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SHARIAH

The word “shariah” has come to be understood as Islamic Law although its literal meaning is “path” or “way”. It is a word which competes with “jihad” for the position of most misunderstood Islamic term. Too often, and not only by non-Muslims, it is regarded as referring to a rigid system of criminal law which metes out cruel physical punishments and has little else to say of relevance to modern society. There is also the idea that it is a body of laws contained in one book, presumably the Quran, and applicable to all Muslims in all parts of the world, and preferably to be imposed on non-Muslims as well. We hope to be able to address some of these myths whilst at the same time point out areas where Muslims themselves perhaps need to rethink their approach to shariah.

Muslims seek guidance on how to live their lives primarily from the Quran, their holy book, which they believe was revealed by God to the Prophet Muhammad (peace be upon him) through the agency of the angel Gabriel. Muslims further believe that the Quran in its present form is in the unaltered, authentic state in which it was revealed. A secondary source for guidance is the Hadith, namely collections of sayings and practices attributed to the Prophet. There is, however, much debate about the authenticity and authority of the Hadith which does not need to be explored for present purposes. The issue to be considered here is what role the shariah plays in either the Quran or Hadith. The first thing to note is that the word “shariah” only occurs once in the entire Quran (chapter 45 verse 18) and there it is simply referring to the “right path” or ethical code of Islam rather than specific laws. Secondly, even the Hadith, which were collated over a century after the Prophet’s death, cannot be described as the shariah or as a system of laws.

By the time of the death of the Prophet there was no system of shariah as we regard it today. The legal system itself evolved subsequently over many years and took into account the prevailing social, legal, economic and political circumstances. For example in the initial stages of Islamic expansion the Byzantine and Persian empires were conquered. They already had thriving sophisticated legal systems and the Muslims were certainly not so foolish as to dispense with them in their entirety, nor did they have to as Islam was flexible enough to adapt to different cultures and environments. It was in the 8th and 9th centuries that the four main schools of Islamic thought were established; the Maliki, Hanafi, Sha’afi and Hanbali, yet even the great scholars behind these were rarely so bold as to insist that only their particular interpretation of the religious texts was the correct one. It is also the case that their rulings and opinions never came to be codified and in that sense also there cannot be said to be a single authoritative system called the shariah.  

What such scholars did, however, was to try and understand the principles of the Quran in the light of the knowledge available at the time and then apply those principles according to the needs of the society. All legal systems have a basis, a philosophy or set of fundamental principles according to which the laws are then framed. For Muslims this basis can be found in the Quran, the divine text. The task which was undertaken, therefore, was to ascertain the principles, the divine goals, and then set about legislating accordingly whilst appreciating that although the divine goals do not change, the methods of achieving them will vary depending on the circumstances of a particular society. One stark example of this is made clear by God himself in the Quran when one looks at the prohibition of alcohol. The divine goal is to convince mankind of the negative effects of intoxication and work towards eliminating this from society. Yet God himself did not simply issue a commandment stating “thou shalt not drink alcohol”, although of course it was well within His power to do so. Rather, He introduced the prohibition in stages over several years, firstly with the verse that stated there was some good in it and some harm but the harm outweighed the good (2:219). Secondly, there is the instruction not to pray in a state of intoxication (4:43). Thirdly, and finally, the commandment was issued to avoid alcohol altogether (5:90). Here we see a clear example of the Creator Himself taking account of prevailing social circumstances when legislating.

The above example shows God refraining from simply issuing rules and regulations when the society was ill-suited to understand and accept them and Muslims need to learn a lesson from this as to the correct procedure to adopt in order to legislate practically and effectively. A tragic example of what can happen when this approach is not followed can be ┬áseen in the divorce laws that prevail in some Muslim countries where women are treated as second class citizens when it comes to divorce. Yet, if one considers 2:241 in the Quran, namely, “for divorced women maintenance is due on a reasonable scale, this is a duty on the righteous” , one can see that the Divine objective is anything but relegating women to an inferior status, despite this being a revelation in 7th century Arabia. (It is perhaps worth noting when this principle found its way to the statutes of the civilized world). Yet this Divine objective has been ignored all too often and one finds that Muslim countries have legislated according to prevailing social custom which, of course, invariably favours men.

Legislating simply according to social custom or perceived needs without having regard to the divine goals is a recipe for disaster. Islam is a way of life which is God-centred; it being implicit that man left to his own devices will not achieve his true potential and will descend into satisfying his own desires. For this reason God has given us guidance but has also provided us with the faculties to understand our surroundings. One finds in many Muslim societies now that there are so-called religious scholars who feel able to make social comment and provide legal opinions for society based on their religious expertise and purported understanding of the divine text. A text may well be divine but it is going to be interpreted by humans and the resulting legal system or shariah, therefore, is going to be very much a human construct i.e. fallible. The early Muslims scholars appreciated this but sadly the same cannot be said for those who followed later. The key is surely to try and understand the divine goals first and foremost and yet also be in a position to understand one’s society. In the 21st century this means being adept at understanding sociology, economics, politics and all the other sciences required for successful modern life. To take another example if one seeks legislation in the area of genetic engineering then knowledge involving just the divine text will be wholly insufficient unless accompanied by the relevant medical scientific expertise.

In the past it was this process of “ijtihad”, independent legal reasoning, which combined expertise in religious matters with the relevant “secular” knowledge, that enabled Muslim societies to be successful and participate on the world stage by having social and legal systems which were relevant. Sadly, for centuries this process has stagnated and Muslim societies have declined. The further period of colonisation of Muslim countries also served to inhibit the development of institutions along Islamic lines in those countries. This has resulted in the modern post-colonial situation where a yearning for certainty and security is sought in the literal interpretation of divine texts, without the accompanying expertise and knowledge of “worldly” affairs. To further exacerbate this problem  Muslims too often regard themselves as under attack and feel the need to retreat to the past to feel protected, rather than be forward looking. Muslims may protest that there is no separation of church and state in Islam but the fact remains that by not being in a position to develop their legal systems as outlined above, they have ended up with societies which have to adopt secular legislation simply to operate, whilst paying lip service to the role of Islam in their affairs.

The reality, therefore, is that even if Muslims wanted to impose shariah in their countries its lack of development over the years would render it wholly impractical and unsuited to the demands of modern life. The process of making it relevant has to be that of ascertaining the divine objectives, itself not necessarily a straightforward task and then allying this to contemporary knowledge and expertise of our surroundings thereby creating laws that can truly benefit society. Clearly this process will take many years and depend upon many factors. No society can change itself overnight, particularly where questions of ethical living are concerned. In the meantime, however, accommodations are made in non-Muslim societies to allow Muslims to live their lives according to their faiths. It is important to remember that so-called Islamic law can only operate in Islamic countries. Elsewhere the law of the land applies. Often however, accommodations can be made, such as the provision for halal food, interest free financial services etc. which assist Muslims. Perhaps more significantly the debate about such accommodations will also help Muslims address the issues highlighted in this article and lead them to embark upon a path of making their faith relevant for the 21st century.

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