Understanding Islamic Law

Understanding Islamic Law
Islamic civilization, since the time of Prophet
Muhammad (s) until now, is firmly founded on the
concept of ‘rule of law.’ For that reason, the law is
published and known, and citizens and courts are
expected to uphold it. In addition, Muslim citizens
must adhere to Islamic law - Shariah. If a Muslim
citizen commits a religious violation, he is judged
according to Islamic law. A non-Muslim citizen is
judged in religious issues by the laws of his own
faith.
Invoking Divine Principles and
Human Reason
Islam is a complete package – a complete message
and way of life. To fraction it into its component,
then examine them individually, will yield little or no
understanding of Islam’s holistic whole. Inevitably
aspects of Islam examined separately, without a
wide-ranging grasp of its totality, will be taken in
a fragmented context, in which case aspects may
take on the appearance of extremism.
However, when viewed from a comprehensive
perspective by any fair person, Islam will be found
sensible in all its aspects and practices. Could it be
otherwise for a faith that powers one of the
greatest living civilizations – one whose dynamism
and creativity supplied a foundation for countless
aspects of modern society?
Shariah is the Islamic Law – the disciplines and
principles that govern the behavior of a Muslim
individual towards his or herself, family, neighbors,
community, city, nation and the Muslim polity as a
whole, the Ummah. Similarly Shariah governs the
interactions between communities, groups and social
and economic organizations. Shariah establishes the
criteria by which all social actions are classified,
categorized and administered within the overall
governance of the state.
Shariah first establishes the patterns believers
should follow in worshipping Allah: prayers, charity,
fasting and pilgrimage.
Islam’s law comprises a comprehensive outlook on
life. As one looks from a satellite at this planet, the
Shariah conceives of the earth as a single ‘city’
with diverse inhabitants—in modern parlance, a
‘global village.’ Islam looks to the benefit of the
society as a whole from a general perspective and
presents a theoretical model that if followed
provides safety and protection for society.
Shariah literally means ‘a well-trodden path to
water,’ the source of all life, representing the Path
to Allah, as given by Allah, the Originator of all life.
Islamist Understanding of Shari‘ah
Now a great problem today is that a new movement
within Islam, the Islamist movement, has innovated
a non-traditional approach to Shariah which
vitiates all of the past approaches and establishes a
rigid, hardline and non-pragmatic approach which
vitiates all semblance of humaneness, sanity,
moderation and decorum which constituted Islamic
Law’s traditional implementation over the past 14
centuries of history.
Islamist states take the letter of the law – this is
‘Black letter law’ without regard to precedence. As
Christopher Houston asserts:
Indeed, the logic of the Shariah, with its minimal
number of clear interdictions, and maximal scope for
the interpretative extension of key precepts to
particular situations, means that any freezing of
the ulama’s ‘arbitrary’ decisions arises not so much
from the essential characteristics of the Shariah,
but from the historic institutionalizing of a
particular legal tradition or method of exegesis or
from the hegemony of a particular interpretation.
Whether this lack of institutional and conceptual
closure ironically encourages modern Islamist states
(Saudi Arabia?) or groups to force such closure is
another question. Paradoxically, the provisionality
of law-making allows some Islamist groups to
interpret the Qur’ān as affirming a radical negation
of human autonomy. [1]
Traditional governments in Islam on the other hand,
follow precedents established over many centuries –
just as is done in the US - they do not follow
absolute ‘letter of the law.’
Olivier Roy sums up the position of traditional Islam
when he writes:
The Shariah is never closed, for it is based not on a
core of concepts, but rather on an ensemble of
precepts which is at times general, at times precise,
and which expands to include the totality of human
acts through induction, analogy, extension,
commentary, and interpretation. [2]
Islam as a Complete Package – Three
Aspects
Islam is a complete way of life, sent by Allah in the
form of revelation by means of Prophet Muhammad
(s). As such it covers the three essential needs of
human life: physical, intellectual and spiritual. These
three aspects of the faith are known individually as:
1 Islam – Divine law
2 Imān - Belief
3 Iħsān - Ethics and moral character.
The first aspect, Islam, deals primarily with the
physical aspects of the faith, such as its
obligations, prohibitions and recommended actions.
This is the part of the faith governed by Shariah –
Islamic law. This aspect cannot however be
implemented by itself, but must complement the
other two. When the Prophet (s) taught Islam to his
followers, he taught them all these three aspects at
once, in a natural and holistic approach.
Shari‘ah’s Primary Objective is Mercy
Allah says:
ﻭَﻣَﺎ ﺃَﺭْﺳَﻠْﻨَﺎﻙَ ﺇِﻟَّﺎ ﺭَﺣْﻤَﺔً ﻟِّﻠْﻌَﺎﻟَﻤِﻴﻦَ
And We did not send you (O Muhammad) except as a
mercy for all creation.[3]
And the Prophet (s) said, “The Most Merciful shows
mercy to those who have mercy on others. Show
mercy to those on earth, and the One above the
heaven will show mercy to you.”
From this, and many other source texts, one can
summarize the primary objective of the Shariah,
( maqsad al-Shariah al-asasī ) as Kamali has done:
The ulema [scholars of Islam] have, thus, generally
considered Rahmah [Mercy] to be the all-pervasive
objective of the Shariah and have, to all intents and
purposes, used it synonymously with Maslaħah
[benefit in everyday communal life]. [4]
Similarly, Schact observes:
… the underlying tendency of the Qur’ānic legislation
was to favour the underprivileged; it started with
enunciating ethical principles... This feature of
Qur’ānic legislation was preserved by Islamic law,
and the purely legal attitude, which attaches legal
consequences to relevant acts, is often superseded
by the tendency to impose ethical standards on the
believer. [5]
Since Mercy is the Shariah’s primary goal, it is
clear that this cannot be achieved if the believers
who implement it are not embued with this essential
quality.
When society is informed by spiritual values, the
purpose of Shariah, to bring out mercy to mankind,
will be natural manifestation of those values. When
an individual’s faith is informed by spiritual values
his psyche and ethical compass will be balanced and
his desire for immoral or criminal acts eliminated or
reduced. Without such values, essential in removing
the psychological illnesses and the societal ailments
which afflict people in difficult physical situations,
man becomes nothing more than a political animal
and law becomes a means and an end, in-and-of
itself.
Followers of Wahhabi movement, created by
Muħammad ibn Abd al-Wahhāb (d. 1787), who make
up the majority of implementers seeking ‘Islamic’
states today, reject the principles of spirituality,
rather, they base their view of Islam purely on
material aspects. Thus they see that the only
approach to handling crime is to punish the
perpetrator with a physical punishment.
Despite studying the religious books of his day
Muħammad ibn Abd al-Wahhāb became extremely
dogmatic in his understanding of the faith. Imām
Abū Zahrā of Al-Azhar University asserts that
Muħammad ibn Abd al-Wahhāb was excessively more
extreme in his conceptions than any former scholar.
Following his demise “his followers went to even
further extremes surpassing all bounds of
jurisprudence, declaring countless acceptable
matters ‘forbidden.’ The Wahhabi movement, never
content to promulgate its beliefs by tongue or pen,
wielded a sword to fight whoever differed from its
ideology.”[6]
Bases of Shari‘ah – Revelation and
Reason
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.
Kamali states:
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. [7]
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 ). [8]
Khalid Muhammad delineates the distinction between
Divine Law (Shariah) and Jurisprudence (fiqh ) thus:
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] [9]
Shari‘ah’s Foundations
Communal Interdependence
Islamic law is founded on the principle that
individuals rely on other individuals. A single person
cannot carry out every aspect of Shariah by himself,
but needs other individuals that act as well, and
from whose combined actions the society benefits as
a whole. It is impossible for a person to reach
perfection, but Islamic Shariah shows that one can
reach perfection. How? By bringing all the people
together. The society as a whole produces perfection
which the individual by himself or herself cannot do.
Through individuals striving for perfection and their
interactions with each other under the Shariah, the
entire society is refined.
This principle may be most clearly exemplified in the
pilgrimage. A form of worship mandated for each
individual, for whoever can afford it at least once in
life, it nevertheless engages the entirety of society
to accomplish it and it cannot be performed except
as a community holding a global perspective. People
gather in one place from around the world to fulfill
this Divine command at the individual level, and
altogether are successful at a single moment in
affecting global changes. For that reason, Hajj has
often been compared to an international assemblage,
in which ideas, images and faith are gathered and
shared in a vast revival of the community’s
dedication to Divine Service, and through service to
Allah, service to humankind.
Objectives of the Law (Maqasid al-Shari‘ah )
The overarching objectives of Shariah, where as
mentioned above the overarching goal is Mercy, or
the benefit of society (maslaħah ), are sometimes
summarized under the following broad categories:
o Establishment of justice;
o Educating the individual;
o Upholding morality, in public and private;
o Preventing hardship, on individuals and society;
o Preventing oppression.
Shaykh Abd al-Ħalīm Maħmūd, a Shaykh of al-Azhar
and one of the highest scholars in Islam in recent
times, wrote:
Among these philosophical principles were justice,
the existence of good and evil, and the relationship
between human beings and the environment and his
interactions with it, the most important of these
being the freedom of choice. The leadership of Muslim
scholars has shown the differences in their views:
each was able to deduce different methodologies
from which emerged the various schools of thought.
[10]
Regarding the Objectives of Shariah, Kamali states:
The precedents of the leading Sahaba (Companions of
the Prophet) indicate, on the other hand, that they
saw the Shariah not only as a set of rules but also
as a system of values, where the specific rules were
the tangible manifestations of those overriding
values… .it was not until the time of al-Ghazālī (d.
505H), and then al-Shatibi (d. 790H), that
significant developments were made in the
formulation of the theory of Al-Maqasid .[11]
Levels of Observance
Al-Fārābī (d. 950 CE), a leader in Islamic political
thought, expounded these ideas pertaining to the
governance of different sizes of community:
As humanity expanded through the earth and
inhabited all its areas, it resulted in the formation
of different nations and cultures. We can categorize
the approach of nations into two: the ideal ones
who are able to observe the highest level of
principles and rules and those who observe them only
partially. Those who observe the highest level are
divided into three categories:
· Highest are those in which the whole global society
agrees and works together in unity.
· Second is the localized observance – a region, city
or state of the society works together in unity
while the rest does not.
· At the lowest level we find a district or community
in which harmony and cooperation are observed. [12]
Al-Shātibī defined Shariah’s levels from a different
perspective:
Shariah law aimed to protect five basic human
interests: religion, life, reproduction, property, and
reason. He also found that these basic interests
were universally recognized among all other nations.
He developed a model of Islamic law consisting of
three concentric circles. The innermost circle deals
with the essential laws concerning the five basic
interests. The second circle covers those laws and
practices that are not directly related to the
above-mentioned laws but are assimilated into
Shariah on account of public convenience … al-
Shātibī finds the normative basis of Shariah, deeply
rooted in human reason and social practices and
standards. [13]
Commenting on the role of reason in defining juristic
law ( fiqh), Christopher Houston observes:
… the majority of strictures governing the believer’s
conduct is in both theory and practice debatable and
hence revisable. [14]
On this topic, author Messick states, “In the gap
between divine plan and human understanding [lies]
the perennially fertile space of critique, the locus of
an entire politics articulated in the idiom of the
Shariah.”[15]
Mallat Chibli writes:
The lessons of the classical age, to sum up, are … :
the rule of law is established as a principle, so is
the concept of the right of man... At the same time,
there is a dimension of civil society with its own
autonomous regulation which can be found, in first
approximation, in the importance of custom [ urf
[ and its legal recognition, and in an identifiable
sphere of separation of powers with the ruler on the
one hand and ulama , muftis and qāļīs, on the other.
[16]
A partially-deficient society is one in which
extremes are applied. Such societies take only parts
from the whole. Because of this, the society both
progresses and suffers at the same time due to the
imbalance in its observation of Shariah.
