Applying Shariah
Applying Shariah
Sunday, September 23,2007 08:03
By Ibrahim El Houdaiby
I cannot think of any term in the Western literature on “Islamism” that are as notorious as the terms Jihad and Shariah. As soon as any of these terms are associated with an Islamist movement, it is portrayed as either terrorist (in case of Jihad) or discriminatory and barbarian (in case of Shariah). This has been largely caused by practices of some Islamists, and has led to serious misconceptions regarding the principles and objectives of Islamic movements in general. 

The term jihad has been thoroughly discussed in the post 9/11 world. There is now an increasing understanding that what the term means to terrorists groups, like Al Qaeda, is different than what it means to the Muslim community. Despite the growing awareness on the two perspectives of jihad, the term Shariah has not received equal attention up until today. People still do not understand why moderate Islamic groups are calling for the appliance of Shariah, simply because such groups were not given the chance to discuss or clarify what the term means to them.

The reasons for that are quite obvious; terrorism has topped the international agenda in the post 9/11 world, and has clearly surpassed the international interest in issues of human rights. Today, for the most part, is it only security that matters and therefore only security issues are being discussed. Islamists, therefore, exerted most of their time and effort refuting misconceptions about Jihad, and only minimal effort was directed towards clarifying what is meant by applying Shariah.

Shariah literally means “the way.” In an Islamic context, it means the authentic, orthodox Islamic way of living, which is based on the teachings of the Qur"an and the Sunnah (saying and acts of Prophet Muhammad). This way of life does not merely mean laws and regulations adopted and implemented by state institutions, but rather a comprehensive way of life.
Basically, there are two different ways to breakdown the meaning of Shariah; breaking it down into branches, and breaking it down into rulings and objectives. There are three branches of Shariah; Akhlaq (ethics), ‘ebadat (rituals) and mo’amalat (transactions).

Ethics and rituals have nothing to do with regulations and political activity, and have nothing to do with the state. They are ‘religious’ branches that are ‘preachable’ but not implementable. It is the individual’s personal choice to follow the Islamic teachings regarding ethics and rituals, and it is his/her choice that affects his/her piety, and he/she is therefore to be judged accordingly on the Day of Judgment. Therefore, discussing such issues in a political context is meaningless. A good example of that is the veil; which is an obligation for a Muslim woman to wear. Yet whether or not she decides to uphold this obligation is her personal choice, which the state has no right to interfere in.
As for the transactions there are two types included in the Islamic Shariah. The first is the transaction where there is no state interference, which covers a significant percentage of the transactions. The second type is the transaction organized by law; some of which are directly extracted from the Islamic sources while others are based on the objective of the Shariah, which will be discussed in the next part of this article.

Only a very small portion of Islamic rulings are fixed, while the vast majority is dynamic. In each field, there are some principles which the different rules should protect. In the field of economy, for example, the main principle is to maintain an ‘ethical’ economy that upholds the values of mercy and solidarity amongst society members. Therefore, usury and monopolies are prohibited, and Zakat (a small percentage of the annual savings of the individual to be spent mainly on the poor and needy) is obligatory. Economy is not regarded as an autonomous system, but rather part of the larger comprehensive system that incorporates and synchronizes all different fields of life.

Political openness, tolerance for diversity, equality, freedom of speech and accountability are the basic pillars for Islamic political systems. Needless to say, most, if not all, contemporary Islamist models have notably failed to meet the Islamic criteria for an acceptable political system. This is specifically why I say that Western political systems such as the American and British ones are more “Islamic” than regimes claiming to be Islamic, such as the Afghani Taliban.
Shariah could also be understood on a ruling-objective level. There are some clear, static rulings of Shariah which present the pillars of the Islamic system. For the most part, these have to do with non-state-related areas of Shariah, such as ethics, rituals and some other transactions such as marriage. There are some static rulings in other areas such as trade, inheritance and penal code.
Over the centuries, there has developed a great amount of literature on the objectives of Islamic Shariah, which were derived from its primary sources. Earlier scholars like Al Shatibi and Al Ghazali asserted that Islamic Shariah aims at preserving the human soul, mind, honor, property as well as religion. Clearly, the state is not equally involved in the achievement of all objectives, as they are distributed between the state, the society and the individuals therein.
The state’s role in some cases is merely to present the healthy atmosphere, as is the case in the preservation of religion, where the state should be responsible for creating a fear-free atmosphere; one in which different ideas could be propagated, and not banned.

Yet the state has to play a larger role in achieving other objectives. It has to have sufficient legislation to preserve both soul and property. When it comes to preservation of honor and mind, the level of state intervention is intermediate. The state should not violate the individuals’ free will as long as he does not go public. Islamic Shariah perfectly strikes a balance between individuals’ rights and societal rights. The state should not interfere in the individual’s personal choice to violate Islamic teachings and drink alcohol, as long as he does not violate the societal rights by threatening its security. Therefore, he could drink behind closed doors, and not go to public places while drunk.

Same applies to extramarital sexual relations. It is a couple’s personal choice to adhere to Islamic teachings, prohibiting sexual relations outside marriage, or not. Yet, the choice should not violate their society’s right to have a decent environment. Therefore, extramarital sexual relations are only a punishable crime if there are four eyewitnesses to the relation. Needless to say, the fact that there are four eyewitnesses clearly means that the relation was public, especially with Shariah prohibiting spying on one another in the society.
Contemporary Islamic scholars have rephrased the Shariah objectives in a way that is more comprehensible, and more related to today’s world. Yusuf al Qaradawi, a great influential scholar, and the chairman of the Universal Alliance of Muslim Scholars (UAMS), argues that there are seven main objectives of Shariah; reforming beliefs, asserting human dignity and rights especially of the vulnerable, building the Muslim family and bringing justice to women, purifying human soul, calling upon people to properly worship and fear their Creator, pushing for a cooperative humanistic world, and building a strong, ethical nation that could stand as an example to others.

This classification of Shariah objectives paves the way for better understanding of what should or should not be applied in a political context, and what can be implemented by the state. Clear for the above, the state would have a huge role to play in issues of human rights, bringing justice to women, pushing for a cooperative humanistic world and building a strong ethical nation that could stand as an example to others.

The State should play a smaller role in building the Muslim family, and a smaller one in the other three objectives; which are primarily preachable and religious.
The application of Islamic Shariah is only correct if it combines both applying the ruling and achieving the objective. That is, the direct rulings or Shariah should be applied in way that promotes, preserves or upholds the overall Shariah objectives. This is where Shariah’s dynamism comes from; dynamism that guarantees the continuity of the Islamic system, but at the same time removes any divinity from the application of Shariah, and opens the way for reinterpretation and reapplication.

Understanding Shariah as such contributes to clearing a lot of misconceptions shared by intellectuals, journalists, policy makers and the public alike in different corners of the world. It helps in better understanding what Islamist movements call for, and understand that they are not all the same, as going beyond the headlines would reveal that the application of Shariah means different things for different people. This understanding should contribute positively to building a constructive dialogue between moderate Islamist groups, and other groups and governments all over the world.