Sharia Law - Divine Law of the Muslim World
Last updated 2009-09-03
All aspects of a Muslim's life are governed by Sharia.
Sharia law comes from a combination of sources including the Sharia Law, the
sayings of the prophet and the rulings of Islamic scholars.
Introduction
Sharia
Sharia is a now a familiar term to Muslims and
non-Muslims. It can often be heard in news stories about politics, crime,
feminism, terrorism and civilization.
All aspects of a Muslim's life are governed by Sharia.
Sharia law comes from a combination of sources including the Qur'an
(the Muslim holy book), the Hadith
(sayings and conduct of the prophet Muhammad) and fatwas (the rulings of Islamic scholars).
Many people, including Muslims, misunderstand Sharia.
It's often associated with the amputation of limbs, death by stoning, lashes
and other medieval punishments. Because of this, it is sometimes thought of as
draconian. Some people in the West view Sharia as archaic and unfair social ideas
that are imposed upon people who live in Sharia-controlled countries.
Many Muslims, however, hold a different view. In the
Islamic tradition Sharia is seen as something that nurtures humanity. They see
the Sharia not in the light of something primitive but as something divinely
revealed. In a society where social problems are endemic, Sharia frees humanity
to realize its individual potential.
Sharia in
the UK
Dr Rowan Williams, the Archbishop of Canterbury, gave
his comments on implementing Sharia in the UK
A discussion
of Sharia
Dr Usama Hasan is the imam of the Tawhid Mosque and an
advisor to the London Sharia Council. Faisal Aqtab is a barrister and head of
the Hijaz College Islamic University. Dr Haleh Afshar is Professor in Politics
at York University
They discuss the Muslim vision of Islamic law, the
source and interpretation of Sharia, punishments and the status of women.
The philosophy of Sharia
The
philosophy of Sharia - the Clear Path
In this section, Faraz Rabbani
explains that there is a comprehensive Islamic philosophy underpinning Sharia.
For
each We have appointed a divine law and a traced-out way. Had God willed, He
could have made you one community. But that He may try you by that which He has
given you. So vie one with another in good works. Unto God yQou will all return,
and He will then inform you of that wherein you differ.
ur'an, 5:48
For Muslims, life did not begin at birth, but a long
time before that. Before even the creation of the first man. It began when God
created the souls of everyone who would ever exist and asked them, "Am I
not your Lord?" They all replied, "Yea."
God decreed for each soul a time on earth so that He
might try them. Then, after the completion of their appointed terms, He would
judge them and send them to their eternal destinations: either one of endless
bliss, or one of everlasting grief.
This life, then, is a journey that presents to its
wayfarers many paths. Only one of these paths is clear and straight. This path
is the Sharia.
Divine
guidance
In Arabic, Sharia means "the clear, well-trodden
path to water". Islamically, it is used to refer to the matters of
religion that God has legislated for His servants. The linguistic meaning of
Sharia reverberates in its technical usage: just as water is vital to human
life, so the clarity and uprightness of Sharia is the means of life for souls
and minds.
Throughout history, God has sent messengers to people
all over the world, to guide them to the straight path that would lead them to
happiness in this world and the one to follow. All messengers taught the same
message about belief (the Qur'an teaches that all messengers called people to
the worship of the One God), but the specific prescriptions of the divine laws
regulating people's lives varied according to the needs of his people and time.
The Prophet Muhammad
(God bless him and give him peace) was the final messenger and his Sharia
represents the ultimate manifestation of the divine mercy.
"Today I have perfected your way of life (din)
for you, and completed My favour upon you, and have chosen Islam as your way of
life." (Qur'an,
5:3) The Prophet himself was told that, "We have only sent you are a mercy
for all creation." (Qur'an, 21:179)
Legal
rulings
The Sharia regulates all human actions and puts them into
five categories: obligatory, recommended, permitted, disliked or forbidden.
Obligatory actions must be performed and when
performed with good intentions are rewarded. The opposite is forbidden action.
Recommended action is that which should be done and the opposite is disliked
action. Permitted action is that which is neither encouraged nor discouraged.
Most human actions fall in this last category.
The ultimate worth of actions is based on intention
and sincerity, as mentioned by the Prophet, who said, "Actions are by
intentions, and one shall only get that which one intended."
