In the West, the word Shari’ah often evokes images of an archaic law that punishes adultery and theft and other wrongdoings with a harsh penal code. These perceptions have been informed by centuries old propaganda that are found even today in cartoons like Aladdin. Recently in the U.S. there’s been an effort to ban Shari’ah law for fear that it may threaten the American way of life. But, a more objective assessment of Shari’ah tells another story.
Meaning of Shari’ah
The word in Arabic literally means “pathway” and historically, even before the coming of Islam, referred to a pathway to a water well. In Muslim conceptions, the Shari’ah is the path to God.
The path offers guidance on how to live according to God’s teachings and preferences. It is the totality of Islam’s legal and ethical vision for human beings and societies living under God’s gaze.
The constitutional sources of the Shari’ah are what Muslims consider to be the divinely revealed Qur’an and the divinely inspired Sunnah or Way of the Prophet Muhammad.
The Shari’ah, as Muslims have understood it through the ages, is not a legal code found in a book.
Rather, the Shari’ah is a living tradition that is interpreted by fallible human beings through the ages and further interpreted by every successive generation. This ever evolving intellectual and spiritual exercise to determine the pathway to God is known as fiqh – which literally means human understanding and refers to Islamic jurisprudence. The specialists or scholars of fiqh are known as fuqaha or jurists.
The Shari’ah Applied
The jurists have determined that there are aspects of the Shari’ah that are fixed for every time and place (such as the religious duty to pray 5 times a day or the prohibition of eating pork) with some exceptions.
Other aspects of the Shari’ah are changeable according to context (such as specific rules governing business transactions or diplomacy between Muslims and others).
Most aspects of Shari’ah are applied by an individual and governed by God-consciousness (such as fasting in the month of Ramadan) or certain informal social standards (such as appropriate ways of dressing).
Few aspects of Shari’ah are enforceable by governing legal authorities. Today, Muslim societies govern their affairs and apply the Shari’ah in very different ways. Laws in Muslim societies are not determined by Islamic jurisprudence alone. There are local customs that predate Islam and remains of colonialist laws that are mixed in with local interpretations of Shari’ah.
There are certain aspects of Shari’ah (such as punishments for wrongdoings) that cannot be applied without state sanctioned authority and, therefore, do not apply in the lands where Muslims do not govern.
Local communities have wide leeway in their interpretation of the Shari’ah given that Islam is a decentralized religion.
Fiqh, by its very nature as human interpretation, is largely open to rigorous discussion and debate.
In the few circumstances where there is consensus (ijma’) (such as the prohibition of consuming all intoxicants) it becomes part of judicial precedence in later times.
Usually the discourse leads to difference (ikhtilaf) – agreeing to disagree. Over the centuries these differences became more formalized into different schools of fiqh.
Muslims largely follow the school of their local country or community or religious teacher.
Objectives of Shari’ah & Penal Codes
The Shari’ah, according to the jurists, is primarily concerned with protecting and promoting six basic individual and social values: life, intellect, religion, wealth, family, and dignity.
Every ethical or legal prescription or prohibition in the Shari’ah goes back to these. When jurists determine that a particular religious directive contravenes one of these six values then the directive may be suspended or reformed.
The Shari’ah’s penal code (huddud), which is a very minor aspect of Shari’ah, is interpreted by judges who are given wide flexibility in Islamic jurisprudence to determine punishments based on scripture, yes, but also other principles and maxims including innocent until proven guilty and insistence on mercy. In Islamic history the penal codes were rarely applied. More often reasons for leniency were found and applied.
To conclude, the Shari’ah – like other religious ethical-legal traditions such as Hallakah in Judaism or Canon Law in the Catholic Church, are a set of obligations, encouragements, permissions, discouragements, prohibitions, principles and maxims that come together to guide individual Muslims and communities of believers toward the pathway of God as interpreted not only by scholars but by the ever evolving worldwide Muslim community.
- Seekers Hub Online Fatwas
- The Spirit of Islamic Law, Bernard G. Weiss
- An Introduction to Islamic Law, Wael B. Hallaq
- Reasoning with God: Reclaiming Shari‘ah in the Modern Age, Khaled Abou El Fadl