Shari'ah: A Qur'anic Conception
Unity in Multiplicity
Returning to the Qur'anic conception of Shari'ah, we find that there is little resemblance between the popular application of the term today, and its very precise connotations in the Qur'an. While Shari'ah is commonly presumed to denote an overarching, universal totality of rules ordained by God, that ideally all people must follow (but particularly of course Muslims), exploring the references to Shari'ah in the Qur'an leads us to a much more enlightening conception.
Shari'ah does not mean law, but 'the way.' The literal meaning of the word Shari’ah entails a 'waterway leading to a main stream.' Although the word is used prolifically in Muslim scholarship, there are in fact very few references in the Qur’an to Shari’ah. However, those references that do exist flatly contradict the tone and content of its commonplace usage today. For example, the first reference to Shari'ah in the Qur’an says:
“For each community [ummah] among you We had appointed a code and a way of approach [Shir’atan-wa minhaa-jaa], and had God wished He would have made you one community, but [His purposes required] that He should test you in respect to what He has given you.... To God will be the return of you all, whereat He will inform you concerning that about which you used to differ.” (5: 48)
This verse axiomatically affirms Shari’ah as a phenomenon of multiplicity. It acknowledges the existence of multiple communities, to each of which is revealed a different way of approach, precisely as a test. Here, the difference in ways of approach to God is not an abhorrent accident, but precisely integral to the Divine Plan. Humankind is not meant to be a single, homogenous mass.
The next reference to Shari’ah in the Qur'an elaborates on this theme:
“He has prescribed for you the Way [Shara’a lakum minad-Diin] which He has enjoined upon Noah, and which We have revealed to you, and which We had enjoined upon Abraham, Moses and Jesus, declaring, ‘Maintain the Way, and be not divided in it.’...” (42:13)
Here, the Qur’an emphasises that despite and within this multiplicity of 'ways', there is an underlying unity – that the Shari’ah (the Way) has been revealed to different Prophets, each of whom led their own different communities. Although we know - for instance by comparing Talmudic Law of Judaism with contemporary Islamic laws - that the 'rules' entailed for these different communities were distinctive to those communities, here the Qur'an describes the Way, the Shari'ah, revealed to all of them in singular form. Despite the multiplicity of 'ways', these were not fundamentally different paths, but One Way revealed through all these Prophets to multiple communities through the prism of culture and history. Shari'ah, in other words, is not about contingent laws or codes, but about something deeper.
While acknowledging this, the next verse warns that the real cause of disunity between different communities, was not the multiplicity of revelations, nor the plurality of communities, but rather the egoistic phenomenon of mutual envy:
“They did not divide except after the knowledge had come to them out of envy among themselves.” (42:14)
In this context, the Qur’an calls unequivocally for the communities who have received revelations of the Divine Shari’ah or Way to avoid egoism, to accept their differences, and cooperate on the principle of belief in the unity of the Divine Reality:
“So summon to this [unity of religion], and be steadfast, just as you have been commanded, and do not follow their desires, and say, ‘I believe in whatever Book God has sent down. I have been commanded to be just among you. God is our Lord and your Lord. Our deeds belong to us and your deeds belong to you. There is no argument between us and you. God will bring us together and toward Him is the destination.’” (42: 15)
Finally, the Qur’an establishes equivalence between the preceding command and the Shari’ah itself:
“Then We set you upon the right Way [Shari’ah tim-minal- ‘amri]; so follow it, and do not follow the desires of those who do not know.” (45: 18)
Thus, the Qur’anic terms of reference for understanding Shar’iah are astonishingly distinct from common formulations today: unifying, pluralistic and universal. Shari’ah is clearly equated with a means of approach to God, yet the plurality of different approaches is recognised as integral to the Divine Plan. Simultaneously, the right ‘Way’ of Islam itself is equated with a universal recognition of the unity of these diverse religious paths throughout history.
