In conversations about the role of religion in international relations, comparative politics, and international human rights, the topic of Islam is one frequently raised. Many have wondered about the religion, the relationship Islam has to human rights, women’s rights, and also what is Sharia (Shariah), or Islamic Law. In this article, we are going to go into the topic of Sharia. We will answer the question: What is Sharia?, breaking down the complexities that is Islamic law. We will also challenge misconceptions about Sharia, and also discuss the various interpretations of Islamic law.
What is Sharia?
One of the most often raised questions with regards to the topic if Islam, and in particular, as it pertains to world affairs today, is a question regarding Islamic law. What is Sharia? or “What is Islamic Law” is one asked by individuals through the United States, the “West,” and the world as a whole.
Not only is this question frequently posed, but many people–individuals without any significant time studying Islam, often believe that they have a nuanced understanding of what Sharia is. Defining and understanding the differences within Islamic law is important since policymakers are spending ample amount of time in attempts to implement policies as a reactionary measure to what they believe is an encroachment of Sharia or Islamic law.
For example, in the summer of 2016, United States former Speaker of the House Newt Gingrich Republican called for a deportation of all Muslims in America who believe in Islamic law or Sharia (Graham, 2016). In this call, he framed Sharia as incompatible with the West, saying: ““Let me be as blunt and direct as I can be. Western civilization is in a war. We should frankly test every person here who is of a Muslim background, and if they believe in sharia, they should be deported,” Gingrich said on Fox News. “Sharia is incompatible with Western civilization. Modern Muslims who have given up Sharia—glad to have them as citizens. Perfectly happy to have them next door.”” So, for him, this idea of Sharia is something quite contrary to the values of laid out in the United States and other “Western states.” So, Gingrich is suggesting a religious test, something that is clearly against the United States constitution (namely, the First Amendment and the right to freedom of religion) (Graham, 2016).
Yet, this is not the only time Gingrich spoke against Sharia. In 2010, He said: ““Stealth jihadis use political, cultural, societal, religious, intellectual tools; violent jihadis use violence. . . . They’re both seeking to impose the same end state, which is to replace Western civilization with a radical imposition of sharia” (Quraishi-Landes, 2016). Nor is he far from the only person to criticize Sharia. In fact, there is a long line of people, which includes individuals who have made a number of Islamophobic statements, fighting to ensure that Sharia is not present in the United States. These sorts of movements not only misunderstand the complexity an entire religious tradition, but they also alienate millions of law-abiding citizens in the United States and elsewhere.
Therefore, we must understand what Sharia is, and then further analyze just how complex Islamic legal history is, and the various elements of Islamic law, which will then allow us to further understand how problematic these blanked calls to “ban Sharia” are.
So, this goes back to the question: What is Sharia? Sharia is translated as Islamic Law. It is a set of legal prescriptions within the Islamic faith dealing with matters of everyday life. Sharia (Islamic Law) focuses on many aspects of life: from the belief in God, how to live, which included how and when to pray, how much money to give in one’s charity, how to treat other individuals, orphans, the marginalized in society, as well as a branch of criminal law.
Sharia itself differs slightly from another related term, fiqh. Whereas Sharia is a much more general application of the way a Muslim should live, “the term fiqh came to be more narrowly applied. People read the Qur’anic commands and prohibitions and attempted to understand what the Qur’an required of them in terms of what they had to do, mentally or physically, and what they had to avoid…With the passage of time, such interpretive activities brought about a positive body of knowledge which included legal, theological and ascetic material. Ass of these shari’a disciplines were referred to as fiqh in the early period of Islam…fiqh came to be applied only to the body of legal knowledge” (44). So, whereas Sharia was the entirely of what one could see in the Quran and the life of Muhammad, “Fiqh referred to specific rulings obtained through the understanding and interpretation of the shari’a material using other sources…” (44).
