Published on October 18th, 2011 | by Imam Shamsi Ali0
Shariah is not limited to societal laws and a penal system. It includes divine directives regarding every aspect of a Muslim’s life. Referring to Shariah simply as “Islamic law” is therefore misleading. Shariah might be better described as an all-encompassing body of divine laws, teachings, codes of conduct, and guidance which are intended to optimally benefit the individual and society.
Root Meaning of Shariah
The etymology of the Arabic word “Shariah” refers to a waterway that leads to a main water source. An analogy can be made that just as water is the most necessary element (after oxygen) of a human’s physical existence, Shariah is the most essential provision to the spiritual well-being of a Muslim.
Definition of Shari’ah
We can define Shariah as “The guidance that God has provided His servants regarding belief, worship, daily affairs, manners, ethics, and all other areas of life, in order to organize their relationships with Him and each other and achieve happiness in this life and the next.” The above definition tells us that Shariah encompasses more than just law, touching upon all areas of the Muslim worldview, mindset, character, and actions. Shariah is the guidance that God has provided to humanity through the Quran and the Sunnah ( generally means Prophet’s teachings) — all the principles of belief, action, and daily living that which God has ordained for the believers.
The Nature of Shariah
Shariah is the framework of full guidance for a good life that Muslim scholars have derived from the direct revelation of God to man (the Holy Quran). Although God reveals the pattern of ultimate truth
indirectly through the workings of the physical universe, as well as in the observable nature of man, the ultimate source of knowledge about both physical and metaphysical reality — and therefore the ultimate
source of the Shariah — is the Quran. This divine text was revealed directly in human language to the Prophet Muhammad (peace be upon him), and is exemplified in the Sunnah which reports the
Prophet’s understanding of the final Revelation as shown through his words and deeds.
We can see from a more in-depth understanding of Shariah that it is not simply “law”, and especially not just penal law. Rather, it is the entire framework of moral, ethical, theological, and legal teachings of Islam
Since the major purpose of Shairah is to guide man’s search for truth, Shariah encompasses guidance related to both material and spiritual experience. All aspects of an individual’s spiritual understandings and undertakings, which come under the rubric of purification, tazkiyah, should be intentionally subjected to the criterion — the reality-check — of Islamic law. The deeply spiritual origin and essence of the Shariah, along with its superlatively pragmatic applicability to human life, provide the means for understanding and acting in accordance with the ethical standards that the Creator has provided. This guides every individual’s and community’s relations with other humans and with the rest of creation. The Shariah therefore provides the ultimate criteria for judgment on every aspect of life.
Two Divisions of Shariah
The first division encompasses al-ibadat, the acts of worship, which include: ritual purification, prayer, fasting, charities, pilgrimage to Mecca, and other ritual acts.
The second division encompasses al-mu’amalat, human interaction. These include:
- financial transactions
- laws of inheritance
- marriage, divorce, and child care
- food and drink (including ritual slaughtering and hunting)
- penal punishments
- warfare and peace
- judicial matters (including witnesses and forms of evidence)
- other forms of human dealings as time and place determine
Sources of Shariah
The major sources of the Shariah are the Quran and the Sunnah. The Quran is the Word of God and the Sunnah is the example of how to implement those teachings, principles, and wisdom in life, as embodied by the Prophet Muhammad (pbuh). The Quran is the major source for knowing the Shariah and sometimes its guidance is direct and specific, like in the case of inheritance law and prescribed punishments, and sometimes it conveys general principles, as is the case with issues such as honesty, integrity, mutual consultation, justice, and human dignity. The second major source for understanding the Shariah is the Sunnah of the Prophet Muhammad (pbuh). The Sunnah can be defined as the statements, actions, or tacit approval of the Prophet Muhammad (pbuh). From this definition we can see that the Prophet is a major source for understanding the Shariah. His guidance is generally more specific than the Quran and at times is a clarification or proper interpretation of a verse or verses. In fact, his wife Aisha is reported to have said, “His character was the Quran.”