Such was often the case in Islamic history, where
Islamic Law was implemented at some levels of
society and not others. Often the ruler was exempt
from provisions of law by royal fiat or explicit
decree. Arjomand observes:
The legal history of medieval Islam is replete with
examples of conflict between royal public law and the
Shariah. The same is true of modern
constitutionalism in the Middle East. Clashes
between the jurisdiction of the state laws and the
Shariah surfaced in a basic form in the
constitutional debates in Iran in 1907–8, and since
then in Pakistan and elsewhere. … But the civil rights
to security of life and property – the first to be
introduced in the Muslim world, though at variance
with the political culture of the patrimonial and
imperial systems of the Middle East – were not
contradictory to Islamic law. [17]
Shari‘ah’s Sources
1 Revelation
Qur’ān
The primary source of Shariah are two: Qur’ān and
Sunnah. The Qur’ān is held by all Muslims as the
ultimate source of law, being revealed from Allah to
the Prophet Muhammad (s), and therefore perfect
and infallible.
The Qur’ān contains broad, general rules that are
immutable, not unlike societal rules of today: the
sanctity of life, security and freedom of expression,
and the inviolability of these rights. The adaptation
of law according to time and circumstance was
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. This is most elegantly
displayed in the development of the law.
Sunnah
Much of the Qur’ān was revealed through actual
events encountered by the Prophet (s), and
questions asked and answered by him. The Prophet
(s) also used the Qur’ān as a basis of his own
teaching and adjudication. Nevertheless, the Qur’ān
is neither a legal nor a constitutional document,
although legal materials occupy a small portion of
its text; less than 3 percent of the text deals with
legal matters. The legal contents of the Qur’ān were
mainly revealed following the Prophet’s migration
from Mecca to Medina, where he established a
government and the need therefore arose for
legislation on social and governmental issues.
The second revealed source of Shariah is the Sunnah,
or practices, injunctions and recommendations of
the Prophet (s) as well as actions of others he
approved or did not rebuff. It is consensus of
scholars that the Sunnah is accorded the status of
revelation, according to the explicit Qur’ānic text:
what the Prophet gives you, take and what he
forbids, cease therefrom. [18]
2 Reasoning
Hashim Kamali states:
The nonrevealed sources of Shariah are generally
founded in juristic reasoning (ijtihād ). This reasoning
may take a variety of forms, including analogical
reasoning (qiyās ), juristic preference (istiħsān ),
considerations of public interest ( istišlāħ), and even
general consensus (ijma) of the learned, which
basically originates in ijtihād and provides a
procedure by which a ruling of juristic reasoning can
acquire the binding force of law. Analogy and
consensus have been generally recognized by the vast
majority of ulama , but there is disagreement over
the validity and scope of many of the rational
proofs that originate in ijtihād .[19]
Ijtihād , or juristic reasoning through analogy (qiyās )
is a principle explicitly founded in the authentic
Sunnah of the Prophet (s) in the famous hadith of
Muadh.[20] The other principles were originated by
the companions after the Prophet (s) and “Alī used
to formulate his own opinion by means of Ijithad
based on qiyās, istishāb, istiħsān and istišlāħ, always
basing his opinion on the broader aims of the
Shariah.”[21]
Before the canonization of the four independent
schools of thought, Mālikī, Ħanafī, Shāfiī and Ħanbalī
in the fourth century of Islam,[22] there existed
more than 424 different schools of thought. These
had been developed by experts who examined the
revelation and precedents as established by the
Prophet and the early Muslim generations, and
formed them into law.
Who is Eligible to Explain the Shari‘ah?
After the time of the Prophet Muhammad (s), from
over 100,000 of his Companions (students who
personally met him), fewer than thirty are recorded
actually issuing fatwās on new issues in which Ijtihād ,
or juristic reasoning, was required.
Today the authority for Ijtihād is with the mufti, or
Dar al-Ifta, Center of Rulings, which gives general
rulings ( fatwā, pl. fatāwā) about an incident or legal
question. As scholars, they are able to look at the
entire package of Islam and issue a ruling on the
question at hand.
The judge ( qāļī ) on the other hand issues a judgment
( ray al-qaļā ) on particular cases or incidents
pertaining to an individual or groups, typically in
cases involving two adversaries.
These two groups must work together – like two
parties in which both seek the best understanding by
applying their utmost efforts. The Center of Rulings
and the mufti build the information model while the
judge applies it to a particular case. Each case
studied by the judge ( qāļī) is an attempt to
comprise a particular verdict based on the legal
precedent given by the mufti which can be applied in
the specific judgment.
A ruling by a mufti is not given force of law – it is
only a response to an issue and it is up to
individuals to follow the ruling or not. Law on the
other hand, is enforced by individual judgments of
the court – typically informed by a fatwā but in
practical application taking into consideration
circumstances and conditions of plaintiff and
defendant. Alternatively, a ruling (fatwā ) can be
made into law by order of the executive office.
It is essential to understand that no one can issue
a ruling without qualification, and no one can issue
a judgment without qualification. Since rulings have
a tremendous impact on the life of society and
ruling on the individual, it is essential that those
issuing them have excellent moral character, and
most importantly that they are qualified.
Allah says,
ﻗُﻞْ ﺃَﺭَﺃَﻳْﺘُﻢ ﻣَّﺎ ﺃَﻧﺰَﻝَ ﺍﻟﻠّﻪُ ﻟَﻜُﻢ ﻣِّﻦ ﺭِّﺯْﻕٍ ﻓَﺠَﻌَﻠْﺘُﻢ
ﻣِّﻨْﻪُ ﺣَﺮَﺍﻣًﺎ ﻭَﺣَﻼَﻻً ﻗُﻞْ ﺁﻟﻠّﻪُ ﺃَﺫِﻥَ ﻟَﻜُﻢْ ﺃَﻡْ ﻋَﻠَﻰ ﺍﻟﻠّﻪِ
ﺗَﻔْﺘَﺮُﻭﻥَ
Say: Tell me what Allah has sent down for you of
sustenance, then you make (a part) of it unlawful
and (a part) lawful. Say: Has Allah commanded you,
or do you forge a lie against Allah?” [23]
This verse emphasizes that no one has the right to
judge something right or wrong unless he has
complete evidence from the pertinent information as
found in the source texts, from deep discussion
among the people who have a grasp of the issue at
hand, and to seek all meaningful evidence. Otherwise
one should remain silent for then one would be lying
against Allah and against the religion.
Imām Shāfiī, founder of one of the four great
schools of jurisprudence, said:
It is not allowed for anyone to give a Shariah
explanation ( fatwā), except one who knows the Holy
Qur’ān completely including what verses are
abrogated and by which verses they were abrogated,
and which verses resemble each other in the Qur’ān
and whether a chapter was revealed in Makkah or
Madina. He must know the entire corpus of the
Hadith of the Prophet (s), both those which are
authentic and those which are false. He must know
the Arabic language of the time of the Prophet (s)
with its grammar and eloquence as well as know the
poetry of the Arabs. Additionally he must know the
culture of the various peoples who live in each
different nation of the community. If a person has
all such attributes combined in himself, he may
speak on what is permitted (halal) and what is
forbidden ( haram ). Otherwise he has no right to
issue a fatwā .
It is related that one of the greatest scholars of
Shariah, Abd al-Raħmān ibn Abi Laila said:
I was able to meet with one hundred and twenty of
the Companions of the Prophet (s). Every one of
these companions was asked about specific Shariah
issues, seeking a verdict, but they avoided rendering
a decision instead pointing to another companion to
issue the answer. They were afraid to give an answer
that would be incorrect for which they would be
responsible before Allah.
That shows that one can be deeply imbued with
Islamic knowledge, as were all the Prophet’s
Companions, and yet still feel unqualified to give a
verdict. All one-hundred and twenty of the Prophet’s
Companions with whom ibn Abi Laila met were
hesitant to issue a fatwā.
Imām Nawawī, one of the greatest of Islam’s later
scholars, related that Imām ash-Shubī and Ħasan al-
Bašrī and many others of the Successors [generation
immediately succeeding the Companions of the
Prophet (s)] said, “people of today are quick to
issue a ruling based on their analysis concerning
someone. If an answer had been sought for that
same issue at the time of Umar ibn al-Khaţţāb ¦
(second caliph of the Prophet (s)), he would have
gathered all the participants of Badr [i.e. 313 of the
foremost Companions of the Prophet] in pursuit of
the answer.”
Historically, ijtihād has been perceived as a concern
primarily of the individual scholar and mujtahid. But
in modern times, ijtihād has become a collective
endeavor that combines the skills and contributions
not only of the scholars of Shariah, but of experts
in various other disciplines, because acquiring a
mastery of all the skills that are important to
society is difficult for any one person. Ideally,
independent reasoning should be combined with the
Qur’ānic principle of consultation (shūrā ), making it
a consultative process, preferably as an integral
part of the workings of the modern legislative
assembly. Ijtihād has also been seen in the past as a
juristic concept, a preserve of the jurist to the
exclusion of specialists in other disciplines. But as a
method by which to find solutions to new issues,
ijtihād should be exercised by the scholars of Shariah
as well as by experts in other disciplines, provided
that those who attempt this independent reasoning
acquire mastery of the relevant data, the Quaran,
and the Sunnah. There is thus no reason why experts
in Islamic economics and medicine, for example,
could not carry out ijtihād in their own fields. [24]
Detailed Objectives of the Law (Maqasid
ash-Shari‘ah )
Schact, in describing the purpose of the Law writes:
In the field of penal law, it is easy to understand
that the Qur’ān laid down sanctions for
transgressions, but again they are essentially moral
and only incidentally penal, so much so that the
Qur’ān prohibited wine-drinking but did not enact
any penalty, and the penalty was determined only at
a later stage of Islamic law. The reasons for
Qur’ānic legislation on all these matters were, in the
first place, the desire to improve the position of
women, of orphans and of the weak in general, to
restrict the laxity of sexual morals and to
strengthen the marriage tie, to restrict private
vengeance and retaliation and to eliminate blood
feuds altogether; the prohibition of gambling, of
drinking wine and of taking interest are directly
aimed at ancient Arabian standards of behaviour.
[25]
Shaykh Faraz Rabbani describes the intent behind
Divine Law, something which has been strongly
highlighted in the current era as people with various
agendas, from apologist to extreme Islamist, seek
to define Islamic Law within a Western framework of
understanding:
The ultimate worth of actions is based on intention
and sincerity, as mentioned by the Prophet (s), who
said, “Actions are by intentions, and one shall only
get that which one intended.” The Shariah covers all
aspects of human life. Classical Shariah manuals are
often divided into four parts: … personal acts of
worship; … commercial dealings;… marriage and
divorce, and penal laws.
The legal philosophers of Islam, such as Ghazālī,
Shāţibī, and Shāh Walīullāh explain that the aim of
Shariah is to promote human welfare. This is evident
in the Qur’ān, and teachings of the Prophet (s).
The scholars explain that the welfare of humans is
based on the fulfillment of necessities, needs, and
comforts.
Necessities
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 Shariah protects these necessities in two ways:
firstly by ensuring their establishment and then by
preserving them.
Religion: To ensure the establishment of religion,
Allah 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.
Life: To ensure the preservation of human life, Allah
Most high legislated for marriage, healthy eating
and living, and forbid the taking of life and laid
down punishments for doing so.
Intellect: Allah 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.
Lineage: 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.
Wealth: Allah 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 Shariah with regards to needs and
comforts is summed up in the Qur’ān,
ﻭَﻣَﺎ ﺟَﻌَﻞَ ﻋَﻠَﻴْﻜُﻢْ ﻓِﻲ ﺍﻟﺪِّﻳﻦِ ﻣِﻦْ ﺣَﺮَﺝٍ
He has not placed any hardship for you in
religion,” [26]
And,
ﻣَﺎ ﻳُﺮِﻳﺪُ ﺍﻟﻠّﻪُ ﻟِﻴَﺠْﻌَﻞَ ﻋَﻠَﻴْﻜُﻢ ﻣِّﻦْ ﺣَﺮَﺝٍ ﻭَﻟَـﻜِﻦ ﻳُﺮِﻳﺪُ
ﻟِﻴُﻄَﻬَّﺮَﻛُﻢْ ﻭَﻟِﻴُﺘِﻢَّ ﻧِﻌْﻤَﺘَﻪُ ﻋَﻠَﻴْﻜُﻢْ ﻟَﻌَﻠَّﻜُﻢْ ﺗَﺸْﻜُﺮُﻭﻥَ
Allah 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. [27]
Therefore, everything that ensures the human
happiness, within the spirit of Divine Guidance, is
permitted in the Shariah. [28]
Deferral of Ruling and Judgments
An essential principle for muftis and qāļī s is they
must not to be quick in ruling and must examine all
the evidences from the Holy Qur’ān, hadith and
precedent prior law. The mufti must not think that
being quick to respond is due to his own ingenuity,
rather he must take painstaking care and be tranquil
as he approaches the problem, in order not to make
the slightest error, for the lives of people are in the
balance in such decisions. Similarly, he must await
changes in circumstances, for conditions and
situations might change and evidences might emerge
that were not known at the outset of the issue
before him. It is thus not uncommon for a mufti to
wait many weeks before issuing a fatwā . However,
where extreme forms of Shariah are practiced,
fatwā s or judgements are often made quickly with
insufficient attention to the issues or the Shariatic
arguments relating to the judgment.