This is an important point. When talking about Sharia, as An’Naim (2011) notes: “The founding jurists of Islamic jurisprudence did not distinguish between the religious, ethical, and legal aspects of their work. In fact, the term “law” itself, qanun in Arabic, was unknown to them. Rather, they preferred to speak of Shar’ia, the path or way of life for the community of believers, the Umma (or nation) of Islam. To Muslims, Shari’a is the “Whole duty of Mankind”; it is moral and pastoral theology and ethics, high spiritual aspiration, and detailed ritualistic and formal observance. As such, Shari’a is the general source of ethical and religious norms as well as specified legal principles and rules for Muslims” (43).
Thus, as we see from this alone, it is problematic and dangerous to suggest that sharia is merely criminal law, or that it is fundamentally opposed to Western law. For most Muslims, sharia is the rules and prescriptions for how they believe they should go about their everyday life. This includes when they should pray, how they should pray, how they should help those in need, how they should treat their neighbor, etc…
What goes into Sharia?
There are a four primary sources that are used when trying to build and interpret Islamic law. They are:
The Quran: For Muslims, the Quran is the holy book of messages that Muhammad received from God. Throughout the Quran, there are various prescriptions on things such as marriage, inheritance, the treatment of infants, orphans, prayer, etc… The Qur’an is usually given the greatest weight because of the aspect of divinity that Muslims believe these messages hold. As scholars note, there is a great deal of difference and even difficulty (Ernst, 2011) in agreeing to one interpretation or understanding of the Quran.
Sunnah of Muhammad: A second source of Sharia is the sunnah (the life and sayings of Muhammad, which are collected in the Hadith). The early Muslim community went to great lengths to record the actions and sayings of Muhammad. There is a large body of writings on what Muhammad said and did, sayings outside of the Quran. While some may think that these sayings are clear and without debate, there continue to be questions about which of the sayings can be verified as actually having came from Muhammad, and which of them were added in by others years after his death (Cleveland & Bunton, 2013: 26).
As An-Na’im (2011) notes, while many want to place the primary importance of the Quran and life of Muhammad as the basis of Sharia, “in fact Shari’a represents the interoperation and elaboration of these two sources and their supplementation through other sources by the founding Muslim jurists of the eight and ninth centuries…As a religious text, the Qur’an was more concerned with establishing monotheism and setting the fundamental principles of individual and collective behavior rather than laying down specific legal rules” (43) (we shall discuss the development of the different Islamic schools of thought that arose from these initial thoughts of jurists in the early centuries following the death of Muhammad).
Qiyas (Analogy): The third source used for Sharia is qiyas or analogy. If there does not exist a direct Qur’anic or trusted Hadith reference for ruling on a particular legal issue, Islamic jurists “assed it on the basis of principles previously accepted for a similar situation” (26). So, say for instance that one type of drink is prohibited in Islam. Well, if another type of drink, developed centuries later, is causing the same effects (such as something like alcohol, for example), scholars could use qiyas to draw comparisons, even if that new drink is not referenced during the time of Muhammad. This allows scholars to use historical rulings as points of comparison for issues facing the Muslim communities today.
Ijma (Consensus): A last source used in the establishment and interpretation of Sharia (Islamic law) is ijma, or consensus of the community of scholars. This idea of consensus is one in which various Islamic scholars will interpret Islamic legal history on an issue. And if there is a consensus on how all of them understood and ruled on an issue, then this would be a part of the sharia (Cleveland & Bunton, 2013: 26). As we shall see, some have argued that consensus can be difficult to establish, at least for the vast majority of issues, given the multiple interpretations and Islamic schools of thought that exist.
This becomes even more important to note when we also examine the importance of personal interpretation or ijtihad in Islam. Islam has a history of people using their own personal interoperation in understanding their faith tradition. While some traditions may frown upon this, historically, there is strong precedent for using ijtihad or personal interpretations when thinking about issues in the Islamic faith. Therefore, this makes a unified understanding of Sharia even more unlikely.
