The philosophy of Sharia – the Clear Path
For each We have appointed a divine law and a traced-out way. Had God willed, He could have made you one community. But that He may try you by that which He has given you. So vie one with another in good works. Unto God you will all return, and He will then inform you of that wherein you differ.
For Muslims, life did not begin at birth, but a long time before that. Before even the creation of the first man. It began when God created the souls of everyone who would ever exist and asked them, “Am I not your Lord?” They all replied, “Yea.”
God decreed for each soul a time on earth so that He might try them. Then, after the completion of their appointed terms, He would judge them and send them to their eternal destinations: either one of endless bliss, or one of everlasting grief.
This life, then, is a journey that presents to its wayfarers many paths. Only one of these paths is clear and straight. This path is the Sharia.
The divine guidance
In Arabic, Sharia means “the clear, well-trodden path to water“. Islamically, it is used to refer to the matters of religion that God has legislated for His servants. The linguistic meaning of Sharia reverberates in its technical usage: just as water is vital to human life, so the clarity and uprightness of Sharia is the means of life for souls and minds.
Throughout history, God has sent messengers to people all over the world, to guide them to the straight path that would lead them to happiness in this world and the one to follow. All messengers taught the same message about belief (the Qur’an teaches that all messengers called people to the worship of the One God), but the specific prescriptions of the divine laws regulating people’s lives varied according to the needs of his people and time.
The Prophet Muhammad (God bless him and give him peace) was the final messenger and his Sharia represents the ultimate manifestation of the divine mercy.
“Today I have perfected your way of life (din) for you, and completed My favour upon you, and have chosen Islam as your way of life.” (Qur’an, 5:3) The Prophet himself was told that, “We have only sent you are a mercy for all creation.” (Qur’an, 21:179)
The Sharia regulates all human actions and puts them into five categories: obligatory, recommended, permitted, disliked or forbidden.
Obligatory actions must be performed and when performed with good intentions are rewarded. The opposite is forbidden action. Recommended action is that which should be done and the opposite is disliked action. Permitted action is that which is neither encouraged nor discouraged. Most human actions fall in this last category.
The ultimate worth of actions is based on intention and sincerity, as mentioned by the Prophet, who said, “Actions are by intentions, and one shall only get that which one intended.”
Life under the Sharia
The Sharia covers all aspects of human life. Classical Sharia manuals are often divided into four parts: laws relating to personal acts of worship, laws relating to commercial dealings, laws relating to marriage and divorce, and penal laws.
God sent prophets and books to humanity to show them the way to happiness in this life, and success in the hereafter. This is encapsulated in the believer’s prayer, stated in the Qur’an, “Our Lord, give us good in this life and good in the next, and save us from the punishment of the Fire.” (2:201)
The legal philosophers of Islam, such as Ghazali, Shatibi, and Shah Wali Allah explain that the aim of Sharia is to promote human welfare. This is evident in the Qur’an, and teachings of the Prophet.
The scholars explain that the welfare of humans is based on the fulfillment of necessities, needs, and comforts.
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 Sharia protects these necessities in two ways: firstly by ensuring their establishment and then by preserving them.
- To ensure the establishment of religion, God 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.
- To ensure the preservation of human life, God Most high legislated for marriage, healthy eating and living, and forbid the taking of life and laid down punishments for doing so.
- God 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.
- 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.
- God 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 Sharia with regards to needs and comforts is summed up in the Qur’an, “He has not placed any hardship for you in religion,” (22:87) And, “God does not seek to place a burden on you, but that He purify you and perfect His grace upon you, that you may give thanks.” (5:6)
Therefore, everything that ensures human happiness, within the spirit of Divine Guidance, is permitted in the Sharia.
Sources of the Sharia
The primary sources of the Sharia are the Qur’an and the example of the Prophet Muhammad (the sirah).
The Qur’an was revealed to the Prophet gradually, over 23 years. The essence of its message is to establish the oneness of God and the spiritual and moral need of man for God. This need is fulfilled through worship and submission, and has ultimate consequences in the Hereafter.