Life
under the Sharia
The Sharia covers all aspects of human life. Classical
Sharia manuals are often divided into four parts: laws relating to personal
acts of worship,
laws relating to commercial dealings, laws relating to marriage and divorce,
and penal laws.
Legal
philosophy
God sent prophets and books to humanity to show them
the way to happiness in this life, and success in the hereafter. This is
encapsulated in the believer's prayer, stated in the Qur'an, "Our Lord,
give us good in this life and good in the next, and save us from the punishment
of the Fire." (2:201)
The legal philosophers of Islam, such as Ghazali,
Shatibi, and Shah Wali Allah explain that the aim of Sharia is to promote human
welfare. This is evident in the Qur'an, and teachings of the Prophet.
The scholars explain that the welfare of humans is
based on the fulfillment of necessities, needs, and comforts.
Necessities
Necessities are matters that worldly and religious
life depend upon. Their omission leads to unbearable hardship in this life, or
punishment in the next. There are five necessities: preservation of religion,
life, intellect, lineage, and wealth. These ensure individual and social
welfare in this life and the hereafter.
The Sharia protects these necessities in two ways:
firstly by ensuring their establishment and then by preserving them.
· To ensure the
establishment of religion, God Most High has made belief and worship
obligatory. To ensure its preservation, the rulings relating to the obligation
of learning and conveying the religion were legislated.
· To ensure the
preservation of human life, God Most high legislated for marriage,
healthy eating and living, and forbid the taking of life and laid down
punishments for doing so.
· God has permitted
that sound intellect and knowledge be promoted, and forbidden that which
corrupts or weakens it, such as alcohol and drugs. He has also imposed
preventative punishments in order that people stay away from them, because a
sound intellect is the basis of the moral responsibility that humans were
given.
· Marriage was legislated
for the preservation of lineage, and sex outside marriage was forbidden.
Punitive laws were put in placed in order to ensure the preservation of lineage
and the continuation of human life.
· God has made it
obligatory to support oneself and those one is responsible for, and placed laws
to regulate the commerce and transactions between people, in order to ensure
fair dealing, economic justice, and to prevent oppression and dispute.
Needs and
comforts
Needs and comforts are things people seek in order to
ensure a good life, and avoid hardship, even though they are not essential. The
spirit of the Sharia with regards to needs and comforts is summed up in the
Qur'an, "He has not placed any hardship for you in religion," (22:87)
And, "God does not seek to place a burden on you, but that He purify you
and perfect His grace upon you, that you may give thanks." (5:6)
Therefore, everything that ensures human happiness,
within the spirit of Divine Guidance, is permitted in the Sharia.
Sources
of the Sharia
The primary sources of the Sharia are the Qur'an and
the example of the Prophet Muhammad.
The
Qur'an
The Qur'an was revealed to the Prophet
gradually, over 23 years. The essence of its message is to establish the oneness
of God and the spiritual and moral need of man for God. This need is fulfilled
through worship and submission, and has ultimate consequences in the Hereafter.
The Qur'an is the word of God. Because of its
inimitable style and eloquence, and, above all, the guidance and legal
provisions it came with, it ensures the worldly and next-worldly welfare of
humanity.
God Most High said, "Verily, this Qur'an guides
to that which is best, and gives glad tidings to the believers who do good that
theirs will be a great reward." (Qur'an, 17:9) And, "There has come
unto you light from God and a clear Book, whereby God guides those who seek His
good pleasure unto paths of peace. He brings them out of darkness unto light by
His decree, and guides them unto a straight path." (Qur'an, 5:15)
The
Prophetic example (Sunna)
The Prophet's role was expounded in the Qur'an,
"We have revealed the Remembrance [Qur'an] to you that you may explain to
people that which was revealed for them." (16:44)
This explanation was through the Prophet's words,
actions, and example. Following the guidance and the example of the Prophet was
made obligatory, "O you who believe, obey God and obey the
Messenger," (4: 59) and, "Verily, in the Messenger of God you have a
beautiful example for those who seek God and the Last Day, and remember God
much." The Prophet himself instructed, "I have left two things with
you which if you hold on to, you shall not be misguided: the Book of God and my
example." [Reported by Hakim and Malik]
Derived
sources
There are two agreed-upon derived sources of Sharia:
scholarly consensus (ijma')
and legal analogy (qiyas).