The Middle Path
Islamic Shariah calls people to the middle path in all
things in belief, worship, ethics, morality, behavior,
individual interactions, social interactions and in
intellectual understanding. This is the basis of
Shariah’s širāţ al-mustaqīm – the Straight Path.
This essential principle of Shariah is known as “ al-
wasaţīyya ”, moderation, as mentioned in the Holy
Qur’ān, ﻭَﻛَﺬَﻟِﻚَ ﺟَﻌَﻠْﻨَﺎﻛُﻢْ ﺃُﻣَّﺔً ﻭَﺳَﻄًﺎ “we made
you a nation of justice and clemency. ”[29] This principle
encourages clemency and reasonableness in making
judgments.
Allah said:
ﻭَﻣَﺎ ﻛَﺎﻥَ ﺍﻟْﻤُﺆْﻣِﻨُﻮﻥَ ﻟِﻴَﻨﻔِﺮُﻭﺍْ ﻛَﺂﻓَّﺔً ﻓَﻠَﻮْﻻَ ﻧَﻔَﺮَ ﻣِﻦ
ﻛُﻞِّ ﻓِﺮْﻗَﺔٍ ﻣِّﻨْﻬُﻢْ ﻃَﺂﺋِﻔَﺔٌ ﻟِّﻴَﺘَﻔَﻘَّﻬُﻮﺍْ ﻓِﻲ ﺍﻟﺪِّﻳﻦِ
ﻭَﻟِﻴُﻨﺬِﺭُﻭﺍْ ﻗَﻮْﻣَﻬُﻢْ ﺇِﺫَﺍ ﺭَﺟَﻌُﻮﺍْ ﺇِﻟَﻴْﻬِﻢْ ﻟَﻌَﻠَّﻬُﻢْ
ﻳَﺤْﺬَﺭُﻭﻥَ
Nor should the believers all go forth together. If a
contingent from each expedition remained behind they
could devote themselves to study of religion and
admonish the people when they return that thus they
may guard themselves from evil. [30]
This Qur’ānic exhortation recommends that a handful
of individuals should come forth and study the faith
deeply - they become the ones to advise the
community in religious issues.
Allah said, ﻓَﺎﺳْﺄَﻝْ ﺑِﻪِ ﺧَﺒِﻴﺮًﺍ “Ask about Allah from
one who knowledgable .”[31] and He said: ﻓَﺎﺳْﺄَﻟُﻮﺍْ
ﺃَﻫْﻞَ ﺍﻟﺬِّﻛْﺮِ ﺇِﻥ ﻛُﻨﺘُﻢْ ﻻَ ﺗَﻌْﻠَﻤُﻮﻥَ “ so ask the
followers of the Reminder if you do not know ,”[32]
indicating the need to ask those possessing
knowledge of an issue; not from one’s opinion or
from someone who is ignorant.
Imām Mālik was once asked about twenty-two
different juristic issues. He only responded to two.
In answering these he prayed seeking support from
Allah and he was not hasty in his responses.
It is said that “the one among you who quickly runs
to make fatwā, is like one who is running to throw
himself into the fire.” Such sayings emphasize the
importance of deep consideration when making a
ruling.
Ease above Ardor
Another principle in issuing a fatwā the mufti must
seek the easiest way that people can apply, which is
acceptable in Islam.
Allah said:
ﻳُﺮِﻳﺪُ ﺍﻟﻠّﻪُ ﺑِﻜُﻢُ ﺍﻟْﻴُﺴْﺮَ ﻭَﻻَ ﻳُﺮِﻳﺪُ ﺑِﻜُﻢُ ﺍﻟْﻌُﺴْﺮَ
Allah intends every facility for you; he does not
want to put you to difficulties[33]
and the Prophet (s) said, “make things easy and do
not make them difficult.”
Differences as Mercy
Prophet Muhammad (s) said, “Islam consists in three
hundred and thirteen roads (Shariah). There is not
one upon which one meets Allah, Almighty and
Exalted except he enters Paradise through it.” [34]
Prophet Muhammad (s) said, “It is meritorious for a
judge to make an interpretation (ijtihād ), even if
wrong. But for the judge who adjudicates rightly
there is twice the merit,” [35]
meaning he received the merit of striving to seek a
correct judgment and the reward of having done so.
One of the Successors of the Prophet (s), the caliph
Umar ¦ ibn Abd al-Azīz said, “I don’t like to see
the Companions of Prophet (s) agreeing on the same
issue, rather I prefer to see them disagree.”
What he meant was that if the Companions, who are
the main reference for the Shariah, disagree,
different valid viewpoints would emerge, and in this
way more solutions to the same problem would
become available. This kind of dispute never divides
the community.
In fact there is a saying, “The differences among my
Community are a mercy” which the scholars of Islam
agree is correct in meaning. Ibn Taymiyya said, “The
consensus of the Imams [of law] on a question is a
definitive proof, and their divergence of opinion is a
vast mercy.” [36]
Dr. Muhammad Imara of Al-Azhar in Cairo says:
It is easy to avoid discussing the differences in the
Ummah but it is impossible to remove them and say
that all will accept the same ideology and school.
Whoever thinks that about the Muslim Ummah can
one day be free of schools of thought, is in fact an
enemy of freedom and diversity, or believes in an
idealistic dream which is, in reality, impossible to
expect. For stifling intellectuality and preventing
different ways of thinking about religion from being
expressed, in essence imposes dictatorship on
religion … [37]
Muslims are thus presented with competing fatwās. In
such cases he or she would follow the ruling of the
scholar observing the same religious madhhab. If
two muftis of the same madhhab issue conflicting
fatwā s, the common Muslim has his or her choice. In
practice however, today holding to a particular
tradition is not strictly applied, giving Muslims
more flexibility in choosing among alternatives.
Extreme Muslims however reject the principle that
differences are a mercy and seek to impose one
‘brand’ of Islam and one set of rulings on everyone.
This in practice makes them rigid, unbending and
intolerant.
Clemency
In the verses of punishment, one finds that Allah
always follows by mentioning forgiveness, as in:
ﻓَﻤَﻦْ ﻋُﻔِﻲَ ﻟَﻪُ ﻣِﻦْ ﺃَﺧِﻴﻪِ ﺷَﻲْﺀٌ ﻓَﺎﺗِّﺒَﺎﻉٌ ﺑِﺎﻟْﻤَﻌْﺮُﻭﻑِ
ﻭَﺃَﺩَﺍﺀ ﺇِﻟَﻴْﻪِ ﺑِﺈِﺣْﺴَﺎﻥٍ ﺫَﻟِﻚَ ﺗَﺨْﻔِﻴﻒٌ ﻣِّﻦ ﺭَّﺑِّﻜُﻢْ
ﻭَﺭَﺣْﻤَﺔٌ ﻓَﻤَﻦِ ﺍﻋْﺘَﺪَﻯ ﺑَﻌْﺪَ ﺫَﻟِﻚَ ﻓَﻠَﻪُ ﻋَﺬَﺍﺏٌ ﺃَﻟِﻴﻢٌ
And for him who is forgiven somewhat by his
(injured) brother, prosecution according to usage
and payment unto him in kindness. This is a
concession and a mercy from your Lord. After this
whoever exceeds the limits shall be for him a great
penalty. [38]
This is made very clear in the Qur’ān wherein each
mention of punishment, is followed by the mention of
repentance and forgiveness.
... ﻛَﺘَﺒْﻨَﺎ ﻋَﻠَﻰ ﺑَﻨِﻲ ﺇِﺳْﺮَﺍﺋِﻴﻞَ ﺃَﻧَّﻪُ ﻣَﻦ ﻗَﺘَﻞَ ﻧَﻔْﺴًﺎ
ﺑِﻐَﻴْﺮِ ﻧَﻔْﺲٍ ﺃَﻭْ ﻓَﺴَﺎﺩٍ ﻓِﻲ ﺍﻷَﺭْﺽِ ﻓَﻜَﺄَﻧَّﻤَﺎ ﻗَﺘَﻞَ
ﺍﻟﻨَّﺎﺱَ ﺟَﻤِﻴﻌًﺎ ﻭَﻣَﻦْ ﺃَﺣْﻴَﺎﻫَﺎ ﻓَﻜَﺄَﻧَّﻤَﺎ ﺃَﺣْﻴَﺎ ﺍﻟﻨَّﺎﺱَ
ﺟَﻤِﻴﻌًﺎ ﻭَﻟَﻘَﺪْ ﺟَﺎﺀ ﺗْﻬُﻢْ ﺭُﺳُﻠُﻨَﺎ ﺑِﺎﻟﺒَﻴِّﻨَﺎﺕِ ﺛُﻢَّ ﺇِﻥَّ
ﻛَﺜِﻴﺮًﺍ ﻣِّﻨْﻬُﻢ ﺑَﻌْﺪَ ﺫَﻟِﻚَ ﻓِﻲ ﺍﻷَﺭْﺽِ ﻟَﻤُﺴْﺮِﻓُﻮﻥَ
… We decreed for the Children of Israel that
whosoever killeth a human being for other than
murder or corruption in the earth, it shall be as if
he had killed all mankind And if anyone saved a life,
it would be as if he had saved all of mankind.[39]
In mentioning the laws of punishment for waging
war, the Qur’ān recommends the death penalty.
However, even for this most grievous crime it allows
a way out
ﺇِﻻَّ ﺍﻟَّﺬِﻳﻦَ ﺗَﺎﺑُﻮﺍْ ﻣِﻦ ﻗَﺒْﻞِ ﺃَﻥ ﺗَﻘْﺪِﺭُﻭﺍْ ﻋَﻠَﻴْﻬِﻢْ
ﻓَﺎﻋْﻠَﻤُﻮﺍْ ﺃَﻥَّ ﺍﻟﻠّﻪَ ﻏَﻔُﻮﺭٌ ﺭَّﺣِﻴﻢٌ
… except for those who repent before they fall into
your power. In that case, know that Allah is
Forgiving, Merciful.[40]
Again emphasizing forgiveness, Allah says:
ﻭَﻟْﻴَﻌْﻔُﻮﺍ ﻭَﻟْﻴَﺼْﻔَﺤُﻮﺍ ﺃَﻟَﺎ ﺗُﺤِﺒُّﻮﻥَ ﺃَﻥ ﻳَﻐْﻔِﺮَ ﺍﻟﻠَّﻪُ ﻟَﻜُﻢْ
ﻭَﺍﻟﻠَّﻪُ ﻏَﻔُﻮﺭٌ ﺭَّﺣِﻴﻢٌ
…let them forgive and overlook. Do you not wish
that Allah should forgive you? [41]
And in respect of cutting the hands of the thief,
Allah says:
ﻓَﻤَﻦ ﺗَﺎﺏَ ﻣِﻦ ﺑَﻌْﺪِ ﻇُﻠْﻤِﻪِ ﻭَﺃَﺻْﻠَﺢَ ﻓَﺈِﻥَّ ﺍﻟﻠّﻪَ ﻳَﺘُﻮﺏُ
ﻋَﻠَﻴْﻪِ ﺇِﻥَّ ﺍﻟﻠّﻪَ ﻏَﻔُﻮﺭٌ ﺭَّﺣِﻴﻢٌ
But if the thief repents after his crime, and amends
his conduct, Allah turneth to him in forgiveness; for
Allah is Oft-forgiving, Most Merciful. [42]
We see that all these verses which commence as
verses of punishment are immediately followed by
verses of mercy. That is Islam’s way of dealing with
criminality to reduce the severity of punishment.