The Qur’an is the word of God. Because of its inimitable style and eloquence, and, above all, the guidance and legal provisions it came with, it ensures the worldly and next-worldly welfare of humanity.
God Most High said, “Verily, this Qur’an guides to that which is best, and gives glad tidings to the believers who do good that theirs will be a great reward.” (Qur’an, 17:9) And, “There has come unto you light from God and a clear Book, whereby God guides those who seek His good pleasure unto paths of peace. He brings them out of darkness unto light by His decree, and guides them unto a straight path.” (Qur’an, 5:15)
The Prophetic example (Sunna)
The Prophet’s role was expounded in the Qur’an, “We have revealed the Remembrance [Qur’an] to you that you may explain to people that which was revealed for them.” (16:44)
This explanation was through the Prophet’s words, actions, and example. Following the guidance and the example of the Prophet was made obligatory, “O you who believe, obey God and obey the Messenger,” (4: 59) and, “Verily, in the Messenger of God you have a beautiful example for those who seek God and the Last Day, and remember God much.” The Prophet himself instructed, “I have left two things with you which if you hold on to, you shall not be misguided: the Book of God and my example.” [Reported by Hakim and Malik]
There are two agreed-upon derived sources of Sharia: scholarly consensus (ijma’) and legal analogy (qiyas).
The basis for scholarly consensus being a source of law is the Qur’anic command to resolve matters by consultation, as God stated, “Those who answer the call of their Lord, established prayer, and whose affairs are by consultation.” (42:38) Scholarly consensus is defined as being the agreement of all Muslim scholars at the level of juristic reasoning (ijtihad) in one age on a given legal ruling. Given the condition that all such scholars have to agree to the ruling, its scope is limited to matters that are clear according to the Qur’an and Prophetic example, upon which such consensus must necessarily be based. When established, though, scholarly consensus is decisive proof.
Legal analogy (Qiyas)
Legal analogy is a powerful tool to derive rulings for new matters. For example, drugs have been deemed impermissible, through legal analogy from the prohibition of alcohol that is established in the Qur’an. Such a ruling is based on the common underlying effective cause of intoxication.
Legal analogy and its various tools enables the jurists to understand the underlying reasons and causes for the rulings of the Qur’an and Prophetic example (sunna). This helps when dealing with ever-changing human situations and allows for new rulings to be applied most suitably and consistently.
The ultimate aim of those who submit to the Sharia is to express their slavehood to their Creator. But the Sharia does bring benefit in this world too.
This way has been indicated in a Divine statement conveyed by the Prophet.
My servant approaches Me with nothing more beloved to Me than what I have made obligatory upon him, and My servant keeps drawing nearer to Me with voluntary works until I love him. And when I love him, I am his hearing with which he hears, his sight with which he sees, his hand with which he seizes, and his foot with which he walks. If he asks Me, I will surely give to him, and if he seeks refuge in Me, I will surely protect him.
Prophet Muhammad, reported by Bukhari
If the legal dimension of the Sharia gives Islam its form, the spiritual dimension is its substance. The spiritual life of Islam, and its goal, was outlined in the Divine statement (mentioned above).
The Prophet explained spiritual excellence as being, “To worship God as though you see Him, and if you see Him not, [know that] He nevertheless sees you.
The spiritual life of Islam is a means to a realization of faith and a perfection of practice. It is to seek the water that the Sharia is the clear path to, water that gives life to minds and souls longing for meaning.
It is this spiritual life, at its various levels, that attracts Muslims to their religion, its way of life, and to the rulings of the Sharia.
And those who believe are overflowing in their love of God.
A personal view of Sharia
A personal view of Sharia
In this section Ruqaiyyah Waris Maqsood, a British Muslim, addresses some common questions about Sharia.
These are the author’s views and not the views of the BBC nor a definitive treatment of the topic. This is a controversial area and no personal view can provide a definitive analysis of the subject; other people may approach it differently and hold different views and interpretations.
How did Sharia start?
