Does Sharia Law suffer more from any inherent controversy or is it simply misunderstood?
A Pew Research Center survey once found that an overwhelming majority of Muslims around the world wanted Sharia as their country’s law. Combine this with the all too familiar clickbait headlines which in pre-Covid times once plagued our daily news feeds (‘PHOTOS: ISIS Publically Amputates Hand of ‘Thief’ in Accordance with Sharia Law’ or ‘Afghanistan Migration Surging into America; 99% Support Sharia Law’), and you may naturally start to worry.
Look more closely, however, and you’ll see that those sampled disagreed over practically every aspect of Sharia Law, from what is should consist of to who should be subject to it.
If the fact that Muslims could be so divided over their own fundamental doctrine seems paradoxical, you have only to try to define Sharia Law yourself.
Sharia – شريعة in Arabic – roughly translates into English as the ‘path to the watering hole’, the watering hole being Allah. The imagery is simple and clear. Sharia represents a moral code, a sacred system of principles; in a less profane sense, it’s a sort of how-to manual for emulating the Prophet. It’s only when we introduce the term ‘law’ that things start to get tricky
Sharia Law is incomparable with anything the West has to offer. True, it provides a legalistic framework for some areas – familial relationships, finances and inheritance, for example, – but it also prescribes how Muslims should conduct themselves in almost every matter of their daily lives: from social etiquette, to how to wash oneself.
Furthermore, it’s not codified. This doesn’t mean it eludes simple definition. It means it often eludes basic understanding. Interpretative yet clear; amorphous yet bodied; analogous to precedent yet established – all of these terms have been, and continue to be, applied to Sharia Law.
In this article, I’m going to attempt to reach a working definition of Sharia Law, addressing the topic in a way that I believe all religious topics should be addressed: respectfully, but still subject to rational and historically contextualized criticism.
Sharia Law embodies the amalgamation of several separate texts
Islamic jurisprudence is derived from several distinct sources, the first and foremost of which is the Qur’an (القرآن). As Islam’s fundamental doctrine, believed by Muslims to perfectly preserve what was revealed to the Prophet Muhammad by Allah (God) through the angel Gabriel (Jibril), the Qur’an constitutes the most authoritative and infallible source for Sharia.
Of lesser though still considerable weight is the Sunnah (سنة). Meaning, in the pre-Islamic Middle East, the ‘way’ of the community, accepted and established through historical precedent, by the 9th century the Sunnah had come to represent the way of the Prophet Muhammad, the most pious of Muslims. It is considered primary doctrine in divining Sharia, not only on the basis of Muhammad’s exemplary conduct, but also as a result of centuries of general consensus (tawātur) in the establishment of Islamic practices of worship.
Another group of sources, incorporated within the Sunnah and providing something of a biographical pretext for Sharia Law, are the Hadith (حديث) – supposedly verbatim accounts documenting the sayings, actions and practices of the Prophet. Problematically, however, the Hadith were compiled over the course of the 300 years following Muhammad’s death in 632 (the 8th to 10th centuries), rightly bringing into question their veracity.
Indeed, as Hadith were passed down orally they were prone to misinterpretation or alteration, and even orthodox Muslims will concede the existence of fabricated Hadith, though they claim that most of them have been rooted out over the centuries by Islamic scholarship.
It is the amalgamation of differing interpretations
So the Qur’an and the Sunnah are the ‘primary’ sources for Sharia Law. Primacy is given to the Qur’an as the basis for Sharia Law because, as we have seen, it purports to contain the word of God and suffers less of the doubts of fabricatino attachable to later sources.
To this we must now add another layer: interpretation.
Islam makes an important distinction between Sharia and Fiqh.
Sharia is divine, immutable – dictated by God himself and thus derived from the laws that are outlined in the Qur’an and inferred from the Sunnah. Fiqh is subjective, relating to our understanding, interpretation and application of these laws.
Fiqh has been essential for Islam’s development and modernization. It was because of Fiqh, for example, that Islamic scholars could declare that smoking cigarettes (something clearly not addressed in the Qur’an or Sunnah and therefore not in Sharia) was forbidden, by retrospectively re-interpreting a Qur’anic passage (4.29).
Giving license to reinterpretation, however, is always the nail in the coffin for religious doctrine, opening the way for sectarianism and political exploitation.