Indeed, this last verse mentioning the actual term Shari’ah was revealed during the Meccan period, when no laws, codes or even compulsory rituals had been revealed. As Abdullah Yusuf Ali therefore points out in his seminal translation of the Qur'an: “Shariah is best translated the ‘right Way of Religion’, which is wider than the mere formal rites and legal provisions, which mostly came in the Medina period, long after this Meccan verse had been revealed.” (Abdullah Yusuf Ali, The Holy Qur’an: Text, Translation and Commentary, New York: Tahrike Tarsile Qur’an, Footnote no. 4756)
Shared Values - Promoting Good, Confronting Evil
As noted by late Indonesian scholar Zakiyah Munir, Fellow in Islam and Human Rights at the Emory University School of Law, the focus on the Qur’an as an implicit manual or code of law is at odds with the very nature and focus of the Book. Indeed, rather than calling itself a book of law, the Qur'an repeatedly refers itself as al-huda, or guidance. Out of over 6,200 verses, Munir points out, “less than one tenth relate to law and jurisprudence, while the remainder are concerned with matters of belief and morality, the five pillars of the faith and a variety of other themes.” Themes concerning legal issues “are on the whole subsidiary to its religious call.” There are just under 350 verses in the Qur’an concerning matters of legal conduct, the bulk of which were revealed directly “in response to problems that were actually encountered… Despite the fact that legal verses constitute a rather small portion of the Qur’an, often legalism reduces the Qur’an to laws.” (Lily Zakiyah Munir, 'General Introduction to Islamic Law')
One obvious implication is that the bulk of the legal verses in the Qur'an relate to issues and challenges actually encountered by the fledgling Muslim community during the time. Rather than assuming that those legal injunctions should be simplistically re-applied today in exactly the same form, we must bear in mind the Qur'anic affirmation that an element of the text is concerned specifically with addressing local Arabian community issues in their own context and culture. This Qur'anic affirmation shows that to understand their legal implications today, we must first and foremost deduce the universal social and ethical purpose of those legal injunctions triggered by local and historical circumstances of the time - rather than simply presuming that elements the Qur'an itself recognises are specifically related to local historical Arab contingencies should be transplanted unthinkingly today outside of that local historical context.
This indicates that the Qur'an is first and foremost a book of values. Today's direction of much Muslim scholarship focused on fiqh-based legalism has gone in the opposite direction to that of the Qur’an itself. The Qur’an’s focus on values is encapsulated in the following verse:
“Let there arise from you a group of people inviting to all that is good, enjoining what is ma’ruf (good), and forbidding what is munkar (evil). These are the ones to attain felicity.” (3:104)
Some Muslims interpret this verse narrowly to imply the necessity of establishing an Islamic State, a top-down political structure, which would enforce good and evil, as defined by the corpus of legal opinions constitutive of a narrow conception of ‘Shari’ah Law’. (This applies across the range of Sunni and Shi’a conventional Islamist political ideology, see for example, Hizb ut-Tahrir, 'The Hukm of Hisbah', and Ayatullah Ruhullah Khomeini, Islamic Government: Governance of the Jurist, Manor Books, 1979)
However, such approaches do not respect the Qur'anic text. Indeed, the Qur’an’s use of the terms ma’ruf (good) and munkar (evil) implies a far broader meaning, than the idea that these terms refer respectively to obeying or not obeying Islamic laws.