The Prophet Muhammad (pbuh) laid down the laws – some of them were direct commands stated in the revelation of the Qur’an; other laws grew up based on the Prophet’s own example and the various rulings he gave to cases that occurred during his lifetime. These secondary laws are based on what’s called the Sunnah – the Prophet’s words, example, and way of life.
So, all the laws of Sharia are based primarily on Qur’an and then on Sunnah, and after that, if there was no information in those two sources, judges were free to use their intelligence to make analogies. As in most legal systems, cases could then be referred to by later judges.
What, nowadays, is the authoritative source of Sharia?
Just the same as outlined above. What is important, however, is that judges are highly educated in Islamic law and jurisprudence, and this is an area where some damage was done during the colonial periods when Islamic schools of law were closed down with a great loss of knowledge and expertise which is only now being repaired slowly. The problem is that it is all too easy for an individual judge to make some pronouncement or invoke some penalty without full knowledge of the background of Sharia and the spirit behind the various laws and penalties.
What are the basic principles of Sharia?
These are to see the will of God done on earth as it is in Heaven (as in the Christian Lord’s Prayer). How can we possibly know this will? By study of the revealed scriptures and by choosing talented, intelligent and far-sighted merciful people of excellent character as our judges. The whole principle of God’s will is to bring about compassion, kindness, generosity, justice, fair play, tolerance, and care in general, as opposed to tyranny, cruelty, selfishness, exploitation etc. All the rules of Sharia are towards those ends.
The usual criticisms of Sharia – that it is so cruel as regards execution, flogging and cutting off hands – totally ignore all the extenuating circumstances that would lead to these penalties not being applied. They are known as hadd penalties (pl.hudud), the extreme limit of the penalty. Thus, if a person was sentenced to having a hand cut off, he or she should not be sent to prison and/or be fined as well. People who regard these practices as cruel will never be persuaded otherwise, so Muslims usually leave that aside. Their point is that the cutting of the hand for theft is a very powerful deterrent – Muslims care less for the callous and continual thief than they do for the poor souls who are mugged and robbed and hurt by the thieves.
The Middle East is certainly not full of one-handed people – as any traveller would tell you. What we have lost here is the horror of dishonour that true Muslims still have. They would do anything rather than offend Allah, and they of course believe that Allah sees every single thing that is done – there are no secrets. Even if you get away with something on earth, it has been seen and recorded and you will have to face judgement for it eventually, and the people hurt by your action will be recompensed. Of course, if you do not believe in God, or a judgement, or a life to come, the whole system is quite meaningless to you. In Sharia law, if a thief could prove that he/she only stole because of need, then the Muslim society would be held at fault and made to supply that need, and there would be no hand-cutting. Most thieves would think twice before risking a hand on mugging an old lady for her handbag!
In the west, adultery has become so commonplace because of sexual freedoms – all the emphasis these days seems to be on finding sexual satisfaction; in Muslim societies, there is far less emphasis on sex – it is usually regarded as a weakness that can lead to all sorts of trouble. Family is far more important; the notion of a million unborn children per year being aborted, and single mothers, is abhorrent in Islam.
Sharia law for murder allows the death penalty, but is kinder than western law in one respect – after judicial judgement has been made, appeals are then allowed to the family of the murdered victims, and they are begged to be merciful. In Islam, it is always regarded as the height of mercy to forgive a murderer, even though one may have the right to take his/her life in reprisal.
The form of execution is not specified in Islam – i.e. it is not usually a stoning. Beheading used to be regarded as the quickest and most merciful way (as in Roman law, and the French guillotine); these days other methods may find approval. There are apparently far fewer executions in most Muslim countries than in the USA, for example. The penalty for adultery is open to debate. Most scholars will insist that the penalty as laid down in the Qur’an was 100 lashes, and there were various rules for regulating how lashes were to be given too. Other scholars maintain that the old penalty for adultery as laid down by the previous prophets was stoning (as in the Old Testament). By New Testament times, the prophet Jesus had the famous case where a guilty woman was forgiven and sent away, told only to sin no more.