On the subject of sectarianism – still a real problem in the Islamic world – there still exist five major, diverse schools of thought relating to Sharia (four Sunni, one Shia). And these are only the major ones.
‘At one time’, writes Distinguished Professor of Law at UCLA Islamic Law scholar Khaled Abou El Fadl, ‘there were one hundred and thirty schools of legal thought in the Islamic civilization.’ This gives you a small flavor of the enormous, confused tradition through which Sharia disseminates today.
And separate historical traditions
We would be mistaken in believing that Islam filled some kind of cultural or religious vacuum when it spread in the 7th and 8th centuries. After taking Mecca in 630 AD, Muhammad brought the entire Arabian Peninsula under Islamic rule, establishing the foundations for a geographical empire area that expanded exponentially under the subsequent Rashidun and Umayyad caliphates.
Territories which had formerly belonged to the Byzantine, Sassanid and Persian empires (to name a few) now found themselves under Islamic control. And the distinct cultures, customs and legal systems of these territories found themselves at odds with those of Islam.
When these territories came under Muslim rule and were forced to adopt Islam, this did not mean the total abandonment of former cultural identities. Controversial though it may seem to a western audience, Islam was no more oppressive than any other doctrinally driven group at the time. In fact, as the basis for Islamic law the Qur’an was remarkably accepting of diversity, so long as it not offend god, because it drove communities to compete for good.
Instead of imposing a radically new religious and legal system (which would have politically destabilized newly conquered territories), it prescribed changes or tweaks to be applied to existing systems.
Think of it like a culural gap-filler.
Change came with the famous Islamic scholar, Al-Shafi‘i (born in 767). He suggested that Sharia should not be seen as a number of discreet laws to be applied to existing systems. Instead, with an appropriate methodology, he believed that Qur’anic prescriptions could be adapted to build a full, comprehensive system allowing all Muslims to live by the same code. We’ve met this brand of legal human reasoning before. It’s called Fiqh, and it polluted Sharia and paved the way for uniformity.
Not being codified, it required individual expertise interpret and enforce it
When considering Sharia Law, it is vital to remember that, prior to its codification into state law in the 19th century, it really was in the preserve of experts. Most ordinary people did not have access to the relevant literature, so if they wanted information or adjudication they would have to consult a trained academic. These academics were called Mufti – Islamic jurists and scholars whose job was to issue fatwas (legal rulings) based on their interpretation of Sharia. In dealing with a case, they would have to look to the literature of the legal school to which they belonged, draw upon their scholarly expertise and then apply their own judgment. They would use previous cases to inform their decisions, yet essentially each case was treated individually on an ad hoc basis.
Even now, with information readily available at the click of a button, relatively little has changed. Sharia courts or ‘councils’ exist across the world (their establishment in western countries often making headlines for one controversy or another) and pronounce rulings on issues ranging from divorce to commercial disputes. But in the West, as in most countries where Sharia does not form the law of the land, secular law reigns supreme, with Sharia mainly existing as a secondary alternative for the Muslim community. So for anyone worrying that Sharia Law could ever have predominance over American constitutional law, the concern is unfounded. ‘Religious law,’ as New Jersey attorney and Sharia specialist Abed Awad has written, ‘is considered within American constitutional strictures.’
Sharia Law aims to establish the most godly conditions for humanity
Having looked at the sources, tradition and interpretations behind Sharia, we should now ask what its purpose is. In short, Sharia Law looks to pave the way for a Muslim to live a righteous, ethical and holy life in accordance with the Qur’an and the Sunnah. It does this by prescribing laws derived from these sources and ratifying them by issuing fatwas.
More specifically – and citing a 12th century interpretation which has recently been adopted again in modern scholarship – Sharia may be considered to have these five foundational goals: religion / faith (din), life (nafs), lineage / progeny (nasl), intellect (‘aql) and property / wealth (mal). There are others interpretations of course: the 14th century scholar Ibn Al-Qayyim claiming that Sharia has at its core ‘welfare… justice, mercy, benefit, and wisdom.’
Ibn Al-Qayyim’s interpretation is interesting not so much because of what he said Sharia is about. He also provided an antithesis to the qualities just mentioned – tyranny, cruelty, corruption, foolishness – and hypothesized a reason these may come to dominate: a misinterpretation of Sharia. It is precisely in these terms, one imagines, that he would paint certain contemporary incarnations of Sharia, particularly those manifest in territories controlled by the so-called Islamic State (which makes its first and last appearance here as I don’t believe it deserving of further attention.)
