’s thought placed additional emphasis on the Shariah-based identity of Islamic governance.

Fiqh is an equivalent term to Shariah and the two are often used interchangeably. The two words are, however, not identical. Whereas Shariah is conveyed mainly through divine revelation (wahy) contained in the Qur’an and authentic hadith, fiqh refers mainly to a compilation of law that is developed by the legal schools (madhhabs), individual jurists and judges by recourse to legal reasoning (ijtihad) and issuing of legal verdict (fatwa).

The enactment of so-called “Sharia laws” in Muslim-majority countries is a modern change.  Pre-modern Muslim governments formally recognized fiqh, but not by legislating it as the uniform law of the land. Instead, there was a separation of legal authority between the realms of fiqh and ruler-made laws for public order. This separation enabled pre-modern Muslim legal systems to preserve the pluralism of fiqh and the principle of individual personal choice between fiqh schools, while still enabling Muslim rulers to make laws in order to serve the public good.  

In stark contrast to this history, most Muslim-majority countries today have a very different constitutional framework, inherited or borrowed from the European nation-state model in which all law is controlled by the government. Modern Muslim legal systems no longer formally separate the areas of fiqh and state-made law. Instead, the only formally recognized law in most of these countries is the law made by the government. Thus, the phenomenon of “Shariah legislation” exists not because Shariah demands it, but rather, because of a complicated series of political events in these countries.

Combining and blending fiqh with Shariah causes people to assume that each fallible fiqh rule represents incontestable divine law for Muslims, and that Muslims believe that these fiqh rules must be legislated as the law of the land. In Muslim circles, this sets the stage for political actors to push through their preferred fiqh rule with little or no opposition because the Muslim public assumes that the rule is divinely-directed, rather than being just one of many equally legitimate fiqh choices. This is often the technique used to support “Shariah legislation” in Muslim majority countries today. It is also similar to a strategy used by anti-Shariah activists in the United States whereby a few objectionable fiqh rules are selected to argue that Shariah itself is offensive.

Muslim Americans don’t practice laws that deal with the realm of government and state. Shariah emphasizes that the rule of law must be implemented by the state. Jewish halakha, the Canon law of the Catholic Church and the Shariah are complete systems of law that do not need state power in order to govern individual behavior. This is why, when American Muslims say they live according to the Shariah, this does not mean that they want government enactment of Islamic law.

The First Amendment to the United States Constitution affirms the free exercise or practice of religion and at the same time forbids the establishment of religion by government. These twin clauses of free exercise and non-establishment allow a wide array of religious practice in America—Islam being one of them. This has been part of the fabric of American religious and civic life since our founding. Shariah represents ideals of justice, fairness, and good life—ideals that Americans hold dear.

Many people think Shariah forces Muslims in America to reject the U.S. Constitution while others openly assert that American Muslims want to replace the U.S. Constitution with Shariah. In reality, this is not true. Shariah actually demands that Muslims follow the law of the land. This command is binding so long as they are not forced to commit an irreligious act or prevented from fulfilling their religious duties. Thankfully, this is not the case in the U.S. because the Constitution protects freedom of religion.

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* Portions of the transcript have been extracted and paraphrased from the book, “Shari’ah Law: An Introduction” by Mohammad Hashim Kamali and from a research paper: “Sharia and Diversity: Why Americans are Missing the Point” by Asifa Quraishi, Fellow at ISPU.

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