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What is Islamic
Law (Shari'ah)?
“Shariah is
based on wisdom and achieving people’s welfare in this
life and the afterlife. Shari'ah is all about justice,
mercy with its opposite, common good with mischief, or
wisdom with nonsense, is a ruling that does not belong
to the Shariah, even if it is claimed to be so according
to some interpretation.” [1]
–
Ibn Qayyim al-Jawziyya
"To
each among you, we have prescribed a law and a clear way. (Qur
'an 5:48)
Linguistically, the
word shari'ah means the revealed, or canonical, law of Islam.
shara'a
: to
go, enter, to begin, start, to prescribe, to legislate
shar'i : lawful, legitimate, legal, rightful
shar'iyah :
lawfulness, legality, legitimacy, rightfulness
tashri' :
legislation, legal regulations
mashru' :
legitimate, legal, lawful, regulated by Revelation (Islamic
law).
(Taken from
the
Hans Wehr Dictionary of Modern Written Arabic).
A
definition of Shari'ah by
The Concise Encyclopedia of Islam(Glasse 1989, p. 361) is as
follows:
Revealed
Law, also called al-Shariah. The canonical law
of Islam as put forth in the Koran and the Sunna and
elaborated by the analytical principles of the four orthodox
schools (madhhab=pl. madhahib), the Shafi’I, Hanbali, Hanafi,
and Maliki, together with that of the Shi’ites, and the
Ja’fari.
The Shari'ah,
as recognized by all Muslims is the set of rules decreed by the
Quran and the Pophet's Sunnah as the main sources.
Although there exist arguments for secularism and separation
between religion and state, many would still recognize the
Islamic law or Shari'ah as an embodiment of Islamic codes
and regulations.
| Shari`ah |
|
1-Qur'an |
2-Sunnah of the prophet (saas) |
|
Ideology and faith |
Sayings |
|
Behavior and manners |
Actions |
Practical
manners
-
Articles of worship
-
Day-to-day activities
Pertaining
to family, business,
penal code, government,
international law, economy. |
Concurrence with others' actions |
|
Characteristics of the Prophet (saas) |
("Shariah
and Fiqh", Univesity of Southern California Compendium
of Muslim Text)
The Importance and Goals of Shari'ah
Allâh
burdens not a person beyond his scope. He gets reward
for that (good) which he has earned, and he is punished
for that (evil) which he has earned. "Our Lord! Punish
us not if we forget or fall into error, our Lord! Lay
not on us a burden like that which You did lay on those
before us (Jews and Christians); our Lord! Put not on us
a burden greater than we have strength to bear. Pardon
us and grant us Forgiveness. Have mercy on us. You are
our Maulâ (Patron, Suppor-ter and Protector, etc.) and
give us victory over the disbelieving people." (Al-Baqarah,
286) [3]
Muslims are aware that the
Shari'ah laws are based on self-control and compassion,
not on coercion and brutality. In Islam, the fulfillment of
religious obligations is related upon human ability. The Shariah
permits all that is clean and wholesome and forbids what is
harmful. Therefore it is intended at making life easier and more
convenient, encourages and promotes good and positive
conduct and forbids all that undermines society.
"He created for you all that is on
the earth" (al-baqarah, 29)
The use of everything found in or on
this earth is permissible. What is halal and what is haram are
clearly defined. The grey areas in between are the issue of
fiqh, debate and ijtihad.
In describing the importance of the
Sharia'h to Muslim society
Charnay (1971, pp. 77-78) states:
In Islam, the law aims at
providing guidance, but not as a mere instrument. It has a
much more far-reaching vocation. It creates a mode of living
and tends to regulate all human activity, or to qualify it
with respect, if not to an ethics, at least to a law,
transcending not only the individual, but all humanity.
Furthermore, Muslem law is not only pragmatic. Over and
above the striving for efficaciousness and security
it[Muslem law] constitutes an act of piety in its
application. The general rule is absolute for the believer,
who is however modest in his condition, must respect it. It
is a blessing to strive continually for a better attainment
of that end. In view of this moral purpose, the social
desiderata on non-contradiction and legal efficaciousness
shrink in importance.
Is there a problem with the Islamic Law?
With the media
portraying the wrong representation of the Islamic law, it is
not hard for the general public to have preconceived notions
about Islamic law. Is there any problem with the Islamic law?
Jasser Auda in his book “Maqasid
Al-Shariah as Philosophy of Islamic Law: A Systems Approach”
talked about the problems with the Islamic law in three
different contexts;
 If
you mean by the “Islamic Law” the Shari'ah,
i.e. the revelation that was given to Muhammad (pbuh), which
he internalized, practiced in his own life, and went through
a long educational process to educate his companions and the
world about it – then the answer is “NO”. There is no
problem with the ‘Islamic Law’. It is a way of life that is
all about justice, mercy, wisdom, and good, as Ibn Qayyim
had mentioned.
