The subject of Islamic Law seems to be controversial and a continual subject of debate among non-Muslims. That’s not the case in the Islamic world. The concepts of Sharia and Fiqh have been clearly defined, articulated and supported by over a millennium of religious tradition.
First, two main points:
- “Islam is a complete package” (As coined by Sheik Muhhamad Hisham Kabban here). The worlds major religions offer spiritual and moral principles to guide all actions in all situations. But none of them extend as far as Islam, whose textual foundations prescribe how to govern in the realms of criminal, civic and family law, finance and economics and even the natural sciences. There is no distinction between the religious and the political – all human action in life is encompassed, governed and judged by Islam. Not accepting this bedrock principle amounts to vainly and glibly attempting to understand Islam from an “ecumenical” point of view.
- Islamic Law is not an optional. Sharia and Fiqh are not pieces of the religion; they are integral to its application and vibrancy. They are not optional. In fact, as a “complete package”, they comprise the structure and plan to order and govern all aspects of political, social and family life in society — and that is what Sharia and Fiqh are about. Again, many non-Muslims are under the mistaken view that this part of the religion can be jettisoned so as to allow the “modernization” of Islam. It’s not going to happen – in any of the existing sects or schools of jurisprudence. Ever.
Shariah comes strictly from the Quran and Sunnah. That is, it comes from Allah and His Messenger. Therefore, it is illogical to think a devout Muslim can leave these laws behind.
And just like the Quran and Sunnah does not change, the Shariah does not change. Whatever Alland and His Messenger have made permissible according to the Shariah will always be permissible. And whatever they have made forbidden will always be forbidden.
Allah has made polygamy and acceptable form of marriage in Islam. So it will always be permissible and no one can change that. For anyone to say we must forbid polygamy because it is outdated and abuses women is wrong. And any Muslim who espouses this view is being sinful.
Conversely, Allah has made Riba (interest) forbidden. So it will always be forbidden and no one can change that. For anyone to make it permissible because it is accepted in modern finance is wrong. And any Muslim who espouses this view is being sinful.
Understanding Sharia’s Components
The Sharia is the collection of values and principles derived from the Quran and Sunnah that form the moral, religious, and legal teachings of Islam. It is distinguished from Fiqh (jurisprudence) which is the practical application of those principles in real life. In other words, the Sharia may be called the spirit of the law, while Fiqh may be called the application of the law. (Abu Amina Elias, 2013)
The bases of Shariah are four: two are revelatory, coming from Allah, and include the two core sources, the Qur’ān, Islam’s holy book, and the Sunnah (the practice and teachings of the Prophet Muhammad (s)); and two are based in rational endeavor, consensus (ijma) and analogical juristic reasoning (qiyās).
Fiqh–Application of Shari‘ah in Real Life
The Shariah, based primarily on texts from Qur’ān and Sunnah, embodies broad, general rules that are immutable, not unlike today’s modern societal rules: the sanctity of life, security and freedom of expression, and the inviolability of these rights. The adaptation of law according to time and circumstance is 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, being most elegantly brought out in the development of fiqh, the jurists’ law.
The primary sources of Islamic law are twofold: divine revelation (waħīy) and human reason (aql). This dual identity of Islamic law is reflected in its two Arabic designations, Shariah and fiqh. Shariah bears a stronger affinity with revelation, whereas fiqh is mainly the product of human reason. Shariah literally means “the right path” or “guide,” whereas fiqh refers to human understanding and knowledge. The divine Shariah thus indicates the path to righteousness; reason discovers the Shariah and relates its general directives to the quest for finding solutions to particular or unprecedented issues.
Kamali defines fiqh as a rational endeavor primarily based on speculative reasoning. Amplifying on this he says:
Fiqh is defined as the knowledge of the practical rules of the Shariah, which are derived from the Qur’ān and the Sunnah. The rules of fiqh are thus concerned with the manifest aspects of individual conduct. The practicalities of conduct are evaluated on a scale of five values: obligatory, recommended, permissible, reprehensible, and forbidden. The definition of fiqh also implies that the deduction of the rules of fiqh from the Qur’ān and the Sunnah is through direct contact with the source evidence and necessarily involves …independent reasoning and intellectual exertion (ijtihād).
Shariah …stands for the normative order that Muslims have developed as an Islamic way of life. Its translation as “Islamic law” is not adequate because Shariah covers a wider range of meanings than “law” usually does. Modern Muslim jurists often define Shariah as revealed or divine law in order to distinguish it from fiqh, the jurists’ law, which is jurists interpretation of Shariah, and qānūn, which is state law. This distinction aims to stress the divine nature and origin of Shariah in order to establish that its norms are binding because they are divine in origin… the Muslim jurists [have made] continuous efforts to keep Islamic law acceptable to the people by bringing the legal norms close to social norms [through fiqh localized in time and place]
What about universal moral laws and principles?
