The Real Nature of Shariah

The term Shariah can be understood in two ways; in the sense of Islamic Law as codified in the science of jurisprudence [Fiqh], and in the more basic sense of a "wide road" of Islam, including all the teachings on every level that can be called properly Islamic. In the wider sense the term Shar’ does not necessarily denote the revealed law of Islam, since every religion sent by God is a Shar’, and religion in general may also be called Shar’ especially in contrast to the path of reason.

The Quran says, "We never sent a messenger before thee except that We revealed to him, saying, "There is no god but I, so worship Me!". 21:25.

According to Shaykh Al Akbar Ibn Arabi [d.1240], "In the verse God mentions "worship", but as specific practice, for He also said, "To every one [of the Prophets] We have appointed a Law and a Way" 5:48, that is, "We" have sent down designated practices. The periods of applicability of the practices can come to an end, and this is called "abrogation" in the words of the learned masters of the Shariah. There is no single practice found in each and every prophecy, only the performance of religion, coming together in it, and the statement of Tawhid. This is indicated in God’s words, "He has laid down for you as Law what He charged Noah with, and what We have revealed to thee [O Muhammad] and what We charged Abraham with, and Moses, and Jesus: Perform the religion and scatter not regarding it." 42:13.

Bukhari, the most authoritative voice on hadith and Quranic exegesis has written a chapter entitled, "The chapter on what has come concerning the fact that the religion of the prophets is one", and this one religion is nothing but tawhid, performing the religion and worship. On this the prophets have all come together.

Ibn Arabi further says that the benefit of the Law is that it provides knowledge which is inaccessible to reason without God’s help, and this knowledge, provides the only means to achieve felicity.

Until now we have understood that the religion revealed by Allah through the vehicle of His various messengers has always been the same. It is nothing other than belief in His Unity and the command to submit to Him. The Law given to a people in different eras, however, has varied. This variation has occurred due to the necessary element of abrogation in keeping with the changing conditions and needs of humanity. The universal nature of the Islamic Law reflects its dynamism. With the revelation of the Quran, the process of Divine revelatory Law came to an end but the unfoldment of its meanings and diverse applicability will continue till the end of time. We can find a supporting claim in the Quran itself in which Allah says that if all the trees on earth were to turn to pens and all the seas into ink to write with, His [God’s] words would still not be exhausted. This means that the depth and width of Allah’s Knowledge and what He has revealed is so great that it has endless meanings and permutations. In order to save man/woman from the peril of being led astray through the complexity of the nature of Divine revelation, Allah safeguarded belief by saying , "Obey Allah and obey the messenger, and beware! But if ye turn away, then know that the duty of Our messenger is only plain conveyance[of the message]." 5: 92. This brings us to the second essential point in our discussion. The Law which has been determined by Allah and preserved in the Quran and in the way of the Prophet a.s is what we understand as Shariah. According to Islamic belief the way of the Prophet Muhammad a.s is reflective of the way of his predecessors. The matters in which there might be a difference are of basic social and cultural nature due to the exigencies and environmental factors of the related time and space. The Quranic revelation is based on a total of six thousand six hundred and sixty-six verses. Of these there are some that are allegorical in nature and others that are law-giving. The law-giving verses have been numbered as approximately five hundred. In most cases there are general norms and principles that have been stated as the purpose of laws and regulations. There are very few instances where clearly defined promulgations are given.

Of these one would recognise the laws concerning inheritance, divorce, evidence, transactional proceedings, punishments regarding specifically mentioned crimes such as theft, murder, sexual crimes, slander and calumny etc. Other injunctions such as worship for example the observance of salaat [prescribed prayer], the method of animal-slaughter etc have been defined by the example set by the Prophet a.s. Other acts of worship like pilgrimage and fasting have been sufficiently explained in the Quranic text. This informs us of the undeniable importance of turning to the Prophetic example and decree for the full and complete adoption of the Islamic way.

Therefore the Quran and the Sunnah [the practice and sayings of the Prophet a.s] are the two primary sources of Islamic Law. In addition to these we have the supplementary sources of Ijtehad [analytical reasoning of the scholars], Qiyas [analogical deduction] and Ijma [consensus of opinion]. These three may only be applied in cases where clear-cut rules are not provided in the Quran and Sunnah.

Ijtehad literally means an effort or an exercise to arrive at one’s own judgement. In its widest sense it means the use of human reason in the elaboration and explanation of the Shariah.

