Lecture 14: The Islamic Sharia
Course: Introduction to Islam
Lecture: The Islamic Sharia
I. Great Hadith Passage #1: “The Night Journey and Miraj”
This is lecture #9 where we continue to focus on the role of tradition in Islam. Just as we normally begin each session with a great Qur’anic passage, today we actually begin with a passage from the Hadith. This is a little bit of a change for us, but it does show the shift in the course as we begin to expand beyond the Qur’anic material to look at some of the material from the Hadith.
I chose a passage directly from one of our textbooks because indeed, this is a very important one as we have noted. This is a very famous Hadith that is found in Al-Bukhari and several other collections of Hadith. It is from The Night Journey and the Miraj. Miraj is a word for the ascension of Muhammed. You can see how though, the whole thing is the Isnad, transmission of Isnad.
This is of course one of the paths which describes Muhammed being transported from Mecca to Jerusalem in the spirit while he slept. According to other Hadiths, Aisha, his wife, observed that his body was present in Mecca the entire time, he never left Mecca from a visual point of view; but in the spirit he was transported, according to Muslim belief, to Jerusalem, in fact to the place which is now the Dome of the Rock, the famous Muslim site in Jerusalem, the #1 Muslim holy site outside of Saudi Arabia.
One of the Hadiths that is delivered is this one which is before us, quite a lengthy passage with a ton of theology in this. In fact, on page 44 is contained several interesting points; that on the way they mentioned that they find at the temple in Jerusalem, Abraham, Moses, Jesus, a company of the prophets. You have the forbidding of wine here, which we will come back to later when we look at some of the parts of the Hadith; an ancient reference to Hassan. Hassan speaks about the prophet. According to the text. Hassan was not even born at that point, and yet is speaking to Muhammed. You have Aisha mentioning that the messenger’s body was not ever moved. All of this information is there. Emphasis on the different parts of the heaven. Many scholars believe this is the source of Dante’s Divine Comedy. You have Jesus being identified in the second heaven, so Jesus is not in the highest heaven. You have his various encounters.
The main point I want us to look at is the very end of this Hadith where it says, “Finally the messenger of God came to his lord and the duty of five ritual
prayers,” that is Salat, “a day was laid on his community,” on his umma. So this is the Hadith that I have alluded to in the past, one of the Hadiths which actually verifies the fact that the fivefold prayer does not occur in the Qur’an, it actually occurs in the Hadith. You have another Hadith that says that he heard the messenger of God – which is of course Muhammed – say, “Five prayers are prescribed by God for his servants in the space of a day and a night.”
“The five prayers are obligatory for every Muslim who has reached the age of puberty and has the use of reason.” So, insane people are omitted, as are women who are menstruating or recovering from childbirth. So, during a woman’s period or during the period immediately following childbirth, the woman is exempt from the fivefold prayer. This one also mentions something else that we have alluded to in the earlier lectures and that is this practice of combining prayers, so that in effect, your fivefold prayer functions daily as a threefold prayer, which I have argued is actually conforming to the Jewish practice of threefold prayer, which is the source of this whole thing. I have quoted to you, “It is not permitted to delay a prayer unless one has formulated the intention of combining it with another prayer.” So the idea of combining prayers, which is widely practiced throughout the Muslim world, is not something, as some argue, that is a problem or a compromise. It is actually allowed for in the Hadith.
These are some of the points in that Hadith. Jesus is viewed as on par with the prophets. You have some interesting ethical guidelines which appear in this
Hadith, the no alcohol guideline. You have in that Hadith the hell and judgment day, good works as being reviewed by Adam. You have the idea of seven heavens, Jesus is in the second heaven, and the fivefold prayer. There is quite a lot of theology. I think it is helpful to read that Hadith in light of what you now know because you are starting to realize, hopefully, that a lot of Islamic practice and theology actually comes out of the Hadith, rather than the Qur’an. I think we are beginning to see that picture a lot more clearly.
