Invoking Divine Principles and Human Reason
Islam is a complete package – a complete message and way of life. To fraction it into its component, then examine them individually, will yield little or no understanding of Islam’s holistic whole. Inevitably aspects of Islam examined separately, without a wide-ranging grasp of its totality, will be taken in a fragmented context, in which case aspects may take on the appearance of extremism.
However, when viewed from a comprehensive perspective by any fair person, Islam will be found sensible in all its aspects and practices. Could it be otherwise for a faith that powers one of the greatest living civilizations – one whose dynamism and creativity supplied a foundation for countless aspects of modern society?
Shariah is the Islamic Law – the disciplines and principles that govern the behavior of a Muslim individual towards his or herself, family, neighbors, community, city, nation and the Muslim polity as a whole, the Ummah. Similarly Shariah governs the interactions between communities, groups and social and economic organizations. Shariah establishes the criteria by which all social actions are classified, categorized and administered within the overall governance of the state.
Shariah first establishes the patterns believers should follow in worshipping Allah: prayers, charity, fasting and pilgrimage.
Islam’s law comprises a comprehensive outlook on life. As one looks from a satellite at this planet, the Shariah conceives of the earth as a single ‘city’ with diverse inhabitants—in modern parlance, a ‘global village.’ Islam looks to the benefit of the society as a whole from a general perspective and presents a theoretical model that if followed provides safety and protection for society.
Shariah literally means ‘a well-trodden path to water,’ the source of all life, representing the Path to Allah, as given by Allah, the Originator of all life.
Islamist Understanding of Shari‘ah
Now a great problem today is that a new movement within Islam, the Islamist movement, has innovated a non-traditional approach to Shariah which vitiates all of the past approaches and establishes a rigid, hardline and non-pragmatic approach which vitiates all semblance of humaneness, sanity, moderation and decorum which constituted Islamic Law’s traditional implementation over the past 14 centuries of history.
Islamist states take the letter of the law – this is ‘Black letter law’ without regard to precedence.
Traditional governments in Islam on the other hand, follow precedents established over many centuries – just as is done in the US - they do not follow absolute ‘letter of the law.’
Islam as a Complete Package
Islam is a complete way of life, sent by Allah in the form of revelation by means of Prophet Muhammad (s). As such it covers the three essential needs of human life: physical, intellectual and spiritual. These three aspects of the faith are known individually as:
1 Islam – Divine law
2 Imān - Belief
3 Iħsān - Ethics and moral character.
The first aspect, Islam, deals primarily with the physical aspects of the faith, such as its obligations, prohibitions and recommended actions. This is the part of the faith governed by Shariah – Islamic law. This aspect cannot however be implemented by itself, but must complement the other two. When the Prophet (s) taught Islam to his followers, he taught them all these three aspects at once, in a natural and holistic approach.
Shari‘ah’s Primary Objective is Mercy
Allah says:
وَمَا أَرْسَلْنَاكَ إِلَّا رَحْمَةً لِّلْعَالَمِينَ
And We did not send you (O Muhammad) except as a mercy for all creation.
[Quran 21:107]
And the Prophet (s) said, “The Most Merciful shows mercy to those who have mercy on others. Show mercy to those on earth, and the One above the heaven will show mercy to you.”
From this, and many other source texts, one can summarize the primary objective of the Shariah, (maqsad al-Shariah al-asasī) as Kamali has done:
The ulama [scholars of Islam] have, thus, generally considered Rahmah [Mercy] to be the all-pervasive objective of the Shariah and have, to all intents and purposes, used it synonymously with Maslaħah [benefit in everyday communal life].
Shari‘ah’s Sources
1. Revelation
Qur’ān
The primary source of Shariah are two: Qur’ān and Sunnah. The Qur’ān is held by all Muslims as the ultimate source of law, being revealed from Allah to the Prophet Muhammad (s), and therefore perfect and infallible.
The Qur’ān contains broad, general rules that are immutable, not unlike societal rules of today: the sanctity of life, security and freedom of expression, and the inviolability of these rights. The adaptation of law according to time and circumstance was necessitated by changes in society, and the influx of various cultures and material conditions. Islam first came to one people with one lifestyle. 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. This is most elegantly displayed in the development of the law.
