The Spaciousness of Shari'ah law Vs...

Egypt's Dar Al-Ifta

The Spaciousness of Shari'ah law Vs. the Zealotry of the Extremists

The Spaciousness of Shari'ah law Vs. the Zealotry of the Extremists

Shri'ah law has been the subject of many mischaracterizations and stereotyping that it has become necessary to simply get the facts straight. Many discourses on the subject remain captive to either hallucinatory mythology often spurred on by xenophobia or bigotry or the realm is left to half-educated, self-claimed pseudo scholars who have the audacity to cloak their irreligious education and lack of academic sophistication with a religious robe.

It is quite common among both Western and native discourses to use the term Shari'ah and Islamic law interchangeably but the fact remains that the term "Shari'ah" carries a broader meaning than the confinement of a code of laws. In Islamic tradition, the broad meaning of Shari'ah is the life source for well-being and thriving existence as it formulates the natural and innate ways and order created by God. In the legal context, Shari'ah is God's eternal and immutable law to achieve truth, virtue and justice. The two major sacred sources for Shari'ah are the holy Quran and authentic Sunnah or Prophetic traditions. Islamic law is or what is called (ahkam al- Shari'ah) refers to the cumulative body of legal concepts and jurisprudential thought of numerous interpretive communities and schools of thought, all of which search the divine will and its relation to the public good. The stated objective of Islamic law is to achieve human well-being and thus the magnum opus of great Islamic scholars aim at deriving legal rulings from the two major sources of Shari'ah. Therefore, Islamic scholars over fourteen centuries attempted to understand and implement the divine norms, to explore right and wrong and to achieve human welfare.

The heritage of Islamic jurisprudence and the Islamic legal code span a period of over fourteen hundred years, arising from a wide variety of cultural and geographic contexts that are as diverse as Arabia, Egypt, Persia, Bukhara, Turkey, Iberia, Nigeria, Mauritania, Mali, Indonesia, India and China. It is worth noting that what is called "Islamic law" is not contained in a single or few books. Islamic law is rather found in a huge corpus of volumes that document the rulings, opinions, and discourses of jurists over the span of many centuries. Despite the contextual and historical contingencies that constitute the complex reality of Islamic law, paradoxically the Islamic legal legacy has been the subject of widespread and stubbornly persistent stereotypes and oversimplifications and its legacy is highly contested and grossly understudied at the same time.

Islamic law essentially grew out of the normative teachings of the Prophet Muhammad and his disciples. Islamic scholars across centuries have developed legal maxims and jurisprudential tools to derive legal rulings which match both the major objectives of Shari'ah and remain sensitive to people's needs and challenging contingent circumstances. Their aim is always to build a bridge between the divine normative laws and its application in our modern reality. During their scholarly endeavor, jurists often denounced a particular set of customary practices, such as the tribal laws disinheriting women, or executive administrative practices such as tax farming or excessive taxes known as "mukus" as inconsistent with Islamic legal principles.

Deducting legal rulings, Muslim jurists based their science of legal jurisprudence on major sources which became the subject for their interpretations, studies, extrapolation and deductions. The four major sources are the Quran, the Sunnah, Qiyas (analogical or deductive reasoning), and ijma' (consensus of the Muslim jurists). These major four legitimating sources are usually accompanied with some practical sources of law which include an array of conceptual tools that greatly expand the venues of the legal determination. For instance, practical sources include presumptions of continuity (istishab) and the imperative of following precedents (taqlid), legal rationalizations for breaking with precedents and de novo determinations (ijtihad), application of customary practices ('urf and 'ada), the pursuit of public interest and policies (al- maslaha al-mursalah). These and other practical jurisprudential sources worked under an umbrella of a sophisticated conceptual frameworks to regulate the application of the various jurisprudential tools employed in the process of legal determination. Not only were these conceptual frameworks intended to distinguish legitimate and authoritative uses of legal tools, but collectively, they were designed to bolster accountability, predictability and the principle of rule of law.