Qiyas or analogical deduction is a particular kind of ijtehad , the method by which the principles established by the Quran , Sunnah and Ijma are to be extended and applied to the solution of new problems not expressly regulated before.

Ijma is defined as the consensus of opinion of the learned. Allah Himself encourages seeking the opinion of others in matters of importance, "It is through the mercy of Allah that you are lenient with them; if you were to be hard-hearted; they would have deserted you; pardon them and seek for the forgiveness of them and seek their opinion in the matters; whenever you decide upon something, have belief in Allah, surely Allah loves those that rely on Him" He says in the Quran. Again in the Quran Allah refers to this, "those who answered the call of their Lord, and establish regular prayer, and whose affairs are a matter of counsel and spend out of what We bestow on them for sustenance". The Prophet too has been reported as having said, "My people would never all agree on what leads them astray". The healthy consultation [shura] and the use of juristic reasoning are normal preliminaries for arriving at a binding Ijma. An example would be, in the field of family law, since the Quran proscribes marriage with mothers and daughters, then grandmothers and grand-daughters [no matter how far removed] by the same token fall within the prohibited degrees.

The basis of Qiyas or analogical deduction is found in the saying of the Prophet, "The Prophet sent Muadh bin Jabal to Yemen as their judge and governor. Before Muadh left the Prophet, he asked the latter on what basis would he judge if he was confronted with a problem. Muadh said that he would judge on the basis of the contents of the Quran. The Prophet asked him, "assuming that you do not find it in the Quran, on what basis would you judge", Muadh said he would judge on the basis of the Sunnah of the Prophet. The Prophet also asked him, "assuming that you do not find it both in the Quran and Sunnah of the Prophets, on what basis would you judge", Muadh bin Jabal replied that he would use his own individual judgment. And the Prophet was very happy to hear this statement".

An example of Qiyas from the Prophet’s own life is that a woman asked the Prophet a.s whether she could perform Hajj on behalf of her aged father. The Prophet after exercising Qiyas replied in the affirmative considering that just as she may discharge a pecuniary debt on his behalf so she may also discharge a spiritual one.

Ijtehad is an exercise of reasoning to arrive at a logical conclusion on a legal issue done by the jurists to deduce a conclusion as to the effectiveness of a legal precept in Islam.

Imam Shafi has supported the idea of ijtehad by quoting the verse of the Quran, "Wherever you go, face the Mosque of Haram, and wherever you are, turn your face towards it", and explaining that if one were not to exercise one’s intellect, one would not be able to ascertain the direction of Masjid-al-Haram [The Holy sanctuary of Mecca].
Any form of Ijtehad, however, must have its starting point in the Quran, Sunnah or Ijma, and cannot be used to achieve a result which contradicts a rule established by these fundamental sources.

Adl or Justice is the basic principle upon which all Islamic or Quranic legislation is based. Therefore in keeping with this fundamental principle behind all human and social administration, Istihsan [That which is beautiful in actions] and Masalih-al-Mursalah [what is in public interest or welfare] are another two elements taken into consideration while implementing Islamic legislation. The Quran refers to this as: Those who listen to the Word, and follow the best meaning in it: Those are the ones whom Allah has guided, and those are the ones endued with understanding.
This has been explained to mean that the Word of Allah should be heeded reverentially, and where permissible and alternative courses are allowed , those endued with understanding should opt for the higher course of conduct. For instance, the Quran permits us to retaliate towards those who wrong us to an equal extent, but the nobler course has been stated to be that of repelling evil with good. In other words it is considered greater to forgive rather than seek retribution. We should therefore try to follow the nobler and more comely course in actions.

Istislah or pubic interest is also regarded as a basis of law in Shariah. It is connected to Masalih-al-Mursalah that is the public benefit. The Arabic word mursal literally means to set loose from the texts and Masalih means welfare. Istislah is therefore seeking the best solution for the general interest. In this sense the rulings that have been provided by the classical jurists are: The eating of meat which has not been slaughtered according to the Islamic ritual is permissible where no other lawful food is available. During the time of the Caliph Umar, the punishment of amputation of hands for theft was not applied with regard to the causal circumstance of famine or deprivation of food due to extreme poverty.

