This is a modified version of a post I wrote about two years ago on the subreddit “AskReddit”. It’s based on a presentation I gave at my local masjid about Shari’ah. At the time that I gave this presentation, an orchestrated campaign by a Brooklyn lawyer demonizing Shari’ah had prompted several states to sponsor anti-Shari’ah legislation. While the topic is no longer center stage, this is still something that comes up and thus something every Muslim should be able to intelligently converse about.
In Arabic, Shar’iah literally means “path to water.” Knowing the linguistic meaning of the word is very important because it sets the backdrop for how Muslims view Shar’iah. Remember, Islam first developed in a desert environment. Your life literally revolved around knowing the closest source of water. So the Arabic word Shar’iah invokes the image of being the path to life. For non-Muslims, the word “Shari’ah” conjures up images of amputated hands and stoned adulterers and beheadings. For a Muslim, the word “Shari’ah” conjures up images of social justice, economic equity, and yes, freedom. A fantastic article by Noah Feldman of Harvard in the NYTimes titled, Why Shari’ah? explores this divide in how Shari’ah is viewed.
You know how in the US constitution we say that the inherent rights given to us are life, liberty, and the pursuit of happiness? Classical Islamic legal scholars distilled all of Shar’iah down to a single statement which translates to “Preserving that which is beneficial and prohibiting that which is harmful.” You can further expand that into what are called the maqasid or the objectives of the Shar’iah. There are five of them and they are:
- Protection of Faith
- Protection of Life
- Protection of Family (lineage/progeny)
- Protection of Intellect
- Protection of Wealth
If you look at any legal ruling in Islam, it can fall into one of these categories. Prohibition against adultery? Number 3. Freedom of religion: Number 1. Prohibition against murder? Number 2. Prohibition against alcohol? Number 4.
Now that’s pretty abstract. Let’s talk concrete, what does Shar’iah really mean? It refers to the entire body of what God wants from a person. In other words, it is the set of ethics and laws (i.e. the path) to God’s mercy (i.e. the water). When a Muslim uses the word Shar’iah, they mean everything that a person is supposed to do. This includes theological obligations, acts of worship, business transactions, dietary restrictions, marital guidelines, and national laws. Let’s break this down into percentages.
The bulk of Shar’iah, say 70%, deals with rituals and acts of worship. So the Shar’iah tells Muslims how many times a day they should pray (5) and what specific times of the day they should be praying. It tells them to give 2.5% of their savings in obligatory charity every year. It tells them to fast during the lunar month of Ramadan. It tells them to honor the sacrifice of Abraham by performing the pilgrimage to the Ka’ba at least once in their life.
About 25% of Shar’iah deals with what I would call personal law. This is somewhere in between religious and secular law. In that, it deals with things that are not purely religious, but places religious conditions on them. For example, marriage. What constitutes a marriage in Islam? What are the minimum conditions needed on each side to have a marriage. What are the technical aspects of marriage, how exactly do two people go from being strangers to being husband and wife?
Under this 25% comes food laws. You’ve heard, I’m sure, that Muslims don’t eat pork. That comes in here. Same with alcohol. And then what about things which are made from alcohol but are not alcoholic? For example, vinegar (spoiler: it’s allowed). Under this 25% also comes a strict prohibition on interest. A lot of the early Muslims were merchants so there’s a lot of laws in regards to business transactions and what is allowed and what is not.
Finally, in the last 5%, the biggie that everyone’s probably thinking about, those laws intended for application at a national level. It’s funny because while this is the first thing that comes to non-Muslims mind when someone says Shar’iah, it’s one of the last thing that comes to a Muslim’s mind. Even in Islamic states that have ruled by the Shar’iah (I would argue, as would the vast majority of Muslims, that such a state has not existed since 1914 and even that wasn’t full Shar’iah), this 5% is not usually very relevant to most people. It’s not relevant because it has a minimal impact on their actual life. It’s in this 5% that you get the cutting off the hand of a thief, stoning an adulterer (contrary to the propaganda, the punishment and evidentiary standard is equivalent for male and female adulterers), and executing an apostate. This 5% is what usually interests most people, so let me go more into detail about it.
First of all, realize that Shar’iah is not codified. There have been attempts (the Ottomans and the Mughals come to mind) but none have been very successful. So interpretations on this five percent will vary. However, I think people go to two extremes here. You have one group of people who think Shar’iah is a monolith and thus what one person says speaks for everyone. Then you have another set who say that Muslims have so many differing opinions that to ask “What is Shar’iah?” is meaningless since there’s no central authority. Neither is quite right. To understand this, I need to take a step back and explain how we get Shar’iah.
The basis of the Shar’iah are two main and two “secondary” things. I put secondary in quotes because really, these four are considered the primary sources of Shar’iah and everything else is secondary/ancillary. So, in order (sorta, let me explain):
- The Qur’an- hopefully this is obvious, this is the holiest book in Islam
- The Sunnah- the practice of the Prophet. In other words, how he implemented the Qur’an. You might find some sources list this as “hadith” but there’s a bit of a nuance here that becomes important at higher levels of study. A hadith is defined as a statement of the Prophet, an action of the Prophet which someone recorded, or a tacit approval (he saw something and did not object to it). I don’t want to bore you with details, but suffice it to say that especially in two legal schools, a hadith can state something but is not accepted as evidence because something else qualified as Sunnah.