II. Components of Sharia
What we do want to focus on today is the various components of the Sharia because up to this point, we have essentially talked only in terms of revelation. We have essentially established that for Muslims there are two major sources of revelation: The Qur’an, we have spent some time unfolding and looking at the theology of it. Secondly, we are now seeing the emergence of the Hadith and we spent the entire last lecture talking about different kinds of Hadith, the method of establishing the authenticity of the Hadith to the Isnad and the various categories, how Hadith is categorized once it has been established.
We are now going to come to a third component to finally put this picture a little closer together. That is the whole concept of Ijma. You will be happy to know, this is the third and really final major element of what will eventually form the basis for Sharia Law.
A. Definition of Sharia
The word “Sharia” literally means “the path to the watering hole.” It is a term for the straightest path, which is why our textbook is called, “The Straight Path.” This is a reference that goes back to the idea of Sharia; in other words, the path of God’s will, it is a straight path.
We discussed how the Hadith of course emerges from what reality? What is it that produces the Hadith, where does it come from? What are those actions called? Sunna. The oral Sunna tradition gets written down into the Hadith. So with the Qur’an and Hadith, we now have two written sources of revelation that are now, particularly with those we have mentioned, more or less fixed in the tradition.
B. Ijma as a third guiding principle beyond Qur’an and Hadith
The third source of revelation is Ijma, which can be translated, “consensus.” This is a very explosive topic. What is the role of Ijma? Is it a source of revelation? Is it a source of guidance? Everyone admits that Ijma, or consensus, plays a very important role in the Islamic community. The Hadith states that Muhammed said, “My community shall be in agreement in error.” That is to say, “The importance of the umma, the unity of the community, is so important that we want to maintain that at all costs.” So the importance of consensus is very, very important. The idea behind this is that the Islamic community, if they stay together and are united, can safeguard potential errors that would creep into the Islamic community.
Issues arose, which were addressed in neither the Qur’an nor the Sunna. So once again, the Qur’an we saw with 114 Surahs, is a fixed document, to which you cannot add or take away from. Therefore, it is fixed material to which it is difficult to address new issues which arise.
Once they stop the massive explosion of the invented Hadith, which we talked about last lecture, they actually began to establish using the Isnad, the whole train of transmission, the closest to Muhammed, and the integrity of the transmission. Once you establish that, the Sunna too becomes the practically speaking fit. In other words, no longer do you have the authority to invent new Sunna. Obviously, there are some issues in the modern world and certainly even in the middle ages when Islam was a major civilization and force, and the words of Muhammed just simply are not present. They just cannot make Muhammed speak to the new issues. So this third one does provide the opportunity, at least in theory - we’ll see how it actually shakes out – of addressing some issues, getting the whole Islamic community to agree on the Muslim position, thereby reaching a consensus and therefore having a new source of authority.
If you are to do a study of this and compare it to the Biblical idea of canonicity and how do Christians address new issues, do we use analogies on the basis of scripture? If we say, “What is the Biblical view of nuclear war or nuclear weapons” how do you talk about nuclear weapons with a first-century document? You either invent secret sayings of Jesus, when Jesus said something on one level; but if you really are an insightful person, you realize that he was speaking at many different levels and he addressed every conceivable issue. There are people who believe that. Or, you have to find some other way for an authority to speak. Obviously, in the Christian tradition this comes through the tradition of the church and different church traditions develop which apply the scripture; but at least in partisan circles, it doesn’t fall in the same level of authority as the scriptures.
Essentially it is the same problem with issues the Muslims are dealing with. How do you approach new issues? What happens is, the word Ijma developed. Before we go too deep into this, I must tell you before someone comes and shows me a book stating otherwise, that you will find, if you look carefully, the word “Ijma” used in at least two different ways, so I want to clarify this point for you.
The word “Ijma”, some Islamic writers use to refer to the whole process of reaching a consensus. You can have essentially an attempted Ijma that fails. An
Ijma would refer to the whole process through which a new principle or a new requirement can gather the force of law and hence revelatory status by being generally accepted.