That is why a judge must examine each case with
great consideration.
It is reported by ‘Āishā that the Messenger of Allah
(s) said: “Ignore the offenses of those seen to
possess [good] qualities (dhawi ’l-ħayāt ), except in
[corporal and capital] penalties.” [43]
ﻧﻌَﺎﺋِﺸَﺔَ، ﻗَﺎﻟَﺖْ ﻗَﺎﻝَ ﺭَﺳُﻮﻝُ ﺍﻟﻠَّﻪِ ﺻﻠﻰ ﺍﻟﻠﻪ ﻋﻠﻴﻪ
ﻭﺳﻠﻢ "ﺍﺩْﺭَﺀُﻭﺍﺍﻟْﺤُﺪُﻭﺩَﻋَﻨﺎﻟْﻤُﺴْﻠِﻤِﻴﻨﻤَﺎﺍﺳْﺘَﻄَﻌْﺘُﻢْ
ﻓَﺎِﻧْﻜَﺎﻥَ ﻟَﻪُ ﻣَﺨْﺮَﺝٌ ﻓَﺨَﻠُّﻮﺍ ﺳَﺒِﻴﻠَﻪُ ﻓَﺎِﻥَّ ﺍﻻِﻣَﺎﻡَ ﺍَﻥْ
ﻳُﺨْﻄِﺌَﻔِﻲ ﺍﻟْﻌَﻔْﻮِ ﺧَﻴْﺮٌ ﻣِﻦْ ﺍَﻥْ ﻳُﺨْﻄِﺊَ ﻓِﻲ
ﺍﻟْﻌُﻘُﻮﺑَﺔِ"
‘Āishā also related that the Prophet (s) said:
“Stave off the penalties from the Muslims as much
as you can, and if any leeway is found then release
the detainee. Truly it is preferable for the ruler to
pardon mistakenly than to punish mistakenly.” [44]
The Companion Abd Allāh ibn Masūd said: “Stave off
the penalties by way of inconclusive evidence. Avert
death from the Muslims as much as you can.”[45]
The caliph Umar ¦ said: “To erroneously not apply
the penalties because of inconclusive evidence is
dearer to me than mistakenly applying them on the
basis of inconclusive evidence.”[46]
Shaykh Yūsuf al-Rifai, commenting on the excessive
application of punishments by Salafi extremists,
writes:
… you forgot that the Prophet (s) said: “The first
judgment that shall be passed among the people on
the Day of Resurrection shall be over blood [unjustly
shed].” [47] Therefore, fear Allah and do not kill a
life which Allah made sacred, except in justice! [48]
Moderation
ﺇﻳﺎﻛﻢ ﻭ ﺍﻟﻐﻠﻮ ﻓﻲ ﺍﻟﺪﻳﻦ ﻓﺈﻧﻤﺎ ﻫﻠﻚ ﻣﻦ ﻛﺎﻥ
ﻗﺒﻠﻜﻢ ﺑﺎﻟﻐﻠﻮ ﻓﻲ ﺍﻟﺪﻳﻦ
The Prophet (s) said, “Beware of extremism in
religion. Those who were before you nothing
destroyed them except their extremism in
religion.” [49]
The moderate Islamic Shariah is described by the
verse:
ﺍﺩْﻉُ ﺇِﻟِﻰ ﺳَﺒِﻴﻞِ ﺭَﺑِّﻚَ ﺑِﺎﻟْﺤِﻜْﻤَﺔِ ﻭَﺍﻟْﻤَﻮْﻋِﻈَﺔِ ﺍﻟْﺤَﺴَﻨَﺔِ
ﻭَﺟَﺎﺩِﻟْﻬُﻢ ﺑِﺎﻟَّﺘِﻲ ﻫِﻲَ ﺃَﺣْﺴَﻦُ ﺇِﻥَّ ﺭَﺑَّﻚَ ﻫُﻮَ ﺃَﻋْﻠَﻢُ
ﺑِﻤَﻦ ﺿَﻞَّ ﻋَﻦ ﺳَﺒِﻴﻠِﻪِ ﻭَﻫُﻮَ ﺃَﻋْﻠَﻢُ ﺑِﺎﻟْﻤُﻬْﺘَﺪِﻳﻦَ
“Invite (all) to the Way of thy Lord with wisdom and
beautiful preaching; and argue with them in ways
that are best and most gracious … .” [50]
This verse shows that even in debates with others,
one must use a good form of discussion and
dialogue.
Allah prevented Muslims from discussion with non-
Muslims except in a moderate way:
ﻭَﻟَﺎ ﺗُﺠَﺎﺩِﻟُﻮﺍ ﺃَﻫْﻞَ ﺍﻟْﻜِﺘَﺎﺏِ ﺇِﻟَّﺎ ﺑِﺎﻟَّﺘِﻲ ﻫِﻲَ ﺃَﺣْﺴَﻦُ ﺇِﻟَّﺎ
ﺍﻟَّﺬِﻳﻦَ ﻇَﻠَﻤُﻮﺍ ﻣِﻨْﻬُﻢْ ﻭَﻗُﻮﻟُﻮﺍ ﺁﻣَﻨَّﺎ ﺑِﺎﻟَّﺬِﻱ ﺃُﻧﺰِﻝَ ﺇِﻟَﻴْﻨَﺎ
ﻭَﺃُﻧﺰِﻝَ ﺇِﻟَﻴْﻜُﻢْ ﻭَﺇِﻟَﻬُﻨَﺎ ﻭَﺇِﻟَﻬُﻜُﻢْ ﻭَﺍﺣِﺪٌ ﻭَﻧَﺤْﻦُ ﻟَﻪُ
ﻣُﺴْﻠِﻤُﻮﻥَ
“and dispute not with the people of the Book except
with means better than mere disputation, … and say
‘we believe in the revelation that has come down to
us and in that which has come down to you. Our
God and your God is one and it is to Him that we
surrender.’” [51]
And in another place He says:
ﻭَﺇِﻥ ﺟَﺎﺩَﻟُﻮﻙَ ﻓَﻘُﻞِ ﺍﻟﻠَّﻪُ ﺃَﻋْﻠَﻢُ ﺑِﻤَﺎ ﺗَﻌْﻤَﻠُﻮﻧَﺎﻟﻠَّﻪُ
ﻳَﺤْﻜُﻢُ ﺑَﻴْﻨَﻜُﻢْ ﻳَﻮْﻡَ ﺍﻟْﻘِﻴَﺎﻣَﺔِ ﻓِﻴﻤَﺎ ﻛُﻨﺘُﻢْ ﻓِﻴﻪِ
ﺗَﺨْﺘَﻠِﻔُﻮﻥَ
If they do wrangle with thee, say, “Allah knows best
what it is ye are doing. Allah will judge between you
on the Day of Judgment concerning the matters in
which ye differ.” [52]
Gentleness
Islam encourages people to be good hearted:
ﻓَﺒِﻤَﺎ ﺭَﺣْﻤَﺔٍ ﻣِّﻦَ ﺍﻟﻠّﻪِ ﻟِﻨﺖَ ﻟَﻬُﻢْ ﻭَﻟَﻮْ ﻛُﻨﺖَ ﻓَﻈًّﺎ
ﻏَﻠِﻴﻆَ ﺍﻟْﻘَﻠْﺐِ ﻻَﻧﻔَﻀُّﻮﺍْ ﻣِﻦْ ﺣَﻮْﻟِﻚَ ﻓَﺎﻋْﻒُ ﻋَﻨْﻬُﻢْ
ﻭَﺍﺳْﺘَﻐْﻔِﺮْ ﻟَﻬُﻢْ
it is part of the mercy of Allah that thou does deal
gently with them. Were thou severe or harsh-hearted
they would have dispersed from around thee, so
pardon them and ask forgiveness for them… . [53]
There are many other verses and hadith which will
demonstrate the moderation of Shariah. The Prophet
(s) said to his wife ‘Āishā, “Allah loves gentleness in
everything in this life and religion, either in tongue
or in deed.”
This is evidenced in the following aħādīth: “Allah
loves kindness in all matters and, “Kindness makes
things beautiful, violence makes them defective,” as
well as in the following wisdom of our forebears:
“Whoever desires to command the common good, let
him do it gently.”
Public Interest
The subject of public interest (maslaħa ) has been
subject of great interest to those studying Shariah
from the viewpoint of its compability with Western
law. On this topic Kamali says:
Although the leading schools have also recognized
considerations of public interest ( istislah) as a
source of law, they have generally tended to impose
a variety of conditions on it because of its strong
utilitarian leanings. Only the theologian Mālik
advocated it as a source of law in its own right,
which is why the considerations of public interest
are seen as a Maliki contribution to the legal theory
of the sources, the usul al-fiqh . Whereas analogy
operated within the given terms of the existing law,
and juristic preference basically corrected the
rigidities of analogy, public interest was not bound
by such limitations. Furthermore, it vested the ruler
and mujtahid with the initiative to take all necessary
measures, including new legislation, to secure what
he considered to benefit the people.
An example of istislah, or public interest is when
Imām ibn Ħanbal issued a verdict permitting
compelling the owner of a large house to shelter the
homeless.
Imām Aħmad also endorsed requiring striking workers
and craftspeople to continue to provide their
services at a fair wage to avoid hardship on
society. [54]
Muhammad Khalid, remarking on this topic states:
[Islamic jurists] frequently invoked the principles of
necessity, expediency, preventive measures, state of
emergency, and other similar doctrines to reconcile
the contradictions between laws and social norms.
The contradictions continued because these
doctrines were not regularized as “norms” in the
legal theory. Nevertheless, some Muslim jurists tried
to develop legal theories to regularize the quest for
a normative basis of Shariah in the social practice
and usage of the people. [55]
Haim Gerber discusses the similar concept of urf,
most commonly observed in Ħanafī fiqh :
Ibn Abidin’s notion that the law was not wholly built
on revelation, but that some of the material was
collected by the founder mujtahid from the customary
law of his time. He goes on to posit a new legal
category within the law—the books of the school,
which stand below the texts of revelation ( nass,
Qur’ān and Sunnah ), and are even eclipsed by the urf,
laws that derive from local customs. [56]
Extremism
Extremism is described in Islam by two words: ghuluw
– extremism, extravagance, immoderation, and
tatarraf – radicalism.
One of the main forms of extremism in religion is
complete ignorance of the comprehensive nature of
Islam. This is what makes an individual who has
knowledge of parts but not the whole think he has
entered the circle of scholars when the fact is he
knows nothing but bits and pieces that he uses to
deduce a verdict. Such a verdict will invariably be
fraught with error.
In their ignorance of religion and in their pride,
people are lead to hold tight to the literal meanings
of the source texts without trying to understand
the multiple meanings and the intent and purpose
behind the revelation or a relevant action or saying
of the Prophet (s). Today extremists are bringing
back the school that was known as the school of
literality ( al-dhahiri ). That school originally refused
to take into consideration qiyas , analogy, or
reasoning between different rules, or precedence in
law.
A simple example: the Prophet (s) prohibited
individuals from traveling to areas of non-Muslims
or areas of unbelievers carrying the Holy Qur’ān. [57]
If we look today however, we find that the Holy
Qur’ān is on the shelf of the library of any country
in the world, Muslim or not.
In the time of the Prophet (s), the concern was
that the Holy Qur’ān time was written by hand in
fragments of skins and parchment, etc. and there
was fear that the words might be twisted and
meanings altered. Today that problem no longer
exists, as the Qur’ān has been gathered and
formalized, so to travel with the Qur’ān is no longer
an issue.
The extremist on the other hand, will declare that
the letter of the saying must be obeyed, without
taking into consideration the circumstances and
reasons for this ruling.
Another example: the Prophet (s) said, “a woman
must not travel except accompanied by a relative.”
A mufti, examining this issue in detail, finds that in
the past, someone traveling alone, through deserts,
mountains and forests might face great ordeals. In
emphasizing the respect and honor in which women
are held, the Prophet (s) asked that she travel with
a relative.
