By IMAM FEISAL ABDUL RAUF
Excerpted from- WISE Up- Knowledge ends Extremism 2017
INTRODUCTION
Shari’ah or “Shari’ah law” as it is commonly referred to in the West, is often misunderstood as a strictly “legal” code that stands in direct opposition to U.S. laws, and is incompatible with human rights and American values. Many point to extreme punishment—such as stoning and cutting off hands—that are enforced in a few countries, as well as specific violent practices directed against Muslim women—such as “honor killings” and female genital mutilation—as evidence of the violence and gender bias inherent in Islam, and thus call for Shari’ah to be outlawed and Islam rebuffed.
Yet the vast majority of Muslims understand Shari’ah as a broad set of values that helps them distinguish between “ethical or unethical behavior, legitimate or illegitimate governance, appropriate civil and criminal punishments, and protection of human rights.”1Nevertheless, violent extremists and many who misunderstand Islam remain misguided about what Shari’ah is.
To answer these questions we must first understand what Shari’ah is (and what it is not), which includes debunking the notion of Shari’ah as a set of “laws” that take precedence over the U.S. legal system; and second, explain the ways that American Muslims understand Shari’ah as a part of their religious practice and thus part of their right to religious freedom guaranteed to all under the First Amendment of the Constitution.
DEFINITION AND SOURCES OF SHARI’AH
Although the word Shari’ah is often used interchangeably with “Islamic law,” the two are not strictly synonymous. The literal meaning of the word Shari’ah in Arabic is “the way to the watering hole,” and it is derived from the Arabic word shar, meaning “ordinances.” Muslims generally understand these ordinances as “God’s commandments” or “God’s legislation,”2 which explains why many misleadingly equate the term with “Islamic law.” In fact, however, Shari’ah refers to 1) the commandments of God in the Qur’an: the 150 to 500 Qur’anic verses; and 2) the commandments of the Prophet Muhammad: the 1,200 to 1,500 Hadith (oral reports on behaviors and actions of the Prophet and his companions), all of which prescribe and prohibit behavior.
The other equally important aspect of “Islamic law” is fiqh (literally, “understanding”), which refers to the human endeavor to interpret God’s injunctions as outlined in the Qur’an and the Hadith. Indeed, a distinction must be made between God’s laws (shari’ah), and the body of laws derived from these divine ordinances (fiqh al-shari’ah), the latter of which can more properly be called “Islamic law,” and which might be compared to the Jewish halacha.
THE DEVELOPMENT OF ISLAMIC LAW
In a manner similar to the development of U.S. laws, all of which must follow the U.S. Constitution, fiqh al-shari’ah were developed from the sources of shari’ah, that is, the Qur’an and Hadith, in response to changing circumstances, dilemmas, and challenges. Islamic legal scholars derived these rulings from these sources by developing and utilizing various methods of reasoning (ijtihad)—including consensus (‘Ijma) and legal analogy (Qiyas)—and legal doctrines, such as juristic preference (Istihsan), public interest (Istislah or Maslahah), reason and logic (Istidlal and Istishab), and social custom (‘Urf).
Islamic legal scholars have broadly classified fiqh al-shari’ah into two categories: those pertaining to matters of worship and belief (‘ibadat), and those regulating worldly affairs (mu’amalat), such as laws dealing with civil obligations or transactions, including commercial, criminal and administrative law, and family law.4 Importantly, Islamic law pertaining to worldly affairs is constantly evolving and striving to meet the challenges of the modern world while adhering to a set of principles for the betterment of human life.
Indeed, the vast majority of Muslims understand Shari’ah as those injunctions from God that shape their behavior and encompass “religious” rituals and practices (such as marriage and divorce ceremonies, prayers, charitable giving, and food rules). Legislative efforts to “ban” or outlaw Shari’ah, some of which have been enacted in scattered jurisdictions throughout the U.S., are based on a distorted understanding of what Shari’ah is, and actually infringe upon the religious liberties of patriotic American Muslims. Similar to the manner in which Jews understand halacha as prescribing and defining their ethics and behavior, Muslims see Shari’ah as part and parcel of their freedom to worship as they are accustomed.
THE OBJECTIVES OF ISLAMIC LAW
We can equate the development of Islamic law and its variances across cultures to the ways in which individual states within the U.S. understand their right to implement the death penalty for certain crimes.5 To answer the question about whether each state’s implementation of the death penalty violates the constitution, many scholars will point to the Fifth Amendment, the Eighth Amendment, and the Fourteenth Amendment to argue for or against the death penalty. Further, the question of what the framers of the U.S. constitution intended plays an important role in those arguments.
Similarly, Islamic legal scholars have argued for centuries over the objectives and intentions of God as contained in the Qur’an.6 Muslim scholars unanimously agree that the objective of Islamic law is to help realize the best interests of human beings in this life and the next. From the Qur’an and Hadith, and utilizing the aforementioned legal methods of reasoning and doctrine, scholars have derived six fundamental objectives of Shari’ah, or maqasid al-shari’ah. These six rights, which are universally acknowledged by all Islamic scholars, and which any Islamic law must protect and promote, are as follows:
1. Right to life: includes rights to food, shelter, clothing, healthcare, and personal security and safety
2. Right to religion: includes the free exercise of the religion of one’s choice and the prohibition of religious discrimination
3. Right to mind: includes the rights to education, to pursue one’s talents and psychological well-being, and protection from actions that erode mental capacity and judgment
4. Right of property: includes the rights to be free of theft, to own property, and freely pursue wealth and economic security
5. Right to family: includes the rights to marriage, children, and family life
6. Right to dignity: includes the right to be free of oppression and discrimination, to live in a well-governed society, and not to be enslaved, treated poorly, or cruelly or unusually punished.
Though many Americans would understand these fundamental rights as similar to and in line with those guaranteed to us as Americans and enshrined in the U.S. Constitution, controversy arises when we hear of certain cruel and barbaric practices such as “honor killings,” which are perpetuated and justified in the name of Shari’ah. Such tragic cases not only violate Shari’ah, but also perpetuate false notions about what Shari’ah is, leading to general distrust of Muslims and what they believe, and causing many to incorrectly assume that Shari’ah and the U.S. Constitution are fundamentally incompatible.
Barbaric practices such as “honor killings,” though sometimes carried out extralegally in a few developing countries (and, tragically, here in the U.S.), are absolutely un-Islamic, and patently violate the right tolife as specified in the maqasid al-shari’ah and the U.S. Constitution. Furthermore, Shar’iah does not allow individuals to take the law into their own hands.
Daesh’s enforcement of barbaric punishments, such as intolerance towards religious minorities, and enslavement of non-Muslim women (to name only a few) violate all of the maqasid al-shari’ah, which guarantee the right to life, religion, mind, property, family, and dignity to all.
While much more needs to be done to stop these barbaric acts that take place because of distorted understandings of Shari’ah—both at home and abroad—we must never let our fear of such distorted understandings make us lose sight of the values that make America a free and fair place for all. We must continue to work to separate these distorted interpretations from the true aspects of Shari’ah that encompass Muslims’ right to freely practice their religion as guaranteed to us all in the U.S. Constitution.