The relationship of Ijma to Shura
In other writings - and I think this is actually more precisely accurate – the process is known as “Shura.”Shura and Ijma are related to each other just the way Sunna is related to Hadith. You have a process which leads to a Hadith. They would say that Shura is the process where one attempts to find if we indeed have an Ijma or a consensus. I must admit to you, there is some inconsistency in how this term is used so I am going to bring both of those before you.
If Ijma is used as the final outcome, the consultation process is known as Shura; so Shura is the method through which Ijma is reached. In practice, how do you get all Muslims to agree on anything? How do you get anybody, how do you get this room to agree on anything? It is difficult to do this. Once again, the reality of Islam is that they had to have a process through which they could declare that a consensus had been reached. It is particularly difficult for islam because they don’t have the clerical structures. They do in practice; but in theory at least, they don’t have a clergy in Islam, even though they have plenty of those who operate clerical positions. They actually have tried to portray the idea that this is a massive lay movement. It is difficult to really establish in Sharia Law, a process through which one can define and work out an Ijma.
The relationship of Ijtihad to Ijma
So they produced a class of Islamic scholars who are known as Ulama. This is one of actually many terms for this. These are Islamic scholars who professionally study and interpret the Qur’an and the Hadith. This is a scholarly community basically. Islam gradually accepted the notion that certain scholars who were accepted after intense theological training, could issue what is known as an Ijtihad. This is a very important concept to grasp. Ijtihad means basically a personal effort. The word actually has a much stronger force than this translation actually shows. Ijtihad refers to the effort of a major Muslim scholar.
Basically this scholar would announce the Shura or in some people’s interpretation, announce the Ijma. He would announce saying, “I believe that this
should be accepted by the Muslim community.” That would go through a process and would either be rejected or eventually accepted. This idea of an Ijtihad or a personal effort by a Muslim scholar to reach a consensus which would allow Islam to address new issues, is in itself supposedly found basis for in the Hadith. Muhammed asked, “How will you administer the region assigned to you?” The reply, “the Qur’an.” Muhammed asks, “And then what?” He replies, “the Sunna.” Of course, we realize that this is going to eventually lead to the Hadith. This part is not in the Hadith, but the Sunna. “And then what?” “Then I will make a personal effort, Ijtihad.” That is according to that. The Hadith comments, “This the prophet approves.”
So this is actually the Hadith, which supposedly provides the theological basis for creating an Ijma. You would first consult the Qur’an and the Sunna. By the way, this is why the Ulamas were the ones who had to do this because they are the only ones who are the true scholars of the Qur’an and the Sunna and they could say, “This is simply not addressed by the Sunna.” Therefore, after this has failed, then this person would be allowed to make a personal effort; and this is the idea of initiating a potential consensus.
A man who is approved to issue an Ijtihad has several names. I mentioned Ulama as one of these. You also find in later writings they are called a Mujtahid. You also find them called Mufti or a Qadi. A Qadi is actually a judge - a Faqih - which is a lawyer or a jurist. You have several figures that eventually in various traditions in Islam, may be called upon to issue this effort, this Ijtihad.
C. Historical Discursive: Ijma evolves into Law: 700 – 900 AD
So this process of the Ijma emerging and forming a third basis, happens primarily between 750 and 900 AD. They would make judgments on the Qur’an. The problem was, the result of this process was not uniform, so you had different Qadis with different bodies of law and therefore it was difficult to really talk about the Sharia law as having divine force when you have different legal traditions within a community.
What eventually happened was, you compared the major legal minds in Medina and Damascus, Bozrah, Kuhfa, Baghad, etc. Then what happened was, there was such diversity that an attempt was made to consolidate the schools of law into certain kinds of tradition.
Just to be clear, we are still dealing with at this point the Sunni tradition and we are dealing with the emergence of what is known as Sharia. This is a law code that is going to emerge to govern the Muslim community based on these three components: Qur’an, Hadith and Ijma.
