What is Shariah Law?

 Islamic Shariah Law:  Principles and Objectives

Islam is based on three qawaaid, or principles;  Freedom, Equal Dignity, and Justice.  These three qawaaid underlie the Maqaasid al Shariah - the Overreaching Objectives of the Shariah. 

Many people are confused about the term Shariah.  They have been scared into believing it to be the imposition of cruel punishments on innocent people.  It is often equated with injustice and violations of human rights.  Nothing could be further from the truth. Shariah is Divine Law, legislated by the Divine Legislator, who knows us better than we know ourselves.  He, alone, knows what is best for us in reality, and He is All-Merciful.  With Him is no injustice or cruel inhumanity.  

Man-made law, on the other hand, has changed drastically over time and is subject to the whims and fancies of the times.  Just a few years ago, in the 1970's, a woman could not contract because she was still considered property of either her father or husband.  Now, women have a great many rights, although they still do not have the right to equal pay to which they are entitled under Shariah Law.

What many rightfully complain about when it comes to Shariah Law, is the incorrect or even corrupt interpretation and enforcement of this Divine Law.  Shariah is contained in the Qur'an and the authentic Sunnah of the Prophet (more on this later if Allah SWT gives us life).  But it is frail humans who must do the interpreting and enforcing.  The interpretation or extraction of the law from the sources of Qur'an and Sunnah is called "fiqh," or "understanding."  This understanding can be flawed, as can all human endeavor.  

Imam Khassaf, in his book, Adab al Qadi, warns those who would assume to interpret the law that to do so when not qualified will land one in hell.  Yet, to have the ability and refuse to serve the community in this capacity, will also land one in hell.  It is a sirat - a tightrope, but the Qadi and Faqih must walk a fine line, using all his abilities diligently.  Only then, according the famous hadith, will Allah reward him ever if he errs.

The mantle of the Prophet is not worn lightly.  My sheikh nearly collapses under its weight each time he is asked to give a fatwa.  Yet we have youth, who have read a book or listened to a tape, and then consider themselves faqih and qadi.  How foolish they are, and how arrogant.  True knowledge only brings humility and submission to Our Lord.

So here is a brief summary of the difference between Shariah and Fiqh:

Shari’ah:  The Law

–The Divine Legislation from the Divine Legislator

–Shari’ah: literally means “a path to water” and refers to God’s legislative intent. It is by its nature perfect and an ideal to be sought after through diligence and exhaustive inquiry.

Fiqh: The Code

–The rules derived from the sources of law

–Fiqh: Literally means “understanding” and refers to the human approximation and understanding of divine legislative intent. It is by its nature imperfect and subject to dissenting opinions 

This distinction relates fundamentally to the very nature of Islamic law – The Shariah is Divine, the Fiqh is Derived by Man.  

 

There is no doubt that there are those who do not properly derive the law from the sources, who incorrectly and corruptly derive Fiqh.  They use their own whims and fancies, or traditions and cultural practices; things that have nothing to do with Islam.  On the other hand, those who properly exercise Ijtihad or Due Diligence, use the qawaaid of freedom, equal dignity, and justice and the Maqaasid Al Shariah of protection of Deen, Life, Property or Mal, Dignity and Lineage, and Reason or Aql, as the guides to correct interpretation of the Qur'an and Sunnah.

When we use the tools of reason/aql, logic/mantiq, qiyas/analogy, and rational principles such as maslaha and istihsan, then we are capable of creating a just system, a just wilayyat, a Wilayyat al Ummah with an independent judiciary ensuring justice and the watchful eyes of the shuhadaa to ensure that no oppression or injustice creeps in to the system and all are treated with equal dignity.