Shari'ah Law

The Qur'an says in al-Ma'idah verse 48:

فَاحْكُم بَيْنَهُم بِمَا أَنزَلَ اللَّهُ وَلاَ تَتَّبِعْ أَهْوَاءهُمْ عَمَّا جَاءَكَ مِنَ الْحَقِّ لِكُلٍّ جَعَلْنَا مِنكُمْ شِرْعَةً وَمِنْهَاجًا

"Judge between them by what God has revealed, and do not follow their desires away from the truth that has come to you; for each of you We did appoint a way and a method" (5:48)

And in verse 44:

وَمَن لَّمْ يَحْكُم بِمَا أَنزَلَ اللَّهُ فَأُولَئِكَ هُمُ الْكَافِرُونَ

"He who does not judge/rule by that which God has sent down is of the kafiroon" (5:44)

In Sura al-Jathiya in verse 18 it says - using the actual word Shari'ah:

ثُمَّ جَعَلْنَاكَ عَلَى شَرِيعَةٍ مِّنَ الأَمْرِ فَاتَّبِعْهَا وَلا تَتَّبِعْ أَهْوَاء الَّذِينَ لا يَعْلَمُونَ

"Then We put you on the (right) Way of things: So follow it and do not follow the desires of those who don't know." (45:18)

These and similar verses are cited as evidence that God revealed a "Perfect Divine Law" to mankind which we must rule and judge by at all times and all places until the end of time. However this concept of a Perfect Divine Law for all times & places is something that was developed and elaborated on well after the prophet died, during what is known as the Islamic Golden Age. So should these verses really be understood in this way? As it happens verse 44 above, which is presented as evidence that we shouldn't vote or obey man-made laws: "He who does not judge by that which God has revealed is of the kafiroon" (5:44)  - is not even talking about the Qur'an. It is talking about the Torah and generally about the prophets.

In other words; "Judge between them by what God has revealed," simply means follow the guidance God has sent you through his prophets and books. Abide by justice and righteousness, and this includes using our hearts and minds as the Qur'an constantly commands us to do over and over again. These verses are simply part of the general exhortations of the Qur'an to be upright and righteous when dealing and judging between people. It was only later generations that started to take the view that "To judge by what God has revealed" referred to a literal set of divine legislation revealed in the Qur'an. A comprehensive set of laws & regulations on how to eat, dress, play, work, go to war, run a government, brush your teeth & whether you can play chess or fly a kite.

The problem with this view is that the Qur'an is a relatively short book. Most of it is concerned with matters of the next life and stories of the prophets. It actually contains very few verses of a legal nature - apart from a few hudood punishments. It certainly doesn't have anywhere near enough for a comprehensive social and political system. This of course became immediately obvious to the Muslim jurists of the Middle Ages who were responsible for writing what we today regard as Shari'ah Law. They were faced with the problem of having to devise a workable & effective legal and political system that could be implemented across a vast & increasing Islamic empire and which would amount to more than just a handful of punitive punishments such as flogging fornicators or chopping hands of thieves.

It was obvious they were going to have to turn to sources outside the Qur'an. This however contradicted their justification for such a divine law, since they claimed that the Quranic verse: "Judge by what God has revealed" was reference to a literal set of perfect divine laws revealed by God. So they had to argue that the Sunna should also be regarded as; "What God has revealed." In other words the sayings and actions of Prophet Muhammad were to be elevated to the same level as Qur'anic revelation. So the famous hadith collectors such as Bukhari, Muslim and many others began urgently codifying their collections. As the demand for hadith increased - so did the numbers of hadith also conveniently increase - and huge numbers of hadith had to be rejected as fabricated. Even many of those that did make it to the final collections were classified in different ways with many being classed as weak or doubtful. Despite this these hadith were pressed into action to fill in the huge gaps in this "Perfect Divine Law".