Four Major Leaders
What happens is that four major leaders arose in different parts of the world, different parts of the Muslim community, and after them are named four distinct schools of law. You can see the Hanifi School, the Malikite School, the Shafite School, the Hanbalite, the four major schools of law. That has not changed to this day. Essentially today you still have four major schools of law and everything flows out of that tradition. There are many sub-groupings, but essentially you still have those four basic groups.
Let me say a little bit about each of these schools because what basically happened is that some of the schools would focus more on the Qur’an and more
of a literal interpretation of the Qur’an. Some would focus more on the Hadith and various kinds of traditions from the Hadith. Others, more on Ijma. So you have a lot of diversity in the Sharia-based on what they emphasize. I am going to give you the basic gist of this.
Abu Hanifa (died 767) Hanifi School of Law
The Hanifi School from Abu Hanifa, who died in 767. This is actually the largest school of law in Islam. It is famous for being the most liberal of the schools of law. In fact, just to give you an example: According to the Hanifi School of Law, a Muslim is permitted to marry a Christian or a Jew, someone from the people of the book. That is a part of the Hanifi Sharia code. That means that a Muslim can marry outside the faith; strictly speaking, outside the Muslim faith, not outside the people of the book; nevertheless, outside the faith. That is considered to be an absolutely condemnable view by the Hanbalites, for example. But you have these different traditions that emerge.
So the Hanifi is a large school, it is a liberal school. They use Qiya, or analogy very, very prominently. Qiya is another term which allows for analogies from the Qur’an or the Hadith or Ijma, where you will take a statement or a verse and you analogize to a new situation. They are much more liberal about applying the Qur’an to a wide range of situations that they find will fit their situations. You may have heard, there has been a big problem recently in terms of marriages because the idea of the Muslim marriage, which we will look at later, allows them to enter into temporary marriage alliances, which was originally viewed just as something to help people during the hajj, but has now been interpreted to include people that are involved in youthful sexual encounters in the Muslim world, where they can actually enter into temporary marriages with their boyfriend or girlfriend and still maintain their connection with the mosque. That is a very liberal interpretation of these kind of things. But this is the kind of thing that is happening in some of the more liberal traditions of the law schools.
If you ask, “Where would I find the Hanifi most dominant?” These are just where they are dominant, particularly a place like Turkey and in much of Asia, where you will find Hanifi Law Schools that will preside. Again, as a rule, as you leave Saudi Arabia and go out from that epicenter, you find more liberal interpretations of the Sharia because they are in a more hostile environment, they have more opposition. They have places where they cannot so easily establish Muslim law courts, so they have more liberal interpretations.
Malik ibn Anas (died 796) Malikite School of Law
The Malikites, the second group, you find them especially in upper Egypt and places like West Africa, many parts of North Africa, the Sudan for example. The Malikites are very famous for their use of the Hadith in their development of law codes. In the case of the Malikites, they believe that the Hadith represents the best basis to develop really sound law codes because they believe that is the place where you can go directly to the life and practice of Muhammed.
Muhammad al-Shafi (died 819) Shafite School of Law
The Shafites, which you find in lower Egypt, again some portions of Arabia on the western side of Arabia - not the eastern side, and southern Arabia, you will find the Shafites, who emphasize very much the whole idea of consensus. So you have the whole idea of Ijma; and certain very strong, powerful legal scholars who have arisen out of Arabia, have forced their views and they have emphasized this idea of the Islamic unity. Whenever you are in Arabia, there is great emphasis on the importance of Muslims conforming to the practice of Arabian Muslims, naturally. Therefore, there is a big emphasis on that in the Arabian Peninsula.