Sunnah
Much of the Qur’ān was revealed through actual events encountered by the Prophet (s), and questions asked and answered by him. The Prophet (s) also used the Qur’ān as a basis of his own teaching and adjudication. Nevertheless, the Qur’ān is neither a legal nor a constitutional document, although legal materials occupy a small portion of its text; less than 3 percent of the text deals with legal matters. The legal contents of the Qur’ān were mainly revealed following the Prophet’s migration from Mecca to Medina, where he established a government and the need therefore arose for legislation on social and governmental issues.
The second revealed source of Shariah is the Sunnah, or practices, injunctions and recommendations of the Prophet (s) as well as actions of others he approved or did not rebuff. It is consensus of scholars that the Sunnah is accorded the status of revelation, according to the explicit Qur’ānic text:
وَمَا آتَاكُمُ الرَّسُولُ فَخُذُوهُ وَمَا نَهَاكُمْ عَنْهُ فَانتَهُوا
.... what the Prophet gives you, take and what he forbids, cease therefrom... [Quran 59:7]
2. Reasoning
Hashim Kamali states:
The nonrevealed sources of Shariah are generally founded in juristic reasoning (ijtihād). This reasoning may take a variety of forms, including analogical reasoning (qiyās), juristic preference (istiħsān), considerations of public interest (istišlāħ), and even general consensus (ijma) of the learned, which basically originates in ijtihād and provides a procedure by which a ruling of juristic reasoning can acquire the binding force of law. Analogy and consensus have been generally recognized by the vast majority of ulama, but there is disagreement over the validity and scope of many of the rational proofs that originate in ijtihād.
Ijtihād, or juristic reasoning through analogy (qiyās) is a principle explicitly founded in the authentic Sunnah of the Prophet (s) in the famous hadith of Muadh.[20] The other principles were originated by the companions after the Prophet (s) and “Alī used to formulate his own opinion by means of Ijithad based on qiyās, istishāb, istiħsān and istišlāħ, always basing his opinion on the broader aims of the Shariah.
Before the canonization of the four independent schools of thought, Mālikī, Ħanafī, Shāfiī and Ħanbalī in the fourth century of Islam,[22] there existed more than 424 different schools of thought. These had been developed by experts who examined the revelation and precedents as established by the Prophet and the early Muslim generations, and formed them into law.
Who is Eligible to Explain the Shari‘ah?
After the time of the Prophet Muhammad (s), from over 100,000 of his Companions (students who personally met him), fewer than thirty are recorded actually issuing fatwās on new issues in which Ijtihād, or juristic reasoning, was required.
Today the authority for Ijtihād is with the mufti, or Dar al-Ifta, Center of Rulings, which gives general rulings (fatwā, pl. fatāwā) about an incident or legal question. As scholars, they are able to look at the entire package of Islam and issue a ruling on the question at hand.
The judge (qāļī) on the other hand issues a judgment (ray al-qaļā) on particular cases or incidents pertaining to an individual or groups, typically in cases involving two adversaries.
These two groups must work together – like two parties in which both seek the best understanding by applying their utmost efforts. The Center of Rulings and the mufti build the information model while the judge applies it to a particular case. Each case studied by the judge (qāļī) is an attempt to comprise a particular verdict based on the legal precedent given by the mufti which can be applied in the specific judgment.
A ruling by a mufti is not given force of law – it is only a response to an issue and it is up to individuals to follow the ruling or not. Law on the other hand, is enforced by individual judgments of the court – typically informed by a fatwā but in practical application taking into consideration circumstances and conditions of plaintiff and defendant. Alternatively, a ruling (fatwā) can be made into law by order of the executive office.
It is essential to understand that no one can issue a ruling without qualification, and no one can issue a judgment without qualification. Since rulings have a tremendous impact on the life of society and ruling on the individual, it is essential that those issuing them have excellent moral character, and most importantly that they are qualified.
Allah says,
قُلْ أَرَأَيْتُم مَّا أَنزَلَ اللّهُ لَكُم مِّن رِّزْقٍ فَجَعَلْتُم مِّنْهُ حَرَامًا وَحَلاَلاً قُلْ آللّهُ أَذِنَ لَكُمْ أَمْ عَلَى اللّهِ تَفْتَرُونَ
Say: “Tell me what Allah has sent down for you of sustenance, then you make (a part) of it unlawful and (a part) lawful.” Say: “Has Allah commanded you, or do you forge a lie against Allah?” [Quran 10:59]
This verse emphasizes that no one has the right to judge something right or wrong unless he has complete evidence from the pertinent information as found in the source texts, from deep discussion among the people who have a grasp of the issue at hand, and to seek all meaningful evidence. Otherwise one should remain silent for then one would be lying against Allah and against the religion.