In some Muslim societies, judges and populaces might stone out of mistaken belief that this was what Islam required. In fact, Islam made it virtually impossible – to be sentenced to death for adultery, the couple had to be actually witnessed performing the physical act by four people who were in a position to identify both parties without doubt; this virtually ruled out the penalty, since adultery is taken for granted as a secret act and something not done in public.
Is Sharia the same in all countries?
I’m afraid I do not know the answer to this, but certainly the principles are exactly the same in whatever country they are applied.
Individual rights vs needs of society?
Basically in Islam the needs of society always come first, with the proviso that injustices should always be able to be taken to judges who are not corrupt. The old Arab system allowed any person, no matter how humble, to take his/her case to the highest in the land personally. Islam brings a very strong sense of justice, and care of the oppressed and exploited.
Does Sharia make life easier or harder for the ordinary Muslim?
Much easier for those who strive to live the correct life pleasing to God and in kindness and peace with the neighbour; much harder for the one who is selfish, callous, cruel, exploitative, dishonest etc. There is virtually no sympathy for such people – unless they really are mentally ill, in which case they are not regarded as culpable in Sharia. All those before the age of puberty, or not of sound mind, are not regarded as culpable.
Why has Sharia become a synonym for cruelty and lack of compassion?
I think through two things – ignorance of the reality of Sharia law, and much publicised cases where Muslims in positions of authority have been very poor Muslims, if not non-Muslims in Muslim disguise. For example, 100 years ago we had stories of awful Turkish sultans, and people being rushed to blocks to have their hands cut off etc. The media picks out certain cases and blows them up to make a big drama of them – they might pick on one particular murderer on death row in the USA and rouse everyone’s feelings, but totally ignore all the others due to be executed that day!
A case like the Nigerian woman in danger of being stoned for adultery is a case in point. She might have been stoned by irate villagers, but on being taken into custody and judged by Sharia law she gets the opportunity to appeal and explain etc. In her case, if it is true that she was raped, she most certainly would not be sentenced to death. What interests me is who were the rotten people who brought the case against her anyway?
Incidentally the correct Islamic method of stoning according to Sharia was similar to that advised by the Pharisees at the time of Jesus – the person was held fast in a fixed position, and a stone or rock that it took two men to lift (i.e. was heavier than one man could lift alone) was to be dropped to crush the head – it was not someone tied to a post and rocks hurled at them, although this has been done in some cultures. The point was that if someone really had to be executed, it was to be done swiftly, with as little torture as possible, and usually publicly so that no vindictive person could do further nasty things behind the scenes and get away with it.
Sharia should promote gender equality. In fact, the natural Islamic tendency is to always consider women as the weaker sex in need of care and protection, and come down hard on the men who allow their womenfolk to get into difficulties.
Sharia does not require women to wear a burqa. There are all sorts of items of dress which are worn by Muslim women, and these vary all over the world. Burqas belong to particular areas of the world, where they are considered normal dress. In other parts of the world the dress is totally different. The rule of dress for women is modesty, the word hijab implies ‘covered’.
Some Muslim women feel that they should cover everything from neck to ankle, and neck to wrist. Others also include a head veil (this is the most controversial bit, and millions of Muslim women choose to wear it, or alternatively choose not to wear it – and there is much disagreement between the types!), and finally some choose to cover even their faces, although there is no Islamic text requiring this extreme. My own preference is a long black dress and a white headscarf – I have never worn a burqa in my life. Incidentally, when men try to enforce Muslim dress on women, this is forbidden – no aspect of our faith is to be done by coercion. It is up to the woman what she chooses to do – some choose full hijab and their men hate it!
Forced and arranged marriages
In Sharia Law any marriage that is forced or false in any way is null and void. It is not a proper marriage. This is a problem that seems to plague Muslim women from India/Pakistan/Bangladesh and nowhere else in the Islamic world – and it also applies to Hindus and some Sikhs from those areas too.
Forced marriage is totally forbidden in Islam. False marriage is too – for example, some of our teenage girls are sent back to Pakistan for a holiday when they are about 15, and sign things they do not understand, and then find out later that they have been ‘married’ even if it has not been consummated. UK lawyers are getting far better at studying Sharia these days, in order to protect these girls from this particular culture.