However, in the early centuries following the death of Muhammad, ijtihad lost importance to scholars “as the founding jurists developed general principles and specific rules based on the Qur’an, Sunna, and other sources and techniques between the eight and ninth centuries. Moreover, due to their religious concern with the authority of Shari’a as the divinely sanctioned way of life for the believers, Muslim jurists insisted on extremely high qualifications for the person who may be authorized to exercise ijtihad” (44). (There has been a move back to argue for a new importance on ijtihad as a way to interpret Islam and sharia).
Who is an Islamic Jurist?
Similar to who is a judge and lawyer in the United States, Islamic lawyers, scholars, and jurists often have years of specific Islamic-based training on matters of the faith, and in particular, sharia. However, since there is no heir achy of religious clerics in Islam, the task of interpreting the Islamic faith is left up to legal scholars, who are often the ulema, or the religious scholars of the Islamic tradition. These categories often overlapped, with “the scholars who compiled the shari’ah, the judges who applied it in the Islamic courts, and the legal experts who advised the judges were considered part of the ulama establishment; and since the most important form of knowledge was knowledge of religion, the teachers in the mosque schools and universities, too, were members of the ulama, as were the mosque preachers and the prayer leaders” (Cleveland & Bunton, 2013: 27). But again, today, it does not necessarily have to be as such.
Multiple Interpretations of Sharia?
Just like there is no one way to interpret the Constitution, or United States law more broadly, the same goes for Sharia. As Cleveland & Bunton (2013) write: “The shari’ah is not a single code of law” (25).
Despite what some might have us think, Sharia is a very complicated legal system, that has multiple interpretations, and schools of thought that interpret what they believe “Islam says.”
Islamic Schools of Thought
There are a number of different Islamic schools of thought, each with their own detailed legal history and understanding of the Islamic tradition, and sharia (Islamic law). Many of these schools of thought developed in the early centuries following the death of Muhammad, and then were expanded upon in later centuries.
Hanafi School: As Saaed (2006) notes, “This school arose from the teachings of Abu Hanifa (d. 150/767), who lived in Kufa in Iraq. Since the school originated in Iraq, the Abbasid caliphs, who were based in Iraq, gave it their support. However, this support declined over time and the school had to wait until the emergence of the Ottoman Empire to become influential again. This school, particularly in the early stages, was associated with an emphasis on reason (much more than other schools of law). Today, Hanafi law is the dominant form of Islamic law in the Indian subcontinent, Central Asia and Turkey” (50-51). The Hanafi school is viewed as interpreting Sharia with much more emphasis on interpretation, and less direct rigidity, and other schools (as we shall see shortly).
Maliki School: The Maliki School of Islamic thought came out of Malik Ibn Anas of Medina (d. 179/795) who was viewed as a traditionalist. Malik Ibn Anas seemed to prefer going directly to the text over the ability of allowing reason, and also gave significant weight to what the early community of Muslims in Medina lives like (Saeed, 2006). The Maliki school of Islamic thought tends to have more influence in the areas of Northern and Western Africa.
Shafi’i School: A third school of Islamic thought is the Shafi’i school, which came from the teachings of Muhammad ibn Idris al-Shafi’i (d. 204/820). al-Shafi’i traveled broadly, and studied in both Mecca and Medina. With regards to Shafi’i’s position on interpreting Islam, he placed a great deal of emphasis on the Quran and the Sunnah for interpreting Sharia. Right now, this particular Islamic school of thought and law is mostly popular in Southeast Asia (Saeed, 2006).
Hanbali School: The fourth school of Islamic thought is the Hanbali school, which arose from Ahmad ibn Hanbal (d. 240/855). Hanbali studied under Shafi’i, and was also viewed as a traditionalist who placed significant stress on the importance of the texts: the Quran and the Hadith are of central importance to the Hanbali school of law. In fact, when speaking about Sharia, the Hanbali scholars and jurists not only stressed the early texts of the Quran and Hadith, but they also “relegated analogy (qiyas) and consensus (ijma’) to an insignificant role. For them, the view of Companions (of Muhammad) on religious matters have a much more important position than in other schools of thought. The Hanbalis are often characterized as literalistic and somewhat intolerant of those who hold different opinions than theirs…” (Saeed, 2006: 51). The Hanbali school of law is popular in areas such as Saudi Arabia, Yeman, parts of Afghanistan, etc…
Along with these four Islamic schools of law are additional schools of thought which include the Shia school of thought, and Sufism.