Ahmad ibn Hanbal (died 855) Hanbalite School of Law
The Hanbalites, again portions of Saudi Arabia. Very literal interpretation of the Qur’an. The Hanbalites are like the fundamentalists of the Muslim world. There are many sub groups to all of these. One group, the Wahhabis, we mentioned earlier, we now come back to that. The Wahhabis is a sub group of the Hanbalites, who focus on extreme, literal interpretation of the Qur’an and have argued that no other Muslims outside of their group are true Muslims and have fallen from the faith.
You can imagine that what you essentially have here are four denominations or schools of law representing four very different traditions based on how they interpret or which part of these three components they emphasize the most. The result has been the emergence of a number of other elements in order to interpret this.
The Emergence of Fiqh and Kalam
The Fiqh is the study of Sharia. If you talk to Muslims, they will actually call Kalam “theology,” but I think from our point of view, what we would call theology is what they would call “Fiqh.” This is the closest thing to the study of theology. The Kalam is actually non-systematic theological discourses, where they discuss theological positions.
The Islamic Ulama/Mujtahid and the “gate of Ijtihad”
The Ulama, we mentioned already, are those who sought to apply the Sharia to life situations and may in fact, because they are professional interpreters of the Qur’an and the Hadith, be asked to make the Ijtihad.
So the Mujtahid could hopefully reach a conclusion which would, after studying the law, the Qur’an, the Hadith, the Ijma from the past, create a new consensus, a new Ijma. But it is believed that regardless of who makes a personal effort or Ijtihad; regardless of who does that, it cannot succeed unless it finally reaches some level of consensus. This is at least in theory the way the Muslims view it. So there has to be widespread acceptance of the personal effort.
The real question which arose in later times and is still a big issue today is whether this is something that was allowed in the early stages of Islamic development. So someone could make an Ijtihad, someone could make a personal effort and create an Ijma, and therefore they could round out
information necessary to create a Sharia. Whether or not the idea of personal effort is an ongoing thing, or is it something that happened and is over with? Or is it something that can continue happening today? The whole Ijtihad, is the gate open, or is the gate closed? It is a very important issue of discussion and debate among the Muslim community. In a way, it is a little bit like our asking, “Is the canon open, is the canon closed?” In other words, if the gate of Ijtihad is open, that means that there is still a role for an Islamic scholar to make a personal effort and the Islamic community could come to new Ijma or go through a new process of Shura, whether they reach Ijma or not. If they did reach Ijma, this could continue to inform Sharia and you could conceivably have an ongoing, developing body of law that goes on forever at the level of revelation.
Others argue, “No, the gate of Ijtihad is closed. We cannot allow any more Ijma because the Muslim community is now fractured and there is no longer a Muslim civilization. There is no longer a seat of Islamic civilization in the way there has been in previous centuries.” Therefore, they are saying, “Now all you can do if you encounter new ideas, new issues, then you have to take what is here and you issue an analogy, a Qiya.” By virtue of analogy, you can essentially apply it to any new situation, but always at that lower level.
Conservative Sunnis insist that the gate to Ijtihad is closed. No further interpretation. No new interpretation or revelation can be added nor is needed.
We will see that the Shi’ites completely reject this whole idea of Ijma altogether because they, of course, are outside of this consensus. They have already been marginalized by the so-called “consensus” of the Sunnis regarding what is normative practice in Islam. Therefore, the Shi’ites will not accept at all the
concept, the whole idea, of how Sharia happened. They are going to have something different they put in the place of Ijma; but we are not at that point yet.
In the Sunni tradition, this is the way it is divided out in terms of how people interpret the gate of Ijtihad and at what level revelation can continue on.