Today however, traveling from one place to another
is no longer fraught with difficulty. One has
complete security and is accompanied by hundreds of
fellow passengers in the short time it takes to
cover thousands of miles. Therefore there is no
longer fear for a woman traveling alone, for she is
accompanied by all the people on the plane, whom
may be considered as adequate protectors. But the
extreme interpretation of the hadith is that a
woman cannot travel except with a relative, again
emphasizing the literal meaning of the hadith.
If in such minor issues, we see examples of extreme
literalism among the non-moderate Muslims, what
then when it comes to cutting hands and stoning?
These are far more serious issues to consider.
Allah says,
but say not for any false thing that your tongues
may put forth – this is lawful and this is forbidden,
so as to ascribe false things to Allah. For those
who ascribe false things to Allah will never prosper.
[58]
This verse addresses the extremists. Moderate
Muslim scholars are extremely surprised to see those
who migrated overseas to different countries around
the world, seeking study and sustenance, have
carried with them this extreme literalist ideology,
The result has been the creation of a large number
of groups and divisions within the Muslim
community, seemingly showing the entire Muslim
community as radical in their views and violent in
their actions. If the leadership of the immigrant
Muslims had shown moderation in the countries to
which they moved, and integrated with the culture of
the country, they would have greatly changed the
stark image of Islam in the eyes of common people.
Khalid Muhammad states:
Shah Waliullah opens his work [Ħujjatullāh al-bāligha ]
by refuting those who compared Shariah with the
commands of a master intending only to test his
slaves loyalty and sense of obedience. He rejected
this view and argued that Shariah laws were not
merely forthe sake of obedience; they have human
welfare as their goal.[59] Shah distinguished
between religion and laws and elaborated his idea
that religion is based on the principle of unity, while
laws are based on the principles of change and
diversity. [60]
Yūsuf Al-Qaradāwī in Priorities of the Islamic Movement
in the Coming Phase says:
Third, an individual may impose on himself the
hardest conditions if he so wishes, testing his will
to the limit, though moderation is the best and
most appropriate way as the Prophet (s) says,
“Allah likes people to take the [facilitation] licences
He gave them as He hates their committing of sins
[that anger Him],” reported by Aħmad, Ibn Hibban
and Al-Bayhaqi, on the authority of Ibn Umar. It is
also in the Saħīħ al-Jāmi al-Saghīr .
However, a faqih should not impose hard conditions
on Muslims in the matters that concern the wide
majority: he has to take into account that among
them are the weak, the old and those who have
lawful reasons for exception. A hadith says about
leading congregational prayers, “He who acts as
imām [leader] in prayer should make his prayer
short, for among the people [behind the imām] are
the old, the ill and those with errands to run.”
Prayer is a symbol of the various aspects of life
Therefore, the faqihs of the Islamic Movement just
cannot adopt strict opinions that restrict and do
not facilitate, and prohibit but do not allow,
especially with respect to the issues related to
women, family, arts, entertainment and their likes.
It also applies to penal codes, where the least
punishment should be imposed, including the opinion
that the repentance rescinds the ħadd , the opinion
that the punishment for drinking wine is a
discretionary one, and so on.
I would like our motto in this phase to be the
statement of Imām Sufyān Al-Thawrī, “Only the
trustworthy faqihs can give licences, but everybody
knows how to pass a restraining pinion.” [61]
Khalid Muhammad points out that “at the level of
religion, the Sufis, the pietist Muslim mystics, were
the first to point out the contradiction between
legal norms and Islamic ethical values.” He writes:
The Sufis were critical of the jurists’ literal and
legalist approach to religious obligation. They
suggested an emphasis on Shariah, the inner
meanings of Shariah, and personal commitment as
the motive for obedience to laws, instead of
punishment and coercion. They criticized jurists’
reliance on worldly power. Contrary to the jurists,
who lived in the world of text, the Sufis were closer
to the masses and their norms. In most Muslim
societies, Sufis represented a popular and liberal
view of Islam. [62]
Adaptation to Societal Norms
Khalid Muhammad writes:
Muslim jurists in the past were quite aware of the
constant need to reconcile contradictions between
social and legal norms. They continuously adjusted
laws to bring them in line with the customs and
norms of the people. The normative basis of the
institutions and concepts such as family, property,
rights, responsibility, criminality, civil obedience,
social order, religiosity, international relations,
war, peace, and citizenship have changed
significantly over the last two centuries. [63]
Iman Shāfiī, the founder of one of the four schools
of thought, he was living in Bagdhad when he put
forth his school of thought as Imām Abū Ħanīfa and
Imām Mālik before him. Imām Shāfiī came in the 2nd
century of hijri and established his school of
thought in Baghdad 1250 years ago Hijri. When he
moved from Baghdad to Egypt in the last years of
his life, he changed his school of thought. He said,
“I saw people more corrupted in Egypt then from
Baghdad. So what I wrote previously and explained is
insufficient to treat these corrupted people because
I was more lenient. Now I have to be more strict. So
I have to change [my rulings].”
Shah Waliullah expounded the theory of evolution of
society in four stages and found that social norms
played a central role in the evolution of laws. [64]
Ibn Abidin is a well-known Syrian Ħanafī jurist from
the late Ottoman period. He wrote a short treatise
on urf [custom] and its position in Islamic law” (Ibn
Abidin 1884), explaining the validity of urf as a
source of Shariah laws. He distinguished between
two types of texts: Shariah and jurist law (fiqh ). In
case of conflict between a custom or usage and the
Shariah text, Ibn Abidin rejected only those customs
which were absolutely contradictory. In case of
conflict with a jurist law text, the custom prevailed
as a principle.[65]
One can see this principle employed extensively
today. Kamali mentions that “ … jurists have gone on
record in recent years to issue a verdict (fatwā ) to
declare photography permissible in this light. This is
because photography has now become a ubiquitous
practice among Muslims everywhere.” [66]
In another paper, Kamali writes:
Mālik is the chief source of the two important
doctrines of public interest (maslaħa ) and blocking
the means (šad aļ-ļarā’i ), both of which are eminently
rational and rely mainly on personal reasoning. Maliki
jurisprudence also attempted to forge a closer link
with the practicalities of life in Medina and
attached greater weight to social customs than
other jurists did. [67]
Shari‘ah Permits Other Faith
Communities Their Own Law
Shaykh Yūsuf al-Qaradāwī writes:
Dhimma means a pact and guarantee. That is to
say, the non-Muslims who live in Islamic society and
within the Islamic nation, are the responsibility of
Allah, His Messenger, and all Muslims, under their
guarantee and their protection.
Islam established rules regulating the relations
between the Islamic state and non-Muslims … so that
these would be natural relations. They are living in
Islamic society under the general principle
established by the religious legal authorities: ‘What
is [permitted] to them is [permitted] to us and
what is [incumbent] upon them is [incumbent] upon
us.’ This is the basis for relations with non-
Muslims, including the Jews except for that which
requires a religious distinction. If their religion
commands them to have a day of rest on Saturday, I
will not impose upon them to work on Saturday and
rest on Friday. No, I must be considerate. I respect
what their religion dictates.
Our master Umar ibn Abd al-Azīz, whom the religious
legal authorities call the fifth Righteous Caliph,
sent [a letter] to Imām Ħasan al-Bašrī, who was
one of the greatest-known religious figures of his
time, telling him he was shocked to discover that
the Zoroastrians in the land of the Persians, marry
their mothers and sisters. How can we allow this?
[Ħasan al-Bašrī] sent him a letter [of reply] and
said this is permitted by their faith. Don’t try to
change this. Even if they marry their mothers, their
religion allows this.
Respect for the dictations of [other] religions and
faiths is one of the most fundamental things for us.
We don’t get involved in their affairs. Islam is at
the top of the tolerance scale; it allows one to do
what is forbidden to Muslims, if it is permitted [in
one’s owns religion], such as eating pork and
drinking wine. Wine for the Muslims is the worst
evil, it is one of the worst and most severe sins,
yet so long as your religion permits it, we won’t
prevent it [from you]. What is required in this
matter is that this [behavior] not be spread among
the Muslims. [68]
Schact writes:
The jurisdiction of the qāļī extended to Muslims only;
the non-Muslim subject populations retained their
own traditional legal institutions, including the
ecclesiastical and rabbinical tribunals, which in the
last few centuries before the Arab conquest had to
a great extent duplicated the judicial organization
of the Byzantine state. This is the basis of the
factual legal autonomy of the non-Muslims which
was extensive in the Middle Ages, and has survived in
part down to the present generation.[69]
‘Political’ Fatawa
Another cause for extremism in youth their rejection
of ‘official’ muftis whose fatāwā mirror their
government’s policy. Such rubber-stamp scholars
issue a fatwā on order of the ruler, not based on
Islamic reasoning. A nation whose leader is socialist
will produce official scholars who endorse socialism.
This has become so common in recent times, that
such ‘official’ muftis cause rejection by the youth,
and provide a recruitment rationale by which
extremists attract them to their fold.
Letter Versus Spirit of the Law
The intent of Islamic law is not punitive, as much as
corrective and reformative.
Khurram Murad writes:
It is a significant contribution of Islam that these
penalties are called ħudūd (boundaries) and not
punishments: they are liabilities incurred as a result
of crossing the boundary set by Allah… . Another
important function which these punishments serve is
educative, and thus preventive and deterrent. The
Quran alludes to this aspect when it describes them
ﻧَﻜَﺎﻻً ﻣِّﻦَ ﺍﻟﻠّﻪ “as exemplary punishment from Allah
[70] .” [71]
Therefore before applying the death penalty for a
capital offense, the entire case must be
investigated by the judge (qāļī ). In such case the
family pardons the killer, per the Qur’ān’s
recommendation, the court may reduce the penalty
from capital punishment, to prison or exile. The only
other grounds for capital punishment are terrorism
( al-ħirāba, fašād fī ’l-arļ ) highway robbery and rape -
acts which are critical threats to public security.
Laws were revealed to Prophet Muhammad (s) due to
real-life situations requiring a judgment. Today the
same method is followed in issuing fatāwā. Therefore
the ‘reasons for revelation’ (asbāb an-nuzūl ) are
essential to understanding Qur’ānic revealed laws
and the objectives ( maqāsiļ) behind them. For
example, the rules of hijab, the covering of women,
were revealed in a time when the hypocrites were
ridiculing Muslim women in the streets of Madina.
Reduction of Stringency with Time
One finds that in the early days of Islam some Divine
orders were very strict, and were later reduced. For
example, Muslims were not allowed sexual relations
during the month of fasting due to the initially
restrictive rules of the fast. Later revelations to
the Prophet permitted intimacy during night hours
(fasting occurs between sunrise and sunset).
Initially, the early Muslims were ordered to pray for
one third of the night; to build up their spiritual
relationship with God. Later this was reduced.
Similarly, God initially declared that in a defensive
war against an aggressor, unless the ratio of
aggressors to Muslims exceeded 10-to-1 the Muslims
were obliged to fight. This was later reduced to a
ratio of 2-to-1 as the general level of faith
decreased with the influx of new converts to the
faith.
Thus we see the importance of gauging the capacity
of the people to implement any given code of
conduct. Today, it cannot be expected that the law
be enforced as it was a century ago, as the
conditions of life have changed immensely. For that
reason, the Prophet (s) indicated that in the last
days applying the letter of the law would become
very difficult, saying that those who would attempt
to implement religion in its entirety at that time
would be like someone carrying a burning coal.
Another example is the requirement of prayer. The
Prophet (s) was first told to order his nation to
pray fifty times a day. During the Night Journey,
this requirement was reduced to five prayers per
day.
Flexibility in Application of Shari‘ah
All the above is found in the theoretical definition
of an Islamic state. However, in today’s world, such
an implementation is nowhere to be found, while
those few nations who lay claim to an Islamic
system of government are in fact quite far from its
true implementation. These ‘Islamist’ nations tend
to interpret Islamic law with the narrowest view,
rejecting traditional teachings and scholarship. We
find such governments constantly issuing decrees of
stoning to death, amputating hands, lashing, and
other severe punishments for various crimes.
The current overriding problem is ‘Islamic’ states
follow the letter of the law – ‘black letter law’ ‑
without regard to precedents. On the other hand, in
Islam, traditional governments follow precedents
established over many centuries, much as is the
case here in the U.S.