Shia (Ja’fari School): The Shia tradition has established its own way of approaching and understanding Sharia (Islamic law). There are similarities and differences with the different Sunni Islamic schools of thought mentioned above. Both traditions rely on the Quran and the Hadiths, as well as on qiyas and ijma. However, “according to the Shi’a, hadith must be narrated and transmitted by those whom the Shi’a consider reliable. This often means the family of the Prophet or someone recognized as sympathetic to the Shi’i tradition” (Saeed, 2006: 52).
The early Muslim community saw political divisions, particularly following the death of Muhammad. For the Shia today, they believed that Ali (Muhammad’s cousin and son-in-law) should have been the caliph (ruler of the Muslim community), whereas others believed it should be Abu Bakr (Muhammad’s close friend, but who was not blood-related). Thus, in the Ja’fari school, the stress on Shia-based sources continues to be very important in their interpretations of Sharia.
Sufism: Sufism is understood as the “mystical” component of Islam. Sufi interpretations of the Quran, and sharia in general tend to focus on many mystical meanings. Their attention to the faith centers on building a relationship towards and with God in the here and now, and the way to do this is often through the importance of love. Sufi interpretations of sharia tend to stress this relationship between God and humans, and the importance of taw hid or unity of being or unity of all reality and existence as God and God alone.
Criminal Law and Sharia
When people talk about Sharia or Islamic law in the West, the attention tends to center on criminal law, and the forms of punishment within Sharia. While there was not a distinction between Sharia and criminal law in early Islam (An-Naim, 1990; 2011), this developed later over the centuries in Islamic history. In Islamic criminal law, there are three main types of criminal offenses: Hudud, Jinayat, and ta’zir. Hudud laws have sometimes been referred to as the laws that there is no disagreement on the punishment, the jinayat laws are those focused on homocide, as well as crimes where a person is injured, “and are punished by either visas (exact retribution) or payment of diya (monetary compensation) to the victim or his or her surviving kin” (105). Then, the final category of criminal law is ta’zir, which focused on discretionary rulings based on the person or persons in power (An-Naim, 1990).
Yet, despite these categories of criminal law in Islam, what we find is a lack of support for a unified application of punishments in Islamic history. And even if we do have evidence of rulings and punishments, “one can safely assume that much administrative discretion was exercised in the administration of criminal justice at the various stages of Muslim history” (An-Naim, 1990: 105).
Application of Punishments: Hadud, Jinayat and Ta’zir Laws:
When people often think of Sharia and criminal punishments in Islam, it is the Hudud laws and punishments that usually tend to come to mind. Yet, while the Muslims carrying out these punishments stress the importance of doing so, as scholars argued, “there are several serious problems with the identification and definition of these offenses” (An-Naim, 1990: 107). Again, the more orthodox view of the hadud laws has been that there is a clear and indisputable punishment levied for a person (or persons) who commits a crime under this category of laws, a punishment that (as traditionally has been argued) cannot be veered from.
Peiffer (2005) explains that the hadud crimes are “crimes that threaten Islam. The harsh punishments required for hadud crimes are intended to deter those who might commit crimes that are dangerous to an Islamic society” (509). Traditionally, the crimes that are clearly under Hadud (and are derived from the Quran and Sunnah of Muhammad) are: “sariqa (theft), haraba (rebellion or highway robbery), zina (fornication), qadhf (unproven accusation of fornication), sukr (intoxication), and ridda (apostasy from Islam” (An-Naim, 1990: 108). And even for these, there is only Quranic punishment for four of the categories (there does not exist specific punishments for intoxication or for apostasy within the Quran or sunnah) (and Muhammad himself offered different punishments on the case of being intoxicated) (An-Naim, 1990).