The preservation of life, faith, family and wealth should be the basis of Sharia in the modern age, says Dr. Jasser Auda, and it is to these individual areas we now turn, starting with marriage.
Sharia views marriage as a social contract
When it comes to marriage, Islamic jurisprudence is very pragmatic. Marriage is treated as a social contract, legitimizing sexual intercourse, transferring wealth and property and enabling the establishment of a legacy. Certain laws were quite revolutionary for the time: a woman could refuse a prospective husband, could initiate divorce in particular cases, and could own her own property. Other laws were not: the Qur’an legitimizes polygamy for men (4.3) but not for women (4.24), a man could take concubines from those whom he was conquered and enslaved and had license to physically abuse his wife should she disobey him (4.34).
These laws are both alien and redundant now, but they can be better understood when viewed in their 7th century historical context, in which patriarchal familial stability formed the essence of peace and stability in the wider community. Historical context is also vital for explaining why in Sharia, as in most other pre-modern and pre-contraception doctrine, adultery is considered an extreme crime for which there is an extreme punishment. We’ll deal more with crime and punishment late, but it’s worth bearing in mind that, in a world where adultery and extra-marital fornication could threaten to undermine the marriage contract and thus tear apart a community’s social fabric – not least because illegitimate offspring posed a serious threat to the legitimate inheritance of property – there may have been utilitarian rationale behind the deterrent. Let’s just be grateful that across most of the world such a barbaric deterrent is no longer deemed appropriate.
It dictates financial dealings
Islamic adherence to Sharia Law has brought about the development of an entirely novel economic system (though, like the laws from which it derives, it lacks a basic consensual definition.) Islamic economic jurisprudence forbids investment in anything that contravenes Sharia Law: gambling, pornography, pork and alcohol, amongst others. It also prescribes on – and differentiates between – a number of measures relating to state and private property; an area in which women come off a lot worse than men, being able to inherit only half what a male can (Qur’an 4.11).
What is perhaps most noteworthy is Sharia’s attitude towards interest – something shared by another of the main Abrahamic religions, Christianity. Several sections of the Qur’an forbid usury, the most famous passage appearing at 2.275: ‘Allah hath permitted trade and forbidden usury.’ But, again, this is an oversimplification. What is actually forbidden is, in Arabic, riba: a word for which there’s no agreed definition. While some interpret it as referring to all interest charged on loans, others have argued that it refers only to exploitative interest rates. Moreover, Islamic legalists have long debated to what extent its contravention goes against Sharia. Orthodox Islam views it as an outright violation, whereas some modern apologists have suggested that, because the ramifications for usury don’t feature amongst those of theft, adultery or murder, it should be taken as a later invention.
Sharia Law continues to exercise considerable influence over the financial dealings of its adherents. It governs conduct in their duties and obligations to contractual parties in the spheres of both marriage and business. Let’s now look at how it informs their duties and obligations to God.
It governs all aspects of life right down to the daily routine
Sharia Law, as we’ve established, governs almost all aspects of a Muslim’s life, right down to their daily routine. It prescribes that a Muslim should pray regularly, eat healthily and share their faith with others. Meanwhile a Muslim must not lie, gamble, eat pork or meat that has not been properly prepared (halal) or consume alcohol. Muslims must also cultivate a certain appearance: men are required to grow a beard – following the example of Muhammad in accordance with the Sunnah – while women are required to dress modestly, as outlined in the Qur’an and therefore prescribed in Sharia.
Muslim women’s dress has become a tinderbox issue in the modern world. The Qur’an’s definition of modest dress (‘[women] shall not reveal any parts of their body, except that which is necessary. They shall cover their chests, and shall not relax this code…’ [24.30-31]) does not lend itself to the extreme lengths of the burka or the niqab, not even really to the more modest hijab. But to view these garments as an Islamic invention would be wrong. The first evidence attesting a veiled woman comes from the 13th century BC in Assyria. In 66 AD in Ancient Rome, when the emperor Nero hosted King Tiridates of Armenia, Tiridates’ wife wore a helmet over her veil – a veil that she could not take off because it would go against tradition. We’ve seen already how Islam tweaked rather than overhauled existing cultural practices when it spread; it’s beyond doubt that the process was two-ways – existing traditions influencing Islam. The extreme burka, as opposed to the more modest veil, should be viewed as another manifestation of Fiqh – in this case an extreme doctrinal interpretation, wrongly implemented as law.