Imām Shāfiī, founder of one of the four great schools of jurisprudence, said:
It is not allowed for anyone to give a Shariah explanation (fatwā), except one who knows the Holy Qur’ān completely including what verses are abrogated and by which verses they were abrogated, and which verses resemble each other in the Qur’ān and whether a chapter was revealed in Makkah or Madina. He must know the entire corpus of the Hadith of the Prophet (s), both those which are authentic and those which are false. He must know the Arabic language of the time of the Prophet (s) with its grammar and eloquence as well as know the poetry of the Arabs. Additionally he must know the culture of the various peoples who live in each different nation of the community. If a person has all such attributes combined in himself, he may speak on what is permitted (halal) and what is forbidden (haram). Otherwise he has no right to issue a fatwā.
It is related that one of the greatest scholars of Shariah, Abd al-Raħmān ibn Abi Laila said:
I was able to meet with one hundred and twenty of the Companions of the Prophet (s). Every one of these companions was asked about specific Shariah issues, seeking a verdict, but they avoided rendering a decision instead pointing to another companion to issue the answer. They were afraid to give an answer that would be incorrect for which they would be responsible before Allah.
That shows that one can be deeply imbued with Islamic knowledge, as were all the Prophet’s Companions, and yet still feel unqualified to give a verdict. All one-hundred and twenty of the Prophet’s Companions with whom ibn Abi Laila met were hesitant to issue a fatwā.
Detailed Objectives of the Law (Maqasid ash-Shari‘ah)
Schact, in describing the purpose of the Law writes:
In the field of penal law, it is easy to understand that the Qur’ān laid down sanctions for transgressions, but again they are essentially moral and only incidentally penal, so much so that the Qur’ān prohibited wine-drinking but did not enact any penalty, and the penalty was determined only at a later stage of Islamic law. The reasons for Qur’ānic legislation on all these matters were, in the first place, the desire to improve the position of women, of orphans and of the weak in general, to restrict the laxity of sexual morals and to strengthen the marriage tie, to restrict private vengeance and retaliation and to eliminate blood feuds altogether; the prohibition of gambling, of drinking wine and of taking interest are directly aimed at ancient Arabian standards of behaviour.
Shaykh Faraz Rabbani describes the intent behind Divine Law, something which has been strongly highlighted in the current era as people with various agendas, from apologist to extreme Islamist, seek to define Islamic Law within a Western framework of understanding:
The ultimate worth of actions is based on intention and sincerity, as mentioned by the Prophet (s), who said, “Actions are by intentions, and one shall only get that which one intended.” The Shariah covers all aspects of human life. Classical Shariah manuals are often divided into four parts: …personal acts of worship;… commercial dealings;…marriage and divorce, and penal laws.
The legal philosophers of Islam, such as Ghazālī, Shāţibī, and Shāh Walīullāh explain that the aim of Shariah is to promote human welfare. This is evident in the Qur’ān, and teachings of the Prophet(s).
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 Shariah protects these necessities in two ways: firstly by ensuring their establishment and then by preserving them.
Religion: To ensure the establishment of religion, Allah 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.
Life: To ensure the preservation of human life, Allah Most high legislated for marriage, healthy eating and living, and forbid the taking of life and laid down punishments for doing so.
Intellect: Allah 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.
Lineage: 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.
Wealth: Allah 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 Shariah with regards to needs and comforts is summed up in the Qur’ān,
وَمَا جَعَلَ عَلَيْكُمْ فِي الدِّينِ مِنْ حَرَجٍ
And,
مَا يُرِيدُ اللّهُ لِيَجْعَلَ عَلَيْكُم مِّنْ حَرَجٍ وَلَـكِن يُرِيدُ لِيُطَهَّرَكُمْ وَلِيُتِمَّ نِعْمَتَهُ عَلَيْكُمْ لَعَلَّكُمْ تَشْكُرُونَ
Therefore, everything that ensures the human happiness, within the spirit of Divine Guidance, is permitted in the Shariah.
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