D. Lesser components of Sharia
While Sunnis did believe that Ijma had been reached on essential matters and many believe that therefore the Ijtihad is now closed, the gate is closed, that now you can operate on the level of Qiya and Fatwa. We mentioned Qiya, which is analogy, where you extend Islamic law on the basis of a similar problem. This is what we have with the example I gave of the wine; and they say, “Okay, if the wine is prohibited, therefore all alcohol is prohibited.” A Fatwa, which I am sure you have heard of many times because it comes up in the news quite a bit, is a legal opinion. A particular Sharia court issues a Fatwa which says, “Salman Rushdie should die.” That is a Fatwa. They have studied his writings, they examined the work that he did and declared it was heretical, it was against the fabric of Islam and therefore they issued a legal opinion that Muslims had the legal authority to put this man to death. All of this came from Fatwa. Again, these are the lower levels of authority and this is a Fatwa, this is a legal opinion; but like the Supreme Court issues a decision, it is not the Constitution, it’s not on that level, it is not the ruling document; but it is an opinion which flows from that document and therefore it carries a lot of authority.
Normally the Fatwa takes place in a religious court. We are going to see how in Shi’a Islam, this gets a little more clouded because they have individuals that can issue Fatwas, like Ayatollah Khomeini did. But in Sunni Islam a Fatwa should be issued by a certified Sharia law court. It is authoritative, but it is never considered revelatory in any way, like the other material we have looked at.
III. Sharia Structure in Sunni and Shia
A. Overall sources of legal framework
To sum up, essentially we have two major sources of revelation that everybody agrees on, Sunni and Shi’a alike, the Qur’an and the Hadith. Everybody accepts that point. Granted, the Sunni and the Shi’a have different Hadith traditions, we all know that. In that sense, everyone is agreed. The Sunni Muslims are accepting a third component of Ijma to consolidate the unity of the Muslim community. Sunni Islam largely rejects that this is an ongoing reality and most Sunni Muslims believe the gate of Ijtihad is closed. Therefore, they rely upon Qiya and Fatwa to extend Sharia to new situations. There are some scholars who believe that the gate of Ijtihad is still open. That is a very distinct minority in the Sunni tradition.
There we have it. You can see the basic picture.You have the Qur’an, Hadith, Ijma (open or closed) and the Qiya, Fatwa. That is the Sunni view of how Sharia is achieved.
We will try to develop the Shia system. The Shia have essentially accepted the Qur’an and Hadith as we have noted, but added in the place of the Ijma, the concept of Imam. This is something which we will take a little more time to develop as we develop the whole of Shia and what makes Shia distinctive, etc.
Essentially we are looking at the Imam used in a distinctive way by the Shia tradition. We have already mentioned in passing at least, in the Sunni tradition
they also use the word “Imam;” but it is used kind of for a prayer leader. Any Muslim cleric can be called more generally an Imam. But be very careful to realize that in the Shia tradition, the Imam is not used that loosely at all. It is a very, very precise term for a particular person.
The Imam would essentially be a religious leader of some great import who has been given the mantle of Muhammed’s prophethood. Remember our discussion on this point that immediately following the death of Muhammed, there was a division in the community about whether or not the mantle of Muhammed could pass to another generation, another person, either just Muhammed as the head of the community; or whether the actual mantle of his prophethood, which would mean that someone could carry on the prophetic tradition. If you accept that idea, then of course the gate of Ijtihad, as it were, is kicked wide open. Because here you have a figure that can actually speak as Muhammed spoke, when the mantle rests upon him. This idea was accepted. They believed in actually two aspects of this doctrine. One aspect is that the mantle of the prophet would be bestowed on a particular member of the line of Ali. That is to say, somebody who was in a direct blood descent of specifically Ali, could receive this mantle. That person could receive the second doctrine. The second doctrine would say that that person can be divinely inspired to utter a body of knowledge. In other words, he would have insights, revelatory information only an Imam could possess. That is a very different situation altogether because here we have the possibility of a much looser framework of Sharia because you have a person, a charismatic figure that could emerge.
To make sure we are clear, even as we have had with the Ijma, where those said “It once was open and now it is closed” and the whole open/close debate, you have the same thing with the Imamite doctrine. As we will see when we develop Shia more, but the “Seveners” who say there are seven Imams in the history of the world, they have already come, they have had their say, and it is now closed. They have the seven figures who gave them particular doctrines which obviously support Shia theology, and therefore they say that now that those seven have come, it is over with.