If you mean by the ‘Islamic Law’
the fiqh, i.e. the Islamic schools of law’s
wealth of heritage, then the answer is also: NO.
There is nothing wrong, generally speaking, with juridical
reasoning carried by scholars for their own environments and
times. It is true that some individual scholars had made
mistakes and/or had taken controversial positions on issues.
However, this is the nature of juridical research. The role
of scholars, at all times, is to correct each others and
participate in the ongoing debates.
However, if you mean by the
‘Islamic Law’
fatwa, then the answer is: It depends on how
the fatwa is issued! Some fatawa are
manifestations of Islam and its moral values, and some
others are simply wrong and un-islamic. If the fatwa
is copied verbatim from some classic book of Islamic Law,
then it is quite possibly flawed because it is quite
probably addressing a different world with different
circumstances. If the fatwa is based on some sort of
twisted interpretation of a script, with an aim to serve the
political interests of some powerful people, then it is
wrong and un-Islamic. If the fatwa is issued based on the
Islamic authentic sources, on one hand, while keeping
people’s welfare and the principle values/purposes of the
Islamic Law (Maqasid al-Shariah) in mind, on the
other hand, then it is a correct and valid fatwa. [4]
Confusion in Defining Terms.
When talking about
‘Islamic Law’, four different Arabic terms that are frequently
used. The terms are - fiqh, shariah, qanun and
‘urf. It is therefore imperative to be able to
distinguish the different meanings of these terms. Failure to do
so most often results in mutual accusations of heresy and
resistance of renewal of the Islamic law.
Fiqh and Shari'ah [5]
Fiqh, فقه
:
-
In the Quran and hadith, the
word fiqh is used in various forms to refer to
understanding, comprehension and gaining knowledge of
the religion in general.
-
Since the end of the era of
the imams of the Islamic schools of law/thought, the
word fiqh has been typically defined as, ‘knowledge of
practical revealed rulings extracted from detailed
evidences (al-‘ilmu bi al-ahkam al-shar’iyyah al-‘amaliyyah
min adillatiha al-tafsiliyyah).
-
Therefore, fiqh is
limited to ‘practical’ (‘amaliyyah) versus
theological (i’tiqadiyyah) issues. ‘Detailed
evidences’ are verses from the Quran and narrations of
hadith.
Shariah,
شريعة
:
-
In the English language the term
‘Shari’ah law’ has negative connotation because it is
usually used to refer to various physical punishments
adopted in some countries.
-
In the Quran, the word is used
to mean a ‘revealed of life,’ for example, the word ‘shir’ah’ in
Surah al-Maidah, and
the word shari’ah in
surah al-Jathiyah.
-
Yusuf Ali translated
them as ‘Law’ and ‘Way’, respectively.
-
Picktall translated
them as ‘divine law’ and ‘road’.
-
Irving translated
them as ‘code of law’ and ‘highroad’.
 Therefore, for theoretical and
practical reason, it is essential to clearly differentiate the
notion of both terms. Theoretically – fiqh represents the
‘cognitive’ part of the Islamic law, to use a systems term,
while shariah by definition, represents the ‘heavenly’ part of
this law. Thus, the term ‘faqih’ is used for people with
understanding (fahm), perception (tasawwur), and cognition (idrak)
and is not to be used for God. On the other hand, the term al-shari
is a name for God which means ‘The Legislator’ and could not be
used for humans, except for the Prophet, when he ‘conveys a
message from God’.
Qanun and ‘Urf[5]
Qanun :
-
is a Farsi word, which was ‘arabised’ to mean
principles or usul, and since the nineteenth century to mean
written laws. Written laws, in countries which endorse Islam as
a (or the) source of legislation, could be directly derived from
fatawa of fiqh (that is, opinions from one or more of the
schools of Islamic law, taken verbatim).
Urf :
-
Literally means custom or, more accurately,
a ‘good’ custom that the community approves.
-
‘Urf is sometimes
claimed to be ‘Islamic law’ in some societies in order to
approve some customary practices, even if they were clearly
prohibited in the Islamic schools of law, such as honor killings
that take place in some Arabic Bedouin areas and south-east asian areas.
-
In the school of fundamentals of law, most scholars
consider custom to be an effective factor only in the
application of the Islamic law, rather than a source of law in
its own right.
Read more on
Islamic Law (shari'ah)
-
Islamic
Law: Myths and Realities.
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