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Defining sharia: Faithful questions about Islamic law

Defining sharia: Faithful questions about Islamic law

Last updated on: August 10, 2007 at 9:08 am by Hesham Hassaballa

Defining sharia: Faithful questions about Islamic law 2007-08-10T09:08:00-04:00 Hesham Hassaballa

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It’s cinematic

I do not think Hollywood could have come up with a more sensational movie. The famous Lal Masjid (Red Mosque) in Islamabad, Pakistan is raided by government security forces in a crackdown on militant religious seminary students locked in a stand off that lasted several days. The standoff began on July 3, when clashes erupted at the mosque and 16 people were killed. The mosque was then besieged by government forces, and negotiations began in hopes of ending the crisis.

Hundreds of students surrendered, and the mosque’s leader was caught trying to escape wearing a woman’s burqa. When negotiations finally failed, the army stormed the compound, and dozens of people were killed when it was all over. The final death toll is still unknown, with the government saying 108 people being killed, and leaders of hard-line religious parties claiming that at least 400 people were killed. Concerns about reprisal attacks from militants were well placed, as several suicide bombings have taken the lives of hundreds of people in the ungoverned tribal areas of Northwest Pakistan.

The Lal Masjid, built in 1965 and named for its red walls and interiors, has long enjoyed patronage from influential members of the Pakistani government, from prime ministers to army chiefs. Things changed, however, after the attacks of September 11, 2001. Pakistan officially allied itself with the United States in the “war on terror,” and the leadership of the Lal Masjid became a fierce opponent. In fact, frequent calls for the assassination of Pakistani President Pervez Musharraf were made at the mosque.

Starting in 2006 – and this is the primary impetus for the crackdown on the mosque – the mosque’s students and leadership began a Taliban-like judicial system and instigated scores of incidents including kidnappings, arson, and murder. Many of their actions were against alleged brothels and sellers of music and movies. Apparently, they felt that if the government and local authorities will not implement “Islamic law,” then they will take matters into their own hands. The whole story is much more complicated, and I am sure more details will emerge in the coming days and weeks.

This got me thinking about the whole issue of Islamic law (known to most as Sharia law) and efforts by Muslims all across the world to implement it in their own legal systems. There are several issues that come into play when the issue of Sharia law comes up, and they are not easily resolved. First of all, what is Sharia law? For most people, I suspect, when the word “Sharia” is mentioned, they immediately think of two things: cutting off the hands of thieves and stoning the adulterer to death. Yet, it would not surprise me in the least if many – if not most – Muslims think the same about Sharia.

Yet, the Sharia is much more than that. At its essence, Sharia is the attempt on the part of human beings to discern and implement the will of God on earth. It encompasses all aspects of one’s life, not just criminal law. Muslim scholars have outlined the objectives of the Sharia to be five: preservation of religion, life, lineage, wealth, and intellect. Every “rule” in the Sharia harkens back to one of these core principles. Yet, is there one set of “rules” that all Muslims across the globe agree is the “Sharia”? Are there differences of opinion as to what the Sharia says about this thing or that?

Most definitely. While there is legal consensus on some issues, Muslim scholars have had different opinions regarding practically every aspect of Sharia. There may be a majority who believe this or that, but there usually is juristic dissent; there usually is a “minority report.” Herein, therefore, lies a problem: how can Muslims implement “Sharia” law – which has a divine connotation – when there is difference of opinion about what exactly the Sharia says about a particular matter?

If Muslims were to sit down and write a book of laws based on the Sharia, which view should be taken? If the “majority” view of the scholars is taken, is this unjust? Isn’t the “minority” opinion also valid? What about the opinions of other schools of law? Which one should be adopted? What should determine which opinion should be adopted as the “correct” view? These rules exist in the Islamic legal system, but are they being applied presently?

And what if societal norms and other circumstances change with time? Should the law change with them? The answer to this question is easy when it comes to secular law, but with Sharia law as understood by Muslims today, would this be interpreted as “changing God’s law”? How is this tension resolved? It is well known in the annals of Islamic jurisprudence that the law must be re-examined with changing times. But, there are too few Muslim scholars who espouse this view, and many hearken back to medieval legal constructs and apply today. This is simply untenable.