There are the “Twelvers” who believe there are 12 of these figures and yet a future one to come. So you have various ways this is interpreted. Even in the Shia tradition you essentially have the effective parallel to the gate of Ijtihad being open or closed. Rather than a personal jurist making a personal effort to reach a consensus, or the Ijma, you have an Imam who makes an utterance straight out, like the Pope speaking ex-cathedra or something, that would say, “By virtue of my saying this, when I speak in this way, the Imam speaks on behalf of the Islamic community.” So he does not have go to through a Shura process, he actually can say, “This is the Ijma” essentially.
There are those who say that no more such individuals exist and therefore one cannot get any higher than like Ayatollah Khomeini, for example, which is a figure right beneath an Imam. Some say he was the “hidden Imam.” We have to look into this idea of the Imam and the hidden Imam later. The idea of an Imam figure that could emerge at the end of time or function in this revelatory capacity, functions somewhat like the end result of the Shura process.
We now at least have the basic framework, even though we have not been able to fill in all of the Shia blanks and how Shia has unfolded. Essentially this is how it works out.
Next to the five pillars of Islam, the Sharia code, specifically what they call “The Sharia code of family life” is extremely important to Islam. It can lay down very strict laws about things like veiling of women, female exclusion, what right you have to divorce or not to divorce, who you are allowed to marry or not to marry, all kinds of things like that, which dramatically affect the average life, as well as do not use alcohol. All these things affect dramatically the way Muslims live. Whether or not a female can have a driver’s license. As you know, in Saudi Arabia actually Sharia law does not prohibit this. This is a big difference in Sharia law. What is the attitude of the Qur’an or the tradition or consensus regarding a female in the home? One of the interpretations of headship is that a woman should therefore not ever be allowed to be alone; and therefore to allow her to drive alone is immoral; and therefore you should not give a woman a driver’s license. You can back it up through Qiya to something as modern as whether or not somebody can drive, or not.
It really does boil down to very powerful issues in the Muslim world that have divided the Muslim world. Because you think about going to places like Turkey and you compare the way many women and people interact in Turkey under Sharia law; or in Indonesia; or Nigeria; compared to places like Saudi Arabia. There is no-one who can say there is not a dramatic diversity in the way many Muslims around the world live out their lives.
Take Muslims in America, where there is no Sharia law. They are free to live according to western law courts and so many Muslims say, “Because I’m in
America, I am not bound by these prohibitions; but if I go back home to X, Y, or Z, then there I of course have to abide by those laws.” They view it as kind of a sectarian legal thing. It’s like Bill Clinton saying, when he was interviewed, “Have you ever broken a Federal law?” He said, “No.” The reason he said “no” was because he had actually smoked marijuana in Great Britain, where it was not against a Federal law. Of course, he didn’t inhale. He did not break a Federal law. It was technically true. You have the same kind of thing. It just seems like it fits in so many ways.
According to Kenneth Craig, a Muslim scholar, who writes, “A true theocracy is impossible since God cannot immediately reign in the earthly situation, especially in Islam with their idea of the enthronement passages, but it is divinely ordered through the vice regency, an institution which they believe emerges in these law courts.” So it is a form of theocracy, which I have said before, we call “Nomocracy” from the Greek word, “Nomos or law.
Those who submit to the law of God, the Sharia, that is how you submit to God. So people who say kind of casually, who have not had this class or any
introduction to Islam, “Islam is legalistic” don’t know what they are saying. We will say that, and what we really mean by that is, “Islam is legalistic because they believe you have to perform the five pillars in order to get into heaven,” which is of course true, that is legalistic. What they do not realize is how true it is. In fact, it is not just that, it is the whole worldview. The whole map of Islam is mainly viewed in legalistic terms.