As a result of direct reference to both the Quran and the Sunnah for being the two major sacred sources of divine law, many scholarly debates were in place to determine the meanings, connotations, inference and interpretations of the textual narrative of both the Quran and the Sunnah. Muslim scholars developed an extensive literature on 'Quranic exegesis and legal hermeneutics as well as a body of work (known as ahkam al- Quran) exploring the ethical and legal implications of the Quranic discourse. Moreover, there is a classical tradition of disputations and debates on what is known as the "occasions of revelation" or (asbab al-Nuzul) which deal with the context or circumstances that surrounded the revelation of particular Quranic verse or chapters and on the critical issue of abrogation (naskh) or which Quranic prescriptions and commandments, if any, were nullified or voided during the time of the Prophet.

Similar issues relating to historical context, abrogation and hermeneutics are dealt with in justice treatment of the legacy of the Prophet and his companions and disciples. However, in contrast to the juristic discourse on the Quran, there are extensive classical debates on the historicity or authenticity of the hadith and the sunnah. While Muslims jurists agreed that the authenticity of the Quran as God's revealed word, is beyond any doubt, classical jurists recognized that many of the traditions attributed to the Prophet were apocryphal. In this context, however, Muslim jurists did not just focus on whether a particular report was authentic or a fabrication but on the extent or degree of reliability and the attendant legal consequences. Importantly, Muslim jurists distinguished between the reliability and normativity of traditions. Thus both the Quran and the Sunnah play the foundational role in the processes of constructing legal legitimacy.

The rise of qiyas or analogy to be part of the major sources of Islamic law occurred due to the unprecedented or novel cases, often for which there is no law on point, the jurist would extend the ruling in a previous case (asl) to the new case (far') but only if both cases shared the same operative cause. The derivation of the operative cause of a ruling (istikhraj 'illat al-hukm) was important not only because it had become the method by which the law was extended to cover new cases but also because it became one of the primary instruments for legal systemization. If the operative cause changes or no longer exists, the law in turn must change. The Islamic legal maxim which indicates that the law is changed if the reason causing it changes helped in generating a more systematic legal institution as it meant that cases involving substantially the same issues were decided similarly. This practice in turn led to the development of the presumption that precedent ought to be followed unless there is a sufficient cause for exception or change (istishab), which could be for changed circumstances, equity, or a number of other legal justifications.

There is also another important formal source which is ijma' or the consensus of Muslim scholars and jurists on a certain legal matter. The ultimate purpose behind the establishment of such source is to turn some of the speculative legal rulings to its definitive format through seeking the consensus of Muslim scholars. There are a number of other legal instrumentalities that allowed Muslim jurists a degree of flexibility in reaching determinations consistent with equity, avoidance of hardship or granting special relief. Among such instrumentalities was the method of istislah, by which a jurist would follow a certain precedent that was not directly on point, instead of another precedent that was directly on point, for purposes of achieving equity. Another was istihsan by which a jurist would break with the established precedents on a legal matter in the interest of reaching a more just or fairer result. But the exercise of equitable preference was not a matter of a simple exercise of discretion. Rather, the jurists developed a set of limiting criteria that were intended to make the process of exercising a preference more systematic and accountable.

From the brief introduction which explains the major sources of Shari’ah and the supplementary legal maxims adopted to help in deducing legal rulings along with the huge jurisprudential literature accumulated over centuries by authentic jurists and scholars in their attempt of applying the rulings of God’s way (shari’ah) in our life today, we can deduce some important conclusions.

Firstly, the magnum opus of juristic literature indicates the diversity of opinions, spaciousness of scholarly debates and the richness of Islamic heritage. No scholar claims to hold the ultimate truth or dismisses other scholarly opinions as irrelevant.

Secondly, diving into the Quran and the Sunnah in order to deduct legal rulings without possessing the needed training and obtaining the necessary religious education which makes one eligible to become an authentic reliable scholar is a pure act of ignorance and sheer transgression on the Holy Scripture.

Thirdly, the unprecedented arrogance of claiming the possession of the ultimate truth about the exegesis of some Quranic verses and Prophetic traditions and disregarding any opposing scholarly opinion as irrelevant, false or fabricated only comes from those who opposes knowledge and only seek to establish their control over people’s minds without paying any attention to the well-established legal opinions of erudite scholars and luminary jurists over centuries.

The perverted terrorist groups which flagrantly claim to speak in the name of religion are only falling prey to their own personal lusts of power and desire for hegemony and control. Their understanding of the teachings of Islam could not be more aberrant from the true essence of faith both in letter and spirit.

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