Scholarly
consensus
The basis for scholarly consensus being a source of
law is the Qur'anic command to resolve matters by consultation, as God stated,
"Those who answer the call of their Lord, established prayer, and whose
affairs are by consultation." (42:38) Scholarly consensus is defined as
being the agreement of all Muslim scholars at the level of juristic reasoning
(ijtihad) in one age on a given legal ruling. Given the condition that all such
scholars have to agree to the ruling, its scope is limited to matters that are
clear according to the Qur'an and Prophetic example, upon which such consensus
must necessarily be based. When established, though, scholarly consensus is
decisive proof.
Legal
analogy (Qiyas)
Legal analogy is a powerful tool to derive rulings for
new matters. For example, drugs have been deemed impermissible, through legal
analogy from the prohibition of alcohol that is established in the Qur'an. Such
a ruling is based on the common underlying effective cause of intoxication.
Legal analogy and its various tools enables the
jurists to understand the underlying reasons and causes for the rulings of the
Qur'an and Prophetic example (sunna).
This helps when dealing with ever-changing human situations and allows for new
rulings to be applied most suitably and consistently.
Beyond
ritualism
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| New Caliphate |
The ultimate aim of those who submit to the Sharia is
to express their slavehood to their Creator. But the Sharia does bring benefit
in this world too.
This way has been indicated in a Divine statement
conveyed by the Prophet.
My
servant approaches Me with nothing more beloved to Me than what I have made
obligatory upon him, and My servant keeps drawing nearer to Me with voluntary
works until I love him. And when I love him, I am his hearing with which he
hears, his sight with which he sees, his hand with which he seizes, and his
foot with which he walks. If he asks Me, I will surely give to him, and if he
seeks refuge in Me, I will surely protect him.
Prophet Muhammad, reported by Bukhari
If the legal dimension of the Sharia gives Islam its
form, the spiritual dimension is its substance. The spiritual life of Islam,
and its goal, was outlined in the Divine statement (mentioned above).
The Prophet explained spiritual excellence as being,
"To worship God as though you see Him, and if you see Him not, [know that]
He nevertheless sees you.
The spiritual life of Islam is a means to a
realization of faith and a perfection of practice. It is to seek the water that
the Sharia is the clear path to, water that gives life to minds and souls
longing for meaning.
It is this spiritual life, at its various levels, that
attracts Muslims to their religion, its way of life, and to the rulings of the
Sharia.
And
those who believe are overflowing in their love of God.
Qur'an 2:165
A
personal view of Sharia
In this section Ruqaiyyah Waris
Maqsood, a British Muslim, addresses some common questions about
Sharia.
These are the author's views and not the
views of the BBC nor a definitive treatment of the topic. This is a controversial
area and no personal view can provide a definitive analysis of the subject;
other people may approach it differently and hold different views and
interpretations.
How did
Sharia start?
The Prophet Muhammad
(pbuh) laid down the laws - some of them were direct commands stated in the
revelation of the Qur'an; other laws grew up based on the Prophet's own example
and the various rulings he gave to cases that occurred during his lifetime.
These secondary laws are based on what's called the Sunnah - the Prophet's
words, example, and way of life.
So, all the laws of Sharia are based primarily on
Qur'an and then on Sunnah, and after that, if there was no information in those
two sources, judges were free to use their intelligence to make analogies. As
in most legal systems, cases could then be referred to by later judges.
What,
nowadays, is the authoritative source of Sharia?
Just the same as outlined above. What is important, however,
is that judges are highly educated in Islamic law and jurisprudence, and this
is an area where some damage was done during the colonial periods when Islamic
schools of law were closed down with a great loss of knowledge and expertise
which is only now being repaired slowly. The problem is that it is all too easy
for an individual judge to make some pronouncement or invoke some penalty
without full knowledge of the background of Sharia and the spirit behind the
various laws and penalties.
What are
the basic principles of Sharia?
These are to see the will of God done on earth as it
is in Heaven (as in the Christian Lord's Prayer).