Islamic law was codified by the works of the classical jurists who exercised their interpretive methods in analyzing and deducing a complex structure of Muslim Jurisprudence. The Shariah that we know of today and as practiced in most Muslim countries is a conglomeration of these juristic rulings. In the 10th century , the classic Muslim jurists claimed that Ijtihad [analytical reasoning] and Tafsir [Quranic exegesis] had been sufficiently exhausted by the early scholars of "peerless ability". By the middle of the 13th century the Jurists in Iraq came up with the decision to close the gates of Ijtehad and to make the judicial rulings to date of their times, binding upon all generations to come. No one , infact, had the right to put a stop to the process of Ijtehad. This one act led to the stagnation of Allah’s religion which was meant to be universal, dynamic and for all times to come.

The only way out of this era-locked and retrogressive state of Muslim legislation is to once again revitalize it with the life-blood of intellectual exertion supported by the will to establish justice and equity.

A current example of applying the vital principles of Qiyas, Ijtehad and Istislah would be:

1. To look at the asbab-al-nuzul or reasons for the revelation of a given verse and study the verse in the proper context of its intent.

2. To separate the cultural and customary implications of a textual reference from the spiritual and essential principles of religious regulation.

3. To apply the fundamental principles of justice, human dignity and general welfare to the interpretation and application of all Islamic laws.

4. To use Qiyas in order to arrive at reasonable deductions regarding application of laws in present-day contexts and situations.

5. As way of example: There is a common misunderstanding due to wrong interpretation of the Quran and Sunnah that according to Shariah the witness of a woman is half that of man i.e to say that a single man’s evidence is accepted whereas the counter evidence has to be double, in the case of women, that is of two women as opposed to the one man. This makes the evidence of two women equal to that of one man. On careful examination one understands that this provision was made only in a specific form of witnessing, that being a commercial transaction, as mentioned in the Quran. It does not apply to any other situation which may require an evidence. This, however, has been arbitrarily applied to all cases of witnessing in the implementation of Shariah in Muslim countries, whereas proof of its invalidity can be found in the Quran itself. For instance, in the ruling of "Lia’n" in the Quran, where a man accuses his wife of adultery, or vice versa, the other spouse is asked to repeat the oath four times and the fifth time to testify to his/her innocence saying that if it be false, then may the curse of Allah be upon him/her. After this the charge stands repudiated. Here the evidence accepted is of one man against one woman. The case of two female witnesses as opposed to one male witness was specific to a commercial transaction. Because the agrarian and tribal society of the Arabs did not allow for much female education and exposure with regard to trade and commerce in general, the Quran made a supportive and strengthening allowance for the female by saying that one should be supported by a second so incase she forgets the other may remind her. Again one should note that the evidence of one is duly accepted, but only incase of forgetting, the other is there to help her remember. This was also decreed by way of protecting the interest of women and safeguarding their confidence in a fundamentally male chauvinistic society and environment. In today’s situation when men and women are equally educated and well-versed in economic affairs, by way of Ijtehad, this rule would not apply. And by way of further Qiyas one could say that if in the future a situation arose in which women proved to be more proficient in commercial matters than men, then it would be right to say that the evidence of two men would be equivalent to that of one woman.

6. Another example would be of the allowance of polygamy. This was a significant curtailment with regard to the running practice of the time and age. The verse regarding the permission to take four wives is directly followed by the caveat that if man is not able to be just to all his wives then he must restrict himself to taking only one. And Allah further explains that it is against the nature of man to be absolutely just in the affairs of the heart. Thus logical reflection would prove that the command is to limit polygamy and the best course is to establish monogamy.

7. Similarly, in the case of slavery one could argue that though the Quran says that slaves are to be treated well and fed equally as ourselves, it does not endorse it as an institution worthy of being preserved and carried on. The Quran is actually rescinding its validity by proclaiming equal and just treatment for the slaves.

8. In the case of being assigned the care-taker and head of the family, the male is given this preference by virtue of him being the bread-winner of the house-hold and the one who supports the family by his income.This is stated in the Quran. Now, incase of a woman being the bread-winner and supporter, the role should be reversed and she should be considered the head of the family. Despite this, the Quran exhorts husbands and wives to live in mutual harmony and through mutual counsel and sharing as it says, "You have rights over your wives, and they similar ones over you".


These are a few examples that I have mentioned. Upon more detailed study one can come up with many more areas of interest subject to analytical reform and appraisal.

In conclusion we state that the scale of Law established by Allah and the Messenger provides all the norms which apply to every human situation, but it is the responsibility of the Ummah or the community of believers to extract the essential principle of justice and human welfare, in an unbiased, non-prejudiced, gender-friendly way to promote the establishment of a humanistic society reflecting true Islamic equity.


And Only Allah Knows Best.


By Naila Amat-un-Nur

November 2006