Ma’ruf and munkar convey a sense of ethical values which are universally recognised and understood. Ma’ruf means literally 'that which is commonly known or accepted to be right', while munkar means 'that which is universally rejected as wrong.' In more contemporary but still accurate terms, ma'ruf signifies 'the public good.' According to Muhammad Khalid Masud, Director General of the Islamic Research Institute at the International Islamic University in Islamabad, the term ma’ruf signifies “right” or “rights” that are “well known and familiar… in the sense that it is through social discourse that it becomes well-known. People agree to its being right on the basis of a consensus that develops by a process of mass communication, debate and social understanding.” In this sense, rather than signifying a static, top-down form of ‘good’ derived from faith in any particular authority, ma’ruf “signifies knowledge, acceptability, communicativity, and consensus based normativity. Maruf suggests a process of social construction, rather than authority based communication.” (Muhammad Khalid Masud, Definition of ma’ruf)
The Qur’an’s careful choice of words to convey good and evil thus undercuts the narrow Islamist focus on codification and law. Instead, the Qur'an underscores a universalist conception of shared moral values conforming to the Qur’an’s pluralist and inclusive conception of Shar’iah. The remarks of the renowned Islamic scholar Khaled About El Fadl, Distinguished Professor of Law at UCLA School of Law (who has also been traditionally trained in Islamic jurisprudence for 13 years in Egypt and Kuwait), are worth noting:
“The puritans construct their exclusionary and intolerant theology by reading Qur’anic verses in isolation, as if the meaning of the verses were transparent – as if moral ideas and historical context were irrelevant to their interpretation. In fact, however, it is impossible to analyze these and other verses except in light of the overall moral thrust of the Qur’anic message. The Qur’an itself refers to general moral imperatives such as mercy, justice, kindness, or goodness. The Qur’an does not clearly define any of these categories, but presumes a certain amount of moral probity on part of the reader. For instance, the Qur’an persistently commands Muslims to enjoin the good. The word used for ‘the good’ is ma’ruf, which means that which is commonly known to be good. Goodness, in the Qur’anic discourse, is part of what one may call a lived reality – it is the product of human experience, and constructed normative understandings.” (Khaled Abou El Fadl, The Great Theft: Wrestling Islam from the Extremists, New York: HarperCollins, 2004, pp. 14-15)
This is not an endorsement of the subjectivity of moral values, but to the contrary, a reinforcement of the recognition that human communities are blessed with sharing a universal cognition of ‘goodness’.
Maqasid - The Higher Purpose
The Qur'an thus establishes that the fundamental purpose of Islam is to generate communities which promote the public good, and prohibit public corruption - to promote that which is universally recognised as good, and to confront that which is universally recognised as evil.
In particular, the twin higher purposes of the Qur’anic revelation, according to the Qur'an itself, are truth (spiritual) and justice (societal):
“And the Word of your Lord is fulfilled and completed in truth and in justice.” (6:115)
“Of those We have created is a community that is led by truth and applies it in the practice of justice.” (7:181)
Thus, the overwhelming purpose of human existence according to the Qur'an is the affirmation of Truth and the practice of Justice. It is in this context of the Qur’an’s absolute emphasis on shared ethical values as the overriding purpose of its more specific injunctions, that the majority of classical Islamic scholars acknowledged that Shari’ah ‘rules’ abstracted through usul al-fiqh were subordinate to meeting fundamental higher ethical principles or objectives. As noted by the Afghan Islamic scholar Mohammed Kamali, former Professor of Islamic Law at the International Islamic University of Malaysia:
“The precedents of the leading Sahabih (Companions of the Prophet) indicate... that they saw the Shari’ah 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 is this value-orientation of the Qur’an and Prophetic model that justified the emergence of the classical methodology of al-Maqasid al-Shari’ah (the higher objectives of law). This methodology was led in particular by classical scholars such as al-Tirmidhi al-Hakim, al-Jwayni, al-Ghazzali, al-Amidi, al-Sulami, ibn Taiymiyya, and al-Shatibi. (Mohammed Hashim Kamali, 'Al Maqasid Al-Shari’ah: The Objectives of Islamic Law', Journal of the Association of Muslim Lawyers, April-June 1998, Vol. 3, No. 1)