How can we possibly know this will? By study of the revealed scriptures and by
choosing talented, intelligent and far-sighted merciful people of excellent
character as our judges. The whole principle of God's will is to bring about
compassion, kindness, generosity, justice, fair play, tolerance, and care in
general, as opposed to tyranny, cruelty, selfishness, exploitation etc. All the
rules of Sharia are towards those ends.
The usual criticisms of Sharia - that it is so cruel
as regards execution, flogging and cutting off hands - totally ignore all the
extenuating circumstances that would lead to these penalties not being applied.
They are known as hadd
penalties (pl. hudud), the
extreme limit of the penalty. Thus, if a person was sentenced to having a hand
cut off, he or she should not be sent to prison and/or be fined as well. People
who regard these practices as cruel will never be persuaded otherwise, so
Muslims usually leave that aside. Their point is that the cutting of the hand
for theft is a very powerful deterrent - Muslims care less for the callous and
continual thief than they do for the poor souls who are mugged and robbed and
hurt by the thieves.
The Middle East is
certainly not full of one-handed people - as any traveller would tell you. What
we have lost here is the horror of dishonour that true Muslims still have. They
would do anything rather than offend Allah, and they of course believe that
Allah sees every single thing that is done - there are no secrets. Even if you
get away with something on earth, it has been seen and recorded and you will
have to face judgement for it eventually, and the people hurt by your action
will be recompensed. Of course, if you do not believe in God, or a judgement,
or a life to come, the whole system is quite meaningless to you. In Sharia law,
if a thief could prove that he/she only stole because of need, then the Muslim
society would be held at fault and made to supply that need, and there would be
no hand-cutting. Most thieves would think twice before risking a hand on
mugging an old lady for her handbag!
Adultery
In the west, adultery has become so commonplace
because of sexual freedoms - all the emphasis these days seems to be on finding
sexual satisfaction; in Muslim societies, there is far less emphasis on sex -
it is usually regarded as a weakness that can lead to all sorts of trouble.
Family is far more important; the notion of a million unborn children per year
being aborted,
and single mothers, is abhorrent in Islam.
Murder
Sharia law for murder allows the death penalty,
but is kinder than western law in one respect - after judicial judgement has been
made, appeals are then allowed to the family of the murdered victims, and they
are begged to be merciful. In Islam, it is always regarded as the height of
mercy to forgive a murderer, even though one may have the right to take his/her
life in reprisal.
The form of execution is not specified in Islam - i.e.
it is not usually a stoning. Beheading used to be regarded as the quickest and
most merciful way (as in Roman law, and the French guillotine); these days
other methods may find approval. There are apparently far fewer executions in
most Muslim countries than in the USA
In some Muslim societies, judges and populaces might
stone out of mistaken belief that this was what Islam required. In fact, Islam
made it virtually impossible - to be sentenced to death for adultery, the
couple had to be actually witnessed performing the physical act by four people
who were in a position to identify both parties without doubt; this virtually
ruled out the penalty, since adultery is taken for granted as a secret act and
something not done in public.
Is Sharia
the same in all countries?
I'm afraid I do not know the answer to this, but
certainly the principles are exactly the same in whatever country they are applied.
Individual
rights vs needs of society?
Basically in Islam the needs of society always come
first, with the proviso that injustices should always be able to be taken to
judges who are not corrupt. The old Arab system allowed any person, no matter
how humble, to take his/her case to the highest in the land personally. Islam
brings a very strong sense of justice, and care of the oppressed and exploited.
Does
Sharia make life easier or harder for the ordinary Muslim?
Much easier for those who strive to live the correct
life pleasing to God and in kindness and peace with the neighbour; much harder
for the one who is selfish, callous, cruel, exploitative, dishonest etc. There
is virtually no sympathy for such people - unless they really are mentally ill,
in which case they are not regarded as culpable in Sharia. All those before the
age of puberty, or not of sound mind, are not regarded as culpable.
Why has
Sharia become a synonym for cruelty and lack of compassion?
I think through two things - ignorance of the reality
of Sharia law, and much publicised cases where Muslims in positions of
authority have been very poor Muslims, if not non-Muslims in Muslim disguise.