The issue of being able to clearly and without debate interpret Hadd laws is rather impossible. Even the early jurists had to approach these laws from their own traditions and interpretations, it is difficult to say that there is no room for current re-interpretations on the matter of punishment for crimes.
When one looks at the Sharia for Hadud crimes, it becomes more evident that there is no one interpretation of what classifies as a hadud crime. Take the case of rebellion. While the Quran calls for execution, crucifixion or amputation for committing rebellion or highway robbery, there are questions about what crime leads to what punishment. In this case, is the crime the violence associated with the action, or the political nature of the crime? This interpretation of what the person is guilty of goes a long way in trying to establish punishment (An-Naim, 1990).
In addition, An-Naim (1990) argues that Sharia–and the hadud laws (along with others), should have no bearing on non-Muslims, since the punishments are meant to be for what is best for the Muslims living within a community, under a common set of laws.
Again, there is a lot of debate on what exactly is the crime being committed that is being punished. Even if it falls under what seems to be a clear category, that might not actually be the case. Thus, because of this, scholars argue that the way punishments should be given “must seek the most restrictive definitions and strictest general conditions for the application of hudud” (An-Naim, 1990), where in other places, scholars argue that these punishments could be time-specific to the conditions of Arabia at that time, and that the message of monotheism, found in the earlier Meccan verses of the Quran, are what are the more universal messages of the faith (Taha, 1987).
The same could be argued for jinayat laws. Here, many of the punishments were punishments seen as custom in the context of seventh-century Arabia. However, with new interpretations of the Qur’an, and in a new modern context, there are questions about whether historical applications of punishments are fitting for today. For example, if women who were killed were valued as less than a man, this should not be the same standard today where it is imperative that all life is viewed as equal. The same can be said for religious minorities. Furthermore, it is not clear whether jinayat laws would fall under criminal or under civil (An-Naim, 1990) (given the ability to allow monetary compensation as a form of punishment).
For ta’zir laws, given the buildup of a rich history of the rule of law, and the ability of society and legal institutions to deal with criminal law and punishment, scholars have questioned whether it is even necessary to allow rulers the ability to interpret sharia and punishments within criminal law; some, such as An-Na’im (1990), argue that this is not appropriate, and that the community should be the ones to decide on matters of of punishment, and not the political and judicial elite.
Sharia and the Death Penalty:
One of the cases that we shall look at with regards to Sharia and Criminal law is the topic of the death penalty. While Islam receives a lot of attention about the issue of capital punishment (and the death penalty as one form of punishment), most Muslim majority states do not have the death penalty as a form of punishment, and there are differences on the frequency of use among Muslim states that do have the death penalty as a form of punishment (Schabas, 2000). Plus, there is ample evidence of flexibility on what might be thought of as “clear” punishments. So, with that, many wonder whether the death penalty can be one of them (Schabas, 2000).
International human rights law is rather clear that the death penalty should not be applied as a form of punishment. Muslim majority states have weighed in on this issue, with some states agreeing that it should not be allowed, and other states, such as Saudi Arabia, arguing for its necessity in their criminal law. However, in recent decades, a number of Muslim-majority state leaders have tried to advocate against the banning of the death penalty in international human rights law. This can be seen in 1998 during the Rome Diplomatic Conference where Muslim states fought to keep the banning of the death penalty out of the Rome Statute (for the International Criminal Court). Some of the states appealed to the importance of Sharia as a reason for them to advocate for the possibility of the death penalty as a form of punishment (Schabas, 2000).
Yet, early Islamic sources such as the Quran stress the importance of life, and is highly restrictive of when a life can be taken (which scholars argue is quite similar to the situation in the United States with the Constitution) (Schabas, 2000).
There has continue to be hope that the evolution of law in domestic states, and in international human rights law itself will lead to the abolishment of the death penalty within all country laws.