The Shariah, based foremost on texts from Quran and Sunnah, embodies broad, general rules that are immutable. However, the adaptation of law according to time and circumstance is necessitated by changes in society, as well as the influx of various cultures and material conditions. Islam first came to one people with a particular lifestyle and cultural milieu. As the religion spread and the borders of Muslim lands expanded, all of the different civilizations, each with their own codes of law, traditions and cultures, had to be incorporated into the Islamic polity. This was not achieved overnight and took great foresight on the part of Muslim jurists, being most elegantly realized through the development of fiqh, Islamic jurisprudence. Islamic jurisprudence encompasses the legal rulings of the Muslim scholars, based on their knowledge of the shariah. In Arabic, fiqh means “deep understanding” or “full comprehension.” The divine laws of Shariah are undisputed, but scholarly differences in Islamic jurisprudence do exist.
While the Quran and Sunnah are the two primary sources of Islamic jurisprudence, ijma, or consensus, is considered a secondary or derivative source. Ijma is the verbal noun of the Arabic word “ajmaa” which has two meanings: to determine and to agree upon something. Ijma is a consensus of the scholars with regard to the rational elaboration and/or interpretation of any particular issue. The classical definition of ijma, as laid down by scholars, is categorical on the point that only universal consensus of Muslim scholars can be regarded as conclusive ijma. Only such ijma are considered definitive and binding. In fact, universal ijma is rare. As evidence shows, it is extremely difficult to obtain universal ijma on issues that involve ijtihad (the use of human reason) or tawil (interpretation). The only form of ijma upheld by the majority is the ijma of sahabis (companions of the Prophet). Any agreement by a majority, but not all scholars, can be a proof but not a binding proof.
Another derivative source of Shariah is qiyas, analogical reasoning. In literal terms, qiyas means measuring or ascertaining the length, weight or quality of something. Qiyas also means “comparison to establish equality or similarity between two things.” Within the framework of Islamic law, qiyas is the extension of a Shariah ruling, from an original law or situation or practice (particularly a practice of the Prophet) to a new case or situation or practice. The analogical reasoning of qiyas aims to discover the cause (illah) of a revealed law, for example, so as to extend it to similar cases. An example of this process can be illustrated by the prohibition of drinking wine as stipulated in the Quran. The prohibition is based on the intoxicating effect that diminishes physical and mental control and the subsequent neglect of God, prayer, and other religious requirements and boundaries. This is the “illah” of the prohibition of wine drinking. Therefore, based on qiyas, any substance which intoxicates is also prohibited.
Istihsan, also a derivative source for juristic rulings, literally means “to deem something preferable.” Within the framework of Islamic law, istihsan is a method of exercising personal opinion (ra’y), a “juristic preference” of an alternative ruling rather than the established one in order to avoid detriment to the ideals of justice or the public interest in any way.
Istihsan is not independent of Shariah, it is derivative of the principles and values that underpin Shariah.
Istihsan is an important branch of Islamic law, validated by by Hanafi, Maliki and Hanbali jurists as a subsidiary source of law that provides the flexibility to accommodate changes that take place over time in human society. Scholars of jurisprudence have cautioned about the overuse of istihsan or the potential misuse to override injunctions or circumvent principles laid down by Shariah. Its validity as a source of law, in fact, has been rejected by the Shafi’i school of jurisprudence. This school of fiqh validates qiyas and ijma as sources for legal decisions but rejects both maslaha (public interest, as explained below) and istihsan.
Those who propound the use of istihsan as a means to the most fair and equitable solution for a particular situation can point to the decision of Umar ibn Al-Khattab to suspend “hadd” punishment (penalty prescribed by the Quran and Sunnah) of amputation of a thief’s hand during famine. This is an example of utilizing istihsan in order to avoid unfairness and seek solution that nonetheless is consonant with the overriding objectives of Shariah. The Hanafi jurist, Abul Hasan al Karkhi, defines istihsan as a principle which authorizes departure from an established precedent in favor of a different ruling for a stronger reason. The well-known hadith, “No harm shall be inflicted or tolerated in Islam” has been quoted in support of the use of istihsan.
Maslahah literally means “benefit or interest.” Imam Al-Ghazali views maslahah as encompassing considerations which secure a benefit or prevent a harm with regard to the protection of the five “essential values” of life, religion, intellect, lineage and property. Examples include decisions by the Companions to issue currency, to establish prisons, and impose an agricultural land tax. Also, the four right-guided khalifs made a number of decisions based upon maslaha. For example, Abu Bakr, may Allah be pleased with him, began the compilation of the Quran during his khilaafah. Scholars have quoted a number of hadith in support of maslaha, such as the following :
“No harm shall be inflicted or tolerated in Islam.”