For example, 100 years ago we had stories of awful Turkish sultans, and people
being rushed to blocks to have their hands cut off etc. The media picks out
certain cases and blows them up to make a big drama of them - they might pick
on one particular murderer on death row in the USA and rouse everyone's
feelings, but totally ignore all the others due to be executed that day!
A case like the Nigerian woman in danger of being
stoned for adultery is a case in point. She might have been stoned by irate
villagers, but on being taken into custody and judged by Sharia law she gets
the opportunity to appeal and explain etc. In her case, if it is true that she
was raped, she most certainly would not be sentenced to death. What interests
me is who were the rotten people who brought the case against her anyway?
Incidentally the correct Islamic method of stoning according
to Sharia was similar to that advised by the Pharisees at the time of Jesus -
the person was held fast in a fixed position, and a stone or rock that it took
two men to lift (i.e. was heavier than one man could lift alone) was to be
dropped to crush the head - it was not someone tied to a post and rocks hurled
at them, although this has been done in some cultures. The point was that if
someone really had to be executed, it was to be done swiftly, with as little
torture as possible, and usually publicly so that no vindictive person could do
further nasty things behind the scenes and get away with it.
Sharia should promote gender equality. In fact, the
natural Islamic tendency is to always consider women as the weaker sex in need
of care and protection, and come down hard on the men who allow their womenfolk
to get into difficulties.
Dress
Sharia does not require women to wear a burqa.
There are all sorts of items of dress which are worn by Muslim women, and these
vary all over the world. Burqas belong to particular areas of the world, where
they are considered normal dress. In other parts of the world the dress is
totally different. The rule of dress for women is modesty, the word hijab
implies 'covered'.
Some Muslim women feel that they should cover
everything from neck to ankle, and neck to wrist. Others also include a head
veil (this is the most controversial bit, and millions of Muslim women choose
to wear it, or alternatively choose not to wear it - and there is much
disagreement between the types!), and finally some choose to cover even their
faces, although there is no Islamic text requiring this extreme. My own
preference is a long black dress and a white headscarf - I have never worn a
burqa in my life. Incidentally, when men try to enforce Muslim dress on women,
this is forbidden - no aspect of our faith is to be done by coercion. It is up
to the woman what she chooses to do - some choose full hijab and their men hate
it!
Forced
and arranged marriages
In Sharia Law any marriage that is forced or false in
any way is null and void. It is not a proper marriage. This is a problem that seems
to plague Muslim women from India/Pakistan/Bangladesh and nowhere else in the
Islamic world - and it also applies to Hindus and some Sikhs from those areas
too.
Forced marriage
is totally forbidden in Islam. False marriage is too - for example, some of our
teenage girls are sent back to Pakistan UK
Forced marriage is not at all the same thing as
arranged marriage. Muslims from many countries have a system of arranged
marriages, in which the spouses may not have seen each other before marriage,
but it always has to be with their free consent. The Prophet himself advised
prospective spouses to at least 'look' at each other, until they could see what
it was that made them wish to marry that person as opposed to any other. Women
forced into marriage, or seeking divorce for general reasons, have the same
sort of grounds in Sharia as in the west - cruelty, mental cruelty, adultery,
abandonment, etc. They may even request a divorce for no specific reason
whatever, so long as they agree to pay back the mahr (marriage payment) made to them by their husband if
the husband does not wish to let them go but are obliged to.
Men
having many wives?
Men and women can have as many spouses
as they can fit into a lifetime; but this is not generally approved. Women are
requested to have only one husband at a time (there is evidence that wealthy
Arab women were polyandrous before the coming of Islam - certainly wealthy men
were polygynous), and men are limited to four at one time, whereas previously
there had been no limit, and a wealthy and generous man was expected to cater
for as many women as he could afford (in the absence of a welfare state).
Allah sent the proviso that no Muslim was ever to
deliberately cause hurt or harm to another Muslim, so a man might not take
extra womenfolk into his home if it would cause upset and distress (it was
recommended when there were lots of widows after warfare, if the women were
willing to be generous to bereft 'sisters'). Also, if a man could not provide
equal treatment of his wives - equal food, clothing, money, living quarters,
time spent with - he was refused permission for polygamy.