Forced marriage is not at all the same thing as arranged marriage. Muslims from many countries have a system of arranged marriages, in which the spouses may not have seen each other before marriage, but it always has to be with their free consent. The Prophet himself advised prospective spouses to at least ‘look’ at each other, until they could see what it was that made them wish to marry that person as opposed to any other. Women forced into marriage, or seeking divorce for general reasons, have the same sort of grounds in Sharia as in the west – cruelty, mental cruelty, adultery, abandonment, etc. They may even request a divorce for no specific reason whatever, so long as they agree to pay back the mahr(marriage payment) made to them by their husband if the husband does not wish to let them go but are obliged to.
Men having many wives?
Men and women can have as many spouses as they can fit into a lifetime; but this is not generally approved. Women are requested to have only one husband at a time (there is evidence that wealthy Arab women were polyandrous before the coming of Islam – certainly wealthy men were polygynous), and men are limited to four at one time, whereas previously there had been no limit, and a wealthy and generous man was expected to cater for as many women as he could afford (in the absence of a welfare state).
Allah sent the proviso that no Muslim was ever to deliberately cause hurt or harm to another Muslim, so a man might not take extra womenfolk into his home if it would cause upset and distress (it was recommended when there were lots of widows after warfare, if the women were willing to be generous to bereft ‘sisters’). Also, if a man could not provide equal treatment of his wives – equal food, clothing, money, living quarters, time spent with – he was refused permission for polygamy.
Equal sexual activity was not ruled on, however. Some wives had no sexual relationship with their husbands at all after a while, or if they came into the household as widows of relatives. Don’t forget that most widows also came with their children. When the Prophet married the widow Sawdah he took on six of her children, and with Umm Salamah another four, for example.
Sharia and food
The rules are those of haram (banned) and halal (allowed). All vegetable, fruit, grain and seafood is halal. Meat is halal providing it has been killed in the kindest possible way by a sharp instrument that pierces and kills swiftly (sharp knife, bullet, sword), and the appropriate prayers are said at its death (or at the time of eating if one is not certain).
Muslims may not eat any food that has been sacrificed to idols (e.g. Hindu meat), but kosher is fine. They may not eat any pork product or flesh with blood undrained from it; the most extreme Muslims will not touch anything that has animal fat included – even a biscuit – in case it is pork lard or gelatine from an animal not killed in the halal manner. If Muslims eat haram food without realising it is haram (i.e. some butchers ‘fake’ their halal tickets), they are not held to blame, but judged by their intention. In cases of necessity, Muslims may eat anything available, even pork, rather than suffer hardship. Alcohol is haram.
The Prophet’s wife Aishah
No-one is absolutely certain of her age when she married the Prophet, but it could have been as young as 6; some scholars believe she was ten years older. However, the majority go for the age of 6. The marriage that took place then was an agreement on paper, there was no physical relationship until Aishah reached puberty – but this in itself could have been at around 9 or 10 years old. That is not an unusual age for menstruation to start in hot climates, and once a girl is capable of producing a child she is regarded as technically a woman. Sex for children under 16 is forbidden by law in the UK at the moment, but this has not always been the case and it is nonsense to suppose that there is no sexual activity amongst children under 16 in this country. No-one is able to stop them and if the girls get pregnant they frequently have abortions.
In Muslim countries it is considered far better to get youngsters married as soon as they show inclinations to have sex – then they can have it honourably, as much as they like, and the children born are not illegitimate. Many Muslim countries in fact do try to keep to the age of about 16 for marriage (as is the legal age in the UK), and prefer not to marry off their girls too young. Some societies expect marriages to be life-partnerships, but in others divorces are frequent if things do not work out and girls choose other husbands. In the Prophet’s day, the normal age for boys to marry was about 15 and girls between 13-15, although some girls preferred to defer the role until their twenties if they had their own money. Don’t forget, there was virtually no contraception and marriage implied having a baby every two years or so. The used to feed babies as long as possible to avoid too frequent pregnancy. As far as I know, the Virgin Mary was around 12-13 when she had baby Jesus, and she was living with her husband in one of these non-physical arrangements. The Prophet was certainly not a paedophile! He did not marry his first wife until she was 40, and he had no other wife until she died at the age of 65; then his second wife was in her 40s, to help him out while he was a single parent!