We are going to see how Sufism is going to drop a bomb into all of this and blow it all up. You are going to have all kinds of other activities going on that is rejecting the whole idea of a legalistic view of Islam. Quite apart from dissenting movements, the basic vision is a legalistic one. That says a lot about the whole nature of Islam as a movement. Therefore, the concept of grace is very, very difficult for Muslims to come to grips with because it is so foreign to the basic vision. It is with the Sufi movement coming on the scene that we see the veritable explosion of theologies of grace and personalness and personal relationship with Allah and all of this that will be quite alien to this whole vision that we have laid out up to this point.
The divine will is understood in terms of concrete commandments. Christians talk about sin. With the Muslim - we are talking about a mainstream Muslim here – you have to realize that you are automatically talking on two different levels of thought. Because when a Muslim says “sin” a Muslim, whether he articulates it or not, is thinking at least, if not actually verbally clearly pointing it out, that sin is tied into Sharia. If you go by the Sharia, how can you be a sinner? because Sharia defines the will of God for you. If you obey the Sharia, you are not a sinner. The idea of someone being a sinner by virtue of who we are, is alien to the legalistic concept; not only in Islam, but it is manifested in many other religions as well.
So Sharia is the codification of the Qur’an, the Hadith or Ijtihad, which has reached Ijma; or the Qur’an, Hadith and various utterances of the Imam that have entered into the Sharia law.
B. Categories of Sharia
The Sharia originally was divided into two categories: Duties to God and duties to others, kind of a simple framework.
In the modern period, Sharia is more likely divided into five general categories: What is obligatory, what is recommended, what is indifferent, objectionable or prohibited.
This is a little bit like in our system where you have a misdemeanor vs a Federal crime. At what point does something become a crime which requires expulsion from the Muslim community, or death? What would involve a simple fine? What is discouraged, but is not illegal? Things like that.
These are the kind of ways it actually works out. Let me give you some examples to give you a feel for this. Prayer, fivefold prayer is in the obligatory category in Sharia law. That means that anywhere in the Muslim world that is governed by Sharia law, the fivefold prayer is obligatory. When you wash with water, the ablution before the prayer, the ablution by the way is also obligatory. So you are required to prayer and you cannot pray unless you wash. But whether you begin on the right side of the body or the left side of the body. It is recommended to begin on the right. Do you use warm water or cold water in the ablution is a matter of indifference, it does not really matter. That decision is made, the law court met and said it is indifferent. But if somebody unclean should touch this water or infect it in some way, then it is prohibited for someone to use that water for ablution. So it kind of boils down to different ways things work out.
Once the Sharia law is established, then it is beyond question. There is no way you can break out of that. To break the Sharia is tantamount to rebelling against Allah himself. So this is the way it works. In practice, many of the Sharia law courts, as you know with any legal system, you have bodies of law that develop along certain areas. You might have family law. You might have corporate law. Business law. You might have contractual laws.
In the realities of the modern world, especially with the Internet and legal issues regarding technology and business deals, there are places where we will say the Sharia law is very strong in these areas. Like in family law, it has all been nailed down for centuries. But there are new issues that have arisen so rapidly and quickly that they do not know how to deal with it. This is true for every legal system, you are always adapting and developing new forms of law, like divorce, family custody laws and all of this. So what they do is in some cases the governments have accepted Western law codes for certain areas that the Sharia does not address and they have accepted them. But when it comes to family law, you must submit to Sharia code. When it is something to do with some business deal overseas and you are dealing with an American company, you want to enter into a business deal and they are telling you they have laws about whatever, fine. Do whatever they tell you. We will be indifferent about it.
So you now have a fracture of the vision because this was not the original vision, a fracture of the vision in the practical world where you might have somebody, a Muslim in a given country who may actually live and submit to laws in the Sharia court there, but may actually submit to Western law codes for something unrelated or has been openly given over to that. We cannot address that at this time, we don’t have the legal jurist to study it. So you have these kinds of collaborative efforts so that countries can face new situations, sometimes borrowing legal traditions outside the Muslim world.