In Islam rules are tempered by application. As a
simple example, who is allowed to make the judgment
to cut the hand of a thief? Let me explain how this
is implemented. First of all, you cannot cut the
hands of someone who steals in order to eat, as we
see today in Argentina. In Islam, the government’s
first duty is to help the impoverished; you simply
cannot cut the hands of people who steal because
they are hungry. If a person is in need of medicine
and steals it, you cannot cut off his hand. The only
time the judgment of cutting the hand applies is
when someone steals out of greed, without need, and
even then numerous criteria must be met to hand
down such a punitive sentence.
Even rules based on the principle of consensus of
scholars, ijma, which in itself is difficult to
accomplish, can be changed. Dr. Wahba al-Zuhayli,
wrote:
Consensus of scholars on a certain issue made
earlier can be abrogated by the consensus made by a
later generation if there were changes in the
conditions which are for the common good of the
people as time progresses. The followers of the
Ħanbalī school and some of the followers of the
Ħanafī school say that one can reformulate or
abrogate a law developed by consensus at one time
by a new law that fits the later circumstances. [72]
Islamically, this concept of reformation or
rejuvenation of the law is necessitated by change in
society over time.
The Islamists differ from the traditionalists in that
the latter call for a reinstitution of fiqh, but not
necessarily an elimination of existing systems of
law.
Islam requires in the case of the thief that the
system attempt to rehabilitate him and seek ways
to encourage him to repent:
ﻓَﻤَﻦ ﺗَﺎﺏَ ﻣِﻦ ﺑَﻌْﺪِ ﻇُﻠْﻤِﻪِ ﻭَﺃَﺻْﻠَﺢَ ﻓَﺈِﻥَّ ﺍﻟﻠّﻪَ ﻳَﺘُﻮﺏُ
ﻋَﻠَﻴْﻪِ ﺇِﻥَّ ﺍﻟﻠّﻪَ ﻏَﻔُﻮﺭٌ ﺭَّﺣِﻴﻢٌ
But if the thief repents after his crime, and amends
his conduct, Allah turneth to him in forgiveness; for
Allah is Oft-forgiving, Most Merciful. [73]
This means he should be given every chance to
reform, such as assisting him to earn a lawful
living. It is the state’s responsibility to ensure
people’s life needs are met, such that there is no
need to steal. Job opportunities should be provided
as a form of social security. Such examples can be
found in Brunei, and in a number of other wealthy
Muslim countries.
Unfortunately, today we see the reverse being
implemented by “Islamic” nations. Someone steals
medicine, food, etc. and is punished, while those who
amass millions of dollars through dummy
corporations, racketeering, money laundering, illicit
drug and weapons sales, are never brought to
justice. This is the sad condition of some Islamic
religious leaders of our time, who follow the letter
of the law in contravention of its spirit.
Followers of Wahhabism, whose teachings many of
today’s Islamic governments follow, have created a
yardstick for Shariah that takes it to the harshest
extremes when applied to common citizens. Those in
power however, typically remain exempt form its
application. This is a purely political implementation
of the Shariah, done for show and thus appears
wantonly cruel; utterly lacking wisdom. This is
utterly contrary to the Objectives of the Law,
Maqasid ash-Shariah. The Law was established to
better the individual’s relationship with his or her
Creator and with fellow humans.
Of this rigidity, Schact writes:
… the Wahhabis in Arabia in the nineteenth and again
in the present century … made it their aim, … to
enforce Islamic law exclusively, to abolish the double
system of administration of justice, and to outlaw
administrative and customary law. [74]
ﻗﺎﻝ ﻋﻠﻴﻪ ﺍﻟﺴﻼﻡ “ ﻭﺍﻳﻢ ﺍﻟﻠﻪ ، ﻟﻮ ﺃﻥ ﻓﺎﻃﻤﺔ ﺑﻨﺖ
ﻣﺤﻤﺪ ﺳﺮﻗﺖ ﻟﻘﻄﻊ ﻣﺤﻤﺪ ﻳﺪﻫﺎ ”
The Prophet (s) is reported saying, “By Allah! Even
if my daughter Fatimah steals, I would cut off her
hand.” [75]
His intent was not to show Islam as stern Islam nor
to demonstrate a specific parenting style, but
rather to demonstrate how abhorrent theft, of any
kind, is in the Eyes of God, including: corruption,
forgery, bribery, deceit, and larceny. Today however,
far from being blind, we see “Shariah Law” abused
to advance one group against another, while those
who manipulate it appear exempt from its impact.
The Case of Adultery
The late Shaykh Abudllah al-Alaili, president of the
Council of Muslim Scholars of Lebanon, and a latter-
day genius in fiqh , writes in Where is the Mistake? :
Let us take another example – that of the
punishment of stoning to death for the commission
of adultery. In accordance with Islamic Law, the
witness must pass his hand or a string between the
man and woman, and find it is blocked. According to
broad interpretation of the law, there must also be
four witnesses, each of whom personally observed
the act in detail “ al-mā’il fī ’l-mukhala” (seeing the
act with the eye), otherwise the accusation is
dropped, and the witnesses are considered
transgressors and defamers. This is what happened
to Abī Bakrah, the honorable companion, when he
accused Al-Mughīrah bin Shuba of adultery; Al-
Mughīrah was release with no punishment, while the
witness was arrested, when he said: “I only saw this
man rising and falling, while on top of the woman,
consecutively and taking turns”. Although Umar ¦
(the second caliph in Islam), was certain that this
pious person was telling the truth, he was forced as
the leader to consider his testimony insufficient,
and thus an act of defamation, so he punished him.
On the other hand, Al-Mugīrah, having satisfied his
urge retained his innocence.
Therefore, who can testify, fulfilling all the technical
conditions and proofs that the crime was
committed? Short of a confession, in practice there
is no possibility of fulfilling the stringent
evidentiary requirements to guarantee a conviction.
Another caveat attached to the required evidence to
prove the crime of adultery is that without
sufficient witnesses, the accuser actually becomes
the accused and will be punished for the very ugly
crime of libel – for which the accuser will be liable.
This demonstrates the essence of Islamic law, with
the intent to raise the highest standard of morality
for human beings, while in reality the law is almost
impossible to legitimately enforce. Therefore, we see
legal and social intent is to prevent an act from
occurring by highlighting its enormity and
emphasizing the threatened punishment, while not
expecting it to be applied.
If it was true, that the penalty for the adultery, of
a free wedded woman, is stoning to death, it would
have been specifically mentioned, because of its
terrible terror; and claiming the abrogation, of the
above verses, by the “ hadith” , is reversing the
criterion for deduction.
Let us say that we accept their claim, then what
will be done with the wedded slave girls, since their
penalty, is half of the penalty of the free wedded
woman? Should we divide it, into two halves, this
claimed stoning? And how should we do so? That is
why the interpreters, were forced to say, regarding
the slave girls, the penalty is half the number of
lashes of the original punishment. Just this
concession on their part, refutes the claim of
stoning, without their being aware of it. [76]
The concept at issue here “waiving the severest
penalties by all available means,” is best
demonstrated by the following incident. A woman
came to the Prophet (s) and confessed her adultery.
However, the Prophet refused to accept the
testimony and turned away from the woman. Time
after time he tried to avoid having to implement the
letter of the law, but the woman herself came back
and insisted. He urged her to rethink the matter –
perhaps she had not committed the act, or she was
not in her full senses.
She returned and again confessed her crime. He
wanted her to hide the act, but again she insisted.
Further, she demanded to be punished. Then she came
and said, “I committed that act and I am now
pregnant.” He instructed her, “Go and deliver the
child, then return to me.” She insisted on the
punishment. So after delivering the child she came
back. The Prophet (s) then bade her nurse the child
for two and a half years. Finally, when all possible
excuses had been exhausted, the Prophet had no
choice but to implement the law.
However, his compassionate heart overwhelmed him
and he told his Companions, “If the forgiveness that
lady had received for her atonement was to be
spread among all of you, it would suffice.”
Thus we see that the message came to correct
behavior, not to punish human beings. There is no
greater symbol for Allah’s dislike of an act than its
expression as a form of punishment. Yet, despite
this, one fails to find a single verse of Qur’ān
ordering the penalty of death by stoning – as if by
its absence, Allah were saying this is a punishment
only for the most extreme cases of flagrant and
wanton sexual activity in public, actions which will
eventually destroy the moral fiber of the community.
How does the warping of this application of law take
place? This is in fact due to the political reality
behind the visage of extremism in every form. In
reality ten percent or less of Muslims are fanatic in
their ideology, not unlike the communists in recent
history. Once they come into power, as in the
Nigerian state of Katsina, they must implement
their beliefs to prove themselves “righteous.”
The first judicial change apparent in an “Islamic”
state is stoning adulteresses and cutting the hands
of thieves, while the spirit of law is abandoned. In
the true Islamic teaching, the absence of the five
daily prayers and fasting are greater issues for the
community than stealing and adultery, as the
abandonment of the daily applications of faith are
more apt to quickly erode the social fabric.
Cutting of hands and stoning adulterers was
legislated to emphasize the wrong of these
particular actions: adultery and stealing. The
purpose is not primarily application of the literal
punishment, but is rather a means to emphasizing
the enormity of these actions and to demonstrate
the inhumanity of stealing as a form of injustice, or
adultery, as a betrayal of one’s spouse.
There are many manifestations in the Shariah that
must not simply apply the letter of the law when
societal issues might induce the crime. Oftentimes
the purpose behind a ħadd ruling is more
metaphorical than literal, preventive more than
punitive.
As we have elucidated, cutting hands for theft is
not the intent of the Shariah. Rather the intent is
to prevent the commission of crime. This does not
differ with the use of the various penalties in the
Western modern law, legislated with the intent of
eliminating criminal activity.
Al-Shāţibī writes:
Throughout Muslim history, those who neglected
acquiring mastery over the science of Al-Maqāsiļ did
so at their own peril, as it made them liable to
error in ijtihād. Included amongst these were the āhl
al-bida (the proponents of pernicious innovations),
who only looked at the apparent text of the Qur’ān
without pondering over its ultimate aims and
objectives. These innovators [an allusion to the
Kharijites] held steadfastly to the literal text of
even the mutashabihah [the intricate, allegorical
segments of the Qur’ān] and premised many
conclusions on them. [77]
Keep in mind that when these laws were revealed to
the Prophet (s), he was an exceptionally just and
merciful leader, as were his successors. For that
reason when the lady came demanding to be punished
for adultery, he made every effort to avoid
implementing the prescribed punishment.
For this reason we say that the Islamic Shariah as
a whole tried to balance all aspects of the
community. Moderate scholars found that most
problems in a community or society which cause
people to violate the law, are found to originate in
societal ailments, stemming from the environment
and circumstances in which people are found. These
make their way of dealing with others wrong,
resulting in criminal pathology making them to act
in a manner harmful to themselves and to society.
Gradual Application of Shari‘ah
Islamic Shariah was not revealed piecemeal to the
Prophet (s). It was implemented over 23 years,
primarily in the last ten, after the establishment of
the first Islamic state in Madina. Most of those who
seek to re-introduce Shariah in their nations, have
forgotten the wisdom for the gradual nature of this
implementation. This was a necessary interval in the
development of Islam, so that the people were not
overwhelmed with new regulations and rules of
conduct, but rather were able to learn it bit-by-bit,
as it was revealed.
A familiar example is the process of revelation which
culminated in the prohibition of liquor. The first
verse revealed concerning liquor said:
ﻳَﺎ ﺃَﻳُّﻬَﺎ ﺍﻟَّﺬِﻳﻦَ ﺁﻣَﻨُﻮﺍْ ﻻَ ﺗَﻘْﺮَﺑُﻮﺍْ ﺍﻟﺼَّﻼَﺓَ ﻭَﺃَﻧﺘُﻢْ
ﺳُﻜَﺎﺭَﻯ ﺣَﺘَّﻰَ ﺗَﻌْﻠَﻤُﻮﺍْ ﻣَﺎ ﺗَﻘُﻮﻟُﻮﻥَ
O ye who believe! Draw not near unto prayer when ye
are drunken, till ye know that which ye utter.[78]
Someone who is drunk neither knows what he is
saying and might say something irreverent or even
do something immoral, while praying. For that
reason the people were not allowed to come prayer
while drunk.