Sharia and Adultery
Another often-cited case of Sharia is the issue of physical punishment of adultery. The different Islamic schools of thought vary on their application of punishment for adultery. For example, “The Kharjis [another school of thought in Islam] follow the literal text of the Qur’an and do not stone adulterers.21 Other schools differ in their views of whether offenders should be both flogged and stoned – the Hanafi, Maliki, and Shafi’i schools provide for only stoning, while the Hanbali, Zahiri, and Zaydi schools require flogging followed by stoning.22 Another issue is whether unmarried offenders must be punished in the same way as married offenders; the Hanafi school does not exile unmarried offenders in addition to flogging them, but each of the other schools requires flogging as well as exile” (Peiffer, 2005: 510).
But even more than the debate on punishment is the threshold of finding someone guilty of adultery. In the early Islamic texts, adultery needs to be proven by four-eye witnesses. This made it difficult for false accusations to exist, and also makes it quite difficult to find someone guilty. Even when a person confesses, the different schools of thought differ on the conditions of the confession, how often the confession is repeated, etc… (Peiffer, 2005). All of this matters since it allows for a great amount of interpretation on not on the crime committed, but also the penalties.
As we see, the topic of Sharia (Islamic law) is far from a clear one. With the rise of international human rights law, and the willingness of many Muslims and Muslim leaders to accept it, it raises the question of how Islamic law is interpreted. Furthermore, there is a great deal of disagreement within the various Islamic schools of thought on what is a crime, and what punishments are applicable. All of this is on top of the fact that most of Sharia is not about criminal law, but rather, as a guide for how Muslims should live their life. Plus, millions of Muslims life their personal lives by how they understand Islam, and the Sharia that they follow, as well as fully adhering to the laws of the country in which they are citizens and/or live in.
Plus, individuals are continuing to work to limit the abuse of the criminal system by governments. For example, human rights activists have attempted to ensure that all people (and those accused of a crime) are treated fairly with regards to the rule of law. They are doing this in countries such as Nigeria and Saudi Arabia on cases such as adultery (Peiffer, 2005: Badran, 2009).
It is important to keep in mind that Sharia as a “path” for a person is not the same as “shari’a as man-made law”) (Badran, 2009: 285). States that apply Sharia might have their own motivations, and may be using Islamic law for their own personal interests, which often includes–but is not limited to–the desire to use faith to control citizens, and as a mechanism for the political elites to stay in power.
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An-Na’im, A.A. (2008). Islam and the Secular State: Negotiating the Future of Sharia. Cambridge, Massachusetts. Harvard University Press.
An-Na’im, A.A. (2011). Muslims and Global Justice. Philadelphia, Pennsylvania. University of Pennsylvania Press.
Badran, Margot (2009). Feminism in Islam: Secular and Religious Convergences. Oxford, England. Oneworld.
Cleveland, W.L. & Bunton, M. (2013). A History of the Modern Middle East. Boulder, Colorado. Westview Press.
Ernst, C.E. (2011). How to Read the Qur’an: A New Guide, with Select Translations. Chapel Hill. University of North Carolina Press.
Graham, D.A. (2016). Gingrich’s Outrageous Call to Deport All Practicing U.S. Muslims. The Atlantic. July 15, 2016. Available Online: http://www.theatlantic.com/politics/archive/2016/07/newt-gingrich-sharia-nice/491474/
Peiffer, Elizabeth (2005) The Death Penalty in Traditional Islamic Law and as Interpreted in Saudi Arabia and Nigeria. William & Mary Journal of Women and the Law. Vol. 11, No. 3, pages 507-539.
Quraishi-Landes, A. (2016). Five myths about sharia. Washington Post. June 24, 2016. Available Online: https://www.washingtonpost.com/opinions/five-myths-about-sharia/2016/06/24/7e3efb7a-31ef-11e6-8758-d58e76e11b12_story.html
Saeed, A. (2006). Islamic Thought: An Introduction. Routledge Press.
Schabas, William A. (2000). Islam and the Death Penalty. William & Mary Bill of Rights Journal. Vol. 9, No. 1, pages 223-236.
Taha, M.M. (1987). The Second Message of Islam. Syracuse, New York. Syracuse University Press.