As far as criminal law is concerned, it seems that Muslims are so quick to implement the hudud punishments, i.e., the stoning of adulterers and cutting off the hands of thieves. Yet, there are so many mitigating circumstances when it comes to these punishments, and they are frequently neglected. A perfect example of this is the case of Amina Lawal in Nigeria (a case which many Muslim scholars also found appalling). Lawal was condemned to death by stoning for alleged adultery (even though the man was let go for “lack of evidence”). The judges presiding over her case apparently followed the Maliki school of law, but they completely ignored the procedures in the Maliki school that would have set Ms. Lawal free.

Moreover, a well known principle of Islamic law is that if the conditions in a society do not permit the application of a particular law, it should not be implemented. For instance, if poverty and privation is rampant in society, how can the law of amputation for theft be applied? Furthermore, the Prophet Muhammad was reported to have said (found in the collection of Al Tirmithi), “If there is any way (to avoid punishing someone for a legal offense), let that person go. For it is better for a leader to make a mistake in forgiving than to make a mistake in punishing.”

These basic principles, it seems, have been completely neglected and abandoned by Muslims today. Doesn’t this lead to injustice? Isn’t that the exact opposite of what Islamic law is all about? Does this fact, therefore, justify calls for a moratorium on the implementation of the criminal penal code, as made by academics such as Tariq Ramadan? In addition, under Islamic law, those punishments should be instituted only by the Caliph. The Caliphate, even in nominal form, has been absent from the Muslim world since World War I.

Then there is the whole issue of “There is no compulsion in religion.” (2:256) How does this come into play with respect to humans implementing what they believe to be God’s law? Although there is some compulsion when it comes to the government imposing law and order (people are “compelled” to drive under the speed limit), some Muslims elevate all sinful acts to the level of criminal law, which was never intended by the Sharia. For example, the students of the Lal Masjid were reported to have harassed sellers of music, because they believe music is “haram,” or forbidden by Islam.

Yet, there are a number of Muslim scholars that have said that there is nothing in Islam that prohibits music. If these students have their way and ban all music, isn’t this “compulsion in religion”? Aren’t they imposing their own personal religious view upon the rest of the community? Doesn’t this violate the letter and spirit of 2:256? Isn’t this not Sharia but vigilantism, which is expressly forbidden by the Sharia itself?

These are only some of the many questions that need to be addressed when it comes to Sharia, and I do not even pretend to know the answers to these questions. Yet, these questions must be answered and these inherent tensions need to be resolved by the scholars of the Muslim world today. I also must say that there should be nothing wrong with raising such questions in the first place.

Many Muslims today, especially after 9/11, operate under a “siege” mentality and feel the whole world is against them. This has come about because of the intense scrutiny, heretofore absent, placed upon Islam, its tenets, and Muslim communities in the wake of horrific acts of terrorism committed in Islam’s name. Add to that the enormous amount of suspicion of the Muslim community by their non-Muslim neighbors because of the acts of a few terrorist criminals. As a result, many Muslims feel that taking a critical eye toward issues such as Sharia law is somehow being “disloyal” to Islam.

But truth does not fear investigation, and the least we can do – especially when it comes to attempting to implement His will on earth – is ask ourselves hard questions. If we do it wrong and say “God says thus,” we will be lying on behalf of God, something against which He warned us sternly: “So woe to those who write scriptures by themselves then say it is from God in order to sell it for a petty price. Woe to them for what they have written on their own; and woe to them for what they earn!” (2:79)

The purpose of the Sharia is to promote justice and the common good. In fact, many people will be surprised to learn that the Sharia serves as the inspiration for the law in many Muslim countries, and there are no problems at all. In a minority of instances, however, the Sharia – as Muslims have presently applied it – has been an instrument of injustice and intolerance (think Afghanistan under the Taliban and Nigeria in the Lawal case) . This was never the intention of the Lawgiver.

The problem is, too many Muslims fail to understand this, and disaster has been handed down in the name of God and His religion. This cannot be allowed to happen again. This is, admittedly, a very sensitive issue, but we cannot shy away from this in the least. Our very salvation is at stake. Yet, in speaking with Muslim scholars, there is hope. The religious establishment all across the Muslim world is working hard to update itself, under their own imperative and not from any pressure from the West. Hopefully these forces for change will win the day.

Hesham A. Hassaballa is a Chicago physician and writer. He is the co-author of “The Beliefnet Guide to Islam,” published by Doubleday in 2006. His blog is at godfaithpen.com. This article was previously published on BeliefNet.

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Hesham Hassaballa

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