Western governments say, “don’t drink and drive.”
Someone caught doing so is liable under the law,
even if no crime has been committed. Effectively,
drunk-driving becomes a crime. The intent however,
is to prevent someone’s drunkenness causing an
accident. In such a case, the court will even
increase the penalty. Thus we see the graduated
approach also found in the West, with the ‘intent of
the law’ being the key factor behind legislation.
Revelation of the verse of drunkenness impacted the
drinking habits of the Arabs for which they were
renowned. Since prayer while drunk was sanctioned,
observant Muslims were forced to restrict their
drinking to avoid prayer times. Since the five
prayers are spread throughout the day, in practice
this made drinking something that could only be done
at night.
Later it was revealed to the Prophet:
ﻳَﺴْﺄَﻟُﻮﻧَﻚَ ﻋَﻦِ ﺍﻟْﺨَﻤْﺮِ ﻭَﺍﻟْﻤَﻴْﺴِﺮِ ﻗُﻞْ ﻓِﻴﻬِﻤَﺎ ﺇِﺛْﻢٌ ﻛَﺒِﻴﺮٌ
ﻭَﻣَﻨَﺎﻓِﻊُ ﻟِﻠﻨَّﺎﺱِ ﻭَﺇِﺛْﻤُﻬُﻤَﺂ ﺃَﻛْﺒَﺮُ ﻣِﻦ ﻧَّﻔْﻌِﻬِﻤَﺎ
They ask thee concerning wine and gambling. Say: “In
them is great sin, and some profit, for men; but the
sin is greater than the profit.”[79]
This verse, while hinting at the evil of drink, by no
means forbade it. It was only some time later when
the verse of prohibition was revealed and when news
of the revelation spread, the streets of Madina ran
red with the flowing of spilled wine.
Thus we see that in the hard-drinking society of
pagan Arabia, a graduated approach was essential.
It not only provided the ruling from Allah, but the
reasons behind the ruling, which people of intellect
always seek.
Now while drinking is prohibited, to drink in private
was not culpable before the law. For that reason
one can find liquor in private Muslim homes, even in
the holy cities. However when the use of drink is
obvious and outward, then it is culpable. This is
similar to laws for public drunkenness in Western
nations.
On this issue, Yūsuf al-Qaradāwī relates:
There is an example in that respect which is related
concerning Umar ¦ ibn Abd al--Aziz, whom the
Muslim scholars regard as the fifth rightly-guided
caliph and a true follower of his great-grandfather,
Umar ibn Al-Khaţţāb. ¦
Umar ibn Abd al-Azīz’s son, Abd al-Mālik, who was a
firm pious young man, said to his father one day, “O
father! Why you do not implement the rulings firmly
and immediately? By Allah, I would not care if all the
world would furiously oppose us so long as we seek
to establish the right [that Allah Almighty has
enjoined].” These words show how zealous that
young man was to destroy all signs of corruption
and deterioration immediately and without delay
whatever the consequences.
But the wise father said to his son, “Do not deal
with matters hastily, son. Allah Almighty [Himself]
despised drinking alcohol twice in the Qur’ān and did
not declare it forbidden but in the third time. I am
afraid that if I enjoined the right on people at one
stroke, they would give it up all at once, which
might lead to sedition.” [80] .[81]
Extremist Hegemony
The utterly practical aspect of Islamic law is seen
to be built into its framework. This aspect is often
ignored by non-moderate Muslims, who seek to
replace a corrupt society with an ideal one
overnight, ignoring the essential inertia of human
nature and societal conditioning. Thus, they end up
trying to overpower man’s resistance by force. This
leads to brutal misapplication of the Shariah,
particularly in the arena of crime and punishment.
Arjomand writes:
Agitating outside the Constituent Assembly, the
fundamentalists, led by Abul-ala Mawdudi, called for
the creation of an ‘ideological state,’ and turned
not to the constitutional history of the Mughal
empire, or any other Muslim state, but rather to the
juxtaposition of Western constitutional blueprints to
the scriptural sources of Islam. The result was the
declaration of God’s sovereignty in the 1956
constitution of the Islamic Republic of Pakistan,
which the late Fazlur Rahman characterized as a
‘comic’ transfer of political sovereignty to God, the
famous Objectives Resolution of 1949. [82]
The problem today is that extremists are in control
of the Muslim mic. Those who went abroad and
studied extreme doctrine are being used to
perpetuate their ideas and prevent Muslims from
living under a reasonable democratic system. They
say, “don’t talk to us, you don’t know our way.”
They seek to impose a heavy-handed, strict and rigid
application of Shariah on all the people as soon as
they take power, resulting in an “allergic reaction”
by the people to Islam and Islamic law, as conveyed
by their hardline, fascistic approach.
Commenting on this Yūsuf al-Qaradāwī says, “If we
want to establish a real Muslim society, we should
not imagine that such an end can be achieved by a
mere decision issued to that effect by a king or a
president or a council of leaders or a
parliament.” [83]
One wonders how it is acceptable for these same
Islamists to allow non-Muslims to train their
military, while at the same time outwardly
condemning them and considering work with them to
be loyalty of the non-Muslims? They accommodated
themselves to that by adjusting the law based on
precedents in the sources of Shariah.
There is a conspiracy here to prevent the spread of
democracy because it will remove the hegemony of
Islamist oppressors. The mistake is in asking the
wrong people for an opinion. Today the most
oppressive people claim to speak on behalf of
Muslims.
Sohail Hashemi, addressing this problem says:
… many Islamic reformers and reform movements
shifted their strategy to a “top-down” approach …
[conceiving] Islamization as the obligation of the
state. The result has been the proliferation of a
holistic and authoritarian vision of Islamic life and
politics among the most politically active and
assertive Islamic intellectuals and groups. In the
battle for control of the state being conducted by
secular authoritarians on the one hand and religious
authoritarians on the other, the gradual and
educative path of Islamic reform has been
marginalized or repressed altogether. [84]
The result for ideological Islamist regimes has often
resulted in a devolution from their stated goals of
Islamization through unification of the judicial and
executive roles, sometimes resulting in ironically
non-Islamic results. Arjomand states:
It is interesting to note, however, that with the
take-over of the modernized state and its legal
framework by the Islamic militants and the
declaration of the supremacy of the Shariah, the old
dualism of public and sacred law reappeared
immediately. This dualism enabled the clerical jurists
of the Council of Guardians to defend property
rights, which were fully consistent with the Shariah,
against the later encroachments of parliamentary
legislation since the early 1980s. But it also
introduced fundamental contradictions in the Iranian
constitutional law. Furthermore, proclamations
notwithstanding, the Islamic law of unilateral
divorce was not restored. A court order was
required for divorce, and women began to play an
increasing role in the family courts as assistant
judges. In 1998 the first women judges were
appointed, in clear contradiction to the Shariah.
The more general result of this new legal dualism
was a prolonged constitutional crisis that was
partly resolved by Khomeini’s assertion of the
superiority of state law over the Shariah in 1988.
This principle was immediately institutionalized by
the creation of a Council for the Assessment of the
Interest (maslaħa ) of the Islamic Regime, which was
duly recognized as an organ of the state in the
constitutional amendments of 1989.
Various items of legislation previously vetoed by the
Council of Guardians for being contrary to the
Shariah became law, and the Assessment Council
showed little hesitation to legislate beyond disputes
bills. The result has in general been the
strengthening of the authority of the state, but at
least in one remarkable case it was a victory for
women’s rights. By a law enacted in November 1992,
the Assessment Council instituted alimony as
compensation for domestic labor during marriage.
This radical departure from Shiite law was justified
by the argument that domestic labor was distinct
from reproductive duties required by the Shariah.
[85]
The final result of such divergence from “pure” Islam
is too create an autocratic state system which in
fact is nothing less than a dictatorship with
Islamist “flavor.” In such a situation, the enforcers
and the same as the adjudicators, making for the
typical conflict of interest all fascistic systems
embody.
Conclusion
Islam aspires to the highest level of behavior at the
individual, family and community levels. The Prophet
brought different rules in order to accommodate the
culture of each nation and tribe. Allah said:
ﻭَﻟَﻮْ ﺷَﺎﺀ ﺍﻟﻠّﻪُ ﻟَﺠَﻌَﻠَﻜُﻢْ ﺃُﻣَّﺔً ﻭَﺍﺣِﺪَﺓً
If Allah so willed, He could make you all one people…
[86]
Why did He not do so? To allow flexibility in the
rules governing mankind and to generate
competition. That is why the ‘door of ijtihād’ remains
open, allowing new laws to be created as time moves
on.
In the time of Prophet Muhammad (s), Islamic
Shariah was implemented over a span of twenty-
three years. However the extremists have reversed
this approach. They come to newly revived Muslims,
expecting them to adopt every particular of Islam
instantly, while exempting themselves. In reality they
must begin with ‘a’ and proceed to ‘z’, but instead
they go from ‘z’ and work backwards.
It is for the same reasons that judges (quļāt ) are
given the autonomy and authority to administer the
application of Shariah rules and fiqh in a manner
which accords with the place and conventions of the
time. Christopher Houston notes “much Orientalist
commentary on the practice of Islamic law condemns
not the slavish legality of the qāļī (judge) but his
apparent inordinate discretion. Thus Goldziher
criticizes the ‘mental gymnastics of [ulema]
casuistry' for proving ‘detrimental to the
inwardness of religion.’”[87]
In a similar vein Schact writes:
By their decisions, the earliest Islamic qāļīs, did
indeed lay the basic foundations of what was to
become Islamic law. They gave judgment according
to their own discretion or ‘sound opinion’ ( rāyy),
basing themselves on customary practice which in
the nature of things incorporated administrative
regulations, and taking the letter and the spirit of
the Qur’ānic regulations and other recognized
Islamic religious norms into account as much as
they thought fit. [88]
In the early time of Islam, these methods were put
together as the discussions ensued between the
propagators of philosophy (kalām ) and ijtihād . To
reduce that contention four schools were formalized
as those in authority. That was done by consensus
( ijma) of scholars. Whoever references one of these
four schools, is considered to have referenced the
Qur’ān and Sunnah. Each school while agreeing with
the others in the fundaments, differs from the rest
in the branches. This provides enormous flexibility to
the individual seeking a ruling which fits his needs.
Allah says in the Holy Qur’ān:
ﺇِﻥَّ ﺳَﻌْﻴَﻜُﻢْ ﻟَﺸَﺖَّ
Verily the ends ye strive for are diverse[89]
and He informed us:
ﻭَﻟَﻮْ ﺷَﺎﺀ ﺭَﺑُّﻚَ ﻟَﺠَﻌَﻞَ ﺍﻟﻨَّﺎﺱَ ﺃُﻣَّﺔً ﻭَﺍﺣِﺪَﺓً ﻭَﻻَ
ﻳَﺰَﺍﻟُﻮﻥَ ﻣُﺨْﺘَﻠِﻔِﻴﻦَ
And had thy Sustainer so willed, He could surely have
made all mankind one single community: but [He
willed it otherwise, and so] they continue to hold
divergent views. [90]
In acknowledging such diversity as Allah’s own
handiwork in creation, Allah sets the precedent for
divergence of opinion in thinking. Dr. Imara
comments on this saying:
The appearance of different schools of thought is
the fruit of mental and spiritual labor. The result of
this struggle is to create opinions and
interpretations that move with the time and locale
while simultaneously conforming with the intent of
the Divine Revealed Law. [91]
In conclusion we will quote Dr. Ausaf Alī where he
says:
Progress never comes without the pain that is
caused by new ideas, new interpretations, new
constructions, new paradigms, new theories, and new
stocktaking of the situation. Of the tens of
hundreds and thousands who participate in
intellectual discourse, debate, and creative work
only a very few turn out to have been right, and
they too not entirely. But everyone, including even
those who get it all wrong, contributes. What is
crucial is that even those who turn out to be wrong
in retrospect need freedom of speech and
publication. … To demand that everyone say only the
things said before or look at things in accordance
with the established opinions and the decisions of
the organized groups or the government of the day
is to foreclose all possibilities of any conceptual
breakthroughs and thereby the enrichment of the
conceptual resources of the community. [92]
[1] Houston, Christopher, “Islāmīsm, Castoriadia and
Autonomy”, Thesis Eleven, Number 76, February
2004, p. 56.