Equal sexual activity was not ruled on, however. Some
wives had no sexual relationship with their husbands at all after a while, or
if they came into the household as widows of relatives. Don't forget that most
widows also came with their children. When the Prophet married the widow Sawdah
he took on six of her children, and with Umm Salamah another four, for example.
Sharia
and food
The rules are those of haram (banned) and halal
(allowed). All vegetable, fruit, grain and seafood is halal. Meat is halal
providing it has been killed in the kindest possible way by a sharp instrument
that pierces and kills swiftly (sharp knife, bullet, sword), and the
appropriate prayers are said at its death (or at the time of eating if one is
not certain).
Muslims may not eat any food that has been sacrificed
to idols (e.g. Hindu meat), but kosher is fine. They may not eat any pork
product or flesh with blood undrained from it; the most extreme Muslims will
not touch anything that has animal fat included - even a biscuit - in case it
is pork lard or gelatine from an animal not killed in the halal manner. If
Muslims eat haram food without realizing it is harem (i.e. some butchers 'fake'
their halal tickets), they are not held to blame, but judged by their
intention. In cases of necessity, Muslims may eat anything available, even
pork, rather than suffer hardship. Alcohol is haram.
The
Prophet's wife Aishah
No-one is absolutely certain of her age when she
married the Prophet, but it could have been as young as 6; some scholars
believe she was ten years older. However, the majority go for the age of 6. The
marriage that took place then was an agreement on paper, there was no physical
relationship until Aishah reached puberty - but this in itself could have been
at around 9 or 10 years old. That is not an unusual age for menstruation to
start in hot climates, and once a girl is capable of producing a child she is
regarded as technically a woman. Sex for children under 16 is forbidden by law
in the UK
In Muslim countries it is considered far better to get
youngsters married as soon as they show inclinations to have sex - then they
can have it honorably, as much as they like, and the children born are not
illegitimate. Many Muslim countries in fact do try to keep to the age of about
16 for marriage (as is the legal age in the UK
In
countries where Sharia law is enforced, how are specific punishments decided on
and who makes these decisions?
The specific punishments are decided on by the lawyers
of the land, many of whom have been educated and trained in the west!
Would
many Muslims in Britain
I think many Muslims in the UK
I once left my expensive camera on a wall in Egypt
I don't think lawyers in the UK UK
What
areas of law do Muslims in Britain
I think Muslims generally are shocked by the general
lack of respect and discipline here, especially if they are immigrants and not
born here. They are particularly shocked by lack of discipline in schools and
the difficulties faced by so many teachers in getting children to behave in
class and actually learn.
They are shocked by the appalling rates of theft,
drunkenness, drug addiction, sex outside marriage, abortions, rape of children
and old ladies, homosexuality - especially when it is being put forward as
quite normal and an acceptable alternative sexual lifestyle; homosexuals in
positions of authority (from teachers to MPs).
They are also shocked by the general lack of respect
for those in authority, and older people in general. In Muslim homes, children
would probably be expected not to smoke in front of parents, not to sit down or
start eating before them.
Further
reading
Islam: A Sacred Law: What Every Muslim
Should Know About the Shariah, Feisal
Abdul Rauf, Kazi Pubns. ISBN: 0939660709
Teach Yourself Islam (Teach Yourself), Ruqaiyyah Waris Maqsood, pub. Teach Yourself. ISBN:
0340859687
Islamic Sharia and the Muslims, M.S. Siddiqui, Kazi Publications. ISBN: 0686639057
Woman in Islamic Shariah, Maulana Khan, Goodword Books. ISBN: 8185063761
World of Fatwas: Shariah in Action, Arun Shourie, Sharad Saxena (illustrator), pub. ASA.
ISBN: 8190019953
Bibliography
for 'The philosophy of Sharia - the clear path'
Al-Madkhal li Dirasat al-Shariah
al-Islamiyya (Abd al-Karim Zaydan)
Usul al-Fiqh al-Islami (Wahba Zuhayli)
Al-Muwafaqat (Shatibi)
Hujjat Allah al-Baligha (Wali Allah
al-Dahlawi)
Reliance of the Traveller (tr Nuh Keller)
Al-Tahrir (Ibn al-Humam)
.
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