The historical association between Islam and law is inevitable, as one needs to understand the centrality of the law in Islamic tradition in light of the scarcity of legal injunctions in the Qur’an.
The term ‘Sharia’ subtly triggers multiple denotations and dissimilar connotations. It is the draconic regime which promotes violence against non-Muslims and applies cruel punishments to whoever disobeys it, and/or the misogynistic system or rules that strongly suppresses women and privileges men.
Pages of some foreign newspapers are congested with articles that relate Sharia to violent behaviour such as chopping off the heads of non-Muslims and stoning sinners. Other articles depict Sharia as the model of patriarchal regimes which allows polygamy and encourages female submissiveness and inferiority.
Thus, Sharia is stigmatised as a regime which is essentially incompatible with the values of freedom and equity. We Muslims, on the other hand, regard it as a morally uplifting system of rules, which promotes justice, peace and development.
So, how can the conception of Sharia accommodate this labyrinth?
It is of primary importance to draw a distinction between the terms Sharia, Fiqh, and Islamic law. Although these terms are sometimes used interchangeably, their meanings and significance in the scholarship of Islamic sciences are substantially different.
Sharia, (or ash-Sharī’a, in Arabic) literally means ‘the right path. Sharia refers to the primary sources of the Islamic faith, namely the Qur’an and the tradition of Prophet Muhammad [PBUH]). These two sources are of a divine nature and their commandments are immutable.
Fiqh in Arabic means precise understanding or comprehension. Fiqh refers to the methodology of deducing rules based on the rational reading and interpretation of the sources of the Islamic faith.
In addition to the primary sources (the Qur’an and the traditions of the Prophet [PBUH]), there are other sources, namely: Ijmā’ and Qiyās. The former means consensus, and it refers to the matters on which scholars of Islam have agreed on their rules, while the latter refers to rules which can be deduced by the logic of analogy.
However, Qiyās is subordinate to ljmā’. Therefore, if consensus has not been made about an issue, then the analogy would be accepted as a source of legislation. It consists in comparing a case that has a common feature with the case at hand, ‘illa, and applying the judgment of the latter to the former.
Only qualified scholars are entitled to exercise this form of individual reasoning. Other sources include Istihsān or public interest.
The Hanbali School calls it Istislāh, whiles the Maliki School refers to it as al-Masālih al-Mursala.
The primary sources of the Islamic religion are of divine nature; the subordinate sources, however, are deduced by a human intellectual process called Ijtihād.
The findings of Ijtihād are not symmetrical among Muslim scholars due to social changes and peculiar challenges facing different Muslim societies. For this reason, despite having one Qur’an and almost the same traditions of the Prophet, 19 schools of thought (al-Madhāhib) developed during the first four centuries of Islam (although they have now merged into four).
As a result, Islamic law, as a system of rules or legal regime, is not monolithic since it accommodates a magnitude of jurisprudential differences within it.
How it came about
To understand how Islamic law came about, it’s important to understand a little bit of history. Prophet Muhammad (PBUH) is believed to have been born in 570 CE. The beginning of Qur’anic revelation to him was from 610 CE. Early Muslims followed the guidance of the Qur’an and the example of the Prophet (PBUH).
If they had a question, they could just ask him. After he died, people would moot their questions to the Prophet’s family and companions. The Prophet’s companions and family would often tell stories about things the Prophet said, did, or tacitly approved, to help explain their answers. These stories came to be called Hadīth.
It was not long before the Prophet’s companion and family died. People needed a way to figure out answers based on the Qur’an and Hadīth. They started looking for patterns and principles.
The patterns and principles were put together into a system, along with specific rules in the Qur’an and Hadith, so people could figure out the answers to their questions. The people who embarked on this project also included prevailing cultural practices in their part of the world.
How it began
As time went on, people had new questions about new problems. Religious scholars could use patterns and principles to try to figure out what people should do. The goal was to try to get as close as possible to what Prophet Muhammad (PBUH) would have said if he were still alive.
This process and the solutions they found were called ijtihād. Even very religious, well-learned scholars disagreed with each other and many times they made mistakes. That is why there are different Islamic schools of thought, called the Madhāhib.
The global system
Muslim majority countries today are part of a world system, which is based on a European model of the modern nation-state.
This model affects political, economic, and social relations among nations. By using this model, Islamic countries take on national, sub-regional, and international obligations, such as participation in human rights treaties, regulations governing international relations, etc.
Some international treaties, such as those concerning human rights, reflect the teachings of the Qur’an and the Prophet (PBUH).
However, they are applied under the authority of international law, not under the authority of Islam. What’s more, these agreements are binding on nations—even if some of their provisions violate Islamic law.
If Muslim majority countries were to reject this world system and the structure of the modern nation-state in order to live completely in accordance with Islamic law, it would require changing everything from government systems to territorial boundaries. It would isolate these countries from the rest of the world, socially, economically and politically.
Islamic Law is not Sharia
Muslim majority countries today apply laws that are based on human interpretation and judgment, even when they are called Islamic Law. Islamic Law is not Sharia for the following reasons. Sharia is a moral religious system, not a legal system.
Whenever countries claim to apply Islamic Law, they can only apply the laws rulers selected from different interpretations of Sharia. Some laws are chosen over others because of the social and political situation of the country or because those laws help in preserving the prevailing cultural values of the state. The result would not be considered by any Madh’hab as a ‘Sharia Law’.
Again, Sharia is a set of guidelines for living a responsible moral life. It covers how a person can relate to God and to others ethically. It is open-ended and flexible, while the law is not. The principles of Sharia do not provide everything needed for a complete legal system.
Further, the law requires people to do or not do specific things, while the Qur’an says there is no compulsion in matters of faith. Islam gives Muslims the freedom to choose among different views — a choice only the individual believer can make because, in Islam, only the individual is responsible for his or her choices before God.
See you here next Friday.