[2] Roy, Olivier, The Failure of Political Islam, Harvard
University Press, Cambridge, MA, 1994, p. 10.
[3] Sūratu ’l-Anbīyā, 21:107.
[4] Kamali, Muhammad Hashim, “Maqasid al-Shariah:
The Objectives of Islāmīc Law”, Islāmīc Research
Institute, Pakistan, 1999, p. 1.
[5] Schact, J., Cambridge Encyclopedia of Islam , vol.
II, pt. VIII/chpt. 4, pg. 539.
[6] Imām Abū Zahra, History of Islāmīc Schools of
Thought, Cairo, 1997, p. 208.
[7] Mohammad Hashim Kamali, Oxford History of Islam ,
“Law and Society: The Interplay of Revelation and
Reason in the Shariah”, Oxford, 2000.
[8] Mohammad Hashim Kamali, Oxford History of Islam ,
“Law and Society: The Interplay of Revelation and
Reason in the Shariah”, Oxford, 2000.
[9] Muhammad, Khalid M., Muslim Jurist’s Quests for
the Normative Basis of Shariah, ISIM Newsletter,
Leiden, 2001.
[10] Shaykh Abd al-Ħalīm Maħmūd, Shaykh al-Azhar,
At-Tafkīr al-falsafa fī ’l-Islām (Philosophy of Thinking in
Islam), Chapter, “Islāmīc rules: Between originality
and imitation” p. 247.
[11] Kamali, Muhammad Hashim, “Maqasid al-Shariah:
The Objectives of Islāmīc Law”, Islāmīc Research
Institute, Pakistan, 1999, p. 3.
[12] al-Farābī, Al-ārā al-māmūra al-faļila (The
Virtuous City).
[13] Muhammad, Khalid M., “Muslim Jurist’s Quests
for the Normative Basis of Shariah”, ISIM
Newsletter, Leiden, 2001, p. 14.
[14] Houston, Christopher, “Islāmīsm, Castoriadia
and Autonomy”, Thesis Eleven, Number 76, February
2004, p. 56.
[15] Messick, B. The Calligraphic State, University of
California Press, Berkeley, 1996, p 17.
[16] Mallat, Chibli, Islam and Public Law,
“Introduction: On Islam and Democracy”, SOAS/
Institut du Monde Arabe, June 1990.
[17] Arjomand, Saïd Amir, Islam, Political Change and
Globalization, Thesis Eleven, Feb 2004.
[18] Sūratu ’l-Ħashr [The Gathering], 59:7.
[19] Mohammad Hashim Kamali, Oxford History of Islam,
“Law and Society: The Interplay of Revelation and
Reason in the Shariah”, Oxford, 2000.
[20] Muadh ibn Jabal relates that when the Prophet
(s) sent him to Yemen, he asked, “What will you do
if a matter is referred to you for judgment?” Muadh
said, “I will judge according to the God’s Book.”
The Prophet (s) asked, “what if you find no solution
in God’s Book?” Muadh said, “Then I will judge by
the Sunnah of the Prophet.” The Prophet (s) asked,
“And what if you do not find it in the Sunnah of the
Prophet?” Muadh said, “Then I will make Ijtihad to
formulate my own judgment.” The Prophet (s) patted
Muadh's chest and said, “Praise be to Allah who has
guided the messenger of His Prophet to that which
pleases Him and His Prophet.” Narrated by Abū
Dāwūd in his Sunan
[21] Al-Alwani, Taha Jabir, Source Methology in Islāmīc
Jurisprudence , International Institute of Islāmīc
Thought, Herndon,Virginia, 1990.
[22] Known as “hijri ” date, on which the Islāmīc
calendar is based; from the time the Prophet (s)
migrated from Mecca to Madinah.
[23] Sūrah Yūnus [Jonah], 10:59.
[24] Mohammad Hashim Kamali, Oxford History of
Islam , “Law and Society: The Interplay of Revelation
and Reason in the Shariah”, Oxford, 2000.
[25] Schact, J., Cambridge Encyclopedia of Islam, vol.
II, pt. VIII/chpt. 4, pg. 539.
[26] Sūratu ’l-Ħajj [The Pilgrimage], 22:78
[27] Sūratu ‘l-Mā’idah [The Spread Table], 5:6.
[28] Rabbani, Faraz, Shariah: The Clear Path, BBC
Online website URL: http://www.bbc.co.uk/religion/
religions/islam/beliefs/sharia/clearpath_intro.shtml.
[29] Sūratu ’l-Baqarah [The Heifer], 2:143.
[30] Sūratu ’t-Tawbah [Repentance], 9:122.
[31] Sūratu ’l-Furqān [The Criterion], 25:59.
[32] Sūratu ’l-Anbīyā [The Prophets], 21:7.
[33] Sūratu ’l-Baqarah [The Heifer], 2:185.
[34] A fair narration from Ibn Abbās by al-Ţabarānī
in al-Kabīr (12:237).
[35] Bukhārī, Muslim, and several other authentic
collections relate this Ħadīth.
[36] Ibn Taymīyya, Taqī ad-Dīn, Al-Mukhtašar al-
Fatawā, al-mišrīyya (Cairo, 1980) , p. 35.
[37] Dr. Muhammad Imāra, “Muslim Unity: an elusive
goal”, Al-Watan al-Arabī.
[38] Sūratu ’l-Baqarah [The Heifer], 2:178.
[39] Sūratu ‘l-Mā’idah [The Spread Table], 5:32.
[40] Sūratu ‘l-Mā’idah [The Spread Table], 5:34.
[41] Sūratu ‘n-Nūr [The Light], 24:22.
[42] Sūratu ‘l-Mā’idah [The Spread Table], 5:39.
[43] Narrated by Abū Dāwūd, Aħmad, and others.
[44] Tirmidhī narrated it from ‘Āishā without
raising it up to the Prophet. It was also narrated
from Alī by al-Dāraqutnī; Abū Hurayrah by Ibn Mājah
and Abū Yala; Abdullah ibn Amr by Abū Dāwūd and al-
Nasā’ī.
[45] Al-Bukhārī. The same was narrated from Uqba
ibn Amir and Muadh with mawqūf chains and Umar
with a munqati mawqūf chain. Mawqūf means
“Stopped”—a chain arrested at the Companion-
narrator without explicit attribution to the
Prophet. Munqati means “Cut up”—a chain missing
two successive links or missing only the Successor-
link.
[46] Related by Ibn Abī Shayba and in al-Hārithī’s
Musnad Abī Ħanīfa , from Miqsam, from Ibn Abbās,
raised to the Prophet.
[47] Narrated by Aħmad and the Six except Abū
Dāwūd.
[48] Al-Sayyid Yūsuf ibn Hashim al-Rifai, Nasīħa li
ikhwāninā ulama najd, (translated by Dr. Gibril Haddad
as Advice to our Brothers the Scholars of Najd),
Unpublished mss, Sunnah Foundation, 2000.
[49] Imām Aħmad.
[50] Sūratu ‘n-Nahl [The Bee], 16:125.
[51] Sūratu ’l-Ankabūt [The Spider], 29:46.
[52] Sūratu ’l-Ħajj [The Pilgrimage], 22:68,69.
[53] Sūrat Āli-Imrān [The Family of Imrān], 3:159.
[54] Mohammad Hashim Kamali, Oxford History of
Islam , “Law and Society: The Interplay of Revelation
and Reason in the Shariah”, Oxford, 2000.
[55] Muhammad, Khalid M., “Muslim Jurist’s Quests
for the Normative Basis of Shariah”, ISIM
Newsletter, Leiden, 2001, p. 13.
[56] Gerber, Haim. 1999. Islāmīc Law and Culture
1600–1840 . Leiden: Brill.
[57] In Ħadīths related by Imām Mālik, Bukhārī and
Muslim.
[58] Sūratu ’n-Nahl [The Bee], 16:116.
[59] Walīullāh, Shāh. N. d. Ħujjatullāh al-bāligha .
Lahore: Al-Maktabat al-Salafīyya, 1:86.
[60] Muhammad, Khalid M., “Muslim Jurist’s Quests
for the Normative Basis of Shariah”, ISIM
Newsletter, Leiden, 2001, p. 16.
[61] Yūsuf Al-Qaradāwī, Priorities of The Islāmīc
Movement in the Coming Phase.
[62] Muhammad, Khalid M., Muslim Jurist’s Quests
for the Normative Basis of Shariah, ISIM Newsletter,
Leiden, 2001, p. 13.
[63] Muhammad, Khalid M., Muslim Jurist’s Quests
for the Normative Basis of Shariah, ISIM Newsletter,
Leiden, 2001, p. 11.
[64] Cited by Muhammad, Khalid M., Muslim Jurist’s
Quests for the Normative Basis of Shariah, ISIM
Newsletter, Leiden, 2001, p. 16.
[65] Muhammad, Khalid M., Muslim Jurist’s Quests
for the Normative Basis of Shariah, ISIM Newsletter,
Leiden, 2001, p. 17.
[66] Kamali, Mohammed Hashim, Islam , Iconography
and The Taliban , 2001.
[67] Mohammad Hashim Kamali, Oxford History of
Islam , “Law and Society: The Interplay of Revelation
and Reason in the Shariah”, Oxford, 2000.
[68] Shaykh Yūsuf al-Qaradāwī, Interview on Al-
Jazeera: “Our Problem is Not With Judaism”.
[69] Schact, J., Cambridge Encyclopedia of Islam, vol.
II, pt. VIII/chpt. 4, pg. 541.
[70] Sūratu ‘l-Mā’idah [The Spread Table], 5:38.
[71] Murad, Khurram, Shariah: The Way of Justice,
[72] Dr. Wahba al-Zuhaylī, Professor of
Jurisprudence, Foundations of Jurisprudence, Damascus,
Syria, p. 975.
[73] Sūratu ‘l-Mā’idah [The Spread Table], 5:39.
[74] Schact, J., Cambridge Encyclopedia of Islam, vol.
II, pt. VIII/chpt. 4, pg. 539.
[75] Bukhārī.
[76] Shaykh Abdullāh al-Alailī, Where is the Error?,
Beirut.
[77] Al-Shāţibī, Muwafaqāt ,vol. 4, 179.
[78] Sūratu ’n-Nisā [Women], 4:43.
[79] Sūratu ’l-Baqarah [The Heifer], 2:219.
[80] Cf. Ash-Shātibī’s Al-Muwafaqāt , vol. 2, p. 94
[81] Shaykh Yūsuf al-Qaradāwī, Gradualism in Applying
the Shariah, website islamonline.net, URL: http://
www.islamonline.net/fatwaapplication/english/
display.asp?hFatwaID=104048
[82] Arjomand, Saïd Amir, “Islam, Political Change
and Globalization”, Thesis Eleven, Number 76,
February 2004, p. 17.
[83] Shaykh Yūsuf al-Qaradāwī, Gradualism in Applying
the Shariah, website islamonline.net, URL: http://
www.islamonline.net/fatwaapplication/english/
display.asp?hFatwaID=104048
[84] Hashmi, Sohail H., Cultivating a Liberal Islāmīc
Ethos, Building an Islāmīc Civil Society, Mount Holyoke
College, 2004, p. 6.
[85] Arjomand, Saïd Amir, “Islam, Political Change
and Globalization”, Thesis Eleven, Number 76,
February 2004, p. 21.
[86] Sūratu ‘n-Nahl [The Bee], 16:93.
[87] Houston, Cristopher, “Islāmīsm, Castoriadia and
Autonomy”, Thesis Eleven, Number 76, February
2004, p. 57.
[88] Schact, J., Cambridge Encyclopedia of Islam, vol.
II, pt. VIII/chpt. 4, pg. 544.
[89] Suratu ’l-Layl [Night], 92:4
[90] Sūrah Hūd, 11:118.
[91] Dr. Muhammad Imara, “Muslim Unity: an elusive
goal”, Al-Watan al-Arabī.
[92] Ausaf Alī, Ph.D., “The Politics of Boycotts in
the Muslim Community”, The Muslim Magazine, Vol.
10.

From: Islamic supreme council of America

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