“The Prophet (pbuh) only chose the easier of two alternatives so long as it did not amount to a sin.”
“Allah loves to see that His concessions (rukksah) are observed, just as He loves to see that His strict laws (azaim) are observed.”
Maslaha is not a source for juristic decision or legislation with regard to matters of worship or with respect to the Islamic commandments and injunctions that are clear and decisive rulings of Shariah. An example of a ordinance which lies outside the scope of maslaha is the fixed shares of inheritance.
To be valid, maslahah must fulfill the following conditions:
- maslahah must be genuine, (haqiqiyyah) — i.e., there must be a reasonable probability that the benefits of a juristic decision based on maslahah outweigh any potential harm
- maslahah must be general (kulliyah) — i.e., the benefit will apply to the people as a whole rather than to any particular individual, group, or special interests
- it must not be in conflict with clear proof (from the Quran or Sunnah)
Ijtihad has played an important role in the development of Islamic legal theory. The Arabic word “ijtihad” is derived from the morpheme “juhud” which means “expending of maximum effort in the performance of an act.” In Islamic jurisprudence, ijtihad means making the utmost effort to extract the ahkam (rules) of the Shariah from its sources through research and use of the intellect.
Examples of ijtihad are the application of ra’y (personal judgment) in making an istihsan ruling, and qiyas (anological reasoning) in legal decisions, as mentioned above. Ijtihad was exercised by the early jurists in dealing with issues not definitively and clearly stipulated by the Quran, hadith, or ijma (consensus of the scholars). By the end of the third century A.H., it was considered that the “gates of ijtihad” were closed and that all future jurists were bound to implicit acceptance of previous jurisprudence as authoritative and final. The scope, then, of their juristic authority was the issuing of legal opinion based on established precedents. Scholars such as Ibn Taymiah nonetheless engaged in ijtihad and contemporary reformers call for the use of ijtihad in order to better deal with issues and circumstances of changing times and circumstances.
Dr. Yusuf Al-Qaradawi emphasizes the importance of respecting “the greatness of our great tradition” yet at the same time to recognize “the dire need for the law to address contemporary issues not addressed by the tradition.” He stipulates that the exercise of ijtihad must be by those scholars who are qualified, that ijtihad only be applied in proper and permissible areas, that the objectives of the shariah be meticulously considered, and that the potential benefits and interests of the common good be taken into consideration.
Imam Ibn al-Qayyim has observed that, “Shariah is based on wisdom and achieving people’s welfare in this life and the afterlife. Shariah is all about justice, mercy, wisdom, and good. Thus, any ruling that replaces justice with injustice, 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 interpretations.” Muslim jurists in the past were quite aware of the ongoing need to reconcile contradictions between social and legal norms. They continuously adjusted laws to bring them in line with the customs and norms of the people. Iman Shafi’i, the founder of one of the four schools of fiqh, was living in Bagdhad when he first elaborated his rulings. When he moved from Baghdad to Egypt in the last years of his life, he changed many of his opinions. Shah Waliullah expounded the theory of how societies evolve in four stages and found that social norms played a central role in the evolution of laws. Ibn Abidin is a well-known Syrian Hanfi jurist from the late Ottoman period. He wrote a short treatise on urf (custom) and its position in Islamic law, explaining the validity of urf as a source for lawmaking. He distinguished Shariah textual law and juristical law (fiqh). In case of conflict between a custom and the Shariah text, Ibn Abidin rejected only those customs which were absolutely contradictory (for example, alcoholic drink).
We can see from a more in-depth understanding of Shariah that it is not simply “law”, and especially not just penal law. Rather, it is the entire framework of moral, ethical, theological, and legal teachings of Islam. It includes purifying the heart, turning in love and devotion to the Lord, the respect of one’s parents, being generous to one’s neighbors, fulfilling contractual obligations, praying five times a day, being honest in business transactions as well as in all relationships, demonstrating compassion to the suffering or needy, and so on in every aspect of life and daily living. Sharia is the way provided by God to secure human rights and dignity, and to promote the well-being of humanity based on truth, justice, and mercy.