It also deals with crime and punishment
Sharia is famous, or rather notorious, in the West for the severity with which is punishes crimes. Primarily to blame for this are terrorist groups that purport to implement it, though the Saudi Arabian, Iranian and Bruneian governments must also take some flack for their extreme interpretations.
Sharia defines three types of crime. The first is hadd (plural: hudud) which refers to crimes deemed offensive to God that carry specific penalties. The second is qisas, a crime committed against fellow Muslims and requiring direct retaliation (honor killings, for example). The third is tazir, committed against a Muslim or non-Muslim and requiring the adjudication of a judge.
Hudud crimes and punishments are the most well known and include: theft (for which the hand is amputated), illicit sex (for which the penalty is stoning or 100 lashes), consumption of intoxicants (80 lashes), and renunciation of Islam (death or banishment). Less well known is the fact that the evidential bar is incredibly high for these punishments – that is to say that the testimonial strength or number of witnesses required to reach a sentence is such that hudud crimes are rarely punished. To sentence an adulterer to death, for example, requires four direct witnesses, the likelihood of which is slim. There’s a case to be made that Islamic jurists, using Fiqh, built in caveats such as these to prevent Islam from becoming too barbaric (and therefore redundant) for society, and indeed no historical texts record the punishment of stoning for adultery being enforced. That is outside Iran.
Islamic fundamentalists adhere to an extreme form of Sharia
As outlined by the modern philosopher and Sharia expert Abdou Filali Ansary in a lecture given at the University of Oxford, the conditions for Sharia’s political and ideological exploitation began in the 19th century. Seeing the effectiveness with which law and order was being established by legal codes in the West (France’s Code Napoléon 1804, for example), Muslim countries began to codify their own laws, turning to Sharia for their basis.
The codification of Sharia was clearly problematic, taking power away from the rulings of individual and relatively impartial judges and handing it over to states and governments – where, according to the Qur’an, it has no place. More problematically, the fundamentalist interpretation of Sharia Law has led to what can only be described as the enforcement of a bastardized form of the law. For example, Sharia Law should not be applicable to non-Muslims, even if they reside in a country that operates under it. Get caught drinking alcohol in the streets of Dubai, however, and you’ll find yourself fully answerable to the law.
Nor do Muslims living under state-operated Sharia Law have it any easier. Traditionally, there’s always been a certain amount of ambiguity when it comes to a Muslim’s role in reporting another’s transgressions – the Qur’an not being explicit. However modern surveillance states have taken it upon themselves to pass judgment and implement Sharia – not as a personal ethical code, but as a legal instrument of power. Such things often happen when the toxic combination of literal and selective interpretations of doctrine make their way into the machinery of governments though the problem, as always, is that of human interpretation.
Sharia Law in today’s world
In case my writing hasn’t spoke for me up to now, I feel it necessary to state my position as an atheist. While I respect personal faith, I do not consider religion to be a positive force in the world – not so much because of its core message, but because of how it inevitably comes to be misinterpreted and oppressively enforced.
Islam is no better or worse than any other religion, and fundamentalist Islam – though it presents the gravest threat today – perpetrates crimes that are no more ethically condemnable than those historically perpetrated by fundamentalists of different creeds both past and present.
Ultimately, the way to combat such fundamentalism is not through ignorance or hate but through education.
It’s hoped that this article has made some small contribution – even if it’s only a small drop in an ocean of information. Showing how Sharia underwent a historical evolution from a set of regulations to be applied to existing states and systems to what Oliver Roy has termed ‘a catalogue of prescriptions’ – codified into secular law to become, at times, extreme, brutal and oppressive.
In dealing with Sharia Law, the media will continue to focus on the extremes of Islamic thought – conflating fear of Sharia with a fear of Islam recently stemming from the 9/11 attacks.
But there is no logical reason to fear Sharia Law. Despite fear-stoking on the part of some sections of the press to convince us otherwise, it will never neither undermine nor supersede western legalistic frameworks or systems of government as people are groomed to fear. It will instead go on to ethically and legalistically guide Muslims for many generations to come.