Based on the emerging ijma of these classical scholars, American Muslim scholar Dr. Robert Crane - a director of the International Institute of Islamic Thought - identifies a minimum of eight core higher ethical maqasid, objectives or principles implicit in the injunctions and recommendations of the Qur’an and Prophetic practice (Robert D. Crane, 'Maqasid al-Shari’ah: A Strategy to Rehabilitate Religion in America', Herndon, VA: International Institute of Islamic Thought, 27 March 2009 p. 6; also see Crane, 'Human Rights in Traditionalist Islam: Legal, Political, Economic and Spiritual Perspectives,' American Journal of Islamic Social Sciences, Winter 2008)
1) Haqq al Din, the free right and duty to be aware of and worship God (with the implied right also not to do so) and to search for ultimate truth and justice;
2) Haqq al Nafs, the duty to respect the human person, known as the natural law principle of personalism; including the second-order principle or hajj of haqq al haya, which is the duty to respect human life;
3) Haqq al Mahid (from wahada), the duty to respect the coherent order or tawhid of all creation, i.e. ecology and environment;
4) Haqq al Nasl, the duty to respect human community based on the sacredness of each of its members;
1) Haqq al Mal, the duty to respect private property and societal institutions of money, credit, and taxation to promote the universal right to individual ownership of productive wealth as an alternative to older systems of wage slavery;
2) Haqq al Hurriyah, the duty to respect the political self-determination of persons and communities, based on the principle of subsidiarity, whereby legitimacy originates in the human person and ascends through such second-order implementing tools as political democracy;
3) Haqq al ‘Ilm, the duty to respect rational thought through freedom of speech, publication, and assembly; and
4) Haqq al Karama, the duty to respect human dignity in social life, especially gender equity, as well as all the other maqasid or normative principles, which can be observed effectively only as a single whole.
The approach of al-Maqasid al-Shari'ah recognises that the purpose of Islamic 'laws' or 'rules' is not in those rules themselves, but in higher ethical values and objectives. The governing basis of the science of deriving legal judgements, then, is the fulfilment of those values.
As illustrated by certain well-documented historical cases (such as when the Prophet, rightly-guided Caliphs, and Imams refused to implement punishments for theft due to the poverty of the thief) the higher values of justice and fairness often required over-riding the literal 'letter of the law,' due to the necessity to ensure the fulfilment of those values. As it would be unjust to punish for theft one who stole due to hunger and poverty, the literal penalty enjoined in the Qur'an without qualification was, in practice, limited and qualified in execution due to the circumstances. There is, in other words, no basis to assume that Islamic legal penalties in themselves represent justice universally and eternally - their application was designed to ensure justice in certain very specific local circumstances of rampant injustice in Mecca and the Arabia at the time of the Prophet.
New contexts, however, may require applying such penalties differently, or even suspending them wholesale (as for instance was done by the second rightly-guided Caliph, Umar, in relation to the punishment for theft during a famine). Conceivably, in a vastly different social and political context, adhering to justice might require a vastly different approach inspired by the Qur'anic maqasid. Umar's actions show that there were cases and times where justice required not the literal implementation of a penalty, but on the contrary the non-implementation of a penalty.
This means that the Qur'an's concern is to ensure our practice of justice in different contexts, as opposed to our blind and unthinking execution of 'laws' or 'rules.' It also demonstrates that the penalties described in the Qur'an are not supposed to be universal injunctions necessarily applied and enforced categorically everywhere, but that they were revealed to address the challenges of Arabia during the time of the Prophet. Prophetic practice unequivocally demonstrates that the hudud should not be enforced universally, and that different types of social conditions can necessitate their non-enforcement due to their inapplicability to those conditions. Today, therefore, in societies that bear no resemblance to Arabia 1,400 years ago, it is far from obvious that they remain applicable to modern conditions - rather, they function as guidelines for exploring how to ensure justice and accountability.
In other words, the clear implication - taking the Qur'an and the Prophetic model holistically - is that Islamic legal rulings must be contextually applied to ensure that they fulfil the higher ethical values or purposes set out by the Qur'an. If their literalistic application obstructs that fulfilment in certain circumstances, the classical methodology of al-Maqasid al-Shari'ah demands that the very applicability of the 'rules' or 'law' be reviewed, and if necessary suspended as inapplicable, depending on that context.