In countries where Sharia law is enforced, how are specific punishments decided on and who makes these decisions?
The specific punishments are decided on by the lawyers of the land, many of whom have been educated and trained in the west!
Would many Muslims in Britain be in favour of Sharia law being implemented here?
I think many Muslims in the UK would be in favour of Sharia law being implemented here, but true Sharia law is only really possible in a Muslim society, not in a non-Muslim or mixed society. Flogging for public drunkenness, for example, might make some of our louts and cruel men folk think twice before acting as they do, and thinking nothing of it.
I once left my expensive camera on a wall in Egypt and it was gone when I returned for it – no big surprise. What was a surprise is that someone in that village found out where my coach had gone next and took the trouble to travel nearly 100 miles to find me and return the camera – they had picked it up for safe-keeping and did not want any of their summer tourists (it is hard for Egypt to get tourists in August!) to think there was a thief in their village! I was also very impressed by the way people just left shop tills and went off to mid-day prayers, trusting that no-one would steal their money or stock.
I don’t think lawyers in the UK would ever bring back the death sentence, but many people here think that they should. Personally, I could never bring a case against a man seeking his death for adultery, and I would not be willing to put even the worst of criminals to death myself. I feel the electric chair is far more barbaric than stoning. Incidentally the correct Islamic method of stoning according to Sharia was similar to that advised by the Pharisees at the time of Jesus – the person was held fast in a fixed position, and a stone or rock that it took two men to lift (i.e. was heavier than one man could lift alone) was to be dropped to crush the head – it was not someone tied to a post and rocks hurled at them, although this has been done in some cultures. The point was that if someone really had to be executed, it was to be done swiftly, with as little torture as possible, and usually publicly so that no vindictive person could do further nasty things behind the scenes and get away with it. People gathering at executions were often those who had come to pray for and support the person being executed and not just ghoulish onlookers. I would feel just the same about witnessing such an execution as I felt about hanging when it was done here. I prayed all night before the execution of Ruth Ellis, the last woman to be hung in the UK.
What areas of law do Muslims in Britain think are mishandled by British state law?
I think Muslims generally are shocked by the general lack of respect and discipline here, especially if they are immigrants and not born here. They are particularly shocked by lack of discipline in schools and the difficulties faced by so many teachers in getting children to behave in class and actually learn.
They are shocked by the appalling rates of theft, drunkenness, drug addiction, sex outside marriage, abortions, rape of children and old ladies, homosexuality – especially when it is being put forward as quite normal and an acceptable alternative sexual lifestyle; homosexuals in positions of authority (from teachers to MPs).
They are also shocked by the general lack of respect for those in authority, and older people in general. In Muslim homes, children would probably be expected not to smoke in front of parents, not to sit down or start eating before them.
Islam: A Sacred Law: What Every Muslim Should Know About the Shariah, Feisal Abdul Rauf, Kazi Pubns. ISBN: 0939660709
Teach Yourself Islam (Teach Yourself), Ruqaiyyah Waris Maqsood, pub. Teach Yourself. ISBN: 0340859687
Islamic Sharia and the Muslims, M.S. Siddiqui, Kazi Publications. ISBN: 0686639057
Woman in Islamic Shariah, Maulana Khan, Goodword Books. ISBN: 8185063761
World of Fatwas: Shariah in Action, Arun Shourie, Sharad Saxena (illustrator), pub. ASA. ISBN: 8190019953
Bibliography for ‘The philosophy of Sharia – the clear path’
Al-Madkhal li Dirasat al-Shariah al-Islamiyya (Abd al-Karim Zaydan)
Usul al-Fiqh al-Islami (Wahba Zuhayli)
Hujjat Allah al-Baligha (Wali Allah al-Dahlawi)
Reliance of the Traveller (tr Nuh Keller)
Al-Tahrir (Ibn al-Humam)