- ‘Ijma- this is a consensus. Meaning, if all the Muslim legal scholars in a certain time and place come to an agreement on something, it becomes law. The idea behind this is that it’s unthinkable that *everyone* could misunderstand what God meant.
- Qiyas- analogical deduction. This is where analogies are made to new situations. For example, technically, only khamr (defined as an alcoholic beverage made from grapes) is forbidden in the Qur’an. You could argue that beer is fine since it’s not explicitly condemned. However, qiyas is applied and beer is equated to khamr and all alcoholic beverages are forbidden regardless of their origin.
Now, like I said, the above order is the “official” order but it is done mostly out of respect rather than because of actual importance. It has been stated that in reality, the most important source of Shar’iah historically has been Ijma, consensus. If you think about it, it makes sense. If everyone is agreeing on something, it almost certainly has strong foundations in both the Qur’an and the Sunnah and is abundantly clear. The second most important is often said to be the Sunnah. This is because the Sunnah can restrict the meaning of the Qur’an but not vice versa. In other words, if the Qur’an states something and the Prophet ﷺ’s actions seem to contradict it, the Qur’an’s meaning is re-evaluated in light of the Prophet ﷺ’s actions. This is why you have statements from works of legal scholars like Shah Waliullah that state “The Sunnah rules over the Qur’an but the Qur’an does not rule over the Sunnah.” This is not, as those unfamiliar with the tradition accuse, an example of Muslim scholars dismissing the word of God for the word of man. Instead, Muslims see the Qur’an and the Sunnah as two parts of the same divine message. The Sunnah is an explanation of the Qur’an, it is the Qur’an in action by the person most familiar with it.
If someone wants to bring something and claim it is Shar’iah, they must have evidence from these four categories. If someone says “It’s my interpretation of the Shar’iah, I can interpret it how I like” they would be laughed out of the building. You must provide evidence from these.
If you understand where Shari’ah comes from, you can understand why it’s problematic to codify it. Think of Shari’ah as something akin to common law. It is not written down in a book. Instead, Shari’ah derives from the Qur’an, the Sunnah, and then a massive body of interpretation stretching over a millennium. The way you decide individual judgement is by gaining a mastery over this body of knowledge. And you can’t gain a mastery over it without being trained by an expert. Once trained, a jurist faced with a case draws on legal precedent and a thorough understanding of the Qur’an and Sunnah to pass a ruling on the specific case in front of him/her. Shari’ah is not a cookier-cutter law code where you simply scroll down to the section talking about the case in front of you and then read out what it says.
Now, going back to the 5%, let’s look at them again. I’ll take stoning as an example. Let’s look at stoning. The evidentiary standard for stoning as found in Ijma and Sunnah (remember, these two are the most important) is extremely, extremely high. Four adult witnesses must see the male’s penis penetrate the vaginal canal. Make sure you understand me, I’m not saying four people must see them committing adultery (side note: stoning is solely for adulterers, if the two are unmarried, stoning isn’t the punishment). I’m saying four people must see the actual penetration occur. If four people walk into a room and see a man and a woman naked on the bed going at it but the angle is such that the penis isn’t visible, it doesn’t count. Needless to say, this makes it next to impossible for the standard to be met and I am not aware of any case in Islamic history where someone has been stoned by meeting this standard. The other way for them to be stoned is to turn themselves in (which is emphatically discouraged in the Sunnah). In the entire reign of the Ottoman caliphate, 1 stoning occurred.
You might ask, well then, what the heck is the purpose of a punishment when it can’t be enforced? Several things. Number one, it serves as a deterrent. Realize that in the time period where Islam began, there was no police force or real law enforcement. People abstained from crimes based on a social contract and the fear of punishment. I’m sure as heck less likely to have a one night stand if there’s even a 1% chance I’m going to get stoned (not in the marijuana sense). It also makes the seriousness of the crime more tangible. There’s a difference between saying “Don’t commit adultery, you’ll be punished in hell for a finite period of time. Unless you repent, because God forgives anyone who repents.” and “Don’t commit adultery, because if you get caught, you’ll get stones pelted at you until you die.” The other purpose of these punishments is that they show the severity of the crime. Sure, you might not get caught cheating on your wife but listen pal, what the fitting punishment would be is for you to be killed by having stones thrown at you. That’s how serious of a crime it is, not something to be proud of or laugh about it. Finally, these punishments (called hudood in Arabic) are setting the limits, the absolute maximum that can be meted out for a crime. If three people walked in on two people doing it, you can bet there would have been some punishment (called tazir punishments). Not stoning (since the standard can’t be met) but perhaps a hefty fine or public humiliation or (as the Ottomans liked to do), temporary banishment to the galleys.
Now, while that 5% is the juicy bit, it does not play a huge role in the day to day life of the average Muslim. Its primary role for most Muslims is to serve as an indicator of the severity of various crimes (for example, adultery). The other 95% that does factor into the life of the average Muslim are things such as: when do I pray? How do I pray? When do I fast? What breaks my fast? What kind of jobs will earn me halal money? What kind of foods can I eat?
In my presentation, at this point I would transition to pointing out the many Shari’ah-compliant halal foods being served at the masjid and ask for questions. If you’re adapting this for your own presentation, I’d strongly recommend having a nice variety of foods available for people to sample. It makes everything much more relaxed.
For further reading:
Misquoting Muhammad by Jonathan A. C. Brown
Shari’ah Law: An Introduction by Mohammad Hashim Kamali