Unfortunately, even with the Sunna, there was still not enough for a comprehensive legal system. So the jurists had to turn to other devices including:

ijmaa' (consensus of the scholars)
qiyaas (analogical reasoning)
istihsan (juristic discretion)
maslaha (public interest)
istidlal, (inference)
ijtihad (independent reasoning)
'urf (local custom)

The fact that these sources could hardly be regarded as "What God has revealed." was simply ignored since the idea of a 'Perfect Divine Law' had now taken root in the imagination of Muslims. So much so that it became an integral part of the official aqeeda (creed). To reject the notion of Shari'ah Law was to reject Islam itself.

In this way a large body of Islamic Law was built up and applied throughout Muslim lands. But as the golden age of Islamic scholarship waxed and waned and the empire began to stagnate, many scholars declared that the "Doors of ijtihad were now closed!" - in other words there was nothing more to add or change to Shari'ah Law. It was just a matter of imitating past scholars and implementing the laws they formulated during the Middle Ages.

Today we can see the awful consequences, with even traditionalist scholars calling for a suspension of Shari'ah Law until we can solve the terrible injustices & abuses they are resulting in around the world. We have absurd situations where some scholars will forbid shaking hands with the opposite sex, but condone non-consensual sex with a slave girl. Or forbid eating a Big Mac, but condone stoning an adulterer. Shariah law has not only become an embarrassment but a deeply shameful indictment on the state of Muslims.

Many scholars today are rushing back to the books of jurisprudence eagerly trying to prize open the door of ijtihad so they can find a way to make Shari'ah Law workable in our day and age. But they will never get very far, because trying to reform the situation from within the traditional paradigm is like trying to juggle in a straight-jacket. As long as they still subscribe to the idea that there is a "Perfect Divine Code" revealed by God, then they will never get to the root of the problem. It was bad enough to bend and stretch the Qur'an into a legal system it was never meant to be in the first place. But to try to do that in a vastly different time and context - is utterly futile. Worse than that it is dishonest & deceitful to then pretend that the result is: "What God has revealed."

The truth of the matter is there is no such thing as a "Perfect Divine Law" for all times and places - there never has been. The scholars and jurists of the Middle Ages invented this myth. Shari'ah Laws are human laws and they always have been.

Firstly as I have talked about in previous Khutbahs, the inspiration Prophet Muhammad received came though his person, his character and his being. So although divine wisdom is infinite & unbound by human language or context - it must nevertheless be conveyed through human language and context. It must come through a human being that is fallible, of finite wisdom and limited vision. How can language we humans constructed ever hope to convey something that lies outside human terms of reference. No matter how great the source of inspiration it is nevertheless inextricably tied to the time and place of the person who received it and subject to his flaws and limitations.

Secondly when the Qur'an commands us; "To judge by what God has revealed", it is not referring to a celestial user-manual entitled: "How to do Everything Exactly Right - Forever!" It simply means to rule with justice, goodness & righteousness, using all the resources God gave us - which as the Qur'an constantly reminds us, includes our heart & mind - our conscience & our reason. To abide by the universal values revealed in all the wise teachings God has inspired us with down the ages.

Those who claim God has sent down a "Perfect Divine Law" are in fact accusing God of being a bumbling fool! They're accusing him of being incompetent and of botching the job. Had God truly wanted to create a world where everything was clear, where his existence was beyond doubt and where we all possessed the ability to understand his will directly, without confusion - he could have done so. But he didn't. He didn't because that is not the nature of the world he wanted to created. He created a world where he wants us to deal with difficult questions, doubts and struggles both physical and spiritual. A world where we have to think for ourselves and find our own solutions. A world where things are not black and white, but shades of many colours.

A world without doubt, where we just just paint by numbers - no thinking required - would defeat the whole purpose of our creation as sentient self-aware beings with a mind and a free-will to think and act for ourselves. God wants us to apply the gifts he has given us to devise our own laws and societies in the best way we can according to the general moral guidance he gave us through the prophets, through our minds and through our fitra - our inner being or conscience. Yes of course we will make many mistakes, yes of course our laws are flawed & fallible. But we also have the opportunity to learn and improve, to keep trying to be better. To aspire for something higher and more wonderful.