To Believers: Prohibited
To Unbelievers: Permissible
“It is obligatory for you to tell the truth, for truth leads to virtue and virtue to leads to Paradise, and the man who continue to speak the truth and endeavours to tell the truth is eventually recorded as truthful with Allah, and beware of telling of a lie for telling of a lie leads to obscenity and obscenity leads to Hell-Fire, and the person who keeps telling lies and endeavours to tell a lie is recorded as a liar with Allah” (Sahih Muslim, book 32, no. 6309)
· “War is deceit” (Bukari, vol. 4, book 56, No. 3030)
· “Let not the believers take for friends or helpers unbelieves rather than believers. If any do that, in nothing will there be help from Allah; except by way of precaution, that ye may guard yourselves from them.” (Quran 3:28)
· “Those believers who in some areas or times fear for their safety from disbelievers. In this case such believers are allowed to show friendship to the disbelievers outwardly, but never inwardly.” (Ibn Katir, vol. 5, 330)
· The Quran specifies how to divide the spoils of war (booty) in 8:41
· “Allah made booty lawful and good. He used it to incite the Muslims to unity of purpose. So enjoy what you have captured.” (Ibn Ishaq, 327)
· The battle against the Jews living in the Khaybar oasis in 620 C.E. is another example. The Khaybar were a peaceful community of Jewish farmers who did not even know they were at war until Muhammad led his men against their town one morning, taking them by surprise and handily defeating them. Not only did Muhammad take much of the town’s possessions and land, but he actually had the tribe’s treasurer, a man named Kinana, tortured until he gave up the location of hidden treasure. Muhammad then beheaded the man and “married” his traumatized widow, Safiyya (Wikipedia, ROP)
“Whosoever killeth a human being for other than manslaughter or corruption in the earth, it shall be as if he had killed all mankind, and whoso saveth the life of one, it shall be as if he had saved the life of all mankind” (Quran 5:32) – Note that this oft-quoted passage was addressed to Jews, not Muslims, as a warning to them.
· “Slay the unbelievers” (Quran 9:5, 2:191)
· “Therefore, when ye meet the unbelievers in fight, smith at their necks; at length, when ye have thoroughly subdued them, bind a bond firmly on them: thereafter is the time for either generosity or ransom, until the war lays down its burdens…” (Quran 47:4)
· The justification for killing women and children in Israel, for example, comes from the following injunction to not kill unbelievers “…unless they are fighting against the Muslims” (Umdat al-Salik o9:10) which supports the view of defining anyone, due to their proximity, as “aiding in war” making them fair game to be killed.
Rules and more Rules
- WAJIB: The religious duties performance of which is rewarded and neglect of which is punishable are classified as WAJIB.
- HARAM: Deeds, doing of which is sinful and punishable and abstinence from them rewardable, are termed as HARAM.
- MUSTAHAB OR SUNNAT: Such of the rites performance of which is rewardable but their commission is not punishable are termed as SUNNAT.
- MAKROOH: Or Makruh. Those deeds, abstinence from which is rewarded, but committing them is not sinful are termed as MAKROOH.
- MUBAH: Those deeds which are allowed by the Shariah, but there is neither reward nor punishment for doing or neglecting them, are called MUBAH.
See here for a glossary of Fiqh “technical terms” necessary to adjudicate this detailed system of morality. The inherent complexity of this system is another reason why there are four separate schools of Islamic jurisprudence whose very purpose is to arbitrate and clarify the ancient texts in order to apply them to practical everyday life.
- Islamic Law is part of Islam since this unique religion encompasses politics, society, family life and even science.
- Sharia and Fiqh are inextricably linked to Islam and manifest its practice according to Muhammad himself as well as scholars and historians that codified Islamic Law in the first hundred years. To discard them is tantamount to discarding Islam’s core principles and historical traditions.
- Islamic Law is based on the Quran and the Sunnah. Nothing else. Therefore its moral underpinning does not rest on “eternal principles” like other religions. Instead, it is predicated wholly on what was dictated to Muhammad by the Angel Gabriel and Muhammad’s life example. In effect, it divides morality into two compartments: Dar Al Islam (believers) and Dar Al Harb (unbelievers, or literally House of War).
- The “rules” of behavior established through Fiqh resemble more of a legalistic framework governing personal actions rather than universal principles allowing individuals to exercise their free agency.